105-NLR-NLR-V-18-SAMARAWEERA-v.-CUNJI-MOOSA-et-al.pdf
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[Full Bench!]
Present: Ennis, Shaw, and Be Sampayo JJ.
8AMABAWEERA v. CUNJI MOOSA et al.
258—D. C. Colombot 39,233.
Partition Ordinance, 1863—Is lease an encumbrance?—Salop under , the
Partition Ordinance are not subject to leasee.
Held, per Shaw J. and De Saupato J. (dissentients Emus J.).—Sale under the Partition Ordinance is not subject to any leasesing the property. A . lease is not an encumbrance within themeaning of the Partition Ordinance.
Peiris v. Petris 1 followed. Silva v. Soysa a commented upon.
fjpHE facts of this case are stated by Shaw J. as follows:—
In the year 1898 one Ahamadu Lebbe Marikar, who was entitledjointly with others to certain premises in the Pettah, by deed No. 9,794purported to lease the entirety to one Sinna Lebbe Marikar for a tei^nof thirty years. In December, 1911, a suit, No. 38,579, was institutedby one of the joint owners for partition of the premises. Theassignees of the lease were not made parties to the suit. On May 12,1918, the District Judge, by final decree, settled the interests of theparties to’the suit, alloting to P. B. M. Saibo, the successor to theinterest of Ahamadu Lebbe Marikar, three-fourths of the property,“ subject to the lease of September 1, 1898/’ and ordered that thepremises should be sold, and the proceeds distributed among theparties to the suit in accordance with the shares stated jn the decree.
The property was accordingly 6oId on September 12, 1913, oneof the conditions of sale being that the purchaser should receivepossession on payment of the purchase price; and it was purchasedby P. Cunji Moosa, the first defendant in the present action.
On October 23, 1913, the assignee of the lease moved for a noticeon the parties to the partition suit to show cause Why they shouldnot be allowed to intervene in the suit, to enable them to establishtheir claim to the leasehold interest; but the Judge refused theapplication on two grounds, the first being that the application forintervention was too late, and the second that the case of Silva v.Soysa * decides that a sale under the Partition Ordinance is subjectto subsisting leases, and therefore a lessee has no right to share li-the proceeds of sale.
The plaintiff has acquired the interests of certain assignees of thelease, and has brought the present action against the purchasers
* 0005) 0 N. L. B. 331.2 (1913) IT N. L. B. 67.
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under the sale in the partition suit, claiming a declaration that heis entitle^ to three-eighths of the premises under the lease from ScfinmatveraAhamadu Iiebbe Morikar. 'fhe District Judge has made the declare- Owtfition asked for, and from his decision the present Appeal is brought! Mooaa
Bowa, K.C. (with him Koch and Satfboni), for the defendantsappellants.—The lease was not conserved by the decree fc caseNo. 88,579, District Court, Colombo, and therefore the purchaserat the sale under the partition decree (33,579) was not bound bythe lease* The decision of the Full Court in Petris v. 'Perns1 isbinding on tlys Court. The deeision in SUva v. Soysa 3 is obiter, asthe Judges were agreed that the appeal in that ease must be decidedon other grounds. See 18 Halsbury 210.
In Peine v. Peiria1 the point whether a lease was an incumbrancewas directly at issue, and the Court held that it was not. Thepoint involved in this case Sis whether a lessee could be made a partyto a partition suit. The lessee. opposed the application to makehim a party on the ground that the lease would remain in force inspite of the sale, and that he was not interested in the distributionof the proceeds of the sale. .The Full Court held that fhqf leasewould be avoided by the sale, as the lease was not an incumbrance.
Section 8 of the Partition Ordinance enacts that the Commissionershall proceed to sell the “ whole ,f of the property; that includesthe lease. The word '* incumbrance ’* in section 8 must be given ameaning ejusdem generis with mortgage. It was held in Girigoria v.
Meedtn 9 that a right of way not expressly reserved is extinguishedby the partition decree.
Allan Drieberg (with. him Bartholomews), for the plaintiff, res-pondent.—It was held by the Full Court in Silva v. Soysa 3 that thedecision in Peiris v. Peiria,1 that a lease was not an incumbrance,was an obiter dictum.Peiria v. Peiris1 has an interpretation by the
Full Bench, and must be accepted. See Baheem v. Yoosoof Lebbe,*
Appuainno v. GrigorisA lease is an incumbrance, see Stroud'sJudical Dictionary.
Bawa, K*C.t in reply.
Gur. adv. cult.
October 19, 1915. Exxis J.—
This case raises the question as to rights of a lessee when a salehas been ordered under the Partition Ordinance. The plaintiffsued to be declared entitled, under a sub-le&se from one of theprevious co-owners, to possess an undivided ,three-eighths of theland purchased by the defendants on a sale under the Partition
i am 9 N. Z* H. ML3 1 Bid. 177.
a (1913) 17 A b. R. 67.* $ N. L. J*. 169.
* (7914) 3 Bal's Note of Cases 90.
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Ordinance. "The learned District Judges held that .the decree in the-partition case expressly conserved the rights of the lessee, which
were accordingly not affected by the sale, and he decreed irr favour
The defendants appeal from this decree. .On thein&'a appeal two points were .argued, (1) whether the decree conserved^ the rights of the lessee, and (2) whether a sale under thePartition Ordinance is subject to leases.
9
On the first point the learned Judge interpreted his own decree,so there is no doubt as to his intention, but the decree itself is soworded that the premises ordered to be sold were the whole land,without any reservation of the lease. The reservation is containedmerely in the shares of the parties.
The second- point turns on the question whether a lease is anincumbrance within the meaning of section 8 of the PartitionOrdinance. I have already signified my Gpinion on the point inSilva t>* Soysa,1 where I was in entire agreement with my late brotherPereira, to whose views I can add very little. The word 44 incum-brance ” is not found in Roman-Dutch law. A lease is anincumbrance in English law if a vendor has contracted to give*vacant possession (vide Stroud's Judicial Dictionary).- UnderRoman-Dutch law a vendor is required to give vacant possession,and, as observed by Pereira J., a lease in Ceylon in the usual termscannot but be regarded as an incumbrance, and I see no reason tointerpret the expression as used in the Partition Ordinance in anyother way.
It was urged, however, on this appeal that the decisions in Silvav. Soysa1 on the two points, (1) that the opinion expressed in theearlier case of Petris v. Petris 9 was obiteri and (2) that a lease is anincumbrance, are themselves obiter. Inasmuch as a decision onthese points was not necessary for the determination of the appeal,for it was agreed that in any event the appeal in Silva v. Soysa1must be dismissed, 1 am of opinion that the contention is right,cad that the opinion in Silva v. Soysa1 is not a binding' authority.It remains to consider again whether Peiris v. Peiris9 is a bindingauthority for the proposition that a lease is not an incumbrance*I am of opinion that the decision on the point was no more necessaryin Peiris v. Peiris 3 than in Silva v. Soysa.1 In Peiris v. Peiris 2 itwould seem that the lessee filed a statement of their claim andwere joined as parties. An order was made for the sale of theland “ free of the lease, ** and from the order one of the lessees,appealed. On the appeal the points for determination werewhether the lessees were properly made parties, and whether theCourt could extinguish the lease and order a sale free of it. Wendt J.held 44 it was prudent and right to bring the lessees in as parties,’*and, on the second point, 44 that the Court should have {fewer toorder the laud to be sold free of the lease is only reasonably necessary
* am) 9 n. l. j*. m.
8 (1913) 17 N. L. R. 67.
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fov ef dually carrying out the object of the Pai tition Ordinance. ’ *^1&5.
MiSS* ra 7. held that the lessees could not M <,omplsin of exprojB^gj.
priatic. by phe Court, wheh, if they had no iotice, their rights'-r—
under le leu*e eo<*I U, W^cpi-away by an order for sale undersection 9.'* Wood Beaton J. agreed tiih the reasoning and o ffloosacondnr a of Middl top. J., and thought that *ise lessees nEsri betaken to entered into the lease ** subject to the ooznmon lawright of one cc . vner to compel a partition with the incidentalpossifc % of a ^ being ordered by the -cXmrfc." He added brieflyan e& iresstoit'O/ opinion tfci* please did not come under the term
incu nbrance * in the Ordinance. It is dear, in my opinion, thatthe po at detenrained by Penis t?* Petris1 was that the Court had thepower to expropriate a lease, add not that an order for sale under-the Partition Ordinance extinguished a lease. The conclusionarrived <at by Wendt J.that such a power was reasonably necessaryfor effectively oanying out the object of the Ordinance must havebeen the sai^e, whvS^ cr set e lease were an incumbrance. Allthe Judges in tfrat case expressed opinions that a lease was not anincumbrance, but these opinions were not necessary to the decisionof the points before the Court. Middleton J. expressed the opinionmerely to show that the appellant had no cause to complain of suchan expropriation, while Wood Benton J. expressed the opinion as
an..addition to his judgment. I entirely agree with Pereira J. inSilvn v. Soyaa,2 th&t there can be no objection to a lessee being madea party to the action, or to his. rights being adjudicated upon anda suitable order made with reference to them. Section 18 of theCivil Procedure Code,' with the reasonable necessity arising from theobject of the Ordinance, is a-sufficient authority for suoh a course.
Neither case, in my opinion, is a binding authority for or against theappellant's contention, and for the reasons I have already given,
I am of opinion that suoh a sale under the Partition Ordinance issubject to existing leases, unless it is expressly declared to be freeof them.
I would dismiss the appeal with costs.
Shaw J.—
[His Lordship stated the facts, and continued]:—
The question whether the sale under the Partition Ordinance is
subject to any leases affecting the property has been the subject of
considerable judicial controversy. In Petris v. Penis1 the Full
Court unanimously expressed an opinion that it is not, whilst the
majority of the Full Court (Pereira and Ennis JJ-. De Sampayo J.
dissent^pg) in 8ilvu v- Soysar held that the word incumbrance"
in sections of the Partition Ordinance includes a lease, and therefore
,
when lands are sold under the Ordinance the sale is subject to
(2&W) 9 N. L. RrSSl.
* (191S) 17 N. L. R. 67.
0 19ft.existing leases. The majority of the (3curfc in. this case considered
$ium S. that the opinion expressed by the Full Court in Petris v. Petris 1 waa
—- 'not binding upon it, as being not necessary for the decision of thatStmarmeeemM >«■& case.
It is clear that the expression of opinion of the majority of theCourt m Silva v. Soysa * are themselves obiter, tor it was admittedby all the Members of .the Court that the appeal in that case mustbe dbmbsed on other grounds; the question therefore b still opento us to consider whether the expressions of opinions in Petris v-Peiris 1 are obiter dicta, and if so whether we agree with them or not,I am clearly of opinion that they were not, and that the decision ofthe Court in that case, that a sale under the Partition Ordinanceb free from existing leases, was necessary for the decision of theappeal before the Court, and the decision is, under the well-established practice of this Court, binding upon us until altered bythe Legislature or by-a decision, of His Majesty in Council..
In the case under consideration certain persons who held alease over the property the subject of the partition suit had beenadded as parties, in order that they might participate in the*proceeds of the sale of the property, on the ground that their leasewould be avoided by the sale. The appellant, one of the addedparries lessees, objected, and appealed against the order addinghim, on the ground that his lease would remain in force after thesale of the property, because it was an incumbrance within themeaning of section 8 of the Ordinance, and that he was thereforenot interested in the distribution of the proceeds of the sale, andtherefore not a necessary party to the suit. The Court, however,held that he must be joined as a party because the lease would beavoided by the sale, and his only remedy was against the purchasemoney.
This &eems to me to be a direct decision on the point in issue inthis case, and being a decision of the Full Court it is binding uponus. I shall therefore not enter into the unprofitable discussionwhether I should or should not have arrived at the same conclusionif the matter had been res Integra. I would allow the appeal, withcosts.
De Sampayo J.—
This case was referred to a bench of three Judges, in .view ofthe conflicting decisions in Peiris v. Peiris 1 and Silva v. Soysa.9Both these are Full-Court decisions, and the questions are whethereither and which of them is a binding decision on the point involvedin this case, and if neither of them is, whether a lease is &n incum-brance within the meaning of section 8 of the Partition Ordinanceand continues to subsist notwithstanding a sale of the land by thedecree of Court under the Ordinance. I agree with the rest of the
2 [1013) 17 N. L. A. 67.
i (1906) 9 N. L. R. 231.
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Court that the opinions of {be Judges in Silva v. Soysa 1 are obiter fsi®.0dicta. Atf regards the decision in Petris v. Petris,* I have in njyjudgment in dSitoa v. Soysa 4 stated my reasons for thinking that the1)0
ratio decidendi of Poms e. Peirn **is that a lease is not an " incum- ^
brance M within the meaning of the ParStion Ordinance, but only TSamarmp&ro
creates an interest in the land, which must be claimed in "time in
the partition action at the risk of the lessee losing it for everj and
that therefore Peiris v. Peiris * is a binding decision, and cannot be
reviewed by the Supreme Court, however constituted. The
argument o£# the present appeal has not induced me to take a
different view. Moreover, if the question is stall open, I may say,
for tiie reasons which I have given in the some judgment, and to
which I have nothing to add, I am of the same opinion as the
learned Judges who decided Peiris u< Peiris* were, and think that,
when the land is sold under a decree, a lease is extinguished, and
the lessee can only get his interest assessed and an equivalent in
money in the distribution of .the proceeds out of the share of his
lessor.
I agree with my brother Shaw that tills appeal should be allowed*and the plaintiff's action dismissed with costs in both Courts.
Appeal allowed.
*