095-NLR-NLR-V-17-SOYSA-et-al.-v.-MOHIDEEN.pdf
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[Full Bench.]
Present: LasceU.es C.J., Pereira J., and De Sampayo A.J.SOYS A et al. v. MOHIDEEN
1914.
57—D. C. Colombo, 36,273.
Donation subject to fidei commiasom—Acceptance by the fiduciary donees—
Revocation by the donor—Lease by the fiduciarins—Agreement
by fidnoiarins to compensate lessee for improvements—Is lessee. entitled to compensation from fidei commissaries ?
Per liASCBUiBS C.J. and Db Sampaso A.J.—Where a donationsubject to a fidei commission in favour of the descendants of thedonees was accepted by the fiduciary donees,—
Held, it was not open to the donor to revoke it and grant itabsolutely to the donees, ever though no issue of the donees werein esse at the date of the fir&» deed, and though the fidei commit-satins had not accepted the gift at the date of the revocation.
In the case of such a donation acceptance by. the fiduciary doneeis a sufficient acceptance on behalf of the unborn descendants.4
Full Bench.—A parcel of land which was subject to a fideicommission had been occupied by defendant as lessee of one of thefiduciarii, who had agreed to pay defendant half the value of thebuildings on the termination of the lease. In an action by thefidei eommissarii (the fiduciarii having died) to vindicate the land,—
Held, that it was not competent to defendant (lessee) to set upa claim tor compensation for improvements.
TP HE facts of this case are as foUows:—
Peter Cornelius de Zoysa, by deed No. 1,412 dated February 21/27,1877, gifted the land in question to four persons, whom he describedas his nephews and niece, but who in fact were children of a cousin,viz., Herbert Edwin, George, Albert, and Jane, subject to thecondition that they should not aUenate the property, but that ontheir death the property should devolve on their issue, and if any ofthem should die without issue, his or her share should devolve on theothers and their issue. The donation was on the face of the deedaccepted by the donees subject to this condition. George and Janesubsequently died without issue, and the donor, Peter Cornelius deZoysa, by deed No. 3,088 dated December 15, 1895, after recitingthat the shares of George and Jane had devolved on the survivingdonees, purported to cancel the deed of gift No. 1,412 and to re-giftthe property to Herbert Edwin and Albert free of any condition orrestriction. By deed of lease No. 2,785/1,032 dated September 27.
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1M4^1900, Herbert Edwin and Albert leased the property to the defendant
So~eaon oer*3a*n ^enns *or * period of fifteen years, and the defendant has
Mdftdten been in possession and has made certain improvements on the landaccording to the stipulation in the 'deed of lease. Herbert Edwindied in 1912 leaving issue, the plaintiffs in. this action. The plain-tiffs ware bora after the date of the original gift in 1877, and arestill minors. This action is brought by them for the recovery of ahalf share of the property. The defendant denied the right of theplaintiffs to any share of the property, and in the alternative claimedcompensation for improvements.
The District Judge decided in favour of the plaintiffs. Thedefendant appealed.
The- case was reserved for argument before a Bench of threeJudges'by Lascelles C.J. and De Sampayo A.J. by the followingjudgment: —
Lascelles C.J.—Peter Cornelius de Zoysa, by deed D 1 datedFebruary 27, 1877, conveyed certain land and buildings at Mutwalto his nephews Herbert Edwin de Zoysa, Albert de Zoysa, andGeorge de Zoysa, and his niec Jane Robertina de Zoysa, by wayof gift absolute and irrevocable. It is not disputed that the termsof this deed created a fidei commissum in favour of the issue of thedonees.
By deed D 2 dated December 15, 1895, Peter Cornelius de Zoysapurported to revoke the above-mentioned deed, and to convey theproperty comprised in it absolutely to Herbert Edwin de Zoysa andAlbert de Zoysa, George and Jane Robertina having died in themeantime.
By agreement D 3 dated September 29, 1900, Herbert Edwin andAlbert, in consideration of an advance of Rs. 1,250, purported tolease the property to the defendant for a term of fifteen years. Atthe end of the term the Rs. 1,250 was to be repaid by the lessors,repayment being secured by a mortgage of the property. Thelessors, in the meantime, were to pay the lessee Rs. 3.75 everymonth by way of interest at 18 per cent, on the sum of Rs. 250. Itwas^also provided that, on the termination of the lease, the lessorsshould take over any buildings erected by the lessee, paying thelessee half the cost of putting them up.
The plaintiffs, who are the children of Herbert Edwin, now claimhalf the property, on the footing that the deed D 2 was inoperativeto revoke the fidei commissum in the favour created by deed D 1.The present appeal is from the decision of the District Judge infavour of the plaintiffs.
^ The case of the defendant-appellant is that, inasmuch as the deedwas not accepted by the plaintiffs, it was revocable, nd was in factduly revoked by the subsequent deed.
Up to a certain point the law is clear. As a general rule, in orderthat a fidei commissum created by gift should be valid, the donation
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must be accepted by the fidei commissary as well as by the fidu-ciarius (2 Burge 148 and De Silva v. Thomis Appul). But thisrule is not without exception. The guardian may accept for aninfant; or if the child is in utero, the acceptance may be made by theperson under whose authority he will be placed at birth3. In thepresent case it is material that the plaintiffs, who now sue as minors,cannot have been in esse at the date of the fidei commissum in theirfavour.
Whatever room there might have been for doubt, if the matterhad been res integray the question is concluded, so far as we areconcerned, by the judgment of the Full Court' in John Pererav. Avoo Lebbe Marikar a. It was there held, on the authority of apassage in Perezius, that when a gift is made to one in favour ofa family in which the giver wishes the property to remain, thegiver is not allowed to revoke the limitation to. aftercomers. Thisdecision, which appears to be supported by Voet is binding oh us, asthere can be no doubt of the intention of the donor, when he executedD 1, to keep the property in the family to which his nephews andniece belonged.
The decision of the learned District Judge on the question oftitle was thus right in my opinion.
Then we come to the defendant’s claim to retain possession of theproperty until the plaintiffs have paid him half the cost of hisimprovements. On this point the learned^ District Judge hasruled against the defendant on the ground that he is not a bona fidepossessor, and that the improvements made by him are not neces-sary or useful.
I think that there can be no doubt that under the Roman-Dutchlaw a lessor had not the jus retentionis which would entitle him toremain in possession against a successful claimant until he has beencompensated for improvements. The Occupation of a lessee is notpo8sessio civilist for he does not occupy the property in the beliefthat it is his own. On the contrary, hisi interest in the property isdefined and limited by the terms of the lease.
But it is said that the decision of Muttiah v. Clements5 and Mudi-anse v. Sellandyar 6 have admitted or established the right to a lesseeto set up a jus retentionis in respect of compensation for improve-ments.Iamby no means certain that this isthe effect of these
cases.Inthefirst-named case the attention ofthe Court does not
appeartohave been directed to the objectionsto holding that a
lessee canb.etreated as a bona fide possessor.Mudianse v. Sel-
landyar * is no doubt an authority for the proposition for which theappellant contends, though the learned Judges in that case seem tohave been influenced to some extent by equitable considerations.
« Bk. 39 5y 40.
5 (1900) 4 N. L. R, 168.
• (1907) 10 N. L. R. 209.
1914.
Soysa v.Mohideen
1 7 N. L. R. 123.
1 Walter Pereira 606.
*(1884) 6 S. C. C. 138.
( 282 )
1914.
Saysa v,Mohideen
On the other hand, the South African case of De Beers Consoli-dated Mines v, London and South African Exploration Co., 1 cited byMr. Justice Pereira in his work on the Right to Compensation forImprovements (p. 6$), tells strongly in (he other direction, as doesthe passage there cited from IV^aasdorp.
On general principles, and on the authority of the Roman-Dutchjurists, I should have no difficulty in coming to the conclusion thatlessees do not possess the right to compensation fpr improvementson the footing that they are bona fide possessors, but that theirright to compensation from their landlords depends upon whollydifferent conditions, which are plainly set out in the text books.But I think that it is very desirable that the uncertainty which nowexists as to this important branch of the law should be set at rest,and with that object I would set the case down for re-argument onthis point before the Collective Court.
I would add that if the defendant's right to compensation is to bedetermined on equitable grounds, I should be of opinion that he hasno right at all. The plaintiffs in no way acquiesced in the buildingagreement between the defendant and his lessor, and 1 cannot sayon what principle the plaintiffs are to be saddled with the burdenof this agreement.
Bawa, K.G., for defendant, appellant.
. E. W. Jayewardene, for plaintiffs, respondents.
March 25, 1914. Lascelles C.J.—
The further argument before the Pull Court has confirmed mein my opinion that the defendant is not entitled to the compensationwhich he claims. A more detailed examination of Muttiak v.Clements 2 and Mudianse v. Sellandyar 3 shows that in both thesecases the judgments may have been influenced by equitable con-siderations, which are not to be found here. In the first-named casethe defendant was promised a lease by the incumbent of a temple,and was allowed by the trustee to cultivate the land in expectationof a lease. Then the trustee and the committee leased to theplaintiff, so there was a contractual relation. between the plaintiffand the owner, by whose permission the cultivation had taken place.
In Mudianse v. Sellandyar 6 the plaintiffs had improved under anunregistered planting lease; the lessors then sold to the first andsecond'defendants, whose deed, being registered, took priority overthe plaintiff's lease. These defendants may, therefore, have beenregarded to have succeeded to the obligation of the lessors tocompensate the plaintiffs. *
* (1900) 4 N. L, f?. 258.» (2907) 10 N. L. JR. 209.
1 10 S. C. 259,
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No such circumstances is to be found in the present case, where theplaintiffs' claim is adverse to the right set up by the defendant’slessors.
1 would further add that, since the decision in Punchirala v, Mohi-aeem,1 it can hardly be said that the current of local authority is infavour of the appellant’s contention.
With regard to Mr. Bawa’s ingenious suggestion that the defendantmay be regarded as the assignee of the rights of his lessors as fidu-ciaries against the fidei commissary, I will only say that this viewappears to me to be quite inconsistent with the terms of the leaseand the capacity in which the lessors purported to act.
X>b Sampayo A.J.—
TTia Lordship stated the facts, and continued:—
The plaintiffs’ title turns on the question whether the revocationof the deed of gift is good in law so far as the plaintiffs are concerned.There is no dispute between the parties that the deed created avalid fidei commissum, but it is contended on behalf of the defendantthat there was no acceptance by the plaintiffs, and that thereforeit was within the power of the donor to revoke the ultimate gift tothe plaintiffs. There is no doubt that under the Boman-Dutch laweven a fidei commissary gift may be revoked by the donor beforeacceptance by the fidei commissary (Voet 39, 5, 43), but I thinkthat in the case of gift to a person subject to a fidei commissum infavour of his descendants the Boman-Dutch law recognizes anexception, and regards the acceptance by the immediate donee as asufficient acceptance on behalf of the descendants as well. Thiswould undoubtedly be so if the fidei commissaries were alive and thedonee was otherwise competent to. accept a gift on their behalf, as,for 'instance, where the fidei commissaries are minors or in uteroVoet 39, 5, 12). I think the law is the same in the case of anunborn generation. In view of the general principles of the Boman-Dutch law, and especially on ‘the express authority of Ferezius(Do Donat LV., 12), it was so decided by the majority of the Judgesin John Perera■ v. Avoo Lebbe Marikar 2 which I consider a bindingdecision in this point. Burge, Vol. II., pp. 149 and 150. whereother Boman-Dutch authorities are cited, is to the same effect. Inthe passage above referred to Perezius had spoken of a donationwhich, though given to one person, contemplates his family :donatio uni facta concemat favorem familiee in qua vuIt rem donatamrnanere donator, and it was argued on behalf of the appellant inthis case that the exception to the rule -of personal acceptance thereallowed must be confined to the case of fidei commissum in favourof a familia which includes other people besides children anddescendants. But no such distinction is intended, and the reasoning
' (1884) n N. L. R. m.
* (1884) 6 S. C. C. 138.
1914.
I/ABCBMJ5B
G.J.
Soysa v,Mohideen
( 284 )
1914.
iVa SampayoA.J.
applies even more strongly to a fidei commissum in favour of afamily in the narrower sense of a man’s own children and descend-ants. Perezius means to lay down generally that acceptance bythe immediate donee, who is the head of the family, i6 valid accept-ance on behalf of all those who follows him, and that, then, the entiredonation is considered perpetua or at once complete in respect ofall the succeeding beneficiaries. This appears to be the view takenby the Supreme Court in John Perera v. Avoo Lehbe Marikar,1 forthere, too, the fidei commissum was in favour of the descendants ofthe immediate donee, and not of her family in the technical sense.I am therefore of opinion that the fidei commissum created by thedeed of gift remains unaffected by the attempted revocation on thepart of the donor, and that the plaintiffs are presently entitled to ahalf share of the property.
The defendant’s claim for compensation presented some difficulty,especially in view of certain decisions of this Court; and thatquestion was accordingly referred to and re-argued before a Benchof three Judges. A lessee is not a bona fide possessor, and is thereforenot entitled to compensation for improvements on that footing. TheRoman-Dutch law, however, recognizes his right to compensationfrom the lessor in respect of improvements made by him with theconsent of the lessor, as decided in the well-known case of De BeersConsolidated Mines v. London and Soutfi African Exploration Co.,3and the defendant in the present case would no doubt be able tomaintain his claim against his lessors Herbert Edwin and. Albertin pursuance of the agreement contained in the deed of lease. Thecase of Mudianse v. Sellandyar,3 however, went a step further, andgave compensation to the lessee against the vendees of the lessor.The Bame thing appears to have been done in the South African caseof Scrooby v. Gordon & Co.,4 a note of which I find in Boos and Reitz sPrinciples of Roman-Dutch law, at page 195. But these casesare explainable by the consideration, that a singular successor likea purchaser becomes, in respect of a lease, entitled to the rights andsubject to the obligation of the lessor, but a fidei commissary doesnot derive title from the fiduciary but independently of him. Theother local case, Muttiah v. Clemerds,5 appears at first sight to havegone even beyond this, blit there were specials circumstances attach-ing to that case which might be said to have induced the decision.’The defendant Clements took an informal lease from the incumbentof a Buddhist temple at a time when the incumbent was competentto deal with temple property, and after the Buddhist TemporalitiesOrdinance came into operation the trustee thereunder appointedgave a lease to the plaintiff Muttiah. In these circumstances.Muttiah might be regarded as being substantially in the same
1 (1M4) 6 S. C. O. 138.8 [1907) 10 N. L. R. 193.
1 10 8. C. 259.(1904) T. S. 9 .
, 8 [1900) 4 N. L. R. 158.
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position as the purchaser in the oases above referred to. Moreover, 1*14.there was evidence Ithat the trustee after his appointment had jjg Sampayoconsented to Clements going on with the cultivation, in respect of A-J-which compensation was subsequently claimed. I therefore think Soyaav.that the two decisions of this Court, which mainly necessitated tire Motafeenreference of this case to the Full Court on the question of compensa-tion, do not conflict with the principle of the Boman-Dutch law thata lessee does not stand in the position of a bona fide possessor, andcannot, except within the limits above mentioned, claim compensa-tion against the true owner for the time being. Mr. Bawa, for thedefendant, however, sought to put the cjaim on another basis. It isgood law that a fiduciary, when he hands over the property to thefidei commissary, is entitled to claim compensation for any usefulimprovements he may have made during his possession (Voet36, 1, 61) and probably Herbert Edwin’s legal representative mightmake such a claim in respect of the improvements made throughhis lessee, the defendant. It was thereupon argued that the effectof the stipulations in the lease was to assign to the defendant'Herbert Edwin’s claim to compensation against the plaintiffs andhis right of detention in respect thereof. But it is impossible toconstrue the lease as having the effect of 6uch an assignment. Thelessors, as a matter of fact, thought that they were entitled to theproperty free of any fidei commissum. The provisions of the leasewere a pure matter of contract as between them and the defendant,and the defendant himself in his answer made his claim on thatfooting and on a denial of the existence of any fidei commissumat all.
I think the appeal fails on all points, and should therefore bedismissed with costs.
Pereira J.—
The only question in this case with which I am concerned as oneof the Judges constituting the Full Court is whether the defendantis entitled to succeed in his claim for compensation for improvements,because that was the only question referred to the Full Court fordecision. Admittedly, the defendant occupied the land claimed bythe plaintiffs as a lessee, not of the plaintiffs, but of one of thefiduciarii on deed D 1 filed of record. It is now well-settled law inthe Colony that, in order to be entitled to compensation for improve-ments, a person should have had, not only possession of the propertyimproved, but bona fide possession of it. By “ possession ” is heremeant what was known to the civil law as the possessio civilis asdistinguished from the possessio naturalis. The former, of course,meant detentio animo domini (3 Burge). At one time it was thoughtthat, in Ceylon, even a mala fide possessor might recover compen-sation for improvements, and that a lessee might also, in certain
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1014. circumstances, even in the absence of express or implied agreementPw!TtmitA j with the lessor* do so. But all doubts as to the absence of light in a——mala fide possessor to recover compensation for improvements were
Moh^aon set rest by the judgment of the Full Court in the case of-The(general Ceylon Estates Co., Ltd., v. Pulle.1 See also 'Comelis v.Endoris2 As regards the lack of any such right in a lessee, the deci-sion in the case of Punchirala v. Mohideen* is the latest pronounce-ment by this Court. .As pointed out by Kotze, Chief Justice of theTransvaal, in ' his Translation of Van Leevwen’s Commentaries(Vol. II. p. 112, ?iote), a lessee has no possession (possessio civilis)of the land that he enjoys on the lease, nor can his enjoyment of theland, if it is to be deemed possession at all, be said to be " bona fidepossession1' in the sense in which that expression is understood inth,e law relating to compensation for improvement, because heknows that the land he enjoys does not belong to him (see 3 Burge16, 22 ; Voet 41, 3, 6). He therefore has in.no sense of the termthe right to compensation for improvements that is vested in aperson in bona fide possession of land. It has. been said that thisCourt has recognized the fact that the so-called possession of alessee as much as that of a trustee may in certain circumstances besuch as to give him a right to institute a possessory action in respectof the land leased. That may be so, although personally I have toconfess to some difficulty in appreciating the force of the.reasons forthe decision relied on. In any particular case, however, like thosereferred to the plaintiff may be invested with certain rights so akicto ownership that it would be inequitable to refuse to him the rightto maintain a possessory suit, but the concession of such a right to aperson will not necessarily vest him with the right to compensationfor improvements ; and, moreover, the fact that a person has beenin mala fidei possession of land is .no bar to his maintaining a posses-sory action in respect of that land. The cases relied on have noapplication to the question arising in this case. A lessee, .however,is not without his rights in respect of improvements made by himon the property leased. As explained by Chief Justice Maasdorp{Maas. Inst.r Vol. 11., pp. 56, 57), a lessee who makes improvementson the property leased with the consent or acquiescence of the lessorhas a right to compensation, and also a tacit mortgage, for the valueof the materials-, over the property improved. This, of course, is aright resulting from contract, and* it cannot be enforced as againsta person who is no party to the contract. It may be that the lessoror his legal representative may claim the benefit of the lessee'simprovements and be entitled to compensation. The questionhere involved does not arise in the present case, and need not befurther considered. In view of th.e fact that the plaintiffs in thepresent case are the heirs of the defendant’s lessor, it may be
'9N.L.R.90'3A.C.JR.13.
* (1910) 13 L. P. 193.
mentioned that they do not sue as bis legal representatives/ butas having acquired the property in claim from an independentsource, that is to say, by operation of the fidei cornmissum createdby deed D 1.
For the reasons given above, I am of opinion that the defendantis not entitled to the compensation claimed by him.
1914*
Pbrbiba J.
Soyea v,Mohideen
Appeal. dismissed.