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Present: Lascelles G. J. and Middleton J.SILVA et al v. SILVA et at.243—D. C. Galle, 10,057,
victim for declaration of title by co-owner—Improvement of land by co-owner—Decree declaring improving -co-ownertojusreuteutionisi
ever portion planted.
In an actionbya co-owner against theother co-ownersfor
declaration ol title to an undivided share of a land, the Courtdeclared that plaintiff entitled to an undivided share, but at the■;ame time declared a co-owner who had planted a portion of theland entitled to a ■ jus retentionis over the portion planted by himuntil he was compensated.
Held, that the order as to jus retentionis was irregular, as itwas inconsistent with the fundamental rights of co-owners.
Lascelles C.J.—*' It is well settled that a co-owner is entitled,subject to certain conditions and limitations, to compensation forimprovements effectedby himon thecommovholding, and itis
difficult to see on what principle an improving co-owner, who* isentitled to compensation, can be excluded from the benefit of the7its retentionis. But. a good deal turns on the form in which the jus■*etentionis is asseted. It is one thing for an improving co-owner toclaim a right to retain the portion of the common property whichhe has improved until the compensation due to him, as ascertainedin a partition suit, has been paid, but it is a -different matter whenthe claim takestheform of.refusingto giveup possession, while
the property isstillundivided,until aspecificsum is paid bythe
other co-owners as compensation. Toa claimoftheformer kind
I see no objection on principle orauthority.ButIconfess that.
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_ Silva v*Silva
ag at present advised, the difficulty of reconciling a claim of the latterkind with the Partition Ordinance seems to me to be unsurpassable."
A co-ownier who is entitled to a jus retentionis over the portionplanted as against another co-owner can enforce his right againstthe alienee of a co-owner.
Middleton J.—" Whether an alienee of the original co-owner isresponsible or not for compensation must, 1 think, depend on thecircumstances of the case. PrimA facie. 1 should say that he oughtnot to be, and is not, and can only be made so if be knew or hadreason to believe that the property he was buying was liable tosuch a claim, and so bought it cheaper."
rpHE facts are set out in the judgment of Middleton J.
Bawa (with him Zoysa), for the plaintiffs, appellants—A co-ownerhas no- right of jus retentionis over the portion improved by him.If he plants only a portion equal to his share he may have a jusretentionis, but when he plants up a portion in excess of his share heis no more a bona fide possessor, and he cannot claim a jus retentionis.See 107—D. C. C-hilaw, 01,718;' Mohammado v. iJe Silva'-; Costa v.Abeyakoon;1 * 3 The General Ceylon. Tea Estates Co., Ltd-, v- Pullr,;4Ukku v- Bodia; 5 Wighton v. Brown; 6 Cornells v. Endoris. 7
van Langenberg (with him Jayatileke), for the first defendant,respondent.—The effect of placing the defendant in the position of amala fide possessor and of denying him the jus retentionis would beto deprive him altogether of the right to compensation for impensceutiles. But it has been held that a co-owner is entitled to the valueof his improvements. See, for example, Newman v. Mendis.*
The plaintiffs’ predecessor in title knowingly permitted thedefendants to improve the land without objection; the defendantsare therefore entitled to both compensation for improvements andto the jus retentionis. See Eliatamby v. Sinnatamby A 2 Mass. 55.The cases cited by the appellants are not directly in point-, and maybe distinguished.
A. St. V■ Jayewardene, for second, third, and .fourth defendants—It -may be inferred from the passage quoted by Baumgartner D. J. in9 N. L. R. 119 (para. 24) that where a co-owner improves a portionof the common land he may claim a jus retentionis; it- is only wherea co-owner acts mala fide that he loses the ins retentionis. Counselcited Moldrich v. La Brooy,1# 2 Maasdorp 55.
Bawa, in reply.
Cur. adv. vult.
1 S. C. Min., Nov. 9,1910.
3 (1906) 3 Bal. 248.
3 (1908) 4 Bal. 25.
* (1906) 9 N. L. R. 98.
3 (1902) 6 N. L. R. 45.
(1889) 8 S. C. C. 203.
(1907) 3 A. C. R. 13.
(1900) 1 Br. 71.
(1909) 2 S. C. D. 54.
u> (1911) 14 N. L. R. 331.
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September 28, 1911. Lascelles C.J.—
It is unnecessary to recapitulate the facts of this case, which havebeen set out in full by my brother Middleton.
Accepting the finding of the learned District Judge, the positionof the co-owners, as regards the plantations on the suit property,was as follows. The whole land comprised 74 acres. Of this, 2 acreswere planted jointly by Lenora, the plaintiffs' predecessor in title,and the first defendant; 48 acres were planted by the first defendantalone, the cost of this being assessed at the rate of Bs. 65 per acre;12 acres were planted by the second, third, and fourth defendants ata cost of Bs. 40 per acre; whilst the balance of'12 acres remainedunplanted.
The decree is that the plaintiffs are entitled to one-third of theland, but that the first defendant is entitled to possess the 48 acres,and the second, third, and fourth defendants are entitled to possessthe 12 acres, until they are respectively compensated at the rateswhich I have mentioned. It seems to me clear that this decree is on.its face inconsistent with the fundamental rights of co-owners. Aco-owner is at * ny time entitled to claim a partition, and to ask thathis undivided share in the corpus shall be converted into a specificshare. If any of the co-owners have made improvements, the landon wn:ch the improvements were made will be allotted, as far ascircumstances permit, to the improving co-owner. But the im-proving co-owner is, in certain cases, entitled to compensation, ifland improved by him is allotted to another shareholder. Thus, theright of an improving shareholder to obtain compensation from hisco-owner is dependent upon the precise allotment which is made ona partition, and cannot be ascertained unless and until the allotmenthas been carried out. To decree that the first defendant, for*example, is entitled to possess 48 acres until compensation is paidby the plaintiff at the rate of Bs. 65 per acre is to preclude theplaintiff from having his rights and liabilities adjusted under thePartition Ordinance. I should, therefore, be content to set aside so*much of the judgment as allows the defendants to remain in posses-sion until compensated bv the plaintiff, on the ground that such anorder is inconsistent with the plaintiffs’ right as co-owners underthe Partition Ordinance.
Though it is not strictly necessaryr for the purpose of decidingthis appeal, to discuss the general question whether the jus retentionisis enforceable between co-owners, I am unwilling, after the ablearguments addressed to us on both sides, to leave the question1untouched. But, first of all, a preliminary question arises as to-whether the jus retentionis, assuming it to have existed betweenthe original co-owners, can be enforced against the alienee of one ofthem. 2 Maasdorp (I) 54 answers this question in the affirmative;and I think it would be difficult to contend, however inconvenientthe result may be, that a purchaser of an undivided share does notr
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as a general rule, acquire title subject to the liability of his vendorfor the improvements effected by the co-owners.
Bonser C.J., in De .Silva v. Shaik Ali,1 discusses the converse case,namely the right of a subsequent purchaser to a jus retentionis inrespect of impensce utiles, and his reasoning seems to me applicableto the liability of a purchaser, who, I think, must stand on the samefooting as regards the jus retentionis of the other co-proprietors ofthe property. But there is authority as well as good reason for theproposition that a possessor loses his right of retention, if, havingnotice of intended sale of the property, he stands by withoutprotesting, and allows the sale to go on without giving the purchasernotice of his claim (Maasdorp’s Institutes, vol. II. p. 56). Butdoes our law acknowledge the jus retentionis as between co-owners,and if so, to what extent? The absence of any direct authorityin favour of the existence of such a right is remarkable.
The Chilaw case 2, which was cited as an authority for this pro-position, turns out not to have been a case of co-ownership at all.In Newman v. Menclis3 the judgment of Browne A.J., as I understandit, does not directly deal with the question of jus retentionis, andMoncreiff J-, in the same case, appears to have founded his decisionon principles of good sense and equity rather than on any grounddepending upon the jus retentionis, Ukku v. Bodia4 is at first sightan authority for the proposition that the jus retentionis does notexist between co-heirs, but the case seems to have turned principallyon the point that the defendants could not properly be said to havebeen in possession of the four-fifths of the plaintiff’s property whenthey discharged the mortgage, debt.
It is well settled that a cO-owner is entitled, subject to certainconditions and limitations, to- compensation, for improvementseffected by him on the common holding, and it is difficult to see onwhat principle an improving co-owner, who is entitled to compen-sation, can be excluded from the benefit of the jus retentionis. But agood deal turns on the form in which the jus retentionis is asserted.It is one thing for an improving co-owner to claim a right to retainthe portion of the common property which he has improved until. the compensation due to him, as ascertained in a partition suit, hasbeen paid, but it is a different matter when the. claim takes the formof refusing to give up possession, while the property 's still undivided,until a specific sum is paid by the other co-owners as compensation-
To a claim of the former kind, I see no objection on principle orauthority. But I confess that, as at present advised, the difficultyof reconciling a claim of the latter kind with the Partition Ordinanceseems to me to be unsurpassable.
.In the result, I agree in the modification of the decree suggestedby my brother Middleton.
1 (1695) 1 N. L. R. m.3 (1900) 1 Br. 77.
* S. C. Min.. Nov. 9, 1910.* (1902) 6 N. L. R. 45.
In this case the plaintiffs, as the owners by purchase*of an un-divided one-third of a cinnamon land called Diggodukele, of 74 acres1 rood 30 perches, sued the defendants, as the owners of the othertwo-thirds, to be declared entitled to and put in quiet possession of anundivided one-third share of the land, with all the plantations on it;that the defendants be ejected therefrom; and for damages.
The first defendant admitted the plaintiff's title to one-third ofthe soil, but denied his title to the planter's share, and claimed inreoonvention either to be declared entitled to the planter's share ofabout 50 acres of the land, or for the expenses incurred by him inplanting the same, exclusive of the amount he had received' from thesale of cinnamon.
The other defendants, in their answer, admitted the plaintiffs'title to the one-tjurd share of he land, recited their title to anotherone-third share, for which they admitted they were in possession ofa lot of about 25 acres, of which they had planted 12 acres about twoyears ago, and, denying any disputes by them of the plaintiffs’ titleor possession, asked for the dismissal of the action as against them-
The issues agreed to were as follows: —
Was the plantation of cinnamon, coconut, and jak referred to-
in the first defendant’s answer made by him exclusively ?
If so, is he entitled to the planter’s share of same ? •
Did the first defendant spend the sums mentioned in the 10th
paragraph of his answer in making the said plantation and
the upkeep thereof ?
If so, is he entitled to claim the same or any part thereof
from plaintiffs ?
. (5) If entitled, is his claim prescribed ?
.Did the second, third and fourth defendants plant 12 acres
with cinnamon ?
What damage is plaintiff entitled to ?
Did second, third, and fourth defendants dispdute plaintiffs'
right to anything beyond the young cinnamon plantation) ?
• (9) What damages has plaintiff suffered through these
On the hearing it was admitted for the first defendant that he wasthe joint purchaser with one Lenora, the predecessor in title of theplaintiffs, and with the father of the second to fourth defendantsof the land in question from the Crown in equal one-third shareson a Crown grant dated 1900. This Crown grant, as an instanceof inaccuracy, grants 71 acres 1 rood 30 perches according to thesurvey annexed, which survey delineates according to the letter-press on it an area of 74 acres 1 rood and 30 perches.
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The Distriot Judge found affirmatively on the (1) and (6) issues asto 48 acres and 12 acres respectively, and assessing the compensationon the 48 acres at Bs. 65 per acre and on the 12 acres at Rs. 40 peracre, declared the plaintiff entitled to one-third of the land, but thatthe first defendant was entitled to possess the 48 acres until compen-sated for improvements, and the second to fourth defendants their12 acres until compensated.
Against this judgment the plaintiffs appeal, and in my opinion itis wrong, as compelling the plaintiffs to pay the whole cost of theplanting of all the land planted before they can get possession. Sofar, therefore, I can gather from the evidence, Bs. 65 and Rs. 40 wereaccepted as the entire cost per acre of planting the respective lots of50 acres and 12 acres. It is clear that the plaintiffs are not liable topay the entire cost of planting which the District Judge has orderedthem to pay, or stand out of possession, and on this ground alone thejudgment cannot be supported.
Again, the conveyance dated July 11, 1902, by Lenora to Justina,the immediate vendor to the plaintiffs, conveys the one-third partof the land she is entitled to on the Crown grant of June 16, 1900, andthe one-third part she is entitled to of all the cinnamon now plantedthereon. The conveyance by Justina dated January 20, 1910, tothe plaintiffs conveys to them one:third of the fruit trees and planta-tions and of the soil described in the same Crown grant. There isno reservation in either conveyance, and it is clear law that whateverexisted on the land in the shape of buildings or plantations was as toan undivided one-third conveyed by these deeds to the plaintiffs.
The plaintiffs are, therefore, under the Roman-Dutch law, on theprinciple that whatever is built or planted on another man’s landbelongs to the owner of the land,1 the owners of one-third of theland and all thereon, and are entitled to a declaration to that effectand to bequieted in possession.Onthis principlethey are also
entitled toone-third of the rentsandprofits arisingfrom the land
and plantations from the date of the conveyance to them, and areundoubtedly entitled to the relief they seek in this section asregards a declaration of title and to be quieted in possession, thedamages by way of mesne profits being subject, it may be, however,to the defendants’ rights to the fructus ex ipsa melioratione percepti,if it be found they have a jus retentionis on the land for compensationas claimed for planting.
The next question to be considered, then, is whether the defendantshave proved a right to compensation and a jus retentionis arisingtherefrom.Now, I think it is clearlaw that thejus retentionis
■ only arisesin the case of a bonafidepossessor, notin the case' of
a lessee or a tenant, it being an . incident of the possessio civilis
of the Boman-Dutch law.
. 1 Grot. 2, 10, 6, and 91.
The defendants here are unquestionably bona fide% possessors asregards the shares to which they are entitled of the land, i.e., thefirst defendant as to one-third and the second to fourth defendantsas to one-third, and would have a fight to compensation and ajus retentionis on what they planted, even if they'planted more landthan they were entitled to plant for their shares with the acquiescenceof their co-owners. The jus retentionis would, I think, follow theright to compensation resulting from a consoientia rei suae. Thequestion then is, if the right to compensation will affect the alieneeof a former co-owner. In Appuhamy v. Silva1 it was held that it-would, but it appeared subsequently that in that case, when itreturned to the Supreme Court,3 it was found that the defendant whoclaimed compensation and. a jus retentionis, and whose claim theSupreme Court had affirmed, had in fact only got possession as amonthly tenant, and therefore had no right to compensation andjus retentionis such as a bona fide possessor with consoientia rei suaewould be entitled to. The Supreme Court did not deny that analienee might be responsible to a bona fide co-owner possessor,hut declined to carry the doctrine as far as the case of a tenant.Whether an alienee of the original co-owner is responsible, or not,for compensation must, I think, depend upon the circumstances ofthe case. PrimA facie, I should say that he ought not to be, and isnot, and can only be made so if he knew or had reason to believethat the property he was buying was liable to such a claim, and sobought it cheaper.
In the present case the District Judge has held that the defendantshave proved that the planting here was done with 'the acquiescence<of the co-owner Lenora, and at the expense of the defendants; whilethe plaintiffs endeavoured to show that the first defendant was in1901 indebted to Lenora in the sum of Rs. 4,259.90 on accountsstated as to two Dikgoda lands. The first defendant said he hadpaid this sum in the course of other transactions with Lenora, buthe got no receipt, and the District Judge failed to find whetherthis was true or not; and as the case stands on the record, itmay be that first defendant did all the planting he contendshe did and paid for it primarily, but on an adjustment of accountsit may be found that Lenora has paid this share of the planting bynot having been paid the sum admittedly due on P 1 to him bythe. first defendant. If. Lenora paid, or agreed to pay the firstdefendant, he, the first defendant, could have no claim againstthe plaintiffs.
The burden of proof was on the first defendant, and in my opinionhe did not discharge it, nor did the District Judge find formally thathe did, although he has given judgment on the footing that Lenoraneither paid nor agreed ter pay the first defendant his expenses ofplanting.
1 (1892) 1 S.C.R 7.1.
2 (1892) 1 S. C. R. 243.
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The plaintiff says in his evidence that , the first defendant was abidder for the property when he bought it, and Justina, whom theDistrict Judge rather sweepingly disbelieves, says she had offers-from the first defendant to buy at a less price than that given by theplaintiffs. The first defendant nowhere in his evidence says- that heever made any claim against Lenora or Justina for the cost of theplanting that he says he paid and there is no evidence on the recordto show that plaintiffs knew or had reason to believe that they werebuying the property subject to a claim for a compensation.
The cases of the defendants also involve claims, not only againstthe plantiffs, but also against each other, and these could far moreconveniently be disposed of in a partition action under the Ordi-nance, which provides machinery for the adjustment of such matters.
In my opinion, therefore, the judgment of the District Judgeshould'be varied by omitting therefrom all that part of it whichdeclares the defendants’ rights to jus retentionis and compensation,and in lieu thereof a direction should be ordered to the defendants,to make such claims in a partition action, when the question whichthe District Judge has failed to decide may again be gone into. Thejudgment will, therefore, be for the plaintiffs, declaring them theowners of one-third of the land and plantations in question accordingto the prayer in the plaint; the question of damages by way ofmesne profits to await the decision in the partition action (section197, Civil Procedure Code), which may settle the rights to thefructus ex ipsa meliorations percepti.
The plaintiffs should have the costs of the action and the appeal.
SILVA et aL.v. SILVA et al