PEIRIS v. PEIRIS et al.

Present: Mr. Justice Wendt, Mr. Justice Middleton, and Mr. Justice
Wood Renton.

PEIRIS v. PEIRIS et al.

D. C., Kalutara, 3,215.

Partition suit-Adding of lessees as parties-Appraisement of lessees' interest-Payment in money-Ordinance No. 10 of 1863, sections 8, 9, 12, and 13.

Held, that the Court has power to add as parties to a partition suit persons holding leases from some, of the co-owners of their undivided shares.

Held, also, that it is competent for the Court, where it decrees a sale under the Partition Ordinance, to order the interests of such lessees to be appraised separately and the amount deducted from the proceeds of sale.

THIS was a partition suit. The plaintiff claimed an undivided one-sixth share of the land and allotted to the defendants the remaining five-sixths. Prior to the institution of the suit, the defendants had leased their mining rights in the land to the added defendants for a term of five years. The lessees filed a statement of claim setting forth their interest in the land. The District Judge (C. R. Cumberland, Esq.,) added the lessees as defendants in the action, and, as the land was to be sold under the provisions of the Partition Ordinance, a partition being impracticable, ordered their interests to be appraised separately and the amount to be paid out of the proceeds sale and the balance to be divided between the plaintiff and the defendants.

The plaintiff and one of the added defendants appealed.

H. Jayewardene for the added party, appellant.-The Court has no power to add the lessees as parties. The Partition Ordinance does not require that they should be joined. The procedure being purely statutory, the Court has no power to go beyond the provisions of the statute. On this principle it has been held that damages cannot be awarded in a partition suit. Even if the Court has power to add the lessees as parties, it has no power to deal with their rights. Section 18 provides that when a partition takes place it should be subject to all leases. Similarly, under section 8 of the Ordinance, a sale is subject to all mortgages, charges, and incumbrances. It is submitted that a. lease is a charge or an incumbrance. [MIDDLETON J.-Do not the words " charge or incumbrance " mean something in the nature of security ?] The words are large

enough to include any burden on the land such as a lease. If there is no express provision in the Partition Ordinance, the rule of the common law should apply that a lease goes before a sale. It would be inequitable to allow the owners to execute a lease, and then deprive the lessees of the benefits accruing therefrom by instituting a partition suit. The land being a mining land, it would be very difficult even to approximately value the interests of the lessees.

H. J. C. Pereira (Schneider with him), for the plaintiff, respondent. -Apart from the provisions of the Partition Ordinance the Court has power under section 18 of the Civil Procedure Code to add all parties whose presence may be necessary for the final adjudication of the matter in litigation. Lessees are persons interested in the land, and the Court has inherent power to make them parties. The words " other charges or incumbrances " do not include leases. They must be taken to be ejusdem generis with mortgages. Even if they do include leases, they must be leases of the entire property. To hold that the Court has no power to deal with the rights of lessees would be to render nugatory the provisions of the Ordinance, and to make a sale under the Ordinance an impossibility. Some of the co-owners cannot by giving a lease of their shares deprive the other co-owners of their undoubted right to demand a partition or sale of the common property. A certificate of sale under the Partition Ordinance gives a conclusive and clear title to the purchaser; otherwise it would be difficult to find a purchaser for the property. The result would b

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