GARVIN S.P.J.—Dias v. Silva.
1932Present: Garvin S.P.J. and.Akbar J.
DIAS et a l. v. SILVA.
57—D. C. Kalutara, 15,156.
Contribution among co-debtors—Discharge of mortgage by one—Irhpensautiles—No real charge on -property—Remedy of co-debtor.
Where one of the several co-debtors of a debt, secured by a mortgage,has discharged the debt, the property does not become burdened witha real charge in favour of the debtor who has paid the debt, for aproportionate share of the contribution due from the others.
^^PPEAL from a judgment of the District Judge of Kalutara.
N.E. Weerasooria (with him Amaresekere), for appellant.
H. V. Perera (with him Rajapakse), for respondent,
March 10, 1932. Garvin S.P.J.—
The facts material to this appeal are these. One Clementina de Silvawas the owner of four distinct allotments of land. She died intestateleaving her surviving her husband Comelis and three children, Harriet,Vincent, and Grace. Harriet and Vincent joined their father Cornelis in
GARVIN S.P.J.—Dias V. Silva.
executing a conveyance of all their interests in favour of Grace in twoof these allotments. Prior to the execution of this conveyance twomortgages had been executed in the year 1919; by the first three of theseallotments and by the second the fourth allotment were charged withmortgages in favour of one Mr. Seneviratne and a Mrs. de Liverarespectively. Grace died in July, 1920, and her • interests, in the twoallotments, which belonged exclusively to her by reason of the transferearlier referred to, devolved as to a half on her surviving husband the firstdefendant, and as to the remaining half on her other intestate heirs. OnMay 7, 1923, a hypothecary decree was entered in favour of Seneviratnein respect of the mortgage in his favour. To satisfy this decree and theoutstanding debt on the mortgage of Mrs. de Livera, a further mortgagewas executed on August 21, 1920, over all the four allotments of land,hereinbefore referred to, by Cornelis Vincent, and Harriet in favour ofone Perera and the same parties on August 9, 1923, executed a secondmortgage charging the same premises also in favour of Perera. Boththese bonds were put in suit. Decree was obtained by Perera and thesale of the premises was fixed when the plaintiff Harriet paid the wholedebt and thereby satisfied the hypothecary decree entered in the case.
The present action was brought by Harriet against the first defendantand also as against the second defendant, who, subsequent to thepayment above referred to, purchased frbm first defendant a half share ofthe two allotments which once belonged to Grace. The learned DistrictJudge gave judgment for the plaintiff as against the first defendant buthe has dismissed the action so far as it related to second defendant.
Upon this appeal it was argued that the second defendant was liable topay the debt, and further that the premises purchased by him from thefirst defendant were charged with a liability to pay a proportionate partof the amount which the plaintiff had expended in the payment and- discharge of the hypothecary decree which bound the premises.
It is, of course, sound law that one of several co-debtors may pay adebt jointly due by them and obtained cession of action from the creditor.The action on these bonds proceeded.to the stage of judgment and decreeand the effect of the payment made by the plaintiff was to discharge theliabilities arising from the judgment. Nevertheless, the position of theplaintiff is at least as good as that of one of a number of debtors who haspaid without demanding a cession of action. Such a person is notdebarred from claiming in his own right from each <?f his co-debtors ashare of the debt for which each is liable. (See Sande’s Cession of Action;Sande’s translations pp. 123 and 124). On this basis alone plaintiff’sclaim as against the first defendant for contribution is well founded, butthis principle is insufficient to entitle the plaintiff to claim contributionfrom the second defendant, who, as I have already said, purchased thepremises after the burden created by the mortgages referred to and the-decree entered thereon had been removed by payment and discharge.Counsel for the appellants has therefore been compelled to seek anotherbasis for his claim. He contends that the discharge of the mortgagedecree was an improvement and that Harriet, who paid the money,which went in discharge of it is an improver and as such entitled to theright to retain possession of the premises until she is compensated.
GARVIN S.P.J.—Dias v. Silva.
In Nicholas de Silva v. Shaik Ali1 it was held that money which a bonafide possessor pays in discharge of a mortgage which encumbered theproperty when it came into his hands is utilis impensa, and it is upon theauthority of this judgment that the contention is based that such apayment is utilis impensa and that Harriet was entitled to the jusretentionis. But the question whether the discharge of a mortgage isutilis impensa is not altogether free from doubt, and there are casesin which a doubt has been expressed as to whether the improvementscontemplated in the branch of the Roman-Dutch law relatingto compensation for improvements include anything more than actualmaterial improvements to the land or premises in respect of which claim ismade; but however that may be Nicholas de Silva v. Shaik Ali (supra)is not an authority for the proposition that a claim for improvementmade by' him is maintainable by one co-owner as against a purchaserfrom another co-owner.
The current of authority appears to be definitely in the oppositedirection. There are several judgments, of which Silva v. Silva2 is one, inwhich the view has been expressed that the full rights of an improvingco-owner could only be asserted in a properly constituted partition action.So also is the case of Wickramaratne v. Don Bastion* and the judgmentof Tennis J. in Wijesuriya v. Wijesuriya * “ I am quite unable ” said theJudge “ to see how one co-owner can, by making improvements withoutthe consent of his co-owners, claim to be compensated therefore unlessthere is a partition action in which everybody is to be considered ".
There are obvious difficulties in the way of treating a co-owner, whohappens to make improvements on the common estate which may perhapsextend beyond the fractional share to which he may be entitled, as a persQnwho is an improver within the meaning of the Roman-Dutch lawfor compensation for improvements. It is of course possible to conceiveof cases where an improving co-owner by reason of consent or acquiescenceon the part of his fellow co-owners may be brought into such a relation-ship with his other co-owners as to,-give him a right to some measure ofcompensation. This, however, is not such a case nor does it appear to bea case in which improvements have been made such as are contemplatedby section 2 of the Partition Ordinance, for those manifestly are materialimprovements to the land which it is sought to partition. Nor is this aproceeding under the Partition Ordinance. This is merely a case in whichone of a number of co-debtors of a debt secured by a mortgagee has paidand discharged the debt and that as a consequence the premises undermortgage have been released from that burden. Her remedy is againsther co-debtors. She has obtained a judgment for the proportionateshare of that debt payable by first defendant her co-owner.
I am aware of no principle on which it can be contended that the seconddefendant is under any liability or any joint liability with the firstdefendant to pay a share of the debt proportionate to the interest whichhe has acquired nor do I know upon what principle of law it can be heldthat the premises which were clearly free of the mortgage which theplaintiff paid off at the tiipe of his purchase became burdened with a real
3 4 Bal. Notes of Cases 41.
« 6 C. W. R. 14C.
i 1 N. L. R. 288.2 15 N. L. R. 79.
LYALL GRANT J.—Chairman, M. C„ Colombo v. Abdul Rahim. Ill
charge in favour of the plaintiff for the proportionate share of the contri-bution which his predecessor in title the first defendant was under aliability to pay.
The appeal will stand dismissed with costs.
Akbar J.—I agree.
DIAS et al. v. SILVA