052-SLLR-SLLR-2006-V-3-JAYASUNDERA-vs.-WIJETILAKE-AND-OTHERS.pdf

CA
Jayasundera Vs Wijetilake and Others
(Andrew Somawansa, J.P/CA)
403
from the ownership of land when the landowner transfers the land toanother but reserves the mineral rights. The mineral rights are suchthe surface owners cannot do anything to defeat the right of theowner of the mineral rights to prospect or mine for minerals.
(4) A right to prospect for and take minerals may be construed asa personal servitude for a fixed term or in perpetuity, but contrary tothe general nature of personal servitudes the right is alienable andpasses on death to the successors of the person entitled.
Per Andrew Somawansa J. (P/CA)
“What PM reserved for himself is not a personal right which comes toan end on the death of PM, but a real right which would on his death devolveon his heirs, the right reserved by PM is a real right with full dominion of thegems".
APPEAL from the judgment of the District Court of Ratnapura.
Cases referred to:
Mohamed vs. Mohamed – 30 NLR 225
Perera vs. Amarasooriya – 12 NLR 87
Laxarus and Jackson vs. Wessels, Oliver and the CoronationFreehold Estate Tower and Mines Ltd. – 1903JS 99 510
Duke of Hamilton vs. Dunlop and Another 1885-10 APPCAS 830
Travel Property & Investment Co. Ltd., and Reinhold & Co. vs. S. A.Township Mining & Financial Com. Ltd. and the Administrator – 1938-TPD 512 1938-01-27.
R. M. D. Bandara with Lilanthi de Silva for defendant-appellant
C. Seneviratne PC with Anuruddha Dharmaratne for plaintiff-respondent.
curadv. volt
July 08, 2005
ANDREW SOMAWANSA, J. (P/CA)
The plaintiffs-respondents instituted the instant action in the DistrictCourt of Ratnapura seeking a declaration of title to the land called‘Kadawathayawatte’ and ‘Pita Owita’ as pleaded in the plaint and for apermanent injunction restraining the defendant-appellant from gemmingin the aforesaid land.
The dispute in this action arises on a reservation contained in deedNo. 28219 dated 28.06.1987 marked P4 which reads as follows:
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Sri Lanka Law Reports
(2006) 3 Sri L R.
Both parties agreed that the instant action could be decided uponthe answers to the aforesaid issues and that the matter could be decidedon written submissions alone. Accordingly no evidence was led and bothparties tendered their written submissions.
At the conclusion of the trial, the learned District Judge by hisjudgment dated 15.06.1995 held with the plaintiffs-respondents. It is tobe seen that the learned District Judge in his judgment has come to afinding that the rights reserved by Punchi Mahaththaya does not devolveon his heirs and are extinguished on his death. It is from the aforesaidjudgment that the defendant-appellants has preferred this appeal.
At the hearing of this appeal, the counsel for the defendant-appellantcontended that the rights reserved by Punchi Mahaththaya is a right inminerals which is an immovable property and is an interest in land andthat it is a right in rem and a real right. Hence it would devolve on the heirsof Punchi Mahaththaya and the learned District Judge erred in law whenhe came to a finding that the right reserved by Punchi Mahaththaya is a

The defendant-appellant contended that by this reservation T. M.Punchi Mahaththaya the vendor in deed No. 28219 marked P4 hasreserved fo himself a Vz share in the minerals on this land in suit and thatthe said Vz share in the minerals has now devolved on the defendant-appellant. The plaintiffs-respondents’ position is that by the aforesaidreservation all thatT. M. Punchi Mahaththaya reserved to himself was theright to prospect for minerals, which right became extinguished on thedeath of T. M. Punchi Mahaththaya.
On 18.01.2005 both parties agreed that there is only a substantialquestion of law to be decided and raised the following issue :

CA
Jayasundera Vs Wijetilake and Others
(Andrew Somawansa, J. P/CA)
405
personal right that extinguished on his death and did not devolve on hisheirs. The President's Counsel appearing for the plaintiffs-respondentson the other hand contended that the reservation contained in the deedclearly indicates that what was reserved to himself by T. M. PunchiMahaththaya was the right to prospect for minerals which is quite differentfrom a reservation being made to the ownership or title to the minerals ascontended by the defendant-appellant.
It is to be seen that minerals form part of the land and in a normaltransfer of a land it conveys title to the minerals as well. Thus if the title tothe minerals were to be reserved in the transfer it must be stated so in theinstrument of transfer.
It is contended by counsel for the defendant-appellant that whenPunchi Mahaththaya stated in the deed 'Manik garaganeema balaya mataithurukragena', it is clear beyond any doubt that he had exempted mineralsfrom sale. The words 'garaganeema' were not words that had comeaccidentally. It was deliberately inserted to reserve the minerals rights.He also submits that during the formation of the contract of sale therewas the meeting of minds viz. Consensus idem that Punchi Mahaththayawill have the mineral rights and that all the income from gemming will begiven to Punchi Mahaththaya and that the transaction was a pure andsimple sale of land reserving the mineral rights and the vendee very wellknew that he was not entitled to any profit from the gemming operationsand that Punchi Mahaththaya had the full dominium of the minerals. Hehad the right to possess, vindicate, alienate and to destroy.
It would be useful at this stage to examine the deed in questionmarked P4 for it is a rule of construction that the intention has to be gatheredfrom what is written in the deed. Thus the rule is that the meaning of thedocument or of a particular part of it must be gathered from the documentitself. In Mohamed vs. Mohamedm per Garvin. J.:
"That the general principles governing the interpretation of deeds isthat the deed must be considered as a whole and effect given to theintention of the party."
Thus it is not possible to assume the intention or to impute anintention based on an assumption. One must consider the meaning ofthe words used and not guess the intention of the parties to a deed. Thecourt must deal with a deed according to the clear intention appearingwithin the four corners of the deed.
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Sri Lanka Law Reports
(2006) 3 Sri L R.
Habendum is the part of a deed that defines the extent of the interestor rights being granted and any condition affecting the grant. So thatPunchi Mahaththaya's intention to convey only the land, fruits and treeswithout minerals is evident without any ambiguity for he has exceptedrights or interest to minerals in the operative part. When the operativepart of the deed and the habendum is read together it is very clear thatthe vendor on deed marked P4 the aforesaid Punchi Mahaththaya had nointention to sell the minerals to the vendee. If then he has excepted theminerals from the sale then the rights, interest and ownership of mineralswill devolve on his heirs, under the law of intestate succession. In thecircumstances the conclusion of the learned District Judge that theintention of the vendor was not clear is erroneous.
It was also contended by counsel for the plaintiffs-respondents thatin deed marked P4 the right to minerals was reserved only to PunchiMahaththaya and not to his heirs, executors etc., and words of limitationsdo not appear in deed marked P4. My considered view is that it is notnecessary to add such words of limitation under our law for the propertyto devolve on the heirs. For eg.: if 'A' conveys a property to ’B’ without thewords of limitation the property will not revert back to ’A' or his heirs on'B,s' death but would devolve on B's heirs.
Words of limitation was a requirement under the old English Law ofProperty rights in England and are quite different from ours. Dependingon whether the grantor wished to create a fee simple or a fee in tail it wasnecessary to use words of limitations and it is common to see-thesewords such as heirs, executors etc., in our deeds of conveyance. This issomething we have borrowed from English Law of Conveyance. HoweverEnglish Law of Conveyance is not applicable to Sir Lanka. ProvisotoSection 03 of Introduction of Law of England (Ordinance No. 5 of 1852)provides:

In the deed in question marked P4 the vendor has specificallyexcepted the minerals in the operative part of the deed. Thus it is verydear that he has not sold the mineral rights. In the habendum it is stated:
Jayasundera vs. Wijetileka and Others
(Andrew Somawansa, J. P/CA)
407
CA
"An authority to enter on land and prospect for plumbago and towork the mines found there and take away plumbago is an agreementcreating an interest in land, and should be notarially attested under section2 of Ordinance No. 7 of 1840."
In the case of Laxarus and J Jackson i/s. Wessels Oliver and theCoronation Freehold Estate, Town and Mines Ltd.(3) Innes, CJ observed:
"Working of coals involves taking away and appropriation of portionsof realty. If implies the exercise of certain privileges generally attachedonly to ownership”.
It was held in that case :
"That the right to work the mineral rights conferred by the notarialregistered contract of July 1902, was of the nature of a real right."
2 – CM 8440
has this right could enter on land to prospect for gems and work themines and take the gems away. This is really an interest in land. In thecase of Perera vs. Amarasooriya<2)
"That nothing herein contained shall be taken to introduce into SriLanka any part of the Law of England relating to the nature of conveyanceor assurance of or succession to any land or other immovable property orany estate, right or interest their".
In Mohamed vs. Mohamed (Supra)
"Assistance and guidance of great value is derivable from the Englishlaw relating to the interpretation of deeds, but the difficulty of applying‘ those rules of interpretation to instruments in Ceylon lies in the fact theyrelate to a system of conveyancing which has been evolved to giveexpression to conceptions peculiar to the English law of real property towhich our own law of immovable property bears hardly any resemblance".
It is to be noted that the phrase used in the deed marked P4 reserving
connotes a bundle of rights. Person who
words

The
rights to minerals read

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Sri Lanka Law Reports
(2006) 3 Sri L R.
Per Innes, CJ on page 520:
"I must confess to having at first experienced considerabledifficulty – a difficulty which pressed me during the argument -in finding an appropriate justice niche in which to place thisright. Rights of the nature are peculiar to the classes of realrights discussed by the commentators. They seem at firstsight to be very much of the nature of personal servitudes: butthen, they are freely assignable. On further considerationhowever, I am of opinion that the difficulty, 1 have referred to ismore academic than real. After all, the right in question involvesthe taking away and appropriation of portions of realty; it impliesthe exercise of certain privileges generally attached only toownership, and it is treated by the proclamation as a real rightand is ordered to be registered against the title in my opinion;therefore this right when registered occupies the position of areal right".
Wille's Principles of South African Law page 257:
"Subject to the provisions of mining legislation, a right toprospect for and take minerals from the land of another maybe constituted for a fixed period of time or in perpetuity andregistered against the title-deeds of the land. Such a right tominerals is alienable and passes on the death of the holder tohis successors. It should therefore be classified as a real rightsui generis rather than as a quasi-servitude".
Again on page 277;
"A right to minerals becomes separated from the ownership of landwhen the landowner transfers the land to another person but reserves themineral rights.
Although it has been held that mineral rights may be reserved andregistered for the lifetime only of a person it is trite law that mineral rightsare freely transferable and transmissible:
CA
Jayasundera Vs Wijetilake and Others
(Andrew Somawansa, J.)
409
In South African Law of Property Family Relations and Successionby Lee page 40:
"A right to prospect for and take minerals may be constituted as apersonal servitude for a fixed period or in perpetuity. But contrary to thegeneral nature of personal servitudes the right is alienable and passes ondeath to the successors of the person entitled. The minerals won becomethe property of the person in whom the right is vested; in the absence ofprovision to the contrary the owner of the soil has no claim to the mineralswon or to their value".
Counsel for the plaintiffs-respondents in paragraph 15 of his writtensubmissions goes on to say on the several authorities cited by the counselfor the defendant-appellant the right granted is not confined to the mereact of prospecting for minerals but also to take the minerals from the landin question. The Courts and legal writers have held that in such instancesa right in real property is created since the right to take away an appropriateportion for the reality implies the exercise of certain privileges attachedonly to ownership and is thus treated as real right. The rights reserved indeed marked P4 are exactlv the riahts mentioned above. For what other
"Where the owner conveys lands to a singular successor to a person,reserving the "liberty of working the coal" in those lands, he must betaken to have reserved the estate of coal."
In the same case Lord Blackburn observed:
"I entirely agree that in the common sense of the thing, this privilegeto work and win the whole of the coals is very much in substance thesame thing as a right to property in the coals".
It is to be noted that mineral rights are such the surface ownerscannot do anything to defeat the right of the owner of the mineral rights to
House of Lords in Duke of Hamilton vs. Dunlop and Another
held:
minerals from the land in suit and appropriate the same.
other than a right to prospect for minerals and to take the
interpretation can one give to the words

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(2006) 3 Sri L R.
prospect or mine for minerals. In Travel Propery & Investment Co. Ltd.,and Reinnhold & Co. 5s. S. A. Townships Mining & Finance Corp., Ltd.,and the Administrator 1.
"No user of the surface of land by the surface – owner is defensiblewhich has the effect of taking away the right of the holder of the mineralrights, if and when he decided to do so, to prospect for precious metals,and if they are found, to mine for them".
Counsel for the plaintiffs-respondents contends that the right PunchiMahaththaya reserved was a personal right. It is to be noted that personalrights are rights available against a particular person or persons only. Areal right on the other hand, is a right in a thing which entitles the holderof the right to prevent all other persons and not merely a particular individual.The right that Punchi Mahaththaya has reserved is such that not only thevendee but all other persons in the world cannot interfere with his Gemmingoperations. They should refrain from doing anything to defeat his rights. Ifthe vendee or anyone else interferes with his gemming operations theremedy available to Punchi Mahaththaya is a vindicatory action. If thevendee died before Punchi Mahaththaya he could enforce his rights againstthe heirs of the vendee. Thus the right reserved by Punchi Mahaththayais a real right with full dominion of the gems.
For the foregoing reasons, my considered view is that what PunchiMahaththaya reserved for himself in deed marked P4 is not a personalright which comes to an end on the death of Punchi Mahaththaya but areal right which would on his death devolve on his heirs. Accordingly Iwould allow the appeal and set aside the judgment of the learned DistrictJudge. I also make order dissolving the interim injunction issued in thiscase. The defendant-appellant is entitled to the costs of this appeal fixedat Rs. 5000/-.
EKANAYAKA, J. — / agree.
Appeal allowed.