075-NLR-NLR-V-23-KIRIHAMY-v.-MUDIYANSE.pdf
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Present: Ennis J. and Garvin A. J.
1021,
KIRIHAMY e. MUDIYANSE.
127—D. C. Regatta, 5,334.
Lease—Is it alienation ?—Partition Ordinance1863, a 11.
. A lease made during the pendency of a partition action is notvoid, as it is not an alienation within the mAwning of section 17of the Partition Ordinance.
rTlHIS was an action brought by the plaintiff for a declarationof his right to possess a number of lands leased to him by thedefendants. The defendant denied the right of the plaintiff tomaintain the action, on the ground that the lease relied upon wasexecuted during the pendency of partition proceedings.
It was admitted by the parties that the lease relied upon by theplaintiff was executed during the pendency of partition proceedings,and the parties agreed that two preliminary issues should first bedecided:—
Is the lease void, as it was executed during the pendency of
C. 3,560?
Is defendant estopped from repudiating his own deed ?
The learned District Judge decided the issues in defendant’sfavour. The plaintiff appealed.
J.8. Jayawardene, for appellant.
Keuneman, for respondent.
1 (1911) 14 N. L. B. 129.
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November 22,1921* Ennis J.~1921.
This is an action for a declaration of title to possess land in the jlirihamy v.terms of a lease. The lessee was dispossessed by his lessor after MudSyane*one year. The lease was for a period of eleven years. The learnedJudge held on the authority of Abeyesekera v. Silva1 that the leasewas void, as it was made during the pendency of a partitionaction. The appeal is from that finding. It was contended for theappellant that a lease in Roman-Dutch law was not an alienationwithin the meaning of section 17 of the Partition Ordinance,
No. 10 of 1863. In my opinion this contention is right. The caseof Abeyesekera v. Silva (supra) was based on the finding of BonserC.J., in Ooonatoardena v. Bajayakse2 it was decided that a lease mustbe regarded as a pro tanto alienation for the purpose of giving thelessee the right to bring a possessory action. In the case of Lebbe v.
Christie,3 in which most of the authorities have been dealt with,the majority of the Full Court refused to extend the exception infavour of the lessee so as to allow the lessee to claim compensationas a bona fide possessor. In view of this latter case, it seems to methat the case of Abeyesekera v. Silva (supra) requires consideration.
It will be observed that sections 12 and 13 of the Partition Ordinancemake specific provision for mortgages and leases, but when onelooks to section 17, it will be seen that although hypothecation isprohibited after the institution of a partition action, no specificmention is made of leasing.
From a practical point of view, there are certain obvious incon-veniences which would attach to a prohibition of leasing undersection 17, as it might have the effect of making the propertyunproductive during the continuance of the partition suit. Itseems clear that the Roman-Dutch law did not regard a lease as analienation, and I can see no reason to think that the form of leasecan effect the principle. Abeyesekera v. Silva (supra) seems to implythat a notarial lease should be prohibited, but not a verbal one.
In the circumstances, I would hold that the lease is not analienation within the meaning of section 17 of the PartitionOrdinance, and T. would set aside the decree appealed from withcosts, and send the case back for further proceedings on the otherissues in the case.
Garvin A.J.—
I agree there is authority for the proposition that where a personis prohibited from alienating property by the testator orthesettler,or where such a prohibition is by law imposed on a person in afiduciary capacity, e.g.y guardian, a hypothecation or lease “ for along term” of the property to which the prohibition applies shouldbe regarded as an infringement of the prohibition. ThiB, however,
1 (Jttf) 2 Bat. Notes 31.* {1223) 2 N. L. R. 217.
• {1912)18 N.L.R.363.
23
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1221.
Gabvin A.J.
Kirihamy v.Mudiyantt
is not an authority for the proposition that a hypothecation or alease must always be regarded as necessarily included in the word“alienation/’ Indeed, Sand© asserts that under no circumstancescan a lease be regarded as an alienation. Section 17 of the PartitionOrdinance, in express terms, prohibits alienation and hypothecation,but makes no mention of leases. It is clear that the term“ alienation ” as used in this section does not include hypothecation.There is apparently no reason, therefore, for supposing that it wasintended to include in the term anything which did not strictlyfall within what, according to Sande, is the ordinary meaning ofthe word “ alienation.”
Set aside.