Kuwait Court of Cassation principle number 437

Summary: - A co-owner in undivided ownership. The general rule is that he has the right to terminate the state of undivided ownership at any time, by agreement or judicially. Exception. The existence of considerations calling for compulsory continuation in such undivided ownership pursuant to law or a legal disposition. Compulsory continuation in undivided ownership pursuant to a legal disposition is not permissible for a period exceeding 5 years. Article 830/1, Civil Code. - Partition becoming detrimental to the interests of the co-owners. Implication. The court may order continuation in undivided ownership for a period it specifies where there is no agreement prohibiting a request for partition, or until a date later than the agreed date. Article 830/2, Civil Code. - Inferring the existence or absence of detriment to the co-owners’ interests from immediate partition. A matter for the trial court. Condition. Its inference must be reasonable and based on what is established in the case papers. Example. - The appellant, in his capacity as Director-General of Minors’ Affairs, maintaining that undivided ownership should continue because partition would cause serious harm to the female minor, and substantiating this with documents. The judgment nevertheless terminating the state of undivided ownership in a manner that neither addresses this defence nor constitutes a suitable response thereto. This vitiates the judgment and necessitates its cassation. Rule: It is established in the jurisprudence of this Court that a defence capable of changing the outcome of the case is a material defence which the trial court must address and express its opinion upon in a manner that addresses that defence. It is also established that the import of Article 830 of the Law of the Civil Code is that the general rule is that every co-owner has the right to terminate the state of undivided ownership at any time by seeking partition by agreement or judicially, unless there are considerations calling for compulsory continuation in undivided ownership pursuant to law or a legal disposition. Compulsory continuation in undivided ownership pursuant to a legal disposition is not permissible for a period exceeding 5 years. In the second paragraph of the aforementioned Article, the legislature introduced some flexibility into the co-owner’s right to seek partition, on the one hand, and into requiring the co-owner to remain in undivided ownership, on the other. It permitted the court, if partition would be detrimental to the co-owners’ interests, to order continuation in undivided ownership for a period it specifies where there is no agreement prohibiting a request for partition, or until a date later than the agreed date. The trial court, by virtue of its unreviewable authority to ascertain and understand the facts of the case, may infer the existence or absence of detriment to the co-owners’ interests from immediate partition, provided that its inference is reasonable and based on what is established in the case papers. That being so, and whereas the appellant maintained, in his defence set out in the ground of challenge, that the state of undivided ownership should continue because immediate partition by selling the property at public auction would cause harm to one of the female minors who had been under his guardianship, and substantiated this by the documents submitted in the case before the trial court indicating that the female minor / ..... resides in the property subject to the disputed partition and has not yet attained majority, as established by the copy of the application for determination of the heirs of the late / ......... showing that the said female minor was born on 29/1/1995, particularly since her share of the price of the property would not suffice to purchase a house for her residence, which requires continuation in undivided ownership to avert detriment to the appellant resulting from partition. Since the challenged judgment departed from this view and ordered partition of the property to terminate the state of undivided ownership by selling it at public auction, on the ground that terminating the state of undivided ownership does not affect the common interest of the two parties, which neither addresses the appellant’s defence nor constitutes a suitable response thereto, it is defective in a manner necessitating its cassation.