Mudalihamy V. Dingiri Menika

1927 Present: Garvin J. and Lyall Grant J.

MUDALIHAMY v. DINGIRI MENIKA

 167-D. C, Kurunegala, 10,000.

Exceptio rei venditae et traditae-Sale of undivided share-Partition decree allotting share to vendor-Claim by vendee-Finality.

Where a person who had sold his undivided interests in a land was subsequently allotted, in lieu of such undivided interests, a share in a partition action to which the purchaser was no party,-

Held, the decree in the partition action barred any claim by the purchaser to the land and that the plea of exceptio rei venditae et traditae was not available to him.

THIS was an action by the plaintiff for the declaration of title to an undivided half share of the defined western half share of a land called Hitinawatta. By deed No. 34,382 dated March 31, 1913, the first defendant sold the interests claimed to the plaintiff. Thereafter an action was instituted by one Ukku Banda, who claimed to be the owner of the eastern half of this land, for the partition of the whole land, and the first defendant was one of the defendants, in the action. The transfer of March 31, 1913, was not brought to the notice of the Court, and final decree was entered under which

a specified portion of land the equivalent of half share was allotted to the first defendant. The plaintiff was no party to the action. After the partition decree the first defendant transferred the land to the second defendant.

The learned District Judge held that title was concluded by the partition decree and dismissed the plaintiff's action.

H. V. Perera, for appellant.

February 22, 1927. GARVIN J.-

This is an appeal by the plaintiff, whose action for declaration of title to an undivided half share of the defined western half share of a land called Hitinawatta has been dismissed.

By deed No. 34,382 dated March 31, 1913, the first defendant sold and transferred the interests now claimed to the plaintiff. Thereafter an action was instituted by Ekanayake Mudiyanselage Ukku Banda, who claimed to be the owner of the eastern half of this land, for the partition of the whole of Hitinawatta, presumably upon the footing that the land was one and undivided. The present first defendant was one of the defendants in that partition proceeding. The fact of the transfer of March 31, 1913, was not brought to the notice of the Court, and when the final decree was entered a specific allotment of land being the equivalent of a half share of the land was allotted to the first defendant. The plaintiff, who was not a party to the action, was completely excluded by the partition decree so entered. Thereafter the first defendant transferred her interests to the second defendant.

The District Judge has held that the matter of titles is concluded by the judgment in the partition case and accordingly dismissed the plaintiff's action.

The facts as outlined above are not in dispute. It is sought, however, by counsel for the appellant to bring this case within the principle of Gunatilleke v. Fernando.1

He admits that there is a valid and subsisting decree under the Partition Ordinance, but he claims that the decree in so far as it declared his vendor entitled to the western half share of this land has enured to his benefit, and that he is therefore entitled to rely upon this very partition decree as part of his title.

Now, I am aware of no case in which it has been held that the exceptio rei venditae et traditae is available to a purchaser who is seeking to resist his vendor or a person claiming through him upon a title declared by the final decree in a partition action. Nor has counsel been able to refer me to any authority for the proposition. The matter is res integra.

1(1921) 22 N. L. R. 385

Under the Roman-Dutch law a purchaser who has got possession from the vendor who at the time of the sale had no title or a defective title could rely upon a title subsequently acquired by his vendor an

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