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Present: Lascelles C.J. and Middleton J.
MOLDRICH v. LA BROOY.
228—D. C. Tangalla, 895.
Partition—Improvements effected by a co-owner with the consent of theother co-owner—Portion improved should be allotted to him—
Improving co-owner need not pay compensation to- other co-owner. ■
Where improvements have been effected with the assent of theco-owner, that portion of the land on which the improvementsstand should, if possible, be allotted, on a partition of the land,under Ordinance No. 10 of 1863, to the co-owner who has madethe improvements ; he should not he required to pay compensationto the other co-owner for these improvements. “ If the land onwhich the improvements are made is superior in point of fertilityto the rest of the land, a different consideration arises.”
HE facts are stated by Lascelles CJ. in his judgment asfollows :—
The plaintiff and the defendant were co-owners in equal shares ofthree adjacent parcels of land, on one of which the plaintiff, withthe consent of his co-owner, had planted coconuts and built a smallbungalow. The co-owners agreed to a partition, and the Com-missioner submitted a Scheme under which the plaintiff takes thehalf of the land on which the improvements were made, but isrequired to pay to the defendant one-fourth of the assessed value ofthe trees. The scheme has been confirmed by the District Judge.The plaintiff now appeals against so much of the order as requireshim to pay compensation.
. A. St. V. Jayewardene, for the appellant.—The plaintiff in thiscase is not a mere outsider who has planted the land on a plantingagreement; he is a co-owner who has improved the land with theconsent of the other co-owner. The improving co-owner in thesecircumstances is entitled to the full value of the improvements ;he need not give the other co-owner half the value of the improve-ments. The term “ planter’s share ” cannot be used with respect toan improving co-owner. Counsel cited Sanchi v. Wijegunasekera ;*Silva v. Silva;8 Newman v. Mendis;3 Andoris v. Rajapakse;4 37—D.C. Negombo, 6,701 ;5 D, C. Chilaw, 786 ;6 2 Maasdorp 132,133 ;2 Burge 680 / Domat's Civil Law 614 (1, 4,2 ; ss. 10,11,12, and 13). 1
1 (1902) 6 N. L. R. 1, at pages 11,12.* (1901) 2 Br. 101.
* (1906) 9 N. L. R. 114, at page 121.6 S. C. Min. Oct. 28,1909.
* (1900) 1 Br. 17.• S. C. Min. July 28,1896.
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Aug. 18,1011 Fernando (with him Allan Drieberg), for the defendant,Mol&rich v. respondent.-^AU the cases cited follow the Chilaw case. That caseLa Brootj iayS down the rule that the improver can claim only his expenditure.Counsel referred to Andoris v. Rajapakse.1
Jayewardene, in reply.
Cur. adv. vult.
August 18, 1911. Lascelles C.J.—
The ground taken by the District Judge appears from the followingpassage from hjs order : “ In this case the plaintiff planted up aportion of the land with the knowledge of the defendant, who didnothing to improve the land. By custom each would have equalrights in the plantation made by the plaintiff, that is to say, theplaintiff would get the planter’s half share plus half of the soilowner’s moiety, whilst defendant would only get half of the soilowner’s moiety, which is equivalent , to one-fourth of the value ofthe trees. The value of the plantation is given as Rs. 997-85, andone-fourth of that is Rs. 249-46.”
The reference to “custom,” “the planter’s half,” and to the“ soil owner’s moiety ” indicate that the District Judge consideredthe custom which prevails in the District of Tangalla with regardto planters’ shares to be applicable to the present case. This viewis clearly erroneous. There is no analogy between the planter whoplants on land belonging to another and receives as his remunerationa customary share in the plantation or in its produce or in the land,which varies in different districts in Ceylon, and a co-owner whoeffects improvements with the consent of the other co-owners onthe common property. In dividing the property it is no more thanequitable, and it is in accordance with authority that, where it canbe conveniently done, the improving co-owner should be allottedthe property on which he made the improvements ; but it is notreasonable, and it is against all authority, that the improving co-owner should be required to pay compensation to the other co-ownerfor these improvements. If, of course, the land on which theimprovements are made is superior in point of fertility to the restof the land, a different consideration arises. I need not refer tothe authorities which have been cited in the judgment of mybrother Middleton.
The order of the District Judge must be varied by deletingtherefrom so much thereof as orders the plaintiff to pay to thedefendant the sum of Rs. 249-45. The .appellant is entitled to thecosts of the appeal.
This was a partition action, and upon the Commissioner’s reportthe District Judge affirmed a scheme for the partition of the land1 (1901) 2 Br. 101.
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by which the plaintiff, the owner of one-half share of the land, wasallotted that half of the land on which stood the trees he had plantedand the bungalow he had erected, but was ordered to pay one-fourthof the value of the trees he had planted to the defendant, the ownerof the other half.
The plaintiff appealed, and for him it was contended that theapportionment was wrong in law and inequitable, on the groundsthat the plaintiff was not in the position of an ordinary outsideplanter making his claim to a planter’s share, but that his rightsmust be governed by the fact that he was a co-owner who hadplanted with the assent and acquiescence of another co-owner.
It is conceded here, I understand, that the trees in question wereplanted with the acquiescence of the defendant. In partitionactions the principle has always been adhered to that upon theactual partition, where improvements have been effected with theassent of the co-owners, that portion of the land on which theimprovements stand shall, if possible, be allotted to the co-ownerwho has made the improvements, per Wendt J. in Sanchi Appu v.Wijegunasekera,1 and per Hutchinson CJ. in 37—D. C. Negombo,6,701.2
In this case all the tree planting was done by the plaintiff on thathalf of the land which the commissioner allotted to him. It isdifficult to see what principle under these circumstances gives riseto any right of compensation, to be made to the other co-owner.He has incurred no expense, and, unless the planted land is of morevalue, he has been deprived of nothing, but has his equal half shareof the land. It is not contended here that the planted portion wasmore Valuable land than the unplanted, as in the case cited, of whichI was unable to obtain a reference.
The “ planter’s share ” is the creation of a custom of Ceylon,which does not, in my opinion, apply to the case of a co-ownerwhose rights must be adjudicated on by the Roman-Dutch law asaltered .or amended by the statute law of the Island. The co-ownerhas planted here on his own land with the assent of his otherco-owner, and is not liable to be treated as a planter in the sensegiven to a creation of custom like the outside planter. I can findnothing in the law on the subject which would compel a co-ownerwho has planted entirely the share allotted to him on a partitionto pay compensation to another co-owner who has not incurredany expense in the matter whatever. The case of Chellappa v.Ponnambalam3 may not contain all the facts leading to the decisionthere, but it seems not to have taken account of the legal principleof the exclusion of the fructus exipsa melioratione percepti in mattersof accounting for impeitsae utiles. The correct view is, I think, thatenunciated in the cases of Newmcm v. Mendis,' Andoris v. Rajapakse?
‘ (1902) G N. L. B. 11.3 (1898) 3 N. L. R. 118.
*8. n. Min., Oct. SO. 1909.* (190’,) 1 Br. 77.
(1901),2 Br. 101,
Mold rich i>.La Brootf
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Aug. IS, 3911
Moldrich v.La Brooy
and approved of in Silva v. Silva in 9 N. L. R. 114. Anhoris v.Rajapakse clearly distinguishes between the rights of the planterwho has no soil share and those of the co-owner who has.
In my opinion the order of the District Judge appealed againstmust be set aside, so far as it orders compensation to be paid by theappellant plaintiff, and the partition will award the plaintiff theentirety of the plantation planted by him on the half share whichhas been allotted to him without any compensation being paid tothe defendant, and the appeal will be allowed with costs.
MOLDRICH v. LA BROOY