067-NLR-NLR-V-22-KANAPATHYPILLAI-v.-NAGALINGAM.pdf
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Present: De Sampayo J. and Schneider A. J.
KANAPATHTPILLAI v. NAGALINGAM.
US-r-D. C. Jaffna, 13,641.
Partition action—Sale—House built by co-oumer—Valuation of houseand land by Commissioner—Sale for higher price—Division ofproceeds between parties.
A property which was owned by plaintiff and defendant in equalshares was ordered to be sold under the Partition Ordinance. TheCommissioner valued the land at Be. 600 and the house built by theplaintiff at Bs. 1,500. The property fetched Bs. 3,010 at the sale.The District Judge ordered the proceeds to be divided in theproportion of Bs. 1,800 (Bs. 1,500 + Bs. 300) and Bs. 300.
Held, that the value of the improvement (Bs. 1,500) should bededucted from the proceeds, and the balance should be dividedequally between the plaintiff and defendant.
Per De Sampayo J.—"Under the Partition Ordinance anyimprovement must be valued according to the expenditure inrespect of the improvement, if the improvement is less in value.'*
rpHE facts appear from the Judgment.
A. St. V. Jayawardene (with him Croos-Dabrera), for defendant,appellant.—It was held by the Full Court that a co-owner who makesimprovements is entitled either to the amount of the expenditureor the value of the improvements, whichever is less. (Apjmkamyv. Sanchihamy.1) The house built by the plaintiff has been valuedby the Commissioner at Bs. 1,500. He is only entitled to draw thissum. The fact that the whole land when sold by public auctionrealized a bigger sum than the appraised value ought not to makeany difference. The learned District Judge has adopted a wrongcalculation in awarding compensation for the improvement madeby the plaintiff.
Arvlanandan (with him Weerasinghe), for plaintiff, respondent.—The land and house have been valued by the Commissioner atBs. 2,100. At the sale they realized Bs. 3,010. The presence of thehouse must have contributed to this sum being realized. The ownerof the house should, therefore, benefit by the increased price
September 30, 1920. De Sampayo J.—
I think the District Judge in dividing the fund in Court proceededupon a wrong basis. This is a partition action with reference to aland which is owned by the plaintiff and the defendant in equal
1980.
1 (1919) 91 N. L. B. 33
1920.
Db SampayoJ.
Kanapathy-piUaiv.NagaUngam
shares. It appears, however, that the plaintiff made certainimprovements. The parties on March 24,1920, agreed that, insteadof a partition, the property should be sold, and it was orderedthat the property be sold accordingly, and that the house whichconstitutes the improvement should be separately valued by theCommissioner. The Commissioner appears to have made anappraisement valuing the improvement at Bs. 1,500, and the landitself at Bs. 600. The whole property would then, according tohis valuation, be of the value of Bs. 2,100. But when the landwas sold under the decree it realized Bs. 3,010. The questionwas how this sum of Bs. 3,010 was to be divided betweenthe two parties. The District Judge decided that the partiesshould divide the money in the proportion of Bs. 1,800 and Bs. 300.Those figures are explained by the original appraisement by theCommissioner, for according to that the plaintiff would be entitledto Bs. 1,500 for the improvement and Bs. 300 for the land, makingaltogether Bs. 1,800, and the defendant to Bs. 300 for his share ofthe land. I think this is an erroneous calculation. The improve-ment was a fixed quantity. The value of it could not be enhancedor decreased by the accident of any particular price realized at thesale. It is well understood that, even under the Partition Ordinance,any improvement must be valued according to the expenditure inrespect of the improvement, or even less, if the improvement is lessin value. Therefore, Bs. 1,500 must be taken, in any case, to be theamount of compensation due to the plaintiff for the improvement.That being deducted in his favour from Bs. 3,010, the amount to bedivided between the parties would be Bs. 1,510, of this the defendantwould be entitled to half, namely, Bs. 755. I think, therefore, theorder appealed from should be modified by declaring the plaintiffentitled to Bs. 2,255, and the defendant to Bs. 755. The defendantis entitled to the costs of this appeal.
Schneider A.J.—I agree.
Varied.