Mohammed Bhoy Et Al., V. Lebbe Maricar Et Al.,

Present: Lascelles C.J. and De Sampayo A.J.

MOHAMMED BHOY et al. v. LEBBE MARICAR et al.

71-D. C. Colombo, 24,875.

Sale in execution of the rights of the fidei commissaries during the lifetime of the fiduciarius?Civil Procedure Code, s. 218 (k)?Sale by a person who has no title?Subsequent acquisition of title by the vendor?Exceptio rei venditæ.

The interests of a fidei commissarius cannot be sold in execution during the lifetime of the fiduciarius, as it is a contingent interest within the meaning of section 218 (k) of the Civil Procedure Code.

Where the interests of a fidei commissarius are sold in execution by the Fiscal during the lifetime of the fiduciarius, the purchaser at the Fiscal's sale does not get any title even on the death of the fiduciarius.

Where a vendor had no title at the time of the sale, but after wards acquires title, the purchasers title is not confirmed from the time that the vendor so acquires title; without a further deed from the vendor after he had acquired title, the purchaser has no right.

The plea of exceptio rei venditæ which a vendee is entitled to set up against his vendor is not available against a subsequent purchaser from the vendor.

THE facts appear from the judgment of the Chief Justice.

Samarawickreme (with him Cooray), for the intervenients, appellants.?The conveyance to Carimjee Jafferjee, though made by Caroline in the lifetime of her father, and therefore when she had no title, became perfect on the death of her father. The Ordinance No. 7 of 1840 cannot affect this question. Even under the Roman-Dutch law a conventional transfer had to be registered. Alienations of immovable property were void under the Roman-Dutch law, unless they were made before a Court. See Chellamma v. Namasiwayam.1 These provisions of the Roman-Dutch law did not affect the case of acquisition of title by operation of law. Under the Roman-Dutch law, where a vendor had no title, but afterwards acquires title, the purchaser's title is confirmed from the time that the vendor so acquires title (Voet 21, 3, 2). Ordinance No. 7 of 1840 only alters the method of executing a. conventional conveyance.

The method of acquisition of title by operation of law remains unaltered. Where, for instance, a person buys property in the name of another person on trust, the title vests in the real purchaser, though there be no conveyance in his name. Similarly, where a

1 (1907) 3 Bal. 209 at page 210.

husband married in community buys property in his name, a half of the property vests in the wife by operation of law on the death of the husband. In Cantlay v. Elkington,1 it was held that section 2 of Ordinance No. 7 of 1840 does not apply to the division of property in community, which takes place by operation of law and not by convention of parties.

The only question for us to consider is whether Caroline had a salable right to the property at the time she sold it to Carimjee Jafferjee. Unless the Court holds that the right is not salable, the sale is good both under the Roman-Dutch law and our law. Even a spes may be sold (Voet 18, 1, 13).

The fifth defendant-respondent is barred by the exceptio rei venditæ, et traditæ from questioning the rights of the appellants. See Guruhami v. Subaseris;2 Silva v. Shaik Ali;3 Voet 21, 3, 3. Not only a vendor, but even a purchaser from a vendor, is estopped. The more equitable course is to uphold the first sale as against the second sale by Caroline. Alwis v. Fernando 4 was a case of mortgage and is governed by other considerations. But contra see judgment of Grenier J. in Goonatilleke v. Jayasuriya.5

There can be no question that the first defendant could have himself sold his rights to the thirteenth defendant. The only question is whether the Fiscal could sell in execution such a right. Once the will begins to speak, the rights of the parties are fixed. It cannot be said that the right of the first defendant

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