095-NLR-NLR-V-18-LEBBE-v.-CHRISTIE-et-al.pdf
( )[Full Bexch.J
Present: Wood Benton C.J. and Ennis and Shaw JJ.LEBBE t>. CHRISTIE et al.
200—1). ( Ktnuly, 22MS.
Lease by Kandyan tridotr of her husband's property—Lease invalid except
as to her life interest—Compensation for improvements by lessee—
Is motheranaturalguardianofherchildren afterhusband's
Jcathl—Civil Procedure Code, chapter XL.
Where a Kandyan widow leased without the sanction of theCourt, for a period of forty years, a land belonging to her husbandover which she had a life interest.—
Held, that the lease was invalid so far as it exceeded the termof her life interest and did not bind her children, who went minorsat the date of the lease.
Held further, Ennis J, dissentients, that the lessee was not entitledro compensation for improvements as against the lessor's child, who broughtan action to vindicate his share.
UndertheBcman-Dutchlaw asitexistsin Ceylon the mother
does notbecome,on thedeath ofthefatherof a minorchild, the
guardianofthelatter,otherwisethan byappointmentmade by
<’aurfc under chapter XL. of the Civil Procedure Code.
Wood Rbktont CJ.—The authorities do not establish . the pro-position that under the Kandyan law a widow was the natural guardianof her minor children and was entitled to alienate or lease the ancestral property.
T
HE case was reserved for argument before a Full Bench byEnnis J. and Shaw J. The facts are set out in the following
judgment of Ennis J.: —
The land in dispute in this case originally belonged to one Maha-duraya, a Kandyan. By his will he bequeathed the lands to histhree children, Rankin, Kiri Ukku, mid Sahundera, subject to alife interest .in his wife, Ukku. On his death Ukku obtained probateas executrix. Kiri Ukku then died, and her brothers Rankiri andSahundera became entitled to her share. Then, on November 14,1896, the executrix, Ukku, conveyed the lands by deed to Rankiriand Sahundera, with a reservation of her life interest.
0^ February 5, 1898, Ukku executed a lease, for herself and asnatu al guardian of her minor children Rankiri and Sahundera, forforif years in favour of one Amath Bukar. The lease gave theexte.it of land as 35 acres 2 roods and 25 perches. The rent reserved
ISJ.X. A 99908(8/50)
1916.
( *>54 )
*****was Bs. 13.41 peracre, and twentyyears* rent was paid to Ukku
Lebbein advance. Thelease recites thatit was for the purpose of
v. Christiecultivating and improving the landsin the interest of the minors,
and it contains a covenant by the lessee to cultivate. The lessee,on December 12,1898, transferredhis interest in the* lease to
Thornes and George Christie, the first defendant.
Bankiri came of age in 1905, and then, with his mother Ukku.executed a deed, No. 7,161 of August 27, 1905, by which he conveyedhis half share of the hnds, and Ukku conveyed her life interest,to Thomas Christie. On September 29, 1910, Tliomas Christieconveyed his interest in the lease and his interest in the lands tothe first and second defendants. Ukku died in March, 1913. On .April 6, 1914, Sahundert* conveyed lus undivided half share in thelands to the plaintiff, in consideration of a sum of Bs. 11,500.
Tins plaintiff prayed for a declaration of title to a half rfuure ofthe lands, for ejectment of the defendants, and for R6. 500 damage.The defendants prayed that the plaintiff's action should be dismiss*-!,or, in the alternative, for Bs. 4,750 as compensation for improve-nients, and a declaration that they were entitled to retain possessionof the entirety of the lands until the compensation was paid.
The learned District Judge held that the lease was an improvidentone, and invalid and ineffectual so far as the plaintiff and his vendorwere concerned. He gave judgment for the plaintiff as prayed,but with nominal damages at the rate of Bs. 125 per annum fromApril 6, 1914. until the plaintiff was restored to possession.
Before dealing with the case on its merits 1 would observe thatthe plaintiff’s claim for damages should have been one for an account,and the decree should not have contained au order for ejectment,as the defendants were co-owners and could not lawfully be ejected.
On the appeal, Mr. Sumarawickreme. for the respondent, reliedupon the case of Soysa et at. v. Mohideen,l contending that the leasewas invalid, and that the defendants-appellants were not bona fidepossessors, and were therefore not entitled to any compensation.
The first point for consideration is the law applicable to the case.Counsel for the appellants cited the case of Appuhamy v. Kiriheneya. 3and also the cases reported in 1 S. 0. Reports 71 and 2 Browne 1‘),to show the position of a Kandyan widow as natural guardianof her minor children ; but we were not referred to any Kandyanlaw as to the powers of a Kandyan guardian to alienate or executeleases of the property of the ward. This question must, therefore,in accordance with the provisions of Ordinance No. 5 of 1852, hedecided by Roman-Dutch law.
The next point for consideration is whether the lease was animprovident one. The learned District Judge has held it to be sobecause Ukku took twenty years' rent in advance, and becauseshe had no right to execute a lease which might tie up the lands
» (1014) IT .V. L. n. 279.
2 (189S) 2 X. L. 8. 166.
( 855 )
as against the minors for many yeans. He emphasized the latterpoint by suggesting that if it were hot so she might have executed ,a fosse for one hundred years. In my opinion ^neither of thesereasons is sound for finding the- lease improvident. The questionis one of foot in each case. In the present case it appears thatat the time of the lease the land was jungle land and practicallyunproductive. There is also evidence that the widow sought noInterest for herself, as she took the twenty years* rent in advancein order to pay off some of her husband’s debts. If this be so,then she herself received no benefit from her life interest, and it iscertain that on her death her children could have churned rent,notwithstanding that it has been paid in advance to Ukku, andwould not have been injured by the advance payment. It is inevidence that the lessee and his successors, in pursuance of thecovenant in the lease to cultivate, have planted the land with teaand rubber and brought it to a high stdte of cultivation, so muchso that Sahundera realized Bs. 11,500 on the sale of his interest.It would seem, therefore, that the Kandyan widow Ukku, asnatural guardian of her children, bona fide did her best to develop*
. tiie property in the interests of the minors, without seekingadvantage for herself, and the term of forty years does not appearexcessive to induce a third party to undertake the expenditure; necessary to the development. He had to recoup himself for hisexpenditure within that period, . and give the land back in itsimproved state at the end of the term without compensation. Inthe circumstances of the case, therefore, it would seem that Ukkuacted disinterestedly, wisely, and providently.
I have next to consider the validity of the lease. During thelife of Ukku it was doubtless effectual ; but could she bind theminors ? Under the Soman-Dutch law tutors and curators wereprohibited from alienating the immovable property of a pupil or'minor. But a lease is not an alienation, although it has been heldto be a pro ianio alienation for the purpose of giving a lessee a sightto bring a possessory action. Voet, discussing the affinity of alease to a sale and the question as to whether a lease for more thanten years would give rise-to a jus in re (i.e., a right of dominium orownership), says (Voet 19, 2, 1, Berwick's translation, p. 197):
“ For as we are all agreed that no jus in re is acquired by a lesseeby the hiring of immovables for a moderate time, or at least notsuch a one as requires for its creation the formality of delivery ofthe thing leased before the tribunal of the place, there is the morereason why neither should any jus in re be acquired to the lesseeby an agreement for a longer term. ”
And after further comment Voet continues :“ The differing
opinion of the doctors may perhaps be reconciled by this distinction,that a private lease for more than ten years is good as between thecontracting parties themselves and their heirs, but not to the
1915.
o *
LMs
28
1916.
LMev. 'Christie
( 856 )
prejudice of a third party, he being a singular successor, or ofcreditors, who might be defrauded by so long a lease. v*
In the present tease Sahundera does not derive title as heir ofUkku, but under the will 'd his grandfather. These passages fromVoet s^ow that a lease for more than ten years was so closely shinto an alienation that it bound the land as against the lessor andhis heirs, but not to the prejudice of a singular successor ; but it doesnot say what happens when a singular successor is not prejudiced.
Johannus Sandd, in his Treatise upon Restraints upon0 the Alienationof Things (Webber’s translation, 1892, p. 25), clearly explains theviews of the Boman-Dutch jurists. He says : “ Leasing is akinto emphyteusis, and it may be for a long, or a short, or a moderateperiod of time. A lease is said to be made for a long period of timewhen it extends at least beyond ten years. By such a lease It isthe common opinion that an alienation is made, and as it were,
the dominium transferred And the doctors declare that
a lease for a long term passes into an emphyteusisWhere-
fore the common opinion is that a thing, the alienation of which is
forbidden, cannot be leased for a long term This opinion’
of the doctors, however, is hardly supported by the strict readingof the law. For never, in law, does any real right arise from asimple lease, for whatever term, nor is a quasi dominium transferred;nor does a lease, to whatever term it be extended, pass into an
emphyteusis Now, although these things are so, yet it
is dangerous to depart, in practice, from a generally received andancient opinion. Nor does it seem unjust that the power of letting,without the authority of a Judge, the estate of a pupil or minor formany years should be denied to pupils or minors, or their tutors
or curators A lease made for a short term is binding :
for he who so leases does not alienate And if the lease is
extended beyond the time during which the tutelage or curatorshiplasts, the pupil or minor is held bound by the lease made by the.
tutor or curator And it is very clearly to the pupil's
interest that what has been done by the tutor in his name shouldbe protected, otherwise no one would be willing to contract withthe tutors of pupils. ”. .
Further on, in the same treatise (Webber 42), he says:41 Minors, however, who vindicate their property which baa beenalienated without an order of Court ought to refund the purchaser
the purchase price The improvements ought also to be
given back to the purchaser if he has made improvements on theestate sold without an order of Court.
From these passages it is, in my opinion, certain tiyrt underBoman-Dutch law a lease for more than ten years was dealt withfor certain purposes as if it were an alienation. If made by a tutoror curator it required the sanction of the Court, in the same way asalienation by sale.
{257 >
In the prepent case the lease was made without the sanction ofthe Court, and is therefore invalid as against Sahundera and hissuccessor, the plaintiff..0*
I have now to deal with the claim of thte defendants appellantsto compensation for improvements, and to retain possession pendingpayment. For a clear understanding of the law on the subject itseems desirable to set out the various positions from which claimsto compensation may be advanced by lessees. There seem to be:(1) Clmms by lessees against their lessors on the termination of thelease by time ; (2) Claims by lessees against their lessors when thelease has been found inoperative, owing to some defect, before theexpiration of its term ; (S) Claims by lessees against third partieswhen the lease I.as failed before the expiration of the term.
Claims of the first kind are decided by the terms of the lease.The London and South African Exploration Co., Ltd., v. De BeersConsolidated Mines, Ltd.,1 is a case which falls under that head.The report of the appeal before the Privy Council, which is theonly report of the case I have before me, is of no assistance in thepresent case ; but Maasdorp, relying mainly upon this cose, says'(Maas. Inst., noL II., pp. 56, 57) : “It may be stated generallythat a lessee has in no case the right of retaining, or remaining inpossession of, the land leased after the expiration of the lease ; but if theimprovements have been made with the consent of the owner he willbe entitled to a tacit hypothecation for the value of the materialseven after giving up possession.”
So that although the right to compensation on the expiration ofthe term depends on the contract, Roman-Dutch law assumed a hypo-thecation of the land as against the lessor, when the lease provided forcompensation.
In the other two classes of claims I have set out above the rightto compensation does not necessarily turn on the terms of thelease. In the present case the lease provided that the lands sifouldbe handed over without compensation at the expiration of theterm. The right to compensation is given, if at all, by Roman-Dutch law, and the claim may be based on the loss of the use ofthe land for the remainder of the term, or on occupation irrespectiveof the lease, and, as I hope to show, it must be based on the loss ofuse, and not on occupation irrespective of the lease. The ratiodeetdendi in the case of Soyaa et al. v. Mohideen,3 upon which theplaintiff respondent relies, is not easily seen. The three judgments donot appear to be based on the same considerations ; but in the resulta lessee who had three more years to run before the expirationof his lease, and lost possession owing to a legal defect, was heldnot entitled to compensation against a third party who had titleindependently of the lessor. So far as I can see this result wasarrived at on the facts of that case rather than on the law,i (1895) A. C. 451.2 (1914) 17 N. L. R. 279.
1916,
IMev. Christie
( 358 l
1W8. notwithstanding that it was reserved to a Full Court on a point ofb&te “law. The ruling of Lascelles C.J. dr&WB a distinction between ffiecV. Okriatie, 'case and two previous oases, Muttiah v. Clements 1 and Mudianee v.
SeUandyar* which wove at variance with the conclusion arrivedat, on* the ground that the previous cases had been influenced byequitable considerations which were not found in the case beforehim. The two previous cases were therefore not over-ruled. DeSampayo A.J. also drew a distinction between the case and thetwo previous one6 ; Pereira J. did not mention the earlier eases.All three Judges came to the conclusion that whatever rights a lesseemight have against a lessor, the lessee, plaintiff in that case> had noright to compensation against a party who derived title from asource other than the lessor, in the absence of an assignment by thelessor to the lessee. Pereira J said:“ It may be that the lessor
or his legal representative may claim the benefit of the lessee'simprovements and be entitled to compensation. The question does not arise in the present case. "
So far os I can gather from Soyea v. Mohiieen * equitable considera-tions, if present, might have altered the result, and the lessor might'have rights to claim compensation against a third party. Soysa v.Mohideen 31 cannot be a conclusive authority in the present case.Here there are equitable considerations, and the lessor, Ukku, hasassigned her rights to the defendants by an effective conveyanceon August 27, 1905, so the defendants can claim under that convey-ance the rights of Ukku, the lessor. I would turn, then, to theRoman-Dutch jurists. Sand£, in the passage I have already cited,shows how the Roman-Butch law prohibited curators from makingleases without- the sanction of the Court for more than ten years, asif such leases were alienations, and he states that by Roman-Dutchlaw minors who vindicated then property which had been alien-ated without an order of the Court should make compensationto purchasers . * their improvements. He does not expressly saythat the latter rule would apply to lessees as well as purchasers, but.if letting is so akin to alienation that the law dealt with it as if it
w.ere an alienation, the latter rule would, in my opinion, apply tolessees as a matter of course.
In the South African case. Rubin v. Botha, 3 4 which was a case by alessee against his lessor for compensation for improvements, when,after three years’ occupation out of ten the lease was found to benull and void because it bad not been notarially executed, Lord deVilliers, in a judgment in which Maasdorp P.J. agreed, said :" In
the case of Bellingham v. Blommentje5' …. the defendant
knew that he was not the owner of the land, but, inasmuch as hehonestly believed that he was the lessee thereof, and was entitled
3(1914) IT X. [j. R. 279.
4S. Af. L. P. 1911, App. Bits. 568.
* (1874) Buck 86.
(1900) 4 N. L. R. 158.
(1907) 10 N. L. R. 209.
( 359 ) 9
to erect buildings for use during bis tenancy, it was held .that thedwner should* not be enriched at his (defendant’s) expense. This ^ x&iUdecision was arrived at on the "authority of Oroenewegen (de leg abf a. ChristieInst. 2, I,* SO), who does not coniine the right of being compensatedfor improvements to occupiers having tlfe possessio civilis as
opposed to those who have the possessio ^ naturalis …?
Groenewegen extends the right of obtaining compensation tooccupiers who know that they are building on the land of another,and consequently are not in possession in the strict legal sense.
The ^objections raised by some later Dutch writers to
Groenewegen's statement of the law, as being wide enough toconfer on mala fide possessors the right to compensation for usefulexpenses, would not apply to a case like the present, where a bonafide occupier, although he knew he was building on the land ofanother, believed that the enjoyment of those improvements wouldbe scoured to him for the full period of his invalid lease. "
It would seem, therefore, on the authority of Voet, of Groenewegen,and of 8and6, that by Boman-Dutch law possession under a leasewas so near akin to possession ut dominus, especially when the’lease was'for a long term, that the law treated a lease for morethan ten years in the same way as an alienation of the possessiocivilis. This was probably on equitable grounds, for, Sand£ says.
" nor does it seem unjust. ” The jurists found it & fertile groundfor academical discussion, and the later jurists strove hard toreconcile the conflicting opinion of the doctors ; but they all agreedit was in fact law that a lease which required for its validity adelivery of possession before a Judge was dealt with in law as if itwere an alienation of the posseseio civiUs, i.e.t of the ownership. Itgave rise to the same actions, and the same equitable considerationsapplied, subject, however, to such modifications as the peculiarfeatures of possession under a lease demanded, for instance, as thepossessor under a lease had no intention to hold after the expirationof the term, it substituted a tacit hypothecation for the jus retent{oniewhere compensation was found due after the expiration of the term.
The equivalent in Ceylon for the Boman-Dutch formality ofdelivery Before a Judge is the transfer in writing notariallv executedand registered,' and I. take it, the Boman-Dutch principles applyin Ceylon to all such leases. We find that lessees have been allowedto maintain a possessory action, and we find equitable considerationsgiven effect to in claims for compensation ; the bona fides of thelessee’s possession is considered, and the equitable principle that noman shall enrich himself at the expense of another is applied. Thebona fides of a lessee’s possession, as distinct from the bona fides ofa possessor who holds the dominium, is weighed with a due con-sideration of the effect which a lessee’s intention to hold for a termof years requires. In the South African case of Rubin v. Botha 1 wei 8. Af. L. B. 1911, App. Dir. 568.
( 360 )
qgjg. find Lord de Villiers expressly stating that a bona Me occupierunder a lease, notwithstanding that he is not a bona fid& " possessor p*v. QhrieUA in the strict juristic sense of the word, is entitled to compensation(t.s.f he is not to be regarded as a mala fide “ possessor ") ; and healso said there is no reason in the world why the equitable rule ofRom&p-Dutch law, that no one should be enriched to the detrimentof another, should not apply* It seems to me that the differencebetween a claim for compensation after the expiration of the termand a claim to compensation befipe the full term of the lease hasexpired has not been sufficiently borne in mind in %b Ceylon eases.If the facts show that the lessee is a bona fide occupier and haseffected improvements for which he is entitled to compensation, Iam unable to see why he should not have a right in possession untilthe expiration of the full term of the lease, if the compensation benot paid. Applying the principle of the Roman-Dutch law, I thinkhe would have both a right to compensation during the remainderof the term and a jus retentionie to the end of the term.
Should the consent of the owners to the improvements be requiredto entitle a lessee to compensation ?—The case of The London and'South African Exploration Co., Ltd., v. De Beers Consolidated Mines,Ltd.,1 is not, in my opinion, an authority in the matter. In that casethe full term of the lease had expired. A lessee does not expect toremain in possession beyond the term of his lease, or to have theuse, after the expiration. of the full .term, of any improvements hemay make hence he can only claim compensation for improvementsif the right is accorded him as a matter of contract, i.e., by (heconsent of the lessor as shown in the lease. A lessee disturbedbefore the expiration of the full term is not in this position. Heexpects to have the use of the property and any improvements hemay make for the full term of the lease ; and there is no reasonthat I can see why he should not be able to claim compensation forthe loss of the use of his improvements for the remainder of thefull term, and stop the lessor from being enriched at the expense ofthe lessee to an extent he did not contemplate at the time of makingthe lease.
. As against Ukku’s estate, therefore, I think the defendants would1>e able to maintain a claim for compensation for the loss of use oftheir improvements for the remainder of. the term, and to claim ajus reteniionift till the expiry of the term. It is the second class ofclaim I have enumerated above. The claim as lessee in this case,however, falls within the third class of claim. It is against a thirdparty, who does not derive title from Tlkku. Apart from anyprivity of contract, the defendants, in my opinion, would, underRoman-Dutch law, be entitled to compensation as against theplaintiff to the same extent as they could claim against Ukku'sestate, provided it can he shown, as it admittedly is in this
x {1895) A. C. 451.
( )
*
oase, that the defendants have acquired the benefit. A lessee fora long term was treated by Boman-Dutoh law, as I have shown ’above, as if the lease were an* alienation, and a ipinor vindicating «.his property after coming of age was bound to pay compensationfor improvements which were not improvident.^
I have already distinguished the ease of Soyaa v. Mohideen 1 fromthe present one. That appears to have been decided in the absenceof equitable considerations, and the absence of any transfer of thelessor’s rights to the lessee.
In the present cose, however, the defendants are in a strongerposition than the lessee in Soyaa v. Mohideen,l for they hold aconveyance of Ukhu’s rights. If the administrator of a .tenant forIife can claim compensation for improvements from the owner, thedefendants can maintain their claim as successors to Ukku, thetenant for life in this case. In my opinion the administrator of atenant for life could maintain such an action, although instancesof it would be very rare, as the owners are nearly always also theheirs of the tenant for life. It is certain that a fidei commissarywould be liable to pay compensation for improvements on takingover from the fiduciary (Voet 36, I, 61). The extent to whichcompensation would run would depend upon the nature of theimprovements, and if they were not improvident the claim wouldsucceed.
I hold, therefore, that either as lessee or os assignee of the lessorthe defendants, in the circumstances of this case, have a right underRoman-Dutch law to compensation for improvements, and theright as lessees gives them a jus retentionis to the end of the termof the invalid lease.
I would now come to the amount of compensation. If theclaim is considered as one by a lessee, the amount of compensationwould vary with the length of the term unexpired, for if only oneyear remained before the lessee was bound to surrender withoutcompensation the amount would be less than if several years stillremained. In such a case, I take it, the measure of compensationwould be the annual rate at which a prudent man would, in thecircumstances, provide for a nlnlring fund for his outlay, plus theannual profit, and theamount of compensationwouldbea matter
of calculation on thatbasis.If, however, theclaimis considered
one by an assignee of the lessor as distinct from a claim by a lessee(we have both these claims in the present case), the measure ofcompensation should, I consider, be the present vsdue of the landwith the improvements, less the present value of the land withoutthe improvements. I do not consider it necessary to send the caseback to ascertain the amount of compensation. There is evidencethat the land originally (wasnot worth more than Rs.40per acre,
while in its improvedstatetoday it is worthaboutRs.750 per
t (1914) 17 N. L. R, m.
13*5.
LM*
Ohristi*
( 362 )
tot§* acre. The defendants* claim is so moderate it must fall well withinthe sum awardable. The plaintiff is entitled to a deduction forChristie the rent due and payable after TJk&u’s death.
I would set aside the decree and declare the plaintiff entitledto an undivided half dhare of the lands in-dispute* The plaintiffshould pay as compensation for improvements .the amount claimedby the defendants, less the amount of rent due under the lease* anduntil such compensation is paid, or the full term of the lease expires,whichever is less, the defendants are entitled to retain possession,after which the plaintiff is entitled to be placed in possession.
I would allow the defendants the costs of appeal and in theCourt below.
[The case was argued before a Full Bench on July 20 and 22, 1915.]
Bawa, K.G.t Acting Solicitor-General, and J. W, de Silva, for thedefendants, appellants.
Samarawickrcme and C. H. Z. Fernando, for the plaintiff,respondent.
Cur. adv. vult.
July 30, 1915. Wood Bboton C.J.—
[His Lordship set out the facts, and continued]:—
I agree with the learned District Judge and with my brothersEnnis and Shaw that the lease granted by Ukku in 1898 in favourof Mr. Christie’s conductor is invalid in law, although I am notprepared to say that it was improvident. The only evidence inthe record as to the circumstances in which it came to be grantedis that of Mudalihamy Korala, who states that Ukku consultedhim before she gave the lease, said that her husband owed somedebts which she wished to pay, and asked him to try and negotiatethe business. I do not think that that evidence was admissibleunder section 32 (8) of the Evidence Ordinance, and, even if itwdfre, it does not carry us far.
The defendants' counsel argued that the validity of the leaseshould be considered from the standpoint of Kandyan law, andthat under that law a widow was the natural guardian of her minorchildren, and was entitled even to alienate, and, a fortiori, to lease,the ancestral property. In support of this contention he referredto Appuhamy v. Kiriheneya 1 and Juwan Appu v. Helena Hamy. ~The point that the power of Ukku to alienate her husband’s landsdepended upon Kandyan law was not taken in the District Courtor in the petition of appeal, and the authorities above mentioneddo not, in my opinion, establish it. In Appuhamy v. Kiriheneya 1the question was the right of a Kandyan widow to sell her deceasedhQsband’s lands in payzqent of his debts. We are here concernedwith a lease, and not with a sale, and, as I have already said, the
> {1896) 2N.R.R 155.
9 (1901) 2 Br. 19.
( 363 )
i
avid? se that the lease was^ effected for the payment of debts is 191(6.whofinsufficient. Juwan Appu v. Helena Hamy * is directly ^OOJ>
again* the 'argument that I am considering. It was there held^Rbntok C?.J.that v- ider the4 lecher—and, I take it, tiu t the same
reason? ig would apply to a mother—has the righi of managing the v. Christiepropcst*r of a minor child for rise-advantage *of the latter but cannot&Hexzi>te it .Viihcut the authority of the Court. Under the Roman-Dutqi law, as it exists in Ceylon, the mother doee not become, onthe 4|sath of ri/e-father of a minor child, the guardian of .the latter,othes vise than by an appointment made by the Court under chapterXL. M tiie Civil Procedure Code (see Gunasekera Hamine v. DonBaron,* Mustapha Lebbe v. Martinas,* and Mana Perera v. PereraAppv&'amy 4). The passages from Toet 8 and Sandi on Restraints, 6quoted by my brother Ennis, show that the authority of the Courtis nee sssaiy for a lease exceeding, as was here the case, a period often yoaxs, of the property of a minor.
On the question of compensation, I hold that we are concludedby the authority of the decision of the Full Bench in Soysa t>.
Mohideen.7 It is true, as the defendants* counsel argued, that theJudges in Soysa v. Mohideen 1 do not expressly over-rule the earlierjudgments of this Court in Muttiak v. Clements8 and Mudianse v.
SeUandyar,® in which the position was recognized that a lessee ofland may be entitled, as its bona fide possessor or occupier, to claimcompensation for improvements made by him on his eviction beforethe end of the lease. There are ether authorities to the same effect(see D. C. Badulla, No. 20,641,10 and o.f. Tikiri Banda v. GamagederaBanda n). But even these are not unanimous (see Punchirala v.
Mohideen ’*). And the right of a lessee to possessory remedies hadbeen clearly recognized, Fernando v. Fernando. 13 But the case ofSoysa v. MohideenT was referred to the Full Bench for the verypurpose of having the decisions in Muttiak v. Clements 8 and Mudiyansev. SeUandyar 9 re-considered, and the language in which the Judgesdistinguished these authorities shows beyond all doubt that theylegarded them as being limited to the particular facts on whichthey turned—facts disclosing equities in favour of the partyclaiming compensation. I have myself explained both cases inthe same sense in an unreported decision, of which I bave kept nonote. Whether the decision in Soysa v. Mohideen 7 was sound ornot is a question that I do not propose to discuss. Sound or unsoundit is a decision of the Full Bench, and as such (see Robot v. De Silva *4)is binding upon ub here. Nor do I think that we can profitably enter
*(1901) 8 Br, 19.
3 (190® & N. A. B. m.
am) 6 n. l. a. m.
(1895} 1 N. L. R. 140.
Bstvrick's Vest IS?,
Webber's SandS 96 and 49,
(1914) IV N. L. R. 279.
* ilSOO) 4 N. L. R. 168.*(1907) ION. L. R. 209.(1877) Ram. 1877, 333.
11 (1879) 8 8. €. C. 31.is (1910} 13 N. L. B. 193.
13 (1910) 19 N. L. R. 164.(190?) 10 N. L. R. 140.
( 864 )
F*.
C W0pDthmoK C.J.
„ LMe«• Christie
upon the ^question whether, even if t^e defendants had a cotwcfeslioret alienee, they might still be held entitled to compensation onthe authority of the South African cases of Rubin v* Botha 1 andBellingham v. Bl&mmentje,fl in view of the decision of the Full Courtin General Ceylon Tea Eeiatee Co., Ltd., v. Putte* even if the expressauthority of Soysa v. *Mohideen 4 did not itself preclude us fromdoing*sOi I may add . that I do not think that the record containssufficient material to enable us to express an opinion one way orthe other on the question of the defendants' bona fides in fact.
There remains only the question whether the defendants, havingacquired Ukku's life interest by purchase, are entitled to set upany claim that Ukku might have as fiduciarius to compensationfor improvements as against her minor children. The passage inVoet,* on the strength of which it was contended that a fiduciariuscan claim compensation for such improvements as we have here todo with, is obscure (see Livera v. Abeyeinghe 6). I am inclined tothink that it refers to impensce necessarue only, and this seems tobe the view of Sandd. 7 In McGregor's notes to Voet, ad loc. cit.,he quotes Shorer's comment on Grotiue 2, 20, 13, that the fiduciary *heir may recover necessary, and also sometimes useful, expenses.But there is no explanation of the term “ sometimes," and Shorercan scarcely be regarded as a clear authority upon the point. InSoysa u. Mohideen 4 my brother De Sampavo speaks of a claim forcompensation by the fiduciary for 11 useful improvements." Butin that case the point was not expressly raised, the question atissue being the right to any compensation at all. It is, however,unnecessary to consider the matter here, inasmuch as the presentcase is not really one of fidei cvmmiesum at all, but of the right ofusufruct of a Kandyan widow. Moreover, even if Ukku could beregarded as a fiduciary, the improvements in question were not madeby her, nor was any expense in connection with them incurred byher. If she had not parted with her life interest, I do not thinkthat she could have set up any claim to compensation in respect ofthem, and if that be so, it is clear that she could not transmit anysuch right to the defendants. Counsel for the respondent- did notcontest the correctness of the modifications proposed by my brotherShaw as to the cooly lines and the order as to ejectment. I agreewith him that those modifications should be made, and subject tothem that the appeal should be dismissed with costs.
I may add' that I do not think there is any conflict between theoases of Hewavitarane v. Dangan Rubber Co.4 and Soysa v. Mohideen4But even if there were any conflict between the two decisions, thatin Soys a v. Mohideen 4 must prevail.
(1911) S. A. Cases 568, 589.* Voet 38, 1, 61.
(1874) Buck. 38.* (1014) 18 N. L. It. 57.
(1906) 9 N. L. JR. 98.1 Restraints upon Allienatiou, Part
-* (1914). 17 N. L. JR. 379.3 Ch. 8, ss. 58, 59, 60, and 61.
a (1913) 17 N. L. R. 49.
( 865 )
Ennis J.—
Thin appeal has now been re-heard before the Full Court. I seeno reason to alter the conoluqjkm to which I have previously arrived*The ease of Tikiri Banda v. Oamagedera Bandax has nowbeen cited* together with certain passages in Modder, to showthat Kandyan law recognized the principle of compensation forimprovements. Berwick J. in- Tikiri Banda v, Oamagedera iBanda 1illustrated (at page 34) his argument with a Kandyan case in whicha person who re -as weddumized an abandoned paddy field with orwithout permission was held entitled to compensation for the work.Tikiri Banda V Oamagedera Banda 1 was referred, to in the case ofThe General Ceylon Tea Estates Co. v. Pulls, 3 where there wasa strong finding that the possession of the defendant was malafide. The decision in The General Ceylon Tea Estates Co. v. Pnlle 3was that by Roman-Dutch law as applied to Ceylon a mala fidepossessor was not entitled to compensation for improvements. Inthe present case the appellant cannot be said, in the strict juristicsense, to be a possessor at all, as he does not hold the possessioctctUs, and therefore is neither a bona fide possessor nor a mala fidepossessor.
The lease is invalid because the possession of a lessee is so analogousto the possessio civilis as to require the sanction of a' Court for itsvalidity. I am still unable to see any logical reason for disregardingthe analog in considering the claim for compensation. It doesnot seem to me to be equitable to approve the argument in onecase and disapprove of it in the other.
No issue as to the bona jfades of the defendant was framed at thetrial, and the judgment of the learned District Judge seems toindicate that he believed them to be bona fide in fact but mala fideby an inference of law, as they had notice they were dealing withthe property of minors and should have known the transactionrequired the sanction '~of the Court. It seems to me that theauthorities are all ^against any such inference being drawn. Noevidence, in the absence -of an issue, was led with regard to themaking of the lease, and there is a presumption of law in favour ofbona fides.
The case of Soysa v. Mohideen 3 is not an authority for the pro-position that a lessee is in every case to be regarded as a mala fideholder. It does not go beyond the proposition that a lessee cannotclaim compensation on the footing that he is a bona fide possessor.I do not, however, think it goes so far as that, for, as I have explainedabove, the earlier cases were not over-ruled, and since the hearingI have found a case, Hewavitarane v. The Dangan Rubber Co.,*which was not cited to us or in Soysa v. Mohideen,3 where alessee was deemed to be a bona fide possessor. In my opiuion
19*5.
ZMe,►. Chriahe
* (1679) 8 8. C. C. 31.3 {1906) 9 N. L. R. 98.
3 (1914) 17 N. L. R. 279.* (1913) 17 N. L. B. 49.
#15.
2&NHI8 J.
Lebbe, Christie
L 366)
&
the validity of an ex-lessee’s claim ©to compensation turns uponthe bona fides of his occupancy, and this does not appear to have0been put in issue in the present caye. I would make the orderI have already fognul&ted.
Shaw J.—
o
[His Lordship set out the facts, and continued]:—
The District Judge has held that the lease of February, 1898,was void in so far as it purported to affect the reversionary interestof the children, and has made the declaration chimed by theplaintiff, and given nominal damages at the rate of Rs. 125 perannum from April 5, 1914, when the plaintiff became entitled topossession. He has also refused to decree that the defendants areentitled to compensation, on the ground that they were not bona fidepossessors, and from his decision the present appeal is brought. Inmy opinion the decision of the District Judge is correct on bothpoints.
Dealing first with the power of TJkku to grant the lease. Noauthority has been cited that appears to me in any way to show*that under the Roman-Dutch law a mother, or even a guardianappointed by the Court, can alienate or encumber the property ofan infant, or grant a lease of his property to extend beyond, at themost, the term of ten years, except by permission of the Court.On the contrary, it appears to be a clear principle of the Roman-Dutch law that a minor’s immovable property cannot be alienatedwithout the decree of a court of competent jurisdiction (see judgmentof Layard C.J. in Mustapha Lebbe v. Martintis 1 and the authoritiesthere cited). It i6 true that Van der Linden, ch. 4, sec. I, saysthat after the death of the father the parental power devolves onthe mother alone, and that such power consists in the entiredirection of the maintenance and education of the childrenand the management of their estate. There is nothing,however, that in any way suggests that the mother as naturalguardian has any power to alienate or encumber the infant'sproperty, unless she is appointed guardian and has the authorityof the Court. However this may be, no legal right in the naturalguardian to deal with the infant’s property is recognised by ourCourts (see Qunasekera Hamini v. Don Baron3). ChapterXL. of the Civil Procedure Code requires every person who shallclaim a right to have charge of properly in trust for a minor toapply to the Court for a certificate of curatorship. Such persons,when appointed, have the powers conferred upon guardians by theRoman-Dutch law (see Perera v. Appuhamy s), which, as I have saidbefore, do not include any power to alienate or charge except byleave of the Court. i
i {IMS) 6 N. L. R. 304.* (190® & N. L. R. 273.
3 (1895) 1 N. L. R. 140.
( 367 )
1
SfiAW J0
Lebbcv. Christie
lease is void, and that Sahundera is entitled to make a good title-to the land in its present condition.
It has been decided in the case of Juwan Appu v. Helena Hamy,1that although under the Kandyan law a father may manage hisminor son's property for his son's advantage, he cannot alienate itwithout the leave of the Court. It was, however, contended onbehalf of the appellants, on the authority of Appuhamy v. Kiri-heneya* that a Kandyan widow has the same power of managementand may alienate for the purpose of paying the debts of herdeceased husband, and that in the present case there is evidence toshow that this was her purpose in granting the lease under consider-ation. I think this evidence, such as it is, is contradicted by allthe facts of the case. In the first place, Ukku was in this caseappointed by the Court as executrix of her deceased husband, andany rights of alienating to pay debts under Kandyan custom wereabsorbed in her rights as executrix. She duly closed the "estate,and four years after the testator’s death conveyed the land tothe persons entitled, without having raised any money from it forpaying debts. When she granted the lease, six years after thetestator’s death, his debts would have been barred by prescription,and the lease itself makes no mention of any such purpose, but, onthe contrary, it recites that it is for the use and benefit of theminors and herself. I therefore think that there was no power togrant this lease under any Kandyan law or custom.
With regard to the second question, namely, whether the defend-ants are entitled to compensation for their outlay in improvingthe laftd and to a declaration of a jus retentionis therefor, I agreewith .the finding of the District Judge that the defendants were
In my opinion, therefore, dTkku had no power to grant the leaseof September, 1898, beyond the term of her life interest and, in sofor as it exceeded that, it way void.•
Even had Ukku been a guardian appointed under chapter XL. ofthe Civil .Procedure Code, and had applied for permission to grantthe lease,. I do not think such permission would have been properlygranted, for I agree with the District Judge that, so far as theinterests of the minors was concerned, it was an improvident leaseand not for their benefit. It deprived them of their property fora period of fijrty years for the insignificant rent of 60 cents an acre,and was a bargain which Ukku would herself never have enteredinto had she not been tempted by the twenty years* rant in advance,which she had clearly no right to accept, as her interest might haveterminated on the next day. The foot that Sahundera has obtaineda good price for his interest in the land from the plaintiff does notin any way show that the lease was not an improvident one so foras he was concerned, the price having of course. been influencedby the fact that the plaintiff has bought under the view that the
i (1901) 2 fir. 19.
* (1896) 2 Ni L. R. 166.
Iff*.
°:ffUW J.Citte
. ( 368 )
6
not bona fide possessors within the meaning of the Boman-D utchlaw, and are therefore not entitled to compensation.
• It is an undoubted underlying prineiple of the law of compen-sation for > improvements that one person shall not be enriched ajbanother’s expense! and consequently when a person is in possessionof another's property bona fide and in the belief'that it is his own,he is entitled to compensation for his outlay in making usefulimprovements to Hie property; and moreover, he is entitled toretain the property until his outlay is reimbursed (see Ttkiri Bandav. Oamagedera Banda *).
In the present case the Messrs. Christie, who cleared the landand planted the tea and rubber, had neither the possession referredto nor was their possession bona fide. *' Possessor " for this purposemeans the person who is in the enjoyment of the possessio civilis,which is detentio animo domini, and his rights are very different tothose of a lessee, which are governed by quite different consider-ations (see Pereira's Laws of Ceylon 353-354 and the authoritiestherein cited, and the judgment in Soysa v. Mohideen2). Thepossession here was not in my view bona fide in law, because the'lease under which the defendants occupied the property showedon the face of it that Ukku had no right' to deal with anythingbeyond a life interest. Although it is not necessary to so decidefor the purpose of this case, it appears to me at the least to bedoubtful whether Messrs. Christie’s possession under the lease waseven bona fide in fact. The lease was taken in a roundabout waythrough their conductor, and a payment of rent in advance wasmade which was palpably improper in the interest of the minors.There was at one time some doubt whether under the law prevailingin Ceylon even a mala fide possessor is not entitled to compensationfor useful improvements. In view, however, of the Full Courtdecision in The General Ceylon Tea Estates Co., Ltd., v. Pulle,2 itseems now to be settled law that such a right does not exist (seealso Livera v. Abeysinghe 4).
0
In my view the defendants’ claim for compensation with, respectto clearing and planting the land and for retention until paymentis absolutely concluded by the decision of the Full Court in Boysav. Mohideen * above referred to. In that case the defendant hadoccupied the land subject to a fidei commissum as lessee of one ofthe fiduciarii, who had agreed to pay to the defendant, at thetermination of the lease, half the value of certain improvements tothe property made by him, in accordance with the stipulations ofthe lease. In an action by the fidei commissarii, the fiduciamhaving died, to recover a share of the property, it was held that itwas not competent to the defendant to claim any compensationfor the improvements.
*(1879) 8 S. C. €. 31.
(1014} 17 N. L. R. 279.
(1006) 9 N. L. R. 98.
0914) 18 N. L. R. 67.
( 869 )
I am unable to distinguish that case from the present, exceptperhaps by. saying that equities in favour of the defendant in <ha£appear to me to have been "stronger than those of the defendantsin the present case. It was further contended0 on behalf of theappellants that even if they are not entitied to compensation aspossessors under the lease of. February, 1898, they are so entitiedas assignees of Ukku*s rights in the land. It is suggested thatcompensation for useful improvements effected by Ukku as lifetenant must be compensated for by the reversioners upon thetermination of her interest, and the improvements effected by theappellants, her tenants, must be taken to be improvements effectedby her, and .that they, as assignees of her interest, stand in herplace with regard to the compensation.
There appears to be a toal absence of authority in Ceylonregarding the rights of a life tenant or fiduciary to compensationfor improvements, and no very great assistance seems to be obtain-able from tile Roman-Dutch jurists. Vast 36, 1, 61, however,would appear to be of opinion that* a fiduciary is entitied to thesame compensation as allowed to a bona fide. possessor, and this *view appears to be not unreasonable, and in accord with the generalprinciples of the law. However this may be, I do not think itassists the appellants in the present case. The improvements werenot effected by Ukku, nor was the expense incurred by her, andhad she retained her interest and lived until the termination of thelease I cannot see that her estate would have had any claim againstthe reversioners in respect of the improvements.
With regard to the costs of putting up the cooly lines, the positionis somewhat different .to the clearing and planting. They wereput up by Messrs. Christie after they bad acquired Ukku’s lifeinterest and Rankin's half share, and when they were thereforenot only owners of Ukku’s life interest but were also co-owners withSahundera in the reversion of the property. They are, therefore,entitled to remove the lines, or they may be entitled to compensationin some future proceedings for partition if they are in a position toshow that erection of the buildings is a proper and customaryimprovement to a block of land of the description of that in dispute.I do not think, however, that they are entitled to any compensationor jus reteniionis in the present action.
The form of the decree is not quite correct. It directs that thedefendants be ejected from the share claimed. A co-owner cannotbe ejected, and the proper order, and the one that appears to becommonly made in such cases as this, is that the plaintiff be put inpossession of the half share.
Subject to tins amendment, I would, for the reasons given above,dismiss the appeal with costs.
>918.8haw J.
v. Christie
Appeal dismissed.