GRATIAEN J.—Rodrigo v. Narayanasamy
1955Present: Gratiaen J. and Pulla J.W. M. H. C. RODRIGO, Appellant, and
K.V. NARAYANASAMY, Respondent
S.C. 349—D. C. Colombo, 5,664 L
f.'o-oicners—Amicable partition—Right of way—Express grant or reservation necessary.
’When land -which is owned in common has been amicably partitioned, a
former co-owner is not, as a general rule, entitled to claim a right of way overa portion allotted to another co-owner unless it has been expressly grantedor reserved in the cross-conveyances executed by the co-owners, even thougha well-defined footpath had existed prior to the severance of tho commonproperty.
./^.PPEAL from a judgment of the District Court, Colombo.
N. K. Choksy, Q.C., with Eric Amerasinghe, for the defendant appellant.
– H. W. Jayeioardene, Q.G., with E. Gunaratne and P. Rarxisingke,for the plaintiff respondent.'
Cur. adv. mill.
February 8, 1955. Gratiaen J.—
This is an. appeal against a judgment declaring that the defendant isnot entitled to a right of way over the plaintiff’s contiguous allotmentsof land depicted as Dl, El and FI in the plan filed of record.
The defendant- and his sister Jane Wijetunga had admittedly beenco-owners of a larger land including lots.Dl, El and FI. In order toimplement an agreement to partition-the .land, two contemporaneousnotarial deeds of exchange ,P5 and P7 were executed in 1944. By P5the defendant conveyed the entirety of his undivided interests in lotsA, B, Dl, El, and FI to Jane Wijetunga and she in turn conveyed tohim all her interests in lots C, C3,-D,. E, F and G by P7. . Each ofthem accordingly became (to the exclusion of the other) the solo ownerof separate land comprising the several allotments conveyed by P5 andP7 respectively. At a. later date, the, plaintiff succeeded to JaneWijetunga’s rights by purchase….
It is admitted that, before the date of the amicable partition referred tothere was a well-defined footpath which proceeded across lots Dl, Eland FI and then continued beyond FI until it reached a main highwayleading to Colombo. This footpath had previously been used by boththe defendant and Jane Wijetunga in the exercise of their rights ofcommon ownership. The defendant’s claim is that, upon a trueconstruction of the conveyances P5 and P7 in his favour, he either ac-quired or reserved to himself a servitude entitling him to continue to usethis particular section of the footpath (with which this action is aloneconcerned) es owner of the dominant tenement comprising his contiguous
GKAIIABN J‘.—Rodrigo v. Narayanasamy
•allotments C, D, E, F and G. His alternative submission that he had. acquired the alleged servitude by certain other means was abandoned at- the trial and does not' now arise for our consideration.
' The terms of the conveyance P7 by Jane Wijetunga in favour of thedefendant did not eXpi'essly purport to grant him the servitude whichhe claims to have acquired ; it is even more significant that the servitudewas not expressly reserved in his favour in the contemporaneous deedP5 whereby his interests in Dl, -El, FI were, without express qualification,
■ oonveyed to his sister. Nevertheless, it was argued at the trial that theservitude was either granted by implication (under P7) or reserved byimplication (under P5). In my opinion, the rejection of these submissionsby the learned Judge was perfectly correct.-
Under the Roman-Dutch Law, a servitude cannot as a general rulebe' granted by. mere implication—Meiyappa Chettiar v. Rama&amyCheitiar l. Similarly with regard to the grant of an easement under theEnglish Law. The exceptions to the general rule fall within the sameprinoiple in both systems. In the ultimate analysis, of course, thequestion always turns on the truo meaning of a particular writteninstrument.
The argument that Jane Wijetunga’s conveyance P7 had by implicationgranted a right of way^over lots Dl, El and FI (as servient tenements)in favour of lots C, D* E, F and G (as dominant tenements) could onlyhave sucoeeded upon-convincing proof that the use and enjoyment oflots C, D, E, F and G would otherwise be rendered virtually ineffectual.It was not sufficient to show that the footpath had in fact boon used beforethe partition took place.; the defendant had also to establish that itscontinued use after the severance of the common property was, even ifnot absolutely essential, at least/* reasonably necessary for the reasonableand oomfortable enjoyment of the part granted ”—i.o., of lots C, D, E, F .and Q,—per Bowen. L. J. in Bayley v. O. W. R. Co.'- The evidence infact indicates that there were other reasonable and equally convenientmeans of access from these allotments to the main highway.
. In the circumstances of the present case, the failure of the defendantto reserve the servitude in his favour in express terms in the cross-conveyance P5 not merely affords a very strong additional argumentagainst his claim ; it conclusively destroys his case. The deeds of ex-change were contemporaneously executed in order to implement amutual agreement between the co-owners. They must ho road togetherin order to ascertain the common intention of the parties, and in thiscase an implied grant of a.servitude should not be read into the terms ofP7 unless its implied reservation in Po can be inferred with equalpropriety.
A reservation of a servitude by a grantor in his own favour mustgenerally be made in express terms—• Wheeldon v. Burrows 3.“ Two well-'
established exceptions relate to (servitudes) of necessity and mutual(servitudes) such, as rights of support between adjacent buildings. Butthese two specific exceptions do not exhaust the list which is indeed
. ■,* (1939) 41 N. L. R. 324 at 327r –a (1884) 20 Ch. D. 434 ut 453.
* (137.9) 12 Ch. D. 21. .
NAGAL.INGAM S.P.J.—Ramaaamy Kona v. Qinigoihtna Police
incapable of exhaustive statement, as the circumstances of the particularcase may be such as to raise a necessary inference that the common intentionof the parties must have been to reserve some (servitude) to the grantor, orsuch 03 to preclude the grantee from denying the right consistently with goodfaith ”—per JenkinB L. J. in Sandom v. Webb 1. The Court there heldthat a claim based on an implied reservation of an easement must failunless the grantor can show that the facts were “ not reasonablyconsistent with any other explanation It is idle to suggest that thedefendant has satisfied this formidable test. I would therefore dismissthe appeal with costs.
Petlle J.—I agree.
W. M. H. C. RODRIGO , Appellant, and K. V. NARAYANASAMY, Respondent