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ANNAMALAI PILLAI v. PERERA.
Suppramanian Chetty, Added Party, Appellant.
D. C., Negombo, 4,072.
Partition Ordinance, No. 10 of 1863, s. 11—Alienation of land during pendency
of proceedings for partition-
E P having instituted a partition suit in the District Court of Colomboin respect of several lands, her share of one of the lands sought to be-partitioned was seized, on a writ of execution against her and sold on23rd July, 1898, to M S, who sold it to A P on 11th – September, 1899..On 29th October, 1899, the District Judge of Colombo ordered that theland in question should be struck out of the partition suit, which was-still pending. E P then sold to S C on 8th January, 1901, the halfshare which had been previously sold by the Fiscal to 11 8.
In an action for partition of this land brought in the District Court ofNegombo by A P, who claimed to be the owner of one-half thereofunder M S,—
Held, per Moncbeiff, A.C.J., and Middleton, J. (Wendt, J., dissent-ing), that the Fiscal’s transfer to M S and M S's transfer to A Fwere .not only void quoad the partition suit raised in the District Courtof Colombo, but void absolutely.
Baban v. Amarasinha (1 S. C: C. Hi), decided by Phear, C.J., andDias, J., questioned.
HE plaintiff in this case claimed one-half of Ambagahalanda,and, allotting the other half to defendants, prayed for a
partition thereof. Suppramanian Chetty, by his petition of inter-vention, averred that he was entitled to the undivided half shareclaimed by the plaintiff, and prayed that he may be made anadded party to the case, and that plaintifE’s claim for a sale of thesaid land under the Partition Ordinance de dismissed, or in thealternative that the petitioner be declared entitled to the said halfshare in the decree for partition'.
The District Judge, Mr. E. F. Hopkins, found as follows uponthe facts and law of the case: —
“ One Elizabeth Perera was entitled to an undivided half of theland. This share was seized by the Fiscal on writ against her inD.C., Colombo, 11,023, dated 4th May, 1898. The land was soldon the 23rd July, 1898, and purchased by Marthelis de Silva, whoobtained the Fiscal’s transfer (marked A) on 20th April, 1899.On 11th September,' 1899, Marthelis sold it to the plaintiff .bydeed B. The Fiscal’s transfer A was registered on 22nd April,1899, and the transfer B to the plaintiff on 28th March, 1900. -“ On 8th January, 1901, Elizabeth Perera sold the same land tothe added party by deed Z. He intervenes in this case, assertingthat the sales relied on by plaintiff are null and void, being con-trary to the provisions of the partition.
July 17 andOctober 16.
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" It appears that on the 22nd Ootober, 1897, Elizabeth Pereraand her husband instituted the partition suit No. 10,663 in the '*ffij**
District Court of Colombo, and the land now in dispute was one
of the lands sought to be partitioned. On 19th Ootober, 1899, theDistrict Judge made order striking this land off the list of landsto be partitioned. The added party contends that the sale by theFiscal in 1898, and the transfer to plaintiff in 1899, are null andvoid as having taken place during the pendency of the partitionaction.
“ Thus, the validity of these sales is the -sole issue between theplaintiff and the added party.
“ The first authority on .the point is .the judgment of Phear, C.J.,and Dias, J., in Baban v. Amarasinha (I S. G. G. 24). It is clearlyfavourable to the plaintiff, for it is there held that alienation orencumbrance of the property which forms the subject of apartition suit is void quoad the partition only, the object of therestriction being to prevent any party from defeating orembarrassing partition proceedings by transferring his intereststo a stranger.
“ I am, however, referred to subsequent decisions as supersedingthe above authority.
“ The case of Ounawardana v. de Livera (4 8. G. C. 55) clearlydoes not reverse the first decision, which was quoted apparentlywith approval by Clarenoe, J., and not disapproved by Cayley, C.J.
“ In Perera v. Perera (9 S. C. C. 106), Burnside, C.J., —appears to disapprove of the decision in Baban v, Amarasinha(1 S. C. G. 24). But Clarence, J., again quotes it with approval.
The third Judge, Dias, J., does not refer to the point.
“ The last authority quoted, D.C., Colombo, 7,717 (Koch’sReports, 10), does not appear to me to bear on the point at all.
“ I am therefore of opinion that the clearly expressed opinionof Phear, C.J., and Dias, J., in. Baban v. Amarasinha is stillbinding on this Court, not having been specially over-ruled by thesubsequent cases quoted.
“ It is clear that the proceedings in the partition suit, D.C.,Colombo, 10,653, were in nowise defeated or embarrassed by thetransfer to plaintiff, or his vendor. And I must also point outthat this land was specially struck out of the. schedule of landssought to be partitioned.
“ I hold that the Fiscal’s transfer to Marthelis, and Marthelis’stransfer to the plaintiff, are valid, and that the plaintiff is entitledto the half share of the land claimed by him.”
Hopkins, D.J., decreed partition accordingly.
"The added party appealed.
( no )1902. The ease came oh lor argument in November, 1901, beforeJuly 11 and Moncreiff, J., and Browne, A.J., and was ordered by theirOctober 16. Lordships jq he re-listed for hearing before three Judges. There-argument took place on 17th July, 1902, before Moncreiff, A.C.J.,and Wendt and Middleton, J.J.
Lasoellea, A.-Q-. (with him Walter Pereira), for the added, party,appellant.
Domhor8t (with him if. J. C. Pereira), for respondent.
The authorities cited by counsel appear in the following judg-ments of the Supreme Court: —
16th October, 1902. Moncreiff, A.C.J.—
Elizabeth Perera was entitled to an undivided half of Ambagaha-landa. In October, 1897, she and her second husband entered a suitfor the partition of the land.
In 1898 Elizabeth Perera’s share was seized on a writ issuedagainst her. It was sold on the 23rd of July, 1898; the Fiscal’stransfer was obtained on the 20th. April and registered on the22nd April, 1899.
On the 11th September, 1899, Marthelis de Silva, the purchaserof the land, transferred it to the plaintiff Annamalai Pillai, andthat transfer was registered on the 28th March, 1900.
On the 29th October, 1899, while the partition suit was stillpending, the Judge, for the sake of convenience, struck thisportion of land out of the suit; and Elizabeth Perera sold it on the 8thJanuary, 1901, to Suppramanian Chetty, the added party andappellant in this case.
The plaintiff, founding upon the transfer of the 11th Septem-ber, 1899, from Marthelis de Silva to himself, entered the plaint inthis case on the 6th May, 1901, for the sale of the land under theterms of the Partition Ordinance of 1863. Suppramanian Chetty,the added party intervened, alleging that the sale of the landpending the partition suit which the plaintiff set up was absolutelyvoid in terms of section 17 of Ordinance No. 10 of 1863. The Judgeheld that it was not void, and allotted to the plaintiff the halfshare of the land, which Suppramaniam Chetty also claimed.
The terms of section 17 are as follows: “ Whenever any legalproceedings shall have been instituted for obtaining a partition orsale of any property as aforesaid, it shall not be lawful for any ofthe owners to alienate or hypothecate his undivided share orinterest therein, unless and until the Court before which the samewere instituted shall, by its decree in the matter have refused to
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grant the application for such partition or sale, as the ease maybe; and any Buch alienation or hypothecation shall be void
We ore to construe this section according to the intention of theLegislature if we can find it, and if we find it expressed in clearand unambiguous language in the section, we are not to import ameaning which is foreign to the words. The language is to myjudgment too clear to admit of any doubt, and I am not disposedto listen to any suggestion that the Legislature meant alienationor hypothecation under the circumstances to be voidable, becauseit has declared it to be void and unlawful.
The motive of a provision is immaterial where it forbids thetransaction in point. If a penalty is provided, that is primd facieproof that a transaction is expressly prohibited. That was theprinciple followed by Sir James Mansfield, C.J.. in Oye v. Felton(1813), 4 Taunt. 881. The principle is there clearly stated thatthe provision of a penalty under the circumstances made thecontract “ not only void but unlawful ”, and that it was impossibleto proceed upon a contract forbidden by law.
We were referred to cases in which it was held that transactionsdeclared by Statute to be void are only so as regards the personswhom the law desires to protect- These cases, I think-, are confinedto provisions for the protection of particular classes of persons, ortrades, or professions, whilst here we have to do with the safe-guarding of justice. But in any case they do not apply here,there is no penalty here, but the fact is immaterial so long as thetransactions are otherwise shown to be unlawful. The signifi-cance of the penalty is that it tends to show that the transactionis unlawful. Here the section flatly declares that such transactionsare unlawful. It is this .declaration which makes the transactionin this case absolutely void. In the case quoted from Koch’sDecisions, p. 10, Bonser-, C.J., endeavoured to make this principleclear. What he said was obiter dictum, and does not bind us, butI have no hesitation in accepting it as being in accordance withsense and the proper construction of language. I have no doubt, that the sale impugned in this case was absolutely void. I donot agree with the Judge. I think that this appeal should beallowed with costs.
The Roman-Dutch Law, following the Civil Law, forbade thealienation of a res litigiosa, that is to say, of a thing concerning theright to which a judicial proceeding was pending. The prohibitiononly applied to parties to that proceeding, and only to the particularinterest involved in .the litigation. Thus, if the dispute were about
Jviy 11 andOctober 16.
July If andOctober 16.
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a servitude, and the dominium not involved, the latter was capableof alienation, and so also if the action were a mere actio hypothecaria,or if it affected the possession only. The prohibition applied fromthe time that citation issued and notice was given. to defendant.The effect of the prohibition was to render the alienation void, andan assertion of title under it could be defeated by an exception.Such an assertion of right during the course of the proceeding byvirtue of an alienation affected during its pendency would not berecognized, but the litigation would proceed “ just as if nothing hadbeen done ”. If plaintiff recovered judgment, he could follow upthe thing in the hands of the third person to whom the defendanthad transferred it (Sande, De Prohibits, Rerum Alienatione, cap.IX.). The prohibition was equally applicable to actions communidividundo (Menochius, De Prcesumpt, lib. 2, prcesumpt 97, num. 24;Voet 10, 3, 7, 18, 3, 3). The defect due to such forbidden alienationwas, however, extinguished if the action was compromised, ordiscontinued, or withdrawn, and the defendant absolved (Meno-chius, ut cit., num. 61).
The reason of the prohibition is stated to be that the alienationby the plaintiff or defendant was presumed to have been made infraud of his adversary. As far as I have been able to ascertain,the prohibition against alienation pending action was only givenefEect to when, by virtue of such alienation, some right was assertedin the action itself, or in the execution of the decree in which itculminated, or by way of opposition to the right declared by thedecree. When the litigation was terminated the alienation operatedto the extent of the rights adjudged to the alienor by the decree.In fact, Voet (44, 6, 3) and Groenewegen (ad Cod. 3, 37) clearlylay it down that in the later Eoman-Dutch Law the res litigiosamight be freely sold, devised, or in any other recognized manneralienated pending action, with this qualification only, that ifjudgment was recovered against the alienor, it could be executedagainst the alienee without the necessity for a fresh action againsthim. And Voet (44, 6, 1) shows that the alienation was not ipso jurevoid, because, by requiring the exceptio litigiosi to be pleaded todefeat the alienee’s claim, the law recognized the existence of aneffectual transfer; and besides, if it were void, it could not gainvalidity in cases in which the alienor' came off victorious in theaction and thereby made it clear that the alienation had injured noone, such injury being the ratio of the prohibition. “ If there-fore ”, he continues, “ you seek to recover from the victoriousplaintiff the res litigiosa which you acquired pending the actionfrom the unsuccessful defendant, you will be repelled by theexceptio litigiosi, even though you may have purchased bond fide;
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but you could not be so repelled if you had bought pending the1902.
action indeed, but from a third person against whom the action 17 an*
was not directed
This being the Common Law, the Legislature enaoted Ordinance ^ENT)T*No. 21 of 1844, which dealt first with wills, and then (sections10-19) provided a procedure for the partition of lands owned incommon, comprising section 17, which was in almost exactly thesame words as section 17 of the Ordinance of 1863, which we nowhave under consideration, with the addition, at the end, of thewords “ and the party making the same shall be guilty of anoffence and punishable at the discretion of tlie District Court ”.
I have not been able to find any case decided under this provisionof the Ordinance of 1844. Sections 10-19 were repealed by Ordi-nance No. 11 of 1852, which enacted nothing in their place, andthe Common Law presumably again came into operation, as actionsfor partition were instituted and decided before the presentOrdinance was enacted in 1863 (see Duff v. Crosbie, 2 Lorens, 19;
Austin, 207). The present Ordinance is purely and simply aPartition Ordinance. Its object is declared to be “to provide forthe partition or sale of lands held in common and its provisionsmust be construed with reference to that object, due regard beingof course had to the language employed in the words of theenactment.
Section 17 is in the following terms: “ Whenever any legalproceedings shall have been instituted for obtaining a partition orsale of any property as aforesaid, it shall not be lawful for any ofthe owners to alienate or hypothecate his undivided share orinterest therein, unless and until the Court before which the samewere instituted shall, by its decree in the matter, have refusedto grant the application for such partition or sale, as the casemay be; and any such alienation or hypothecation shall be void
It will be seen at once that the prohibition binds all owners,whether parties to the partition proceedings or not, whetherhaving notice of those proceedings or not. Why should theact of a man who owns an undivided share of land,—or, itmay be, who owns the entirety of the land which a collusiveplaintiff and defendant without title are trying to partitionbetween them,—and who has no knowledge of the pendency ofthe action, be rendered absolutely void? It may be that, if theactual parties are denying his title, the prohibition is ancillary tosection 9 (which makes the final decree binding on the wholeworld) to make his dealing with the land nugatory. But theymay be practically admitting his title: they may each claim one-third and be unaware in whom the remaining one-third is vested.
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1902. In such a case, I suppose, if the Court is unable to discover theJviy 11 and present owner of the outstanding one-third; the plaintiff andOctober 16..will each be allotted a portion in severalty, and the
Wendt, J. remainder be reserved for the absent shareholder. When heappeared he could claim that portion; his title was never denied;yet, if he had in good faith sold or mortgaged it pending theaction, his act would be absolutely null and void, and his granteewould have no interest whatever. I cannot see that this wasnecessary for the carrying out of the purpose- which the Legislaturehad in view. It goes beyond the Common Law, which, as I haveshown, applied the prohibition to parties only.
The earliest decision of this Court on section 17, to which we-have been referred, is the case of Baban v. Amarasinha (18. C. C. 24). There a party to a partition action had, pending theaction, mortgaged his undivided share. In the final decree hewas allotted a portion of the land. This portion was purchasedin execution of a moneydecreebyplaintiff, whose titlewas-
disputed by a purchaser who had bought at a subsequent execu-tion sale under a decree obtained on the mortgage. The plaintiffimpeached the mortgage as void undersection 17, in whichcase
his earlier purchase mustprevail,butthis Court (Phear,C.J.,
and Dias, J.) held thatit wasnotvoid. Phear, C.J.,who
delivered the judgment of the Court, said: “ It seems to us clearthat the District Court has given these words too extensive anoperation. The sole purpose of this clause seems plainly to' be-to reserve full effect to the legal proceedings for partition, whenonce instituted, and to take care that it shall not be in the powerof: any party concerned to defeat them or embarrass the courseof them by transferring his share or any interest in the propertyto a stranger. As regards these proceedings—the maintenanceand progress of them—the alienation or hypothecation must betreated as void, but there seems no reason to be found, either mthe passage itself or to be drawn aliunde, why the dealing withthe share should be to any greater extent invalidated. The largerconstruction placed upon the clause by the District Court wouldhave the effect of enabling any claimant of a share in land to tieup all dealings with the land by the true owners thereof in themost mischievous way, by the simple expedient of institutingproceedings for the partition of it, and it is not reasonable tosuppose that the Legislature intended this without a purpose ”.
This decision was pronounced in 1878, and from my ownpractice since 1880 I am able to say that it has ever since beenregarded as law. It has been approved and followed in verynumerous cases, but though individual Judges have, as I shall
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presently mention, expressed dissent from the principle enun-1902.
•ciated, a contrary view has never been given effect to by a
judgment of this Ckmrt, and the decision has never been over-
ruled. As I said, it has been regarded as declaring the law, and Wbndt, J.thatlaw has, without a singleexception,beenadministered of
nearly a quarter of a century by this Court, and I think we ought,therefore, to make no change now, even if we were of opinionthatoriginally the constructioncontendedforby thelearned
Attorney-General ought to havebeen adopted.It is amatter
affecting titles to land, and titles to land should not readily beunsettled, especially in a country where litigation relating to landtitles is accountable for the great majority of cases in our Courts.
In the next case, Edo v. Markar, 2 8. G. C. 114 (1879), Phear, C.J.,whodelivered the judgment ofthe Courtcomposed ofhimself
and Stewart and Dias, J.J., again expressed the same opinion;and it was also approved in Ghmawardena v. De Livera (4 8. G. C.
■52) by. Cayley, C.J., and Clarence and Dias, J.J.
In Perera v. Perera (9 S. C. C. 105), decided in 1890, the question• arose in the partition proceeding itself, one of the defendantshaving donated her interest to certain other defendants. Thequestion with which we are now concerned, therefore, did notarise, but Burnside, C.J., expressed the first dissent from the viewenunciated by his predecessor Sir John Phear. He said: “ TheOrdinance is plain in its terms; there is no ambiguity at all inthem, and I do not recognize any canon of construction or anyauthority which would bind the plain words of a Statute byreference to what (it is assumed) was the purpose of theLegislature. The Ordinance says. ‘ it shall not be lawful for anyof the owners to alienate or hypothecate ’. It is a violation of theplain meaning of very plain words to say that the Legislaturemeant to say it shall be lawful to alienate or hypothecate undercertain circumstances. I have never heard it contended onauthority that the unambiguous language of a Statute might .bevaried by ai presumption as to what the Legislature meant ”.
In De Silva v. Carlina (9 S. G. G. 141) Clarence and Dias, J.J.,again approved of Baban v. Amarasinha, and they also held thatthe term “ owners ” in section 17 must be limited to owners whoare parties to the partition proceedings.
In D.C., Colombo, No. 7,717 (Koch, 10), again the point did notarise, but Bonser, C.J., took the view of the present questionexpressed by Burnside, C.J. He said: “ I find very great difficultyin acceding to the argument that when the Legislature says: itshall be unlawful for a man to do a certain thing, and that if hedoes that thing his act shall be void—that has only a limited
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1902. operation. There is no doubt that in many cases where the^October 16* slature has declared an act to be void, Courts have treated the
’ declaration as meant merely for the protection of certain parties,
Wendt, J. an(j ^eld the act not altogether void, but only voidable at theinstance of the party intended to be protected. But I am notaware of any case in which, where the Legislature has declaredthat the act shall be unlawful, such a construction has beenadopted. There is an old Case of Gye v. Felton (4 Taunton, 876)where Lord Mansfield held that a particular act having beendeclared not only void but unlawful could not be ground foraction
The case of Anund Loll Dose v. Jullodhur Shaw (14 Moore’sInd. Apps. 543), decided by the Privy Council in 1872, arose undersections 235 and 240 of the Indian Civil Procedure Code of 1850,which related to the execution of decrees, and were in theseterms :■ Section 235: ‘ ‘ Where the property shall consist of lands,houses, or other immovable properties, the attachment shall bemade by a written order prohibiting the defendant fromalienating the property by sale, gift, or in any other way, and allpersons from receiving the same by purchase, gift, or otherwise ”.Section 240': “ After any attachment shall have been made byactual seizure, or by written order as aforesaid, and in case of anattachment by written order, after it shall have been dulyintimated and made known in manner aforesaid, any private .alienation of the property attached, whether by sale, gift, orotherwise, and any payment of the debt, or debts, or dividends,or shares to the defendant during the continuance of the attach-ment, shall be null and void ”,
The Judicial Committee adopted the view of the Chief Justiceof Calcutta, that the object of the enactment was to make the salenull and void so far as it might be necessary to secure the executionof the decree, relating only to alienation which would affect thecreditor who obtained the attachment:” It could scarcely be held,
in fact it was scarcely maintained in argument, that a sale madeto a bona fide purchaser by the vendor could be set aside by thevendor himself; the words must, therefore, necessarily be readwith some limitation. It' appears to their Lordships that theirconstruction (must be limited in the manner indicated by theChief Justice, on the ground that they were intended for theprotection of the creditor who had obtained an execution, andnot for the protection of all persons who at any future time mightpossibly obtain executions ”.
I refrain, from further discussing the terms of section 17 orexpressing an opinion of my own as to its true construction. If, on
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the one hand, it be said that the words are dear, and that by makingalienations -pendente lite absolutely void the Legislature intended tomake the final decree (which section 9 declares to be binding onthe whole world) conclusive evidence of the state of the title at itsdate; it may, on the other hand, be fairly urged that the enactmentis one for the protection of the parties to the partition proceedings,and that, so long as they are not prejudiced by the progress of thoseproceedings being delayed, or the shares respectively allotted tothem reduced or altered, the alienation can be given effect to asbetween the alienor and alienee. As I have shown, the matter'does not come before us as res Integra. It has been regarded assettled law for twenty-four years, and the dissent occasionallyexpressed by individual Judges has only tended to emphasize this.That being so, we ought not to unsettle the titles which during thesemany years have been acquired' under that view of the law, evenif we felt that the contrary view ought, in the first instance, to havebeen accepted by this Court.
Had I arrived at the conclusion that section 17 must be construedin the sense contended for by the appellant, it would have beennecessary to consider whether an alienation by the Fiscal againstthe will of the owner was an alienation by the owner within themeaning of that section. It may, I think, be fairly argued thatsuch an alienation by the public authority of the Fiscal was not analienation by the execution-debtor. Section 16 expressly providesfor the sale by Fiscal of the undivided share of one of the owners,and I think that, if section 17 had been intended to includeexecution sales, the Legislature would have employed for thepurpose clearer, language than now appears in the section. Ifthe Fiscal’s sale was valid, the appellant must fail as purchaserfrom the execution-debtor, even though the execution-purchaser'sconveyance to the plaintiff be obnoxious to section 17. For in thatcase, although plaintiff would have no interest, his vendor Martheliswould be the owner, and not the appellant.
I think the appeal should be dismissed with costs.
By ante-nuptial settlement one Don Simon agreed with his wifeElizabeth that, in the event of his predeceasing her, his propertyshould be equally divided between his widow and their children.
Don Simon predeceased his wife, and his widow and children'became entitled each to a half share.
Under a Fiscal’s conveyance, 20th April, 1899, upon a writ ofexecution against the widow, Don Marthelis became the purchaser-of the widow’s half share, and entered into possession of it.
July 17 and!October 16.
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1902. On the 11th September, 1899, Don Marthelis sold this share toJuly 17 and the plaintiff by notarial deed.
0ek>bef 16‘ The intervening appellant in this action,, which is one forMxddlbtok, partition, shows that on the 20th April. 1899, there was pendingbefore the District Court of Colombo a partition action respectingthis property instituted on the 22nd October, 1897, and thatsubsequently an order was made striking out the property inquestion from the partition action on the 19th October, 1899, andthat afterwards, on the 8th January, 1901, the intervenientpurchased her half share from the widow Elizabeth.
The District Judge held that he was bound by the decision ofthe Supreme Court in the case reported in 1 S. 0. G. 24, and thatthe Fiscal’s sale to Marthelis and Martbelis’s sale to the plaintiffwere valid, and that plaintiff was entitled to the half share. Theintervenient appealed.
The question we have to deeide is what is the right constructionof section 17 of the Partition Ordinance of 1863. That section says:“ Whenever any legal proceedings shall have been instituted forobtaining • a partition or sale of any property as aforesaid, it shallnot be lawful for any of the owners to alienate or hypothecate hisundivided share or interest therein, unless and until the Courtbefore which the same were instituted shall, by its decree in thematter, have refused to grant the application for such partitionor sale, as the case may be; and any such alienation shall bevoid ”. If the words of that section are to have their naturalforce and meaning, they most distinctly declare that any suchsale as they mention shall be unlawful and void.
It is contended, however, on the authority of the case reported in1 8. C. C. 24, that their effect is only to invalidate a sale or incum-brance pending a partition, quoad the partition proceedings, and theresult of holding otherwise is pointed out to us as it appears fromthe judgment of Phear, C.J.
This result will be that any claimant of a share of land will beable to prevent all dealings with the land by the true owners bysimply instituting proceedings for partition of it.
I do not think the Legislature could have contemplated thisresult, which is a factor that has weighed heavily on my mind inconsidering the meaning of the very plain words of the section.
It is worthy of remark that the old Ordinance No. 21 of 1844 bysection 17 made any such alienation or hypothecation as that nowin question punishable as an offence by the District Court at itsdiscretion.
There can be no question, therefore, that under that section, onthe authority of Gye v. Felton (4 Taunton, 876), any alienation or
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hypothecation pending partition proceedings would have been 1902.absolutely void, and not voidable, as the penalty made it illegal.*a#oier
Now, our present section 17 provides no penalty, but says it shall
be unlawful, which is practically the same thing, but without the Mn>ptBTONrpunishment for illegality.
The object of the section was no doubt, as Phear, C.J., says, totake care “ that it shall not be in the power of any party concernedto defeat or embarrass the proceedings for partition, by transferringhis share or any interest in the property to a stranger ”.
This object also would be quite attuned by construing the sectionas Phear, C.J., did, but the words appear to me far wider, in factunnecessarily wide, for the attainment of the object in view. Inmy opinion the words of the section admit but of one meaning,and we are not at liberty to speculate on the intention of theLegislature, or to construe the Ordinance according to our notionsof what ought to have been enacted. Per curiam, in York &
N.Midland By. Go. v. R., 1E.&B. 864; 22 L. J., Q. B. 230.
With reluctance, therefore, I admit that the words of the sectionmust have their full force and effect, as contended for by the'Attomey-.General, and hold that these alienations, which certainlytook place while the property alienated was the subject of partitionproceedings, are null and void.
I am therefore of opinion that this appeal must be allowed withcosts. In view of the effect of this decision, as pointed out byPhear, C.J.. I take it that legislation will be initiated to modify theterms of section 17.
ANNAMALAI PILLAI v. PERERA