032-NLR-NLR-V-22-MENDIS-et-al.-v.-DAWOOD.pdf
( 115 )
1920.
Agreement entered into with fiduciary owners to fiuild on property—Claim for compensation against fidei commissaries—Lessees—Jos retentionis.
Foot persons who were entitled to a land which was hardenedwith a fidei eommissum entered into an agreement with A, bywhich he was to construct certain buildings on the property and torender to tlie grantors one-third rent; further, that if the grantorstook possession of the buildings after ten years, they were to payhim half the value of the materials of the buildings as compensa-tion.
Held, that the persons entitled to the property on the death ofthe grantors/were not bound by the agreement, and-that A had noright of retention as against them.
NDER an agreement in writing dated July 16, 1898, fourpersons who were fiduciarii of a land in Korteboam street,
Colombo, permitted the predecessor in title of the defendant tobuild on the said land nine bontiques and two sheds of the value ofRg. 2,500, on certain conditions, one of which material to the caseis as follows :—
“ If after the expiration, of ten years from the date hereof theparties of the first part (fiduciarii) shall require the said land forany purpose of their own, they and the parties of the second partshall appoint two competent persons, one on each side, to appraisethe materials of the said nine boutiques and the two sheds, and the
Present: Ennis J. and De Sampayo J.MENDIS el a l. v. DAWOOD.276—D. C. Colombo, 51,818.
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1920.parties of the first part shall be entitled on payment of the then
Mendfova-ppraiswl value of the said materials to the parties of the second
' Dowood part to take possession of the said buildings/’
Three of the fiduciarii died before action leaving one surviving,who was not a party to the action. A fid/uciarius who was not aparty to the agreement and three others claiming to be entitled toone-half of the said land and buildings asfidei commissarii institutedthe action for a declaration of title to the said half and to thepossession thereof and for damages. The defendant by his answerset up the agreement above referred to, claimed half of the appraisedvalue of the said buildings, and to be in possession thereof till suchvalue was paid tohim. He also pleadedasa matter of law that theaction could not be maintained without the surviving fiduciary beingmade a party to it.
Tlie learned District Judge held that the surviving fiduciary wasnot a necessary party to the action, and following the case of Soy&av. Mohideen1 entered judgment for the plaintiff and dismissed thedefendant's claim in reconvention for compensation. The defendantappealed.
A. St. V. Jayawardene (with him Ti8$everesinghe)y for defendant,appellant.
H. J. C. Pereira (with him Samaratvichreme), for plaintiffs.
respondents.'
February 11,1920. Ennis J.—
This was an action for declaration of title to a half share of certainland and for damages. The defendant claimed compensation forimprovements and a right of retention until payment. It appearsthat the land belonged to one Maria Mirando, who died in 1822,leaving a will, which created a fidei commissum in favour of herchildren and their descendants. She had two children, Gerardusde Zoysa and Hendrick de Zoysa, who partitioned the land betweenthem, and this case has to do merely with the portion taken byHendrick de Zoysa. v Hendrick de Zoysa had four children, three ofwhom died without issue, and the fourth, Henri Joseph, died in1883, leaving six children, namely, the first plaintiff, Cecilia, Agnes,Alexandria, Bridget, and Aloysius. Cecilia and Alexandria arenot parties to this case. Agnes died in 1906 leaving three children:the second plaintiff, who is married to the third plaintiff ; the fourthplaintiff, who is married to the fifth plaintiff.; and the sixth plaintiff.The seventh and eighth plaintiffs are lessees under the first to thesixth plaintiffs. Bridget and Aloysius both died without issue.On July 16, 1898, Agnes, Alexandrina, Bridget, and Aloysius
(1914) 17 N. L. R. 279.
1920.
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entered into an agreement with the predecessors of the defendantby which they were to construct certain buildings on the propertyand to render to the grantors one-third rent. There was a conditionthat if the grantors required the premises before ten years elapsed,they were to pay the full value of the materials of the building ascompensation, and if they required the premises after ten yearshad elapsed, they were to pay half the value of the materials.The defendant in pursuance of the agreement did build certainhouses, which under the terms of the agreement were to be of thevalue of Bs. 2,500, and it appears a period of over ten years haselapsed since the date of the agreement. The. position of thedefendant under this agreement is difficult to understand. Hecannot be regarded in any higher position than a lessee. In fact,from his answer it is clear that he makes no higher claim, as heseems to have placed the onus of paying all the taxes on the grantorsof the agreement. As lessee he would not be entitled to com-pensation from any of the grantors beyond the period over whichthe grantor was at liberty to dispose the property, and as Agnes,Bridget, and Aloysius are all dead, no claim for compensation canbe urged against them, and Alexandrina is not a party to the case,and the first plaintiff and the other plaintiffs are not parties to theagreement, nor successors to any of the parties to that agreement,as they derive title from the original will of Maria Mirando, andnot by succession to any of the parties. The learned Judge hasdeclared the plaintiffs entitled to a half share in the property and .to possession of the half share. The appellant’s position seems tobe that the plaintiffs cannot take over the share to which theyare entitled without paying compensation, but apparently, on theauthority of the case of Lebbe v. Christie,1 persons in the position oflessees are not. entitled to claim compensation after the expirationof the right of their lessor.
I would accordingly dismiss the appeal, with costs.
De Sampayo J.—I agree.
Appeal dismissed.
♦
‘.(IMS) 18N.L.B.353.