PERERA v. PERERA et al.

Present: Mr. Justice Wendt, Mr. Justice Middleton, and
Mr. Justice Wood Renton.

PERERA v. PERERA et al.

D. C., Colombo, 20,449.

Fiscal's sale-Pendency of partition suit-Validity-" Alienation "-Partition Ordinance (No. 10 of 1863), s. 17.

Section 17 of Ordinance No. 10 of 1868 enacts: "Whenever any legal proceedings shall have been instituted for obtaining a partition or sale of any property as aforesaid, it shall not be lawful for any of the owners to alienate or hypothecate his undivided share or interest herein, unless and until the Court before which the same were instituted shall, by its decree in the matter, have refused to grant the application for such partition or sale, as the case may be; and any such alienation or hypothecation shall be void."

Held, that this section applies to voluntary and not to necessary alienations, and that a Fiscal's sale of the shares of some of the co-owners pending a partition suit is valid.

Held, also, that the Fiscal's purchaser was entitled to be substituted on the record in place of the parties whose interests he purchased.

The judgment in Annamalai Pillai v. Perera (6 N. L. R. 108) explained.

THIS was a partition suit. Preliminary decree was entered on the 26th April, 1905. On the 13th April, 1905, the interests of the eleventh and twelfth defendants (husband and wife) and the sixteenth defendant, who were subsequently allotted certain shares in the preliminary decree, were sold by the Fiscal and purchased by the second added defendant, who obtained Fiscal's transfers Nos. 8,280 and 8,281, dated the 31st July, 1905, and claimed to be substituted in place of the said eleventh, twelfth, and sixteenth defendants on the record.

The District Judge (F. R. Dias, Esq.) dismissed the claim of the second added defendant, holding on the authority of Annamalai Pillai v. Perera(1) that the Fiscal's sales were void under section 17 of Ordinance No. 10 of 1863.

The second added defendant appealed ex parte.

A. St. V. Jayewardene for him.-The decision in Annamalai Pillai v. Perera(1) did not deal with Fiscal's sales pending partition proceedings. The question was not raised or discussed, as Moncreiff J., one of the Judges who took part in Annamalai Pillai v. Perera(1), explained in Guneratne v. Tinanhamy(2). The Roman Law and

Foot Notes :

(1) (1902) 6 N. L. R. 108.

(2) S. C. Min, March 17, 1904.

the Roman-Dutch Law recognized a clear distinction between alienations voluntariae and necessariae; where alienation was prohibited, such prohibition was considered to extend only to voluntary alienations; and a sale of a debtor's property at the instance of creditors was considered a necessary alienation: Digest 23, 5, 1; Voet 23, 5, 2; Digest 27, 9, 3, 1; Voet 27, 9, 12; Sande, de prohib. rer. alie. 3, 8, 13. This distinction exists in the English law, and has been adopted by the Courts in india,. Silva v. Gimarah(1). The words of this section clearly refer to alienations by the owners, and not to execution sales against the will of the owners. The Roman Law too, which prohibited alienations pending partition, excluded necessary alienations (Digest 10, 2, 13). If Fiscal's sales be held to come within the terms of section 17, debtors will be enabled to place their property beyond the reach of their creditors for an indefinite length of time by instituting proceedings under this Ordinance. (Hukm Chand's Res Judicata, p. 723).

19th July, 1906. WENDT J.-

The question which is specially brought before for us for consideration in this case is, whether a Fiscal's sale of an undivided share of land, pending proceedings for partition, is void under section 17 of the Partition Ordinance, as an alienation by an owner. The learned District Judge in holding against the sale considered himself bound to do so in view of the decision of the majority of the Supreme Court in the case of Annamalai Pillai v. Perera(2). I was one of the Jud

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