1915.   Present   : Wood Renton C.J. and Pereira and Ennis JJ.

BABIYALE v. NANDO et al.

44-D. C. Negombo, 6,309.

Alienation pending partition-Ordinance No. 10 of 1868, s. 17-Plaint in partition suit-Should it be registered ?-Priority of registered subsequent deed.

The first defendant instituted in 1897 a partition action for the land in dispute. A preliminary decree for partition was entered, bat no further steps were taken in that action, sad no order of abatement was made. The plaintiff purchased on January ' 4, 1914, an undivided one-eighth share of the land from the heirs of one Samuel. None of the plaintiff's predecessors in title were parties to the partition action.

Held, (1) that plaintiff's deed was void under section 17 of the Partition Ordinance; (2) that the plaintiff's deed did not become valid by registration by virtue of priority under section 17 of the Land Registration Ordinance, No. 14 of 1891, owing to the order of Court allowing the plaint in the previous partition suit not having been registered.

THE facts are set out as follows in the judgment of the District Judge:-

Plaintiff claims two-sixteenths of the land sought to be partitioned. There was an old partition case in 1898, No. 2,056, which advanced as far as the interlocutory decree. This two-sixteenths was mortgaged by Samuel to Andrisa, second defendant in that case, and Andrisa gave evidence to that effect (P 1), but by an error decree was entered giving Andrisa the share as if it were his own. Plaintiff has purchased from the heirs of Samuel. The defendant's counsel contends that as no final decree has been entered, the case 2,056 is still pending. This view, I think, is untenable . . . . . . In this case, too, the parties, although they neglected to bring the case to a conclusion, have acted as though the decree had been final, the objectors themselves having purchased shares of other co-owners. Further, sufficient time has elapsed for a change in the mode of possession to have taken place, and for such possession to have acquired the force of prescriptive possession.

Again, parties who delay to carry a partition case beyond the interlocutory decree often believe . . . . . . that they got their shares they claimed, and go on possessing in this assumption until they find out this error in the decree, and move for amendment. In this case, as the parties did not discover the error, they may have continued to act as though title still vested in Samuel. It is for the Court, then, to find out what has been the mode of possession since this decree, and whether Andrisa, in fact, acted on it as if the share were his. But, as Mr. de Kretser pointed out, it would have been simpler and safer for plaintiff before purchase to have moved his vendee to have procured a final

decree in No. 2,056. In that case his position would have been stronger, and the question would have arisen whether Andrisa could, on the strength of an interlocutory decree, have maintained a claim to this share. For it is doubtful whether an erroneous interlocutory decree can give a party title to a share which he did not claim.

E. W. Jayewardene (with him L. H. de Alms), for the third, fifth. and sixth defendants, appellants.-Plaintiff's purchase was void, as the sale took place pending the partition action. [Ennis J.-Considering the length of time that has elapsed after the interlocutory order in the partition case, can an order of abatement be presumed?] 'We cannot presume that an order of abatement was made in the case. See Hukm Chand on Res Judicata 707, 4 A. C. R. 8, 4 McQueen 972.

[Ennis J.-Has not a plaint to be registered to give effect to the doctrine of Its pendens?] It is so in England (see 18 Halsbury 221). But here acceptance of a plaint is not a judgment or order which can be registered under our Registration Ordinance. Counsel cited Banerjee's Registration of Documents in India 46, 9 All. 1