This is not a contest as to title. Tlie appellant is seeking tocompel the respondent to fulfil his part of the agreement by execut-ing a transfer of the title declared by the final decree. In myjudgment there is nothing in the Partition Ordinance which dis-entitles him to the relief he claims. The case is one of some diffi-culty, but ns I observed earlier the matter happily is not complicated
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by claims of persons who were strangers to the transaction recordedin deeds Nos. 27 and 28. The contesting parties now before uswere the parties to those deeds. The intention of the parties isquite clear, and so is the transaction into which they respectivelyintended to enter. To give effect to thig transaction, twocontemporaneous documents, Nos. 27 and 28, were executed.
. These deeds sufficiently disclose the agreement between theparties.
The respondent’s plea that the transaction is obnoxious to theprovisions of the Partition Ordinance fails.
For these reasons I would allow this appeal and concur in theorder proposed by my brother Dalton.
Dalton J.—
In this case, by deed PI dated February 6, 1923, the plaintiffpurchased from the defendant three lots of land with all the planta-tions and buildings thereon, parts of the land called AssalakandaAddera Deniya, for the sum of Rs. 8,000. The deed sets out thatthe vendor was entitled to the property sold by right of partitionin case No. 19,218, Guile.^
It appears, however, that whilst the lots were the subject of aninterlocutory decree at the date, of the sale to the plaintiff, andhad also been duly surveyed in accordance with the decree, thefinal decree, allotting the property to the defendant,’ was notentered until •September 23, 1923, some seven, months subsequentto the sale. By the deed, however, defendant undertook, at thecost of the vendee, to execute all further deeds “ as shall or maybe necessary for the better or more perfectly assuring the saidpremises or any part- thereof ” to the vendee as may reasonablybe required. On the same date the parties entered into a sub*sidiary agreement (exhibit P2) reciting PI and setting out that inview of the fact that PI was executed before the final decree in thepartition suit the vendor undertook not to do any act, matter,or thing at any time thereafter whereby the vendee should bedeprived of his title, interest, or claim under PI. It was also agreedthat the vendee should not be entitled to possession of the. premisesuntil after the entry of the final decree. Plaintiff now claimsthat defendant be ordered to execute a further deed of transfer ofthe property in question.
In his answer the defendant makes a vague and indefinite referenceto the pendency of the partition suit at the time the sole was enteredinto, and pleads that plaintiff had undertaken to pay the costsof the partition suit, and still owed a balance of Rs. 1,690 pf thepurchase price of the property.
Garvin J.
Dai/ton J.
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Issues were then framed, of which the first two were in thefollowing terms; —
Is the plaintiff entitled to a conveyance in terms of hisprayer?
(8) Did the deed of February 5, 1923, convey any rights tothe plaintiff?
This latter issue the learned Judge answered in the negative,holding that the document PI was void and illegal; he thereupondismissed the plaintiff’s claim with costs. From that order plain-tiff appeals.
The District Judge bases his. decision upon the provisions ofsection 17 of the Partition Ordinance, 1863, in his conclusion thatthd dped PI is not only void but illegal. He holds that section17 applies to the transaction on the ground that the propertymentioned in the deed could not be considered as conveying any-thing except an undivided interest until partition proceedings had^terminated.
The first ground of appeal argued is that the instrument PIdoes not come within the provisions of section 17 of the PartitionOrdinance. That section is in the following terms: —
“ 17. Whenever any legal proceedings shall have been institutedfor obtaining a partition or sale of any property as afore-said, it shall not be lawful for any of the owners to alienateor hypothecate his undivided share or interest thereinunless and until the Court before which the same wereinstituted shall, by its decree in the matter, have refusedto grant the application for such partition or sale, asthe case piny be; and any such alienation or hypotheca-tion shall be void.”
There is not the least doubt as to what the parties intended todo when the documents PI and P2 were executed. They wereboth aware of the partition proceedings aud rliat defendant had anundivided interest in the. land being partitioned; they were bothaware that he had been alloted by the preliminary decree thespecific land mentioned in PI which had been duly surveyed.Defendant purported to sell and convey that specific property toplaintiff for the consideration set out, but possession was not-to begiven until the final decree was passed. Both were aware of thenecessity of that decree to complete the transaction, and defendantundertook to do nothing until that decree was passed to depriveplaintiff of Ins claim under PI. There is not the least doubt as towhat both parties intended, and there is not the least doubt thatneither intended to deal with any undivided interest in the land.
It is argued, however, that because defendant had nothing buton undivided interest in the land at the time of the execution ofPi, therefore all that passed to plaintiff by that deed was that
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undivided interest, and as such a transaction is repugnant to theprovisions of section 17 the whole transaction is void under thatsection.
This section of the Ordinance appears to have given the Courtconsiderable trouble in the past, and there are several varyingdecisions as to its meaning and application. The case of Appuhamyi). Babuu Appu (supra) is the latest decision of this Court on thiamatter, and it is relied upon by the respondent. An examination ofthat case, however, shows that it differs materially on the facts,whilst the decision is not based upon any interpretation of theprovisions of section 17.-
The facts there are as follows: One Abdulla had a $ and 1/20undivided interest in the laud, and on July 8, 1912, mortgagedhis interests to one Abdul Cader. ■ Ho thereafter started partitionproceedings, interlocutory decree in which was dated March 23,
014. Abdulla's specific share was called lot*A., and it was declaredro be subject to the mortgage'. Final, decree issued on May 23,1916. On May 4, 1916, Abdulla, however, conveyed lot A to oneSimon, Simon silling the lot to the defendant in the action onApril 29, 1921. Meanwhile Abdul Cader put the mortgage bondin suit and obtained a decree thereon on .June 4, 1919. Lot Awas sold under the decree and purchased by Abdul Rafee onNovember 9, 3921. Abdul Bafee then, by duly registered lease,let the premises to plaintiff. Plaintiff sued for declaration oftitle and for possession of lot- A as against the defendant.
The learned Judge (Ennis A.C.J.) in the course’ of his judg-ment points out that it was argued for the defendant-appellantthat section 17 of the Partition Ordinance had no application,for what Abdulla sold to Simon was a specific whole and not anundivided share. The learned Judge was of opinion that theargument was unsound, because Abdulla only had an undividedinterest in the land until the date of the final decree. He pointsout, however, that it is possible a co-owner in land subject to apartition suit may sell his interest in the land and agree to conveywhatever lie may receive under the final decree, adding that suchan agreement would possibly not be obnoxious to section 17, notoperating as a conveyance or alienation. He, however, does notdecide the case on this point, holding that the partition decreeunder section 9 declares to the world that Abdulla was the ownerof the land. That was notice also to Simon. The mortgageproceedings thereafter by Abdul Cader were taken on that footing,and also the subsequent proceedings and registration to which1 have referred. The plaintiff was therefore held entitled tosucceed.
It will be seen, therefore, that there is no definite finding that thetransaction of May 4, 1916, is repugnant to the provisions of section37. On the other hand, Ennis A.C.J. in referring to Subaseris v.
Dai/ton J.
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Dai/tok J.
Prolis,' which is relied upon by the appellant, points out that thedecision in that cage was influenced by the consideration that aparty to partition action “ should be able to deal by anticipationwith whatever divided interest he may ultimately obtain and headds that he is in entire accord with that consideration* In thatlatter case also AVood Renton C.J. points out that—
It must be remembered that section 17 of the Partition Ordi-nance imposes a fetter on the free alienation of property,and the Courts ought to see that that fetter is not mademore comprehensive than the language and the intentionof the section require. The section itself prohibits onlyin terms the alienation of undivided shares or interestsin property which is the subject of partition proceedingswhile these proceedings are still pending, and the clearobject of the enactment was to prevent the trial of parti-tion actions from being delayed by the intervention offresh parties whose interests had been created since theproceedings began."/
We have been referred also to Loin* Appuhamy c. Punchi Baba(supra) where it was held that- a sale or mortgage executed during thependency of a partition guit in respect of a share or interest to whicha person may become entitled after the termination of such suitis valid and is not affected by section 17 of the Partition Ordinance.Lnyard C.J. says: —
'* The. respondent's Counsel lias invited my attention to section17. and has very fairly pointed out to the Court that thesales of properties to which that section is obnoxiousare sales of undivided shares or interests in land thesubject of a partition action. I do not thiuk that sectionwas intended to embrace or affect or to hinder dr preventpersons from alienating or mortgaging the right to whichthey might become entitled after a partition had beendecreed in respect of the land. Such a sale or mortgageexecuted during the pendency of a partition suit in respectof a share or interest to which a person may becomeentitled after the partition suit has terminated appearsto me not affected by section 17."
I am unable to agree, therefore, after reference to the definiteterms of the section itself and consideration of these cases, thatthe deed PI is repugnant to the provisions of section 17. It iscertainly a dealing by anticipation with divided interests to beultimately obtained, by the vendor, with an undertaking to moreperfectly assure the property to the vendee, but I am unable toagree that it is an alienation of an undivided interest, within the
» {J91-1) Hi A*. I.. 7i m.
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meaning of the section! neither can I see that in any way it avoidsthe clear object of the enactment as set out by Wood Kenton C.J.above.
It has, however, been further argued by Mi Drieberg that theplaintiff has lost any right or claim to title he may have had owingto the operation of section 9 of the Ordinance. That sectionenacts that—
" The decree for partition or sale given as hereinbefore providedshall he good and conclusive against all persons whomso-ever, whatever right or title they have or claim to have inthat Said property, although all persons concerned arenot named in any of the said proceedings, nor the titleof the owners nor of any of them truly set forth, and shallhe good and sufficient evidence of such partition andsale and of the titles of the parties to such shares or interestsas have been thereby awarded in severalty …
The effect of the final decree is, it is argued, to wipe out anyright- or title or claim to title the plaintiff may have in the property,and therefore he has no right existing at the time title to thespecific shares vests in the defendant. As a result nothing canaccrue to him on that event, since he has nothings to be confirmed.
This argument, however, is not in my opinion sound, in so far asit seeks to restrict the meaning of the word “ confirmatio fJ asused by Yoefc. for it is admitted that even where the vendor hasno title at all, and so conveys nothing to the vendee, yet on theformer subsequently acquiring title, that title goes to confirmthe title of the vendor as from the date the vendor acquired histitle.
On the other hand, it cannot be doubted what the parties hadin mind would happen, so far as they were concerned under theiragreement-, when the final decree issued. They were awaiting it,not to wipe out any claim the plaintiff might have under the con-tract, but to complete and perfect it. I can find nothing in section9 to debar such an arrangement being made. It must be remem-bered hen-* we are dealing with the actual contracting parties, tofine of whom, the decree under section 9 was issued. It has been■suggested by .Air. Hayley that the latter, so soon as die decreeissued, was a constructive trustee for the plaintiff in respect of•the property decreed to him. Mr. Drieberg, however, whilst admit-ting that it- has been held that equitable rights are not extinguishedby a decree of partition under section 9 (Marikar v. Martkar *),argues that this is a case, not of equitable rights arising, but oflegal rights, based upon contract. It does not seem to me to benecessary to consider Mr. Hay ley's argument on this point, forwhatever the effect of section 9, there is no doubt whatsoever
Dalton J.
i U920) 22 A L. jR. 137.
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that defendant undertook, upon final decree for partition beingobtained by him, to do what plaintiff now asks him to do in thisaction. The obtaining of a final decree in the partition proceed-ings by defendant for the property sold was a condition precedentto the terms of the contract being carried out. I am unable tosee that the provisions of section 9 are prejudicial to plaintiff’sclaim.
What rights then has the plaintiff under the deed and subsidiaryagreement? The property is sold by the defendant, the planof the surveyor and the interlocutory decree being referred to inthe deed. The defendant also undertook to do all that may benecessary for the better or more perfectly assuring the plaintiffas vendee in his purchase. In due course the final decree issuesto the defendant. It is argued that all rights obtained by thedefendant under that decree go automatically to the benefit of theplaintiff. On the authorities cited if defendant had no title at allat the time lie purported to sell land to tlic plaintiff, but subsequent-ly acquired a title thereto, the vendee could rely on that subsequent-ly acquired title, not only against the defendant, but against anyoneclaiming under him. Two recent decisions in the Privy Council(RajapaksF v. Fernando (supra) and Gunatillelte v. Fernando *) havebeen referred to in support of this argument, in addition to Englishauthorities. In Rajapalcse v. Fernando (supra) Lord Moulton in thecourse of his judgment says : —
“ Their Lordships are of opinion that by the Roman-Dutchlaw as existing in Ceylon the English doctrine appliesthat where a grantor has purported to grant an interestin land which he did not at the time possess but subse-quently acquires, the benefit of his subsequent acquisitiongoes automatically to the benefit of the earlier grantee,or, as it is usually expressed, ‘ feeds the estoppel.’
Dalton J,
In Gunatillcke v. Fernando (supra), however, Lord Vhillimore, whodelivered the judgment of the Board, in discussing Rajapakse v.Fernando (supra) states: —
“ It appears, however, to their Lordships that, though there is aconsiderable analogy between the doctrine of English lawas to conveyance by estoppel as this Board thought in thecase of Rajapakse v. Fernando (supra), the doctrine of theRoman-Dutch law which prevails in Ceylon is not identicalwith that of the English law …. Their Lord-ships, therefore, while not neglecting the benefits affordedby English decisions, have considered that their attentionmust principally be directed to the Roman-Dutch law asgoverning this case.”
> 22 (1921) X. /.. X. 3S5 ; (1921) 2. A. G. 357.
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Thereafter he continues: –
" This law* admitted what was called the exceptio rei venditae Daltok
eh traditac. Under this exception the purchaser who had Hewawasan
got possession from a vendor who at the time had no Cnnia^ekere
title could rely upon a title subsequently acquired by
the vendor, not only against the vendor, but against any
one claiming under the vendor; and although delivery
was, as the title shows, a part of the defence, if the purchaser
had acquired possession without force or fraud he could
use the exception, though he never received actual
delivery from the vendor … * . The principle
does not rest upon estoppel by recital and is broader in
its effect than the English rule.*'
This is set out by Yoct (Bl XXI. t. J1I. is. 1) as follows, inBerwick's Translation:—
“ Since on the confirmation of the right of an alienator (whichhad been defective at the time, of the alienation) theoriginally invalid right of his alienee also becomes confirmedfrom the very moment that the first vendor acquired theownership; and therefore the ownership from that timeannexed to the- original purchaser could not be takenaway from him without his own act or consent; hencelie has the right of suing his vendor or a third partypossessor on account of the loss of his possession, and ofdefeating his opponent’s plea by the replication of acquiredownership/'
The evidence shows, however, that the plaintiff was never inpossession of the lots of land he purchased, the defendant beingin possession up to the time these proceedings were taken. Thereferences in the authorities io delivery and possession have beenfully dealt with by Bertram C.J. in Gunatilleke v. Fernando {supra),and the Privy Council agreed that liis view therein was correct.
Truditio " he states, “ whether actual or symbolic is no longernecessary for the consummation of a sale of immovable property,and has been replaced by the delivery of the deed …. Thesame protection, therefore, which the Bomau law gave to a personwho had completed his title by possession our own law will giveto a person who has completed' his title by securing the deliveryof a deed/'
The questions of possession ami registration of the deed were notdealt with in the arguments addressed to us, but it seems to methat they have necessarily to be considered, having regard to
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the law applicable here. In both cases decided in the Privy Councilto which I have referred, the deed in question had been registered.Tn Gunatilleke v. Fernando (supra) Lord Phillimore states: —
“ The deed of 1893 was attested by witnesses and a notaryso as to satisfy the conditions required by the CeylonOrdinance for effectual transfer of lands, and it wasregistered asanother CeylonOrdinance directs. In
RajapaUse v. Fernando (supra) their Lordships laid stressupon the fact that the conveyance upon which reliance wasplaced had been duly registered, though it should beadded that in that case the successful party was inpossession/*
In Rajapakne v. Fernando (supra) Lord Moulton states: —
"It is possible that the existence of a compulsory scheme of'registration might-, under certain circumstances, bringabout modifications of the application of that doctrine to-land in Ceylon, but in the present case no such difficultiesarise because the earlier conveyance . was duly registeredand was the 011I3- deed relating to the lands in question,which was registered or even existing at the time/’
The doctrine to which he refers here is the English doctrine to^which I have already referred, and which the Board in that case-found to exist in the law in Ceylon. In the present case also no-difficulties arise on that point, for the deed PI, which was dulydelivered and registered, was the only deed relating to landsin existence at the time. The deed was registered on February 12,1923, and there are no subsequent deeds to be considered here.The final decree of partition doubtless was registered, but that-could not affect the position, as I have already stated, as betweenthe plaintiff and the defendant. The registration of that decreeas required by law must have been in the contemplation of both,parties at the time they entered into their agreement in orderto complete the defendant’s defective title. " It could scarcely beheld, in fact h was scarcely maintained in argument, that a sale-made to a bona fide purchaser by the vendor could be set asideby the vendor himself " was an opinion expressed by the PrivyCouncil in Auvnd Loll 1)ohs v. Jullodh-ur Shaw 1 and applies mostappropriately here.
I would therefore allow the appeal, with costs; answering the firsttwo issues in favour of the plaintiff, and setting aside the orderof the trial -Judge.
The case must therefore go back for further adjudicationand determination on the remaining issues which require to be-answered.
i-i Moore's Indian Appeals 550.
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Jayewardene A.J.—
This appeal is concerned with the effect of a deed of transfer,executed after interlocutory but before final decree of partition,of certain specific lots of lands proposed to be alloted to the vendorin the final decree.
Jaybwab-DEtTE A.J.
By deed No. 27 of February 6, 1928 (PI), the defendant soldand transferred to the plaintiffs lots 2, 2a, and 2b, of the land Assaln-kanda Adders Deniya appearing in plan filed m partition actionNo. 19,218, D. C. Galle, which he claimed to be entitled to byright of the partition decree in that case. The- vendor (the defend-ant) was not entitled to the lots in question under the decree, foruo final decree had then been entered. He had been declaredentitled to certain undivided shares in the interlocutory decree,and the Commissioner appointed under section 5 of the PartitionOrdinance had suggested a scheme by which, those lots were to beallotted to the defendant in the final decree of partition, and thelots were indicated in a plan which had at the time been filed inthe case.Byhis deed PI the defendant undertook towarrant
and defendthetitle conveyed, and to “at all timeshereafter at the
costs of the said vendee or his aforevvritten do and execute or causeto be doneorexecuted all further and other acts,deeds,matters,
and thingsasshall or mav be necessary for thebetteror more
perfectly assuring the said premises or any part thereof unto himor his aforewritten as by him, them, or any of them shall or maybe reasonably required," a clause for further assurance. At thesame time the parties entered into a deed of agreement P2 whichshows that the plaintiff knew that final decree had not been entered,and in which it was stipulated inter alia that the vendor shoulddo nothing to defeat the purchaser’s title under PI, that thepurchaser should take possession after entry of final decree, thatthe costs of the partition action and any condensation awardedshould he paid by the purchaser, and that if the vendor does anyact to invalidate the rights conveyed,in Pi he should pay thepurchaser the full value of the premises sold. There was, however,no agreement for a fresh conveyance after final decree. Finaldecree was entered in September, 1928, and by it the defendantwas allotted-the lots he had sold and conveyed to the plaintiffThe plaintiff brings the present action asking for a further deedconveying these lots to him, basing his claim on the clause forfurther assurance contained in Pi. In his answer the defendantpleaded that the plaintiff was not entitled to' a conveyance, as hehad failed to carry out his part of the agreement P2 and as therewas a failure of consideration. At the trial, however, it was con-tended that PI was invalid in law under section 17 of the PartitionOrdinance, and that therefore the plaintiff was not entitled to the28/7
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Jayewar-DBNTB A. J.
relief lie claimed. This contention was upheld by the learnedDistrict Judge, who dismissed plaintiff's action. The question weare called upon to decide is whether this decision is right.
The first question to be considered is the effect ot Vl^_ Doesit convey to the purchaser the divided lots the vendor purported*to convey, or the actual rights the vendor was entitled to at thedate of the conveyance? Theland of whichtheselots formed
part was an undivided land and was the subject of a partitionaction. Under our law, when things are the common propertyof several co-owners one of them cannot sell or transfer by deliveryto the purchaser more than his* own share {Voet XVlII.t 1, 14).But when a co-owner has conveyed a divided block of a land whichis found to be undivided, the Courts have endeavoured to give the*transfer some effect, and the grantee has been held entitled tc*such lesserestate or interestsas the grantorcouldconvey. The
effect of aconveyance of thiskind has beenmuchcanvassed in
the UnitedStates of America,and a questionhas been raised as
to whether it is not actually void; and Freeman in his book onCo-tenancy and Partition (page 273) says: —
*( Such a conveyance is undoubtedly void so far as it undertakesto impair any of the rights of the other co-tenants. Itwill not justify the. grantee in taking exclusive possessionof the part described in his deed. It will not deprivetin: other co-tenants of the right to enjoy every part andparcel of the real estate; nor can it, to any extent, prejudiceor vary their right to a partition of the common property.The grantee is liable to lose all his interest in the parcelconveyed to him, by its being set off to some other ofthe co-tenants upon partition. But although the deeddoes not impair ~the rights of the other co-tenants, it byno means follows that they mav treat it as vo’d or entirelydisregard it. While falling short of what it professesto be, it nevertheless operates on the interest of thegrantor, by transferring it to the grantee. The latteracquires rights which the co-tenants ought to be boundto respect. They ought not to be permitted to ignorehis conveyance, and treat him as one having no interestin the property.*'
Then after discussing the conflicting views prevailing in thedifferent states he concludes as follows (page 279): —
“ We are not sure that the difference in the decisions of manyof the Courts upon this subject has no! been more in form,of expression than in matters of substance. If, however,there remain any States wherein the Courts really intend'to assert that conveyance by one co-tenant- of part ofthe common property is void, in any other sense than:
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that such conveyance will not operate to diminish orimpair the rights of the non-assenting co-tenants, suchCourts are falling into the minority, as the more recentdecisions tend strongly and surely toward the recognitionof such conveyance as a valid transfer of all the grantor’sinterest in the property therein described, entitling thegrantee to certain rights that the co-tenants of the grantorcannot wantonly disregard.”
As regards its effect as between the parties to the deed, he says(page 282):—"
“ But when, upon partition, or by conveyance from his co-tenants,or through any other means the grantor acquires anestate iu severalty in the premises so conveyed by him,tliis subsequently acquired estate vests in his granteeby operation of the previous conveyance. In this pro-position all the authorities treating upon this subjectseem to concur.”
Of course, in America there are no provisions of the law corres-ponding to sections 9 and 17 of our Partition Ordinance, and thereis no doubt that in cases which do not come within the operationof the Partition Ordinance the same rule would apply locally. Inlocal cases the view favoured by the learned author has been accepted.Thus, iu Per era v. Alvis (supra), where two of the co-ownersof a land which was the subject of a partition action had mortgagedthe eutirety and it was contended the mortgage was not obnoxiousro section .17, the Court held that it was as in effect a mortgage ofthe undivided shares of the two co-owners. Enn;s J. said:In.
my opinion there is no substance iu the. objection that as the mort-gage purported to deal with the entirety of the land it does notfall within the provisions of section 17; it did in fact deal withundivided shares.” And Be Sampayo >). said: “ Nor is the conten-tion tenable that section 17 does not apply, because as a matter offact the mortgagors purported to mortgage the entire land. Theplaintiff himself admits that in reality the mortgage was only ofan undivided half of the land.” Again in Appuhamy v. BabunAppu (supra), where this Court had to construe a deed similar to PI,Ennis A.C.J. said: “ It was strenuously urged on appeal thatsection 17 of the Partition Ordinance did not apply in the circum-stances of this case. It was suggested that what Abdulla sold toSimon Was not an undivided share of the land but a divided whole,and that such a conveyance would not fall within the terms ofsection 17. In my opinion ibis argument is unsound, becauseuntil May 23, 1916, when the final decree in the partition case wasentered, Abdulla was not the owner of lot A but only of undividedshares of land—shares the alienation of which is prohibited and
Javbwar-DENE A.J.
( M )
Jayewai:-DENE A.*T.
declared void by section 17." Ho in the present case PI mustbe construed as conveying to the plaintiff, it nt all, only suchundivided interests ns‘the defendant- had in the land. The deedmust, therefore, be regarded ns a deed dealing with the undividedshares belonging to the defendant. If so, is it obnoxious to section17? It may, I think, be taken as an axiom of our law of partitionthat all alienations or hypothecations between the institution ofan action for partition and entry of final decree or the sale andconveyance of the subject-matter of the action in cases when a saleis decreed are absolutely void, that is, void for all purposes and notquoad the partition suit only. Learned Counsel for the appellantattempted to controvert this point, but I think it too hrmlv estab-lished to be shaken. It lias been acted upon in numerous casesto be found in our Report, and formed the basis of the decisionof the Full Bench of five Judges in Pieris v. Picris,1 sub. now.:Khan JJhui n. Pererar The alienation sought to be effected byPi offends . against section 17 and is therefore void. Notwith-standing this effect- of section 17 on PI, various arguments havebeen addressed to us to justify the plaintiff’s claim in view of thefact that the final decree allpts to the defendant the very lots hehad convoyed by PI, and as it contains an agreement for furtherassurance. It is pointed out that what section 17 -makes void isany alienation or hypothecation, and not the deed creating them.That is no doubt true. But under our law an alienation or hypotheca-tion of immovable property 'can only be effected by deed, and thesection declares that it shall not be lawful for any of the ownersto alienate or hypothecate his undivided share or interest- therein,that is. to alienate or hypothecate by deed. The distinction soughtto be drawn is useful in cases when a deed contains several parts,and the different parts can be severed. In such a case, where theillegality created by Statute affects some only of the parts, thoseparts can be rejected and the rest retained. Thus in the localcase of Sidambtrram Ohetty v. Jayaicurtlenc 3 it was held that wherea land was mortgagedduring the pendencyofpartition suit
the hypothecation was void, but not the instrument which con-tained it, and that the debtor was liable on the personal covenantcontained in the bond,the hypothecationbeingseverable from
the rest of the instrument. But can it be said that a covenantfor further assurance can be severed from the operative part of adeed of sale? Such a covenant forms an integral part of the deedand is included among the ordinary covenants for title. Underthe English Conveyancing and Law of Property Act, 1881,1 a coven-ant for further assurance and other covenants for title are impliedin every conveyance bya beneficial ownerforvaluable consider-ation. Hahhimj'x Lawsof England, Vol.27,p.426. By the
1 (1925) 0 Law Ret:. Rep. I.1 (1905) 4 Tamb. So.
a (t925) 20 K. Tj. R. 204.4 44 <0 45 Vic. c. 41. -v. T.
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covenant in question the vendor undertakes “to do and executenil further and other acts, deeds, Ac., for the better and moreperfectly assuring the said premises/* that is, the property sold;ind granted. If the sale or alienation is void. I cannot see theuse of better and more perfectly assuring the premises attemptedto be conveyed. I would bold that the covenant for further assur-ance is merely ancillary to the principal contract which is void,and that the adjunct must go with the principal agreement. Hals-bury’s Lairs of Rmjland, Yol. 27. p. 13; Brett v. East India &London Shipping Co.t 'Ltd.1
But the appellant contends that the defendant is estopped fromdenying the validity of the title conveyed to him, and that thetitle subsequently acquired by the defendant under the final decreeenures to his benefit (I oe-t XI. 3: GunatiUeke v. Fernando {supra) ),and that in the events that have happened he is entitled to callfor another conveyance under the clause for further assurance.But, in my opinion, the plaintiff is unable to invoke the aid of theRoman-Dutch law rule created by the exceptio rei venditae eitraditac, which is similar to the English doctrine of estoppel byconveyance, as the deed in his favour is void in law. A partyrelying on the exceptio must prove two tilings: first, the existenceof a deed in his favour, and second, the subsequent acquisitionby the vendor of the interest conveyed, if cither of these be notproved, the case of the party pleading it must fail. The deedmust be a ” valid ** one. which can become effective when title issubsequently acquired. Here, in my opinion, there is no suchdeed if PI is void. The doctrine of the Roman-Dutch law onthis point was discussed and explained by the Privy Council inGunatiUeke r.Fernando (supra). There the main point that
arose for decision was as to whether an alienation by a remainder-,man of his contingent interest became effective on his subsequentlysucceeding to the title. This was answered in the affirmative.The deed in question was executed in the year 1895. Their Lord-ships* judgment, which was delivered by Lord Phillimore, pointedout the difference between the English law and the Roman-Dutchlaw on the subject', the latter being broader in its effect than theEnglish rule. Their Lordships thought that the requirements ofsale and actual or symbolic delivery of the projierty were satisfiedunder the present law by the delivery of a deed of sale accompanied,followed, or evidenced by aers which may be deemed equivalentto the Roman iraditio. This they found present in the casebefore them. The recitals mav be incorrect, and the vendor mavor may not have had any right, title, or interest in the property,“ Supposing they had none,’’ said Lord Phillimoie, “ under theRoman-Dutch law their subsequent acquisition would makethis transfer effective.’* Then, referring to the transfer His
1 (Wi4) 2 Hem. d M. 104.
Jayewab-DENE A.J.
‘ Chtnasekere
( 83 )
1926b Lordship said:*1'4 But as to the alienability of a contingent interest,
Jaybwau ^here appears to be a dearth of authority. None has been brought
dene A..T. to their Lordships' notice. No doubt the spes which such a
„remainder-man can alienate is a very shadowy one. for if he pre-
Hewawasun,,,*'., T. . r, r. 1
v. deceases the fiduciary his heirs take nothing (reram; Laws of Ley Lon,
OwnasttUm ]£$ p. 467), and1 therefore the alienee could take nothing. But‘here is, at any rate, no inclination- either that such, an alienationin prohibited by the policy of the law or that an instrument, purport-ing to alienate is so null and void that it cannot be looked at forany purposeTheir Lordships came to the conclusion that theplaintiff could avail herself of the title which she got under thedeed of 1895. This became possible only because the deed inquestion was not void. The rule of the Bomnn-Dutch lawtherefore depends on the validity of the deed executed when thevendor had no title or only a defective title.. It is the same underthe English law, where, if there is no valid deed creating an estoppel,there is nothing that can be fed by the subsequently acquired interest(Spencer Bower, on The Law of Estoppel by Representation 234).
In cases of this kind the execution of a second deed is reallyunnecessary, as the benefit of the subsequent acquisition goesautomatically to the grantee. The doctrine of the Boman-Dutchlaw cannot, therefore, help the plaintiff, as there was no deedwhich could become effective on the defendant, acquiring titleunder the partion decree.
Then it is argued that Pi should be treated as au agreementto convey. 1L is clearly not an agreement to convey in the future,but a completed transaction intended to pass an immediate interestin the property, although possession was postponed until entryof final decree by the agreement P2. The operative words usedin PI:' 44 grant, bargain, sell, assign, transfer, set over, andassure,” are words appropriate to a conveyance transferringproperty. Clearer and stronger words to effect an immediatetransfer and out-and-out sale cannot be conceived of. The partiesare described as “ vendor ” and “ vendee. ” and in the covenantthe premises are described as the premises 41 hereby sold andassigned," and the -vendor undertakes to warrant and defendand to further assure the premises sold.
Does P2 reduce this deed of conveyance (PI) to a mereagreement to convey? P2 recites the fact that the grantee, ihepresent plaintiff, has purchased the property in PL and proceedsto give the terms of the agreement: —
The first is that as PI was executed before final decree, that thegrantor should do nothing to deprive the grantee of histitle, interest, and claim under Pi;
Second, that PI should be of full force aiid valid at law, and thatthe grantee should be entitled to enjoy and possess thepremises conveyed after final decree:
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Third, that the grantee should pay the costs payable by thegrantor in the partition action and any compensation inexcess of what the Commission had paid;
Fourth, creates a servitude over two of tlie lots conveyed infavour of the grantor;
fifth, that if the grantor does any act, &c., to deprive the granteeof the right, title, and interest conveyed, the grantorshould pay the full value of the premises; and
Lastly, that if either of the parties fail or refuse to carry outthe terms of the agreement he should pay to the otherRs. 250 as liquidated damages.
The terms I have set out above indicate that she parties recognizedthat Pi was a valid conveyance, and had transferred to the pur-chaser the vendor’s right, title, and interest in the property dealtwith in PI. That view pervades the whole of P2, and, it seemsto me, formed the basis of the agreement. Further, if the plaintiffhad any doubt as to the validity of PI, he would not have failedto stipulate for a further conveyance after final decree. The absenceof such a stipulation, especially where the first and fifth termshave been inserted, appear to conclude the matter. LearnedCounsel for the appellaut did not put his contention in that form.His contention was that although PI was au out-and-out sale,if it was void as an alienation under section 17, he was entitled toask the Court to treat it as an agreement to convey on the authorityof the case of Parker v. Taste ell.' In that case the parties hadsigned a document which created a lease, but it was void at lawas a lease under S & 9 Vie. c. 106, s. 3, because it was not bydeed. But the Court (Lord Chelmsford L.O.) held that the Statutein question did not prevent an instrument which was void as alease from being used as an agreement, and directed specificperformance. In the course of his judgment the Lord Chancellorsaid: ‘ ‘ Assuming, however, that it had been signed in the nameof the lessor, and would, therefore, have amounted to a lease, ascontaining words of present demise, yet there is nothing in theAct to prevent its being used as an agreement, though void as alease because not under seal.
The Legislature appears to have been very cautious and guardediu language, for it uses the expression “ shall be void at- law,” thatis. as a lease. If the Legislature had intended to deprive such adocument of all efficacy, it would have said that the instrumentshould be ‘‘ void to all intents and purposes.” There are no suchwords in the Act-. I think it would be too strong to say that becauseit is void at law as a lease, it cannot be used as an agreement enforce-able iu equity, the intention of the parties having been that thereshould be a lease, and the aid of equity being only invoked to carry;
1 {1855) 27 L. J. Oh. 812 : 44 K. ft. 1106.
Jattbwah-DHNE AJ,
Jayewar-DENE A. J.
( 54 )
that intention into effect.” This case has been followed, but inZimbler v. Abrahams,1 where the Court felt bound by it, VaughanWilliams L.J. remarked: “It is not material to state whetherI approve of those decisions or not, though I must say that I feelstrongly that the result of Lord Chelmsford’s decision is to neutral-ize the effect of the Statute, S <t 9 Vic. c. 106. As the learnedJudge points out in the earlier case, the language used by the Legis-lature in section 3 of 8 <C 9 Vic. c. 106 is very guarded, anddoes not deprive the document of all efficacy, and this enabled theCourt to treat a lease as an agreement to lease. But on the other^hand this Court has held (see Avnamali Pillai v. Perera 2) that analienation void under section 17 is “ void to all intents andpurposes.” That being so, it becomes impossible to construe PIas an agreement to convey, even if ihat were possible under out-law, which I very much doubt.
If alienations and hypothecations pending partition proceedingsare to be treated as agreements to alienate or hypothecate, section17 would become practically a dead letter. Further, such a conten-tion, so far as I am aware, has never been entertained—if is wasever submitted—by our Courts, although numerous deeds whichhave become ihoperative by virtue of section 17 might have beensaved if that contention was sound. If it is sound, the effect ofsection 9 of the Partition Ordinance would have to be considered:whether the deed creates a right or title which the grantee hasor claims in the property, and which is destroyed by that section.In view of what I have said above it becomes unnecessary to expressan opinion on the point.
Lastly, it was argued that if the deed of sale (PI) is void thevendor, the defendant, became a trustee for the purchaser, theplaintiff, of the interests sold, aud as a trust is not in any wayaffected by a final decree (Marilarv. Marikar (supra) ), the plaintiff isentitled to the conveyance he asks for. In support of this argumentlearned Counsel cited the case of Rose v. Watson." In Rose v.Watson (supra) there was a contract .for sale, then a mortgage withnotice, and then the purchaser refused to complete the purchaseowing to the misrepresentation of the vendor, and the House ofLords held that the purchaser, who had paid a deposit, had acharge on the land for that deposit and interest in priority to themortgage. The principle on which the House acted is stated byLord Cranworth thus (p. 6S3): “ There can be no doubt, I apprehend,that when a purchaser has paid his purchase-money, though hehas got no conveyance, the vendor becomes a trustee for him ofthe legal estate, and he is, in equity, considered as the owner of theestate. When, instead of paying the whole of his purchase-money,
1 {inOS) 1 K. n. 577. '2 [1003) 0 -V. L. R. JOS.
3 (1804) 10 H. L. 0. 072 (683) : 11 E. R. JIS7.
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he pays a part of it-, it would seem to follow, as a necessary 1926.corollary, that to the extent to which he has paid his purchase- jAYEWAK.money, to that extent the vendor is a trustee for him; in other denb A.J.words, that he acquires a lien, exactly in the same way as if upon Bewawasanthe payment of part of the purchase-money the vendor had executed Gun^cherca mortgage to him of the estate to that extent. The same principlewas thus stated by -Tessel M.R. in the case of Lymght v. Edwards:
“ It (the doctrine) is that the moment you have a valid contractfor sale the vendor becomes in equity a trustee for the purchaser ofthe estate sold, and the beneficial ownership passes to the purchaser,the vendor having a right to the purchase-money, a charge orJien on the estate for the security of that purchase money, and aright to retain possession of the estate until the purchase-moneyis paid, in the absence of express contract as to the time of deliver-ing possession.” There must therefore be a ” valid contract,*and the learned Master of the Rolls says that “ a valid contractmeans in every case a contract sufficient in form and in substanceso that there is no ground whatever for setting it aside as betweenthe vendor and purchaser ” a contract biding on both parties.”
Then he proceeds to point out that as regards real- property anotherelement of validity is required, that is, that the vendor must be ina position to make a title according to the contract. I very muchdoubt whether the doctrine laid down in these cases by the Courtsof Equity in England on the effect of a contract for sale of land canhave any application to our system of law. When one considersthe consequences that flow from such a doctrine, one of which isthat from the moment a valid contract for sale is entered into landis treated as having been converted into money, one could havevery little hesitation in saying that it cannot form part of out-law of real property. However that may be. here again there isno “ valid contract,” and in the absence of. a valid contract theprinciple cannot be applied. Therefore, even under the Englishlaw the relation of trustee and cestui que trust would not havearisen on the execution of PI.
As regards local decisions, the case of Appuhamy v. Babun Appu(supra) is on all fours with the present case. There this Courthad to construe a deed similar to Pi, and declared it to be void.
The judgment of the Court (Ennis A.C.J. and Garvin J.) proceededon two grounds:, first, that the alienation, which was held to be ineffect an alienation of undivided shares, was void under section 17,and secondly, that as a partition decree under section 9 was ajudgment in rent, a mortgage of the divided lot allotted to thevendor after decree was not affected by a conveyance of the samedivided lot before decree. The first reason given cannot, in myopinion, be disregarded as being merely obiter. This Court is,
1 (/.S76*) 2 Oh. 1). 499 (506).
( 56 )
JayewartPEES A.J.
however, nofe bound by tlint judgment, and it* is in fact consideringits soundness here. I think, however, that the reason in questionis sound and ought to be adopted.
As Bertram C.J* said in delivering the judgment of the FullBench of five Judges in Picris v. Pier is (supra): “ Persons desiringto charge or dispose of their interests in a property subject to apartition suit can only do so by expressly charging or disposingof the interest to be ultimately allotted to them in the action.1'The parties here have failed to see that done when they enteredinto PI, and the results is a deed of alienation void in law.
The case for the appellant fails on all points, and the judgmentappealed from must bejield to be right.
The record must go back for the decision of the third issue regarding-the amount paid by the plaintiff to the defendant as considerationfor PI. The plaintiff is clearly entitled to be repaid the consider-ation. The defendant has not contested his liability to repaywhatever was paid to him by the plaintiff, and has admitted biswillingness to do so in his answer. But the exact amount paid isin dispute. The learned District Judge will decide this question.
In the circumstances, I would allow the defendants the costsof this appeal and of the trial in the lower Court. The costs ofthe further proceedings will be in the discretion of the District.Judge.
Appeal allowed.