Singh v Singh (C.C. No. 127/1935) [1937] EACA 210 (1 January 1937)

### ORIGINAL CIVIL

#### Before HORNE, J.

#### THAKER SINGH s/o MANGAL SINGH, Plaintiff

ν.

# KESER KAUR w/o SUNDER SINGH, Defendant

## C. C. No. 127/1935

Partition-Sale in lieu of Partition-Jurisdiction-Kenya Order in Council, 1921, Art. 4 (2).

The plaintiff and defendant were joint sub-lessees in equal moieties of a plot in Nairobi, upon which were certain buildings. The premises not being capable of division the plaintiff applied for a sale and division of the proceeds.

Held (20-11-35).—That, the Partition Acts 1868 and 1876 are applied to the Colony by Art. 4 (2) of the Kenya Order in Council, 1921, and that a sale could be ordered.

Schwartze for the plaintiff.

Figgis, K. C. for the defendant.—The Court has no power to order sale: the Indian Transfer of Property Act contemplates only partition: the Indian Partition Act, 1893, has not been applied to Kenya.

Schwartze in reply.—The Partition Acts 1868 and 1876 were applied by the Order in Council, 1921: section 7 of the Act of 1876 gives the Court power to direct a sale. The Transfer of Property Act does not deal with partition.

JUDGMENT.-The plaintiff and defendant are joint sub-lessees of plot No. 233/10 (L. R. No. 209) in the de Souza estate and the plaintiff prays for an order that the plot be sold and the proceeds be divided between himself and the defendant. The defendant does not wish to have the plot sold but is ready to partition or subdivide it, and submits that the plaintiff is not entitled to an order for sale.

Mr. Figgis for the defendant, contends that the applied Indian Act, Transfer of Property Act, 1882, is the whole law on the subject. and no provision is made in that Act either for subdivision or for sale and division of proceeds. Mr. Schwartze on the other hand contends that the English Partition Acts 1868 and 1876 are in force in the Colony by virtue of Article 4 (2) of the Order in Council, 1921. The Indian Transfer of Property Act was applied in 1897 to East Africa by Order in Council.

Although there was an Indian Partition Act in existence in 1897 it was not applied. Even when the 1897 Order in Council was replaced by that of 1902, the common law, doctrines of equity and the statutes of general application in England were not applied. But in 1911 what is now Article 4 $(2)$ of the Order in Council of 1921 was first brought into operation by the Order in Council then passed. Therefore since 1911, whenever it is shown that the applied Acts do not extend or apply, the jurisdiction of this Court, to quote the Article, "shall be exercised in conformity with the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th day of August, 1897." It is however also provided by Art. 4 (2) that the said common law, doctrines of equity, and statutes of general application shall be in force in the Colony only "so far as the circumstances of the Colony and its inhabitants permit and subject to such qualifications as local circumstances render necessary." The Indian Transfer of Property Act, 1882, applied here since 1897, is silent upon the subject of partition. The reason for such silence is given by Gour on p. 124 of his work on the Act in the following words, "The act does not deal with settlements, partitions and trusts. The first two subjects were proposed to be included in the Bill of 1877, but the subjects were found to be unsuitable to the scheme of the skeleton Act... The provisions relating to partition were however subsequently enacted in a separate Act (No. 4 of 1893)."

With regard to partition, as apart from sale, provision is made in section 12 of the Civil Procedure Ordinance for such suits.

Mr. Figgis further contended that where there is an applied Act. the common law, equity or the statutes of general application cannot be invoked to fill up any gaps therein. He cited the case of *Bennett* v. Garvie (7 E. A. L. R. 48) in which it was held that the Statute of Frauds does not apply to sales of land in East Africa. This was a suit for specific performance of a contract for the sale of land near Nairobi. A verbal contract of sale was proved and it was submitted that the contract was unenforceable in that there was no note or memorandum in writing to satisfy the Statute of Frauds. Hamilton, C. J., in his judgment at p. 49 says—"Now the law relating to purchase and sale in East Africa is contained in the applied Indian Acts. viz. Transfer of Property Act (IV of 1882) and the Contract Act (IX of 1872). These contain the whole law on the subject brought bodily over from India where the Statute of Frauds does not apply ..., and where we have a whole body of law dealing with a given subject, and where in that law it is stated that 'a transfer of property may be made without writing in every case in which a writing is not expressly required by law' (sec. 9), I do not think it can be said that the Statute of Frauds can be called in to vary that law and require a writing in cases where, as here, the Indian applied Acts. do not require it."

The Transfer of Property Act, as the learned C. J. points out, deals with the whole law on the subject of purchase and sale, but it clearly does not deal with disputes of the character before me between co-owners. I am not therefore limited by this statement in deciding whether or not the English Partition Acts are in force in Kenya; whether they ought to be applied having regard to the proviso to Article 4 is another matter. There were objections to applying the Statute of Frauds on the grounds of unsuitability, viz. that the greater part of the population were illiterate. But since the case of Bennett $v$ . Garvie was decided a compulsory system of land registration has come into operation. The local circumstances have undergone a great change in the last 18 years. With regard therefore to registered land in this Colony, I can see no valid reason why the English Partition Acts of 1868 and 1876 should not be applied. A similar law has been in force in India since 1893. No established practice in. conflict with these Acts has been shown to exist in the Colony. And it cannot be said that these Acts are based upon or presuppose social and political conditions peculiar to England. Accordingly, I hold that the Partition Acts are in force in Kenya.

Now the 4th section of the 1868 Act is mandatory. If requested by an owner of one moiety or upwards the Court shall, unless it sees good reasons to the contrary, direct a sale, etc.

There has been a lengthy correspondence between the parties prior to action with offers and counter offers, and it is stated that the defendant is not in a position to bid at auction or to buy the plaintiff's share. It is further objected on the defendant's behalf that at the present time there is not a good market for this class of property. In July the defendant offered to sell her share to the plaintiff for Sh. 12,500 (without prejudice) and the plaintiff offered to sell his to the defendant for Sh. 12,500 and certain costs and expenses. The defendant replied she was willing to purchase at Sh. 12,500 but not to pay costs and expenses. There the negotiations broke down. After the suit came on for hearing the property was put up for auction by consent at a reserved price of Sh. 25,000 but that price was not reached. Evidence has been led to show that the plot cannot be partitioned because the existing buildings have air and light from an internal open space. The earlier negotiations for partition broke down over this matter because the plaintiff proposed to build a party wall through the open space.

I cannot help but come to the conclusion that partition is not a good method of resolving the differences between the parties. It could only be had upon the basis of mutual easements as to light and air and would prevent further development of the plot. I cannot accept the view that the market is so bad that a sale would be unfair. It is not shown that the property has greatly depreciated in value. Neither party will be really satisfied with a partition. I therefore direct a sale, either party to be at liberty to bid.