ldfiDALTON J.—Rapiel v. Peiris
^^PPEAL from an order of the District Judge of Kalutara.

Ranawake (with him Wickramanayake), for appellant.
Rajapakse, for respondent.
June 27, 1932. Dalton J.—
The appeal arises Qut' of a partition action, appellant being the plaintiffand respondent the thirteenth defendant. Certain lots were decreed bythe final decree to the plaintiff, third, tenth, eleventh, and twelfth defend-ants, and thirteenth defendant amongst others. It was further orderedand decreed that “ in equalizing' and apportioning the valuation of theforegoing lots ”, inter alia the tenth, eleventh, and twelfth defendants payRs. 12.91 each to the thirteenth defendant, and the third defendant dopay Rs. 436.11 to the thirteenth. defendant. Lots C and D had beenallotted to the third defendant, and lot A 2 to the tenth, eleventh, andtwelfth defendants. Writ was issued by the thirteenth defendant for therecovery of pro rata costs, and lots C and A 2 were seized and sold. LotC realized Rs. 505 and lot A 2 Rs. 27. The total realized, less certainfees and expenses, amounting in all to Rs. 519.86 was deposited in Coiprt.
Plaintiff’s bill of costs wasj taxed at Rs. 435.63, and he sought to recoverthis against the second, third, eighth, and thirteenth defendants byseizure of the same property. The thirteenth defendant, however,subsequently paid the pro rata costs due from him to the plaintiff.Plaintiff, however, seeks to have the pro, rata costs still duetto him'satisfied out of the proceeds of the sale of lot C and A 2, claiming con-currence with the thirteenth defendant. The thirteenth defendantclaims that the amount awarded him as compensation is a first charge onthat sum. After hearing the parties the trial Judge held that thethirteenth defendant is entitled to have nis compensation paid out as afirst charge on the lots, and thereafter plaintiff is entitled to concurrencefor his pro rata costs, if there is any amount remaining after payment ofthe compensation. From that decision plaintiff appeals.. –
Counsel have been unable to refer to any previous decision of the Courtson this point, although one would have thought it must have arisen inpractice on previous occasions.<,
The payments-of compensation orderedin the decree are for the purposeof equalizing and apportioning the valuation of the lots dealt1 with in thedecree. So far as the lots decreed to the various parties are concerned,the decree Us conclusive evidence of title in the persons to whom they areallotted as against the whole11 world. Where in' the same decree it is furtherprovided that compensation be paid for the purpose o^ equalizing andapportioning the valuation of the respective^ lots so dealt with, it seemsmost inequitable that a person/ to whom that compensation is decreedshould not rank before another part^, who has no claim other thancosts against the person ordered to pay compensation in respect^ of lotsdecreed to him.
In dealing with the question of the partition of property held in commonVan Leeuxven (Censura Forensis, Pt. I., bki' JVu, Chap. XXVII., s. 5) jointsout that compensation is paid “ in order tha.t equality may be observed in
DRIEBERG J.—Rapiel v. Peiris.153
everything ”. A obtains a piece of land, and B obtains compensationwhere necessary in the form of money for the purpose of equalizing thepartition. The compensation awarded is in fact the interest or part ofthe interest of the person to whom it is awarded in the land beingpartitioned.
i The same idea is found in English cases on the'same subject. Whereland cannot conveniently be divided equally in practice, the land isdivided up unequally, the party taking the lesser share receiving a rent orsome other satisfaction by way of owelty of partition (Sto'ry v. Johnson ’).The object of the partition is equitably to adjust the rights of all parties,interested in the subject of the partition, and money ordered to be paidfor owelty of partition is one of the means by which that object is carriedinto execution. The object of the partition is that each may enjoy inseveralty (Lister v. Lister 2). In Rowe v. Gray3 where the Court decreeda sale instead of a partition, it was pointed out by Hall V.C. that if apartition was directed instead of a sale, it could not be effected withoutsome payment being made for equality of partition, but -tfnder thecircumstances there he could not see where the money was to come from,in the case of an infant. An order for the payment.of a sum of moneycould have been made, but where apparently the Court is not satisfiedits order can be carried out, it will not make an order for payment ofcompensation. Its duty is to adjust the rights of all parties equitably.The payment if ordered is one of the terms or conditions of thepartition.(
If plaintiff were to succeed in his claim here, the purpose for which thepayment of compensation was ordered would clearly be defeated. In myopinion the thirteenth defendant is entitled to have the amount ofcompensation decreed to him paid out of the sum in Court, befdre theplaintifTs claim. The learned Judge in the lower Court was correct inso holding, and the appeal must therefore be dismissed with costs.Drieberg J.—
I agree that the sum which the third defendant was decreed to payto the thirteenth defendant to equalize the partition is a first charge onthe lots assigned to the third defendant jknd that the plaintiff is notentitled to claim, on his writ for costs, concurrence with the thirteenthdefendant in the proceeds of sale of lot C.
The thirteenth defendant’s right to this sum is one which^arises ffcomthe decree for partition: by the decree he was allotted, a divided portionNpfthe land and a sum to be paid by the third defendant which, with the lotsassigned to him, secured an equal division as between them. The thirteenthdefendant’s right to the lot assigned to him is good and conclusive againstall persons whomsoever, and there is no reason why his right to the sumallotted to him to equalize the division should be any less. This being so.it appears to me that the Court in giving the thirteenth defendant aright of preference over these proceeds is doing no more than givingeffect to its decree.
I agree that the appeal should be dismissed with costs.
Appeal dismissed.
i ] Y. ,v C. 539.- $ V. Jf G. 540.
•1 {1877) 5 Ch. D. 203.