044-NLR-NLR-V-17-GOONEWARDENE-v.-GOONEWARDENE.pdf
( 143 )
Present ; Wood Benton J.GOONEWARDENE v. GOONEWABDENE
mb:
6—C. B. Galle, 7,334
Go-otoner—Right to build on common land.
One -co-owner cannot, as a rule, build a bouse on a land -held incommon without the consent of the other co-owner,
But the law does not prohibit one co-owner from the use 'andenjoyment of the property in such manner' as ‘ is natural andnecessary -under the circumstances. If, therefore, a ‘land' waaacquire^, or at least held by the co-owners as a building site, aco-owner may build upon it.
.4. St. F. Jayeivardene, for the appellant.D$ Zoysa, for the respondent.
February 20, 1913. Wood Benton J.—
In spite of Mr. A. St. Y. Jayewardene’s clear and strenuousargument in support of the appeal, the decision of the Commissioner. of Bequests appears to be correct. There is-no doubt but that, by^ the common law of this Colony, one co-owner cannot build a houseon a land held, in common without the consent of the other co-owners.Where such consent is withheld, a co-owner is not jrithout a remedy.He can institute an action for partition. There is, however, a classof exceptions to the general principle which I have just stated. Itis defined by Sir Charles Layard in Silva t>. Silva,1 and by Sir JohnBonser ’in**'Siyadoris v. Hendrick. 2 These decisions stand by theirown authority, but they have constantly been followed in . latercases. The class of exceptions referred to may be defined in thisway. The law does not prohibit one co-owner from the use andenjoyment of the property in such manner as is natural and necessaryunder the circumstances. For example, as in Siyadoris v. Hend-rick 2 the land had been, purchased for the express purpose of diggingplumbago. contained in it, it would have been unreasonable thatany co-owners should have been prohibited from digging for plum-bago without the consent of the other co-owners. Sir CharlesLayard gives another illustration in Silva v. Silva. 1 If the landwere fit for paddy, it could scarcely be contended that any oneco-owner would be entitled to prevent, the other co-owners fromcultivating.it in that way. Mr.. A. St. Y. Jayewardene suggested(im)6N. L.R.225.* {1899) 6 N. L. R. 275.
( 144 )
1918. that this was land acquired, or'at least held by the co-owners, as abuilding site. If the evidence established that suggestion, the caseRenton J. would clearly come within the class of exceptions which I have justOooncmar s^ted. But the evidence shows only that certain houses had beendene v.Qoont' built on the land by consent. There is no instance in which anywartime house had been erected without the consent of the .other co-owners.
A former co-owner had commenced to build a house, but the othersinterposed, and the building never got beyond its foundation. Iam unable to hold on the evidence that any special characterattached to this land of such a kind as to relieve the appellant fromthe ordinary fetter imposed upon the rights of co-owners by thecommon law.
The appeal is dismissed with costs.
Appeal dismissed.