Arumugasamy Iyer v. Mutlucumaroo Iyer
Present: T. S. Fernando, A.C.J., and Siva Supraraaniam, J.K.ARUMUGASAMY IYER, Appellant, and K. MUTTUCUMAROOIYER. RespondentS. G. 141/1905—D. O. Point Pedro, G717jLJaffna Matrimonial Rights and Inheritance Ordinance (Cap. 5S)—Section 37—Interestof surviving spouse in estate devolving on minor child—Surviving parent's rightsto claim compensation Jor improvements effected by him—Similarity to theseof a usufructuary.
Section 37 of tho Jaffna Matrimonial Rights am! Inheritance Ordinance roadsas follows :—
“ 37 When tho cstnto of a deceased parent devolves on a minor child, thoSurviving parent may continuo to possess tho samo and enjoy thoincome thereof until such child is married or attains majority.”
Held, that a surviving parent who continues to possess tho estato of a deceasedparent which has devolved on a minor child and enjoys tho income thereof in termsof S. 37 of tho Jaffna Mattimonial Rights and Inheritance Ordinance is notentitled, after tho period of minority of the child has olnpscd, to claim, compen-sation for improvements effected hy him on a land which forms part .of such•estate. In such a ease, tho surviving parent is in the very same position ns ausufructuary as regards his rights of possession of the minor’s property anti■enjoyment of the incomo thereof.
SIVA SUPRAM ANT AM, J.—Arumugaaamy Iyer v. Alullucutnaroo Iyer 137
jA.PPEAL from a judgment of the District Court, Point Pedro.
Ranganalhan, Q.C., with • V. Arulambalam, for the defendant-appellant.
S. Sharvananda, for the plaintiff-respondent.
Cvr. adv. vult.
October 30, 1967. Siva Sopramaniam, J.—
The question that arises for decision in this appeal is whether a survivingparent who continues to possess the estate of the deceased parent whichhas devolved on a minor child and enjoj's the income thereof in terms ofS. 37 of the Jaffna Matrimonial Rights and Inheritance Ordinance(Cap. 5S) (hereinafter referred to as the Ordinance) is entitled toclaim compensation for improvements'effected by "him on a land whichforms part of such estate.
This was an action for a declaration of title to a share of a piece ofland called Kaluvanuvayadi described in the schedule to the plaint anddepicted on survey plan No. 243 dated 25.3.1962 and to the entirety of thebuildings standing on lot 4A thereof. The following facts were commonground :—The parties are governed by the provisions of the Ordinance.The defendant’s wife had been entitled to 1/144 share of the land inquestion and on her death that share devolved on Balasubraman3ra Iyer,her only child of the marriage, who was then about 3 years of age.Balasubramanya Iyer was also entitled to another 1/144 share by rightof inheritance from his grandfather. He continued to reside with thedefendant and was looked after and maintained by him. The defendantwas in possession of lot 4A of the said land in lieu of the 1/72 sharewhich belonged to his son. Under S. 37 of the Ordinance the defendantwas entitled to possess and enjoy the income only from the share whichhis son inherited from his mother. On the said lot 4A, between theyears 1933 and 1955, the defendant put up buildings to the value ofabout Rs. 25,000. The defendant’s son died in 1956 but the defendantcontinued to be in possession of the said lot 4A and the buildingsstanding thereon even at the date of the present action.
The parties were not agreed as to whether the defendant’s son hadattained majority at the time of death but it was conceded that, if he hadnot, he would have attained majority in 1957. His interests in the land inquestion devolved on his maternal grandmother who, by deed No. 7350dated 10.2.1960, donated the same to the plaintiff. The plaintiff insti-tuted this action as the defendant refused to deliver possession of the saidlot 4A and the buildings standing thereon to him. The plaintiff alsoclaimed certain other undivided shares in the land through other sources.The trial Judge entered judgment in favour of the plaintiff and thedefendant has appealed.
13S SIVA SUPRA MAXI AM, J.—Arumugasamy Iyer v. JUuttucumaroo Iyer
At tho trial, the defendant set up alternative defences. He alleged thatlot 4A on which the buildings stood was not part of the land called Kalu-vanavayadi but formed a part of another land called Kalivilappu ofwhich he was the sole owner. He claimed to be entitled to the said landon certain deeds. The trial Judge rejected this claim and characterisedthe deeds as fabrications. Learned Counsel for the appellant did notseek to canvass that finding.
Alternative!}', the defendant claimed a sum of Rs. 25,000 as compensa-tion for improvements and the jus rrteniionis. This claim too was rejectedby the trial Judge. It is this finding that has been canvassed in appeal.
The parties were at variance in regard to the source of the funds withwhich the buildings in question were constructed. According to thedefendant, he.utilised his ownmonics forthatpurpose. The plaintiffstated,on the other hand, that the defendant’s son was entitled to a. substantialincome from a temple and the defendant collected that income and utilisedit for the construction of the buildings. The defendant denied thathe collected his son’s share of the income from the temple but his evidencewas not accepted by the trial Judge. Apart, however, from the factthat there is no evidence to prove that the defendant utilised the monieshe collected as his son’s share of the income from the temple to constructthe buildings in question, it should be borne in mind that the defendantwas entitled to appropriate to himself the share of the income from thetemple to which his son was entitled by way of inheritance from hismother.
It was submitted by learned Counsel for the appellant that thedefendant had a vested interest in the land under the law, that he put upthe buildings in question bona fide for his own benefit and not for thebenefit of his son, and that the sou’s heirs or representatives in title werenot entitled to take advantage of the improvements effected by himwithout making compensation. I shall examine tlie submission of Counselon an assumption of the facts most favourable to the defendant, namely,that he effected the improvements out of his own funds and for his ownbenefit.
It was argued that the defendant was a bona fide occupier of the landwhen he put up the buildings and that lie was, under the Roman-Dutchlaw, entitled to claim compensation for the useful expenses incurred byhim. Learned Counsel relied on the judgment of the Privy Council inflassanally v. .Cassini1 in the course of which their Lordships stated:
“. the right of an improver to compensation rests on the
broad principle th.it the true owner is not entitled to take advantage,ail boat making compensation, of the improvements effected by one whomakes them in good faith believing himself to be entitled to enjoy themwhether for a term or in perpetuity.” The question that arose fordecision in that case was whether a person who had lawfully occupied a
1 (I960) Gl iV. L. It. 620.
SIVA SUPRAMAXIAM J.—Arumugasamy Iyer t*. Jl/ttOucuniaroo Iyer 139
.land under a lease and, in that capacity, had made improvements was-entitled to compensation when his term of lease was prematurelyterminated by operation of law. In upholding the claim of an improverfor-compensation in those circumstances, their Lordships cited with approvalseveral decisions of the South African Courts which laid down that not onlysi “possessor” in the strictly juristic sense of the* term but also “a bonafide occupier ” whose occupation was prematurety torminatcd.was entitledto claim compensation for improvements effected b3' him in theexpectation that he M ould have the benefit of the improvements until the■expiration of the period during which the occupation Mas to last. Thebasis of the claim is the deprivation of the use and enjoyment of theimprovements bjr the improver by reason of a premature termination bythe owner of the period of anticipated occupation. Where, therefore, abona fide occupier effected improvements and cnjo3’cd the benefit of suchimprovements for the full period of occupation contemplated by himself-and the owner, he would have no claim whatsoever for compensation.
The position was set out clearly by GaTdinertT. in~the~ case of Uriel v.■Jacobs1 as follows :—“ Where improvements have been made by a personin the faith that he will enjoy these improvements either as owner or asoccupier with the right of occup3*ing for a certain fixed period and he hasbeen disappointed in this expectation or his occupation for a certainfixed period has been prematurely terminated, that is, prior to what heJiad expected, he is entitled to compensation if the real owner hasbenefited by the improvements …. A lessee who occupies for a fixedperiod and makes improvements during that period, if his term is allowedto run to an end, or he becomes in default, gets no compensation forimprovements.”
In the instant case, had his son not died in 1956, the maximum period•iluring which the defendant would have been entitled to remain in occupa-.f ion of the land was the period of minority* of his son, namely, till some datein 1957. But he has, in fact, continued in possession till long after thatperiod. Consequent^', even if he came within the categor3' of “a bonafide occupier ”, referred to above, he has no basis for a claim for compensa-tion in as much as he has had the use and enjo3'inent of the improvementsfor the entire anticipated period.
The character of the occupation of the defendant, however, was that ofa usufructuary and it is now well settled that under the Roman-Dutch Lawa usufructuary is not entitled to claim compensation for improvements.The question whether a nsufructuaity is entitled to claim for expensesvoluntarily incurred by him in the improvement of the property, subjectto his usufruct, was examined by Kotze J. in a learned judgment in the•case of Brunsdon’s Estate v. Brunsdon’s Estate and others 2 and he held thatboth principle and authority lead to the conclusion that a usufructuary isnot, in the absence of special circumstances, entitled to claim forimprovements made by him to the property over which he enjo3rs theright of usufruct. ” This decision has been followed in subsequent cases
* 11920) C. P. D. 487 atp. 492.
* (1920) C. P. D. 159 at pp. 171 el seq.
De Jonk v. De Jonk
in South Africa (vide Uriel v. Jacobs (supra); Wait v. Estate Wait1)and has been adopted by text writers of such high authority as Wille 2and Lee3.
Learned Counsel for the appellant argued that the rights of a surviving• parent under the Ordinance are larger than that of a usufructuary and the-Roman-Dutch Law in regard to claims of usufructuaries is not applicable-to the facts of this case. S. 37 of the Ordinance provides as follows :—“ When the estate of a deceased parent devolves on a minor child, the-surviving parent may continue to possess the same and enjoj' the income' thereof until such child is married or attains majority ”. The rights ofthe surviving parent, therefore, are (1) to possess the property and (2) to-enjoy the income thereof. The rights of a usufructuary under the Roman-Dutch Law are set out by Lee (supra page 181) as follows —(1) To usothe property and take its fruits as owner; (2) To possess the property andto recover possession from the dominus or from a third party; (3) To. alienate the rightof use and enjoyment but only for the term of the usufructand (4) To give the property in pledge or mortgage and to suffer it to betaken in execution but only to the extent of his usufructuary interest. Itwill be seen, therefore, that the rights of a surviving parent as set out inS. 37 of the Ordinance are narrower in scope than those of a usufructuary,while as regards his rights of possession of the property and enjoyment ofthe income thereof a surviving parent is in the very same position as ausufructuary. In the instant case, no special circumstances wereestablished by the defendant which – would entitle him to claimcompensation.
In view of the above conclusion it becomes unnecessary to examine the-,submission of respondent’s counsel, that the presumption of advancementwill apply in favour of the defendant’s son in regard to the expenditure-incurred by the defendant in constructing the buildings in question.
The learned District Judge was right in rejecting the defendant’s claimfor compensation for improvements. The appeal is dismissed withcosts.
T. S. Fernando, A.C.J.—I agree.
K. ARUMUGASAMY IYER, Appellant, and K. MUTTUCUMAROO IYER, Respondent