KALUHAMY v. APPUHAMY et al.

KALUHAMY v. APPUHAMY et al.

D. C. (Interlocutory), Matara, 3,216.

Partition of land-Hypothecary action-Mortgage decree-Seizure of Crown land not bound by the mortgage decree-Claim inquiry-Civil Procedure Code, s. 247-Decree by consent-Crown land consented to by claimants to be declared executable-Claimants' want of title at time of consent-Fiscal's sale of land declared executable-Claimants' acquisition of title to the land after Fiscal's transfer-Their sale after acquisition of such title-Invalidity of the second sale.

Where, in a hypothecary action, a mortgage decree having been obtained, the mortgagee caused to be seized land not bound by the decree as land belonging to the mortgagors, and certain persons put forward a false claim, which, on an action instituted by the mortgagee as plaintiff, was set aside by a decree given with the consent of the claimants, who allowed the non-mortgaged land that had been seized to be declared executable, as though it were their property; and where the same land was afterwards sold by the Crown, the true owner, to some persons, of whom were some of the claimants, and where the claimants after the purchase from the Crown sold the land they had already allowed to be decreed away to the mortgagee,-

Held, that the second sale was invalid, inasmuch as, though the claimants when they effected the sale had a true title, which was lacking to them when they consented to the decree, they were nevertheless bound by the decree which they had consented to for their own purposes.

THE plaintiff brought this case to have a land called Puwakgahaaddarawatta partitioned. His title to a share of this land arose as follows. He had a mortgage given him by Dines, Carolis, Pedris, and Babahamy of the nine-tenths part due to the planter's share of the trees. He put the bond in suit, and after obtaining a mortgage decree pointed out for seizure and sale not merely the interest actually mortgaged, but also two-sevenths of the soil which was the property of the Crown.

On seizure a claim was made by (1) Salman ,(2) Dingiappu, and (3) Don Andris. The plaintiff brought an action for a declaration of title under section 247 of the Civil Procedure Code. Thereupon the claimants, who had really no title to the land, collusively with the plaintiff allowed a decree to be entered against them for the nine-tenths part due to the planter's share and the two-sevenths part of the soil, which were declared by the decree bound and executable.

The plaintiff himself bought the interests at the Fiscal's" sale.

Subsequently to the Fiscal's sale Salman and Dingiappu acquired title each to a one-sixth share of the two-sevenths of the land which they had consented to be decreed away as executable

before they had any title whatever therein. They then sold their shares to one Luishamy. In the present action the learned District Judge declared that the sale to Luishamy gave her a valid title.

Against this order the plaintiff appealed.

The case came up for argument before Layard, C.J., and Moncreiff, J., on the 23rd-November, 1904.

Allan Drieberg, for appellant.

Loos, for respondents.

Cur. adv. vult.

13th December, 1904. MONCREIFF, J.-

In 1884 Dines, Carolis, Pedris, and Babahamy mortgaged to the plaintiff " nine-tenths part due to the planter's share of the trees " on the Crown land Puwakgahaaddarawatta planted by Carolis and Pedris. The plaintiff obtained a mortgage decree in 1891 against Carolis, Pedris, Babahamy, and the widow of Dines. By the decree the above " nine-tenths part of the trees of Puwakgahaaddarawatta " was declared bound and executable. The plaintiff, however, pointed out for seizure and sale not only the planter's share, but two-sevenths of the soil of Puwakgahaaddarawatta.
A claim was put forward, I suppose to the whole of the property seized, by (1) Salman, (2) Dingiappu, (3) Don Andris.
The claim led to an action by the plaintiff

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