APPUHAMY v. SANCHIHAMY et al

005-NLR-NLR-V-21-APPUHAMY-v.-SANCHIHAMY-et-al.pdf


( 33 )
[Full Bench]
Present: Ennis, Shaw, and De Sampayo JJ.APPUHAMY v. SANCHIHAMY et al.252—D. C. Ghilaw, 5,170.
Partition—Improvement by one co-owner—Measure of compensation.
Where a co-owner has effected improvements on a portion ofthe land sought to be partitioned, and such portion is allotted toanother co-owner,' the compensation to be paid to the co-ownerwho has effected the improvements is the present value of theimprovements or the cost of effecting the improvements, whichevermay be less.
Motdrich v. La Brooy explained
rriJELE appellant sued in this case for the partition of a land called-*■ Ambagahawatta, and in his plaint stated that the husbandof the fourth defendant, and father of the fifth, sixth, seventh,eighth, and tenth defendants, had planted the southern portionof the land with coconuts and built a house thereon.
The fourth, fifth, and seventh defendants, and ninth and eleventhdefendants, who are the husbands of the eighth and tenth defend-ants, respectively, disputed the correctness of the shares allotted tothem, and the sixteenth defendant intervened as a lessee from theother defendants.
After trial the Court passed a decree for partition according tothe shares stated by the appellant, and further directed that- thefourth, fifth, and seventh to eleventh defendants be allotted theirshares on the side where they have planted and where their housestands, and declared ^them entitled “ to compensation for balanceplantation, not allotted to them. ’ ’
The Commissioner appointed to partition reported that theplantations and the building, which have got included in the portionallotted by him to the appellant, are of the value of Bs. 996.80 andBs. 75, respectively, and that the appellant should pay to the fourth,fifth, sixth, seventh, eighth, and tenth defendants the entire totalthereof, namely, Bs. 1,071.80, and likewise that the twelfth,thirteenth, and fourteenth defendants, in whose lots certainplantations are included; should pay full value of the same, namely,Bs. 101.50.
When the said report of the Commissioner came up for consider-ation, the appellant objected to the award of compensation asabove, on the ground, first, that compensation for improvements
111911) 14 N. L. R. 331.
1MB.
( M )
IMS.
Appuhamy
Scmehihcmy
did not mean the whole or part of the said improvements irrespec-tive of cost thereof, and' called evidence to prove what the actualexpenditure incurred on the improvements should be assessed at.No evidence was adduced on the other side.
The learned District Judge gave judgment ordering final decreeto be entered in terms of the Commissioner’s report, that is to say.awarding to the fourth, fifth, sixth, seventh, eighth, and tenthdefendants full value of the improvements.
The plaintiff appealed.
St. V. Jayawardene, for plaintiff, appellant.—A co-owner whomakes improvements is not entitled to any larger rights than abona fide improver of property which is not his own. (Perera v. Pel-madulla Rubber and Tea Co.1) [De Sampayo J.—Are we not governedby the Partition Ordinance?] The Partition Ordinance merelyindicates the procedure. It does not lay down substantive law onthe question of compensation to an improving co-owner. We aregoverned by the rule of the common law, which is, that the co-owneris entitled to the full value of the improvements or the expensesactually incurred by him, whichever is less. This rule has been^consistently followed by the Supreme Court. ■ Counsel citedII. Maasdorp 312; Voet 10, 3, 3 (Samson’s Translation); Silva (V.Babunhamy;* Silva v. Silva;* De Silva v. Siyadoris;* Silva v.Silva;* 783, D. C. Chilaw;* 7,904, D. C. Colombo.7
Our Ordinance is based on the English law. (Vol.—XXI.,Halsbury’s Laws of England, page 851; Watson v. Grass;* Re JonesFarrington v. Forrester;9 Leigh v. Dickeson.10)
Croos-Dabrera, for defendants, respondents.—The rights of aco-owner to compensation for improvements are no longer governedby the common law. Under the Partition Ordinance the Com-missioner is asked to partition the land with reference to the valueof improvements made by the co-owners. This implies that theco-owner is entitled to the full value of the improvements at thetime of institution of the action. (See Silva v. Wiratunga. **) If theimprovements made by a co-owner fall on the portion allotted tohim at the partition, he is not expected to pay any compensation(Moldrich v. La Brooy. 12) This can only be done on the basisthat the co-owner is entitled to the full value of the improve-ments. Otherwise.he should be ordered to compensate the otherco-owner. In Fernando v. Sleman, 13 Wood Renton J. said “ that
1 {1913) 16 N. L. B. 306.
(1912) 16 N. L. B. 43.
(1911) IS N. L. B. 79.
(1911) 14 N. L. B. 268.
(1906) 9 N. L. B. 114.
S. C. O. Min., July 28. 1896.
»(1911) 14
7 S. C. C. Min., Nov. 7, 1889,
(1881) 51 L. J. (Ch.) 480.
(1893) 2 Ch. 461.
“ (1884) IS Q. B. D. 67.
“ (1917) ■20 N. L. B. 218.
»(1911) 14 N. L. B. 331.r. L. B. 282.
( 35 )
the words ‘ just valuation ' in. section 8 of Ordinance No. 10 of1863 should be interpreted as meaning a valuation considered as animprovement."
In most cases the cost of the improvement and the present valueare practically the same. The adoption of the latter basis providesa surer test, and parties need not undergo the inconvenience ofincurring heavy expenses in establishing the cost of the improve-ment.
Cur. adv. vult.
February 26, 1919. Ennis J.—
The only question for decision in this case is, upon what basisis compensation to a co-owner to be assessed in a partition suit?The learned District Judge has given the full present value of theimprovements, and the plaintiff appeals. It is contended that theassessment should be either the cost of the improvements or thepresent value, whichever is less.
The Partition Ordinance, No. 10 of 1863, says, section 2, that theplaint is to set forth, inter alia “ the improvements, if any, whichhave been made on the property, and by which of the ownerssection 4 provides that all points in dispute are to be determined bythe Court; and section 5 gives power to the Court thereafter toissue a commission to a person to partition the land, who is to do so" according to the ascertained proportions of the several owners,and with reference to the value of any improvements made thereon,and the party by whom they have been made."
The Ordinance nowhere makes provision for the payment ofcompensation, or. for the assessment of compensation. Section 5is merely a direction to the person making the partition, and doesnot authorize him to decide the value of the compensation. Thatis a matter for the Court.
The Court must be guided by the common law rules relating tocompensation in the absence of any specific direction in the Ordi-nance. There can be no doubt as to the common law rules in thecircumstances. Voet IQ, 3, 3, shows that on partition a co-owner can.claim contribution towards the costs of improvement; The ruleshave been summarized in Pereira’s Compensation for Improvements,page 76 et seq., and the question discussed at page 47 et seq.The principle has been applied in Ceylon in the case of Silva v.Bdbunkamy 1 and Perera v. Pelmadulla Rubber and Tea Co.2■ The difficulty in the case is tile apparently conflicting decision inMoldrich v. La Brooy 3 and Fernando v. Sleman* These cases maybe regarded as exceptions.
By the common law rule the assessment in the present case mustbe either the costs of the improvements or the present value,whichever is less. It may be that in the present case the cost of
* (1912) 16 N. L. JR. 43.> (1911) 14 N. L. B. 331.
3 (1913) 16 N. L. B. 306.* (1911) 14 N. L. B. 282.
IMS.
Appuhcanyv. ■
SancSihcany
( 86 )
IMS.
BmnsJ.
dppuhamy
v.
Sanehihamy
• the plantation up to date of action and the present value arepractically the same, but it is a matter for the Judge of first instanceto decide (note, the only dispute iB with regard to the plantation).I would set aside the decree, and send the case back for furtherdecision; the costs of the appeal to abide the result of the furtherfinding.
Shaw J.—
The question raised for our decision in this case is, what is theproper measure of the1 compensation to be paid to a co-owner ofland when the portion of land on which the improvements havebeen made is allotted to another co-owner in a partition suit ? Thelearned District Judge has given the full present value of theimprovements. The appellant, contends that it should be the costof effecting the improvements, or the present value of the improve-ments, whichever may be less. The current of judicial authorityis strongly in favour of the appellant’s contention. In Pererav. Pelmadulla Rubber and Tea Go.1 the precise point underconsideration arose for decision, and it was held by Lascelles O.J.and Pereira J. that the rights of a co-owner to compensation in acase such as we are considering is the same as that of a bona fideimprover of property which is not his own, namely, that he isentitled to either the value of the improvements or to the differencebetween the original and the enhanced value of the property, which-ever is less. In Silva v. Babunhamy 2 the same two Judges expresseda similar opinion. The decision in the unreported case, D. C.Chilaw, 783,3 cited by the learned District Judge in his judgment,is to the same effect.
In that case Withers J., referring to improvements made by aco-owner, said: “ If the entire increase in value is due to his expendi-ture, the whole of the expenditure, but no more, will have to bebrought into account. If part only of the increase is due to theoutlay, so much only will have to be brought into account. Ifnothing is due to the outlay, nothing will be brought intoaccount. ” In D. C. Colombo 7,904, 4 it was pointed out inthe judgment: " The expenditure is not the sole criterion ofthe amount to be allowed by way of compensation. No more canbe allowed than the increased value of the property resulting fromthe expenditure. ” The cases of Fernando v. Sleman 3 and Moldrichv. La Brooy * are referred to, on behalf of the respondents, inopposition to the opinions expressed in the cases I have beforereferred to. In Fernando v. Sleman 5 it was held that the “ justvaluation,” mentioned in section 8 of the Partition Ordinance, of ahouse sold under the provisions of that section is the present value
4 S. G. C. Min., Nov. 7, 1898.
6 (1911) 14 N. L. R. 282.
• (1911) 14 N. L. R. 331.
1 (1913) 16 N. L. R. 306.
(1912) 16 N. L. R. 43.
S. C. G. Min., July 28, 1896.
( 87 )
of the house considered as an improvement. In that case, however,the point raised in the present case was not considered or referred toin the judgments.
In Moldrich v. La Brooy 1 it was held that when the portion of theland on which the improvements stand have been allotted to theco-owner who made the improvements, he should not be requiredto pay compensation to the other co-owners for these improvements.This case raises quite a different point to that raised in the twocases in 16 N. L. B., and does not conflict with them. Indeed,Lascelles C.J. was a party to all three decisions.
Under the common law a co-owner could obtain compensation ina partition suit on the same footing as a bona fide improver, and theEnglish Courts of Equity gave compensation in a partition suit toan improving co-owner on the same basis as that contended for onbehalf of the appellant. It is argued, however, that the whole lawon the subject is now contained in the Partition Ordinance, 1863,and that we cannot go outside that Ordinance and refer to thecommon law to ascertain the basis on which compensation shouldbe made. I am unable to agree with the contention.
The Ordinance makes no provision as to the payment of compen-sation to co-owners or as to the measure of such compensation. Iagree with the opinion expressed by Lascelles C.J. in Silva v. Silva,3that the Ordinance introduced no change with regard to the rightsof co-owners under the Boman-Dutch law to compensate forimprovements, and that the improvements referred to in sections 2and 3 of the Ordinance are improvements for which compensationis payable under the common law. This compensation must, inmy view, be estimated on the common law basis.
I agree in the order proposed by my Brother Ennis.
lHft.
Shaw
AppuKamy
v.
Sanchihamy
De Sampayo J.—
I am of the same opinion. The question is whether the PartitionOrdinance provides for a larger right in a co-owner who has madean improvement than the common law allowed to a bona fidepossessor. Section 2 requires a person who institutes, a partitionaction to state in the plaint, inter alia, the improvements, if any,which have been made on the property, and by which of the owners.The Ordinance contemplates that the Courts at the inquiry into theinterests of the various parties, shall ascertain how much more shallbe allowed to the improving owner than his original share. Thereis no express provision for awarding compensation in money, thoughin the working of the Ordinance it is often necessary, and it has beena recognized practice, to award compensation in money instead of inland. Section 5, in laying down that the Commissioner appointedto carry out the decree shall effect the partition with referenceto the value of the improvements made thereon and the party by
1 (1911) 14 N. L. B. 331.* (1906) 9 N. L. B. 114, at page 120.
I 88 )
#19.
Dh SampayoJ.
'Appuhamy
idnMKamy
whom they have been made,” appears to me to have reference tothe main object of allotting more land to the improving co-ownerin proportion to the compensation sanction by the decree. Itdoes not mean that the Commissioner shall take into account thefull present value of the improvements, but that the value of theimprovement as allowed by the law shall be considered. This, inreality, is a matter not for the Commissioner but for the Court todetermine under section 4 of the Ordinance; that i6 to say, theCommissioner must follow the direction of the Court. It is truethat the Court very often merely declares the right, and leaves itto the Commissioner to ascertain its extent. This, however, is notquite regular, though convenient; but as the Commissioner’s reportmust be considered before final decree is entered, the Court afterall has the opportunity to do what the Ordinance requires of it, andallow only such compensation as the law authorizes. When theprovisions of the Ordinance are understood in this sense, there is nodifficulty in accepting and following the decisions in Silva v. Babun-hamy,1 Perera v. Pelmadulla Rubber and Tea Go.,2 and other caseson the same point.
Set aside.