061-NLR-NLR-V-48-MARCELINE-FERNANDO-et-al.-Appellants-and-PEDURU-FERNANDO-et-al.-Respondents.pdf
Marceline Fernando v. Peduru Fernando.
19 3
1947Present: Jayetileke J. and Nagalingam A.J.
MARCELINE FERNANDO et al., Appellants, andPEDURU FERNANDO et al., Respondents.
53—D. C. Negombo, 12£02.
Fidei-commissum—Improvements effected by purchaser from fiduciarius—Right to claim compensation from fidei commissarius.
A purchaser from a fiduciarius is entitled to claim compensation fromthe fidei commissarius for improvements effected by him to the fideicommissum property, if he was unaware of the existence of the fideicommissum and effected the improvements in the bona fide belief that hewas the owner of the property.
PPEAL from a judgment of the District Judge of Negombo.
The plaintiffs brought this action for the partition of a- land. Theoriginal owners of the land had gifted it to one Peduru by deed No. 8,737of November 21, 1862 P 1), subject to a fidei-commissum which extendedto four generations. The deed, however, was not registered. The 4th-9th defendants claimed the land on two deeds (4 D 2 and 4 D 3) executedby the heirs of Peduru in favour of their predecessor in title FranciscuFernando. They claimed, in the alternative, compensation for certainimprovements effected by them and their predecessor in title. It wasestablished that deed No. 8,727 created a valid fidei-commissum. Further,the 4th-9th defendants were entitled to compensation for the improve-ments effected by Franciscu Fernando—Mudaliyar Wijetunga v.Duwallage Rossie et al. (1946) 47 N. L. R. 361. The remaining questionfor consideration in appeal was whether the 4th-9th defendants couldclaim compensation for the improvements effected by them after theyentered into possession of the land unaware of the fidei-commissum attach-ing to it and in the belief that they were the owners of the property.
L. A. Rajapakse, K.C. (with him H. W. Jayawardene), for the 4th-9th defendants, appellants.—The learned District Judge should not haveheld that Franciscu Fernando was a mala fide possessor. The deedP 1 was not registered and the evidence is that Franciscu was not awareof its contents till a copy was obtained for this case. There was noreason for him to think that by deeds 4 D 2 and 4 D 3 he did not becomethe owner absolutely. A fiduciary is entitled to claim compensation forimprovements from the fideicommissary—Dassanayake v. Tillekeratne1;Du Plessis v. Estate Meyer et al."; Brunsden’s Estate v. Brunsden’s Estateet al.s; Wijetunga v. Duwalage Rossie
N. E. Weerasooria, K.C. (with him E. B. Wikramanayake and S. R.Wijayatilake), for the plaintiffs, respondents.—The cases referred to donot apply to the facts of the present case. Here we are concerned withthe right of a purchaser from a fiduciary to claim compensation from the
* (1917) 20 N. L. R. 89.3 S. A. L. R. (1920) S. C. 159.
1 S. A. h. R. (1920) S. C. 1006.* (1946) 47 N. L. R. 361.
194 JAYETTLEKE J.—Marceline Fernando v. Peduru Fernando.
fideicommissary. The Privy Council case of De Livera v. Abeysinghe ismore in point. There it was held that the purchaser from the fiduciarywas not entitled to compensation.
[Jayetileke J.—• Did the Privy Council in that case lay downa general principle or did they merely say that in the circumstancesof that case the purchaser not acting bona fide and being a trespasser wasnot entitled to compensation ?]
The Privy Council did not hold that a purchaser acting bona fide wasentitled to compensation. This judgment should be considered inrelation to the facts set out in the judgment of the Supreme Court.Moreover, in this case it cannot be said that the improvements werenecessary or even beneficial to the property concerned. In fact we areprepared to allow them to remove the alleged improvements.
A. Rajapakse, K.C., in reply.—Under the Roman-Dutch law apurchaser from a fiduciary is entitled to compensation—vide Steyn’sLaw of Wills in South Africa at page 274. The Privy Council decisionis by implication an authority upholding this proposition ; vide report ofthe case in 1917 A.C. 534.
S. R. Wijayatilake (with permission of Court).—The case referred toby Steyn does not bear out the principle as-stated by him.
The South African cases cited for appellant have been referred to in alater decision and a distinction appears to have been drawn betweendifferent classes of fiduciaries. See Revington et al. v. Short ei al*.
A fiduciary is entitled to compensation in respect of such improvementsas a bona fide possessor would be entitled to. He can recover necessaryexpenses, but only such useful expenses as enhance the value of theproperty, and then only to the extent of the actual expenditure. SeeEx parte Boshojff
Cur. adv. vult.
May 7,1947. Jayatileke J.—
This is an appeal from a decision of the District Judge which arose underthese circumstances. The plaintiffs brought this action for a partitionof the land depicted in plan Z. They alleged that the original ownersof the land were Rapiel and his wife Maria- and that they gifted it totheir son-in-law Peduru by deed No. 8,737 dated November 21, 1862(P 1) subject to a fidei-commissium which extended to four generations.The fourth to ninth defendants denied that P 1 created a fidei-commissumand claimed the land on two deeds No. 11,484 dated April 29, 1897(4 D 2) and No. 16,943 dated July 2, 1906 (4 D 3) executed by the heirsof Peduru in favour of their predecessor in title Franciscu Fernando.They claimed, in the alternative, compensation for certain improvementseffected by them and their predecessor in title. The District Judgeheld that P 1 did not create a valid fidei-commissum, and there was anappeal to this Court against that order. This Court reversed the judg-ment of the District Judge and sent the case back for inquiry into thealternative claim. At the inquiry, after evidence was led on both sides,the question was raised whether the 4th-9th defendants werelegally entitled to claim compensation. The District Judge held that
* {1917) 19 N. L. R. 492.* S. A. L. R. {1920) C. P. D. 462.
* S. A. L. R. (1943) O. F. S. P. D. 56 and 170.
JAYETILEKE J.—Marceline Fernando v. Pedv.ru Fernando.
195
Franciscu Fernando was a mala fide possessor, and that, therefore, the4th-9th defendants were not entitled to claim compensation.The present appeal is against that order. At the argument before usCounsel for the 4th—9th defendants urged that the finding of theDistrict Judge is in the teeth of the evidence, and he invited our attentionto two passages in the evidence at pages 40 and 54 of the typewrittencopy which show that P 1 was never registered and that no one was awareof its contents till a copy was obtained for the purposes of this case.
It must be noted that at the time P 1 was executed there was no provisionin our law for the compulsory or optional registration of deeds. In viewof the evidence it seems to me that it was not possible for the DistrictJudge to hold that Franciscu Fernando was a mala fide possessor. Thedeeds 4 D 2 and 4 D 3 purported to convey the lands to him absolutelyand there is no reason to think that he did not enter into possession inthe bona fide belief that he was the owner. What then are his legalrights in regard to any improvements effected by him to the property ?On this question the judgment of the Privy Council in De Livera v.Abeysinghe ' appears to be of some assistance though the facts are diffierentfrom those in the present case. The facts of that case show that the claimfor compensation was made by a purchaser from a fiduciary who was inthe position of a trespasser. In the course of his judgment EarlLorebum said : —
“ In the facts of the present case the appellant was not acting bonafide. He knew the risks, he knew the facts, showing that he was amere trespasser in what he did, and he knew that he was invading therights of the heirs, and knew that Mary de Livera had no rightto alienate, and knew that he was altering the character of this propertywithout the consent of the persons whose interest it was to preserve 'it} and without any authority from anyone except the trustee whoseduty it also was to preserve it. Their Lordships think in such a caseas this, it is quite impossible to suppose compensation would bepayable ”.
Their Lordships did not decide the question whether a purchaser froma fiduciary is entitled to claim compensation from the fideicommis-sary for improvements effected by him to the property, but it seems tome that there is necessarily implicit in the passage quoted above that heis entitled to do so if he effected the improvements in good faith. Thereis ample authority that a fiduciary or his estate is entitled to claimcompensation as against the fideicommissary for beneficial expenditureupon the property which forms the subject of the fidei-commissum.(Vide Dassanayake v. Tillekeratne ’; Du Plessis v. Estate Meyer and othersBrunsden’s Estate v. Brunsden’s Estate and others *. There is also authoritythat a purchaser from a fiduciary would likewise be entitled to compen-sastion s.
The question of principle raised here is indistinguishable from that whichwas argued in Mudaliyar Wijetunge v. Duwalage Rossie et al.°,
»(1917) 19 N. L. R. page 492 at page 493.
« (1917) 20 N. L. R. page 89.
(1913) Cape Supreme Court Reports 1006.
(1920) Cape Supreme Court Reports 159.
Steyn “ Law of Wills in South Africa *' page 274.
• (1946) 47 N. L. R. page 361 at 372.
196
Jayasundera v. Perera.
before my brother Wijeyewardene and myself. The facts of that caseare as follows : —Two persons, Nandiris and Siyaneris, were entitled to aland in equal shares. By deed P 3 of 1906, Nandiris gifted his half shareto Carlina subject to the condition that she should not sell mortgageor otherwise alienate the said share and that upon her death it shoulddevolve on “ all her children being heirs descending from her and thosewho have obtained authority as her executor or administrator”. Bydeed D 1 dated March 22, 1918, Nandiris purported to cancel the conditionsin P 3 and to gift the half share absolutely to Carlina. By deed D 5dated March 24, 1918, Carlina transferred the half share to Nandiris.In the year 1919, one E. C. de Fonseka wanted to purchase that sharefrom Nandiris and he consulted his legal advisers whether the title wasgood. He was advised that the title was good and he purchased theshare on deed D 3 of 1919. After his purchase he entered into possessionand planted the land with budded rubber. The question arose whether
C. de Fonseka was a bona fide possessor. It was held that he was andthat the purchaser at the sale in execution against him was entitled toclaim compensation for the improvements effected by him. This is anexact authority which determines the present case.
I would, accordingly, set aside the order appealed against and send thecase back so that the District Judge may decide what sum the 4th-9thdefendants are entiled to on the findings already made by him.If he has failed to find on any of the items claimed by the 4th-9thdefendants he will hold a further inquiry, if necessary, and make hisdecision. As the 4th-9th defendants have claimed unsuccessfully toexclude a portion of the land from the action I would award them halfcosts of appeal. The parties will bear their own costs of the inquiry.
Nagalingam A.J.—I agree.
Order set aside.