1942 Present: Soertsz and Keuneman JJ.

MOHAMED v. SINNEMUTTU



96 D. C. (Inty.) Galle, 37,513.

Partition-Sale under decree-Undivided shares subject to mortgage-Distribution of proceeds-Partition Ordinance (Cap. 56), s. 8.

Where property sold under a partition decree was owned by four co-owners in equal shares and the shares of two such co-owners were subject to mortgage, the proper method of distribution of the proceeds of sale should. be based upon a consideration of the value for which- the purchaser would" buy the land as unencumbered.

After the deduction of the pro rata costs, the owners of the unencumbered shares would be entitled to one-fourth share each of the net proceeds and the others to one-fourth each less the amount of their respective mortgages.

APPEAL from an order of the District Judge of Galle.

L. A. Rajapakse (with him E. B. Wickremanayake), for plaintiff appellant.

H. V. Perera, K.C. (with him U. A. Jayesundere), for 4th defendant, respondent.

February 27, 1942. KEUNEMAN J.

The conflict in this case arises between two schemes of distribution of the proceeds of a public sale under the Partition Ordinance. The actual sum realized at the sale was Rs. 3,175 pro rata costs and other expenses amounted to Rs. 250.47, leaving the net sum of Rs. 2,924.53 available for distribution.

The property in question was held in the interlocutory decree to belong to the plaintiff, 1st defendant, 3rd defendant and 4th defendant in equal shares, i.e., one quarter share to each. The shares of the 3rd and 4th defendants were unencumbered. The share of the plaintiff was subject to a mortgage of Rs. 1,500 and the share of the 1st defendant was subject to a mortgage of Rs. 386.25. The sums mentioned included interest said to be due on the mortgages from the dates of the mortgages up to the date of the sale under the Partition Ordinance.

The plaintiff filed a scheme of distribution, in which the existence of the mortgages mentioned was disregarded. According to this scheme the plaintiff, the 1st defendant; the 3rd defendant and the 4th defendant received equal shares of the net sum of Rs. 2,924.53, that is to say, Rs. 731.13 each This scheme was rejected by the District Judge.

In support of this scheme Mr. Rajapakse argues that the provision of section 8 of the Partition Ordinance (Cap. 56) made a division in this manner imperative. He depends on the words" and the purchaser shall pay into Court the amount of the purchase money, agreeably to the conditions of sale, to be paid over t6 the persons entitled thereto, under the order of the Court, in the proportion of their respective shares " Counsel argues that the word" shares" meant" shares in the premises".

There is this decree of force in the argument, viz., that the words shares and interests" 01' "shares or interests" appearing in the earlier sections (see sections 4 and 5) are not reproduced here. Counsel argues that the word" shares" in section 8 was restricted to "shares in the premises ".

I do not agree ,with the argument. It has to be remembered that the phrase in question occurs in a section that deals, not with the rights of the parties to the action, but with the duties and obligations of the Commissioner and of the purchaser at the sale', and the effect of the certificate of the Court. Further, the money in question is to be paid over to the persons entitled" under the order of the Court". This shows that the Court has a controlling discretion with regard to the payment of the money.

To interpret the words" shares" in the narrow sense contended for would offend against the scheme of the Partition Ordinance and would lead to manifest injustice. to take an example, a person who has improved the land, and has been held entitled to compensation for improvements under the interlocutory decree', would be precluded from obtaining any share of the purchase money, because he did not have a share i