HAMADO NATCHIA et al. v. MUHAMADO NATCHIA et al

066-NLR-NLR-V-09-HAMADO-NATCHIA-et-al.-v.-MUHAMADO-NATCHIA-et-al.pdf


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Present) The Hon. Mr. A. G. Lascelles, Acting Chief Justice,and Mr. Justice Middleton.
AHAMADO NATCHIA et al. v. MUHAMADO NATCBIA et ol.
D. C.; Galle, 7,459.
Jussuperfioiarium—Howacquired,—Agreementofparties—Notarial
writing—Interest in land—Inference ofagreement—Ordinance
No. 7 of ISM, s. 2.
In order to create the right of superficies (jus superfioiarium) it isnecessary that there should be a distinct agreement between theparties to that effect.
In exceptional cases such agreement may be inferred from thefact that the owner permits another to build on his land.
Senible,—A jus superfioiarium involves. an interest in land, andas such cannot be created except by a notarial writing, as requiredby section 2 of Ordinance No. 7 of 1840.
A
PPEAL from a judgment of the District Judge of Galle (G. A.Baumgartner, Esq.).
The facts and arguments sufficiently appear in the Judgments.
The previous judgment in appeal is reported in 8 N. L. B. 330.
Bawa, for the plaintiffs, appellants.
Van Langenberg, for the defendants, respondents.
Cur. adv. vvlt.
4th October, 1906. Lascelles A.C.J.—
This appeal was presented to us on the footing that this Court byits judgment of 11th October, 1895 (1), had finally decided that theplaintiffs had established their claim to a jus superficiarium in thehouse in question, and the District Judge was therefore wrong inreopening the question and holding that th9 plaintiffs had not infact established this right. There are, it is true, passages in thejudgment which appear to assume that the plaintiffs’ claim to thisright has been established, but, taken as a whole, I do not thinkthat the judgement amounts to a specific finding in favour of theplaintiffs. But, even if this is the true construction of the judgment,I should still feel myself at liberty to review that finding by thelight of the further evidence which shows that the house in disputewas built not as was supposed by this Court, upon the site donated
1906.October 4.
(11 (19051 8. N. L. R. 330.
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1906.October 4.
LAftOBUSS
A.CU.
by Idroo8 Lebbe to his daughter in 1864, but on another lot.This error, for which the Court was not responsible, ihay well havemisled the Court into the belief that there was an express agreementthat the site of the house in question was specifically reserved out ofthe donation for the use of Idroos Lebbe.,
I am therefore of opinion that we are not excluded by the previousjudgment of this Court from discussing the question whether or notthe plaintiffs have acquired the jus superficiarium. Beyond thepassage in Grotius cited by the late Chief Justice the text-books ofthe Boman Dutch Law contain few refrences to the jus superfici-arium. It is, however, clear that agreement between the landownerand the person who acquires the right is the foundation of the right.Voet 43, 17, defines “ superficies ” as denoting things such as trees,plants, and especially buildings, growing or built on the surface ofthe soil which any one has erected on land belonging to another withthe consent of the owner, on the condition that he may keep them inperpetuity or for a considerable period and generally on payment of rent.
Paulus (Dig. VI., 1, 74) defines the “ superficiarius ” as " qui inalieno solo superficiem ita habet, ut certam pensionem prcestet,” asif the obligation to rent is inseparable from the possessor of the right.It may be noted that the German Civil Code of 1900, which, so faras it is based on the Civil Law, represents the most modem develop-ment of that system, expressly provides (article 1,015) that theagreement of the owner of the soil and of the person who acquiresthe right is necessary in order to constitute the right of “ superfi-cies,” and requires this agreement to be made with the same forma-lities as are necessary to transfer the title to immovable property.It is true that the passage from Grotius cited by Layard C.J. con-templates the possibility of the agreement being inferred from thefact that the owner pemits another to build on his land. But, inmy opinion, it is only in exceptional cases that such an inferencecould be made safely. In my opinion claims to a right of “ superfi-cies ” should not be allowed unless the ageement between the•parties is clearly demonstrated. To sanction laxity of proof in thisrespect would be to expose proprietors of house property to seriousdanger from claimants alleging that.some former owner has permit-ted them or their ancestors to build on his land.
I do not propose to review the evidence as to any agreementbetween Idroos Lebbe and his daughter Asia Umma that the fomershould have a jus superficiarium in the house in question. I entirelyconcur in the. finding of the District Judge'. I think that the pointis,, disposed of by asking the following questions: —
What was the agreement between Idroos Lebbe and his daughter?
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Was the former to retain a right to the house in perpetuity, forlife, or a term, and if so what term of years?
The evidence furnishes no answer to these questions.
It is not necessary for the purposes of this case to express a finalopinion on the ruling of the District Judge that under the Ordinanceof Frauds the jus superficiarium cannot be created except by notarialdeed. But in view of th9 extent of the interest of the superficiariusin the subject matter of the right {Voet 43, 17), I find it difficult toresist the conclusion that an agreement creating a jus superficiariumis an agreement to establish an .interest in land within the meaningof section 2 of Ordinance No. 7 of 1840, which is of no force unlessmade by a notarially executed instrument.
The appeal must be dismissed with costs.
Middleton J.—
The fiirst question in this case is whether a ju$ superficiariumin favour of Idroos Lebbe was found by the judgment of Layard C.J.to have come into existence.
It is certainly not found in direct terms as I read the judgment.To me it seems that the learned Chief Justice was enunciating the.law in reference to the jus superficiarium generally, and it is onlywhen we come to the words “ Idroos Lebbe’s rights, and subse-quently that of his heirs, continued as long as they remained inpossession, and their right to recover the value of the house wouldonly accrue when turned out of possession by the owners'of the soil,”'that there is some ground for supposing that the Chief Justice hadarrived at a specific conclusion. I think, however, taking intoconsideration the preceding general character of the judgment, itsevident desire to instruct the District Court that there was no issuesettled on the question of the jus superficiarium, that it had not evenbeen considered in the Court below, and that there was no consider-ation of the grounds for such a decision by the Chief Justice, thatthe words quoted were merely a concrete expression of the opinionOf what would be the position of a person who had established therights in question, and not that Idroos Lebbe had in fact establishedthem.»
This was the view also that the District Judge appears to havetaken of the judgment when he proceeded to re-hear the case.
The issues settled. on the hearing also appear to show that thecontention between the parties was as to the plehum dominium Jnthe house, not as a right to share in its occupation or in the proceedsarising from the sale of its materials.
1906. .October 4
IaMEiin
A.C.J.
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1906.next question is> Was. the District Judge right when he held
<^lTf 4' that no jus superfioiarium ever came into existence in favour ofMiddleton Idroos Lebbe?
. . *
I think that he was right, and that there is also some good ground
for holding that the jus superfioiarium is an interest in land 'whichwould only be grantable and transferable by notarial – documentunder the terms of the Ordinance No. 7 of 1840.
It is not, however, I think, necessary in this case to hold this,and I desire to guard myself from appearing to do so.
Maasdorp in his Introduction to Gotius (p. 278) translates section10, chapter 46, thus : “ The right (jus superfioiarium) is presumedto be granted when the owner of the ground allows another personto build on his ground."
Herbert in his Introduction to Grotius translates the same section(p. 258): “ The right is sufficiently understood to be granted when theproprietor of the ground suffers another person to build thereupon.”
. The difference in translation leaves room for the doubt that it isan inevitable presumption.
In the present case, assuming the evidence of Idroos’ building, afather built a house on the portion of land which his daughter, whohad married a poor man, had got separated by partition called lotNo. 1.'_
This seems to me quite consistent with a gift by the father to hisdaughter of the materials and labour for the building of the house.There is no reservation as to the House; the reservation referred toapplies to another house which was fallen down and was on anotherland.
The District Judge found that Idroos Lebbe never .lived in onehouse nor claimed any right of jus superfioiarium upon it, while thehouse was registered as the property of Asia Umma in the Municipalbooks of Galle from 1871 to 1903 continuously.
No claim was put forward to the house by the heirs of IdroosLebbe in the partition action in 1902, though the surveyor statesthat they were aware of the survey.
The house and land was mortgaged in 1873 by Asia Umma, whenIdroos signed that mortgage as a security, although in 1876 we findIdroos joining Asia in another mortgage. The latter‘mortgage mayonly have been joined in by Idroos for security, as he did in. themortgage of 1873.
I would hold, therefore, even without applying the Statute ofFrauds, that there was ground for the District Judge to hold thatthe jus superfioiarium in favour of Idroos Lebbe never came intoexistence, and dismiss the appeal with costs.