012-NLR-NLR-V-71-THE-GOVERNMENT-AGENT-KALUTARA-and-another-Appellants-and-K.-P.-GUNARATNA-and.pdf
58
Government Agent, KaltUara v. Gunaratna
Present: Manicavasagar, J., and Samerawlckrame, J.
THE GOVERNMENT AGENT, KALUTARA, and another.Appellants, and K. P. GUNARATNA and others, Respondents
S. C. 92-93 (Inly.)fI960—D. C. Kalutara, 1163 jMR
('v-owners—A co-ouner's application for licence to manufacture arrack on thecommon land—Whether another co-oicner can object—Addition of parties—Civil Procedure Code, e. 18.
A co-owner, even though he may not have the consent of his co-owners, isentitled to use tho common land reasonably for the common advantage, inproportion to his share and for the purpose for which the land is intended.
Where a land owned in common has been used by all the co-owners forseveral years as a distillery and warehouse for the manufacture of arrack, a co-owner is not entitled to object to the issue and/or renewal of a licence in favourof another co-owner to manufacture arrack at the distillery. In such a case,the affected co-owner is entitled to be added as a party in terms of section 18of tho Civil Procedure Code.
MANICAVASAGAR, J.— Government Agent, Kalutara v. GunarcUna
69
Ap
PEALS from an order of the District Court. Kalutara.
L. de Silva, Crown Counsel, for the 1st defendant-appellant inS. C. 92/66.
O. P. J. Kurukulatruriya, for the intervenient petitioner-appellant mS. C. 03/66.
N. E. Weerasooria, Q.C., with W. D. Ounasekera and N. E. Weera-sooria (Jnr.), for the plaintiff-respondent in both appeals.
Cur. adv. vult.
March 19, 1967. Manicavasagar, J.—
Appeal 92/66 is by the Government Agent, Kalutara (the 1stdefendant), from the order of the District Judge of Kalutara restraininghim from issuing and/or renewing a licence in favour of SiritillekeGnnaratna or his nominee to manufacture arrack at the Siri LanciaDistillery referred to in the plaint, and to work the said distillery andwarehouse for any period from 1st April, 1966 without the consent andapproval of the plaintiff-respondent until the present action is heard anddetermined.
The plaintiff-respondent and Siritilleke Gunaratnaare 2 of 9 co-ownersof the land on which the distillery and warehouse stand. These buildingswere erected about 1935 by G. R. P. Gunaratna, the lessee, according toan agreement of lease between him and the curator of the 9 minor co-owners. Gunaratna had the option under the agreement to remove thebuildings he had constructed at the termination of the lease in 1950, buthe did not exercise the option. The distillery and the warehouse hassince 1950 been used by the co-owners for the manufacture of arrack, theplaintiff-respondent being a share-holder-in the business, until 1964, whendifferences arose between him and some of the co-owners. Consequent .on these disputes, the plaintiff-respondent has instituted more than oneaction, the instant action is one where he seeks inter alia a declarationthat the appellant is not entitled to issue or renew a licence in favour ofSiritilleke Gunaratna to manufacture arrack at the distillery from 1stApril, 1966 without his consent and approval, and a permanent injunctionembodying the aforesaid declaration.
GOMANICAYASAOAlt, J.—Government Agent, Kalvtaru v. Gunaratna
The issue which is before us for determination involves a considerationof the rights and obligations of co-owners under the Roman-Dutch Lawwhich applies to this topic, and in particular whether a co-owner isentitled to obtain a licence to manufacture arrack on the common landwithout the consent of his co-owners. The law on this subject is nowwell settled and has been consistently followed since the judgment ofBonser C.J. in an unreported case from the District Court of Galle, wherecommenting on a passage from Voet (10.3.7) he said :
By this I understand that it is not competent for one co-owneragainst the will of the other to deal with the property in a mannerinconsistent with the purpose for which the joint ownership wasconstituted, but I do not understand the law to prohibit one co-ownerfrom the use and enjoyment of the property in such manner as isnatural and necessary under the circumstances.”
The only case I recall which is out of line with this proposition is inthe judgment of Pereira J. in Goonewardena's case 1 where the learnedJudge, referring to Silva's case 2 and Siyadoris’s case 3 which followed thedictum of Bonser C.J.. observed:
“ It hardly means that one co-owner can in defiance of an expressedobjection by the others put up a building on the common property.’.
This decision whilst favourable to the respondent stands by its ownauthority ; it is broadly stated and runs counter to established principlesthat have been consistently followed, that it can be overlooked.
The first principle is that any act of a co-owner rests for its legality onthe consent of the remaining co-owners, either expressed or implied(2 S. C. C. 166): but the rigour of this rule has been mitigated by theexception that a co-owner even though he may not have the consent ofhis co-owners is entitled to use the common land reasonably for thecommon advantage, proportionate to his share for the purpose for whichthe land is intended. Moncrieff J. in Silva's case 4 said :
“ I would not say that in no case can a co-owner build withoutexpressed consent. Building might be a natural and necessary act. Ifthe land were fit for paddy, I conceive that one co-owner could notforbid another to cultivate without reasons given, nor could consent berequired for an act which is a natural or necessary element of theirco-ownership.”
This leads to the second principle : joint property cannot be converted toother purposes, other than those for which it is intended, nor can it beapplied to new uses, nor its character changed without the consent of allthe proprietors, and if anything of the kind is attempted by one of theproprietors, he can by interdict be compelled to restore the property toits original condition. (Voet 10.3.7).
* (1914) 17 N. L. R. 287.* (1896) 6 N. L. R. 275.
« (1903) 6 N. L. R. 225.4 (1903) 6 N. L. R. 225 at 229.
MANICAV AS AGAR, J.—Government Agent, Kalulara v. Gunaratnn
61
la the present case the facts are much stronger than in the run of casesin our law reports. Here we have a land which the curator of theminors with the permission of the Court leased for a term of 15 yearswith the stipulation that a distillery and warehouse be built: theoo-owners after the lessee had quit continued for several years to use thedistillery and warehouse for tho manufacture of arrack : the buddingswere intended and used by the Co-owners for this purpose: in thissituation a co-owner cannot be heard to object to an user which is “ anatural and necessary element of co-ownership ”, an user which he hadacquiesced in over the years, nor is his consent a necessary pre-requisitefor the use of the common land for the purpose for which it was intended.The grant of a licence in these circumstances Jto a co-owner is not awrongful act and the plaintiff-respondent has no just cause for complaint:for this reason alone the order of the Judge restraining him by injunctionis wrong._
Appeal 93/06 is by Siritilleko Gunaratna from the order of the DistrictJudge refusing his application to be added as a party to the action. Theapplication was resisted strongly by the plaintiff-respondent in theoriginal Court, and sensibly not opposed before us.
The plaintiff claims that the defendants and Siritilleke Gunaratna haveacted in concert in obtaining a licence for 1985 to manufacture arrack,without his consent, that they have acted wrongfully and unlawfully,and he seeks to restrain the 1st defendant from issuing a licence to Siri-tilleke from 1st April, 1966. Is his presence therefore necessary in orderto enable the Court effectually and completely to adjudicate upon andsettle all the questions involved in the action ? We have in the plaintan allegation of collusion against the intervener ; had this been the onlyassertion I would rule against the application : but we have also a claimfor relief which would affect him in the enjoyment of his legal rights :this is a sufficient reason to grant the application, though this is not theonly rule which would enable the Court to act under Section 18.
This appeal too is allowed. The orders made by the DistrictJudge in both matters are set aside : in the first the interim injunctionis discharged, and in the second the intervenient should be added asparty-defendant.
The plaintiff-respondent will pay the costs of his appeal, and of. theinquiry in the original Court to each of the successful appellants.
•Samebawtckramb, J.—I agree.
Appeals allowed.