APPUHAMY et al. v. THE DOLOSWALA TEA AND RUBBER COMPANY

031-NLR-NLR-V-23-APPUHAMY-et-al.-v.-THE-DOLOSWALA-TEA-AND-RUBBER-COMPANY.pdf


( A29 )
Present: Bertram C.J. and Gfcrvin A.J.APPUHAMY et at. v. THE DOLOSWALA TEA ANJ>RUBBER COMPANY.203—D. 0K Batnapura, 3,508.
Lease for ninety-nineyears—Action agaimt lessor ayulleBseefor declaration. of title—(Maim for eomgh aHon for improvements by fie leasee—May lessor claim compensation in respect of improvementseffected by the lessee ?-—What amount may be claimed as cfriipen*sationfor improvements f—Kandyan law—Associated marriage—Two children—A third child bom after the death of one husband—Inheritance.
The added defendant leased for ninety-nine years the land indispute to the defendant company, who planted it with rubber.Theplaintff disputed the added defendant's title to a certain share,and instituted this action for declaration of title to that share.The defendant company, inter alia, claimed compensation forimprovements.
Held, that the defendant company being a lessee was notentitled to compensation.
The case was sent back for an inquiry as to whether the addeddefendant (lessor) was entitled to claim compensation in respect■ of improvements effected by the lessee.
Bertram C.J.—“It could hardly be considered Satisfactorythat when both lessor and lessee were before the Court, the claimof the lessor, who had the dvilis possessio, should be rejected becausehe did not make the improvements, and that of the lessee,, whohad made the .improvements, should be rejected because he had notthe civilis possessio, more particularly as in most cases, if not inevery case, the lessor would be himself responsible to the lesseein damages."
“ With regard to the amount of expenses, if found ultimatelyto be recoverable, I think that this should be the actual amountexpended.”
Semble, per Bertram C.J.—If the owner of property stands by andallows a lessee to execute improvements on the property withoutany notice of his daim, he will not be allowed to avail himself ofhis fraud, and the lessee will have the some rights of retention andcompensation as a bona fide possessor.
Under the Kandyan law, where two brothers have a joint wife,the estate of the brother who dies first passes to the children ofthe association, and when the survivor who after the dissolutionof the association has children by the same wife dies, his estate isdivided equally among all the children, whether bom during theassociation or thereafter.
14.:14—08
1921.
1921.
( 180 )
Appuhamyv. The Doles-undo Tea andRubberCompany
Property inherited by a person from his father must on hisdeath, childless and intestate, pass to the other children of hisfather by the same -wife.
A and B were the associated husbands of C. D and E were thechildren of this association. F, another child, was bom to C afterthe death of A..
Held, that on the death of A his property devolved on D and E,and on the death of B his property devolved on D, E, and F.
On the death of E, intestate and issueless, the property inheritedby him from A devolved on D exclusively, and not on D and Fin equal shares.
t | iHE facts appear from the judgment.
Drieberg, K.C. (with him E. W. Perera), for appellant.
Bawa, K.C. (with him Ameresekera), for respondents.
Cur. adv. vuU.
December 15,1921. Bertram C.J.—
This aotion concerns the title to 103 acres of land in the RatnapuraDistrict, part of the rubber estate belonging to the Doloswala Teaand Rubber Co., Ltd. It illustrates the pitfalls which beset thosewho essay to construct estates by purchases from villagers in theKandyan Provinces.
The various supposed titles to the land comprising this portionof the estate were got in during the years 1911 and 1912 by oneTikiri Banda Doloswala Maliatmaya, who apparently acted as asort of land broker for the purpose, and on April 5, 1912, thisperson transferred the lands he purported to have acquired to
P.6. D. dark. One of the transfers to Doloswala Mahatmaya Wasnot executed till some days after that date, but on execution thetitle it conveyed passed to P. G. D. Clark. On January 18, 1915,P. G. D. dark leased the lands thus acquired, together with the restof the lands constitutingthenew estate (289acresinall), to the Dolos-wala Tea and Rubber Co., Ltd., for ninety-nine years, 2>ut the leaseis made to run from January 1,1913, and the company apparentlyactually entered into possession in the course of the year 1912.The whole of the estate, including the lands now in question, wascleared and planted with rubber, the persons whose title the plaintiffsnow rely on, meanwhile, knowingly or unknowingly, standing byand saying nothing. The process of clearing and improving theestate went on from 1912 to 1919. Tapping commenced in 1919.It could have been started earlier, but the owner preferred to leavethe trees a fuller period to mature.
Shortly after this point the rival interests began to disclose them-selves. Belonging to the family whose lands had been acquired byDoloswala Mahatmaya were two daughters of different branchesof the family, Punchina and Babinga, who were supposed to have
( 131 )
married out in diga. If they had been so married, they would, of 1921.
course, hare forfeited their share in the family inheritance. During
all the years in which the estate was being brought into bearing B^®*Mnothing was said to suggest that this supposition was not correct. _L1But early in the year 1020 the plaintiffs (whom the District Judge,with probable truth, describes as speculative purchasers) appeared tea la Tea andupon the scene and bought in the interests of Funohina (who was Rubberstill alive) and of the son of Babina (who was dead), and on August26, 1920, instituted an action against the company claiming two-thirds of this portion of the valuable rubber estate which thecompany had constructed.
In this Court they made a further claim. In the District Courtthe action was fought out on the supposition that the company,who, if the claim in the plaint was upheld, had for many years beenengaged in improving the estate, principally for the benefit of theplaintiffs, should at least be allowed the expenses of improvement.
But in this Court the successful claimants, for the first time, claimedto be entitled to confiscate these improvements without compensa-tion, on the ground that the defendant company, at the time whenthey were carried out, were not “possessors” of the propertywithin the meaning of the Roman law, but only lessees. Theprevious decisions of this Court on the subject had apparently beenoverlooked by all parties.
With regard to the facts, I agree with my brother Garvin, who hasexamined them in detail, and has explained the principles of theKandyan law of inheritance in their bearing on these facts. Inhis conclusion that the diga marriage of Punchina is not proved,
I agree with reluctance. That Punchina, now an old womanand not called as a witness, was never married is, as the DistrictJudge says, very improbable. But I agree that the evidence of thismarriage is not full enough to justify us in pronouncing a forfeitureagainst her.
But as to the legal proposition that the plaintifisin these circum-stances are entitled to confiscate the company’s improvementswithout compensation, the law of the country will, indeed, be in anunfortunate condition if thisproposition is ultimately upheld withoutqualification, and the situation in that event would, in my ownopinion, be one calling for the attention of the Legislature.
The defendants complained that had this proposition beenadvanced in the Court below, they might .have been in a positionto disclose equitable considerations, which would take the easeout of the decisions of this Court on which the plaintiffs rely.
They point in particular to certain observations in Lebbe v. Christie,1which seem to suggest that the previous decisions of this Court inMudianse v. SeUandyar 2 and MvUiah v. Clements? never expressly
1 (191S) IS N. L. B. SS3.* (1907) 10 N. L. B. 209.
9 (1900) 4 N. L.R.158.
( 132 )
1921* over-ruled, where the lessee’s right to improvements had beenBbbxram reooSn^ze^» might be justified upon special equitable grounds.
O.J. They ask, therefore, that they may be given a further opportunity4«®mSw <^eve^°P^nS their position in the Court below before the pointv.is decided* I agree with my brother Garvin that the equities
walaTeaand in this case are not likely to be to assist them. The equitableCompany principle at the basis of those decisions may be taken to be thatsuggested by my brother De Sampayo in Soysa v. Mohideen,1namely, that a purchaser from a lessor is subject to the same equitiesas the lessee himself. That principle has no application in tinscase. But as the case must go back for further consideration onanother point, I also agree that the defendants should be given anopportunity to develop their case for equitable relief.
It seems to me, as at present advised, that there is only oneequitable principle which might assist the defendants, if the facts ofthe case justify its application (and at present I am far from sayingthat they do), and that is the principle enunciated in The Londonand South African Exploration Co., Ltdv. De Beers ConsolidatedMines, Ltd,,2 quoted by Nathan, vol. 1, p. 413, The principleis there laid down with reference to a mold fide possessor, but alessee, who improves land in the bona fide belief in his lessor's title,cannot be in a worse position than a mold fide possessor. “ If,however, the rightful owner has stood by and allowed the erectionto proceed without any notice of his own claim, he will not be per-mitted to avail himself of hi3 fraud, and the possessor, althoughhe may not have believed himself to be the owner, will have thesame rights to retention and compensation as the bona fide possessor "(Nathan, vol. I, p. 413). See also Walter Pereiras Lav,w of Ceylon359 and 360 and the authorities there cited.N
In the course of tho argument I suggested that the principleenunciated by Lord Cranworth in a well-known passage in Eamsdenv. Dyson 8 might be found to have some bearing on the case. Thepassage is as follows: “ If a stranger begins to build on my landsupposing it to be his own, and I, perceiving hi3 mistake, abstainfrom setting him right, and leave him to persevere in his error, aCourt of Equity will not allow me afterwards to assert my title tothe land on which he .had expended money on the supposition thatthe land was his own. It considers that, when I saw the mistakeinto which he had fallen, it was my duty to bo active and to statemy adverse title; and that it would be dishonest in me to remainwilfully passive on such an occasion, in order afterwards to profitby the mistake which I might have prevented ” (at pages 140 and141).
The rule there laid down is based upon the English law of estoppel,with which our own law has more than once been declared to be
1 (1914) 17 N. L. B. 279.* (1895) A. C. 451.
*{1866)L.R. 1H.L.129.
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identical But the law of estoppel is very rigid and inelastic.Under that law the defendants could only raise the plea, not as aground for claiming the benefit of their improvements, but as anobjection to the plaintiffs* title altogether. You cannot, under thelaw of estoppel, claim to estop a person only to the extent to whichhis implied representations have damnified you. Nor can a personagainst whom an estoppel is asserted claim to have his responsibilityso limited. Estoppel means that a man has so acted that he shallnot be allowed to show the truth at all If authority is needed forthis proposition, it may be found in OgUvie v. West AustralianMortgage and Agency Corporation.1 I do not think, however, thatit would be fair to allow the defendants at this stage of the case toraise an objection to the whole title of the plaintiffs, which it hadnot occurred to them to raise in the Court below. Fortunately, theprinciple of the Roman-Butch law is more elastic and more adaptableto the circumstances, and if the defendants can show facts bringingthemselves within the principle, I see no reason why they shouldnot be allowed to do so.
But I come to the general question of the right of a bona fidelessee to compensation. This case differs from those which havepreviously come before this Court. In this case, as the action hasdeveloped, the lessor and the lessee are sued together, and it issought to evict them from a share of the property by virtue of atitle paramount. There is yet a further distinction. In the twoleading cases which have come before this Court (Soysa v. Mohideen(supra)), the lessee was ejected, not because his lessor had no title, butbecause of the effluxion of the lessor's title. The cases are, no doubt,to a certain extent analogous, but are not identical. When thelessee made the improvements the land was not res aliena. Ithad since become so. His grievance was that he expected to enjoythe result of the improvements longer. This is not the case discussedin Voefc’s chapters dealing with the rights of bones fidei possessor(F., 3, 21, and VI., 1, 35). It is discussed dsewhere (XIX., 2,16).The only question there considered is the lessee’s right to damagesagainst the landlord or his heir. Indeed, this precise case figuresin the Digest {XIX., 2, 9). A usufructuary let a farm on a fiveyears’lease and died before the lease expired. The inquiry is made:“ Can the lessee recover from the heir the cost of improvements ?Si sumptus fecit in fundum, an reeipiat ? ” The answer is : No,if the lessor let as fructuarius, because the lessee might have foreseenthe possibility. Quid tamen si non quasi fructuarius ei locavit, sedsi quasi fundi dominus f Videlicet tenebitur ; decepit enim conduc-lorem. If he let as dominus, the heir must pay.' The law may wellbe that in such a case the disappointed lessee must look to thelessor or his heir for compensation. But the result Would notnecessarily be the same where the lessor had no title at all
1921.
Bebtrah
C.J.
Appuhatnyv. The Doles-wala Tea andRubberCompany
1 (2££6) A. O*otp. 270.
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Bbbtbam
C.J.
1921. Both these Full Court eases, therefore, could have been decided
in such a way as to leave the present question unaffected. It mustbe admitted, however, that the ratio decidendi adopted by the FullCourt in Soysa v. Mohideen (supra) is so wide and is expressed in
v^T^Doio^ such unqualified terms that it must be taken to cover the presentca0e* R' would hardly be possible to seek .to re-open a question on
Company which the opinion of the Full Court has been so authoritativelyexpressed. The further distinction, however, that in this case thelessor and lessee are sued together remains to be dealt with.
Before I pass to this, however, I may perhaps be permitted to saya few words on the general question of the rights of the lessee to theexpenses of improvements as against a person claiming adverselyto his lessor. I have not been able to find any discussion of or evenallusion to this question, either in the original Homan texts or in theDutoh commentators upon them. The conclusion reached by ourCourt in Soysa v. Mohideen (supra) was apparently reached by aprocess of commenting on the commentators. The two chaptersin which Yoet disousses the respective rights of a bones fidei possessoranda males fidei possessor are those “de hereditatis petitione ” (V., 3)and “ de rei vindications u (VI., 1). The question naturally arose :What were the rightB of persons ejected by these actions who hadspent money on the lands from which they were ejected ? Theanswer was, that if he was a bongs fidei possessor he was entitledto compensation. That a lessee has not the civilis possessio isundoubted, but it may be suggested that the rights of the bonesfidei possessor were emphasized in those chapters, not because ofthe importance attached to his civilis possessio, but, on the onehand, because of the importance attached to his bona fides, and,on the other, because of the maxim, cited in this connection,“ lure natures aequum est neminem cum dtierius inuria fieri locupleti-orem.” (For instances of the generality of this maxim see VoelVI., 3, 52.) There is nothing in that maxim which requires thatit should be limited to persons holding the civilis possessio. It mayfurther be suggested that if either the Roman praetors or the Butchjurists had had specific occasion to consider the application of thatmaxim to a lessee, more particularly a lessee under a long leaselike the present, they would have hesitated to declare that it appliedonly to persons holding the civilis possessio. If necessary, I cannothelp thinking that just as for certain purposes they recognized theexistence of an utile dominium, they would for this purpose havetreated him as having an utilis possessio. The South African Courtsappear to have found it possible to treat the question from thebroader point of view. See Rubin v. Botha1 and Bettingham v. Bloom-metye.9 The pronouncements of ourownCourtmakeitimpossibleforus to do so, and the result is that the principle, so limited, is in thepresent case in danger of proving a defective instrument of justice.
1(1912) S. AJr. L. R. (App. Dim.) 668.
3 (1874) Buck. 36.
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It remains to consider whether, in the present case and similarcases, its defects oan be remedied by allowing the lessor to claim inrespect of his lessee’s improvements. It could hardly be consideredsatisfactory that when both lessor and lessee were before the Court,the claim of the lessor, who had the ddUs possessio, should be rejectedbecause he did not make the improvements, and that of the lessee,who had made the improvements, should be rejected because hehad not the ddUs possessio, more particularly as in most cases,if not in every case, the lessor would be himself responsible to thelessee in damages. I agree that the case should go back so thatthis question may be carefully considered, and I agree that if it isto be considered, this should be done in the formal and regularmanner that my brother Garvin suggests.
It may be noted that the lessor retains the possessio even when hehas delivered the property to the lessee. There is a passage in Voetin which the expression is used in this precise connection. (SeeXIX., ii.9 17.) “Si (amen bongs fidd possessor, qui prsediumdocaverai, ejus eddionem patiatur ante finem locationis, et edneenscolono vd inquiUno usum neget,” see also Institutes IV., IS, 5.“ Possidere avtem ddetur quisque non solum, si ipse possideai, sedet si dus nomine aliquis in possessions sit …. quatis est
colonus et inquilinus” See also Dig. XLI., 2, 26, 1. “ Et percolonos et inquilinos aut servos nostros possidemus.” If, therefore,an owner may be considered as possessing through his tenant, whymay he not be consideredas improving through his tenant, and whyshould a bongs fidd possessor, who turns out not to be the owner,olaim compensation on his tenant’s behalf ?
With regard to the amount of expenses, if found ultimately to berecoverable, I think that this should be the actual amount expended.The supposition of the benefit derived being less than the expenditureneed not here be contemplated. In the present case the expensescan only be calculated on the basis of an average per acre. I thinkthat the learned Judge was wrong in giving what he considered tobe a reasonable amount. Mr. Berwick’s rule (2) given on page 369of Walter Pereira’s Laws of Ceylon seems to me to be too condensed asummary of the passage of the Digest on which it is based. (See Dig,VI., 1,38.) The exception mentioned by Voet inhis own commentson this passage, namely, “ Nisi h& nimis graves, nec eas ipse dominusfuissetfacturus ” (FI., 1,36), seems to me, readin connection with thepassage in the Digest, to refer to the special case of a sumptuousbuilding onthelandof a poor man. The Judge on these authoritiescertainly has a discretion in the matter, but in the present instance inall probability the expenses are comparatively high, simply becausethe work was particularly well done. The benefit to the ownerswill be correspondingly great. I do not see why compensation, ifdue, should not be paid at the full rate of the expenditure per acre.With regard to the cost of the cooly lines, the question is somewhat
1931.
Bsbssah
C.J.
Appuhamgv. The Dolos-uxdaTta andBobberCompany
1921.
Bbrubah
C-F.
Appuhamyv. The Doha*walaTea andRvhberCompany
( 136 )
different. A company like the defendants might be expected toprovide better accommodation for its coolies than persons in theposition of the plaintiffs, and here the case of buildings cited byVoet and in the Digest more closely applies. I would, therefore,adopt the District Judge’s method of assessment in this matter.The actual partition of the buildings among the shareholders mustawait the anticipated partition action, and in this it will, no doubt,be found possibl^to give effect to the defendant company’s equitableclaims.
T agree with the order proposed by my brother Garvin.
Garvin A.J.—
This is an action for a declaration of title to an undivided two-thirds of a portion of land described in thepl&int as Nahalweturalagepanguwa. The land was some years ago incorporated in and nowforms part of a rubber estate, of which the defendant company, the .Doloswala Tea and Rubber Go., Ltd., claims to be the owner. Theparticular portion of land now in dispute, approximately 103 acresin extent, was leased to the company by Mr. P. G. D. Clark, who isthe added defendant.
The defendants plead Mr. Clark’s title, aver that they plantedthe land with rubber, and, in respect of the improvements so effectedby them, that in the event of the plaintiffs being declared entitledto any share of the land, they, the defendants, be declared entitledto retain possession of the land till compensated.
The added defendant claims the whole “ p&ngu,” and prays forthe dismissal of the plaintiffs’ action.
The District Judge declared plaintiffs entitled to five-twelfths ofthe land, and allowed the defendant company, in respect of thatshare, the sum of Re. 16,639*69 as compensation for improvements.
Prom this judgment the added defendant appealed. The plain-tiffs, as respondents to the appeal, have, under the provisions ofsection 772 of the Code, taken certain objections to the appeal, andthe dofondani company aimilaiiy has filed a statement of certainother objections.
Mr. Tfowa, counsel for plaintiffs, respondents, objected to thedefendants* objections being entertained, but alter discussion it wasagreed by counsel that the objections of each respondent should bedealt with as an appeal to which the other parties are respondents.It is not, therefore, necessary to consider the merits of Mr. Bawa’spreliminary objection.
Tbei land in dispute originally belonged, to one Alensuwa, whohad >Var children, to wit, Kirikmaya, Eirib&ba, Thomiea, andfeatanohiyi,,. Kmlamaya died intestate and unmarried, so that theremakiing three brothers became entitled to the whole land iniIs proportion of one-third to each. Kirihaba and Thomisa were'assosud&d as husbands of one Mends. Puuchina and Kirionchiya
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were admittedly children of this association. Elenda had a thirdchild, Babonchiya alias Abanchiya. The plaintiffs say that thischild was bora to ThomiBa after the death of Kiribaba, and is,therefore, in the position of a half-brother; that on Kiribaba’sdeath the two children of the association, Punchina and Kirionchiya,took his one-third in the proportion of one-sixth each; and thaton the death of Kirionchiya, intestate and unmarried, Punchinatook her brother’s share and thus became entitled to one-third,the whole of Kiribaba’s share; they also claim that on Thomisa’sdeath Punchina got half his share, the ether half devolving onBabonchiya alias Abanchiya. The one-third share which belongedto the other brother, Babonchiya, the plaintiffs say devolved upontwo of his children, to wit, Babinga and Kiriendera,as the other twowere daughters who married in diga and thus lost their rights ofinheritance. Babinga’s share was claimed by her son Hatenuwa,and the plaintiffs now claim two-thirds as purchasers of the sharesof Punchina and Hatenuwa.
The added defendant, on the other hand, asserts that Babonchiyaalias Abanchiya was also a child of the association. It m his casethat Punchina married in diga and lost her rights to inherit bothfrom her parents and from her brother Kirionchiya. So that inthe result the two-thirds shares belonging to Kiribaba and Thomisadevolved exclusively on Babonchiya alias Abanchiya. The addeddefendant agrees with plaintiffs that two of Babonchiya’s daughtersmarried inbat they assert that Babinga, like her sisters, also
married inso that the whole of Babonchiya’s one-third share
devolved ov ms s;;n Kiriendara. The shares thus assigned toBabonchiya aUm Abanchiya and to Kiriendera—two-thirds plusone-third—is the whole estate which was transferred by them to oneT. B. Dolaswala, from whom it wa^p^'c based by theadded defendant.
On tV: ? statement cf the respective cases of the parties threeIssues tact arise: Mrst, whether Babonchiya alias Abanchiya wasthe o!&sso<ttft&ioof or whether ke was bom after the dissolu-
tion of the association on the death of Kiribaba ; second, whetherPcnchina. a hi diga as alleged by the added defendant;
♦bird, whether B&hmga was married in diga.
The District Judge ha* held tW. Babonchiya cUas Abanchiyawas not the child of the association, and that he was 1>orn co Elendaand Thomisa after Eirihaba’s death. He has also to ad that theevidence proved that ribbing* was married in bimu* and not in digaas alleged by the added defyadantv There is ample evidence tosupport the jj&atrictimfihigs on these two issues of fact,
and I see no reason to doubt that those findings are correct.
It is only necessary to consider thosecond, t'lu£h&t ox no Pmiahmawot .married in diga„ The District Judge hse held that She was.The oral evidence called by the added defendant is of no real value.The only witnesses sailed tv* the defence, whose evidence lends
&
1021.
Gabvin A.J.
Appuhamyc. The Dolos-toala Tea andRubberCompany
( 188 )
1921,
Oabvxk A.J.
Appuhamyv. The Doloa-walaTta andRubberCompany
any support to the contention, are Pinkolahamy, LindekumbureEiribaba, and Agonis Appn. The first named says: “ I haewNahalwaturuge Eirionchiya and his sister Punohina. She iB atDoloswala. I do not know whether she was married." Eiribabawho starts by saying of Punohina: “ She is in Doloswalakanda, ’ ’almost immediately after says: “ She is said to be at Doloswala."He does not know whether Punohina had gone out in diga or not.He does not even know in whose house she stays.
In cross-examination he says: “ I met Punohina on the road atDoloswalakanda.” This is apparently the foundation on whichhis evidence is based.
This evidence proves nothing. It does not prove a marriage indiga; indeed, it doeB not prove that Punohina at any time in herlife lived at Doloswala for any appreciable period.
Agonis alone speaks to a husband, but all he Bays is that he sawPunchina at her husband’s house at Doloswala. He, apparently,does not know when the marriage took place, &nd does not say atwhat period of her life or for how long Punchina lived at Doloswala.,His evidence, as recorded, would seem to show that for very manyyears past Punchina has lived in her native village. There is thefurther fact that Dingiriya, the alleged husband, had left his“mulgedara," and it was not there the witness saw Punchina.
This is all the oral evidence. It falls far short of proof of a digamarriage, if indeed it proves a marriage at all.
The District Judge appears to have based his finding on certaindocuments read in evidence. He relies mainly on the documentsD 6 and D 7. The first of these consist of the proceedings of caseNo. 9,561 of the District Court of Ratnapura. That was an actionfiled by Elenda on April 20, 1870, to vindicate for herself a lifeinterest in a one-third share of a field called Ruhaltenakumbura.Elenda claimed as the widow of Eiribaba, alleging in her plaintthat her husband’s one-third share on his death devolve upon hisson Eirionohiya, subject to a life interest in her favour. This theDistrict Judge regards as a clear indication that Punchina was atthat date married in diga. This, undoubtedly, is a possible explana-tion. . It is suggested, however, that Elenda was concerned in thataction to vindicate her title to a life interest, and that it was sufficientfor her purposes to allege that Eiribaba had issue. I have perusedthe proceedings, and, except for this averment in the plaint, I canfind in the evidence recorded in that case no reference whatever tothe children born to Elenda and Eiribaba. ' Thomisa states thatEiribaba left “ issues.” This is the only passage in the evidencewhich refers to Eiribaba’B family. It seems clear that, at allevents, at' the trial all that it was thought necessary to establishwas that Eiribaba did leave Borne issue.
But whatever support the averment in this plaint may have leantto, the added defendant’s case is weakened by the document P 2.
( 13» )
This is an extract from the Service Tenures Register made under theprevisions of Ordinance No. 4 of 1870. It refers to the Mahalwatu-ragepangu, and among the paraveni nilakar&yas is entered the nameNatohraturage Elenda. The evidence is that'Punchina was alsoknown as Elenda, and Nahalwaturage Elenda clearly refers to her.
This iB a record which establishes beyond doubt that PunohinawaS'one of the co-owners of this land in 1870. It is contended thatif this record was made at the earliest possible date, it might havebeen made in February, 1870, and that the proceedings D 6 whichwere taken in April of that year indicate that Punchina must inthe interval have been married in diga.
The contention at its best is not very convincing. It is basedentirely on the supposition that this was one pf the very firstlands dealt with by the Commissioners appointed under the ServiceTenures Ordinance; of this there is no proof.
Documents P 2 and D 6 are records made about the same time.The one is an entry made by a third party; it is the record of anofficer specially appointed to inquire into the matters to which thisrecord refers. D 6 so far as it helps the added defendant is merelya statement in a plaint.
It is impossible, in view of the existence of the record P 2, todraw from a statement in this plaint, which may or may not be basedon information from Elenda, an inference which will have the effectof disinheriting her daughter Punchina.
It appears from D 7 that Abanchiya, in an action to vindicate ashare which he could not possibly claim if Punchina’s rights weredisclosed,-decided to make no reference to her at all. This is certainlynot a reason for holding that Punchina had lost her rights by amarriage in diga.
There is this further comment to be made in regard to these cases,that whether married in diga or not Punchina was entitled to ashare in her brother Kirionchiya’s estate.
Facts from which a forfeiture of rights of inheritance follow shouldnot be lightly presumed. They must be proved. The evidencein this case does not amount to proof of theyaverment, the onus ofwhich lies on the defendants. I, therefore, hold that Punchina didnot forfeit her rights of inheritance by a marriage in diga.
Now, it is common ground that on the termination of the associa-tion by the death of Kiribaba, his one-third immediately vested inhis children, subject to a life interest in his widow Elenda. Aban-chiya was not a child of the association. It follows, therefore,that Kiribaba’s interests vested in his two children, Punchinaand Kirionchiya, who each took a one-sixth share of the land.Thomisa continued as Elenda’s husband, and to them was boma son Abanchiya* Kirionchiya was the next member of thefamily to die.
1921.
Gabvzb A.J.
Appuhamyv. The Dolos-vxdaTeaandRubberCompany
( 140 )
1921.
Garvin A.J.
ApptihamyPt The. Dolos-wtlaTea andRubberCompany
It is contended for the plaintiffs that his share devolved on hissister Punchina, who thus became entitled to one-third of the land.I think the contention is sound. It is not disputed that a sistertakes the estate of her brother to the exclusion of her half-brother.It was suggested, however, that Abanchiya should be regarded as afull-brother and not as a half-brother. Abanchiya, Kirionchiya,and Punchina were the children of the same mother, and it issuggested that Thomisa, as the father of Abanchiya, as memberwith Kiribaba of the association to which Kirionchiya and Punchinawere born, might physically have been their father. This must beadmitted. But it must also be admitted that they might wellhave been the children of Kiribaba and not of Thomisa!
It is a rule of inheritance of the Kandyan law that where twobrothers have a joint wife, the estate of the brother who dies firstpasses to the children of the association, and that when the survivorwho after the dissolution of the association has children by the samewife dies, his estate is divided equally among all the children,whether born during the association or thereafter (vide Modder388, Armour 74). This proposition, as I have said earlier, is notdisputed. It is an equally well-established rale of the Kandyanlaw that property inherited from his father by a person dyingchildless and intestate will devolve on his brothers and sistersof the full blood equally (vide Modder 588). The principle of^the rule clearly is this: Property inherited by a person from hisfather must on his death, childless and intestate, pass to the otherchildren of his father by the same wife.
It is the property inherited by Kirionchiya from his father Kiribabawith which we are here concerned. For the purpose of determiningthe devolution of this property, it is necessary to ascertain whether,besides Kirionchiya, there are any other children of Elenda who arelegally her children by Kiribaba. Punchina clearly is such a child,and Abanchiya equally clearly is not. It follows that it is Punchinawho succeeds to the property of her brother Kirionchiya and notAbanchiya. Punchina, therefore, inherited one-sixth from herfather Kiribaba, one-sixth from her brother Kirionchiya, and fromThomisa one-sixth, the remaining one-sixth passing to Abanchiya.These three-sixths or half were admittedly purchased by theplaintiffs, who also purchased from Hatenuwa the one-sixth which heinherited from his mother B&binga. The plaintiffs had, in myopinion, established a clear title to half plus one-sixth or two-thirdsof the land, and the title to that share is accordingly declared. TheDistrict Judge has held that the defendants have not establisheda title by prescription, and there is no reason for saying that he waswrong.
There remains the question of compensation for improvements.The Roman-Dutch law gives to the improver of lands a right tocompensation for improvements effected by him, and with this right
( 141 )
goes the farther right to retain possession until compensation ispaid. But this right is given only to a person who, at the time whenhe made the improvements in respect of which the right iB claimed,had the possessio dvilis, which is defined as “ detentio animodominiA lessee has no such possession. With a view to amelio-rating his position, a limited right to a measure of relief has beenaccorded him as against his lessor, but there is no authority tot theproposition that an action for compensation was available to alessee against a person who vindicates his right to the land by atitle adverse and independent of his lessor. The Roman-Dutohlaw is, therefore, clearly against the defendants. This view of thelaw has been expressly affirmed by two rulings of the Full Benchof this Court. I refer to the cases of JSoysa v. Mohideen1 and Lebbev. Christie.*
It was contended, however, by Mr. Drieberg that the language inwhich the earlier cases of Mvdiyanse v. SeUandyar 8 and MvMiahv. Clements 4 were referred to by the judgments indicate that theJudges who delivered them thought that when special equities wereestablished the Courts would recognize a right in a lessee to be com-pensated for improvements effected by him to the leasehold property.After a careful examination of these cases, I have formed the opinionthat there is nothing in their judgments to show that the Judgesintended to approve the decisions in the earlier caseB, or to recognizeany right in a lessee to compensation for improvements, except to avery limited extent, and that only as against his lessor, and possiblyagainst a person claiming under his lessor.
No passage from any recognized authority on the Roman-Dutchlaw, nor any decision of this Court, was cited to show that an actionfor oompens&tionfor improvements, apart fromcontract, was allowedto a lessee as against a person who established a title to the premisesunder lease by a title adverse to and independent of the lessor.
An appeal was, however, made to us to allow the defendants afurther opportunity to develop their case for equitable relief. Forthe reasons which I have given, I should myself have been disposedto reject the appeal, on the ground that the defendants have failed *to show that such a remedy, except within the limitations outlinedby me, was available in law. In view, however, of the fact that theobjection taken in this Court to the defendants9 claim for compensa-tion does not appear to have been taken in the Court below, and thatfor reasons which will appear later, I think the case must, in anyevent, be remitted to the District Court for another purpose, thedefendants may have this opportunity, but on the distinctunderstanding that, as at present advised, I am unable to seethat any such remedy is available under the law in force in thiscountry.
*(1907) 10 N. X. R. 209,* (1900) 4 N, L. B. 268.
1921.
Gabvin AJ.
AppuhamyV. The Doloa-wala Tea andRubberCompany
1 (1914) 17 N. L. R. 279.t(l9l6)18N.L.R. 363.
1921.
Gabvxk A.J.
Appuhamyv. The Dotoe-walaTea andRtibberCompany
( 142 )
It was contended that if the defendants as lessees were not entitledin law to maintain an action for compensation, it was open to theadded defendant to olaixn the benefit of his lessee’s improvementsand maintain an action for compensation in respect thereof. Noclear authority for this proposition was cited, but the brief referencemade to the point in Soysa v. Mohidem1 and Lebbe v. Christie 8are, I think, sufficient to show that the contention on first impressionis a possible one, and certainly one that should be carefully con-sidered. It is not possible to do so at present, because no suchclaim has as yet been made by the added defendant, and noevidence haB been given in support of such a claim. Having regardto all the circumstances of this case, I think the added defendantshould be given an opportunity to prefer and develop a claim tocompensation, if so advised, and for this purpose the case must goback. As I have said before, it will be open to the defendants toavail themselves of this opportunity to formulate such claims tocompensation for improvements as they may be advised to make.But the claims, if made, must be embodied in appropriate pleadings,whether by way of further answers or otherwise, and the plaintiffsmust have an opportunity to file pleadings by way of reply to theclaims presented by the defendants and added defendant, or eitherof them.
I would, therefore, upon this appeal, adjudicate and direct asfollows:—
The judgment of the District Judge is set aside. The plaintiffsare declared entitled to an undivided two-thirds share of the landin dispute and their costs of action, which will be paid by the addeddefendant.
The case is remitted to the District Court to enable the defend-ant company and the added defendant to file further pleadingsformulating their claims, if any, to compensation for improvements,such further pleadings to be filed within two months from the dateon which this record reaches the District Court. If no such claimis entered within the timeabove prescribed, judgment will be entereddismissing all claims for compensation for improvements, and theplaintiffs will, further, be declared entitled to be placed and quietedi% possession of the two-thirds share to which they have beendeclared entitled.
If within the time prescribed a claim or claims has or had beenentered in terms of the above order, and the plaintiffs have beengiven an opportunity to reply thereto, the District Judge will tryand determine the matter of such claims as in a regular action, eachparty being at liberty to adduce farther evidence.
The plaintiffs have substantially succeeded, and are entitled to thecosts of this appeal, which will be paid by the added defendant.
Sent back
• (1916) 28 N. L, R. 353.
1 (2914) 17 N. L. R. 279,.