071-NLR-NLR-V-15-SINNO-APPU-v.-DINGIRIHAMY-et-al.pdf
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Present: Lascelles C.J. and Wood Eenton J.
SINNO APPU v. DINGIEIH AM Y et ah76—D. C. Galle, 10,688.
Crown grant in favour of several grantees—Vo presumption that the grantwas made in equal shares.
Where a Crown grant in favour of several grantees conveys theproperty to them simpliciter withoutspecifying the respective
shares of the grantees, there is no presumption that the grant wasmade in equal shares.
rpHE facts are fully set out in the judgment of Wood Eenton J.
Bawa, K.C., for appellant.
H. A. -Jayewardene, for the respondents.
Cur. adv. vult.
July 11, 1912. Lascelles C.J.—
This is a partition action in which the plaintiff cTaimed one-fourthof a land called Yakgabaowita on a Crown grant in favour of himself,the first defendant, and two others. The Crown gv.ant is silent as to
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1912. the shares of the grantees. The learned District Judge has inquiredX<asoblxies into the circumstances in which the Crown grant, was issued, and hasC-J. decided that the second defendant is entitled* to five-eighths and theSitmo Appu other defendants each to one-eighth of the property. Against the"•equity of this decision I do not think that any objection can be
taken. But the appellant maintained that, inasmuch as the Crowngrant did not specify the respective shares of the grantees, it mustb' presumed that the grant was made in equal shares, and that under,sections 91 to 99 of the Evidence Ordinance it was not competentlor the District Judge to go behind the terms of the grant- If thetrue meaning of the Crown grant is that the grantees should take in:equal shares, the appellant’s argument, woud be well founded. Butno authority was cited for the proposition that a grant to a pluralityof persons' must be construed as a grant to them in equal shares.' Ido not think that the rules of English law as to the creation .of jointtenancies and tenancies in common are a safe guide in a system oflaw which is so widely differenT'from the English law of real property.The question depends upon the form of the instrument viewed, bythe light of the Roman-Dutch law. ■ The grant purports to be agrant to four persons of the entirety of the land. Such sales arerecognized by the Roman-Dutch law. Voet 19, 1, 1 (Berwick’stranslation 162) states the case of a plurality of persons buyingthe same thing for one price, and lays down that it is hot opento each of them to sue separately' by the action ex empto for thedelivery of his own share of the thing sold on his offering his rateableshare of the price promised; but either all together or one of themwho tenders the whole price must sue for the delivery.- I can see noreason for reading into the grant a term that the grantees are entitledin equal shares, and it seems to me that such a construction ofinstruments such as that under consideration would be attended byserious practical inconvenience. Where, for example, as frequentlyhappens in this eountrv, several persons contribute the purchasemoney in unequal shares, the vendor or grantor might reasonablyrefuse to accept the responsibility of setting put the shares of thepurchasers in the deed or grant; he might fairly insist on makingthe grants to the vendees simpliciter without any attempt .to definetheir respective shares; leaving it to 'them to adjust their shares inaccordance with the agreement between themselves. But" graveinjustice would be done in such, cases if it were held that the deedor grant in' this form conveyed the property-in equal shares.
The appellant, in • effect, asks us to lay down 'that, with regardto instruments such' as that now under consideration, there ispresumption of law that the shares of the "grantees are equal. Noauthority has been cited to us for 'the existence of such a presumption,which, so far as I can' see, has no foundation in any principle ofjustice or in the ordinary course of human conduct and-affairs. Inmy opinion the appeal fails, and should be dismissed with costs.
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Since writing this "judgment we have been referred by Mr. Bawa 18181to the case Buddharakita Terunnanse v. Gunasekara 1 and to the Lascel&es'passage in Nathan’s Common Law of South Africa, vol. II., p. 512.&J*
The former authority appears to me to have no direct bearing on the sinno Appuquestion. It related to the right of one of several lessors to sue v- Dingiri-alone for his share of the rent. The decision that this course couldbe t^kerr -does not necessarily involve an unrebuttable presumptionthat the shares of the lessors must be taken to be equal. Thepassage in Nathan relates to the respective rights and liabilities insolidum of co-principal creditors and co-principal debtors. Theseauthorities have not changed my opinion as to the construction ofthe instrument in. question.
Wood Renton J.— ..
This is an action for the partition of a land of about four acres inextent. The plaintiff-appellant claims for himself a one-fourthshare of the land in suit under a Crown grant date$ August 20, 1894,in favour of himself, the fiist defendant, and two other persons,Wanniachige Adrian and Jagodage Bovina. The Crown grant doesnot specify the share to which each grantee is to be entitled. Thr-appellant contends, therefore, that it passed to the four grantees in'equal shares. The second defendant-respondent is the widow ofAdrian. The other respondents are the children either of Adrianor of Bovina. There was a plea of prescription on both sides, butno issue was framed on that question; there is no finding by theDistrict' Judge in regard to it, and the present appeal must bedecided irrespective of it. The case for the respondents as statedin their answer was that the original owner of the land, JagodageSimon,’ gifted half of it to his daughter Dingihamy by deed No. 11,163dated January 12, 1869, and died intestate about fifteen years agopossessed of the remaining half share, which thereupon devolved onhis four children: the second defendant-respondent, the appellant,the first defendant, and Bovina, each of whom thus became entitledto an eighth. The second defendant-respondent was married incommunity of property to Adrian, who died intestate about six yearsago, leaving as'her children the third defendant, the fourth, fifth, andsixth defendants-respondents, the seventh defendant,, and-the ninthdefendant-respondent. The respondents say that the ' land inquestion was diwel property; that the Crown was entitled only tothe fifth share due by property of -that character, and had noright to. sell the remaining four-fifths share to any one, and thatAdrian was aware of that fact. They prayed, therefore, that theymight be declared entitled to the shares, devolving upon themthrough the title stated in the answer. At^the trial it was admittedthat Jagodage Simon was not the original owner of the property,brit a usufructuary mortgagee under Adrian. Evidence was adduced
» (1895) 1 N, L. B, 906.
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1912.
WoodBenton J.
Sinno Appuv. Dingiri-■homy
on both sides, and the learned District Judge gave judgmentdirecting the partition of the land according to the devolution of titleasserted by the respondents. He held, and the evidence amplysupports the finding, that both before and after the Crown grant theland had been held in accordance with that devolution, and that theappellant himself had acquiesced in its being so held. In supportof this contention, he referred to proceedings held before the Govern-ment Agent in 1893 when part of the land was being acquired for arest-house. The appellant was a party to those proceedings, andacquiesced in the settlement arrived at by the Government Agent—a settlement in which only a one-eighth share was allotted to him.
The case for the appellant presents no merit&, and I am glad to beable to uphold the decision at which, the District Judge has arrived.The Crown grant contains, it is true, no reference to the land acquisi-tion proceedings before the Government Agent, and, as I have 6aid,is silent as to the shares taken by the grantees; but I. have beenunable to find any authority from which it follows that under thesecircumstances it must necessarily be construed as one in favour ofthe grantees in equal shares. I do not think that there is anythingin the case of Buddharakita Terunnanse v- Gunasekara 1 or in thepassage in Nathan’s Common Law of South Africa, vol. II., p. 512,to which the appellant’s counsel referred us, to preclude us fromconsidering the nature of a Crown grant and of the intentionof the parties who apply for and obtain it. Such grants, as we allknow, are made by the Crown without any reference to or concernabout the shares in which the subject-matter of the grant is to beheld. The applicants for the grant settle that question amongthemselves. Under these circumstances, it would, in my opinion,give rise to very serious difficulties in practice if we were todeclare that any such presumption as that for which the appellantcontends in the presence case arises from the vague language ofthe Crown grant- We must look to the sense in which the grantwas interpreted by the parties themselves, and from that point ofview the decision of the District Judge is clearly right.
I would dismiss the appeal with costs.
Appeal dismissed.
» (1895) 1 N. L. R. 206.