105-NLR-NLR-V-54-SAPARAMADU-et-al-Appellant-and-SANDERATNE-et-al-Respondents.pdf
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NAGALINGAM A.C. J.—Saparamadu v. Sanderatne
1952
Present : Nagalingam A.G.J. and Gunasekara J.
SAPARAMADU.. et al., Appellants, and SANDERATNE et al.,
Respondents
S. C. 285—D. C. Colombo, 4,699
Partition Ordinance (Gap. 56)—Section 2—Order for sale—Special circumstancesnecessary.
The policy of the law is to favour the partition of a common land rather thanto direct a sale. The fact that one section of the land is unbuildable andvalueless is not by itself a sufficient ground for ordering a sale.
J^^_PPEAL from a judgment of the District Court, Colombo.
P. J. Kurukulasuriya, for the defendants appellants.
W. Jayewardene, with D. R. P. Goonetilleke, for the plaintiffsrespondents.
Cur adv. vult.
March 24, 1952. Nagalingam A.C.J.—-
This is an appeal from an order of the learned Additional District Judgeof Colombo entering a decree for sale in a partition case where the sharesto which the parties are entitled to are not in dispute. Roughly speaking,the plaintiffs are entitled to a 47 /80 share while the defendants arejointly entitled to the remaining 33/80 share of the soil and the buildingsstanding thereon excepting the timber shed which belongs exclusively tothe 2nd defendant. The defendants-appellants seek a partition of theland while the plaintiffs-respondents are keen that the entirety of theland should be sold and the proceeds divided.
The reason which seems to have found favour vdth the learned Addi-tional District Judge in directing a sale was that a sale would be advan-tageous to the parties in view of the shape of the land. The land may bedescribed as one comprised of a narrow elongated strip running fromEast to West and a better and well proportioned portion running fromNorth to South. The narrow strip, it is common ground, is one that can-not be built upon and must be regarded as a sterile portion of the land.But the major portion of the land, which is the portion described asrunning North to South, is a valuable plot abutting on the main GalleRoad and situate at Dehiwela.
The entire extent of the land is 76 perches, of which roughly about 15perches consist of the narrow strip while the remaining 61 perchfs formthe remaining portion. The fact that the narrow strip camiot be put toany satisfactory use seems to have been the determining factor in orderingthe sale. I fail to see how the circumstance that a portion of the land isvalueless can be said to affect the question as to whether a partition wouldbe impossible or inexpedient. It cannot be said that a sale of the entiretyof the land would fetch a better price by reason of the narrow strip
aSTAGALUSTGAM! A.C.J.—Sapciramadu v. Sanderatne
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having to be sold along with the rest of the land. In fact it seems to methat the purchaser would discount the existence of the narrow strip andoffer a price which in his opinion it would be proper to pay for the portion ofthe land that would be of utility to him. It is not even suggested thatif the entirety of the narrow strip were left undivided it could be put tosome use and so fetch a better figure for the entire land at the sale. Hadthere been such a suggestion, then one might have understood the reasonunderlying the order for sale. In fact it is not uncommon i n partition cases tofind that the land sought to be partitioned consists of a fertile portion andof an unfertile rocky and barren portion. The existence of the barrenportion has not been regarded as a ground by itself for ordering a salebut on the other hand a partition is directed and the commissioner isinstructed to allot portions out of both the fertile and unfertile parts.
In this ease, therefore, I do not think that the reason given by thelearned Additional District Judge for ordering a sale can be regarded assound. The policy of our law based on Roman Dutch Law, unlikethat ofthe English Law, is to favour the partition of a common land rather thanto direct a sale and turn the occupants out of it. This view is supportedby section 2 of the Partition Ordinance, which declares it to be competentto one or more co-owners to compel a partition, while special circumstancesmust be made out by a party for desiring a sale. Jayawardene in hiswork 1 sets out the matter thus :—
“ A co-owner can compel a partition but cannot compel a sale, al-though he may apply for one. The former is a matter of right, the latterhas to be justified. ”
The plaintiffs, then, have to justify their application for a sale, and as Ihave already indicated, the only ground upon which the sale has beenordered is that one section of the land is unbuildable and valueless,which, as I have indicated, is not a sufficient ground for ordering a sale.Besides, there is evidence that the defendants are in occupation of thehouse on the land. The plaintiffs themselves do not want the house tolive in as they have another house. The defendants are anxious to continuein occupation of the common house as they have no other to go to. Fur-thermore, in order to meet the plaintiff’s objection in regard to the steri-lity of the narrow strip the defendants have now gone out of their way,although they did not do so in the District Court, to have the entirety ofthe narrow strip allotted to them.
In these circumstances I think the ends of justice would be best servedby entering a decree for partition superseding the order for sale. I wouldtherefore set aside the order of the learned Additional District Judgein so far as it directs a sale and order that a decree for partition be enteredinstead. I would also give further directions in regard to the modeof partitioning : The defendants will be jointly allotted the Southernportion of the land abutting Frazer Avenue so as to include the entiretyof the house No. 27, which will also be allotted to them,'but as far as pos-sible the extent of the soil should be the minimum consistent with thecommodious use of the house. The Western boundary of the land adjoiningLot 8b shown in plan X will be extended in a straight line up to the passage1 Partition : page 109.
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Avis v. The King
in the North, as indicated by me in the plan, roughly to the pointN mark-ed by me in blue, and the narrow strip to the West of the lint-, will also beallotted jointly to the defendants. The rest of the land, including thebuildings other than the timber shed, will be allotted to the plaintiffs. The2nd plaintiff will demolish and remove the timber shed, for which nocompensation will be paid. Compensation will, of course, be assessed bythe Commissioner in respect of the soil and all the other buildings, and theplaintiffs jointly or the defendants jointly will be directed to paycompensation to the other party as the case may be.
The appellants will be entitled to the costs of appeal.
Gunasekaea J.—I agree.
Order set aside.