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SIYADORIS v. HENDRICK.
D. C., Galle, 3,027.
Co-owners of landed property—Unlawful ouster by a co-owner—Partnership -Roman-Dutch Law—Digging for plumbago without consent of co-owner.
An actum by a co-owner of a land for bis share of the value of theplumbago dug therein, after an unlawful ouster of the plaintiff, ismaintainable without a prayer for dissolution of partnership.
The rights of co-owners of landed property in Ceylon are governedby the Roman-Dutch Law, and not by the English Common Law.
It is not competent for one co-owner against the will of the other todeal with the property in a manner inconsistent with the purpose forwhich the joint ownership was constituted.
The law does not prohibit one co-owner from the use and enjoymentof the property in such manner as is natural and necessary under thecircumstances.
N the 9fch September, 1890, the first plaintiff and the firstdefendant jointly purchased from the Crown certain lands
which were said to contain plumbago. Owing to a dispute betweenthe purchaser as to the payment of the purohase money the Crowngrant was not signed till 11th October, 1892, nor issued till themonth of December following. In the meantime the first de-fendant, who claimed to be solely entitled to the land, entered intopossession of the land and leased it to certain plumbago miners,who bound themselves to pay him a royalty of one-eighth of theplumbago raised.
Subsequently to the mining lease, but prior to the Crowngrant, the first defendant agreed with the second defendant(Carimjee Jafferjee) to sell him a moiety of the land, and executeda conveyance to him of that moiety. The plaintiffs and the seconddefendant thus appeared to be entitled to the land in equal moieties.
The lessees of the first defendant entered on the land and raiseda quantity of plumbago, alleged to be about 1,599 tons.
The plaintiffs sought to recover half the value of the plumbagofound and Rs. 12,000 “ as and by way of mesne profits.
It was contended for the first defendant that the transactionalleged by the plaintiffs constituted a partnership, and that nofiction for an accounting or for payment of a specific sum could bebrought without a prayer for a dissolution of partnership.
The District Judge (Mr. H. L. Moysey) upheld his plea by thefollowing judgment delivered on 14th October, 1896:—
“ It has been laid down in D. C., Galle, 41,723 (2 8. C. C. 166),that the joint ownership of a subject of property by a number ofpersons is a partnership. That decision has been approved in the
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1806. later ease, D. C., Galle, 1,020 (2 0. L. B. 167). One partner cannotMayl2. 8U(3 another for a share of the profile unlawfully .taken, unless attiie same .time he sue for a dissolution of the partnership. Theplaintiffs have mistaken their action. II must he dismissed. "
The plaintiffs appealed. The case was argued on 17th March,1896.
Orenier, for appellants.
Domhorat, for respondents.
Cur. odv. vult.
12th May, 1896. Bonseb, C.J.—
Without hearing any evidence the District Judge has dismissedtile plaintiffs’ action on the ground that the Court had decided thatthe joint ownership of land by a number of persons in common isa partnership, and that being so the plaintiffs could not sue fortheir share of the profits, without first getting a dissolution ofpartnership. The plaint is badly drawn, but it alleges an unlawfulouster by the first defendant assisted by the other two defendants.
Fortunately the rights of co-owners of landed property in thisIsland are governed by the Roman-Dutch Law, and not by theEnglish Common Law, for unless the plaintiff were ousted by hisco-owners and forcibly prevented from enjoying the land, hisremedies under the English Common Law would be doubtful.
The case will go back to be .tried on the issues raised.
On the case going back, the following issues were tried: —
Did the first and second defendants, on or about the 26thAugust, 1892, claiming title in themselves to the whole of. thelands, oust the plaintiffs and keep them dispossessed. till the 2ndMarch, 1893 ?
What quantity of plumbago did defendants raise duringthat period without giving these plaintiffs their due share ?
What sum, if any, are plaintiffs entitled to receive ?
The District Judge’s judgment on these questions of factdelivered on 4th January, 1897, were modified in appeal byLawrie, J., and Browne, A.J., on the 5 th July, 1898.
The plaintiffs brought this judgment of the Supreme Court inreview.on the 11th November, 1898, before Bonser, C.J., Lawrie,J., and Withers, J.
H. J. C. Pereira and Wendt, for petitioner, appellant.
Layard, A.-G. (with him Domkorst), for second defendant,respondent.
Cur. adv. vult.
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25th January, 1899. Bonseb, C.J. (after setting forth the factsof the ease)—
This Court, on the appeal of the second defendant, reduced thedamages to Bs. 882.50 and entered up a decree against bothdefendants for that sum, being the share of the royalty to whichthe plaintiffs were entitled in respect of their ownership of amoiety of the land. In my opinion the decree of this Courtshould be varied, and the action dismisfaed as against the seconddefendant with costs.
It was argued that the digging of plumbago by' a joint ownerwithout the assent of his co-owner is a wrongful act amountingto an ouster. There is little to be found in the books as to therights of co-owners under Boman-Dutch Law. Yoet says: Invitoautem uno sooio nihil novi per alteram poteet fieri in re eommuni,meliorque prohibentis conditio eat; adeo ut, si quid novi peralteram aocium invito altero factum ait, aut fieri mandatum, iacogi pnssit od id in pristinmn atatum reatituendum (bit. 10, 3, 7).By this I understand that it is not competent for one co-owneragainst the will of the other to deal with the property in amanner inconsistent with the purpose for which the joint owner-ship was constituted, but I do not understand the law to prohibitone co-owner from the use and enjoyment of the property insuch maimer as is natural and necessary under the circumstances.This was in substance the law laid down by Bacon, V. C., in Job v.Potton (L. R. 20 Eq. 84), and is, I venture to think, in accordancewith good sense and not inconsistent with the Boman-Dutchauthorities.
In the present case there can be no doubt that this land waspurchased for the purpose of getting the plumbago contained init. It is not suggested that the usual and customary method ofgetting plumbago was departed bom, or that the lessee was im-provident, or the royalty inadequate.
As far as the second defendant is concerned, I see no reasonwhatever for making him liable in this action. All that he didwas to acquiesce in the lease which he had no power to repudiate,and to take his share, and no more than his share, of the royalty.It is evident that the plaintiffs did not conceive that they had anygrievance against the second defendant, for early in 1893 the firstplaintiff entered into an agreement with him for the joint workingof this very plumbago mine, which was acted upon, for a consider-able period, and it was only after they had quarrelled that theplaintiffs bethought themselves of claiming anything from himin respect of the prior working.
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UM. The decree in review will be in accordance with the opinionsJanuary 2S. Qf the majority of the Court that the action be dismissed as againstBmwm, f! J the second defendant with costs, and in other respects the decree ofthis Court be affirmed.
It seems to me impossible to say that it was the first defendantmore than the second defendant who prevented the plaintifffrom getting his share. I cannot earmark the plaintiff’s plumbagoor his profits, and say that these were taken by the first defendantand not by the second.
Whatever be the law as to the rights of enjoyment of a landowned in common, especially land from which minerals and thelike are dug, this at leafit is certain, that an owner who has beendeprived of his property has right to recover it from any one whohas taken it, or to get its value if the property has been convertedinto money, and here I think it is proved that both the defendantskept the plaintiff out of possession, that both of them tookplumbago in which the plaintiff had a share, and that both arejointly and severally liable.
This seems to me to be a case distinguishable from Job v. .Potton (L. R. 80 Eq. 84). There one co-owner took no more thanhis share, leaving untouched enough for the other co-owners; herethe first and second defendants, acting together, prevented the'plaintiff (a co-owner) from getting any share at all. F<Jr hisshare of the profits, received during the months the plaintiff wasexcluded, the first and second defendants are in my humbleopinion jointly and severally liable.
I would affirm the judgment now under review.
The two questions we have to consider are these: —
What was the amount of plumbago taken from the pitsafter the plaintiff and the first defendant became jointly entitledto the two contiguous lots on which the pits were sunk?
For how much of that plumbago is second defendantresponsible to plaintiff?
[After considering the first question his Lordship continued:—]
Then, as to the liability of the second defendant, I think, thejudgment we are now reviewing very rightly reduced the liabilityof the second defendant.
The Roman-Dutch Law is clear on this point :—Invito autemuno 'socio nihil novi per alteram potest fieri in re communi, meli-orque prohibentis conditio est; adeo ut, si quid novi per alteramsocium invito altero factum sit, aut fieri mandatuvn, is cogi possit
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ad id in pnstinum statiim restituendum. Quod si, extraneo quid 1889.novi faciente, sooiorum alter id passus sit, cum prohibere posset, January U.nec tamen mandaverit, opus quidem destmere non compeVUtur, sed Wither*, J.hoc judicio oonveniri potest ad damns inde dati reparationem.
(Voet, lib. 10, tit. 3, section 7.)
Now, between the 11th October, 1893, and March, 1898, Tinoriswas virtually the plaintiff’s co-owner. He had a lease from the firstdefendant of the pits for one year. The second defendant oould notinterfere with his operations; he had no voice in the matter;this lease went before his sale. He had an interest in the groundshare, and he employed people to proteot that interest. There isreally not the slightest evidence that the second defendant assistedthe first defendant and Tinoris in extracting this plumbago, or thathe knew it was done against the consent of the first plaintiff.
In fact, I think the plaintiff was fortunate in recovering anythingby way of damages from tire second defendant. I wobld restore theamount decreed against the first defendant by the District Judge,and with this modification I would affirm the judgment in review.
SIYADORIS v. HENDRICK