UKKU v. BODIA.
C. B., PanwUa, 1,036.
Mortgage—Payment thereof by one of the heirs of the deceased mortgagor—Utilis impensa—Right of person paying off the mortgage to recover fromhis co heirs their shares—Right of such person to remain in exclusivepossession till such contribution is made.
A co-heir who has paid off in full the amount of a mortgage grantedby his deceased parent has the right to recover from the co-heirs theirrespective' shares of that amount as utilis impensa, but he cannot excludehis co-heirs from possessing the land till their quota is paid.
HE four plaintiffs in this case sued their elder brother, thedefendant, for a declaration of title to an undivided four-fifths
of certain lands, alleging that the lands belonged to their father,who died intestate in 1886, when the plaintiffs were minors. Thedefendant answered that the deceased intestate had mortgagedthe lands mentioned to one Punchappu in 1877, and that thedefendant had paid and settled that debt, and was holdingpossession of the lands till his brothers, the plaintiffs, paid to himthe four-fifths of the amount of the mortgage bond.
The only' issue tried was whether the defendant had a right tokeep possession of four-fifths of the lands referred to.
The Commissioner, Mr. W. Dunuwille, held that defendant wasnot justified in excluding his brothers from their respective shares,and that, as regards the amount paid by him in settlement of themortgage, he should sue the plaintiffs for the shares due by each.Defendant appealed.
H. Jayawardene, for appellant.—As a co-owner, defendant wasentitled to pay and settle his father’s mortgage bond. He couldnot offer to the mortgagee his own share of the mortgage amount,
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1902. so he paid off the whole mortgage. It was needless lor him to putk°n(l hi suit against his brothers, because the'payment of the-—'mortgage has been held to be an improvement (De Silva v. Sheik
Ali, 1 N. L. R. 228), and a person paying the mortgage is as muchentitled to remain in possession as a person who has improved theland, until he has been reimbursed the money laid out by him(ibid. p. 234; Voet, XVI. 2, 20). The plaintiffs should not beenriched at the expense of the defendant. So long as they do notpay the amount due to the plaintiff, he would be justified inkeeping possession of the lands.
Bawa, for plaintiffs, respondents.—The case cited does not apply.There the man in possession was under the bond fide belief thathe was the owner of the land, and that being so, the Court held heshould be paid the value of the improvements effected by him.In the present case, the defendant knew that he was not the ownerof four-fifths of the land. His payment therefore does not givehim any jus retentionis. He sets up a right which the mortgageehimself had not, because the bond shows that the mortgagee didnot hold possession of the lands on account of interest. Even if themortgagee were a usufructuary mortgagee, he could not haveresisted an action for ejectment by the plaintiffs. This is not acase of utiles imp ensue, for such expenses are recoverable only bya man in possession, by one who possesses bond fide ut dominus.The plaintiff had no such possession. If he was foolish enough topay the whole amount of his father’s debt without entering into anagreement with plaintiffs, he must take the risk himself. Plain-tiffs do not want to enrich themselves at defendant’s expense. Itis open to the defendant to sue them for their share of the money,but he should not be allowedtokeep theplaintiffsout of
possession of the lands in question.
28th August, 1902. Moncreiff, A.C.J.—
The plaintiffs in this case were four children of one Hawadia.The defendant was the eldestbrother, being also ason of
Hawadia. The-five children on the death of their father inheritedfrom him two lands, each child being entitled to one-fifth of thetwo lands. Hawadia had mortgaged the properties, and on hisdeath the eldest brother, the defendant, . paid off the mortgage,and having done that he took possession of the four-fifths belongingto his brothers and sisters. That happened in 1885. At thetime some of the plaintiffs, ifnotalj of them, wereminors;
there is no question of prescriptive possession in the case. Thedefendant refusing to. surrenderthefour-fifthsto the plaintiffs
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unless they paid him their shares of the money with which the 1902.mortgage bond was paid off, this action was brought for a
declaration of title to four-fifths of the land and damages. The '
defendant says that he is in the position of a person who is in Monobbuwbond fide possession of the land, and has done utiles impenaceupon it; that he is therefore entitled to retain the land until hehas received compensation for the improvements he has made.
Utilia impenaa is any improvement or any benefit done to. theland which enhances its selling value, and it has been expresslyheld by this Court in De Silva v. Sheik Ali (3 N. -L. B. 234) thatthe benefit to property arising from the redemption of a mortgagebond, which frees it from the encumbrance, is utilia impenaa.
The paying off of the mortgage being utilia impenaa, the defen-dant is undoubtedly entitled to call upon the co-owners to defraytheir share of the expenses to which he has been put. But thatis not all the defendant claims. He claims the right, havingpaid off the mortgage bond, to take possession of the shares of hisco-owners until he has recovered the amount due to him fromthem in respect of the mortgage. He seems to think that he is inthe position of a person who, while in bond fide possession, hasdone utiles impensce on the land. It was objected that he was notin possession when he paid off the mortgage bond. It was, how-ever, urged for. him that he was in possession, because a co-ownercannot be tied down to any separate part of the land. He is theco-owner of all. I think, however, that, while that is true, he isonly co-owner to the extent of one-fifth. His ownership mayextend over the whole, but his possession and hjs rights are thepossession and enjoyment of one-fifth of the whole. I think,therefore, that he cannot properly be said to have been in pos-session of the., four-fifths of the property of the plaintiffs at thetime he paid off the mortgage bond.
For these reasons I think that the conclusion to which theCommissioner came is ■ right. As for damages, that is a matterwhich can be settled when the question of adjustment of theclaims and liabilities of the plaintiff is brought up for determi-nation in an appropriate proceeding.
UKKU v. BODIA