109-NLR-NLR-V-23-AHAMPARAPILLAI-v.-PODI-SINGHO.pdf
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Present; De Samp&yo and Porter JJ.1938.
AHAMPARAPILLAI v. PODI SINGHO.
23—D. O. BaUicaloa, 5,144.
Partition action—House built on an agreement with one co-owner—*
Purchase by builder of co-owner*e share—Is builder entitled to theentire house t—Compensation.
The defendant built a house on a land under an agreement withone of the co-owners A, by which it was provided that the defendantshould build at his own expense, and that whon he died or left thehouse, it should belong to the said co-owner A without payment ofcompensation. The defend bought the half share of A afterthe house was built.
Held, that defendant was pot the sole owner of the house, norentitled to compensation.
rpHE facts are set out in the judgment.
Balasingham, for the appellant.
Bartholomeusz (with him Rr C, Fonseka), for the respondent.
June 21,1922. De Sampayo J.—
•This appeal involves a somewhat novel point, but I have nodoubt as to how it should be decided. The action is one for thepartition of a land which belonged to two persons named Umayathaiand Ummini. Umayathai died leaving a son Appuhamy, who soldUmayath&i’s half share to the plaintiff. Ummini’s half share hasgone by a sale to the defendant. So far there is no dispute betweenthe parties. The trouble is as regards a house which has beenbuilt on the land. It appears that in 1902 an agreement was enteredinto between Ummini and the defendant, by which it was providedthat the defendant should, at his own expense, build a boutique andreside in it during his life, or during pleasure without paying anyrent, and that at his death, or when he finally leaves, the boutiqueshould be taken possession of by Ummini without paying any com-■ pensation. It appears that on that agreement the defendant builta boutique, and has traded and resided in it up to now. Iel thisaction he claims to be entitled to the house upon grounds which 1cannot quite understand. But the District Judge, as I understandthe judgment, has awarded to him the house on the ground that itwas built, not only uponthe written agreement between the defendantand Ummini, but also without any objection and with theimplied consent of Umayathai, and that, therefore, the defendantis entitled to the hottse. Mr. Bartholomeusz, for the defendant,
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1922. does not support the exact claim made by the defendant in theDb Samtayo -District Court to the house itself. But he contends that the
J.defendant is entitled to compensation as a bona fide improver,irnimjjiini Before I come to that argument, I should like to say that I do notpittai TPoii agree -with the finding of the District Judge that Umayathai togs(dive at the date of the agreement in question and while the houseor boutique was being built. Two witnesses, whose evidence I haveno reason to rejeot, have given positive testimony that Umayathaidied twenty years before the trial, that is to say, &bout a year beforethe agreement between Ummini and the defendant. With regardto one witness, the only remark the district Judge made was thathe was not a relative of the family, and bad no particular interestin its members, and that he could not well speak of the death ofUmayathsi 'With regard to the Other witness, who is a headman,and who appears to be now about forty-five years of age, the DistrictJudge says that he was not expected to remember what took plaoesome twenty years before, and therefore his evidenoe, as regards thetime of Umayathai’s death, is not of much value. I do not thinkthese remarks are sufficient to reject the evidence of those two wit-nesses. The defendant’s standpoint was that Umayathai died onlyten years ago, and that was supported by evidence by no means asstrong as that of the plaintiffs. In appeal, Mr. Balasingham,appearing for the plaintiff-appellant, has produced a death certi-ficate annexed to an affidavit. No doubt, excepting under specialcircumstances, fresh evidence will not be admitted by this Court.But this is more or less of a formal character, and the plaintiff in hisaffidavit states what I think is a sufficient reason for his not beingable to get at this death certificate before the trial was concluded.I do not think 'we should shut our oyes to the decisive effect of thisdocument. It was sought to get over it by saying that the nameof the person whose death is registered is not the same person asthe Umayathai in question. But I do not think there is any forcein this objection. The parties would appear to belong to thatpeculiar class of peoplein the Eastern Province where the distinctionbetween the Sinhalese and the Tamils is not very marked Itappears that Umayathai’s family were originally Tamils; that theyintermarried with the Sinhalese; that the children sometimes tookSinhalese names; for instanoe, Umayathai herself would appear tohave married a Sinhalese man, mid her son, the vendor to theplaintiff, is called Appuhamy. In the death certificate the nameof the person whose death is registered is described as Umayal.The name that is given in the record of the case is Umayathai.It is well known that the last syllable in the word represents theTamil termination of the name, the substantial portion of it beingUmaya, which is the same in both languages. But the matter isput beyond doubt by the name of the father. In the judgment ofthe District Judge the father’s name of Umayathai is stated to have
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been Mhrugakapputal, and in the death certificate, which by theway is that of a Sinhalese Registrar, it is given as Murugapuwa. —
The termination “ toi,” again, is a characteristic of the Tamil j; ASOlanguage. I have no reason to doubt at all the death certificateapplies to the-Umayathai in question. We thus conclude, asappears from the death certificate, that Umayathai died in April, Singho1901, over a year before the date of the agreement between thedefendant and Ummini. Consequently, she could not, by any actof hers, recognize the building of the boutique which was beingerected by the defendant* Further, it may he added that Umaya-thai’s heir, Appuhamy, was a minor of two years,-so that he couldnot be bound by any conduct which may be said to be a recognitionof the defendant’s acts in regard to the building. In the circum-stances, I think the District Judge’s determination of the first twoissues formulated by him is erroneous. When we come to the appli-cation of the law, I think there is no difficulty, even supposingUmayathai was alive at the date of the building. To take Mr.
* Bartholomeusz’s suggestion that the defendant was not claiming thehouse itself, but only compensation for himself, a person in connectionwith a partition case can only claim compensation for improvementsmade by him as a co-owner. But at the time of his buildingthe boutique be was not a co-owner, nor was he expecting to beowner in any sense. As a matter of faot, the agreement expresslydeclared that he was not to be the owner of the house, but that hemust give it back at his death or whenever he left the house. Thenit is sought to put the claim for compensation on the general groundof a bona fide, possessor. Now, the broad distinction between abona fide possessor and a m&la fide possessor is that a bona fidepossessor believes, though mistakenly, that he was entitled to theland on which he was making the improvement; whereas a m&la fidepossessor knows that the property is not his own. Now, in thiscase there is no question that the defendant had not the slightestidea that he had any interest in the land. As a matter of fact, hisagreement between Ummini is clear enough acknowledgmentof the right of other people to the entire land, he only getting per-mission from one' of them to build a house on it on certain terms.
Mr. Bartholomeusz, however, says that that is too narrow a view ofthe law, and he cites to us the case of Marikdis v. Jayawardene,xwhere the facts were that the plaintiff instituted the action, allegingthat the defendant agreed to sell him the land, and had receivedan advance of Rs. 720 as part of the consideration, and that he wasput in possession of the land, which he improved by building twohouses. The plaintiff prayed that the defendant be called upon toexecute a transfer, or, in the alternative, to refund the advance ofRs. 720, and pay compensation for the improvements made by theplaintiff. This Court held that not only was he entitled to reclaim
> (1909) 11 N. L. B. 272.
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1922,. the money advanced, but he was also entitled to compensation in^ r— respect of the buildups. It is quite clear to my mind that the orderjf on which that decision was given is quite inapplicable to the cir– cumstances of the present case. The decision appears to me to^Sv^Podi ^ve keen k*8®^ on principle of fraud which otherwise wouldStngho have succeeded against the plaintiff, if the defendant, who wasguilty of that conduct, was not ordered to pay Compensation forthe loss incurred by the plaintiff. In this case, not only did notUmayathai join in the transaction with the defendant, but thedefendant buUt the house on specific terms with the other, co-owner Ummini, and I do not think that we can extend his fightsby referring to such oases as the one cited. I think the defendant isnot entitled even to the compensation to which the claim is restrictedin appeal. I would set aside so much of the decree as awards thebouse to the defendant, and direct that the house should beregarded as having accrued to the soil, and as now belonging toboth co-owners. The plaintiff is, I think, entitled to the costs ofthis appeal.
Pobtbb J.—I agree.
Set aside.
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