Olive Hughes V. Perera Et Al.,

1952 Present : Nagalingam A.C.J. and H. A. de Silva J.

OLIVE HUGHES, Appellant, and PERERA et al., Respondents

S. C. 169- D.C. Colombo, 5,481

Insolvency-Fideicommissum created by last will-Sale by assignee of spes successionis -Vendee's right to institute partition action in respect of the fideicommissary property-Insolvency Ordinance (Cap. 82), s. 71-Different categories of property that vest in assignee-Exceptio rei venditae et traditae-Applicability to forced sales.

One of the fideicommissarii in a fideicommissum created by last will was adjudicated insolvent and the assignee in insolvency sold to A. with leave of Court and by public auction the insolvent's spes successionis. Subsequently, after the death of the fiduciarius, the uncertificated insolvent sold his fideicommissary interests to B. In an action instituted thereafter by a successor-in-title of A. for the partition of the fideicommissary property-

Held, that the partition action was not maintainable as the assignee's sale of the spes successionis could not be said to have conveyed to the purchaser A. any title to the fideicommissary property. Proof that the insolvent was entitled to a spes successionis in respect of the land in question did not establish that the insolvent was entitled to the land itself within the meaning of section 71 of the Insolvency Ordinance.

Held further, that the acquisition of title by the insolvent after the death of the fiduciarius did not enure to the benefit of A., the purchaser from the assignee. The principle of exceptio rei venditae et traditae cannot apply to forced sales as distinct from private alienations.

Obiter : An uncertificated insolvent cannot deal with any immovable property that may have belonged to him prior to adjudication or even subsequent thereto but prior to the grant of a certificate of conformity.

APPEAL from a judgment of the District Court, Colombo.

H. V. Perera, Q.C., with H. W. Jayewardene and D. R. P. Goonetileke, for the sixteenth defendant appellant.

E. G. Wikramanayake, Q.C., with Kingsley Herath, for the plaintiff respondent.

Cur. adv. vult.

April 24, 1952. NAGALINGAM A.C.J.-

The sixteenth defendant in this action, which is one under the Partition Ordinance, appeals from the interlocutory decree entered by the learned Additional District Judge of Colombo directing a partition of the land, the subject-matter of the action, among the plaintiff and defendants, first to fourteenth, to the exclusion inter alios of the sixteenth defendant himself. The sixteenth defendant claims the share that has been allotted to the plaintiff and the sixth to the fourteenth defendants, and the contest in this case is between the sixteenth defendant on the one hand and the plaintiff and the sixth to the fourteenth defendants on the other.

All these parties derive their title from the same source, and the question for decision is who has, if any, the superior title-the sixteenth defendant, or the plaintiff and the sixth to the fourteenth defendants.

For the purpose of this appeal it is only necessary to consider the following facts : One Johannes Pieris by last will P15 of 1919 devised the land in question to his wife Mary, " subject to the condition that she shall not be entitled to sell or mortgage the same or any part thereof during her lifetime and after her death the same shall devolve on her and my seven children . . . . (the names are set out) . . . . in equal shares."

Johannes Pieris died in 1933, leaving him surviving his wife and six children, one child having predeceased the testator.

The contest relates to the interests of Wilfred, one of the surviving children. Wilfred was adjudicated insolvent on April 11, 1938, during his mother's lifetime. With leave of Court obtained the assignee appointed in his insolvency proceedings caused the interests of the insolvent to be sold by public auction and at that sale one Edward b

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