[FULL BENCH.]

1920   Present : Bertram C.J. and Shaw and De Sampayo JJ.

MARIKAR v. MARIKAR.

407-D. C. Puttalam, 3,221.

Partition-Trust not extinguished by decree-Right of cestui qui trust.

A trust, express or constructive, is not extinguished by a decree for partition, and attaches to the divided portion, which on the partition is assigned to the trustee.

THE facts appear from the judgment.

A. St. V. Jayawardene (with him Cooray), for appellant.-In the case of fidei commissum property the trust attaches to the share in severalty, although there is no mention of the fidei commissum in the partition decree ; even a bona fide purchaser for value has been held to be affected by the trust. The same principle should apply in the case of any other trust such as the one in question. The words " right or title " in section 9 of the Partition Ordinance must be taken to refer to right or title inconsistent with the title set up by the party to the suit. A trustee's title is not inconsistent with the title of the cestui qui trust. In the case of a trust of this nature innocent purchasers are protected by section 66 of the Trusts Ordinance, No.