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Present: Fisher p.J. and Drieberg J.
PEBERA t ISABEL HAMY.185—D. C. Negombo, 2,496.
Partition action—Decree for sale—Provision that a co-owner should Havean option to purchase—I regularity—Not binding on a co-ownerwho has not consented.
Where a decree tor sale in a partition action provided that aco-owner who buys at the sale should give another the option topurchase a half share within a certain time,—
. Held, that such a condition should not be embodied in the decreeand that it is not binding * on a co-owner, who has not consented
^^PPEAL from an order of the District Judge of Negombo.
Cfoo8 da Brera, for sixth defendant, appellant.
M. T. de S. Amara8ekeret for plaintiff, respondent.
October *24, 1929. Drieberg J.—
Mr. Croos da Brera did not press the objection taken in thepetition of appeal that the decree was bad as the appellant did nothave notice of trial. There was no purpose in pressing this objectionfor there was a full inquiry into the rights of the parties, and theappellant admits that he was awarded his right share and he agreesthat there should be a sale and not a partition.
His objection to the provision in the decree that any co-owner whobought at the sale should be obliged thereafter to sell a half share tothe plaintiff, if the plaintiff desired to purchase, within six weeks, isentitled to succeed.
The learned District Judge referred to the case of Jabar v. Marker., 1in which it was held that it was open to a party to a partition actionto enter into an agreement to sell the property in the event of hisbecoming the purchaser. Such an agreement can be effected bydeed, but it is not one which should be embodied in the decree.
In the present case the agreement to sell to the plaintiff can bebinding only on those who have consented to it ; the appellant didnot consent to it.
The decree will be amended by deleting the provision giving theplaintiff the right of purchasing a half share from any co-owner whomight buy the land.
(1920) 22 N. L. R. 129.
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The provision in the decree regarding the rights of the mortgageeand lessee—the tenth defendant and the first intervenient—containsan error. It is stated that “ in the event of the mortgagors beingpurchasers they should not get credit to the extent of the mortgagebonds and the value of the leasehould rights.” This is a properprovision to secure the amount due on the mortgages and thecompensation to the lessee being paid into Court, but for the word“ mortgagors ” should be substituted the words " the parties whohave succeeded to the rights of the mortgagor and lessor BrampvAppu. ”
The appellant is entitled to the costs in the lower Court of theapplication to set aside the decree. The respondent will pay theappellant his costs of this appeal.
Fjsheb C.J.—I agree.
Perera v.Isabel Homy