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Present: Dalton J. and Jayewardene A.J.
RAJAPAKSE v. DASSANAYAKE.
99—D. C. Galle, 24,734.
Partition—Sale after preliminary decree—Undivided interest—Pendingaction—Ordinance No. 14 of 1863, s. 17.
Where a deed was executed, pending a partition action for th»9conveyance of property described in the following terms:—
All that undivided part of the soil of the land called EudaWelikada Watte consisting of lots A, B, C, and D as perplanfiled in partition caseNo.18,633 . . . •
being all the interests the above-named vendors weredecreed entitled to in the preliminary decree, entered in thepartition case, or whatever lot or interests the vendorwill be allowed in the final decree in the above-namedpartition case
And where the deed contained a convenant to execute any furtherdeed or actfor moreeffectuallyassuring thepremises to the
Held, that the deed was not obnoxious to the provisions cisection 17 of the Partition Ordinance.
^ PPEAIi from a judgment of the District Judge of Galle.
L. A. Rajapakse, for 1st defendant, appellant.
N. E. Weerasooriya, for plaintiff, respondent.
July 17, 1928. Dalton J.—
The question for decision in this case was whether the deed 2 D1is void as being obnoxious to the provisions of section 17 of thePartition Ordinance. The trial Judge found it was not, and fromthat conclusion the 1st defendant appeals.
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Plaintiff claimed possession and damages from the 1st defendantunder the following circumstances. 2nd defendant was joined towarrant and defend his title as against the 1st defendant. Plaintiffleased lots 9 and 11 of the land in question from the 2nd defendant.The 2nd defendant had purchased all the interest of the 1st defendantin the lots in question by the deed 2 D1 of January 15, 1926. 1stdefendant now disputed the right of the 2nd defendant to. executethe deed of lease and was forcibly in possession of the lots.
The 1st defendant pleaded that the deed 2 D1 was bad as beingexecuted pending partition proceedings and conveyed no title.The evidence discloses that, having conveyed his interests to the2nd defendant, he thereafter conveyed the lots to his wife and sheto a third party.
It is agreed that the deed was executed during the pendency ofthe partition action No. 18,638. It purports to sell, assign, transferover, and assure to the vendee the premises described in the schedule,and to warrant and defend the same to the vendee. The propertyset out in the schedule was described as follows: —
All that undivided 3,600/9,600 part of the soil …. ofthe land called Kuda Welikada Watte consisting of lotsA, B, C, and D as per plan No.. 166 made by H. B. Goone-wardene, Licensed Surveyor, and filed in partition caseNo. 18,633 of the District Court of Galle, together withhouses Nos. 1, 2, 3, and 4 standing thereon being all theinterests above-named vendors were decreed entitled toin the preliminary decree entered in said partition case, orwhatever lot or lots and interest the above-named vendorswill be allowed in the final decree in the above-named casein lieu of his above recited undivided interests ….
There was in addition a covenant to execute at the cost of thevendee any further deed or act for the better and more effectuallyassuring the premises to the vendee.
The trial Judge was of opinion that in so far as this deed purportedto convey undivided interests, it was bad, but it was in effect atransfer to the 2nd defendant of the rights to which the 1st defendantmight subsequently be declared entitled by the final decree. Thejudgment goes on to point out that the lots in dispute were in factallotted to the 1st defendant by the final decree.
No question has been raised on this appeal as to where the title isnow or as to the rights of the 2nd defendant against the 1st defendantunder the deed. The only question we are asked to decide iswhether the deed is bad. I am unable to differentiate this caseon essentials from the case of Hewavrasan v. Ounasekata.1 It is true
1 28 N. L. R. 88.
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that the transaction in the latter case was contained in two docu-ments both executed on the same date, whereas here the wholetransaction is contained in 2 Dl, but that is npt a variation whichis material so far as the application oi section 17 of the PartitionOrdinance is concerned. That decision is binding upon this Court.
It has been urged that the deed is nothing but an agreementto' sell and that, following Fernando v. Atukorale,1 therefore did notconvey any interest to the vendee. The trial Judge has sought todistinguish that case from this on the facts. I am satisfied that hisinterpretation of the deed is correct, that it is not an agreement tosell. The right of a person to charge or dispose of his interests in aproperty subject to a partition suit by expressly charging or dispos-ing of the interest ultimately to be allotted to them is olearlyrecognized in the Full Court decision of Khan Bhai v. Pereta *
For ilie reasons set out there I have come to the conclusion thatthe deed is not obnoxious to the provisions of section 17 of thePartition 'Ordinance.
The appeal must therefore be dismissed, with costs.
Jayewaedene A.J.—I agree.