Aggarwal v. Dhillon, Civ. Case 19-A-68, 24/4/69, Platt J.

Aggarwal v. Dhillon, Civ. Case 19-A-68, 24/4/69, Platt J.

A tenant in common of land held under a right of occupancy brought an action asking the court to order sale of the property. He had let the premises to the other tenant in common who had failed to pay the rent. The plaintiff claimed the arrears of rent, and further that it was disadvantageous for him to continue as co-owner. He relied on the English Partition Act of 1868 and 1876. the defendant raised a preliminary objection arguing (1) that a cause of action by way of sale did not lie on the grounds that the partition Acts do not apply in Tanzania: (2) that the proceedings should have been started by originating summons: and (3) that the consent of the Commissioner for Lands was a prerequisite to the bringing of the action.

Held: (1) On the first question, I am of the opinion that the Partition Acts do apply. Section 2(2) of Cap. 453 provides that the jurisdiction of the High Court shall be exercised in conformity with the written laws which are in force in Tanganyika and subject thereto and so far as the same shall not extend or apply, 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 22^nd day of July, 1920, and with the powers vested in and according to the procedure and practice observed by and before courts of Justice in England according  to their respective jurisdictions. There was a proviso that the said Common Law, doctrines of equity and statutes of general application should be in force only so far as the circumstances of Tanganyika and its inhabitants permitted, and subject to such qualifications as local circumstances may render necessary. As to the approach as to what is a statute of general application and where the application such a statute may not be implemented, a useful discussion will by found in Hearne, J.‘ s judgment in Karimjee Jivanjee & Co. v. Official Receiver of the Government of Tanganyika the Trustee of the Property of Gorden McDiarmed (1936) E.A.C.A. Vol. 3 at p. 99. In that case an English act of 1888 was applied I was also referred to G.B. Patel v. D.M. Patel (1939) 6 E.A.C.A. 48 in which the Partition Act 1868 was applied in Kenya, by virtue of Article 4(2) of the Kenya Order in Council 1921. The authority for applying the Partition Acts to the present circumstances in Tanzania is not the same, of course, as that relied on in Patel’s case, but similar reasoning, I think, applies to the provisions of section 2(2) of Cap. 453. Further, when one considers Cap. 114, there seems no doubt. That Chapter is headed an “Ordinance to apply the English Law of Property and

conveyancing to the Territory.” By section 2(1) of the Ordinance, the law relating to real and personal property etc. in force in England on the 1^st January, 1922, shall apply to real and personal property in the Territory in like manner as it applies to real and personal property in England, and the English Law, practice and conveyancing shall be in force. There is no doubt that the Partition Acts were an important feature with regard to tenancies in common. It is clear therefore that they are to be applied to this country; just as it has always been held, for instance, that the Trusteeship Act of 1893 is applicable. It the Partition Acts are to be applied in general, is there any feature which should be considered showing that the conditions prevailing in this country disfavor such application? I can think of no aspect which would preclude the application of the Partition Act in principle. Possibly it was felt that the consent of the commissioner has been obtained, and indeed, in the instant case clause 3 of the Right of Occupancy forbids the disposition of the whole or a portion of the land or buildings without previous written consent, nevertheless, that difference has never stood in the way of applying the English Law of Property procedure and practice of conveyancing in this country. Therefore, I see no obstacle in applying the Acts …….” (2) It was argued by learned Counsel for the defendant that the plaintiff has commenced a rash and expensive course of action by bringing this suit rather than making investigations and commencing by a procedure equivalent to an originating summons. Now such a summons would have covered, before 1922, applications for the determinations of questions of constructions arising under deeds or other instruments and certain applications under the Trustee act 1893, applications for the determination of certain questions arising out of he administration of an estate or trust and applications for the ascertainment of the heir-at-law (etc.) for the purposes of the Land Transfer act. Such applications were to be made in Chambers, (see Halsbury Laws of England, Vo,. 23, 1912 Ed. P. 186 & 187). It is to be observed from Halsbury’s Laws of England Vol. 21 1912 p. 846 that the practice and procedure generally is to commence the action by way of writ and statement of claim. Therefore, in principle I am not of the view that the procedure adopted in this case was improper.” (3) If I am right that the Partition Acts apply, then the parties may apply to the court for sale of the common property rather than partition. It would appear to be a case under section 4 of the Partition Act of 1868. As was pointed out in Patel’s case (following an English decision cited therein), section 4 confers a statutory right on the applicants to apply for sale, and the court’s discretion [not to order sale] is only exercisable where the person resisting the sale can show good reason why it should not be ordered. Therefore, unless the defendant can put forward reasons why a sale should not take place presumably the application would be granted. At the same time, no such disposition can be made without prior consent of the Commissioner for Lands. Here is another example where the courts must indulge in a dignified tussle with the Commissioner. The question is who is to have priority. It is suggested that the plaintiff ought to have sought the Commissioner’s consent before he brought these proceedings. It could be that the Commissioner might reply that he would not entertain a hypothetical proposition.

and that unless the courts were willing to grant sale rather than partition, he would not consider whether he should give his consent. Again it could be said that there would be no good reason for the court to grant sale if it was clear that the Commissioner would not give his consent. It was urged that if the Commissioner was adamantly against the sale of the property, that would be a reasonable ground on which the court could refuse the application. There is unfortunately no procedure by which this conflict of interest is to be resolved. It is of interest to note that in the sale of land under execution proceedings, (see 0.21, r.90 of the Civil Procedure Code) It is provided that: - “90 – (1) Where no application is made and disallowed, the court shall make an order confirming the sale and thereupon the sale shall become absolute; Provided that where it is provided by any law that a disposition of property in the execution of a decree or order shall not have the effect or be operative without the approval or consent of some person or authority other than the court, the court shall not confirm such disposition under this rule unless such approval or consent has first been granted.” That rule appears to indicate that the court should not act by confirming the sale in those circumstances without the prior consent of the Commissioner. It might well be argued that the situation with regard to the sale of common property should follow a similar pattern. However, I think that in a matter of this nature, the proposal could put to the commissioner, on the grounds that a sale would be ordered unless for special reasons the court thought otherwise after hearing the defendant’s case. The Commissioner should be invited to indicate his stand on that basis that the sale would be ordered in all probability. If there is no objection in principle to the sale of the common property, the court could then go on to determine the position between the parties, after which, of course, formal consent to the disposition will be necessary. As far as this case is concerned, as the plaintiff pointed out, the position vis-s-vis the Commissioner will be a matter of evidence at the trial. If he fails to satisfy the court upon the point he conceded that his case might be defeated. I think that is correct. I accept that the Commissioner’s consent which cannot, in any event, be final consent until the case is heard, should not be a prerequisite to the bringing of the case”.