Silva V. Soysa Et Al.

[Full Bench. ]

Present: Pereira J., Ennis J., and De Sampayo A. J.

SILVA v. SOYSA et al.

146-D. C. Colombo, 32, 015.

Partition-Land sold under Ordinance-Subject to existing leases.

Per Pereira J. and Ennis J. (De Sampayo A. J. dissentiente). - The word " incumbrance " in section 8 of the Partition Ordinance (No. 10 of 1868) includes a lease, and so, where a and is sold under the Ordinance, the sale is subject to existing leases, and a lessee has no right to claim the proceeds.

THE facts appear from the judgment.

Grenier, K. C. (with him Koch and Balasingham), for the appellant. -The appellant is entitled to claim a portion of the proceeds of sale. A lessee had no right to intervene in the case.

Section 13 of the Partition Ordinance expressly conserves the rights of lessees in the event of a sale. The lessee could not know whether the land was to be partitioned or sold,

The lease is an incumbrance within the meaning of section 8 of the Ordinance. [Pereira J. -In any event your appeal cannot succeed. If the lease is an incumbrance, your rights are not affected by the sale, ] If we were wrong in having applied to the District Court, let us have a. declaration that the lease is not affected by the sale. We had to apply to the District Court for a share of the proceeds in view of the obiter dictum in Peiris v. Peiris, 1 lest we should lose our rights entirely.

Under the Registration Ordinance (No. 14 of 1891), section 16, a lease is an incumbrance. In section 643 of the Civil Procedure Code the words used are " grantees, mortgagees, lessees, and other incumbrancers. " It shows that lessees are incumbrancers. Why should the word receive a different meaning in the Partition Ordinance? Counsel cited Stroud's Judicial Dictionary, vol. II., p. 953,

J. S. Jayewardene, for the respondents. -In either case the appeal should be dismissed. If a lease is an interest in the land, the lessee has lost his right by not coming forward at the proper time. If It is an incumbrance, the lessee's rights are not affected by the sale, and the present application to share in the proceeds of sale cannot be allowed. A lease is an incumbrance. Counsel cited Punchirala v. Menikhamy, 2 Uduma Lebbe v. 8ego Mohamado. 3

Cur. adv. vult.

December 10, 1913. De Sampayo A. J. -

This is a partition action in which a certain land was by decree of Court ordered to be sold under the provisions of Ordinance No. 10 of 1863. The land was sold on November 18, 1912, and was purchased by one Don Nicholas. The purchase money was duly brought into Court, and the Court, on December 28, 1912, ordered the certificate of sale to be issued to Don Nicholas, who has since entered into possession of the land. It appears that the respondents, who are some of the parties to the action, had, by deed of lease dated November 16, 1899, leased to the appellant their interests in the land for a term of twenty years, commencing from November 16, 1899. Prior to the sale, the appellant notified his lease to the Court, but had no objection to the sale and intimated that he would take further steps in due course. Accordingly, on July 18, 1913, he applied by petition, supported by affidavit, that a sum of Rs. 3, 000 be paid to him out of the share of money due to the respondents, as damages suffered by him by reason of the sale and consequent loss of possession of the land. The District Judge refused this

1 (1906) 9 N. L. R. 231.

2 4 Bal. 7.

3 2 C. L. R. 159.

application, as I understand his order, on the ground that the appellant should have come as a party interested before the decree was entered and established his claim, and that the decree for sale extinguished any right he might have had as lessee even to the proceeds.

The appeal is bound to fail whether the appellant is regarded as a party having an interest in the land, as the District Judge thought, or whether he is an " incumbrancer " within the meaning of the Ordinance. I

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