Salee Et Al. V. Natchia Et Al.,

1936   Present : Moseley J. and Fernando A.J.

SALEE et al. v. NATCHIA et al

175-D. C. Kalutara, 14,337.

Partition-Transfer of shares pending partition-Shares to be awarded in partition case or of amount realized by sale of property-Validity of sale -Ordinance No. 10 of 1863, s. 17.

Where the interests in a land in respect of which a partition action was pending were transferred in the following terms :

" We do hereby sell and transfer all that right and title described in the schedule belonging to us or the shares of the said property to be awarded by the decision arranged in partition case No. 5,303 now pending or the shares of the amount that will be realized by the sale of the said property."-

Held, that the transfer was not obnoxious to section 17 of the Partition Ordinance.

Hewawasan v. Gunasekere (28 N. L. R. 33) followed.

APPEAL from a judgment of the District Judge of Kalutara.

Weerasooria (with him T. S. Fernando), for 11th to 11D defendants, appellants.

Haniffa, for 3rd and 13th defendants, respondents.

Cur. adv. vult.

November 9, 1936. FERNANDO A.J.-

This is a partition action, and the main question that arises on this appeal is whether the deed of transfer 11 D 11 was inoperative in view of section 17 of Ordinance No. 10 of 1863. It is common ground that D. C. 5,303 was a partition action for a land of which the lot now in dispute formed a portion, and that the plaint in that action was filed on May 21, 1913, and final decree was entered on November 2, 1914. Deed 11 D 11 is dated June 4, 1914, and was therefore clearly executed before the final decree.

The learned District Judge states that deed 11 D 11 deals with undivided interests and for this reason he appears to have come to the conclusion that that deed was inoperative. The deed, however, is in these terms:" We .... do hereby sell and transfer all that right and title described in the schedule belonging to us, or the shares of the said property to be awarded by the decision arranged in partition case No. 5,303 now pending, or the shares of the amount that will be realized by the sale of the said property ". Now the question whether a deed of this kind is valid in view of section 17, and if valid what effect such deed has, have been considered in a series of judgments of this Court. In Abdul Ally v. Kelaart [1 1 Balasingham 140.] Wendt J. held that a deed by which the vendor purported to sell and convey his undivided share of a property, which was the subject of a partition action where the deed further provided that if in the partition action the property shall be sold in its entirety and converted into money the vendor shall be entitled to take and receive to his own use so much of the proceeds realized by such sale as shall represent his undivided share sold, was not obnoxious to section 17 because at that date the vendor had not an undivided interest in the land, but an interest which had been transmuted by the decree into a right to receive a share of the proceeds sale. De Sampayo J. in the same case thought that the deed apart from its effect as a conveyance of the share also contained an assignment of the equivalent share of the proceeds of the sale, and that the deed looked at in this way did not contravene the letter or the intention of section 17. In the same year 1904, the Supreme Court in Louis Appuhamy v. Punchi Baba [2 10 N. L. R. 196]. held that section 17 was not intended to affect, or hinder, or prevent persons from alienating the right to which they might become entitled after a partition had been decreed. "Such a sale", said Layard C.J. "executed during the pendency of a partition suit in respect of a share or interest to which a person might become entitled after the partition suit has terminated, appears to me not affected by section 17". In Subaseris v. Porolis [ 3 16 N. L. R. 394.] Wood Renton C.J. after referring to these two cases observed th

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