1947 Present: Dias J.

NAZEER et al., Appellants, and HASSIM, Respondent.

271-C. R. Colombo, 96,001

Partition action-Co-owner's transfer, pending the action, of the share which would be allotted to him in the final decree-Rights of transferee-Jartition Ordinance, s. 17.

Landlord and tenant--joint landlords-Right of each landlord to share of rent- Several persons claiming rent as landlords-Right of tenant to call upon them to interplead-Civil Procedure Code, s. 632.

Where, pending a partition action, some of the co-owners covenant to convey absolutely all the shares, right, title and interest which will accrue to them under and by virtue of the final decree in the partition action, the other contracting party obtains an immediate interest in the property, but the title can only accrue upon the entering of the final decree.

In the case of a plurality of landlords, each of them is entitled to claim his share of the rent from the tenant, unless there is some express agreement to the contrary.

Obiter, where a tenant is sued for rent by a stranger as landlord, section 632 of the Civil Procedure Code does not prevent the tenant from suing his immediate landlord in interpleader.

APPEAL from a. judgment of the Commissioner of Requests, Colombo.

E. B. Wikramanayake (with him C. Renganathan), for the plaintiff, -appellants.

M. I. M. Haniffa (with him M. Abdulla) for the defendant, respondent.

Cur. adv. vult.

May 20, 1947. DIAS J.-

The three appellants, their brother and sister Sitti Rowha (now-deceased) are the owners of an undivided half of the premises known as No. 248, Main Street, Colombo, The other undivided half is said to belong to a Mrs. Nakeem.

The defendant is the monthly tenant of the whole premises. The practice was for him to pay one half of the rent to Mrs. Nakeem and the other half to A. J. M. Nazeer, the first plaintiff, for and on behalf of the co-owners of the other half.

In the case of a plurality of landlords, each of them is entitled, to claim his share of the rent from the tenant, unless it has been expressly agreed to the contrary-Buddharikita Terunnanse v, Gunasekara 1[(1895) 1 N. L. R. 206, Wills on Landlord and Tenant (3rd ed.) p. 168, Tambyah on landlord and Tenant p. 104], Panis Appuhamy v. Selenchi Appu 2[(1903) 7 N. L. R. 16.] and Weeraratna v. Abeywardene 3[(1934) 36 N. L. R. At at pp. 140-141.] The premises are the subject of a partition action-D. C. Colombo, Case No. 74.

On the occasion of the marriage of Sitti Rowha, the brothers and the prospective husband Keyath entered into the deed P1 dated September 9, 1939. The brothers convenanted to transfer, grant, and convey to 'Sitti Rowha absolutely as a marriage settlement all the shares, right

title and Interest in these premises which shall accrue to them under and by virtue of the final decree in the partition action and of the proceeds of sale, in the event of the Court decreeing a sale of the premises and that in the meantime, and until such time as their shares or the proceeds of sale as the case may be is granted as aforesaid, the brothers agreed to give Sitti Rowha the share of the rent accruing to them from the said premises No. 248.

It is to be observed that the covenant to pay the rent to Sitti Rowha is to her alone and not to her heirs, etc. Except for the fact that the deed is entered into with Keyath, he does not otherwise figure in the deed at all. The nature of a deed like P 1 was considered in the case of Manchanayake v. Perera 1[(1945) 46 N. L. R. 457.]. It was laid down that while a deed like P1 passes an immediate interest in the property and is not merely an agreement to convey in the future, the right or title comes into existence only upon the entering of the final decree in virtue of the jam tune principle of the Roman-Dutch Law or the equitable principle of the English Law that when the property comes into existence, the assignment fastens on