Wirawardane Et Al. V. Ratnaike

Present : De Sampayo J. and Schneider A.J.   1920.

WIRAWARDANE et al. v. RATNAIKE.

44-D. C. Colombo, 53,707.

Vendor and purchaser-Warrant and defend-Partition action-Notice by vendee to vendor-Action for damages for failure to warrant and defend-Defence that vendor cannot intervene in partition action- Object of notice.

The defendant sold a land to the plaintiff. Subsequently third parties instituted an action for the partition of a portion of the land. The plaintiff intervened, and gave notice to warrant and defend to the defendant. The defendant gave evidence for the plaintiff; plaintiff's claim was rejected. Subsequently, plaintiff instituted this action against defendant for damages for failure to warrant and defend title. The defendant resisted the claim on the ground that he was not at liberty to intervene in the action, as a partition action could be among co-owners only, and that, therefore, he was not liable under the Roman-Dutch law for eviction.

Held, that the defence was bad. There was nothing in the Partition Ordinance to prevent the vendor from intervening in the partition action.

The object of a notice to the vendor is simply to notify that the title is in dispute. It is left to the vendor either to make himself a party, or in any other manner assist the proof of the title conveyed by him. It is not essential that he should become a party.

J. S. Jayawardene, for defendant, appellant.

E. W. Jayawardene, for plaintiff, respondent.

Cur. adv. vult.

October 5, 1920. DE SAMPAYO J.-

This is an action ex evictione for damages against the defendant for failing to warrant and defend the title to a land which the defendant had sold and conveyed to the plaintiff. An action for partition of the southern portion of the land among certain third parties was subsequently brought. The plaintiff intervened in that action, and gave notice to the defendant of that action, and called upon him to warrant and defend the title. The defendant did not make himself a party to the action, but only gave evidence as a witness for the plaintiff. He failed to establish his title, and the other parties to the action was declared entitled to the land. The defendant resists the plaintiff's present claim on the ground that he was not at liberty to intervene in the action, as a partition action could be among co-owners only, and that, therefore, he is not liable under the Roman-Dutch law for eviction. His counsel relies on Murugan v. Murugupillai.1[(1914) 3 Bal. N. C. 14.] That judgment was my own, and I expressed an opinion, which was not necessary to the decision of the case; that the object of the notice under the Roman-Dutch law was to enable the vendor to intervene in the action where the vendee's title was disputed and to take up the cause of the vendee, and that was not possible in a case where the action in which the dispute arose was a partition action. I wish to say that I there appear to have taken too narrow a view of the law. The expression used in Voet 21, 2, 20 is ut litie assistat, which does not necessarily mean that the vendor should make himself a party to the action. The object of his doing so, if he so chooses, is, as explained by Voet, to prevent collusion, and not to convert the litigation into one against himself. At the same time, Voet points out other ways of fulfilling the vendor's obligation, such as by becoming the purchaser's procurator in rem suam, or by supplying the purchaser, whose title is attacked, with assistance and proof for establishing the title (adminicula ac probationes ad jus afferendum suppedidet). In accordance with- these principles, Pereira J. observed in Menika v. Adakappa Chetty,2[(1913) 17 N. L. R. 93.] that it was the duty of the vendor to have himself added as a party to the action " or otherwise render to the defendants in that case (that is to say, his vendees) all the help that it was pa. his power to rend

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