037-NLR-NLR-V-36-PERERA-et-al-v.-PEIRIS-et-al.pdf
terera v. Petris.
191
1934
Present: Dalton J.;
PERERA et al. v. PEIRIS et-al.
214—C. R. Panadure, 2,852.
Partition action—Owelty—Equalization of shares—Payment of compensation—No tacit hypothec.
An order for the payment of compensation, made for the purpose ofequalizing shares in a partition action, does not. create such a chargeover the portion of land allotted to the person liable to pay the com-pensation as to attach to it in the hands of a transferee for value.
192
DAKjTQK /.—Perera v. Peiris.
A
PPEAL from a judgment^ the Commissioner ol Bequests, Panadure.
E. B. Wickramanayake, for plaintiffs, appellants.
L. A. Rajapakse (with him Kariappar), for defendants, respondents.March 23, 1934. Dalton J.—
This was an action under section 247. of the Civil Procedure Code for adeclaration that lot No. 4 of a land called Dawatagahawatta was liableto be seized and sold for the recovery of the sum of Rs. 77.95.
The land Dawatagahawatta had been partitioned in D. C. Kalutara,No. 10,614, the final decree being dated August 25, 1927 (exhibit P 1).By that decree lot No. 4 was allotted to Selestina and Haramanis Perera,wife and husband, the plaintiffs in the partition action, Subject howeverinter alia to the sum of Rs. 155.90 being paid by the plaintiffs to Simonand Mailentina Perera, the first and second defendants in the partitionaction. This sum was ordered to be paid as compensation for the purposeof equalizing and apportioning the valuation of the allotments made inthe decree.
Selestina and Haramanis Perera by deed No. 8,135 of September 6,.1927 (exhibit 1 D 3) sold lot No. 4 to M. D. H. Perera, citing therein thefinal decree in the partition action as their title. M. D. H. Perera soldthe lot to Simeon Perera on deed No. 8,230 of October 12, 1927 (exhibit1 D 4), and Simeon Perera sold the lot to the present first defendant upondeed No. 9,791 of June 26, 1929 (exhibit 1 D 1).
The plaintiffs in this action are Mailentina Perera and her husband,W. F. S. Jayasuriya. Mailentina Perera claimed that by the decree inthe partition action she was entitled to recover the sum of Rs. 77.95(half the sum of Rs. 155.90 awarded as compensation in the decree) fromSelestina Perera and Haramanis Perera, second and third defendants, andthey further sought to obtain a declaration in this action as against thefirst defendant, the purchaser under deed 1 D 1, and against Selestina andHaramanis Perera as second and third defendants, that lot No. 4 wasliable to be seized and sold under a writ issued in case No. 10,614 tosatisfy the claim.
The Commissioner of Requests came to the conclusion that the paymentof compensation ordered in the decree was secured on lot No. 4, and thatit was not merely a personal liability for which Selestina and HaramanisPerera were responsible. In view, however, of the fact that the decree wasdated August, 1927, and writ was not taken out until January 26, 1933,and for other reasons, he came to the conclusion that Mailentina Pererahad been guilty of great negligence in recovering the amount, for whichreason the present action must be dismissed. The plaintiffs now appeal.
The question to be decided is whether the order in the final decree forpayment of compensation for the purpose of equalizing and apportioningthe valuation of the lots creates a charge on lot No. 4. Counsel forrespondents agrees that if it is so, the question of laches or negligence doesnot arise, apart from the question of prescription of the right of action.
I have been referred to the decision in Rapiel v. Peiris in which it washeld that where in a partition decree the Court ordered compensation
» 34 N. L. 8. 157.
193
iJ ALTON J.—Perera % spirts.
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to be paid for equal&iAg the value of the <|f>l£ partitioned, the compen-sation‘due from an allotment was to be preferred to a claim for costsagainst the person ordered to pay compensation in respect of lotsdecreed to him. On a sale of the allotment for costs, it was held that theclaim for compensation was entitled to preference.
In the case before me now Mr. Wickramanayake asks me to go muchfurther. To succeed in his present claim, assuming that the procedureadopted to enforce it is correct, he has to establish that the order for thepayment of compensation creates a tacit hypothec over the lots decreedto the person ordered to pay compensation, and attaches to those lotsuntil discharged. He asks me to so hold. In support of his argumenthe refers me to a sentence in the judgment of Drieberg J. in the above cited' case where he says, “ The thirteenth defendant’s right to the lot assignedto him is good and conclusive against all persons whomsoever, and thereis no reason why his right to the sum allotted to him to equalize the divisionshould be any less ”. This would seem to go further than was necessaryfor the purjr' ,.s of that case, if the words be taken alone, but the learnedJudge in the next sentence would seem to make it clear that what he hadin mind was a right of preference such as was there contended for onbehalf of the thirteenth defendant.
On consideration I have come to the conclusion that Mr. Wickrama-nayake’s argument here cannot be upheld. There is no doubt as tothe competency of a Commissioner, in carrying out a partition decreedby the Court; to award owelty in adjusting the values of the dividedportions, but there is nothing in the Partition Ordinance, so far as I cansee, to support the argument that a charge is thereby created over any ofthe divided portions. No authority has been cited to show that the com-mon law recognizes any such tacit hypothec, and I am unable to find thatany such hypothec arises operation of any local statute. In SouthAfrica the tendency of modern legislation has been opposed to them (videMaasdorp’s Institutes, vol. II., 1st ed., p. 243; 5th ed., p. 272), and inCeylon also the tendency has been since 1871 to restrict rather thanextend the provisions of the common law in respect of mortgages. Oneshould, I think, be satisfied that there is some explicit provision in thePartition Ordinance or some other statute before holding that any suchnew charge had been created as is now urged in this case.
I might point out that the common law does draw a distinction incertain circumstances between certain privileged claims and tacithypothecs (vide Van der Keesel’s Theses, 418). Funeral expenses andmedical fees rank as privileged claims and rank before mortgage creditors,but it would seem they do not create any tacit hypothec. It was suggestedduring the argument before me that the logical conclusion of the decisionin Rapiel v. Petris (supra) must be to support the position for whichMr. Wickramanayake contends, but I do not think that is so. A rightof preference does not necessarily imply a charge over property.
I would for these reasons hold that the partition decree created no tacithypothec over lot No. 4, and therefore the appeal must fail.
The appeal Is dismissed with costs.
Appeal dismissed.
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