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Present: Mr. Justice Wendt, Mr. Justice Middleton, andMr. Justice Wood Benton.
PEBEBA v. PEBEBA et al.
D. C., Colombo, 20,449.
Fiscal's sale—Pendency of partition suit—Validity—“ Alienation ”—Partition
Ordinance (No. 10 of 1863), s. 17.
Section 17 of Ordinance No. 10 of 1863 enacts:“Whenever any
legal proceedings shall have been instituted for obtaining a partitionor sale of any propertyasaforesaid, itshall not be lawfulforany of
the owners to alienateorhypothecatehis undivided shareorinterest
herein, unless and until the Court before which the same wereinstituted shall, by its decree in the matter, have refused to grantthe application for such partition, or sale, as the case may be; andany such alienation or hypothecation shall be void.”
Held, that this sectionapplies tovoluntary and not toneces-
sary alienations, and that a Fiscal's sale of the shares of some ofthe co-owners pending a partition suit iB valid.
Held, also, that theFiscal's purchaser was entitled tobesubsti-
tuted on the record in place of the parties whose interests he pur-chased.
The judgment in Annamalai Pillai ®. Perera (6 N. L.. R. 108)-explained.
HIS was a partition 6uit. Preliminary decree was entered onthe 26th April, 1905. On the 13th April, 1905, the interests of
the eleventh and twelfth defendants (husband and wife) and the six-teenth defendant, who were subsequently allotted certain shares in thepreliminary decree, were sold by the 'Fiscal and purchased by thesecond added defendant, who obtained Fiscal’s transfers Nos. 8,280and 8,281, dated the 31st July, 1905, and claimed to be substituted inplace of the said eleventh, twelfth, and sixteenth defendants on therecord.
The District Judge (F. B. Dias, Esq.) dismissed the claim of thesecond added defendant,, holding on the authority of AnnamalaiPillai v. Perera (1) that the Fiscal’s sales, were void under section 17of Ordinance ITo. 10 of 1863.
The second added defendant appealed ex parte.
A. St. V. Jayewardene for him.—The decision in Annamalai Pillai »-Perera (1) did not deal with Fiscal’B sales pending partition proceed-ings. The question was not raised or discussed, as Moncreiff J., oneof the Judges who took part in Annamalai Pillai v. Perera (1),explained in Guneratne v. Tinanhamy (2). . The Boman Law and
(1) (1902) 6 N. L. R. 108.(2) S. C. Min. March 17, 1904.
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the Boman-Dutch Law recognized a clear distinction betweenalienations voluntaries and necessaries; where alienation wasprohibited, such prohibition was considered to extend only to volun-tary alienations; and a sale of a debtor's property at the instanceof creditors was considered a necessary alienation: Digest 28, 5, 1;Voet 23, 5, 2; Digest 27, 9, 3, 1; Voel 27, 9, 12; Sande, de prohib. rer.alie. 3, 8, 13. This distinction exists in the English law, and hasbeien adopted by the Courts in india,. Silva v. Oimarah (1). Thewords of this section clearly refer to alienations by the owners, andnot to execution sales against the will of the owners. The BomanLaw too, which prohibited alienations pending partition, excludednecessary alienations (Digest 10, 2, 13). If Fiscal’s sales be held toeome within the terms of section 17, debtors will be enabled to placetheir property beyond the reach of their creditors for an indefinitelength of time by instituting proceedings under this Ordinance.(Hukm Ghand’s Res Judicata, p. 723).
19th July, 1906. Wendt J.—
The question which is specially brought before for us for considera-tion in this case is, whether a Fiscal's sale of an undivided share ofland, pending proceedings- for partition, is void under section 17 ofthe Partition Ordinance, as an alienation by an owner. The learnedDistrict Judge in holding against the sale considered himself boundto do so in view of the decision of the majority of the Supreme Court■in the case of Annamalai Pillai v. Perera (2). I was one of the Judges-who decided that case, and I dissented from the view of my brotherJudges. The question there reserved for the consideration of theFull Court, and the only question argued before' us, was whetheran alienation obnoxious to section 17 was absolutely void, or voidonly quoad the partition proceedings, as decided in the case ofBabun v. Amarasinghe (3), and the fact that one of the alienationsupon which the claimant founded was a Fiscal’s sale was barelymentioned at the argument. The reason, I suppose, was that, evenassuming the Fiscal’s sale was valid, the claimant would still havefailed because his transfer from the execution-purchaser was executedpending the old partition proceedings. That case, however, has•been regarded—partly at least, owing to the form of the reporter’sheadnote—as deciding that an execution sale pending partition, proceedings was void, and Layard C.J. in Silva u. Oimarah (1), so■treated it and held himself bound to hold in the same way. His own.opinion was the other way, and in support of it he cited authority
(1) (1903) 7 N. L. R. 185.(2) (1902) 6 N. L. R. 108.
(3) (1878) 1 S. C. C. 24.
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which established conclusively that a purchaser at an executionsale is not the alienee of the judgment-debtor, as the grantee of aconveyance from him would be, but claims title adversely to himand by operation of law; and such a sale therefore cannot properlybe regarded as an alienation by the judgment-debtor.
The very terms of section 17 are, in my opinion, in appellant'sfavour. The Legislature, had it been minded to forbid sale inexecution as well, oould (and I think would) have enaoted that oncea partition suit was commenced no change in the ownership of theland should be effected until after its determination. Instead ofsuch an enactment, it merely says that ‘‘ it shall not be lawful forany owner to alienate or hypothecate his undivided share or in-terst. ” Prima facie this language is not applicable to a sale ininvitum by the Fiscal. Section 17, moreover, is a re-enactmentof section 17 of the first Partition Ordinance, No. 21 of 1844, whichin section 19 expressly provided for the execution sale of the shareof one of the parties pending the action, and for the award to the-purchaser of the share due to his execution-debtor. Section 17rtherefore, when first enacted, did not apply to Fiscal’s sales, andalthough the express provision I have mentioned was not re-enacted,in section 16 of the present Ordinance, which reproduced the remain-ing directions of section 19, I find nothing to suggest that thatindicates an intention to bring Fiscal’s sales within the prohibition-in section 17. It would rather appear that express provision.was regarded as unnecessary, inasmuch as in the absence of the con-sent of .all the co-owners, which the preceding part of the section con-templated, the Fiscal could only sell the share of the judgment-debtor.
The common law recognized the validity of sales made ex neces-sitate where voluntary alienations were forbidden, execution salesbeing classed, as “ necessary.” See the texts cited by appellant’scounsel: Voet 23, 5, 2 (as to dotal property); 27, 9, 13 (as to theproperty of wards); Sande, de prohib. rer. alie., 3, 8, 13 (fidei com-missum property) Dig. 10, 2, 13.
In my opinion, a Fiscal’s sale is not an alienation by the execution-debtor within tiie meaning of section 17 of the Partition Ordinance,,and we ought therefore to allow the appeal with costs.
If the judgments in Annamalai Ptllai v. Per era (1) given byMoncreiff J. and my brother Wendt are carefully read it will be seenat once that the question in that case was whether the sale of the
(1) (1902) 6 N. L. R. 108.
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1906. 11th September, 1899, by Marthelis de Silva to plaintiff AnnamalaiJuly 19. PiUai pending a partition suit between Elizabeth Perera, the formerowner, and her co-owners was void or voidable under section 17 of theJ-Partition Ordinance—Moncreiff J. clearly held that the sale was void.
My brother Wendt, on the ground that the decision of Phear C.J.and Dias J. in Babun v. Amerasinghe (1) had been followed for nearlya quarter of a century by this Court, held that the sale was voidable,and made some observations at the end of his judgment which showhe did not hold that the alienation by the Fiscal was void.
In my judgment it appears I held (using the plural) that thesealienations were void under the section.
The headnote of the oase makes it appear that the majority of theCourt held that, the Fiscal’s transfer to Marthelis de Silva was voidunder the seotion.
Although from the words used in my judgment it may appear thatT held so, there is nothing in the judgments of either of my brothersto warrant the headnote stating it to be the judgment of the majority•of the Court.
That I held so myself. I find it now difficult to believe, and am at aloss to understand my use of the plural in the last paragraph but•one of my judgment.
My ruling would be however obiter of the point for decision.
The question as to the Fiscal’s transfer was never really raised orargued in that oase, but in the present case it is definitely before usior decision.
I agree with my learned brothers, whose judgments 1 have hadthe advantage of perusing, that an alienation by the Fiscal being•ex necessitate, and involuntary so far as the owner of the share soldis concerned, is not an alienation by the owner within the mean-ing of section 17 of the Partition Ordinance, and would grant theprayer of the petition of appeal with costs.
At the same time I take leave to think that just as much embarrass-ment, delay, and inconvenience is caused by a Fiscal’s transferpending partition proceedings as by a voluntary alienation by one-of the co-owners as the author of the Law of Partition in Ceylon•observes.
Wood Benton J.—
The facts are clearly set out by the learned District Judge, and Ido not propose to repeat them. The question of law that we haveto decide is whether a Fiscal’s sale comes within section 17 of ” The
(1) (1878) 1 S. C. C. 24.
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Partition Ordinance, 1863 ” (No. 10 of 1863), which prohibits thealienation of land " by the owners ’’ during the pendency of proceed-ings for its partition. The District Judge, holding himself bound bya decision of the Full Court in Annamdlai Pillai v. Perera (1), hasanswered this question in the affirmative. Sir Charles Layard C.J.in Silva v. Qimarah (2), while expressing the opinion that the judgmentof the Full Court in the case referred to was questionable, held, likethe District Judge, that he was bound by its authority. Now thatthe question, however, has again been brought before the Full Court,I think that we are at liberty to consider what was the main point ofcontroversy in the case of Annamalai Pillai v. Perera (ubi sup.).The issue debated there was whether a sale pending partition pro-ceedings was void or voidable under section 17 of Ordinance No. 10of 1863. It is true that the sale in question was a Fiscal’s transfer.But the majority of the Court do not at all deal with this aspect ofthe question. Their attention had been directed not to the charac-ter of the sale, but to the character of the statutory prohibition. Inhis dissenting judgment, Wendt J. raises the point which is beforeUs in the present appeal. .Now that we have to consider it directly,I venture to think that a Fiscal’s transfer does not come within seertion 17 of “ The Partition Ordinance, 1863.” The distinction betweenvoluntary and necessary alienation and the principle that_the latterdid not constitute a contravention of the prohibition of the alienationof dotal property (Voet, 23, 5, 2), or of the property of a ward (Voet,27, 9, 12) or (as regards a right of action against the alienator him-self) of property subject -to a fidei commissutn (Sande, 3, c. 8,8. 13) were clearly established in Boman-Dutch Law. There aredirect Indian authorities, Lala Parbhu Led v. Mylne (3); BashiChunder Sen v. Enayet Ali (4); Anundo Moyee Dossee v. DhonendroChunder Mooherjee (5), for the proposition that the title of a purchaserunder a judgment decree cannot be put on the same footing as thetitle of a person claiming under a voluntary alienation. • Thelanguage of section 17 of the Partition Ordinance itself seems topoint only to the latter class of alienations.. It speaks of alienations” by the owners.” But the purchaser at a Fiscal’s sale acquires titlenot from the owner but adversely to the owner by operation of law.
I would sett aside the judgment and decree appealed against anddirect that the appellant be substituted' for the eleventh and sixteenthdefendants, as prayed for in the petition of appeal.
(1902) 6 N. L. R. 108.(3) (1887) I. L. R. 14 Cal. 401 at p. 413.
(1903) 7 N. L. R. 135.(4) (1892) I. L. R. 20 Cal. 236 at p. 239.
(1871) 14 Moo. I. A. 101.
PERERA v. PERERA et al