026-NLR-NLR-V-67-CINEMAS-LTD.-Appellant-and-CEYLON-THEATRES-LTD-and-3-others-Respondents.pdf
Present : T. S. Fernando, J., Tambiah, J., and Manicarasagar, J-CINEMAS LTD., AppeUant, and CEYLON THEATRES LTD.
and 3 others, Respondents
S. G. 573f61—D. G. Colombo, 8603(P
Partition action—Interlocutory decree—Order for sale of land—Encumbrances stated-therein—Certificate of sale—Effect—Title of purchaser is free from any usufruct—PartiUor* Act, ss. 4, 5, 16, 18, 10, 23, 25, 26, 38, 40, 42, 43, 45, 46, 47, 48, 50, 54.
On a proper construction of section? 46, 48 and other relevant provisions of thePartition 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 PartitionAct, the title which the certificate of sale confers on the purchaser of the land andbuildings thereon is free from any life interest or usufruct which may be declaredin favour of a person in the interlocutory decree entered under section 20, readwith section 48, of the Act. The purchaser under a decree for sale gets title freefrom all encumbrances except only the interests of the proprietor of a nindagamoand the interests which are specially preserved by section 54 of the Act.
In the interlocutory decree entered in a partition action, the Court gave the2nd defendant life interest over one-third share of the land and building standingthereon and ordered that the sale of the property should be subject to the lifeinterest of the 2nd defendant over the one-third share.
Held, that that part of the interlocutory decree which stated that “ the saidpremises will be put up for sale subject to the life interest of the 2nd defendantin respect of one-third share of the soil and one-third share of the budding ”should be deleted and the following words be substituted : “ the said premiseswill be put up for sale ”, The interests awarded to the 2nd defendant should bovalued and he should be paid the estimated value of his usufruct out of thoproceeds of the sale.
Appeal from a judgment of the District Court, Colombo. Thisappeal was referred to a Bench of three Judges as there was disagreementbetween the two Judges before whom it previously came up for argument.
S. Nadesan, Q.G., with G. Ranganathan, for plaintiff-appellant.
H. V. Perera, Q.G., with N. E. Weerasooria (Jnr.), for 1st defendantrespondent.
H. W. Jayewardene, Q.G., with L. 0. Seneviratne and S. S. Basnayake>for 2nd defendant-respondent.
Gur. adv. vult,
March 25, 1965. Tambiah, J.—
This appeal raises an important question of law regarding the effect ofan order for sale of a land in an interlocutory decree entered under theprovisions of section 26 of the Partition Act, No. 16 of 1951, which will
lxvh—5
2—a 8854—1,866 (6/66)
hereinafter be referred to as the Act. As there was disagreementbetween Abeyesundere J. and Sri Skanda Rajah J., this matter has beenreferred to a Divisional Court.
The short point for decision in this case is whether a certificate of saleof a land under section 46 of the Act gives title to the purchaser free fromany usufruct which may be declared in favour of a person in an inter-locutory decree entered under section 26 of the Act.
In the interlocutory decree entered in this case the learned DistrictJudge declared the plaintiff entitled to 11 /18th share of the land of which3/18th 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 which2/18th 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 subjectto the life interest in favour of the 2nd defendant. In the result he gavethe 2nd respondent life interest over 6/18th or 1 /3rd share of the land andthe buildings standing thereon and ordered that the sale shall be subjectto the life interest of the 2nd defendant over 1 /3 rd share of the land andbuilding.
The Act was intended to give conclusive title to the land which a personbuys under a decree of court.
The objects and reasons contained in the Bill presented to Parliamentstate as follows :
“ The essence of a partition decree is that persons declared entitledunder it obtain title good against all the world. Various decisions ofthe Supreme Court have tended to eat away the indefeasibility of thetitle. The commission appointed by the Government in 1918 to enquireinto and report on the question of providing a more speedy and lessexpensive method of partitioning land than that provided inOrdinance 10 of 1863 (Sessional Paper I of 1921), the Land Commissionappointed in 1927 (Sessional Paper XVIII of 1929) and the JudicialService Commission appointed in 1935 (Sessional Paper VI of 1936)have all expressed their opinions as to the unsuitability of the existingOrdinance. ”
It is however unnecessary to look into the objects and reasons of thisBill in view of the clear and unambiguous provisions of the Partition Actwhich deal with this matter. Although a partition action is not based on acause of action (vide Sinchi Appu v. Wijegunasekera 1; Abeyesundere v.Babuna et al. 2), the purpose of the Act is no doubt to put an end to incon-venience of possession arising out of common ownership and commoninterests (vide Abeyesundere v. Babuna et al. (supra)). It is for this reasonthat the view has been taken that a person must have the right topossess a land to entitle him to bring a partition action in respect of it(vide Charles Appu v. Dias Abeysinghe 3 ; Kuda Etana v. Ran Etana 4 ; TheLaw of Partition in Ceylon by Jayewardene, p. 44).
1 (1902) 6 N. L. R.l at 6.* (1935) 35 N. L. R. 323.
* (1925) 6 Ceylon Law Recorder 92 at 94.4 (1912) 15 N. L. R. 154.
It was submitted by the counsel for the appellant that the order made bythe learned District Judge defeats the objects and purposes of the Actand perpetuates the inconvenience of possession which the Act sought toput an end to, and the order made was contrary to the spirit and expressprovisions of the Act.
After a careful examination of the relevant provisions ofthe Act, I agreewith the submissions made by the counsel for the appellant. A plaintiffwho brings a partition action under the provisions of the Act is requiredto give the description of the land which is the subject matter of thepartition case by reference to metes and bounds or by reference to asketch or map appended to the plaint (vide section 4 ofthe PartitionAct). It is incumbent on him to make as parties all persons, who to hisknowledge, are entitled to any right, share or interest to, of, or in the landto which the action relates whether vested or contingent, and whether byway of mortgage, lease, usufruct, servitude, trust, fideicommissum, life-interest or otherwise, or any improvements made or effected to the landor are in actual possession of the land or any part thereof (vide section 5ofthe Act).
When the court orders the issue of summons to the Fiscal for serviceon a defendant, it should also issue a commission to Burvey the land towhich the action relates (vide section 16 of the Act). Thereupon thesurveyor to whom the commission is issued is under a duty to execute thecommission in terms of section 18 of the Act.
On the summons returnable date, or a later date fixed by the court forthe purpose, every defendant or other party to the action may file or causeto be filed in court a statement of the claims setting out the nature andextent of his right, share or interest to, of, or in the land over it. Any partyto the action whose rightful share or interest to, of, or in the land is mort-gaged or leased by an instrument registered under the Registration ofDocuments Ordinance should disclose or cause to be disclosed to the courtthe existence of mortgage or lease and the name of the mortgagee or lessee(vide section 19 of the Act).
The court is empowered to decide disputes regarding the corpus of theland in case of any claim that the corpus should be enlarged or restricted(vide Section 23 of the Act).
At the trial the court should examine the title of each party to theaction and, after hearing evidence, determine all questions of law andfact arising in that action as regards the right, share or interest of eachparty to or in the land to which the action relates ; and thereafter makeany one of the orders set out in section 26 of the Partition Act as long asthey are not inconsistent with one another.
The interlocutory decree entered under section 26 of the Act mustcontain hot only an adjudication regarding rights, shares or interests ofany party to the action, but also may contain, inter aha, an order for thepartition of the land or for the sale of the land in whole or in parts.
When a court orders a partition of the land under section 26 (2) (a)there can be no question that the meaning to be attached to the word'* land ” is what is set out in the interpretation clause which defines it as“ land or lands constituting the subject matter of that action Thereis no reason why a different meaning should be given to the word “ land ”when the court orders the sale of the land under section 26 (2) (b),and the certificate of sale confers title to the land purchased under theprovisions of section 46 of the Act.
Counsel for the 1st defendant-respondent contended that under section26 (2) (5) of the Act when a court orders the sale of a land, in whole or inparts, it is a convenient way of stating that the Commissioner shouldproceed to the land and sell the right, title and interest of the shareholders,but the effect of a certificate of sale is that only the shares of the share-holders pass to the purchaser, subject to all the encumbrances stated inthe interlocutory decree and the interests such as constructive or chari-table trust, a lease at will for a period not exceeding one month and therights of a proprietor of a nindagama, in view of the provisions of section 48of the Act.
The effect of a certificate of sale is set out in section 46 of the Act whichenacts as follows :
“ Upon the confirmation of the sale of the land or any lot, the courtshall enter in the record a certificate of sale in favour of the purchaserand the certificate so entered under the hand of the Judge of the courtshall be conclusive evidence of the purchaser's title to the land or lotas on the date of the certificate. The court may, on the applicationof the purchaser, attach to the certificate a plan of the land or lotprepared at the cost of the purchaser and authenticated by the court.”
In view of the definition of the term “ land ” given in the Act, on aliteral interpretation of section 46 of the Act, there is no question that apurchaser on a certificate of sale gets title to the land which is describedby physical metes and bounds or by referring to a plan. But it is con-tended by counsel for respondent that, in the absence of the words " freefrom all encumbrances ” the title to the land in section 46 must be cons-trued as title to the shares of the co-owners and the title the purchasergets is subject to the encumbrances set out in section 48 of the Actand the unspecified interests such as tenancy at will or for a periodnot exceeding one month, constructive ot charitable trust and therights of a proprietor of a nindagama.
It is a cardinal rule of interpretation that if the words of a statute areprecise and unambiguous no more is necessary than to expound thosewords in their natural and ordinary sense, the words themselves in sucha ease best declaring the intention of the Legislature (vide Commissionersfor Special Purposes of Income Tax v. Pemsel 1; Maxwell on TheInterpretation of Statutes, 9th Edition p. 2). A court should not usurp
1 (1891) A. C. 634, 543.
the functions of a legislature by introducing words which are not-found in a statute. On a proper construction of sections 46, 48 and otherrelevant provisions of the Partition Act, it is clear that a purchaserunder a certificate of sale gets title to the land, subject of course to therights of a nindagama proprietor, if the lard had been subject to suchtenure, and such title is conclusive evidence against the whole world.
Section 48 (1) and (2) of the Act which applies to both interlocutorydecrees entered under section 26, as well as the final decrees enteredunder section 36, enacts :
“ (1) Save as provided in subsection (3) of this section, the inter-locutory decree entered under section 26 and the final decree of partitionentered under section 36 shall, subject to the decision on any appealwhich may be preferred therefrom, be good and sufficient evidence of-the title of any person as to the right, share or interest awarded therein:to him and be final and conclusive for all purposes against all personswhomsoever, whatever right, title or interest they have or claim tohave, to or in the land to which such decrees relate and notwithstandingany omission or defect of procedure or the proof of title adduced beforethe court or the fact that all persors concerned are rot parties to thepartition action ; and the right, share or interest awarded by any suchdecree shall be free from all encumbrances whatsoever other than thosespecified in that decree.
In this subsection “encumbrance” means any mortgage, lease,usufruct, servitude, fideicommissum, life interest , trust, or any interestwhatsoever howsoever arising except a constructive or charitabletrust, a lease at will or for a period not exceeding one month, and therights of a proprietor of a nindagama.
The interlocutory decree and the final decree of partition enteredin a partition action shall have the final and conclusive effect declaredby subsection (1) of this section notwithstanding the provisions ofsection 44 of the Evidence Ordinance, and accordingly such provisionsshall not apply to such decrees.”
The distinction between plenum dominium and a bare title burdenedwith encumbrances should be clearly comprehended to appreciate the sub-missions made by Counsel for the respondents. Under the Roman DutchLaw, by the term plenum dominium is meant full rights of ownership.In common parlance and in legal phraseology, when a person has fullrights of an owner, he is said to own the land or have title to the land.The rights of an owmer have been summed up in the Latin phrasesjus utendi fruendi and jus abutendi (vide the Institutes of South AfricanLaw by Maasdorp, Vol. II, 6th Edition, p. 100 ; An Introduction toRoman Dutch Law by R. W. Lee, 5th Edition, p. 121). This definitionwras adopted by the Privy Council in the case Qf The Attorney-Generalv. Herath1. Certain interests which may be vested in others may bededucted from the plenum dominium. When these interests over the
1 (I960) 62 N. L. R. 145.
2*R 6356 (5/65)land could be asserted against the whole world the Glossators andCommentators, who developed the Roman Law during the mediaevalperiod, coined the phrase jura in re aliena to describe them. Someof the interests defined as “ encumbrances ” in the Partition Act are jurain re aliena. When the plenum dominium is denuded of all thebeneficial interests of the owner, a person is said to have nuda proprietasvor bare title to the property.
If the contention of the counsel for the respondent is upheld a purchaserat a sale held under the Partition Act would only get nuda proprietor,if the property has been burdened with encumbrances in such a way thatshareholders get only the bare title.
It was contended by counsel for the 2nd respondent that where anInterlocutory decree for sale of a land specifically mentioned certainencumbrances, any sale is subject to such encumbrances in view of theprovisions of section 48 of the Act. Section 48 deals with the contentsof an interlocutory decree and a final decree. In the case of a final decreefor partition, no doubt the encumbrances stated in the decree wouldattach either to the whole land or to the lots allotted to the various share-holders as the case may be. The effect of a sale is not set out in section 48but in section 46 of the Act which states in unambiguous language thatthe certificate of sale in favour of the purchaser is conclusive evidence ofthe purchaser's title to the land or lot as at the date of the certificate.
In support of his contention, counsel for the 2nd respondent relied onthe dictum of Gratiaen J. in Mrs. Britto v. HeenatigaXa x, where it was heldthat the statutory protection of a tenant under the Rent RestrictionAct is not automatically extinguished if the leasehold premises arepurchased either by a co-owner or third party in terms of a decree forsale under the Partition [Ordinance. Lx that case Gratiaen J. adoptedthe dictum of Garvin J. in Fernando et al. v. Gadiravelu2, which isas follows :
" Upon the issue of the certificate of sale to the purchaser under a
decree for sale, the title declared to be in the co-owner is definitely passed
to the purchaser.”
But it should be noted that section 8 of the repealed PartitionOrdinance emphasises that the certificate of sale operates to pass theco-owners’ title to the purchaser as effectively as if they themselveshad executed a conveyance in his favour.
The dictum of Garvin J. which was relied on by Gratiaen J. in Fernandoei al. v. Cadiravelu (supra) was obiter. In that case the Court had to considerthe question whether in a decree for sale under the repealed PartitionOrdinance, courts could give an order for possession to a purchaser. Themain ground on which that decision was made was that the repealedPartition Ordinance was silent on this matter and the provisions of the
1 (1956) 57 N. L. R. 327.
* (1927) 23 N. L. R. 492 at 498.
Civil Procedure Code, which applied only to orders of possession beinggiven when a sale took place under the provisions of the Civil ProcedureCode, had no application to sales under the Partition decree.
Section 9 of the repealed Partition Ordinance enacts that the decreefor partition or sale is good and conolusive evidence against all personswhomsoever, whatever right or title they have or claim to have in the saidproperty, although all persons concerned are not named in any of the saidproceedings, nor the title of the owners nor any of them truly set forthand shall be good and sufficient evidence of such partition and sale, andof the titles of the parties to such shares or interests as have been therebyawarded in severalty. It is further provided that the certificate of saleunder the hand of a judge is conclusive evidence that the said propertyhad been sold under the order of the court. The certificate issued isevidence in any court of the purchaser's title without any deed or transferfrom the former owners (vide section 8 of the Ordinance). Therefore,there is some justification for holding that the purchaser under a certificateof sale issued under the repealed Partition Ordinance obtained title to theshares of the shareholders. But similar words are not found in the Act.A certificate of sale under section 46 of the Act confers on the purchaserthe title to the land. It is unsafe to act on the decisions of the SupremeCourt which interpreted sections 2 and 9 6f the repealed PartitionOrdinance when one is called upon to construe section 46 of the Act.
The Partition Ordinance was defective in many respects and made noprovisions to meet various situations which arose when a land was parti-tioned or sold under the Ordinance. Thus, no express provisions arefound in the Partition Ordinance stating the effects of a decree for partitionor sale on fideicommissa or trusts.
Earlier the view was taken that such a property could not be the subjectmatter of a partition action under the Partition Ordinance (vide Rama-nathan Reports (1877) page 307). After a period of uncertainty duringwhich the courts were doubtful as to whether a property subject to afideicommissum could be partitioned, the Privy Council expressed theview that such a course could be adopted (vide the obiter dictum of thePrivy Council in Tillekardtne v. Abeyesekerax). Subsequently theSupreme Court held that such lands could be the subject matter ofa partition action (vide Abeyesundere v. Abeyesundere 2).
In the case of a sale under the Partition Ordinance, difficulties arose asto the effect of a decree for sale on a fideicommissum. The view wastaken that a sale under the Partition Ordinance should be regarded as asale under the Entail and Settlement Ordinance and therefore the fidei-commissum attached to the proceeds of the sale (vide Sathiananden v.Matthes Pulle 3). But in taking this view, apart from its artificiality, it
1 (1897) 2 N. L. R. 313 at 317 and 318.* (1909) 12 N. L. R. 373.
* (1897) 3 N. L. R. 200.
was not appreciated that to invoke the jurisdiction of the Court underthe Entail and Settlement Ordinance an application should be made bya person interested in the land, which is the subject matter of thefideicommissum, and reasons should be adduced for the court to ordera sale. Further it was not realized that in a partition action broughtin the Courts of Requests the court has no jurisdiction to act underthe provisions of the Entail and Settlement Ordinance. Yet, theruling in Satfiiananden v. Matthes Pulle1 was followed in a series ofdecisions and the principle laid down in that case is firmly entrenchedin our legal system.
In Mar Hear v. Mar Hear 2, the Divisional Court was confronted withthe question whether a decree for partition extinguishes an express orconstructive trust. In the absence of any provisions in the PartitionOrdinance on this matter, the Court sought a solution to this difficultproblem by interpreting sections 2 and 9 of the Partition Ordinance.
Bertram C.J. by a process of reasoning which, with respect, I haveshown to be untenable (vide Duraya v. Elandi S. C. 116/’63 D. C. Kurune-gala 804/L, S. C. Minutes of 11.2.65—decided after judgment was reservedin the present appeal), came to the conclusion that trusts attached to theproceeds of the sale when a land was sold under an order of court in anaction brought under the Partition Ordinance. In arriving at this con-clusion, Bertram C.J. took the view that “ title to the parties to suchshares or interest means, title to the legal ownership and that the words“ right or title ” are not intended to include obligations of an equitablenature, which although originally binding on the conscience, have subse-quently come to be enforceable in law on the persons vested with legalownership ”. He also took the view that the rights in the nature of ajus in re aliena were wiped out unless specially preserved in the decree(vide 22 N. L. R. at 140). This view is clearly contrary to the submissionmade by Counsel for the respondent who urged that despite a sale underthe Partition Ordinance, interest in the nature of jus in re aliena attachedto the land. This view is also in conflict with the dictum of Garvin J.and Gratiaen J. in the cases cited earlier.
The Partition Ordinance merely provided for the partition or sale of aland held in common by a co-owner and the complex questions which thecourts were called upon to decide were never contemplated by the framersof this piece of legislation. The courts, in their anxiety to give reliefand do justice, sought to give various interpretations to sections 2 and9 of the Partition Ordinance and it is unsafe to rely on casual dicta in
1 {ibid).
» {1920) 22 N. L. R. 137.
such cases to elucidate the meanings of the plain words found in sections2 and 9 of the Partition Ordinance. It is too late to differ from theprinciples laid down in those cases which dealt with such difficult ques-tions but they cannot be unduly extended.
In the case of Quinn, u. Leathern 1, Lord Halsbury said as follows :
“ There are two observations of a general character which I wish tomake, and one is to repeat what I have very often said before, thatevery judgment must be read as applicable to the particular factsproved or assumed to be proved, since the generality of the expressionswhich may be found there are not intended to be expositions of thewhole law, but governed and qualified by the particular facts of thecase in which such expressions are to be found.”
The Partition Act of 1951 was enacted to clarify the law and settlemany points in dispute which arose under the repealed Partition Ordin-ance. When interpreting the provisions of the new Act, resort shouldnot be had to the dicta of judges on the interpretation of sections 2and 9 of the Partition Ordinance particularly when there is a conflict ofviews.
Counsel for the 1st respondent submitted that the word “ title ” insection 46 of the Act means title to the shares of the co-owners. Asstated by Coleridge J. in Adey and another v. The Deputy Master of theTrinity House2, the word “title” has different meanings. In onesense it may mean that one has a right to a thing which is admitted toexist, or it may mean something that does in fact exist. In the caseof title to land, the question is to whom does the land belong. Whenene examines the provisions of section 25 of the Act, the word “ title ”does not have the meaning suggested by the counsel for the 1strespondent. The word “ title ” is used in different senses in the Act.Thus, in section 25 of the Act, it is stated that the court shall examinethe title of each of the parties to the land. So that persons who-claim interests in the nature of encumbrances also should prove their titleto such interests. The word “ title ” in common parlance as well asin legal language does not mean title only to the share of the land of theprevions co-ownens but may also include a claim to any interest.
A further examination of a few relevant sections of the Act makes itclear that what is sold under an order for sale made under section 26 of tb eAct is the land and the purchaser gets title to the land.
Section 42 of the Act makes it obligatory on the part of the Commis-sioner, who is responsible for the sale, to make his return to court inform,ing the court of the amount to which the land, or where the land was1 {1901) A. C. 495 at 506.* (1852) 22 Law Journal, Q. B. 4.
sold in lots, each lot is sold and the name and address of the purchaserthereof and to pay into court the money deposited with him by the pur-chaser. Section 43 of the Act enables the purchaser of the land or if theland was sold in lots, the purchaser of each lot, to pay into court the moneyrealized by the sale of the land or of that lot in conformity with theconditions prescribed and the orders issued by court under section 30of the Act.
On the date specified in the notice referred to in section 40 of the Act,the person who is entrusted with the sale has to first put up the land, orwhen the land is sold in lots, to put up each lot, to auction among theco-owners, and if the highest bid of a co-owner is not less than the valueof a land or of such lot, determined by the court under section 38of the Act, then he shall be declared the purchaser of the land or ofthe lot.
What is valued under section 38 of the Act is the land and not thointerests of the shareholders subject to the encumbrances over them. Sothat it is clear that the purchaser could only purchase the land at a priceabove the valuation of the land. It cannot be contended that the word“ land ” there means the title of the shareholders. One can conceiveof a case where the shareholders only have a bare title and all the beneficialinterests in the land are in the hands of other persons who hold encum-brances. In such a case, if the construction sought to be placed bycounsel for the respondent on section 46 of the Act is to be adopted, thena co-owner has to buy the land at the appraised value of the land but infact he would be buying only the bare title of the land, shorn of all beneficialinterests which would be in the hands of others who are entitled to encum-brances, such as leases, usufructs, mortgages, etc. Such a result wasnever intended by the Legislature. Therefore when an order for sale ismade under the Act, what is valued and sold is the land and the titlewhich passes to the purchaser is the title to the land.
An examination of some of the further provisions of the Act confirmsthe view that what is sold under a decree for sale is the land and not thshares of the co-owners subject to the encumbrances. Section 47 of thAct provides for the distribution and withdrawal of monies deposited inthe court which form the proceeds of sale when the land is sold under apartition decree. It is significant to note that the court is empowered tocause to be prepared by a party a schedule of distribution showing theamount which each party is entitled to withdraw out of the monies depo-sited in court. The parties to a partition case are not only the shareholdershut also those who have other interests and encumbrances. Therefore
provision is made for the distribution of monies not only to shareholdersbut also to the parties who have encumbrances and also interests according:to the valuation which is to be placed on such encumbrances or interests.Therefore it follows that the purchaser under a decree for sale getstitle free from all encumbrances save the interests of a proprietor of anindagama and the interests which are specially preserved by section54 of the Act.
Section 45 of the Act deals with confirmation of sales and the circum-stances in which a sale could be set aside. This section enacts that whenthe amount realized by the sale of the land or any lot is less than the valueof the land or the lot, the court may set aside the sale and re-issue commis-sion for the sale of the land or the lot. This provision again shows thatwhat is sold is not the title of the shareholder but the land. If it wereotherwise, the Legislature would have said in clear words that the courtcould set aside the sale if the value of the title of the shareholders is less,than the amount for which it was bought.
Section 54 of the Act enacts that the rights of a proprietor of a nind*-gama are in no way affected by the sale or partition of a panguwa under theAct. Despite the sale, where it was intended that the interests of a ninda-gama proprietor should be preserved, the Legislature stated so in unequi-vocal language. If it was intended to preserve the rights of personswho have encumbrances or other interests the Legislature would havemade similar provisions preserving such rights when a sale takes placeunder the Partition Act.
Counsel for the 2nd respondent contended that if it is held that a saleunder an interlocutory decree entered under section 26 of the Act passes-title to a purchaser free from encumbrances, then valuable servitudes suchas a right of way over the land which had been sold, or the right to insert,a beam into a building in such a land would be extinguished and irrepar-able loss would be caused to the owner of the dominant tenement. The-answer to this contention is that however valuable a servitude may be tothe owner of a dominant tenement, its value cannot exceed the value of the-plenum dominium over the land. Therefore, the persons who lose suchservitudes will be compensated and would be paid its money equivalent out;of the proceeds of the sale of the land. But the court is not powerless-in a fit case to grant a right of servitude over a narrow strip of land,which the court may for that purpose allot in common.
Counsel for the 2nd respondent also contended that where the land i®subject to a charitable or constructive trust, then the title of the trustee-would be wiped out, if a certificate of sale under section 46 of the Act con-fers title to the purchaser free from such trusts. The trust in such case*
would no doubt attach to the money which replaces the corpusof the trust when the property is sold on a decree for sale. This wasthe legal effect of the sale even under the repealed Partition Ordinance(vide 22 N. L. R. at 137). If the contention of the counsel for the 2ndrespondent is given effect to, one would have the anomalous positionof the trustee having the title to such property as well as the purchaserof the property having title to the land. Since the same title cannotremain in two different persons at the same time, such a result is untenable.
If the contention of the 2nd respondent’s counsel on the effect of a saleon a partition decree is accepted, then there can be encumbrancesover shares of the former co-owners when the undivided shares over whichthey existed have been wiped out by the partition decree. Thus one canconceive of a case where there are three co-owners each having anundivided one-third share. There may be an encumbrance in the nature oflife interes t over each of these shares. When the title to undivided sharesis wiped out by the partition decree and the purchaser gets title under acertificate of sale, the life interest holders would still have the life interestover one-third share of the property. Indeed the facts of the present casecreate this difficulty. Thus a common possession between the life interestholders would be perpetuated despite the sale under a partition decree ofthe property which put an end to the divided interests of the shareholders.Such a result would militate against the object and purposes of thePartition Act.
Counsel for the 2nd respondent also submitted that even under the pro-visions of the Civil Procedure Code the Fiscal can seize and sell the houses,lands and goods of the judgment creditor (vide section 225 (3) of the CivilProcedure Code read along with secton 43 of the First Schedule). Butthe Fiscal sells only the right, title and interest o-f the judgment debtor.He urged, by way of analogy, that when the Court orders a sale of a landunder section 26 of the Act, the Commissioner is empowered only to sellthe title of the shareholders of the land which is the subject matter of theaction. But under the provisions of the Civil Procedure Code, what theFiscal is expected to seize and sell is the property of the judgment debtor(vide section 226 (2) of the Civil Procedure Code) and by wa%v of contrastwhat a Commissioner is empowered to sell under section 26 of the PartitionAct, is the land. The certificate of sale under section 46 of the Actcoi fers title to the land on the purchaser of the land.
The learned District Judge based his decision on the mistaken assump-tion that since section 50 of the Act makes provision to the effect that ina decree for partition, the mortgage or lease should attach to the dividedportion allotted to the mortgagor or the lessor, and in the event of adecree for sale, to the proceeds of the sale belonging to the mortgagor
or the lessor, in the absence of similar provision to cover usufruct, servi-tude, fideieommissum or life interest, one must necessarily come to theconclusion that these interests attach to the land in the hands of thepurchaser.
Section 50 of the Act is not an enabling section but a restrictive provi-sion. Under the repealed Partition Ordinance, in the absence of specificprovisions, there was a conflict of opinion on the vexed question whetherthe interest of lessees and mortgagees subsisted when the property wassold under a decree for sale. One view was that leases and mortgages atta-ched to the land even after the sale (vide the Law of Partition in Ceylonby Jayewardene, pp. 244 and 247 ; for mortgages vide Fernando v. Silva,De Silva v. Rosinahamy et al. 2; for leases see Soysa v. Soysa 3). The otherview was that the land was sold free from leases and the lessee had to lookto the monies allotted to the lessor in claiming his interests (vide Petris v.Peiris*). Therefore it became necessary to enact specific provisions toend this .controversy. Hence section 50 of the Act provides that in thecase of a sale under the Act the interest of a mortgagee or a lessee is res-tricted to the share of the proceeds of the sale which would be allottedto the mortgagor or the lessor, respectively.
The learned District Judge failed to note that section 47 of the Actmakes specific provisions for distribution of monies to parties who haveinterests in the land, and that mortgagees or lessees are persons whohave interests over the land.
For these reasons I order that the part of that interlocutory decreeentered by the learned District Judge which states that “ the said premiseswill be put up for sale subject to the life interest of the 2nd defendant inrespect of one-third share of the soil and one-third share of the building ”,be deleted and the following words be substitued : “ the said premiseswill be put up for sale ”. The rest of the order of the learned DistrictJudge in the interlocutory decree will stand. The interests awarded tothe 2nd defendant will be valued and he will be paid the estimatedvalue of his usufruct out of the proceeds of the sale.
The appellant is entitled to costs of appeal and costs of inquiry.
T. S. Fernando, J.—I agree.
Manicavasagar, J.—I agree.
(1913) 17 N. L. R. 67.
(1906) 9 N. L. R. 237.
Decree amended.