074-NLR-NLR-V-67-N.-DALUWATTA-Appellant-and-M.-B.-SENANAYAKE-Assisitant-Government-Agent-and-.pdf
1965Present: Manicavasagar, J., and Alles, J.N.DALUWATTA, Appellant, and M. B. SENANAYAKE (AssistantGovernment Agent) and another, Respondents
S. G. 334/63—D. G. Tangalle, 288fL. A.
Land acquisition—Reference of a claim or dispute to court for determination—Rightof claimant to amend his claim after such reference—Payment of estcte dutyby a third party—His right to re-imbursement from the compensation payable inrespect of the acquired land—Principle of injusi, enrichment—Land AcquisitionAct (Cap. 460), ss. 10(l)(b). 12—Civil Procedure Code, 8. i 3—Estate DutyOrdinance (Cep. 241), s. 27 (1).
Where an acquiring officer refers, under the provisions of Section 10(1) (6> ofthe Land Acquisition Act, a claim or dispute for determination by a DistrictCourt, the claimant is entitled to amend his claim after it is referred to Court.Section 12 (1) of the Land Acquisition Act, read with section 93 of the CivilPioeedure Code, enables a party to apply for such amendment.
Where a person, although he does not regard himself as a bona fide possessor,has paid a sum of money to have a land released from seiruie and sale for non-payment of estate duty by the executor, he i- entitled to be paid back suchmoney out. of any compensation payable under th< Land Acquisition Act inle&pect of that land. He is entitled to be paid back the money on the principlethat no one should be enriched at the expe.iae of another.
fi-PPEAL from a judgment of the District Court, Tangalle.
N.R. M. Daluwatte, for the 1st defendant-appellant.
G. Ranganathan, with M. T. M. Sivardeen, for the 2nd defendant-respondent.
Gur. adv. mdt.
June 29, 1966. Manigavabagab, J.—
This appeal by the 1 st defendant-appellant is from the judgment ofthe District Judge, Tangalle, in a contest between him and the 2nddefendant-respondent in regard to their title to or interest in a landcalled Maha Koratuwa alias Mahahena alias Puhujulahena within theUrban Council limits of Tangalle, which was referred by the AcquiringOfficer of the Hambantota District to the District Court for determina-tion, under the provisions of Sec. 10 (1) (6) of the Land Acquisition Act(Cap. 460 Vol. XU, Legislative Enactments of Ceylon, revised edition1958).
The relevant facts are as follows :—
Dona Gimara Abeydira was admittedly the owner of the land. Byher last will and testament executed on 27.2.44, she appointed her sonWilliam Conrad Abeysinghe to be her executor and trustee ; she devisedall her property to him upon trust subject to certain directions, andprovided that he shall stand possessed of the residuary estate and usethe income thereof for his maintenance ; she further provided that whenhe thought it fit and proper, to convey one half of her estate to herdaughter Charlotte Euginie Abeydira nee Abeysinghe or her heirs, execu-tors, or administrators, and the other half to her grandson Hector Nandi -mitta Abeysinghe or his heirs, executors, or administrators upon suchconditions and stipulations as the trustee may consider fit and proper.Hector Nandimitta died on 10.12.44, whilst the testamentary suit wasstill pending ; his heirs were his father William Conrad and his motherLaura. William Conrad sold the entirety of the land by deed 5628 (1D1)of 5.11.55 to the 1st defendant-appellant even before the estate duty onDona Gimara’s estate had been paid : in that deed he recited his title asbeing a gift from one Don Nades Wickremasinghe Patabendi Ralahamy,but gave no particulars at all of the deed. William Conrad died on23.10.58 before the testamentary proceedings were concluded, and the2nd defendant-respondent was granted letters of administration with thewill annexed on 12.1.60.
In the proceedings before the Acquiring Officer the appellant claimedthe entirety of the land on Deed 1D1 : and the respondent claimed aone seventh share, which we are told would be his share as heir abiniesialo, and made particular reference to the testamentary case of whichhe was the administrator. This dispute was referred by the AcquiringOfficer to the District Court for decision.
The first question for determination is whether a claimant before theAcquiring Officer is entitled to amend his claim after it had been referredto court, different to what he had stated in his claim to the AcquiringOfficer : Counsel for the appellant submitted that the claimant is notentitled to do so, nor has the Court jurisdiction to allow such anamendment. In support of this submission he cited the ease of Perera v.Dingiri Mentha et al.1; this was a case where the District Judge allowed
* (1960) 63 N. L. R. 169.
parties who had not made claims before the Acquiring Officer to intervenein the action after it had been referred to Court, and put forward theirrespective claims ; the particular submission which was addressed tous in the instant case was not in issue in the case cited to us, thoughthe judgment of Basnayake C.J. is that the Court has no jurisdictionto inquire into any matter other than that which has been referred to itunder Sec. 10 of the Act. I am of the view that a claimant before theAcquiring Officer can move to have his claim amended after it is referredto Court, because the procedure provided for civil suits is applicableto proceedings before the Court : See. 93 of the Civil Procedure Codeenables a party to have his pleadings amended provided the amend-ment sought does not offend against certain well defined principleswhich have time and again been stated in several cases. Can it be saidthat a party whose case is referred to Court is precluded from amendinghis claim and pleading what he considers he is entitled to, because eitherby error or carelessness he had not in his statement to the AcquiringOfficer made a right estimate of his interest? My answer is that theprovision of Sec. 12 (1) of the Act, read with Sec. 93 of the Civil ProcedureCode enables a party to apply for amendment, and gives the Court juris-diction to consider the application on its merits : he is certainly not tieddown to the particular interest he claimed before the Acquiring Officer.
There is another reason why the appellant must fail in this submission ;this question has been raised for the first time in appeal; questions oflaw may be submitted for decision by this Court, though not put in issueat the trial, provided all relevant facts bearing on the question are beforethe Court. In the instant case para. 4 b of the plaint states that the 2nddefendant-respondent claims a one seventh share, and particular referencewas also made to the testamentary case of Dona Gimara of which he wasthe administrator ; it was submitted that the claim was only to a oneseventh and no more ; for the respondent it was contended that theclaim before the Acquiring Officer was for the entirety as administrator,and that is why reference was made to the testamentary case ; on thefacts appearing on the record it is not possible to say that the claim ofthe respondent was different to what was pleaded in his answer filed inCourt; had this question been in issue at the trial, the respondent wouldhave had the opportunity of proving the claim he had submitted to theAcquiring Officer ; in the absence of this, all facts necessary for the deci-sion of this question are not before this Court, and the submission isrejected because it was not put in issue at the trial.
The next question is whether the first defendant-appellant is entitled
before estate duty was paid ; he had not the power to do so ; it is signi-ficant though the land admittedly belonged to the estate of Dona Gimara,William Conrad recited his title from another source of Vhich be gave noparticulars at all; there can be no question that the sale by WilliamConrad was in breach of the trust and the directions of the testatrix;the title he recited was untruthful; none of the directions imposed by thetestatrix antecedant to William Conrad disposing of the residuaryestate were fulfilled ; in my view 1D1 did not pass title to the appellanton its execution.
Lastly, the appellant’s claim is that Rs. 2,800 be paid out of the com-pensation payable under the Act; this represents the payment by himto have the land in suit released from seizure and sale for non-paymentof estate duty by the executor. The claim is made on the ground thatit is an improvement to the land in suit. The appellant relies on apassage from the judgment of Bonser C.J. in de Silva v. Sheik Alt1in which two judges were associated with him. The learned Judgeobserves that a mortgage should be treated as an vtilis impensa and apayment of the mortgage debt by a bona fide possessor is an improvementto the property, as if the money had been laid out in material additionsto the property. Impensa utilis is the value of the money and labourexpended on the property to the extent to which the value of the landhas been permanently enhanced by the improvement : having regardto this concept, I am somewhat in doubt whether a mortgage should betreated as an utilis impensa. Counsel for the appellant contended thatas estate duty being a first charge on all the property of the deceasedwhich the latter was competent to dispose (Sec. 27 (1) of the EstateDuty Ordinance, Cap. 241 Vol. VIII), the payment made by the appellantis an improvement which should be paid out of the compensation. Inmy view the release of a charge created by the Estate Duty Ordinanceon a deceased person’s property, by payment, cannot be equated to apayment of a mortgage which encumbers property : the charge itselfranks in priority after the instances stated in provisos (a) and (b) toSection 27. Even if the principle stated by Chief Justice Bonser isright—the correctness of it was doubted by Pereira J. in the case cfMuttiah Ghetty v. Latchumana Ghetty 2: and MacDonell C.J. said there washardly any authority to support the view that a mortgage should betreated as an vtilis impensa (36 N. L. R. 113 at page 117)—it doesnot apply to the instant case, for the payment was not by one whoregarded himself as a bona fide possessor.
I have no doubt however that on the principle that no one should beenriched at the expense of another, the appellant is entitled to be paidback the money he claims : the question is whether it should be paid outof the compensation payable under the Act, or recoverable fromthe estate and effects of the deceased testatrix. As the seizure and sale
1 (1895) 1 N. L. R. 228 at page 234.
* (1913) 6 Balasingham Notes of Oases page 3 at page 5.
of the land in amt wae released by the appellant paying the estate duty,1 flunk that he should be paid out of compensation payable under theAct.
The compensation payable in respect of the land should be regardedas part of the estate of the deceased, Dona Gimara.
The appeal is dismissed subject to the variation in regard to theRs. 2,800. The appellant must pay the costs of this appeal, as well as
the costs ordered by the District Judge.
Alles, J.— I agree.
Appeal dismissed.