Present : De Sampayo and Porter JJ.

SIDAMBARAM CHETTY v. PERERA et al.

503-D. C. Chilaw, 6,678.

Mortgage of a divided share by a person who was entitled to an undivided share-Partition action-Does the mortgage attach to the divided portion allotted to the mortgagor, or to the person who represents the mortgagor ?

The first defendant who was entitled to an undivided share of a land mortgaged a divided portion of the land to the plaintiff. Subsequently, the second defendant, who purchased first defendant's interests at a Fiscal's sale pending a partition action, was decreed entitled to a divided portion (representing the undivided share of the first defendant). Plaintiff brought an action on the mortgage bond.

Held, that the mortgage did not attach to the divided portion allotted to the second defendant.

THE facts appear from the judgment.

Jayawardene, K.C. (with him Croos-Dabrera), for the appellants-

The .mortgage was of a divided portion. In the partion case it was held that the mortgagor was only entitled to an undivided share which has been since sold in execution. The purchaser in execution has been allotted a divided por