1060. Joint ownership of property owned in absolute ownership is brought
about when more than one person join in
the ownership on any particular thing, that is to say, where such thing belongs
to them, as where ownership therein is acquired by any of the causes of
acquiring ownership such as purchase, or taking by way of gift, or by acceptance
of a bequest, or inheritance or by mixing or causing to mix one property with
another, that is to say, by uniting them in such a way that they cannot be
distinguished or separated the one from the other. Examples:-
(1). Two persons buy a piece of property, or a person bestows property upon them
by way of gift or by bequest and they accept the same: or two persons take a
piece of property by way of inheritance. such property is jointly owned by them
and they become joint owner in that property, and each one participates therein
with the other.
(2). Two persons mix their corn together, or their corn becomes mixed together;
by reason of there being holes in the sacks. The corn mixed together in this way
becomes joint property.
1061. If a gold coin belonging to one particular person is mixed
with two other gold coins of the same type belonging to some other person in
such a way that it cannot be distinguished from them, and two of them are lost,
the remaining gold coin becomes the joint property of the two persons, in the
proportion of one third and two thirds, the two thirds belonging to the owner of
the two gold coins, the one third belonging to the owner of the one coin.
1062. Joint ownership of property owned in absolute ownership is
divided into voluntary and obligatory joint ownership.
1063. Voluntary joint ownership is joint ownership brought about by the acts of the
joint owners themselves, as where it arises through purchase, or acceptance of a
gift, or by accepting a bequest, or mixing property together as referred to
above.
1064. Obligatory joint ownership is joint ownership brought about be some cause other
than the acts of the joint owners, as where it arises through inheritance or
through two properties being mixed together.
1065. The joint responsibility of various persons to whom a thing has been entrusted
for safe keeping is in the nature of voluntary joint ownership. But if a gust of
wind carries away a person's garment, and it falls in a house which is jointly
owned, the joint responsibility of the owners of the house for the preservation
of the garment is in the nature of obligatory joint ownership.
1066. Joint ownership of property owned in absolute ownership is
also divided into joint ownership of specific property and joint ownership of
debt.
1067. Joint ownership of specific property consists of joint
ownership of some specific property which is in existence, as where two persons
have undivided joint ownership of a sheep or of a flock of sheep.
1068. Joint ownership of debt consists of joint ownership of
something to be received, as where two persons ore joint owners of a certain sum
of money owing to them by some other person.
SECTION II. THE MANNER OF DEALING WITH SPECIFIC PROPERTY JOINTLY OWNED.
1069. The joint owners of property held in absolute ownership may by
agreement deal with their property in any way they wish, in the same way as a
single owner of such property.
1070. The joint owners of a house may dwell together in such
house. If one of them, however, wishes to introduce a stranger into the house,
the other can prevent him from doing so.
1071. One of the joint owners of property held in absolute
ownership may deal with such property alone, with the permission of the other.
He may not, however, deal with it in such way as to cause injury to the other
joint owner.
1072. Neither of the joint owners may force the other to sell or
purchase his share. If the property held in absolute ownership jointly by them
is capable of division, and the joint owner is not absent, such property may be
divided. If it is not capable of division they may share the usufruct thereof.
Details are given in Chapter II.
1073. The produce of property jointly owned in absolute ownership
may be divided among the owners in accordance with their shares. Consequently,
any stipulation that the milk of an animal which is jointly owned, or the young
thereof shall go to one of the joint owners in excess of his share is
invalid.
1074. The property in the young of animals follow the mother.
Examples:-
(1) A stallion belonging to A covers a mare belonging to B. The foal belongs to
the owner of the mare.
(2). A owns male and B female pigeons. The young belongs to the owner of the
female pigeons.
1075. The joint owners of property held in absolute ownership are
strangers to one another as regards their shares. Neither; is the agent of the
other. Consequently, neither joint owner may deal with the share of the other
without the latter's permission. But in the case of dwelling in a house which is
jointly owned and as regards matters pertaining thereto, such as coming in and
going out, each of the joint owners is considered to be an absolute owner of
such property.
Examples:-
(1). One of the owners of a jointly owned horse lends or gives such horse on
hire without the permission of the other, and it is destroyed while in the
possession of the borrower or of the person taking it on hire. The second joint
owner may claim to have the loss of his share made good by the first.
(2). One joint owner rides a jointly owned horse, or places a load upon him
without the permission of the other, the horse is destroyed while being ridden
or driven. The second joint owner may claim to have the loss of his share made
good by the first.
(3). One joint owner uses a horse for a certain period so that it becomes weak
and its value decreases. The other joint owner may claim to have the decrease in
value which is represented by his share made good.
(4). One of two joint owners of a house lives in such house for a certain period
without obtaining the permission of the other. He is considered to be living in
his own property held in absolute ownership, and he cannot be called upon by the
other joint owner to pay rent corresponding to his share. If the house is burnt
down by accident, he is likewise under no obligation to make good any loss.
1076. If one of the two joint owners of land cultivates such
land, the other may not claim a share of the produce thereof in accordance with
local custom, such as a third or a fourth. If the value of the land is decreased
by reason of the cultivation, however, he may claim to have the amount of the
decrease in value of his share made good by the joint owner cultivating the
land.
1077. If one of two joint owners of lets such property on hire
and receives the rent thereof, he is obliged to pay the other his share
thereof.
1078. If one of the joint owners of property owned in absolute
ownership is absent, the one who is present may take the usufruct of such
property to the extent of his share thereof, provided the consent of other is
given by implication, as is set forth in the following Articles.
1079. The absent joint owner is considered to have given his
consent by implication to enjoyment of the usufruct by the joint-owner who is
present, if the latter causes no harm in so doing to the jointly owned property
held in absolute ownership.
1080. There can be no consent by implication to the enjoyment of
the usufruct of jointly owned property held in absolute ownership where such
property is changed by use by the particular person using it. Consequently, one
of two joint owners of a piece of clothing cannot wear such clothing in the
absence of the other. Again, one of two joint owners may not ride a jointly
owned horse in the absence of the other. He may do so, however, up to the extent
of his share in cases where there is no change by use of the particular person
using it, such as carrying burdens, or ploughing land. again, where one of two
joint owners is absent, the other may, every other day, enjoy the services of a
servant who has been taken into their joint service.
1081. Habitation of a house is not changed by a change of persons
dwelling therein. Consequently, if one of two joint owners of a house held in
common in equal shares is absent, the other may use such house for a period of
six months and leave it for six months. If members of such person's household
are numerous, however, their dwelling in the house is of such a nature as to
change it by reason thereof, and the absent joint owner cannot be held to have
assented thereto by implication.
1082. In the event of the shares of a house jointly owned by two
persons, one of whom is absent, being separated the one from the other, the
joint owner who is absent. If there is danger of the house falling into
disrepair, however, by reason of it being left vacant, the Court may let such
separate part on hire and keep the rent of behalf of the absent joint owner.
1083. Partition of usufruct can only be had and is only valid
after being settled by an action at law. Consequently, if one of the owners of a
joint owned house lives alone in such house for a certain period without paying
any rent is respect to the share of the other, the latter cannot claim rent in
respect to his share for that period, or claim that he will dwell in it for a
corresponding period. He may however, divide such house if it is capable of
partition, or he may cause the usufruct thereof to be divided so that it may be
valid thereafter. But if one of the joint owners is absent, and the other, as
stated in the preceding Article, dwells therein for a certain period, and the
absent joint owner returns, he may dwell in such house for a corresponding
period.
1084. One of the owners of a jointly owned house who is present
may validly let such house on hire, taking his own share of the rent and keeping
the share of the absent joint owner. On the return of the latter, he may obtain
his share from the former.
1085. Should one of the joint owners of land be absent, and it is
known that cultivation will be beneficial to such land and will not result in
any decrease in the value thereof, the joint owner who is present may cultivate
the whole of such land. If the absent joint owner returns he may cultivate the
land for a corresponding period. If it is known that cultivation of the land
will result in a diminution of the value thereof and that leaving the land
fallow will be beneficial thereto and will result in the increased fertility
thereof, the absent joint owner cannot be held to have agreed by implication to
the cultivation of such land. Consequently, a joint owner who is present may
only cultivate the amount of his own share of such land. For example, if such
land is jointly owned in equal shares, he may cultivate a half thereof. Should
he cultivate the land again in the following year, he may only cultivate his own
half. He may not cultivate one half in one year and the other half in the
following year. If he cultivates the whole of such land and the absent joint
owner returns, he may make good to him the decrease in value of his share of his
land.
The details as set out above apply, if the joint owner who is present does not
make any application to the Court. Should he apply to the Court, However, the
Court shall give permission for him to cultivate the whole of such land in order
that the tithe and land tax shall not be lost. In such a case, should the absent
joint owner return, he may not bring an action on account of any decrease in the
value of the land.
1086. If one of the joint owners of an orchard is absent, the
owner who is present stands in the place of the absent joint owner, and when the
fruit ripens may take and consume his own share. He may also sell the share of
the absent joint owner and set aside the price thereof. The absent joint owner,
on return, has the option of either ratifying the sale and taking the price set
aside, or of rejecting the sale and claiming to be given the value of his
share.
1087. The share of one of the joint owners is considered to be
deposited for safe keeping with the other. Consequently, if one of them, on his
own initiative, deposits the jointly owned property with some other person for
safe keeping and such property is destroyed, he must make good the loss of the
share of the other joint owner. ( See Article 790.)
1088. One of the joint owners may, if he wishes, sell his share
to the other joint owner, or he may also sell it to some other person without
the permission of the joint owner. ( See Article 215.) In the case of mixed
property, however, as mentioned in section I, no person may sell his share of
mixed property to another unless he has obtained the permission of the joint
owner.
1089. If some of a number of heirs to land which has devolved
upon them by way of inheritance sow seed therein which is their joint property
with the permission of the other heirs, or if such other heirs are minors, with
the permission of their guardians, the whole of the resulting produce is jointly
owned by all of them. If one of them sows his own seed, the resulting produce is
his own. He must, however, make good any loss accruing to the share of the other
heirs by reason of any decrease in the value of the land caused by the
cultivation thereof. (See Article 907.).
1090. If one of a number of heirs, without the permission of the others, takes
and uses a quantity of money belonging to the estate prior to the division
thereof, he must bear any loss occasioned thereby, but is entitled to keep the
profits obtained by such transaction.
SECTION III. JOINTLY OWNED DEBTS.
1091. If two or more
persons are owed a sum of money by some other person and that debt arises from
single cause, debt is a debt jointly owned by the two creditors. If the debt
does not arise from a single cause, it is not a joint debt. These matters will
be dealt with in the following Articles.
1092. Any Specific property left by a deceased person is jointly
owned by his heirs in proportion to their shares. In the same way, sums owing to
him by any other person are jointly owned by the heirs in proportion to their
shares.
1093. A debt owed by a person and arising by reason of such
person having to make good loss caused by the destruction by him of property
jointly owned, is jointly owned by the owners of such property.
1094. If two persons who jointly own a certain sum of money lend
such money to some other; person, the debt is jointly owned by such two persons.
If two persons lend money separately to some other person, each one becomes a
separate creditor, and the debts are not jointly owned by the two persons.
1095. if property jointly owned is sold en bloc, and the share of
none of the joint owners is mentioned at the time of the sale, the sum of money
to be paid by the purchaser becomes a debt jointly owned. If the amount of the
share of the price of the thing sold of each one of them is mentioned at the
time of the sale, or the nature thereof, as for example, where it is stated that
the share of one of them consists of so much money and the share of the other of
so much, or where the share of one is said to consist of sound coin and the
share of the other of base coin, whereby their shares are defined, the vendors
do not jointly own the price of the thing sold, but each becomes a separate
creditor. Similarly, if one on them sells his undivided share to some other
person, and the other also sell his undivided share to that person separately,
such persons do not jointly own the price of the thing sold, but each of them
becomes a separate creditor.
1096. If two persons each sell their property en bloc to some
other person, as, for example, when one sells a horse and the other a mare at
one and the same time, for a certain sum of money, the amount in question
becomes a debt jointly owned by the vendors. If each one of them names the price
of his own animal as being so much, they each becomes separate creditors, and
the total value of their animals does not become a debt jointly owned. Again, if
two persons each separately sell property to some other person, the total value
of the things sold does not become jointly owned, but each one becomes a
separate creditor.
1097. If two persons in their capacity as guarantors pay the debt
of some other person from property which they jointly own, the amount which they
are entitled to recover from the principal debtor is a debt jointly owned.
1098. If a person gives an order to two other persons to pay a
debt amounting to certain some and the latter pay such debt from property which
they jointly own, the sum which they are entitled to receive from such person is
a debt jointly owned. If the money they have paid is not jointly owned by them,
and the share of each of them is in fact clearly distinguished, the mere fact
that they have paid at one and the same time does not make the amount they are
entitled to claim from such person a debt jointly owned.
1099. If the debt is not jointly owned, each of the creditors may
demand payment separately from the debtor of the sum he is entitled to receive
and whatever sum either of them receives, is credited to such person's account.
The other creditor is not entitled to share therein.
1100. If the debt is a joint one, each of the creditors may
demand and receive payment of his own share from the debtor separately. If one
of the creditors applies to the Court in the absence of the other and asks for
payment of his share from the debtor, the Court shall make an order to this
effect.
1101. Whatever sum is received by one of the creditors is respect
to a joint debt is jointly owned by him and the other creditors who receives
such sum may not deduct it from his own share alone.
1102. If one of the creditors receives his share of a joint debt
and disposes of it, the other joint creditor may claim to have the loss he has
suffered made good.
Example:- One of two persons who are joint creditors in
equal share for a sum of one thousand piastres receives his share of five
hundred piastres from the debtor and disposes of it. The other joint creditor
may claim from him the sum of two hundred and fifty piastres for the loss he has
suffered. The five hundred piastres still remaining due continues to be owned by
the two creditors.
1103. If one of the joint creditors while receiving nothing in
respect to the joint debt buys goods from the debtor against his share, the
other does not becomes a joint owner of the goods. He may,however, claim to have
his share made good by the other creditor out of the price of the goods. if they
come to an agreement as to their shares, the goods are held jointly between
them.
1104. If one of the joint creditors comes to a settlement with
the debtor as to his share in the joint debt, as for example, where he agrees to
accept from the debtor a certain quantity of cloth and does in fact do so, he
may either to the other joint creditor an amount of cloth corresponding to the
latter's share, out of the cloth he has received, or he may deliver him a sum of
money corresponding to the amount of the share of the joint debt which he has
forgone.
1105. If one of the creditors, as mentioned above, receives a
part of the whole of a joint debt, or if he buys property to the value of his
share, or if he comes to a settlement with the debtor as to certain property
against his claim, the other creditor in any case has the option of either
adopting the transaction of the other joint creditor, when, as is set forth in
the preceding Articles, He has the right of receiving his share from, or of
refusing to adopt the transaction and claiming his share from the debtor. If he
fails to obtain anything from the debtor, he has a right of recourse against the
creditor who has obtained his share, and the fact that he has not previously
adopted the transaction is no bar to his right of recourse.
1106. If one of the creditors receives his share of the joint
debt from the debtor, and it is accidentally destroyed while in his possession,
he is not liable to make good the loss to the other joint creditor in respect to
the amount represented by such joint creditor's share therein. The amount
remaining to be paid by the debtor belongs to the joint creditor.
1107. If one of the creditors employs the debtor for a wage to be
reckoned against his share of the joint debt, the other joint creditor may call
upon the former to make good to him the amount represented by his share
therein.
1108. If one of the joint creditors receives a pledge from the debtor in
respect to his own share, and the pledge is destroyed while in his possession,
the other joint creditor may call upon the former to make good to him the amount
represented by his share therein.
Example:- The amount of the joint debt
held in equal shares is one thousand piastres. One of the creditors receives a
pledge in respect to his share of five hundred piastres. The pledge is destroyed
while in his possession. The other creditor may call upon the former to make
good to him a sum of two hundred and fifty piastres, since half the joint debt
has been lost.
1109. If one of the creditors obtains a guarantor from the debtor
in respect to his share to some other person, any sum obtained by such creditor
from the guarantor or the person to whom the transfer has been made is shared by
the other creditor.
1110. If one of the debtors makes a gift of his share in the
joint debt to the debtor or releases him therefrom, such gift or release is
valid. He is not liable on that account to the other creditor in respect to his
share.
1111. If one of the joint creditors is respect to a joint debt is
responsible for the destruction of the property of the debtor, and the sum
represented thereby is set off against the debt, the other joint creditor has
the right of receiving his share from him in respect thereto. But if one of the
joint creditors was in the debt of the debtor in respect to a debt which came
into existence prior to the joint debt in respect to which he has a claim, the
two claims are set off one against the other and the other joint creditor cannot
claim from him anything in respect thereto.
1112. Neither of the joint creditors may extend the due date of
postpone the joint debt without the permission of the other.
SUPPLEMENT.
1113. If any person sells any property to two other persons,
he may claim his share from each one of them separately. He may not claim the
amount owing by one of them from the other, unless they are guarantors of each
other.
CHAPTER II. PARTITION.
SECTION I. NATURE AND CATEGORIES OF PARTITION.
1114. Partition consists of defining an undivided share. That is
to say, to distinguish and separate shares from each other by means of some
standard, such as a measure of capacity, or of weight, or of length.
1115. Partition is effected in two ways. The first consists of
specific objects owned jointly, that is, numerous and jointly owned things being
separated into parts, the divided shares belonging to each individual being
united in one part. This is called partition by units, as where thirty sheep
which are jointly owned between three persons are divided up into tens.
The second consists of dividing a specific thing owned jointly and of allotting
a part in respect to the undivided shares relating to each portion. This is
known as partition by allotment, or individual partition, as where a piece of
land is divided into two parts.
1116. Partition consists on the one hand of separation and on the
other of exchange. Examples:-
(1). The two persons own a kile of corn jointly in equal shares. Each has a half
share in each grain. When it is divided into two parts, the division is by
partition by units, one part being given to one and the other part to the other
joint owner. Each one is then considered to have separated his half share and to
have exchanged his own half with the half share of the other.
(2).Two persons are joint owners of a piece of land which they hold in equal
shares in respect to every part. The land is divided into two by partition by
allotment, and a part is given to each one of them. Each one is considered to
have separated his own half share and to have exchanged it with the half share
of the other joint owner.
1117. Separation is preferred in the case of things the like of
which can be found in the market. Consequently, each joint owner of jointly
owned things the like of which can be found in the market may take his own share
in the absence of the other and without his permission. The division, however,
is not complete until the share of the absent joint owner has been handed over
to him. If the share of the absent joint owner is destroyed before being handed
over, the share which has been received by the other joint owner is jointly
owned between them.
1118. In the case of things the like of which cannot be found in
the market, exchange is preferred. Exchange may take place by agreement of the
parties or may be made as the result of a judgement by the Court. Consequently,
one of the joint owners may not take his share of any specific object the like
of which cannot be found in the market, in the absence of the other and without
his permission.
1119. Things estimated by measure of capacity, things estimated
by weight and things measured by enumeration and which closely resemble one
another, such as walnuts and eggs, are all things the like of which can be found
in the market. But things estimated by weight and which change in accordance
with the difference of craftsmanship, such as hand-made pottery, are things the
like of which cannot by found in the market. Things which are similar to each
other, though of a different nature, and which are mixed together in such a way
that they cannot be distinguished and separated from each other, such as barley
and corn, are things the like of which cannot be found in the market.
Things measured by length are also things the like of which cannot be found in
the market. But things measured by length and sold at so much per yard, there
being no difference between the undivided units thereof, such as cloth of a
particular type, and linen goods produced by a process of manufacture, are
things the like of which can be found in the market.
Things measured by enumeration and which are dissimilar from each other and is
respect to which there is a difference in value as regards the undivided units
thereof, such as animals, melons and water melons, are things the like of which
cannot be found in the market.
Books written by hand are things the like of which cannot be found in the
market. Printed books are things the like of which can be found in the
market.
1120. Partition by units and partition be allotment are each
divided into two categories. The first is partition by consent. The second is
partition by order of the Court.
1121. Partition by consent consists of a partition made by
agreement of the two joint owners of property held in absolute ownership,
whereby they mutually agree to a division between them, or whereby the Court
makes a division with the assent of all parties.
1122. Partition by order of the Court consists of a partition
which is obligatory and has the force of law, and which is made upon the
application of certain of the owners of the jointly owned property.
SECTION II. CONDITIONS ATTACHING TO PARTITION.
1123. The thing divided must be some specific object. Consequently, any partition of a
debt jointly owned prior to being received is invalid.
Example:- A deceased
person has various sums of money owing to him. The allocation of so much money
owing to him by A to one of his heirs and so much owing to him by B to another
of his heirs is invalid. Should one of the heirs obtain any sum of money in this
way, the other heirs become joint owners therein. ( See Chapter i, Section iv ).
1124. NO partition is valid until the shares have been identified
and separated.
Example:- One of the joint owners of a heap of corn requests
the other joint owner to take one half of the heap, adding that he will take the
other. The partition is invalid.
1125. The thing divided must be the property of the joint owners
held in absolute ownership at the time of partition. Consequently, if some
person appears who is entitled to the whole of the property after the partition
has been made, such partition becomes null and void. Similarly, if someone
appears who is entitled to an undivided share therein such as a half or a third,
the partition is invalid and the property must be divided again. Again, if
someone appears who is invalid, and the remainder is jointly owned by the other
persons holding shares in the property. If someone appears who is entitled to
some specific part of a share only, or an undivided part, the owner of such
undivided share has the option of either cancelling the partition, or of
agreeing thereto, and of exercising a right of recourse against the other joint
owner in respect to the amount short.
Example:- A piece of land measuring
one hundred and sixty ARSHUNS is divided into two equal shares. Someone appears
who is entitled to a half of one share. The owner of such share may, at his
option, cancel the partition, or may exercise a right of recourse against the
other; joint owner to the extent of a quarter of his share, that is to say, he
may take from his share a portion measuring twenty ARSHUNS. If someone appears
who is entitled to a specific part of each share, the partition cannot be
cancelled if it has been made in equal shares. If one has received less and the
other more, the greater amount only is held to be valid, the matter being
regarded as though only one person had appeared entitled to a fixed portion of
one share. The person to whose share the greater amount is attributed as stated
above has the option either of cancelling the partition, or of having recourse
against the other joint owner in respect to the amount which he has lost.
1126. Partition by an unauthorised person is subject to
ratification, which may be oral, or in writing, or by conduct.
Example:- A divides jointly owned property on his own initiative. The partition is neither
permissible nor executory. But if the owners ratify by signifying their assent,
or if they deal with their separate shares by way of absolute ownership, that is
to say, if they perform any act indicative of a right of ownership, such as sale
or hire, the partition is valid and executory.
1127. The partition must be equitable. That is to say, it must be
made in accordance with the shares due to each joint owner, and no one may in
any way be deprived of the full amount to which he is entitled. Consequently, an
action for flagrant misrepresentation will lie in a case of partition. If the
person in whose favour the partition has been made, however, admits that he has
received what he is entitled to, his admission is a bar to an action for
flagrant misrepresentation.
1128. In the partition by consent, the consent of each of the
persons sharing in the partition must be given. Consequently, if one of them is
absent, partition be consent is invalid. If one of them is a minor, the tutor or
guardian stands in his place. In the absence of tutor or guardian, the partition
is subject to the order of the Court, which will appoint a guardian through whom
the partition will be carried out.
1129. Partition made by order of the Court is subject to a
request being made to that effect. Any compulsory partition made by the Court in
the absence of any request made by one of the parties is invalid.
1130. If some of the joint owners apply for partition and others oppose such
application, the Court shall make a compulsory partition if the property jointly
owned is capable of partition, as is set forth in Section 3 and Section 4.
Otherwise no partition shall be made.
1131. Capable of partition refers to jointly owned property which is fit for
partition. Thus, the benefit to be derived from such property must not be lost
by the partition.
SECTION III. PARTITION BY UNITS.
1132. Specific objects which are jointly owned and which are of one type, are subject to partition by
order of the court. That is to say, the Court will order the partition of such
property upon the application of some only of the joint owners, whether the
property in question consists of things the like of which can be found in the
market or not.
1133. In the case of partition of things the like of which can be
found in the market, and which are of one type, each of the joint owners
receives what he is entitled to and becomes absolute owner thereof, since there
is no defers between the various undivided units thereof, and partition cannot
injure any one of the joint owners. Thus, upon the partition of a quantity of
corn jointly owned by two persons, in accordance with their shares, each of them
receives what he is entitled to, and becomes the independent owner of the corn
falling to his share. The same applies in the case of a number of dirhems of bar
gold, or of a number of okes of bar silver, or of bar copper or iron, or of a
number of pieces of woollen cloth of one type or of a number of pieces of linen
or a quantity of eggs.
1134. If a difference exists between things the like of which cannot be found
in the market, and which are of one type, but such difference is so small that
it may be said not to exist at all, such things are considered to be capable of
partition as referred to above.
Example:- Five hundred sheep owned jointly
by two persons are divided between them in accordance with their shares. Each
one is considered to have received the identical things to which he is entitled.
The same thing applies in the case of so many hundreds of camels and so many
hundreds of cows.
1135. Specific objects which are jointly owned and which are of
different types, are not subject to partition by the Court, Whether consisting
of things the like of which can be found in the market or not. That is to to
say, the Court will not give an order for their compulsory division by units
upon the application of one of the joint owners only.
Example:- An order of
the Court for the partition of property whereby one of the joint owner receives
so many kiles of corn, and another so many kiles of barley, as being equivalent
thereto; to one so many sheep, to another so many camels or cows, as being
equivalent thereto; to one a sword, to the other a set of saddlery; to one a
country house, to the other a shop or a farm,is invalid. But if the joint owners
agree thereto, a partition by order of the Court, as mentioned above, is
valid.
1136. Pots which differ in accordance with the craftsmanship are
considered to be different types, even though made from metal of one type.
1137. Ornaments, large pearls and jewellery are also specific
objects of different types. But small jewels not differing from each other in
value, such as tiny pearls and small diamonds known as counting stones, are
considered to be of the same type.
1138. A number of country houses, shops and farms, are also of
different types and cannot be divided by partition by units.
Example:- One
of a number of country houses may not be given to one joint owner and another to
a second in pursuance of an order for partition given by the Court. Each of them
may be divided by partition by allotment as set out below.
SECTION IV. PARTITION BY ALLOTMENT.
1139. Any specific piece of property which is jointly owned is capable of partition, provided such
partition does not injure any of the owners thereof.
Examples:-
(1). A piece of land is divided and buildings erected on each portion, trees are
planted and wells sunk. In this way, the benefit to be divided from the land is
preserved.
(2). A country house is divided into men's and women's quarters, so that it
becomes two separate houses. The benefit to be derived from the country house,
which was to dwell therein, is not lost. Each of the joint owners becomes the
independent owner of a separate house. Consequently, both in the case of the
land and of the country house, a division by order of the Court is valid. That
is to say, if one of the owners desires partition and the other does not, the
Court may give an order for compulsory partition.
1140. Should the partition of some specific piece of property
jointly owned be advantageous to one of the owners thereof, and disadvantageous
to the other, that is to say, should the benefit to be derived therefrom be lost
to him, and should the person deriving some advantage therefrom desire
partition, the Court may give an order for partition.
Example:- A house is
jointly owned and the share of one of the joint owners is so small that after
partition he is unable to derive benefit therefrom by dwelling therein. The
joint owner holding the greater share desires partition. The Court will give an
order fro partition.
1141. Partition may not be ordered by the Court of some specific
property which is jointly owned in cases where such partition would be injurious
to each of the joint owners of such property.
Example:- If a mill is
divided, it can no longer be used as a mill, and for this reason the benefit to
be derived therefrom is lost. Consequently, the Court will not order partition
of the mill upon the application of one of the joint owners only. It may,
however, be divided by consent. Baths, wells, water pipes, a small room, a wall
between two houses, are of the same type. Merchandise such as a horse and a
carriage, a saddle, a cloak, the stone for a ring, which must be broken or
split, are also of this nature. In no case may division be ordered by the
Court.
1142. The partition of the pages of a book jointly owned is
invalid: and the partition volume by volume of a book in several volumes is
likewise invalid.
1143. If one of the joint owners of a road owned by two or more
person to which no other person has the right of access desires partition, and
the others object, it must first be ascertained as to whether, if partition is
effected, each of the joint owners will have a road. If so, the road will be
divided. If not, no order will be made for compulsory partition. Nevertheless,
if each one has a separate road and entrance, partition may be made.
1144. A right of flow jointly owned is similar to a road jointly
owned. If one of the owners desires partition and the other objects, and there
is sufficient room for each one for the flow of water after partition, or there
is some other place to which the water may flow, the partition may be made, but
not otherwise.
1145. A person may sell a road which he owns in absolute
ownership, subject to his retaining a right of way thereover, in the same way
that upon the partition of a piece of real property jointly owned by two
persons, the absolute ownership of a road jointly owned may be retained by one,
and the other may be given a right of the way thereover only.
1146. Upon the partition of a house, a wall separating the two
shares may remain in the joint ownership of the owners thereof, or such house
may be divided in such manner that the wall becomes the property in absolute
ownership of one of them only.
SECTION V. METHOD OF PARTITION.
1147. If property jointly owned is estimated by measure of capacity,
it is divided by such measure; if it
is estimated by weight, it is divided by weight; if it estimated by number, it
is divided by number; if it is estimated by length, it is divided by length.
1148. Land being measured by length, is divided by length. But
trees and buildings situated thereon are divided by estimating the value
thereof.
1149. Should it be found upon the partition of a country house
that the building represented by one share is more valuable that the building of
the other, land in addition is taken from the site of the other share, if this
course is possible, equivalent to the difference in value, and added thereto. If
this is not possible, a proportionate amount of money is added.
1150. If two persons who are joint owners of a house desire
partition thereof so that one receives the upper portion and the other the lower
portion, both the upper and the lower portions are valued, and the partition is
made on the basis of the value.
1151. If a country house is to be divided, the person carrying
out the partition must first make a plan thereof on paper, must measure the land
upon which it is built, value the buildings thereof, and make a settlement and
adjustment in accordance with the shares of the owners thereof. If possible he
must divide any right of way, or right of taking water, or right of flow, so
that they are completely independent the one from the other. They must be called
share number one, two and three respectively. Afterwards, lots must be drawn.
The first name turned up gets the first share, the second name gets the second
share, and the third name gets the third share. If there are more than three,
the same procedure is followed.
1152. If taxes levied by the State are for the protection of the
interests of the people, they must be levied in accordance with the amount of
the population. Women and children are not included in the register. If they are
levied for the protection of property, they are levied in accordance with the
amount of such property, because, as is mentioned in Article 87, disadvantage is
an obligation accompanying enjoyment.
SECTION VI. OPTIONS.
1153. An option conferred by contract,
an option of inspection, and an option for defect are attached to the various
types of partition, as in the case of sale.
Example:- Property jointly
owned is divided by agreement between the owners thereof. One receives so many
kiles of corn and the other so many kiles of barley, or one of them receives so
many sheep and the other so many cows. If one of the joint owners has a
contractual option, he may, during that period, either agree to the partition,
or cancel it. If one of them has not yet seen the divided property, he similarly
has an option upon seeing it. If the share of one of them proves to be defective
he may either accept it or reject it.
1154. An option conferred by contract, an option of inspection,
and an option for defect are also attached to things the like of which cannot be
found in the market, upon the partition thereof.
Example:- Upon the
partition of one hundred sheep among the owners thereof in proportion to their
shares, one of the owners may, if he has stipulated therefor by contract,
exercise an option of accepting or rejecting the partition within a period of so
many days. If he has not yet seen the sheep, he similarly may exercise an option
upon seeing them. If a defect of long standing is revealed in the sheep which
fall to the share of one of them, he likewise has an option and may either
accept them or reject them.
1155. Upon the division of things the like of which can be found
in the market, and which are of the same type, no option is conferred by
contract or upon inspection. An option, however, exists for defect.
Example:- A heap of corn belonging to two persons jointly is divided. An
option conferred by contract to be exercised within a certain number of days is
invalid. If one of them has not seen the corn, he cannot exercise an option upon
seeing it. But if one of them is given the upper part and the other the lower,
and the lower portion proves to be rotten, the owner has the option of rejecting
or accepting it.
SECTION VII. CANCELLATION AND RESCISSION OF PARTITION.
1156. When the lots have all been drawn, the partition is complete.
1157. When the partition has been completed, there cannot be any
withdrawal therefrom.
1158. If one of the joint owners wishes to withdraw while the
partition is being carried out, as for example, where the majority of the lots
have been drawn and there remains one only, the withdrawal is valid if the
partition is one made by consent. It is invalid, however, if it is made by order
of the Court.
1159. If the joint owners cancel and rescind the partition by
agreement after such partition has been carried out, they may again become joint
owners of the property as heretofore.