Premathiratne v. Elo Fernando
1954Present: Pulle J. and K. D. de Silva J.]£. L. PREMATHIRATNE et al., Appellants, and N. ELOFERNANDO et al., RespondentsiS. G. 117—D. G. (Inty.) Negombo, 15,656
Partition action-—Improvements made by a co-owner-—.Limits of their relevancy in.allotting shares..
Although, in a partition decree, a co-owner should, whenever possible, begiven the lot which carries his improvements, thi3 principle should not beadhered to if, in the process of giving effect to. it, substantial injustice is likelyto be caused to the other co-owners.
TT D. DE SILVA J.—Premathiratne v. Elo Fernando
Where, however, improvements made by one co-owner fall within the portionallotted to another co-owner the latter should pay compensation to the formerin respect of the improvements.
PPEAL from an order of the District Court, Negombo.
Sir Lalita Rajapakse, Q.G., with M. L. S. Jayaselcera, for &he plaintiffnappellants.
N. E. Weerasooria, Q.G., with D. S. Jayawickreme and K. Q>. de Silva,for the defendants respondents.
Cur. adv. vult}
January 28, 1954. 3£. D. de Silva J.—1
This is a partition action The learned District Judge after trialordered that an interlocutory decree for partition be entered. The twoplaintiffs are jointly entitled to fths of the land. The remaining Jthshare is allotted to the 2nd and 3rd defendants subject to the life-interestof the 1st defendant and to the conditions set out in certain deeds. Thecorpus to be partitioned comprise lots 1 to 6 shown in plan X filed ofrecord. The extent of the land amounts to a little over 44 acres. Thewhole land is very marshy, particularly lot 1 shown in plan X. Admit-tedly the most valuable portion of the land consists of lots 2 and 3. Atthe trial the defendants sought to establish that on their chain of titlethey were entitled to the northern Jth share of the land. There wasalso a contest between the plaintiffs on the one hand and the defendantson the other in regard to the ownership of the plantations of 25 years andunder. The learned District Judge accepted the claim of the defendantsto these plantations. In regard to' the northern Jth share of the land,he rightly, if I may say so with respect, held against) them.
The young plantations allotted to the defendants stand on lots 2 and 3.In his judgment the learned District Judge observed “ it will be reasonablefor the Commissioner to allot a share to the defendants towards the northso as to include these plantations” at the partition. It is against thisobservation, which almost amounts to a direction, that the plaintiffshave appealed. Lot No. 2 contains 20 coconut trees of the old plantationand 12 trees of the young plantation allotted to the defendants. OnLot 3 the number, of coconut trees of the old plantation amounts to 54,while it also contains 12 coconut trees allotted to the defendants. Asto whether these young plantations belonging to the defendants standon a defined section of these two lots or not it is not clear. The probabi-lities are that these trees are interspersed with the old trees. In thatevent, according to the mild direction given by the learned DistrictJudge, the entirety of these two lots are likely to be allotted to thedefendants.*
It is true that wherever possible a co-owner should be given at thepartition a lot which carries his improvements. This principle, however,cannot bn-adhered to in all circumstances. If in the process of givingeffect to that order substantial injustice is likely to be caused to the otherco-owners, the principle should not be adhered to. According to theSurveyor’s report, most of the coconut trees standing on this land are
Ebert Silva Bus Go., Ltd. v. Commissioner of Motor Transport371
stunted. That is not strange in view of the marshy nature of the soil.In regard to lots 2 and 3 it would appear what is more valuable is not theplantations but the soil itself. Out of the total number of trees standingon those two lots, the greater number would belong to the plaintiffs, asthey are entitled to fth share of the land. It is also in evidence thatthe land immediately to the north of these two lots also belong to theplaintiffs. Taking all these facts into consideration, it would be unjustto allot these two lots or the greater part of them to the defendants whoare entitled to only fth share of the land. Therefore, I would direct theCommissioner to allot the northern fth share of lots 2 and 3 to theplaintiffs and the southern fth share to the defendants. The line ofdemarcation is to rim from the eastern boundary of lot 3 to the westernboundary of lot 2 in a straight line. If any trees belonging to the plant-ations allotted to the defendants fall within the lot given to the plaintiffs,the defendants would be paid money compensation in respect of thosetrees. The Commissioner is directed to partition the other lots in themost equitable manner in his opinion.
The Interlocutory Decree is to be amended in terms of this Order. ~
The defendants will pay to plaintiffs fifteen guineas as costs of thisappeal.
Pulle J.—I agree.
K. L. PREMATHIRATNE et al., Appellants, and N. ELO FERNANDO et al., Responden
Premathiratne v. Elo Fernando