LOBD TUCKTF.Bi—Suppiah v. JCanagaratnam
[In thu Pbxvt Council]
I9SG Present: Yiseount Simonds, Lord Tucker, Lord Jenkins, Lord Morris
of Borth-j-gest, Mr. L. M. D. de Silva
S. A. STJPPIAH, Appellant, and J. J. KANAGARATNAM (deceased)
and others, Respondents
Privy Council Appeal No. 19 or 1959
jS. G. 282—D. G. Nuwara Eliya, 3181
Jus sup0rdciariurn—Claim based thereon—Requirement of appropriate pleadings and
issues—Hr action of a building by several persons—Ownership of the building—•
Exclusive right of ground-owner.
The right of superficies, which is the right which a man has to a buildingstanding upon another man’s ground, cannot be claimed in an action unlessthe pleadings and issues expressly refer to it.
No one can be the owner (or co-owner) of a building if lie is not at the sametime owner of the land on which the building stands.
The plaintiff and the defendant contributed to the cost of erecting a buildingon a piece of land belonging solely to the defendant as a leaseholder from athird party:—
Held, that the plaintiff was not entitled to claim a declaration of title to aproportionate share of the building. Nor was it open to the plaintiff, in theabsence of appropriate pleadings and issues, to base a claim on the ground ofjus superficiarium.
-/^■PPEAXi from a judgment of the Supreme Court reported in
61 N. L. B. 282.
Stephen Chapman, Q.C., with Ralph Mittner, for the plaintiff-appellant.
Walter Jayawardene, for the defendant-respondent.
Cur. adv. vutb.
February 18, 1960. [Delivered by Lord Tucker ]—.
The appellant was the plaintiff in an action heard in the District Courtof Nuwara Eliya on various dates in the years 1952 and 1953, judgmentin which was delivered on the 5th February, 1954. The defendantswere J. J. Eanagaratnam and the present respondents Nos. 8 and 9,Thambiah and Selliah Fiilai. The plaintiff, however, claimed no reliefagainst the two last-named parties who were joined only for conformity.Judgment was given against Hanagaratnam. On his death the24—T.TT
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554LORD TUCKER—Suppiah v. iKanagaratnam
respondents numbered 1*7, having been substituted in his place asdefendants, successfully appealed to the Supreme Court and the plaintiffnow appeals to Her Majesty in Council against the judgment of thatCourt dated 28th June,~l‘957; The appeflant SfippiahTaffd the deceasedKanagaratnam will be referred to hereafter as plaintiff and defendant.
The action concerned the rights of the parties with regard to the TivoliTheatre, Nuwara Eliya, which had been constructed between November,1946, and 10th July, 1947, on a piece of land of which the defendant hadobtained a lease in his own name dated 31st October, 1946, from theowner, a widow named Mpraes. The cost of the building includingthe hire purchase price of the equipment required for its adaptation foruse as a cinema was Rs. 145,185*70, to which the plaintiff had contributedRs. 42,559 and the defendant Rs. 26,848. The balance had been pro-vided by the respondents numbered 8 and 9 and three other personsnot parties to the action named Ranasinghe, Karuppiah Pillai and Dr,Silva, who had obtained promissory notes or oral promises to repay thesums advanced by them. The intention of all these persons was to forma limited liability company to take over and run the theatre as a cinema.As the costs of building increased some of those who had embarked on thisventure claimed their money back, quarrels between the original pro-moters broke out, and the company was never formed. Hence theseproceedings.
It will be convenient at this stage to examine the averments and reliefclaimed in the plaint dated 19th June, 1950. Para. 1 states that thesubject matter of the action was the Tivoli Theatre bearing assessmentnumber 81 and more particularly described in the schedule thereto. Theschedule describes the property as “ all that theatre called and known“ as ' Tivoli Theatre’ Nuwara Eliya bearing assessment No. 81 in Ward“ No. 2 on the Udapussellawa Road, Nuwara Eliya in the Central Province“ and hounded on the north by property belonging to Varghese, presently“ occupied by Roy Studio, south by municipal premises, east by“ Chiselhurst path and west by Old Bazaar Main Road ”.
>Para. 2 reads : “ The plaintiff and the defendants built the said theatre
called and known as the ‘ Tivoli Theatre ’ and equipped it with plant“ and machinery and the plaintiff and defendants became entitled to the“ said theatre together with the said plant and machinery in the proportion“ of one-fourth share to each ”.
Para. 3 alleged that the defendant “ as such co-owner ” had been inpossession since June, 1948, and collected the rents and profits for thebenefit of himself and the other co-owners.
Para. 4 alleged that the defendant had unlawfully appropriated tohimself all the mesne profits and rents of the theatre and refused to givethe plaintiff his share.
Para. 5 alleged that a cause of action had thus arisen to sue thedefendant for declaration of title to and possession of the undivided one-fourth share of the theatre and for mesne profits and rents together withinterest thereon.
LORD TUCKER—Suppiah v. Kanagaratnam
The prayer is as follows :—
“ Wherefore the plaintiff prays :—
“ That he be declared entitled to one-fourth share of the said
“ theatre and the plants and machinery thereof.
“ That he be placed in quiet possession of the said one-fourth share.
“ That the defendant be ordered to account to the plaintiff for
" his share of the rents and profits from June, 1948, up to date
“ For judgment against the first defendant in such sum as may
“ be found due to the plaintiff on such accounting.
“ For costs of this action and for such other and further relief
“as to this Court shall seem meet
By his answer the defendant denied the averments in the plaint andpleaded that he was in possession under a lease granted by the widowMoraes which fact was well known to the plaintiff when he contributedto the cost of the building. He further pleaded that the claim to a sharewas not maintainable in the absence of notarial writing, and similarlythe claim for an account could not be sustained in the absence of anagreement in writing to carry on business at the theatre as the capitalexceeded Rs. 1,000 and in fact the business was carried on in partnership.
At the hearing before the Board, counsel for the defendant stated thathe did not contend that any partnership existed prior to the building ofthe theatre.
On these pleadings issues were framed and approved. They appear onpages 30 and 31 of the record and need not be set out.
It is difficult to suppose that anyone reading these pleadings and theissues framed thereon would infer that the plaintiff at the trial was goingto endeavour to establish a right to a jus superficiarium as against thedefendant in his capacity as lessee under a lease for 20 years. This rightin Roman .Dutch law, which seems but rarely to have arisen for considera-tion in the Courts of Ceylon and as to the nature of which it is necessaryto refer to the ancient jurists, is nowhere mentioned in the pleadings ofissues. It is defined by Grotius in Book H of his Jurisprudence ofHolland at Ch. 46, sections 8-10, as translated by Professor Lee at page279 of Volume 1 of his translation of Grotius as follows :—
“ The right of superficies is the right which a man has to a building"standing upon another man’s ground.
“This right is not full ownership, because in law no one can“ be full owner of the building if he is not at the same time owner of“ the ground: but it is the right of building upon the site, and of“ retaining and using the building until the ground-owner pays the“ value of the building or an agreed sum
“ This right is acquired and lost like immovable property : and“ i3 understood to be effectively granted when the owner of the soil“ allows anyone to build upon it ”,
LORD TUCKER—Suppiah v. Kanagaratnam .
The District Judge described the case made by the plaintiff as follows :—
" The case for the plaintiff is that the partnership or company which" waste do business in the building was to come into being..only after“ the building was completed and that the building itself was not an“ asset or liability of the partnership but was a building co-owned by“ plaintiff and the 1st, 2nd and 3rd defendants ”.
He held on the evidence that the association with regard to the buildingwas not a partnership, but having considered the sums contributed bythe parties he said :—“ I am satisfied on the evidence before me that" plaintiff contributed Rs. 42,559 to the nearest rupee out of the total“ Spent on the theatre. I therefore am of opinion he is entitled toMs. 4:2,559j 145,185 of this building. (The italics are not those of thelearned Judge.)
A few lines later he continued :—“ The ownership of a building aparttC from the site on which it stands is well known to our law. It is called“ the right of Superficies. How counsel for the first defendant claims“ that in the absence of a notarial agreement plaintiff cannot claim this“ right. What is the right of Superficies ? It is the right to build on the“ soil and to hold and use the building until such time as the owner of‘ ‘ the soil tenders the value of the building if the amount to be paid has not'“ been previously agreed upon. Now in this case if the plaintiff was“ seeking to enforce rights as against the soil owner there might be merit“ in the contention of counsel for the first defendant but what plaintiff is" seeking in this case is only to be declared to his fractional share of the‘‘ building as against others who with him have put up the building and“ one of whom now does not concede to him his fractional share although"that very person admits that plaintiff did contribute even as he contribu-" ted to the putting up of the budding. I can see no legal objection to" plaintiff being declared entitled to his fractional share as against his“ co-buildersFinally at the end of the penultimate paragraph of his
judgment he said, “ I would point out, however, that in this case plaintiff" is not seeking to be declared entitled to the building as aginst the soil" owner—what plaintiff is seeking is a declaration of what fractional" share of the building he is entitled to as against the other co-owners of" the building which has nothing to do with the right of Superficies ”.He proceeded to make a declaration that the plaintiff is entitled toRs. 42,559/145,185 of the Tivoli Theatre building and equipment.
• Their Lordships find difficulty in ascertaining the basis upon which thisjudgment rests. As no case had been pleaded or presented to the Courtin support of a claim based on the jus superficiarium they agree that nosuch claim could have succeeded, but as partnership has been rejectedand is not now relied upon and as the contribution made by the plaintiffcould give him no interest in the soil there remains no justification forthe declaration made.
The Supreme Court allowed the defendant’s appeal.-
LORD TUCKER—-Suppioh ®. Kanagaratnam
Sansoni, J. (with whose judgment de Silva, A. J. agreed) said that thelearned Judge was in error in saying “ the ownership of a building apart“ from the site on which it stands is well known to our law. It is called“ the right of Superficies ”. He said “ It is clear beyond doubt that our“ law does not recognise the ownership of a building apart from the land
on which it stands ” and referred to the case of Samaranayake v. Men-doris1. He then referred to the submission of counsel for the plaintiffthat his claim could be supported on the ground of the jus superficiarium.He said there were several objections to this contention, tbe chief beingthat the plaintiff’s claim was to be declared entitled not to a jus super-ficiarium but to an undivided £ share of the building and added that hecould not at that late stage be allowed to make out a new case quitedifferent from the one to be found in his plaint.
With all these observations their Lordships are in complete agreement.On the hearing before the Board counsel for the plaintiff put the claimto jus superficiarium in the forefront of his case and invited tbeir Lordshipsto hold that this right can be acquired as against a leaseholder and in. theabsence of a notarial document. He conceded that he could cite nodecided case in his favour on either of these points but based himselfon references to passages in the works of ancient jurists which he saidsupported his contention. In two or three cases in Ceylon, the last ofwhich prior to the present case was Samarasekera v. Munasinghezt'the question of the requirement of notarial writing to support the ac-quisition of a jus superficiarium otherwise than by prescription, hasbeen discussed but always left open for future decision.
In these circumstances their Lordships would in any event have beenloath tc give any decision on such important and difficult questionswithout the assistance of considered judgments by the Courts of Ceylonon the subject, but in the present ease there is the further fatal objectionas stated in the judgment of the Supreme Court that a claim on the basisof jus superficiarium was not open to the plaintiff on his pleading.
Counsel for the plaintiff submitted in the alternative that- he wasentitled to a declaration that the defendant was a trustee of the lease forthe plaintiff and the other defendants or that the case should be remittedfor consideration on this basis.
It is clear that no such claim was pleaded nor were the facts necessaryto support it alleged. At the close of the plaintiff’s case in the DistrictCourt counsel for the plaintiff asked for leave to raise the following issue :—“ Is the first defendant in possession of the Tivoli Theatre partly on his“ own behalf and partly on behalf of the plaintiff and the second and third“ defendants as trustee?” Counsel for the defendant objected on tbeground that this was raising an entirely new issue of which he had hadno notice and which he was not ready to meet. Counsel for the plaintiffreplied that it was clear that the theatre was built by monies advancedby tbe plaintiff and the first, second and third defendants and that thefirst defendant taking advantage of the position had got into possession
1 (1928) 30 N. L. B. 203.* (1954) 55 N. L. B. 558.
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Wadood v. Fernando
to the disadvantage of the others. He said that m such circumstancessection 92 of the Trusts Ordinance applied. At this stage the learnedJudge raised the question whether any action for declaration of title toimmovable property could be joined with a claim to a share of the profitsof a business carried on in the theatre. The case was adjourned for aweek when after farther argument the Judge ruled that the joinder wasbad. Accordingly counsel for the plaintiff agreed, without prejudiceto his rights to an appeal, to amend the plaint by striking out the claimto a share of the profits of the business. On the defendant lodging hispetition of appeal the plaintiff lodged a cross objection against the DistrictJudge’s decision as to misjoinder. A study of the arguments before theDistrict Judge and the Judge’s ruling on this point seems to show eitherthat the new issue was regarded as relevant only to the plaintiff’s claimto a share of the profits and was necessarily ruled out when the Judgedecided that such a claim could not- be joined, or that the question of thesuggested new issue was lost sight of in the discussion as to joinder andnever raised again. Howeverthis may be it is clearthat an application atthe close of the plaintiff’s case seeking to raise a new issue unsupportedby the necessary evidence and not pleaded could not succeed, and thereare no findings upon which such a declaration could now be made. TheirLordships are accordingly of opinion that the alternative claim also fails.
3For the reasons stated their Lordships will humbly advise Her Majestythat the appeal be dismissed. The appellant must pay the costs of theappeal.