079-NLR-NLR-V-25-APPUHAMY-v.-BABUN-APPU’.pdf
( 370 )
1928.
Present: Ennis A.C.J. and Garvin A.J.APPUHAMY v, BABUN APPU.
240—D. C. Gatte, 19,893,
Partition—Alienation of a divided block after scheme of partition was
submitted and before final decree—Partition Ordinance9 s. 17,
Under the scheme of partition proposed after interlocutorydecree lot A was allotted to X. Before final decree X transferredlot A to S.
Held, that the transfer was void as being obnoxious to section 17of the Partition Ordinance.
HTHE facts are set out in the judgment of the District Judge.(A. P. Boone, Esq.):—
The following appear to be the facts. Though not admitted by thefirst defendant they are not denied by him.
The original owner of the land was Abdulla. He mortgaged hisinterests to Abdul Cader Hadji Ahamadu Lebbe Marikar on mortgagebond 5,1^6 of July 18,1912 (P 2). The share mortgaged was one-fourthplus one-twentieth.
Abdulla then started a partition suit, No. 11,503, D. C. Galle, makingthe mortgagee the third defendant, and an interlocutory decree wasentered on March 23,1914, giving Abdulla a share (one-fourth plus one-twenty-fourth plus one-two-hundred-and-fortieth) slightly less than thqshare claimed, but making it subject to the mortgage bond in questiod(vide P 1.)*
Final decree was entered on May 23, 1916, but in the final decree/there was no mention of this mortgage. Abdulla’s lot was A.
Then the mortgage bond was put in suit in A. C. R. 11,237, and a:mortgage decree was entered on June 4, 1919, and in accordance withthe mortgage decree the property was sold, and purchased by AbduRafee on 622/November 9, 1921, and registered shortly after. Thenon 1,979/January 3,1922 (P 3), which was duly registered. Abdul Rafeeleased the premises to the plaintiff. On that deed the plaintiff leasedone-twentieth plus one-fourth, but he was put in possession of thedivided lot A.
The final decree was amended at the instance of Abdul Rafee afternotice to the parties in the partition suit on August 15, 1922. Bythat amendment lot A was given to Abdul Rafee (vide P 4).
The first defendant also claims from Abdulla. After the institutionof the partition suit, but before final decree but after the interlocutorydecree, viz., on May 4, 1916, Abdulla conveyed this lot A to one Simonon .deed 10.033 (D 1). Simon sold to the first defendant on D 2 onApril 29, 1921.
As regards the effect of the interlocutory decree, Mr. Wiraratne saysthat Abdulla was bound by it and could not transfer a better title thanhe himself had; e.g., he could only convey the land subject to themortgage bond.
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As between him and hie mortgagee this ie so …. but I do
not think that would affect Simon, especially as the mortgage (P 2) wasnot registered.
As regards the sale of lot A on D 1 to Simon by Abdulla: At thetime of the sale Abdulla had only an undivided share, andit was not till after the final decree that Abdulla got lot A. Mr. C.de Vos argues from 20 N. L. R. SOI, that the subsequent title to Aacquired by Abdulla on the final decree would enure to Simon'sbenefit. This would be so, but in view of section 17 of the PartitionOrdinance, Simon’s title on D 1 appears to me not only “ void ” but“ not lawful.”
1923.
Appuhamy v.Bakun Appu
Consequently, in my opinion, first defendant, who claims throughSimon, has no title at all, and questions of prior registration do notarise.
Mr. C. de Vos also says that in any case the mortgage bond andsubsequent deeds of the plaintiff being for one-twentieth plus one-fourthof the land, and the land having been since divided, plaintiff can onlyclaim one-fourth plus one-twentieth of lot A, and relies 6n 15 N. L. R+321.
I think in the circumstances of the case, however, do not warrant thiscontention*
1 give judgment for plaintiff as prayed for, with costs, and damagesat Rs. 30 per annum as against the first defendant.
H. F. Perera, for defendant, appellant.
B. F. de Silva (with him P. C. Fonseka), for plaintiff, respondent.
November 13, 1923. Ennis A.C.J.—
This was an action for a declaration of title and for possessionof the land shown as lot A on the plan filed in the case. It appearsthat this land, when it formed part of a larger land, was held byone Abdulla as to a one-fourth and a one-twentieth share. Abdullamortgaged his interests in the larger land in July, 1912, to oneAbdul Cader. This mortgage was not registered, and AbdulCader, the mortgagee, was made the third defendant in that action.On March 23, 1914, interlocutory decree was entered, and Abdullawas given one-fourth plus a one-twenty-fourth plus one-two-hundred-one-fortieth, subject to the third defendant’s mortgage.On August 29, 1914, there was a survey, and a scheme of partitionwas proposed, under which lot A was allotted to Abdulla in respectof his claim. On May 23, 1916, final decree was passed in theaction declaring Abdulla entitled to lot A. It appears that priorto the final decree in the action, namely, on May 4, 1916, Abdullaexecuted a document (D 1) in favour of Simon> and this documentwas registered on- May 12, 1916. It purports to convey to Simonlot A. Simon in 1921 conveyed his interests under this assignmentto the defendant. Meanwhile, Abdul Cader put his bond in suitand obtained a decree on June 4, 1919. It was sold in executionon November 9, 1921, and purchased by one Abdul Bailee, who, in
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1923.
Enkis
A.C.J.
Babun Appu
January, 1922, executed a lease in favour of the plaintiff. Inexecuting that lease he referred to the land leased in terms of.Abdulla’s share of the bigger land prior to the partition. Thelearned Judge found in favour of the plaintiff, and the defendantappeals.
It was strenously urged on appeal that section 17 of the PartitionOrdinance did not apply in the circumstances of this case. It wassuggested that what Abdulla sold to Simon was not an undividedshare of the land but a divided whole, and that such a conveyancewould not fall within the terms of section 17. In my opinion thisargument is unsound, because until May 23, 1916, when the finaldecree in the partition case was entered, Abdulla was not. theowner of lot A but only of undivided shares of land—shares thealienation of which is prohibited and declared void by section 17.Quite apart from this, however, there is another point in the case—the partition decree is a judgment in in rem. It is good againstthe world, and declares to the world that Abdulla was the ownerof the land. The action, therefore, of Abdul Cader in puttingthe bond in suit and Abdul Raffee subsequently buying it will beinfluenced by the fact that the partition decree declared Abdullato be the owner on May 23, 1916, against Simon as well as therest of the world. We have been referred to the case of Svbaserisv. Porolis,1 in which an attempt was made to grant some sort ofequitable relief to a person who had purchased from a co-owner,during the pendency of a partition action, the share to which hewould be entitled on partition* The decision in that case wasinfluenced by the consideration that a party to a partition action“ should be able to deal by anticipation with whatever dividedinterests he may ultimately obtain.” With that considerationI am in entire accord. It is possible that a co-owner in land subjectto a partition suit may sell his interests in the land and agree toconvey whatever he may receive under the final decree. It ispossible that such an agreement would not be obnoxious to section17 of the Partition Ordinance. But it remains merely an agreementto convey, and would not operate as a conveyance or alienation.
In the circumstances, I am of opinion that the learned Judgewas right, and would dismiss the appeal, with costs.
Gabvin A.J.—I agree.
Appeal dismissed-
1 (1913) 1$ N. L. R. 393.