DALTON SJPJ.—Fernando v. Babanissa.
1936Present: Dalton Sfi. and Koch J.
FERNANDO v. BABANISSA et-al.
314 and 315—D. C. Kegalla, 9,398.
Planting agreement—Agreement by planter to deliver a share of the produce—Nature of right—Permanent right to trees—Partition action—Orderfor sale—Ordinance No. 10 of 1863, s. 14.
Where a planting agreement provided as follows :—
“After the planting of the said land is over the planter shall yearlydeliver to the owner of the land or to an heir one-third share of theproduce derived from the said land, and the planter or his childrenheirs and grandchildren descended of him up to their generationsshall be entitled to possess the remaining two-third share thereof asplanter’s compensation ”,—
Held, that the agreement vested the planter with only a permanentright of property in the trees upon the land with the rights necessaryto the enjoyment of that right within the meaning of section 14 of the• Partition Ordinance and that the interest of the planter may be soldunder a decree entered in a partition action in respect of the land.
y^PPEAL from an order of the District Judge of Kegalla.
Case No. 314.
V. Perera (with him M. T. de S. Amerasekera and E. B. Wikrama-nayake), for plaintiff, appellant.
H. E. Garvin, for first defendant, respondent.
Case No. 315.
H. V. Perera (with him M. T. de S. Amerasekera and E. B. Wtkrama-nayake), for second defendant, appellant.
H. E. Garvin, for first defendant, respondent.
Cur. adv. vult.
February 21, 1936. Dalton S.P.J.—
The two appeals arise out of a partition action, the plaintiff (appellantin No. 314) and the second defendant (appellant in No. 315) beingco-owners of the land sought to be partitioned. The first defendant,who claims an interest in the land under a planting agreement, is therespondent in both appeals. He also claimed title by prescription,which could not be maintained and was not pressed. At the trial theappellants claimed to be entitled to an order for the sale of the propertyunder section 14 of the Partition Ordinance. The respondent, on theother hand, claimed for himself and his heirs to be entitled in perpetuityto possession of lot 3, roughly representing the planted portion, subjectonly to the delivery to the soil owners of a one-third share of the produce.
The planting agreement (exhibit P 10) is dated December 31, 1901,and was between the respondent and a predecessor in title of theappellants. The land to be partitioned is 4 acres 15 perches in extent,and 2 pelas of the whole, to the eastern side, was delivered to therespondent to be planted within a period of eight years. There were theusual provisions as to catch crops and as to what was to happen in caseof default in planting within the time limited.
DALTON S.P.J.—Fernando v. Babanissa.
The agreement then, in paragraph 5, went on to provide as follows :
“ After the planting of the said land is over as hereinbefore agreedupon, the planter shall yearly deliver to me the owner of the landor to an heir one-third share of the produce derived from the said land,and the planter or his children, heirs and grandchildren descendedof him up to their generations shall be entitled to possess the remainingtwo-third share thereof as planter’s compensation
In view of the terms of this paragraph, the trial Judge holds that therespondent is in a more secure position than a person having a permanentTight to growing trees on the land sought to be partitioned. This is so,he states, because under the agreement P 10 not only his rights but thoseof his heirs and successors are secured. He further held that a salewould be inequitable and was unnecessary. He thereupon ordereda partition of the land, subject to the respondent’s right to remain inpossession of 2 pelas or 24 acres on the east of lot 3 under the conditionsmentioned in the planting agreement. He further declared that therespondent and his successors were entitled to remain in possession ofthe 2 pelas or 24 acres and to pay one-third of the produce to the appel-lants and their successors in title.
The trial Judge, I think, has misconstrued the document. There was,it is true, some attempt to support his judgment on the footing that the•document created something in the nature of a fidei commissum, butthat could not possibly be maintained. It was conceded that all the soilrights (to use a fairly common but somewhat inconvenient expression)were in the appellants, and taking the document as a whole, I fail tosee that it is anything but an ordinary planting agreement with theusual compensation to the planter and his heirs. The terms of theseagreements as to details generally differ. In some cases the planterlakes half the soil as well as an interest in the trees or produce. Underthe agreement before us, in my opinion, the respondent is nothing but aperson with a permanent right of property in the trees upon the land,with of course the rights necessary to the enjoyment of that right, withinthe meaning of section 14 of the Ordinance. The addition of the words“ heirs ” and “ children ” in no way limits the rights of the planter.The interest acquired under the agreement is his to be dealt with at hisown will, is saleable by him, is inheritable by his heirs, is subject to hisdevise, and to his creditors for his debts as any other property (seeJayewardene on Partition, p. 265).
The order appealed from and the preliminary decree entered mustTherefore be set aside. The case must go back to the lower Court for adecree for sale to be entered. The steps required by the Ordinancepreparatory to sale will of course be observed. The first defendantmust pay the costs of the contest in the lower Court, the costs of saleto be paid by the parties, one-third by the first defendant, and theremaining two-third by the plaintiff and the second defendant pro rata.The appellants are entitled to their costs in this Court.
Koch J.—I agree.
FERNANDO v. BABANISSA et al