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Present: Dalton and Drieberg JJ.
SAMARANAYAKE v. MENDORIS et al.
336—D. C. Galle, 24,630.
Action under section 247 of the Code—Execution creditor against theclaimant—Proof of judgment debtor's title—Requisites of plaint.
Where an action under section 247 of the Civil Procedure Codois brought by the execution creditor against the claimant, the plaintshould set out- the judgment-debtor’s title, and the execution -creditor is bound to prove such title as fully as the debtor himself,if he were vindicating his title against the claimant.
HIS was an action under section 247 of the Civil ProcedureCode brought by the plaintiff to have a certain share of a
, house seized by him declared liable to be sold in execution againstfirst defendant. Second defendant, wife of the first defendant,claimed the house, and her claim was upheld. The learned DistrictJudge gave judgment for the plaintiff.
N. E. Weerasooria,, for defendant, appellant.
L. A. Rajapakse, for plaintiff, respondent.
December 21, 1928. Dalton J.—
This was an action brought under the provisions of section 247 ofthe Civil Procedure Code to have a house seized by the plaintiffdeclared liable to be sold in execution for the debt of the seconddefendant. The second defendant, wife of the first defendant,claimed the house as her property, and her claim was upheld. Thetrial Judge found the house belonged to the first defendant and gavejudgment for plaintiff.
The property seized by plaintiff under the writ issued in executionof his decree against the first defendant was an undivided 10/16 of theland called Makadugodakurunduwatta and an undivided 15/16 partof the house on it. The property claimed by the second defendantto the Fiscal was 15/18 of the land and 15/18 of the house. Theclaim was upheld, and plaintiff did not take any steps by actionunder section 247 in respect of the land, but his plaint in this actionsets out that first defendant is entitled to the whole of the house“ by right of construction,” and he accordingly asked that firstdefendant be declared entitled to the house, and therefore that it
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be liable to seizure and sale under his writ. It will be seen herethere is very considerable scope for confusion in respect of the plaintas drawn.
Only two issues were framed :—
Is first defendant entitled to the house ?
Is it liable to be sold under plaintiff’s writ ?
The evidence shows that the house in dispute is a stone masonrytiled house of 13 cubits. The trial Judge finds it was built by thefirst defendant, and he also finds that first defendant owned a sharein the land on which it stands. This latter conclusion he based,upon the documents produced in the case (P 1, P 2, D 3, D 4). Ican certainly find nothing in the documents which satisfactorilysupports this latter conclusion. It is clear that the claim to theinterests in this particular land seized was upheld, and plaintiff hasdone nothing further in respect of that. It would seem that thetrial Judge has overlooked the fact that other land was referred toin the documents in which first defendant may have had an interest,but there is nothing to show he had any interest in the soil ofMakadugodakurunduwatta. The verbal evidence would certainlyappear to support the contention that first defendant had no sharein the soil of this land although plaintiff does say he was entitledto 1/18 of the soil. How he comes to that conclusion he doesnot say.
It is admitted that the second defendant was only entitled to 15/18of the land, but that first defendant was entitled to any share in theremainder plaintiff has entirely failed to prove. As his plaint wasframed I doubt if he or his advisers ever had any intention of enter-ing upon such proof, although, as is now pointed out, it is not clearfrom the plaint if plaintiff wants only the materials comprised in thehouse, or the house as a whole with the land on which it standsseized and sold. From the nature of the building it is part andparcel of the soil, and if plaintiff contents to the contrary the onusis upon him to show it is movable property. It is admitted thehouse came into existence after 1882, in which year first defendantparted with 1/18 share in the land. There is no satisfactoryevidence to show he had any other share but that. Therefore ifhe constructed the house, he constructed it upon land in which hehad no interest. He did not marry the second defendant until 1906but there is evidence to show that first and second defendants livedtogether long before that. It is not necessarily strange thereforethat he, after 1882, either constructed a house, or helped to build ahouse, or improved an existing house (for the evidence of what hedid is not very satisfactory) upon the land of the woman who wasthe mother of his children and who eventually became his wife.
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In my opinion the first issue should have been answered in thenegative, plaintiff having failed to show that the house was theproperty of the first defendant. In that result his action shouldhave been dismissed.
A question has also been raised as to whether there is any " claimto compensation ” belonging to the first defendant which can beseized and sold by the plaintiff. It will be seen from what I havestated that there is no evidence to show that first defendant is aco-owner who has effected improvements on the common property.Counsel further has failed to show that he is otherwise a person whohas a jus retentionis whence any such right would flow. It is nottherefore necessary to consider whether such a claim is seizable inexecution, nor was the question ever raised in the pleadings or issuesin the lower Court. The case before us has proceeded upon thebasis that first defendant had an interest in the soil, and thatposition has not been sustained. The appeal must be allowed withcosts, the decree entered being set aside and judgment entered forthe defendants with costs.
The respondent is the plaintiff in this action and was the judgmentcreditor in D. C. Galle, No. 18,553, the first defendant-appellantbeing the judgment-debtor. He seized certain property in executionwhich was successfully claimed by the second defendant-appellant,who is the wife of the first defendant, and he thereafter brought thisaction under section 247 of the Civil Procedure Code to have itdeclared that the first defendant is entitled to the “ entirety of the13 cubits tiled house standing on the land called Makandugoda-kurunduwatta,” and therefore liable to be sold under his writ.
It is not clear from the plaint what was the exact nature of theinterest in the house sought to be sold, that is to say, whether it wasthe house with the land on which it stood, or whether it was merelythe materials of the house, or whether it was the right of a co-ownerwho builds on common land, namely, a right to compensation forthe building, with the right of retaining possession of it untilcompensated.
This action has been brought without a proper regard to whattook place in the claim proceedings, and the plaint is exceedinglyunsatisfactory. When a section 247 action is brought by anexecution-creditor against a successful claimant he has to prove asagainst the claimant his debtor’s right to the property, and he mustdo so as fully as the debtor himself if the latter was seeking to vindi-cate his title against the claimant. It is necessary therefore thatthe plaint should properly set out the title alleged in the judgment-debtor. This has not been done in this case.
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The claim proceedings were not put in evidence at the trial, butthey have been referred to, and the appellants submit a certifiedcopy of them with their petition of appeal. Mr. Rajapakse objectedto these being referred to for the purposes of the appeal. Ordinarilysuch an objection would be a good one. But in this case the Courthas had resort to them and, especially in view of the fact that thisaction has not been framed with a proper regard to the claim orderand proceedings, it is impossible to deal satisfactorily with thisappeal without considering them.
It is agreed that this 13 cubits house was built by the first defend-ant after he had transferred in 1882 an undivided 1 /18 share whichhe owned of these lands to the second defendant. He was thenliving with the second defendant and he registered marriage withher after he had built this house. It is necessary to decide underwhat circumstances and with what intent he built this house.
If at the time he built it he had no interest in the land he cannotpossibly be owner of the house in any sense. The authorities on thispoint will be found set out and examined at length in Walter Pereira’sLaws of Ceylon, p. 345 et seq., and in The Right of Compensation,,by the same author, on pages 10 and 11. The following passagefrom The Digest, XLVI., 1, 12 (Monroe’s Translation), places thematter very clearly for the purposes of this case :“ Where a man
builds on another man’s ground with his own materials, the buildingbecomes the property of the person who owns the soil itself, and, ifthe former knew that the ground was another’s, he is regarded ashaving lost the ownership of the materials of his own free will;consequently, even if the building should be demolished, he has nogood right of action to recover the materials.”
A question may arise according to some commentators regardingthe builder’s right to claim the value of the materials from the ownerof the land if the intention of the parties was that the owner of theland should pay for them, but this proceeds upon the ground of animplied agreement.
After the purchase of a 1/18 share from the first defendant thesecond defendant bought two other undivided shares in 1895 and1897, and if the first defendant had no interest in the land after thesale of a 1/18 share in 1882 he must be regarded as having built on theland of another without any compact or agreement as to compen-sation to be paid him by the owner, for there is no evidence of anysuch compact or agreement.
If when he built this house the first defendant was a co-owner ofthe land, different considerations arise. If he built it in the exerciseof his rights of a co-owner he would have the right of retention untilcompensation was paid him, and it would become necessary todecide two points which have been argued by Counsel before us, one
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is whether the form of seizure adopted in this case is sufficient for a
sale of such an interest as I have described, and the other is whether rb^imn j.
such an interest is one which can be seized and sold in executionagainst a builder. In view of the conclusion I have come to it is notnecessary to express an opinion on these two points.
What the respondent seized was “ an undivided 10/16 part of thesoil and trees with an undivided 15/16 of the tiled house of 13 cubitsof the land called Makandugodakurunduwatta.”
The second defendant claimed “ an undivided plus £ plus 1/12plus 5/288 plus 1/16 or 15/18 parts of the land called the lotsNos. 1585 and 1586 of the land Makandugodakurunduwatta.” Atthe claim inquiry the second defendant stated definitely that thefirst defendant in 1882 transferred to her a 1/18, which was all theinterest he had in the land, and that he also sold to her the 7cubits house which then stood on the land. The second defendantreferred to previous actions where she said the whole question oftitle was gone into and she put in evidence six deeds which had alsobeen tendered in those actions.
The Proctor for the claimant said that the shares were undividedand that they did not clash, by which I understood him to havemeant that the shares claimed by the claimant and the respondentdid not amount to unity, and that he could prove that the debtorwas entitled to 1 /63 of the land and at least to 15/16 of the house.
As regards the first part of his statement he was right, so far as thearithmetic is concerned, for a successful claim by the second defend-ant to 15/18, which is 120/144, would still leave a residue withinwhich the debtor’s interests might be located, but the importantpoint is that there is nothing to contradict specifically the assertionof the second defendant that the first defendant owned only the1 /18 he gave her.
In bringing this section 247 action the respondent seems to haverecognized that the claim had succeeded in respect to the entiretyof the shares in the land seized, for no share of the land is broughtinto this action, nor is it suggested that any of the shares of the landhave since been seized.
. At the trial the only, evidence led was that of the respondent andthe second defendant. The learned Judge has found that the firstdefendant continued to own what he refers to as small shares of theland after the sale of his 1/18. The only express evidence of therespondent on which this is based is the following statement madeby him : “I know the owners of this land. The first defendant isentitled to about 1/18 of the soil.” What his source of ownershipwas and when he acquired the interest are not stated. I havealready referred to the requirements of a section 247 action and the
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necessity for proving title in the judgment-debtor to the share onwhich it is sought to levy execution. I need hardly say that this-does not amount to such proof.
The judgment, however, is also based on an inference which isdrawn from two mortgage bonds, P 1 and P 2. By P 1, which is abond of 1907, two lands are mortgaged. In the early part of thedeed the first and second defendants stated that they mortgagedproperties held and possessed by the second defendant upon severaldeeds mentioned therein—these are the deeds on which the seconddefendant is entitled to 15/18 of the land in question—and by thefirst defendant by right of paternal inheritance. The interests inthe two lands are there described, the first being 15/18 of the land inquestion with the tiled house, and the second being another land asto the ownership of which no inquiry has been made and which, if itis the property of the first defendant, would make the deed quiteconsistent. I cannot regard this mortgage P1 as necessary implyinga declaration of ownership by the first defendant in this land, that isto say, in so much of it as was mortgaged, for the 15/18 mortgagedis indicated by the deeds recited to be the property of the seconddefendant, and the description of the house as built by the firstdefendant may have been given merely for the purposes of identi-fication. In any case I cannot understand this as implying that the13 cubits house was the property of the first defendant, for if it wasso the deed would have said so.
The same observations apply to the deed P 2. Mr. Rajapaksecontended that the mortgage bonds D 3 and D 4 showed that thefirst defendant owned a share in the land after 1882. I cannotagree with this contention, for what is really the same reason as inthe case of the other deeds. The first defendant undoubtedlyjoined in the mortgage and declared his rights as by paternalinheritance, but what was mortgaged is specifically described asthe 15/18 which the second defendant owned upon three deeds. Inthis 15/18 the first defendant has no interest and the deed in no waysuggests that he had interests outside it. The recitals on this deedare what are often found in deeds of this nature executed beforenotaries in the country. The interest of a wife is mortgaged andfrom some vague idea of security the husband is made to join in it,not merely as a party assisting his wife but as a mortgagor.
If this action had been tried as one for title to the land, as betweenthe first and second defendants, it was bound to fail. I thereforehold that the respondent has not proved that the first defendant,when he built this house, was a co-owner of the land. In thecircumstances his possession is that of a person who builds on theland of another, he having no title to the land.. The issue on whichthis trial proceeded was: “ Is the first defendant entitled to the
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house described in the plaint ? ” Having built it under the circum-stances stated by me, he is not the owner of the house, and this issuehas to be answered in the negative.
The appeal is allowed. Judgment will be entered dismissingplaintiff’s action with costs of this appeal. The respondent will paytlio appellants their costs in the lower Court.
SAMARANAYAKE v. MENDORIS et al