ANNAMALAI PILLAI v. PERERA. Suppramanian Chetty, Added Party

ANNAMALAI PILLAI v. PERERA.

Suppramanian Chetty, Added Party, Appellant.

D. C, Negombo, 4,072.

Partition Ordinance, No. 10 of 1863, s. 17-Alienation of land during pendency of proceedings for partition.

E P having instituted a partition suit in the District Court of Colombo in respect of several lands, her share of one of the lands sought to be partitioned was seized on a writ of execution against her and sold on. 23rd July, 1898, to M S, who sold it to A P on 11th September, 1899. On 29th October, 1899, the District Judge of Colombo ordered that the land in question should be struck out of the partition suit, which was still pending. E P then sold to S C on 8th January, 1901, the half share which had been previously sold by the Fiscal to M S.

In an action for partition of this land brought in the District Court of Negombo by A P, who claimed to be the owner of one-half thereof under M S,-

Held, per Moncreiff, A.C.J., and Middleton, J. (Wandt, J., dissenting), that the Fiscal's transfer to M S and M S's transfer to A P were not only void quoad the partition suit raised in the District Court of Colombo, but void absolutely.

Baban v. Amarasinha ( 1 S. C. C. 24), decided by Phear, C.J., and Dias, J., questioned.

THE plaintiff in this case claimed one-half of Ambagahalanda, and allotting the other half to defendants, prayed for a partition thereof. Suppramanian Chetty, by his petition of intervention, averred that he was entitled to the undivided half share claimed by the plaintiff, and prayed that he may be made an added party to the case, and that plaintiff's claim for a sale of the said land under the Partition Ordinance de dismissed, or in the alternative that the petitioner be declared entitled to the said half share in the decree for partition.

The District Judge, Mr. E. F. Hopkins, found as follows upon the facts and law of the case: -

" One Elizabeth Perera was entitled to an undivided half of the land. This share was seized by the Fiscal on writ against her in D.C., Colombo, 11,023, dated 4th May, 1898. The land was sold on the 23rd July, 1898, and purchased by Marthelis de Silva, who obtained the Fiscal's transfer (marked A) on 20th April, 1899. On 11th September, 1899, Marthelis sold it to the plaintiff by deed B. The Fiscal's transfer A was registered on 22nd April, 1899, and the transfer B to the plaintiff on 28th March, 1900.

" On 8th January, 1901, Elizabeth Perera sold the same land to the added party by deed Z. He intervenes in this case, asserting that the sales relied on by plaintiff are null and void, being contrary to the provisions of the partition.

"It appears that on the 22nd October, 1897, Elizabeth Perera and her husband instituted the partition suit No. 10,653 in the District Court of Colombo, and the land now in dispute was one of the lands sought to be partitioned. On 19th October, 1899, the District Judge made order striking this land off the list of lands to be partitioned. The added party contends that the sale by the Fiscal in 1898, and the transfer to plaintiff in 1899, are null and void as having taken place during the pendency of the partition action.

Thus, the validity of these sales is the sole issue between the plaintiff and the added party.

" The first authority on the point is the judgment of Phear, C.J., and Dias, J., in Baban v. Amarasinha (2 S. C. C. 24). It is clearly favourable to the plaintiff, for it is there held that alienation or encumbrance of the property which forms the subject of a partition suit is void quoad the partition only, the object of the restriction being to prevent any party from defeating or embarrassing partition proceedings by transferring his interests to a stranger.

" I am, however, referred to subsequent decisions as superseding the above authority.

" The case of Gunawardana v. de Livera (4 S. C. C. 55) clearly does not reverse the first decision, which was quo

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