1912  Present: Lascelles C.J. and De Sampayo A.J.

WEERAKOON v. JURIS et al.

85-D. C. Galle, 10,541.

Planting agreement-Planter entitled to a fourth of land on planting the land-Is a conveyance necessary after the fulfilment of the condition ?-Sale-Ordinance No. 7 of 1840, s. 3.

A conveyance of land may be made to take effect on the fulfilment of a condition.

By a planting agreement attested by a notary it was agreed, inter alia, that on the event of the planter planting the land he should be entitled to a fourth share of the soil and trees.

Held, that the planter became entitled to a fourth share of the soil and trees on the fulfilment of the conditions, and that no further conveyance was necessary to vest title on the planter.

THE facts are set out in the judgment. The material portion of the planting agreement was as follows : -

The purport of an agreement for planting caused to be written and granted on this 1st day of September, 1875, is as follows, to wit:-

" That exclusive of about 2 1/2 acres extent, and also the portion of owiti land of the said premises, and described in the planting voucher No. 317 executed in this office, the remaining extent of the said premises is hereby given over to Dangey Dissanhamy, &c, to plant and improve the same with coconut, jak, and other useful trees.

" Therefore it is agreed that within eight years from the date of these presents the said premises should be fully planted, and that when the trees begin to bear fruits, that one-fourth part of such plantation and one-fourth part of the soil of such extent will be entitled (sic) to the said seven planters, their heirs, &c."

Bawa, K.C., for first defendant, appellant.

van Langenberg, K.C., for third and fourth defendants and first to sixth added defendants, respondents.

Samarawickreme, for seventh added defendant, respondent.

Cur. adv. vult,

July 17, 1912. DE SAMPAYO A.J.-

This is a partition action, and the appeal concerns a one-fourth share of the property, which is claimed by the first defendant-appellant adversely to third and fourth defendants and the added defendants, who are respondents to this appeal. One Don Louis

Amarasinghe, being the owner of the entire, land, granted a planting agreement dated January 2, 1872, to eight persons, four of whom are now represented by the respondents. While the agreement was still on foot, the land was sold in execution against Don Louis Amarasinghe in 1875, and was purchased by one Don Johanis de Silva. Thereupon the planters, being under the impression that the Fiscal's sale put an end to the planting agreement, secured from the execution-purchaser, Don Johanis de Silva, a fresh agreement dated September 1, 1875, containing practically the same terms as the previous agreement, and they also instituted an action against Don Louis Amarasinghe for damages for being deprived of the benefit of his deed in their favour. The Supreme Court, in appeal in that action, by its judgment of 1878, held that that agreement and the planters' rights thereunder were not affected by the Fiscal's sale, and dismissed the action. The planters continued to plant and to be in possession of the land on the footing of the agreement of 1872 or of 1875 or on both of them. Don Johanis de Silva died intestate, leaving as his heir a daughter, who was the wife of the first defendant. In 1891 the first defendant and his wife sold three-fourths shares of the land to one Don Cornelis, from whom the first plaintiff and second defendant claim title to those three-fourths shares.

The plaintiff and the first defendant in this case have not been very straightforward. They ignored altogether the planting agreements, and omitted to make any reference to interests created thereunder. The third, fourth, and fifth defendants, who are three of the original planters, had built substantial houses on the land and were residing therein for a long time, and as th