■ DALTON J.—De Silva v. Odiris.
1932Present : Dalton J. and Jayewardene A. J.
DE SILVA v. ODIRIS.
182—D. C. (Inty) Galle, 22,331.
Partition—Sale of' land in lots—Appraised value not realized—Value ofimprovements—No deduction in compensation.
Where property is sold in lots under the Partition Ordinance, thevalue of the improvements cannot be increased or decreased accordingas the lots realized more or less than the appraised value.
The appraised value of the improvements must first be deductedbefore the proceeds of sale are distributed among the soil-owners.
^/^PPEAL from an order of the District Judge of Galle.
H. V. Perera, for 10th defendant-appellant.
L. A. Rajapakse, for plaintiff-respondent.
June 6, 1932. Dalton J.—
This appeal raises a question under the Partition Ordinance, in a casewhere land and improvements thereon have been sold for a lower pricethan that at which the commissioner valued them.
> L. R-. * 70 B. D. 438 (4i,4).
DALTON J.—De Silva v. Odiris.
The facts are as follows. The total extent of the land is just over3 roods, and as it }vas not possible to divide this extent equitablyamongst over fifty persons, a decree for sale was ordered. For thepurpose of obtaining as good a price as was possible, the land was dividedinto three blocks as set out in plan (No. 861 A) to be sold separately, thevalue of the soil, trees, and buildings on each being separately appraised^The total appraisement of lot A was Rs. 2,730, the house thereon, theproperty of the tenth defendant being appraised at Rs. 2,000. Thetotal appraisement of lot B was Rs. 2,040, the principal building thereon,a school, being appraised at Rs. 1,250. This school belonged to a societycalled the Sri Ubayartha Sadaka Sqciety. The third block, lot C, hadno buildings on it, the trees and “soil being appraised in all at Rs. 1,030.When put up for sale on March 29, 1930, lot A fetched Rs. 2,735, beingbought by the tenth defendant, the price paid being Rs. 5 over theappraised value. .There was no bid for lot B, parties being said to bereluctant to buy it owing to the presence of the school there, not wishingapparently to compete with a charitable institution. Lot C was purchasedfor Rs. 775 by others than the co-owners. Lot.B was subsequently putup for sale again on 'August 4, 1930, and purchased by the society forRs. 150. It is clear that none of the co-owners wished to compete forthe purchase of this block, nor was any attempt made at any time tohave the appraised value revised.
Of the blocks sold, therefore, only block A realized the appraised value.That was purchased by the tenth defendant, who had been held by theCourt to be entitled to the improvements, i.e., the house thereon. He hadbeen given credit for the sum of Rs. 2,000, the appraised value of hisimprovements. On the completion of the sales, however, the proctorfor the plaintiff, who had been held to be entitled to 1/24 of the soil andnothing else, filed a fresh scheme of distribution of the proceeds of sales,whereby the deficiencies resulting from the sales of blocks B and C wereto be made good from the proceeds of the sale of block A. By thisscheme the amounts due to the owners of both soil shares and improve-ments were to be reduced proportionately, and the tenth defendant,who had already been given credit for the sum of Rs. 2,000, the value,of the improvements made by him oh block A, was called upon to showcause why he should not bring into Court the sum of Rs. 991.30. Thetrial judge accepted this amended scheme of distribution and orderedtenth defendant to bring the sum mentioned into Court.
The question to be decided here is whether, the prices obtained at thesales of lots B and C not having realized the appraised value, thedeficiency is to be shared proportionately among the owners of the soilshares, the plantations, and the improvements on the three blocks A,B. and C.
The first matter for comment is that by the apparent common consentof all the co-owners there was no competition for block B. Althoughtheir motives for not competing with the society that eventually purchasedthe block were no doubt very excellent ones, they obviously cannot saythey are not responsible for its. failing to reach the appraised value.The second matter for remark here is that there were three sales andnot one sale as in the cases cited by counsel.
DALTON J.—De Silva v. Odiris.
Assuming, however, for purposes of argument that the sales should beregarded as a whole, there is authority to support appellant’s contentionthat where property fetches at the sale more or less than the appraisedvalue, the value of the improvements must first of all be deducted fromthe proceeds and the balance is then to be divided among the owners ofthe soil. This is on the footing that the value of the improvements asopposed to the interests in the soil shares is fixed and cannot be enhancedor decreased by any particular price realized at the sale. This was theview taken in Kanapathypillai v. Nagalingam Three earlier cases werecited in which a different view was taken (De Silva v. Gunawardena *;De Silva v. Lokuhamya; and Disemas v. Bandu'). In these three casesit was held that the increase in value realized at a sale under thePartition Ordinance should be divided among the owners of allthe different interests in proportion to the value of their sharesaccording to the appraisements. These three cases do not appearto have been cited at the hearing of Kanapathypillai v. Nagalingam(supra), as they are not referred to by de Sampayo J. in his judgment.All four cases are, however, mentioned and considered by the lateMr. Justice A. St. V. Jayewardene in his Law oj Partition, pp. 172-174.He there expresses his opinion that de Sampayo J. in Kanapathypillaiv. Nagalingam (supra) lays down the more correct principle. Havingregard to this difference of opinion, the decision in Kanapathypillai v.Nagalingam (supra) gives effect to the view I would prefer to follow.None of the cases cited to us deals with any deficiency in the appraisedvalue resulting at the sales held, and hence it has been urged by counsel- for respondent that the latter case is not binding on this Court. Thesame argument applies of course to the authorities on which counsel'relies. It is not, however, suggested that the principle on this particularquestion applicable in the case of a surplus would be different from thatapplicable to a deficiency, which explains why de Sampayo J. althoughdealing with a surplus, holds that the value of improvements in a saleunder the Partition Ordinance could not be enhanced or decreased by theaccident of any particular price realized at the sale. I presume a case ofa sale, in which .the price realized was less than the appraised value of theimprovements alone, would not in practice arise, since the owner of theimprovements would as a general rule bid up to the appraised value forhis own protection.
In considering this question, the trial judge has followed the earlierdecisions, to which I have referred, but in my opinion-he was wrong indoing so. The fresh scheme of distribution submitted after the sales byplaintiff should have been rejected. The appeal must be allowed for thereasons I have given, and the order directing the tenth defendant to paythe sum of Rs. 991.30 into Court is set aside.
The appeal is allowed with costs.
Jayewardene A.J.—I concur. As to costs, we are agreed that theappellant should have the costs of the appeal and the costs of thiscontention only in the District Court.
22 N. L. R. 223.3 1 Matara Cases 46.
1 Matara Cases 43.4 5. Bal. Rep.' 87..
DE SILVA v. ODIRIS