Hum arasingka v. Andirishamy
1953Present : Gratiaen J. and Gunasekara J.>
D. N. W. A. KTJMATtASINGHA, Appellant, and ANDIRISHAMY,
S. C. 145 (Inty.)—D. G. TangaUe, P 182
Partition action—Interlocutory decree—Improvements made by co-owner—Specialdirection to Commissioner relating to them—Scope—Partition Ordinance, s. 5.
When, a Court enters interlocutory decree in an action for the partition of aland it would be acting prematurely if, without examining all the relevantconsiderations, it gives an unconditi<mal special direction to the Commissioner-to the effect that a co-owner who has made certain improvements should bo-allotted, in lieu of*his undivided share, a specified portion which includes those-,improvements.-
GTtATIAEN J.—K.umarasingha v. Andiriahamy
A.PPEAL. from an order of the District Court, Tangalle. 6’
N.E. Weerasooria, Q.G., "with. W. D. Gunasekera, for the plaintiffappellant.
Vernon Wijetunge, for the 7th defendant respondent.
Cur. adv. vult.
March 25, 1953. Gbattatcu J.—
In this case the learned District Judge entered an interlocutory decreefor the partition of the land depicted in Plan No. 350 filed of record,allotting shares to the parties as indicated in paragraph 7 of the plaint.There was no dispute as to the soil shares, hut there was a contest asto the claim of the 7th defendant in respect of an improvement representedby Building No. 3 standing on Lot B. The learned District Judgeheld as a fact that this building had been constructed by the 7th defendantbefore the action commenced, and in his interlocutory decree he gave a“ special direction ” that the Commissioner Should h. this scheme ofpartition give the 7th defendant his rights in the soil so as to include thisbuilding. The present appeal is directed against this “ special direction ”.
A Court, when entering an interlocutory decree, undoubtedly possessesjurisdiction under section 5 of the Partition Ordinance to give a specialdirection to the effect that a co-owner who has made certain improvementsshould be allotted, in lieu of his undivided share, a specified portion whichincludes those improvements. Jayawardena on Partition p. 91. Buta Court should, I think, be slow to make such a direction unconditionally,unless the Court has perfectly satisfied itself, upon an exa.mination of allthe relevant considerations, that such a scheme of partition is practicableand just. In Sinchi Appu v. Wijegoanesekera1, Wendt J. directed that,in the circumstances of that particular case,1' in the partition the Com-missioner making it will, if possible, so divide the land that the buildingsmay fall in the defendants’ moiety, but if that be not13 (possible, someother division will be adopted which will give the defendants the entirevalue of the buildings”. Similarly, in Sanchi Appu v. Marthelis2Pereira J. ordered an interlocutory decree “ declaring that the seconddefendant is entitled to compensation in respect of the house* from his-col-owners ….” and directing that, “ if practicable, the second
defendant, on the partition, be given a portion with the house on it ”.
The circumstance that a particular co-owner had, in the exercise of hisrights as co-owner, built a house on the common land is certainly, evenin the absence of special directions by the Court, a weighty considerationto be taken into account by the Commissioner who prepares a scheme ofpartition for confirmation by the Court. But it is not necessarily theonly consideration. In the present ease, for instance, the plaintiff drawsattention to Jiis claim to be the owner of the land on the east immediatelyadjoining the portion on which the building stands, whereas the 7thdefendant owns the adjoining land on the west Which is far removed
(1902 6 N. h. R. 1 at page 11.
(1914) 17 N.L. R. 296 at page 297.
Themis v. The Queen
from the site of the building. The learned Judge has given no expressionin bin judgment to bis opinion on these or any other factors, but he seemsinstead to have been influenced almost entirely by his suspicion that theplaintiff, who is wealthier than the 7th defendant, desired a sale insteadof a partition of the land so as to “ swallow up all the rights in it Thistheory*is disproved by the plaintiff’s evidence where he expressly askedfor partition and not for sale.
I am not convinced that the unconditional special direction given tothe Commissioner was not premature. It would have sufficed, I think,to have given only a general direction that due consideration should begrxen by the Commissioner to the circumstance that the 7th defendantwas the co-owner who had constructed the building No. 3, and I wouldprefer not to fetter the Commissioner’s discretion to any further extentfor the present. It seems to me that, after the scheme of partition whichthe Commissioner ultimately recommends has been duly submitted, theCourt would be in a better position to adjudicate upon any objectionswhich a party might raise against it.
I would amend the decree by substituting for the special directiongiven by* the '•lehmed district Judge a direction that the Commissionershould pay due regard to the circumstance that the 7th defendant is theco-owner who constructed the building No. 3 standing on Lot B. Subjectto this variation, I would affirm the judgment of the learned DistrictJudge dated 25th May, 1951. In all the circumstances, I would makeno order as to costs of this appeal.
Guxasekaea J.—I agree.
D.N. W. A. KUMARASINGHA, Apppellant, and H. ANDIRISHAMY, Respondent
Hum arasingka v. Andirishamy