[1939] EACA 48

#### COURT OF APPEAL FOR EASTERN AFRICA

## BEFORE SIR JOSEPH SHERIDAN, C. J. (Kenya); WHITLEY, C. J. (Uganda); and SIR CHARLES LAW, C. J. (Zanzibar)

### G. V. PATEL, Appellant (Original Plaintiff)

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#### D. M. PATEL, Respondent (Original Defendant No. 1)

# Civil Appeal No. 13 of 1939

(Appeal from decision of H. M. Supreme Court of Kenya)

Partition Act, 1868, section 4-Sale in lieu of partition-Right of owner of one mojety—Onus of proof of good reason against sale.

Appellant and respondent were each admittedly entitled to one moiety of a house. Appellant applied to the Supreme Court of Kenya for an order for sale in lieu of partition. Respondent resisted the application on the grounds that for five years he had lived in the house which was convenient for his business and which was suitable for partition, and that the applicant was an absentee co-owner living in India. Appellant appealed from an order dismissing his application.

Held $(16-8-39)$ .—That a party interested to the extent of one moiety is entitled as of right to a sale in lieu of partition unless there is some good reason to the contrary shown; the burden of showing such reason is on the party opposing the sale; no such reason had been shown.

Schermbrucker for the appellant.

Gautama for the respondent.

SIR JOSEPH SHERIDAN, C. J.—This case falls under section 4 of the Partition Act, 1868, the provisions of which are as follows: —

"In, a suit for partition, where, if this Act had not been passed, a decree for partition might have been made, then if the party or parties interested, individually or collectively, to the extent of one moiety or upwards in the property to which the suit relates, request the Court to direct a sale of the property and a distribution of the proceeds instead of a division of the property between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct sale of the property accordingly, and give all necessary or proper consequential directions.

It is perfectly clear from this section that the owner of a moiety of property can ask for a sale rather than partition and he is entitled to have an order made in his favour "unless the Court shall see good reason to the contrary". The interpretation to be placed upon these words I find to be the crux in this case. The plaintiff says in so many words, "I ask for a sale as a statutory right and am entitled to it unless the defendant can show good reasons to the contrary". It has been held that the property, though a house, is eminently suitable for partition, but that in itself is no reason for interference with the statutory right of sale. As Jessel, M. R., said in Porter v. Lopes, 7 Ch. D. 358 at 364, suitability for partition can only be called in aid of what might otherwise be not a sufficient objection to a sale standing

alone. For instance where property was not readily saleable, though it could be sold. In the present case there is nothing to show that the property is not readily saleable. Neither is it temporarily depreciated in value so as to render a sale unprofitable nor its dependence on any other property urged as a reason against sale (Porter v. Lopes, 363 and 364). The defendant says that he has lived on the property for five years and that it is convenient to his business. These reasons do not seem to me to be sufficient to deprive the plaintiff of his statutory right of sale and they appear to be less so when one considers what were held to be good reasons in Saxton v. Bartley (48 L. J. Ch. $519$ ) (1) that a sale would diminish the income of the defendant by half and $(2)$ that it was asked for through vindictiveness. To have ordered a sale in that case, Bacon V. C. held, would have been to inflict a great injury on the defendant. In coming to the conclusion that a sale should be ordered I am mindful of what Lord Hatherley said in Pemberton v. Barnes (6 Ch. App. 685 at 693) that the court's discretion under section 4 is limited to refusing a sale where it is manifestly asked for through vindictive feeling, or is on any other ground unreasonable and that section 5 guarded against any injustice through a sale being ordered. The defendant, under that section, could have come forward and undertaken to buy the share of the party asking. for a sale (Pemberton v. Barnes). I should also like to refer to the judgment of Jessel M. R. in Drinkwater v. Ratcliffe (20 L. R. Eq. 528) at 530 and 531) in which he says, "Then the fourth section provides that if the parties interested, to the extent of a moiety or upwards, requests a sale, the court shall sell, unless it sees good reason to the contrary, that is irrespective of the nature of the property, irrespective of the number of persons, irrespective of absence or disability, irrespective of any special circumstances which make the court think it beneficial. The parties interested to the extent of one moiety are entitled to a sale as of right, unless there is some good reason to the contrary shown; they have not to show any reason for the sale, but a reason to the contrary must be shown." I refer to this passage in support of the plaintiff's case particularly, as the learned trial Judge would appear to have been influenced in his judgment by the fact that the plaintiff is an absentee co-owner residing in India. The defendant can still bid for the property when it is put up for sale by public auction, for I would give both parties leave to bid, and, in the event of its being purchased by either, direct that he be at liberty to acquire the property on payment of half the price realized. I would allow the appeal with costs here and in the Court below, the plaintiff, in the event of his being declared purchaser, being at liberty to deduct those costs from the amount he has to pay. And in any event I would direct that the costs of and incidental to the sale be borne by the estate in the event of the sale being effected by public auction. The order for sale by public auction is without prejudice to any agreement the parties may reach to have the estate disposed of by private treaty.

WHITLEY, C. J.—The English Partition Act, 1868, is clearly the law applicable to partition in the Colony (see Thaker Singh v. Kesar Kaur, 17 K. L. R. 1) and as the plaintiff-appellant is admittedly the owner of a moiety of the property in question the case must be governed by section 4. That being so, a long line of cases establish that if he desires a sale the court must order one, "unless it sees good

reason to the contrary". I agree with the learned President and the learned Chief Justice of Zanzibar in the views which they have expressed as to the effect of those cases. The question which we have to decide resolves itself into one clear cut point; was the learned trial Judge right in holding that good reason had been shown for refusing to order a sale? The onus before him was clearly on the defendantrespondent, though it would seem doubtful whether, in the absence of the full text of the statute and of the reports of the English cases, that fact was fully stressed or appreciated in the Court below. It was for the respondent to show good reason, not why partition should be ordered but why a sale should not be ordered. It would appear from the English decisions that mere suitability for partition and inconvenience to the respondent is not a sufficient good reason. The evidence placed before the Court was very meagre, but such as it is we must confine ourselves to it. Both parties seem to have proceeded under a misapprehension as to the true position. The appellant apparently thought that he was entitled to a sale as of right and that he need adduce no evidence whilst the respondent thought all he had to do was to produce evidence of suitability and inconvenience. The appellant took a risk by calling no evidence, but he is still entitled to succeed if in our opinion the respondent has failed to call sufficient evidence. In my opinion he has so failed. He did not even plead good reason. That defect would, however, not have been fatal and in fact the objection was not taken. We were informed from the bar that his business premises are adjacent to the property, but there is no evidence as to that nor as to whether or not there would be any difficulty in the way of his being able to buy his half of the property at the sale or of his renting another house in the neighbourhood. Nor has he shown that any loss would be suffered by the property being sold as a whole without partition. All these considerations which might have assisted in proving his case remain matters of speculation, and I agree that on the scanty material before us he has failed to discharge the onus which definitely rested upon him of showing good reason why a sale should not be ordered. I would add that it seems to me most unfortunate that all the expenses of this litigation should have been incurred over a matter which one would think could easily have been suitably adjusted with a little give and take. I agree with the order proposed by the learned President.

SIR CHARLES LAW, C. J.—The appellant and respondent are joint owners, in equal undivided moieties, of a piece of land in the Eldoret township on which certain buildings have been erected. The respondent has lived on one half of this property for nearly five years, and the other half is rented out to tenants. He has his place of business quite near to the portion on which he lives. The appellant was formerly in the service of the Kenya Government as an assistant surgeon, but is now retired and lives in India. He alleges that partition of the property is impossible owing to the nature of the buildings and owing to the fact that it would be impossible to obtain sanction to sub-divide it from the authorities concerned. He says that he offered to buy the respondent's share for Sh. 3,000 or to sell his share to the respondent for a like sum, both of which offers the respondent refused. Consequently, he asks for an order for the sale of the entire premises. The respondent joins issue as to the impossibility of partition and says that he is and has always been willing and ready to

have the property partitioned. He claims, as a matter of law, that the appellant is not entitled to have the property sold. He does not deny, however, the appellant's allegation regarding the sale of a moiety for Sh. $3,000$ by the one to the other.

No evidence was called on behalf of the appellant.

The respondent did not call any witnesses but gave evidence himself. At the best this evidence can only be described as very meagre. Very little information can be gleaned from it. What emerges from that evidence, however, is that the nature of the buildings on the plot is such that a partition can undoubtedly be made without any difficulty. The learned trial Judge visited the premises and, in his judgment, expressed himself satisfied on this point, adding that there was no evidence to support appellant's allegation as to the impossibility to partition. Further, he held that it would be most inequitable that an absentee co-owner should be allowed to evict, by use of an Act (to which reference will be made later) his co-owner who is and has been living on the property for the past five years. Accordingly he refused to order a sale and gave judgment for the respondent.

As regards the law to be applied in this case I would agree with the decision in Thaker Singh v. Keser Kaur (17 K. L. R. 1). It was therein held that the English Partition Acts, 1868 and 1876, are applicable to partition cases in Kenya in view of Article 4 (2) Kenya Order in Council, 1921. In that case the plaintiff and defendant were joint sub-lessees in equal mojeties of a plot upon which were certain buildings. The premises not being capable of division, the plaintiff applied for a sale and division of the proceeds. The court ordered a sale in the particular circumstances of the case. The headnote to that report, however, is somewhat misleading. The case was one under section 4 of the Act, as is the present case before us. The headnote reads: "That the Partition Acts, 1868 and 1876, are applied to the Colony by Article 4 (2) of the Kenya Order in Council, 1921, and that a sale could be ordered", implying that a case under section 4 of the 1868 Act a sale could be ordered at the discretion of the court. At the hearing of this appeal we were given to understand that the actual text of that Act was not available at the trial. Otherwise, no doubt, it would have been observed that section 4 reads, "The court shall, unless it sees good reason to the contrary, direct a sale," etc. Under section 3 a co-owner whose share is less than one moiety may apply to the court for a sale instead of a partition. In such a case the court has discretion to order a sale if partition is inconvenient and not beneficial for the parties. But section 4 confers a right of sale on a co-owner of a moiety or upwards. This section has been judicially interpreted to throw the onus of proving "good reason to the contrary" on the person who resists the sale where the sale has been asked for, as in the present case, by the co-owner of a moiety or upwards.

The question of onus does not appear to have been appreciated at the trial. Seemingly, the learned Judge considered that, in view of the appellant's allegation as to impossibility of partition, he had a discretion to allow or refuse the sale asked for. But section 4 confers a statutory right on the appellant and the court's discretion is only exercisable where the person resisting the sale can show good reason why it should not be ordered. This principle has been abundantly made clear in the case of Pemberton v. Barnes (6 Ch. App. 685). In that case Hatherley L. C. discussed the third, fourth, fifth and sixth sections of the 1868 Act, and (at pp. 692 and 693) explained in the clearest possible language the rights which the law has granted to a co-owner of a moiety or upwards under section 4. The following is the relevant passage: -

"The Legislature has, in the third section, provided a complete remedy for this by empowering the court, in a case where there would be grievance and hardship in a partition, to sell, on the application of any party, notwithstanding dissent or disability on the part of any or all, it might be, of the other parties. The fourth section seems to me to be perfectly distinct from the third, for whereas the third section in terms applies only where the court is satisfied that a partition is inconvenient and not beneficial for the parties, there is no such condition inserted in the fourth section; and whereas under the third section a discretionary power was given to the court to order a sale, if it thought a sale more beneficial than a partition, the fourth section makes it imperative on the court, in a certain state of circumstances, to order a sale, unless it sees good reason to the contrary; that is to say, the onus is thrown on the person who says that the court ought not to order a sale, to show some good reason why it should not do so; otherwise, the court is bound to order it. The scope of the enactment appears to me to be this: there being, as I have said, reasons which may induce some of the part owners to wish for a partition, and others to wish for a sale and a division of the proceeds, the Legislature says that if the votes are equally divided, one half of the persons interested in the property desiring a sale and the other half a partition, then the half requiring the sale shall have the preponderating voice, and the court shall be bound to give them a sale wholly irrespective of the third section. But still there is a certain discretion left to the court, so that the court can refuse a sale where it is manifestly asked for through vindictive feeling, or is on any other ground unreasonable. If we then look to the fifth section, we shall see how any injustice is guarded against by an enactment which, I think, applies to the third and fourth sections: (His Lordship read the fifth section.) Here a wide discretion is given to the court. The court may think that a sale under the third or fourth section is rather hard upon the parties who are very anxious not to have a sale; and if they come forward and undertake to buy the share of the party who requests a sale, the court can give them liberty to do so. The sixth section gives a further security by providing that on any sale under the Act the parties interested may have liberty to bid."

What I regard as the critical portion of that passage are the words, "But still there is a certain discretion left to the court, so that the court can refuse a sale where it is manifestly asked for through vindictive feeling, or is on any other ground unreasonable". What evidence is there in this case that the appellant has asked for the sale through vindictive feeling or that his request is unreasonable on any other ground? The learned Judge's reasons for refusing the sale are that the partition can be made without any difficulty and that the property is eminently suitable for partition. Also, that it would be most inequitable to allow an absentee co-owner to evict his co-owner who had been living on the property for the past five years and which is conveniently near his place of business.

$I$ am unable to agree that because the property is eminently suitable for partition that is a good reason in itself to refuse the sale. Were this so no man in such circumstances could dispose of his undivided interest in any property without first going to partition, which would render nugatory the statutory right conferred on him by section 4 which is mandatory in its terms. In the light of decided cases, to which we have been referred, it must be considered whether continuous residence by a co-owner near his place of business is a good reason for the court to refuse a sale at the request of the otherco-owner. No other reasons are revealed by the evidence. In Roughton v. Gibson (46 L. J. Ch. 366) Bacon V. C. said (at p. 367), "The plaintiff alleges that it will be an injury to him to turn him out of premises of which he has been in occupation, and where he has conducted business. There is no necessity for turning him out. If he bids at the sale and buys the property no one will turn him out". And so it is with the respondent. In fact it has never been necessary to go to sale because appellant was willing to accept Sh. 3,000 for his moiety or to pay Sh. 3,000 for the respondent's moiety. Again, in Wilkinson v. Joberns (16 L. R. Eq. 14), it was held that the fact that the owner of a moiety of an estate happens also to be yearly tenant of the whole property, and occupies it for commercial purposes and also resides thereon, is no sufficient reason why a sale of the property should not be decreed. There is no question of vindictiveness on the part of the appellant as had to be considered. by the court in the case of Saxton v. Bartley (48 L. J. Ch. 519) as a "good reason to the contrary".

For the foregoing reasons I am unable to agree that any good. reason has been shown by the respondent for the Court to refuse a sale. Accordingly I would allow the appeal with costs here and in the Court below. I would respectfully agree with the order of the learned President as to the sale and distribution of the sale proceeds.

$53$