Vincent and Others V. James and Others

031-SLLR-SLLR-1982-1-Vincent-and-Others-V.-James-and-Others.pdf


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SUPREME COURTVincent and OthersV.James and Others
S.C. 63/80 — CA 440/72 (F) — D.C. Colombo 11266/2
Right of Way — Personal or praedial — No presumption of Personal Servitudes.
Intention of Parties.
One D.D. William Appuhamy owned a land called Beliwetiya Kumbura.By Deed No. 996 he conveyed a portion 17.89 perches in extent to oneMona Violet Barnes Mack D.A’s predecessor in title “subject to the rightof way over the cart road along the Eastern boundary of the said premisesin favour of the said vendor".
It was argued that the Deed No. 996 created only a personal servitudebecause the reservation of the cartway was in favour of the vendor andthere was no mention of his heirs executors, administrators or assigns.
Held (1) that where a deed provides a right of way meant to serve asaccess for an owner of the neighbouring land the ingredients of apraedial servitude are there. Hence in this case the servitude wasmeant to benefit the owner of the neighbouring land and pass to hissuccessors in title.
(2) that the omission to mention successors in title was no pointerto the ir.t'.Vtr;- / ••••!•?■;
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APPEAL from judgment of the Court of appeal
Before:
Samarakoon Q.C., C. J., Ratwattc J. andSozaJ.
Counsel:
L. de Silva. Senior Attorney with
N.S.A. Goonetilakc and N. Mahendrafor Appellants.^
H. Samaranayake for substitutedPlaintiff-Respondents.
Argued On:8.3.82
Cur. adv.vult.
Decided On:
8.4.1982
SOZA J.
The only question which arises in this appeal is whether the DeedNo. 996 dated 18th November 1932 (P6) creates a personal servitudeor a praedial servitude over the portion of land called BeliwetivaKumbura alias Higgaha Kumbara described in Schedule B of theplaint filed in this case.
One D.D. William Appuhamy at one time owned the land calledthe divided Eastern half part of Beliwetiya Kumbura alias HiggahaKumbura of an extent of about 6 1/2 Kurunies paddy sowing areawith owita land.
William Appuhamy by the deed No. 996 of 1932 marked P6conveyed a divided portion of this land in extent 17.89 perches asdepicted in plan No. 940 dated 12th June 1932 made by G.L.Schokman Licensed Surveyor to Mona Violet Barnes Mack “subjectto the right of way over the cart road along the Eastern boundaryof the said premises in favour of the said vendor". The cartroadgives access to the Wijayamangalarama Road through a connectingfootpath. Several plans were prepared for the case. For the purposeof the trial plan No. 996 dated 21.3.1966 made by D.A. MendisLicensed Surveyor marked X and showing the disputed road as LotD in Plan No. 1010 X dated 9th October 1970 made by S. Lokanathan
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Licensed Surveyor marke,d 7(1 showing the road claimed as it leadsto Wijayamangalarama Road were adopted in the issues.
It is argued that the deed P6 created only a now extinct personalservitude over the 1st defendants land because;
the conveyance is free from all encumbrances,
the reservation of the cartway is. in favour of the vendor andthere is no mention of his heirs, executors, administrators, or
assigns.
De Sampayo J in the case of Misso v Hadjear (1) defined theexpression “incumbrance" as follows:-
“In the largest sense it means any kind of burden on ordiminution of the title, and in a narrower sense it is generallyemployed to indicate a mortgage or charge upon the property. ”
In the case cited the land was sold “free from all and anyencumbrance whatsoever”. It was held that “when a property is soldin such a way as to vest full and absolute dominium in the purchaser,freedom from such burdens as servitudes is also necessarily warranted”(p. 280).'In the instant case however the expression “free from allencumbrances” must be read subject to the express grant of a rightof cartway in the same deed. Therefore the expression “encumbrances”as used in P6 must be understood in the narrow sense as meaning"mortgage or charge”. The statement in the deed that the conveyanceis free from all encumbrances means no more than that there areno burdens other than those mentioned in the deed. Even if weregard the right reserved in the deed P6 as a right to a personalservitude it is a personal right to the enjoyment of what necessarilyis a praedial servitude.’ In any event a personal servitude involvingland is an. encumbrance on that land – see Hall and-Kellaway (1942):Servitudes p. 147 and Ex parte Geldenhuys^. Hence the declarationin the deed P6 that the conveyance is free of all -encumbrances isof no relevance to the'', question before us.
The second point that ’is. being made is that the'reservation of theservitude is only for the benefit of the vendor. The fact that thereis no mention of “heirs executors, administrators and assigns” of thevendor is relied on as supporting the inference that the servitutalright referred to in the deed was not transmissible and this is one
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of the indicia of personal servitudes. Innes J in the case of Willoughby’sConsolidated Co. Ltd. v Copthall Stores Ltd3 said:
“From the very nature of a personal servitude the right whichit confers is inseparably attached to the beneficiary. Res servitpersonae. He cannot transmit it t'o his heirs, nor can he alienateit; when he dies it perishes with him."
It may be added for the purpose of completeness that if there isan agreement or custom permitting alienation as is usually the casewith mining servitudes there can be an alienation of a personalservitude. Inalienability is generally speaking a trait of personalservitudes. •
A praedial servitude is one which vests in an individual becausehe is owner of a praedium. On the other hand a personal servitudeis one in which res non servit rei but res servit personae. Usufructuis,usus and habitalio are personal servitudes par excellence becausefrom their very nature, they must always be personal. The categoriesof personal servitudes are however not limited to usufructus, ususand habitatio. There can be other personal servitudes too. Forexample servitudes normally praedial if constituted in favour of aperson as such and not as owner of property are treated as personalservitudes (Lee. Honore <6 Price: The South African Law of Property.Family Relations and Succession (1954) p. 40; Willoughby 's ConsolidatedCo. Ltd v Copthall Stores Ltd (supra) p. 281; and Hall and Kellaway:Servitudes (1942) pp. 6, 7). Willoughby’s case (supra) was sent backby the Privy Council for further investigation and was once againup before a bench of five Judges in the Appellate Division. InnesC.J. who presided had occasion to make the following observationson the question of real and personal servitudes created by agreement^:
“Whether a contractual right amounts in any given case to aservitude-whether it is real or only personal – depends uponthe intention of the parties to be gathered from the terms ofthe contract construed in the light of the relevant circumstances.In case of doubt the presumption will always be against aservitude; the onus is upon the person affirming the existenceof one to prove it.”
In the instant case it is not disputed that the deed P6 created aservitude. The only question is whether the servitude is personal or
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praedial. On this question Herbstein J had the following commentsto make in the case of Ex parte Minister of Irrigation
“I have been unable to find any authority laying down thatin case of doubt a servitude must be presumed to be personalrather than real. But 1 would point out that Voet (8.1.1. and8.4.15) suggests that when the term servitude is used withoutqualification, it is usually a real servitude which is meant.”
No firm view however was expressed by Herbstein J that anyambiguity on whether a servitude is personal or praedial should beresolved by holding the servitude to be praedial.
The princt'ple of Roman-Dutch Law is that clear and cogent evidenceis required before a servitude will be held to exist. There is noprinciple of law however that in case of ambiguity the Court wouldlean towards the construction that the servitude created is a personalservitude rather than a praedial servitude on the basis that the formeris less, onerous. A decision as to whether a servitude is personal orpraedial must in case of doubt always depend on the facts andcircumstances of the particular case. As Holland Kellaway (ibid) p. 7: say.
“The essential difference depends upon whether the servitudeis constituted in favour of a particular piece of land or not
and in case of doubt the intention of the parties
gathered from the terms of the contract which is to be construedin the light of the circumstances of the case will be the decidingfactor.”
No presumption can be brought into play. There is no case lawsupport for invoking any presumption either way.
On the question of personal servitudes involving a right of way itwill be of interest to refer to two cases which are usually cited. Thefirst is the case of Fernando v Jayasuriytfi. The servitude thererevolved round the personal skills of the occupant of the adjoiningland. Hence the servitude was regarded as a personal servitude. Thesecond is the case of Wijeyesekere v Vaithianathan?. In this case thegrantor had mortgaged a parcel of land and thereafter gifted it addinga right of way. It was held that the right of way did not becomeaccessory to the mortgage. The circumstances of the gift showed that
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only a personal servitude for the benefit of the donee was intended.In neither case did the Court apply any presumption.
Where a deed provides a right of way meant to serve as accessfor an owner of a neighbouring land the ingredients of a praedialservitude including the requirement of a servient tenement and adominant tenement are there. In the instant ease the servitutal rightcreated is meaningless if it is not meant to benefit the adjoiningland of the vendor. The failure to mention the successors in title ofthe vendor is no pointer to the intention of the parties. It is in factinconceivable that the vendor on P6 would have been content witha personal servitude. He was the owner of the adjoining land andwithout access along the eastern boundary of the corpus sold hewould have been virtually landlocked. The alternative access shownruns through three fenced lots and is obviously legally insecure andvulnerable owing to the intervening lots to be crossed before thepublic road is reached — See application of tracing of Dehiwela-MountLavinia Town Survey Street No. 29 prepared by S. JokanathanLicensed Surveyor on 15.10.1970 marked X3. If William Appuhamydecided to sell the land he was left with after he executed P6 hewould have had no stable access to offer his purchaser. In the eventof such a sale he would be left with a personal right of cartwayover the corpus sold which would be of no use to him. Thereforethe conclusion is justified that the deed P6 created a praedial servitudein favour of William Appuhamy as owner of the adjoining land.
Reliance was also placed on the absence of any mention of theservitude in the deeds set out in the devolution of title of the 1stdefendant-appellant after P6. But from this it cannot be inferred thatthe servitude created by P6 was not transmissible. The benefit andthe burden of a servitude are inseparable from the land to whichthey are attached. They pass with the land to every succeeding owner- see Lee. Honore and Price (ibid) p. 24, Hall and Kellaway (ibid)
As Voet (8.1.2) has said:
“The possessor of a farm burdened with a servitude.cannot sell thesame unburdened.”
p. 2, Suppiah v Ponnampalam
id) p. 24, Hall and Kellaway (ibid)8 and Maheswary v Ponnudurai $
And again Voet said (8.1.6):
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“The imposition of real servitudes moreover burdens everysuccessor, whether universal or particular, to the servienttenement, and contrariwise benefits those who succeed to thedominant tenement, the tenements, that is to say, passing alongwith their burden.”
The 1st defendant-appellant cannot have a better title than whatMrs. Mack his predecessor had on P6. On the other hand theservitutal rights of William Appuhamy held by him as owner of thedominant tenement have by deed passed to the original plaintiff andon his death now to the respondents substituted in his room.
There were some other matters of contention between the partiesbut-these1 have been sufficiently dealt with by the learned trial Judge■ and Court of Appeal and do not require discussion by us.
The Judgment of the Court of Appeal is affirmed. As the respondentsdid not file written submissions their Counsel was not heard by usand therefore they are not entitled to costs.
The appeal is accordingly dismissed without costs.
SAMARAKOON, C.J. — I agree.
RATWATTE, J. —I agree.
Appeal dismissedReferences: 1 2 3 4 5 6 7 8 9
1.(1916) 19 NLR 277, 278.
2.(1926) O.P.D. 155
3.(1913) A.D. 267, 282
4.Willoughby's Consolidated Co. Ltd v Copthall Stores Ltd (1918)
A.D. 1, 16.
5.(1948)'2SALR779, 785.
6.(1949)50NLR564
7.(1938)40NLR318
8.(1911)14NLR229
9.(1957)59NLR498