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

PERERA v. SILVA et al.

D. C, Kalutara, 4,034.

    Sale by defendant before service of summons - Lis pendens - Litis contestatio.

A conveyance by a defendant of the land in dispute in an action is valid as against the plaintiff, if it was made before the defendant knew of the existence of the suit.

If it could be shown that the defendant knew of the institution of the action against him and evaded service of summons, and in the meantime sold the land, the doctrine of lis pendens would apply, and the sale would be a nullity as against the plaintiff.

APPEAL from a judgment of the District Judge of Kalutara. In this action (partition) title to a one third share was in dispute between the plaintiff (respondent) and the added defendants (appellants). Admittedly the land belonged originally to one Christian Silva, who mortgaged it to the added defendants, who put the bond, which was unregistered, in suit on May 17, 1906. Summons was served on Christian Silva on June 26, 1906. Judgment was entered against Silva, and the mortgaged property was bought by the added defendants, who registered their Fiscal's transfer on June 22, 1909. Prior to the service of summons*, on June 7, 1906, Christian Silva sold the mortgaged land to plaintiff, and the transfer was registered on June 8, 1906.

The learned Acting District Judge (A. C. G. Wijekoon, Esq.) held that as summons had not been served on Christian Silva at the date of his transfer to the plaintiff, the conveyance was not made pendente lite, and that it was valid as against the added defendants.

The added defendants appealed.

Jayewardene (with him Cooray), for the appellants.-. transfer to the plaintiff was made after the institution of the mortgage action. It is therefore bad as against the added defendants. It does not matter whether summons was served or not at the date of the transfer. Counsel cited Krishnappa v. Shivappu,1 Faiyaz Husan Khan v. Munshi Prag Narain,2 Lency v. Peries,3 Samy Appu v. Dissanayake  Bellamy v. Sabine.5

A. St. V. Jayewardene, for the respondent.-Until service of summons there will be no lis pendens. The transfer here was made before the service of summons. There is nothing to show that Silva was evading service of summons, or was aware of the institution of the mortgage suit. Counsel cited Sande 130; Anders' Cession of Action 81; 4 Nathan 216, sections 2173 and 2174;. Swaris v. Pieris;1' Hakum Chand 694; Kotze's Van Leeuwen, vol. II., 460; Abraham Fernando v. Silvester Perera.1

Cur. adv. vult.

February 25, 1910. MIDDLETON J.-

This was a partition action in which the plaintiff sought to partition a certain land called Meegahawatta, allotting to himself an undivided one-third share and to the first defendant an undivided two-thirds share.

The second, third, and fourth added defendants intervened, and it was admitted Christian Silva possessed one-third of the said land, but mortgaged it on May 29, 1900, unregistered; that the bond was put in suit and summons issued on May 21, 1906, but was not served till June 26, 1906, defendant Christian being twice reported as not to be found.

On June 7, 1906, by P. 3, registered June 8, 1906, Christian sold his share to the plaintiff pending action on the mortgage bond. Judgment was entered on the mortgage bond on June 8, 1906, and the land, presumably as bound and executable, was seized and sold on August 29, 1906, and added defendants obtained a Fiscal's transfer, which was registered on June 22, 1906.

The question therefore is, in whom is the title to this one-third? The question has been argued before us at considerable length on the footing that the case was one of lis pendens, and it has been decided in the Court below, on the authority of Radhosyam Moha-pattra v. Sibu Panda and another 8 that the principle applicable to

Foot Notes:

1 (1887) 8 S. C. C. 94.
2 (1902) 3 Browne