DE KRETSER J.—Thangamma and Ponnambalam.
1943Present: de Kretser and Wijeyewardene JJ.THAN GAMMA, Appellant, and PONNAMBALAM, Respondent.
19—D. C. Jaffna, 15,752,
Negotiorum gestio—Claim based upon the doctrine—General principles—■Roman-Dutch Law.
A claim made on the footing of a negotiorum gestio is governed by thefollowing principles :—
(a) there must be two parties ;
'(b) the person benefited must be ignorant of the act;
there must be an intention to act as negotiorum gestor.
Semble, a person may not conduct litigation on behalf of anotherexcept in the limited way provided by the Civil Procedure Code.
PPEAL from a judgment of the District Judge of Jaffna. Thefacts appear from the judgment.
N. Nadarajah, K.C. (with him N. Nadarasa) for defendant, appellant.The plaintiff was not authorised to conduct the litigation. Theprinciple of negotiorum gestio cannot apply to litigation. (3 Maasdorp,p. 453)—no. person may manage the litigation of another except to thelimited extent allowed by the Civil Procedure Code.
Even if the principle of negotiorum gestio is applicable to this case; thematernal relatives having also benefited, a part of the expenses shouldhave been charged to them also—the defendant is not, therefore, liable topay as much as a half-share of the expenses which is what the plaintiffclaims.
S. J. V. Chelvanayagam (with him T. Nqdaraja)., for plaintiff, respondent.Even if the plaintiff was not authorised to conduct the litigation^ andindeed even if plaintiff had been expressly forbidden to do so, the defend-ant is liable to pay a half share of the expenses by reason of the fact thatshe has been benefited by the plaintiff’s action. (Pothier. Neg.Gest. s. 182 ;Groeneviegen de Leg. Abrog ad C 219 ult; voet 3.5.11.) The principle byvirtue of which the plaintiff can recover, even in the extreme case of herbeing forbidden to act, is the general principle “nemo debet locupletaricum alterius detrimento”—the same principle as that on which the idea ofnegotiorum gestio itself is based.. See Wessels ’ Contract (19371st Edition)para. 3563.
There is no reason why litigation alone should be excluded from theapplication of the principle of negotiorum gestio (see Prince, q.q. Dielemanv. Berrange ’) and 3 Maasdorp, p. 453.
April 9, 1943. de Kretser J.— .
The facts are as follows : —
One Kandiah died leaving a widow but no children; Under theThesavalamai his property would devolve on his relatives on his father’sside and on his mother’s side but if he left a stepbrother then that step-brother would exclude all the others.
Mcnzies Reports 435.
266DE KRETSER J.—Thangamma and Ponnambalam.
His widow applied for letters of administration naming certain personsas respondents and valuing the deceased’s estate at Rs. 7,178.31. The1st defendant was the 37th respondent.
One Kandappu then filed papers alleging that he was the son ofKandiah’s father, Saravanamuttu, by a subsequent marriage and thatthe bulk of the deceased’s estate had been acquired while he was living inseparation from his wife. He claimed letters. He valued the estateat Rs. 6,906.62$.
Some of the respondents filed a petition of objections claiming thatthey and the 37th respondent, i.e., the present 1st defendant, were thedeceased’s heirs on the father’s side and that Kandappu was an illegitimateson of Saravanamuttu.. They call him the 39th respondent but in thewidow’s application the 39th is one V. Thiagarajah, M.C., Delft. Theydenied the widow’s right to letters, claimed letters themselves, andalleged the widow had not disclosed a sum of Rs. 15,000 due to the deseased.One has to infer from another petition given by Kandappu later that thewidow had been granted letters. In this later petition Kandappu prayedthat he be declared heir to all the mudusom property and to half thetediatetem. An inquiry followed and the court held that he was not thedeceased’s heir but made no order as to costs.
According to the evidence, the paternal half of the estate, if I may socall it, went half to the present 1st defendant and half to the 2nd plaintiffand her four sisters. The 1st defendant was in India where she marriedthe 2nd defendant, who had held judicial office there. They had hadnotice presumably of the application of the widow and they certainlyhad notice of Kandappu’s later application for he had prayed for anorder nisi against all the respondents. The case has been argued on thefooting that they did have notice but chose to take no part in the contest,preferring to let the law take its course.
The plaintiffs bring the present action alleging that they spent Rs. 1,500in contesting Kandappu’s claim and claiming that defendants shouldpay half, i.e., Rs. 750, in terms of an agreement made in December, 1935,at Chundikuly in Jaffna. In the, alternative they claim that they hadrendered service to the 1st defendant and saved the property and so wereentitled to recover Rs. 750 being the proportionate share of the expenses.Defendants filed answer denying the claim and alleging that instead oflitigation incurring such fabulous expenditure the difference betweenthe. parties could have been settled satisfactorily by. other means. Theydenied that plaintiffs could maintain the action and put them to the proofof the alleged expenses.
The trial judge, who seems to have been much impressed by the 2ndplaintiff’s poverty and the fact that defendants were well off and oughtto pay, held quite easily that there had been no such agreement asplaintiffs had alleged, that on a generous estimate she could not havespent more than Rs. 800, and putting the claim on the same footing asone for compensation when one iifts a burden on a property by paying amortgage debt condemned .defendants to pay Rs. 400 and fixed costs atRs: 60 ! In this hotly contested claim he allowed only Rs. 60 as costsbut thought plaintiffs had incurred Rs. 800 in the previous inquiry, andhe does not explain why in the absence of proof plaintiff’s expenditure
DE KRETSER J.—Thangamma and Ponnambalam.
.should be fixed on a generous scale. If there was no proof he couldaccept, it was not open to him to speculate generously. He has also lostsight of 2nd plaintiff’s statement in D 2 that she had spent Rs. 85 up tothe stage of inquiry. It is inconceivable that she could have spentnearly nine times as much for the inquiry itself. I should be surprisedif the expenses exceeded Rs. 200. Besides, the heirs on the maternalside were interested in resisting Kandappu’s claim and they did not do so.They too benefited in the same way as the 1st defendant did.
The plaintiff starts with a heavy burden of falsehood on her shoulders..Such falsehood is hardly in keeping with her position as friend andbenefactor of the 1st defendant.
On the appeal it was not attempted to uphold the trial judge’s reasoningbut it was sought to justify his order on the footing that this was a caseof negotiorum Gestio.
Before passing to a consideration of the law applicable to the caseit is necessary to deal with two letters written by the 2nd plaintiff, D 2and D 3. In the first written on the 2nd of July to the 1st defendant’sfather, Rev. Anketell, who appears to have been a stranger to her, shestates how the parties claim from Kandiah’s estate. She goes on to saythat 1st defendant had asked why there should be litigation as theinheritance would devolve on the plaintiff spontaneously. She disclosesthe existence of Kandappah and states that although he had been giventhe surname of Saravanamuttu his mother’s marriage was not registeredand there had been no tying of thali and no dowry, but that Saravana-muttu had described her as his wife in a document; that as her husbandwas a practical man in courtwork and as her sisters were not well off theyhad given him a power of attorney and filed a petition; that certaindocuments had been obtained and up to that date they had spent Rs. 85and the case was fixed for the 8th instant, i.e., six days from the date ofthe letter, and they required more money for expenses. She called uponthe minister to think of God, that she was a poor woman and 1st defendantwas in comfort, -that giving to the poor was lending to the Lord, that 1stdefendant knew nothing about “this inheritance” or who her relativeswere and that 2nd plaintiff had therefore begged of the District Judgeto give “ this inheritance ” to her ; that if 1st defendant were to takeher half she (plaintiff) would have no share and if the 1st defendanthad an urumai (by which is meant, I understand, a right of inheritance)she (plaintiff) would have dropped the matter; that the minister shouldspeak to first .defendant, who had at first thought the inheritance woulddevolve on her spontaneously but had later spoken of retaining a proctor.She goes on to ask him to intercede and send her some money ; that1st defendant might think Rs. 85 an exorbitant sum but she would givethe information later ; that if 1st defendant took her half, she (plaintiff)would get very little after all the funeral and testamentary expenseshad been defrayed and that there was no use in her spending money ifthe others remained silent. She suggests that 1st defendant shouldgive her a power of attorney and then she (plaintiff) would be benefited.She adds a postscript that it could not be stated what providence woulddo in court business and they could not expect to win the case. She had
268DE KRETSER J.—Thangamma and Ponnambalam.
previously estimated her share as 3 lachams and Rs. 10 or Rs. 15 only;die adds that a lacham would not fetch more than Rs. 30 or Rs. 40 andeach would get about two lachams.
It is quite apparent from this letter that she was seeking only her ownbenefit and that her suggestions were twofold, namely, that 1st defendantwould either be so charitable as to send her some money, considering it aloan to God, or at least abandon her rights in plaintiff's favour. There isnot the slightest suggestion of her acting on 1st defendant’s behalf; onthe contrary she states that 1st defendant had intimated that if she wereto take action she would be retaining her own lawyer.
D 3 was written to the 1st defendant about eleven months later. Shesays the trial date was the 16th June—about two months ahead, thatshe had sold even her thali kody for expenses, that a sum of Rs. 150 wasrequired for proctor and advocate, Rs. 30 for witnesses, and copies offour deeds had still to be obtained; that she had made two unsuccessfulattempts previously, through her husband apparently, and would besending him in a week’s time,: and she begged first defendant to sympa-thize and help. From this letter too it is clear that all she wanted wasfinancial assistance, and that she was aware that first defendant hadchosen to abstain from taking part in the contest.
Turning to the law, Counsel for respondent relied very strongly oncertain passages in WesseZs’ Law of Contract in South Africa and repeatedlyreferred to the fact that the 1st defendant had benefited from plaintiff’saction and that no one should be made richer at the expense of another.Wessels undoubtedly is an authority that is entitled to the highestrespect. Let us see what he says. He starts with this statement r“ It is a general principle of our law that it is wrongful for one personto interfere, uninvited, with the affairs of another ” . . . . “ Tothis general rule, however, there is an exception. A person, who froma sense of duty or out of friendship* undertakes to administer the affairsof one who is absent in a way beneficial to the latter, does a meritoriousand not h wrongful act. ” Note that the exception is made because it.is a meritorious act and is intended to encourage a sense of duty and offriendship towards one who is unable to look after his own interests.Wessels goes On to say that, the person who interferes must justify hisinterference and, show that he acted in the interests of the person whomhe intended to benefit and, that in fact his interference proved to be,dr might have been anticipated to be, useful to the absent person.
He states that the English law does not recognize negotiorum gustiaand quotes an authority. –
It is clear that plaintiff does not come within the terms of the exception.In Union Bank. v. Beyers' de Villiers C.J. had said:.“The doctrine thata person can act as trustee or mandatory or occupy some similar relationtowards another person who is sui juris without' his will and withouthis consent has no place so far as I am aware in our law”. Wesselsgives the following as the general principles which govern negotiorum gestio
' there must be two parties; (b) the person benefited must be ignorantof the act ; (e) there must be an intention to act as negotiorum gestor.Accordingly under (a)'he says “ There is ho negotiorum gestio if a person,
> (1884) 3-S.C 89. at page 102.
DE KRETSEB J.—Thangamma and Ponnambalam.269
-administers his own affairs under the false belief that he was managingthose of another. If, however, the negotiorum gestor in managing hisown affairs at the same time manages those of another, then quoad theinterest of the other party there is negotiorum gestio ”.
Counsel for respondent seizes on this latter statement. But it mustbp remembered that Wessels is now dealing only with his statementthat tnene must be two parties, and is not throwing overboard all otherprinciples governing the question. Besides, a person may by mistakemanage affairs which are partly his own and so escape from the ruleWessels has just laid down. It is possible that a person may manageat the same time his own affairs and those of piother which are quitedistinct from his.
Under (b) he states that “ the quasi-contract of negotiorum gestiopresupposes that the unauthorised act is done on behalf of a personwho is ignorant of it and who has not instructed the negotiorum gestor
to do itHence, if the person whose affairs are being
administered is aware of what is being done, and being able to, raisesno objection, there is no negotiorum gestio but a tacit contract of Mandate”.In the present case the 1st defendant was not ignorant of the pendinglitigation, nor was she aware that plaintiff was managing her (defendant’s)affairs; as far as she was aware plaintiff was managing her own affairs.
Counsel next seized upon a statement made by Wessels under thissub-head (b). In para 3563 he gave the opinion of Pothier that a personwhose affairs had been well administered against his will and had infact been benefited should recoup the negotiorum gestor. He states thatGroenewegen and Voet had expressed similar opinions.”- But Wesselshimself pointed out that the maxim nemo debt locupletari cum alteriusdetrimento applied only where there was damnum and injuria. It may betrue that the dominus is enriched and that the unauthorised manager hassuffered a detriment, but the detriment was not suffered cum injuriabut voluntarily. If the negotiorum gestor suffers a loss he does so withopen eyes and deliberately.
♦If Wessels was not merely placing before the reader a number of possibleviews, as I believe he was, then his comment means that the maximdid not apply as Pothier thought it did. He goes, on to say—“Theremay, however, be cases where the court would grant a negotiorum gestorhis utiles et necessarias impensas even though the dominus was opposedto the interference, on the same principle that such expenses are ac-corded to the mala fide possessor, though these cases should be theexception and not the rule ”. Counsel argues that that statementapplies to the present case.
To begin with, Wessels does not state that such is the law, nor doeshe give a single instance. But he is careful to point out that there maybe exceptional cases, and that even in such cases one should be slow toallow the expenses. They would be cases which would approximateto the case of a mala fide possessor, where something necessary had beendone to preserve a property owing to a sudden emergency which mightbe taken to override the general objection of the-dominus to interferencein his affairs. In this case too the dominus would be ignorant of thedanger, and the act of the negotiorum gestor would still bear on it the
270DE KRETSER J.—Thangamma and Ponnambalam.,
stamp of meritoriousness. I can scarcely believe that if the dofimlusknew of the danger and deliberately abstained from taking steps, andthe negotiorum gestor knew of his objection, that nevertheless he wouldbe entitled to interfere and to claim compensation.
Immediately after setting out the opinions of Pothier, Groenewegen,and himself, Wessels quotes the opinion of de Villiers C.J., in the caseof the Union Bank v. Beyers (supra) and, consistently with his previousopinion states that “ the South African Courts may follow Groenewegen,Voet and Pothier and allow impensas utiles et necessarias where the generalrule may be considered to be too harsh, as where, the dominus has beenmanifestly enriched and no donation was intended
The decision of de Villiers C.J. was given in 1884 and the edition ofThe law of Contract in South Africa by Wessels from which I am quotingwas published in 1937, and apparently no case had yet arisen in whichthe law there laid down had been questioned. When Wessels himself onlysays that the South African Courts may follow a certain course, I do notthink we would be justified in acting in the belief that they will do so.And here again w<e must remember that he still dealing with the casecf a person who is benefited but ignorant of the act. In the present casethe 1st defendant was wieU aware of her rights and plaintiff had at no-time prior to this case pretended that she was acting on behalf of the 1stdefendant.
This brings us to the third principle (c), under which Wessels statesthat it is essential that a person who without authority manages theaffairs of another should have intended to act as a negotiorum gestor andshould have intended to claim the cost of his voluntary administration.He quotes, among other authorities, the case of Molife v. Barker. In thesucceeding paragraphs Wessels states that the above proposition is notuniversally admitted and that in strict law there can be no reciprocalactions de negotiis gestis unless the voluntary agent had the animusnegotium gerendi.
I can find nothing therefore in^ Wessels to support the contention ofrespondent’s Counsel that in the circumstances of the present caseplaintiff is entitled to succeed.
Counsel for the appellant raised a further point, and that was whetherit was possible for us to recognize that one person may manage the litigationof another except to the limited extent allowed by the Civil Procedure Code.
A.s plaintiff herself indicated in her letter, litigation is not a businessin which one can look for success with any degree of certainty, and itwould be a very serious state of things—certainly in Ceylon—if it werepossible to indulge in litigation on the excuse that one was carrying onthe business of another. The Civil Procedure Code does not allow it.I do not think it is the policy of the law to throw open the door to doubtfultransactions of a champertous nature. The relations of co-ownershiphave created sufficient complications without our adding to them, buthitherto no co-owner has indulged in litigation and then brought anaction against the other co-owners to recoup himself for expenses. Even■pit intiff has not asserted her right in a logical way, for it was conceded thatthe maternal relatives had also benefited. That being so, she shouldhave charged a part of her expenses to them.
jjE KKETSER J.—Thanaamma and Ponnambalam.
Maasdorp (III. 453,—4th Edn.) says : “ AS regards- the business orgroperty to be administered, it may, with one exception, be of any kindwhatsoever, provided it be not either physically or legally impossible.The exception referred to is that no one is entitled to institute an actionin Court on behalf of another without having a proper power of attorneyfrom the latter for the purpose ; nor will he be allowed to defend suchaction without such power
As Mr. Nadarajah put it, spppose A being poor retains a proctor andB eminent Counsel, and A’s proctor is content to leave the managementof the case to B’s Counsel, would B be entitled to claim a proportion of hisexpenses from A ? Clearly not. Supposing A did not retain a proctorat all but appeared in person and conducted his own case, there would beno difference. Why should there be any if A merely kept away ?
Mr. Chelvanayagam could not meet this, argument although he wasgiven a second opportunity of addressing the court. All he could dowas to refer us to the case of Prince, q.q. Dieleman. v. Berrangealias Anderson1 which is referred to by Maasdorp just before hemade the statement quoted above. But Maasdorp ^nes not use it asan argument in the way Counsel did. He usee it in connectionwith another proposition, namely, that where a person undertakes theaffairs of another with a view to his own benefit rather than that ofthe owner, the latter will only be liable in so far as he was actuallybenefited thereby. He is dealing very briefly with the subject and isonly stating that a person’s own business .may be mixed up with thatof another. With all due respect, I do not think he has correctly statedthe conclusions reached in the case he quotes. The case is very brieflyreported. The facts are as follows :—One Dieleman and his wife, thedefendant, executed a mutual will. He died and his widow subsequentlymarried Anderson. The joint estate had been valued on the basis thatit included a slave called Steyntje and her children. After litigationthe Privy Council ruled that Steyntje was free and not a slave, withthe result that the value of the estate was reduced by 6,000 rix-doliars. Prior to her second marriage the defendant had executed akinderbewys in favour of her two sons (plaintiffs) for one half of thejoint estate.
The action was brought by the attorney of the two sons, who concededthat the value of the slave should be deducted although the sons hadbeen promised half of the estate as originally valued. Defendant, how-ever, claimed to be allowed to deduct one-half of the expenses incurredhy her in the litigation. It Was admitted that during that period defend-ant was not the guardian of the plaintiffs, who had other guardiansthat plaintiffs had not by themselves or their guardians been in anyway pparties to the action or given defendant any guarantee for hercosts. It will be noted that it was not alleged that either , the childrenor their guardian had been ignorant of the litigation. The Court heldthat. defendant had instituted the action causa sui proprii comynodi,and as it had been unsuccessful the minors had derived no benefit fromit and therefore those costs had not been in rem vsrsum of the plaintiffs.Here the reasoning seems to have been that a minor is not bound by a
a i11 Jifenzies Reports 435.
Bogstra and Co-operative Condensed Fabrjfc.
contract unless it be to his benefit, and besides the plaintiff had sued forher own convenience only, she having the usufruct of the estate. Thecourt went on to say that as they had not been locupletiores jacti thedefendant could not claim as a negotiorum gestor and plaintiffs wereunder no equitable obligation to pay any part of the costs.
The decision therefore appears to have'gone on many grounds, andit is not correct to fix on any one ground as the basis of that decision.
For the reasons which I have given I think the decree entered in thiscase cannot be sustained, and would therefore allow the appeal with costsand order that plaintiff’s action be dismissed with costs.
Wijeyewardene J.-—I agree.
THANGAMMA, Appellant , and PONNAMBALAM, Respondent