APPUHAMY et al. v. MENIKE et al

092-NLR-NLR-V-19-APPUHAMY-et-al.-v.-MENIKE-et-al.pdf


( 3*1 )
fl’uitL Bench.]
Present; Ennis, Shaw, and De Sampayo JJ.APPUHAMY et al. v. MEN IKE et al.
498—D.C. Ratnapura, 2,216
Partition suit—Action by paraveni nilakaraya of a nindagama—Is actionmaintainable*
Persons entitled to an undivided share in a pangnwa in a ninda-gama are not entitled to bring a suit for the partition of the land.
T
HIS was a partition suit brought by a paraveni nilakaraya ofa certain panguwa of the Dodaxnpe nindagama for the parti-
tion of certain lands comprised in the panguwa. The proprietors ofthe nindagama intervened and disputed the right of the plaintiffsto bring an action under the Partition Ordinance. The learnedDistrict Judge upheld the objection. The plaintiffs appealed.
Bawa, K.C. (with him Samarawickreme and P J. de Saram, Jr.),for appellants.
E. W. Jayewardene (with him Dassanaiyake), for respondents.
Our. adv. vult.
March 6, 1917. Ennis J.—
The question for determination on this appeal is whether pne ofthe paraveni nilakarayas of a nindagama can compel a partitionunder the Partition Ordinance, No. 10 of 1863. That Ordinanceprovides that when landed property belongs in common to two ormore owners, one or more of such owners may compel a partition,or, if a patition be impossible or inexpedient on account of thenature of the property, may apply for a sale thereof. In the caseof Jotihamy v. Dingirikamy1 the question was answered in thenegative, on the ground that the Partition Ordinance had hithertobeen regarded as requiring nothing short of the full dominion, andthat the dominion in service tenures was generally regarded asvested in the ninda lord, while nilakarayas were spoken of astenants. It was also observed that the indivisibility of the serviceswas another objection. This case was followed in Kaluwa v.Rankira,2 but in neither case were any authorities cited for thedecision.
. It is now urged that a paraveni nilakaraya is in fact an owner ofthe land, and that the ninda. lord is not the owner. It is clear thatthe relations of the ninda proprietor and the nilakaraya as of aparaveni panguwa are not the ordinary relations of a landlord .andtenant. A nilakaraya of a paraveni panguwa holds the land in
* (1906) 3 Bah 67.* (1907) 3 Bal. 264.
1917.
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1917.
Ennis J.
Appuhamyv. Menike
perpetuity subject to the service (Ordinance No. 4 of 1870, section8); and since 1870 the ninda proprietor has no right to eject aparaveni nilakaraya for non-performance of the service, he canrecover only the value of the services in an action for damages(Ordinance No. 4 of 1870, section 25). It is to be observed that apanguwa is only a portion (allotment or share) of the holdingof a ninda lord as the “ proprietor ” of the whole nindagamaof which any part is held by a nilakaraya. A “ paraveni nila-karaya " is defined as a “ holder of a paraveni panguwa, whilethe term “ tenant ” is used to – describe a maruvena nilakaraya,who is a tenant at will, as distinct from a paraveni nilakaraya, aholder in perpetuity.
Burge (vol. IV., p. 68), speaking of the hereditary tenure underthe Sinhalese kings, says:“ The king was the lord paramount of
the soil, which was possessed by hereditary holders on the conditionof doing service according to their caste. The liability to perform
service was not a personal obligation, but attached to the land
Besides the land thus held by the ordinary peasant proprietors,there were the estates of the crown, of the church, and the chiefs.These are known as gabadagam, royal villages; vihar'agam anddewalagam, villages belonging to Buddhist monasteries and temples(dewala); and nindagam, villages of large proprietors. These lastwere ancestral property of the chiefs, or were originally royalvillages bestowed from time to time on favourites of the court. In
these estates certain portions were retained for the use of the
palace while the rest was given out in parcels to cultivators,
followers, and dependents, on condition performing various
services These followers or dependents had at first no
hereditary title to the parcels of land thus allotted to them. Theseallotments, however, generally passed from father to son, and incourse of time hereditary title was in fact acquired. The real statusof these followers was thus well described in 1824 by Mr. Wright,the Revenue Commissioner. Writing of the followers of the chief,he says:' They are in fact servants by inheritance, whose wages
are paid in lieu of money, and though he has the power of dismissingthem and transferring their land to others if he pleases, this isseldom or rarely ever execised; they leaving in most instances akind of birthright, by long residence and possession, living happilyand contented in performing all the customary services which bythe tenure of these lands they are bound to perform to their chief.’
Pereira in his Collection (Pereira 303) says:“ The only paraveni
tenants were those who were on the land prior to the grant of thevillage to the ninda lord
The word “ paraveni ” imports a right in pepetuity (We era sing hev. De Silva1). It would seem then that historically paraveni. nila-kavayas were originally hereditary holders under the king before
* 6 S. C. C. 17.
( 868 )
the grant of the royal village to the ninda lord. Thereafter certainfollowers were given allotments (panguwa) by the lord, and in thecourse of years the holders of these allotments assimilated theirtenure to that of the original paraveni tenants, i.e., the holdingbecame heritable and alienable, and the holders acquired by pre-scription all the rights _ the original paraveni tenants under theking.
Until 1870 the ninda lord could eject the paraveni nilakarayasfor ndn-performanoe of service (Ooiehalle v. Naloowadene Nilam1).In a recent case, Kiriduraya v. Kudaduraya,2 it was held that thetitle of a paraveni nilakaraya could be acquired by prescription,and in Ranhamy v. Asin Umma3 I expressed the opinion thata paraveni nilakaraya could maintain an action for ejectment.
It has been contended that the ninda lord reserved to himselfcertain mining and timber rights in the land. In the case of Molli-godde Umambuwa v. Punchi Weda4 a nindagama proprietor wasallowed a half share in plumbago mined by a nilakaraya of aparaveni panguwa, and in the case of Siripina v. Kiribanda Korala5it was held that neither the nindagama proprietor nor the nila-karaya can gem without the other’s consent, as there was no proof ofany exclusive right in either. As to timber, the only authority isan Avissawella case (No. 5,308), referred to in Molligodde Umambuwav. Pimchi Weda .* These cases seem to show that the ninda lordand the nilakaraya were owners in common of the mineral rights,but I am unable to see that the common ownership of such a rightaffects the question before us, as there would be no difficulty inlimiting mining rights to the several shares after partition.
, Ownership has been defined {2 Maarsdorp 31) as_comprising (1)t|ie right of possession, (2) the right of usufruct, and (3) the right ofdisposition, and that these three factors are all essential to the ideaof ownership, but need not all be present in equal degree at cne andthe same time.
' In my opinion a paraveni nilakaraya holds all the rights which,under Maarsdorp’s definition, constitute ownership, but he, neverthe-less, does not possess the full ownership, in that the ninda lord holdsa perpetual right to service, the obligation to perform which attachesin the land. In Armadale v. Weera&uriya6 it was held that thisobligation was indivisible. In Marikar v. Assanpillai7 it was heldthat the nature of the service is definite and determined, and thenilakaraya is bound by that and no' other. In Martin v. Hatua* itwas held that the liability to pay commuted dues was indivisible.In the present case counsel on both sides agree that the service isindivisible, and in the circumstances it is not necessary to refer to
(1862) Beven d Siebel’s Rep. 120.5 (1878) 5 N. L. R. 326.
(1916) 3 C. W. R. 188.„« 3 Bal. 51.
a (1915) 1 C. W. R. 151.7 (1916) 4 C. A. C. 85.
* (1875) Ram. 226.« (1913) 16 N. L. R. 93.
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Appuhamyv. Menike
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1917.
Ennis J.
Appuhamyv. Menike
the two old oases in Ramana&han’8 Reports1 cited in Martin v.Hatua,2 where a contrary opinion was held, except to say I am inagreement with the later opinions.
It was finally urged that certain ownerships short of the fullownership have been made the subject of partition. In AbdulRahiman v. Muttu Natchia3 it was held that superficies was such anownership, and in Babey Nona v. Silva* it was held that propertyburdened with a fidei commissum may be partitioned under theOrdinance No. 10 of 1863. In the latter case Lascelles A.O.J.said:“ By Roman-Dutch law the fiduciarius was a true owner;
he had a real, though burdened, right of the ownership.”
The present tenure of a paraveni nilakaraya could well bedescribed in much the same terms. It seems to me that this caseenunciates the rule as to whether or not a burdened ownership canbe the subject of partition, i.e., the Question as to whether or not theburden can be made to attach to the partitioned parts in. severaltydecides the point. The same test was suggested in Tillekeratne v.Abeyesekere,5 where, speaking, inter alia, of the Partition Ordinance,No. 10 of 1863, their Lordships of the Privy Council said: ” (TheOrdinance) appears to be limited to cases in which the personsinterested, whether as joint tenants or tenants in common, are fullowners, and are not burdened with a fidei commissum; and even ifthey were not held to be so limited, the partition which they authorizewould not necessarily destroy a fidei commissum attaching to one ormore of the shares before partition.”
• As the service^ of a paraveni nilakaraya is indivisible, it cannot bemade to attach to portions of the panguwa in severalty, and for thisreason I am of opinion that the decision in, Jotihamy v. Dingirihamy•is. right. It is to be observed further that the Partition Ordinancewas passed in 1863, while the Service Tenures Ordinance was^ notpassed till 1870. In 1863 the ninda lord still had a right of re-entryfor non-performance of the service—one of the rights of a landlord,and at that date paraveni nilakarayas could not compel a partition,because the ninda lord was then the real – owner of the land. No- special provision for partition was made in the Ordinance of 1870,and', in the absence of special provision the indivisibility of theservice presents an insuperable difficulty to partition. It w'as urgedthat the nilakarayas might partition the land voluntarily by crossconveyances, and that a partition under the Ordinance might bemade without affecting the rights of the ninda lord. The possibilityof a voluntary partition among the nilakarayas forms no basis- fora right to compel a partition. The Partition Ordinance appears tohave contemplated such a division of the land as would make eachseveral part independent of the others.
For these reasons I would dismiss the appeal with costs-,i (1877) Ram. 131 and 395.* (1906) 9 N. L. R. 251.
(1913) 16 N. L. R. 93.5 (1897) 2 N. L. R. 313, at page 318.
a 1 Br. 250.6 (1906) 3 Bal. 67.
( 366 )
Shaw J.—1917.
The question for our determination is whether persons entitled to Appuhamyan undivided share' in a panguwa in a nindagam are entitled to v- Menikebring a suit for partition of the land.
The same question has twice been before this Court in the casesof Jotihamy v. Dingirthamy1 and Kaluwa v. Ranhira,a
In the first of these cases Wendt and Middleton JJ., and in thesecond Hutchinson C.J., decided the question in the negative, andwe are now asked by the appellants to say that these decisions arewrong.
I think the previous decisions are perfectly correct, and am ofopinion that nilakarayas of a nindagama are not owners within the.meaning of section 2 of the Partition Ordinance.
In no case since the first passing of the Prescription Ordinances inthis Colony has any one been held to bring a partition suit who hasnot had the dominium in the property sought to be partitioned.
Some persons who are not absolute owners have been held to be soentitled, such as the trustee of a Buddhist vihare (Daniel v. SaranelisAppu3), a person entitled subject to a fidei commissum (Abeyesunderev. Abeyesundere*), and the owner of a superficies (Abdul Rahiman v.
Muttu Natckias), but in all these cases the persons seeking partitionhave had the dominium in the property.
The position of a nilakaraya is very different from that of thepersons I have referred to; he holds his land subject to renderingrajakariya to his overlord, sometimes the rendering of personalservices, sometimes the delivery of certain produce from theland; he has no right to dig for minerals on the land, except bythe permission of his overlord (Siripina v. Kiribanda Korala,®
Molligodde TJmambuwa v. Punchi Weda7), and it has even beenheld that he has no right to cut down trees growing on theland (Avissawella No. 5,303 cited in Molligodde Umambuwa v.
Punchi Weda7), although the correctness of this decision may bedoubtful. Prior to the passing of Ordinance' No. 4 of 1870 thetenant could have been ejected for non-performance of services, andalthough under section 29 of that Ordinance he must now be suedfor damages if he neglects to perform them, and his interest in theland can only He sold as a last resort, I am unable to.see that thatOrdinance makes hirn in any way the owner of the land, and hisposition seems to me to fall far short of the full ownership, which thePrivy Council said, in TUleheratne v. Abeyesekere,® was necessaryfor the purposes of the Partition Ordinances.
I may further add that tenures of this description are by no meansuncommon in this country, and ' had the Legislature intended
1 (1906)3Bal. 67,*I Br.250.
(1907)3Bal. 264.•(1878)5 N.L.B.326.
3 (1903)7N. L. R.163.*(1875)Bam.226.
(1909)12 N. L. B.873.»(1897)2 Ns.L.R.31tt.
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1917.
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Appuhamyv. Menike
that lands subject to them shoulcTB.e partitioned under the Ordinanceit woulH no doubt have provided what should become of the interestof the overlord, as it provided for the right of holders of mortgagesand leases and rights of property' in trees apart from the soil.
The decision of the District Court appears to me to be right, andI would dismiss the appeal with costs.
De Sampayo J.—
The plaintiffs and the defendants are the paraveni nilakarayas ofcertain panguwa of the Dodampe nindagama, and this action isbrought to partition among the plaintiffs and the defendants certainlands comprised in the panguwa. The proprietors of the nindagamaintervened and disputed the right of the plaintiffs to bring an actionunder the Partition Ordinance, which provides for the partition oflands which belong in common to two or more owners. The issuestated at the trial was: Can this action be maintained, the plaintiffsmerely possessing the rights of nilakarayas? The main, though notthe only, question involved in this issue is whether the paraveninilakarayas of a panguwa are the owners of the lands constitutingthe panguwa. I had to consider this question incidentally inMarikar v. Assanpillai1 and Kiriduraya v. Kudaduraya,2 and ven-tured to express the opinion that the paraveni nilakarayas arethe owners of their holdings subject only to the performance ofservice to their overlord. I find that a somewhat similar view wastaken in Ranhamy v. Asm Umma.a in which an objection that onlythe overlord, and not the paraveni tenant, could sue a third party inejectment was over-ruled. The authority to the contrary is Jotihamyv. Dingirihamy* decided by Wendt and Middleton JJ., and followedby Hutchinson C.J. in Kaluwa v. Rankira.5 That decision was notcited to me in the cases above referred to, anduaow 'that the wholequestion comes for consideration afresh, I may say, with great respectto Wendt J., who delivered the judgment, that I am not convincedthat his conclusion as to the "nature of the title of a paraveni nila-karaya was right. He did not profess to discuss the origin of thisspecies of feudal tenure, nor refer to any authorities. All that issaid in the judgment is that “ the dominium in service tenure landis generally regarded as vested in the person usually described asproprietor of the nindagama or the overlord, while the nilakarayasare similarly spoken of as tenants. ” There are no grounds stated forthe opinion that the dominium is generally regarded as vested in theoverlord. That is the very problem requiring solution. The terms“ overlord ” and “ tenant ” are natural to any system of tenure, suchas the fee simple tenure in the English system of real property, butthey do not necessarily describe the nature of the rights. After all,the point decided in Jotihamy v. Dingirihamy* is that the provisions
* (1916) 4 C. .4. C. 863 (1915) 1 C. W. R. 151.
2 (1916) 3 C. W. R. 188.* (1906) 3 Bal. 67.
s (1907) 3 Bal. 264.
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of the Partition Ordinance do not apply to nindagama lands, as towhich one may agree without assenting to the proposition that anilakaraya Has no legal title to the lands belonging to his panguwa.
The argument for the intervenients emphasized the word “ tenant ",and it was contended that the position of a paraveni tenant was nomore than that of a lessee, and that before the Ordinance No. 4 of1870 he was liable to be ejected for non-performance of service. Asto such liability to be ejected,- the only authority cited to us wasOolehalle v. Naloowadene Nilam.1 The nature of the particulartenancy is not dear from the report, and the judgment is that of.the District Court, and not of the Supreme Court in appeal. In anycase, the Ordinance No. 4 of 1870, to which I shall presently refer, inprohibiting the ejectment of the tenant, appears to me to recognize. him as the owner, and not a mere possessor. A broad distinctionshould be drawn between a paraveni tenant and a maruvena tenant.The Ordinance No. 4 of 1870, which is based on the report of theService Tenures Commission, and in i^ost points is declaratory ofthe customary law, defines “ paraveni pangu ” as an allotment orshare of land in a temple or nindagama viilage held in perpetuity$>y one or more holders subject to the performance of services to thetemple or nindagama proprietor, and “ maruvena pangu ” as anallotment or share of land in such a village held by one or moretenants at will. The origin of these two classes of tenants is signifi-cant, and is illustrative of the difference in their respective titles.The theory of the old Sinhalese constitution, as much as that of theEnglish constitution, was that the king was the lord paramount ofall the land, and on this basis the Sinhalese king granted awaywhole villages to temples or individual persons, though much of theland was already held by private parties. A village so granted to atemple is a viharagama or dewalagama, and a village granted to anindividual is a nindagama. The proprietor of a temple village or anindagama would also, after the grant, assign portions to tenantssubject to service. Sir John D’Oyley’s Notes quoted by Marshallstate (see Marshall's Judgments 300) that paraveni tenants are thosewho held their lands before the nindagama or the temple villagewas granted to the proprietor, and maruvena tenants are those whoreceive their panguwas from the proprietor subsequent to the grant.This is confirmed by the Service Tenures Commissioners, who in theirreport (see Pereira's Collection 303) say that the only paraveni tenantswere those who were on the land prior to the grant of the villageto the ninda lord or vihare or dewale. With regard to the nature ofthe paraveni tenant's right, Sawers (see Marshall's Judgments 307),after stating that a person having “ the absolute possession of (andright to) real or personal property has the power to dispose of suchproperty unlimitedly, " adds “ but to the unlimited power of dis-posing of landed property there was this exception, that lands liable
i (1862) Beven & Siebel’s Rep. 130.
1917.
De SampayoJ.
Appuhamyv. Menike
1817.

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to rajakariya, or any public service to the Crown, or to a superior,
Db Sampayo could not be disposed of either by gift, sale, or bequest to a vihareJ* or dewale without Hie sanction of the king, or the superior to whomAppuhamy the service was due. ” This passage is very important. Here para-v. Menike veni nilakarayas are included in the class of persons who have " ‘ theabsolute possession of and right to ” landed properly, and Icannot imagine that it would have been necessary to prohibit raja-kariya land from being put ~m mortmain without a license unlessthe holder was considered to be the owner. In this connection Imay refer to Leana Aratchy v. Mukelamea.1 There the Crownclaimed the land in dispute adversely to both the parties to the action,on the ground that land within a gabadagama or royal village be-longed to the Crown as owner, and Phear C.J., in deciding against the .Crown, said:- “ But we are of opinion that this is not, as a generalrule, an incident of all gabadagamas, and we know of no principle of'Kandyan law which should lead us to hold that the relation of theCrown to the gabadagama is materially different from that of theprivate owner or lord to the nindagama. ” Here the obvious com-parison was between the paraveni nilakarayas of a gabadagama andthose of a nindagama, and the Court, which included Dias J., a Judgeof eminence and wide experience, impliedly stated it as an accept adproposition that the paraveni nilakaraya, and not the proprietor ofthe nindagama, was the owner of his holding.
The state of the law to be gathered from the above references is-made clearer by the Service Tenures Ordinance, No. 4 of 1870. Itis remarkable that nowhere in the Ordinance is the lord of a ninda-gama referred to directly or indirectly as the owner of the lands heldby the paraveni nilakarayas. On the other hand, section 24 declaresthat if services are not rendered or commuted dues paid by theparaveni nilakarayas for a period of ten years, the panguwa shall bedeemed free thereafter from any liability on the part of the nilaka-rayas to render services or pay commuted dues. It seems to mfeclear that in such a case the Ordinance intends that what was pre-viously qualified ownership shall become absolute ownership.Section 25 lays down the order in which the property of the nila-<?karaya may be sold in execution • for default of payment of damagesfor non-performance of services, and provides that the value ofservices shall be recovered in the last resort “ by a sale of the pangu. ”Here the pangu does not mean the possessory interest, becausethe same section enacts that the tenant shall not be ejected fornon-performance of service. The pangu is defined in the Ordi–nance itself as the “ allotment or share of land ”; there is, to my*mind, no meaning in providing for the sale of the pangu, unless thetenant is the owner of the allotment. A difficulty is no doubt created^by such cases as. Siripina v. Kiribanda Korala,3 but I confess I cannotquite understand the principle by which it was held in ‘.thosei (1878) 2 S. C. C. 2..2 (1878) 5 N. L. R. 826.
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oases that neither the proprietor of the nindagama nor the tenantcould gem or dig for minerals, without the consent of the other. TheCourt appears to have struck out a middle course, with regard togeffns and minerals in the absence of anything to be found in the lawrelating to agricultural land such as those belonging to a panguwa.In any case I do not think that this consent to gemming or miningreally affects the question of ownership of the land.
For the reasons I have above stated, 1 am of opinion that paraveninilakarayas are the owners of the lands comprised in the panguwa.This, however, is not a complete answer to the issue stated in thiscase, for there is the further question whether such land can be thesubject of a partition action under the Ordinance. The services areindivisible, and it would be an' anomalous thing to divide the landand yet to keep the services undivided. The analogy of land subjectto fidei commiasum does not apply, because in Babey Nona v. Silva,1which is the chief authority as regards the partition of fidei commie-sum land between the fiduciari, it has been held that the partitionwill bind the fidei commissarii when their interests accrue, and thatthe rights of the various sets of fidei commissarii will attach tothe portions allotted in severalty. I may say that that case decideda point as to which there had been great doubts, and the de-cision reaches the limit and should not, in my opinion, be extended tocases like lands subject to service, which are, primd facte, not withinthe purview of the Ordinance. I therefore agree that on this groundthe appeal should be dismissed with costs.
1917.
De SampayoJ.
Appuhamyv. Alenike
Appeal dismissed.