Property Possession and Co-ownership

1. CONTENT
• ‘Naduwaththa’ parties
• Issues arising from the factual scenario
• Nishantha’s position as a co-owner of ‘Naduwaththa’
• Amila’s prescriptive title
• Priority by registration (deedT1 & deed G1)
• Revocation of deed of gift by Madavi
• Transactions of Damith & prescriptive title on the common
property
• Villagers right to servitude
• Law of partition
• Conclusion
1

2. ‘NADUWATHTHA’ – COCONUT LAND (10 ACERS= 1600 PERCHES)
Appuhami (Died 1970 – intestate)
Nishantha (200p) Jayantha(200p) Madavi(200p)+(25/3)p Damith(200p)+(25/3)p
Kamalawathi
(800p)+25p
Kusum (wife- 100p)
Malsha (Daughter -33.3p)+(25/3)/3
Sukitha (son- 33.3p) +(25/3)/3
Samitha (son -33.3p) +(25/3)/3
Gift – Sukitha &
Samitha,Transfer –
Dinesh -100p
Sanjeewani (wife-50p)
Gift – Samanalee(100p)
with life interest
-Sold -100p to ABR Property
-Mortgage -2 acers SLT bank
-Erected a fence across foot
path
Amila(home
+50p) 2

3. ‘NADUWATHTHA’ – COCONUT LAND (10 ACERS= 1600 PERCHES)
Problem Relevant parties
1. Can Amila prove his prescriptive title on Nishantha’s house
including 50 perches
Kusum, Malsha, Sukitha, Samitha
2.Who get the priority from registration (Gift orTransfer deed) Sukitha, Samitha, Dinesh
3.Can Madavi revoke the deed of gift made on Samanalee’s marriage? Madavi, Samanalee
4. Can Damith mortgage further 2 Acers from ‘Naduwaththa’ ? Kamalawathi, Madavi,
Sanjeeani,Malsha, Sukitha, Samitha,
SLT bank
5. Can Damith claim for prescriptive title on whole ‘Naduwaththa’?
(1600-50-100 = 1350 perches)
Kamalawathi, Madavi,
Sanjeewani,Malsha, Sukitha, Samitha,
6. CanVillages claim the servitude (right of way) ? All parties 3

4. Nishantha(200p)
Marriage1978
Twinsons1982
FamilylefttoCanada
1987
Died1995
ReturnbacktoSL1996
Declaratoryactionset
aside2000
Kusumdied2004
2017–Prescriptive
title-Amila
Borndaughter1980
Kusum
Malsha
Sukitha&Samitha
Nishantha(intestate)
Ousteractdoneby
AmilaandKusum
filesadeclaratory
actionagainstAmila
4

5. NISHANTHA’S POSITION AS A CO-
OWNER OF ‘NADUWATHTHA’
• communion pro indivisio : Each co-owner obtains an undivided co-ownership share in the common
property
• A co-owner is entitled to the use and enjoyment of the common property in such a manner as is natural
and necessary [use] under the circumstances.
• A co-owner who puts the property to such use is not entitled to appropriate more than his lawful
share.
• Silva v. Silva (1903) 6 N.L.R. 225.
• I would not say that in no case can a co-owner build without express consent. Building might be a natural and
necessary act.
• Siyadoris v. Hendric (1896) 6 N.L.R. 275
• The law does not prohibit one co-owner from the use and enjoyment of the property in such manner as is natural and
necessary under the circumstances.
5

6. NISHANTHA’S POSITION CONT…
• If the improvement
• Is a natural and general use of the land
• Not exceeds the legal share (consent of the other co-owners is not mandatory)
• Goonewardene v. Goonewardene (1913) 17 N.L.R. 143.
• there was a general rule that one co-owner cannot build a house on land held in common without
the consent of the other co-owners. However, that rule he said was subject to exceptions. These
exceptions included the case which permitted a co-owner to put the land to use which
was natural in the circumstance.
• Kathonis v. Silva (1919) 21 N.L.R. 143.
• “A co-owner has the right to build and live on the common land”, Ennis A.C.J. said, “Presumably
this right is limited to the accommodation which his share would provide when
convenience of possession is considered.”
6

7. Amila
Possession
(1987)
Naduwatta
Caretaker
Now
Non-ejection
(1996)
Bona fide
possession
Mala fide
possession
But, declaratory
action in favour of
Amila (2000)
Owner
Ut dominus
Kusum’s
intervention
Legal
interruption
2017
Absent beyond the sea
Owner
7

8. AMILA (3RD PARTY) – PRESCRIPTIVE TITLE
• Amila’s claim should be based on No. 21 of
1871 Prescription Ordinance
• Terunnanse v. Manike (1 NLR 200)
“all the RDL relating to prescription has been
swept away by the PO”
• Requirement that to be established by
Amila
• Section 3 of the Prescription Ordinance
• Section 13 (should defend by Amila)
8

9. PRESCRIPTIVE TITLE OF AMILA CONT…
1. Physical fact of the possession should be
proved
• Peris v. Clara Perera
• Physical possession is an essential part of
claiming prescriptive title
• Perera v. Pemawathie(1970) 74 N.L.R.
302
• The Court held the onus was on A to prove
that he had acquired a prescriptive title.
• Raky v. Lebbe
• Possessed a part of a particular land
• Initial land was 66 acers
• Possession in a part of a land = physical
possession
• Entitled to get prescriptive title
• Amila can establish the physical
possession over Nishantha’s house from
1987
9

10. PRESCRIPTIVE TITLE OF AMILA CONT…
2. Undisturbed and uninterrupted possession
• Siman Appu v. Christian Appu 1 NLR 288
• " interrupted " if the continuity of
possession is broken either by the
disputant legitimately putting the
possessor, oat of the land and keeping
him out of it for a certain time, if the
possessor is occupying it; or by
occupying it himself for a certain
time and using it for his own advantage, if
the party preventing is not in occupation.
Possession
Uninterrupted
Natural
interruption
Legal
interruption
Undisturbed
Adverse
possession
10

11. PRESCRIPTIVE TITLE OF AMILA CONT…
• Interruption caused by a legal action
• Medankara Unnanse v. Haligamuwa Unnanse (Ram.
Reports)
• Filing case to challenge the possession of the person who is
occupying the property would renders to interrupt the possession.
• Unambuwa v. Janohamy 2 CLR 103
• At the time of the filling of an action for recovery of a land it
would be a ‘temporary interruption’
• The permanency of that interruption would be based on the
ultimate decision.
11

12. PRESCRIPTIVE TITLE OF AMILA CONT…
• Undisturbed possession
• Siman Appu v. Christian Appu 1 NLR 288
• Possession is disturbed either
• by an action intended to remove the possessor
from the land or
• by acts which prevent the possessor from
enjoying the free and full use of the land of
which he is in the course of acquiring the
dominion.
• Amila’s possession of the house and 50 perches
is an undisturbed possession in that sense
(refuse to leave the house and rent one room)
• Adverse or independent possession
• This factor deals with the mental element of
possession
• Bond fide possession -----mala fide possession + ut
dominus
• Parenthetical clause of the section 3
• Adverse possession is the possession that
unaccompanied by
• payment of rent or produce,
• or performance of service or duty,
• or by any other act by the possessor from which an
acknowledgment of a right existing in another person
would fairly and naturally be inferred)]
12

13. PRESCRIPTIVE TITLE OF AMILA CONT…
• Maduwanwala v. Ekneligoda (1898) 3
NLR. 213.
• A person who is let into occupation of property as
a tenant or as a licensee must be deemed to
continue to occupy on the footing on which he was
admitted, until by some overt act he manifests his
intention of occupying in another capacity.
• No secret act will avail to change the nature of his
occupation. I understand it, is occupation either in
person or by agent with the intention of holding the
land as owner. (ut dominus)
• If no ‘overt act’ the owners possession continues
• It is presumed that a person, who enters in to the
property as a licensee will remain as same without
entitle to any kind of adverse possession
• Doctrine of ouster/ overt act can be used to
established adverse possession
• (it converts a non-independent nature of possession
into an independent possession)
13

14. PRESCRIPTIVE TITLE OF AMILA CONT…
• 10 years
• Perera v. Perera (1903) 7 NLR173.
• Thus, ten years possession immediately
preceding the action is not necessary, and
possession for ten years time is sufficient to
create a title which can be asserted provided
that no one has prescribed subsequently.
• Amila is continuing his possession from 1987
up to 2017. Overt act was done on 1996.
• Thus, he would be successful in claiming 10
years possession
• Section 13 of the Prescription
Ordinance
• The prescriptive period does not run against
persons who are deemed to suffer from
disabilities or particular positions
stated in the Prescription Ordinance at the
time possession commences….
• Infancy
• Idiocy
• Unsoundness of the mind
• Lunacy
• Absent beyond the seas
14

15. PRESCRIPTIVE TITLE OF AMILA CONT…
• Can not claim the prescriptive title who leaves
the country (not even on the legal
representative/ attorney)
• Nishantha and family left Sri Lanka in 1987
• They visited Sri Lanka several times and stayed in
their house
• Nishantha died in 1995 and Kusum came to Sri
Lanka in 1996
• From 1996 onwards the section 13 does not
apply to on the prescriptive title of Amila.
15

16. Jayantha (200p)
Marriage1977Sanjeeani
Halfofundividedshare
100Pin1999
• Sukitha &Samitha (
• Registered 2000 May
G1
• Dinesh
• Registered 2000 MarchT1
-Bribe to a Clerk in the Land Registry
-Registered in the wrong folio
At the time of G1
Sukitha & Samitha
were minors.Thus
deed G1 should be
accepted by a guardian
16

17. PRIORITY BY REGISTRATION
• No. 23 of 1927 Registration of Documents Ordinance
• Section 7(1)
• An instrument executed or made on or after the commencement of this Ordinance shall
unless it is duly registered under this Chapter, be void as against all parties claiming an
adverse interest thereto, on valuable consideration, by virtue of any subsequent
instrument which is duly registered under this Chapter.
1. Valuable consideration
2. Subsequent instrument at the time concern
3. Adverse interests
4. Requirement of ‘same source’
5. Due registration of a deed
6. Fraud and collusion section 7(2)
17

18. WHAT IS PRIORITY? DOES ‘DINESH’ GET
PRIORITY?
• Kanapathupillei v. MohammaduThamby Levai
15 NLR 177
• The prior unregistered deed is deemed void as
against the parties claiming an adverse interest
under a subsequent registered deed for valuable
consideration.
• Valuable consideration
• Nambuwasan v. Deonis Appu (1962) 65 N.L.R.
353
• where a transaction embodied in a deed purports
on the face of it to be a sale, the deed it self
constitutes prima facie evidence that valuable
consideration was paid, apart from any statement
of the notary on the passing of consideration.
18

19. PRIORITY CONT…
• Subsequent instrument at the time concern
• DeedT1 is the subsequent document as it was prepared
after deed G1
• Adverse interests
• Siman v. Usubu Lebbe (1894) 3 S.C.R. 113
• if the later deed passes a smaller interest, than that of the
former, deed but includes it, it only suspends the vitality of
the earlier deed during its own subsistence. If the later
deed conveys an interest larger than and including that of
the earlier deed it no doubt is the cause of the earlier deed
being extinguished.
• Kobbekaduwe v. General Rubber Co. (1931)
32 N.L.R. 353
• A sale and a gift would clearly create adverse
interests.
• Thus, DeedT1 and deed G1 contesting each
other
19

20. PRIORITY CONT…
• Requirement of ‘same source’
• Both deeds are derived from same
source
• Lairis Appu v.Tennekoon Kumarihamy (1958) 61
N.L.R. 97
• The requirement of ‘same source’ does not specify in
Sec. 07 of the Ordinance.
Basnayake C.J
• our courts have recognized that priority by
registration can be claimed only if the deeds come
from the ‘same source’
Sinnetamby J
• However the chains of title on which priority is
claimed must not be parallel, but must be referable at
some point to a common source, and create a conflict
of interests.
Privy Council
½ of Jayantha’s undivided
share of ‘Naduwaththa”
Deed of gift
(subsequently reg)
Deed of transfer
(prior reg)
20

21. PRIORITY CONT…
• Due registration of a deed
• Section 14(1)
• every instrument presented for registration shall be
registered in the book allotted to the division in which
the land affected by the instrument is situated, and in or
in continuation of the folio in which the first registered
instrument affecting the same land is registered
• If all other 04 factors are satisfied, if a deed
registered in wrong folio it would lost the priority
• Marikkar v. Fernando
• If the first deed affected to the said land registered
in a folio so determined, all subsequent transactions
relating to that particular land should be registered
in the same folio or another folio connected
thereto.
• De Silva v.Weerappa Chettiar 43 NLR 565
• Where, owing to the negligent entry of a
registering officer, a document of title is not
registered in accordance with the ordinance the
document is deprived of the priority conferred
on it by section 7 of the Ordinance.
• Logus v. Lawrence 63 NLR 377
• a deed is registered in the wrong folio on account
of the negligence of either the Registrar or one of
the parties, the document is deprived of the
priority conferred on it by section 7 of the
Registration of Documents Ordinance.
• DeedTI would not get ‘priority’ as it was registered on
wrong folio 21

22. PRIORITY CONT…
• fraud
• Siripina v.Tikira (1878) 1 S.C.C. 84
• if the purchaser in the second transaction has been
party to anything in the way of hindering or delaying
the first purchaser in the registration of his title, for
the purpose of securing to himself, (the second
purchaser) the priority of registration, then there
would clearly, be fraud within the meaning of the
provision.
• Dinesh has bribed to a clerk at the land registry
• Ferdinando v. Ferdinando 23 NLR 143
• ‘as the derivation of the word implies, the joining
together of two parties in a common trick’, carrying
with it ‘the implication of something indirect and
underhand’
• Accordingly, the facts can be summarized in following
manner
22

23. PRIORITY CONT…
Requirement Whether established
or not
Valuable consideration 
Subsequent instrument at the time concern 
Adverse interests 
Requirement of ‘same source’ 
Due registration of a deed x
Fraud and collusion section 7(2) x
• Thus, deed TI would not get
the priority over deed GI
• Sukitha & Samitha will get a
good title by deed GI
Sukitha & samitha were
become adults in 2000
Since 2000 Sukitha & samitha
became owners of Jayantha’s
undivided 100 P
Balance of Jayantha’s undivided
100p
23

24. Madavi (200p)+(25/3)p
Marriage1980
Movedtofriend’shouse
2006
Halfofundividedshare
(100p)–giftin2004
Gross ingratitude of
Samanalee
Marriage of her daughter
Samanalee with Nimal in
2004
Udaya
Seeking to
revoke the
deed of gift
24

25. REVOCATION OF DEED OF GIFT
• Madavi, gifted ½ of her undivided
share to her daughter Samanali, on
her marriage.
• Donatio – (gift)
• Early law & Roman Dutch Law –
profter nuptias can not be revoked
• Existing Sri Lankan law identifies
some exceptions to revoke deed of
gift
Inter vivos – (donation made in
life time)
Propter nuptias - (donation
made on a marriage)
Mortis causa – (donation
made of expecting death)
25

26. REVOCATION OF DEED OF GIFT
• Grounds for revocation of deed of gift
• (i) if the donee failed to give effect to a
direction as to its application (donatio sub
mode), or
• (ii) on the ground of the donee's
ingratitude or
• (iii) if at the time of the gift the donor was
childless but afterwards became the father of
a legitimate child by birth or legitimation.
26

27. REVOCATION OF DEED OF GIFT
• Fernando vs. Perera 63 NLR 236
• Under the Romans Dutch Law if a Donor of an irrevocable gift
wishes to revoke it, he must file action in a Court of Law to have the
Deed of Gift revoked on the grounds recognized by RDL. He cannot
unilaterally by another Deed seek to revoke an irrevocable gift.
• Dona Podinona Ranaweera Menike vs. Rohini Senanayake
(1992) 2 SLR 181
• “The donee-daughter by assaulting her donor-parents was guilty of
the foul offence of ingratitude. Revocation is not however automatic.
It requires a decision of the court.”
Amarasinghe J.
• Stela Perera and Others v. Margert
Silva (2002) 1 SLR 162
• There is no doubt that a gift could be
revoked on the ground of ingratitude.
• Stephan v. Hettiarachchi and
Another (2002) 3 SLR 39
• Although ordinarily a deed of gift is
irrevocable by the donor never the less
it is competent for the donor to
reserve to himself the right of
revocation in which event the donor
can by executing a subsequent deed of
revocation and without assigning or
proving any reason in a court of law
revoke the earlier deed of gift
27

28. REVOCATION OF DEED OF GIFT
• Wilson vs. Sumanawathie & others
(unreported) 2007
• Donor can revoke an irrevocable Deed
of Gift by executing a Deed of
Revocation without filing action and
obtaining a decision of Court.
• Deed of declaration
28

29. Damith (200p)+(25/3)p
Marriage1982Asha
Halfofundividedshare
(100p)–soldin2003–
ABRProperty
Mortgage2Acers-
2005
SLTBank-Rs
2million
ErectedaFenceacross
afootpath
Villagers
Plannedtosellanother
150Pin2016
Againstother
co-owners
Taking entire profit from the sale of the Coconut cultivation of
‘Naduwaththa’
Damith
claimed
prescriptive
title of entire
‘Naduwaththa’
29

30. TRANSACTIONS OF ‘DAMITH’ &
PRESCRIPTIVE TITLE ON COMMON
PROPERTY
• Co-owenership is the mother of disputes
• Co-owners has rights to use the common
property
• Silva v. Silva (1903) 6 N.L.R. 225.
• I would not say that in no case can a co-owner
build without express consent. Building might be a
natural and necessary act. If the land were fit for
paddy, I conceive that one co-owner could not
forbid another to cultivate without reasons given,
nor could consent be required for an act which is
a natural and necessary element of their co-
ownership.
• Vaz v. Hanifa (1948) 49 N.L.R. 286.
• A Co-owner can alienate his rights but cannot alienate
more than his share without the consent of the other
co-owners
• Willed on Landlord andTenant (3rd Ed.) p. 13 it is said :
• " A co-owner of undivided property who lets any
portion of it without the knowledge or consent of his
co-owners must account to the latter for his share of
the profits derived from the lease ;
30

31. TRANSACTIONS OF ‘DAMITH’ CONT…
• Damith can sale ½ of undivided share of his interest to
Naduwaththa to ABR Property Developers.
• However, it is illegal to mortgage further portion of 2
acers of Naduwaththa without consent of other co-
owners
• Siyadoris v. Hendric (1896) 6 N.L.R. 275
• The law does not prohibit one co-owner from the use and
enjoyment of the property in such manner as is natural and
necessary under the circumstances.
• However, he exceeds his lawful share & natural use should
take express/implied consent of other co-owners
31

32. TRANSACTIONS OF ‘DAMITH’ CONT…
• Can Damith claim the ownership of entire ‘Naduwaththa’ as the property remain in common
nature….
• Prescription among co-owners
Corea v. Iseris Appuhamy
(1911) 15 N.L.R. 65
Tillekeratne v. Bastian
(1918) 31 N.L.R. 12
‘presumption of ouster’ ‘counter presumption of ouster’
32

33. TRANSACTIONS OF ‘DAMITH’ CONT…
• It is hardly possible to prove the prescription among co-owners
• Corea v. Iseris Appuhamy (1911) 15 N.L.R. 65
Iseris, possessed a particular common property for 30 years by excluding all other co-owners including his sister
Balahamy. Privy Council : Legal possession does not constitute an adverse possession
1. the possession of one co-owner, was in law, the possession of others,
2. every co-owner must be presumed to be possessing in that capacity,
3. it was not possible for such a co-owner to put an end to that title and to initiate a prescriptive title by any
secret intention in his own mind and
4. that nothing short of an ouster or something equivalent to an ouster, could bring about that result.
33

34. TRANSACTIONS OF ‘DAMITH’ CONT…
• Brito v. Mutunayagam (1918) 20 N.L.R.
327
• The father possessed the entirety of the land
excluding the children. It was held that in the
circumstances of this case the father‟s
possession could not be considered adverse
to the children. The father and children were
considered to be co-owners.
Gunawardene v. Samarakoon (1958) 60
N.L.R. 481
The possession of one co-owner is the
possession of other co-owners and
cannot be ended by any secret intention in the
mind of the possessing co-owner ….The
possession of one co-owner does not become
possession by a title adverse to, or independent
of that of the others, till ouster or
something equivalent to ouster takes
place.
34

35. TRANSACTIONS OF ‘DAMITH’ CONT…
• Counter presumption of
ouster
• Odiris v. Mendis(1910) 13
N.L.R. 309
• the English law provided a
corrective of the principles
which it has developed by
means of a counter
presumption, that is to say,
“a counter presumption of
ouster”
• Tillekeratne v. Bastian (Bertram CJ.,)
• one co-owner and his predecessors in interest have been
in possession of the whole property for a period as far
back as reasonable memory reaches; that he and
they have done nothing to recognize the claims of
the other co-owners; that he and they have taken the
whole produce of the property for themselves; and
that these co-owners have never done anything to
assert a claim to any share of the produce…
35

36. TRANSACTIONS OF ‘DAMITH’ CONT…
• Subramaniam v. Sivaraja (1945) 46 N.L.R.
540.
where one enters and takes the profits
exclusively and continuously for a very long
period under circumstances which indicate a
denial of a right in any other to receive them,
as by not accounting with the acquiescence
of the other tenants, an ouster may be
presumed.
36

37. SERVITUDE OF THE VILLAGERS
Rural servitudes
• Right of way
Urban servitudes
• Servitudes of buildings and dwelling
houses
37

38. SERVITUDE OF THE VILLAGERS
• iter (right to go over
another‟s land on foot or
on horse back);
• actus (the right of passage
for a vehicle, or the right
to drive draught animals
and cattle);
• via (which included both
iter and actus and
something more).
• Fernando v.Alwis (1957) 61 N.L.R. 302
• Availability of another route would consider not to
grant a servitude
• However, the alternative should be accessible
• “In the case of an urban area like this part of Panadura
where so many buildings exist, and so much building
activity appears imminent, the denial of a right of way
claimed would amount to a deprivation of a necessary
amenity of modern living. I am of opinion that the
alternative route does not constitute reasonable
access…”
38

39. SERVITUDE OF THE VILLAGERS
• By Immemorial User (vetustas)
• Sandrasagera v. Sinnathamby (1923) 25
N.L.R. 139
• “user of a right for a period extending
beyond the memory of man”
• Hodson v. Mohamadu (1921) 21 N.L.R.
241.
• a public right of way could be created by
evidence that the road has been used by the
public from time immemorial.
• By Prescription
• Ayanker v. Sinnatchy (1860) Ramanathan
Reports 75
• Prescription Ordinance applies to servitudes, and
ten years exercise of a right would create a title
by prescription. This decision has been followed
subsequently.
• Time immemorial + prescription
• Villagers were using this foot path from Damith’s
grandfathers time
• Can be intervene party to the partition action
39

40. LAW OF PARTITION
• Partition Law No 21 of
1977
• Section 2.Where any land belongs in
common to two or more owners, any
one or more of them, whether or not his
or their ownership is subject to any life
interest in any other person, may
institute an action for the partition or
sale of the land in accordance with the
provisions of this Law.
• Section 5.The plaintiff in a partition action shall
include in his plaint as parties to the action all
persons who, whether in actual possession or not,
to his knowledge are entitled or claim to be
entitled
• (a) to any right, share or interest to, of, or in the
land to which the action relates, whether vested
or contingent, and whether by way of mortgage,
lease, usufruct, servitude, trust, life interest, or
otherwise
40

41. CONCLUSION
• Amila will be able to prove prescriptive title
to the house and surrounding 50 perches of
Nishantha
• Madavi will be able to revoke the deed of gift
made by her
• Deed G1 would get the priority due to
some faults occurred in the registration and
done by Dinesh
• Villagers will be able to acquire right of way
over ‘Naduwaththa’ by immemorial use and
prescription
• Based on the evidence Damith has a
probability to claim prescriptive title on
entire ‘Naduwaththa’
41