KARUNARATNE v. RANASINGHE HAMINE (since deceased and substituted by S. R. A

032-SLLR-SLLR-1993-1-KARUNARATNE-v.-RANASINGHE-HAMINE-since-deceased-and-substituted-by-S.-R.-A.pdf


CA
Karunaratne v. Ranasinghe Hamine (since deceased and substituted
by S. R. A. Karunawathie) and Others
299
KARUNARATNE
v.
RANASINGHE HAMINE (since deceased and substituted by
S.R. A. KARUNAWATHIE) AND OTHERS
COURT OF APPEAL.
WIJEYARATNE, J„ AND EDUSSURIYA, J.
C.A. 2/82(F) D.C. GAMPAHA NO. 18408/PMARCH 16TH AND 19TH, 1992.
Partition Action – Right to bring a partition action – Pactum antichresis – Usufructuarymortgage bond.
Subject to a few exceptions, only a person who has the ownership and possessionor has the right to possession can bring a partition action.
Held : that a plaintiff whose share is subject to a usufructuary mortgage bondin favour of a defendant has full ownership though possession is lost until theredemption of the bond. Such a person can be said to be in possession throughthe mortgagee and is entitled to file a partition action.
A mortgage is a right over the property of another which serves to secure anobligation. It is accessory to a principal obligation and cannot subsist without it.
There is sometimes a stipulation in a mortgage bond (called pactum antichresis)that the mortgagee shall have the use of the property and its fruits in lieu ofinterest, the mortgagor retaining the power at all times of redeeming the property.
This type of mortgage bond is called a usufructuary mortgage bond and is notuncommon in our rural areas.
Gunawardena vs. Baby Nona (47 N.LR. 31) followed.
Charles Appu vs. Dias Abeysinghe (35 N.LR. 323) andAines vs. Salman Appuhamy (68 C.LW. 68) distinguished.
Cases referred to :
Aines v. Salman Appuhamy 68 C.L.W. 68.
Charles Appu v. Dias Abeysinghe 35 NLR 323.
Sinchi Appu v. Wijegunasekera 6 NLR 1.
Fernando v. Mohamadu Saibo 3 NLR 321.
Silva v. Paulu 4 NLR 174.
The Attorney-General v. Herath 62 NLR 145, 147.
Abdul Rahaman v. Muttu Natchia 1 Br. Reports 250.
Silva v. Silva 19 NLR 47.
Appuhamy v. Marihamy 25 NLR 421.
300
Sri Lanka Law Reports
[1993] 1 SriLR.
Baby Nona v. Silva 9 NLR 251.
Gunaratne v. The Bishop of Colombo 32 NLR 337, 343.
William Perera v. Theresia Perera 46 NLR 398.
Gunawardena v. Baby Nona 47 NLR 31.
APPEAL from the judgment of the District Judge of Gampaha.G. L Geethananda for the 1st plaintiff-appellant.
Respondents absent and unrepresented.
Cur. adv. vult.
March 27, 1992.
WIJEYARATNE, J.
The 2nd plaintiff, Harriet Randunu Hamine (since deceased) filed thisaction along with the 1st plaintiff (her daughter Charlotte GriseldaRupasinghe Karunaratne) for the partition of the land called the Bportion of Bogahafanda, Dangofla and Dangollahena situated atMagalegoda, depicted in Plan No. 107 dated 26.9.78 made by SurveyorHubert Perera and filed of record.
According to the plaint B. S. Randunu Appuhamy was the originalowner of this land and he died leaving as heirs three children, namely,Harriet the 2nd plaintiff, Luvina and Luvinis, who became entitled to1/3 share each.
The 2nd plaintiff by usufructuary mortgage bond No. 20983 of25.9.37 executed a usufructuary mortgage in respect of 1/3 shareof the land and 16/180 share of the house in favour of the 1stdefendant-respondent. Thereafter by Deed of Gift No. 159 of 1.2.55she gifted her 1/3 share of the soil and 40/180 share of the houseto her daughter the 1st plaintiff.
The plaint avers that the share of the 1st plaintiff is subject tothe aforesaid usufructuary mortgage bond in favour of the 1stdefendant-respondent.
At the commencement of the trial it was urged by counsel forthe 1st defendant-respondent that the plaintiffs cannot maintain thisaction and the following preliminary issue was framed
CA
Karunaratne v. Ranasinghe Hamine (since deceased and substituted
by S. R. A. Karunawathie) and Others (Wijeyaratne, J.)
301
Can the (1st) plaintiff maintain this action as her rights aresubject to a usufructuary mortgage bond in favour of the 1stdefendant?
After submissions the learned District Judge by his order dated12.1.82 answered this issue in the negative and dismissed the plaintiffsaction with costs, from which order this appeal has been filed.
The learned District Judge held that the plaintiff did not havepossession, and relying mainly on the decisions of Aines vs. SalmanAppuhamy w and Charles Appu vs. Dias Abeysinghe <2) held that the1st plaintiff did not have possession and accordingly dismissed theaction.
At the hearing Mr. Geethananda for the 1st plaintiff-appellantsubmitted that a person who has ownership and possession or a rightto possession is entitled to file and maintain a partition action.
The old Partition Ordinance No. 10 of 1863 by its section 2 providedas follows
" When any landed property shall belong in common to twoor more owners, it is and shall be competent to one or more of
such owners to compel a partition of the said property ; or
apply for a sale thereof,"
This Ordinance was repealed and replaced by Partition Act No.
16 of 1951, which by its section 2 provided as follows
“ Where any land belongs in common to two or more, owners,any one or more of them may institute an action for the partitionor sale of the land in accordance with the provisions of thisAct. •
This Partition Act, No. 16 of 1951, was repealed and replacedfor a short period by the Administration of Justice (Amendment) Law,No. 25 of 1975, which by its section 632 (1) made very similarprovision.
By Gazette Notification No. 293/7 of 1.12.77 the Partition Law No.
21 of 1977 now applicable, came into operation from 15.12.77 andsection 2 (1) of the said Law provided as follows
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Sri Lanka Law Reports
[1993] ISriLR.
■ Where any land belongs in common to two or more owners,any one or more of them may institute an action for the partitionor sale of the land in accordance with the provisions of this Law.'
Thus it is seen that all these enactments refer to ownership incommon and not to possession.
In the early years a view was taken that a partition action canonly be maintained by the plaintiff who is in possession and whosetitle is not disputed. However in the case of Sinchi Appu vs.Wijegunasekera(3) a bench of three Judges reviewed these authoritiesand Wendt, J., stated at page 11:
" In this state of judicial opinion on the construction of theOrdinance, I think we are free to hold, and ought to hold, thatthe effect of the plain words of the enactment is that a personclaiming to be owner of an undivided share of land, and to betherefore entitled to possession of it, is competent to maintain anaction to have that land partitioned, although neither he nor hispredecessor in title has had possession, and although the defend-ants wholly deny his title. In the present case, however, as I havepointed out already, possession of the share plaintiff claimed bya predecessor in title is admitted. “
In the cases of Fernando vs. Mohamadu Saibo (4> and Silva vs.Paulu <5) similar observations were made by Lawrie J. This viewaccords with the wording of all the enactments referred to above,which refer to ownership in common and not to possession.However it is important to keep in mind that a plaintiff who has beenout of possession for long years though he is able to maintain apartition action runs the risk of having his action dismissed on theground that he has lost all his rights by adverse prescriptivepossession.
Thus it is seen that the right to file a partition action flows primarilyfrom the right of ownership.
Professor R. W. Lee in his book" An Introduction to Roman-DutchLaw “ (5th Edn. 1953) at page 121 states as follows
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Karunaratne v. Ranasinghe Hamine (since deceased and substituted
by S. R. A. Karunawathie) and Others (Wijeyaratne, J.)
303
" DOMINION or Ownership is the relation protected by law inwhich a man stands to a thing which he may : (a) possess, (b)use and enjoy, (c) alienate. The right to possess implies the rightto vindicate, that is, to recover possession from a person whopossesses without title to possess derived from the owner. Grotiusselects this right as the most signal quality of ownership, whichhe says is the relation to a thing by virtue of which a person nothaving the possession may obtain the possession by legalprocess. "
(See also Grotius " Jurisprudence of Holland " – Commentary byR. W. Lee, 1936 Edn. Vol. II at p. 68).
Similar observations were made by L. M. D. de Silva, J., in thePrivy Council case of The Attorney-General vs. Herath (6).
Certain rights which fall short of plena proprietas or full ownershiphave been made the subject of partition actions.
In the case of Abdul Rahman v. Muttu Natchia <7) it was held thata superficies (namely a boutique standing on a land) could be thesubject matter of a partition action. It should be kept in mind thatthis was a partition action brought under the old Partition Ordinance,No. 10 of 1863, which in its section 2 refers to " landedproperty “. It was held that * superficies * was included in the term" landed property
In the case of Silva vs. Silva(8) where a plaintiff brought an actionclaiming to be entitled to a half share of a land which had beenbought on a Crown grant taken in the defendant's name and wherehe alleged that in purchasing the land from the Crown the defendantacted on behalf of himself and the plaintiff, It was held that theplaintiff was not an ” owner " within the meaning of the PartitionOrdinance as he had no legal estate, and that his right, if any, wasan action to compel the defendant to grant a conveyance of a halfshare to him. Here the defendant had denied the trust.
The facts of this case were distinguished by Jayawardena, A. J.,in the case of Appuhamy vs. Marihamy(9) where a co-heir paid theCrown half improved value (contributed by all the co-heirs) andobtained a Crown grant in his favour and held the land in trust for
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[1993] 1 SriLR.
all the co-heirs, it was held that another co-heir can bring an actionfor partition although he was not the legal owner.
In this case Jayewardene, A. J., stated as follows :-
“ Here the trust is not denied, and it would be futile to refer
the plaintiff to a separate action to obtain a conveyance to support
a title which is admitted to be in him. 11
It has also been held that in respect of a property burdened witha fidei commissum the fiduciary who has a life interest in the propertyis entitled to maintain an action to partition the property. In the caseof Baby Nona vs. Silva(10) Lancelles A. C. J. stated that by the Roman-Dutch law the fiduciary was a true owner, and that he had a realthough burdened right of ownership. Now it is settled law that afiduciary can institute a partition action in respect of a land burdenedwith a fidei commissum though old decisions were to the contrary- Gunaratne vs. The Bishop of Colombo (11) and William Perera vs.Theresia Perera (12).
Thus it is seen that the general rule is that it is only a personwho has the ownership and possession or a right to possession isentitled to file a partition action though there have been a fewexceptions.
In this case the 2nd plaintiff has executed the usufructuary mortgagebond of 1937 in favour of the 1st defendant-respondent and thereaftershe gifted the aforesaid share in 1955 to the 1st plaintiff, who takesit subject to the said usufructuary mortgage bond.
" In its comprehensive sense a mortgage is defined as a rightover the property of another which serves to secure anobligation " – The Law of Mortgage and Pledge in South Africa byWide (2nd Edn. 1961) p. 1.
It is accessory to a principal obligation and cannot subsist withoutit. There is sometimes a stipulation (called a pactum antichresis ina mortgage bond that the fruits of the property mortgaged shouldgo to the mortgagee for the interest due to him on the principal sum,the mortgagor retaining the power of redeeming his property.
CA Karunaratne v. Ranasinghe Hamine (since deceased and substituted
by S. R. A. Karunawathie) and Others (Wjjeyaratne, J.)305
“ The pactum antichresis is an agreement that a mortgageeshall have the use of the mortgaged property in lieu of interestuntil the debt is paid and it is a valid agreement in a mortgagecontract. The mortgagor must, however, retain the power at alltimes of redeeming the property. "
(The Law of Mortgage and Pledge in South Africa by Wille (2ndEdn. 1961) p. 76.)
This type of usufructuary mortgage bond is not uncommon inthe rural areas of our country where the mortgagee is permitted topossess the property in lieu of interest till the debt is paid and thebond redeemed.
The question arising in the case before us is whether the 1stplaintiff had all the attributes of ownership which would entitle herto file a partition action though her share is subject to the usufructuarymortgage bond and she is not entitled to possession of this sharetill the bond is redeemed.
The learned District Judge has relied on Charles Appu vs. Dias. Abeysinghe (supra), where it was held that a person who is entitledto the dominium only of an undivided share of a land, the usufructbeing vested in another, is not entitled to bring a partition action.
In this case the plaintiff was not entitled to possess the land atall. The plaintiff had not the right of use and enjoyment. Thereforethe plaintiff's right fell short of full ownership to the extent the plaintiffwas not entitled to have possession.i
In the case before us the 2nd plaintiff is entitled to have possessionat any time after the usufructuary mortgage bond is redeemed. Itis within her power or that of her heirs to redeem the bond and obtainimmediate possession. It can be said that the possession of theusufructuary mortgagee is on behalf of the 1st plaintiff who hasstepped into the shoes of the usufructuary mortgagor (the 2ndplaintiff). Therefore this case is very similar to the facts of the caseof Gunawardena vs. Babynona where it was held that a plaintiff whois entitled to an undivided share of a land which he has leased toa party is entitled to bring a partition action. In this case JayatillakeJ. distinguished the facts from those in the case of Charles Appuvs. Dias Abeysinghe (supra).
306Sri Lanka Law Reports[1993] 1 Sri L.R.*
Jayatillake J. in this case at page 32 stated as follows :-
" The plaintiff in this case was at the date of the institutionof the action in possession of the undivided one-sixth share towhich he was entitled through his lessee, the third defendant, andhis right to institute the action under section 2 of the PartitionOrdinance cannot be questioned. "
The same observations apply with equal force to the 1st plaintiffwho is in the position of the usufructuary mortgagor now.
In the case of Aines vs. Solomon Appu (supra) it was held thatwhere two plaintiffs, one of whom is entitled only to the dominiumand the other to the usufruct thereof instituted an action under thePartition Act, No. 16 of 1951, that neither of them is competent tobe the plaintiff in view of section 2 of the Partition Act, No. 16 of1951.
In this case though it is correctly stated that neither of the plaintiffscould maintain the partition action the question was not consideredwhether both plaintiffs together could not maintain the partition action.When the facts of this case are considered, it is clear that bothplaintiffs together are entitled to maintain the partition action and the2nd plaintiff who had the dominium or ownership should have beendeclared entitled to that share subject to the usufruct in favour ofthe 1st plaintiff. Then the action could be maintained by both plaintiffstogether and the action need not have been dismissed.
•
In the case before us the 1st plaintiff remains the full owner ofher 1/3 share though she has to part with her possession for theduration of the usufructuary mortgage bond. The 1st plaintiff is entitledto possession of her 1/3 share at any time she redeems thisusufructuary mortgage. Till then she can be said to be in possessionthrough the mortgagee, the 1st defendant-respondent. Therefore sheis entitled to maintain this action, and the trial can proceedaccordingly. I
I therefore set aside the order of the learned District Judge dated12.1.82 dismissing the action.
Obeysekera v. Chandra
307
I send the case back to trial on the footing that the plaintiffs areentitled to maintain this action and the trial will proceed accordingto law.
I direct the 1st defendant-respondent to pay the costs of this appealto the 1st plaintiff-appellant.
EDUSSURIYA, J. – I agree.
Judgment set aside.
Case sent back for re-trial.