138-NLR-NLR-V-03-DE-CROSS-et-al-.-v.-FERNANDO.pdf
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1889*
August 28.
DE CROSS et al. v. FERNANDO.
D. C., Negombo, /,S6d.
Partition Ordinance—Duty of Commissioner appointed to carry nutpartition—Owelty of partition—Practice.
In carrying out the partition decreed by Court, it is competentto the Commissioner, without special directions from Court, toaward owelty in adjusting the values of the divided portions-If the owelty is fair, the Court should allow it. But the partiesshould be heard pro and con, and the Commissioner may beexamined in support of his proposal.
rT,HI8 was an action for a partition. The Court declaredplaintiff entitled to two-thirds and defendant to one-third,and issued a commission to Mr. Anderson to carry out the partitionof the 14 acres and 32 perches which formed the whole area.The Commissioner allotted the portion A to plaintiff, in extent9 acres 1 rood 34 perches, as his two-thirds share, valuing it andthe trees thereon' at Rs. 3,083. He allotted to defendant the lotB, in extent 4 acres 2 roods and 37 perches, as his one-third share,valuing it at Rs. 1,191.
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The defendant objected to this partition being confirmed, on theground that the Commissioner had exceeded his authority 4nawarding Rs. 208-44 to plaintiff-more than he ought to have got.
The District Judge ruled as follows :—
The Commissioner was asked to partition the land, and not tomake awards as to one side paying money to the other as Compensa-tion. I 'confirm the partition except as regards the question ofcompensation.
The plaintiff appealed.
Domhorst, for,appellant.
No appearance for respondent.
Cur. adv. vult.
28th, August, 1899. Withers, J.
This is a partition case, and the plaintiff appeals from the decreeof partition on the ground, that it omits to provide for owelty :that is, compensation to the plaintiff to make the partition equalon the score of value. The District Judge, without decidingwhether the plaintiff is entitled to compensation, adopted theCommissoner’s proposed physical partition and declined to domore, because the Commissioner had not been specially directed1to provide for owelty in his scheme of partition. But it seems±to me that it was the Commissioner’s duty to do so without specialdirections.
The Ordinance requires. that his return should show theestimated value of the land and the mode in which the Com-missioner proposes that the partition should be made. This isall that Mr. Anderson, the Commissioner, has done here. Hesends in a plan and says : I propose to divide the land into the twoparts indicated in my plan ; but to adjust the values of the dividedland so as to make the partition as fair as possible, I computewhat, in my opinion, the defendant should give to the plaintiff.This has to be done every day in the partition of immovableproperty. If the allowance is fair, the District Judge ought toallow it. But the parties should be heard pro and con, and theCommissioner can be examined in support of his proposal, ifnecessary. After hearing the parties and the Commissionerand any other evidence the parties may desire to call, the Courtwill be in a position to decide whether the plaintiff is entitled toany or what compensation by way of owelty. If he finds some-thing is due, the District Judge will reform his decree accordingly.If he is of opinion that the plaintiff is not entitled to any compen-sation, the decree will stand.
Browne, A.J.—I agree.
1809.
August 28.