039-NLR-NLR-V-10-LOUIS-APPUHAMI-V.-PUNCHI-BABA.pdf
( 196 )
1904.
November 29.
Present: Sir Charles Peter Bayard, Chief Justice, andMr. Justice Moncreiff.■
LOUIS APPUHAMI v. PUNCHI BABA.
C., Matara, 3,206.
Partition suit—Decree for . sale—Mortgage after such decree and beforecertificate—Validity—Mortgage of share that may be allotted tn thepartitionsuit—Conclusive order—OrdinanceNo.7 of 1887.
A saleor mortgage executed duringthependencyofa-,'artition
of Ordinance No. 10 of 1863 (Partition Ordinance), but before the
certificate of sale is signed by the judge, is valid.
A saleor mortgage executed duringthependencyofapartition
suit in respect of a share or interest, to which a person may become
entitled after the termination of suchsuit, is valid, andis not
affected by section 17 of Ordinance No. 10 of 1863.
« . <
A
PPEAL from a judgment of the District Judge of Slatara; The
facts sufficiently appear in the judgment of Layard C.J.
Sampayo, K.C., for the plaintiff, appellant;
4<4
Van Langenberg, for the defendant, respondent.
Cur. adv. vult.
( 197 )
29th November, 1904. Layard C.J.—
The plaintiff in this case sought to enforce a mortgage given to himin respect of a divided portion of land which was a part of a largerland, the subject of a partition action in another suit. The mort-gage was executed undoubtedly after the institution of that partitionaction and after the decree for sale made in that suit under theprovisions of the Partition Ordinance, No. 10 of 1863; the certificateof sale of the land, however, was not signed by the District Judgeuntil the 28th April, 1897, long subsequent to the decree for sale.The District Judge has rightly in this case held himself to be boundby the judgment of this Court in the Court of Requests, Matara,case No. 622, in which Mr. Justice Lawrie held in appeal that theissue of the certificate of sale marked the termination of proceedingsin a partition suit where the land is sold, his attention not- havingbeen drawn to the later decision of this Court, which is unreported.
The following opinion is the one arrived at by me independentlyof the later decision. The provisions of section 9 of Ordinance No.10 of 1863 provide that the decree for a partition or sale, given asthereinbefore in the Ordinance provided, shall be good and conclu-sive as against all persons whomsoever, whatever right or title theymay have, and shall be good and sufficient evidence of such partitionand sale and of the title of the parties to such share or interest-ashas been thereby awarded in severalty. This Court has repeatedlyheld that a decree for a partition therein referred to is a final decreeentered for a partition. Mr. Justice Lawrie, in the judgment referredto by the District Judge, slants to have thought that from analogythe certificate of sale must be treated for the purposes of that sectionas a <iecree *for a sale. I cannot see that any analogy can be drawnfrom the decisions of this- Court that the decree for partition for thepurposes of that section is a final decree, for the certificate underthe hand of the Judge that a property has been sold under the orderof the Court is declared by section 8 of the Ordinance to be merelyevidence of the purchaser's title, without any deed or transfer fromthe former owner. The certificate of sale is good for that purpose,but the Ordinance nowhere provides that the certificate of sale isto be treated as a decree. A certificate and a decree are *two entirelydifferent things, and the difference in this particular Ordinance is- emphasized by the fact that the certificate cannot issue until therehas been a decree for sale, and something more than a decree untilthere has been a sale of the land under that decree. I think, there-fore, that ‘'the District Judge was wrong in holding that in viewof the decision of Mr. Justice Lawrie, following the judgmentin Browne's Reports, IIL, page 200,;that the mortgage ip this casewas invalid. I am justified in my opinion by the judgments ofWendt J. and Sampayo J. in the unreported case mentioned above/
1 59 D.C., Interlocutory, Colombo, 11,747; S. C. Min., August 4, 1904,
1904.
November 29
( 198 )
1904. two Judges whose judgments are entitled to much weight owing toNovember 29.. their great local experience. Respondent’s counsel has invited myLavabd C.J. attention to section 17, and has very fairly pointed out to the Courtthat the sales of properties to which that section is obnoxious are salesof undivided shares or interests in land, the subject of a partitionaction. I do not think that that section was intended to embrace oraffect or to hinder or prevent persons from alienating or mortgagingthe right to which they might become entitled after a partition hadbeen decreed in respect of the land, the subject of a partition suit towhich they were parties. Such a sale or mortgage executed duringthe pendency of a partition suit in respect of a share or interest, towhich a person may become entitled after the' partition suit hasterminated, appears to me not affected by section 17. The purchaser *and mortgagee, however, could probably not interfere with theadjustment of the expenses and costs incurred in respect of thepartition of the land, and it may be, and probably is, that the sale ormortgage in his favour would not entitle him to any interest sold ormortgaged until the expenses of th© partition proceedings had beenpaid.
The appellant’s appeal must succeed, and the case be remitted tothe District Court for further hearing. The appellant is entitled tothe costs of this appeal.
Moncreiff J.—
I agree with the Chief Justice in thinking that tbe Judge is wrongin considering that the plaintiff’s mortgage fell within section 17 ofthe Partition Ordinance.«
Appeal allowed