Vanderlan v. Vanderlan.
1940Present: Howard C.J. and Soertsz J.
VANDERLAN et cl. v. VANDERLAN.
47-8—D. C. Chilaw, 10,841.
Co-owner—Use of common property by some—Lease of premises by some of
the co-owners to third party—Liability of lessee.
A co-owner is entitled to the use and enjoyment of the commonproperty in such a’ manner as is natural and necessary under thfe circum-stances.
A co-owner who puts the property to such use is not entitled toappropriate more than his lawful share.
A lessee of a common property is liable to the same extent as theco-owner from whom he obtained the lease.
^^PPEAL from a judgment of the District Judge of Chilaw.
N. Nadarajah (with him H. Wanigatunge), for the second defendant,appellant.
E. B. Wikremanayake, for the added defendant, respondent.
H. V. Perera, K.C. (with him J. E. A. Alles), for the plaintiffs,respondents in S. C. No. 47.
HOWARD C.J.—Vanderlan v. Vanderlan.
E. B. Wikremanayake, for the added defendant, appellant.
N. Nadarajah (with him H. Wanigatunge), for the second defendant,respondent.
H. V. Perera, K.C. (with him J. E. A. Alles), for the plaintiff, respond-ents in S. C. No. 48.
Cur. adv. vult.
August 2, 1940. Howard C.J.—
This is an appeal from a judgment of the District Judge of Chilaw infavour of the plaintiffs for Rs. 325 with costs and dismissing the addeddefendant’s claim in reconvention with costs. The facts so far as materialare as follows :—The plaintiffs, the first defendant, the second defendant-appellant, one Rosa Maria Vanderlan, and one Medalis Vanderlan are theco-owners of a fibre mill in the respective proportion of one-fourth, one-fifth, one-tenth, one-fifth, and one-fourth shares. By an indenture oflease dated December 18, 1935, the added defendant-appellant, who wasthe son of the second defendant-appellant, and the first defendant leasedfrom Rosa Maria and Alexander Fernando their interests in the fibremill. The plaintiffs alleged in their plaint that the defendants on orabout September 15, 1935, entered into possession of the said mill andpremises to the exclusion of the plaintiffs. They, therefore, claimeda sum of Rs. 412.50 which sum is calculated as the share of the plaintiffsin the rents and profits of the said mill. In this connection the plaintiffsmaintained that the mill and premises are reasonably worth Rs. 150 permensem of which their share would be Rs. 37.50 per mensem. Theplaintiffs, moreover, claimed a further sum of Rs. 37.50 for each monthor part of a month elapsing between the date of action and the date ofdecree. In giving judgment in favour of the plaintiffs the learned DistrictJudge fixed Rs. 150 per mensem as a reasonable rent fo'r the entire mill.He further found that the defendants had been in possession of theplaintiff’s one-fourth share from March 15, 1936, to December 5, 1936,and they should pay to the plaintiff’s sum of Rs. 325 together with costs.The added defendant’s claim for repairs in reconvention was dismissedwith costs. The period during which the defendants have been in pos-session of the mill was fixed by the learned Judge by reason of anadmission by the added defendant that he and the first defendant startedworking the mill from March 15, 1936, and continued working it eitherthemselves or through one Marcellinu working on their behalf till aboutDecember 5, 1936.
The finding of the learned District Judge is challenged by the seconddefendant on the ground that the latter did not in any way participatein the working of the mill. Reference was made to the lease 2 D 1 toshow that the second defendant signed that deed as surety for the value of .the machinery and not at lessee, and was not therefore liable to pay anyrent. The second defendant also claimed that the sum of Rs. 150 permensem fixed by the Judge as rent was excessive inasmuch as the renton the face of the deed was Rs. 125 per mensem.
The added defendant has also appealed against the judgment of thelearned District Judge on the ground that there was no contract oragreement between him and the plaintiffs. He further maintained
HOWARD C.J.—Vanderlan v. Vanderlan.
that he could not be regarded as a trespasser in unlawful possession inas-much as he entered into possession with the leave and licence of someof the co-owners and along with another co-owner the first defendant-respondent. The added defendant also contended that the plaintiffscould only claim after an accounting and complained that the learnedJudge was wrong in refusing to grant relief for the cost of repairs whichhad been claimed in reconvention.
The rights of co-owners to deal with the undivided property have beendiscussed in a number of cases. Whilst the matter is governed byRoman-Dutch law, the English law is not unhelpful on a consideration -of the principles that should be applied. In Job v. Potton' the plaintiff,a tenant in common of a coal mine, had notice of a negotiation which wasfollowed by a lease for three years (in which he did not join) by his twoco-tenants, dated in December, 1865, of two undivided thirds of the coalwith licence to work the coal. Under this licence some coal, but con-siderably less than two-thirds of the whole, was- raised, and one-thirdof the royalty was kept by the licensee for the plaintiff. A negotiationfor a further licence was on foot, when, in October, 1872, the plaintifffiled the bill against his co-tenants and the licensee, praying for aninquiry as to the value of the coals raised, an account against all thedefendants as trespassers; for an injunction and receiver ; and fordamages. It was held that the working was not a trespass and theplaintiff electing to dismiss the bill with costs against his co-tenants,decree, without costs, against the licensee for an account of the value atthe' pit’s mouth of the coal raised, less costs of getting and raising, and forpayment of one-third to plaintiff. Bacon V.-C. in giving judgmentin this case asked how is a tenant in common to enjoy his share (if thatis the right expression) of the common property in a coal mine, if he isnot at liberty to dig and carry away the coal. The only restriction uponhim is that he must not appropriate to himself more than his share.Reference was made to Job v. Potton (supra) in the case of Siyadoris v.Hendrick'. In this case Bonser C.J. stated that fortunately the rights ofco-owners of landed property in Ceylon are governed by the Roman-Dutchlaw and not by the English Common law, for unless the plaintiff wereousted by his co-owners and forcibly prevented from enjoying the land, hisremedies under the English Common law would be doubtful. The learnedChief Justice, however, later stated the Roman-Dutch law by reference to apassage from Voet and remarked that this was in substance the lawlaid down by Bacan V.-C. in Job v. Potton which is not inconsistentwith Roman-Dutch law and in accordance with good sense. The passagecited by Voet is as follows : —
“ Invito autem uno socio nihil novi per alterum potest fieri in recommuni meliorque prohibentis conditio est ; adeo ut, si quid noviper alterum socium invito altero factum sit, aut fieri mandatum, iscogi possit ad id in pristinum status restituendum. ” (Bk. 10, 3, 7).
By this Bonser C.J. understood that it is not competent for one co-owner against the will of the other to deal with the property in a manner *
* I.. R. 20 F.q. St.
2 6 N. L. R. 275.
550HOWARD C.J.—Vonderlon v. Vanderlan.
inconsistent with the purpose for which the joint ownership wasconstituted, but he did not understand the law to prohibit one co-ownerfrom the use and enjoyment of the property in such manner as is naturaland necessary under the circumstances. In Siyadoris v. Hendrick (.supra)the land was purchased for the purpose of getting plumbago contained in it.
It was not suggested that the usual and customary method of gettingplumbago was departed from or that the lessee was improvident, or theroyalty inadequate. In Silindahamy et al. v. Peris et al.1 it was held thatwhen a co-owner carries on mining operations on the common land, heis entitled to appropriate to himself the whole output, less the groundshare of the other co-owners. In Goonewardene v. Goonewardene ’ WoodRenton J. formulated the law as follows : —
There is no doubt but that, by the common law of this Colony,one co-owner cannot build a house on a land held in common withoutthe consent of the other co-owners. Where such consent is withheld,a co-owner is not without a remedy. He can institute an action forpartition. There is, however, a class of exceptions to the generalprinciple which I have just stated. It is defined by Sir Charles Layardin Silva v. Silva ", and by Sir John Bonser in Siyadoris v. Hendrick (supra).These decisions stand by their own authority, but they have constantlybeen followed in later cases. The class of exceptions referred to maybe defined in this way. The law does not prohibit. one co-ownerfrom the use and enjoyment of the property in such manner as isnatural and necessary under the circumstances. For example as inSiyadoris v. Hendrick the land had been purchased for the expresspurpose of digging plumbago contained in it, it would have been un-reasonable that any co-owners should have been prohibited fromdigging for plumbago without the consent of the other co-owners.Sir Charles Layard gives another illustration in Silva v. Silva (supra).If the land were fit for paddy, it could scarcely be contended thatany one co-owner would be entitled to prevent the other co-ownersfrom cultivating it in that way ”.
In Silva v. Silva, the question for decision was whether the plaintiff wasentitled to build a- house on the land owned by him in common with thedefendant. In dismissing the plaintiff’s claim the learned Judges did notexpound any principle inconsistent with the law as formulated in theother cases cited in this judgment. In Silva v. Silva it was held that thebuilding of the house by the plaintiff was an act prejudicial to the commu-nity of the land and converted part of the land to another use from thatto which it was previously devoted.
Applying the principles laid down in the cases I have cited to the factsof the present case, it is clear that the first and second defendants inworking the fibre mill were not as co-owners dealing with the property ina mannar inconsistent with the purpose for which the joint ownership wasconstituted. The added defendant inasmuch as he was a joint lessee ofthe rights of two other co-owners was in a similar position. The nextpoint for consideration is the attitude assumed by the plaintiffs towardsthis working of the mill. In giving evidence the first plaintiff states thatafter the period of the lease P 2, in favour of his father had expired he1 21 N. R. 12tj.*17 A L. It. 1-13.3 6N.L.B.225.
HOWARD C.J.—Vanderlan v. Vanderlan.
brought the Vidane Arachchi and gave over possession to the other co-owners. Moreover that he told the other co-owners to give him anotherlease and if not, asked them to take over the entire mill and premises ona lease. He also states he saw the first and second defendants at the milland carters were bringing husks and unloading them. Later he met thefirst and second defendants on the spot and they said that althoughthere was no writing they would give the plaintiff’s their share of the rents.No amount was fixed and the first and second defendants did not give theplaintiffs any share according to the promise. The first plaintiff alsostates that he did not object to their working the mill. In view of theevidence of the plaintiff and the fact that the property was dealt with bythe defendants in accordance with the purpose for which the joint owner-ship was constituted, the user by the defendants and added defendantwas lawful but in excess of the restriction imposed by law that they mustnot appropriate to themselves more than their share.
In the circumstances the defendants can be regarded as being in defaultonly in so far as they have failed to pay the plaintiffs their share of theprofits for working the mill. The first defendant admitted his liabilityand consented to judgment. The second defendant denied any connectionwith the working of the mill. In evidence, however, he admitted that heasked his son to work his share of the mill free of rent. He also signed thelease as a guarantor holding himself responsible for the machinery.Moreover he sold the mill’s fibre at Colombo and Lunuville. The learnedDistrict Judge was in these circumstances right in holding that the addeddefendant was merely the nominee of the second defendant in the lease,and must be held liable equally with the other defendants.
The added defendant maintains that the remedy of the plaintiffs, if any,was against the ether co-owners. This proposition cannot be maintainedinasmuch as the lessees entered the premises and worked the mill by virtueof the lease and must therefore as regards the rights of the plaintiffs beheld to stand in the shoes of the lessor co-owners. -The learned Judgewas, therefore, correct in holding the added defendant liable.
The final question for consideration is the extent of the defendants’liability to the plaintiffs. The latter in their plaint claimed a sum ofRs. 37.50 per mensem as their share in the rents, issues and profits of themill and premises which are stated to be reasonably worth Rs. 150 permensem. This figure of Rs. 150 per mensem has been accepted by theJudge and on this basis he has awarded the plaintiffs a sum calculated onpossession by the defendants during the period March 15, 1936, to Decem-ber 5, 1936. The period of liability as fixed by the Judge is in accordancewith the evidence and there is no substance in the point taken by Counselfor the second defendant that no rent can be given for any period afterAugust 28, 1936, the date of claim. The question that now requireselucidation is whether the plaintiffs can maintain a claim for rent orwhether their claim in law is merely for the share of the profits from theworking of the mill during the period of occupation by the defendants.In view of the fact that the acquiescence of the plaintiffs in the workingof the mill was on the understanding that they should be given their shareof the rent I am of opinion that the claim for rent is maintainable on the
HOWARD C.J.—Vanderlan v. Vanderlan.
ground that the defendants and added defendant had the use and occu-pation of the plaintiff’s shares as monthly tenants. The plaintiff’srelationship with the defendants and the added defendant will in thesecircumstances be on the same footing as that created by the deed of leaseof December 18, 1935, between the other co-owners and the defendantsand added defendant. The rent payable to the plaintiffs should, however,be assessed on the terms entered into by the other co-owners by virtue ofthe deed of lease. In that deed the rent fixed for the lessor’s share,namely, 9/20th, is Rs. 56.20 a month or Rs. 6.25 a month for a l/20thshare. On this basis the plaintiff’s share which is 5/20th amounts toRs. 31.25 per month. The period during which the mill was worked isnine months. Hence the total amount of the plaintiff’s share of the renttotals Rs. 9 x Rs. 31.25 or Rs. 281.25. The lessors or other co-ownershave, however, agreed to waive two months’ rent on account of repairs tothe machinery for the two years during which the lease was to run. Onthis footing the plaintiffs should make a similar allowance for repairs.Their liability on this account may be assessed at 9/24 of Rs. 62.50 that isto say Rs. 23.44. In the result the plaintiffs should receive Rs. 281.25 lessRs. 23.44 or Rs. 257.81.
The decree of the District Judge is in these circumstances varied bysubstituting as the sum to be paid to the plaintiffs by the defendants andadded defendants Rs. 257.81 for Rs. 325. Subject to this variation theappeal is dismissed with costs.
Soertsz J.—I agree.
VANDERLAN et al. v. VANDERLAN