047-NLR-NLR-V-10-SAPARAMADU-v.-SAPARAMADU-et-al.pdf
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Present: Mr. Justice Middleton and Mr. Justice Grenier.1907.
June 26*
SAPABAMADU v. 8APABAMADU et al.
D. C. Negombo, 5,709.
Partitionsuit—Fiscal'ssale pending partitionsuit—Validity—Saleby
purchaser—Invalidity—Alienation by owner not party to the svttr—
Substitution—Ordinance No. 10 of 1863, s. 17.
Where pending a partition suit the plaintiff’s share was sold bythe fiscal, and the purchaser at such sale, who was not madea party to the suit, sold it to a third party—
Held, that the sale by the purchaser to such third party wasvoid under section 17 of Ordinance No. 10 of 1863, notwithstand-ing that such purchaser was not a party to the suit, and that hewas not entitled to maintain the action as substituted plaintiff.
Held, also, that the Fiscal's purchaser may be substituted asplaintiff and the action proceeded with.
S
UIT for partition. The plaintiff alleged that Harmanis Sappa-ramadu and his wife were the original owners of the land
sought to be partitioned, and that they died about twenty-fiveyears ago, leaving as their heirs five children, and also leaving anestate under Bs. 1,000 in value. The children were (1) Louis, (2)
Pelis, (3) Joranis, {4) Jusiappu, and (5) Marihamy, each of whombecame entitled to an undivided one-fifth share. Jusiappu diedunmarried and without issue, and each of the other childreninherited in undivided one-twentieth share from him. Thehusband of Marihamy (Poaris), after her death and the deathof their child, sold one-fifth share to Pelis, reserving to himselfone-twentieth. Pelis died leaving him surviving his widow, theoriginal plaintiff, and an only child, Sutogis. The plaintiff claimeda partition of the land in the following shares:—
Plaintiff………0/20
First defendant (Louis)……it5/20
Second defendant (Joranis)……5/20
Third defendant (Paaris)…….1/20
After inquiry an interlocutory decree was entered and a com-mission was issued on 24th February, 1905, to partition the landin the above proportion. Before the scheme of partition wasconfirmed and final decree entered, to wit, on 21st September, 1906,one Don Charles Saparamadu Appuhamy made an application tobe added as a party to the suit, alleging that under writ of executionissued in case No. 5,644 of the District Court of Negombo agaiqstthe estate of the late Pelis and against the first defendant theirinterests were sold by the Fiscal and purchased by pne J. H. W.
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1907. Karunaratne on the 27th July, 1905 (Fiscal's transfer dated 28thJune 36. May, 1906), who sold it to the said Charles Saparamado Appuhamyby deed No. 4,262 dated 9th July, 1906. Charles SaparamaduAppuhamy was added as a party on 8th October, 1906, afternotice to the parties, and was substituted as plaintiff on 14thNovember, 1906. On 15th November, 1906, the District Judge(A. de A. Seneviratne, Esq.) dismissed the action, holding that thedeed in favour of Charles Saparamadu Appuhamy, the substitutedplaintiff, was void under section 17 of Ordinance Nc*. .10 of 1868.
The substituted plaintiff appealed.
H. J. C. Pereira, for appellant.
Sampayo, K.C., for respondent.
Cur. adv. vult.
26th June,. 1907. Grenier A.J.—
This is a partition action. The plaintiff alleged that HarmanisSaparamadu and his wife were the original owners of the landsought to be partitioned, and that they died about twenty-fiveyears ago, leaving five children and an estate under the value ofRs. 1,000. The children were (1) Louis, (2) Pelis, (3) Joranis,
Jusiappu, (5) Marihainy, who each became entitled to one–fifth share. Jusiappu died unmarried and issueless, and hisshare devolved on the survivors, each getting an additional one-twentieth. The husband of Marihainy, on her death and thedeath of their child, sold one-fifth to Paaris, reserving to himselfthe one-twentieth which came to him through Jusiappu. Pelisdied leaving him surviving his widow, the plaintiff, and an onlychild, Sutegis. The plaintiff being the administratrix of the estateof Paaris, the plaintiff claimed to be entitled to nine-twentieths,allotting to first defendant Louis five-twentieths, to seconddefendant Joranis five-twentieths, and third defendant Paarisone-twentieth.
The first defendant alone filed a statement of claim, and he prayedfor a declaration of title to a four-fifteenth share of the land andhouse standing on it, and for compensation in respect of a plantationthat he had made of 90 coconut trees, valuing the improvementsat Rs. 150. The case appears to have been heard ex parte, andafter the examination of the plaintiff, the District Judge enteredan interlocutory decree for partition, allotting the..shares as follows:Plaintiff, nine-twentieths; Louis, five-twentieths; Joranis, five-twentieths; third defendant, one-twentieth; and a, commissionwas issued to Mr. Tissera to. partition the land accordingly. <Thiswas on thfe 24th February, 1905. Before the partition was con-firmed by the Court and final decree entered, the reason for thedelay not being quite clear, one Don Charles Saparamadu Appu-hamy, who was subsequently substituted as plaintiff, came into .
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the case, alleging that on a writ of execution against the originalplaintiff as administratrix of the estate of Paaris and the first•defendant personally their eleven-fifteenth shares were sold andpurchased by one Karunaratne, who had sold the same to him.The Court, by its order dated the 14th November, 1906, substitutedDon Charles Saparamadu Appuhamy as plaintiff in the room of theoriginal plaintiff, who admitted that her interests had passed tohim. On the some day the order of substitution was made therewas a discussion in the Court below in regard to the right of DonCharles Saparamadu Appuhamy to be substituted plaintiff, as theconveyance to him by Karunaratne was one made during the pen-dency of the partition proceedings. The District Judge decided thatthe sale by Karunaratne was void. On a true construction of section17 of the Partition Ordinance, No. 10 of 1868, the District Judgewas right in so deciding. This Court has held that a forced aliena-tion, such as takes place when the Fiscal sells by virtue of a writin his hand, is not obnoxious to the provisions contained in section17. The sale is good and passes title, and the purchaser ife atliberty to take the place of the execution-debtor in the partitioncase. See Perera v. Perera.1'
This Court has also held—see Annamalay Pillai v. Perera2—that a sale in the circumstances in which the substituted plaintiffpurchased is absolutely void, and not voidable only, that is to saythat the purchaser from a person who has bought at a Fiscal’s saleany interest ia the land which is the subject of partition derivesno title whatever by his • purchase. All the previous decisionswere reviewed in the case of Annamalay Pillai v. Perera92 and, inmy opinions the construction placed by Moncreiff and MiddletonJJ. on section 17, in view of the language employed in it, waseminently correct. In Dewar Umma v. Ismail Marikar2 WoodKenton J. has construed section 17 in the same way in whicb itwas construed in Annamalay v. Perera2 by a majority of the Court.The limitation placed by Clarence and. Dias JJ. on the words“ any owner ” in section 17 is not justified, because it will result*in introducing into the enactment certain words of qualificationrepugnant to the plain intention of the Legislature, whicb was toexpedite and make easy the settlement of land disputes by meansof partition actions. I would, therefore, hold that the sale tosubstituted plaintiff by Karunaratne, although Karunaratne wasso party to the action, was absolutely void, because it was a saleby the owner of certain shares pending partition proceedings.
The District Judge was, however, wrong in dismissing the action.The appellant’s conveyance having been held to be void, it wasopen to the District Judge, considering that this was a partitionaction, to strike his name out, and order that Karunaratne be made
J (1906) 9 Ns L. R. 217.2 (1902) 6 N. L. R. 108; *3 Browne 200*
3 (1906) 3' Balasingham 99.
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a party in the place of the original plaintiff, re-apportioning the-shares by allotting to Karunaratne the eleven-fifteenths he had pur*chased which belonged to the original plaintiff and first defendant,and then entering a fresh interlocutory decree on that footing.
Although the original plaintiff has admitted that her interests-have passed to Karunaratne, the District Judge will hold an inquiryinto his title as derived both from her and the first defendantas a precautionary measure. .The decree appealed from dismissing-the action will therefore be set aside, and the case sent back for thepurposes I have already indicated. There will be no costs of thisappeal.
Middleton J.—
I agree in the order proposed by my brother Grenier.
In Baban v. Amerasinghe1 Phear C.J. laid it down that analienation pending partition proceedings must be treated as voidas against those proceedings, but good aliunde.
In De Silva v. Catalinai 2 * Clarence and Dias JJ. limited theprohibition- in section 17 of the Partition Ordinance to owners whowere parties to the proceedings, and followed the ruling in Baban v.Amerasinghe1 and Qunawardene v. De Livera.*
In Wijeyewardena• v. Seetalahamy4 Lawrie J. and Browne J.followed the ruling in De Silva u. Garlina* when Lawrie J.expressed bis disapproval of it.
In Annamalay Pillai v. Perera5 my' brother Moncreiff andmyself held as members of the Full* Court-^my brother Wendt■dissenting—that a sale of property the subject of a partition actionpending the partition proceedings was absolutely * void undersection 17 of the Partition Ordinance.
In Perera v. Perera6 the Full Court, including my brothersWendt and Wood Benton and myself, held that a sale by the Fiscalof property the subject of a partition action was not within theterms of section 17.
The decisions of these Full Courts are unquestionably bindingon us, and I therefore agree that the sale- by Karunaratne to thesubstituted-plaintiff must be held to be void, and the decision of theDistrict Judge affirmed on that point.
Appeal dismissed.
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i (1878)18.C.C.24.4(1900)5N.L.H.190.
** (1881)98.C.C.141.?(1902)6N.L.B.108.
a (1881)4S.C.C.53.•(1908)9N.L.B.217.