GRATIAEN A.C.J.—Suwaria v. Samarajeeva
Present: Gratiaen A.C.J. and Gunasekara J.S. L. SUWARIS et al., Appellants, and E. D. SAMARAJEEVA,
S. C. 471—D. C. Colombo, 5,778
Servitude—Habitatio—Its precise nature—Grant to a person and “ his heirs, executors,
administrators and assigns ”—Effect of such grant.
If an owner of immovable property conveys it to A but, in the same instrument,purports to grant to B “ the buildings ” standing on it (exclusive of any soilrights), the instrument prima facie operates under the Roman Dutch law as agrant of the ownership of the land and buildings to A subject only to a personalservitude of habitatio in favour of B.
The servitude of habitatio, i.e., the right of inhabiting the house of another, is apersonal servitude and terminates on the death of the grantee.
Where a servitude of habitatio was granted in favour of a husband and wifeand “ their heirs, executors, administrators and assigns ”—■
Held, (i) that two different personal servitudes were created, one of whichwas subsequently acquired by the immediate heirs of the first grantees. Theterm “ heirs ” in such a case is restricted to the first generation only, and so longas one of the heirs is alive the servitude is not terminated.
that the words “ executors, administrators and assigns ” must in thecontext, be regarded as “ a notarial flourish ”.
that the servitude of habitatio, though “ personal ” in character, neverthe-less confers on the habilator for the time being a real right and entitles himto bring a rei vindicatio action for the recovery of that right even against thetrue owner of the property.
Appeal from a judgment of the District Court, Colombo.
H. W. Jayewardene, with M. L. de Silva, for the defendants appellants.
G. Wihramanayalce, Q.C., with O. M. da Silva, for the plaintiffrespondent.
Cur. adv. vult.
March 2, 1954. Gbatiaen A.C.J.—
Four persons (being the predecessors-in-title of the plaintiff) togetherwith Mr. and Mrs. Suwaris (a married, couple) at one time enjoyed variousinterests collectively comprising full dominium over a property situated inWellawatte. Lot 195c depicted in survey plan P9 dated 26th June, 1921,is a divided allotment of that property.
Lot 195c was caused to be sold by the Municipal Council of Colombo fornon-payment of rates in 1920, and it became absolutely vested free of allencumbrances in the Council, as purchaser, under a vesting certificate P8dated 1st June, 1922.
GRATIAEN A.O.J.—Suwarie v. Samarajeeva
In 1929 the Council reconveyed Lot 195c to the six persons previouslyreferred to for valuable consideration ; the intention of the Council (asexpressed in the deed P6) was to restore to each grantee the title or interestwhich he or she claimed to have enjoyed in the property before the for-feiture for non-payment of rates had taken place. There is a recital in theconveyance P6 to the effect that (as jointly represented by all the grantees)the predecessors-in-title of the plaintiff had been co-owners of the propertyin certain specified shares, whereas Mr. and Mrs. Suwaris were only‘‘entitled to the house and outhouse exclusive of any ‘portion of the land, on whichthey stand The Council accordingly conveyed Lot 195c “ to the saidgrantees, their heirs, executors, administrators and assigns … .to, hold
the same in the manner hereinbefore particularised ”.
Mr. and Mrs. Suwaris died before the present action commenced,leaving the defendants as their intestate heirs. The title of the othergrantees ultimately passed to the plaintiff on 2nd August, 1949. Twomonths later he sued the defendants, who were admittedly in possessionof “ the house and shed ” standing on Lot 195c, for a declaration of titleto the entire property including the buildings, and also for ejectment. Headmitted in paragraph 22 of his plaint that Mr. and< Mrs. Suwaris wereduring their lifetime “ entitled to the said house ”.
Lot 195c is only 21 • 64 perches in extent, and has been valued by theplaintiff (inclusive of the buildings) at Rs. 3,000. The buildings alone(which are substantially in the same condition as they were in 1920) wereseparately assessed by the learned Judge at Rs. 1,000. There are a fewcoconut trees standing on the rest of the land which serves as a compoundof the main building.
The case for the plaintiff is that, whatever description might havebeen given to the interests of Mr. and Mrs. Suwaris in respect of thebuildings during their lifetime, the defendants (as their heirs) enjoynothing more than a right to be compensated for their value. He claimsthat as he is now the sole owner of Lot 195c, he is entitled to eject themwhenever he chooses to do so on payment of such corqpensation.
The defenadants completely over-stated their case in the Court below.They attempted to prove that the right of occupation conveyed to Mr. andMrs. Suwaris and to them under the conveyance P6 had long since beenenlarged into fall ownership of Lot 195 c by virtue of adverse prescriptive user.I agree with the learned Judge that this plea was not established by theevidence, and I accept his finding that Mr. and Mrs. Suwaris’ enjoyment ofthe produce from the few trees standing on the compound had been merelypermissive. On the other hand, their occupation of the buildings wasreferable to the exercise of the legal rights conferred on them byP6,andcould not therefore be relied on as a mode of acquiring further rights ofownership by prescription.
The learned Judge awarded the plaintiff a decree for declaration of titleand ejectment against the defendants as prayed for, but directed the plain-tiff to pay to them a sum of Rs. 1,000 as compensation for the value of thebuildings. It is but fair to the learned Judge to state that the trial hadthroughout proceeded on the assumption that, as a matter of law, this was< the ndeessary consequence of a decision adverse to the defendants on the
GR ATT A T^/NT A.C.J.—Suwaris v. Samarajeeva
issue of prescription. In my opinion, however, the true legal positionarising from the established facts calls for a closer analysis than it hadreceived in the lower Court.
Absolute dominium over Lot 195c, including the buildings standing onit, had without doubt passed to the Council in 1922 under the vestingcertificate PS, which operated to extinguish all prior rights enjoyed overthe property by the plaintiff’s predecessors-in-title and by Mr. and Mrs.Snwaris—vide section 145 of the Municipal Councils Ordinance (Cap. 193).Similarly, the subsequent grant of the soil rights in favour of the plaintiff’spredecessors-in-title also vested in them the ownership of the buildings,which, in accordance with the maxim omne quod inaedificalur solo cedit,had acceded to the soil and become part and parcel of it. “ If in a con-veyance of land the alienor purports to convey the soil apart from thesurface, this does not prevent the surface passing with the soil, for byits nature it is one with it ”—Digest 18.104.22.168. This is the converse case.
To what extent was the totality of these proprietary rights conveyed byP6 reduced by the contemporaneous grant to Mr. and Mrs. Suwaris and theirheirs of the “ house and outhouse exclusive of the land on which theystand ” ? That the ownership of the buildings themselves did not pass to Mr.and Mrs. Suwaris or their heirs under P6 has already been made clear; and itis equally clear that the ownership of the bare materials with which thebuilding had originally been constructed did not pass to them either, forthose materials had long since lost (and have never reacquired) the characterof “ movable property ”. The conveyance does not purport (even byimplication) to authorise Mr. and Mrs. Suwaris or their heirs to demolishthe buildings (to the ultimate prejudice of the other grantees who ownedthe property) and to remove the materials from the site.
Two alternative theories as to the true meaning of the conveyance P6have been submitted for our consideration : the first is the view which hadbeen tacitly assumed at the trial to supply the only true answer, and theother was raised for the first time during the hearing of this appeal. Thealternatives suggested are :
that the grant of the “ house and outhouse exclusive of the land
they stand on ” operated only to restore to Mr. and Mrs. Suwarisa jus retentionis coupled with a right under the common law to becompensated for the improvements previously effected by themeither as co-owers or as bona fide possessors of Lot 195c ;
that it operated as a grant to Mr. and Mrs. Suwaris and also to their
“ heirs ” of a personal servitude (habitatio) entitling them tooccupy the buildings which, upon the execution of P6, passed intothe ownership of the other group of grantees. I
I agree with Mr. Wifcramanayake that we should not at this stage enter-tain the argument based on this latter proposition if the problem involvesconsideration of a mixed question of fact and law. In other, words, wemust be satisfied that the true meaning of the words of P6 can and mustbe ascertained exclusively from the language of P6 itself and without aninvestigation of extraneous facts.
2*J. X. B 35993 (5/54)
GRATIAEN A.C. J.—Suwaris v. Samarajeeva
. If an owner of immovable property conveys it to A bqt, in the sameinstrument, purports to grant to B “ the buildings5 ’ standing on it (exclusiveof any soil rights), the instrument prima facie operates under the RomanDutch law as a grant of the ownership of the land and buildings to A sub-ject only to a personal servitude of habitatio in favour of B. By thisinterpretation, what would otherwise be two inconsistent' grants arelogically reconciled.
The precise nature of the servitude of habitatio is explained in Voet 7.8.6-9.It is “ the right of inhabiting the house of another, its substance being pre-served intact, and he who has this granted to bim cannot give it but canlet it to another. … It perishes by the death of him to whom it wasgranted ”. The maxim res servit personae is fundamental to the natureof such a servitude—Willoughby’s Consolidated Co. Ltd. v. Copthall StoresLtd. 1. On the other hand, there is nothing to prevent the grant of a per-sonal servitude to an immediate grantee and also to “ his heirs”, in whichevent, there are created “two different (personal servitudes), one of whichis afterwards acquired by the heirs of (the first grantee) …. Butthough under the name of ‘ heirs ’, als.o ‘ heirs of heirs ’ ad infinitum areusually comprehended, yet in this case the first gene^tion only is to beconsidered included, lest otherwise the ownership might be of no usewhatever to the owner, the (personal) servitude being severed from it inperpetuity”—Voet 7.4.1. What the jurist has there expressly stated inregard to the servitude known as usufruct is equally applicable to all otherpersonal servitudes. Vide also Kanagalingam v. Kamalawathie2. (Theaddition of the words ‘ ‘ executors, administrators and assigns ’ ’ appearing inthe conveyance P6.must in this context be regarded as “a notarialflourish ”.)
If, therefore, in the present case, the conveyance P6 did in truth granta personal servitude in favour of Mr. and Mrs. Suwaris, a similar servitudemust also have been created by the same instrument in favour of thedefendants as their immediate heirs. It must also be emphasised that theservitude of habitatio, though “personal ” in character, nevertheless conferson the habitator for the time being a real right “ comprising a part of thedominium ” and entitling him to bring a rei vindicatio action for therecovery of that right even against the true owner of the property—Calant v. Mahonga 3.
The suggested alternative interpretation of P6 must now be considered.Can we rule out the view that (having regard to the recitals in P6) theconveyance conferred on Mr. and Mrs. Suwaris and their hens only a jusretentionis terminable by payment of compensation in respect of the build-ings (the full ownership of which had contemporaneously passed to theother grantees) ?
Even if it had been permissible to interpret P6 by reference to evidenceextraneous to the document, I would have rejected the argument that,before the date of the vesting certificate P 8, Mr. and Mrs. Suwaris hadpossibly efljoyed the rights of bona fide possessors who had improvedproperty belonging to its true owners. It is completely negatived byi (1913) A-.D. 267 at 282.2 (1948) 49 N. L. JR. 357.
2 (1922) E. D. L. 79.
G RATTAEN A.C.J.—Suwaris v. Samarajeeva
-the particular* of the chain of title pleaded in the plaint, and in anyevent I fail to see how an owner of property can confer by notarial deeda bare jus >etentionis over it in favour of someone else.
According to paragraph 3 of the plaint, Mr. and Mrs. Suwaris had them-selves beer, co-owners of the larger property (including Lot 195c) at astage when the buildings under discussion had already been erected. Itis apparent, therefore, that the only logical basis of the subsequent jointrepresentation (if true) made to the Municipal Council by all the pros-pective grantees under P6 was that Mr. and Mrs. Suwaris had at some laterpoint of time parted with their soil rights in the property, reserving tothemselves only some limited right to occupy the buildings standing on it.Those rights necessarily fell short of rights of unqualified ownership. Iam not aware of any principle of law under which, apart from contract, aformer co-owner who subsequently retains only a right to occupy abuilding standing on what had once been common property can maintaina claim to be compensated for the value of that building. No suchcontract has been suggested in the pleadings and, even if it did exist, itcould only have created rights in personam with which the MunicipalCouncil was not in any way concerned.
Let us however assume that Mr. and Mrs. Suwaris, as former co-ownerswho had improved the common property, enjoyed at an earlier point of timea jus retention's over the buildings until they received compensation fromthe plaintiff’s predecessors-in-title. Even then, the property itself wasreleased by operation of law from the impact of this assumed right whenLot 195c passed into the absolute ownership of the Municipal Council in1922. Thereafter, the Council continuously enjoyed (until P6 wasexecuted) the entire “ bundle of rights ” comprising plena proprietas overLot 195c, and the conveyance was directly intended only to transfer that
bundle of rights ” to a group of persons (including Mr. and Mrs.Suwaris) in accordance with the scheme of distribution specified in the docu-ment. There is no room for looking beyond the language of the conveyanceitself for the deta ils of this “ scheme of distribution ”. The intention wasto restore to the grantees such real rights as they claimed to have enjoyedpreviously, not unspecified rights which they may have enjoyed in fact.
Let us not forget that the problem before us falls within a very narrowcompass. Our duty is to interpret the conveyance P6 in accordance withwell-established principles prescribed by law for the inteipretation of-written instruments. By P6, the rights of ownership previously vested inthe grantor were distributed among a group of persons in the manner speci-fied in the instrument itself. Before the conveyance was executed thegrantor owned the buildings and also therefore enjoyed the right to occupythem. The effecPof the conveyance was to pass the ownership of the landand buildings to one group of grantees, and the right to occupy the buildingsto another group. In other words P6 operated primarily as a conveyance(by distribution) of proprietary rights, and not as an instrument for thecreation or revival of extraneous rights and obligations. The language of3?6 does not justify even the theory that it operated as a grant of unquali-fied ownership of the land and buildings to the plaintiff’s predecessors-in-title subject to their acceptance of an obligation to make a payment of
Fernando v. The Queen
money (by way of compensation) to Mr. and Mrs. Suwaris. If that hadlbeen the intention, the conveyance shonld have been very differentlyworded.*
Tn my opinion, the only permissible interpretation of the conveyance isthat the Council’s ownership of the buildings passed to the plaintiff’spredecessors-in-title, but subject to a personal servitude (hdbitatio) in favour'of Mr. and Mrs. Suwaris and of the defendants as their immediate heirs.The property cannot therefore, except by renunciation, he released fromthis servitude so long as one of the defendants is alive—vide in this con-nection the observations of Gardner J.P. in Arend v. Est. Nakiba1. Itfollows that the claim to eject the defendants is premature. Tor thesereasons, I would vary the decree entered in the Court below by granting adeclaration of title in favour of the plaintiff as prayed for, but subject toa servitude of habitatio in favour of the defendants. I would also delete-the order for ejectment and the order for compensation. . As each partyhas partially succeeded in the action and in this appeal, there will be noorder for costs in either Court.
Gthstasekaka J.—I agree.