LORD THANKERTON—Narayanan Ohettiar v. Kaliappa Chettiar.77
[In The Privy Council.]
1945 Present : Lord Thankerton, Lord Goddard and Sir John Beaumont.NARAYANAN CHETTIAR et al., Appellants, and KALIAPPACHETTIAR et al., Respondents.
Privy Council Appeal No. 73 of 1944.
S.C. 61—D. C. Kandy, 239.
Partition action—Valuation of estate carrying ■ tea—Allowance for tearestrictions—Guiding rule for allocation of lots.
In an action for the partition of an estate carrying tea on it aCommissioner can, in fixing his valuation, take into account the effectof the tea restrictions which are in operation.
The allocation of lots in a partition action is similar to the distributionof assets among partners.
PPEAI from a decree of the Supreme Court.
W. A. Barton, K.C., and F. Oakan, for the appellants.
Pew castle, K.C., and Handoo, for the respondents.
December 11, 1945. [Delivered by Lord Thankerton.]
The present appeal raises a question with regard to the division of anestate in Ceylon which carried both tea and rubber on it and which hadbeen held jointly by a certain number of people.
The action is one for partition under the Ceylon Partition Ordinanceand proceeded according to the ordinary procedure beginning with aninterlocutory decree fixing the shares of the parties and remitting thematter to a Commissioner to carry out the actual partition and suggestthe division. A motion by the present appellants that a sale should beordered of the whole property was rejected and the partition was orderedin its place. A report was made by the Commissioner, objections weretaken to it by the present appellants, and these were disposed of by thelearned District Judge. They were all disposed of and the only alterationhe made in the Commissioner’s Report was a modification, about whichthere is no dispute, to provide an adequate water supply for one of thelots.
The matter was then appealed to the Supreme Court who affirmed theconclusion of the District Judge without any difficulty.
It is now sought to bring this matter before this Board by way of thepresent appeal. It appears to their Lordships that this appeal fallsdirectly within the decision which was given in 71 Indian Appeals atpage 149 (N. B. Kapur v. Murli Dhar Kapur) for these reasons : Thebasis of the Commissioner’s valuation has never been attacked in thiscase, hut the passage founded on by Mr. Barton in the judgment of theDistrict Judge contains the phrase “ dead investment ”.
!•J. N. A 59992 (3/46>
Marthelis Appuhamy v. Petris,
In tfyeir Lordships’ opinion that passage shows clearly that the learnedDistrict Judge accepted the Rs. 44,000 as a valuation on the basia ofthe factory tying for the time a dead investment owing to the tearestrictions.
Their Lordships in any case, in the absence of an attack on the basisof the valuation, which would raise a question of principle, are bound toassume that the valuer, valuing at the time when the tea restrictions wereon, took those into account and took their effect into account in fixing hisvaluation.
The only other question Mr. Barton raised was with regard to the moreconvenient allocation, as it may be called, that it was sought to obtainbefore the District Judge, because it was said that the lots which theparties would have wished to have allotted would be more valuable.That is an ordinary matter which arises in every distribution of assetsamong partners.
It appears to their Lordships that there is no ground for distinctionbetween the present case and a case of ordinary dissolution of partnership,and distribution of assets and accounting, as was the case in 71 IndianAppeals.
Accordingly, their Lordships are bound to come to the conclusion thatthe subject of the present appeal is not a proper subject for their Lordships’Board to consider, and they will humbly advise His Majesty that thisappeal should be dismissed. The appellants must pay the respondents’costa.