001-NLR-NLR-V-37-NOOR-UMMA-v.-ABDUL-HAMEED.pdf
THE
NEW LAW REPORTS OF CEYLONVOLUME XXXVII1935Present: Macdonell C.J. and Koch AJ.
NOOR UMMA v. ABDUL HAMEED71—D. C. Colombo, 32J2S7
Plaint—Action rei vindicatio—Claim that property is subject to fidei com-missum—Property acquired compulsorily—Amendment of plaint—Declaration^ that money which represents the immovable property isimpressed with fidei commissum—Cause of action not a new one.
The plaintiff sued the defendant for declaration of title to certainpremises of which she claimed a half share absolutely and the remaininghalf share subject to certain conditions contained in a last will, allegedto create a fidei commissum.
After the institution of the action the premises were compulsorilyacquired by the Municipal Council of Colombo and the sums of moneyrepresenting the compensation for the property were paid to thedefendant.
Thereafter the plaintiff moved to amend the plaint by the additionof a paragraph in which it was pleaded that the sums of money paid to thedefendant were subject to the same legal incident as the property itself.
Held, that the amendment proposed did not set up a new cause ofaction and that it should be allowed.
A PPEAL from a judgment of the District Judge of Colombo.
This was an action for declaration of title to premises No. 23 at Layard’sBroadway. Plaintiff claims title from a last will admitted to probate ofone Saibo Dorai. She claimed a half absolutely and the other halfsubject to the conditions set up by the will.
The plaint (original) was filed on March 26, 1929. The plaintiff allegedthat the defendant purchased the whole land in 1920 from the vendeeof Kolanda Umma, the devisee of the last will of Saibo Dorai.
The land was compulsorily acquired by the Municipality under theLand Acquisition Ordinance and compensation was paid on two occasions,April, 1929, and November, 1929.
An amended plaint of May 7, 1934, was filed, where plaintiff prayedthat the compensation paid by the Municipality be treated as immovableproperty subject to the terms contained in the last will.
V. Per era (with him Kariapper), for defendant, appellants.—Theamendment should not have been allowed for the following reasons.
1J. N. B 16684 (4/52)
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MACDONELL C.J.—Near Umma v. Abdul Hameed.
First. The action was first filed on March 26, 1929. The money wasreceived by the defendant from the Municipal Council in April andNovember, 1929. Therefore, according to the proposed amendment theplaintiff’s complaint is that the defendant wrongfully took from theMunicipal Council the money which should have been paid to the plaintiff.The alleged cause of action arose after the institution of the action.See Estakey v. Federated European Bank' and Muttumenika v. FernandoSecond. The order allowing the amendment is prejudicial to the defend-ant. As the amendment dates back to the date of the plaint and themoney having been received by defendant, the prejudice lies in the fact thatthe plea of prescription will not be available to the defendant. Thereis no prejudice to the plaintiff, if she is referred to a separate action,since she alleges fraud, which was discovered only a few months ago.It has been held both in England and Ceylon that an amendment shouldnot be allowed if the effect of it is to permit a person to set up a cause ofaction, which would be otherwise barred by lapse of time. See Weldon v.Neal3 and Ismail v. Noordeen'.
Third. The right of parties should have been determined as they stoodat the date of action (.Muttumenika v. Fernando (supra) ).
Fourth. An action for declaration of title to a land is quite differentfrom an action for a declaration that the money paid by way of compensa-tion should take the place of the land compulsorily acquired. The moneypaid cannot be subject to the same legal incidents as immovable property.The doctrine of conversion pleaded by the plaintiff in the amended plaintis peculiar to the English law of real property and does not form a partof our law. It cannot apply in a case where the money has been paid out.
N. E. Weerasooria (with him Haniffa), for substituted plaintiff,respondent.—The cause of action in both plaints is the same. The rightor benefit, pleaded in the plaint, follows upon the true construction of thelast will of Saibo Dorai. In both cases the relief or declaration askedfor would depend on the fact whether there is a fidei commissum createdfor last will. The Court will have to decide the question of the existenceof the fidei commissum in the first instance.
If the Court does not declare the money received as compensationsubject to the legal incidents as immovable property, the decreeof the Court adjudging the plaintiff to a share of the premises in questionwill not be effective. The decree can be made effective only if the Courthas power to make the decree operative over the movable propertyinto which the immovable property has been changed. See G. A.,Sabaragamuwa v. Asirwatham 5.
,,Cur. adv. vult.
March 11, 1935. Macdonell C.J.—
In this case the plaintiff died after the action was brought and the officialadministrator ' was substituted as plaintiff for her. She, the originalplaintiff, had claimed to be declared entitled absolutely to a half shareof the premises bearing assessment No. 23, Layard’s Broadway, and also
> (1932) 1 K. B. 234.a (1887) 19 Q. B. D. 394.
– 15 N. L. R. 429.* 12 Ceylon Lau; Recorder 20.
s 29 N. L. R. 367.
MACDONELL CJ.—Noor Ultima v. Abdul Hameed.
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to be declared entitled to the remaining half share subject to the condi-tions set out in the last will of Saibo Dorai dated May 30, 1886. Theplaintiff claimed that this will created a fidei commissum in favour ofone Kolondu Umma with a reversion on her death in favour of twonieces of the testator, Ponni Trama and herself. The will containedthe further condition that on the death of the plaintiff intestate andwithout issue, her half share should devolve on her two nieces SattaUmma and Ponnachi Umma. At the date of the institution of theaction none of these persons was alive, Kolondu Umma having diedon May 7, 1920, Ponni Umma having died in 1915, Satta Umma inAugust, 1905, and Ponnachi Umma on January 17, 1917.
It will thus be apparent why the original plaintiff claimed an un-divided half-share absolutely, the reason being that on the death ofSatta Umma and Ponnachi Umma she could claim to be absolutelyentitled to that half. With respect to the remaining half, she evidentlyfelt that it would be a contentious matter as to whether on the death ofPonni Umma, Ponni Umma’s half share devolved on her (the plaintiff)under the law of jus accrescendi, or whether Ponni Umma having diedduring the lifetime of the fiduciarius Kolondu Umma, the former’sinterests devolved absolutely on the latter. So the original plaintiff,reasonably enough, left the question to be decided by the Court, in termsof the fidei commissum already referred to, by praying that she should bedeclared entitled to that half share, subject to the conditions set out inthe will.
On the other hand the defendant, while reciting the terms of thefidei commissum in his answer, contends that by reason of the death ofthe aforesaid four persons the plaintiff was disentitled to any share of thesaid premises but that Kolondu Umma became absolutely entitled tothem and that she thereafter by deed No. 768 of October 12, 1917,conveyed the said premises to one I. L. M. £?. Lebbe Marikar Hadjiarwho in turn by deed No. 71 dated September 8, 1918, conveyed themto him.
It is thus manifest that the title of both the plaintiff and the defendantdepended entirely on the correct interpretation and legal effect of theterms of the fidei commissum, which the will apparently creates.
It would appear that defendant had been in possession at least from1920—the plaintiff said, unlawful possession—until the filing of thisaction on March 26, 1929. In that same< year, 1929, the ColomboMunicipality under the powers given it by Ordinance No. 3 of 1876compulsorily acquired these lands from the defendant and paid himcompensation for them, for one the sum of Rs. 17,343.75 in April, 1929,and for the other the sum of Rs. 17,364.84 in November, 1929. Theplaintiff seems to have done nothing in respect of this compensation untilJanuary 31, 1934, when she filed an amended plaint, the materialparagraphs of Which are as follows : —
“11. The plaintiff pleads that by reason of the compulsory nature ofthe said acquisitions, the sums paid as aforesaid by way of compensa-tions are subject to the same legal incidents as immovable property andare to be treated as though no conversion had taken place and as if thesaid sums continued to be immovable property.
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MACDONELL CJ.—Noor Umma v. Abdul Hameed.
“ 12. The plaintiff was niether given any notice nor was she awareof the aforesaid acquisition proceedingsThis amendment of the plaint was resisted by the defendant on theground that it attempted to set up a new cause of action accruing afteraction brought, and on the further ground that this new cause of action,money received by defendant for the use of the plaintiff, having arisenin April, 1929, and November, 1929, had become prescribed undersection 8 of Ordinance No. 22 of 1871 on January 31, 1934, the date ofthe amended plaint. The learned District Judge allowed the amendment,holding that it did not contain a new cause of action, and from this rulingthe present appeal is brought.
The question whether these lands are subject to a fidei commissum infavour of the plaintiff is the question raised in the original plaint andawaits decision, but the plaintiff has asserted that these lands are subjectto a fidei commissum in her favour and she is entitled to have that issuetried. If the decision is that the lands are subject to such a fidei com-missum, then she claims that she or her representatives can follow thelands subject to that fidei commissum into the hands of a purchaser. (Itmay be mentioned that the purchaser here, the defendant, seems to admitby his answer that he purchased with knowledge of the fidei commissum.)The law protects the fidei commissarius by impressing the fidei commissumupon the property subject to it. But here the properties themselvesare no longer available, having been acquired by a third party understatutory powers, and are represented by two sums of money, theirvalue. In, Kumarihamy v. Kumarihamy ’ per Bertram C.J. “ It is inaccordance with the policy of the law that where land which is subjectto a fidei commissum cannot be properly developed for the advantageof the fidei commissarii, it should be freed from the fidei commissum bysale and the purchase money deposited in Court for the benefit of thoseinterested”; see also Sivacolundu v. Noormaliya1 and the dictum quotedtherein at p. 430 of Cayley C.J. in 3 S. C. C. 103, which asserts the sameprinciple in a different connection. If it is established that a propertyis subject to a fidei commissum and that a person is entitled thereto asfidei commissarius, there must be means of preventing a decree establish-ing these things from becoming nugatory—empty words and no more—and if for some reason the property declared by a decree to be subject to afidei commissum is no longer available to satisfy the claim of the fideicommissarius—in argument the possibility was given of its having beenswallowed up by the sea or by a river changing its course—but its valueis available, then the decree will adjudge that value to the fidei commis-sarius. It would appear that this has been recognized in South Africa,likewise governed by Roman-Dutch law, in the case Du Plessis v.Meyer’s Estate3, the report in which case is not available but the head-note of which is as follows: —Where a testator had by contractinter vivos burdened certain of his property with fidei commissum, andhad thereafter sold certain of the property so burdened. Held, that hisexecutors, in lieu of the portion of the properties sold by him, should setaside out of his estate a sum equal to the proceeds of such property and
apply it in terms of the fidei commissum constituted.”
' 22 -V. L. R. at p. J28.2 22 N. L. R. 427.
3 13 C. P. D. 1006
MACDONEL.L C.J.—Noor Umma v. Abdul Hameed.
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The immovable property subject to fidei commissum is impressed withthat fidei commissum, and the movables, the moneys which now representthat immovable property, remain to satisfy the fidei commissum withwhich that immovable property was impressed. There is no need to saythat the immovable property has been converted into movables, thoughthe term conversion of the same may prove useful and be allowed,provided only that we do not confuse it with the equitable doctrine ofconversion in English law which is the outcome of the fact that in thatlaw there are two systems of intestate succession, one for realty, the otherfor personalty, a complication from which our own law is happily exempt.It is sufficient to point out that this movable property would never haveexisted at all but for the immovable property impressed with a fideicommissum; it represents that immovable property so impressed and avalid claim thereto as fidei commissarius must surely be a valid claimalso to the movable property into which it has now been converted,if the expression may be allowed. I would refer again to the undoubtedprinciple that the decree of a Court adjudging to a person certain rightsshould be effective, and in a case such as the present it can only beeffective if the Court has power to make its decree operative over themovable property into which the immovable property burdened witha fidei commissum, has been changed. On principle, then, and onauthority I cannot see that this claim of the plaintiff to the money whichrepresents the property immovable impressed with a fidei commissumcan be considered a new cause of action.
The law applicable to compulsory purchase is to be found in OrdinanceNo. 3 of 1876, sections 36 and 37, which reads as follows : —
“ 36. Payment of the compensation shall be made by the Govern-ment Agent according to the award to the persons named therein or,in the case of an appeal, according to the decision on such appeal, andafter such payment has been made according to such award or suchdecision no further claim against the Government in respect of compen-sation for the land so taken shall be allowed at the instance of anyperson whomsoever. Provided that nothing herein contained shallaffect the liability of any person who may receive the whole or anypart of any compensation awarded under this Ordinance, to pay thesame to the person lawfully entitled thereto.
“ 37. When the land taken is subject to any entail, settlement, orfidei commissum, the compensation payable in respect thereof shall besubject to the same entail, settlement or fidei commissum, so far as thedifferent nature of the property will admit; and such compensationshall be paid into court to abide its further orders as to the disposalor investment thereof. It shall also be lawful for the District Judgein any case to require the compensation payable in respect of any landto be paid into court to abide its further orders, if the court shall thinksuch course just or expedient ”.
It will be seen that section 36 provides for the case of compensation beingactually paid to a person not lawfully entitled thereto. If so, he is underobligation to pay over that compensation to the person who is lawfullyentitled thereto. Section 37 provides for the case of the land compulsorily
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MACDONELL C.J.—Noor Umma v. Abdul Hameed.
taken being subject to a fidei commissum. It must I think include thecase of land which is claimed under fidei commissum. It would surelyrender the provisions of section 37 nugatory if the party primd facieentitled to the compensation money as being in possession, were to saythat the land taken could not be considered subject to fidei commissumuntil a Court had declared it to be so, and that consequently the moneywas to be paid to him even though a case might be pending in Court as towhether the land was subject to fidei commissum. In such a case, if theGovernment Agent became aware that there was an action pending as towhether the land taken was subject to fidei commissum it would be hisduty to pay the compensation money into Court to abide its furtherorders, in other words to await the determination by the Court of whetherthe land was subject to fidei commissum or not. It was argued on thisappeal that section 37 only applied as between jiduciarius and fideicommissarius but not to cases where land is in the hands of someonewho claims ut dominus unburdened by fidei commissum. It is difficultto accept this interpretation of the section which would open the doorto illegality and fraud. The person in possession would only have toclaim that the land was his unfettered, to defeat the provisions of thesection as to paying money into Court. He would then take the money,possibly to the detriment of the person eventually declared fidei commis-sarius. These sections, in fact, are statutory assertions of the principlelaid down in the cases cited above, namely, that the purchase money ofland subject to fidei commissum is to be deposited in Court for thebenefit of those interested, and it is impossible to know who are thepersons interested, and to what extent, until the Court has declared on theexistence of a fidei commissum and its ambit.
The amendment necessary to the plaint is only that the prayer shouldbe in the alternative to that originally pleaded. It prayed that theplaintiff be declared entitled to the land, and all that is necessary is to addas an alternative “or the value of that land”, and the value is ascertain-able by the amount that the Colombo Municipality has paid in twocertain sums to the defendant as its value.
An analogy to the present case is furnished by an action for the vindica-tion of specific movables. Here the proper form of prayer in a plaint isto ask for the delivery of the articles themselves, in fact specific per-formance of the right to them. The defendant cannot escape the dutyto restore, by offering to pay their value. An action rei vindicatio istherefore an action for the specific goods themselves. If, however,during the course of the action it appears that for some reason or otherthe property cannot be specifically restored to the plaintiff, then it is opento him to ask for the value of the goods. He would do so by adding analternative to his original prayer for the delivery of the articles themselves.But this alternative prayer would clearly not be a new action or a newcause of action, see Shaik Ali v. Carimjee Jafferjee'. This rule seemsto hold good in case generally where the plaintiff asks specific performance.Circumstances may have intervened which prevent him getting a specificperformance of the contract, then it is open to him to add in the alter-native a prayer to be adjudged the value in money of the specific property
i 1 N. L. B. 117.
MAARTENSZ J.—The King v. Silva.
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which for some reason or another cannot be adjudged to him. But hedoes not, it would appear, put that alternative prayer in his originalplaint because what he is asking for is the property itself. He onlyasks for the value if for some reason or other the property cannot bedelivered to him, but the addition of the alternative prayer, damagesin lieu of specific performance, will certainly not be a new cause of action.
I am satisfied therefore that the amended plaint of the plaintiff does notset up a new cause of action, and that the learned District Judge wasright in saying that it was merely as a consequence of the amendmentasked for that plaintiff’s prayer was different from that in the originalplaint. The judgment appealed from seems therefore to have beenright and must be affirmed, and this appeal must be dismissed with costs.
Koch A.J.—I agree.
Appeal dismissed.