Singaravelu, V. Ponnan Et Al.,

1948     Present: Canekeratne and Gratiaen JJ.

SINGARAVELU, Appellant, and PONNAN et al., Respondents

S. C. 316-D. C. Point Pedro, 2,126

Thesavalamai-Debt of husband-Decree-Sale in execution after death of wife- Thediatetem, property-Title of children not affected by salt,

First defendant who was subject to the Thesavalamai was married to one M. In 1926 first defendant borrowed money on a promissory note. M died in 1929 leaving as heirs her children, the second and fourth plaintiffs. Action was brought on the promissory note against the first defendant only and decree entered in 1932. At a sale in execution in 1933 the right, title and interest of the first defendant in the property in question which was thediatetem was sold and purchased by the second and third defendants from whom it ultimately came to the sixth defendant.

Held, that the half share which devolved on the children on M's death did not pass to the purchaser at the sale.

APPEAL from a judgment of the District Judge, Point Pedro.

E. B. Wikramanayake, K.C., with PL Wanigatunga, for sixth defendant appellant.

N. E. Weerasooria, K.C., with V. Arulambalam, for plaintiffs respondents.

H. W. Tambiah, with S. . Mahadevan, for second and third defendants respondents.

September 17, 1948. CANEKERATNE J.-

We dismissed the appeal at the close of the argument with an intima­tion that reasons would be given later. The delay is partly due to the fact that some days elapsed before the record in the Kurunegala case referred to later was available.

In this action the second and fourth plaintiffs claimed one-third share of a land called Alakkadavai. The first defendant who was married to one Muththy purchased this land by deed P1 dated September 18, 1920; his wife died on or about June 28, 1929, and the second and fourth plain­tiffs are two of the children of the marriage. It is not contended that the view taken by the learned Judge, that a half share of the land devolved on the children of Muththy on her death, is incorrect. But the appellant

contends that on D 1 dated September 24, 1934, the second and third defendants became entitled to the entire property and that he became the owner by D 2.

On December 19, 1931, the second defendant sued the first defendant for recovery of a sum of money due on a promissory note dated October 24, 1926, and on March 23, 1932, he obtained a money decree for Rs. 295 with interest and costs. In execution of the judgment in this case, the right, title and interest of the first defendant in this land was seized and sold on September 6, 1933, and purchased by the second and third defendants on D 1. The children of Muththy were not parties to this case, the judgment was one against the first defendant personally and not in a representative capacity. The general rule that a transaction between parties in a judicial proceeding would not be binding upon a third party ought to apply unless the authorities quoted at the argument on behalf of the appellants, namely, Avitchy Chettiar v. Rasamma 1[(1933) 35 N. L. R. 313.] and Sewakeenpillai v. Murugupillai 2[(1940) 18 C. L. W

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