SILVA et al. v. SILVA et al.

Present : The Hon. Mr. A. G. Lascelles, Acting Chief Justice, and
Mr. Justice Wendt.

SILVA et al. v. SILVA et al.

D. C., Galle, 6,462.

Co-owners, rights of-Erecting building without consent-Improvement-Compensation-Bight to remove building-Partition Ordinance (No. 10 of 1863), ss. 2 and 5.

One of several co-owners of a land has no right to build on the common property without the consent of the other co-owners. Where a co-owner does so, he has no right to compensation from the other co-owners, unless it could be shown that the building of a house on the land was a use of the joint property which would naturally have been in the contemplation of the parties.

Where in a partition suit the District Judge ordered that a building put up by one of several co-owners against the wish of some of them should be included in the corpus to be partitioned, and that each of the co-owners should get his share out of the corpus so made up without any payment of compensation,-

Held, that the decree was wrong and should be amended by giving the co-owner who put up the building liberty to remove the same, in the event of its being allotted to any one of the objecting co-owners.

LASCELLES A.C.J.-An objecting co-owner has no right to take the benefit of the improvement without paying compensation.

LASCELLES A.C.J.-The improvements referred to in sections 2 and 5 of the Partition Ordinance (No. 10 of 1863) are improvements for which compensation is payable under the common law of Ceylon,

THIS was a partition suit in which the 21st and the 124th defendants claimed compensation for a house built by them on the common property. The plaintiffs objected to the building of the house by these defendants at the earliest opportunity and took steps to have them restrained by injunction from doing so; but the injunction was refused. The District Judge disallowed the claim of the 21st and 124th defendants to compensation and ordered that the building should form part of the corpus to be partitioned among all the co-owners of the land according to their respective shares. On the question as to the right of one co-owner to build on the common property without the consent of the other co-owners the District Judge (G. A. Baumgartner, Esq.) held as follows: -

" 6. The conditions under which co-owners are allowed to enjoy the common property are referred to in Siyadoris v. Hendrick(1), where Chief Justice Bonser said: -' There is little to be found in the books as to the rights of co-owners under Roman-Dutch Law. Voet says: -Invito autem unosocio nihil novi per alterum potest fieri in re communi, meliorque prohibentis conditio est: adeo ut, si quid novi per alterum socium invito altero factum sit, aut fieri mandatum, is cogi possit ut id in pristinum statum restituendum (Bk. 10, 3, 7). By this I understand that it is not competent for one co-owner against the will of the other to deal with the property in a manner inconsistent with the purpose for which the joint ownership was constituted, but I do not understand the law to prohibit one co-owner from the use and enjoyment of the property in such manner as is natural and necessary under the circumstances.'

" 7. That was a case of plumbago mining. In Silva v. Silva(2) the law so laid down was applied to the case of one co-owner building a house on the common land without obtaining the consent of other co-owners, and it was held that he was not at liberty to do so.

"8. Voet's original authority shows that every act whatever done by any co-owner on the common property must have the consent of the rest. It is in the Digest 10, 3, 28 and runs: -

'Sabinus (ait) in re communi neminem dominorum jure facere quidquam, invito altero, posse, Unde manifestum est, prohibendi jus esse: in re enim part potiorem causam, esse prohibentis constat. '

Foot Notes:

(1) (1896) 6 N. L, R. 275.

(2) (1903) 6 N. L. R. 225.

" 9. The correct principle no

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