082-NLR-NLR-V-14-FERNANDO-et-al-v.-SLEMAN-et-al.pdf
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July 4, 1911Present: Wood Renton J. and Grenier J.
FERNANDO et al. v. SLEMAN et al.
81—D. C. Negombo, 7,321.
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Partition—Land ordered to be sold—“ Just valuation ” of a house standingon the land—Ordinance-No. 10 of 1863, s. 8.
The “ just valuation ” of a house standing on a land which hasbeen ordered to be sold under the Partition Ordinance would be thevaluation of the house considered as an improvement. Both thevalue of the materials and the value of the completed building in itsrelation to the land would have to be taken account of.
fJlHE facts are fully set out in the judgment of Wood Renton J.
Bawa, for the appellants.—The method of assessment adopted byMr. Herft is the proper one. “ Just valuation " of the house wouldbe the cost of building a similar house. Counsel cited Andris v. 'RojapakseJ The Government Agent, Badulla, r. Cornells:1
F. M. de Saram, for the respondents.—The market value of a housewould be its “just valuation." The market value of a house doesnot depend on the money expended on it, nor on the difficultieswhich had to be overcome in building it (The Government Agent,Southern Province, v. Silva e.t al?). Counsel also referred toFarrington v. Forrester,4 Belton v. The London County Council?
Cur. adv. vult.
July 4, 19! 1. Wood Renton J.—
This is an action for the partition of the land described in theplaint with the buildings thereon. A partition has been foundimpracticable, and consequently the Court has ordered a sale ofthe entire premises. The seventh defendant-appellant has beendeclared entitled in the original partition decree to 1 /60th share ofthe land and the whole of the tiled house marked C in the plan filedof record. The land was purchased at the sale by the first plaintiff-respondent. Mr. Karuoaratne had been appointed commissionerto partition the land and to value the house for compensation. Heassessed its value at Rs. 500. In the meantime, on the applicationof the seventh defendant-appellant, a commission had issued to
■ 1 [1901) 2 Br. 100.*(1898) 3 N. L. R. 235.
a (.ZS$6) 3 Br. 27.1 (1893) 2 Ch. D. 461.
'*(1893) 68 L. T.N.S.4U.
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Mr. Herft, the District Engineer, who valued the building atRs. 1,500. The only question raised by the present appeal iswhether the District Judge was right in accepting Mr. Karunaratne’svaluation, as he has done, in preference to that of Mr. Herft. Mr.Karunaratne admittedly took account only of what he consideredto be the present market value of the building. In his evidence hesays that he took as his standard of valuation what the buildingwould realize at a sale, that he did not consider what the housemight have cost to build, and that he did not notice of what woodthe doors and windows were made. He added that, in awardingcompensation in the case of the sale of buildings, it is always thepractice to consider the present market value. Mr. Karunaratneadmitted that the site of the land was good, but said that it wasbuilt on a bad part of the land ; that it had no road frontage ; that(a point on which, as he had not noticed of what wood the doorsand windows were made, he was scarcely competent to express anopinion) if the house were pulled down the materials would fetchRs. 300 ; and that the building might have originally cost aboutRs. 1,000. Mr. Herft, on the other hand, took as his standard ofvaluation the cost of building a similar house with the same material,and estimated its value on that basis at Rs. 1.500. The learnedDistrict Judge does not apparently dispute the accuracy ofMr. Herft’s calculations, ifhis principleof assessment is correct. He,as I have said, prefers to adopt the principle of assessment acceptedby Mr. Karunaratne.
The question depends on the proper meaning of the words “justvaluation ” in section 8 of Ordinance No. 10 of 1863. In theabsence of any authority to the contrary, I think that those wordsshould be interpreted as meaning a valuation—in the present case,of the house—considered as an improvement. It is in that sensethat the point would have had to be dealt with under section 5 ofOrdinance No. 10 of 1863, if a partition had been ordered instead ofa sale. I see no good reason for applying a different standard ofvalue where a sale has been ordered, instead of a partition; It isobvious that, if this is a proper test, both the value of the materialsand the value of the completed building in its relation to the landwould have had to be taken account of. On that basis the sumof Rs. 500 appears to me to be too small an amount of compensation.It is far from clear that the plaintiflfs-respondents, who are theowners of the land, will not have a good frontage for the house.Mr. Karunaratne says nothing in his evidence as to the proximityto the house on the adjoining land, to which the learned DistrictJudge refers as a matter noticed by him on his inspection of thepremises. •
On the above grounds 1 would set aside the order of the learnedDistrict Judge adopting Mr. Karunaratne’s report, and send thecase back for further inquiry and adjudication in the District Court
July 4, 1011
WoodRenton J.
Fernandov. Slemttn
July 4 , 1911
WoodRenton J.
Fernandov. Sleman
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on the lines indicated in this judgment. The seventh defendant-appellant is entitled to .the costs of this appeal. The costs ofcontention at the original inquiry in the District Court, I wouldleave, as well as the costs of the further inquiry, to be dealt withby the District Judge at the proper time. If the parties are welladvised, they will obviate the necessity for any further inquiry in theDistrict Court by an agreement as 'to the amount of compensationamong themselves.
Grenier J.—
I agree. The valuation made by Mr. Karunaratne seems to me tobe based on wrong grounds, and I think that the test laid downby my brother should be adopted.
Sent back.