072-NLR-NLR-V-39-SALEE-et-al.-v.-NATCHIA-et-al.pdf
FERNANDO A.J.—Salee v. Natchia.
259
1936Present: Moseley J. and Fernando A.J.
SALEE et al. v. NATCHIA et al.' _
175—D. C. Kalutara, 14,337.
Partition—Transfer of shares pending partition—Shares to be awarded inpartition case or of amount realized by sale of property—Validity of sale—Ordinance No. 10 of 1863, s. 17.
Where the interests in a land in respect of which a partition actionwas pending were transferred in the following terms :
“ We do hereby sell and transfer all that right and title described inthe schedule belonging to us or the shares of the said propertyto be awarded by . the decision arranged in partition caseNo. 5,303 now pending or the shares of the amount that willbe realized by the sale of the said property.”—
Held,, that the transfer was not obnoxious to section 17 of thePartition Ordinance.
Hewawasan v. Gunasekere (.28 N. L. R. 33) followed.
^ PPEAL from a judgment of the District Judge of Kalutara.
Weerasooria (with him T. S. Fernando), for 11th to 11d defendants,appellants.
Haniffa, for 3rd and 13th defendants, respondents.
Cur. adv. vult.
November 9, 1936. Fernando A.J.—
This is a partition action, and the main question that arises on thisappeal is whether the deed of transfer 11 D 11 was inoperative in view ofsection 17 of Ordinance No. 10 of 1863. It is common ground that D. C.-5,303 was a partition action for a land of which the lot now in disputeformed a portion, and that the plaint in that action was filed on May 21,1913, and final decree was entered on November 2, 1914. Deed 11 D 11is dated June 4, 1914, and was therefore clearly executed before thefinal decree.
260
FERNANDO AJ.—Salee v. Natchia.
The learned District Judge states that deed 11 D 11 deals withundivided interests and .for this reason he appears to have come to theconclusion that that deed was inoperative. The deed, however, is inthese terms: “ We …. do hereby sell and transfer all thatright and title described in the schedule belonging to us, or the sharesof the said property to be awarded by the decision arranged in partitioncase No. 5,303 now pending, or the shares of the amount that will berealized by the sale of the said property ”. Now the question whethera deed of this kind is valid in view of section 17, and if valid .what effectsuch deed has, have been considered in a series of judgments of thisCourt. In Abdul Ally v. Kelaart1 Wendt J. held that a deed by whichthe vendor purported to sell and convey his undivided share of a property,which was the subject of a partition action where the deed furtherprovided that if in the partition action the property shall be sold in itsentirety and converted into money the vendor shall be entitled to takeand receive to his own use so much of the proceeds realized by such saleas shall represent his undivided share sold, was not obnoxious to section17 because at that date the vendor had not an undivided interest in theland, but an interest which had been transmuted by the decree into aright to receive a share of the proceeds sale. De Sampayo J. in the samecase thought that the deed apart from its effect as a conveyance of theshare also contained an assignment of the equivalent share of theproceeds of the sale, and that the deed looked at in this way did notcontravene the letter or the intention of section 17. In the same year1904, the Supreme Court in Louis Appuhamy v. Punchi Baba' held thatsection 17 was not intended to affect, or hinder, or prevent persons fromalienating the right to which they might become entitled after a partitionhad been decreed. “ Such a sale ”, said Layard C.J. “ executed duringthe pendency of a partition suit in respect of a share or interest to whicha person might become entitled after the partition suit has terminated,appears to me not affected by section 17 ”. In Subaseris v. Porolis3Wood Renton C.J. after referring to these two cases observed thatsection 17 “ imposed a fetter on the free alienation of property, and thecourts ought to see that that fetter is not made more comprehensivethan the language and the intention of the section require. The sectionitself prohibits only, in terms, the alienation of undivided shares orinterests in property which is the subject of partition proceedings whilethese proceedings are still pending, and the clear object of the enactmentwas to prevent the trial of partition actions from being delayed by theintervention of fresh parties whose interests had been created since theproceedings began. -Such a transfer as we have to deal with in thepresent case (by which a party had assigned to the plaintiff all theadvantages or disadvantages such as costs and also the share whichhe would be entitled to either in common or partition by virtue of thedecree in the partition action) is not. touched either by the language orby the spirit of section 17”. In Appuhamy v. Babun Appu *, however,Ennis A.C.J. appears to have taken a rather different view. He referredto the' case of Subaseris v. Porolis (supra) and said that in that case “ An 1
1 1 BalaaingharrH40.3 10 N. L. R. 196.
3 16 N. L. R. 394.* 25 A": L. R. 370.
FERNANDO A.J.—Salee v. Natthia.
261
attempt was made to grant some sort of equitable relief to a person whohad purchased from a co-owner, during the pendency of a partitionaction, the share to which he would be entitled on partition. Thedecision in that case was influenced by the consideration that a partyto a partition action should be able to deal by anticipation with whateverdivided interests he may ultimately obtain. With that considerationI am in entire accord. It is possible that a co-owner in land subject to apartition suit may sell his interests in the land and agree to conveywhatever he may receive under the final decree. It is possible thatsuch an agreement would not be obnoxious to. section 17 of the PartitionOrdinance. But it remains merely an agreement to convey, and wouldnot operate as a conveyance or alienation It was therefore, held,that the transfer in that case was void, and. Garvin J. agreed. Noreference appears to have been made in that case to the earlier judgmentsin Abdul Ally v. Kelaart or Louis Appuhamy v. Punchi Baba althoughthose two cases were referred to in the judgment of Wood Benton A.C.J-in Subaseris v. Porolis. In Khan Bhai v. Per era1 a Bench of fiveJudges of the Supreme Court considered the question of the periodduring which the prohibition contained in section 17 would continue,and held that the prohibition continued until the issue of the certificateof sale under section 8 of the Ordinance. Bertram C. J,, however, observedin his judgment that “ persons deciding to charge or dispose of theirinterests in a property subject to a partition suit can only do so byexpressly charging or disposing of the interests to be ultimately allottedto them in the action ”, and it is clear that he himself was of opinionthat by acting in this manner a person could effectively charge or disposeof the interest to be ultimately allotted to him, and that a deed bywhich he purported to deal with the property in this way would not benecessarily regarded as a mere agreement to dispose of his interest.
The question as to the effect of section 17 expressly came up beforea Bench of three Judges in Hewawasan v. Gunasekere and Garvin J.who had taken part in the judgment in Appuhamy v. Babun Appu (supra)held that a deed of transfer by a party to a partition action transferringcertain lots Vvhich according to the survey would probably be allottedto the party, should be given effect to as between the two parties andwas not obnoxious to section 17. He further states, “ this is a sale byone and a purchase by the other of certain lots of land which had noexistence as separate holdings, but which the parties believed wouldas a result of the final decree be allotted in severalty to the respondent;possession was to commence on the entry of the final decree, therespondent binding himself to do nothing to deprive the appellant of thebenefit of the same and to execute all such further deeds as may benecessary to assure to the appellant a good title to the premises. Now,what is this transaction but a dealing by anticipation with the sharewhich it was thought would be allotted to the respondent by the finaldecree ? What the respondent intended to sell and the appellant to buywas the share to be allotted to the respondent by the final decree. . . . It is said that the transaction embodied in these deeds isobnoxious to section 17 of the Partition Ordinance. For the reasons
28 A7. L. R. 33.
1 26 N. L. R. 204.
■262FERNANDO A.J.—Salee v. EOankar.
already set out this transaction is not in my opinion such an alienationas is prohibited by. that section ”. He then proceeded to consider theobservations of Ennis A.C.J. in AppuKamy v. Babun Appu (supra) and.hestates that the deed in favour of the vendee Simon in that case was notbefore him and “ it is impossible to say whether or not the language ofthe deed justified the observations made by Ennis A.CJ. ” He then wenton to state that in the case before him there was no dispute as to title,and that the action was only to compel the- respondent to fulfil a partof the agreement by executing a transfer of. the title declared by thefinal decree, the respondent having bound himself to execute all suchfurther deeds as may be necessary, and he,, therefore, held that there-wasnothing in the Partition Ordinance which, would disentitle the appellantto the relief claimed by him. As far as I can follow this judgment,
:it seems to me that Garvin J. thought that the deed in Appuhamy v.Babun Appu probably was in effect an agreement to sell, and that thatwas the .reason for the decision in that case-, whereas in Hewawasan v.Gunasekere (supra) the deed was in effect an alienation and was held notto be .obnoxious to section 17. The plaintiff, however, in Hewausasan v.Gunasekere was only asking for a further transfer by his vendor and.in the circumstances of the case, the vendor having bound himself to-ggle such a further conveyance, it was not necessary to consider whether-:im fact such a conveyance was absolutely necessary, and whether thetitle of the -vendor to the portion allotted to him in the final decree hadnot already vested in the purchaser. Dalton J. concurred in thejudgment of Garvin J., "but Jayewardene A.J. who dissented from itthought that the alienation sought to be effected by the deed in questionoffended against section 17 and was therefore void. He then proceedsto consider the question whether the title subsequently acquired by thevendor under the final decree enured to the benefit of the purchaser,and came to the conclusion that that benefit could not enure to himbecause the deed was void under section 17 and could not thereforebecome effective. He also proceeded to hold that it was not possibleto construe the deed as an agreement to convey because a deed that isvoid under section 17 is void to all intents and purposes, but he appearsto have adopted the reasoning of Bertram C.J. in Khan Bhai v. Perera(supra) and he quotes in full the passage which I have already quotedwith regard to the only manner in which persons desiring to dispose oftheir interests in a property subject to a partition suit can do so.
The question appears to have come up again in September, 1926, in.the case of Fernando v. Atukorale a few months after the case ofHew aw asari v. Gunasekere. In that case Lyall Grant J. thought thatthe deed which was in the ordinary form a conveyance could not operateas a conveyance because the property dealt with did not at the time ofthe execution of the deed belong to the vendor. “ If the deed is tohave any effect, it must operate not as a conveyance but as an agreementto convey. ” Maartensz J. after referring to the earlier cases observedthat the statement of Sir Anton Bertram C.J. with regard to personsdesiring to charge or dispose of their interests during the pendency of apartition suit was obiter to the question before the Court" in the case of
1 28 N. L. B. 292.
FERNANDO AJ.—Salee v. Marikar.
263
Khan Bhai v. Perera. With regard to the deed in question in Fernandov. Atukorale, Maartensz J. said thqt whether that deed “ is looked uponas an out and out sale as in the case of Subaseris v. Porolis or as anagreement to sell which is the view taken by Ennis J. in Appuhamy v.Babun Appu, it is possible that it invests the transferee with rights whichthe transferor may not be entitled to deny, but other considerationsarise where the contest is between a third party and the transfereeHe then proceeded to discuss the effect of section 9 of the PartitionOrdinance, and came to the conclusion that the sale in question wasextinguished by the partition decree”. In the case where a vendoracquires a title other than under a partition decree he acquires a titlegood against the world, but the person to whom he has sold the property.In the case of title acquired under a partition decree the title is good andconclusive, against all persons whomsoever, whatever right or title theyhave or claim to have in the said property, and he referred to the caseof Bernard v. Fernando The case of Hewawasan v. Gunasehere doesnot appear to have been cited at all or considered by the Judges in thecase of Fernando v. Atukorale.
The last case to which we have been referred is the case of Rajapaksev: Dassanayake * and in that case Dalton J. and Jayewardena A.J. heldthat a deed pending a partition action conveying “ all that undividedpart of the land being all the interests which the vendors were declaredentitled to in the preliminary decree, or whatever lot or interests thevendors will be allowed in the final decree” was not obnoxious to theprovisions of section 17, and Dalton J. in that case followed the case ofHewawasan v. Gunasehere which was binding on him as it is bindingon us in this case. The deed in question in this case is clearly a transferand not an agreement to'sell, and I see no reason why I should not followthe decisions in which effect, has been given to documents of this kind.The deed 11 D 11 was by the thirteenth and – fourteenth defendants .inthis action in favour of Thomas Fernando, and as the learned Judgehimself states in his judgment the two vendors and the vendee wereall parties to the partition action. I would, therefore, hold that deed11 D 11 is not obnoxious to section 17 of the Partition Ordinance,and that the learned District Judge was wrong in holding to thecontrary.
In view of his findings as to the effect of the deed the District Judgeheld that it was for the eleventh defendant and her children to establishtheir title by prescription, but in view of the conclusion to which I havearrived as to the effect of that deed the burden of proving title byprescription would not be on these parties. On the evidence, however,I think the learned District Judge was wrong in coming to the conclusionthat the fourth defendant had not acquired a title by prescription. Theland is only 24 perches in extent, and Ahamadu Lebbe, the fourthdefendant, put up buildings and recovered all the rents. The onlyother person who occupied that portion of the land was Samsi whoaccording to the evidence paid rent to Ahamadu Lebbe. The fourteenthdefendant appears to have been ejected from orife of the boutiques of the
* 16 N. L. X. 438.
39/22
* 29 N. L. X. 309.
284
FERNANDO A.J.—Salec v. Marikar.
land, and she appears to have been in possession under Carrim. Neitherthe fourteenth nor thje fifteenth defendant has had any possessionsince 1927.
1 would accordingly hold that all the interests of Samsi Lebbe under'the final decree in case No. 5,303 have passed to the eleventh defendantand defendants 11a to llo, and that similarly the rights of the thirteenthand fourteenth defendants have passed to – defendants 11a and lie.The Interlocutory Decree will be amended accordingly, and the thirdand thirteenth defendants will pay to defendants 11 to llo their costsof this contest and of this appeal.
Moseley J.—I agree.
Judgment varied.