( m >
Present: De Sampayo J. and Sohneider A.J.
PERIANAN CHETTY v. FERNANDO.
331—D, 0. Colombo, 58,613.
Ids pendens—Sale in execution pending action for specific performance.
A by deed agreed to sell a land to defendant within three months.The defendant brought an aetion for specific performance endobtained decree in September, 1911.The deed of conveyance in
pursuance of the decree was executed in November, 1911. In themeantime a creditor of A sold the land in execution of a moneydecree in' July, 1911, when plaintiff becamepurchaser. Fiscal's
transfer was issued to plaintiff in March, 1912.
Held, that defendant had superior title.
The doctrine of lie pendens is applicable to sale in execution.An action for specific performance is a lie, to which the doctrine isapplicable.
fJ'HIS was an action for declaration of title. The facts are setout in the judgment of the District Judge (L. M. Maartensz,Esq.):—
By an indenture No. 1,007datedSeptember IS, 1908, A.S. Alwis
agreed to sell and convey to the defendant anundividedone-third
share of the land inquestionwithinthree months from the date thereof,
and agreed further that indefaultheshould be liable, in additionto
his liability, to be compelled to perform the agreement, to pay thedefendant a sum of Bs. 600 as liquidated damages.
The defendant sued' on the agreement in case No. 31,593, D. C. Colombo,on October 17, 1910,and obtainedjudgment on September4, 1911.
The Court executed atransferof theland to the defendant onNovember
In caseNo.31,989, D.C. Colombo, one Nalla CaruppenChetty sued
the defendant to recover a sum of Bs. 494 due on a promissory note.Judgment was entered^ for Nalla Caruppen Chetty on February 28,1911. The land was sold on July26,1911, and purchased byPerianan
Chetty, the present plaintiff. The sale wsb confirmed on October 14,
and a Fiscal's transfer was issued to the purchaser on March 14,
I may note in passing that the plaintiff made no effort tovindicate his title prior to this action filed on March 14, 1919.
The agreement No. 1.007referstoan 4 undivided one-thirdshareof
the land in dispute, but noissuewassuggested regarding theextentof
theland,andI presumethere is no question between the parties on
There can be no doubt that the execution sale at which the plaintiffpurchased the land took place during the pendency of case No. 31,693,D.C. Colombo. Plaintiff'scounsel contended that the salein execution
to the plaintiff was not affected by the rule of lie pendens, because (o)theactionNo.31,593 didnot involve a dispute concerningthe right of
dominium or ownership of the land in question: (6) the sale to plaintiff
( 602 )
was not a voluntary sale, but a sale in execution. In support of hisfirst proposition, he cited sections 2, 3, 4, and 6 of chapter IX. of Sande'sRestraints on Alienation.
Section 1 lays downthat ‘‘a reslitigiosais athingconcerning the
dominium or right of ownership, of which there is going on between thepossessor and the plaintiff a dispute by judicial proceedings. ” There-fore,says SaAde insection 3: “If there is nodispute about thedonu-
nium, but only aboutthe servitudeor anyotherrightover a thing,
then the right which has been subjected to judicial decision becomeshtigiosum, but the thing does not, and therefore it can be freely alienated. ’’
Insections 4 andS it is laiddownthat anactio hypothecariaand a
personal action do not make a thing res litigiosa. One of the questionsto be decided iswhether a sale pending anactionto compelspecifio
performance of an agreement to sell a land is void. This questionmust, I think, be answered by the application of the principle laiddownin Bellamy e.Sabine,1 that“ thelaw doesnot allow litigantparties
to give to otherspending the litigation rightsto theproperty indispute
so as to prejudice the opposite party. ’’ On the principle laid down inthis case,itwas heldin thecase of Muheeth v.Nadar ajapillai* that
the doctrine of lis pendens applied where the action which was pendingwas a mortgage action.
If the doctrineis applicable to a mortgageaction,I see noreason
whyit should notbe applicable toan actionfor specific performance
of a contract forthe sale of a land. It isdoubtfulwhether anaction
for specific performance lay under the Boman-Dutch law, but it hasbeen heldina seriesof casesthat such an actionlies in Ceylon. The
earliestcase in which the question wasspecificallyraised and decided
in theaffirmative is the case of Holmesv. Alia Marikkar,» sincethat
date it is settled law that an action for specific performance does lie.
In that case itwas held that, where it wasimpossible for thedefend-ant toexecute the conveyance ordered,the Courtshoulddecreethe
defendant to pay to plaintiffthe damagesclaimed. The agreement
then suedonprovidedfor thepayment of damagesin lieu of perform-ance. The agreement sued onin case No. 31,593makesno such
provision, but distinctly provides that theparty indefaultshouldpay
a sum ofBs.500 asdamages,in addition to beingcompelled to perform
his agreement specifically.
The action No. 31,593, in my opinion, involved a dispute concerningthe right of ownership of the land in question. It would, I think, bemost inequitable to allow a person in the position of the defendant toput it out of his power to specifically perform the agreement sued on byselling the land to a third party pending the action – against him. Forthe reason given byme, Iamunable to adopt theargument thatthe
doctrine of Its pendens is not applicable to the action No. 31,593.
In support of his second proposition, plaintiff's counsel arguedthat the rule of lis pendens was analogous to the prohibition againstalienation contained insection 17of the Partition Ordinance, and
Contended that the rule laid down in the case of Perera v. Perera *that section 17 applies to voluntary and not to necessary alienation,and that a Fiscal’s sale of some of the shares of some of the co-ownerspending a partition suit is valid was applicable to the case of a sale ofa land in executionduringthependency of anothersuit in whichthe
dominium or the right of ownership of the land was in dispute. 1
1I He. O. <fe S. 618.31 N.L. R. 282.
* (1911) 19 N. L. R. 461.* (1906) 9 N. L. R. 211,
( 608 )
I was atfirst impressed by theargumentthat section17of the
Partition Ordinance was, in fact, a statutory enactment of the rule oflie pendens, bat on farther consideration I am of opinion that that isnot the case. Theobject ofthePartitionOrdinanceistoprovidefor
the partition of land, and is not a measure for the settlement of disputes."When it appears that the plaintiff is making UBe of the Ordinance merelyas a substitute for an action ret vindicatio, the Court – has power to orderthe parties to stamp theproceedings,and dealwith the actionas one
for declaration of title.
Section 17 prohibits alienation whether there is any dispute regardingthe shares or not.Again, aparty whoseshare isnotindisputeis
prohibited from alienating it by section 17, the abject. being, 1 take it,to prevent the course of the action being delayed by parties having to beadded from time totime; suchan'alienationwould notbeaviolationof
the rule of Us pendens, as the sale would not affect the title of any of theother parties. Thus, the prohibition against alienation provided bysection 17 goeB far beyond the rule of Us pendens.
Mr. Justice Wendt basedhisjudgment, inthecaseof Perera v.
Per era,1 mainly on the fact that section 17 did not forbid a sale inexecution. Hesays: “ Thevery termsof section17 are, inmyopinion,
in appellant’sfavour. TheLegislature,had it been mindedto forbid a
sale in execution as well, could (and, I think, would) have enacted thatonce a partition suit was commenced no change in the ownership of thelandshould be effected until its determination. Instead of such an
enactment, it merelysays that‘ itshall notbe lawfulforany ownerto
alienate orhypothecate hisundivided share or interest.’ Prima facie,
this language is not applicable to a sale in invitum by the Fiscal. ”
Mr. Justice Middleton agreesthat a salebytheFiscal being ex
necessitate andinvoluntary is notan alienationby theowner within the
meaning of section 17 of the Partition Ordinance.
Mr. Justice Wood Benton holds that the distinction between volun-tary and necessary alienationandthe principlethatthelatter did not
constitute a contravention oftheprohibition ofthealienation of dotal
property, or ofthe property of award, or(asregardsa right of action
against thealienator himself) of propertysubject to afidei commissum
were clearly established in the Boman-Dutchlaw,and, in conclusion,
he lays down that the language of section 17 of the Partition Ordinanceseems to point only tovoluntary alienation,as itspeaks of alienation
by the owners.
I amofopinion that thecase cited isnot an authority for holdingthat
a sale bythe Fiscal is nota violation ofthe rule of Us pendens.The
question, however, still remainswhetherasale inexecution is not
affected by the doctrine of lis pendens.
Thereare two cases inwhich ithasbeen heldthat asale inexecution
was , void because it tookplace duringthe pendencyof an action.
In thefirst case Silvav. Silva,2theplaintiffclaimedtitle tothe life
interest,which was thesubject oftheaction under aFiscal’stransfer.
The land waspurchased by himwhen itwassold in execution of a
simple money decree. Theaddeddefendant-claimedthe life interest
as purchaserat a sale inexecution undera mortgagedecree. The sale
to theplaintiff took place duringthependencyof themortgage action.
The Commissioner enteredjudgmentfor plaintiff, onthe ground that at^
the dateof the institutionof the action the added defendant hadnot
obtainedaFiscal’s transfer.Lascelles C.J. reversed the Commissioner’s
* (1906) 9 N. L. B. 217.
* (1913) 16 N. L. R. 89.
( 604 )
judgment, holding, that“ the light which he(plaintiff) obtained was
subject to the result of the mortgage action, on the ground that he boughtthe life interest during the pendencyof the mortgageaction. ”It does
not appear fromthe arguments reportedon the judgment whether
any point was made of the fact that the plaintiff had purchased the land at aFiscal's sale.
In theother case, ComeUsv. Fonseka,1thelandinquestionbelonged
to one Solomon Fonseka. Hedied in1902leaving awill,bywhich his
Wife, Francina, was appointed soleexecutrix anddevisee.Francina
obtained probatein thesameyear,butthe probatewasnot registered.
On October 21,1902,Francina soldthelandto her brother Marthenis.
It was subsequently seized in execution of a decree against Francina asexecutrix at the instance of Pedro Fonseka. Marthenis filed a claim,which was upheld on March 17,1903. PedroFonsekathereupon
brought apartitionactionagainstFrancina and Marthenis,andobtained
judgment in the District Court on July 13, 1903, which was affirmed inappeal on June 16, 1901. In the meantime the land was seized andsold attheinstanceof a Chetty on April9, 1904.ThisChettyhad
obtained judgment against Marthenis and Francina on a promissory note madeby both of them. The Chetty sold to the defendant.
Two questionswerearguedandadjudicatedon.Thefirst question
waa raised by the tenth issue, whichis as follows:“Theprobate of
the last will of Solomon Fonsekanot being registered,and the
Fiscal’s transfer infavour of thedefendant’spredecessors beingduly
registered,is the defendant'stitle superiortothatofplaintiff?” This
issuo was considered by a bench of three Judges and answered indefendant’sfavour.Itwasheldthat the defendant byreasonof the
registration of the Fiscal’s transfer in favour of his predecessors intitle was entitled to half the land. But he was deprived of the benefitconferredon him by the registration oftheFiscal’stransfer,on the
groundthat though Detchiman (plaintiff’spredecessor intitle)was
entitled to a half share (Francina’s share as intestateheir)byreason of
prior registration as against Pedro (plaintiff’s predecessor in title), yet,as Detchiman bought the landpendingthePaulian action,thesale was
subject to the resultof it, andconsequentlythesale under Pedro'swrit,
though subsequent indate,prevailedoverthesaleunder Detchi-
man's writ. Plaintiff's counselsoughttodistinguishthiscase in this
way. Hesaid thatthereasonwhy Pedro’s transferprevailed was
because the sale atwhich Detchimanbecamethepurchaser was, infact,
a sale against Marthenis, as Francina had transferred her interest tohim, andMarthenis was heldto have hadnotitleatthe timeof the
sale. Insupportofthisargument, hereferred me to Mr.Justice
de Sampayo's statement at page110,that inlieuof the transfer toMar-
thenis Fernando, the land should be more properly taken to have been sold at theproposals of Marthenis. But Mr. de Sampayo held that the sale was void, as ittook place during the pendency of the Paulian action, even on the assumption thatthe land belonged to Francina at the time of the sale.
In this caBe, too, the report does not indicate whether the different effect ofa sale in execution was argued and considered. Another argument submittedby plaintiff's counsel was that the result of the action by plaintiff’s predecessorin title rendered the land liable to seizure and Bale. That was no doubt the effectas against Marthenis Fernando, bnt it did not bind the defendant's predecessor,who was not a party to the action.
* (1917) 19 N. L. R. 97.
( 505 )
I was also referred by him to the cases mentioned by Sande, in whicha thing can be alienated although prohibited by the testator fromalienation. One of the oases is where the property is distrained for thedebt of the testator. I do not think that this case is at all applicable.Another case is where the goods beqneathed to the family are distrainedby creditors of the heir. The sale in such a case is of effect daring thelifetime of the heir, because, even if the goods had not been sold, bewould have been the only person who could have held them during hislifetime. The sale here is clearly held to be good, because it does notprejudice the family, and the exception is not applicable to the case of a sale inexecution pendente life.
I am bound by the judgments in the cases of Silva v. Silva 1 and Corttelit v.Fonseka,2 and hold that the plaintiff is not entitled to succeed, on the ground thatthe sale pendente lite was a sale in execution.
A. St. V. Jayawardene, for plaintiff, appellant.—The doctrine ofIts pendens does not apply to a sale in execution. A Fiscal’s saleis not a voluntary sale, but a necessary alienation. Sande (Weber140) states that the doctrine of lis pendens does not apply to aneoessary alienation.
See also section 17 of the Partition Ordinance. In Perera v.Per era3 the Full Court held that a Fiscal’s sale of a share of a land thesubject of a partition action is good and valid.
The defendant sued Alwis for specific performance. There was nodispute concerning the right of dominium or ownership of the landin question in this action. The doctrine of Its pendens does nottherefore apply. Sande 130.
JET. J. C. Pereira (with him Canakeratne), for defendant, re-spondent.—The Privy Council has held that the doctrine of Itspendens applies to sales in invitum. 19 G. W. N. 152; 15Cal. 756; 25 Gal. 179. The passage from Sande does not supportthe appellant’s contention. The Supreme Court has held thata mortgage action is affected by the doctrine of Its pendens(19 N. L. B. 461). An action for specific performance of an agree-ment to sell land is an action for the recovery of land. The Courtdecrees the defendant to transfer the land. 41 Zj. J- Q- B. 169.
Cur adv. vult.
April 1, 1920. De Sampayo J.—
In this case certain questions relating to the law of It's pendensarise for decision on the following state of facts. One Alwis, beingthe owner of the land in dispute, entered into a deed dated Septem-ber 15, 1908, by which he agreed to sell and convey the land to thedefendant within three months. Alwis having failed to convey theland in accordance with the agreement, the defendant on October17, 1910, brought the action No. 31,598 for specific performance,and the Court on September 4, 1911, decreed specific perform-ance accordingly. The deed of conveyance in pursuance of the •
i (1913) 16 N. L. S. 89.
• (1906) 9 N. L. B. 217.
* (1917) 19 N. L. B. 97.
( 506 )
decree was executed on November 8, 1911. In the meantime acreditor of Alwis seized the land in execution of a money decreeand had it sold by the Fiscal on July 26, 1911, when plaintiff becamethe purchaser, and the Fiscal’s transfer was issued to the plaintiffon March 14, 1612.
It will be noted that the Fiscal’s transfer was subsequent indate to the decree in action No. 81,593 and to the conveyance indefendant’s favour in pursuance of the decree, though the saleitself was prior. It is true that under section 289 the plaintiff isdeemed to have been vested with the legal estate from the time ofsale, but I doubt whether it is the sale and not the Fiscal’s transferthat comes into competition with the conveyance to defendantand the decree in pursuance of which it was executed. I shall,■however, consider the questions raised on the footing that it is thedate of the Fiscal’s sale which has to be taken into account inconnection with the plea of lis pendens.
The question is whether the Fiscal’s sale having taken placepending the action No. 31,593, the plaintiff’s title is not subject tothe result of that action. Two points are taken on behalf of theplaintiff: (1) That the doctrine of Us pendens does not apply to aFiscal’s sale; and (2) that the action No. 31,593 was a personalaction against Alwis, and not an action in which the land had beenres litigiosa, and that consequently it was not a lis pendens, whichwould affect the Fiscal’s sale.
The authority cited in support of the first point is Sande onRestraints, which, after stating four exceptions given in the RomanLaw Code to the rule prohibiting alienations pending a litigation,proceeds as follows: “ A fifth exception can be added to these,where the alienation is necessary ” (Weber’s Trans. 140), andreference is made as authority on the point to Dig. X., 2, 13. Theargument on behalf of the plaintiff is that a Fiscal’s sale is a neces-sary alienation as contemplated in the passage from Sande, but Iam unable to accede to this view. A Fiscal’s sale is no doubt a salein invitum and not a voluntary alienation, but I think the expression“ necessary alienation ” in this connection has a different signifi-cance, as appears from the Digest and from the passage in Sandeitself. The Digest treats of the action for the partition of aninheritance, and discusses in l. 12 the case of a legacy sub conditionsbeing carried out on the fulfilment of the condition after the com-mencement of an action famiUee erciscundoe, and l. 13 gives thereason for allowing the alienation as follows: “ Alienationes enimpost judicium acceptum interdicatce sunt dumtaxat voluntaries,non qua vetustiorem causam, et originem juris habent necessariam.”And Sande himself follows the same reasoning and says: “ In thiscase alienation is allowed, because the origin of the alienation isprior to the lis contestata.” so that, I think the exception contem-plated is an alienation necessitated by a prior obligation and not a
( 507 )
forced sale, such as a sale.in execution. The analogy of the decisionson section 17 of the Partition Ordinance, which were also cited, isnot available, beoause section 17 expressly aims at alienations bythe co-owners, and therefore private alienations. No Roman-Dutch authority has been cited, except the scanty and somewhatdoubtful passage from Sande. Moreover, I think that on a questionlike this we should follow the principles of the English law, whichhave been fully adopted in India. See the English and Indian casesdiscussed by Hukm Chand at p. 710 et geq. I need only refer toone or two of the numerous Indian cases in which it has been heldthat the doctrine of Us pendens applied to sales in execution. InMoharaj Bahadur Singh v. Surendra Narain Singh 1 it was .statedthat the law to that effect was well settled. See also the earliercase, Holdar v. Mookerjee. 2 I think, therefore, that the first pointmust be decided against the plaintiff.
With regard to the question whether the action No. 31,593 forspecific conveyance of the land was a Its pendens for the purposeof applying the doctrine, Mr. Jayawardene’s contention is thatit was not, because there the bitile to the land was not in dispute.Here, again, the authority relied on is Sande (Weber’s Trans. 130),where it is stated that “a res litigiosa is a thing concerning thedominium or right of ownership, of which there is going on betweenthe possessor and the plaintiff a dispute by judicial proceedings.”But later on in the same passage Sande qualifies this by saying thatthe dispute may be to a lesser right, such as a servitude or anyother right over a thing, in which case the right becomes litigiosum.It seems to me that the res is the subject-matter, of the action,whatever it may be; it may be a right, corporeal or incorporeal.See 4 Nathan 2160. Voet’s definition is: “ Res litigiosa dioitur,super qua lis mota est, sive corporalis sit, sive ineorporalis.” (Voet44, 6, 1.) I think the right to the specific delivery of a thing is a reslitigiosa, and the action relating to the pursuit of it is a lis withregard to it. Voet 44, 7, 11, says (actiones) rei persecutorice suntquibus persequimur rem nostram aut nobis debitam. I see no diffi-culty in regarding an action for specific performance as one in whichwe seek to obtain a thing nobis debitam. The subject-matter of theaction No. 31,593 was in reality the land which the plaintiff thereclaimed to have transferred and delivered to him specifically.When a suit to obtain specific property is instituted, and the objectof the suit may be defeated by a sale, it is a case of lis pendens.Plant v. Peatman.* There is another principle of the English lawwhich may be remembered in this connection. An agreement forthe sale of land, which may be specifically enforced, operates asan alienation of the vendor’s beneficial proprietory interest in theland, and he becomes constructively a trustee for the purchaser
» (1911) 19 Cal. W. N. 152.* 21 Sutherland’s W. R. 349.
8 41 L. J. Q . B. 169.
( 508 )
in respect of the legal estate. Wall v. Bright1 Shaw v. Foster a.Again, if a mortgage action which does not involve any question ofdominium, but only the mortgagee’s right to bring the mortgagedproperty to sale in satisfaction of the debt, is it's pendens, as hasbeen held in the Full Bench decision Muheeth v. Nadarajapillai*and in many Indian cases, I do not see why an action for specificperformance of an agreement to sell a land should not be regardedin the same light.
I think the appeal fails on both points urged on behalf of theplaintiff, and I would dismiss it, with costs.
I have had the advantage of reading my brother’s judgment inthis appeal. There is nothing I can usefully add to what he hassaid. I, therefore, agree with him.
PERIANAN CHETTY v. FERNANDO