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SAMARAWEERA v. CUNJI MOOSA et al.
NLR18V408
[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, alloting to P. B. M. Saibo, the successor
to the interest of Ahamadu Lebbe Marikar, three-fourths of the property, "
subject to the lease of September 1, 1898," and ordered that the premises should
be sold, and the proceeds distributed among the parties to the suit in
accordance with the shares stated in the decree.
The property was accordingly sold on September 12, 1913, one of the conditions
of sale being that the purchaser should receive possession on payment of the
purchase price; and it was purchased by P. Cunji Moosa, the first defendant in
the present action.
On October 23, 1913, the assignee of the lease moved for a notice on the parties
to the partition suit to show cause Why they should not be allowed to intervene
in the suit, to enable them to establish their claim to the leasehold interest;
but the Judge refused the application on two grounds, the first being that the
application for intervention was too late, and the second that the case of Silva
v. Soysa 2 decides that a sale under the Partition Ordinance is subject to
subsisting leases, and therefore a lessee has no right to share in the proceeds
of sale.
The plaintiff has acquired the interests of certain assignees of the lease, and
has brought the present action against the purchasers
under the sale in the partition suit, claiming a declaration that he is entitled
to three-eighths of the premises under the lease from
Ahamadu Lebbe Marikar. The District Judge has made the declaration asked for,
and from his decision the present appeal is brought.
Bawa, K.C. (with him Koch and Sansoni), for the defendants appellants.-The lease
was not conserved by the decree to case No. 33,579, District Court, Colombo, and
therefore the purchaser at the sale under the partition decree (33,579) was not
bound by the lease. The decision of the Pull Court in Peiris v. Peris1 is
binding on this Court. The decision in Silva v. Soysa2 is obiter, as the Judges
were agreed that the appeal in that case must be decided on other grounds. See
18 Halsbury 210.
In Peiris v. Peiris1 the point whether a lease was an incumbrance was directly
at issue, and the Court held that it was not. The point involved in this case is
whether a lessee could be made a party to a partition suit. The lessee opposed
the application to make him a party on the ground that the lease would remain in
force in spite of the sale, and that he was not interested in the distribution
of the proceeds of the sale. ,The Full Court held that the lease would be
avoided by the sale, as the lease was not an incumbrance.
Section 8 of the Partition Ordinance enacts that the Commissioner shall proceed
to sell the " whole " of the property; that includes the lease. The word "
incumbrance " in section 8 must be given a meaning ej
