Samaraweera V. Cunji moosa Et Al.,

[FULL BENCH]

1915.   Present  : Ennis, Shaw, and De Sampayo JJ.

SAMARAWEERA v. CUNJI MOOSA et al.

258-D. C. Colombo, 39,233.

Partition Ordinance, 1863-Is lease an encumbrance?-Sales under the Partition Ordinance are not subject to leases.

Held, per SHAW J. and DE SAMPAYO J. (dissentiente ENNIS J.).-Sale under the Partition Ordinance is not subject to any leases affecting the property. A lease is not an encumbrance within the meaning of the Partition Ordinance.

Peiris v. Peiris1[(1906) 9 N. L. R. 231.] followed. Silva v. Soysa2[(1913) 17 N. L. R. 67.] commented upon.

THE facts of this case are stated by Shaw J. as follows:-

In the year 1898 one Ahamadu Lebbe Marikar, who was entitled jointly with others to certain premises in the Pettah, by deed No. 9,794 purported to lease the entirety to one Sinna Lebbe Marikar for a term of thirty years. In December, 1911, a suit, No. 33,579, was instituted by one of the joint owners for partition of the premises. The assignees of the lease were not made parties to the suit. On May 12, 1913, the District Judge, by final decree, settled the interests of the parties to the suit, alloti

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