014-SLLR-SLLR-1998-1-PATTIVIDANA-v.-SAMARANAYAKE.pdf
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(1998) 1 Sri LR.
PATTIVIDANA
v.SAMARANAYAKE
COURT OF APPEALISMAIL, J.,
WEERASURIYA, J.
A. 262/89 (P)
C. MT. LAVINIA 762/ZLSEPTEMBER 26, 1997.
Rei Vindicatio Action – Ejectment – Divorced wife – Plea that she is a co-ownerdue to her contribution towards construction of house – Vindicatory Action – aprayer for declaration of title – Is it a Sine quo non – Is the absence of samefatal ?- Legal position of a divorced wife – vis-a-vis the Matrimonial Home – Ruleof Estoppel – Applicability of Roman Dutch Law and English Law.
The plaintiff-appellant instituted action against the defendant-respondent who washis divorced wife, praying for ejectment, from the matrimonial home. It was hercontention that she is in occupation by virtue of her right as a co-owner due toher contribution towards the construction of the house.
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The learned District Judge dismissed the action on the basis that the plaintiff-appellant has failed to seek a declaration of title which is a sine-qua-non in avindicatory action.
On appeal-
Held:
(1) The defendant-respondent has come into occupation on the basis of beingthe wife of the plaintiff-appellant, who was legally bound to support herin the matrimonial home. However, when the marriage was dissolved withthe entering of Decree absolute (17.9.82) the contractual relationship endedwhich had the legal effect of the defendant-respondent becoming a licenseeas opposed to a legal right to use and enjoy the matrimonial home. Theplaintiff-appellant having terminated the licence (23.9.82) the defendant-respondent has to be treated as an overholding tenant.
2) As the plaintiff-appellant has sought to eject his divorced wife who is ina position of a overholding licensee, the rule of estoppel precludes herfrom denying the title of the plaintiff-appellant.
An APPEAL from the Judgment of the District Court of Mt. Lavinia.
Cases referred to:
Vaughan v. Vaughan, 1153 QBD 762 at 769.
National Provincial Bank Ltd. v. Ainsworth 1965 – 2 All ER 672 at 485.
Pathirana v. Jayasundera – 58 NLR 165 at 171.
Hameed v. Weerasinghe – 1989 – 1 SLR 271.
• Wanigatunge v. Jam's Appuhamy – 65 NLR 167.
Gamini Jayasinghe with Ms P. P. de Silva for plaintiff-appellant.
J. A. J. Udawatte with Upul Senaratne for defendant-respondent.
Cur. adv. vult.
October 21, 1997WEERASURIYA, J.
The plaintiff-appellant instituted action by plaint dated 10.11.82 in theDistrict Court of Mount Lavinia against the defendant-respondentpraying for ejectment of the defendant-respondent from the premisesmorefully described in the schedule to the plaint and damages forunlawful occupation.
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The defendant-respondent who was the divorced wife of theplaintiff-appellant averred in her amended answer that she is inoccupation of the premises in suit by virtue of her right as a co-owner due to her contribution towards the construction of the house.
The trial commenced on 08.11.81 on 13 issues and after conclusionof evidence and submissions of counsel, learned District Judgepronounced judgment on 18.02.84 dismissing the action. However, thelearned District Judge has arrived at clear and definite findings infavour of the plaintiff-appellant to the effect –
that the plaintiff-appellant is the sole owner of the landand the house described in the schedule to the plaint;
that the defendant-respondent has made no contributiontowards the construction of the house;
that the defendant-respondent has not become aco-owner of the house; and
that the defendant-respondent was in unlawful occupationof the premises.
Nevertheless, the learned District Judge has dismissed the actionon the basis that the plaintiff-appellant has failed to seek a declarationof title which is a sine-qua-non in a vindicatory action. It is from thisjudgment, that the plaintiff-appellant has appealed. The defendant-respondent has filed a cross appeal in terms of section 772 of theCivil Procedure Code.
At the hearing of this appeal, learned counsel for the plaintiff-appellant submitted that the District Judge has misdirected himself onthe question that the action instituted was a vindicatory action requiringa prayer for a declaration of title, absence of which is fatal to itsprosecution, it would be necessary before this question is discussed,to clarify the legal position of a divorced wife vis-a-vis the matrimonialhome. Apart from the Roman Dutch Law which is the source andfoundation of our law of husband and wife, English law principles havecontributed to the growth of principles on the right to use and enjoythe matrimonial home on divorce. Learned counsel for the plaintiff-appellant referred to page 386 of the treatise of Professor Hahlo (5thedition), The South African Law of Husband and Wife where it is statedthat –
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u While during the subsistence of the marriage each spouseis entitled to occupation of the matrimonial home by virtueof the marriage relationship, the right of occupation of thespouse who has no legal title or interest in the home comesto an end when the marriage is dissolved by divorce
This principle has found support in the English case of Vaughanv. Vaughan*11 where Lord Denning has observed at p 769:
"Upon the decree absolute she became simply a licenseewith a revocable licence to stay in the house
Further, in National Provincial Bank Ltd. v. Ainsworth121 LordUpjohn has observed at page 485:
“A wife does not remain lawfully in the matrimonial homeby leave and licence of her husband as the owner of property.She remains there because as a result of the state of marriage,it is her right and duty so to do … she is not a trespasser,she is not a licensee of her husband, she Is lawfully thereas wife, the situation is sui generis
It is common ground that the plaintiff-appellant who was legallymarried to the defendant-respondent instituted divorce proceedings incase No. 7 F. C. D. in the Family Court of Colombo where he obtaineda judgment in his favour and the Decree Nisi was entered on 02.06.1982dissolving the said marriage, which was made absolute on 17.09.1982.
The plaintiff-appellant has by letter dated 23.09.1982 asked thedefendant-respondent to vacate and handover possession of the house.It would be relevant to state that once the licence to use and enjoythe matrimonial home is revoked, the defendant-respondent is turnedinto a position of an overholding licensee.
The question that arises for consideration is whether or not anaction for ejectment of a divorced wife who is in the position of anoverholding licensee in the eye of the law, is a rei vindicatio action.To answer this question one has to examine the basic principlesof a rei vindicatio action. Learned counsel for the plaintiff-appellantmade reference to the case of Pathirana v. JayasundaraP* whereH. N. G. Fernando, J. (as His Lordship then was) observed at page171 that –
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"It is open to a lessor in an action for ejectment to askfor a declaration of title, but the question of difficulty whicharises is whether the action thereby becomes a rei vindicatiofor which strict proof of the plaintiff's title would be required,or else is merely one for a declaration (without strict proof)of a title which the tenant is by law precluded from denying
It was further observed that –
"If the essential element of a rei vindicatio is that the rightof ownership must be strictly proved, it is difficult to acceptthe proposition that an action in which the plaintiff canautomatically obtain a declaration of title through the opera-tion of a rule of estoppel should be regarded as a vindicatoryaction
In the instant case, the defendant-respondent has come intooccupation of the premises in suit on the basis of being the wife ofthe plaintiff-appellant, who was legally bound to support her in thematrimonial home. However, when the marriage was dissolved withthe entering of decree absolute the contractual relationship endedwhich had the legal effect of the defendant-respondent becoming alicensee as opposed to a legal right to use and enjoy the matrimonialhome. The plaintiff-appellant having terminated the licence by letterdated 23.09.1982, the defendant-respondent, has to be treated as anoverholding licensee.
In Pathirana v. Jayasundara which was referred to earlier it washeld that a lessor of property who institutes action on the basis ofa cause of action arising from a breach by the defendant of hiscontractual obligation as lessee, is not entitled to amend his plaintsubsequently so as to alter the nature of the proceeding to a reivindicatio action, if such a course would prejudice the setting up ofa plea of prescriptive title. It would be observed that the reasoningcontained in this judgment is that the ingredients of the rei vindicatioaction and of the action by a lessor against an overholding lesseefor restoration and ejectment are dissimilar.
Learned counsel for defendant-respondent contended that since thedefendant-respondent has averred in her answer that she is aco-owner of this property by virtue of her contribution towards the
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construction of the house, plaintiff-appellant is bound in law to seeka declaration of title. On a careful consideration of submissions ofcounsel, pleadings and the totality of evidence, we are unable toaccept that position.
It is to be noted that the learned District Judge after evaluationof the evidence has made a clear and definite finding that thedefendant-respondent is not a co-owner of this property. Therefore,the contention of learned counsel for the defendant-respondent thatthe learned District Judge has not properly considered the evidenceled at the trial is untenable.
The cases of Hameed vs. Weerasinghem and Wanigatunga v. JanisAppuhamyreferred to by learned counsel for the defendant-respondent are authorities for the proposition that in a rei vindicatioaction the plaintiff must prove and establish his title. In this case, whatthe plaintiff-appellant has sought is, the ejectment of his divorced wifewho is in a position of an overholding licensee, and therefore therule of estoppel precludes her from denying the title of the plaintiff-appellant.
It would seem therefore, that the learned District Judge was in errorwhen he came to a conclusion that the action was in the nature ofa rei vindicatio and the absence of a prayer for a declaration of titlein the plaint is fatal.
We therefore, set aside the judgment of the learned District Judgeand enter judgment for the plaintiff-appellant as prayed for in the prayer'A' of the plaint. We answer issues No. 2, 10, 11, 12 and 13 in thefollowing manner:
No. 3-yes.
No. 10-no.
Nos. 11, 12, 13- does not arise.
However, having regard to the circumstances of this case, werefrain from awarding damages till the filing of action, and continuingdamages till the plaintiff-appellant is restored to possession and, costsas prayed for in prayer B, C, and D of the plaint, respectively. Enterdecree accordingly.
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We also make no Oder as to costs of this appeal.
ISMAIL, J. – I agree.
Appeal allowed.
Note by Editor. The Supreme Court in SC/SPC/LA 56/97 on 3.3.98refused special leave to appeal to the Supreme Court.