081-NLR-NLR-V-41-MEIYAPPA-CHETTIAR-v.-RAMASAMY-CHETTIAR.pdf
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Meiyappa Chettiar v. Ramasamy Chettiar.
1939Present: Wijeyewardene and Nihill JJ.
MEIYAPPA CHETTIAR v. RAMASAMY CHETTIAR298—D. C. Kandy, 57.
Servitude—Property held in common—-Agreement to exchange services of bath-room and closet—No servitude—Right to withdraw from arrangement.
The plaintiff and the defendant who were once co-owners of a housepartitioned it amicably, the plaintiff getting a divided northern portionand the defendant a divided southern portion.
The property had only one bathroom and a water-closet the bathroomwas on the portion allotted to the plaintiff and the water-closet on thc-■ portion allotted to the defendant.
In pursuance of an indenture entered into between the parties, thedefendant in consideration of the permission granted to him to use thebathroom and water-pipe allowed the plaintiff, his servants, &c., to usethe water-closet; and the plaintiff in consideration of the permissiongranted to him to use the water-closet allowed the defendant and hisservants, &c., to use the bathroom.
After some time the defendant gave notice to the plaintiff that he wouldnot permit the use of the water-closet from a certain date, and thatthat the agreement would cease to have effect after that date.
Held, that the indenture did not create a servitude and that it gave theplaintiff merely a permission to use the water-closet in consideration of thepermission granted to the defendant to use the bathroom.
Meiyappa CheUiar v. Ramasatny Chettiar.
325
Held, further, that there was nothing in the indenture which militatedagainst the revocation of the permission by one party against the wishesof the other..
HIS was an action instituted by the plaintiff for a declaration that
J. he was entitled to the use of a water-closet in terms of an agreemententered between the defendant and himself. • The facts are stated in thehead-note. The question was whether the indenture P 1 was revocable.
The learned District Judge held that it was not open to the defendantby his unilateral act to determine the agreement.
N. E. Weerasooria, K.C. (with him Colvin R. de Silva), for defendant,appellant.—The agreement P 1 discloses nothing more than a licence.It creates a permission or personal licence and cannot be regarded asinvolving an interest in land. A licence is revocable at will. For meaningand effect of licence, see Vol. 8 of Wood-Renton’s Encyclopaedia of theLaws of England, pp. 160-161; Wilson v. Tavener'; King v. DavidAllen'; 2 Van Leeuwen, ch. 19, section 5 (Kotze’s Translation, 1921ed., p. 282) ; Voet 8.4.18 (Hoskin’s Translation, p. 58).
Looking at the agreement in the light of a contract of tenancy, it isterminable at will—Wille on Landlord and Tenant, p. 67 (1910 ed.).
H. V. Perera, K.C. (with him S. J. V. Chelvanayagam), lor plaintiff,respondent.—The authorities cited have no application to the facts ofthis case. A licence is a permission given to a person personally and notas owner of a certain property.
There is a distinction between a right granted to a person to do some-thing on another’s land, e.g., the right to stick bills, and the right givento a person as an owner of certain property. The former is a personalright, whereas the latter is a real right and becomes an accessory of theproperty. Th persons mentioned in the grant of a real right are notmaterial. In the present case, for example, children have not beenincluded. The inclusion of servants in P 1 is conclusive evidence thatthe right which was granted was in relation to property. The distinctionbetween a personal right and a real right is dealt with in Voet 8.1.
Considering the circumstances under which the agreement was enteredinto, the right given to plaintiff in P 1 was clearly in connection with theoccupation of property, and not personally. It has, therefore, the natureof a servitude. The agreement would never have been notariallyexecuted unless a right in respect of property was in contemplation.There can be no doubt that the agreement in question was intended to bea contract. A permission, on the other hand, is not a contract, nor is alicence.
The word “ permit ” occurring in the agreement does not always indicatelicence. It may be used in a grant. The context should determine themeaning of the word—Phillips v. Smith
The right to use a water-closet can be the subject of a servitude,according to the view taken in Kaurala v. Kirihamy et al.'.
T
3 (1810) 12450.
* (1917) tC. W. 18 7.
(1901) / Ch. 578.(1916) 2 A. C. 54.
326 WIJEYEWARDENE J.—Meiyappa Chettiar v. Ramasamy Cheniar.
N. E. Weerasooria, K.C., in reply.—A servitude being onerous in itsnature, clear evidence is required to establish it—2 Maasdorp 168(5th ed.); Peakcock v. Hodges'. The phraseology used in the agreementis entirely consistent with the grant of a licence. If a servitude wasintended, the. words ordinarily used in connection with a grant of servitudewould have been used.
Cur. ad- vult.
September 14, 1939. Wijeyewardene J.—
The questions that arise for consideration- turn on the construction ofthe indenture P 1. The recitals in the deed show-^
(i.) that the plaintiff and the defendant were at one time co-ownersof a house No. 20 in Brownrigg street, Kandy;
(ii.) that the plaintiff and the defendant petitioned this propertyamicably, the plaintiff getting a divided northern portionand the defendant a divided southern portion of the property;(iii.) that the property No. 20 had only one bathroom and a water-closet ;
(iv.) that the bathroom stands on the portion allotted to the plaintiffand the water-closet on the portion allotted to the defendant.
In pursuance of an agreement between the plaintiff and the defendantthey executed the indenture P 1 in 1920 which was notarially attested.The material portions of the indenture are as follows : —
that (the defendant) in consideration of the permission hereinafter
granted to him to use the bathroom and water-pipe doth herebypermit and allow (the plaintiff), his servants, tenants and agentsto use the water-closet standing on the premises belonging to
(the defendant)at all hours without objection or
hindrance. .
that the (plaintiff) in consideration of the permission already
granted to him by the (defendant) to use the water-closet ..
.. doth hereby allow and permit the (defendant), his servants,
tenants and agents to use the said bathroom and water-pipestanding on the said premises belonging to the (plaintiff) ,.
.. at all times without objection or hindrance.
By his letter P 2 of January 5, 1938, the -defendant gave notice to theplaintiff that he would not permit the use of the water-closet after April 51938, and that P 1 would cease to have effect after that date.
The plaintiff thereupon filed this action on April 4, 1938, asking that hebe declared entitled to the use of the water-closet in terms of P 1.
The question that has to be decided is whether the indenture P 1 isrevocable.
The District Judge held that P 1 created a continuing contract andthat it was not open to the defendant “ by his unilateral act to determinethe contract ”. The present appeal is preferred, by the defendantappellant against that judgment.
‘1 (IS7C) C tlirchanan 69. , .
WIJEYEWARDENE J.—Meiyappa Chettiar v. Ramasamy Chettiar. 327
I do not think that the plaintiff could claim that the indenture P 1has created a servitude whereby the property of the defendant “ becamebound or subject to the use of convenience” of the plaintiff’s property.The indenture does not give and grant “ a right over the defendant’sproperty. It purports to permit and allow the use of the water-closetstanding on the defendant’s property. The indenture is drawn by anotary and it is the usual and almost invariable practice of notaries inCeylon who draft deeds for transferring a real right to use a phrasecontaining the words ‘ give and grant ”. Moreover P 1 gives tlfe per-mission to the defendant, his servants, tenants and agents. Now in deedsof transfer of real rights the Ceylon Notary uses the words “ thegrantees, his heirs, executors, administrators, and assigns It isdifficult to understand why any reference was made by the Notaryto the “ tenants, servants and agents ” of the defendant if it was intendedto transfer a real right. It is also difficult to understand the specialsignificance of the words “ servants ” and “ agents Is the permissiongranted to all the servants of the defendant, or only those servants who,live on that particular property of the plaintiff ? What is the specialsignificance to be attached to the word " agents ” ? The indenture doesnot appear to me to state with anything like precision the people towhom the permission is given. It is no doubt true that in the recitalsthe indenture refers to the ownership of the two lots by the plaintiff andthe defendant. I am unable to infer from this fact that it was everintended to create a real right over one property in favour of the otherThe fact of the ownership of the two lots was most probably stated inorder to show that the plaintiff and the defendant each had the right togive'the necessary permission for the use of the water-closet and the bath-room. In this connection it has also to be noted that the indenturedoes not state that the permission is given to the defendant as owner ofthe divided southern portion. The Forms ordinarily used by notaries inCeylon for the purpose of granting a servitude are given in Jayasinghe’sPrinciples of Conveyancing—vide Forms 17, 18, 19, and 20 in thechapter intituled Transfer of Land.
It is clear law that a deed creating a servitude must do so in expressterms and that a servitude cannot, as a general rule, be granted by-implication—Maasdorp (1903 ed.). bk. 2. pp. 204 and 205. Voetdiscussing the law with regard to the,granting of servitudes states, “thegranting of a servitude being as it were something vexatious andcontrary to natural liberty, receives a strict interpretation, and whenthere is any doubt, the interpretation ought to be in favour .of theunfettered enjoyment of one’s own property (Voet VIII, 2, 2.)
I hold therefore that the indenture does not create a servitude as arguedby the plaintiff even if the parties had an intention to create a servitude.Considering however the class to which the parties belonged and thelikelihood of tenants of different classes and communities occupying thetwo divided lots it appears to me most unlikely that the parties evenintended to create a continuing right as a servitude.
I think the indenture gave the plaintiff no more than what is expressed,namely, a permission to use the water-closet. This permission wasgranted in consideration of the permission granted to the defendant to
328HE ARNE J.—The Fiscal (C.P.) v. Nalliappa Chettiar.
use the bathroom. This indenture was most probably executed in orderto prevent one party or the other from claiming a servitude at somefuture time by right of prescriptive possession and the document wasintended to furnish proof of the fact that the possession was permissiveand not adverse.
I am unable to see anything in the indenture which militates againstthe revocation of the permission by one party. All that the indentureensures is that one party cannot avail himself of the permission grantedto him after withdrawing the permission granted by him to the other.
No damages have been claimed in this action and it is therefore notnecessary to discuss the right of the plaintiff, if any, to damages.
I would, therefore, allow the appeal with costs and dismiss the plaintiff’saction with costs.
Njhill J.—I agree.
Appeal allowed.