[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. 9 of 1917. Appellant has no remedy as the action for damages is only available to persons who have been designedly shut out. Counsel cited Babey Nona v. Silva,1[(1906) 9 N. L. R. 251.] Abeyesundere v. Abeyesundere, 2[(1909) 12 N. L. R. 373.] Weeresekera v. Carlina. 3[(1912) 16 N. L. R. 1.]

F. M. de Saram (with him Chitty), for respondent.-There is no analogy between the case of fidei commissum and a trust of this nature. In the case of a fidei commissum the trust is impressed on the land and exist as an established fact, partition cannot destroy it. The trust set up by the appellant is in the nature of a mere obligation express or implied to reconvey. It has to be proved and established, if proof is possible, considering that it is a trust agreement. All interests, except those specially conserved under the Partition Ordinance, are wiped out by the decree. Section 9 confers absolute title. To read the words "as to trustee for" into the decree would amount to a variation of the decree, which is not permissible.

Appellant has his remedy in damages under the Ordinance whether he was accidentally or designedly shut out. Counsel cited Babunona v. Cornelis Appu,1 Galgamuwa v. Weerasekera,2 Silva v. Silva.3

Cur. adv. vult.

August 4,1920. BERTRAM C.J.-

The question for determination in this case relates to an alleged constructive trust attaching to an undivided share of a land which was the subject of a partition suit. The person beneficially interested under the alleged trust-though himself otherwise a party to the suit-did not assert a claim to his equitable right in the suit. Judgment was given, and a decree entered, without any reference to the trust. The question is therefore, whether, assuming the existence of the trust, it is extinguished by the decree, or whether it attaches to the share allotted in severalty.

The question comes before us as the result of a progressive process of interpretation of sections 2 and 9 of the Partition Ordinance. In the case of a fidei commissum that process has been carried to its full extent; in the parallel subject of trusts, the process has been checked and suspended at a point short of its logical conclusion by the decision of this Court in Babunona v. Cornells Appu.1 It is for the purpose of reviewing that decision that the present Court has been constituted.

The history of the process in its application to fidei commissum has been as follows: In D. C. Colombo, No. 69,169,4 the Full Court declared that a property subject to a fidei commissum could neither be sold nor partitioned under the Partition Ordinance. Twenty years later this view was supported by an obiter dicta of the Privy Council itself in the well-known case of Tillekeratne v. Abeyesekere.5 In the same year, however,