Madar Saibo Et Al V. Sirajudeen Et Al

Present: Pereira J. and Ennis J.

MADAR SAIBO et al. v. SIRAJUDEEN et al.

203 and 204-D. C. Kandy, 21, 521.

Purchase of land by a partner-Is it property of partnership! -Joinder of plaintiffs-Action in respect of separate lands to which each is separately entitled-Civil Procedure Code, s. 17-Fraudulent deed valid until set aside.

Pereira J. -In Ceylon, land bought by a partner of a firm in his own name out of the assets of the partnership is not deemed the property of the partnership, but it is the property of the partner in whose favour the conveyance is executed.

Joinder by two persona in one action of claims in respect of separate lands to which each is separately entitled is obnoxious to section 17 of the Civil Procedure Code, but the irregularity may be waived by the defendant.

A fraudulent deed, unlike a deed executed by a person not competent in law to enter into contracts, is, under the Roman-Dutch law, valid until it is set aside or cancelled, and when it is cancelled, the cancellation refers back to the date of the deed.

THE facts appear from the judgments.

E. W. Jayewardene, for first defendant, appellant.

H. J. C. Pereira and F. J. de Saram, for second defendant, appellant.

Bawa, K. C., Schneider, Drieberg, A. St. V. Jayewardene, and Arulanandam, for plaintiffs, respondents.

Cur. adv. vult.

November 3, 1913. Pereira J. -

In this case the plaintiffs seek to have certain deeds of conveyance executed by the first defendant in favour of the second defendant (to use the words of the plaint) " set aside and declared null and void, " on the ground of fraud on the part of the two defendants and collusion between them. The plaintiffs are partners of the firm of " P. V. M. Madar Saibo, " and although it is stated in the plaint that the lands described in schedules A, B, and C are the property of the partnership, it is clear from what follows in the plaint itself, and in the proceedings in the case, that, in a legal point of view, the lands mentioned in the first schedule are the property of the first plaintiff, the lands mentioned in the second schedule are the property of the second plaintiff, and those mentioned in the third schedule are the property of the firm. In the course of his

opening address to the Court the plaintiff's counsel would appear to have stated: " The effect of the partnership deed of 1905, when the second plaintiff was admitted into the firm, was not to vest title in the second plaintiff in respect of the lands which at the date belonged to the first plaintiff alone. " Clearly, the title deeds of the lands described in the three schedules are, respectively, in favour of the. two plaintiffs (individually) and the firm of " P. V. M. Madar Saibo. " It has been said that under the English law land bought by a partner of a firm in his own name out of the assets of the partnership is deemed the property of the firm. However that may be, it is clear from our Ordinance, introducing the English law as to partnership into this country (Ordinance No. 22 of 1866), that the law us to conveyance of land and rights in land is still the law of the country and not the English law, and I am not, therefore, prepared to hold that the Court can look upon the lands described in the three schedules respectively as the property of any but those in whose favour the conveyances have been executed. It may be that when land is bought by one of two partners of a firm in his own name out of assets of the partnership, the other partner has a right to claim a conveyance from the first of the land in favour of the firm, but such a conveyance should be claimed and obtained before the firm can appear in Court and seek any redress on the footing that it is the owner of the land. In view of the facts mentioned above, there is clearly in the present case a misjoinder of plaintiffs and a misjoinder of causes of action. The complaint in the case is that the first def

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