107-NLR-NLR-V-69-D.-STEPHEN-Appellant-and-D.-ELANDI-Respondent.pdf
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Stephen v. Elandi
1965Present: Tambiah, J., and Alles, J.
D. STEPHEN, Appellant, and D. ELANDI, RespondentS. C. 11611963 (Inty.)—D. C. Kurunegala, 804/L
Kandyan law—Donation of undivided shares of certain lands—Subsequent partitiondecrees in respect of those shares—Incapacity of donor to revoke his gift thereafter—Kandyan Laiv Declaration and Amendment Ordinance (Gap. 59), s. 4.
By deed P3 executed on 24th February I93C a person, who was subject tothe Kandyan law, gifted undivided shares of certain lands to the dofendant-appellant. By final decrees entered in 1942 in two partition actions thedefendant was given divided lots in lieu of the undivided shares which hadbeen gifted to him. In 1958 the donor revoked his gift of 1936 and, by deed P2,■transferred to the plaintiff the undivided shares of the lands gifted on P3 aswell as tho divided lands allotted to the defondant under the partition decroosof 1942.
field, that the partition decrees of 1942 had the effoct of extinguishing theright of the donor to get back the undivided shares by revoking the gift.The plaintiff, therefore, obtained no title under the transfer deed P2.
A.PPEAL from an order of the District Court, Kurunegala.
H. W. Jayewardene, Q.C., with I. S. de Silva, for Defendant-Appellant.. G. Ranganathan, for Plaintiff-Respondent.
Cur. adv. vult.
TAMBIAH, J.—Stephen v. Elandi
493
February 11, 1965. Tambiah, J.—
The plaintiff brought this action against the defendant for adeclaration of title to an undivided half share of four lands described inschedule “ A ” and to the four lands described in schedule “ B ” of theamended plaint and prayed for ejectment of the defendant from theselands.
It is common ground that one A. D. Siri, a Kandyan, who was theowner of a half share of the four lands described in schedule “ A ” ofthe amended plaint, gifted his interest in these lands to the defendantby deed No. 40907 of 24th February 1936, marked P3.
By the final partition decree entered in D. C. Kurunegala Case No.19534 on 29th October 1942, marked 1D2, in lieu of his undivded sharein the first land described in schedule “ A ” of the amended plaint, thedefendant was allotted lots A1 and B1 in plan No. 2128/A of 14th July1942.
In D. C. Kurunegala Case No. 19512, in the final decree entered on30th November 1942, marked Dl, the defendant was allotted lots G1 andHI, in plan No. 2123/A of 14th July 1942, lands described as lots 3 and4 in schedule “ B ” of the amended plaint in lieu of his undivided interest-in the lots 2, 3 and 4 of the lands described in schedule “A” of theamended plaint. The resulting position is the partition decrees referredto wiped out the undivided interest of the defendant in the lands whichhe obtained on deed P3 and in lieu of his undivided shares he was givendivided lots described in schedule “ B ” of the amended plaint.
It is the plaintiff’s case that one A. D. Siri, by deed PI of 1st November1958, revoked the deed of gift P3 and gave a deed of transfer to the plaintiffby deed P2 of 1st November 1958. It is significant to note that theinterests transferred by P2 of 1st November 1958 were the undividedshares of the lands gifted on P3 as well as the divided lands allotted tothe defendant under the partition decrees. The deed PI revoked thegift of the undivided shares of the lands in schedule “ A ” to the amendedplaint.
Counsel for the appellant contended that although the defendantwas vested with legal title to the divided portions allotted to him inlieu of his undivided shares he got on P3, yet as a result of final decreesentered in the partition actions mentioned above, the equitable right torevoke the deed of gift remained in A. D. Siri and therefore the deedPI was a valid deed of revocation which vested the title to the dividedlots described in schedule “ B ” of the plaint on A. D. Siri who transferredhis title to the plaintiff.
In support of his proposition, the counsel for the appellant relied on the.well known dictum of Bertram, C. J. in Marilcar v. Marikar1 to the effectthat equitable interests are not wiped away by a partition decree.In that case the Divisional Court was confronted -with the questionwhether a trust, express or constructive, was extinguished by a decreefor partition.
1 (1920) 22 X. h. R. 137.
494
TAMBIAH, J.—Stephen v. Elandi
The Partition Ordinance made no provision setting out the effects of apartition or sale of a land which was subject to an express or constructivetrust or a fideicommissum. The court, in finding a solution to thesevexed problems sought to give an interpretation to sections 2 and 9 of thePartition Ordinance.
At first the courts considered the question whether a land which issubject to a fideicommissum could be partitioned. With some hesitationthe Privy Council expressed the view that such lands could be partitioned(vide the obiter dictum of the Privy Council in Tillekeratne v. Abeysekere1).The Supreme Court ultimately adopted this view (vide Abeysundere v.Abeyesundere2 ; De Saram v. Perera3).
In Babey Nona v. Silva4 the Supreme Court went a step further andheld that where a property was partitioned without reference to thefideicommissum attaching to it, and the share allotted to the fiduciaryin severalty was bought by a bona fide purchaser, the fideicommissumattached to that lot. The reasons given for this view do not bear anyexamination. A sale under an interlocutory decree entered in a partitionaction in respect of property, which was subject to a fideicommissum,was regarded as one made under the provisions of the Entail and Settle-ment Ordinance No. 11 of 1876 (vide Sathiananden v. Matthes Pulle5).But what was overlooked was that under the Entail and SettlementOrdinance, the jurisdiction of the court can only be invoked by a specialapplication made by a person who had interests in the property impressedwith a fideicommissum and in such an application all interested personsshould be made parties. A more serious objection is that only a DistrictCourt has jurisdiction to entertain an application to sell a propertyimpressed with a fideicommissum under the Entail and SettlementOrdinance. Therefore the doctrine enunciated in Sathiananden’s case,(ibid.) cannot be applied to partition cases brought in the Court of RequestsDespite these fundamental defects in reasoning, the rule laid down inSathiananden’s case (ibid.) became the starting point of a series of decisionswhich firmly established this principle of law.
In Marihar v. Marilcar 6, the case relied on by counsel for the appellant,Bertram C.J., after reviewing the cases dealing with the history ofinterpretation of sections 2 and 9 of the Partition Ordinance, dealt withthe difficult question of the effect of a partition decree when a land soughtto be partitioned was subject to a constructive or express trust. Withsome hesitancy, Bertram C.J. adopted the suggestion of Shaw J. andinterpreted the expression “ title of a party to such shares or interests ”in the second part of section 9 of the Partition Ordinance to mean “ thetitle to legal ownership ”, and held that the phrase “ right or title ” inthe first part of section 9 of the Ordinance included a jus in re aliena butnot obligations in the nature of equitable interests, which thoughoriginally binding on the conscience have subsequently become enforceablein law on the person.' vested with legal ownership.
{1837) 2 N. L. R. at 200.* (1906) 9 N. L. R. 251.
{1909) 12 N. L. R. 373.6 {1897) 3 N. L. R. 313.
* 3 Browne Reports 188.' (1920) 22 N. L. R. 173-
TAMBIAH, J.—Stephen v. Eland*
496
Referring to section 9 of the Partition Ordinance, Bertram CJ.observed (vide 22 N. L. R. 140) as follows :
“ I would, in fact, in the first passage quoted above, construe thewords ‘ right or title ’ as meaning in the case of the word * right'a jus in re aliena, and in the case of the word ‘ title ’ as meaning thetitle to the dominium ; and in the second passage I would construethe word ‘ title ’ in its reference to both ‘ shares and interests ’as meaning ‘ title to the dominium ’. ”
He also held that the word “ interest ” was used throughout theOrdinance in the same sense as it was used in section 14 of the PartitionOrdinance. Section 14 was dealing with the interest of planters topermanent plantations and the right of soil owners to institute a partitionaction. Having construed the words in section 9 of the PartitionOrdinance in the way he did, Bertram C. J. held that the word “ interest ”in section 9 did not connote equitable interest. It is difficult to visualizewhy the word “ right ” should be given a narrow construction to meanjus in re aliena in the first part of the section 9 and the word “ title ”in the second part of section 9 should be construed as dominium. Bydominium is meant, full ownership as understood in Roman Dutch Law.It comprises the valuable rights of an owner to use, enjoy, sell and alterthe nature of the property (jus utendi, fruendi and abuiendi). If theword “ title ” is given the meaning dominium as understood in commonlaw then a person to whom a property has been given under a partitiondecree cannot hold it as trustee. Since a trustee has only the bare titleto the land and he has to hold it for the use and benefit of thebeneficiary.
Section 14 of the Partition Ordinance gave special rights to persons,who were soil owners and persons who have made permanent plantations,to initiate partition actions, although strictly they are not co-owners.There is no valid reason to interpret the word “ interest ” in section 9 tomean interest referred to in section 14 of the Partition Ordinance. Thusit is clear that in order to meet a special situation, Bertram C.J. had toresort to a strained interpretation by stretching words of the PartitionOrdinance, which were only intended to partition lands between co-owners,in order to give relief to beneficiaries.
The dictum relied upon by learned Counsel for the appellant is inconflict with the dictum of Garvin J. in Fernando v. Cadiravelu J, in whichhe took the view that upon the issue of the certificate of sale to a purchaserunder a decree for sale, the title declared to be in the co-owners is definitelypassed to the purchaser. The dictum of Garvin J. was adopted byGratiaen J. in Britto v. Heenatigalle 2 where he went to the extent ofholding that the rights of a statutory tenant, which may be equated to ajus in re aliena, were ^not wiped out by a certificate of sale under thePartition Ordinance. Therefore the dictum of Bertram C.J. relied onby Counsel for the appellant should not form the basis to meet newsituations which are not covered by the ratio decidendi in that case.
» (1927) 28 N. L. B. 492 at 498.- (1956) 57 N. L. B. 327.
496
TAMBIAH, J.—Stephen v. Eland*
Counsel for the appellant contended that the right of a Kandyan torevoke the gift is an equitable right. Equitable rights referred to by-Bertram C.J. in the case of Marikar v. Marilcar, necessarily refer to therights of a beneficiary, where the property which was the subject matterof the partition was impressed with a constructive or express trust. Theright of a Kandyan to revoke a deed of gift is a statutory right given tohim now by the Declaration and Amendment of Kandyan Law Ordinance(Cap. 59). The early Kandyan Law did not recognise wills.A person who became feeble and could not perform his feudalobligations transferred his property to a child or close relation and oftensought succour and assistance from the donee. Since his transfer wasregarded as a testamentary disposition, he was given the right to revokea deed of gift, subject to certain exceptions. A Kandyan was given aright to revoke a deed of gift even where the property has passed to thehands of a bona fide purchaser from the donee (vide MoUigoda UnarrhooweRatemakatmaya v. Abeyratne Ratwatte l).
The right of the donor to revoke his deed of gift is not an equitable rightsince the donee, under a Kandyan deed of gift, had full dominium overthe property (vide Hayley 315).
The deed of revocation PI was effected after the Declaration andAmendment of Kandyan Law Ordinance (Cap. 59) came into operationand the donor’s right to revoke his deed of gift must be foimd in section4 of this Act. Section 4 of the Act only enables him to “ cancel or revokewhole or in part a gift.” He could therefore only revoke what he gaveon deed P3. What he gifted on P3 was the undivided interest in theland described in schedule “ A ” to the plaint. As a result of the decreeentered in the partition case referred to, the defendant acquired a newtitle to the divided lots described in schedule “ B ” of the amended plaint(vide Bernard v. Fernando 2). The undivided interest transferred by P3,in the lands described in schedule “ A ” to the plaint were wiped out andare no more in existence. Therefore, A. D. Siri cannot get back theundivided shares by revoking deed P3, as they are not in existence. He,therefore, had no title to transfer the undivided interest in the lands inschedule “ A ” and the divided lots in schedule “ B ” of the amendedplaint, by deed P2 to the plaintiff.
For these reasons I hold that the plaintiff has no title to the landsdescribed in schedules “ A ” and “ B ” to the amended plaint and thedefendant is vested with title to the lands in schedule “B” of the amendedplaint. I, therefore, set aside the order of the learned District Judge anddismiss the plaintiff’s action with costs in both courts.
Aixes, J.—I agree.
Appeal allowed.
» (1885) S.C.C. 111.
* (1913) 16 N. L. R. 438.