Vaz v. Hanijfa
1848Present: Dias and Basnayake. JJ.
VAZ, Appellant, and HANXFFA, Respondent.
S. C. 7—D. G. Colombo, 138/Z
Co-oumer—Lease of common property—Sight to lease more than undivided share.
A co-owner has no right to lease more than his undivided share of the commonproperty.
1 U892) 1 S. C. B. 326.• (1894) 3 S. C. B. 35.
DIAS J.—Vox v. Haniffa
PEAL from a judgment of the District Judge, Colombo.
E. B. Wikramanayake, for the defendant, appellant.
M. I. M. Haniffa, for the plaintiff, respondent.
Cur. adv. wit.
March 18, 1948. Dias J.—
The premises known as Nos. 36, 38 and 40, Dam street, Colombo,belonged to (1) M. M. M. Nazim, (2) M. M. M. Nalir, (3) M. M. H. Mamida,
M. M. Sithy Ravha, (5) M. M. Nooraima, (6)- M. M. Sithy ZahiraUmma, (7) M. M. Umma Nasima and (8) M. M. Sithy Hanidu Umma.The second and third of these persons were minors. In D. C. ColomboCuratorship Cases 4,124 and 4,216 Nazim was appointed their curator.
By an indenture of lease marked “ P ” and dated January 17, 1941,Nazim, Nooraima and Sithy Zahira Umma had purported to grant alease of the whole property to the defendant for a term of five yearscommencing from February 1, 1941. Not only was the consent of the• Court not obtained for the leasing of the minors’ interests, but it isdoubtful whether a curator had been appointed to safeguard their in-terests at all. There is also nothing to show that the other co-ownerswho did not join in the lease consented to what was done. The DistrictJudge has held that the defendant was well aware of .the true position.
The rental was fixed at Rs. 125 per mensem. The lease expired onFebruary 1, 1946.
By deed P2 dated February 8, 1945. all the co-owners including theminors acting through their curator conveyed the premises to the plaintiff.It is common ground that thereupon the defendant became the tenantof the plaintiff.
In this action the plaintiff alleged that his vendors being Muhameddansthe males were each entitled to 2/10ths and the females to l/10th. Hefurther contended that the effect of the lease P was merely to demise4/10ths of the premises to the defendant. The plaintiff therefore claimedthe rent under lease'P in regard to 4/10ths and in regard to the balance6/10ths a sum of Rs. 350 per mensem as being a reasonable rental.
The District Judge has found that the plaintiff was entitled to receiveRs. 130 as the 4/10ths share of the rent up to the end of May, 1945, and forthe other 6/10ths a sum of Rs. 312 up to the end of May, 1945. He alsoawarded damages fixed at Rs. 130 for the month of June, 1945, and Rs. 350per month from July, 1945, until the defendant is ejected and the plaintiffwas restored to possession.
It was argued that one co-owner was entitled to lease the whole ofthe common property. It was submitted that a co-owner was entitledto possess the whole of the common land, and that the possession of oneco-owner was the possession of all the co-owners. If one co-ownercould possess the whole land, he could possess through a servant or anagent; and if through a servant or agent, why not through a lessee ?It was conceded that the co-owner would be liable to account to the otherco-owners for their share of the rent. Furthermore, if one co-owner
DIAS J.—Vaz v. Baniffa
was dissatisfied, he had his remedy by seeking a partition. A co-ownermay give a lease of his undivided share in a land but he has no right tolease anything more than his share. The rights of a co-owner to dealwith the undivided property was considered fully in the recent judgmentin Vanderlan v. Vanderlan 1. The right of a co-owner to enter into alease in regard to the whole property is not one of the things a co-ownermay do. In the case of Thamboo v. Annammah 2 it was laid down thata co-owner was not entitled to grant a servitude over even a portionof the common land without the concurrence of the other co-owners.It might at first sight seem that the case of Perera v. Perera3 is an authoritythe other way. An examination of the judgment of Jayewardene J.shows that it is not so. The question which arose there was whetherone co-owner had effectively prescribed against his co-owners. It washeld that where one of several co-owners leased the entire property, thepossession of the lessee enured to the benefit of the co-owner who grantedthe lease. That is not an authority for the general proposition that oneco-owner is legally entitled to lease the whole of the common land. InWille on Landlord and Tenant (3rd Ed.) p. 13 it is said : “ A co-ownerof undivided property who lets any portion of it without the knowledgeor consent of his co-owners must account to the latter for his share ofthe profits derived from the lease ; if a co-owner desires to lease a portionof the property as if it were his own, he can always protect himself byclaiming a division of the property before entering into the lease ”. Iam, therefore, of opinion that the lease P was effectual only as regards4/10ths of the common property. The District Judge has held that thedefendant was well aware of the true facts, and it is impossible on appealto say that his view is erroneous. When the plaintiff became the ownerof the whole property, he was entitled to call upon the defendant to payrent in regard to the balance 6/10ths of which he was in possession.
It was also urged that the damages awarded are incorrectly assessed.I am unable so to hold. The appeal is dismissed with costs.
Basnayake J.—I agree.
« (1940) 41 :V. L. R. at p. 549-50.s (1934) 36 N. L. R. at p. 333.
» (1932) 10 T. L. R. 11.
VAZ, Appellant, and HANIFA, Respondent