Saparamadu V. Saparamadu Et Al.

Present : Mr. Justice Middleton and Mr. Justice Grenier.

SAPARAMADU v. SAPARAMADU et al.

D.C. Negombo, 5,709.

Partition suit-Fiscal's sale pending partition suit-Validity-Sale by purchaser-Invalidity-Alienation by owner not party to the suit- Substitutions-Ordinance No. 10 of 1863, s. 17

    Where pending a partition suit the plaintiff's share was sold by the Fiscal, and the purchaser at such sale, who was not made a party to the suit, sold it to a third party-

Held, that the sale by the purchaser to such third party was void under section 17 of Ordinance No. 10 of 1863, notwithstanding that such purchaser was not a party to the suit, and that he was not entitled to maintain the action as substituted plaintiff.

    Held, also, that the Fiscal's purchaser may be substituted as plaintiff and the action proceeded with.

    SUIT for partition. The plaintiff alleged that Harmanis Sappa-ramadu and his "wife were the original owners of the land sought to be partitioned, and that they died about twenty-five years ago, leaving as their heirs five children, and also leaving an estate under Rs.1,000 in value. The children were (1) Louis, (2) Pelis, (3) Joranis, (4) Jusiappu, and (5) Marihamy, each of whom became entitled to an undivided one-fifth share. Jusiappu died unmarried and without issue, and each of the other children inherited an undivided one-twentieth share from him. The husband of Marihamy (Paaris), after her death and the death of their child, sold one-fifth share to Pelis, reserving to himself one-twentieth. Pelis died leaving him surviving his widow, the original plaintiff, and an only child, Sutogis. The plaintiff claimed a partition of the land in the following shares: -

    Plaintiff                                     ... ... ... 9/20

    First defendant (Louis)                    ... ... 5/20

    Second defendant (Joranis)             ... ... 5/20

    Third defendant (Paaris)                  ... ... 1/20

    After inquiry an interlocutory decree was entered and a commission was issued on 24th February. 1905, to partition the land in the above proportion. Before the scheme of partition was confirmed and final decree entered, to wit, on 21st September, 1906, one Don Charles Saparaimadu Appuhamy made an application to be added as a party to the suit, alleging that under writ of execution issued in case No. 5,644 of the District Court of Negombo against the estate of the late Pelis and against the first defendant their interests were sold by the Fiscal and purchased by one J. H. W.

Karunaratne on the 27th July, 1905 (Fiscal's transfer dated 28th May, 1906), who sold it to the said Charles Saparamado Appuhamy by deed No. 4,262 dated 9th -July, 1906. Charles Saparamadu Appuhamy was added as a party on 8th October, 1906, after notice to the parties, and was substituted as plaintiff on 14th November, 1906. On 15th November, 1906, the District Judge (A. de A. Seneviratne, Esq.) dismissed the action, holding that the deed in favour of Charles Saparamadu Appuhamy, the substituted plaintiff, was void under section 17 of Ordinance No. 10 of 1863.

    The substituted plaintiff appealed.

    H. J. C. Pereira, for appellant.

    Sampayo, K.C., for respondent.

Cur. adv. vult.

 26th June, 1907. GRENIER A.J.-

    This is a partition action. The plaintiff alleged that Harmanis Saparamadu and his wife were the original owners of the land sought to be partitioned, and that they died about twenty-five years ago, leaving five children and an estate under the value of Rs. 1,000. The children were (1) Louis, (2) Pelis, (3) Joranis, (4) Jusiappu, (5) Marihamy, who each became entitled to one-iifth share. Jusiappu died unmarried and issueless, and his share devolved on the survivors, each getting an additional one-twentieth. The husband of Marihamy, on her death and the death of their child, sold one-fifth to Paaris, reserving to himself the one

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