063-NLR-NLR-V-59-B.-H.-M.-FERDINANDS-et-al.-Appellants-and-A.-C.-DE-ALWIS-et-al.-Respondents.pdf
H. X. G. FERNANDO, J.—Ferdinands v. de Altai's
233
1957Present:H. N. G. Fernando, J., and Sinneiamby, J.33. H. 31. FERDINANDS el al., Appellants, and A. C. DE ALWIS et al.,
Respondents
S. C. 507—D. C. Colombo, 7,103/P
Partition Act. Xo. 1G of 1951—Section 2G (2) (c) (e)—Interlocutory decree—-4 form ofentering it.'.
In n partition, action, paragraphs (c) and (c) of section 26 of the PartitionAct read together authorise the Court to allot one portion of a land to a partyor a set of parties and to order tile sale of another portion and the division ofthe proceeds of the sale among other parties alone or among them and some orall of the parties to irhora the former portion is allotted.
_^^l.PPEAL from a judgment of the District Court, Colombo.
A. C. Xa-darajah, with E. D. Cosine, for the defendants-appellants.
If. A. Koaltegoda, for the plaintiffs-respondents.
-''Cur. adv. vult.
May 30, 1957. H. N. G. Ferxasdo, J.—-
We would not be disj)Osed to interfere with the determination of thelearned District Judge in favour of sale rather than a partition of theproperty which is the subject of this action but for the fact that theappellants might in consequence be turned out of the house which theyhave occupied for many years, and thus have to contend with the preva-lent difficulty of finding a new place of residence. • The learned Judgehas only rejected tho possibility of a partition after careful consideration,but the alternative of a decree both for partition and for sale had appa-rently not been suggested to him. In our opinion paragraphs {c) and (e)of section 26 of the now Partition Act read together authorise tho Courtto allot one portion of a land to a party or a set of parties and to order thesale of another portion and the division of the proceeds of the sale amongother parties alone or among them and some or all of the parties to whomthe former portion is allotted.-4
The evidence indicates that tho appellants have occupied as a residence •the portion of the building which faces Stratford Avenue and that the .two boutiques facing Pamankade Dane have been let to two other personsand thus establishes that occupation of the premises in the same manner
254
Subramaniam v. Minister of Local Government and Cultural Affairs
may be quite possible in the future. The only point urged against thi&view on behalf of the respondent has been the evidence of the valuerthat any building used for commercial purposes must have the amenitiesof a lavatory and bathroom. But there is no evidence to show thatsuch amenities are today available to the tenants of the two boutiques,and if occupation without those amenities is possible today,- it may wellbe that the same position can continue in the future. If so there wouldseem to be no objection to the allotment to the appellants jointly of theportion they now occupy as a residence and to the sale of the boutiquesfor the benefit of all the co-owners.■
In view of the fact that this possibility has not been actually considered,we would set aside pro forma that part of the decree which orders a saleof tho premises and remit the case to the District Judgo to consider thealternative suggestion put forward at tho appeal that the defendantsbe allotted the residential portion and that sale be ordered only in respectof the boutiques. Separate valuations of both portions will, of course,be necessary before the learned Judge can decide whether the suggestedalternative is feasible, and I do not imagine that the alternative can bo-adopted unless the interests of tho appellants plus the compensation towhich thoy are entitled is at least equal to the value of the residentialportion. The order we make should not be construed in any way to fettertho discretion of the trial Judgo to accept or reject the proposed alter-native and to take into account any-possible prejudice to the plaintiffswhich may result from a separate sale of the two boutiques and it wouldbe open to the trial Judge again to order a sale of the entire premises.The costs of this appeal will abide the ultimate determination of the trialJudge.•
Sixnetambv J.—I agree.
Decree set aside pro forma.