M. A. HERATH and 2 others, Appellants, and M. A. ASLYN NONA, Respondent

122-NLR-NLR-V-65-M.-A.-HERATH-and-2-others-Appellants-and-M.-A.-ASLYN-NONA-Respondent.pdf


570
TaMBIAH. H.—PCafath o. Aslyn Nona
1962Presmi; T* & Fernando, J,3 and Tambiah, J.
M. A. HERATH and % elites, Appellants, and M. A. ASLYN NONA,
Respondent
S. C. 36011959—D. C. Gampaha, 6315jP
Partition action—Salt of co-ovmer’e interests pending action—Misdescription ofsubject-matter—Effect—Partition Act [Cap. 69).
Pending a partition action, after interlocutory decree was entered, oneof the co-owners executed a deed of sale. The description of the corpusconveyed was not the same as the subject-matter of the partition actioa buta description of the corpus which the vendor would receive in the final decree.There was also an erroneous assumption that the final decree had alreadybeen entered.
Held, that the sale was not obnoxious to Section 67 of the Partition Act-A.PPEAL from a judgment of the District Court, Gampaha.
E. V. Perera, Q.G., with Cecil de S. Wijeratne, for the 4th to 6thdefendants-appellants.
if. L. S. Jayasekera, with K. Gharavanamuttu, for the plaintiff-respondent.
Cur. adv. vvlt.
February 20, 1962. Tambiah, J.—
The plaintiff brought this action for the partition of an allotment ofland called Hap ugahawatta Kebella, which is depicted as Lot 1 in PlanNo. 855, marked D2, of 18th April 1955. This land formed part of alarger land which was the subject-matter of partition action No. 1755
C. Gampaha. By virtue of the Final Decree marked PI or Dlentered in that case, Lot 1 in Plan 1140, marked X, and also shown inD2, was allotted to the following persons : Gabonis, the plaintiff, who isthe 3rd defendant in this case, William and Elans both of whom are the1st and 2nd defendants in this case as well as in the former case, andSinghappu, the 20th defendant who is not a party to this action, butwhose child is the plaintiff in this action, in the following proportions,198/318, 12/318, 12/31S and 96/318 shares, respectively.
The plaintiff, who is the daughter of Singhappu, who was allotted96/318 shares, has instituted this action to partition Lot 1 shown in Plan Xand has claimed the share of Singhappu by right of inheritance. Theshares of the 1st and 2nd defendants and of the 3rd defendant, who isnow dead, leaving as heirs the 0th defendant, his widow, and the 4th-5thdefendants as children, are not in dispute. The 4th-6th defendantscontend that Singhappu, by deed No, 5365 of 13th May, 1955, marked D3,transferred an undivided 96/318 shares in Lot 1 in Plan D2 to GabonisAppu, the 3rd defendant, and that they are entitled on this deed go the
TAMBIAH, J.—Herath v. Aslyn Nona
571
shares of Singhappu claimed by the plaintiff in this action. The onlyissue for consideration is -whether Singhappu’s share of Lot 1 in Plan X(i.e. 96/318 shares) devolved on the plaintiff by inheritance or passed tothe 4th-6th defendants, the heirs of Gabonis, the 3rd defendant deceased.
The interlocutory decree JnJhisjsase. had been entered on the 23rd ofMay 1953 and the final decree on the 22nd of May 1957. It is commonground that D3 had been executed pending partition action No. 1755 andthe question for decision is -whether D3 is obnoxious to section 67 of thePartition Act {Cap. 69) (which now substantially reproduces section 17of the Partition Ordinance No. 10 of 1863, as amended by 10 of 1897 and37 of 1916) and whether any title- passed to the 3rd defendant on this deed.
Section 67 of the Partition Act (supra) enacts as follows :—
“(1) After a partition action is duly registered as a lis pendensunder the Registration of Documents Ordinance no voluntaryalienation, lease or hypothecation of any undivided shareor interest of or in the land to which the action relates shall bemade or effected until the final determination of the action bydismissal thereof, or by the entry of a decree of partition orby entry of a certificate of sale.
(2) Any voluntary alienation, lease or hypothecation made or effectedin contravention of the alienation of subsection (1) shall be void. ”
Section 17 of the Partition Ordinance has been interpreted in manydecisions of this Court. In Penis v. Peiris et oZ.1, Bertram C. J.} in deli-vering the judgment of the Bull Bench, observed “ Persons desiring tocharge or dispose of their interests in a property subject to a partitionsuit can only do so by expressly charging or disposing of the interestto be ultimately allotted to them in the action ”. In Hewawasan v.Gunasekere2 certain parties to whom some lots were allotted by thesurveyor in a plan made by him on a commission issued to him, in apartition action, after interlocutory decree, transferred the same beforethere was confirmation of the proposed scheme by the final decree. Thequestion arose whether the transferee obtained any rights under the deedof transfer. It was held by the majority of the Divisional Bench that thedeed was not invalid. Garvin, J., stated (vide 28 N. L. R. at p. 38) : “ Itis quite obvious that the parties did not deal and did not intend to dealwith any undivided interest. They dealt with certain lots which bothbelieved and assumed to be the share in severalty which would in duecourse be allotted by the final decree. The respondent has undertakenthat he will at all times do and execute all such acts and deeds as may benecessary to assure the premises to the apellant. He is in a positionto do so, and must do so unless he can justify his refusal on some legalground. It is said that the transaction embodied in these two deeds isobnoxious to section 17 of the Partition Ordinance. Bor the reasonsalready set out this transaction is not, in my opinion, such an alienationas is prohibited by that section”.
^(1924) 6 'C. L. R. 1.* (2926) 2$ N. L. R. S3.
* *
572
TAKCBIAH, J.—Samih «. Aatyn AW
The effect of a sale or aUenation of what a party would be allottedin a partition decree was also considered by the Divisional Court inSvrisomav. Sarndte Appvbamtg1 where it was held that oa enteringof a firral-partition decreeticle vested in the transferee.
In the instant case, the relevant portions of deed D3 are as follows :“ Madampe AppuharauDBage Singho Appuhamy of Biyagama in the AdicariPattu of Siyane Korale, hereby sold, transferred and set over the landsand premises described in the schedule appended below and held andpossessed by me, the Vendor on a title decreed upon me, by the PinalDecree in District Court Case No. 1755, and which said Decree is notproduced before me (the Notary Public) ”. The habendum clause statesthat the vendor has sold, transferred, set over unto the said vendee allhis right title and interest to be held and possessed by him and hisheirs, executors, administrators and assignees. There is also an assurancein the deed that the vendor would execute any further deeds to ensurethe instrument more valid. The schedule, to this deed states that thesubject-matter of the sale is an undivided 96/318 share of the corpuswithin the metes and boundaries stated therein.
The vendor, on this deed, appears to have erroneously assumed thatthe final decree has been entered allotting to him the share which isconveyed in Lot 1 in Plan X. At the time of transfer, he had no titleto the share which is sold in Lot 1 in Plan X and what he intended toconvey was this share which he would have obtained under the finalpartition decree. The title which he intended to convey is furtherdescribed as the one decreed upon him by the final decree in DistrictCourt Case No. 1755. This description, although erroneous, makes itclear that what the vendoc intended to convey was the share allottedto him in the partition decree.
Where a description forms an integral part of the corpus intended to beconveyed, effect should be given to it. In Sandris v. Dinakahamy2, Aconveyed to B a one-sixth share of a property which she said she inheritedfrom her father. A did not as a matter of fact inherit any share from herfather, but she inherited a one-sixth share horn her husband. It washeld that the conveyance could not be taken to have conveyed to B theshare A inherited from her husband.
Section 17 of the Partition Ordinance (which, as stated earlier, issubstantially reproduced in section 67 of the Partition Act (Cap. 67))“ imposes a fetter on the free alienation of property, and the Courtsought to see that that fetter is not made more comprehensive than thelanguage and the intention of the section require. The section itselfprohibits only in terms the alienation of undivided shares or interestsin property which is the subject of partition proceedings while thoseproceedings are still pending, and the clear object of the enactment was
'(I860) SI N. L. JR. *37.
* (i960) 6 Sal. 76.' •
TAMBIAH, J.—Herath v. Aelyn Nona
573
to prevent the trial of partition actions from being delayed by theintervention of fresh parties whose interests had been created since theproceedings began ” (per Wood Renton C.J. in Subaserisv.Porolis1, citedwith approval by Dalton J., in Hewawasan v. Ganaselrere (supra)).
-Applying these principles to the facts of the instant case, the descriptionof the corpus conveyed is Dot the same as the subject-matter of partitioncase No. 1755 D. C. Gampaha but a description of the corpus whichSinghappu would have received in the final decree in the partitioncase although there is an erroneous assumption that a decree had alreadybeen entered. It is a well-known canon of interpretation that jin con-struing a deed, the paramount consideration is to give effect to theintention of the parties (vide Ford v. Beech 2). Effect must be given to thegeneral intention, not to the literal words, in order to make the deedoperative (Vander Linden’s Institutes 1 : 14 : 4).
It is clear from the corpus described in D3 that Singhappu had no titleto the land described in the schedule at the time of transfer. When heobtained the same by the final partition decree, his title enured to thebenefit of the transferee by the application of the doctrine of exceptio reivenditae et traiitae. The scope and ambit of this doctrine was fullyconsidered by the -Privy Council in Gunatilleke v. Fernando3 and needsno further elaboration. Applying this principle to the facts of the instantcase, when final decree was entered in D. C. Gampaha Case No. 1755,Singhappu’s title enured to the benefit of the 3rd defendant and hasnow devolved on the 4th-6th defendants.
The counsel for the respondent contended that this deed was invalidand relied on the dissentient judgment of Jayewaxdene A.J., (as hethen was) in Hewawasan v. Gunasekere (supra). It must however be notedthat the majority veiw was against the opinion of Jayawardene A.J.,referred to by the counsel for the respondent. When three, judges hear acase and one judge dissents, the majority view must be considered thejudgment of the Court of three judges (vide Appusinno v. Grigoris4).Thus, the ruling in Hewawasan v. Gunasekere (supra) is binding on us.
For these reasons, we hold that Singhappu’s interest passed to the 3rddefendant on deed D3 and that the plaintiff had no title to bring thisaction. We set aside the order of the learned District Judge and dismissthe plaintiff’s action with costs. The plaintiff respondent will pay theappellants the costs of appeal.
T. S. FebnaulDO, J.—I agree.
1 (1913) 16 N. L. R. 393.(1848) JIJ Q. B. 842, 852.
Appeal allowed.
(1921) 22 N. L. R. 385.* Bal. Notea 20.