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Pre8ent: Schneider A.J. and Loos A.J.
EDORIS v. ADRIAN. .39—-D. 0. Qalle, 13,318.
Sale by a person when he has no title—Subsequent acquisition of title—
Fiscal's sale after vendor had acquired title—Competition between
Fiscal's purchaser and vendee.
In 1906 the plaintiff not being owner sold to the first intervenientcertain undivided shares in a field. The plaintiff described his titleas by right of paternal inheritance and possession. In 1907 and1914 the plaintiff acquired certain undivided shares in the field, "which were nearly equivalent to what he had sold to first interveni-ent in 1906.Thesecond intervenient claimedthese shares by virtue
of a Fiscal's sale (and transfer) on a writ against plaintiff in 1917.
Held, that the first intervenient had better title, as the subsequentacquisition oftitleby the plaintiffenured tothe benefitof the first
“ The factthatthe vendor inthis casedescribedthe title he
conveyed in 1906 as by inheritance and possession and his subse-quent title ' as bypurchase makesno difference in theoperation of
the deed to convey title.”
rjiHE facts appear from the judgment.
A. St. V. Jayawardene (with him Zoysa), for first intervenient,appellant.
J. S. Jayawardene, for second intervenient, appellant.
June 12, 1919. Schneider A.J.—
This is an action for the partition of a field. In the interlocutorydecree certain undivided shares were allotted to the first plaintiff.Subsequently an undivided six kurunies extent out of these shareswere claimed by the first intervenient by virtue of a deed to thefirst intervenient in 1906. In this deed the first plaintiff’s titlewas described as “by right of paternal inheritance and hithertopossessed.” In 1907 and 1914 the first plaintiff appears to haveacquired certain undivided shares in the field, which are nearly .equivalent to what he had sold to the first intervenient in 1906.It is in respect of these shares he had been allotted the shares inthe interlocutory decree. These shares are nearly equivalent to sixkurunies extent which he had sold to the first intervenient in 1906.The position, therefore, is this: in 1906 the first plaintiff, not beingowner, sold to the first intervenient, but in 1907, and 1914 he acquired
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the ownership of an extent equivalent to what he had sold. Theseoond intervenient claims adversely to the first intervenient all theshares which in the interlocutory decree had been allotted to thefirst plaintiff. The second intervenient puts his title as derivedunder a Fiscal's transfer in June, 1918, the sale having taken placeon November 16, 1917. The only point which has been submittedfor our adjudication is whether the first intervenient or the secondintervenient has a better title upon the documents which I havementioned. It is contended that as the sale to the first intervenientwas at a date when the first plaintiff had no title, that the deed infavour of the first intervenient conveyed no title', and that the titleacquired by the first plaintiff under the deed of sale in his favour isnow vested in the second intervenient by virtue of his purchase atthe Fiscal’s sale. The learned District Judge has decided in favourof the second intervenient, following the case of Mohammed Bhoy v.Lebbe Marikar,1 and holding that the subsequent acquisition of titleby the first plaintiff does not enure in any manner to the benefit ofthe first intervenient. The attention of the learned District Judgedoes not appear to have been drawn to a later case, that of Rajapaksav. Fernando,a in which the case of Mohammed Bhoy v. Lebbe Mari-kar 1 had been considered. The present case, there can be no doubt,comes within the principle of the decision of that later case, whereit was held that the title conveyed before the transferor had anytitle should, prevail against a title purported to be subsequentlyconveyed after the transferor had himself acquired title. The factthat the vendor in this case described the title he conveyed in1906 as by inheritance and possession and his subsequent title as bypurchase makes no difference in the operation of the deed to conveytitle. I would, therefore, hold that the first intervenient is entitledto have six kurunies marked out of the undivided shares allotted tothe first plaintiff. I would make the following order. Let directionsbe given to the Commissioner to mark out of lot No. 4 a portionequal to the second plaintiff’s one-eighth, and let such portion beallotted to the second plaintiff. Out of the remaining portion,being the equivalent of the undivided 5/56 and 1/6 shares allottedto the first plaintiff, let the Commissioner mark out a portionequivalent to six kurunies, and let the first intervenient be declaredentitled to this.
The second intervenient will be declared entitled to such portion,if any, as would remain thereafter. The first intervenient must bearthe pro raid share of the costs of partition. The second intervenientmust pay the first intervenient all the costs of the contest betweenthem, both in the lower and this Court.
Loos A.J.—I agree.
» (1912) 15 N. L. B. 466.
* (1918) 20 N. L. R. 501.
EDORIS v. ADRIAN