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Present: Fisher C.J. and Drieberg J.
PUNCHI BANDA v. PERERA at at.
■323—D. C. Kurunegala, 12,008.
Paulian action—Deed declared void—Effect of declaration—Title oftransferee.
The decree in a Paulian action makes a fraudulent deed void-only so far as it is necessary to make the property available forexecution.
The title to so much of the property as is not sold in executionremains in the transferee.
^V.PPEAL from a judgment of the District Judge of Kurunegala.
This was an action for declaration of title to land. T. M. Banda,who was entitled to certain lands, sold a half share of these tothe added defendant (i.e., third defendant) in 1921, who sold it tothe first defendant.
T.M. Banda sold the balance half share on D5 of September 19,1922, to the added defendant and one Ran Banda.
A judgment-creditor of T. M. Banda obtained on July 15,1926, a decree in Court of Requests, Kurunegala, 1,634, in acombined 247 and Paulian action by which D5 was declared void.Thereupon the added defendant paid off the debt of the creditorand obtained an assignment of the decree in his favour by D3 ofAugust 3,1926. On P2 of August 27,1926, T. M. Banda again soldhis half share to the plaintiff, who claimed declaration of title to it.
Wee.rasooria, for plaintiff, appellants.—Deed D5, that is thetransfer to the added defendant, was declared null and voidin Court of Requests, Kurunegala, 1,634, to which T. M. Bandaand added defendant were both parties. Title, therefore, revestedin T. M. Banda, who later sold it to the plaintiff. The addeddefendant as assignee of the decree is only entitled to. be paid theamount due upon the decree.
Rajapakse, for added defendant (third defendant).—The effectof the decree in the combined 247 and Paulian action is to benefitthe judgment-creditor only. It is a judgment in personam andnot in rem. (Voet, XLII. 8 (De Vos’ translation, pp. 1 and 2).)The transfer is not declared null and void for all purposes but voidas against the judgment-creditor only for the purpose of making thesubject-matter of the transfer available for the purpose of executing
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the decree (Gunaivardene v. Bilindahamy1). Once the creditorsdebtis satisfied by the transferee (added defendant) the taint attachingto the transfer disappears. The decree in the Paulian action isagainst T. M. Banda (the debtor). He cannot convert a judgmentagainst him to his own benefit and fraudulently retransfer the landsto another. Moreover, the added defendant was not a party byhimself in the Paulian action. He was made a defendant asguardian ad litem to Ban Banda.
Counsel also cited Burge, pp. 605, dkc.
Navaratnam, for first defendant, respondent.
December 4,1928. Fisher C.J.—
The plaintiff instituted this action for declaration of title to anundivided half share of certain lands and the learned Judge dism issedthe action on the ground that the plaintiff had no title to the land.The plaintiff claims on a deed executed by one Tennekoon Bandadated August 27, 1926. By a,deed dated September 19,1922,Tennekoon Banda had transferred a half share of the said lands to hisson Ran Banda and his son-in-law, the third defendant to the action.It is that half share to which the plaintiff claims to be entitled.By a decree of the Court of Requests of Kurunegala datedJuly 15,1926, in an action under section 247 of the Civil ProcedureCode combined with a Paulian action that deed was declared to bevoid. The only question is whether Tennekoon Banda had powerto transfer the property to the plaintiff. The law as to the effectof a decree in an action such as that referred to is as stated by deSampayo J. in the case of Gunawardene v. Bilindahamy.1 In givingjudgment in that case the learned Judge says : “ A fraudulent deedis not annulled by that action, but it is only declared void so far asit is necessary to make the property available for execution.” Ifsuch a decree had the force and effect contended for in this case bythe appellant, any property dealt with by the deed not sold inexecution would revest in the person who conveyed it. We musthave regard to the purpose for which a deed is declared in such anaction to be void and limit the operation of the declaration accord-ingly. In my opinion the title to so much of the property as isnot required to be sold in execution remains in the transferee in thedeed or his representatives.
For these reasons I think the judgment of the learned Judge isright and the appeal must be dismissed with costs.
I agree with the order proposed by my Lord the Chief Justice.
This action is a futile and unnecessary one. The only matter indispute now is the one-fourth share which Tikiri Banda transferred
to Ran Banda by deed D5.
i l.C. W. if. 95.
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The effect of the decree in the combined Paulian action and 247action broughtby thedecree-holder in Court of Requests, Kurunegaia,No. 1,634, is to make the one-fourth share available in executionto the plaintiff in the action. It has been decreed void, but, as hasbeen pointed out, void as against the creditors only. It cannotrevest title in Tennekoon Banda so as to enable him to alienate itto the prejudice of Ran Banda, and there is the further consider-ation that Ran Banda was up to the time of the action at anyrate a minor.
There is another Circumstance which must not be lost sight of,and that is that the added defendant, whose one-four.th share underthe same deed D5 was not affected by the decree., has taken anassignment of the decree-holder’s rights by D3 of August 3, 1926,and may yet execute it and sell the interests of Ran Banda. But sofar as this action is concerned, the plaintiff is seeking to vindicatetitle to a one-fourth share which belonged to Ran Banda and whichhe claims as having revested in Tennekoon Banda as a result of thedecree in Court of Requests, Kurunegaia, No. 1,634. This is amatter which ean be considered to any useful purpose only in anaction to which Ran Banda is a party.
The first defendant is a nominal party to these proceedingsbecause his half share is admitted by all parties. The one-fourthshare of Ran Banda which the appellant claims is not claimed bythe added defendant, and the learned Judge did rightly indismissing the action with costs.
PUNCHI BANDA v. PERERA et al