1926 Present: Garvin and Dalton J J., and Jayewardene A. J.

HEWAWASAN v. GUNASEKERE.

193-D. C. Galle, 21,468.

Partition-Sale of divided lots after interlocutory decree-Legality- Carcnaul for further assurance--Ordinance No. 10 of 1863 s 17.

In a partition action, after interlocutory decree was entered, a commission was issued and a survey of the land made, according to which it was proposed to allot to the defendant certain specific lots in the final decree.

Before final decree was entered the defendant transferred the said lots to the plaintiff, with an undertaking to execute such other deeds, &c, as may be necessary to assure more perfectly the premises to the purchaser.

Held (by Garvin and Dalton J J., Jayewardene A. T. dissenting), that the transaction was not obnoxious to section 17 of the Partition Ordinance, and might be given effect to, as between the two parties.

In a partition action the defendant was declared entitled to certain shares of a land, and the Surveyor-Commissioner proposed to assign him lots 2a. 2b, and 2 as his share. After the scheme of partition had been settled, but before final decree was entered, two deeds, Nos. 27 and 28, respectively, were executed between the plaintiff and the defendant. By deed No. 27 the defendant sold and purported to convey to the plaintiff lots 2A, 2B, and 2; and by deed No. 28 the parties considering that the deed was executed before final decree further agreed to give efficacy to the deed of sale No. 27. No possession was to be granted to the plaintiff until after final decree was entered. After final decree was entered the plaintiff requested the defendant to execute a further deed conveying to him the lots 2A, 2B, and 2 awarded to the defendant by the final decree. The defendant failed and neglected to execute the deed, and this action was brought to compel him to do so. The plaintiff's claim was successfully resisted in the District Court on the ground that deeds Nos. 27 and 28 were obnoxious to section 17 of the Partition Ordinance. From this judgment and order the plaintiff appealed.

Hayley (with H. V. Perera and Ameresekere), for plaintiff appellant.-The question that has to be decided is whether the covenant for further assurance is obnoxious to section 17 of the Partition Ordinance. Section 17 applies only to undivided shares, not to specific allotments (Louis Appuhamy v. Punchi Baba 1).[1 (1904) 10 N. L. R. 196.]

In Appuhamy v. Babun Appu 1 the conflict was between two grantees deriving title from the same source. They asked for a declaration of title and not for a declaration that the covenant was a valid one.

A subsequent acquisition of title by the vendor accrues to the vendee (vide Rajapakse v. Fernando 2). In Collyer v. Isaacs 3 it was held that where one transfers for valuable consideration his interests under his father's will, he will be compelled by equity to do so when he does obtain an interest under the will.

Counsel also cited 16 N. L. R. 393; Jabbar v. Marikar.4 Even if the sale conveys no interest, yet the covenant stands as a separate contract. In Parker v. Duswell 5 it was held that although a conveyance may fail to transfer any interest, yet it may be good as a promise to convey which may be specifically enforced.

If the final decree wipes out all previous title, then the vendor must be regarded as a constructive trustee for the vendee of what he obtains under the final decree. This is a matter where only the vendor and vendee are concerned and no third parties are interested, and there must be some very strong policy of the law against the carrying out of the covenant before the vendor is. allowed to go back on his own promise.

Counsel also cited Edward v. Dick 6: Pilpot v. Pilpot 7; Maxwell on Statutes 374, 609.

Drieberg, K. C. (with Soertsz), for defendant, respondent.- Section 9 wipes out whatever right, or title, or claim in the said property. The