118-NLR-NLR-V-54-V.-APPU-NAIDE-et-al-Appellants-and-V.-DINGIRI-NAIDE-et-al-Respondents.pdf
484
Appu Naide v. Dingiri Naide
1952Present: Pulle J. and L. M. D. de Silva J.V. APPU 1STAIDE et al., Appellants, and V. DINGIRI NAIDEet al., Respondents
S.C. 42—D. C. Matale, P. 206 (271)
Co-owners—Advantage gained by some at the expense of the others—Trusts Ordinance(Cap. 72), s. 92.'
Where certain co-owners obtained a Crown grant in their favour to the ex-clusion of the other co-owners by wilfully suppressing at the “ settlement ’’inquiry the fact that the latter were entitled to shares—
Held, that, by operation of section 92 of the Trusts Ordinance, the title ofthe holders of the Crown grant was subject to a trust in respect of the shares ofthose co-owners whose rights had not been disclosed.
PPE AT. from a judgment of the District Court, Matale.<■
G. Weeramantry, for the defendants appellants.
S. C. Ratwatte, for the plaintiffs respondents.
Cur. adv. vult.
PCLLE J.—Appu Naide v. Dingiri Naide
485
December 29, 1952. Pulle J.—
The principal question which arises for determination on this appeal is-whether the learned District Judge was right in holding that the corpus-to be partitioned should be restricted to lot A shown on Plan PI or whether,,as contended for by the appellants, it should be both lot A and thecontiguous lot B.
By a series of deeds commencing from 1902 one Kapuru Naide and hissister Menikhamy became owners in equal shares of a land calledMiiiskuttawe Hena which admittedly is the land 'comprising lotsA and B referred to above. Menikhamy was married to Dingiri Naide,the 1st plaintiff, and after her death in 1909, the 1st plaintiff marriedPunchihamy, who is the 2nd plaintiff. By a deed of 1917 Kapuru Naidetransferred his half share to the 1st and 2nd plaintiffs and in 1945 theygifted, subject to their life interest, a half share of the land which cannow be identified as lot A to their daughter the 3rd plaintiff.
The 1st defendant is the son of the 1st plaintiff by Menikhamy and the2nd defendant is a granddaughter of the 1st plaintiff and Menikhamy.The case for these defendants is that, according to Kandyan law, upon thedeath of Menikhamy her half share devolved equally on the 1st defendantand his brother Kirihamy, the deceased father of the 2nd defendant, andthat they are entitled to this half share not only out of lot A but out of lotB as well. The claim of the defendants to have lot B included in the corpussought to be partitioned and to be declared entitled to their shares thereinwould be incontrovertible but for a transaction which took place on the27th April, 1933. On this date, for a consideration of Us. 8 paid bythe 1st and 2nd plaintiffs, the Crown executed a grant in their favour ofan allotment of land which is identifiable with lot B.
In regard to this Crown grant the contention which has prevailed is thatlot B became the absolute property of the Crown as a result of proceedingstaken under the Waste Lands Ordinances and that the transferees underthe grant succeeded to an indefeasible title. In other words, the title onwhich the defendants based their claim could not avail them as againstthe Crown grant. In our opinion there is no evidence to warrant the findingthat after an inquiry duly held under the Waste Lands Ordinance lot Bhad been declared the property of the Crown. (The nominal considerationof Rs. 8 rather indicates that lot B was sold preferentially, to the 1stand 2nd plaintiffs because they claimed to be in possession under what iscommonly known as village title.) As there is no proof that the Crown wasin a position to convey an indefeasible title to lot B the claim of thedefendants as against the 1st and 2nd plaintiffs to a a share each inlot B has been made out beyond any doubt.
There is yet another reason why the defendants are entitled to succeed.It would appear that the 1st plaintiff claimed lot B at what is called a“ settlement ” inquiry. While disclosing that he and bis wife, the 2ndplaintiff, held shares he wilfully suppressed the fact that the defendants toowere entitled to shares as successors in title of his first wife, Menikhamy,and thereby obtained the advantage of a Crown grant in favour of onlyhimself and the 2nd plaintiff. The 1st -plaintiff explained his conduct by2*J. N.B 27309(6/53)
486
Fonselca v. Sellalhurai
stating that it was his intention to give to the defendants, in due course,their shares in lot B; His evidence leaves no room for doubting that, if theclaims of the defendants had been disclosed by him, the Grown grant wouldhave been made out in the joint names of the defendants and the twoplaintiffs. In the circumstances, by operation of section 92 of the TrustsOrdinance, the two plaintiffs must hold their title to a half share in trustfor the defendants.
In the result the appeal succeeds to the extent that lot B must be inclu-ded in the corpus and that the defendants must be declared entitled eachto a J share of that lot. The appellants do not press their claims to thehouse which has been allotted exclusively to the 1st plaintiff. The inter-locutory decree will be modified to give effect to our decision. The 1st and2nd plaintiffs will pay to the defendants the costs of appeal. The costs ofcontest in the Court below will, as already provided, be divided.
Xi. M. D. de Suva J.—I agree.
Appeal allowed.