1951 Present: Gratiaen J. and Pulle J.

WIJESINGHE, Appellant, and SONNADARA, Respondent

S. C. 569-D. C. Matara, 19,243

Vendor and purchaser-Sale of contingent interest in partition action-Sale of a chance or expectation-Conventio rei speratae and Conventio spei simplicis-Validity of such contracts-Partition Ordinance, s. 17.

The sale by a co-owner in land of whatever interests might ultimately be allotted to him under the decree in a pending partition action may be construed as a conventio rei speratae. In such a case, if some benefit, even to a far smaller extent than the parties had originally hoped for, accrued to the seller under the partition decree, the purchaser is not entitled to claim a cancellation of the sale on the ground of failure of consideration.

APPEAL from a judgment of the District Court, Matara.

H. V. Perera, K.C., with H. W. Jayewardene and J. W. Subasinghe' for the defendant appellant.

U. A. Jayasundera, K.C., with C. G. Weeramantry, for the plaintiff respondent.

Cur. adv. vult.

May 29, 1951. GRATIAEN J.-

This appeal relates to a dispute which might well have been sensibly adjusted without resorting to litigation. The action was instituted in 1948, and the contract in respect of which the parties have fallen out was entered into nearly 21 years ago. The plaintiff is now 64 years old. The defendant is about the same age.

The facts with which this appeal is concerned are no longer in dispute. On some date prior to June, 1930, the defendant had instituted a partition action in respect of lots B, C, D and E of a vast tract of land in the Southern Province, known as " Shand's Land'', which is stated to be over 4,000 acres in extent. There is no evidence before us as to the nature or the value of the plantations on the property, or as to the manner in which it had previously been enjoyed by the plaintiff and 425 other persons whom, at one time or another, he joined as defendants in the action and with whom he had found that " common possession was no longer expedient or impracticable ". The present plaintiff was himself a party to those proceedings, but only in the capacity of a planter of some part of the property claiming compensation for the improvements effected by him.

At an early stage of the pendency of the partition action the plaintiff negotiated with the defendant for the, purchase of certain interests which the latter claimed in the property. An alienation of any existing undivided rights in the land was of course precluded by section 17 of the Partition Ordinance, and the proposed transaction was therefore

confined to the acquisition by the plaintiff of what might ultimately be allotted to the defendant under the final decree in the action. When such decree would be entered, no man could predict with any confidence. In point of fact, the action seems to have proceeded at a pace which was unusually leisurely for even a partition action in the Southern Province. Final decree was duly entered of record on 15th December, 1947, the interlocutory decree having been passed on 24th March, 1943.

I must now return to the negotiations which were taking place in 1930. On 17th June of that year the defendant, in consideration of a sum of Rs. 5,000, which was duly paid to him, sold to the plaintiff under a notarial conveyance :-

"1. All that undivided one hundred acres together with all the rights advantages and disadvantages such as costs compensation et cetera thereto appertaining out of the extent and the share in common or severally which may be allotted to the vendor under the finally conclusive decree which may be entered in the partition case No. 2664 of the District Court of Tangalla of the land called Godakogalla (exclusive of the block A partitioned in case No. 1207 in the District Court of Tangalla, the block called Shandsland partitioned in case No. 1538 in the District Court of Tangalla and blocks B and C as per