075-NLR-NLR-V-67-S.-B.-D.-T.-KARUNARATEN-and-others-Appellants-and-H.-T.-.S-PERERA-and-others-.pdf
i 965Present: Sansoni, C.J., and Manicavasagar, J.
S. B. D. T. KARUNARATNE and others, Appellants, andH. T. S. PERERA and others, Respondents
8. C. 114163 (Inty)—D. G. Gampaha, 9128jP
Partition action—Donation by a co-owner, pending action, of the shares to which he willbe declared entitled—Rights of donee—Partition Act, s. 48.
Where, pending a partition action, a co-owner gifts to certain persons theshares to which he will be declared entitled in the action, the interests which areallotted in that action to the donor pass automatically to the donees when thefinal decree is entered. It is not necessary that the interests which the doneesobtained on the deed of gift should be expressly conserved to them in the finaldecreo, oven though they intervened in the action.
./.PPEAL from all order of the District Court, Gampaha.
W.D. Gunasekera, with N. S. A. GoonetiUeke, for 2nd, 4th and 5thdefendants- appellants.
N.E. Weerasooria (Jnr.), with It. D. C. tie Silva, for plaintiffs-respondents.
September 14, 1965. Sansoni, C.J.—
The contest in this case was between the plaintiffs on the one hand andthe second, fourth and fifth defendants on the other.
The contesting defendants claimed the entire lot which had been allottedto the heirs of one Peries Perera in an earlier partition action. Their claimwas based upon two deeds 2D1 and 2D2 executed by Peries Perera pendingthat earlier action. By those deeds, Peries Perera gifted to them the sharesto which he would be declared entitled in that partition action. They,therefore, claimed that the interests which were allotted in that action tothe heirs of Peries Perera (who had meanwhile died) automatically passedto them under those deeds when the final decree was entered.
Their argument is sound and has the support of the decisions in Sirisomav. Sarnelis Appuhamy1 and Sittie Fernando v. Silman Fernando 2. ButMr. Weerasooria argued that under the new Partition Act the interestswhich the contesting defendants obtained on those two deeds were wipedout by the final decree because they had not been conserved to them inthat decree.
We are'unable to accept this submission, because we take the view thatt he interests referred to in section 48 of the Partition Act are interestswhich are presently vested in the grantee, and do not include interestswhich have not already vested even in the grantor. We see no differencein this respect between the provisions of the old Partition Ordinance andthe new Partition Act.
'1 {1950)61 N. h. R. A3&* {1962) 64 L. R. 404
LXVH—232—R. 0804—1,365 (10 /9S'
It was pointed out that the contesting defendants had intervened inthe earlier action but had not been allotted any interests. Obviously thiswas because they had no interests which had vested in them at that time,since interests would only have vested in them upon the passing of thefinal decree in favour of Peries Perera or his heirs.
We therefore set aside the decree under appeal and dismiss the plaintiff’saction with costs in both Courts.
Appeal allowed.
Manic av as agar, J.—I agree.