073-NLR-NLR-V-59-H.-G.-R.-PODI-APPUHAMY-and-another-Appellants-and-H.-G.-R.-DANIEL-APPUHAMY-a.pdf
K. D. DE SIXVA, J.—Podi Appuhamy v. Daniel Appuhamy
301
1957 Present: K. D. de Silva, J. and H. N. G. Fernando, J.
H. G. R. PODI APPUHAMY and another, Appellants, and H. G. R.
DANIEL APPUHAMY and another, Respondents
S. O. 106—D. G. Avissatoella, 827JP
Partition action—Interlocutory decree entered—Eight of a co-oumer to effect improve-jncnls thereafter.
Where interlocutory decree has been entered in a partition action, a party tothe deereo is not entitled to claim as against tlie other parties the ownershipof, or compensation for, improvements made on the common propertysubsequent to the date of the interlocutory decree. –
-^^PPEAL from a judgment of the District Court, Avissawella.
T. Samerainickrerne, for 4a and 4b Defendants-Appellants.
Miss Maureen Seneviratne, for 1st and Sth Defendants-Respondents.
Cur. adv. vult.
December 20, 1957. K. D. de Suva, J.—
This action which is for the partition of the land called Phalagedera-watta in extent 2 roods and 19 perches and depicted in plan No. 724 wasinstituted in the year 1929 and the interlocutory decree was entered onFebruary 15, 1932. However, for various reasons which' it is unnecessaryto detail, the proceedings thereafter. were continued in a very dilatorymanner and the commission for the final partition was executed only inthe year 1949. The scheme of partition submitted by the Commissioneris plan No. 1081 dated August 27, 1949.‘
30SK. D. DE SILVA, J.—Podi Appuhamy v. Daniel Appuhamy –
By the interlocutory decree Seraham3T the 4th defendant was allottedan undivided l/16th share of the land together with the thatched housemarked Ko. 3 used as two boutique rooms while Daniel Appu the 1stdefendant was allotted an undivided 1/Gth share of the land and houseNo. 2 and the plantations..
The 4th defendant died sometime in the year 1935 leaving as his heirstwo children Podi Appuhamy and Dingiri Menikc and they were substi-tuted in his place as 4a and 4b defendants respectively on August 18,194S. The 4a and 4b defendants by deed 1R1 dated August 5, 1935,sold the undivided 1/16th share of the land which they inherited fromtheir father for a consideration ofRs. 40 to one K. D. H. Appuhan^'whoby deed 1B2 of December 16,1937, sold that share together with a thatchedhouse which lie claimed to have built to Karamanisa the 8th defendantfor a sum of 11s. 200. The Stli defendant by deed 1R3 dated October 20,193S, transferred a half share of the interests he purchased on 1R2 to the1st defendant for a consideration of Ps. 100. ■ When the Commissionersubmitted the scheme of partition No. 10S1 in Court the plaintiff andthe 4a and 4b defendants filed objections to that scheme. The 4a and 4bdefendants stated, inter alia, that the buildings Nos. 3, 6, 7 and 8 whichhad been allotted to the 1st defendant by the Commissioner in factbelonged to them.
Thereafter, on May 5, 1950, Karamanisa who was later added as the8th defendant intervened in the action claiming l/32nd share of the landand a half share of the house No. 3 by right of purchase on deed 1R2.He further stated that he had improved that house by replacing the cadjanroof with a zinc one..
The scheme of partition No. 10S1 came up for consideration on Septem-ber 1, 1950. As the learned District Judge considered that this schemewas inequitable he ordered that another scheme be prepared complyingwith certain directions given b3T him. That scheme is plan No. 204.The 1, 2, 4a, 4b and 8th defendants filed certain objections against thisscheme. The 1st and Sth defendants claimed, inter alia, the interestswhich had been originally allotted to the 4th defendant. The 1st defen-dant further claimed the entiret3' of buildings 6, 7 and S and a half shareof house No. 3 while the Sth defendant claimed the remaining half shareof the latter building. The 1st defendant also averred that he and theSth defendant had improved the house No. 3 but the Sth defendantcontended that it was he who had effected that improvement.
When the schemes of partition came up for consideration in the 3Tear1955 the learned District Judge, on the suggestion of the lawyers appearingfor the different parties, proceeded to inquire into the question of owner-ship of buildings 3, 6, 7 and S and the claim of the 1st and Sth defendantsto the soil share allotted to the 4th defendant.
The learned District Judge held that as the deed 1R1 was executedwhile the partition action was pending no soil rights passed on it. Thatfinding is not canvassed now. He also held that the building which isreferred to as house No. 3 in the interlocutory decree came down and that
&. D. DE SlLVA, J.—Podi Appuhanlyjt!. Daniel Appuhairttf309
on its site K. G. H. Appuhamy later erected the existing building which ismarked No. 3 in the two schemes of partition. IC. G. H. Appuhamypurported to convey that building on 1RI. The District Judge heldthat although the deed 1R1 was ineffective to pass soil rights yet thevendee was entitled on it to claim compensation for the building. Thisfinding in my view is completely untenable. A deed executed pendingpartition is absolutely void—Annamalai Filial v. Perera l. Thereforeon 1R1 no rights whatsoever passed to the vendee.
The District Judge also held that buildings 6, 7 and S had been erectedby the 1st defendant and that he was entitled to recover compensationfor the same. The finding that the buildings G, 7 and 8 were erected bythe 1st defendant was not contested at the hearing of this appeal butMr. Samarawickreme contended that these buildings and house No. 3should go with the soil and that no compensation was paj'able in respectof them. Admittedly these buildings were constructed after the inter-locutory decree had been entered. A co-owner is entitled to build onthe common property even without the consent of the other co-ownersprovided that he acts reasonably and docs not make use of an extentwhich is out of proportion to the share he owns—El pi Nona v. PunchiSingho 2. But when one co-owner institutes a partition action in respectof the common projmrty that is a clear indication that he wishes to putan end to the common ownership. Thereafter no co-owner is entitled tobuild or make other improvements on the land. Of course a co-owner wouldbe acting within his rights if he effects necessary repairs to a buildingeven after the institution of partition proceedings. If a co-owner ispermitted to build or plant the common property even after the institutionof the partition action it might result in other co-owners having to paycompensation for inrprovements which they do not wish to have. Suchimprovements, very often, prevent an equitable partition being effected,for there is a tendency on the part of co-owners to make the improvementson the most desirable portion of the common property. It washeld in Perera v. Pelmadulla Rubber and Tea Co. 3 that a co-owner whoplanted tea on the common property after the institution of partitionproceedings was not entitled to receive compensation for that plantation.
In the instant case these buildings were erected even after the interlocu-tory decree had been entered. The rights of co-owners to improvementshave to be adjudicated upon before the interlocutory decree is entered.
Of course in the case of intervenients that adjudication can take placeeven after the entering of the interlocutory decree. The 1st defendantin this case was a party to the interlocutory decree. If co-owners areentitled to effect improvements even after the interlocutory decree thenthe necessity might arise to decide the question of ownership of thoseimprovements. But there is no provision in the Partition Ordinancewhich enables a party to the interlocutory decree to raise such a claimor the Court to decide it. The Commissioner has to carry out the parti-tion in terms of the interlocutory decree. Therefore he would not be ina position to award compensation for improvements effected after theentering of the interlocutory decree by persons who are parties to it.
1 {1902) 6 Ar. L. R. JOS.■1 {1950) 52 N. L. R. 115. '
s (1913) 16 N. L. R. 306.-
316
Jjlssanayake v. KvJatUleUe
Accordingly I hold that the 1st defendant is nob entitled to have the■ buildings 6, 7 and 8 allotted to him or to recover compensation in respectof them. The existing house Xo. 3 was also built after the interlocutorydecree was entered. Therefore no compensation would be' jjayable inresj^ect of that building also. If the builder is not entitled to compensa-tion the persons who eifected improvements to house No. 3 too cannotclaim compensation for it. Apart from that, the evidence does not. establish that improvements of any value were in fact made' to thisbuilding. The Sth defendant who claims to have replaced the roof ofthat house purchased 1/lGth share of the land and the entirety of thebuilding on 1R2 for Rs. 200 and he sold half share of those interests tothe 1st defendant on 1R3 for Rs. 100. That supports the view that theSth defendant did not effect substantial improvements to the buildingbefore he sold a half share of it to the 1st defendant. The buildingsNos. 3, G, 7 and 8 would therefore go with the soil. Accordingly I wouldallow the appeal in resjaect of those buildings. The 1st and Sth defen-dants would pay the costs of this appeal to the 4a and 4b defendants.There will be no costs of this inquiry in the Court below as the 4a and 4bdefendants claimed the ownership of these buildings.
H. N. G. Febxando, J.—I agree.
Appeal alloiaed.