1932 Present : Dalton and Drieberg JJ.

RAPIEL v. PEIRIS.

181- D C. Kalutara, 11,398.

Partition-Compensation for equalizing value of lots:-First charge on lot-Sale of lot for costs-Preferential claim.

Where in a partition decree the Court ordered compensation to be paid for equalizing the value of the lots partitioned.

Held, that the compensation due from an allotment was a first charge on it and that, on the sale of an allotment for costs, the claim for compensation was entitled to preference.

APPEAL 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 out of a partition action, appellant being the plaintiff and respondent the thirteenth defendant. Certain lots were decreed by the final decree to the plaintiff, third, tenth, eleventh, and twelfth defendants, and thirteenth defendant amongst others. It was further ordered and decreed that " in equalizing and apportioning the valuation of the foregoing lots ", inter alia the tenth, eleventh, and twelfth defendants pay Rs. 12.91 each to the thirteenth defendant, and the third defendant do pay Rs. 436.11 to the thirteenth. defendant. Lots C and D had been allotted to the third defendant, and lot A 2 to the tenth, eleventh, and twelfth defendants. Writ was issued by the thirteenth defendant for the recovery of pro rata costs, and lots C and A 2 were seized and sold. Lot C realized Rs. 505 and lot A 2 Rs. 27. The total realized, less certain fees and expenses, amounting in all to Rs. 519.86 was deposited in Court.

Plaintiff's bill of costs was; taxed at Rs. 435.63, and he sought to recover this against the second, third, eighth, and thirteenth defendants by seizure 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 due to him satisfied out of the proceeds of the sale of lot C and A 2, claiming concurrence with the thirteenth defendant. The thirteenth defendant claims that the amount awarded him as compensation is a first charge on that sum. After hearing the parties the trial Judge held that the thirteenth defendant is entitled to have his compensation paid out as a first charge on the lots, and thereafter plaintiff is entitled to concurrence for his pro rata costs, if there is any amount remaining after payment of the compensation. From that decision plaintiff appeals.

Counsel have been unable to refer to any previous decision of the Courts on this point, although one would have thought it must have arisen in practice on previous occasions.

The payments of compensation ordered the decree are for the purpose of equalizing and apportioning the valuation of the lots dealt with in the decree. So far as the lots decreed to the various parties are concerned, the decree is conclusive evidence of title in the persons to whom they are allotted as against the whole-world. Where in the same decree it is further provided that compensation be, paid for the purpose of equalizing and apportioning the valuation of the respective lots so dealt with, it seems most inequitable that a person to whom that compensation is decreed should not rank before another party , who has no claim other than costs against the person ordered to pay compensation in respect 1 of lots decreed to him.

In dealing with the question of the partition of property held in common Van Leeuwen (Censura Forensis, Pt. I., bk IV , Chap. XXVIL, s. 5) points out that compensation is paid " in order that equality may be observed in

everything". A obtains a piece of land, and B obtains compensation where necessary in the form of money for the purpose of equalizing the partition. The compensation awarded is in fact the interest or part of the interest of the person to whom it is awarded in the land being