( M3 )
Present De Sampayo and Schneider JJ.HAMIDU v. GUNASEKERA et at.57—D. C. Matara, 9,322.
"Partition—Person entitled to a building and "not to the soil—Is he aco-owner f—Sale among co-owners—Partition Ordinance, 1863, s. 8.
A person who has no interest in the soil, but has only in a buildingon the land, is not a co-owner of the common property, so asto entitle him to come inamong theclassof personsentitled to
bid at a sale among co-owners under section 8 of the PartitionOrdinance.
iHE facts are set out in the judgment of the District Judge(C. W. Bickmore, Esq.) : —
Idon’t think much of theobjectionsraisedregardingthe formal
conduct of the sale. I am inclined to think that the Commissionerdid not make any definite refusal to accept the seventh defendant’sbid. I expect there was a more or less informal discussion, and theCommissioner then proceeded to accept seventh defendant’s bids withthe reservation that the matter could be discussed in Court. I thinkthat is why he made no mention of the fact in his return to the com-mission. He thought it was for plaintiff to bring the matter up. Ithink plaintiff reached his limit, and allowed the property to be knockeddown to seventh defendant. I do not believe he stopped merelybecause, as he says, he thought they were trying to run him up andland him with the property at a high figure. The real question is whethera person who only owns a house on the land is entitled to bid as aco-owner at the sale. There does not appear to be' any definite decisionon this question, and I think I am entitled to approach the questionde novo.
In this case it seems to me that all the circumstances point to thepropriety of accepting seventh defendant's bid as a co-owner. He livesonthe land, and his familyhave beenlivingthere fora very long
time. Plaintiff is a person of different race, who ' originally cametobe interested in the landthrough apurchase at a Fiscal’s sale
by his father-in-law. The property has fetched much more than, thevalue plaintiff put on it in his plaint, and considerably more than theappraised value. On the other hand, it is quite possible that to ordeia fresh sale, and exclude seventh defendant from bidding would meana decrease in the amount realized. Plaintiff now says he is preparedto pay Rs. 4,000 for the property, so he can hardly be heard to saythat the present sale at Bs. 3,040 has prejudiced him as a co-owneiby forcing him to pay a higher price than the land is worth.
As a matter of fact a second vale would be very awkward indeed,the bidding would probably force the price up to an exaggerated figure.
There is one other point. There is a- recent decision to the effectthat compensation for buildings is a fixed sum determined by th<Commissioner, and i-# not to be varied proportionately to the price
( 344 )
realized. This iscontraryto what . hasbeen the practicehitherto
which has beenconfirmedby a seriesof decisions. Theconverse
appears to have been lost sight of, that if a much smaller price is realizedthe soil owners may get very little for their shares. I collected a numberof cases where this principle, if put. into effect, would have workedobvious injustice, I think from this point of view, too, it is only rightthat a person who owns a house on a land to be sold should be giventhe right to interest himself in the sale.
Kevneman (with him M-. W, H. de Silva), for appellant.
So,erts2., for respondents.
July 26, 1922. De Sampayo J.—
I am afraid the order of the District Judge refusing to interfereAtfith the sale of the property in question cannot stand. The actionwas brought for the partition of a certain land which containedplantations as wellas certain buildings.The seventh defendant
had only an interest in one of the buildings. After investigationthe Court made a decree declaring the plaintiff and: some- of thedefendants to be owners of the soil, and as regards th'e. seventhdefendant he was declared entitled to one-sixteenth of buildingsmarked Nos. 1, 2, and 3 in the plan. The Court, instead of a partition,ordered a sale of the property, and issued a commission to one Mr.Ferdinand to carryout thesale."' The Commissioner putup the
property for sale on conditions approved of by Court. The first .person to bid was the plaintiff. Then the seventh defendant put ina bid, to which the plaintiff objected. The ground of the plaintiff’sobjection was that the seventh defendant was not a co-owner andwas not entitled to bid* in view of section 8 of the PartitionOrdinance. Plaintiff thereupon asked either that that bid shouldbe rejected and the sale go on among other persons, or the Com-missioner should refer the matter to Court for its decision. TheCommissioner was not inclined to adopt either suggestion, andaccordingly the sale went on, and was concluded in favour of theseventh defendant who was the highest bidder. Before theconditions of sale were signed by the seventh defendant, however, heinformed the Commissioner that he bought not only for himself, butfor the third defendant as well who was a co-owner of the soil. TheCommissioner took the signatures of both the third defendant andthe seventh defendant as purchasers, and reported the matter toCourt. The plaintiff persisted in his objection, and put in a petitionstating the same objection, and asked for an inquiry. An inquirywas held, and substantially the same facts as I have mentioned wereelicited in the course of the inquiry. The District Judge over-ruled the objection, and confirmed the sale. This appeal is taken bythe plaintiff from the order of the District Judge.
I think the plaintiff’s objection is well founded. Section 8 ofthe Ordinance provides for carrying out of a sale when a decree for
( 145 )
the sale of >t common property has been given by Court, and it laysdown that the property should first be put up for sale among theowners thereof. It appears clear that in this enactment theproperty contemplated is the common property, which by thedecree is to be sold. That being so, the seventh defendant, whohad no interest at all in the soil, but had only a right to a smallundivided share in one of the several buildings, cannot be said to bean owner of the common property so as to entitle him to come inamong the class of persons entitled to bid under section 8. As amatter of fact a person entitled merely to an interest in a building ona land which is become the subject of a partition action can onlyobtain cdfnpensation for- the interest in the building, and cannot getany share of the land in the partition.
It is argued that unless the seventh- defendant was allowed to bidat the sale and protect his own interest, it would be a great hardship,but if his claim would only be compensation, and if, as is the casealways, the property is first put up for sale among the co-owners atan appraised value, taking into consideration the value of thebuildings and everything else on the land', a person entitled to ashare in a building cannot incur a loss in any case, because out ofthe proceeds of the sale his compensation must be paid first. Inconnection with the point involved in this case, the case of Be Silva v.Siyadoris 1 was cited, and I think that case dearly supports theproposition that a person who is merely interested in any buildingon a land is not a co-owner with the others who are entitled to sharesin the land itself.
I think we must interfere with the order of the District Judge,and set aside the sale held by the Commissioner, and direct that theCourt should take other steps for the purpose of carrying out thesale ordered by the decree.
The plaintiff is entitled to the costs of the inquiry as well as thisappeal.
Schnkider J.—I agree.Set■ aside*.
M2912) 14 N L. R. 268.
Hamidu v.Gu nasejeera
HAMIDU v. GUNASEKERA et al