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Present : Lyall Grant J. and Javewardene A.J.
INDTJWATI DISSANAYAKA v. DON ALLIS APPUHAMY.
29—D. C. Ratnapura3,566.
Registration—Improvements effected in terms of a registered instrumentexecuted by a fiduciary owner—Claim to compensation in partitionsuit—Liability of fideicommissary heir—Non-registration of probate—Sections 10 and 11 of Ordinance No. 14 of 1891.
A claim to compensation for improvements, effected in termsof a registered notarial instrument was allowed in a partition suit,in respect of a property subject to a fidei commissum created bywill. The fiduciary owner, who was liable to pay compensation, diedsoon after;andthe fideicommissary heir repudiated her liability
to pay. The probate of the will was not registered.
Held, that the registered notarial instrument prevailed over (heunregisteredwill,and that, in regard to the liabilities under the
instrument,thefideicommissary heir occupied no better position
than that of anheir under intestacy, and was liable to pay the
compensation awarded to the improver in the partition suit.
PPEAL fromajudgment of the District Judge of
J.S. Jayawardene, for 4th added defendant, appellant.
H. V. PereTa, for 1st added defendant, respondent.
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-July 23, 1926. Lyall Grant J.—
This is an appeal from an interlocutory decree from the DistrictCourt of Ratnapura in the course of a partition action. Theproceedings caine before the Supreme Court on previous occasions,and on May 15, 1925, the Supreme Court made an order directingthe District Judge to go into a certain question of compensationand to determine It in these proceedings, instead of referring theparties to a separate action.
The facts are fully set out in the judgment of Sir Thomas deSampayo in S. C. No. 46, D. C. Ratnapura, No. 3,566.
The District Judge has now decided that the 1st added defendantis entitled to claim as against the 4th added defendant the amountof compensation decreed to him against the 2nd defendant.
The main controversy was whether a person who had entered intoa certain arrangement with a co-owner, by which he built ahouse on the land owned in common and entered into possession, couldenforce his rights in the following circumstances. .
A partition action was brought and the co-owner received theshare of the land upon which the house stands, with an obligationto compensate the person who had built the house. The co-ownerthen died, and her daughter claimed the land, not as the heir of hermother, but as a fidei commissaria under a previous will.
Her contention was, and is, that her mother, who was merelya fiduciaria, could not assign any interest in the land in such a wayas to prejudice the rights of a succeeding holder under the fidei-commissary will.
This contention seems to me in accordance with the law governingfidei eommissa and with the general principle of law that a personcannot give more than he has. The 1st added defendant (thebuilder), however, points out that his title derived from the late2nd defendant has been registered, whereas the will under whichthe 4th added defendant claims is not registered.
The District Judge has given effect to this argument, and it seemsto us that he has rightly done so.
The provisions of section 17 of the Land Registration Ordinanceof 1891 are very general and uncompromising.
The registration by an innocent person of an instrument by whichfor valuable consideration he acquired interests venders him secureagainst any person claiming an adverse interest arising by virtue ofa previous instrument which has not been registered.
The probate of a will is one of the instruments which is expresslyreferred to in section 16 as one which will be* deemed void in theevent of prior registration of a deed conveying an adverse interest.
I do not think that the fact that the question has been tried inthe course of a partition suit affects the question. The partition hadbeen completed and the 2nd defendant’s share had been burdened
InduwatiDissanayakav. Don AUisAppuhamy
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with the 1st added defendant's claim. The 4th added defen-dant comes in exactly the same position as if the 2nd added defendanthad originally owned a divided share.
She comes forward as a person entitled to succeed to the soleownership of the piece of land. It is settled law that a fideicommissarius is bound by a partition decree.
In these circumstances it appears that any question betwee.nher and the respondent must be decided exactly as if no partitionhad existed.
The appeal is dismissed, with costs.
This is an action to partition a land called Tennekoon Walauwa-watte Kanatte. It was held subject to a fidei commissum whichbound the original parties to the action. One of them was the2nd defendant, who was entitled to a one-third share. The 1st inter-venient or added party, respondent, had acquired at a sale inexecution the interests of one Porage Don Abraham Singho, who hadbuilt a house on the land under a notarial agreement P2 enteredinto between himself and the 2nd defendant in the year 1913. Byinterlocutory decree entered on June 10, 1921, the 1st addeddefendant was declared entitled to compensation for the house theexecution-debtor had built, “ should the co-owner who gets theportion where the house stands wish him to leave." Thereafterthe 2nd defendant died, and the 4th added defendant, thepresent appellant, succeeded to her rights as a fideicominissary.A scheme of partition has been drawn up, and the house in questionfalls into the lot which it is proposed should be allotted to theappellant. The appellant contends that she is not liable to pay anycompensation as she^succeeds to the 2nd defendant's one-third share,not as her heir, but under the will which created the fidei commi$num.Probate of the will has not been registered, while the notarialagreement P2 has been duly registered. In my opinion, P2 is.in effect, a lease. The grantee was to build a house on the found-ation on which the grantors had already constructed, and “topossess and enjoy " the building put up on it on payment of Rs. 20a year as ground rent. There was no limit fixed to the possessionof the builder; his possession, I take it, was to last as long as thehouse stood. The builder was not given the right to sell the houseexcept to the landowner, and, if any dispute was caused by thebuilder, the landowner was entitled to pay the former the appraisedvalue of the building and eject him. An agreement very similarto P2 was before this Court in the case of. Mendis v. Dawooduand the builder was held to be in the position of a lessee. Theretoo the agreement to build was entered into by certain persons
(1920) 7 G. W. R. 172.
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-who held the land subject to fidei commissum, and this Courtdecided that (to quote the headnote) a person who enters intopossession of land which is subject to a fidei commissum and puts upbuildings thereon, on an agreement with the fiduciary to pay rentfor the occupation of the premises and to receive compensationfor the buildings whenever the premises are required by the fiduciary,is not entitled, after the interest of the fiduciary has ceased, toclaim compensation from the fideicommissary and to retain theproperty until the payment of such compensation. ’ ’ There noquestion of registration arose as the will was that of a testator whodied in the year 1822, long before the first Registration Ordinance(No. 8 of 1863) came into operation. In the present case the will wasnot registered by registering the probate, and the failure to do sogives the agreement P2 priority over the fidei commissum created bythe will. As the will under which the appellant claims is not regis-tered, her predecessor must be regarded as having succeeded to theproperty by intestate succession as she was a direct descendant of thetestator, in so far as it is necessary to give effect to the registered deedunder which the 1st added defendant claims—that is, that as far asregards the foundation on which the house stands—the respondent’si-ight is superior to that of the appellant, and P2 binds him. "Undersection 13 of the Partition Ordinance, when a property leased bya co-owner becomes the subject of a partition action and a decreefor partition is entered, the lease is not extinguished but attachesto the divided portion allotted to the leasing co-owner. In thiscase, therefore, as the portion on which the house stands is to beallotted to appellant, the agreement wifi remain of full force andeffect. The respondent has, however, chosen to claim compensa-tion for the building and has not insisted on bis rights under P2.He must, I think, be kept to his choice. The amount of compensa-tion has been assessed by the Commissioner, and at the inquiry heldon November 3 last, the correctness of the amount was not disputedalthough an issue was framed on the point./
The appeal must therefore be dismissed, with costs.
InduttpaUDissanayakev. Don AllisAppuHamy
INDUWATI DISSANAYAKA v. DON ALLIS APPUHAMY