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Premabhai v Patel [1964] FJLawRp 21; [1964] 10 FLR 272 (22 August 1964)

[1964] 10 FLR 272

COURT OF APPEAL OF FIJI

Civil Jurisdiction

GHELABHAI PREMABHAI

v

GOBERDHANBHAI BHAILALBHAI PATEL

Carew P., Hieatt J.A., Russell J.A.

August 19th, 22nd August, 1964^[1]

Land – partition – no order to be made where subdivision not permissible – Sub-division of Land Ordinance (Cap. 121 – Laws of Fiji, 1945) s.11 – Partition Act 1868 (Imperial) (31 & 32 Vict., c.40) – Supreme Court Ordinance (Cap. 2 – Laws of Fiji, 1945) ss.36, 37.

While the Partition Act, 1868, applies to Fiji, it is clear that, under section 11 of the Subdivision of Land Ordinance, subdivision (which is held for the purposes of the case to be the same as partition) could not be granted by the Subdivision of Land Board in relation to the land the subject matter of the appeal, except in the circumstances specified in the proviso to section 11, which is not claimed or proved to be applicable. Therefore no order for partition could properly be made in the present case, and it follows that no order for sale should have been made. Judgment of the Supreme Court reversed.

Appeal from judgment of the Supreme Court, reported (1964) 10 FLR 268.

P. Rice for the appellant.

A. D. Patel for the respondent.

Judgment of the Court:

This is an appeal against a decision of the learned Chief Justice delivered on the 29th day of May, 1952, in a suit brought by the respondent, Goberdhanbhai Bhailalbhai Patel against the appellant. Ghelabhai Premabhai. In that suit the respondent claimed the partition of certain lands situate in the township of Ba, with the buildings and fixtures erected thereon, of which, it was admitted by both parties, the appellant and the respondent are the registered proprietors as tenants in common. In the alternative, the respondent claimed an order for the sale of such property and the division between the parties of the proceeds of sale. The trial judge gave judgment in favour of the respondent, with costs, and directed an order for the sale of the property and distribution of the proceeds.

In his judgment the learned Chief Justice said that Mr. Rice, on behalf of the appellant, had argued that owing to the provisions of the Subdivision of Land Ordinance, Cap. 121, the Partition Act of 1868 had no application to Fiji and that the Court had no jurisdiction to order partition, and that as a sale could only be ordered as an alternative to partition the Court had no power to order a sale.

The learned Chief Justice, in dealing with this submission, said – We quote from his judgment —

"I can find nothing in the Subdivision of Land Ordinance which expressly or by implication takes away the common law jurisdiction of this Court, exercised by virtue of sections 36 and 37 of the Supreme Court Ordinance (Cap. 2) to order a partition when such order could lawfully be made. It may well be that the person obtaining such order would be bound to proceed in accordance with the provisions of the Subdivision of Land Ordinance, and in the event it might be that owing to the application of those provisions to the particular circumstances the order could not be carried out. In that event I apprehend that the person obtaining the order would be entitled to apply for such alternative relief, if any, to which he might be entitled. Alternatively, I see no reason why the Court should not make an order directing partition and at the same time suspend the operation of the order until satisfied that the requirements of the Ordinance had been complied with. I find that this Court has not lost its common law jurisdiction to make an order directing the partition of property and therefore the case is one where, in the terms of the Partition Act, 1868, a decree for partition might have been made. It follows that the Court has power, in pursuance of the terms of the Partition Act of 1868, to make an order directing the sale and distribution of the proceeds."

Mr. Rice stated to us that the learned Chief Justice incorrectly propounded his submission at the trial. He said that the submission which he then made, and to which he still adhered, was that while the Partition Act, 1868, applied to Fiji the provisions of the Sub-division of Land Ordinance, Cap. 121, must be read in conjunction with it, and that, so read, the effect was that the action was not one wherein a decree for partition could be made.

It is clear that the Partition Act 1868 applies to Fiji and it is equally clear that in the absence of the Subdivision of Land Ordinance, Cap. 121, an order decreeing partition, or, if the circumstances so required, an order for sale, could lawfully be made.

We are of the opinion that whilst the learned Chief Justice correctly expounds the law relating to his jurisdiction at common law and under the Partition Act 1868, he has in fact failed to have regard to the provisions of the Subdivision of Land Ordinance Cap. 121. It is clear, under section 11 of that Ordinance, that subdivision, which we hold for the purposes of this case to be the same as partition, cannot be granted by the Subdivision of Land Board in relation to the land the subject matter of this appeal, except in the circumstances specified in the proviso to that section. No evidence was produced to the trial judge, and no suggestion has been made to us, that that proviso is applicable to the present case. Thus it appears to us that in the circumstances of this case no order for partition could properly be made by the learned Chief Justice or this Court. It follows, therefore, by virtue of the fact that the Partition Act 1868 limits the power of the Court to order a sale to cases in which an order for partition could be made, that no order for sale should have been made in this case.

The appeal is therefore allowed, and judgment must be entered for the defendant in the action. The respondent will pay the costs of this appeal together with the costs in the Court below.

Appeal allowed.

^[1] On appeal to the Privy Council, reported in [1954] AC 35, this judgment was reversed – Ed.