136-NLR-NLR-V-47-ABEYSURIYA-et-aL-Appellants-and-GUNAWARDENE-et-al-Respondent.pdf
Abcysuriya v. Qunawardene.
397
1946Present: Wijeyewardene and Jayetileke JJ.ABEYSURIYA et cd., Appellants, and GUNAWARDENEet al., Respondents.
63—D. C. Matara, 156/14,165.
Partition action—Agreement, pending action, to transfer divided lot after finaldecree,—Does not convey immediate interest—Partition Ordinance{Cap. 56), s. 17.
Where, pending an action for the partition of a land, one of thedefendants executed an agreement which provided that he would withina month of the entering of the final decree convey the divided portiopthat would be allotted to him under that decree—■
Held, that the agreement did not convey an immediate interest andcould not be given effect to in the interlocutory decree entered in thecase.
PPEAT, against a decree of the District Court of Matara.
N. E. Weerasooria, K.C. (with him S. W. Jayasuriya), for the defendants,appellants.—The question is whether a person who has got a deed pendinga partition action could intervene in the action. Section 17 of thePartition Ordinance declares such a deed void. Only a purchaser undera Fiscal's sale can intervene, and that only after the conveyance isobtained—Per era v. Per era x.
[Wijeyewardene J.—Cannot a person who has a right to theproceeds of sale under a deed pending partition have his rights reservedin the partition action ?]
No ; he has to bring a fresh action for specific performance uponentering of the final decree—See Hewawasam v. Gunasekera 2.
A. Rajapakse, K.C. (with him Vernon Wijetunge), for the eighthdefendant, respondent.—A cestui que trust can intervene in a partitionaction to have his rights reserved—Galgamuioa v. Weerasekera3.
1 {1906) 9 N. L. R. 217 at 219.* {1926) 28 N. L. R. 33.
» {1919) 21 N. L. R. 108,
398
Wl.TE YEWARDENE J.—Abeyauriya v. Ounawardene.
[Jayetileke J.—Do you get a right under the partition decree ?You have no interest in the property until the decree is entered.]
One cannot say that we have no interest ; we have an interest to have aconveyance after final decree ; the agreement is registered and registrationis notice—Silva v. Salo Nona 1. Hence our rights are preserved bysection 93 of the Trusts Ordinance. A deed like the present one conveysan immediate interest—Manchanayake v. Perera2. Where the sub-stantial rights of parties are not prej udiced an appeal will not be allowedon account of any error, defect or irregularity—section 36 of the CourtsOrdinance.
N. E. Weerasooria, K.G., in reply.—21 N. L. R. 108 does not apply—aCestui que trust has a present interest.
[Wijeyewardene J.—What about a fideicommissary’s interest ?]
In this case we are concerned with a deed pending partition and there-fore a fideicommissary’s case is not analogous to the present one. Section36 of the Courts Ordinance cannot override the provisions of section 17 ofthe Partition Ordinance.
Cur. adv. vult.
September 17, 1940. Wijeyewardene J.—
The plaintiffs filed this action on November 24, 1941, under thePartition Ordinance in respect of a land called Gerietayagahahenaapportioning to himself, the first defendant and the second defendantundivided 5/12, 5/12 and 2/12 shares respectively. There is no disputeas to the correctness of those shares.
By deed 8D2 of November 20, 1941, the first defendant conveyed hisundivided 5/12 shares to the eighth defendant. As they had beenadvised that the deed 8D2 was void in view of the provisions of section 17of the Partition Ordinance the first and eighth defendants executed anindenture 8D3 of February 21, 1942. The relevant provisions of 8D3are :—
that the first defendant shall within a month of the entering of the
final decree convoy the divided portion that may be allottedto him under that decree.
that the eighth defendant shall be liable to pay all the pro rata
costs and compensation, if any, that the first defendant may beordered to pay under the decree.
that the first defendant shall be liable to repay to the eighth
defendant the sum of Rs. 750 paid at the execution of 8D2 anda further sum of Rs. 500 as liquidated damages if he refusesor neglects to convey the divided lot as agreed to the eighthdefendant.
that in the event of the decree being a decree of sale, the eighth
defendant shall be entitled to the relative share of the proceedsof the sale.
The second and eighth defendants entered into a similar indenture8D9 of December 8, 1942, in respect of the undivided 2/12 shares of thesecond defendant.
1 (1930) 31 N. L. R. 81.
(1945) 46 N. L. R. 457.
Fernando v. Rajasooriya, 1 nspeetor of Police.
399
The first defendant died pending the action and his intestate heirsat the time material to this ease were the fourth, fifth, sixth and soventhdefendants.
In spite of an objection raised by the defendants-appellants, the DistrictJudge directed interlocutory decree to be entered declaring that the 5/12shares devolving on the fourth, fifth, sixth and seventh defendantswere “ subject to the terms of agreement D3 in favour of the eighth defen-dant The decree also declared the 2/12 shares of the second defendant** subject to the deed of agreement D'J in favour of the eighth defendantClearly, the eighth defendant got no interest in the land under 8D2.The indentures 8D3 and 8D9 were merely agreements to transfer dividedlots after the final decree. They do not convey an immediate interestin the land. I am, therefore, compelled to modify the decree
by directing that the schedule should read :—
plaintiff entitled to
fourth to seventh defendants entitled tosecond defendant entitled to
5/12 shares
5/12 shares equally
2/12 shares
(6) by vacating the order for costs made in favour of the eighthdefendant against the fourth, sixth and seventh defendants.
The rights of the eighth defendant under 8D3 and 8D9 are, of course,unaffected by the modification of the decree.
7 would allow the appellants costs of appeal as against the eighthdefendant.
JayettCEXE J.—I agree.
Decree modified.