SILVA v. GIMARAH. 1903.

SILVA v. GIMARAH. 1903.

C.R., Galle, 2,466.

Partition suit-Ordinance No. 10 of 1863, s. 17-Alienation of land during pendency of partition suit-Validity of deed.

    A partition suit was commenced on 13th November, 1900, and a preliminary decree entered on 28th August, 1901, declaring that A and B were entitled to one-third of the land, and they do pay to the plaintiff Rs. 89 as costs. Thereafter, on the 17th September, 1901, A and B passed a deed of conveyance, as regards their one-third share  of the land to C. The plaintiff caused the Fiscal to seize the one-third share and levy out of it his costs. C claimed the said share as his.

    In an action brought by the plaintiff against A, B, and C to have the deed declared null and void,-

    Held, per LAYARD, C.J., that the judgment of the Full Bench in Annamalai Pillai v. Perera (6 N. L. R. 108), which was binding upon him in the decision of the present case, is questionable, as it did not appear to be fully argued whether there was privity of contract between a purchaser at a sale in execution and the judgment-debtor whose property was sold, nor was the question raised whether a purchaser in execution was or was not in the position of a person who took a conveyance from the execution-debtor, the owner.

 THE plaintiff prayed that a deed executed by the first and the second defendants in favour of the third defendant conveying to him certain shares of land be declared null and void, and that

the said shares be decreed liable to be sold in execution of a writ issued by the plaintiff in case No. 6,006 in the District Court of Galle. The plaintiff alleged that that was a partition suit in which a preliminary decree had been entered in favour of the first and second defendants declaring them entitled to two-sixth parts the land; that by the same decree the first and second defendants were ordered to pay to the plaintiff Rs. 89.15 as costs; that the plaintiff obtained a writ of execution against the first and second defendants to recover the said cost, and pointed out to the Fiscal their said shares for seizure; and that the third defendant unlawfully claimed them, and his claim was allowed.

    The Commissioner (Mr. J. D. Mason) found that the partition suit No. 6,006 was commenced on the 13th November, 1900; that the preliminary decree therein was entered on the 28th August, 1901; and that the first and second defendants' conveyance to the third defendant was dated 17th September, 1901. He held-

    " This transfer after commencement of legal proceedings to partition the land is void under section 17 of Ordinance No. 10 of 1863 (see Annamalai Pillai v. Perera, 6 N. L. R. 108). I decree that the deed executed by them in favour of the third defendant was void, and that the two sixth shares of Mahagedarawatta and of the houses thereon are liable to be sold in execution in case D. C., Galle, 6,006, in accordance with section 16 of the Partition Ordinance.

    The third defendant appealed. The case was argued before Layard, C.J., on the 17th June, 1903.   

    Van Langenberg, for appellant.

    Samarawikrama, for plaintiff, respondent.

Cur. adv. vult.

5th August, 1903. LAYARD, C.J.-

    By a preliminary decree in a partition suit instituted by the plaintiff in the District Court of Galle, entered on the 28th August, 1901, first and second defendants were decreed entitled to two-sixths of certain property, the subject of that suit, and for a certain house thereon, and they were decreed to pay plaintiff's cost amounting to Rs. 89.15.

    In pursuance of that decree plaintiff issued writ of execution to recover the costs, and pointed out the shares of the land and of the house decreed to the first and second defendants in the above-mentioned decree for seizure under such writ. The Fiscal duly seized the same, and the third defendant claimed the property

seized, having purchased the same from the fir

Click Here to Read the rest of this document