[FULL BENCH.]

Present: Bertram C.J., and Ennis and De Sampayo JJ.

GUNATILLEKE v. FERNANDO et al.

265-D. C. Colombo, 51,907.

Sale by a person who has no title-Subsequent acquisition of title-Exceptio rei venditae et traditae-Res judicata-Land Acquisition Amendment Ordinance, No. 44 of 1917-Is it retrospective in its effect?

Where a vendor sells without title, but subsequently acquires one, this title accrues to the benefit of the purchaser and those claiming through him from the moment of its acquisition by the vendor.

Held, by the Fall Court, this principle of the Roman Dutch law-

(a) Is not abrogated by Ordinance No. 7 of 1840.

(b) Is not available only as a defence, but can also be made the foundation of an action.

(c) Is not, in the latter case, limited to actions brought for the recovery of a lost possession.

But, held, per DE SAMPAYO J., what passes to the purchaser is not an actual title, but a right, if defendant, to protect himself by an equitable exception, or, if plaintiff, to recover the property by an action based on a legal fiction.

Per DE SAMPAYO J.-This principle cannot be asserted against a bona fide purchaser for value. (This question was reserved by Bertram C.J.)

Where in an action a claim to put forward a certain contention is disallowed, without prejudice to the right of the person raising it, to bring a separate action to assert it, the matter is not res judicata even though no such action is brought.

Section 48 of the Land Acquisition Amendment Ordinance, No. 44 of 1917, has not a retrospective operation.

Maria conveyed a property to her son Palis, subject to a fidei commissum in favour of her sons Stephen and Nicholas, if he died without issue, and subject to a life interest to herself. It was contemplated by the deed that, notwithstanding the fidei commissum, Palis should have a free power of disposition of the property daring his lifetime after attaining the age of twenty-five, subject always to his mother's life interest.

Stephen and Nicholas, before their title as fidei commissaries accrued, sold the property to A. After their title accrued they gifted the same property to F.

Held, that F acquired no title as against those claiming through A.

Held, per BERTRAM C.J., that Maria having thus created a. specific trust in favour of Stephen and Nicholas could not defeat their rights by joining with Palis in a conveyance of the property.

THE facts are set out as follows in the judgment of the District Judge (L. Maartensz, Esq.): -

This is an action for declaration of title to two contiguous allotments of land situated in Colpetty, which admittedly belonged to Maria Felsinger.

Maria Felsinger gifted the land to her son Palis Swaris by deed No. 860 dated September 23, 1882, subject to the following conditions, namely: -

(1) That Maria Felsinger was to have the right of possession, the rents, income, and produce until Palis Swaris arrived at the age of
twenty-five years.

(2) That if Maria Felsinger was alive when Palis Swaris attained twenty-five years of age, he was not to sell, mortgage, or alienate the property daring her lifetime.

(3) That if Maria Felsinger died before Palis Swaris attained twenty-five years of age, then Palis Swaris was not to sell, mortgage or alienate the property until he arrived at the age of twenty-five years.

(4) That if Palis Swaris died without issues, the land was to devolve on his two brothers Stephen Swaris and Nicholas Swaris, or their lawful issue, subject to a life interest in favour of Maria Felsinger.

Maria Felsinger and Palis Swaris, by deed No. 884 dated December 5, 1893, sold the land to D. J. Fernando.

Nicholas and Stephen Swaris, by deed No. 1,923 of February 23, 1895, sold the land to one Don Cornelis, who by deed No. 4,028 dated February 2, 1905, transferred the land to Mr. Charles Perara. Mr. Charles Perera died leaving a will by which he appointed Mr. James Perera hi