MUDALIHAMY v. DINGIRI MENIKA

081-NLR-NLR-V-28-MUDALIHAMY-v.-DINGIRI-MENIKA.pdf


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1387.
Present: Garvin J. and Lyall Grant J.
MUDALIHAMY v. DINGIRI MENIKA.
1G7—T>. CKurunegala, 10,000.
Eiceptio rei venditae et fcraditae—Sate of undivided &hare—Partitiondecree allotting share to vendor—Claim by vendee—Finality.
Where a person who had sold his xindivided interests in a landwas subsequently allotted, in lieu of such undivided interests, ashare in a partition action to which the purchaser was no party,—
Held, the decree in the partition action barred any claim by thepurchaser to the land and that the plea of exceptio rei venditae ettraditae was not available to him.
T
his was an action by the. plaintiff for the declaration of titleto an undivided half share of the defined western half share
of a land called Hitinawatta. By deed No. 34,382 dated March 31,1913, the first defendant sold the interests claimed to the plaintiff.Thereafter an action was instituted by one Ukku Banda, who claimedto be the owner of the eastern half of this land, for the partitionof-the whole land, and the first defendant was one of the defendantsflft the action. The transfer .of March 31, 1913, was not broughtto the notice of the Court, and final decree was entered under which
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» specified portion of land the equivalent of half share was allotted MR*to the first defendant. The plaintiff was no party to the action. MudaHhamy
After the partition decree the first defendant transferred the land v- Oinfinto the second defendant.
The learned District Judge held that title was concluded by thepartition decree and dismissed the plaintiff's action.
Menika
H. V. Perera, for appellant.
February 22, 1927. Garvin J.—
This is an appeal by the plaintiff, whose action for declarationof title to an undivided half share of the defined western half shareof a land called Hitinawatta has been dismissed.
By deed No. 34,382 dated March 31, 1913, the first defendant soldand transferred the interests now claimed to the plaintiff. There-after an action was instituted by Ekanayake Mudiyanselage TJkkuBanda, who claimed to be the owner of the eastern half of thisland, fen the partition of the whole of Hitinawatta, presumablyupon the footing that the land was one and undivided. Thepresent first defendant was one of the defendants in that partitionproceeding. The fact of the transfer of March 31, 1913, was notbrought to the notice of the Court, and when the final decree wasentered a specific allotment of land being the equivalent of a halfshare of the land was allotted to the first defendant. The plaintiff,who was not a party, to the action, was completely excluded byiiie partition decree so entered. Thereafter the first defendanttransferred her interests to the second defendant.
The District Judge has held that the matter of titles is concludedby the judgment in the partition case and accordingly dismissedthe plaintiff’s action.
The facts as outlined above are not in dispute. It is sought,however, by counsel for the appellant to bring this case within theprinciple of GunatUleke v. Fernando.1
He admits that there is a valid and subsisting decree under thePartition Ordinance, but he claims that the decree in so far as itdeclared his vendor entitled to the western half share of this landhas enured to his benefit, and that he is therefore entitled to relyupon this very partition decree as part of his title.
Now, I am aware' of no case in which it has been held that theeiceptio rei venditae et traditae is available to a purchaser who isseeking to resist his vendor or a person claiming through him upona title declared by the final decree in a .partition action. Nor hascounsel been able to refer me to any authority for the proposition.The matter is res integra.
'(1921) 22 N. L. R. 385
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1887.' Under the Roman-Dutch law a purchaser who has gat posses&ibri
Gawek J.^rom- the Vendor Who at the timeof the salehad no title or adefectiVb
v> _ ■title could rely upon a title subsequently acquired by his vendor add
resist any attempt on the part of the vendor or any person claiirtirfgMenikaunder thp vendor to eject him;,and if hehas lost possession since
his purchase he may recoverpossessionby the actio ^hlicianp
repelling his vendor and those claiming under him by virtue of thenew title by virtue of the exceptio rei venditae et traditae.. .•>
The underlying principle would seem to be. that the vendor, prthose claiming through him must not be permitted to deny metitle1 of his vendee.. Where, therefore, the vendor takes proceedingsWith a- view to dispossessing a purchaser he is repelled, by the pldathat inasmuch as it . was * he, who sold and: delivered the) property,his title :has enured to the purchaser. Where the purchaser has lostpossession, he is permitted, by a legal fiction to assert ‘ as against hisvendor or those claiming through him a title which he has not gotand to repel the plea of title by claiming the benefit of the excejMprei venditae et .traditae,. In both cases the purchaser must be in'aposition to establish his claim of title by '^purchase from his.veddor.
But it -is well settled law that1 a partition decree is conclusiveagainst7 all persons whomsoever even as against a person owingan interest in the land partitioned whose title has by fraudulentcoriirivanbe been concealed from the Court. The effect of such-adecree is to determine all pre-existing right or title and every claimto ady’right* or. title to’the subject of partition.- *
The decree in the partition :case relied on by the defendant isbinding and conclusive against the plaintiff as effectively as if hehimself had been- a'party to the case. Whatever right or title orclaim of right or title be may have*had has been finally determined.
In a sense, it is cox-rect to say that the parties who by a final decreein'a* partition action are allotted shares in severalty have acquireda new titled blit that, is only the indirect effect of the decree addproceed from the fact that it is good and conclusive against allpersons whomsoever- So far as the plaintiff is concerned the titlederiyed-by th,e: first defendant under this decree necessarily.involvesthe extinguishment of. any claim of title-which he may jhave hadprior-to the passing of that decree. . ,
He is effectively barred by the decree from asserting a claim toany interest in the land’, and is’not therefoie.in^a position to. establishthat interest which he; must show before la® can estop hrs vendor orth$se claiming under,them by the-exceptio rei venditae ct {traditae.
In. any other view of :the law it. will 'be competent even for aperson through whose negligent omission to assert his. title to aninterest in the land a final decree for partition has been enteredallotting that interest in severalty to ,his vendor, to maintain
o
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gjipcjeissfully- against1 his vendor and those claiming through hiin 1927.
uf^n artitle based on that decree that he is st'll the owner. It is' GabvIn j
a view which, in my opinion, is unsound. <'
Mudalihdmy
^he exception must, I think,, be limited to cases in which the newtjtje which the purchaser asserts has enured to his benefit is obtainedby;his vendor by the usual means by which title is derived, such aspurchase, gift, or inheritance.
,C«.
_A 'decree which bars a title, cannot be relied on by a person who isestopped by that decree to support and confirmed the very title whichit'tars.
: The appeal is dismissed.
Lvall Grant J. 'concurred in a separate judgment.
Appeal dismissed.