1926 Present: Lyall Grant J. and Maartensz A. J.

FERNANDO v. ATUKORALE.

 391-D. C. Colombo, 13,530.

Partition action-Sale of interest after interlocutory decree-Agreement to sell-Seizure in execution after final decree.

In a partition action, after interlocutory decree had been entered, a party sold " the shares of the premises which will be decreed tome in the scheme of partition " to the second defendant.

After final decree had been entered, the divided portion of the land which had been allotted to the party in question was seized in execution of a decree against him obtained by the plaintiff. The second defendant thereupon claimed the property and his claim was upheld.

Held (in an action under section 247 of the Civil Procedure Code by the plaintiff), that the deed of transfer, pending the action, did not convey any interest in the land to the second defendant and amounted only to an agreement to sell; and that the property was executable in satisfaction of the plaintiff's decree.

APPEAL from a judgment of the District Judge of Colombo. This was an action under section 247 of the Civil Procedure Code in which the plaintiff sought to have deed No. 156 of July 27, 1923, executed by the first defendant in favour of the second defendant set aside and the land claimed by the second defendant under the deed declared liable to seizure and sale under a decree obtained by the plaintiff against the first defendant on October 30, 1922. The plaintiff instituted an action in the District Court of Colombo, against the first defendant for the partition of the land. On July 6, 1923, the interlocutory decree was entered declaring the plaintiff and the first defendant entitled to two-thirds and one-third of the land. On July 27, 1923, the first defendant executed the deed No. 156 in

question by which he conveyed " the share of the premises hereinafter described which will be decreed to me in the scheme of partition in partition case No. 6,694 of the District Court of Colombo." On April 6, 1924, final decree was entered in the partition suit. On February 4, 1924, plaintiff took out writ in execution of a decree obtained by him against the first defendant, and on August 14, 1924, seized lot A which had been allotted to first defendant in the final decree in the partition action. The second defendant claimed by virtue by deed No. 156 and his claim was upheld. The plaintiff thereupon instituted the present action under section 247 of the Civil Procedure Code. The learned District Judge gave judgment for plaintiff.

Hayley, for second defendant, appellant. '

H. V. Perera (with Ameresekere), for plaintiff, respondent.

September 3, 1926. LYALL GRANT J.-

This is an appeal from the District Court of Colombo. The plaintiff and the first defendant were co-owners of a land which was partitioned in an action instituted on October 30, 1922.

Interlocutory decree was entered on July 6, 1923, and final decree on April 6, 1924. The first defendant had been in possession of the whole of the land since 1921. The plaintiff sued him for mesne profits and obtained judgment for Rs. 190 and costs. On February 4, 1924, the plaintiff took out writ, and on August 14, 1924, seized lot A which had been allotted to the first defendant in the partition case.

The second defendant claimed to be the owner of the lot by virtue of a deed of transfer in his favour dated July 27, 1923. That claim was upheld and the plaintiff brought an action under section 247 of the Civil Procedure Code for a declaration of title that the land was liable to be seized and sold under the decree, and that the transfer in favour of the second defendant was void as it had been executed during the pendency of the partition action and alternatively on the ground that the transfer was in fraud of creditors.

The learned District Judge held that the deed of transfer was a conveyance by the first defendant in favour of