Cinemas Ltd. V. Ceylon Theatres Ltd.

1965 Present : T. S. Fernando, J., Tambiah, J., and Manicavasagar, J.

CINEMAS LTD., Appellant, and CEYLON THEATRES LTD,
and 3 others, Respondents

S. C. 573/61-D. C. Colombo, 8603/P

Partition action-Interlocutory decree-Order for sale of land-Encumbrances stated therein-Certificate of sale-Effect-Title of purchaseris free from any usufruct- Partition Act, ss. 4,5,16, 18, 19, 23,25,26, 38,40,42, 43,45,46,47,48, 50, 54.

On a proper construction of sections 46, 48 and other relevant provisions of the Partition Act, it is clear that when, in pursuance of an order for the sale of a land, a certificate of sale of the land is entered in terms of section 46 of the Partition Act, the title which the certificate of sale confers on the purchaser of the land and buildings thereon is free from any life interest or usufruct which may be declared in favour of a person in the interlocutory decree entered under section 26, read with section 48, of the Act. The purchaser under a decree for sale gets title free from all encumbrances except only the interests of the proprietor of a nindagama and the interests which are specially preserved by section 54 of the Act.

In the interlocutory decree entered in a partition action, the Court gave the 2nd defendant life interest over one-third share of the land and building standing thereon and ordered that the sale of the property should be subject to the life interest of the 2nd defendant over the one-third share.

Held, that that part of the interlocutory decree which stated that " the said premises will be put up for sale subject to the life interest of the 2nd defendant in respect of one-third share of the soil and one-third share of the building " should be deleted and the following words be substituted : " the said premises will be put up for sale ". The interests awarded to the 2nd defendant should be valued and he should be paid the estimated value of his usufruct out of the proceeds of the sale.

APPEAL from a judgment of the District Court, Colombo. This appeal was referred to a Bench of three Judges as there was disagreement between the two Judges before whom it previously came up for argument.

S . Nadesan, Q.C., with G. Ranganathan, for plaintiff-appellant.

H. V. Perera, Q.C., with N. E. Weerasooria (Jnr.), for 1st defendant respondent.

H. W. Jayewardene, Q.G., with L. G. Seneviratne and S. S. Basnayake for 2nd defendant-respondent.

Cur. adv. vult.

March 25,1965. TAMBIAH, J.-

This appeal raises an important question of law regarding the effect of an order for sale of a land in an interlocutory decree entered under the provisions of section 26 of the Partition Act, No. 16 of 1951, which will

hereinafter be referred to as the Act. As there was disagreement between Abeyesundere J. and Sri Skanda Rajah J., this matter has been referred to a Divisional Court.

The short point for decision in this case is whether a certificate of sale of a land under section 46 of the Act gives title to the purchaser free from any usufruct which may be declared in favour of a person in an interlocutory decree entered under section 26 of the Act.

In the interlocutory decree entered in this case the learned District Judge declared the plaintiff entitled to 11/18th share of the land of which 3/18th was subject to the life interest in favour of the 2nd defendant. He declared the 1st defendant entitled to 5/18th share of the land, of which 2/18th was subject to the life interest in favour of the 2nd defendant; and the 3rd defendant to 2/18th share of the land of which 1 /18th is subject to the life interest in favour of the 2nd defendant. In the result he gave the 2nd respondent life interest over 6/18th or l/3rd share of the land and the buildings standing thereon and ordered that the sale shall be subject to the life interest of the 2nd defendant over 1 /3 rd share of the land and building.

The Act was intended to give con

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