Sirisoma Et Al., V. Sarnelis Appuhamy Et Al.,

1950 Present: Dias S.P.J., Gratiaen J. and Pulle J.

SIRISOMA et al., Appellants, and SARNELIS APPUHAMY
et al., Respondents

S. C. 30-D. C. Balapitiya, L 90

Co-owner's alienation or hypothecation, pending partition proceedings, of what would be allotted to him in the final decree-Validity and. effect of such alienation or hypothecation-Partition Ordinance, sections 9 and 17.

Section 17 of the Partition Ordinance does not prohibit the alienation Or hypothecation, pending partition proceedings, of an interest to which a co-owner may ultimately become entitled by virtue of the decree in the pending action.

Where an instrument is executed, pending partition proceedings, in respect of an interest to which the grantor may ultimately become entitled upon the decree, the question whether it should be construed as an actual alienation or hypothecation of such contingent interest or merely as an agreement to alienate or hypothecate such interest (if and when acquired) must be decided in accordance with the ordinary rules governing the interpretation of written instruments.

If such an instrument is in effect only an agreement to alienate or hypothecate a future interest, if and when acquired, no rights of ownership or hypothecary rights (as the case may be) pass to the grantee upon the acquisition of that interest by the grantor unless and until the agreement has been duly implemented; if, without implementing this agreement, the grantor conveys to a third party the rights which he has acquired under the decree, the competing claims of that third party and of the original grantee must be determined with reference to other legal principles such as the application of Section 93 of the Trusts Ordinance.

If the instrument is in effect a present alienation or hypothecation of a contingent interest, the right of ownership (or the hypothecary rights) vest in the grantee automatically upon the acquisition of that interest by the grantor; a,nd no further instrument of conveyance or mortgage requires to be executed for the purpose; the execution of "a deed of further assurance" confirming the result which has already taken place may in certain cases be desirable but it is not essential in such a case.

The provisions of section 9 of the Partition Ordinance do not invalidate a transaction whereby an interest (which is not presently vested in the grantor and which could only become vested in him, if at all, upon the passing of a final decree for partition) is intended to pass to the grantee upon its acquisition.

Appuhamy v. Babun Appu {1923) 25 N. L. R. 370 and Fernando v. Atukorale (1926) 28 N. L. R. 292 overruled.

CASE referred by Wijeyewardene C.J. to a Bench of three Judges.

E B. Wikramanayake, K. C, with C. V. Ranawake and C. Seneviratne, for defendant appellants.-The question for decision is whether the sale of divided lots which may be allotted in a partition action operates as an actual conveyance or merely as an agreement to convey. Louis Appuhamy v. Punchi Baba [(1904) 10 N. L. R. 196.] and Subaseris v. Prolis [(1913) 16 N. L. R. 393.] are not helpful decisions

as the question whether the transaction operates as a present conveyance or an agreement to convey was not considered. The decision in Khan Bhai v. Perera [(1923) 26 N. L. R. 204] to the effect that persons desiring to dispose of their interests in property subject to a partition action can only do so by disposing of the interests to be ultimately allotted to them in the action was obiter to the question at issue. That case does not bear the interpretation given by Soertsz A.C.J. in Manchanayake v. Perera [ (1945) 46 N. L. R. 457]. See also Fernando v. Atukorale [ (1926) 28 N.L.R. 292.]. If the deed in the present case passes title then section 9 of the partition Ordinance destroys that title. If it does not pass title then there is only an agreement to convey giving rise to

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