1962    Present : T. S. Fernando, J., and Tambiah, J.

M. A. HERATH and 2 others, Appellants, and M. A. ASLYN NONA,
Respondent

S. C. 360/1959-D. G. Gampaha, 6315/P

    Partition action-Sale of co-owner's interests pending action-Misdescription of subject-matter-Effect-Partition Act (Cap. 69).

Pending a partition action, after interlocutory decree was entered, one of the co-owners executed a deed of sale. The description of the corpus conveyed was not the same as the subject-matter of the partition action but a description of the corpus which the vendor would receive in the final decree. There was also an erroneous assumption that the final decree had already been entered.

Held, that the sale was not obnoxious to Section 67 of the Partition Act-APPEAL from a judgment of the District Court, Gampaha.

H. V. Perera, Q. G., with Cecil de S. Wijeratne, for the 4th to 6th defendants-appellants.

M. L. S. Jayasekera, with K. Charavanamuttu, for the plaintiff-respondent.

Cur. adv. vult

 February 20, 1962.   TAMBIAH, J.-

The plaintiff brought this action for the partition of an allotment of land called Hapugahawatta Kebella, which is depicted as Lot 1 in Plan No. 855, marked D2, of 18th April 1955. This land formed part of a larger land which was the subject-matter of partition action No. 1755 D. C. Gampaha. By virtue of the Final Decree marked PI or Dl entered in that case, Lot 1 in Plan 1140, marked X, and also shown in D2, was allotted to the following persons : Gabonis, the plaintiff, who is the 3rd defendant in this case. William and Elaris both of whom are the 1st and 2nd defendants in this case as well as in the former case, and Singhappu, the 20th defendant who is not a party to this action, 'but whose child is the plaintiff in this action, in the following proportions, 198/318, 12/318, 12/318 and 96/318 shares, respectively.

The plaintiff, who is the daughter of Singhappu, who was allotted 96/318 shares, has instituted this action to partition Lot 1 shown in Plan X and has claimed the share of Singhappu by right of inheritance. The shares of the 1st and 2nd defendants and of the 3rd defendant, who is now dead, leaving as heirs the 6th defendant, his widow, and the 4th-5th defendants as children, are not in dispute. The 4th-6th defendants contend that Singhappu, by deed No. 5865 of 13th May, 1955, marked D3, transferred an undivided 96/318 shares in Lot 1 in Plan D2 to Gabonis Appu, the 3rd defendant, and that they are entitled on this deed to the

shares of Singhappu claimed by the plaintiff in this action. The only issue for consideration is whether Singhappu's share of Lot 1 in Plan X (i.e. 96/318 shares) devolved on the plaintiff by inheritance or passed to the 4th-6th defendants, the heirs of Gabonis, the 3rd defendant deceased. The interlocutory decree in this case had been entered on the 23rd of May 1953 and the final decree on the 22nd of May 1957. It is common ground that D3 had been executed pending partition action No. 1755 and the question for decision is whether D3 is obnoxious to section 67 of the Partition Act (Cap. 69) (which now substantially reproduces section 17 of the Partition Ordinance No. 10 of 1863, as amended by 10 of 1897 and 37 of 1916) and whether any title passed to the 3rd defendant on this deed.

Section 67 of the Partition Act (supra) enacts as follows :-

" (1) After a partition action is duly registered as a lis pendens under the Registration of Documents Ordinance no voluntary alienation, lease or hypothecation of any undivided share or interest of or in the land to which the action relates shall be made or effected until the final determination of the action by dismissal thereof, or by the entry of a decree of partition or by entry of a certificate of sale.

(2) Any voluntary alienation, lease or hypothecation made or effected in contravention of the alienation of subsection (1) shall be void. ''

Section 17 of the