104-NLR-NLR-V-16-SUBASERIS-v.-PROLIS.pdf
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Present: Wood Renton A.C.J. .
SUBASERIS t?. PROLIS.
221—G. R. Tangalla, 7,060.Sale pending partition action—Sale of share which would be allotted underfinal decree—Is sale valid ?
A sale by a party to a partition action after interlocutory decreeand before final decree “ of all the advantages or disadvantages,such as costs, &e., and also the share which he would be entitledto either in common or partition ” by virtue of the decree in thepartition action, was held to be valid, and not obnoxious to section17 of the Partition Ordinance.
'J'HE facts appear from the judgment.
H. A. Jayewardene, for the plaintiff, appellant.—The sale byDineshamy to the plaintiff is not repugnant to section 17 ofthe Partition Ordinance, as only the share which Dineshamywould be declared entitled to under the final decree was sold. Itwas held in Louis Appuhamy v. Punchi Baba 1 that a sale ormortgage executed during the pendency of a partition suit in respectof a share or interest to which a person may become entitledafter the termination of such suit is valid, and is not affectedby section 17.
Balasingham, for the defendant, respondent.—The mortgage inquestion in the case of Louis Appuhamy v. Punchi Baba 1 wasexecuted after the decree to sell was entered and before the certificateof sale was granted by the Judge. The Supreme Court very rightlyheld there that a mortgage after the decree for sale was valid. Thecertificate of sale granted by a Judge in the case of a sale cannot beconsidered a “ final decree ” as one entered under section 9. Theopinion of Sir Charles Layard C.J. that a sale executed during thependency of the partition suit in respect of a ‘share to which a• person may become entitled is valid, is merely an obiter dictum.The case was decided on other grounds.
It was. held by the Pull Court in Armamalaipillai v. Perera 2that a sale during the pendency of a partition suit is absolutelyvoid. It would be anomalous if the binding effect of that decisioncould be got over by adopting a paraphrase of the word “ sale.”Where a party to a partition case sells his undivided share, he onlysells what would be allotted to him under the final decree. A sale bya party to a suit during the pendency of even an action rei vindicatio
i (1904) 10 N. L. R. 196.2 (1902) 6 N. L. R. 108.
1913.
1913.
Suboseria
Pfolia
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cannot give the vendee anything more or less than what the Courtv gives the vendor* Parties should not be allowed to evade theprovisions of section 17 in this manner.
H. A. Juyewardene, in reply.
Cur. adv. vult.
July 11, 1913. Wood Renton A.C.J.—-
This is an action under section 247 of the Civil Procedure Code,in which the plaintiff claims that a certain land, seized by thedefendant as the execution-creditor of one Dineshamy as hisproperty, should be released. The land in question formed thesubject of a partition action, and was allotted to Dineshamy bythe decree in that action. Prior to the final decree, althoughsubsequent to the interlocutory decree, however, Dineshamy hadassigned to the plaintiff “ all the advantages or disadvantages,such as costs, &c., and also the share which he would be entitledto either in common or partition,’* by virtue of the decree in thepartition action. The final decree did in fact allot to Dineshamythe divided share which he had previously transferred to theplaintiff. The decision in this case depends on the question whetherthat transfer, made as it was before the final decree in the partitionaction, is void in consequence of the provisions of section 17 ofOrdinance No. 10 of 1863. The learned Commissioner of Requestshas answered this question in the affirmative, and has dismissedthe plaintiff’s action with costs. In my opinion it should havebeen answered in the negative, and the plaintiff is entitled to succeed.It must be remembered that section 17 of the Partition Ordinanceimposes a fetter on the free alienation of property, and the Courtsought to see that that fetter is not made more comprehensive thanthe language and the intention of the section require. The sectionitself prohibits only, in terms, the alienation of undivided sharesor interests in property which is the subject of partition proceedingswhile these proceedings are still pending, and the clear object ofthe enactment was to prevent the trial of partition actions frombeing delayed by the intervention of fresh parties whose interestshad been created since the proceedings began. Such a transferas we have to deal with in the present case is not touched either bythe language or by the spirit of section 17 of Ordinance No. 10 of1863. I have so far considered the question solely as one of theinterpretation of the meaning of the Legislature. But the pointis not devoid of authority. There is no decision which directlysupports the conclusion at which the learned Commissioner ofRequests has arrived. Section 17, as we all know, has given riseto considerable discussion and difference of judicial opinion inregard to the questions whether an alienation effected in contraven-tion of its prohibition is void or merely voidable (see: Anamalay v.
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Suppremaniam Chetty1), and whether it contemplated only voluntaryalienations or extended also to alienations by the act of the law.But there is no authority that I am aware of to the effect that aparty to an aotion of this character oannot deal by anticipationwith whatever divided interest he may ultimately obtain. Onthe contrary, there is a strong diotum by Sir Charles Layard C.J.,in the case of Louis Appuhamy v. Punchi Baba,9 to the effect thata sale or mortgage executed during the pendency of a partitionsuit, in respect of a share or interest to which a person may becomeentitled after the termination of such suit,, is valid, and is not affectedby the section in question. There is, moreover, a decision byMr. Justice Wendt and Mr. Justice de Sampayd in Abdul Ally v.Kelaart 3 in which a conveyance, pending a partition action, of theproceeds of the sale of property which the transferor might bedecreed in that action, was expressly held to be valid. Consideringthe case on the ground both of principle and of authority, I holdthat this appeal is entitled to succeed. I set aside the decree of theCommissioner of Bequests, and direct that judgment be enteredin favour of the appellant with the costs of the action and of theappeal.
ISIS.
WoodBentonA. C. J.
Subaseris
Prolis
Set aside.