Khan Bhai V. Perera Et Al.,

[Full Bench.]

Present: Bertram C.J., Ennis, Schneider, and Garvin JJ., and Jayewardene A.J.

KAHAN BHAI v. PERERA et al.

154-D. C. Colombo, 32,666.

Partition action-Decree for sale-How long does prohibition against alienation continue ?-Ordinance No. 10 of 1863, s. 8.

The prohibition against alienation or hypothecation of undivided shares or interests in property subject to a partition action, where the Court decrees a sale, continues until the issue of the certificate under section 8 of the Partition Ordinance, 1863.

Persons desiring to charge or dispose of their interests in a

property subject to a partition suit can only do so by expressly

charging or disposing of the interest to be ultimately allotted to them in the action.

THIS was a partition action in which a decree for partition was first entered on November 12, 1912. There was an appeal against that decree, and the appeal was dismissed on March 14, 1913. At this stage, certain parties intervened, and at the trial order was made allotting certain shares to the intervenient, and a decree was accordingly entered. There was an appeal from this decree also which was dismissed on May 25, 1916.

On December 1, 1916, a consent motion was filed moving for a sale of the property which was allowed by the Court on December 11, 1916. No sale, however, ever took place.

On October 5, 1922, the fifth plaintiff's share was sold by the Fiscal under writ issued in case No. 4,129 of the District Court of Colombo, and was purchased by the appellant who obtained for it Fiscal's transfer dated March 15, 1923. On March 20, 1923, the appellant moved to have himself substituted for the fifth plaintiff and to have the shares of the fifth plaintiff given to him. This was allowed by the Court.

On an application being made to the Supreme Court, that Court on December 18, 1922, set aside the decree for sale and entered a decree for partition, and ordered the District Judge to consider the scheme of partition and enter final decree.

By bond No. 702 of September 27, 1917, the fifth plaintiff had mortgaged his 7/96 shares to the respondent, who moved on April 23, 1923, to have the fifth plaintiff's shares declared subject to this Mortgage. This application was opposed by the appellant who urged that as execution-purchaser he had been substituted in the place of the fifth plaintiff, and that the mortgage executed by the fifth plaintiff was void, as it had been effected during the pendency of the partition action. 

The District Judge allowed the respondent's application with costs.

The following is the judgment of the Acting Additional District Judge (V. M. Fernando, Esq.): -

In this case a decree for partition was entered on November 12, 1912. There was an appeal against that decree, and thereafter several parties intervened, and the proceedings continued till December 11, 1916, on which date a decree for sale was entered apparently with the consent of parties, the District Judge also stating that he thought a partition impracticable. There was no appeal against this order, and in September, 1917, a commissioner was appointed to carry out the sale.

The fifth plaintiff who is allotted 48/288 subject to an entail and 21/288 absolutely mortgaged his 21/288 share by bond No. 702 dated September 27, 1917, to the intervenient, who now asks that the fifth plaintiff's rights be declared subject to this mortgage.

In October, 1922, the rights of the fifth plaintiff having been seized by the Fiscal in execution, the same were sold and purchased by the substituted fifth plaintiff who opposes the application of the intervenient. In December, 1922, the order of this Court directing the sale of the land was set aside by the Supreme Court in revision, and an order of partition entered in the case.

The position taken up by the fifth substituted plaintiff is that he him-self, being the purchaser at a forced sale, is entitled to be sub

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