(1987)1987 March 20 ΙΑ LOIZOU MALACHTOS STYLIANIDES JJ I ELENISOFOKL1SAWA, Appellant-Plainhffy ν OLGAPETROL), Responden t-Plamtiff (CivilAppeal No 6596) Immovable property - Ownershipinundivided shares- Partition- Meaning ofTheImmovable Property(Tenure,Registrationand Valuation)Law,Cap 224 ~ Section 29 - No partition canbe effected thereunder,ifitleavesundivided partof the propertyjointly owned- Thephilosophy of the Law The appellant and the respondent are the registered co-owners in equal shares of a field of an extent of six donums, on which there are standing a carob-tree,a mulberry tree,an engine-room,astore-room,awater tankand a bore-hole 5 The appellant filed an application with the D L O for the compulsory partitionof thesaid field AsaresulttheDirectordivided theproperty intotwo 1 0 equal holdings (Plots 22/10/1 and 22/10/2) and a smaller one The latter was to remain in the joint ownership of the parties, whereas, following a draw oflots,plot22/10/1 wasallottedtotheappellantandplot22/10/2tothe respondent The respondent filed anappeal to theCourtunders 80 of Cap 224 The 1 5 main issue before the trial Court was whether the sub judice decision was invalid as having been reached contrary totheprovisions of Cap 224 andin paticularsection29 of theLaw The trialCourtdeclared thedecision Invalid Hence thepresent appeal Held,dismissing theappeal
(1)Theprovisions of sub-sections 1and4* of section 29 of Cap 224 shouldbe read in conjunction with thepowers of the Directorunderthe othersub-sections of thesection aswellas undersections 27 and 28 20
(2)Nodoubt no compulsory partition under section 29 can be effected, ifitleavesundivided partofthepropertyjointly ownedbytheco-owners The 2 5 wording of this section is clear, and itbecomes clearer when sub-section
(1)thereof isviewed inparticularinthelight of theprovisions of sub-section
(4)•Quotedatp 183post 180 1 C.L.R. Sawa v.Petrou The whole philosophy of the lawistodisunitejointlyowned property and at sametimetolimititspanellation below certain minimum sizes 5
(3)Inthe lightoftheabove thepartition asdecided upon bythe Director isnottheoneenvisagedbys29inasmuchasitdoesnotputanendtothejoint ownership, leaving a small portion to be held and enjoyed in undivided share Appealdismissed. Noorder asto costs Appeal. 10 AppealbyrespondentagainstthejudgmentoftheDistrictCourt of Paphos(Chrysostomis,P.D.C. and Papas, D.J.) dated the 8th July, 1983 (D.L.O. Appeal No. 72/80) declaring as invalid the decision of the District Lands Officer, Paphos whereby the property under Reg. No. 4825 was compulsorily partitioned 15 under the provisions of section 29 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, and was allotted tothe parties after adrawof lots.. E.Efstathiou,for the appellant. E.Komodromos, forthe respondent. 20 Curadv. vult. A. LOIZOU J. read the following judgment of the Court. The appellant and therespondent aretheregistered co-ownersof one half share each of a field, described as garden-land, under Registration No. 4825, plot 22/10 sheet/plan 45/44 at 25 Thremithousa Village, of an extent of six donums. There are standing on it a carob-tree, a mulberry tree, an engine-room, a store-room, a water-tank and a bore-hole. TheappellantfiledanapplicationwiththeD.L.O.ofPaphosfor the compulsory partition of the said immovable property under 30 the provisions of section 29 of the Immovable Property (Tenure Registration and Valuation) Law, Cap. 224 (hereinafter to be referred toastheLaw). 181 A. Loizou Λ. S a w a v. Petrou
(1987)By the decision of the Director the said property was partitioned intotwo equal holdings and smaller one as indicated on the plan, copy of which was produced as exhibit ai the trial Each one of the larger holdings was of an extent of two donums three evleks and 400 sq ft The one holding was given plot No 5 22/10/1 and has the carob-tree standing on itand the other was given plot No 22/10/2 and has the mulberry tree Both were described asgarden-land The smaller holding which is given plot No 22/10/3, is of an extent of one evlek and 2 800 sq ft is descnbed as a site, with two rooms, one tank and one bore hole 10 standing onit Following a draw of lots, plot No 22/10/1 was allotted to the appellant whereas plot No 22/10/2 was allotted to the respondent Thesmaller plotincludingthebuildings andthebore hole on itwere toremain according tothedecision of theDirector 15 ofLandsandSurveys inthejointownership ofthelitigantsinequal shares As against this decision the respondent applied to the Court under section 80 of the Law and in the result the Full Court of Paphos allowed theappeal anddeclared as invalid thedecision of 20 the Director and ordered the respondent to pay the costs of the proceedings The main issue before thetnal Courtand indeed before us on appeal has been whether the sub judice decision was invalid as having been reached contrary tothe provisions of theLaw andin 25 particular, tosection 29 thereof The tnal Court, after dealing at length with the arguments advanced onbothsides,givingitsapproachastothemeaningand effect of partition,as used in the sense of Section 29 of the Law, came to the following conclusion «From all these provisions, itisapparentthattheDirectoris given power to disunite property jointly owned but not to partition it in such a way so as to disunite part of itand leave the rest in the joint ownership »fthr CD-owners If a partition cannot be effected in that manner, then tha Director must 35 182 30 1 C.L.R. S a w a v. Petrou A.Loizou J. issue a certificate to the effect that the property cannot be partitioned without contravening the provisions ot s 2 / pursuant tothe provisions ofs 28 5 10 Forall the above reasons we have come tothe conclusion that the manner in which the partition of the immovable property the subject matter of thisApplication was effected is wrong in law as the joint ownership of this land, which constituted one plot of land is not disunited as part of the property remains in the joint ownership of the ltigants In facing «ttisdifficult solution theDirector orhisnominee even proceeded to cieate the said easements contrary to the provisions ofs 11ofCap 224 inhiseffort tocomplywith the provisions ofs27» Ithasbeen argued on behalf oftheappellant that thetnalCourt 15 wrongly concluded that the decision ofthe Director of Lands and Surveys was not correct and that it wrongly interpreted the Law and inparticular sections 27 28, 11and 29 of the Law, Section 29.subsections 1,and 4, ofthe Law read as follows 20 25 30 35 «29(11 Where immovable property is held in undivided shares, itshallbe lawful for the Director, on theapplicationof any co-owner tocauseapartition ofthe property tobe made amongsttheseveralpartiesent'tlpd theretoandtoregisterthe holdingsintowhichthe propertyisdivided inthenamesofthe persons towhom the same are respectively allotted "
(2)
(3)
(4)Where by reason of the nature of the property to be partitioned orofthenumberofpartiesinterestedtherein orfor any other reason it appears to the Director that it is not practicable to allot holdings of a value corresponding to the respective shares of the co-owners the Director may order that those co-owners who takeholdingsof greatervalue than their due shall pay to those who take holdings of less value than theirdue ortake noholdingatall.suchcompensation as the Director maydetermine having regard totheir respective sharesand thevalueswhich he allocates tothe holdings » 183 A.LoizouJ. S a w a v . Petrou
(1987)These provisions have to be read in conjunction with the powers of the Director under itsremaining subsections, aswellas those given tohim by sections27and 28. Section 27 delineates the general provisions relating to the division or partition of immovable property and thereunder no division or partition shall be lawful ifitcontravenes anyone of its provisions, andsection 28,empowerstheDirectortosellproperty held inundivided sharesincertain cases. 5 No doubt no compulsory partition under section 29 can be effected whichleavesundividedpartofthepropertyjointlyowned 10 by the co-owners. The wording of this Section is clear and it becomes clearerwhen subsection
(1)isviewedinparticularinthe light of the provisions of subsection 4, hereinabove set out, whereby byreason of the nature ofthepropertytobe partitioned or the number of the parties interested therein or for any other 15 reason it appears to the Director that it isnot practicable to allot holdings of a value corresponding to the respective sharesof the co-owners,theDirectormayorderthatthoseco-owners,whotake holdingsofgreatervaluethanwasdue,shallpaytothosewhotake holdingsoflessvaluethantheirdueortakenoholdingatall,such 20 compensation as the Director may determine having regard to their respective shares and the values which he allocates to the holding. It is clear that the whole philosophy of the Law is to disunite jointlyowned propertyandatthesametimetolimititsparcellation 25 below certain minimum sizes,andthisisachieved bythe wording of the interconnection calledfor, of itsseveral provisions. We need not, as the trial Court did, refer to the position in England asitisclearfrom the wordingof ourLawthatitspurpose wastoavoidfragmentation ofimmovablepropertyintoplotsofan 30 uneconomic sizeand value. Wemayrefer, however,tothedefinition ofpartitioncitedbythe trialCourtasgivenintheEncyclopaediaofFormsandPrecedents, 4th Edition,Volume 15,atp.843undertheheading "Meaningof Partition":184 35 1 C.L.R. Savva v. Petrou A.LoizouJ . «The term 'partition' applies to the division of lands tenements, and hereditaments belonging to co-owners and the allotment among them of the parts,soastoput an endto community of ownership between some or all of them A partition can be made of one entire parcel of land held in undivided shares whetherfreehold orleasehold orofseveral separate parcels orof partsthereof so held» In view of the above we have come to the conclusion that the partition as decided upon bythe Diiectorisnottheone envisaged 10 by section 29 inasmuch as it does not put an end to the joint ownership between the co-owners as itleaves a small portion to be held and infact enjoyed in undivided shares For all the above reasons the appeal is dismissed but in the circumstances, however, there willbe no order asto costs 15 Appeal dismissed No order asto costs 185