042-NLR-NLR-V-74-S.-RANASINGHE-Appellant-and-V.-ARIYARATNE-EPA-and-10-others-Respondents.pdf
H. N. G. FERNANDO, C.J.—Tlaiasinghe v. Ariyaraine Epa
. 153
Present: H. N. G. Fernando, C.J., and Weeramanlry, J.
S. RANASIKGHE, Appellant and V. ARIYARATNE EPAand 10 others, Respondents
S. C 123167 (Inly.)—D. C. Matara, 4373/P
. Vendor and purchaser—Construction of deed—Co-owner—Erection of a building byhim on the common land—Transfer thereafter by him of his undivided sharein the land—-Rirjlds of the transferee.
Where n building is erected on land with the intention that it will bo apermanent structure, the building becomes annexed to the land and accedes tothe soil. "Accordingly. where a co-owner, after erecting a building on thecommon property, sells his undivided share in tho land without making anyreservation as to the building, his rights in tho building os to ownership orcompensation pass to tho transferee and thereafter to tho successors in titleof the transferee.
PPEAL front an order of the District Court, Matara,]V. D. Gvna.sektra, for the plaintiff-appellant.
IF. S. )Veerasooria, for the 5th defendant-respondent.
Cur. adv. vult.
June 25, 1969. II. N. G. Fernando, C.J.—
Under a Final Decree in D. C. Matara Case No. 9420 a 6/15 share of tholand which is the subject of this action was allotted to one Punchihamy,and a 3/15share to her husband PhilipEpa. On the death of Punch ihaniyeach of her 10 children became entitled to small undivided shares, and herhusband to a further 3/15 share. The husband by the deed P 3 of 1959sold all his undivided shares to his son Gunasinghe Epa. The sonthereafter by P-1 of I960 sold all his shares to one Rosiya Wiekrcmasekera
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H. N. G. FERNAXDO, C.J.—Ranaringhv v. Ariyaratne Epa
who in 1964 sold these interests to the plaintiff. The dispute in thisappeal concerns only a boutique which had sometime prior to the presentaction been built on the land.
The plaintiff claimed that the boutique was built by Gunasinghe Epa,and if this had been so, the plaintiff is clearly entitled to the house becauseGunasinghe Epa specifically mentioned in P4 that lie was selling the tiledboutique standing on the land. But the position taken up by the 5lhdefendant, who is also a son of Philip Epa, was that the house wasconstructed by his father and that by 5D4 of 1964 the father sold thehouse to him.
On the facts the learned District Judge lias held that the house wasbuilt by Philip Epa before he sold his interests in the soil to GunasingheEpa by P3 of 1959. This conclusion appears to have somewhat seriouslyaffected the view formed by the learned Judge as to the proper construc-tion of the deed P3. By this deed Philip Epa transferred “ the propertiesmentioned in the schedule below, together with all and singular the rights,ways, easements, advantages, servitudes and a]jpurtenances whatsoeverthereto belonging or in any wise appertaining or usually held, occupies,used or enjoyed therewith or reputed or known as part or parcel thereofand together with all the estate, interest, claim and demand, whatsoeverof the said Vendor, of, in, to, upon or out of the said premises and everypart thereof ”, and the schedule specifies an undivided G/15 parts of theland. The case of Tissera u. Tissera 1 applied the general maxim thatwhere a building is erected on land with the intention that it will be apermanent structure, the building becomes annexed to the land andaccedes to the soil. In the instant case it was not the position of the5th defendant that there was any intention that the building would notbe permanent. When therefore Philip Epa sold his share in the land thebuilding had acceded to ihe land. The question is whether in such a casea transfer of the share in the land in such terms as occur in the deed P3docs convey a buildii g which at the time of the transfer had acceded tothe soil.
1 can see no difference between tire circumstances of this case and onein which an individual who owns an acre of land erects a building on it, andthereafter transfers the land and all his right title and interest thereinwithout making any reservation as to the building. If in the latter ease,the building manifestly passed with the land upon the transfer, thereseems no reason why a transfer in similar terms by a co-owner of his sharein the land should not also pass the ownership of a building which theco-owner had erected. In both cases the reasonable assumption is thattiic owner is divesting himself of hisentire rights in the soil, and accordinglyhas no intention to retain any interest -whatsoever in the land thereafter.
In my opinion the transferee on P3 purchased all the shares previouslyheld by Philip Epa and acquired rights in the house in view of the terms ofthe deed P.J, and any person who thereafter desired to purchase the shares
« {1010) 42 N. R. CO.
Sumanasiri v. Tillekeratne Banda
155
held by that transferee was quite entitled to presume that whatever hadbeen built on the land by Philip Epa did pass to his transferee. If thecontrary view be correct, and if as has happened in this case, it is open toa co-owner who has sold his entire soil interest to claim subsequently -thathe did not intend to convey a building which he had erected, the questionwhether the right to the building has or has not been passed will have tobe decided according to whatever version the transieror may subsequentlychoose to state in evidence. In fact it appears in this case from theevidence of Philip Epa himself that he set up a claim that he retainedsome right in the house only alter Gunasinghe Epa to whom he sold hisshare had parted with the property to an outsider.
I held that in the circumstances of this case, Philip Epa could onty haveretained a right in the building which he erected, if that right wasexpressly reserved in his transfer I'3. In the absence of such a reservation,the rights in the building passed to his transferee and thereafter to thesuccessors in title of the transferee.
The decree is amended when it refers to the building P> by deleting theprovision for compensation to the 5th defendant and substitutingprovision allotting the building or the right of compensation therefor to theplaintiff. The order in the decree that the plaintiff pay the 5th defendantRs. 52 dO as costs of con test is set aside. The 5th defendant will pay to theplaintiff Rs. 52 50 as costs of the contest in the District Court and afurther Rs. 52 50 as the costs of this appeal.
Weeramanthy, J.—I agree.
Decree amended.