1957 Present: Weerasooriya, J., and Sansoni, J.

SABARATNAM et al., Appellants, and KANDAVANAM, Respondent,

S. C. 124-D. C. (Inty.) Point Pedro, 4,431

Deed-Sale by two or more persons of their shares of a land-Failure of one of them to sign the deed-Binding effect of deed.

Co-owners-Transfer of entire property by a co-owner-Transferee's rigl ts-Pres-cription--Ouster.

(i) A, B and C purported to sell to D by the same deed an undivided 8/32 share of a land. The 8/32 share consisted of the 6/32, 1/32 and 1/32 shares of A, B and C respectively. Although the deed of sale (P1) recited C as one of the parties to it, his interest did not actually pass as he either omitted or declined to sign it. Subsequently A transferred the entirety of the land to E. In the present action instituted by D claiming 7/32 share as against E-

Held, that the failure of C, one of the intended executants, to sign the deed P1 did not have the effect of not binding the other parties who executed it.

(ii) Where a person who is in possession of property as a co-owner transfers the entirety of the common property to a stranger but continues to be solely on the land, his continued possession, though covertly on behalf of the transferee, is not adverse to the other co-owners in the absence of evidence of ouster by him of the other co-owners.

APPEAL from an order of the District Court, Point Pedro.

C. Thiagalingam, Q.C., with A. Nagendra, for the 1st and 2nd defendants appellants.

S. J. V. Chelvanayakam, Q.C., with. K. Rajaratnam, for the plaintiff-respondent.

Cur. adv. vult.

March 4, 1957. WEERASOORIYA, J.-

In accordance with our previous order the proceedings were remitted to the District Court to enable the plaintiff-respondent to produce the duplicate of deed No. 11385 dated the 20th October, 1911, which is in the custody of the Registrar of Lands. This deed has now been produced marked P1 A, and the learned District Judge has held that the presumption in section 90 of the Evidence Ordinance relating to the due execution and attesting of it may be applied. We see no reason to disturb that finding.

This deed purports to be a sale of certain interests in the land in suit, aggregating an undivided 8/32 share, in favour of one Velar Kandiah, by Sathasivampillai (who is the predecessor in title of the 2nd defendant-appellant) in respect of an undivided 6/32 share, and Nagalingam and Sivasambu each in respect of an undivided 1/32 share. Meenatchipillai the mother of Sathasivampillai also joined in the conveyance in respect of her life interest over the share of Sathasivampillai. Although the the deed recites Sivasambu as one of the parties to it, his interest did not actually pass as he either omitted or declined to sign it. The claim of the plaintiff-respondent to the balance undivided 7/32 (or 42/192) share rests mainly on this deed.

We were invited by learned counsel for the defendants-appellants to hold that the failure of Sivasambu to sign the deed has the result that it is not binding even on those parties who executed it since, according to his submission, the parties who executed it must have done so on the faith that it would be executed by Sivasambu as well, and he invoked the English rule of equitable relief as stated by Jessel, M. R., in Luke v. South Kensington Hotel Co.[(1879) 11 Ch. D. 121 at 125.] (and for which the earlier case of Bolitho v. Hillyar [(1865) 34 Beav. 180.] is also an authority) that " if two persons execute a deed on the faith that a third party will do so, and that is known to the other parties to the deed, the deed does not bind in equity if the third refuses to execute, and consequently on that ground the deed could not have bound the two ". But even if this rule is applicable in an appropriate case I do not see how it can be availed of by the defendants-appellants who were not parties to the deed. Moreover, it was held in Ex parte Harding [(