1956 Present: K. D. de Silva, J., and Sansoni, J.

P. B. PERERA, Appellant, and KIRI HONDA, Respondent

S. C. 268-D. C. Kurunegala, 7,931/L

Sale of land-Several vendors-Is there a presumption, that each of them owned an equal share ?-Exceptio rei venditae et traditae-Scope of its applicability.

Where several vendors join in conveying a land or a portion of a land, it cannot be presumed that the deed of sale was a conveyance by them in equal shares, particularly where the rest of the evidence shows that they were never considered as owning the land in equal shares. Accordingly, if A, B, C and D sell to E a greater portion of a land than they are altogether entitled to and subsequently A alone acquires title to an additional portion of the same land, the doctrine of Exceptio rei venditae et traditae can operate against A in respect of even the entirety of the additional portion although the total extent of A's share thereby allotted to E amounts to more than one-fourth of the portion of land originally sold to E.

Under the Exceptio rei venditae et traditae a sale made by a vendor without title may be relied upon as against a purchaser from that vendor after the vendor has acquired title.

APPEAL from a judgment of the District Court, Kurunegala.

T. B. Dissanayake, for the plaintiff-appellant.

H. W. Jayewardene, Q.C., with W. D. Gunasekera, for the 2nd defendant-respondent.

Cur. adv. vult.

June 21, 1956. SANSONI, J.-

The dispute between the plaintiff-appellant and the 2nd defendant respondent in this case turns on the effect to be given to the deed 2D2. of 1936.

It is common ground that the four vendors on that deed, Salanchia Ranamali, Tikkavi and Rapia were entitled, as shown in the pedigree-attached to the plaint, to 1/8th, l/16th, l/16th and 1/4th share respectively, or 8/16 in all. By that deed, however, they conveyed 12/16 to Ukkuwa, who by deed 2D3 of 1946 conveyed that share to the 2nd defendant. After the execution of deed 2D2, Salanchia inherited 1/8 from his brother Esa, and transferred that share to the plaintiff. The 2nd defendant claimed that he had a preferent right to this 1 /8 share by reason of the exceptio rei venditae et traditae, since he had still to get title to 4/16 after his purchase on 2D2. It was submitted for the plaintiff, however, that according to the decision in Carlina v. Nonhamy [(1949) 41 C. L. W. 7.] Salanchia must be deemed to have conveyed only a 3/16 share to Ukkuwa by deed 2D2, and as title to 2/16 had already passed from him on that deed, the 2nd defendant was entitled to claim only a further 1 /16 share from that source. In the result, the plaintiff claims that he is still entitled to l/16th out of Esa's l/8th share, while the 2nd defendant's position is that the entire l/8th share has devolved on him.

In the case cited, Gratiaen, J. (Basnayake J. agreeing) had to deal with a case where four persons conveyed the entirety of a land, and two of those four persons had no interests at all to convey. The deed passed title only to a 1/2 share. Subsequently, one of the two vendors who had no interest, by name Jacoris, acquired title to a 1/2 share and the vendee claimed that under the exceptio referred to this 1/2 share passed to him. Gratiaen J. held that as no specific undivided shares were conveyed by the four vendors in the earlier deed " it follows in accordance with the accepted principles of construction that each must be deemed to have purported to convey a one-fourth share in the land. It follows that the doctrine of exceptio rei venditae et traditae could operate against Jacoris only in respect of an undivided one-fourth share of the land ". This decision was relied upon by the plaintiff-appellant's Counsel.

The judgment does not cite any authorities as laying down the principle of construction which was applied in that case, and I do not think it can be applied in all cases where several persons join i