023-NLR-NLR-V-72-H.-L.-ODDIRIS-Appellant-and-H.-L.-ANDRAYAS-Respondent.pdf
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H. N. G, FERNANDO, G.J.—Odiris v. And ray as
19.69 Present: H. N. G. Fernando, C.J., and Pandita-Gunawardene, J.
H. L. ODIRIS, Appellant, and H. L. ANDRAYAS, Respondent-
S.C. 164(67 {Inly.)—D. C. Matara, 4S57(P
Paddy Lands Act, No. 1 of 195S—Sections 3 and C3—Tenant-cultivator—His right toassert his interest in a partition action—Partition Act {Cap. CO), s. 4S.
Tho interest of a “ tenant-cultivator ” under tho Paddy Lands Act is an“encumbrance ” within the meaning of Section 4S of the Partition Act and,,therefore, may properly be specified and conserved in a partition decreo enteredin terms of that Section.
Appeal from an order of the District Court, Matara.
II. Podriyo, with Asoka Abeysinghe, for the defcndant-appollant.
IF. D. Guna-sekera, for the plaintiff-respondent.
Cur. ado. vult.
June 23, 1969. H. N. G. Ferxakdo, C.J.—
Section 3 of the Paddy Lands Act of 195S declares that a per son whois the cultivator of any paddy land let to him imdor anyoral or writtenagreement is the <f tenant cultivator ” of that paddy land. The definitionin s. G3 of tho Act of tho word “ cultivator ” is such that every tenant of
H. X. G. FERXAXDO, C.J.—Odiria v. Andrayaa
III
a paddy land is not nocossarity a “ tenant cultivator In the present-ease, however, there is no doubt- that the defendant, who owned a paddyhold in equal half shares with his brother the plaintiff, was the “ tenantcultivator ” of the brother’s half share.
In this action, which tho plaintiff instituted for the partition of thepaddy field, the defendant assertod that he was the ** tenant cultivator ”of the plaintiff’s half share ; and tho question which arises is whethor thodefendant’s right or interest as tonant of tho plaintiff’s share can bespecified in tho partition decree as being an encumbrance affecting theshare and the lot to bo allotted to the plaintiff in tho interlocutory andfinal decrees respectively.
The answer to this question seems perfectly simple. If the defendantwas tho lessee of his brother’s half share under a notarial lease the term ofwhich has not expired, then clearly that lease is an encumbranco forwhich the defendant could secure protection by having the Ioaso specifiedin tho decree.—By reason.ofjtho. Paddy Lands Act, the dofendant, evenif ho was the tenant under an oral agreement, was a perpetual tenantenjoying rights of tenancy limitod only by the Act itself: his rights arethus even moro fundamental than those of a lessee under a notariallease, and ho should bo entitled to the same protection as s. 4S of thePartition Act allows to such a lessee. Tho phrase “ or any interestwhatsoever howsoever arising”, in tho definition of “ encumbranco ” ins. 4S amply confirms the conclusion that the interest of a “ tonantcultivator ” may properly be specified in a partition decree.
I have hesitated to act upon this conclusion only bccauso of a fear thatthis conclusion may have the consequence that the failure of a “tenantcultivator ” to assert his right in a partition action might extinguish thatright. If such a consequence is possible, an unscrupulous landlord mightresort to a partition action in tho hope of defeating the objects of thePaddy Lands Act.
There are, however, observations in the judgment in HendrickAppuhamy v. John Appuhamy 1 tending tot he opinion that the fear whichI entertain may be unreal. In any event, even if the true position bothat a tenant cultivator’s right may be extinguished by his failure toassert his right in a partition action, that is an evil which can beaverted by some appropriate amendment of the law.
For tho reasons stated tho appeal is allowed with costs. The judgmentof tho District Judge is varied, in tho paragraph allotting shares, byinserting, after the words “plaintiff to—1/2:”, tho words “subjectto tho rights of tho defendant as tenant-cultivator of the plaintiff’s1/2 share Tin's additional matter will no doubt be specified when thoInterlocutory and.Final Decree are prepared.
Paxdita-Gunawardexe, J.—I agree.
Appeal allowed.
1 (1966) C9 N. L. R. 29.