Manchenayake V. Perera Et Al.,

1945 Present: Soertsz A.C.J. and Canekeratne J.

MANCHENAYAKE, Appellant, and PERERA et al, Respondents.

357-D. C. Colombo, 2,801.

Partition action-Co-owner's transfer, pending action, of what would be allotted to him in the final decree-Conveys immediate interest in the property- Partition Ordinance (Cap. 56), s. 17.

A conveyance executed after the institution of a partition action, and before the entering of the final decree, purporting to " sell, assign, transfer, and set over " to the vendee " the interest to which the said vendor may be declared entitled to in the final decree to be entered into in the said case from and out of all that land " (i.e., the subject of the partition suit) is valid and not obnoxious to section 17 of the Partition Ordinance. It passes an immediate interest in the property and is not merely an agreement to convey in the future.

Khan Bhai v. Perera (1923) 26 N. L. R. 204 and Hewawasan v. Gunasekera (1926) 28 N. L. R. 33, followed.

Fernando v. Atukorale (1926) 28 N. L. R. 292, not followed.

APPEAL from a judgment of the District Judge of Colombo. By A. deed No, 4,021 dated June 12, 1937, J and Y who were the first and second defendants in a partition action which was then pending sold and conveyed to one S the interest which the vendors would be declared entitled to under the final decree to be entered in the said case. Final decree was duly entered on March 2, 1938, and J and Y were declared entitled to lots A2 and B4. S by deed dated July 19, 1940, purported to sell and convey lots A2 and B4 to the plaintiff. In this action the plaintiff sought to be declared entitled to lot A2. The learned District Judge dismissed the plaintiff's action stating, as main reason, that in the absence of a conveyance from J and Y to S after the partition decree was entered it could not be contended that S could claim to have been lawfully entitled to lots A2 and B4.

H. V. Perera, K.C. (with him S. R. Wijayatilake), for plaintiff, appellant.-The question for consideration is whether a conveyance, executed after the institution of a partition action but before final decree, purporting to sell the interest which the vendor may be declared entitled to in the final decree, is obnoxious to section 17 of the Partition Ordinance. The District Judge held the document to be only an agreement to sell. It is submitted that the document was an actual conveyance of a future thing, an absolute sale of what would be allotted in the final decree at a future date. That being so no further conveyance would be necessary to pass title when the time arrives-Berwick's Voet (1902 ed.) p. 18. Such a sale would not be obnoxious to section 17 of the Partition Ordinance-Louis Appuhami v. Punchi Baba 1, Rajapakse v. Dassanayake 2, Khan Bhai v. Perera 3, Hewawasan v. Gunasekera 4, Subaseris v. Prolis 5, and Salee v. Natchia 6'. The contrary view stated by Maartensz J. in

1 (1904) 10 N. L. R. 196.    4 (1926) 28 N. L. R. 33.
2 (1928) 29 N. L. R 509.    5 (1913) 16 N. L. R. 393.
3 (1923) 26 N. L. R. 204.   6 (1936) 38 N. L. R. 259.

Fernando v. Atukorale 1 was obiter. It is submitted that immediately after the entering of final decree the title which vests in the seller automatically passes to the purchaser. The doctrine of exceptio rei venditae et traditae does not apply to future things sold. For that doctrine to apply the thing must have a present existence but the title vests later.

E. B. Wikramanayake (with him H. A. Koattegodde) for defendants, respondents.-The observations of Maartensz J. in Fernando v. Atukorale (supra) were not obiter. The specific question arising in the present appeal was dealt with in that decision. See also the judgment of Ennis A.C.J. in Appuhamy v., Babun Appu2. A conveyance of undivided shares would clearly be obnoxious to section 17 of the Partition Ordinance. A sale of a future thing, viz., the divided share to be allo

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