071-NLR-NLR-V-36-THAMBOO-v.-ANNAMMAH-et-al.pdf
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MACDONEL.L. C.J.—Thamboo v. Annammah.
1934Present: Macdonell CJ.
THAMBOO v. ANNAMMAH et al.
98—C. R. Jaffna, 965.
Servitude—Co-owners—Partition of land by deed—Lane reserved for commonuse—Sale of lot by one co-owner—No title to right of way.
Where a land held in common was partitioned by deed among the co-owners, a strip of land being reserved for their common use as a lanegiving access to the several lots ; and where one of the co-owners solda portion of his lot together with “ the right accruing thereto in the lanereserved for common use as a thoroughfare ”—
Held, that the conveyance did not give title to any portion of the soilof the lane or to a right of way over it.
A co-owner cannot grant a servitude over the common propertywithout the concurrence of the other co-owners.
A PPEAL from a judgment of the Commissioner of Requests, Jaffna.
N.Nadarajah, for defendants, appellants.
S. Subramaniam, for plaintiff, respondent.
Cur. adv. vult.
November 8, 1934. Macdonell C.J.—
The points of law in this case are best introduced by a description ofthe piece of land giving rise to them. This piece of land was boundedon the east by a road, and it extended thence westward and thenmade a right angle to the south. Its owners partitioned it by deedNo. 19,231 of May 17, 1926, by which they severally took lots numbered1 to 8 but reserved as property in common a strip of land as a lane givingaccess to the several lots. This strip reserved as a lane ran from the highroad on the east towards the west keeping south of lots 1 to 4, after whichit made a right angle to the south having lots 5 to 8 opening into it there.At the elbow making a right angle to the south, the partitioned landimpinged on another piece of land called A to the west of and quitedistinct from it, and owned by a person or persons other than thepartitioners under deed No. 19,231, but with one corner abutting on theelbow of the lane which those partitioners had retained in common,Westward again of this lot A was a lot C owned, it and the house on it,by plaintiff as his residing land.
Plaintiff had bought in 1922 an undivided half share of A, the land tothe east of his residing land C; he thus became co-owner of a land abutting, on the common lane of the partitioners. One of these partitioners, Jacob,entitled under the deed No. 19,231 to a quarter of the land partitionedhad received as his share lot 8 of 7 lachams in the southern extremity ofthe land partitioned and lot 2 of 3 lachams towards the eastern end ofthat land. To get to Jacob’s lot 2 from the high road on the east, youwould only have to go a short distance along the common lane, well short( of where the lane, making its elbow, abuts on lot A. In 1927, the plaintiffon deed No. 13,509 bought from Jacob the western portion, in extent1 lacham, of this lot 2; this 1 lacham portion is called lot B. Plaintiff’sposition now is this. He has lot B opening on to the lane towards its
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eastern end and not far from the high road. He has also a half share of A,quite distinct from the partitioned land, which lot A has one of itscorners abutting on the lane at its angle, and, adjoining A to the west,plaintiff has his original residing land C.
Plaintiff in this case claims that the deed No. 13,509 selling him lot B(the 1 lacham out of the lot 2 which fell to Jacob on the partition underdeed No. 19,231), gave him a portion of the lane reserved in common—aportion of the whole lane—and so a right of using that lane in its entirelength for foot passage and carts, whereby he would have access alongthat lane to lot A where it abuts on the lane and through lot A to hisresiding land C further west. Looked at the other way, he claims theright to go from his residing land C through his undivided half of A intothe lane and along it to the high road on the east. In his plaint he claims,paragraph 4, to be entitled to the use of the lane by virtue of owning lot B,and he also asks, paragraph 6, for a declaration that he is entitled to usethe lane to have access to lot A, and through it of course to lot C hisresiding land, and to restrain the defendants from interfering withsuch use by him of the lane. In paragraph 7 he asks as an alternative fora declaration that the lane is a way of necessity to the high road fromlot A, and therefore of course from his residing land lot C. The defendantsin this action are the partitioners on deed No. 19,231 and their successorsin title.
The learned Commissioner has made a careful examination in loco ofthese lands, recording in the judgment what he found there. He finds asa fact that there is no justification for asking for a cart road from lot Aalong the lane to the high road to the east. He also finds as a fact thatto the west of plaintiff’s residing land C—right away, that is, from the laneand the partitioned land—there does exist a rough track, called in the planproduced a “ channel ”, along which the owner of lot C, the plaintiff, couldget to the high road. These are findings on fact which I have to accept.The learned Commissioner says “ I hold that the plaintiff is not entitledto a right of way by prescription or to a way of necessity to lot A over thelane ”.
If the plaintiff is to succeed then in obtaining a right of way from Aalong the lane to the high road on the east, he must do so by the terms ofthe deed No. 13,509 by which he purchased lot B.
That deed 13,509 is a sale by Jacob to the plaintiff of a piece of landdescribed as follows:—“All that extent of 1 lacham varagu culture to thewest along with the cultivated and spontaneous plants thereon (butexcluding the house) and the right accruing thereto in the by-lane reservedfor common use as a thoroughfare to get to my land and other lots fromthe road on the east out of all that piece of land in extent 3 lachams ofvaragu culture and 12 kulies situated at Chundikuli Parish, in the Districtof Jaffna, (in) Jaffna, Northern Province, called * Aththiyadyvayal
* Mavilankaiaddyvayal *, ‘ Pulam and other lots to which I am entitledby right of possession and which said 1 lacham varagu culture is boundedon the east by the remaining property belonging to.me, north by theproperty of Thangaponnu, widow of Sinnatamby, west by the property ofTheresa Umma, wife of Edwin, and south by the aforesaid by-lane”.The question is, what is the meaning to be given to these words? The
MACDONEUL CJ".—Thamboo v. Annammah.
learned Commissioner in his judgment says what Jacob sold was “thatdivided extent of 1 lacham varagu culture and the right and title belongingthereto out of the by-lane. ” He adds, “ I think this description is sufficientto convey to the plaintiff a proportionate undivided share in the strip ofland that forms the by-lane. The deed No. 19,231 shows that Jacob wasentitled to a £th share of the land partitioned for which he received lots2 and 8 of about 11 lachams in extent. The effect of the partition is thathe held an undivided Jth share of the by-lane as appurtenant to this11 lachams in extent. Then what he conveyed to the plaintiff amountsto an undivided l/44th of the strip of land that forms the by-lane subjectto the condition that the common possession of the strip of land is to be asa by-lane and nothing more. In my opinion, on the strength of this rightplaintiff is entitled to take carts along the lane in question from his landA, to go anywhere, where he has a right to go ”.
Now I would hesitate to say that the words “ the right accruing in theby-lane reserved for common use as a thoroughfare ” were apt to conveyan ownership in a portion of the soil of the lane. They seem to me ratherto be an attempt to convey a right of way over that lane, a servitude.But supposing that I am wrong and that they are apt to convey a rightto the soil of the lane, then we must take into account the words thatfollow “ out of all that piece of land in extent 3 lachams and 12 kulies ”.That piece of land is lot 2 clearly, towards the eastern end of the lane.True, the deed goes on to say “ and other lots to which I am entitled ”but in the absence of any reference to lot 8 at the south end of the laneit is difficult to hold that it is a right “ accruing …. out of ”lot 8; nothing out of lot 8 was ever sold to the plaintiff. If then thesewords convey ownership in the soil of the lane, it can only be ownershipin that part of the soil of the lane between lot B, the 1 lacham out of lot 2sold to the plaintiff, and the high road on the east. It cannot be a portionof the soil of the lane further west or south, in other words that portionof the lane which could give access to lot A. The right acquired by theplaintiff to the soil of the lane under this deed No. 13,509, if its words arecapable of giving such a right, will only be a right to that portion of thesoil which connects the 1 lacham sold out of lot 2 with the road on theeast, it would not give him the right to any portion of the soil west orsouth of that point.
One of the reasons why these words are not apt to convey ownershipin a portion of the soil is that such a right could not be described as one“ accruing thereto …. out of all that piece of land in extent 3lachams.” The right to a portion of the soil does not “accrue” out ofthe right to another portion; it arises because it has been itself trans-ferred. Jacob could have sold the whole of that lot of 3 lachams and notmerely the portion B which he did sell, without any right “ accruingthereby ” out of that piece of land to the purchaser; Jacob’s rights to one-fourth of the soil of the lane as co-owner would have remained intact, forthe sale of the lot does not necessitate the sale of any portion of the soilof the lane. This seems clear, and if authority is needed it is furnished bythe case of Yoosoof and others v. Muttaliph*. The facts there were notunlike those of the present case. A land had been partitioned but a
> 13 c. L. Itcc. in.
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certain portion consisting of a road and two latrines had been left unallotted,the decree containing no reference to them. A party who was successorin title to one of the persons in whose favour the partition decree had beenentered, claimed the right of user of the unallotted portion as being a rightappurtenant to the allotted portions, and it was held that his claim wasnot admissible and that the unallotted portion continued to remain thecommon property of the original co-owners, the use of which was referableto the unextinguished common ownership and to that alone. The factsin the present case are that the parties so far from leaving the land un-allotted did expressly allot it to themselves by their partition deed.But their rights to it arise from their having so allotted it to themselves,they are not “ rights ” accruing to them from ownership of one or more ofthe lots into which the land was divided. I am satisfied therefore thatthese words in deed No. 13,509 do not convey an ownership to any portionof the soil of the lane.
Did they then confer a servitude, a right of way? Assuming for thesake of argument that they did, then that can only be a servitude infavour of lot B the 1 lacham conveyed by deed No. 13,509, the dominanttenement, over a lane going eastward from it to the high road, which bitof lane will be the servient tenement. It cannot be a right of way fromplaintiff’s half share in lot A which he acquired otherwise than by deedNo. 13,509 and which therefore cannot be the dominant tenement underthat deed. An English case was cited (Harris v. Flower1), which seems inpoint. There a man had two pieces of contiguous ground adjoining oneanother and from one of these, the dominant tenement, there was a rightof way over the next piece of land, the servient tenement. It was heldthat the owner of this right of way did not acquire a right of way from thepiece of ground which he owned contiguous to, adjoining, the dominanttenement, through that dominant tenement, to the servient tenement.The facts in the present case are slightly stronger. Here the plaintiff’stwo pieces of land are not contiguous and do not adjoin, and his right ofway can only be from that one of them B, out of which the right is said to“accrue”, but not from the other A which is quite independent of .any-thing given to him by the deed No. 13,5b9, and cannot possibly be orbecome a dominant tenement by virtue of that deed.
But a further question arises which is this : can a co-owner grant aservitude over a portion of the property owned in common without theconcurrence of his other co-owners ? Jacob was a co-owner with certainother persons of the strip left in common as a lane. There is no suggestionthat they joined in the deed No. 13,509 either when the deed was executedor at any later time. The deed No. 13,509, if it does purport to grant aservitude, is granting a servitude over a piece of land held in commonwithout the concurrence of the other co-owners, and it seems that thelaw does not allow this to be done. Voet, bk. VIII., tit. 4, s. 9. “ Oneof two co-owners cannot properly against the will of the other impose aservitude on an estate which is held in common in undivided shares. ”This seems to make the point perfectly clear and it can be supported bythe passage from Papinian, Digest VIII. 3, 34, “ Unns ex sociis fundicommunis permittendo ius esse ire agere nihil agit ”. Both these authorities
i 91 L. T. 816.
334
Obeyesekere v. Fcmseka.
declare that one co-owner cannot of his own act create a servitude overthe common property but that to do so he must have the concurrence ofhis other co-owner or co-owners. Then the words in the deed No. 13,509are incapable of creating over any part of the lane the servitude claimed,namely, a right way.
The finding of the learned Commissioner on the facts—as also admissionsmade in argument for the appellant—suffice to show that the plaintiffmust have a right of way on foot of necessity from his purchase, theI lacham lot B, over the lane to the high road on the east, but not anyservitude other or in excess of this. The learned Commissioner finds as afact that a right of way for beasts or vehicles over this lane is unnecessary.He has also held on the facts that the plaintiff has a sufficient right of wayto a high road from his lot C, and therefore from lot A also, by means ofthe “ channel ” on the west of these lands. This latter finding is not neces-sary, on the view I take of it, for the decision of this case, but at least itshows that the plaintiff will suffer no practical harm if the right of waythat he asks from A along the lane to the high road on the east is refusedhim, as it must be.
In the result then the words in the deed No. 13,509 relied on by theplaintiff do not give him title to any portion of the soil of the lane and theycannot give him a servitude over any portion of it.
For the foregoing reasons the appeal must be allowed, but with a decla-ration that the plaintiff is entitled to a right of footway of necessity fromlot B along the lane to the high road on the east, but not to any right ofway over that lane other or in excess of this. Otherwise the plaintiff’saction must be dismissed with costs here and below.
Appeal allowed.