047-NLR-NLR-V-40-DE-SILVA-et-al.-v.-SANGANANDA-UNANSE–et-al.pdf
162
SOERTSZ J.—de Silva v. Sangananda Unarise.
1938Present: Abrahams C.J. and Soertsz J.
DE SILVA et. al. v. SANGANANDA UNANSE et al.
144-5—D. C. Galle, 34,729.
Jus retentionis—Partition action—Bona fide possessor—Right to ' compen-sation—Effect of decree.
Where in a partition action compensation for improvements due to abona fide possessor, is determined, he has the right to retain possessionuntil the compensation due to him is paid.
It is not necessary expressly to reserve the jus retentionis in the decree.
PPEAL from an order of the District Judge of Galle.
L. A. Rajapakse, for the fifth and sixth defendants, appellants.
H. V. Perera, K.C. (with him E. B. Wikramanayake), for the seconddefendant, respondent.
N. E. Weerasooria (with him V. Gooneratne), for eighth and ninthdefendants, respondents in appeal No. 144.
N. E. Weerasooria (with him V. Gooneratne); for eighth and ninthdefendants, appellants in appeal No. 145.
H. V. Perera, K.C. (with him E. B. Wikramanayake), for second' defendant, respondent in appeal No. 145.
Cur adv. vult.
January 28, 1938. Soertsz J.—
In this case two appeals have come before us. The first of these is atthe instance of the fifth and sixth defendants, and the second, eighth, andninth defendants are the respondeiits. The second appeal is made bythe eighth and ninth defendants, and is directed against the seconddefendant alone.
SOERTSZ J.—de Silva v. Sangananda Unanse.
163
Both appeals arise from an order of the District Judge of Galle in whichhe held that the second defendant is entitled to draw the sum of Rs. 800Ipgg a sum of Rs. 50 which, by consent of all the parties concerned, went tothe first defendant. The Rs. 800 was the amount of compensationtendered by the Executive Committee of Local Administration actingunder delegation by His Excellency the Governor, in the course ofacquisition proceedings under Ordinance No. 3 of 1876 in respect ofcertain buildings standing on a lot of land acquired for public purposes.
It is common ground that these buildings were put up by a BuddhistMonk Ratnajoti with funds he had raised among friends and relations,and that the buildings were to be used as school rooms for the children ofthe village. At the time the buildings were erected, the land on whichthey were built was held in common by a number of co-owners. Theyconsented to or, at least, acquiesced in these operations, and, therefore,the builder or builders occupied the position of bona fide improvers, and assuch became entitled to compensation and to the jus retentionis inrespect of the buildings.
In this state of things, the entire land on which the buildings stood wasmade the subject of partition case D. C. Galle 10,541. Final decree wasentered on March 11, 1934, and the portion of land on which the buildingstood was allotted as lot No. 6 to one Bilinduhamy, the seventh defendantin that case, “ subject to the payment of Rs. 175.63 to the seconddefendant ”. It was further ordered in the decree “ the seventhdefendant to pay Rs. 600 to Mudaliyar Gooneratne for the school ”.The evidence shows that at the date of the decree Gooneratne was themanager of the school carried on in these buildings. That fact estab-lishes that Ratnajoti put up these buildings not for himself, but to servethe children of the village.
Now, the contention of the fifth and sixth defendants-appellants is thatthe final decree entered in the partition case resulted in Bilinduhamyobtaining an absolute title to lot No. 6, and to the buildings on it, that isto say, a title free from any right which any person may have had over it.It was a title free from the jus retentionis which had accrued to theimprovers. The jus retentionis could have been conserved in the decree,but it was not, and it was, therefore, wiped out. All that remained tothe improvers was the right to claim compensation from Bilinduhamy,and that was only a personal claim they had against her and her estate.That is the argument advanced' on behalf of the fifth and sixth defendants-appellants, and it is claimed in consequence, that when Bilinduhamyconveyed in 1919 to James de Silva this lot of land, he obtained a cleartitle to it and to the buildings on it, and that by virtue of his last willand testament that title has devolved on the fifth and sixth defendants,who are thus the owners of these buildings, and as such, entitled to thecompensation tendered.
It is admitted that Bilinduhamy did not pay the Rs. 600 which she wasordered to pay for these buildings. Her successors-in-title have notpaid it. If, therefore, the Rs. 800, or rather the Rs. 750 is to be pa^d tothe fifth and sixth defendants, they get a windfall, and those who spentand laboured to put up these buildings go unrecompensed. This is aconsummation devoutly to be avoided unless the law clearly compels us
164
SOERTSZ J.—de Silva v. Sangananda Unanse.
to it. It is contended that that is the inevitable result of the jus retentionisnot being reserved in the final decree. I am not satisfied that thiscontention is sound. Jayewardene in his Commentary on the PartitionOrdinance says at pp. 129 and 130, that “ the effect of the authoritiesdealing with claims to compensation for improvements in partitionactions …. may thus be summarized :
All claims for compensation for improvements whether by co-ownersor bona fide possessors must be asserted in the partition action as otherwisethey are .liable to be extinguished by the final decree.
The Court- should decide whether any person, co-owner or bona fidepossessor, has made any improvements.
.3, The Court should also assess the value of such improvements.
4. … .
5
6. In the case of bona- fide possessors they will be entitled to be paid thecompensation due to them and to retain possession of the improvements untilsuch Compensation is paid.
7
39
' 10. .In a partition' action when the compensation due to a co-owner isascertained, he has the right to retain possession of the portion he has improveduntil the compensation due to him is paid ” . . . .,
In this instance, the requirements in paragraphs 1, 2, 3 above werecomplied with in the partition case. The results indicated in paragraphs6 and 10, therefore, followed, and the improver was entitled to the jusretentionis when he was decreed entitled , to compensation. It was notnecessary expressly to reserve the jus retentionis in the decree. It was alegal implication of the declaration in the decree that the improver wasentitled to compensation. Moreover in this case the improver wasauthorized by the soil owner to continue in possession, and he or ratherhis representatives, were in possession of the buildings at the time thequestion of compensation arose in these proceedings inasmuch as theschool was being conducted, in them. They were persons interestedin the allotment of the compensation tendered, for section 7 of the LandAcquisition Ordinance provides for claims to compensation for all“ interests ”, in the land sought to be acquired. A jus retentionis is suchan interest.
It is next contended that these claims of Ratnajoti’s representativescannot be set up against the fifth and sixth defendants-appellants becauseBilinduhamy conveyed to their father, their predecessor in title, theentirety of the lot and buildings free of encumbrances. This contentiontoo, I fear, is unsound. The correct view, if I may say so with respect,appears to be that taken by Clarence J. in Appuhamy v. Silva He said :“ If the first defendant by making improvements acquired a right toretention against Thambugalla Vidane, the mere conveyances by whichtitle has passed from Thambugalla Vidarie to plaintiff do not imperil hisposition. He is entitled to hold his possession till compensated by theowner for the time being. Nor is there any hardships in this so far as thepurchaser is concerned, for a prudent man before buying land makes
> l s .0. ft. 71.
SOERTSZ J.—de Silva v. Sangananda Vnanse.
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inquiry as to actual occupiers and the terms on which they hold”. Inthis instance, the fifth and sixth defend an ts-appellants were “ the ownersfor the time being ”, namely, the time of the acquisition, and they wereentitled to receive the amount tendered, but were liable to pay Ratnajoti’srepresentatives at that time, the compensation which the partition decreedirected the fifth and sixth defendants’ predecessors-in-title, Bilinduhamy,to pay. The fifth and sixth defendants-appellants are, therefore, entitledto Rs. 150 and Ratnajoti’s representatives to Rs. 600. It was urged,however, that this sum of Rs. 150 too should go to these representativesbecause Rs. 750 was the sum at which Ratnajoti’s improvement wasvalued at the date of the acquisition. I do not think this is right. Thereis no sufficient evidence, and there is no finding that Ratnajoti or thosewho came after him enhanced the value of the improvement after thedecree in the partition case. They can, therefore, fairly ask only for theamount at which the compensation due was fixed in that case as betweenthe soil owner and the improver. If for instance Bilinduhamy was ableto find a purchaser wishing to pay Rs. 800 for these buildings she was>entitled to sell them and out of the proceeds of sale to pay Rs. 600 for theschool, pocket the Rs. 200 for herself, an£ request those in occupation toquit the buildings. What happened when these acquisition proceedingswere launched was not different. A purchaser willing to pay Rs. 800 forthe building, was forthcoming
The Rs. 150 due out of the compensation to the fifth and sixth defend-ants cannot, however, be paid out to them, because they held the landwhich was acquired, subject to a fidei commissurh. I therefore directthat in terms of section 37 of Ordinance No. 3 of 1876 that this sum shallbe retained in the District Court of Galle to abide its further orders inaccordance with that section.
In regard to the sum of Rs. 600, it was argued that it should not be paidout to the second or the eighth or the ninth defendants, because thepartition decree made it payable to Mudaliyar Gooneratne. In my viewthis submission is devoid of substantial merit. The evidence in the casemakes it clear that Mudaliyar Gooneratne was figuring in the partitioncase as the manager of the school. The compensation is really destinedfor the benefit of the school. Mudaliyar Gooneratne’s heirs or his suc-cessor in thie managership of the school have not made a claim. Theeighth, ninth, and second defendants claim in opposition to one another asthe persons occupying the position of Ratnajoti who built these schoolrooms in his capacity of incumbent of Bataduwe Vihare. The questionthen is, who the present incumbent of the vihare is. That question iseasily answered. The second defendant claims to be the incumbent on adeed given to him by Ratnajoti. The deed has been produced, and whatis more, the ninth defendant who filed a joint statement of claim with theseventh and eighth defendants admits that the second defendant is theincumbent. The Rs. 600 should, therefore, be paid to the second defend-ant but, of course, he will hold it for the school.
There is one other matter to which reference.is necessary. The eighthand ninth defendants complained that without an issue being raised onthe point, the trial Judge found that the second defendant who in his
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SOERTSZ J.—Nugatoela v. Municipal Council, Kandy.
evidence claimed to be Ratnajoti’s senior pupil, was that in fact. That,I think, is a well founded complaint, and it must be clearly understoodthat this sum of Rs. 600 is awarded to the second defendant not becausehe is Ratnajoti’s senior pupil—he may or may not.be—but because heis admittedly the incumbent of Bataduwa Vihare.
I set aside the order of the District Judge and make order that Rs. 600be paid to the second defendant as incumbent of Bataduwa Vihare to beutilized by him for the school; and that the balance Rs. 150 be dealtwith by the District Judge under section 37 of the Acquisition Ordinance.
In regard to costs, the eighth and ninth defendants have failed againstthe second and the fifth and sixth defendants, and must pay their costs inboth Courts. The fifth and sixth defendants have failed in respect offour-fifths of their claim against the second defendant, and they must payhim some costs of their appeal against him. I think it will be sufficientif they pay him half the costs of appeal. As between them, I make noorder as to costs in the lower Court, as the trial Judge-made no suchorder.
Abrahams C.J.—I agree.
Appeal allowed.
O