PT7XJUH, J.—Seelawathie Per era v. Don Peter
3959Present: Basnayake, C.J., and Pnlle, J.
SEELAWATHIE PERERA, Appellant, and K. K. DONPETER et aL, Respondents
8. G. 661—D. G. GolomJbo, 473jZ
Partition Ordinance (Cap. 56)—Section 17—Transfer of a divided portion after finaldecree of partition and pending appeal—Validity.
Action under a. 247 of Civil Procedure Code—Plea of forgery—Discretion of Courtto refer that issue to a separate action.
Where a party who has been allotted a divided portion in, the final decree of apartition action transfers that portion during the pendency of an appeal againstthe final decree, there is nothing in section 17 of the Partition Ordinance torender the transfer void.
Where, in an action instituted by a judgment-creditor under section 247 of theCivil Procedure Code, the judgment debtor pleads that the deed alleged to havebeen executed by him in favour of the claimant was a forgery, the Court mayrefer the issue of forgery to a separate action.
-j^^-PPEAL from a judgment of the District Court, Colombo.
W. Jayewardene, Q.G., with E. 8. Dassanayake and G. P. Fernando,■for Plamtifs-AppeUants.
Sir Lolita Rajapakse, Q.G., with G. R. Gooneratne, for 1st and 2nd
Cur. adv. vult.
June 12,1959. Ppt.t/b, J.—
The appellant is the plaintiff in an action filed by her under section 247of the Civil Procedure Code on 2nd July, 1954, to have it declared thata deed No. 175 dated 28th- August, 1953, was null and void as being inbrand of creditors and that the premises conveyed thereby to the 1st and2nd defendants by one Seekuge Sirisena tdias James Perera was liable■to be sold in execution of a decree in her favour against James Pererain D.C. Colombo Case No. 19,369/M. On a point taken by the 1st and2nd defendants in their answer that James Perera was a necessary partyhe was made the 3rd defendant in the present action. By his answerthe 3rd defendant-pleaded, inter alia, that deed No. 175 was a forgery andprayed that it he declared null and void.
The premises which the plaintiff sought to seize and sell is depictedas lot 1 on plan No. 4,886A dated 7th March, 195.1, made in partitionaction No. 5,320. By the final decree dated 10th October, 1951, the3rd defendant was declared entitled to Lot 1 in that plan. An appealby him in the partition action was dismissed on 16th March, 1954.
At the trial learned counsel for the plaintiff raised the following issues:—
Was deed No. 175 executed in fraud of creditors ?
2. Was the deed executed in fraud during the pendency of partitionaction No. 5,320, and if so, whether it was void ?
D efendants- Resp ondents
PTJLXiE, J.—Seelawathie Per era v. Don Peter
The issue suggested on behalf of the 3rd defendant reads, “ Was thesaid deed No. 175 executed by the 3rd defendant or is the said deed a-forgery % *
The allegation of forgery-was made only by-the 3rd defendant and,in effect, he counterclaimed against the 2nd and 3rd defendants a decla-ration that the deed was null and void. The learned trial Judge wasof the opinion that it would be inconvenient to try in an action undersection 247 of the Civil Procedure Code an issue of forgery, arising onlyas between the judgment debtor and the successful claimants, andreferred the parties to a separate action on that issue. One of the pointsstressed in this appeal on behalf of the plaintiff is that the learned Judgeshould have himself tried the issue of forgery instead of referring the3rd defendant to a separate suit.
The action, D.C. Colombo No. 19,369/M, in which the executionproceedings were taken, was filed on 3rd May, 1948, and decree wasentered on 29th September, 1954. Apparently prior to this decree the3rd defendant had been ordered to pay Its. 566/88 to the plaintiff andfor the purpose of recovering this amount she caused the premises insuit to be seized on 6th February, 1954. A claim by the 1st and 2nddefendants that they were in possession of the premises as owners underdeed No. 175 of 28th August, 1953, was upheld on 24th June, 1954, and thepresent action was filed, as stated before, under the provisions of section247 of the Code on 2nd July, 1954. The second point urged both inappeal and in the District Court was that deed No. 175 was void becauseit was executed pending the action No. 5,320 instituted on 26th* April,1948, to partition a property of which the premises in suit formed a part.In this action interlocutory decree was entered on 3rd October, 1950,and the final decree by which the 3rd defendant was allotted the premisesseized was entered on 10th October, 1951. It is contended that until theappeal from .the final decree was disposed of on 16th March, 1954, section17 of the Partition Ordinance was a bar to the 3rd defendant executinga valid conveyance of the lot allotted to him in the final decree. Thissubmission was not accepted.
On the issue of fraudulent alienation the learned trial Judge has in acarefully considered judgment given convincing reasons for holding againstthe plaintiff and we see no reason for disturbing his findings. Thereremain, therefore, for consideration only the submissions that thereference of the issue of forgery, raised by the 3rd defendant, for decisionin a separate action should not have been made and that section 17 of thePartition Ordinance rendered deed No. 175 void.
The plaintiff instituted the action not on the basis that there was no.alienation of the premises seized but that deed No. 175 was liable to beset aside as being in fraud of creditors and that it-was further void byreason of section 17 of the Partition Ordinance.
The issues suggested on behalf of the plaintiff who was seeking relief
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PTJXXlE, J—Seelawathie Perera v. Don Peter
The 3rd defendant sought no relief against the plaintiff. If the-plaintiff desired to rely on a third ground for attaoldng the deed the-proper course was to move the Court to amend the plaint in order tobring out clearly the new matter in issue. It is not unlikely that theplaintiff thought it wiser to restrict herself to the two issues suggestedon her behalf because prior to the execution of deed No. 175 the 3rddefendant had on 4th May, 1950, 1D2, agreed to sell to the 1st and 2nddefendants the divided interests that would be allotted to him by thefinal decree in partition action No. 5,320' and that after the date ofexecution of deed No. 175 the 1st and 2nd defendants had by deed 1D4 of7th January, 1954, leased a house standing on the premises for a.period of five years. In point of fact the consideration for the sale in1953 had already been paid at the execution of the agreement to sell in1950. A powerful circumstance of this nature might have deterred theplaintiff from raising an issue which might have involved her in heavycosts if the deed was eventually found to have been executed by the3rd defendant. There was also the additional circumstance that at thenlaim inquiry following on the seizure the Judge had come to a clearfinding of possession in favour of the 1st and 2nd defendants. The'prayer of the 3rd defendant in effect sought a declaration against the1st and 2nd defendants that he was the owner of the premises. In thisstate of affairs I am of opinion that it was within the discretion of thecourt to order what was an action within an action to be tried separatelyand not to enlarge the scope of the trial beyond the limits desired by theplaintiff who set the machinery of the court in motion to obtain reliefonly for herself and not relief for a third party whom she did not evenmake, in the first instance, a defendant. The plaintiff came to courton the basis that there was in faot a conveyance of the premises by the3rd defendant and it is not open to her now to complain that the trialJudge tied her down to that position. The 1st and 2nd defendantsfiled three answers in all of which it was alleged that the vendor on deedNo. 175, who is the brother of the plaintiff, “ was making an endeavourto help his sister by denying the execution ” of the deed. Throughoutthe course of the pleadings no effort was made by the plaintiff to makecommon cause with her brother by alleging that the 1st and 2nddefendants were parties to a forgery. It cannot be said that the orderof the learned Judge has caused irremediable harm to the plaintiff for,in the event of the 3rd defendant succeeding in proving forgery in aseparate action, the premises will be available to the plaintiff to levyexecution on.
On the second point the learned Judge held that there was nothingin section 17 of the Partition Ordinance to render deed No. 175 void.He is clearly right. It cannot be said by any stretch of language thatthe 3rd defendant by deed No. 175 alienated his undivided share orinterests in the land sought to be partitioned in case No. 5,320. Hisundivided interests came to an end with the final decree entered two yearsearlier. He then became the owner of a new entity which he conveyedand the fact that an appeal was pending could not, in the absence ofexpress provision to the contrary, prevent him from disposing of what
BA SNA "STAKE1, C.J.—Talctyaroint v. Talayaratne
was allotted to him. The purchasers took the risk of the final deeree"being set aside and this risk was no more than that taken by any purchaserwhose vendor’s title would be open to attack. Had the final decree beenset aside in appeal the deed would have been inoperative to- convey titlenot because of the prohibition against alienation in section i7 but byreason of the foundation of the vendor’s title being destroyed. Thelearned Judge has given other reasons for holding against the plaintiff’s-contention which I need not elaborate.
In my opinion the appeal fails and should be dismissed with costs.Basnayakb, C.J.—I agree.
SEELAWATHIE PERERA, Appellant, and , K. K. DON PETER et al , Respondent