WEERA3IANTRY, J.—Burah v. Premadasa
Present: Samerawickrame, J., and Weeramantry J.
T. K. BURAH, Appellant, and P. G. PREMADASA, RespondentS. G. 609(66—D. C. TangaUe, 267(M
Partition action—Co-owner—Improvements effected by him—Compensation awardedto him in interlocutory decree—His right to a jua retentionis until compensationis paid—His right to mesne profits before or after interlocutory decree—PartitionAct (Cap. 69), ss. 3d (1), 34 (2), 62.
Where, in an interlocutory decree entered in a partition action, a co-owneris declared entitled to compensation in respect of improvements effected byhim to the common land, he has the right to remain in possession until thecompensation due to him is paid. Hence there can be no question of mesneprofits claimable against him by. the other co-owners for the period of hispossession before or after the interlocutory decree.
N. E. Weerasooria, Q.G., with <3. P. J. Kumkulasuriya, for thedefendant-appellant.
D. H. Pandita-Gunawardene, with Mohini I. Gunasekera, for theplaintiff-respondent.
The plaintiff claims in this case a sum representing the mesne profitsfor three years, namely 1962, 1963 and 1964, of a field possessed by the-defendant who was, according to the plaintiff,entitled to only a verysmall share of the land. It is common ground that the plaintiff purchasedhis interests on 7th March 1960 and that in a partition case institutedin respect of this land, interlocutory decree had been entered on 18thDecember 1963 declaring the defendant (who was the third defendant inthat case) entitled to a 53/1728 share of the land, and the present plaintiffentitled to a 720/1728 share. This decree further provided that theplaintiff should pay a sum of Rs. 500 as compensation to the defendantfor the improvements to the land effected by him.
The sum of Rs. 500 was not paid by the plaintiff till November 1965.
The defendant claims as a matter of law that he was entitled to remainin possession until payment of the compensation due to him and statesfurther that the mesne profits claimed by the plaintiff are calculated onan imaginary and unreasonable basis.
The main question involved in this case is the right to a jus retentionis,of a co-owner who has effected improvements to the common land, andthe effect of an interlocutory decree in terms of which such co-owner isdeclared entitled to compensation for the improvements effected by him.
from a judgment of the District Court, Tangalle.
Cur, adv. wilt.
December 17,1969. Weebamantby, J.—
WEERAMANTRY, J.—Burah v. Premadasa
The crops which the defendant is alleged to have appropriated areMaha 1962, Yala and Maha 1963 and Yala 1964, of which it will beobserved that Yala 1964 is subsequent to the interlocutory decree. Theappropriation of the first three crops will therefore have to be consideredon the basis of the common law, while the appropriation of the last willrequire consideration also in the light of the statutory provisions relatingto partition decrees.
There is little difficulty in regard to the legal principles applicable, forthe co-owner’s right to a jus retentionis in respect of his improvements is-well settled. It has been stressed on behalf of the respondent that in thepresent case the defendant has stated that he had improved the land on.behalf of his co-owners. The co-owners included the defendant’s owndaughter, and it is submitted that in these circumstances there wouldclearly be no desire on the part of the improving co-owner to hold theimprovements as against the other co-owners. It is hence submitted thatthere is no jus retentionis in such a case.
However, there is the fact that a claim for compensation has apparentlybeen made in respect of these improvements and has resulted in an awardof a sum of Rs. 500 as compensation to the improving co-owner. Moreoverthere would appear to be no circumstances indicative of the improvingco-owner depriving himself in any way of his ordinary rights in respectof such improvement or of a desire on his part to make a gift of thatimprovement to all the co-owners, some of whom were not so closelyrelated to him.
It would appear then that when the defendant said that he was makingthese improvements on behalf of his co-owners he was saying little morethan what the law implies in every case of such improvement, namelythat the improvements enured to the benefit of all the co-owners.
If then there is no essential difference between this and the ordinarycase of improvement by a co-owner, the law applicable would, as laiddown in a succession of decisions of this Court, be that the improvingco-owner would, if he has acted with the acquiescence of the other co-owners, be entitled to possess the entirety of the plantation as againstthe others.1 These specific decisions of this Court in regard to co-ownersmake it unnecessary to consider the submission by learned Counsel forthe respondent based on Wijeyesekera v. Meegama 2 that it is not everyclass of improver who is entitled to a jus retentionis.
Two decisions to which I would wish to refer are Peiris v. Appuhamy aand de Silva v. Sangananda Unnanse,4 In the first of these cases it washeld that where in a partition action compensation for improvements dueto a bona-fide possessor is determined, he has the right to retain possessionuntil the compensation due to him is paid and in the second case it washeld that a co-owner who makes a plantation on common property withthe consent of the others is entitled to possess the entire plantation until
1 Ourtasekera v. Silva (1955) 58 N. L. 71.83 ; Podisingho v. Alims (1920)
28 N. L. R. 401.a (J947) 4s N. L. R. 344.
• (1939) 40 N. L. R. 340.* (1938) 40 N. L. R. 162.
WEERAMANTRY, J.—Burah v. Premadasa
the rights of parties are finally decided in a partition action. It is thusclear that the defendant was entitled to remain in possession until thBamount due to him was paid.
To refer now to the provisions of Statute law, there is in the first placethe proviso to section 52 of the Partition Act which Btates that even afterfinal decree a party to whom a lot is allotted is not entitled to obtain an■order for delivery of possession until that amount is paid. As wasobserved in Samarakoon v. Gunewardene x, this provision implies that aparty to whom compensation is due may remain in possession untilcompensated.
Reference should be made, secondly, to section 34 (2) of the PartitionAct which provides that the amount determined by the Court under■section 34 (1) as compensation for improvements or owelty shall fromthe date on which final decree is entered be a charge on the portion of theland or the extent of land finally allotted to the party made liable for thepayment of such compensation or owelty as the case may be.
On the basis of these principles an improving co-owner to whomcompensation is due is under no obligation to deliver possession untilcompensated, and there would consequently be no question of mesneprofits claimable against him by the other co-owners for the period of hispossession by virtue of a right so given to him by law. This would applywhether the period of possession be before or after interlocutory decree.Hence no mesne profits would be claimable in respect of the four crops in•question.
The learned District Judge’s award of damages to the plaintiff is basedlargely on the decision in Abideen Hadjiar v. Aiysha TJmma. 2
In that case it was observed that where improvements are effected forthe benefit of the owner of property the improver is not entitled tocompensation. The improver in that case admitted that he effected theimprovements in the interests of his wife and children, but a basic differencebetween that case and the present is that at the time of improvement theperson effecting the improvements was not as in the present case a co.•owner. At the time of improvement he had no interests in the property•at all, being merely the husband of the owner. It was only thereafter,upon her death, that he became a co-owner of the property. Thatdecision can therefore be no precedent on the question of the award of■compensation or the grant of a right of retention to a co:owner whoimproves the common property.
The learned Judge’s award of damages to the plaintiff would thereforeappear to be on a mistaken basis and as stated earlier the plaintiff’sclaim in respect of all four crops must fail. The judgment appealed fromis accordingly set aside and the plaintiff’s action dismissed with costsboth here and in the Court below.
;3amebawickkame , J.—I agree.
1 (1964) 67 N. L. B. 110.* (1963) 68 N. L. H. 411.
T. K. BURAH, Appellant, and P. G. PREMADASA, Respondent