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![" boundary fence ". His position is that he himself called it a
"screen fence" but that the Chief Clerk, who had written out
the complaint (the original of 2Dl) had described it as a "
boundary fence " without his authority. The learned trial judge
has disbelieved the 1st plaintiff's evidence on this point. The
1st plaintiffs description of the fence which had been erected to
separate lot 2 from lot 4 in Plan X, shows that these lots have
been so separated off " not as a temporary arrange¬ment for
convenience of possession but more likely as a permanent
mode of possession ". As already stated, once the said 2nd
defendant re erected the fence in question, the 1st plaintiff had
withdrawn the case. It appears to me that the 1st plaintiff's
acts as embodied , 2D1, gives a clear indication of the nature
and the character of the possession of the various lots,
depicted in Plan 'X' by the respective co owners.
On a consideration of these facts and circumstances, I am of
opinion that the learned trial judge's finding that the corpus
was not, at the time of the institution of this action, owned in
common is correct and should be affirmed.
The appeal of the plaintiff s' appellants is accordingly dismissed
with costs.
TAMBIAH, J. I agree.
Appeal dismissed.
New Law Reports Volume 15, Page No 65
New Law Reports D.C. Chilaw, 3,934.
[PRIVY COUNCIL.]](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-12-320.jpg)
![TILLEKERATNE et al. v. BASTIAN et al. Prescription-Long-continued
exclusive possession by one co-owner- Presumption -
Lost grant - Dedication of highway - Ouster - Adverse
possession.
It is open to the Court, from lapse of time in conjunction with
the circumstances of the case, to presume that a possession
originally that of a co-owner has since become adverse.
"It is a question of fact, wherever long-continued exclusive
possession by one co-owner is proved to have existed, whether
it is not just and reasonable in all the circumstances of the case
that the parties should be treated as though it had been proved
that that separate and exclusive possession had become
adverse at some date more than ten years before action
brought. "
THE facts appear from the judgment.
Bawa, K.C., and De Zoysa, for appellants.-A co-owner cannot
prescribe against other co-owners unless he has actually
ousted them, or has by some overt act intimated to them that
he is no longer possessing on their behalf but is possessing
adversely to them.
[SHAW J.-Even if a co-owner possess for 150 years, is he
supposed to be possessing on behalf of the other co-owners?]
That would not make any difference. Law is not founded on
relationship.](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-34-320.jpg)
![[DE SAMPAYO J.-Must not lapse of time shift the burden?] No.
See Corea v. Appuhamy.1 None of the co-owners can prevent
the possession of the whole land by one co-owner.
[SHAW J.-The. only question is whether a presumption of
ouster can be gathered from the length of time.] There is no
room for the presumption of ouster here. If an ouster took
place it can be proved, as the persons interested are alive and
can give positive evidence of ouster. Counsel cited 2 Leader
74; Morgan Digest 21, 169, 273; 7 N. L. R. 91; 10 N. R. 183
(at 186); 3 N. L. R. 213, 137; 7 N. L. R. 91; 1 Cowp. 217; 3 A.
C. R. 84; Koch 61 and 42; 1 S C. R. 64; Lightworn on Time
Limit of Action 161; Indian Limitation Act 9 of 1908, s. 127; I.
L. R. 33 Bom. 317; I. L. R. 35 Cal. 961. The Prescription
Ordinance has completely repealed the Roman-Dutch law on
the subject. Before Corea v. Appuhamy 1[1 (1911) 15 N. L. R.
65. ] was decided there is no reference in our cases to a
presumption of ouster. If there be evidence of exclusive
possession for a very long time, and evidence of something
which ought to have put the
13
co-owner who is out of possession on his guard, and if he is
guilty of gross laches, then there may be
prescription. The evidence must be strong and convincing,
and that is not the case here. See Brito v. Muthunayagam.1
[1(1915) 19 N. L. R. 38. ] If we introduce the theory of
fictitious ouster, the decisions become valueless.
E. W. Jayawardene (with him Batuwantudawa), for defendants,
respondents.-Whether possession was adverse or not must be
judged by the circumstances of each case. In 1893, when
Tillekeratne bought the property, he did not enter into
possession, nor was the property included in the inventory of
Tillekeratne's properties when he declared himself an insolvent.
We were allowed to have exclusive and notorious use of this
land for forty years, and to take plumbago from it. In 2 S. C. C.
166 it was held that a co-owner cannot dig plumbago without](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-35-320.jpg)
![the consent of the other co-owners. Counsel cited also S. C. A.
C. 8 and 1 C. W. R. 92 and 175.
Ouster can be presumed from long and continued possession
(2 Thorn. 188; 15 C. D. 87). Counsel also cited 29 Bom. 300;
33 Bom. 317, at 322; 1 S.C. R. 64; Koch 62; 13 N. L. R. 309; 1
Bal. Notes 88; 2 Bal., 40 and 70.
Bawa, in reply.
Cur. adv. vult.
December 16, 1918. BERTRAM C.J.-
The facts of this case seem to raise in a very clear and succinct
form a question which was discussed, but not decided, in the
case of Corea v. Appuhamy. 2 [ 2 (1912) A. C 230 ; (1911) 15
N. L. R. 65.]The decision in that case had a very far-reaching
effect. It laid down for the first time, in clear and authoritative
terms, the principles that the possession of one co-owner was
in law the possession of the others; that every co-owner must
be presumed to be possessing in that capacity; that 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 that nothing short of "an ouster or something
equivalent to an ouster " could bring about that result. The
question was raised in the argument in that case, and
discussed in the judgment, whether in the circumstances of the
case, even admitting these principles, an ouster should be
presumed from the long-continued possession of the co-owner
in question. The Privy Council, without negativing the
possibility of a presumption of ouster, held that this was not a
case in which the facts would justify such a presumption. The
questions, therefore, to be decided for the purposes of the
present case are:-](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-36-320.jpg)
![The ground being cleared in this manner, it would be seen that
all we have to ask ourselves in this case is, what is the
meaning of the word " adverse "? And that the only question
we have to consider in any particular case is whether the
possession in question was " adverse," or, if it was not
originally adverse, at what point it may be taken to have
become so. It appears to me to a certain extent unfortunate
that the Privy Council in discussing this question should have
adopted the technical terms of certain rules of the English law
of real property which have now, in effect, been extinguished
by Statute; the more so, as these rules belonged to a
department of the English law which was recognized as being
involved in the greatest obscurity. It was in connection with
this subject that Lord Mansfield said: " The more we read,
unless we are very careful to distinguish, the more we shall be
confounded." See Taylor Atkyns v. Horde 1[1(1757) 2 Burr. 60.
] and 2 S. L. C. (11th ed.), at page 629.
The phrase " adverse possession " was not a statutory term in
the English law at all, nor was the word " ouster." The Statute
of Limitations passed in the twenty-first year of King James I.
did not contain either phrase. The material part of section 1 of
that Statute (21 James I., c. 16) simply said that " no person
or persons shall at any time hereafter make any entry into any
lands, tenements, or hereditaments but within twenty years
next after his or their right or title which shall hereafter
descend or accrue to the same."
On this it was held that the Statute only ran against a true
owner in cases in which at common law he was reduced to
what was known as his " right of entry "-a highly technical
question. No occasion to assert a right of entry arose unless
there has been an " ouster." The term " ouster " is itself highly
technical. Those who are curious on the subject will find it
explained" in Wood Renton's Encyclopaedia of the Laws of
England, vol. X., 214. It was considered and treated in old text
books under the heads of disseisin, abatement, discontinuance,
deforcement, and intrusion, terms which are no longer in
common use. See 2 8. L. C. (11th edition) 651.](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-42-320.jpg)
![3 (1820) 5 Wheaton 116.
4(1845) 3 Howard 674.
21
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, it is artificial in the highest degree to say
that such a person and his predecessors in interest must be
presumed to be v.Bastian possessing all this time in the
capacity of co-owners, and that they can never be regarded as
having possessed adversely, simply because no definite
positive act can be pointed to as originating or demon-strating
the adverse possession. Where it is found that presumptions of
law lead to such an artificial result, it will generally be found
that the law itself provides a remedy for such a situation by
means of counter-presumptions. If such a thing were not
possible, law would in many cases become out of harmony with
justice and good sense.
In this very instance the English law provided a corrective of
the principles which it has developed by means of a counter-
presumption, that is to say, a " presumption of ouster." The
leading case on this point is Doe v. Prosser,1 [ 1 (1774) 1
Cowp. 217.] where Lord Mansfield said: -
"It is very true that I told the jury they were warranted by the
length of time in this case to presume an adverse possession
and ouster by one of the tenants in common of his companion;
and I still continue of the same opinion .... The possession of
one tenant in common, eo nomine, as tenant in common, can
never bar his companion; because such possession is not
adverse to the right of his companion, but in support of their
common title; and by paying him his share, he acknowledges
him co-tenant. But if, upon demand by the co-tenant of his
moiety, the other denies to pay and denies his title, saying he
claims the whole and will not pay, and continues in possession,](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-47-320.jpg)
![such possession is adverse and ouster enough .... In this case
no evidence whatever appears of any account demanded, or of
any payment of rents and profits, or of any claim by the lessors
of the plaintiff, or of any acknowledgment of the title in them,
or in those under whom they would now set up a right.
Therefore, I am clearly of opinion, as I was at the trial, that an
undisturbed and quiet possession for such a length of time is a
sufficient ground for the jury to presume an actual ouster .
. . . "
The same principle was expounded by Lord Kenyon in another
case, in which it was held, nevertheless, that the facts did not
warrant the application of the principle: Peaceable v. Read 2:-
[ 2 (1801) 1 East 569, at page 574.]
" I have no hesitation in saying where the line of adverse
possession begins and where it ends. Prima facie, the
possession of
one tenant in common is that of another; every case and
dictum in the books is to that effect. But you may show that
one of them
has been in possession and received the rents and profits to his
22
own sole use without account to the other and that the other
has acquiesced in this for such a length of time as may induce
a jury under all the circumstances to presume an actual ouster
of his companion. And there the line of presumption
ends............... "
The only real question that we have to decide in this case,
apart from the question of fact, is whether the principle of this
counter-presumption is in force in Ceylon. As I have said, the
judgment of the Privy Council in Corea v. Appuhamy (supra)
referred to this principle, but did not definitely declare that it
must be considered in force in Ceylon, as a corollary of the
general principle which that case enunciated. It does not
appear to me that there can be any reasonable doubt on](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-48-320.jpg)
![which in my opinion, the Court ought to presume that the
posses¬sion of the three branches of Simon de Silva's family,
who actually dealt with the land, became adverse to the claim
of Babappu at some point more than ten years prior to the
institution of this action. I would, therefore, affirm the decision
of the learned District Judge, and dismiss the appeal, with
costs.
SHAW J. -
The Judge has found that Babappu, under whom the appellant
claims, was the legitimate son of Allis, who was admittedly a
co-owner of the land. The appellants are, therefore, entitled to
a share in the land, unless Babappu's co-owners have
prescribed against him and his successors in interest.
The precise time when Allis died, and Babappu succeeded to
his interest, does not appear from the evidence; but it must
have been over fifty years ago, and the Judge has found as a
fact that neither Babappu, his vendee Tillekeratne, nor the
appellants have ever had any possession of Allis's share, which
has, since the death of Allis, always been possessed by his co-
owners and their successors. These findings of fact appear to
be justified by the evidence, and I see no reason why we
should differ from them on appeal.
The Judge has also decided that Babappu's co-owners have
prescribed against him and his successors in interest, and has
accordingly dismissed the plaintiff's action. The nature of the
holding of a co-owner of land and the circumstances under
which a co-owner can commence to acquire a prescriptive title
against other owners under Ordinance No. 22 of 1871 is
authoritatively laid down by the Privy Council in the case of
Corea v. Appuhamy.1[1 (1911) 15 N. L. R. 65. ] That case
shows that the possession of one co-owner is in law the
possession of all, and that a person who has entered into
possession in his capacity of co-owner must be considered to](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-55-320.jpg)
![Tillekeratne taken a share of the produce of a few plantain
bushes and trees on the land.
I think that the circumstances sufficiently justify the inference
of what was alluded to by the Privy Council inCorea v. Iseris
Appuhamy1 [1(1912) A .C. 230 ]as " something equivalent to
an ouster, " and that this change, even if it did not take place
in the time of Babappu, must be regarded as having occurred
at all events in 1893, when he sold to Tillekeratne. In my
opinion the defendants have succeeded in establishing their
claim to the whole land by prescription, and I agree that the
appeal should be dismissed, with costs.
Appeal dismissed.
Volume 61, Page No 361
View - Volume 61](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-59-320.jpg)
![years required by section 3 of this Ordinance shall commence
to be reckoned from the death of such last-named person, or
from the termination of such disability, whichever first shall
happen; but no further time shall be allowed in respect' of the
disabilities of any other person:
"Provided also that the adverse and undisturbed possession for
thirty years of any immovable property by any person claiming
the same, or by those under whom he claims, shall be taken as
conclusive proof of title in manner provided by section 3 of this
Ordinance, not with standing the disability of any adverse
claimant."
Learned counsel's contention that the learned District Judge
has wrongly cast on the appellant the burden of proving the
exception is sound. The rule of evidence is that whoever
desires any court to give judgment as to any legal right or
liability dependent on the existence of facts which he asserts,
must prove that those facts Exist. Those who assert that the
period of ten years began to run as against them only after a
certain date in view of the proviso to section 3 or section 13
must produce evidence of facts which bring their case within
those provisions. Learned counsel's submission is supported by
the decision of the Privy Council in the case of Mohamed
Adamjee v. Hadad Sadeen 1[1 (1956) 58 N.L.R. 217 at 227] to
which he has referred us. In that case the Board made the
following observations:-
"Looking at the matter first as a question of constructing on
they think that once parties relying upon prescription have
brought themselves within the body of section 3 the onus rests
on anyone relying upon the proviso to establish their claim to
an estate in remainder or reversion at some relevant date and
they cannot discharge this onus unless they establish that their
right fell into possession at some time within the period of ten
years."
In the instant case except in regard to the plaintiff, and the 1st
and 2nd defendants, the parties have produced no evidence
which brings their claims within the proviso to section 3 or
section 13. But it is contended on behalf of the 9th and 10th
defendants-respondents that the appellant is a co-heir and that
proof that he collected the entire rent since the year 1916 is](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-64-320.jpg)
![insufficient to bring his case within section 3[3 (1938) 40
N.L.R. 392 at 396.]. It is therefore necessary to deal with that
aspect of the case with which the learned District Judge has not
dealt especially though an argument in regard to it appears to
have been addressed to him.
It has been laid down by the Privy Council in the case of Corea
v. Appuhamy 2[ 2 (1911) 15 N.L.R. 65.] that the possession of
a co-owner is in law possession of the other co-owners; that it
is not possible for a co-owner to put an end to his possession
qua co-owner by any secret intention in his mind; that nothing
short of ouster or something equivalent to ouster could bring
about that result.
In the case of Cadija Umma v. Don Manis 3 in dealing with the
case of an agent's possession the Privy Council said
"Ouster apart, a man's possession by his agent is not
dispossession by his agent. The like is true between co-owners,
in Ceylon, and is the ground of decision in Corea's case."
It is therefore necessary first to understand what the Privy
Council meant by the words "his possession was in law the
possession of his co-owners ". What is the kind of possession
contemplated by these words?
Is it a possession in which the rights of the other co-owners are
recognized or is it a possession in which they are not? For the
answers to these questions we have to look to the English Law,
as section 3 of the Prescription Ordinance is based on concepts
of English and not on those of Roman- Dutch law. The English
law on the subject is nowhere better expressed than in Don v.
Prosser! Wherein Lord Mansfield and Justice Acton have
explained what is meant by adverse possession and ouster.
The former explains the law thus:-
"So in the case of tenants in common the possession of one
tenant in common, eo nomine, as tenant in common, can never
bar his companion; because such possession is not adverse to
the right of his companion, but in support of their common
title; and by paying him his share, he acknowledges him co-
tenant. Nor indeed is a refusal to pay of it sufficient, without
denying his title. But if, upon demand by the co-tenant of his
moiety, the other denies to pay, and denies his title, saying he](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-65-320.jpg)
![estates of freehold. We shall see afterwards ho' the action of
ejectment has come to supply the place of nearly a these
remedies'. "
"Ouster of the freehold then' was, and in theory may still be
affected by one of the following methods: I. Abatement; 2.
Intrusion 3. Disseisin; 4. Discontinuance; 5. Deforcement'.
"(Blackstone Vol. ill p. 176-Kerr's edition 1862).
The last named is the form of ouster that applies to the case of
co-owner who decides to keep out the other co-owners.
Blackstone describes it thus-(ibid, p. 182).
"The fifth and last species of injuries by ouster or privation of
the freehold, where the entry of the present tenant or
possessor w originally lawful, but his detainer has now become
unlawful, was that by deforcement. This, in its most extensive
sense, is nomen generalissimum ; a much larger and more
comprehensive expression than at of the former; it then
signifying the holding of any lands or tenements to which
another person has a right. "
Blackstone gives many examples of deforcement and the only
one germane to the subject under discussion is the following-
(ibid, p. 182).
"Another species of deforcement is, where two persons have t
same title to land, and one of them enters and keeps
possession against the other, as where the ancestor dies seized
of an estate in fee-simple, which descends to two sisters as co-
parceners, and one of them enter before the other, and will not
suffer her sister to enter and enjoy 11 moiety; this is also a
deforcement."
In the instant case there is evidence of " ouster" in the sense
stat in the passage from Blackstone last cited and the English
cases I shall refer to later in this judgment. The appellant came
into possession the land in 1916 on the death of his father,
who himself had been possession of it, and has continued to
take the entire rent from that dl The plaintiff and the 1st and
2nd defendants are the great-great-grand children of the
author of the fideicommissum. Several generations his
descendants have been content to allow the appellant and his
fat] to collect the entire rent. There is no evidence that till the](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-67-320.jpg)
![date of t action in September 1953 anyone has even
questioned the appellant's right to take the rent during these
thirty-seven years;
Apart from actual ouster in the sense stated above English]
recognizes a presumption of ouster. The cases of Doe v. Posser
(supra)
Hornblower v. Read1[1 1 East 568.] decide that ouster may be
presumed in a case where uninterrupted possession for thirty-
six years is established. In the former case Lord Mansfield
stated-
"It is very true that I told the Jury, they were warranted by the
length of time in this case, to presume an adverse possession
and ouster by one of the tenants in common, of his companion;
and I continue still of the same opinion-Some ambiguity seems
to have arisen from the term 'actual ouster', as if it meant
some act accompanied by real force, and as if a turning out by
the shoulders were necessary. But that is not so. A man may
come in by a rightful possession, and yet hold over adversely
without a title. If he does, such holding over, under
circumstances, will be equivalent to an actual ouster. "
After enunciating the rule that the possession of one tenant in
common, eo nomine, as a tenant in common, can never bar his
companion; because such possession is not adverse to the
right of his companion, but in support of their common title,
Lord Mansfield adds-
but in this case no evidence whatsoever appears of any
account demanded, or of any payment of rents and profits, or
of any claim by the lessors of the plaintiff, or of any
acknowledgment of the title in them, or in those under whom
they would now set up a right. Therefore I am clearly of
opinion, as I was at the trial, that an un- disturbed and quiet
possession for such a length of time is a sufficient ground for
the jury to presume an actual ouster, and that they did right in
so doing.
Justice Acton in the same case puts the proposition thus:
"Now in this case, there has been a sole and quiet possession
for 40 years, by one tenant in common only, without any
demand or claim of any account by the other, and without any](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-68-320.jpg)
![following terms. "Mr. Weerasinghe admits that the 13th
defendant's father has been in possession from prior to 1916."
The only persons who gave evidence were the 2nd defendant
and the 11th defendant. The 13th defendant neither gave
evidence nor called any witness on his own behalf. The 2nd
defendant was called on behalf of his sister the plaintiff while
the 11th defendant did not give any evidence whatsoever in
regard to possession. However, it was elicited from the 2nd
defendant in examination that from the time he became aware
of things the defendant had been collecting the rent of this
property. It is significant to observe that the age of the 2nd
defendant when he gave evidence was 32. After the plaintiff's
case was closed the following admission also recorded.
"Plaintiff admits that from 1916 the 13th defendant collected
the rents."
Thus the prescriptive title set up by the appellant rests solely c
two admissions I have quoted above and the statement of the
defendant that from the time he came to know things the 13th
deft had been collecting the rent of the building which stands
on this which is 12.61 perches in extent. The plan PI reveals
that practically the whole land is covered by this building. It is
rather remarkable although it was elicited from the 2nd
defendant in cross-examination that the 13th defendant
collected the rent yet no attempt was m obtain any admission
from him that the entire rent collected WI appropriated by the
13th defendant. I do not think for a moment when the counsel
for the plaintiff admitted that from the year 1916 the 13th
defendant was in possession and before that the latter's fat]]
been in possession he meant to concede that the possession
they h of the character contemplated by section 3 of the
Prescription Ordinance. The word "possession" was obviously
used by him in a loose and sense. Probably he meant merely
physical possession and this is made clearer by the 2nd
admission which only conceded that the 13th defendant
collected the rent. If he admitted that these two person
possession in the sense the word is used in that section there
purpose in going on with the trial thereafter. From the evidence
2nd defendant and the two admissions referred to, one cannot
real say that anything more was conceded than that the 13th
defendant out the premises and collected the entire rent. There](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-72-320.jpg)
![is no definite evidence as to what he did with the rent whether
he appropriate whole of it for himself, shared it with the other
co-owners, spent it maintenance of the building or used it for
charitable purposes. It not be strange if the 13th defendant
collected the rent and looked the building and before him his
father did so. Of the three children Muttu Natchia the 13th
defendant's father was the only male being so it is quite
natural, these parties being Muslims, that t; defendant's father,
the only male in the family, was in charge premises and
collected the rent. On the death of the father the son may well
have taken over those duties without any objection from the
other co-owners. If the 13th defendant did not appropriate for
him entire rent his claim to this property on a prescriptive title
is quite untenable. The prescriptive title is set up on the basis
that he appropriated the entire rent for him. Assuming that he
did so, although the evidence is insufficient for so holding, is he
entitled to succeed on the issue of prescription?
As the deed P2 created a valid fideicommissum the 13th
defendant and the other descendants of Muttu Natchia and her
husband would be co-owners of this property. In Corea v. lseris
Appuhamy 1[1 (1911) 15 N .L.R. 65.] the Privy Council
recognized the principle "Possession is never considered
adverse if it can be referred to a lawful title ". There is no
doubt that in. the instant case the 13th defendant entered into
possession of the property in the character of a co-owner. In
that case the Privy Council further held that, in law, the
possession of one co-owner is also the possession of his co-
owners; that it was not possible to put an end to that
possession by any secret intention in his mind and that nothing
short of ouster or something equivalent to ouster could put an
end to that possession. An invitation by the counsel for the
respondent to presume an ouster or something equivalent to
an ouster from Iseris's long-continued possession was rejected
by Their Lordships of the Privy Council in that case but the
point was not fully considered.
In Tillekeratne v. Bastian 1[1 (1918) 21 N.L.R. 12.] a case
decided by a Bench of three Judges, this Court held that it was
open to the Court, from lapse of time in conjunction with the
circumstances of the case, to presume that a possession
originally that of a co-owner had since become adverse.](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-73-320.jpg)
![Bertram C.J. who delivered the main judgment in that case
referred to the observations of Lord Mansfield in Doe v. Prosser
2[2 (1774) I Cowper 217.] and followed the principle
enunciated therein. Lord Mansfield said in that case " But if,
upon demand by the co-tenant of his moiety, the other denies
to pay and denies his title, saying he claims the whole and will
not pay, and continues in possession, such possession is
adverse and ouster enough In this case no evidence whatever
appears of any account demanded, or of any payment of rents
and profits, or of any claim by the lessors of the plaintiff, or of
any acknowledgment of the title in them, or in those under
whom they would now set up a right. Therefore, I am clearly of
opinion, as I was at the trial, that an undisturbed and quiet
possession for such a length of time is sufficient ground for the
jury to presume an actual ouster??"
Whether the presumption of ouster is to be drawn or not
depends on the circumstances of each case. In Tillekeratne
v.Bastian 1[1 (1918) 21 N.L.R. 12.] there were three
circumstances of great importance which justified this Court in
presuming an ouster. They were :-(1) Bastian whose share was
in issue had not been recognized by the other members of his
family as the lawful child of his father (2) Neither Bastian nor
his vendee claimed a share of the plumbago dug from the land
and (3) The share of this land purchased from Bastian was not
included in the schedule of assets of the vendee when he
became insolvent. There are no circumstances of such
importance in the instant case.
In regard to the observations of Lord Mansfield referred to
above I would venture to say that there is some risk in
applying the principle enunciated by him indiscriminately to a
set of similar circumstances existing in this country. Our land
tenure is different from that prevailing in England and our laws
of inheritance in respect of immovable property also differ from
theirs. Common ownership of lands is rampant here whereas it
is comparatively rare in England. Our social customs and family
ties: have some bearing on the possession of immovable
property owned in common and should not be lost sight of.
Many of our people consider it unworthy to alienate ancestral
lands to strangers. Those who are in more affluent
circumstances permit their less fortunate relatives to take the](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-74-320.jpg)
![persons who would be in a position to speak from personal
knowledge as to how the adverse possession commenced. Most
of the persons who had such knowledge may be dead or cannot
be traced or are incapable of giving evidence when the comes
up for trial. In such a situation it would be reasonable, in
certain circumstances, to draw the presumption of ouster. But
in the instant case the party who claimed to have originated
the adverse possession was alive at the time of the trial. He is
no other than the 13th defendant himself. There was no
necessity, therefore, to resort to a presumption of ouster. The
13th defendant's adverse possession, if any, was a question of
fact which he could and should have proved. He failed to do so.
In Tillekeratne v. Bastian 1[1 (1918) 21 N. L. R. 12.] Bertram
C.J. while dealing with the circumstances in which the
presumption of ouster may be drawn stated "If it is found that
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 property, it is
artificial in the highest degree to say that such person and his
predecessors in interest must be presumed to be possessing all
this time in the capacity of co-owners, and that they can never
be regarded as having possessed adversely, simply because no
definite positive act can be pointed to as originating or
demonstrating the adverse possession". All the circumstances
set out in this passage are not present in exclusive possession
attributed to the 13th defendant in this case. It is significant to
note that the learned Chief Justice contemplates he case where
a co-owner and his predecessors in interest are concerned do
not think that he would have been prepared to draw the
presumption of ouster if the exclusive possession relied on was
solely that of co-owner who set up the prescriptive title. In
such a case the ouster or something equivalent to ouster would
have to be proved, as any other question of fact, by leading the
necessary evidence.
The presumption that possession is never considered adverse if
it be referred to a lawful title may sometimes be displaced by](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-77-320.jpg)
![he had appropriated the rents exclusively for himself or that he
had never given a share to any of the other fideicommissary
heirs of Muttu Natchia.
But let me assume, although I cannot agree, that the only
reasonable meaning of the evidence of the second defendant is
that the 13th defendant for nearly forty years from 1916, not
only gathered the rents of the premises, but also appropriated
them solely for himself without ever giving or conceding a
share in the rents to any descendants of his two aunts. Upon
this assumption, the 13th defendant undoubtedly had
undisturbed and uninterrupted possession of the property in
the sense contemplated by section 3 of the Prescription
Ordinance, for (in the language of the parenthesis in section 3)
his possession was "unaccompanied by payment of rent, by the
performance of any service or duty, or by any other act from
which a right existing in any other person would fairly or
naturally be inferred ". But a person is not entitled to a decree
under section 3 by virtue of such possession alone: the section
requires the proof of a second element, namely that the
possession must be "by a title adverse to or independent of
that of the claimant or the plaintiff in such action ". That this is
a distinct and separate element was emphasized by Bertram
C.J. in his judgment in Tillekeratne v. Bastian 1[1 (1918) 21 N.
L. R. 12.]. Having referred to a view earlier prevailing that the
parenthesis Was intended to be an explanation of everything
which the section required the possessor to establish, and
having cited certain judgments and Thompson's Institutes as
endorsing that view, the learned Chief Justice, adopting an
expression earlier used by Wendt, J., pointed out that the coup
de grace had been administered by the decision in Corea v.
Appuhamy 2[2(1911) 15 N. L. R. 65.] to the theory that the
words in the parenthesis were intended as a definition of
"adverse title ". He then referred to the suggestion made in
Pereira's Laws of Ceylon that the parenthesis was intended to
be explanatory of the expression "undisturbed and interrupted
possession " a suggestion which was expressly adopted by the
Privy Council in Corea's case (at page 77) :-" The section
explains what is meant by undisturbed and uninterrupted
possession. Assuming that the possession of Iseris has been
undisturbed and uninterrupted since the date of his entry, the](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-82-320.jpg)
![question remains, has he given proof, as he was bound to do,
of adverse or independent title? ".
Having regard to my own unfamiliarity with a subject which has
received much critical and learned consideration from the
Bench and the Bar, and in connection with which Lord
Mansfield had observed:-" the more we read, unless we are
very careful to distinguish, the more we shall be confounded ",
I must be pardoned if, in the course of my attempt to analyze
the problem which possession by a co-owner presents, I
emphasize too much that which should have been obvious.
Firstly, section 3 imposes two requirements: "undisturbed and
uninterrupted possession" and "possession by a title adverse or
independent"; secondly t question whether the second of these
requirements is satisfied does I arise unless the first of them
has been proved. It is clear from t judgment of the Privy
Counsel in Corea's case that a co-owner
Possession can satisfy the second requirement in two difficult
modes:
(a) by proving that his entry was not by virtue of his title as
co-owner; but rather of some other claim of title; in fact Their
Lo] ships, in Corea's case, rejected the finding of the Supreme
Court that the possessor had entered as sole heir of the former
owner;
(b) by proving that, although his entry was by virtue of his law
title as a co-owner, nevertheless he had put an end to his
possess in that capacity by ouster or something equivalent to
ouster, a that therefore and thereafter his possession had been
by an adverse independent title.
Long-continued possession by itself clearly not contemplated in
either of these two modes of proving that the possession of a
co-owner had be "by a title adverse or independent ". The
appellants therefore obtain no assistance from the decision in
Corea's case. On the contrary I find it impossible to distinguish
the facts of that case from the facts of 1 present one, and the
decision operates strongly against the appellant have now to
consider the so-called presumption of ouster which v referred
to by the Privy Council in the judgment.](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-83-320.jpg)
![In Tillekeratne v. Bastian 1[1 (1918) 21 N. L. R. 12.] Bertram
C.J. adopted from Smith's Lead: Oases, the definition of
adverse possession, i.e. "possession held in a manner-
incompatible with the claimant's title ", and he observed that
the question whether possession by a co-owner is adverse
must be Considered in the light of three principles of law, the
third of which is " That a person who has entered into
possession of land in one capacity is presumed to continue to
possess it in the same capacity". Having thereafter referred to
the English Law, and to early Ceylon cases, he WI on to hold
that there is a counter-principle which is part of the law Ceylon
and that it is open to the Court, from lapse of time in conjunct
with the circumstances of the case, to presume that possession
origin that of a co-owner has since become adverse. He later
explained how t presumption should be applied:" It is in short a
question of fact whenever long-continued exclusive possession
is proved to have exist whether it is not just and reasonable in
all the circumstances of the c that the parties should be treated
as though it had been proved t: that separate and exclusive
possession had become adverse at some of more than ten
years before action was brought ". The words I have
parenthesized indicate that this presumption is available in
connect with the mode (b) of proving an adverse or
independent title which have elicited from the judgment in
Corea's case, namely in order establish that although the entry
had been qua co-owner, the possession had commenced at
some later time to be upon an assertion of an adverse title. No
such presumption would be available to counter the
principlethat a co-owner is presumed to enter by virtue of his
lawful title. The presumption referred to by Bertram C.J. has
since been usually referred to as the presumption of ouster.
The argument for the appellants has been that this
presumption of ouster, applies in their case that it is just and
reasonable that the possession of the 13th defendant, having
been exclusive and of long duration, should be regarded as
having become adverse at some time after 1916. Let me first
repeat the language employed by Bertram C.J:-" It is open to a
Court from lapse of time in conjunction with the circumstances
of the case??.";" whenever long-continued possession is proved](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-84-320.jpg)
![no" counter-presumption ", but l they do not constitute an
enunciation of the principles governing the application of that
presumption. They are only a preface or preamble, so to say,
to the enunciation of principles which is to follow and which is
contained in the passages' I have earlier cited, and cannot be
regarded as altering or extending the principles as so
enunciated.
In Hamidu Lebbe v. Ganitha 1[1 (1925) 27 N. L. R. 33.], one of
two brothers had been in exclusive possession for nearly forty
years. They had quarreled, and the excluded brother had left
the ancestral village. Dalton J., relying on the decision in
Tillekeratne v. Bastian; was much inclined to presume from
these circumstances that this brother must unsuccessfully have
preferred a claim to his share, and that the possession would
thereafter have been adverse. He felt, however, that the Privy
Council decisions in Corea', case and in Brito v. Muttunayagam
2[ 2(1918) 20 N. L. R. 327.]a (where a father had possessed
his widow share after a quarrel with his children) did not permit
him to presume adverse possession. Ennis J. observed that
"some definite facts would have to be proved" from which one
could infer a change in the character of the possessor's
intention with regard to the holding of the land. If the quarrel
and, the departure of the co-owner from the village did not
constitute sufficiently definite facts from which this inference
could be drawn, would it ever be reasonable to draw that
inference where all that is proved (as is so in the present case)
is long-continued possession?
There have been numerous subsequent decisions of this court
which have denied to co-owners in exclusive possession a
decree under section 3 of the Prescription Ordinance, but it is
sufficient for present purposes to summarize their effect by
reference to some of them. Exclusive possession for many
years, coupled with the execution by the possessor of deeds
inconsistent with the title of his co-owners, is insufficient in the
absence of evidence that the co-owners knew of and
acquiesced in the execution of the deeds. This proposition was
accepted as settled law in Umma Ham 11. Koch1[1 (1946) 47
N. L. R. 107] which followed earlier decisions to the same
effect: - Careem v. Ahamadu 2[2 (1923) 5 C. L. Rec. 170.] and
Sideris v. Simon 3[3.(1945)46 N .L.R. 273.]. The preparation](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-87-320.jpg)
![of a Plan indicating that the possessor regarded himself as
exclusively entitled to a specific portion of the common land
and purporting .to allot another specific portion to his co-
owners, coupled with dealings by the possessor with his portion
on the basis of sole ownership, does not justify a presumption
of ouster in the absence of evidence that the co-owners
acquiesced in the preparation of the plan of partition: -
Githohamy v. Karanagoda 4[ 4 (1954) 56 N. L. R. 250.]. It is
significant that, in these and other cases, there was almost
invariably reliance, even by unsuccessful possessors, upon
some circumstance additional to the mere fact of long and
undisturbed and uninterrupted possession, and that proof of
some such additional circumstance has been regarded in our
Courts as a sine qua non where a co-owner sought to invoke
the presumption of ouster.
I am aware of one decision only which is seemingly contrary to
the cursus curiae as just stated. There is language in the
judgment of Canekeratne J. in Subramaniam v. Sivaraja et al.
5[5(1945) 46 N. L. R. 540.] to indicate that the taking of
profits exclusively and continuously for a very long period, and
the acquiescence of co-tenants in the possessor's omission to
account, would justify the presumption of an ouster. But there
is no reference in the judgment to any earlier decision relative
to prescription by co-owners, and the facts as stated in the
judgment show that there had been no proof that the person in
possession claimed title from the same source as did her
adversaries. On the contrary the claims of title were mutually
exclusive. I cannot regard this case as providing a relevant
precedent, but even if it does there is at least one ground upon
which it should be distinguished. While the possessor's name
had continuously appeared in the assessment Register of the
Sanitary Board as the owner of the property, and she alone
had paid the rates, the alleged co-tenants had in some years
placed their names also on the Register. The fact that they
did so but nevertheless did not receive any of the profits from
the possessor might have justified the inference that they had
staked a claim to their share in the profits and had been
rebuffed by the possessor. Even in that case therefore the
possessor, if she was properly regarded as a co-owner, did rely
upon a circumstance additional to the fact of long possession,](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-88-320.jpg)
![as a ground on which the presumption of ouster might be
drawn.
That line of decisions, one of the more recent being Fernando
v. Podi Nona 1[1(19,54),56N.L.R.491.], which recognize the
principle that, where a stranger obtains a transfer of the entire
land from one co-owner, his possession commences:-as
adverse, is not relevant to the present discussion. "The
possession of a stranger in itself indicates that his possession is
adverse ":-Leach C. J. in Pillai v. Rawther 2[ 2 N.L.R. 23 Bomb.
137.]. When the title upon which the stranger enters into
possession, though in law defective, is based upon a transfer to
him of the entire land, it is nevertheless a title adverse,
inasmuch as it constitutes a denial of the rights of others. What
such a stranger proves is an entry by a title adverse-the mode
(a) of proof which I have elicited from the judgment in Corea's
case, and not the mode (b) (i.e. of change in the character of
the possession) which is required of a person who enters qua
co-owner. Those decisions therefore throw no light on the
question I am now considering.
The judgment in the case of Rajapakse v. Hendrick Singho
3[3(1959)61N.L.R.2.], though delivered on June 22, 1959, was
not referred to during the argument of the present appeal, and
I was unaware of it when the preceding part of this judgment
was prepared. The facts in that case were, briefly, as follows:-
The original owner had conveyed an undivided portion of the
land to T by deeds executed in 1919 and 1920: T in 1921
transferred an undivided 11/19 share to his grandson, who in
turn sold the undivided interests in 1927 to G: the plaintiff
purchased the interests of G in May 1953 and instituted a
partition action in August of the same year. The defendants,
who were descendants of the original owner and thus entitled
to the shares outstanding after the transfers of 1919 and 1920,
claimed that they had exclusively possessed the entire land
from 1922 and had divided the produce among themselves and
to the exclusion of the plaintiff's predecessors in title. The
grandson of T, who had been a predecessor of the plaintiff and
had been the owner of the undivided interests for about six
years, admitted at the trial that neither he nor his successor G
had ever occupied the land, and that the defendants had lived
on the land and enjoyed the produce to the exclusion of himself](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-89-320.jpg)
![as to the regularity of official acts and the "course of business"
are also examples, though less pointed, of something akin to a
"rule of thumb ". In my view, however, the so-called
presumption of ouster is not to be applied arbitrarily, but only if
proved circumstances tend to show, firstly the probability of an
ouster, and secondly the difficulty or impossibility of adducing
proof of the 'ouster. If the circumstances justify the opinion
that possession must have become adverse at some time, a
Judge is not in reality presuming au ouster: he rather gives
effect to his opinion despite the absence of the proof of ouster
which a co-owner would ordinarily be required to adduce. This
aspect of the matter was touched upon by Bertram C. J. in
Tillekeratne v. Bastian (at page 18).
The principle as stated in judgments of Bertram C. J. in
Tillekeratne v. Bastian and of Ennis J. in Hamidu v. Ganitha 1[1
(1925) 27 N. L. R. 33.], that the inference of ouster can only
be drawn in favor of a co-owner upon proof of circumstances
additional to mere long possession, has been consistently
recognized and strictly applied. To draw that inference from
mere duration of possession would be to disregard the very
terms in which they stated the principle, and to ignore the
requirement of an "adverse or independent title" prescribed in
section 3. Moreover, if exclusive possession alone is to suffice,
after what period will it be just and reasonable to presume
ouster? There being nothing in the section to the contrary, a
particular Judge may well be inclined to presume ouster from
possession for a period of ten years: but if another Judge
declines to do so unless the period is much longer, can it be
said that one Judge is right and the other wrong? Will not such
a situation be reminiscent of the days when the principles of
Equity were said to vary with the length of the Chancellor's
toe? The proposition we are invited to uphold is not only
contrary to settled law; it contains no criterion by the
application of which consistency of judicial decisions can be
reasonably expected.
Our Courts have constantly recognized the rule that
undisturbed and uninterrupted possession by a co-owner does
not suffice to entitle him to a. decree unless there is proof of
the ouster of the other co-owners. The decision in Tillekeratne
v. Bastian recognized an exception to that rule and permits](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-91-320.jpg)
![HUSSAIMA Vs A. L. UMMU ZANEERA Respondents Co-owners-Prescriptive
possession by a co-owner-Adverse title-Burden of proof- Fideicommissum for four
generations-Burden of proof regarding termination of successive interests and of
any disability-Prescription Ordinance, ss. 3, 13.
Volume 65, Page No 125 New Law Reports 125
[IN THE PRIVY COUNCIL]
1961 Present : Viscount Radcliffe, Lord Evershed, Lord Devlin,
Lord Pearce, and Sir Terence Donovan
PRIVY COUNCIL APPEAL No. 53 OF 1961
S. C. 260-D. C. Colombo, 6970/M
Co-owners-Prescriptive possession by a co-owner-Adverse title-
Burden of proof- Fideicommissum for four generations-Burden
of proof regarding termination of successive interests and of
any disability-Prescription Ordinance, ss. 3, 13.
A deed of gift executed on the 16th July, 1872, in respect of
certain property in the business district of Pettah, Colombo,
was alleged by the plaintiff to have created a fidei commissum
which continued in operation after the death of the grantor's
wife in favour of the descendants for four generations. In the
present proceedings for partition of that property the plaintiff
was the great-great-grand daughter of the grantor's wife and
there were numerous other parties. The 13th defendant was a
grandson of the grantor's wife, his father having been one of
her three children and her only son. He denied that the deed of
gift created a fidei commissum, and claimed to have acquired
exclusive title to the entirety of the property by prescriptive](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-93-320.jpg)
![proving which, by the terms of section 3 of the Prescription
Ordinance, lay on the 13th defendant.
126
APPEAL from a judgment of the Supreme Court reported in
(1959) 61 N. L. R. 261.
Hanan Ismail, for Appellants.
M. Markhani, with John Baker, for 5th to 8th Respondents.
Cur. adv. vult.
May 9, 1961. [Delivered by LORD EVERSHED]-
In their Lordships' opinion this appeal is one of considerable
difficulty and the question involved very much upon the
borderline ; but after careful consideration of the arguments
submitted to their Lordships by learned counsel their Lordships
have come to the conclusion, not for reasons later appearing,
without some regret, that they should humbly advise Her
Majesty to dismiss the appeal.
The appeal arises out of proceedings for partition begun nearly
ten years ago. The claim of the plaintiff, who has since died,
was that she was entitled to a share of certain property in the
business district of Pettah, Colombo, by virtue of a Deed
executed by one Ibrahim Lebbe Mohammadu Lebbe on the
16th July, 1872. The main question at the trial was whether
the Deed created an effective fidei commissum and if so
whether such fidei commissum continued in operation after the
death of the grantor's wife in favour of her descendants for four
generations. The plaintiff was a great-great-granddaughter of
the grantor's wife and, as might be expected, there were
numerous other parties to the proceedings. The 13th defendant
was a grandson of the grantor's wife, his father having been
one of her three children and her only son. The 13th defendant
has died since the trial and the appellants before the Board are
his four children, who were substituted in the proceedings for](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-95-320.jpg)
![The 13th defendant then appealed to the Supreme Court of
Ceylon. He accepted the District Judge's finding of the creation
of a fidei commissum and its extent and he accepted also that,
having regard to their ages, he could not succeed against the
plaintiff or the first or second defendant. The main argument
before the Supreme Court was whether the District Judge had
been right in the view taken by him as regards the burden of
proving the several dates above mentioned. Upon this point the
13tb defendant succeeded. Thereupon, and for the first time,
the scope and meaning of the admission and the two questions
and answers earlier quoted became vital to the conclusion of
the appeal. It was, however, made quite clear before their
Lordships that neither side then asked for a retrial or for any
order designed to obtain further clarification of the admission
and evidence. Each side was content to rest upon the terms of
the admission and of the answers given by the second
defendant as they were recorded, and the argument therefore
was as regards the proper inference to be drawn therefrom.
The judgments of the learned Judges in the Supreme Court
contain a careful review of authorities both English and
Ceylonese upon the proper application of the relevant terms of
the Prescription Ordinance in the case of one claiming a
prescriptive title whose occupation of the property in question
was or should be originally attributed to his interest as co-
owner ;particularly of the judgment of Lord Mansfield in the
English case of Doe d Fisher v. Prosser1[1 Cowp : 217.]and the
judgment of Bertram, C.J. in the Ceylonese case of Tillekeratne
et al. v. Bastian et al.2[(1918) 21 N. L. R. 12.]. Their Lordships
are content to accept the principles applicable as they were
expounded in the Supreme Court. Nor, indeed, were the
principles really
129
in dispute before their Lordships. The question, and the very
difficult question, has been of their application. In the
circumstances their Lord-ships are content to found themselves
for present purposes upon two passages in the judgment of
Bertram, C. J. at pp. 23 and 24 of the latter of the cases above
mentioned : " It may be taken, therefore, that it is open to the](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-99-320.jpg)
![N. E. Weerasooria, Q.C., with S. W. Walpita, for the 2nd
defendant-respondent.
Cur. adv. vult.
June 20, 1967. TAMBIAH, J.-
I am in agreement with the views expressed by my brother
Siva Supramaniam J. It is unnecessary to recapitulate the facts
which have already been dealt with by him, but I wish to add
my own observations on the question of law raised by Mr.
Thiagalingam.
The question as to whether a co-owner has prescribed to a
particular lot is one of fact in each case. The rule laid down by
Their Lordships of the Privy Council in Corea v.
Appuhamy[1(1911) 15 N. L. R. 65. ] and in Brito v.
Mutunayagam[2(1918) A.C. 895, 20 N. L. R. 327.] that if
possession is referable to a lawful title it cannot be treated as
adverse, is however modified by the theory of counter
presumption set out in Tillekeratne v. Bastian[3(1918) 21 N. L.
R. 12.]by a Full Bench of this Court.
In Tillekeratne v. Bastian (supra) Bertram C.J. succinctly stated
the principle as follows (at page 24):-
" It is, in short, a question of fact, wherever long-continued
exclusive possession by one co-owner is proved to have
existed, whether it is not just and reasonable, in all the
circumstances of the case that the parties should be treated as
though it had been proved that that separate and exclusive
possession had become adverse at some date more than ten
years before action brought."
340
In Hameedu Lebbe v. Ganitha[1(1920) 27 N. L. R. 33.] it was
contended that the ruling in Tillekeratne v. Bastian (supra) was
inconsistent with the decision in Brito v. Mutunayagam (supra).
However, in that case, the Divisional Court held that there was](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-111-320.jpg)
![no inconsistency in the principles laid down in these two cases.
Where a co-owner seeks to establish prescriptive title against
another co-owner by reason of Jong and continued possession
it is a question of fact depending on each case for a court to
decide whether it is reasonable to presume an ouster from the
exclusive possession by a co-owner for a long period of time.
This principle had been applied in Rajapakse v. Hendrick
Singho[2(1959) 61 N. L. R. 32.].
The limits of the rule that possession by a co-owner is not
adverse possession was defined in Cully v. Deod
Taylerson[3(1840) 11 Ad. & E. 1088 ; 9 L. J. Q. B. 288 ; 3 P. &
D. 539.]as follows :-
" Generally speaking, one tenant-in-common cannot maintain
an ejectment against another tenant-in-common, because the
possession of one tenant-in-common is the possession of the
other and to enable the party complaining to maintain an
ejectment, there must be an ouster of the party complaining.
But where the claimant, tenant-in-common, has not been in
the participation of the rents and profits for a considerable
length of time, and other circumstances concur, the Judge will
direct the jury to take into consideration whether they will
presume that there has been an ouster . . . . . . and if the jury
finds an ouster, then the right of the lessor of the plaintiff to an
undivided share will be decided exactly in the same way as if
he had brought his ejectment for an entirety."
This dictum was cited with approval by Viscount Cave who
delivered the opinion of the Privy Council in the case of Varada
Pillai v. Jeevarathnammal[4(1919) A. I. R. (P. C.) 44 at 47.]
In the instant case, the learned District Judge has found that
after Baby Nona purchased a share there had been an amicable
division among the co-owners in pursuance of which Baby Nona
possessed lot 3 in plan X filed of record as her exclusive
property. She not only annexed this lot to the land on the East,](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-112-320.jpg)
![Obeyesekere v. Endoris[1(1926) 66 N. L. R. 457.]). An
amicable division among the co-owners can be the starting
point of prescription although no cross conveyances or other
document have been executed by them.
Unlike a fence, a parapet wall is of a permanent nature and the
fact that Babynona and Haramanis constructed a parapet wall
144 feet in length (though not covering the entire length of the
boundary) between their divided portion and the rest of the
land and that they incorporated that divided portion with the
eastern land of which they were owners and exclusively
possessed the whole as one entity for nearly 30 years are
circumstances from which ouster of the other co-owners from
the divided lot can reasonably be inferred.
In the instant case, as stated above, the trial Judge has, in
addition, accepted the evidence that the exclusive possession
of the divided lot was after an amicable division of the land by
the co-owners.
344
There is a further circumstance which strengthenes the case of
the 2nd defendant. The transfer deed P 3 in favour of the
plaintiff describes the share purchased by her as follows:-
" The undivided 1/3 share belonging to Pulikkuttige Haramanis
Baas being excluded, an undivided half share of the soil of the
remaining undivided 2/3 share."
The deed P2 in favour of the plaintiff's vendor by
Podinonohamy described the excluded portion as being on the
eastern side.
Learned Counsel for the appellant laid stress on the fact that
the deeds P2 and P3 do not refer to the portion excluded as a
divided share. The description in the deeds is, no doubt,
inaccurate but apparently what was meant was that a portion](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-118-320.jpg)
![1969 Present: Lord Morris of Borth-y-Gest, Lord Donovan,
Lord Wilberforce, Lord Pearson, and Lord Diplock
and another, Repondents
PRIVY COUNCIL APPEAL NO. 32 OF 1968
2. C. 436/64 (F)-D. U. Kuliyapitiya, 784/P
In consequence of an informal partition of a number of
lands which belonged to three co-owners in equal one third
undivided shares, the first respondent, who was one of the co-
owners, was in exclusive possession for ten years thereafter of
a specified land which was allotted to him under the informal
document.
Held, that the first respondent acquired prescriptive title to
the specified land as against the other co-owners.
APPEAL from a judgment of the Supreme Court.
E. P. N. Gratiaen, Q.C., with Brian Sinclair, for the
plaintiff'-appellant.
M. P. Solomon, for the defendants-respondents.
Cur. adv. vult.
2
December 2, 1969. [Delivered by LORD WILBERFORCE]-](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-120-320.jpg)
![the title of the other co-owners, clear and strong evidence of
possession exclusive of the other co-owners, and inconsistent
with the continuation of the co-ownership is required. (See
Simpson v. Omeru Lebbe 1 per Soertsz S.P.J. [1 (1947) 48 N.
L. B. 112.] ). And, as was explained by Lord Macnaghten in
delivering the Board's judgment in Corea v. Appuhamy 2,[2
(1912) A- C. 230, 236; 15 N. L. R. 65. ] a mere intention in the
mind of one co-owner to displace the others is not sufficient to
constitute " adverse " possession.
But, side by side with this basic rule, the Courts of Ceylon
have recognised that acts of an informal character, falling short
of a partition effective in law, may be sufficient to found a
prescriptive claim.
In Tillekeratne v. Bastian3 [3 (1918) 21 N. L. R. 12.] it
was held to be a question of fact, wherever long continued
exclusive possession by one co-owner is proved to have
existed, whether it is not just and reasonable in all the
circumstances of the case that the parties should be treated as
though it had been proved that separate and exclusive
possession had become adverse at some date more than 10
years before action brought. And in Kirimenika v. Menikharny4
[4 (1921) 22 N. L. B. 510.] the alternatives were contrasted of,
on the one hand, an informal but definite partition, where each
party enters into possession of his share and, on the other, a
permissive arrangement. In the first case, title by prescription
might be acquired, and even in the second case this might
follow if the arrangement continued so long that on equitable
grounds it might be presumed that possession became
adverse. These decisions have been followed and applied in
later cases-see De Mel v. De Alwis 5; [ 5 (1934) 13 C. L. Rec.
207. ] Bandara v. Sinnappu 6-[ 6 (1946) 47 N. L. R. 249. ]
The latter case cites with approval a passage from the
judgment of De Sampayo J. in Mailvaganam v. Kandaiya 7 -[
7(1915) 1 C. W. R. 175. ] which is apposite to the present case](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-123-320.jpg)
![View - Volume 27
Present: Ennis A.C.J. and De Sampayo and Dalton JJ.
418-D. C. Regatta, 6,815.
Co-owners-Prescriptive title-Long-continued exclusive
possession- Presumption of ouster.
Where a co-owner of land seeks to establish a prescriptive title
against another by reason of long-continued exclusive
possession, it depends on the circumstances of each case
whether it is reasonable to presume an ouster from such
exclusive possession.
Per DALTON J.-I see no reason to suppose that the law as laid
down in Tillekeratne v. Bastion,1[1 (1918) 21 N. L. R. 12.] is in
any way inconsistent with the decision in Brito v.
Muttunayagam2[ 2 (7918) A. C. 895 ; (1918) 20 N. L. R. 327.]
CASE referred to a Bench of three Judges by Ennis A.C. J. by
the following judgment, which states the facts :-
ENNIS A.C.J.-
This was an action for a declaration of title to a half share of
Kongahakumbura. The land originally belonged to one
Kirihatana, and it appeared, in the course of the case, that
Kirihatana died leaving two sons, the defendant-Ganitha and
Suddana. Suddana had two children, Rankira and Ukku, who in
1921 sold to the plaintiff. The learned Judge in a very brief
judgment has held in favour of the defendant, saying that it is
too late |in the day for the plaintiff to assert title through the
children of Suddana, and that, therefore, the plaintiff's case
must fail on the issue of prescription. Ganitha, the defendant,
came into Court, saying in his answer that he was the sole heir
of his father, Kirihatana, and an issue was framed as to](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-145-320.jpg)
![whether Suddana was the son of Kirihatana. In the course of
the trial, after the plaintiff had
proved that Suddana was a son of Kirihatana, the defendant
went into the box and himself gave evidence admitting that his
father had two sons, himself and Suddana. He then proceeded
to say that he held the land in dispute for the last forty or fifty
years, and that Suddana had left long ago for the Gampola
District, and never took any share and never performed any of
the rajakariya services. Again the defendant's evidence is
extremely brief. But in cross examination he admitted that in
1923 he had mortgaged a half share of the land claimed, and
in re-examination he explained merely that this was a
usufructuary mortgage bond. I am unable to find in the
defendant's evidence any starting point for prescription,
34
He came into Court with, a false assertion, and it then
transpired Hamidu Prove a possession adverse to his brother,
Suddana. Lebbe v. In view of the relationship existing between
the parties, the case of am a Corea v. Appuhamy1[1 (1911) 15
N. L. R. 65 ; (1912) A. C. 230.] seems to be much in point in
connection with this case. However, Mr. Keuneman for the
defendant has called our attention to the case of Tillekeratne v.
Bastian (supra), where the question as to whether an ouster
could be presumed was gone into at some length. The case
itself is not on all fours with the present case, inasmuch as the
facts there show that the parties in possession of the land had
been dealing with it for over forty years by means of leases,
and that the land in question was a valuable mineral land, and
that there had been no division of the proceeds during the
entire period of the occupation by one co-owner and his
predecessor in title. However, in the course of that case,
Bertram C.J. expressed the opinion that "It is the reverse of
reasonable to impute a character to a man's possession which
his whole behaviour has long repudiated."
In the present case, it seems to me, we are not called upon to
do any such thing. I am unable to see in the evidence of the
defendant anything in the defendant's behaviour which
repudiates the character of his possession. His possession can](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-146-320.jpg)
![They appeal from the judgment shortly on the ground that
defendant's plea of prescription could not be upheld, for " the
mere possession even, if true, of one brother's share by
another brother does not ripen into a title by prescription." The
authority relied upon is Corea v. Appuhamy (supra). The
circumstances of that case are certainly remarkable ; it has
been my experience elsewhere that
38
that fact is somewhat lost sight of when the authority is cited.
For the respondent the law there laid down is not questioned,
but it is urged that nowhere is it held that even against a co-
owner may not an ouster be presumed from the circumstances
of any particular case. In Tillekeratne v. Bastian (supra)
decided in 1918, this question was answered after being dealt
with at length. It was there held that the principle of " a
presumption of ouster" is part of the law of the Colony, and
that it is open to the Court from lapse of time taken in
conjunction with the circumstances of the case to presume that
the possession originally that of a co-owner has since become
adverse. It has been suggested to us that that would, under
local conditions, be a dangerous principle to apply to the
Colony, but it is clear from that judgment that it has been
applied in a series of judgments of this Court and has also been
adopted in India (Gangadhar v. Paraskram).1[1 I. L. R. 29
Bom. 300.]
But the question arises whether the decision in Tillekeratne v.
Bastian (supra) is not overruled by the decision of the Privy
Council in Brito v. Muttunayagam (supra), the decision in which
of the local Court (but not of the Privy Council) was referred to
in Tillekeratne v. Bastian (supra). In this case between father
and children it was held that as the children were co-owners
with the father, his possession of the property was not
adverse, although there were strained relations between father
and children. In the course of the judgment it is stated-](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-152-320.jpg)
![" It is the fact that no claim was made by the wife's next of kin
after her death, and that the strained family relations made it
likely that such a claim would have been preferred. From these
circumstances the District Judge drew the conclusion that the
possession was adverse. This, however, depends on what was
the character of G. Brito's possession as a matter of right. The
learned District Judge seemingly overlooked the case of Corea
v. Appuhamy (supra) which the learned Judges of the Court of
Appeal took as decisive of the question. In that case it was held
by this Board that the possession of one co-parcener could not
be held as adverse to the other co-parceners. Lord
Macnaughten, who delivered the judgment, cited the dictum of
Wood V.C. in Thomas v. Thomas2[2 (1856) 2K & J 79, 83.]
Possession is never considered adverse if it can be referred to a
lawful title."
Is this an authority for the proposition that under no
circumstance can the possession of one co-owner be held as
adverse to another co-owner ? It has been so argued before
us.
Reference to the judgments of the Court of Appeal in Brito v.
Muttunayagam (supra), decided by Ennis and Shaw JJ., shows
that neither of these learned Judges had any doubt that Corea
v. Appuhamy
39
(supra) decided that an ouster, or something of the nature of,
or equivalent to, an ouster, would result in the possession of a
co-owner becoming adverse to the other co-owners. Ennis J.
says- " In the case of Corea v. Appuhamy (supra) the Privy
Council held that the possession of one co-owner enured to the
benefit of the other co-owners, and that position could only be
altered by an ouster or something in the nature of an ouster."
And Shaw J. says-
" He was a co-owner with his children, and his possession is
that of his co-owners unless something equivalent to an ouster](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-153-320.jpg)
![brought. The question is dealt with at length in the judgment of
Bertram C.J. in that case. I would not do more here than refer
to the very definite opinion on the point in English law as
expressed by Lord Mansfield in Doe v. Prosser,1[1 Cowp. 217.]
and cited by him.
40
In appeal before this Court we have this question of fact
answered by the trial Judge in favour of the defendant
(respondent), and when the case was argued on the first
occasion I was unable to say that that finding of fact was not
justified by the evidence, and a just and reasonable one in all
the circumstances of the case. The long-continued exclusive
possession of the one brother from thirty-eight to forty years
was proved. It was proved that they had quarrelled, and one
had left the other in possession. Although Suddana went to live
at a place, only eight or nine miles away, yet during all that
time the trial Judge finds neither he nor his children exercised
any right to possess the land. Lastly, the service to the
landlord, it being service tenure land, was performed by
defendant alone. The evidence which seemed to me to weigh
very strongly in favour of the defendant was the fact that the
brothers had quarrelled, taken together with the short distance
which separated their residences. Is it not most likely that, with
the existence of the quarrel, a claim would, under the
circumstances, have been preferred by Suddana It certainly
seemed so to me. But on that occasion the case of Brito v.
Muttunayagam (supra) was not cited in the argument before
us, and there the very matter which cause me the difficulty is
dealt with. In that case there were strained relations between
father and children, a condition of affairs which was duly
considered by the Privy Council, for this was one of the chief
circumstances in the case on which the trial Judge had come to
the conclusion that the possession of the father had become "
adverse" to his children. It was held that the trial Judge was
wrong. It seems to me that it is a decision or an expression of
opinion, however it be regarded, which must govern me in this
appeal, however hard the result may be to the defendant. I feel
that it comes very near to the border line of those " stale
claims" to which Wood V.C. referred in Thomas v. Thomas
(supra), to which the provisions of the Prescription Ordinance](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-155-320.jpg)
![3 20 N. L. R. 327. 7 27 C. L W. 71.
4 40N. L. R. 392. 8 21 N. L. R. 12.
275
possible for a co-owner to put an end to the title of another co-
owner and initiate a prescriptive title by any secret intention in
his own mind and that nothing short of an " ouster or
something equivalent to an master " could bring about the
result. The learned Chief Justice then sent on to say that
although the question had been argued in the case and
discussed in the judgment, the Privy Council in Corea v.
Appuhamy and not decided whether an ouster could be
presumed from the long continued possession of the co-owner
in question. He then proceeded to formulate the principle that
it is open to the Court, from lapse of time in conjunction with
the circumstances of the case, to presume that a possession
originally that of a co-owner, has since become adverse. In
Tillekeratne v. Bastian the claim on the ground of co-ownership
had been dormant for a period of more than forty years.
Moreover, the nature of the possession was significant. The
land had no plantation worth considering. It was plumbago
land and the defendants dug plumbago thereon both by
themselves and through lessees all throughout. In these
circumstances the principle to which I referred was formulated
by the Court which held that the defendants had succeeded in
establishing their claim to the whole land by prescription. The
decision, however, did not go so far as to lay down that ouster
could be presumed merely from long and exclusive possession.
Such a decision would have been contrary to Corea v.
Appuhamy. It is a question of fact in each case and the
question as to whether from long continued, undisturbed and
uninterrupted possession ouster may be presumed depends on
all the circumstances of the case-vide judgment of Dalton J. in
Hamidu Lebbe v. Ganitha 1[ 27 N. L. R. at p. 39.]. In
Tillekeratne v. Bastian there was long continued, undisturbed
and uninterrupted possession for a period of over 40 years. The
nature of the possession was for the purpose of digging
plumbago both by the defendants and their lessees. In this
connection De Sampayo J. in his judgment at page 28 drew a
distinction between the possession of land for the purpose of](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-160-320.jpg)
![on the deed P 1 and did not claim to have acquired title to any
shares by prescriptive possession.
The question now arises whether the plaintiff can be said to
have established his title by prescriptive possession, even if all
the evidence led by him in support of that plea is accepted.
In Corea, v. Iseris Appu1[ (1911) 15 N. L. R . 65], the Privy
Council stated the law with regard to prescription among co-
owners in the following terms : -
" His possession was in law the possession of his co-owners. It
was not possible for him to put an end to that possession by
any secret intention in his mind. Nothing short of ouster or
something equivalent to ouster could bring about that result."
In that case, the defendant who attempted to set up a
prescriptive title against his co-owners, had de facto possession
of the whole estate for over 30 years. The trial Judge found
that during that period " he had planted and leased and
mortgaged and sold various lands and generally dealt with
them as owner ". In spite of this and other findings of fact in
favour of the defendant the Privy Council refused to uphold his
claim to title by prescriptive possession.
In Tillekeratne v. Bastion[(1918) 21 N. L. R. 12. ] this court
upheld a claim to prescriptive possession by the defendants
against a co-owner. In that case, the period of possession was
more than forty years. Referring to the nature of the
possession in that case, de Sampayo J said : " The land had no
plantation worth considering; it was plumbago land and the
defendants dug plumbago therein both by themselves and
through lessees all throughout. While a co-owner may without
any inference of acquiescence in an adverse claim allow such
natural produce as the fruits of trees to be taken by the other
co-owners, the aspect of things will not be the same in the
case where valuable minerals are taken for a long series of](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-190-320.jpg)
![years without any division in kind or money. The effect of this
becomes still more pronounced where the co-owner, being also
a co-heir, has alienated his share to a stranger and the
stranger too is kept out (for over 20 years) ". In that case a
Divisional Bench of this Court expressed the view-" It is a
question of fact, whenever long continued exclusive possession
by one co-owner is proved to have existed, whether it is not
just and reasonable in all the circumstances of the case that
the parties should be treated as though it had been proved that
separate and exclusive possession had become adverse at
some date more than ten years before action was brought."
A similar question arose in Brito v. Muthunayagam[(1918) 20
N. L. R. 38.]. In that case, which dealt with the rights of the
children against their father, the Privy
68
Council held that as the children were co-owners with the
father the possession of the entire property by the father was
not adverse, although there were strained relations between
the father and the children. In the course of his judgment, Lord
Dunedin said, referring to Corea v. Iseris Appu (supra).
" In that case, it was held by this Board that the possession of
one co-parcener could not be held as adverse to the other co-
parcener. Lord Macnaughton, who delivered the judgment,
cited the dictum of Wood V.C., in Thomas v. Thomas1[ (1855)
2 K. J. 79.]: Possession is never considered adverse if it can be
referred to lawful title."
In Brito v. Muthunayagam (supra) it was found that the father
had executed a mortgage in respect of the entire property
many years before the institution of the action but that was not
considered as furnishing evidence of an ouster. While
approving the principle laid down in Tillekeratne v. Bastian
(supra) this court refused in Hamidu Lebbe v. Ganitha[(1925)
27 N. L. R. 33.] to presume an ouster though in that case the
defendant was found to have had possession for nearly 40](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-191-320.jpg)
![years. In Careem v. Ahamadu[(1923) 5 C. L. Rec. 170.] one
Noorami Umma and her brothers and sisters were entitled to a
land by inheritance. In 1889 Noorami Umma obtained a
conveyance for the whole property from one of her brothers,
who was entitled to only a share of the land.' Noorami Umma
remained in the occupation of the house on the land from
1889, mortgaged the whole land in 1892, and executed a deed
in respect of the entirety of the land in 1897. The defendant
claimed the entirety of the property by right of purchase in
1920, in satisfaction of a mortgage executed by the children of
Noorami Umma. The plaintiff, who was one of the brothers of
Noorami Umma, disputed the title of the defendant shortly
afterwards. This court held that the evidence of possession did
not lead to the presumption of an ouster in the absence of
evidence to' show that the co-owners of Noorami Umma had
knowledge of the various transactions of Noorami Umma.
In the present case, the judgment of the Commissioner of
Requests is not very helpful on the question of prescription. He
has upheld the plea of prescription on the ground that Carolis
and the second defendant " do not derive title from the same
source ". It is difficult to understand what the learned Judge
meant by that statement as admittedly they derive title from
Allis and others who were co-owners. The learned Counsel for
the respondent was unable to throw any light on this
observation of the Commissioner of Requests.
The plaintiff does not purport to prove exclusive possession for
more than 15 years before the institution of the action, and the
evidence shows that during some part of that period the
second defendant was a minor. To uphold the plea of
prescription it is necessary to presume that Carolis began to
possess adversely against his minor son from 1926, when he
executed the mortgage bond. There is not even a suggestion of
any ill-feeling between Carolis and the second defendant and
added-defendant, the sister of Carolis. The deed P 2 executed
by Carolis shows that when he transferred the land to Migoris
he claimed title only on deed PI and,
69](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-192-320.jpg)
![4 (1933) 40 N. L. R. at p. 396.
8 (1915) 1 C. W. R. 175.
254
The judgment of Canekeratne J. in Subramaniam v.
Sivaraja1,[1 (1945) 46 N. L,. R. 540] which deals with the
circumstances in which an ouster may be presumed is another
decision that supports the principle which Mr. Weerasooria
contends is applicable to the facts of this case.
For the reasons I have given I have come to the conclusion
that the Commissioner came to the right decision and the
appeal is dismissed with costs.
Appeal dismissed.](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-211-320.jpg)
![not enough to establish prescription among co-owners in the
absence of an overt act of ouster. A secret intention to
prescribe may not amount to ouster.
APPEAL from the District Court of Negombo.
Cases referred to:
1. Ponnampalam v. Vaithialingam and Another [1978-79] Sri.
L.R. 166.
2. Tillekeratne et. al. v. Bastian et. al. - 21 NLR 12.
3. Sideris et. al. v. Simon et. al. -46 NLR 273.
4. Don James Walpita v. Athukoralage Dharmasena Bar
Association Law Journal 1984 - Vol. I Part 4, P9 145.
5. Corea v. Appuhamy-15 NLR 65.
357
6. Abdul Majeed v. Ummu Zaneera et. al. - 61 NLR 361.
7. Hussaima (wife of Yoosuf Jallaldeen) and Other v. Ummu
Zaneera (alias Shamsunnahar) 65 NLR 125.
8. Wickremaratne and Others v. Alpenis Perera [1986]1 Sri.
L.R. 190.
9. Brito v. Muttunayagam 20 NLR 327.](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-222-320.jpg)
![held that, while Punchi Menike had been married out in diga,
she had re-acquired binna rights by subsequently returning to
the mulgedara, and that neither her brother Dingiri Menika nor
her sister Ran Menike had acquired as against her title by
prescription to her share of the inheritance. In dealing with this
point, the District Judge says incidentally that there can be no
question of prescription between co-heirs. That is, of course,
too general a statement, which the decision of the Privy Council
in Corea v. Appuhamy1[(1913) A. C. 230.] does not support.
There may be prescription among co-heirs where we were in
the presence of an overt act of ouster or of something
equivalent to ouster. But what might be acts of adverse
possession against a stranger have, in questions arising
between co-heirs, to be regarded from the standpoint of their
common ownership. The Kandyan law as to the circumstances
in which a woman married in diga can regain her interest in the
paternal inheritance is somewhat obscure. But it has been
interpreted by a long series of local decisions, from which, I
think, it would now be unwise to depart. The general rule
undoubtedly is that when a woman marries in diga, that is to
say, when she is given away, and is, according to the terms of
the contract, conducted from the family house, or mulgedara,
and settled in that of her husband, she forfeits her right to
inherit any portion of her father's estate. But this forfeiture was
an incident, not so much of the marriage, as of the quitting by
the daughter of the parental roof to enter another family,2[
Kalu v. Howwa Kiri, (1892) 3 C. L.R. 54.] and the status which
the daughter would have enjoyed if she had been married in
binna-that is to say, if under the contract her husband had
been received by her parents as a member of her family and
had come to live with her in the
355
mulgedara in that capacity-can be acquired in various ways, as
clearly recognized as the general rule to which they are
exceptions. A diga married daughter will regain binna rights 1
(a) By being recalled by the father and re-married in binna;](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-260-320.jpg)
![paternal property. In that case, however, the attention of the
Court was not apparently directed to the trend of a strong
current of judicial authority running in the contrary direction,
and impliedly recognized in the case of Dingiri Menika v.
Appuhamy,3 which Simon v. Dingiri2 purported to follow. It is
argued, however, in the first place, that the instances given in
the text books on Kandyan law of the circum-stances in which
a diga married daughter can recover binna rights are definitive
and not merely illustrative; and, in the second place, that, if
the ruling of the District Judge in this case were affirmed,
1 See Modder's Kandyan Law, 2nd ed., pp. 460 et seq.
2 (1916) 3 Ceylon W. R. 55.
3 (1915) 4 Bal. N. C. 66.
356
the general principle that a diga married daughter forfeits her
share in the paternal inheritance would be abrogated
altogether, since she could set aside the forfeiture at her own
pleasure by periodical visits to her father's house. I will deal
with each of these points briefly in turn . It must be
remembered that the ancient standard text books on the
Kandyan law consist for the most part of reports of, or
comments upon, particular decisions, rather than legal
treatises in the modern sense of the term. But in point of fact,
as I will show in a moment, authority is not wanting even in
these text books for the proposition of law involved in the
decision of the District Judge upon this point. As regards the
argument ab inconvenienti, it is obvious that the question
whether a diga married daughter has regained binna rights
must always be one of fact, and the Court would have in each
case to consider whether the evidence affirmatively proved that
she had been received back into her father's family as a
daughter.
I pass now to the judicial decisions, apart from Simon v.
Dingiri,1[(1916) 3 Ceylon W. R. 55.] to which I have already
alluded. The earliest authority is the Madewelletenne case,2[
(1834) Marshall's Judgments 329.] decided as far back as](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-262-320.jpg)
![My brother De Sampayo has analysed the evidence as to the
position of the plaintiff in the present case, and it is, therefore,
unnecessary for me to deal with it. I entirely agree with the
conclusions at which he has arrived on that point, and on the
only remaining issue as to whether the evidence of prescriptive
possession is sufficient to displace the plaintiff's right to share
in her father's inheritance.
I would dismiss the appeal with costs, subject to the
modification mentioned by my brother.
1 (1834) Marshall's Judgments 329. 3
(1905) 1 Bal. 193.
2 Volume II., p. 173. 4
(1912) 16 N. L. R. 238.
358
DE SAMPAYO J.-
The principal question raised in all these appeals is whether the
Appuhamy plaintiff, who is a daughter of Hamy Lekama of
Muduwe, deceased, is entitled to share the father's inheritance
with her brothers, the third defendant and Dingiri Menika, the
father of the first defendant. According to her marriage
certificate she was married in diga to Pinhamy of Pelmadulla in
the year 1874, and in my opinion her attempt to prove by oral
evidence that she was in fact married in binna has failed. But
she, in the second place, maintains, and the District Judge has
found in her favour, that she subsequently regained binna
rights. As regards the law bearing on this point, the passages
in the text books as to the circumstances in which binna rights
can be regained are not very clear, and are capable of being
interpreted either as giving instances or as stating conditions,
but these passages and the judicial decisions have been
considered in Appuhamy v. Kiri Menika.1[(1912) 16 N. L. R.
238.] There a daughter had, after her father's death, been
married out in diga, but one of her children was left in the
mulgedara and was brought up by her mother, and she herself
had kept up a close and constant connection with the](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-265-320.jpg)
![different co-owners is in no way inconsistent with common
possession.
191
A co-owner's possession is in law the possession of the co-
owners Every co-owner is presumed to be in possession in his
capacity as co-owner A co-owner cannot put an end to his
possession as co-owner by a secret intention in his mind
Nothing short of ouster or something equivalent to ouster could
bring about that result.
Registration extracts are evidence of the particulars entered in
the register. The objection that the documents referred to in
them should have been produced cannot be taken for the first
time in appeal.
Cases referred to:
(1) Ponnambalam v. Vaitialingam and Another [1978-1979] 2
Sri L. R. 166, 167.
(2) Corea v. Iseris Appuhamy (1911) 15 NLR 65.
(3) Mohamedaly Adamjee v. Hadad Sadeen (1956) 58 NLR
217, 225.
(4) Girigoris Appuhamy v. Maria Nona (1956) 60 NLR 330, 331.
(5) Kodituwakku v. Anver and Others C.A. 13/81 D.C. Matara
7475/P, C.A Minutes of 10.12.1985.
(6) Karunaratne v Sirimalie (1951) 53 NLR 444.
(7) Sediris Appuhamy v. James Appuhamy (1958) 60 NLR 297,
302, 303.
(8) Danton obeysekera v. Endoris (1962) 66 NLR 457.
APPEAL from a judgment of the District court of Gampaha.
P. A. D. Samaasekera. P. C. with G. L. Geethananda for 6th
and 7th defendants-appellants.
N. R. M. daluwatte, P.C. with Miss S. Nandadasa for plaintiff-
respondent.
Cur. adv. vult.
February 7, 1986.](https://image.slidesharecdn.com/prescrition-co-owners-pdf-160825164425/85/Prescrition-co-owners-pdf-281-320.jpg)
Prescrition co-owners- pdf
- 1. Contents PONNAMBALAM V. VAITIALINGAMCO OWNERS PARTITION ACTION CLAIM BY DEFENDANTS THAT CORPUS AMICABLY DIVIDED AND SO POSSESSED PRESCRIPTION PRINCIPLES APPLICABLE..............4 COREA v. APPUHAMY et al.Prescription-Possession by one co-heir enures to the benefit of the other co-heirs-Adverse possession.................................................13 TILLEKERATNE et al. v. BASTIAN et al. Prescription-Long-continued exclusive possession by one co-owner- Presumption - Lost grant - Dedication of highway - Ouster - Adverse possession..............................................................................................34 ABDUL MAJEED, APPELLANT, AND UMMU ZANEERA CO-OWNERS-PRESCRIPTIVE POSSESSION BY A CO-HEIR-OUSTER-FIDEICOMMISSUM FOR FOUR NERATIONS-COMPUTATION OF PERIOD- PRESCRIPTION AGAINST REMAINDER-MEN AND MINORS-BURDEN OF PROOF-PRESCRIPTION ORDINANCE (CAP. 55), SS. 3, 13- EVIDENCE ORDINANCE, S. 114.....................................................60 HUSSAIMA Vs A. L. UMMU ZANEERA Respondents Co-owners-Prescriptive possession by a co- owner-Adverse title-Burden of proof- Fideicommissum for four generations-Burden of proof regarding termination of successive interests and of any disability-Prescription Ordinance, ss. 3, 13. .....................................................................................................................................................93 DANTON OBEYESEKERE vs ENDORIS Co-owners-Separate possession of a portion of the co-owned land by one of the co-owners-Inference of prescriptive possession and title. ..............................103 P. K. J. NONIS vs H. D. PETHTHA Co-owners-Informal partition of a number of lands-Exclusive possession, by one co-owner, of a specified land thereunder- Adverse possession-Prescription Ordinance (Cap. 68), s. 3 73 New Law Reports Page No 1 ...................................................................................................................119 U. G. JAYANERIS VS U. G. SOMAWATHIE Volume 76 New Law Reports Page No 206Partition action-Claim to part of corpus by the contesting defendants on basis of prescriptive possession- Possession by same person as agent of the contesting defendants and on behalf of some of the co-owners-Adverse possession-Burden of proof............................................................................126 Y. C. PERERA vs D. L. D. C. KULARATNE Partition action-A co-owner's claim to a portion of the corpus exclusively-Evidence led, by him that a subsidy to replant rubber on that portion was granted to him upon an application made by him under the Rubber Replanting Subsidy Regulations, 1953- Weight of the evidence-Trusts Ordinance, s. 92-Rubber Replanting Subsidy Act (Cap. 437)........................................................................................................................................132 M. M. BELIN NONA, Appellant, and H. K. PETARA- Co-owners of two lands-Averment that both lands were amalgamated and divided among the co-owners-Prescriptive possession thereafter of the parts severally allotted-Proof. It is only rarely possible for a party successfully to maintain that there had been an actual division of a land among co-owners and prescriptive possession thereafter of the parts severally allotted. The difficulty of proving separate title is all the more difficult when two lands are said to have been amalgamated and the same persons are not shown to have owned the same shares in the two lands..........................................................................142 HAMTOU LEBBE v. GANITHA. Co-owners-Prescriptive title-Long-continued exclusive possession- Presumption of ouster....................................................................................................................144 SIDERIS vs SIMON Prescription-Co-owners-Long continued and undisturbed possession- Presumption of ouster-Question of fact. In an action between co-owners the question whether a presumption of ouster may be made from long continued and undisturbed and uninterrupted possession is one of fact, which depends on the circumstances of each case...............................157 RAJAPAKSE vs HENDRICK SINGHO Co-owners-Exclusive possession of the common property by some of the co-owners- Effect-Ouster- Prescription. Fresh evidence-Retrial-Permissibility.........163
- 2. JAMIS PERERA ANDANOTHER v. CHARLES DIAS AND OTHERS Prescription - Prescription among co- owners - Division and adverse possession of co-owned property. ................................................171 LEISA AND ANOTHER v. SIMON AND ANOTHER Rei Vindicatio - Prescriptive rights - Presumption of right to possess - Difference between possession, occupation and dominium - Prescription Ordinance, section 3 - Plaintiff claims paper title as well as by prescription - Should the plaintiff prove prescription...........................................................................................................................175 FERNANDO v. FERNANDO New Law Reports Volume 44, Page No 65 Co-owners-Purchaser of entire property from a Co-owner-Prescription- Ouster. ................................................................187 MARIA PERERA v. ALBERT PERERA Partition Amicable partition Ouster Prescription Sri Lanka Law Reports 1983 - Volume 2 , Page No - 399 ..........................................................................................194 BANDARA, Vs SINNAPPU 47 NLR 249 Where a Iand Panguwa consisted of gardens, deniyas and chenas and it was established that these deniyas were assweddumized by the various co-owners and possessed separately by them without interference by the other co-owners for a period of over twenty years-..........................................................................................................................203 P. P. G. SEDIRIS, vs M. S. ROSLIN In considering whether or not a presumption of ouster should be drawn by reason of long-continued possession alone of the property owned in common, it is relevant to consider the following, among other matters: (a) The income derived from the property. (b) The value of the property. (c) The relationship of the co-owners and where they reside in relation to the situation of the property. (d) Documents executed on the basis of exclusive owner ship. ......................................................................212 ANGELA FERNANDO VS. DEVADEEPTHI FERNANDO Partition Law, No. 21 of 1977, sections 2(1) and 25(1) -If land is not commonly owned is investigation of title necessary? - Ouster - Possession becoming adverse - Long continued possession by a co - owner? - Counter presumption of ouster. ........................................................................................................................................................233 LESLIN JAYASINGHE VS ILLANGARATNE - Sri Lanka Law Reports - 2006 - Volume 2 , Page No – 39 Partition Action-Evidence Ordinance, section 103-Burden of proof-Prescription 'Ordinance, No. 22 of 1871-section 3-Symbolic Possession-section 31, section 33,-Notaries Ordinance-t: Due Execution?-Notaries failure to observe his duties with regard to formalities 7- Registration of Documents Ordinance section 7-Prior Registration-Can it be raised in appeal 7- Mixed question of law and fact 7 - Co-ownersRights7-ouster vital..............................................................................244 PUNCHI MENIKE v. APPUHAMY et at. Diga marriage of daughter-Re-acquiring binna rights- Prescription among co-owners. A daughter married in diga can regain, even after her father's death, binna rights during the lifetime of her husband and without any divorce from him, or re- marriage in binna, by maintaining a close and constant connection with the mulgedara.There may be prescription among co-heirs where there is an overt act of ouster or something equivalent to ouster. But what might be acts of adverse possession against a stranger have, in questions arising between co-heirs, to be regarded from the standpoint of their common ownership. New Law Reports Volume 19, Page No 353 View - Volume 19....................................................................257 J. M. DON HANNY ALEXANDRA, vs Thomas Jayamanna Prescription-Co-owners-Family arrangement whereby property of deceased given to one of the heirs by the others-Oyster- Evidence of adverse possession thereafter by such heir-Acquisition of title by prescription........269 WICKREMARATNE AND ANOTHER v. ALPENIS PERERA Prescription among co-owners- Proof of ouster-Partition action. In a partition action for a lot of land claimed by the plaintiff to be a divided portion of a larger land, he must adduce proof that the co owner who originated the division and such co-owner's successors had prescribed to that divided portion by adverse possession for at least ten years from the date of ouster or something equivalent to ouster. Where such co-owner had himself executed deeds for undivided shares of the larger land after the year of the alleged dividing off it will militate against the plea of prescription. Possession of divided portions by different co-owners is in no way inconsistent with common possession. .....................................280
- 3. PIYADASAAND ANOTHER VS.BABANIS AND ANOTHER Partition Law, No. 21 of 1977 - Plea of Prescription - Co-owner prescribing to entire land?-Presumption of ouster - Essentials of a Kandyan Marriage - Special Law in derogation of the Common Law -Can a new point be raised for the first time in appeal?-Can there be a valid Kandyan marriage by way of habit and repute - Kandyan Marriage and Divorce Act, Section 3 - Presumption in favour of marriage under Roman Dutch Law - Evidence Ordinance, section 103. 2006 - Volume 2 , Page No - 17............................294
- 4. 1978-79 - Volume2 , Page No - 166 Sri Lanka Law Reports - 166 - and another - COURT OF APPEAL. RANASINGHE, J. AND TAMBIAH, J. C. A. (S.C.) 237/73 (I) D. C. JAFFNA 539/p. MARCH 27, 30, 1979. PONNAMBALAM V. VAITIALINGAM CO OWNERS PARTITION ACTION CLAIM BY DEFENDANTS THAT CORPUS AMICABLY DIVIDED AND SO POSSESSED PRESCRIPTION PRINCIPLES APPLICABLE. Held The question whether a co owner has prescribed to a divided lot as against the other co owners is one of fact and is to be detonated by the circumstances of each case. The mere reference to undivided shares in deeds executed after the alleged date of division does not have the effect of restoring the common ownership of a land which has been dividedly possessed and where such divided portions have become distinct and separate entities. The learned trial Judge had in this case correctly found that the corpus had been divided and separately possessed to the exclusion of the other co owners for about 30 to 40 years prior to this action and accordingly dismissed the action holding that at the time of its institution the corpus was not owned in common. Cases referred to (1) Corea v. Iseris Appuhamy, (1911) 15 N.L.R. 65; 1 C.A.C. 30. (2) Tillekeratne v. Bastian, (1918) 21 N.L.R. 12 (F. B.). (3) Abdul Majeed v. Ummu Zaneera, (1959) 61 N.L.R. 361 ; 58 C.L.W. 17. (4) Hussaima v. Ummu Zaneera, (1961) 65 N.L.R. 125, 64 C.L.W.7 (5) Danton Obeysekera v. Endiris. (1962) 66 N.L.R. 457. (6) Simon Perera v. Jayatunga, (1967) 71 N.L.R. 338.
- 5. (2) Nonis v.Petha, (1969) 73 N.L.R. 1 ; 78 C.L.W. 33. (3) Jayaneris v. Somawathie, (1968) 76 N.L.R. 206. (9) Perera v. Kularatne, (1972) 76 N.L.R. 511. (10) Belin Nona v. Petara, (1972) 77 N.L.R. 270. (11) Hamidu Lebbe v. Ganitha, (1925) 27 N.L.R. 33; 6 C. L. Rec. 159: 3 Times L.R. 102. (12) Sideris v. Simon, (1945) 46 N.L.R. 273. (13) Mensi Nona v. Neimalhamy, (1927) 10 C. L. Rec. 159. (14) Girigoris Appuhamy v. Mary Nona, (1956) 60 N.L.R. 330. APPEAL from the District Court, Jaffna. C. Thiagalingam, Q.C., with V. Arulampalam, for the plaintiffs appel¬lants. C. Ranganathan, Q.C., with K. Sivanathan, for the 2 (a), (b) and (c) defendants respondents. Cur. adv. vult RANASINGHE, J. The plaintiffs appellants (hereinafter referred to as plaintiffs) who are husband and wife respectively instituted this action to have the land called and known as Ella Silum and other parcels, 20 Ims in extent and described in the schedule to the plaint partitioned as between the plaintiffs and the 1st to 3rd defendants. The contesting defendants, who are the 2a 2c, and the 3rd defendants appellants, have taken up the position that the corpus had been amicably divided over 60 years ago, and has ever since the said division been dividedly possessed and that it is now not commonly owned, and that, therefore, the plaintiffs' action Should be dismissed.
- 6. The learned trialjudge has upheld the position taken up by the contesting defendants and has accordingly dismissed the plaintiffs' action. This appeal therefore raises once again the question of prescription among co owners, a question which has come up over and over again before our Courts and has received careful and exhaustive consideration both by the Supreme Court and by Their Lordships of the Privy Council. The co ownership of a land owned in common could be terminated broadly in one of two ways either through Court or out of Court. Common ownership could be brought to an end by an action instituted in Court for a partition in terms of the provisions of the Partition Act. The best evidence of such a termination would be the Final Decree entered by Court. Termination of common ownership without the intervention of court could be in one of two ways either with the express consent and the willing participation of all the co owners, or without such common consent. An amicable division with the common consent of all the co owners can take one of two forms: a division given effect to by the execution of a deed of partition or of cross conveyances which said notarial documents would then be the best evidence of such a termination or an internal division and the entry into separate possession of the divided allotments by the respective co owners to whom such lots were allotted at such division. In the case of a partition by court and an amicable division by the execution of the necessary deeds, the common ownership ends forthwith. In the case, however, of an internal divisions effected by the co-owners with the express common consent of them all, the common ownership does not in law come to an end immediately. In such a case common ownership would, in law, end only upon the effluxion of a period of at least ten years of undisturbed and interrupted separate possession of such divided portions. Proof of such termination will depend on evidence, direct and or circumstantial, and is a question of fact. The termination of common ownership without the express consent of all the co-owners could take place where one or more parties either a complete stranger or even one who is in
- 7. the pedigree¬ claimthat they have prescribed to either the entirety or a specific portion of the common land. Such a termination could take place only on the basis of unbroken and uninterrupted adverse possession by such claimant or claimants for at least a period of ten years. Here too proof of such termination would be a question of fact depending on evidence, direct and or circumstantial. I shall, before I proceed to deal with the facts and circumstances of the case, set down the relevant principles of law which are applicable to a case such as this. Any discussion of the principles relating to prescription among co owners must necessarily commence with the judgment of Their Lordships of the Privy Council, delivered in 1911 in the case of Corea v. Iseris Appuhamy (1)where it was clearly and authoritatively laid down: that a co owner's possession is in law the possession of other co owners : that every co owner is pre¬sumed to be possessing in such capacity : that it is not possible for such a co owner to put an end to such possession by a secret intention in his mind: that nothing short of ouster or something equivalent to ouster could bring about that result, Thereafter in the year 1918, in the case of Tillekeratne v. Bastian (2) a Full Bench of the Supreme Court was called upon to apply the principles laid down in Corea v. Iseris Appuhamy (supra) and con¬sider, inter alia, the meaning of the English law principle of a "presumption of ouster ", and it was held: that it is open to the Court, from lapse of time in conjunction with the circumstances of the case, to presume that a possession originally that of a co¬-owner has since become adverse : that it is a question of fact, whenever long continued exclusive possession by one co owner is proved to have existed, whether it is not just and reasonable in all the circumstances of the case that the parties should be treated as though it had been proved that that separate and ex¬clusive possession had become adverse at some date more than ten years before the institution of the action. Thereafter the, question has been considered over and over again by the Supreme Court, and in the year 1959, in the case of Abdul Majeed v. Umma Zaneera (3) in a very lucid and exhaustive
- 8. discussion of theprinciples relating to prescription among co owners and the presumption of ouster, which had been laid down up to that point of time by both the Privy Council and the Supreme Court con¬cluded : that the inference of ouster could only be drawn in favour of a co owner upon proof of circumstances additional to mere long possession : that proof of such additional circumstances has been regarded in our Courts as a sine qua non where a co-owner sought to invoke the presumption of ouster. This case thereafter went up in appeal to the Privy Council, and the Judg¬ment of the Privy Councli is reported (4). Although their Lordships regretted having to advise Her Majesty to dismiss the appeal, Their Lordships were nevertheless content to accept the relevant principles of law, as expounded by the Supreme Court. I shall now refer to the judgments reported after the judgment (4) referred to above which have dealt with the question. In the case of Danton Obeysekera v. Endiris (5), Sansoni, J. held that where an outsider bought a 2/3 share, about two roods in extent of a co owned property, from two co owners and sepa¬rated off such portion, not as a temporary arrangement for conveniences of possession, but more likely as a permanent mode of possession, and possessed it for over twenty years, the lot so separated off ceased, with the lapse of time and exclusive pos-session, to be held in common with the rest of the land, and that those who so possessed it were entitled to claim that they have prescribed to it. This decision does not, in my opinion, in any way offend against the principle referred to by (H. N. G.) Fernando, J. The additional circumstance that was required was supplied by the 1st defendant's prosecution of the 2nd defen¬dant for destroying the barbed wire fence which had, been erected to separate off the portion which was then being sepa¬rately possessed by the 1st defendant. The subsequent Judgments of Siva Supramaniam, J. in Simon Perera v. Jayatunga (6) at p. 431 of the Privy Council in the case of Nonis v. Peththa (7), of Weeramantry, J. in Jayaneris v. Somawathie (8), of Pathirana, J. in Perera v. Kularatne,(9), and of H. N. G. Fernando, C.J. in Belin Nona v. Petara (10),
- 9. which have alsodealt with the question of prescription among co owners, have not expressed any views which in any way, tend to deviate from the principles made explicit in the judgments of the Supreme Court in the case of Abdul Majeed v. Ummu Zaneera (supra) and approved by the Privy Council. It has also been laid down that the question whether a co- owner has prescribed to a particular divided lot as against the other co owner is one of fact and has to be determined by the circumstances of each case (2). (11.), (12), (3), (5), (6) at p. 343. It is also now settled law that the mere reference to undivided shares in deeds executed after the alleged date of division does not have the effect of restoring the common owner¬ship of a land which has been dividedly possessed and where such divided Portions have become distinct and separate entities (13), (14) at p. 332; (6) at 343. The principles applicable are, therefore, quite clear and unambiguous and have been authoritatively laid down ; but, as it very often happens, the real difficulty arises only in their application to the facts and circumstances which are established in a particular case. I shall now proceed to consider whether, having regard to the principles set out above, the learned trial judge's finding that the corpus sought to be partitioned had been amicably divided and, had been dividedly possessed for a long period of time prior to the commencement of the proceedings and that the corpus had, therefore ceased to be owned in common at the time the plaintiff instituted this action. As already stated, the position of the contesting defendants in this case is that the amicable division had taken place about 60 years ago. No witness is available to them to give direct evidence with regard to the said division which the contesting defendants claim had taken place. They, therefore, rely on circumstantial evidence to establish their claim. The learned trial judge hag found that the parties, who are said to be entitled to interests in the corpus, have in fact been separately possessing the several lots depicted in the Plan X : that the said parties have so possessed the several lots dividedly to the exclusion of the other co owners ; that such exclusive possession has gone on for about 30 40 years prier to
- 10. the institu¬tion ofthis action ; that the fences separating the various lots are very old live. fences; that the said fences are boundary fences and not " screen fences ". These findings of the learned trial judge are supported by the evidence placed before him at the trial and there does not seem to be any good reason to interfere with the said findings of the learned trial judge. It is also clear that lot, 7 on which the well stands has been separately fenced in, and that access has been Provided to this lot from all the other lots 2, 4, 8. 10 and 11 along well defined path ways. The learned trial judge has also found that, prior to the dis¬pute raised by the plaintiff, shortly before the commencement of these proceedings, to the construction of a kitchen by the contesting defendants on lot 4, substantial buildings had been put up by the contesting defendants on lot 4 without any protest from the plaintiffs. The 1st defendant has also thereafter constructed a building on lot 4. The 1st plaintiff who has been in possession of lot 2 stated that he himself has built a house on lot .2, and that before that house was constructed by him, there was on that same lot an old house in which his grandmother and also his parents had resided. It also transpired in evidence that the 1st defendant, who is said to have been allotted lot 11, had removed the southern boundary fence of lot 11 and amalgamated lot 11 in Plan X with lot 12, which is a portion of the land lying to the south of lot 11 and which also belongs to the 1st defendant. The learned trial judge has stated that, when the 1st defendant carried out such amalgamation, there had been no protest from the plain¬tiffs and that such silence on the part of the plaintiffs was because they, considered lot 11 to be the exclusive property of the 1st defendant. The deeds P2 of 1917, 1 13 and P4 both of 1935, and P5 executed only a few days before the plaintiff came in to court in June, 1961, deal with undivided shares in the corpus. Whilst P2 has been executed as far back as 1917 which is the year in which the amicable division referred to by the contesting defendants is said to have taken place, P3, which has been executed in 1935 is in the chain of title" of those who have
- 11. been in posses¬sionof lot 11 which, as already stated, had been separately possessed by the 1st defendant. Even though evidence was placed on behalf of the plaintiffs that other co owners too had ,exercised acts of possession over lot 11, such evidence has not been accepted by the learned trial judge. The deed P4, like P5 referred to above, figure in the Pedigree of those who have been in possession of lot 2. The learned trial judge has taken the view that the references to undivided shares in these deeds do not militate against the position put forward by the contest¬ing defendants, and that such descriptions have been made not with reference to the actual mode of possession but as a result of the notaries merely following the descriptions in the earlier title deeds. Having regard to the circumstances of this case, I do not think that the view taken by the learned trial judge could be said to be untenable. The additional circumstances which, according to the principles referred, to earlier, is required in a case of this nature has also, in my opinion, been established in this case by the contesting defendants. The contesting defendants produced marked 2D1 a certified copy of a complaint made by the 1st plaintiff in this case, on 21.2.1958, against the deceased 2nd defendant to the Rural Court of Chankani, in Case No. RC/C/CRM 1054, that the said 2nd defendant has failed and neglected to fence the southern boundary fence of the 1st plaintiff's dwelling land, in breach of Rule 46 of the Village Committee Rules of 3.2.1928, and the said 2nd defendant has therefore committed an offence punishable under section 26 (1) Rural Courts Ordinance 12 of 1945. According to an entry dated 25.3.1958, appearing on the face of the said document Dl itself, the 1st plaintiff had thereafter informed court, that, as the said 2nd defendant had erected the fence, he was withdrawing the case ; and that the 2nd defendant has then been discharged. According to the Plan 'X' the lot possessed by the 1st plaintiff and on which he resides, is lot 2, and to the south of lot 2 is lot 4 which was possessed by the said 2nd defendant. The southern boundary of the 1st plaintiff's dwelling land would, therefore, be the boundary between lots 2 and 4 in Plan 'X'. The 1st plaintiff, on being questioned with regard to the said case, admitted having filled it but denied that he described the fence in question as a
- 12. " boundary fence". His position is that he himself called it a "screen fence" but that the Chief Clerk, who had written out the complaint (the original of 2Dl) had described it as a " boundary fence " without his authority. The learned trial judge has disbelieved the 1st plaintiff's evidence on this point. The 1st plaintiffs description of the fence which had been erected to separate lot 2 from lot 4 in Plan X, shows that these lots have been so separated off " not as a temporary arrange¬ment for convenience of possession but more likely as a permanent mode of possession ". As already stated, once the said 2nd defendant re erected the fence in question, the 1st plaintiff had withdrawn the case. It appears to me that the 1st plaintiff's acts as embodied , 2D1, gives a clear indication of the nature and the character of the possession of the various lots, depicted in Plan 'X' by the respective co owners. On a consideration of these facts and circumstances, I am of opinion that the learned trial judge's finding that the corpus was not, at the time of the institution of this action, owned in common is correct and should be affirmed. The appeal of the plaintiff s' appellants is accordingly dismissed with costs. TAMBIAH, J. I agree. Appeal dismissed. New Law Reports Volume 15, Page No 65 New Law Reports D.C. Chilaw, 3,934. [PRIVY COUNCIL.]
- 13. Present: Lord MacNaghten,Lord Mersey, and Lord Robson. COREA v. APPUHAMY et al.Prescription-Possession by one co-heir enures to the benefit of the other co-heirs- Adverse possession. Possession by a co-heir ensures to the benefit of his co-heirs. A co-owner's possession is in law the possession of his co- owners. It is not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or some thing equivalent to ouster could bring about that result. The whole law of limitation is now contained in Ordinance No. 22 of 1871. THE facts of this case are fully set out in the judgment of the learned District Judge (T. W. Roberts, Esq.): - The plaintiff in the present action seeks a partition of the fifteen lands mentioned in the schedule attached to his plaint on the strength of his purchase in 1907 of two-thirds share thereof from Balahami and her two nieces, Allina and Nonnohami. The plaintiff and his vendors say that they were at the date of transfer under the impression that Balahami had married after the Matrimonial Ordinance, and that her children had not on their father's death become entitled to any part of Balahami's share. It subsequently turned out, however, that Balahami's marriage was dated before 1876, and was in community of property. So her two children have intervened, and claimed each one-third part of one-half of the share to which Balahami was entitled. Their claim is admitted by the plaintiff. In another point, too, the facts stated in the plaint are not accurate. Therein all fifteen lands are asserted to have formed part of the estate of one Elias, and so on his death to have devolved in part on his sister Balahami and nieces and nephews above mentioned. It was asserted, however, at the trial that certain of these lands never formed part of Elias's estate, and plaintiff thereupon disclaimed title to such of those lands as, may appear on the title deeds to have been bought
- 14. originally in thename, not of Elias, but of first defendant, Iseris. The lands in question form a large and valuable estate of over one hundred acres, mostly now in full bearing. The title deeds thereto, on which both the contesting parties rely, convey title to one Elias. Elias died in 1878. Since that date all the lands have been in the occupation of the contesting defendant, Iseris, the brother of Elias. The plaintiff's vendors allege title by inheritance from Elias. They say that Elias was a man from Baddegama, which is situated in the Galle District, 120 miles distance from Chilaw; that he migrated, and made a large fortune in Chilaw District and died here. Their case is that Elias was one of a numerous family, and had one brother, the first defendant. Iseris, and three sisters, Babahami, Balahami, and Sinnatcho, Babahami, according to the plaint, died childless. Balahami married, had three children (the intervenients) by her first husband, and another child, a bastard, by her second consort. She is still alive. Sinnatcho died in Galle District, leaving two daughters, Allina and Nonno. The plaintiff led evidence to show that after the death of Elias Balahami came to Chilaw District with her children and her second consort to seek her patrimony on receipt of news that Elias had died and left a big estate; that some years thereafter Sinnatcho's husband and children also migrated to this district; and that both have thereafter allowed first defendant, Iseris, as the chief male member of their family, to manage and possess their estate. They say that during the thirty years since their migration the first defendant, Iseris, had up to 1907 all along acknowledged their title as his co-heirs, and made them continual advances of money and provisions pending final settlement of the estate. They allege that Iseris deceived them into the belief that he had taken out administration, and had to pay all debts before the property could be divided among the heirs. To all this Iseris gives a total denial. He says that he was partner with Elias, and that on Elias's death he took possession of the estate as his own, and has all along possessed it as such. He denies the allegations as to his kinship with plaintiff's
- 15. vendors, and saysthey are his cousins. During his de facto possession for thirty years he has planted and leased, mortgaged, and sold various of the lands, and generally dealt with them as owner. He has, he says, been frequently liberal to his cousins, and allowed Balahami to live on one of the lands in question. But he denies that he thereby acknowledged their title, and says that what he did was simply matter of charity. The issues as to the pedigree and as to Iseris's alleged partnership with Elias need not detain us long. As to the pedigree, there is a considerable resemblance in physiognomy between Iseris and Balahami; and two witnesses from Baddegama, of a goodly age, have testified that the plaintiff's account of the pedigree is the truth. Their depositions, it is true, displayed a wonderful accuracy of memory in regard to the names of many members of Elias's family. Such accuracy in nomenclature could, in Sinhalese village folk, only be the result of careful preparation. But the drilling required to produce that exactitude may have been their own effort. My impression, on the whole, was that these two were honest witnesses, and their statement is confirmed by facial resemblance above noted. I should have accepted that evidence, even if it had stood alone. As it is, the plaintiff has also filed a number of ola extracts of registration, which conclusively prove the pedigree of his vendors. I accordingly find for plaintiff on issues 4, 5, 6, and 8. Similarly, I have no hesitation in finding for plaintiff on issue 10. The only proof that the title deeds, which stand in the name of Elias represent purchases with partnership money, consists in the ipse dixit of Iseris. Now, Iseris's evidence is deeply interested, and worthless on that ground alone. Moreover, Iseris is a convicted forger and thief. And his deposition in the present case directly and categorically contradicts on every possible point the evidence which he gave in D. C. Chilaw, No. 3,855. On the mere statement of such a witness, expert not only in crime and incarceration, but also in perjury, I am not prepared to find any fact proved in the absence of their corroboration aliunde. On the contrary, I shall take steps to prosecute him for his perjury.
- 16. There remains thecrux of the case the question of prescription. Iseris has admittedly had de facto possession for practically thirty years, and it has to be decided whether that was precarious possession or possession on an adverse and independent title. The law on this point was exhaustively discussed by the plaintiff's proctor, but I find myself unable to agree with much of his argument, endita as it was. He argued, firstly-and this much, it seems to me, was clearly sound-that no length of precarious possession, even if unaccompanied by payment of rent or other such acknowledgment, can found a valid prescriptive, title. Further, non-enjoyment, for however long continued, will not by itself destroy title to property precariously possessed by another. To that extent it is manifest that the finding of the Privy Council in Nagudu Marikar v. Mohamadu 1 has over-ruled the decision reported at Vanderstraaten 44. But the plaintiff's argument went further. Mr. C. A. Corea contended also that on the over-ruling of the decision reported in Vanderstraaten 44 the law reverted to its condition as it stood under the more ancient decision to be found in Morgan's Digest 21 and 273. Now, this is clearly not the fact. While the Privy Council in Nagudu Marikar v. Mohamadu did in fact over-rule any previous decisions in so far as they may have held that a precarious possession may give a prescriptive title, it over- ruled nothing else, and nowhere has ruled that the law of prescription is now the law laid down in the judgment in Morgan's Digest, at page 273. If the two decisions be examined, it will be found that they are profoundly at variance. What was held in Nagudu Marikar v. Mohamadu was that not even centuries of precarious possession will found a valid prescriptive title. Whereas in the decision reported in Morgan's Digest, it is clearly implied that thirty years precarious possession will found and create a valid title. The two decisions are therefore directly at variance on that point, and it is a contradiction in terms to say that the later re-establishes the earlier. Again, it is now settled law that since the Ordinance of 1871 the Roman-Dutch law of prescription has been superseded
- 17. (vide l N.L. R. 200). This was a decision of the Full Court, and there are others. There is nothing inNagudu Marikar v. Mohamadu which over-rules this. But with this view of the law it is impossible to reconcile the decision reported in Morgan's Digest. The latter supports and defends the Roman-Dutch law, the common law as it stood. Among other things, it decides that a precarious possessor, in order to obtain a good title by prescription, must transform the character of his possession, not merely into an adverse possession, but into an adverse possession based on a bona fide title. It also recognizes the distinctions between prescription longi andlongissum temporis. But our present law recognizes none of these distinctions. Under the decision reported at lN. L. R. 200 and under many others and clearly under the words of the statute, it matters 1 (1903) 7 N. L. R. 91. not whether the prescriptive possession commences with a bona fide title or otherwise. What is required, and all that is required, is that there should be proof of ten years' unbroken possession, or an adverse and independent title. It makes no difference whether the title be just or unjust. It is necessary only that it should be adverse and independent. To interpret the word " title " in the statute as meaning only a Justus titulus is unwarrantably to import in to it a meaning which is not there. It is as if one were to agree that the abstract word " colour " does not mean any colour but only blue, or the word " triangle " refers only to the isosceles and not to the scalene variety. The law is, therefore, that one coheir, so long as he possesses the property precariously on a derivative or dependent title (which involves acknowledgment of the title of the other co- heirs), cannot by such possession prescribe against his co- heirs. It is not true that he can never, under any circumstances, prescribe against them. If he sets up an adverse title, and by overt acts to the knowledge of his co- heirs defies their title and disclaims the precarious character of his possession, and thereafter has the uninterrupted possession on such adverse title for ten years without payment of rent or other acknowledgment of their collateral title, he will thereby acquire a good prescriptive title. To hold otherwise would be to
- 18. encourage the carelessin his lack of care and the fool in his folly, it would enable indolent co-parceners to rely on their own laches and oust innocent purchasers for value of apparently good prescriptive titles. The numbers of such purchasers are great in Ceylon, and the view of the law which Mr. Corea advocated would amount to a social revolution. The burden, therefore, lay on plaintiff to prove that Iseris's possession began or went on in a precarious or permissive character. If he did so he would shift the burden on to Iseris, who would have to prove how and when he converted this dependent character of his title into one of independence. I have come to the conclusion that plaintiff has wholly failed to prove that Iseris's possession either began or went on in a precarious character. He has equally failed to account for a long series of overt acts ut dominus on Iseris's part, which would long ago have transformed the character of his possession from precarious to adverse, if it had ever stood in need of such change. I have summarized above the explanation which the plaintiff's vendors gave of the long occupation by Iseris. When we come to consider the proof of that story, its paucity and weakness are strikingly apparent. Practically the only proof that Iseris possessed, not as owner but as agent for his co-heirs, consists of the evidence of those co-heirs. Their word deserves little credence. They are persons neither of worth nor position. They stand to win or lose on this litigation a large sum, in each case running into over Rs. 1,000. With so large a stake involved, it is certain that persons of their sort and position will depose to almost any falsehood. But I consider at length their counsel's argument on the facts, because the property involved is very large. Mr. Corea appears to have recognized that his evidence on the matter of possession was slender, and attempted by his argument to show that the evidence for plaintiff was supported by the balance of probability. He set out, in the first place, to prove that Iseris had, on his brother's death, taken out administration, and then got the record of administration proceedings destroyed to cover up his track. Now, the record is lost, and Iseris has, by document D 37, clearly demonstrated that ha complained to His Excellency the Governor of its loss
- 19. and of othermatter, and that on his complaint thirty years ago a record keeper of this Court was dismissed. If Iseris had wished to destroy it, and had got it destroyed, why should he complain of its loss? And why should the Government of Ceylon have on that complaint dismissed the record-keeper? These facts are irreconcilable with the suggestion that Iseris procured its destruction. That suggestion is evidently the merest verbiage. The proof of administration having been taken out by Iseris is defective, and consists chiefly of a dubitant recollection of Mr. Cooke's, of the general belief in and around Galmuruwa, and of hearsay. It seems to me that the proof of that has failed, and so I find on that issue. The argument of plaintiff's proctor was to the following effect. Migrations of Sinhalese to distant districts are rare, and never made without good reason. The only reason why Balahami and her nieces could have come to this district, he contended, was that they were seeking their share of Elias's large estate. Having so come, they would, he urged, be sure to demand that share and did so demand it. If Iseris had then refused, litigation would have been, it was argued, sure to have begun at once. Therefore, Iseris must, as they say, have admitted their claim, and entered on and thereafter continued his possession in the dependent title of manager for his female relatives. Thereafter, it was natural, and in accord with Sinhalese customs, that they should allow him to manage as he pleased, as it was not inconsistent with his position that he should give out the lands on planting agreements; and leases, and mortgage them to meet expenses. His sales were matter which they did not know or understand to be sales of their shares. It will be seen at once that this agreement begins with a daring petitio principii, and continues along a road liberally paved with examples of the fallacy of non sequitur. In the first place, it is not true that the only reason why Balahami and then Sinnatcho's children should have migrated was that they came to demand share of Elias's estate. Any number of equally natural reasons are possible and conceivable. It may have been that Balahami found her own village uncomfortable after her illicit relations with her second consort. It may have been, and this was probably the case,
- 20. that they migratedin the simple hope of charity or employment. With kinsfolk at the end of the journey, such migrations are not in the least uncommon, because the people of Ceylon invariably show the most admirable liberty to any of their kinsfolk, at least any with whom they have not quarrelled. The assertion that the object of their migration must have been to demand a share of their dead brother's estate was the coping stone of the whole argument. That assertion is not fact, and consequently the whole argument crambles away. Not only is it not true, there is on the record proof of facts which clearly and firmly negative that suggestion. It is admitted that Sinnatcho's children did not migrate till some years after Balahami. But if the reason for migration had been to enter on the estate of Elias, which they say had devolved on them, it would have been most natural that they should migrate simultaneously, or at any rate in quick succession one after the other. Again, it appears from the admission of plaintiff's own witness that Elias's other sister, Babahami, did not die childless, as the plaint avers she did. She left four children at her death. Neither she nor her children, however, have ever migrated. Now, if the statement of Balahami had been true, and if on the death of Elias Iseris had apprised his kinsfolk in Baddegama of that death, and their consequent title to Elias's estate, we may be sure, with the same certainty with which we know that 2 plus 2 makes 4, that Balahami and the family would not have left that fortune, which awaited them, to go a begging. It is, therefore, beyond doubt that Balahami's evidence as to the object of her migration is totally false. In the next place, it is clear, since Iseris is not shown to have been administrator, that at the date of his entry on Elias's estate he did not ask, nor need to ask, the consent of his sisters. Elias died in 1878. Iseris came out of jail at the end of that year, or in 1879. Balahami, if we accept her own evidence as given in 3,855, migrated five years after her father died, and she was thirty or thirty-five years old when her father died. She wag born in 1850. It follows that she was about thirty-five when she migrated, and that fixes the date of migration at 1885, but almost certainly not earlier. Therefore, Iseris had
- 21. had seven years'possession before Balahami appeared on the scene. In the third place, supposing for the sake of argument that the object of her migration was to claim share of Elias's estate, and that she did so claim it does not in the least follow that Iseris admitted her claim. She was a new arrival, and poor. Iseris was a criminal, and had in his possession the title deeds. Looking at his unsavoury past, it is infinitely more probable that he did not admit her claim. His interest in the law as to co- heirs was probably slight. It is far more natural to suppose that his entry on the estate of Elias and his continuance therein was based on nothing else than the ancient doctrine that he should take who can, and he should keep who has the power. That being so, supposing Balahami had demanded share of the estate and Iseris had refused, it is not clear why litigation should follow. He had seven years' possession behind him. He had the title deeds. He had the money. Balahami had nothing; what is more likely than that she accepted his bounty and dropped her claim? She would buy her claim in those circumstances? How could she fight the claim herself? That is a double non sequitur,then, when it was argued that Balahami must have demanded her share of the estate and must have got it. These things were neither necessary nor probable. Continuing further, the extraordinary temerity of the argument and evidence for plaintiff reveals itself yet more glaringly. According to Balahami-and the remark applies, mutalis mutandis, to her nieces-she owned one-third share of the estate, and Iseris admitted that. On Iseris's estimate in his deed of gift the property is worth Rs. 70,000. On Balahami's statement, of the value, Rs. 80,000 thirty years ago. According to her present estimate of the crop (100,000 coconuts at a plucking), it yields an income of Rs. 24,000 per annum, and must be worth Rs. 240,000. Much of it has been in bearing for many years. At the lowest estimate her share of the income for the last twenty years ought to have been Rs. 3,000 per annum. Nevertheless, she comes into Court in the garb of poverty. She has admittedly remained poor, while Iseris has been rich. She has given her sons and nieces in marriage without portions. She has lived on Rs. 200 per annum, though the income should
- 22. have been Rs.3,000, and had never complained about it. One of the husbands of her nieces said that he used to come and get Rs. 50 or Rs. 60 every other month from Iseris. Yet he, too, showed no signs of wealth. On his statement of income and expenditure he ought to have now in his possession Rs. 3,000 or Rs. 500 cash. He has not got it, and says he spent it on vedaralas. To do so would take him over a century, I have no doubt that his statement was false. Finally, Balahami and the rest wish me to believe that for thirty years they have believed Iseris's statement that he was still administering the estate, though they received no notices as heirs, and that they never suspected his intentions during that long period, though he has leased and mortgaged the lands, Sinhalese villagers may be ignorant, but they are not stupid in this degree. The whole story, as the vendors to plaintiff told it, appears to me be not only improbable, but hopelessly incredible. I am of opinion that Iseris's possession began and went on in defiance. He ejected the official receivers, and he ejected the mistress of Elias. He continued in a long series of overt acts, of which Balahami and his nieces were probably well aware, to lease, mortgage, sell, and plant, and otherwise dispose of the property as its sole owner. As he had entered in the character of sole heir or plunderer, whichever it was, so he continued, and acknowledged no title in any one else. He has acquired a good prescriptive title. The plaintiff's case must therefore fail, even if considered only as an action in rei vindicatione. As an action for partition it would fail even if his case had been true, because on his witnesses evidence certain of the co-heirs, viz., Babahami's descendants. remain unjoined , and because, doubtless, in the long list of lands, many of which plaintiff and his witnesses admittedly know little or nothing about, there are doubtless some to which other strangers have or claim title; as, for instance some of the persons who have planted them up. Plaintiff has not proved a title as against the world, even if all the witnesses evidence is true. I have to discuss yet another point. Plaintiff's purchase was criticized (1) as a speculative purchase, (2) as unprofessional conduct and dishonourable conduct. With the first criticism I
- 23. agree. The deedrecites a consideration of Rs. 18,000 as received before its execution. In fact, plaintiff and his vendors admit that the whole has not yet been paid. Up to date the vendors have received about Rs. 8,000, partly and mostly in cash, and partly in rice, kurakkan, legal advice, and such curious though valuable equivalents of the solid rupee. For the payment of the unpaid balance the vendors obtained no security. The plaintiff was aware that his purchase was of a disputed title, and that he could not lay his grasp on what he bought except by process of expensive litigation. Certainly it was a speculative purchase. It does not follow that it was dishonest, and Mr. Bawa in arguing at one and the same time that the purchase was a speculative purchase of a bad title, and also that the purchaser behaved unprofessionally in taking from his clients credit for the large unpaid balance, clearly fell into the fallacy known to the schoolmen under the name of circulus in arguendo. If the purchase was a speculative purchase of a bad title, the vendors have lost nothing, but gained considerably at the expense of their legal adviser. In that there was no dishonour. They, i.e., the vendors, confirm plaintiff's statement that he has paid them Rs. 8.000 of the consideration, and they make no complaint against him. It was argued that plaintiff's statement as to payment should be disbelieved. Reference was made to his vivacious past in the matter of litigation and to his cases with the present defendant. While, however, it is true that plaintiff is addicted to the habit of buying disputed titles, and has consequently been involved in plenty of litigation, both criminal and civil, he has never been found to have done anything dishonest or dishonourable. The criticism directed against him in the Privy Council decision in Corea v. Pieris1 bore reference to a case wrongly laid in Chilaw Court, but was based on a misapprehension of fact. And what is most material of all the defendant in the present case ought easily to have been able to show, if he seriously thought so. that the plaintiff has not paid Rs. 8,000 to his vendors. If in fact he* has not paid that sum, his vendors doubtless have not got it in their possession, and would probably have been unable to explain where it has gone to if they had been cross-examined on that point. They were not so cross-examined, and I conclude that
- 24. defendant did notat all firmly believe that that sum had not been paid. Anyway, the plaintiff is an advocate of this Court and a gentleman of wealth and position. His demeanour in the witness box was perfectly honest. Nor do I see any good reason, either in this case or in his some what lively and litigous past, why I should believe him to be anything but an entirely truthful witness. I cannot then agree that he has swindled his clients, or sought to deal with them improperly in omitting to secure them the unpaid balance of the consideration in the deed. He admits he owes that still. If he had denied it his conduct would have been unprofessional. If theirs had been a good title, the same criticism may perhaps have applied. In fact, it was a bad title; and his clients have gained Rs. 8,000 at his expense. It is certainly a matter of surprise that an advocate should indulge in such purchases of disputed titles. Such is not, I am sure, the ideal; nor, as I believe, or rather hope, the practice of his profession. But at the same time it does not appear that plaintiff had done anything dishonourable. For the reasons given above, the plaintiff's action must be dismissed with costs. I refrain from making an order that he should pay double costs, because, while I am anxious to discourage gambling in purchase of title to land and the application of the Partition Ordinance to such, the plaintiff has suffered enough in his loss or damage of loss of Rs. 8,000. Plaintiff appealed. H. A. Jayewardene (with him Chitty), for the appellant. Bawa (with him Wadsworth), for the respondent. The following judgment was delivered by the Supreme Court: - May 26, 1910. HUTCHINSON C.J.- This action was brought for partition of certain lands which the plaintiff alleged had been the property of Elias Appuhamy, who died unmarried and intestate in 1878 possessed of the said lands; and the plaintiff claimed an undivided share by purchase from some of the heirs of Elias. The first defendant, Iseris, denied the plaintiff's
- 25. 1 (1909) 12N. L. R. 147. claim; he alleged that some of the lands were bought in the name of Elias with the money of Iseris and Elias. and that others of them were partly bought in the name of Elias with the money of Iseris and Elias, and partly bought by Iseris after Elias's death; and he said that on the death of Elias he, as Elias's sole heir, entered into possession of all the lands, and has been in undisturbed and uninterrupted possession of them for ten years by a title adverse to and independent of the plaintiff and all others. The District Court held that Iseris had acquired a title by prescription, and dismissed the action. The contest is as to whether Iseris has proved his prescriptive title. The appellant contends that the District Judge went wrong in thinking that, when it was once proved that Iseris had had de facto possession for more than ten years, the burden lay on the plaintiff to prove that Iseris's possession began or went on in a " precarious " or permissive character; he contends that if the Judge had not made that mistake, he might have come to a different conclusion upon the evidence; and that the evidence raises in fact a presumption that Iseris took possession as one of the heirs, and not as sole heir, and that that presumption had not been rebutted. The remarks of the learned Judge about the burden of proof were mistaken. The burden lay on Iseris that he had such possession as is explained in section 3 of Ordinance No. 22 of 1871. But the Judge finds that Iseris's possession "began and went on in defiance"; that he acted from the time of his first entry in 1879 onwards as sole owner; and that "as he had entered in the character of sole heir or plunderer, whichever it was, so he continued, and acknowledged no title in any one else. He finds that Iseris had had at least seven years' possession before Balahami, the first of the alleged coheirs, appeared on the scene; he thinks it beyond doubt that Balahami's statement that she went there in order to claim her share is totally false; and that even if she did make a claim, it is infinitely more probable that Iseris did not admit it. It appears, therefore, that he was clearly of opinion that Iseris had proved such possession as section 3 required by a title
- 26. adverse to thatof the plaintiff and of those through whom the plaintiff claims; and that his opinion as to the burden of proof had no effect on his finding, for he finds that the evidence establishes that Iseris had proved that which he had to prove. With what intention did Iseris take possession on Elias's death? Did he mean to take possession as sole owner (whether as sole heir or otherwise), or only as one of the heirs? That is a question of fact on which I think that, upon the evidence, the Judge might fairly find as he did. Then, was his possession unaccompanied by any act from which an acknowledgement of a right in any other person would fairly and naturally be inferred? That is again a question of fact, and I think that again the finding of the District Court on it was supported by the evidence. I think that the appeal should be dismissed with costs. VAN LANGENBERG A.J.- This is an action brought under the Partition Ordinance. The plaintiff, claiming to be entitled to two-thirds of certain lauds, allots the remaining one-third to the first defendant. According to the title deeds the lands belonged to one Elias, who was born in the Southern Province, and migrated many years ago, when a young man, to the Chilaw District, where he traded successfully and amassed wealth. He died on July 23, 1878, leaving, according to the plaintiff, three sisters, Babahami, Sinnatcho, and Balahami, and one brother, the defendant, as his heirs. The plaintiff says that about twenty years ago Babahami died without leaving issue, and that Sinnatcho died about 1899 leaving two children. Allina and Nonno. By deed No. 1,181 dated December 5, 1907, the plaintiff acquired the right of Allina, Nonno, and Balahami. The first defendant claimed the whole land by prescription, and stated he had conveyed the lands in question to his son and the second defendant, reserving a life interest for himself. The second defendant was accordingly made a party in this action? The intervenients are the three children of Balahami. They say that their mother was married in community of property to
- 27. their father OvinisAppu, who had died prior to the execution of the deed in favour of the plaintiffs, and that therefore their mother could not convey more than one-sixth. They claim the remaining one-sixth for themselves. It has been proved that Babahami had married and left children, all of whom, it is said, are now dead. Who their legal representatives are has not been ascertained and there is nobody in this case to represent them. Further, it has been established that Elias lived with a woman called Kittoria, who claimed to be his wife.; she is no party to this action. I think our judgment should bind only those who are parties to this case. I accepted the learned Judge's finding as regards the pedigree. The first defendant states that he joined his brother Elias and traded with him in partnership but the lands which were bought with the profits of the partnership were purchased in the name of Elias alone; that when Elias died he was in jail, and when he came out soon afterwards he found two headmen in possession; that he turned them out and entered into possession himself and remained in possession ever since; and that he had dealt with the property for over thirty years as his own. Plaintiff, on the other hand, asserts that Balahami and her children and Sinnatcho's children left their village on hearing of the death of Elias and came to first defendant, who acknowledged their rights to share the inheritance from Elias by giving them from time to time sums of money, and by allowing Balahami to live on Medawatta, a land which formed part of that estate. First defendant, however, says that whatever he did for his sisters and nephews 75 and nieces be did it out of charity, and that us a matter of fact not one of them ever asserted title to any portion of Elias's estate. The learned Judge has gone very fully into the facts, and it is enough for me to say that I agree with his conclusion, that whatever may have been the first defendant's reasons for doing so, the first defendant at the earliest possible moment, i.e., directly he came out of jail, took possession of Elias's property on his own behalf and for his own benefit, and that he
- 28. has done nothingsince showing that he has acknowledged a right in anybody else. The Judge points out that for seven years not one of the family raised any questions as regards the first defendant's right to possession, and he does not accept the evidence led to show that first defendant in any way altered his position after the other members of the family appeared on the scene. Under our law there can be no doubt that one co-owner can acquire a prescriptive title as against his co-owners, though our Courts insist on strict proof of adverse possession. On the facts as found by the learned Judge, is the plaintiff in law entitled to a declaration that he has acquired prescriptive titles as against his co-owners? I understood Mr. Jayewardene to say, in answer to a question from me, that his contention was that when the owner of undivided share of land entered into the possession of the entirety, he must be presumed in law to have entered on behalf of himself and his co-owners, and that the onus was on him to show the starting of an adverse possession against them by proof of some overt act. I asked for some authority in support of this contention, but was referred to none. In the absence of any authority, I am unable to say that the contention is sound. It seems to me that the facts in each case must be considered before it can be inferred that one co-owner is in possession as agent of another. In this case, holding, as I do, that the first defendant entered in his own right and for his own benefit, I find that his possession became adverse at once, and continued so up to the date of the action. I would dismiss the appeal with costs. December 14, 1911. Delivered by LORD MACNAGHTEN: - This seems to be a very plain case. The action out of which the appeal has arisen was an action for partition of certain lands, part of the estate of one Elias Appuhamy of Galmuruwa, in the District of Chilaw. Elias died in July, 1878. He was never married, and he died intestate. His heirs were his brother Iseris and three sisters.
- 29. Taking by descentthe heirs took as tenants in common in accordance with the provisions of section 18 of the Partition Ordinance of 1863. 76 Elias came originally from Baddegama, in Galle District, about 120 miles from Chilaw. His father and mother and the rest of his family lived there, apparently in somewhat humble circumstances. Elias prospered in Chilaw. After a time he was joined by his brother Iseris, who says that he left home alone when he was ten years old, though he was probably three or four years older at the time. The two brothers kept a shop or store in Chilaw, in which they seem to have been jointly interested. But it is admitted that the lands in question in this action were the separate property of Elias. At the time when Elias died Iseris was in jail, under sentence of imprisonment for assault and robbery. The property being thus left derelict, possession was taken by officials of the District Court. It must be presumed that such possession was taken for the benefit of the persons rightfully entitled. Iseris came out of jail in December, 1878. Thereupon, or soon afterwards, he entered into possession of the intestate's lands. The circumstances under which the officials of the Court relinquished possession in his favour do not appear in evidence. It seems, however, to be immaterial whether there was an order of the Court on the subject, or whether the officials, who must have known who Iseris was, and must have been aware of his relationship to the intestate, retired in his favour without any specific directions. The Trial Judge says that they were " ejected " by Iseris, but no statement or suggestion to that effect is to be found in the evidence. Some time after the death of Elias, two of his sisters made their way to Chilaw. They seem to have been kindly treated by Iseris, who gave them small sums of money from time to time, and allowed them to obtain provisions from his shop without payment. Indeed, one of the sisters, named Balahami, lived for a long time in a house on Medawatta, which was one of the
- 30. plots or parcelsof land belonging to Elias, and part of his estate. In 1907 Iseris by deed settled the intestate's land on his son, reserving a life estate. This action on the part of Iseris was the talk of the neighbourhood. Balahami, who was then the only survivor of the three sisters, became alarmed. Lawyers were consulted. Under their advice Balahami brought an action for partition against Iseris. The action was confined to Medawatta, on the score, it was said, of expense, in order to save the stamp or fee which would have been payable if the whole estate had been the subject of the action. Then Iseris turned her out of her home. Being without means Balahami and other co-proprietors in the same interest sold their rights or claims to the plaintiff Corea, who was Balahami's legal adviser and advocate. He brought this action against Iseris. Iseris's son was afterwards made a party to the action. Iseris in his defence claimed, the benefit of Ordinance No. 22 of 1871, entitled " An Ordinance to amend the Laws regulating the 77 Prescription of Action." It is not disputed that by that Ordinance, or by an earlier Ordinance of 1834, which was repealed by the Ordinance of 1871, the old law was swept away. The whole law of limitation is now contained in the Ordinance of 1871. Section 3 enacts that " proof of the undisturbed and uninterrupted possession by a defendant in any action of lands or immovable property by a title adverse to or independent of that of the claimant or plaintiff in such action. ..... for ten years previous to the bringing of such action shall entitle the defendant to a decree in his favour with costs." The section explains what is meant by undisturbed and uninterrupted possession. It is " possession unaccompanied by payment of rent or produce, or performance of service or duty, or by any other act by the possessor from which an acknowledgement of a right existing in another person would fairly and naturally be inferred. " Then follows an analogous provision in favour of a plaintiff claiming to be quieted in possession of lands or other immovable property under similar circumstances.
- 31. In the presentaction the plaintiff, Corea, offered some evidence tending to prove that Iseris took out administration to Elias. There certainly was a testamentary case in the District Court relating to the intestate's estate. But the record of the case is missing, and it is not clear whether the case was concerned with an application by officials of the Court, or with an application by Iseris for administration. The District Judge held that it was not proved that Iseris took out administration to his brother's estate. The plaintiffals also endeavoured to prove that Iseris had acknowledged the title of his co-proprietors within ten years of the commencement of the action. On this point also the District Judge was against the plaintiff. Their Lordships accept the decision of the District Judge on these two points. In their Lordship's opinion they are not material to the real question at issue. Assuming that the possession of Iseris has been undisturbed and uninterrupted since the date of his entry, the question remains, Has he given proof, as he was bound to do, of adverse or independent title? His title certainly was not independent. The title was common to Iseris and to his three sisters. On the death of Elias, his heirs had unity of title as well as unity of possession. Then comes the question, Was the possession of Iseris adverse? The District Judge held that Iseris " entered in the character of sole heir or plunderer." " Whichever it was," says the learned Judge, "so he continued, and acknowledge no title in any one else. He has acquired a good prescriptive title " It is difficult to understand why it should be suggested that Iseris may have entered as " plunderer." He was not without his faults. He is described by the learned Judge, who decided in his favour, as " a convicted forger and thief," and " expert not only in crime and incarceration, but also in perjury." But is perhaps going too far 78 to hold that he was so fond of crooked ways and so bent on doing wrong that he may have scorned to take advantage of a good legal title, and may have preferred to masquerade as a robber or a bandit and to drive away the officers of the Court in that character. It is not a likely story. But would such conduct,
- 32. were it conceivable,have profited him? Entering into possession, and having a lawful title to enter, he could not divest himself of that title by pretending that he had no title at all. His title must have enured for the benefit of his co- proprietors. The principle recognized by Wood V.C., in Thomas v. Thomas,1 holds good: " Possession is never considered adverse if it can be referred to a lawful title." The two learned Judges in the Court of Appeal did not adopt in its entirety the suggestion of the Trial Judge. They both held that Iseris entered as " sole heir," and that his title has been adverse ever since he entered. They held that he entered as " sole heir," apparently because he had it in his mind from the first to cheat his sisters. But is such a conclusion possible in law? His possession was in law the possession of his co- owners. It was not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or something equivalent to ouster could bring about that result. There is no provision in the Ordinance of 1871 analagous to the enactment contained in section 12 of the Statute of Limitations, 3 & 4 Will. IV. c. 27, which makes the title of persons '' entitled as co-perceners joint tenants or tenants in common " separate from the date of entry. Before the Act was passed it was a settled rule of law that the possession of any one of such persons was the possession of the other or others of the co-proprietors. It was not disputed at the Bar that such is now the law in Ceylon. The learned counsel for the respondent, who argued the case with perfect candour, and said all that could be said on behalf of his client, did not, of curse, question the principle on which Wood V. C. relied in Thomas v. Thomas. His submission was that the Court might presume from Iseris's long-continued possession, undisturbed and uninterrupted as it was that there had been an ouster or something equivalent to ouster. No doubt in former times, before the statute of William IV., when the justice of the case seemed to require it, juries were sometimes directed that they might presume an ouster. But in the present case the learned Judge did not make any presumption of that sort. Nor, indeed, did Iseris before this action was brought attempt to rely on adverse possession. His pretence was that he was sole heir. In the first partition action
- 33. he swore thathe did not know the name of his father or that of his mother. He swore that Balahami was only a cousin; he knew nothing, he said, about his family, except that he was the only brother of Elias. For this audacious statement he was indicted 1 2 K. and I. 83. 79 for perjury at the instance of the Judge. He was convicted, and sentenced to fine and imprisonment. The Judge who pronounced sentence observed: "It is clear that he was determined to prove that he was the sole heir, and strenuously to deny anything that might count against him." Be that as it may. this is not a case in which the circumstances could justify the presumption of ouster in favour of such a man as Iseris. Their Lordships will therefore humbly advise His Majesty that the appeal should be allowed, the judgment of the Supreme Court and the judgment of the District Judge set aside, with costs in both Courts, and a decree made for partition of the lands which on the death of Elias passed by descent to his heirs. The respondents will pay the costs of the appeal. Appeal allowed.
- 34. TILLEKERATNE et al.v. BASTIAN et al. Prescription-Long-continued exclusive possession by one co-owner- Presumption - Lost grant - Dedication of highway - Ouster - Adverse possession. It is open to the Court, from lapse of time in conjunction with the circumstances of the case, to presume that a possession originally that of a co-owner has since become adverse. "It is a question of fact, wherever long-continued exclusive possession by one co-owner is proved to have existed, whether it is not just and reasonable in all the circumstances of the case that the parties should be treated as though it had been proved that that separate and exclusive possession had become adverse at some date more than ten years before action brought. " THE facts appear from the judgment. Bawa, K.C., and De Zoysa, for appellants.-A co-owner cannot prescribe against other co-owners unless he has actually ousted them, or has by some overt act intimated to them that he is no longer possessing on their behalf but is possessing adversely to them. [SHAW J.-Even if a co-owner possess for 150 years, is he supposed to be possessing on behalf of the other co-owners?] That would not make any difference. Law is not founded on relationship.
- 35. [DE SAMPAYO J.-Mustnot lapse of time shift the burden?] No. See Corea v. Appuhamy.1 None of the co-owners can prevent the possession of the whole land by one co-owner. [SHAW J.-The. only question is whether a presumption of ouster can be gathered from the length of time.] There is no room for the presumption of ouster here. If an ouster took place it can be proved, as the persons interested are alive and can give positive evidence of ouster. Counsel cited 2 Leader 74; Morgan Digest 21, 169, 273; 7 N. L. R. 91; 10 N. R. 183 (at 186); 3 N. L. R. 213, 137; 7 N. L. R. 91; 1 Cowp. 217; 3 A. C. R. 84; Koch 61 and 42; 1 S C. R. 64; Lightworn on Time Limit of Action 161; Indian Limitation Act 9 of 1908, s. 127; I. L. R. 33 Bom. 317; I. L. R. 35 Cal. 961. The Prescription Ordinance has completely repealed the Roman-Dutch law on the subject. Before Corea v. Appuhamy 1[1 (1911) 15 N. L. R. 65. ] was decided there is no reference in our cases to a presumption of ouster. If there be evidence of exclusive possession for a very long time, and evidence of something which ought to have put the 13 co-owner who is out of possession on his guard, and if he is guilty of gross laches, then there may be prescription. The evidence must be strong and convincing, and that is not the case here. See Brito v. Muthunayagam.1 [1(1915) 19 N. L. R. 38. ] If we introduce the theory of fictitious ouster, the decisions become valueless. E. W. Jayawardene (with him Batuwantudawa), for defendants, respondents.-Whether possession was adverse or not must be judged by the circumstances of each case. In 1893, when Tillekeratne bought the property, he did not enter into possession, nor was the property included in the inventory of Tillekeratne's properties when he declared himself an insolvent. We were allowed to have exclusive and notorious use of this land for forty years, and to take plumbago from it. In 2 S. C. C. 166 it was held that a co-owner cannot dig plumbago without
- 36. the consent ofthe other co-owners. Counsel cited also S. C. A. C. 8 and 1 C. W. R. 92 and 175. Ouster can be presumed from long and continued possession (2 Thorn. 188; 15 C. D. 87). Counsel also cited 29 Bom. 300; 33 Bom. 317, at 322; 1 S.C. R. 64; Koch 62; 13 N. L. R. 309; 1 Bal. Notes 88; 2 Bal., 40 and 70. Bawa, in reply. Cur. adv. vult. December 16, 1918. BERTRAM C.J.- The facts of this case seem to raise in a very clear and succinct form a question which was discussed, but not decided, in the case of Corea v. Appuhamy. 2 [ 2 (1912) A. C 230 ; (1911) 15 N. L. R. 65.]The decision in that case had a very far-reaching effect. It laid down for the first time, in clear and authoritative terms, the principles that the possession of one co-owner was in law the possession of the others; that every co-owner must be presumed to be possessing in that capacity; that 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 that nothing short of "an ouster or something equivalent to an ouster " could bring about that result. The question was raised in the argument in that case, and discussed in the judgment, whether in the circumstances of the case, even admitting these principles, an ouster should be presumed from the long-continued possession of the co-owner in question. The Privy Council, without negativing the possibility of a presumption of ouster, held that this was not a case in which the facts would justify such a presumption. The questions, therefore, to be decided for the purposes of the present case are:-
- 37. (1) What isthe meaning of the principle of the English law referred to under the expression " presumption of ouster "? (2) How far is it to be considered as being in force in this Colony? (3) Do the facts justify its application in the present case? The question of the conversion of a possession which in its origin is not adverse into an adverse possession has been the subject of prolonged, controversy in our Courts. The case with which our authorities mainly deal is that of the possession of a person occupy¬ing by the permission or license of the true owner. That case is, however, so closely akin to that now under consideration, namely, that of one co-owner possessing the common property, that the two cases may be conveniently discussed together. The principles governing them are identical. The problem before us is simply a problem of interpretation. What we have to do is to interpret and to apply to these two cases certain words which occur in section 3 of the Prescription Ordinance, No. 22 of 1871, namely, " Proof of the undisturbed and uninterrupted possession by a defendant in any action, or by those under whom he claims, of lands or immovable property, by a title adverse to or independent of that of the claimant or plaintiff in such action (that is to say, a possession 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) ..." Before addressing ourselves to this question, it would be con¬venient to ascertain what was the common law" applicable to it before this enactment, or those which it replaced, came to be enacted. The principles of the Roman-Dutch law with regard to these two cases, were as a matter of fact, not the same. With regard to possession by permission or license, a person who so possesses is said to possess precario. This form of possession will be found discussed in Voet XLIII., 26. A person who is in possession of property precario cannot prescribe
- 38. against the owner,however long his possession may be. A restitutory action in such a case can never be extinguished: Sic ut ne immemorialis quidem temporis prescription cesset (Voet XLIII., 26, 3.) In order to initiate a prescriptive title, it is necessary to show a change in the nature of the possession ( Cf Voet XLI, 2, 13.) It is otherwise with regard to possession by a co-owner. If one co-owner is in exclusive occupation of any part of the common property, or even of the whole' of it, for a period of thirty years, the claim of other co-owners for a partition of the property is absolutely prescribed, without the necessity of showing any change in the nature of the possession. " Si tamen unus coheredum res hereditarias totis triginta annis solus suo nomine proprio tanquam suas possederit ; magis est, ut in univeraum deciceps hoc cesaet indicium. " (Voet X., 2, 33.) See also Struvious X., 2,14; " Si autem unus ex coheredibus tantum possidet res hereditarias communes; tunc alter, qui non possidet, pest triginta annorum cursum actionem hanc movere nequit. " This distinction is recognized in French law, which in this respect follows the principles enunciated by Pothier. See Planiol, Droit Civil; vol. III., 2342. These are the principles of the Roman and Roman-Dutch law. Tillekeratne They are, however, only of historical interest, as it is recognized that our Prescription Ordinance constitutes a complete code; and though no doubt we have to consider any statutory enactments in the light of the principles of the common law, it will be seen that the terms of our own Ordinance are so positive that the principles of the common law-do not require to be* taken into account. Let us, therefore, consider the terms of our own Ordinance. In the first place, it will be convenient to put aside one part of the enactment which at one time caused considerable confusion, namely, the words enclosed in the parenthesis: (" that is to say, a possession unaccompanied by payment of rent or produce, or performance of service or duty, or by any other
- 39. act by thepossessor, from which an acknowledgment of a right existing in another person would fairly and naturally be inferred.") It was originally thought that these words, which appear for the first time in Ordinance No. 8 of 1834, were inserted in order to explain by way of an illustration the words " by a title adverse to, or independent of, that of the claimant or plaintiff in such action." This was so declared by the High Court of Appeal (see Vand. 45); and this appears to be the view taken by Chief Justice Marshall (see Marshall's Judgments 519). Subsequently, how¬ever, the words were held to constitute a complete definition. See Thompson's Institutes, vol. II., 189:- " Sir C. Marshall looked upon the words added in the Ordinance as a partial and incomplete explanation of the words ' adverse title, 'leaving it open to the law, as found in English reports and former decisions, to complete the explanation when required. But, in 1844, the Supreme Court enunciated that the words in the paren-thesis were not only ' some explanation,' but a declaration of what an adverse title is under the Ordinance. The Court, after repelling certain decisions, on the ground that they were unfortu-nately found on the general law independent of the express provisions of the Ordinance, went on to say: ' the Ordinance of prescription has not simply declared that a possession of ten years adverse to, or independent of, that of the claimant shall give a prescriptive title, leaving it to the Court to say what is, in the law, an adverse possession; but in the parenthesis in the second clause of the Ordinance it is also declared what shall be considered such an adverse possession under that Ordinance.' " See 6,587, C. E. Colombo, No. 4, August 6, 1844. The same interpretation was also enunciated in the judgment of the Full Court in C. R. Batticaloa, No. 9,653, in the year 1870, reported in Vand. 44. So late as 1892 this interpretation was adopted in its most unqualified form by Burnside C.J. in the case of Carim v. Dholl l: "In the present case the evidence leads to no other conclusion than that the defendant's mother entered into possession of the
- 40. tenement out ofthe charity of the owner, her brother; that she possessed it by residing in it with her family alone, without interruption or disturbance from him, for long over the prescriptive period, perhaps out of sheer benevolence, which he might have terminated at his pleasure, and during that period she never paid rent, nor performed service to him, nor did she do any act by which his ownership was acknowledged. I take it as beyond doubt that she acquired prescriptive title as against him and those claiming under him. " Lawrie J., however, in that case refrained from basing his judg¬ment on that ground. Thompson in his Institutes further records that this principle was applied in the very question since decided in Corea v. Appuhamy. 2Speaking with reference to the definition of " adverse title " given by the Supreme Court, he says on page 190: " It will be seen from the last of these definitions that, as joint tenants have a unity of title, time, interest, and possession, if one joint tenant obtains his legal possession of his co-tenant's share, he cannot be said at any time to have a possession inconsistent with the probability of any just right or title on the part of his co-tenant; and thus, under this old definition, which is that of the general law, no joint tenant could prescribe against his co-tenant. But the Ordinance is held to introduce a new definition, namely, that to found adverse title, all that is sufficient is that the possession should be unaccompanied with any acknowledgment of a right existing in another person. A definition which allows a collateral or joint tenant to prescribe as well as any other person. Accordingly, in all recent cases the Court has uniformly held that under that parenthesis there can be no exception drawn in favour of the possession of one co-heir, joint tenant, or tenant in common, not being adverse to the other, from the tenure of their estates alone; and, looking to the evil arising from the extreme subdivision of land in the Colony under the existing law of succession, it may be reasonably presumed that the Legislature intended to annul all distinctions in law between the possession of such persons and others."
- 41. All this mustnow be considered as superseded by the decision of the Privy Council in Corea v. Appuhamy (supra), which gave the coup de grace, if a coup de grace was needed (see per Wendt J. in Joseph v. Annapillai 3) to the theory that the words in the paren¬thesis in section 3 were intended as a definition of " adverse title. " It is only necessary carefully to scrutinize the terms of the section to see that that interpretation was untenable. The phrase upon which the parenthesis follows is not " adverse title," but "by. a 1 (1892) 2 C. L. R. 118. 2(1911) 15 N. L. R. 65. 3 (1904) 5 Tomb. 20. 17 title adverse to or independent of." It is impossible to refer the parenthesis purely to the words " adverse to," it must also be referred to the words " independent of ";and though the parenthesis might conceivably have been construed as a possible definition of one of the alternatives, it cannot possibly be construed as a definition of both. The true explanation of this parenthesis appears to have been first suggested by the late Mr. Justice Walter Pereira on page 388 of his Laws of Ceylon (1913 edition), namely, that the parenthesis was intended to be explanatory of the expression " undisturbed and uninterrupted possession " occurring earlier in the section. This suggestion gives an explanation to the parenthesis which is grammatically intelligible, and it may be noted that it has been expressly adopted by the Privy Council in Corea v. Appuhamy at 15 N. L. R. 77: " The section explains what is meant by ' undisturbed and uninterrupted possession.' It is ' possession un-accompanied 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.' " It is clear, therefore, that the parenthesis has no bearing on the question of the meaning of the words " adverse title "; it may henceforth be left out of account in the discussion of the question.
- 42. The ground beingcleared in this manner, it would be seen that all we have to ask ourselves in this case is, what is the meaning of the word " adverse "? And that the only question we have to consider in any particular case is whether the possession in question was " adverse," or, if it was not originally adverse, at what point it may be taken to have become so. It appears to me to a certain extent unfortunate that the Privy Council in discussing this question should have adopted the technical terms of certain rules of the English law of real property which have now, in effect, been extinguished by Statute; the more so, as these rules belonged to a department of the English law which was recognized as being involved in the greatest obscurity. It was in connection with this subject that Lord Mansfield said: " The more we read, unless we are very careful to distinguish, the more we shall be confounded." See Taylor Atkyns v. Horde 1[1(1757) 2 Burr. 60. ] and 2 S. L. C. (11th ed.), at page 629. The phrase " adverse possession " was not a statutory term in the English law at all, nor was the word " ouster." The Statute of Limitations passed in the twenty-first year of King James I. did not contain either phrase. The material part of section 1 of that Statute (21 James I., c. 16) simply said that " no person or persons shall at any time hereafter make any entry into any lands, tenements, or hereditaments but within twenty years next after his or their right or title which shall hereafter descend or accrue to the same." On this it was held that the Statute only ran against a true owner in cases in which at common law he was reduced to what was known as his " right of entry "-a highly technical question. No occasion to assert a right of entry arose unless there has been an " ouster." The term " ouster " is itself highly technical. Those who are curious on the subject will find it explained" in Wood Renton's Encyclopaedia of the Laws of England, vol. X., 214. It was considered and treated in old text books under the heads of disseisin, abatement, discontinuance, deforcement, and intrusion, terms which are no longer in common use. See 2 8. L. C. (11th edition) 651.
- 43. The whole subjectwill be found explained in Mr. William Smith's note to Taylor v. Horde in Smith's Leading Gases, from which I will quote the following passage: - " In order to determine whether the claimant had been out of possession under circumstances which would turn his estate to a right of entry, it was necessary to inquire in what manner the person who had been in the possession during that time held. If he held in a character incompatible with the idea that the freehold remained vested in the claimant, then .... it followed that the possession in such character was adverse. But it was otherwise if he held in a character compatible with the claimant's title." As I have said, it would probably have been better if in Ceylon we had been relieved of this technical and antiquated phraseology. The word " ouster " is unknown to our local law, and does not spontaneously convey any idea to the mind. It would be well, I think, that we should drop the word " ouster," and that, instead of asking whether there has been an " ouster," we should ask ourselves simply whether the possession in question was or has become adverse. And it will be sufficient for this purpose to adopt the definition given in Smith's Leading Cases that " adverse possession " is " possession held in a character incompatible with the claimant's title." What, then, is the real effect "of the decision in Corea v. Appuhamy (supra) upon the interpretation of the word " adverse " with reference to cases of co-ownership? It is, as I understand it, that for the purpose of these cases the word " adverse "must, in its application to any particular case, be interpreted in the light of three principles of law: - (i.) Every co-owner having a right to possess and enjoy the whole property and every part of it, the possession of one co-owner in that capacity is in law the possession of all. (ii.) Where the circumstances are such that a man's possession may be referable either to an unlawful act or to a lawful title, he is presumed to possess by virtue of the lawful title.
- 44. (iii.) A personwho has entered into possession of land in one capacity is presumed to continue to possess it in the same capacity. 19 It will be seen that the first of these principles is a principle of substantive law; it is established by numerous authorities in the law of England. See Ford v. Grey,1 Culley v. Doe.2 There is also adequate, though not very extensive, authority for the principle in our own reports. See the cases cited in the argument in Corea v. Appuhamy before the Privy Council.3 The principle is not peculiar to the law of England, and may be found in Pothier. See Planiol, Droit Civil, vol. III., s. 2342. The second and third of the above principles are presumptions, i.e., they are principles of the law of evidence. It is the third of these principles, namely, that a person who has entered into the possession of land in one capacity is presumed to continue to possess it in the same capacity, which has been the basis of our local decisions on this subject, both as regards tenants in common and as regards possession by licensees. Thus, it was the foundation of the judgment of Lawrie J. in Jain Carim v. Pakeer 4 where he said: " . . . . . the party claiming adversely to the possessor must allege and prove that the possession was not ut dominus. If he succeeds in proving that the possession began otherwise than ut dominus, then the burden of proof is shifted, for, to use the words of Rough C.J., which have often been quoted with approval in this Court: ' It being shown that the possession commenced by virtue of some other title such as tenant or planter, the possessor is to be presumed to have continued to hold on the same terms until he distinctly proves that his title has changed.' " It has been enunciated in a series of judgments of Wendt J., which are often quoted as authorities for the proposition, e.g., Orloof v. Grebe, 5 Joseph v. Annapillai,6 Perera v. Menchi 'Nona,7 and it was recognized by the decision of the Privy Council in Naguda Marikar v. Mohammadu.8 The same principle is embodied in the oft-quoted Roman law maxim: neminem sibi
- 45. ipsum causam possessionismuturce posse (Voet XLI., 3, 13). It is also embodied in Art. 2240 of the Code Napoleon: " On ne peut point se changer a soi-meme la cause et le principe de so possession "; and in a further Article, viz., 2231: Quand on a commence a posseder pour autrui, on est toujours presume posseder au meme "titre, s'iln'y a preuve du contraire." The effect of this principle is that, where any person's possession was originally not adverse, and he claims that it has become adverse, the onus is on him to prove it. And what must he prove? He must prove not only an intention on his part to possess adversely, but a manifestation of that intention to the true owner against whom he sets up his possession. The burden he must assume is, in 1 1 Salk . 285 2 (1840) 11 Ad. & E. 1008. 3 (1912) A. C. 230. 4 (1892) 1 S. C. R. 282. 5 (1907) 10 N. L. R. 83. 6 (1904) 5 Tomb. 20. 7 (1908) 3 A. C. R. 84. 8 (1903) 7 N. L. R. 91. 20 fact, both definite and heavy, and the authorities have been accustomed to emphasize its severe nature. Thus, it is sometimes said that he must prove an " overt unequivocal act " (per Wendt J. in Perera v. Menchi Nona 1). I do not think that this principle is put anywhere more forcibly than in the Indian case of Jogendra Nath Rai v. Baladeo Das.2 The whole judgment is one of great interest, but appears, perhaps to allow somewhat undue emphasis to the American authorities on the subject. I quote from page 969: - " Much stronger evidence, however, is required to show an adverse possession held by a tenant in common than by a stranger; a co-tenant will not be permitted to claim the protection of the Statute of Limitations unless it clearly appears that he has repudiated the title of his co-tenant and is holding adversely to him; it must further be established that the fact of adverse holding was brought home to the co-owner, either by information to that effect given by the tenant in common
- 46. asserting the adverseright, or there must be outward acts of exclusive ownership of such a nature as to give notice to the co-tenant that an adverse possession and disseisin are intended to be asserted; in other words, in the language of Chief Justice Marshall in MacClung v. Ross 3: A silent possession, accompanied with no act which can amount to an ouster or give notice to his co-tenant that his possession is adverse, ought not to be construed into an adverse possession '; mere possession, however exclusive or long-continued, if silent, cannot give one co-tenant in possession title as against the other co-tenant; see Clymer v. Dawkins, 4 in which it was ruled that the entry and possession of one tenant in common is ordinarily deemed to be the entry and possession of all the tenants, and this presumption will prevail in favour of all, until some notorious act of ouster or adverse possession by the party so entering is brought home to the knowledge or notice of the others; when this occurs, the possession is from that period treated as adverse to the other tenants." One cannot read this statement of the law without being impressed with the artificial nature of the position which it embodies, if its principle is accepted without qualification. The presumptions of the law of evidence should be regarded as guides to the reasoning faculty, and not as fetters upon its exercise. Otherwise, by an argumentative process based upon these presumptions, we may in any particular case be brought to a conclusion which, though logically unimpeachable, is contrary to common sense. It is the reverse of reasonable to impute a character to a man's possession which his whole behaviour has long repudiated. If it is found that 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 1 (1908) 3 A. C. R. 84. 2 (1907) I. L. R. 35 Cal. 961.
- 47. 3 (1820) 5Wheaton 116. 4(1845) 3 Howard 674. 21 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, it is artificial in the highest degree to say that such a person and his predecessors in interest must be presumed to be v.Bastian possessing all this time in the capacity of co-owners, and that they can never be regarded as having possessed adversely, simply because no definite positive act can be pointed to as originating or demon-strating the adverse possession. Where it is found that presumptions of law lead to such an artificial result, it will generally be found that the law itself provides a remedy for such a situation by means of counter-presumptions. If such a thing were not possible, law would in many cases become out of harmony with justice and good sense. In this very instance the English law provided a corrective of the principles which it has developed by means of a counter- presumption, that is to say, a " presumption of ouster." The leading case on this point is Doe v. Prosser,1 [ 1 (1774) 1 Cowp. 217.] where Lord Mansfield said: - "It is very true that I told the jury they were warranted by the length of time in this case to presume an adverse possession and ouster by one of the tenants in common of his companion; and I still continue of the same opinion .... The possession of one tenant in common, eo nomine, as tenant in common, can never bar his companion; because such possession is not adverse to the right of his companion, but in support of their common title; and by paying him his share, he acknowledges him co-tenant. But if, upon demand by the co-tenant of his moiety, the other denies to pay and denies his title, saying he claims the whole and will not pay, and continues in possession,
- 48. such possession isadverse and ouster enough .... In this case no evidence whatever appears of any account demanded, or of any payment of rents and profits, or of any claim by the lessors of the plaintiff, or of any acknowledgment of the title in them, or in those under whom they would now set up a right. Therefore, I am clearly of opinion, as I was at the trial, that an undisturbed and quiet possession for such a length of time is a sufficient ground for the jury to presume an actual ouster . . . . " The same principle was expounded by Lord Kenyon in another case, in which it was held, nevertheless, that the facts did not warrant the application of the principle: Peaceable v. Read 2:- [ 2 (1801) 1 East 569, at page 574.] " I have no hesitation in saying where the line of adverse possession begins and where it ends. Prima facie, the possession of one tenant in common is that of another; every case and dictum in the books is to that effect. But you may show that one of them has been in possession and received the rents and profits to his 22 own sole use without account to the other and that the other has acquiesced in this for such a length of time as may induce a jury under all the circumstances to presume an actual ouster of his companion. And there the line of presumption ends............... " The only real question that we have to decide in this case, apart from the question of fact, is whether the principle of this counter-presumption is in force in Ceylon. As I have said, the judgment of the Privy Council in Corea v. Appuhamy (supra) referred to this principle, but did not definitely declare that it must be considered in force in Ceylon, as a corollary of the general principle which that case enunciated. It does not appear to me that there can be any reasonable doubt on
- 49. the subject. Thecase for declaring this principle to be part of the law of Ceylon is indeed, overwhelming. It was referred to before the decision in Corea v. Appuhamy by Middleton J. in the Full Court case of Odris v. Mendis.1 It has been recognized and applied in a series of the judgments of this Court since that decision, namely, William Singho v. Ram Naide,2Mailvaganam v. Kandiya,3 A. S. P. v. Cassim,4 and Samara v. Duraya,.5 It has been adopted in India. See Gangadhar v. Parashram,6 Amrita Ravji Rao v. Shridhar Narayan.7 It is also supported by various passages in the old Roman-Dutch law authorities. These passages all relate to a special sort of adverse possession. Adverse possession as between co-owners may arise either by absolute exclusion of one of the co-owners or by the conversion of undivided shares into divided shares. The principles governing the two cases are the same. One co- owner who takes part of the property as his share from that moment possesses that share adversely to the co- owners. There are numerous references to be found in the Roman-Dutch law authorities to the effect that where co- owners are thus found to have occupied the land during a prolonged period, some mutual arrangement for this purpose must be presumed from lapse of time. For example: - (i) " Observandum tamen proesumi inter fratres divisionem factam eo casu, quo res hereditarias aut communes diutino tempore posseder-unt, fructus percipiendo, tributa consueta solvendo, sumptusque alios faciendo suo nomine. Idque ex proesumpta voluntate, ratione tanti tem-poris, quod facit proesumi intervenisse divisionem." Perez, III, 37, 4. (ii) "Posset hic quoeri, An Saltern possit divisio proesumi inter fratres, qui longo tempore res hereditarias aut communes separatim possederunt, fructus percipendo, sumptus impendendo suo nomine? Recte id aliqui affirmant, idque ex proesumpta voluntate, ratione tanti temporis quod facit praesumi intervenisse requista." Zoesius, X.t 3, 3.
- 50. (iii) Cf. alsoSande Dec, Fris. IV., 11, 3. 1 (1910) 13 N. L. R. 309. 2(1915) 1 C.W.R.92. 3 (1915) I C. W. R. 175 4 (1914) 2 Bal. Notes 40. 5 (1913) 2 Bal. Notes 70. 6 (1905) I. L. R. 29 Bom. 300. 7 (1908) I. L. R. 33 Bom. 317. 23 It may be taken, therefore, that this principle is part of the law of the Colony, and that it is open to the Court, from lapse of time in conjunction with the circumstances of the case, to presume that a possession originally that of a co-owner has since become adverse. What does such a presumption mean ? Does it mean that the Court must find as a fact that some definite transaction took place between the parties by which the claim of the person now setting up the adverse possession was recognized, or. that some formal intimation was made by him to the other party, or that some unequivocal and notorious act on his part brought the claim palpably to the notice of the other ? I do not think so. The presumption based upon lapse of time was a benevolent presump¬tion, and often assumed the character of a legal fiction. The best known applications of the principle are the presumption of a lost grant and the presumption of the dedication of a highway. Lord Mansfield, speaking generally of presumptions of this character in Eldridge v. Knoot,1 says:
- 51. "There are manycases not within the statute where from a principle of quieting possession the Court has thought that a jury should presume anything to support a length of possession." (See also Taylor on Evidence, paragraph 313 (a). With regard to presumptions of lost grants, the English Courts went to most extraordinary lengths. See the judgment of Cockburn C.J. in Angus v. Dalton,2 where it was said, at page 105: - " The boldness of judicial decision stepped in to make up defects in the law which the supineness of the Legislature left uncared for ; . . . . but after the Statute of James, user for twenty years was-here, again, without any warrant of legislative authority-held to be sufficient to raise this presumption of a lost grant, and juries were directed so to find in cases in which no one had ever existed, and where the presumption was known to be a mere fiction." Cockburn C.J., indeed, declares that the Prescription Act was introduced to put an end to the "scandal on the administration of justice which arose from this forcing the conscience of juries." Similarly, with regard to the presumption of the dedication of a highway. Long user of a highway by the public was considered evidence of an intention to dedicate by the owner, but it was not necessarily thought that he had really intended to dedicate it. He was considered to have acted in such a way that it was proper to treat him as though he had so intended. See per Lord Ellenborough in Rex v. Lloyd 3; " If the owner of the soil throws open a passage, and neither marks by any visible distinction that he means to preserve all his rights from passing through it by positive prohibition, he shall be presumed to have dedicated it to the public. Although 1 (1774) 1 Cowp. 215. 2 (1877) 3 Q. B. D. 85
- 52. 3 (1808) 1Camp. 260. 24 the passage in question was originally intended only for private convenience, the public are not now to be excluded from it, after being allowed to use it so long without any interruption." In applying this principle to-Ceylon, therefore (though it is not necessary to go to the lengths which Cockburn C.J. criticised in Angus v. Dalton (supra)), I would apply it in the same spirit, and I think that the principle enunciated by Lord Mansfield in Doe v. Prosser (supra) should be interpreted in this sense. It is, in short, a question of fact, wherever long-continued exclusive possession by one co-owner is proved to have existed, whether it is not just and reasonable in all the circumstances of the case that the parties should be treated as though it had been proved that that separate and exclusive possession had become adverse at some date more than ten years before action brought. I will now proceed to apply these principles to the fact of the present case. The claim under consideration is a claim by the plaintiffs to a one-eigth share of certain lands which belong to a family descending from one Simon de Silva. Simon de Silva had five sons: one admittedly died without issue; three-juwanis Andris, and Selenchi -are represented by the defendants; and the plaintiffs claim to have acquired the interest of the fourth, one Allis. Allis is said to have married a woman called Abohamy, and to have had one son, Babappu, who in 1893 purported to sell his interest to Don Nadoris Tillekeratne. Tillekeratne died in 1901, and the plaintiffs claim by inheritance from him. The question turns on the relationship of Babappu to the family. His paternity is not denied, but his legitimacy is put in question. Allis and Juanis, another of the sons of Simon de Silva, are said by the plaintiffs to .have married sisters. It is
- 53. asserted by thedefend-ants on the other hand, that the connection of Allis with Abohamy was an irregular one. After the death of Allis, Abohamy left the locality and married a man in another village, where she settled, her child Babappu being at that time about eight years old. The date of the birth of Babappu is not definitely fixed, but it may be conjectured that he was born about the year 1856, and that this migration to the other village consequently took place about 1864. The learned District Judge has come to the conclusion that although the evidence of a lawful marriage is not wholly satisfactory, yet it may be taken that Babappu was the lawful son of Allis, though he adds that "it is extremely doubtful whether he was recognized as a legitimate son." He is said at one time to have stayed with his uncle Juanis, who had married his mother's sister. This visit is consistent with the connection between his mother and Allis having been an irregular one, but it is difficult to reconcile the visit with the finding of the District Judge that he was a legiti¬mate son, whose legitimacy was not recognized by the family. In the Year 1885 he was associated with another member of the family, 25 namely, the first defendant, a son of Juanis, as a recipient of a Crown grant. There is a presumption in favour of marriage, and though, as I have said, there are difficulties in the view taken by the District Judge, I think, on the whole, his conclusion should be accepted, namely, that though Babappu was the legitimate son of Allis. he was not accorded this status by the family. The property in question was plumbago land. From the year 1877 until the present time it has been worked only intermittently and through the medium of lessees. But the only branches of Simon de Silva's family who have dealt with the land have been those connected with- the three sons of Simon de Silva above mentioned: Juanis, Andris, and Selenchi. The extent to which the land was worked is not very clearly defined; but Babappu, who is still alive, says that at all times
- 54. be received hisground share, and that after his sale to Tillekeratne in 1893 he continued to receive that share, with the acquiescence of Tillekeratne, or at any rate, without any objection on his part. This evidence the learned District Judge rejected. He does not believe that Babappu's claim to the share was ever recognized by the other branches of the family, or, indeed, that it was ever made. We must take it, therefore, that Babappu was a person whose status in the family was, to say the least, doubtful, and that from the year 1864 he lived in another locality, and neither asserted nor received any recognition of any claim to a share of the land in dispute. Accepting the supposition that he was born in 1856, he would have attained his majority in 1877. The period, therefore, for which the claim now asserted has been dormant is no less than forty years; and it is a very significant fact that Tillekeratne, who purported to have acquired his share in 1893, became insolvent in 1897, and did not include this land in the schedule of his assets. These being the facts, it is very difficult to say that any proof has been given of any overt unequivocal act manifesting to Babappu the fact that the possession of his uncles, and those through whom they claim, was adverse to his claim. Their attitude was a negative one; they ignored him, and according to their own evidence, they were barely aware of his existence, if aware of it at all. On the other hand, it would be doing violence to the ordinary ideas of mankind to say that the possession of these branches of the family must be presumed to have been that of co-owners with Babappu, because no definite positive act can be pointed to as initiating or bringing home to him a repudiation of the claim which he now makes. It would, moreover, be contrary to equity that a person possessing a doubtful status in the family, who has lived apart from it for over a generation in another locality, should be permitted through the medium of a sale to a speculative purchaser to revive his obsolete pretensions, and to assist those claiming through that purchaser to invade the family inheritance. The case is one in 26
- 55. which in myopinion, the Court ought to presume that the posses¬sion of the three branches of Simon de Silva's family, who actually dealt with the land, became adverse to the claim of Babappu at some point more than ten years prior to the institution of this action. I would, therefore, affirm the decision of the learned District Judge, and dismiss the appeal, with costs. SHAW J. - The Judge has found that Babappu, under whom the appellant claims, was the legitimate son of Allis, who was admittedly a co-owner of the land. The appellants are, therefore, entitled to a share in the land, unless Babappu's co-owners have prescribed against him and his successors in interest. The precise time when Allis died, and Babappu succeeded to his interest, does not appear from the evidence; but it must have been over fifty years ago, and the Judge has found as a fact that neither Babappu, his vendee Tillekeratne, nor the appellants have ever had any possession of Allis's share, which has, since the death of Allis, always been possessed by his co- owners and their successors. These findings of fact appear to be justified by the evidence, and I see no reason why we should differ from them on appeal. The Judge has also decided that Babappu's co-owners have prescribed against him and his successors in interest, and has accordingly dismissed the plaintiff's action. The nature of the holding of a co-owner of land and the circumstances under which a co-owner can commence to acquire a prescriptive title against other owners under Ordinance No. 22 of 1871 is authoritatively laid down by the Privy Council in the case of Corea v. Appuhamy.1[1 (1911) 15 N. L. R. 65. ] That case shows that the possession of one co-owner is in law the possession of all, and that a person who has entered into possession in his capacity of co-owner must be considered to
- 56. continue to possessin the same capacity until he has by some ouster of his co-owners, or by something equivalent to an ouster of them changed the character of his possession and commenced to hold adversely to them. In effect, the case appears to decide that the position of a co-owner in Ceylon is the same as it was in England prior to the Statute 3 & 4 W. 4. c. 27. The question for our consideration in the present case is whether, from the uninterrupted sole possession of certain co- owners extending over a large number of years, and the conduct of the other co-owners in not asserting any right to possess, a presumption of an ouster by the co-owners in possession and the commencement of an adverse holding by them can be presumed, and if so, whether in the present case such a presumption should be drawn. The judgment in Corea 27 v. Appuhamy 1 does not pretend to lay down any rule as to the manner in which the " ouster or something equivalent to an ouster may be established by evidence. In England, under the previously existing law, it was held that juries might properly be directed that they could presume an ouster of the other co-owners after an uninterrupted possession for a number of years. An example of this is found in Doe v. Prosser, 2 where uninterrupted possession for thirty- six years was held to justify such a presumption, and that an ouster might have been so presumed is recognized in the judgment in Corea v. Appuhamy.1 I see no reason why similar presumption should not be made in suitable cases in Ceylon. That such a presumption may be made appears to have been recognized by the Court in Appuhamy v. Ran Naide,3 and by
- 57. Middleton J. inhis judgment in the Full Court case of Odris v. Mendis,4 and it has also been recognized in India in the case of Bahavant v. Bhal Chandra.5 Presumptions of this character seem to be authorized by section 114 of the Evidence Ordinance of 1895. In the present case, although. Babappu, according to his own evidence, knew that his co-owners had during his minority granted a mining lease in respect of the land, he never, when he attained majority, attempted to assert any right to his share, and, although he purported to sell to Tillekeratne in 1895, his vendee never possessed, nor was the land included in the inventory of his estate on his death in 1901, and his heirs, the present appellants, made no attempt to assert any right to possess until the year 1916. It appears to me that the correct presumption to draw from the long uninterrupted possession of Babappu's co-owners, and the conduct of himself and his vendee, is that Babappu and his vendee knew that Babappu's co-owners were holding adversely to him, and that they had, in fact, ousted him from possession. I would therefore dismiss the appeal, with costs. DE SAMPAYO J.- I have had the advantage of perusing the judgment of the Chief Justice, and I agree with his conclusions of law and fact. A pre¬sumption of adverse possession may, I think, be drawn from the fact of exclusive possession by one co-owner extending over such a long period as to render non-possession by the other co-owner inexplicable, except upon the theory of acquiescence in an adverse claim. In the present case the circumstances appear to me to amount to something more than presumption. Babappu, from whom the plaintiffs claimed title, appears not to have been really recognized as a legitimate son of Allis by the rest of the family.
- 58. 1 (1911) 15N. L. R. 65. 2 (1774) 1 Cowper 217. 3 (1915) 1 C. W. R. 92. 4 (1910) 13 N. L. R. 309. 5. L. B. 24 Bom. 300. 28 He must have known that he was being intentionally excluded from possession. He was not so well of as to make a share of the produce of the land of no importance to him, and yet, according to the finding of the District Judge, which there is no reason to question, he never did at any time claim or take his alleged share. Moreover, the nature of the possession is significant.. The land had no plantation worth considering; it was plumbabo land, and the defendants dug plumbago therein both by themselves and through lessees all throughout. While a co-owner may without any inference of acquiescence in an adverse claim allow such natural produce as the fruits of trees to be taken by the other co-owners, the aspect of things will not be the same in the case where valuable minerals are taken for a long series of years without any division in kind of money. The effect of this becomes still more pronounced where the co- owner, being also a co-heir, has alienated his share to a stranger, and the stranger, too, is kept out. Babappu sold his alleged share in 1893 to one D. N. Tillekeratne, whose widow and children the plaintiffs are, and it is proved that Tillekeratne never possessed the share he purported to buy. He appears to have owned and worked a plumbago pit on another land in the neighbourhood, and it is remarkable that, a plumbago merchant as he was, he never claimed or took a share of the plumbago, which to his knowledge was being dug from this land by the defendants and their lessees. The plaintiffs perceived the force of this circumstance, and un¬successfully attempted to prove that Babappu had with the consent of
- 59. Tillekeratne taken ashare of the produce of a few plantain bushes and trees on the land. I think that the circumstances sufficiently justify the inference of what was alluded to by the Privy Council inCorea v. Iseris Appuhamy1 [1(1912) A .C. 230 ]as " something equivalent to an ouster, " and that this change, even if it did not take place in the time of Babappu, must be regarded as having occurred at all events in 1893, when he sold to Tillekeratne. In my opinion the defendants have succeeded in establishing their claim to the whole land by prescription, and I agree that the appeal should be dismissed, with costs. Appeal dismissed. Volume 61, Page No 361 View - Volume 61
- 60. ABDUL MAJEED, APPELLANT,AND UMMU ZANEERA CO-OWNERS-PRESCRIPTIVE POSSESSION BY A CO-HEIR-OUSTER-FIDEICOMMISSUM FOR FOUR NERATIONS- COMPUTATION OF PERIOD-PRESCRIPTION AGAINST REMAINDER-MEN AND MINORS-BURDEN OF PROOF-PRESCRIPTION ORDINANCE (CAP. 55), SS. 3, 13- EVIDENCE ORDINANCE, S. 114. et al., Respondents New Law Reports 361 1959 Present: Basnayake, C. J., K. D. de Silva, J., and H. N. G. Fernando, J. S. C. 260-D. C. Colombo, 6970/M On an issue of prescriptive title raised between co-heirs in respect of a property valued at Rs. 75,000 (land 12.61 perches in extent and a building covering practically the whole land)- Held, by DE SILVA, J., and H. N. G. FERNANDO, J. (BASNAYAKE, C.J., dissenting), that proof that one of the co- heirs let out the premises and appropriated to himself the entire rent (which was not much) for thirty-seven years was insufficient, by itself, .to bring the case within section 3 of the Prescription Ordinance. Per DE SILVA, J.-" In considering whether or not a presumption of ouster should be drawn by reason of long-continued possession alone, of the property owned in common, it is relevant to consider the following, among other matters :- (a) The income derived from the property. (b) The value of the property. (c) The relationship of the co-owners and where they reside in relation to the situation of the property. (d) Documents executed on the basis of exclusive ownership ".
- 61. Per H. N.G;. FERNANDO, J.-" Firstly, section 3 (of the Prescription Ordinance) imposes two requirements: 'undisturbed and uninterrupted possession' and 'possession by a title adverse or independent'; secondly the question whether the second of these requirements are satisfied does not arise unless the first of them has been proved. It is clear from the judgment of the Privy Council in Corea's case (15 N. L. R. 65) that a co-owner in possession can satisfy the second requirement in two different modes :- (a) by proving that his entry was not by virtue of his title as a co-owner, but rather of some other claim of title; in fact Their Lordships, in Corea's case, rejected the finding of the Supreme Court that the possessor had entered as sole heir of the former owner; (b) by proving that, although his entry was by virtue of his lawful title as a co-owner, nevertheless he had put an end to his possession in that capacity by ouster or something equivalent to ouster, and that therefore and thereafter his possession had been by an adverse or independent title ". Considered also :-(i) Duration of a fideicommissum lasting for four generations. It would be only the fifth generation of fideicommissary heirs Who would inherit the property free of the fideicommissum, (ii) Burden of proof in cases falling under the proviso to section 3 and section 13 of the Prescription Ordinance in relation to the issue of prescription against remainder, Men and minors. 362 APPEAL from a judgment of the District Court, Colombo. The facts appear from the judgment of de Silva, J. H. V. Perera, Q.C., with H. Ismail, for 13th Substituted Defendant- Appellant.
- 62. M. S. M.Nazeem, with M. T. M. Sivardeen, for Plaintiff- Respondent. S. Sharvananda, with M. Shanmugalingam, for 4th to 8th Defendants- Respondents. H. W. Jayewardene, Q.C., with M. Rafeek and L. O. Seneviratne, for 9th Defendant-Respondent and for 10th Substituted Defendant- Respondent. H. Mohideen, with S. M. Uvais, for 12th Defendant-Respondent Cur. adv. vult. December 11, 1959. BASNAYAKE, C.J.- This is an action under the Partition Act, No. 16 of 1951, instituted on 17th September 1953. The main contest at the trial was whether deed No. 260 dated 16th July 1872 attested by J. W. Vanderstraaten created a fideicommissum which endured for four generations. The learned District Judge held that the deed created a fideicommissum and learned counsel for the 13th defendant-appellant, who may conveniently be referred to hereinafter as the appellant, does not challenge that finding. The appellant had also claimed that he was entitled to a decree in his favor under section 3 of the Prescription Ordinance as he had possessed the entire land since the year 1916. The learned District Judge while in effect holding that the appellant had continuous and exclusive possession of the premises since 1916 rejected his claim for a decree in his favour under section 3 of the Prescription Ordinance on the ground that he had failed to prove that the proviso to section 3 and section 13 of the Ordinance did not apply to his claim. The decision that the burden of proving the exceptions rests on the appellant is canvassed in appeal. It is submitted that the learned District Judge has wrongly cast on the appellant the burden of proving matters which in. law he is not bound to prove. The portion of the learned District Judge's judgment to which objection is taken runs as follows:- "In fact the burden is on the 13th defendant to prove that he had acquired a title by prescriptive possession to the interests
- 63. or all theparties to this action, who are the descendants of Muttu Natchia. His prescriptive possession has been interrupted always with the death of a fiduciary. It is for him to produce the death certificates of the successive fiduciaries and the birth certificates of the several fidei commissarii. Ansa Umma, one of the daughters of Muttu Natchia, died leaving three children, the 9th and 10th defendants and one Mohamed Razeen. Ansa Umma was a fiduciary. It is not known when she died. It is only after her death that the 13th defendant would start to possess adversely against the 9th and 10th defendants and Mohamed Razeen. There is no evidence as to the age of the 9th and 10th defendants. Similarly in the case of all the other defendants it cannot be held that the 13th defendant acquired a prescriptive title to their interests. I hold that the 13th defendant has not acquired prescriptive title to the interests of the plaintiff or any other defendants ". The plaintiff and the other defendants claim the benefit of the proviso to section 3 and section 13. Those provisions read- "Provided that the said period of ten years shall only begin to run against parties claiming estates in remainder or reversion from the time when the parties so claiming acquired a right of possession to the property in dispute. "13. Provided nevertheless, that if at the time when the right of any person to sue for the recovery of any immovable property shall have first accrued, such person shall have been under any of the disabilities hereinafter mentioned, that is to say- (a) infancy, (b) idiocy, (c) unsoundness of mind, (d) lunacy, or (e) absence beyond the seas, then and so long as such disability shall continue the possession of such immovable property by any other person shall not be taken as giving such person any right or title to the said immovable property, as against the person subject to such disability or those claiming under him, but the period of ten
- 64. years required bysection 3 of this Ordinance shall commence to be reckoned from the death of such last-named person, or from the termination of such disability, whichever first shall happen; but no further time shall be allowed in respect' of the disabilities of any other person: "Provided also that the adverse and undisturbed possession for thirty years of any immovable property by any person claiming the same, or by those under whom he claims, shall be taken as conclusive proof of title in manner provided by section 3 of this Ordinance, not with standing the disability of any adverse claimant." Learned counsel's contention that the learned District Judge has wrongly cast on the appellant the burden of proving the exception is sound. The rule of evidence is that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts Exist. Those who assert that the period of ten years began to run as against them only after a certain date in view of the proviso to section 3 or section 13 must produce evidence of facts which bring their case within those provisions. Learned counsel's submission is supported by the decision of the Privy Council in the case of Mohamed Adamjee v. Hadad Sadeen 1[1 (1956) 58 N.L.R. 217 at 227] to which he has referred us. In that case the Board made the following observations:- "Looking at the matter first as a question of constructing on they think that once parties relying upon prescription have brought themselves within the body of section 3 the onus rests on anyone relying upon the proviso to establish their claim to an estate in remainder or reversion at some relevant date and they cannot discharge this onus unless they establish that their right fell into possession at some time within the period of ten years." In the instant case except in regard to the plaintiff, and the 1st and 2nd defendants, the parties have produced no evidence which brings their claims within the proviso to section 3 or section 13. But it is contended on behalf of the 9th and 10th defendants-respondents that the appellant is a co-heir and that proof that he collected the entire rent since the year 1916 is
- 65. insufficient to bringhis case within section 3[3 (1938) 40 N.L.R. 392 at 396.]. It is therefore necessary to deal with that aspect of the case with which the learned District Judge has not dealt especially though an argument in regard to it appears to have been addressed to him. It has been laid down by the Privy Council in the case of Corea v. Appuhamy 2[ 2 (1911) 15 N.L.R. 65.] that the possession of a co-owner is in law possession of the other co-owners; that it is not possible for a co-owner to put an end to his possession qua co-owner by any secret intention in his mind; that nothing short of ouster or something equivalent to ouster could bring about that result. In the case of Cadija Umma v. Don Manis 3 in dealing with the case of an agent's possession the Privy Council said "Ouster apart, a man's possession by his agent is not dispossession by his agent. The like is true between co-owners, in Ceylon, and is the ground of decision in Corea's case." It is therefore necessary first to understand what the Privy Council meant by the words "his possession was in law the possession of his co-owners ". What is the kind of possession contemplated by these words? Is it a possession in which the rights of the other co-owners are recognized or is it a possession in which they are not? For the answers to these questions we have to look to the English Law, as section 3 of the Prescription Ordinance is based on concepts of English and not on those of Roman- Dutch law. The English law on the subject is nowhere better expressed than in Don v. Prosser! Wherein Lord Mansfield and Justice Acton have explained what is meant by adverse possession and ouster. The former explains the law thus:- "So in the case of tenants in common the possession of one tenant in common, eo nomine, as tenant in common, can never bar his companion; because such possession is not adverse to the right of his companion, but in support of their common title; and by paying him his share, he acknowledges him co- tenant. Nor indeed is a refusal to pay of it sufficient, without denying his title. But if, upon demand by the co-tenant of his moiety, the other denies to pay, and denies his title, saying he
- 66. claims the wholeand will not pay, and continues in possession; such possession is adverse and ouster enough." Justice Acton's words are pithy and to the point. He says:- "There have been frequent disputes as to how far the possession of one tenant in common shall be said to be the possession of the other, and what acts of the one shall amount to an actual ouster of his companion.. As to the first, I think it is only where the one holds possession as such, and receives the rents and profits on account of both. With respect to the second, if no actual ouster is proved, yet it may be inferred from circumstances, which circumstances are matter of evidence to be left to a jury. " It would appear therefore that on the facts of the instant case the co-owners cannot claim the benefit of the appellant's possession as he has possessed not on their behalf but for himself without giving them their share of the rent. Next let me consider whether in the instant case there is evidence of "ouster" or "something equivalent to ouster ". The meaning of "ouster " an expression which is not discussed in our reports must first be ascertained. Now" ouster" is a concept of English law. It is defined thus in Sweet's Law Dictionary: "To oust a person from land is to take the possession from him so as to deprive him of the freehold. An ouster may be either rightful or wrongful. A wrongful ouster is a disseisin. " According to Blackstone- " Ouster, or dispossession, is a wrong or injury that carries with it the amotion of possession: for thereby the wrong-doer gets into the actual occupation of the land or hereditament, and obliges him that has a right to seek his legal remedy, in order to gain possession, and damages for the injury sustained. And such ouster, or dispossession, may either be of the freehold, or of chattels real; 'a distinction which was formerly of the utmost importance, as the remedies for an ouster of the freehold were not only peculiar in their nature, but were confine in their use to that species of property; while those which the law afforded for recovery of the possession of chattels real were totally inapplicable to all
- 67. estates of freehold.We shall see afterwards ho' the action of ejectment has come to supply the place of nearly a these remedies'. " "Ouster of the freehold then' was, and in theory may still be affected by one of the following methods: I. Abatement; 2. Intrusion 3. Disseisin; 4. Discontinuance; 5. Deforcement'. "(Blackstone Vol. ill p. 176-Kerr's edition 1862). The last named is the form of ouster that applies to the case of co-owner who decides to keep out the other co-owners. Blackstone describes it thus-(ibid, p. 182). "The fifth and last species of injuries by ouster or privation of the freehold, where the entry of the present tenant or possessor w originally lawful, but his detainer has now become unlawful, was that by deforcement. This, in its most extensive sense, is nomen generalissimum ; a much larger and more comprehensive expression than at of the former; it then signifying the holding of any lands or tenements to which another person has a right. " Blackstone gives many examples of deforcement and the only one germane to the subject under discussion is the following- (ibid, p. 182). "Another species of deforcement is, where two persons have t same title to land, and one of them enters and keeps possession against the other, as where the ancestor dies seized of an estate in fee-simple, which descends to two sisters as co- parceners, and one of them enter before the other, and will not suffer her sister to enter and enjoy 11 moiety; this is also a deforcement." In the instant case there is evidence of " ouster" in the sense stat in the passage from Blackstone last cited and the English cases I shall refer to later in this judgment. The appellant came into possession the land in 1916 on the death of his father, who himself had been possession of it, and has continued to take the entire rent from that dl The plaintiff and the 1st and 2nd defendants are the great-great-grand children of the author of the fideicommissum. Several generations his descendants have been content to allow the appellant and his fat] to collect the entire rent. There is no evidence that till the
- 68. date of taction in September 1953 anyone has even questioned the appellant's right to take the rent during these thirty-seven years; Apart from actual ouster in the sense stated above English] recognizes a presumption of ouster. The cases of Doe v. Posser (supra) Hornblower v. Read1[1 1 East 568.] decide that ouster may be presumed in a case where uninterrupted possession for thirty- six years is established. In the former case Lord Mansfield stated- "It is very true that I told the Jury, they were warranted by the length of time in this case, to presume an adverse possession and ouster by one of the tenants in common, of his companion; and I continue still of the same opinion-Some ambiguity seems to have arisen from the term 'actual ouster', as if it meant some act accompanied by real force, and as if a turning out by the shoulders were necessary. But that is not so. A man may come in by a rightful possession, and yet hold over adversely without a title. If he does, such holding over, under circumstances, will be equivalent to an actual ouster. " After enunciating the rule that the possession of one tenant in common, eo nomine, as a tenant in common, can never bar his companion; because such possession is not adverse to the right of his companion, but in support of their common title, Lord Mansfield adds- but in this case no evidence whatsoever appears of any account demanded, or of any payment of rents and profits, or of any claim by the lessors of the plaintiff, or of any acknowledgment of the title in them, or in those under whom they would now set up a right. Therefore I am clearly of opinion, as I was at the trial, that an un- disturbed and quiet possession for such a length of time is a sufficient ground for the jury to presume an actual ouster, and that they did right in so doing. Justice Acton in the same case puts the proposition thus: "Now in this case, there has been a sole and quiet possession for 40 years, by one tenant in common only, without any demand or claim of any account by the other, and without any
- 69. payment to himduring that time. What is adverse possession or ouster, if the uninterrupted receipt of the rents and profits without account for near 40 years is not?" Justice Willes in agreeing with Lord Mansfield and Justice Acton states- "The possession is a possession of 16 years above the 20 prescribed by the Statute of Limitations, without any claim, demand, or interruption whatsoever; and therefore, after a peaceable possession for such a length of time, I think it would be dangerous now to admit a claim to defeat such possession. However strict the notion of actual ouster may formerly have been, I think adverse possession is now evidence of actual ouster. " In the latter case Lord Kenyon C. J. observes- "I have no hesitation in saying where the line of adverse possessio begins and where it ends. Prima facie the possession of one tenant in common is that of another: every case and dictum in the book is to that effect. But you may shew that one of them has been in possessio and received the rents and profits to his own sole use, without account to the other, and that the other has acquiesced in this for such length of time as may induce a jury under all the circumstances 1 presume an actual ouster of his companion. And there the line presumption ends." In this discussion it is important to bear in mind the words of Lord Mansfield quoted above that actual ouster is not some act accompanied by force. The expression is defined in Black's Law Dictionary thus: "Actual ouster does not mean a physical eviction, but a possessio attended with such circumstances as to evince a claim of exclusive, right and title, and a denial of the right of the other tenant 1 participates in the profits." The presumption of ouster referred to in the cases cited by me is or. that a court may draw under section 114 of the Evidence Ordinance, which provides that the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events,
- 70. human conduct, andpublic and private business in their relation to the facts of the particular case. The facts of the instant case fall within the ambit of Lord Kenyon words. Here the appellant has been in possession and received the rent to his own use without accounting to the others and those others ha, acquiesced in it for such a length of time as will enable the court 1 presume under all the circumstances an actual ouster of the others more than ten years before the institution of this action. Before I part with this judgment I wish to add that in counting the number of generations for the purpose of a fideicommissum which endures for four generations the person who has been expressly named and is the immediate done is not taken into account. This is what Van Leeuwe says: "It has been received as a general rule, that a, fideicommissum of this or a similar kind in a case of doubt and when the prohibition difficult to be understood, is not perpetual, but Only extends to the fourth degree of succession, counting from him to whom after the death of the first heir the inheritance has come saddled with such burden, up to the fourth degree beyond him inclusive, for the person who has been burdened expressly and by name does not form a degree, but his successor is the first to do so." (Censura Forensics, Part1, Book III, Ch. VII, S. 14, Ford's Translation, p. 92.) For the reasons stated above the appellant is entitled to a decree in his favour declaring him entitled to all the shares excluding those of the plaintiff and the 1st and 2nd defendants. In regard to costs the appellant is entitled to the costs of the contested trial as against the plaintiff who alone resisted his claim. The other costs will be borne by the parties declared entitled to the land pro rata. The appellant would also be entitled to the costs of appeal payable by the 9th and 10th defendants. DE SILVA, J.-
- 71. The plaintiff institutedthis action under the Partition Act, No. 16 of 1951 praying for a sale of the premises described in the schedule to the plaint. Admittedly the property in question belonged to one Ibrahim Lebbe Ahamado Lebbe. He by deed No. 260 dated the 16th July, 1872 (P2) gifted it to his wife Muttu Natchia subject to certain conditions. The plaintiff and certain defendants contended that this deed created a valid fideicommissum in favor of the children and the remoter descendants of the donor and donee binding on four generations. Muttu Natchia and her husband died leaving two daughters and one son. The daughters were Candumma and Ansa Umma while the son was Abdul Rahaman. Abdul Majeed the 13th defendant is the only child of Abdul Rahaman. The plaintiff and the other defendants are the successors in title of the two daughters of Muttu Natchia. The 13th defendant took up the position that P2 did not create a valid fideicommissum. He also averred in his answer that Muttu Natchia had "put him in complete possession " of the property and that thereafter he had been in sole and exclusive possession of it and had acquired a prescriptive title to the entire property or at least to the shares claimed by the plaintiff and 1,2,5,6,7,8, 11 and 12th defendants and the rights which the 9th and 10th defendants derived from one Noor Lahira the grand-child of Ansa Umma. The learned District Judge held that P2 created a valid fideicommissum which endured for four generations and rejected the claim of the 13th defendant based on prescription. He allotted shares according to the devolution of title as set out in the plaint and entered a decree for sale. This appeal is by the 13th defendant against the judgment and decree. At the hearing of this appeal the finding of the learned District Judge that the deed P2 created a valid fideicommissum binding on four generations was not challenged. The learned counsel for the appellant, however, contended that his client had established a prescriptive title to the half share which devolved on the 2nd to 9th defendants and Noor Lahira. That is the main question for decision on this appeal. At the trial the counsel for the plaintiff made an admission regarding the possession of this land. It is recorded in the
- 72. following terms. "Mr.Weerasinghe admits that the 13th defendant's father has been in possession from prior to 1916." The only persons who gave evidence were the 2nd defendant and the 11th defendant. The 13th defendant neither gave evidence nor called any witness on his own behalf. The 2nd defendant was called on behalf of his sister the plaintiff while the 11th defendant did not give any evidence whatsoever in regard to possession. However, it was elicited from the 2nd defendant in examination that from the time he became aware of things the defendant had been collecting the rent of this property. It is significant to observe that the age of the 2nd defendant when he gave evidence was 32. After the plaintiff's case was closed the following admission also recorded. "Plaintiff admits that from 1916 the 13th defendant collected the rents." Thus the prescriptive title set up by the appellant rests solely c two admissions I have quoted above and the statement of the defendant that from the time he came to know things the 13th deft had been collecting the rent of the building which stands on this which is 12.61 perches in extent. The plan PI reveals that practically the whole land is covered by this building. It is rather remarkable although it was elicited from the 2nd defendant in cross-examination that the 13th defendant collected the rent yet no attempt was m obtain any admission from him that the entire rent collected WI appropriated by the 13th defendant. I do not think for a moment when the counsel for the plaintiff admitted that from the year 1916 the 13th defendant was in possession and before that the latter's fat]] been in possession he meant to concede that the possession they h of the character contemplated by section 3 of the Prescription Ordinance. The word "possession" was obviously used by him in a loose and sense. Probably he meant merely physical possession and this is made clearer by the 2nd admission which only conceded that the 13th defendant collected the rent. If he admitted that these two person possession in the sense the word is used in that section there purpose in going on with the trial thereafter. From the evidence 2nd defendant and the two admissions referred to, one cannot real say that anything more was conceded than that the 13th defendant out the premises and collected the entire rent. There
- 73. is no definiteevidence as to what he did with the rent whether he appropriate whole of it for himself, shared it with the other co-owners, spent it maintenance of the building or used it for charitable purposes. It not be strange if the 13th defendant collected the rent and looked the building and before him his father did so. Of the three children Muttu Natchia the 13th defendant's father was the only male being so it is quite natural, these parties being Muslims, that t; defendant's father, the only male in the family, was in charge premises and collected the rent. On the death of the father the son may well have taken over those duties without any objection from the other co-owners. If the 13th defendant did not appropriate for him entire rent his claim to this property on a prescriptive title is quite untenable. The prescriptive title is set up on the basis that he appropriated the entire rent for him. Assuming that he did so, although the evidence is insufficient for so holding, is he entitled to succeed on the issue of prescription? As the deed P2 created a valid fideicommissum the 13th defendant and the other descendants of Muttu Natchia and her husband would be co-owners of this property. In Corea v. lseris Appuhamy 1[1 (1911) 15 N .L.R. 65.] the Privy Council recognized the principle "Possession is never considered adverse if it can be referred to a lawful title ". There is no doubt that in. the instant case the 13th defendant entered into possession of the property in the character of a co-owner. In that case the Privy Council further held that, in law, the possession of one co-owner is also the possession of his co- owners; that it was not possible to put an end to that possession by any secret intention in his mind and that nothing short of ouster or something equivalent to ouster could put an end to that possession. An invitation by the counsel for the respondent to presume an ouster or something equivalent to an ouster from Iseris's long-continued possession was rejected by Their Lordships of the Privy Council in that case but the point was not fully considered. In Tillekeratne v. Bastian 1[1 (1918) 21 N.L.R. 12.] a case decided by a Bench of three Judges, this Court held that it was open to the Court, from lapse of time in conjunction with the circumstances of the case, to presume that a possession originally that of a co-owner had since become adverse.
- 74. Bertram C.J. whodelivered the main judgment in that case referred to the observations of Lord Mansfield in Doe v. Prosser 2[2 (1774) I Cowper 217.] and followed the principle enunciated therein. Lord Mansfield said in that case " But if, upon demand by the co-tenant of his moiety, the other denies to pay and denies his title, saying he claims the whole and will not pay, and continues in possession, such possession is adverse and ouster enough In this case no evidence whatever appears of any account demanded, or of any payment of rents and profits, or of any claim by the lessors of the plaintiff, or of any acknowledgment of the title in them, or in those under whom they would now set up a right. Therefore, I am clearly of opinion, as I was at the trial, that an undisturbed and quiet possession for such a length of time is sufficient ground for the jury to presume an actual ouster??" Whether the presumption of ouster is to be drawn or not depends on the circumstances of each case. In Tillekeratne v.Bastian 1[1 (1918) 21 N.L.R. 12.] there were three circumstances of great importance which justified this Court in presuming an ouster. They were :-(1) Bastian whose share was in issue had not been recognized by the other members of his family as the lawful child of his father (2) Neither Bastian nor his vendee claimed a share of the plumbago dug from the land and (3) The share of this land purchased from Bastian was not included in the schedule of assets of the vendee when he became insolvent. There are no circumstances of such importance in the instant case. In regard to the observations of Lord Mansfield referred to above I would venture to say that there is some risk in applying the principle enunciated by him indiscriminately to a set of similar circumstances existing in this country. Our land tenure is different from that prevailing in England and our laws of inheritance in respect of immovable property also differ from theirs. Common ownership of lands is rampant here whereas it is comparatively rare in England. Our social customs and family ties: have some bearing on the possession of immovable property owned in common and should not be lost sight of. Many of our people consider it unworthy to alienate ancestral lands to strangers. Those who are in more affluent circumstances permit their less fortunate relatives to take the
- 75. income of theancestral property owned in common. But that does not mean that they intend to part with their rights in those lands permanently. Very often if the income derived from such a property is not high the co-owner or co-owners who reside on it are permitted to enjoy the whole of it by the other co-owners who live far away. But such a co-owner should not be penalized for his generous disposition by converting the permissive possession of the recipient of his benevolence to adverse possession. In considering whether or not a presumption of ouster should be drawn by reason of long-continued possession alone, of the property owned in common, it is relevant to consider the following, among other matters :- (a) The income derived from the property. (b) The value of the property. (c) The relationship of the co-owners and where they reside in relation to the situation of the property. (d) Documents executed on the basis of exclusive ownership. If the income that the property yields is considerable and the whole of it is appropriated by one co-owner during a long period it is a circumstance which when taken in conjunction with other matters would weigh heavily in favor of adverse possession on the part of that co-owner. The value of the property is also relevant in considering this question although it is not as important as the income. If the co-owners are not related to one another and they reside within equal proximity to the property it is more likely than not that such possession is adverse and it would be particularly so if the property is valuable or the income from it is f considerable. If the co- owners are also co-heirs the position would be otherwise. In this case it is unfortunate that no evidence has been led to show what the income from this property was. If the rent was high it would have been a point in favor of the 13th defendant if he appropriated the whole of it. The fact that no evidence was adduced by the 13th defendant on the question of rent, probably, indicates that the rent was not much. In the plaint the property is valued at Rs. 75,000. That would appear to be a fair valuation as the premises were situated in Prince Street,
- 76. Pettah. The buildingon it must be an old one because none of the co-owners claimed to have constructed it. If the rent was small, not much would have been left, after paying the rates and taxes, to be shared by the co-owners. If that assumption is correct the fact that the other co- owners did not press the 13th defendant for their shares of the income would not be a strong point against them. That of course, is on the basis that the 13th defendant appropriated to himself the whole income. 'In this case the 13th defendant has failed to produce a single document executed by him on the basis that he was the sole owner of the property. The absence of such documents goes to show that he did not intend to change the character of his possession or to assert a title to the whole property. There is also no ostensible reason why the other co-owners should have meekly acquiesced If they became aware that the 13th defendant was setting up an independent title to the entire property. In my view the evidence of possession by the 13th defendant is wholly insufficient to hold that he has acquired a prescriptive title to a share of any of the co-owners. I am also inclined to the view that no occasion to draw a presumption of ouster arises where a co-owner relies only on his own exclusive possession, as in this case, in support of the prescriptive title he sets up. The 13th defendant relied on his possession alone according to the statement of claim filed by him. Therefore he ought to know when he decided to assert a title to the property adverse to the interests of his co-owners. What is the overt act he did which brought to the notice of his co-owners that he was denying their rights to the property? Did he refuse to give their shares of the income? He did not say so. But the burden was on him to establish the prescriptive title. The presumption of ouster is drawn, in certain circumstances, when the exclusive possession has been so long-continued that it is not reasonable to call upon the party who relies on it to adduce evidence that at a specific point of time, in the distant past, there was in fact a denial of the rights of the other co- owners. The duration of exclusive possession being so long it would not be practicable in such a case to lead the evidence of
- 77. persons who wouldbe in a position to speak from personal knowledge as to how the adverse possession commenced. Most of the persons who had such knowledge may be dead or cannot be traced or are incapable of giving evidence when the comes up for trial. In such a situation it would be reasonable, in certain circumstances, to draw the presumption of ouster. But in the instant case the party who claimed to have originated the adverse possession was alive at the time of the trial. He is no other than the 13th defendant himself. There was no necessity, therefore, to resort to a presumption of ouster. The 13th defendant's adverse possession, if any, was a question of fact which he could and should have proved. He failed to do so. In Tillekeratne v. Bastian 1[1 (1918) 21 N. L. R. 12.] Bertram C.J. while dealing with the circumstances in which the presumption of ouster may be drawn stated "If it is found that 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 property, it is artificial in the highest degree to say that such person and his predecessors in interest must be presumed to be possessing all this time in the capacity of co-owners, and that they can never be regarded as having possessed adversely, simply because no definite positive act can be pointed to as originating or demonstrating the adverse possession". All the circumstances set out in this passage are not present in exclusive possession attributed to the 13th defendant in this case. It is significant to note that the learned Chief Justice contemplates he case where a co-owner and his predecessors in interest are concerned do not think that he would have been prepared to draw the presumption of ouster if the exclusive possession relied on was solely that of co-owner who set up the prescriptive title. In such a case the ouster or something equivalent to ouster would have to be proved, as any other question of fact, by leading the necessary evidence. The presumption that possession is never considered adverse if it be referred to a lawful title may sometimes be displaced by
- 78. the com presumptionof ouster in appropriate circumstances. However, this counter presumption should not be reached lightly. It should be applied if and, only if, the long continued possession by a co-owner and predecessors in interest cannot be explained by any reasonable explanation other than that at some point of time, in the distant past, the posses became adverse to the rights of the co-owners. Indeed, this is not, a case. The appeal must therefore be dismissed. The judgment however needs variation on one point. The learned District Judge was of view that the rights allotted to the plaintiff and certain defendants specified by him were free of the fideicommissum. That is not correct. Only the 1/9th share originally belonging to Noor Lahira and which devolved on 9 to 12th defendants will not be subject to the fideicommissum. As this fideicommissum endures for four generations it would be only 5th generation of fideicommissary heirs who would inherit the prop' free of the fideicommissum. Therefore the proceeds of sale of the ball 8/9ths of the property should be deposited in Court and would be subject to the fideicommissum. The substituted defendant's appellants will the costs of this appeal to the respondents. H. N. G. FERNANDO, J.- It is common ground in this case that the land which is the subject of the action belonged originally to one Ibrahim Lebbe Ahamado Lebbe. By a deed No. 260 of 16th July 1872 he made a gift of that land to his' Muttu Natchia subject to certain conditions. Muttu Natchia had three children; her son Abdul Rahaman was the father of the 13th defendant her two daughters were the ancestors of the plaintiff and the other defendants. When the plaintiff instituted this action for the partition of the land on the basis that the deed P2 created a fideicommissum favor of the descendants of Muttu Natchia up to the fourth generation, the 13th defendant filed answer claiming that the deed P2 of 1872 not create a fideicommissum and also that the deed was void for wan acceptance on behalf of the persons designated as fideicommissaries. In addition the 13th defendant claimed that Muttu Natchia had placed him (the 13th defendant) in complete possession of the property and
- 79. that he hadacquired prescriptive title thereto as against all or some at least of the other parties to the action. The issues concerning the question whether the deed did create a valid fideicommissum and the question of due acceptance were answered in the lower Court against the 13th defendant, and the correctness of those answers has not been canvassed at the hearing of the appeal. On behalf however of the appellants, who are the heirs of the 13th defendant who died after the filing of the appeal, it has been strenuously argued that the appellants are entitled to a decree in their favor under section 3 of the Prescription Ordinance in respect of the shares of certain of the defendants in the action. I have therefore to refer to the evidence concerning possession and to the conclusions reached by the District Judge on the issue of prescription. At the commencement of the trial, the Counsel who appeared for the plaintiff is recorded as having admitted that "the 13th defendant's father had been in possession from prior to 1916 and that the 13th defendant came into possession in 1916 ". Thereafter the second defendant, a brother of the plaintiff, gave evidence. According to this evidence, the plaintiff, her sister the first defendant, and her brother the second defendant succeeded to interests in the property on the death of their mother in 1939 but were all minors at that time. The second defendant, who was the eldest of the three was born in 1923, and would have attained majority only in 1944. The plaint having been filed in September 1953 it is clear that the 13th defendant cannot claim a decree under the Prescription Ordinance, in respect of the shares to which these three parties were entitled, and the District Judge so held. This finding is not now challenged. In regard to the interests of certain other parties, there was no evidence which established clearly the time at which their interests accrued or their ages at that time. The learned District Judge however took the view that it was for the 13th defendant to prove the time of accrual of these interests and to establish that the parties have been free of the disability of minority for over ten years prior to the institution of the action. On this ground he held that the 13th defendant, having failed to establish the necessary matters, was not entitled to a decree
- 80. in respect ofthe interests of the parties concerned. He accordingly allotted to the 13th defendant only the one-third share which under the deed P2 accrued to him as the only child of his father Abdul Rahaman and rejected his claim to the entirety of the property. It has been argued for the appellants that the District Judge wrongly placed on the 13th defendant the burden of showing when the interests of these other parties accrued and of further establishing that they were free of the disability of minority referred to in section 13. It seems to me that this argument is entitled to succeed, and in the absence of evidence to the contrary, I will assume that neither the proviso to section 3, nor the provisions of section 13 can be of avail to these parties. The second defendant and the eleventh defendant were the only witnesses called at the trial, the second defendant being called on behalf of the plaintiff and the eleventh defendant on his own behalf. In his evidence-in-chief the second defendant gave no evidence whatsoever concerning possession of the property, but in cross-examination the following questions and answers were recorded :- Q. You .know who is occupying these premises? A. A. R. Abdul Majeed the 13th defendant is occupying these premises Q. Has he not rented it out to anybody? A. He has rented it out and he is collecting the entire rent. From the time I became aware of things he has been collecting the rent. The 11th defendant gave no evidence concerning possession and the 13th defendant neither, gave evidence himself nor called any witnesses. The learned District Judge did not expressly consider in his judgment the question whether the possession of the 13th defendant was of the character required by section 3 of the Ordinance. He has either assume that his possession was of the requisite character, or else considered it unnecessary to deal with the question because he decided that in an; event the claim of the 13th defendant had to fail on other grounds.
- 81. The arguments forthe appellants have been, firstly that the learned. District Judge impliedly held, and in view of the admission of plaintiff' Counsel could rightly hold that the possession of the 13th defendant was of the nature contemplated in section 3, and secondly that such a conclusion was justified by the evidence which is reproduced above. As the first argument, I am quite unable to accede to it. Even if the ad mission " that the 13th defendant's father had been in possession before 1916 and that the 13th defendant came into possession in 1916" car legitimately be construed to mean that the possession of the 13tl defendant had been " undisturbed and uninterrupted" since 1916, it is inconceivable that the Counsel who appeared for the parties opposed 14 the 13th defendant did intend to concede to the latter the right to a decree under section 3. The admission, for what it was worth, was made at the commencement of the trial by Counsel appearing for the plaintiff, who could in no way be prejudiced by it, because he had been a minor and was in any event protected by section 13. No similar admission was made by Counsel representing the fourth to eighth defendants or by Counsel representing the ninth and tenth defendants, all of whom are fideicommissaries under the deed P2. In fact at the stage of the addresses it was stated on behalf of the ninth and tenth defendants that, even if a fideicommissum had not been duly created, these defendants were in any event co-owners against whom the 13th defendant, who was not a stranger, could not prescribe. In these circumstances, it is impossible to regard the admission by the plaintiff's Counsel as having involved a, concession, binding on the other parties that the character of the 13th defendant's possession has been of such a nature that the possession could be of avail against his co- fideicommissaries or co-owners. I have therefore to consider the second argument for the appellants, namely that the evidence reproduced above was sufficient to entitle the 13th defendant to a decree against all those parties who had failed to bring themselves within the protection afforded either by the proviso to section 3 or by section 13. Be it noted that this evidence was only to the effect that the 18th defendant let out the premises and had always collected the rents: there was no specific statement either that
- 82. he had appropriatedthe rents exclusively for himself or that he had never given a share to any of the other fideicommissary heirs of Muttu Natchia. But let me assume, although I cannot agree, that the only reasonable meaning of the evidence of the second defendant is that the 13th defendant for nearly forty years from 1916, not only gathered the rents of the premises, but also appropriated them solely for himself without ever giving or conceding a share in the rents to any descendants of his two aunts. Upon this assumption, the 13th defendant undoubtedly had undisturbed and uninterrupted possession of the property in the sense contemplated by section 3 of the Prescription Ordinance, for (in the language of the parenthesis in section 3) his possession was "unaccompanied by payment of rent, by the performance of any service or duty, or by any other act from which a right existing in any other person would fairly or naturally be inferred ". But a person is not entitled to a decree under section 3 by virtue of such possession alone: the section requires the proof of a second element, namely that the possession must be "by a title adverse to or independent of that of the claimant or the plaintiff in such action ". That this is a distinct and separate element was emphasized by Bertram C.J. in his judgment in Tillekeratne v. Bastian 1[1 (1918) 21 N. L. R. 12.]. Having referred to a view earlier prevailing that the parenthesis Was intended to be an explanation of everything which the section required the possessor to establish, and having cited certain judgments and Thompson's Institutes as endorsing that view, the learned Chief Justice, adopting an expression earlier used by Wendt, J., pointed out that the coup de grace had been administered by the decision in Corea v. Appuhamy 2[2(1911) 15 N. L. R. 65.] to the theory that the words in the parenthesis were intended as a definition of "adverse title ". He then referred to the suggestion made in Pereira's Laws of Ceylon that the parenthesis was intended to be explanatory of the expression "undisturbed and interrupted possession " a suggestion which was expressly adopted by the Privy Council in Corea's case (at page 77) :-" The section explains what is meant by undisturbed and uninterrupted possession. Assuming that the possession of Iseris has been undisturbed and uninterrupted since the date of his entry, the
- 83. question remains, hashe given proof, as he was bound to do, of adverse or independent title? ". Having regard to my own unfamiliarity with a subject which has received much critical and learned consideration from the Bench and the Bar, and in connection with which Lord Mansfield had observed:-" the more we read, unless we are very careful to distinguish, the more we shall be confounded ", I must be pardoned if, in the course of my attempt to analyze the problem which possession by a co-owner presents, I emphasize too much that which should have been obvious. Firstly, section 3 imposes two requirements: "undisturbed and uninterrupted possession" and "possession by a title adverse or independent"; secondly t question whether the second of these requirements is satisfied does I arise unless the first of them has been proved. It is clear from t judgment of the Privy Counsel in Corea's case that a co-owner Possession can satisfy the second requirement in two difficult modes: (a) by proving that his entry was not by virtue of his title as co-owner; but rather of some other claim of title; in fact Their Lo] ships, in Corea's case, rejected the finding of the Supreme Court that the possessor had entered as sole heir of the former owner; (b) by proving that, although his entry was by virtue of his law title as a co-owner, nevertheless he had put an end to his possess in that capacity by ouster or something equivalent to ouster, a that therefore and thereafter his possession had been by an adverse independent title. Long-continued possession by itself clearly not contemplated in either of these two modes of proving that the possession of a co-owner had be "by a title adverse or independent ". The appellants therefore obtain no assistance from the decision in Corea's case. On the contrary I find it impossible to distinguish the facts of that case from the facts of 1 present one, and the decision operates strongly against the appellant have now to consider the so-called presumption of ouster which v referred to by the Privy Council in the judgment.
- 84. In Tillekeratne v.Bastian 1[1 (1918) 21 N. L. R. 12.] Bertram C.J. adopted from Smith's Lead: Oases, the definition of adverse possession, i.e. "possession held in a manner- incompatible with the claimant's title ", and he observed that the question whether possession by a co-owner is adverse must be Considered in the light of three principles of law, the third of which is " That a person who has entered into possession of land in one capacity is presumed to continue to possess it in the same capacity". Having thereafter referred to the English Law, and to early Ceylon cases, he WI on to hold that there is a counter-principle which is part of the law Ceylon and that it is open to the Court, from lapse of time in conjunct with the circumstances of the case, to presume that possession origin that of a co-owner has since become adverse. He later explained how t presumption should be applied:" It is in short a question of fact whenever long-continued exclusive possession is proved to have exist whether it is not just and reasonable in all the circumstances of the c that the parties should be treated as though it had been proved t: that separate and exclusive possession had become adverse at some of more than ten years before action was brought ". The words I have parenthesized indicate that this presumption is available in connect with the mode (b) of proving an adverse or independent title which have elicited from the judgment in Corea's case, namely in order establish that although the entry had been qua co-owner, the possession had commenced at some later time to be upon an assertion of an adverse title. No such presumption would be available to counter the principlethat a co-owner is presumed to enter by virtue of his lawful title. The presumption referred to by Bertram C.J. has since been usually referred to as the presumption of ouster. The argument for the appellants has been that this presumption of ouster, applies in their case that it is just and reasonable that the possession of the 13th defendant, having been exclusive and of long duration, should be regarded as having become adverse at some time after 1916. Let me first repeat the language employed by Bertram C.J:-" It is open to a Court from lapse of time in conjunction with the circumstances of the case??.";" whenever long-continued possession is proved
- 85. to have existed,whether it is not just and reasonable in all the circumstances of the case??.. " Long-continued possession (for nearly 40 years) was established indisputably in the case of Tillekeratne v. Bastian 1 but that was not all-Each of the three Judges thought it necessary, as indeed Bertram C. J's language rendered it necessary, to refer to circumstances, quite distinct from the mere duration of possession, which indulged them to apply the presumption :- "Though Babappu was the legitimate son of Allis, he was not accorded this status by the family" ; "It is a very significant fact that Tillekeratne, who purported to have acquired his (Babappu's) share in 1893, became insolvent in 1897, and did not include this land in the schedule of his assets." "It would moreover be contrary to equity that a person possessing a doubtful status in a family, who has lived apart from it for a generation in another locality, should be permitted through the medium of a sale to a speculative purchaser to revive his obsolete pretensions, and to assist those claiming through that purchaser to invade the family inheritances." (per Bertram, C.J.) Although he (Babappu) purported to sell to Tillekeratne in 1893, his vendee never possessed, nor was the land included in the inventory of his estate on his death in 1901, and his (the vendee's) heirs made no attempt to assert any right until 1916. " (per Shaw, J.) "Babappu appears not to have been really recognized as a legitimate son of Allis by the rest of he family. He must have known that he was being intentionally excluded from possession. " "While a co-owner may without any inference of acquiescence in an adverse claim allow such natural produce as the fruits of trees to be taken by the other co-owners, the aspect of things will not be the same in the case where valuable minerals are taken for a long series of years without any division in kind or money."
- 86. (per de Sampayo,J.) There were thus in that case several proved circumstances rendering it reasonable to presume that the possessor's title had become adverse to that of their co-owner: the co-owner's status in the family was doubtful and had not been accorded to him: valuable minerals had been appropriated for-the sole benefit of the possessors: the co-owner must have known that he was being intentionally excluded from possession: the actual claimant was a vendee from the co-owner, but this vendee had himself neither possessed nor claimed his share for over ten years. Were not these cogent circumstances from which to infer that the possession had become adverse at some time? The passages which I have cited from the judgments in Tillekeratne v. Bastian were preceded by certain observations which fell from Bertram C.J (at pages 20 and 21):- "It is the reverse of reasonable to impute a character to a man's possession which his whole behavior has long repudiated. If it is found that one co-owner and his predecessors in interest have been in possession of the whole property for a period as far back as reasonable t 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, it is artificial in the highest degree to say that such a person and his predecessors in interest must be presumed to be possessing all this time in the capacity of co- owners, and that they can never be regarded as having possessed adversely, simply because no definite positive act can be pointed to as originating or demonstrating the adverse possession. Where it is found that presumptions of law lead to such an artificial result, it will generally be found that the law itself provides a remedy for such a situation by means of counter-presumptions. " Read out of their context, these observations may tend to support the view that adversity may be presumed from mere long-continued and exclusive possession. They emphasis the absurdity and artificiality t which might prevail if there were
- 87. no" counter-presumption ",but l they do not constitute an enunciation of the principles governing the application of that presumption. They are only a preface or preamble, so to say, to the enunciation of principles which is to follow and which is contained in the passages' I have earlier cited, and cannot be regarded as altering or extending the principles as so enunciated. In Hamidu Lebbe v. Ganitha 1[1 (1925) 27 N. L. R. 33.], one of two brothers had been in exclusive possession for nearly forty years. They had quarreled, and the excluded brother had left the ancestral village. Dalton J., relying on the decision in Tillekeratne v. Bastian; was much inclined to presume from these circumstances that this brother must unsuccessfully have preferred a claim to his share, and that the possession would thereafter have been adverse. He felt, however, that the Privy Council decisions in Corea', case and in Brito v. Muttunayagam 2[ 2(1918) 20 N. L. R. 327.]a (where a father had possessed his widow share after a quarrel with his children) did not permit him to presume adverse possession. Ennis J. observed that "some definite facts would have to be proved" from which one could infer a change in the character of the possessor's intention with regard to the holding of the land. If the quarrel and, the departure of the co-owner from the village did not constitute sufficiently definite facts from which this inference could be drawn, would it ever be reasonable to draw that inference where all that is proved (as is so in the present case) is long-continued possession? There have been numerous subsequent decisions of this court which have denied to co-owners in exclusive possession a decree under section 3 of the Prescription Ordinance, but it is sufficient for present purposes to summarize their effect by reference to some of them. Exclusive possession for many years, coupled with the execution by the possessor of deeds inconsistent with the title of his co-owners, is insufficient in the absence of evidence that the co-owners knew of and acquiesced in the execution of the deeds. This proposition was accepted as settled law in Umma Ham 11. Koch1[1 (1946) 47 N. L. R. 107] which followed earlier decisions to the same effect: - Careem v. Ahamadu 2[2 (1923) 5 C. L. Rec. 170.] and Sideris v. Simon 3[3.(1945)46 N .L.R. 273.]. The preparation
- 88. of a Planindicating that the possessor regarded himself as exclusively entitled to a specific portion of the common land and purporting .to allot another specific portion to his co- owners, coupled with dealings by the possessor with his portion on the basis of sole ownership, does not justify a presumption of ouster in the absence of evidence that the co-owners acquiesced in the preparation of the plan of partition: - Githohamy v. Karanagoda 4[ 4 (1954) 56 N. L. R. 250.]. It is significant that, in these and other cases, there was almost invariably reliance, even by unsuccessful possessors, upon some circumstance additional to the mere fact of long and undisturbed and uninterrupted possession, and that proof of some such additional circumstance has been regarded in our Courts as a sine qua non where a co-owner sought to invoke the presumption of ouster. I am aware of one decision only which is seemingly contrary to the cursus curiae as just stated. There is language in the judgment of Canekeratne J. in Subramaniam v. Sivaraja et al. 5[5(1945) 46 N. L. R. 540.] to indicate that the taking of profits exclusively and continuously for a very long period, and the acquiescence of co-tenants in the possessor's omission to account, would justify the presumption of an ouster. But there is no reference in the judgment to any earlier decision relative to prescription by co-owners, and the facts as stated in the judgment show that there had been no proof that the person in possession claimed title from the same source as did her adversaries. On the contrary the claims of title were mutually exclusive. I cannot regard this case as providing a relevant precedent, but even if it does there is at least one ground upon which it should be distinguished. While the possessor's name had continuously appeared in the assessment Register of the Sanitary Board as the owner of the property, and she alone had paid the rates, the alleged co-tenants had in some years placed their names also on the Register. The fact that they did so but nevertheless did not receive any of the profits from the possessor might have justified the inference that they had staked a claim to their share in the profits and had been rebuffed by the possessor. Even in that case therefore the possessor, if she was properly regarded as a co-owner, did rely upon a circumstance additional to the fact of long possession,
- 89. as a groundon which the presumption of ouster might be drawn. That line of decisions, one of the more recent being Fernando v. Podi Nona 1[1(19,54),56N.L.R.491.], which recognize the principle that, where a stranger obtains a transfer of the entire land from one co-owner, his possession commences:-as adverse, is not relevant to the present discussion. "The possession of a stranger in itself indicates that his possession is adverse ":-Leach C. J. in Pillai v. Rawther 2[ 2 N.L.R. 23 Bomb. 137.]. When the title upon which the stranger enters into possession, though in law defective, is based upon a transfer to him of the entire land, it is nevertheless a title adverse, inasmuch as it constitutes a denial of the rights of others. What such a stranger proves is an entry by a title adverse-the mode (a) of proof which I have elicited from the judgment in Corea's case, and not the mode (b) (i.e. of change in the character of the possession) which is required of a person who enters qua co-owner. Those decisions therefore throw no light on the question I am now considering. The judgment in the case of Rajapakse v. Hendrick Singho 3[3(1959)61N.L.R.2.], though delivered on June 22, 1959, was not referred to during the argument of the present appeal, and I was unaware of it when the preceding part of this judgment was prepared. The facts in that case were, briefly, as follows:- The original owner had conveyed an undivided portion of the land to T by deeds executed in 1919 and 1920: T in 1921 transferred an undivided 11/19 share to his grandson, who in turn sold the undivided interests in 1927 to G: the plaintiff purchased the interests of G in May 1953 and instituted a partition action in August of the same year. The defendants, who were descendants of the original owner and thus entitled to the shares outstanding after the transfers of 1919 and 1920, claimed that they had exclusively possessed the entire land from 1922 and had divided the produce among themselves and to the exclusion of the plaintiff's predecessors in title. The grandson of T, who had been a predecessor of the plaintiff and had been the owner of the undivided interests for about six years, admitted at the trial that neither he nor his successor G had ever occupied the land, and that the defendants had lived on the land and enjoyed the produce to the exclusion of himself
- 90. and G. Itwas held on these facts that there was overwhelming evidence upon which ouster could be presumed. The plaintiff in that case claimed under T, who was a purchaser and not an heir of the original owner, and the plaintiff's predecessors were strangers to the family of the original owner. It is reasonable to assume that when a stranger purchases undivided interests inland, he does so as an investment and with the object of enjoying his due share of the fruits. If having purchased such an interest, a stranger does not assert his right to possession, but instead acquiesces in the exclusive appropriation of the entire produce by the members of the family of the original owner, it may be reasonable to presume from his unusual conduct that he either acknowledged the exclusive rights of the family or else failed in an effort to assert his own rights. Indeed this same feature, namely that- the rights of the family were challenged only after a long period of acquiescence on the part of a stranger-purchaser, was one of the circumstances which induced this Court in Tillekeratne v. Bastian to presume that there had been an ouster. If the ratio decidendi of the decision in Rajapakse v. Hendrick Singho is that acquiescence, on the part of a purchaser of an undivided interest, in the exclusive possession of the entire land and the appropriation of its profits by the other co-owner, is a circumstance from which the adversity of the possession of the other co-owners can be inferred, then that decision may be in consonance with the dicta of Bertram C.J. and Ennis J. to which I have earlier referred. If that be the basis of the decision, it is easily distinguishable from the present case, where the title has throughout remained vested in the members of the same family. Before concluding this judgment, it may be useful to add one observation concerning the presumption of ouster. Some of the presumptions mentioned in the Evidence Ordinance are arbitrary, in the sense that a Court is permitted to presume the existence of facts, even though it may be uncertain that the facts did indeed exist. The presumption of legitimacy is a good example of such ails arbitrary presumption: a Court may be compelled to regard the child of a wife as legitimate despite the availability of evidence, whether direct or in the form of admissions, which can establish illegitimacy. The presumptions
- 91. as to theregularity of official acts and the "course of business" are also examples, though less pointed, of something akin to a "rule of thumb ". In my view, however, the so-called presumption of ouster is not to be applied arbitrarily, but only if proved circumstances tend to show, firstly the probability of an ouster, and secondly the difficulty or impossibility of adducing proof of the 'ouster. If the circumstances justify the opinion that possession must have become adverse at some time, a Judge is not in reality presuming au ouster: he rather gives effect to his opinion despite the absence of the proof of ouster which a co-owner would ordinarily be required to adduce. This aspect of the matter was touched upon by Bertram C. J. in Tillekeratne v. Bastian (at page 18). The principle as stated in judgments of Bertram C. J. in Tillekeratne v. Bastian and of Ennis J. in Hamidu v. Ganitha 1[1 (1925) 27 N. L. R. 33.], that the inference of ouster can only be drawn in favor of a co-owner upon proof of circumstances additional to mere long possession, has been consistently recognized and strictly applied. To draw that inference from mere duration of possession would be to disregard the very terms in which they stated the principle, and to ignore the requirement of an "adverse or independent title" prescribed in section 3. Moreover, if exclusive possession alone is to suffice, after what period will it be just and reasonable to presume ouster? There being nothing in the section to the contrary, a particular Judge may well be inclined to presume ouster from possession for a period of ten years: but if another Judge declines to do so unless the period is much longer, can it be said that one Judge is right and the other wrong? Will not such a situation be reminiscent of the days when the principles of Equity were said to vary with the length of the Chancellor's toe? The proposition we are invited to uphold is not only contrary to settled law; it contains no criterion by the application of which consistency of judicial decisions can be reasonably expected. Our Courts have constantly recognized the rule that undisturbed and uninterrupted possession by a co-owner does not suffice to entitle him to a. decree unless there is proof of the ouster of the other co-owners. The decision in Tillekeratne v. Bastian recognized an exception to that rule and permits
- 92. adversity of possessionto be presumed in the presence, of circumstances additional to the fact of undisturbed and uninterrupted possession for the requisite period. If the true effect of the exception is that the fact of such possession simpliciter established a. title "adverse or independent ", what need is there for a co-owner to prove ouster and what scope remains for the operation of the rule? What need for a co- owner to prove anything more than is required of a, trespasser? I would hold for the reasons stated that the 13th defendant was entitled only to the one-third share which accrues to him under the deed which created the fideicommissum, and that he did not acquire any title by prescription to any other share. The judgment of the District Judge has therefore to be affirmed, subject to the correction of one error therein. As stated in the judgment, it is only the fifth fideicommissary heir who holds the property free of the fideicommissum. It was common ground at the hearing of the appeal that none of the parties are of the fifth generation. Accordingly, the .fideicommissum attaches to all the shares allotted in the judgment and to the proceeds of sale, except to the 1/9 share referred to by my brother de Silva. I agree with the order proposed by him. Appeal dismissed, subject to the correction of one error.
- 93. HUSSAIMA Vs A.L. UMMU ZANEERA Respondents Co-owners-Prescriptive possession by a co-owner-Adverse title-Burden of proof- Fideicommissum for four generations-Burden of proof regarding termination of successive interests and of any disability-Prescription Ordinance, ss. 3, 13. Volume 65, Page No 125 New Law Reports 125 [IN THE PRIVY COUNCIL] 1961 Present : Viscount Radcliffe, Lord Evershed, Lord Devlin, Lord Pearce, and Sir Terence Donovan PRIVY COUNCIL APPEAL No. 53 OF 1961 S. C. 260-D. C. Colombo, 6970/M Co-owners-Prescriptive possession by a co-owner-Adverse title- Burden of proof- Fideicommissum for four generations-Burden of proof regarding termination of successive interests and of any disability-Prescription Ordinance, ss. 3, 13. A deed of gift executed on the 16th July, 1872, in respect of certain property in the business district of Pettah, Colombo, was alleged by the plaintiff to have created a fidei commissum which continued in operation after the death of the grantor's wife in favour of the descendants for four generations. In the present proceedings for partition of that property the plaintiff was the great-great-grand daughter of the grantor's wife and there were numerous other parties. The 13th defendant was a grandson of the grantor's wife, his father having been one of her three children and her only son. He denied that the deed of gift created a fidei commissum, and claimed to have acquired exclusive title to the entirety of the property by prescriptive
- 94. possession. This claimwas resisted by the plaintiff and all other defendants who particularly relied on the proviso to section 3 and also on section 13 of the Prescription Ordinance. The 13th defendant accepted the trial Judge's finding that the deed of gift created a fidei commissum and he accepted also that, having regard to their ages of minority, he could not succeed against the plaintiff or the first or second defendant. It was also shown that the trial Judge wrongly placed on the 13th defendant the burden of proving the exact dates when the successive interests of the other parties determined and when any disability came to an end. On the issue of prescription it was admitted by all parties other than the 13th defendant " that the 13th defendant's father has been in possession from prior to 1916 and that the 13th defendant came into possession in 1916 ". It was also admitted, in cross-examination, by the 2nd defendant, who was called by the plaintiff that the 13th defendant " is occupying these premises " and that " he has rented the use and has collected the entire rent ". At the end of the record of the plaintiff's evidence there was also again recorded the plaintiff's admission "that from 1916 the 13th defendant collected the rents". The 13th defendant did not himself give any evidence. Held, that the evidence that the 13th defendant " collected the rents " for 37 years from 1916 till the time of the present action in September 1953, was not by itself sufficient to prove that a possession originally that of a co-owner became adverse at some date more than ten years before the institution of the action. The language of the admission and evidence upon the face of it and according to its ordinary sense was limited to the actual receipt or collection of the rents and was silent as to their application. The point should also be noted that of a Muslim family the 13th defendant was the son of the only son of the original grantor's wife. Such facts, unsupplemented, fell short of anything that amounted to an adverse title the onus of
- 95. proving which, bythe terms of section 3 of the Prescription Ordinance, lay on the 13th defendant. 126 APPEAL from a judgment of the Supreme Court reported in (1959) 61 N. L. R. 261. Hanan Ismail, for Appellants. M. Markhani, with John Baker, for 5th to 8th Respondents. Cur. adv. vult. May 9, 1961. [Delivered by LORD EVERSHED]- In their Lordships' opinion this appeal is one of considerable difficulty and the question involved very much upon the borderline ; but after careful consideration of the arguments submitted to their Lordships by learned counsel their Lordships have come to the conclusion, not for reasons later appearing, without some regret, that they should humbly advise Her Majesty to dismiss the appeal. The appeal arises out of proceedings for partition begun nearly ten years ago. The claim of the plaintiff, who has since died, was that she was entitled to a share of certain property in the business district of Pettah, Colombo, by virtue of a Deed executed by one Ibrahim Lebbe Mohammadu Lebbe on the 16th July, 1872. The main question at the trial was whether the Deed created an effective fidei commissum and if so whether such fidei commissum continued in operation after the death of the grantor's wife in favour of her descendants for four generations. The plaintiff was a great-great-granddaughter of the grantor's wife and, as might be expected, there were numerous other parties to the proceedings. The 13th defendant was a grandson of the grantor's wife, his father having been one of her three children and her only son. The 13th defendant has died since the trial and the appellants before the Board are his four children, who were substituted in the proceedings for
- 96. the 13th defendantbefore the case came to be heard by the Supreme Court of Ceylon. In addition to the question concerning the fidei commissum the 13th defen¬dant before and at the trial claimed to have acquired an exclusive title to the entirety of the property by prescriptive possession pursuant to section 3 of the Ceylon Prescription Ordinance No. 22 of 1871. This claim was resisted by the plaintiff and all the other defendants who particularly relied on the proviso to section 3 and also on section 13 of the Ordinance. The proviso and section referred to are set out in the judg¬ment of the Chief Justice of Ceylon. For present purposes the relevance of these terms of the Ordinance is that if the fidei commissum be established and there was consequently a series of successive interests in the property corresponding in substance to successive beneficial interests under an English Trust then the period of the prescription (unless it has then run its full course) starts afresh on each transmission of interest and moreover does not run against a beneficiary becoming entitled so long as he or she is under a disability, such as infancy. 127 These being the issues raised in the action, it appears from the record of the proceedings that when in due course the issues involved came to be framed an admission was made by counsel for the plaintiff. The admission was " that the 13th defendant's father has been in possession from prior to 1916 and that the 13th defendant came into possession in 1916 ". When, after the evidence had been called, counsel made their final addresses it was stated by the learned counsel for the 13th defendant that " on the first day the case came up for trial all the parties agreed to the admission made by " counsel for the plaintiff. There was some discussion before their Lordships whether in truth all the parties had so agreed, but it appears reasonably clear from the judgment of the District Judge and, the judgments of the Supreme Court that the admission was regarded as having been accepted by all the parties other than the 13th defendant. In the meantime the evidence had been given but in fact only two witnesses were called. On the plaintiff's part, her brother
- 97. the second defendantgave evidence in support of the claim of fidei commissum. In cross-examination on behalf of the 13th defendant the following two questions and answers were recorded :- Q. " You know who is occupying these premises ? A. . . . . . the 13th defendant is occupying these premises. Q. Has he not rented the use to anybody ? A. He has rented the use and has collected the entire rent. " The only other witness called was the 11th defendant, whose evidence was immaterial upon the question before the Board. The 13th defendant did not himself give any evidence. At the end of the record of the plaintiff's evidence there is also again recorded the plaintiff's admission " that from 1916 the 13th defendant collected the rents ". Their Lordships have referred to the precise terms of the admission and of the two questions and answers given in evidence because, as things have fallen out, it is upon the proper inference to be drawn therefrom that the decision of this appeal must rest. As their Lordships will later notice, the Chief Justice in the Supreme Court (before which the 13th defendant's appeal came in 1959) drew the inference that the admission and evidence quoted justified the conclusion that from 1916 the 13th defendant had in fact enjoyed undisturbed and adverse possession of the property within the meaning of the Prescription Ordinance. The majority of the Supreme Court,
- 98. however, did notshare the Chief Justice's view and held that the 13th defendant had not proved such possession as section 3 of the Prescription Ordinance required. Their Lordships think it most unfortunate, as things have turned out, that the exact extent and meaning of the admission by counsel was not clarified either at the time when it was made or later when the case was before the District Judge, and not the less so since it was first made, as previously stated, when the issues in the case were being formulated. The 128 relevant issues so formulated were in fact those numbered 3 (b) and 4 and were to the effect-Had the 13th defendant been in exclusive possession and acquired a prescriptive title to the entirety of the property or to the shares therein of the plaintiff and the other several defendants ? The learned District Judge could undoubtedly have caused the scope of the admission to be made clear but unfortunately did not do so, and having regard to the view which the learned District Judge took it may fairly be said that it was not necessary for his decision that he should. As already stated, the main question was that relating to the alleged fidei commissum in 1872 and, as regards the claim of the 13th defendant, the extent of the admission was in the event immaterial because, in the view of the District Judge as expressed in his judgment in February, 1956, it was having regard to the terms of the proviso to section 3 of the Ordinance for the 13th defendant to prove as regards each share in the trust property what were the exact dates when the successive interests therein determined and when any disability came to an end. The District Judge held that the fidei commissum had been validly established but he also held that the claim of the 13th defendant wholly failed because he had not at all discharged the onus which the learned Judge thought lay upon him of proving the several dates above mentioned.
- 99. The 13th defendantthen appealed to the Supreme Court of Ceylon. He accepted the District Judge's finding of the creation of a fidei commissum and its extent and he accepted also that, having regard to their ages, he could not succeed against the plaintiff or the first or second defendant. The main argument before the Supreme Court was whether the District Judge had been right in the view taken by him as regards the burden of proving the several dates above mentioned. Upon this point the 13tb defendant succeeded. Thereupon, and for the first time, the scope and meaning of the admission and the two questions and answers earlier quoted became vital to the conclusion of the appeal. It was, however, made quite clear before their Lordships that neither side then asked for a retrial or for any order designed to obtain further clarification of the admission and evidence. Each side was content to rest upon the terms of the admission and of the answers given by the second defendant as they were recorded, and the argument therefore was as regards the proper inference to be drawn therefrom. The judgments of the learned Judges in the Supreme Court contain a careful review of authorities both English and Ceylonese upon the proper application of the relevant terms of the Prescription Ordinance in the case of one claiming a prescriptive title whose occupation of the property in question was or should be originally attributed to his interest as co- owner ;particularly of the judgment of Lord Mansfield in the English case of Doe d Fisher v. Prosser1[1 Cowp : 217.]and the judgment of Bertram, C.J. in the Ceylonese case of Tillekeratne et al. v. Bastian et al.2[(1918) 21 N. L. R. 12.]. Their Lordships are content to accept the principles applicable as they were expounded in the Supreme Court. Nor, indeed, were the principles really 129 in dispute before their Lordships. The question, and the very difficult question, has been of their application. In the circumstances their Lord-ships are content to found themselves for present purposes upon two passages in the judgment of Bertram, C. J. at pp. 23 and 24 of the latter of the cases above mentioned : " It may be taken, therefore, that it is open to the
- 100. Court, from lapseof time in conjunction with the circum¬stances of the case, to presume that a possession originally that of a co-owner has since become adverse." " It is, in short, a question of fact wherever long continued exclusive possession by one co-owner is proved to have existed whether it is not just and reasonable in all the circumstances of the case that the parties should be treated as though it had been proved that that separate and exclusive possession had become adverse at some date more than ten years before action brought." As already observed the learned Chief Justice in the present case felt able to draw from the admission and the questions and answers of the second defendant the requisite inference in favour of the 13th defendant. In the course of his judgment he said : " It would appear, therefore, that on the facts of the instant case the co-owners cannot claim the benefit of the appellant's possession as he had possession not on their behalf but for himself without giving them their share of the rent ". And again : " There is no evidence that till the time of this action in September 1953 anyone has ever questioned the appellant's right to take the rent during these 37 years." In other words, it was the view of the learned Chief Justice that in the absence of any other evidence on either side than that quoted, the proper inference to be drawn from such evidence and the admission was that the 13th defendant not only received and collected the rents but applied them for his own purposes without any accounting to any other members of the family. As their Lordships have also stated, De Silva and Fernando J J were unable to accept the conclusion which had appealed to the Chief Justice. In each of their respective judgments forcible attention was drawn to the fact that the 13th defendant (on whom by the terms of sec¬tion 3 of the Ordinance the onus of proof lay) had forborne to give evidence himself and to the absence of any evidence regarding such matters as the amount of the rents received or outgoings discharged or to the existence of any document or writing executed by the 13th. defendant consistent with his claim to be exclusive owner of the property. Mr. Ismail for the appellant, stressed, naturally enough, the great length of time during which, on any view, according to the admission and evidence, the 13tb defendant and his father bad clearly in fact been in receipt of and collected the rents : and if (as he said) the 13th
- 101. defendant had failedto give negative evidence that he had never accounted to any other members of the family there had been on the other side no positive evidence from or on the part of any one of the other parties that he or she or any other members of the family had at any time received anything from the property or made any claim in respect thereof. Mr. Ismail also criticised (in their Lordships' opinion justly) the view of the majority of the Supreme Court that if the admission of counsel had been meant to have the scope and meaning for 130 which the appellants contended there would have been no point in going on with the trial. Such a view, as their Lordships venture to think, loses sight of the fact that at the trial the relevant question which the District Judge had to decide was concerned with the dates of the coming into existence of the successive interests in the property, having regard to the terms of the Prescription Ordinance which prevent time running against persons under a disability and which require or may require time to begin to run again whenever a new interest comes into existence. Their Lordships have been very conscious of the force of Mr. Ismail's contentions, but since, as already stated, both sides before the Supreme Court were content to rest upon the ordinary meaning and inferences to be drawn from the admission and the second defendant's two answers, they have felt unable to conclude that the majority of the Supreme Court were not justified in refusing to draw from the admission and the answers such an extended scope and meaning as the appellant's case inevitably re quires. After all the language of the admission and evidence upon the face of it and according to its ordinary sense was limited to the actual receipt or collection of the rents and was silent as to their application. Their Lordships have noted also the point made by De Silva J. that of this Muslim family the 13th defendant was the son of the only son of the original grantor's wife. Such facts unsupplemented, fall short of proving anything that amounted to an adverse title.
- 102. Their Lordships repeat,none-the-less, that they have felt some regret at reaching a conclusion based as it is upon the inference proper to be drawn from such meagre premises as the recorded admission by counsel and the two short answers given by the second defendant in cross-examination- particularly since their Lordships cannot help feeling that the true facts might at the time of the trial have been so easily discovered. Their Lord¬ships were therefore disposed at one stage to think that in the interests of justice a new trial should be ordered. On the whole, however, their Lordships have decided against such an Order. In reaching their final conclusion their Lordships have attached weight to these considerations : first that before the Supreme Court, both sides were content deliberately to take their stand upon the admission and evidence as they stood : second that the 13th defendant is now dead: third, that it is now ten years since this litigation began and if the matter were reopened upon a fresh trial, the value of the property, situated though it is in a business quarter of Colombo, appears on the material before their Lordships not to be very great and to be therefore somewhat disproportionate to the costs that would or might be incurred in addition to those incurred already ; and finally their Lordships have in mind that the appellants are in any case entitled to a one-third interest in the property (to which should be added the sum of Rs. 1,000 which is conceded to be payable to them out of the pro¬ceeds of sale of he property by way of recoupment of moneys spent by the 13th defendant upon drainage works) and have conceded before the Board (as they did before the Supreme Court) that their claim cannot be sustained in respect of one-fourth of another one-third share in the property. 131 In all the circumstances therefore their Lordships will humbly advise Her Majesty that the appeal should be dismissed. The appellants must pay the respondents' costs before the Board.
- 103. DANTON OBEYESEKERE vsENDORIS Co-owners-Separate possession of a portion of the co-owned land by one of the co-owners-Inference of prescriptive possession and title. NLR Volume 66, Page No 457 962 Present: Sansoni, J., and Silva, J. S. C. 141/60-D. C. Gampaha, 3993/P
- 104. Co-owners-Separate possession ofa portion of the co-owned land by one of the co-owners-Inference of prescriptive possession and title. A two-third share of a co-craned land containing in extent about two roods was possessed separately for over twenty years by the 1st defendant and his predecessors in title. It was not separated off for mere convenience of possession and as a temporary arrangement. It was much more likely that it was intended as a permanent mode of possession by an outsider when she bought the share from two of the co-owners. Held, that the lot so separated off ceased, with the lapse of time and exclusive possession, to be held in common with the rest of the land. Those who possessed it were entitled to claim that they acquired prescriptive title to it. The. mere mention of undivided shares in subsequent deeds could not affect the true position. APPEAL from a judgment of the District Court, Gampaha. Frederick W. Obeyesekere, for the 8th Defendant-Appellant. H. W. Jayewardene, Q.C., with W. D. Gunasekera and Ranjit Dheeraratne, for the Plaintiff- Respondent. Cur. adv. vult. August 30, 1962. SANSONI, J.- The Plaintiff brought this action to have a land called Kadurugahawatte partitioned. That land is described in the Schedule to the plaint as bounded on the North by the live fence of a portion of this land of Lawaris Naide, East by the High Road, South by the live fence of the land of A. Thomis and
- 105. West by thelive fence of the land of Lawaris Naide and another containing in extent about two roods. The northern boundary is of some importance, as will appear later in this judgment. According to the plaint, Danchi Naide was the original owner, and he died leaving as his heirs his wife Kiri Nachchire and 3 children Poddi, Migel and Tamby. Poddi and her mother transferred to the other two heirs their 2/3 share of the land by deed 8D1 of 1899, so that Migel and Tamby thus became the owners of a 1/2 share each. They by deed 8D2 of 1905 sold an undivided 2/3 share to Maria Elizabeth Fernando, 458 who by deed 8D3 of 1909 transferred that share to Cornelia Henrietta Obeyesekere, who by deed 8D4 of 1935 transferred that share to the 1st Defendant. The 1st Defendant died pending this action. The 8th Defendant is his legal representative, and his heirs are the 7th to the 11th Defendants. The Plaintiff averred in the plaint that Migel died, leaving him and Elisahamy as his heirs, each thereby becoming entitled to 1/12 share, and that Elisahamy by deed 2D1 of 14th December 1953 transferred her share to the 2nd Defendant, that Tamby died leaving as his heirs 4 children namely, Lisohamy, Rapiel, Rosahamy and Podina, and the two former by deed P1 of December, 1953 transferred their 1/12 share to the Plaintiff, and the two latter by deed 2D2 of 15th December 1953 transferred their 1/12 share to the 2nd Defendant. Thus the Plaintiff claimed to be entitled to 2/12ths, and he allotted 8/12 to the 1st Defendant and 2/12 to the 2nd Defendant. When the Surveyor went to make the preliminary plan, the Plaintiff pointed out a block of 21 perches as shown in Plan Y as the corpus. The 1st Defendant's representative disputed this and stated that it represented only a divided portion of the entire land which the 1st Defendant possessed, and that the
- 106. rest of theland lay towards the North. A fresh commission was issued and a new plan X was made, in which the original 21 perches was shown as Lot C, and the Lots A and B lying to the North of it were, as pointed out by the 1st Defendant's representative, depicted as the rest of the land. Answers wore thereafter filed. The 1st Defendant pleaded that he had acquired prescriptive title to Lot C of 21 perches, and that the entire land consisted of Lots A, B and C. The 2nd Defendant in his answer agreed with the Plaintiff with regard to the corpus to be partitioned. He also pleaded that Lots A and B, which were subsequently surveyed, were another land belonging exclusively to him and the 6th Defendant. The 6th Defendant's answer agreed with that of the 2nd Defendant. At the trial points of contest were framed on these lines. The Plaintiff and 2nd and 6th Defendants claimed, as against the 8th Defendant, that Lot C of 21 perches represented the entire land described in the schedule to the plaint. The 8th Defendant, as the 1st Defendant had done, claimed Lot C upon prescriptive possession. With regard to Lots A and B the position of the 2nd and 6th Defendants was that Amarabandu and his wife, Podihamy, had acquired interests in those Lots upon deeds 2D5 of 1917 and 2D6 of 1939 which conveyed respectively 1/5 and 1/10 shares of a land called Kadurugahawatte of about 2 roods bounded on the North by the live fence of the land owned by Peduru Perera and others, on the East by the Main Road, on the South by the live fence of a portion of this land owned by Juanchi (probably another name for Danchi) Naide, and on the West by the live fence of the land called Meegahawatte. The 6th Defendant, who is the son of Amarabandu and Podihamy, acquired 2/15 share of that land on deed 2D7 of 459 1937, and also received a gift from his parents of their interests upon 2D4 of 1951. By deed 2D3 of 1952 he sold 3/8
- 107. share to hisbrother-in-law the 2nd Defendant, and he would have been left with a very small share. The learned District Judge held that Lot G was the entire land that Danchi Naide owned. He also held that the 1st Defendant had not acquired a prescriptive title to it. He accordingly entered an interlocutory decree against which the 8th Defendant has appealed. It is necessary first to refer to the conduct of the 2nd Defendant as disclosed in earlier actions. Having obtained deed 2D3 in June 1952, he destroyed a barbed wire and live fence which separated Lot C from the land to the north of it in November 1952. He was charged in the Magistrate's Court, Gampaha, by the 1st Defendant and pleaded guilty of the offence of mischief. He refused, in breach of an undertaking given by him, to allow the fence to be erected, and he was sued in the Court of Requests, Gampaha, and was ordered to pay damages to the 1st Defendant. While that action was pending he purchased the shares mentioned in 2D1 and 2D2 while the Plaintiff bought a share on deed P1 at the same time. Bearing on the question of prescription are two plans which have been produced. A plan 8D8 of 1949 made at the instance of the 1st Defendant depicts the fence which has been destroyed. It shows Lot C lying between that fence on the north and a wire fence on the south as the property of the 1st Defendant. A still earlier plan 2D9 of 1938 produced by the 2nd Defendant is illuminating. It depicts the land lying to the north of Lot C. The abutting land on the south, corresponding to Lot C, is described as " Land of Mrs. J. P. Obeysekera " (the transferee on deed 8D3). It is most unlikely that Lot C would have been so described if it had not "been regarded at that time as her property and possessed as such. While there are only one coconut and one beli tree on Lot C there is also a boutique on it, and the oral evidence is overwhelming that the 1st Defendant and his predecessors in title possessed that divided lot exclusively and collected the rent from the boutique.
- 108. The evidence ofthe 2nd Defendant, who was the only witness called for the Plaintiff, is plainly unreliable where it is not false. In any event he does not claim to have known these lands before 1947. As to whether Lot C alone represents the entirety of Kadurugahawatte of about 2 roods which the Plaintiff seeks to partition, the first matter which goes against that view is the extent. 21 perches (or 27 perches if one includes the extent of the V. C. road adjoining it) is nowhere near two roods. The main argument of Mr. Jayewardene, however, was that Lots A and B now belong to persons who have succeeded to Lawaris Naide's interests and he relied strongly on the northern boundary in deeds 8D1 to 8D4. No doubt these deeds show that Lawaris Naide's land adjoined Danchi Naide's land, but they do not help us to fix the location of either land. The fence which the 2nd Defendant destroyed was not, in my view, the boundary fence of Danchi Naide's land, but only the fence separating 1st Defendant's divided 2/3 share from the balance 460 1/3 share. Danchi and Lawaris were related to each other and they are said to have brought up Amarabandu. They may well have possessed their adjacent lands in one continuous extent, as the evidence of their kinsman Alberis called by the 8th Defendant seems to show. When the outsider Maria Elizabeth Fernando bought in 1905, however, her share would have been separated off by erecting the fence which the 2nd Defendant later destroyed. Separate possession of that f share for over 20 years has been clearly proved, and those who possessed it are entitled to claim that they have acquired prescriptive title to it. I do not think this is a case where a lot was separated off for mere convenience of possession and as a temporary arrangement. It is much more likely to have been intended as a permanent mode of possession, and the lot so separated off would, with the lapse of time and exclusive possession, cease to be held in common with the rest of the land. Each case must be
- 109. considered in thelight of the proved circumstances, and the mere mention of undivided shares in subsequent deeds will not affect the true position. I think that if the learned District Judge had considered the case in this way, he would have held that the land depicted in plan Y does not belong in common to the parties but only to the heirs of the 1st Defendant. I would accordingly set aside the judgment and decree of the lower Court and dismiss the plaintiff's action. Since the 8th Defendant had to fight the Plaintiff as well as the 2nd and 6th Defendants at the trial, he is entitled to recover his costs of contest in the lower Court from them. The plaintiff-respondent will pay the 8th Defendant's costs of the appeal. SILVA, J.-I agree. Volume 71, Page No 338 View - Volume 71 New Law Reports 338 1967 Present : Tambiah, J., and Siva Supramaniam, J.
- 110. G. SIMON PERERA,Appellant, and D. J. JAYATUNGA et al., Respondents S. C. 1/66 (Inty.)-D. C. Panadura, 8551/P Partition action-Amicable division of property without execution of deeds-Prescription as between the co-owners thereafter- Ouster-Quantum of evidence. The question whether a co-owner has acquired prescriptive title to a divided lot as against the other co-owners is one of fact and has to be determined by the circumstances of each case. 339 A land was owned in common by members of one family. An undivided one-third share of it was purchased by one B, an outsider, who was already the owner of an adjoining land. Thereafter, without execution of any deeds there was an amicable division among the co-owners in pursuance of which B possessed a divided lot exclusively for nearly thirty years in lieu of her undivided share. She had not only annexed this lot to her own adjoining land but had also separated it off from the rest of the common land by erecting a parapet wall of a permanent nature. Held, that there was sufficient evidence of ouster and that B had acquired, as against the other co-owners, prescriptive title from the time of ouster in respect of the lot which she possessed exclusively in pursuance of the amicable division. APPEAL from an order of the District Court, Panadura. C. Thiagalingam, Q.C., with Ralph de Silva, for the plaintiff- appellant.
- 111. N. E. Weerasooria,Q.C., with S. W. Walpita, for the 2nd defendant-respondent. Cur. adv. vult. June 20, 1967. TAMBIAH, J.- I am in agreement with the views expressed by my brother Siva Supramaniam J. It is unnecessary to recapitulate the facts which have already been dealt with by him, but I wish to add my own observations on the question of law raised by Mr. Thiagalingam. The question as to whether a co-owner has prescribed to a particular lot is one of fact in each case. The rule laid down by Their Lordships of the Privy Council in Corea v. Appuhamy[1(1911) 15 N. L. R. 65. ] and in Brito v. Mutunayagam[2(1918) A.C. 895, 20 N. L. R. 327.] that if possession is referable to a lawful title it cannot be treated as adverse, is however modified by the theory of counter presumption set out in Tillekeratne v. Bastian[3(1918) 21 N. L. R. 12.]by a Full Bench of this Court. In Tillekeratne v. Bastian (supra) Bertram C.J. succinctly stated the principle as follows (at page 24):- " It is, in short, a question of fact, wherever long-continued exclusive possession by one co-owner is proved to have existed, whether it is not just and reasonable, in all the circumstances of the case that the parties should be treated as though it had been proved that that separate and exclusive possession had become adverse at some date more than ten years before action brought." 340 In Hameedu Lebbe v. Ganitha[1(1920) 27 N. L. R. 33.] it was contended that the ruling in Tillekeratne v. Bastian (supra) was inconsistent with the decision in Brito v. Mutunayagam (supra). However, in that case, the Divisional Court held that there was
- 112. no inconsistency inthe principles laid down in these two cases. Where a co-owner seeks to establish prescriptive title against another co-owner by reason of Jong and continued possession it is a question of fact depending on each case for a court to decide whether it is reasonable to presume an ouster from the exclusive possession by a co-owner for a long period of time. This principle had been applied in Rajapakse v. Hendrick Singho[2(1959) 61 N. L. R. 32.]. The limits of the rule that possession by a co-owner is not adverse possession was defined in Cully v. Deod Taylerson[3(1840) 11 Ad. & E. 1088 ; 9 L. J. Q. B. 288 ; 3 P. & D. 539.]as follows :- " Generally speaking, one tenant-in-common cannot maintain an ejectment against another tenant-in-common, because the possession of one tenant-in-common is the possession of the other and to enable the party complaining to maintain an ejectment, there must be an ouster of the party complaining. But where the claimant, tenant-in-common, has not been in the participation of the rents and profits for a considerable length of time, and other circumstances concur, the Judge will direct the jury to take into consideration whether they will presume that there has been an ouster . . . . . . and if the jury finds an ouster, then the right of the lessor of the plaintiff to an undivided share will be decided exactly in the same way as if he had brought his ejectment for an entirety." This dictum was cited with approval by Viscount Cave who delivered the opinion of the Privy Council in the case of Varada Pillai v. Jeevarathnammal[4(1919) A. I. R. (P. C.) 44 at 47.] In the instant case, the learned District Judge has found that after Baby Nona purchased a share there had been an amicable division among the co-owners in pursuance of which Baby Nona possessed lot 3 in plan X filed of record as her exclusive property. She not only annexed this lot to the land on the East,
- 113. which was herproperty, but also constructed a wall, which is in the nature of a permanent structure to a length of 144 feet and possessed this portion exclusively without paying any rent or acknowledging title in others for a period of nearly thirty years. In view of these findings the learned District Judge has legitimately come to the conclusion that there has been an ouster and the second defendant and his predecessors have exclusively possessed this land for the prescriptive period from the time of ouster. There is no reason for us to disturb this finding of fact. For these reasons I hold that the learned District Judge was right in excluding lot 3 from the land sought to be partitioned in this case and I dismiss this appeal with costs in both courts. 341 SIVA SUPRAMANIAM, J.- This is an appeal from the order of the District Judge excluding a divided portion from the land sought to be partitioned on the ground that the 2nd defendant who had originally been a co- owner of the land had acquired prescriptive title to that portion subsequent to an amicable division of the land. Lots 1-5 on plan No. 654 (marked X) depict the land sought to be partitioned in this case. The land comprising these lots (hereinafter referred to as the said land) is shown as divided lot 2 on plan 1D3. It is common ground that Kossinage Podinonahamy became entitled to the said land as well as to the land shown as lot 3 on the said plan 1D3 upon deed No. 1209 dated 21.9.1919 (P1). By deed No. 18326 of 26.12.1919 (1D1), she transferred an undivided 2/3 share of the said land to R. V. Don Jamis and R. V. Dona Nonahamy (3rd defendant). By deed No. 18327 of the same date she transferred her interests in the divided lot 3
- 114. to Baby Nona(7th defendant) wife of Don Haramanis (6th defendant). By deed No. 8744 dated 14.3.1934 (2D1) R. V. Dona Nonahamy transferred her 1/3 share in the said land to the aforesaid Baby Nona who by deed No. 13167 of 15.6.1961 (2D2) donated her rights to P. D. Ariyawardena (2nd defendant) subject to life interest in favour of herself and her husband. R. V. Don James died in 1954 leaving as heirs to his 1/3 share the afore-mentioned R. V. Dona Nonahamy and Kossinage Podinonahamy both of whom by deed No. 462 dated 3.9.1959 (1D2) donated that share to Don Themis Jayatunge (1st defendant). By deed No. 12026 of 14.8.1958 (P2) Podinonahamy transferred a 1/3 share (which remained after the execution of 1D1) to Turin Perera who by deed No. 16682 of 14.12.1962 (P3) transferred the same to Simon Perera, the plaintiff. The plaintiff instituted this action for a partition of the said land on the basis of the afore-mentioned shares and interests. It is in evidence that Babynona was an outsider while the other co-owners were members of one family. When she purchased a 1/3 share of the said land she was already the owner of the eastern land (the divided lot 3 of plan 1D3). The 2nd defendant's case was that by common consent of the co- owners the said land had been amicably divided in 1935, that Babynona's share had been separated off from the rest of the land and that thereafter Babynona had exclusively possessed lot 3 (on plan X) along with the eastern land as her separate property and had acquired prescriptive title to the said lot. After the separation of a divided lot in lieu of her interests, Babynona had erected a parapet wall along part of the boundary between lots 2 and 3 (on plan X) and a barbed wire fence along the remainder of the boundary. The 2nd defendant claimed an an exclusion of lot 3 (on plan X) from the land sought to be partitioned. The learned Judge upheld the contention of the 2nd defendant and ordered the exclusion of lot 3. 342 Learned Counsel for the appellant canvassed the correctness of the finding on the following grounds :-
- 115. (a) That thealleged amicable division was of no avail in law and could not form the starting point of prescription by Babynona, as James, one of the co-owners, was of unsound mind at that time and was incapable of giving his consent to such division. (b) That the possession of lot 3 by Babynona was referable to lawful title and was therefore not adverse to the other co- owners. (c) That no deeds were executed to confirm the alleged division, and (d) Podinonahamy and Nonahamy dealt with undivided shares of the land even after the date of the alleged division. As regards ground (a) learned Counsel for the appellant relied on certain answers given under cross-examination by Nonahamy (3rd defendant), Haramanis (6th defendant) and a witness named Don Davith. Nonahamy's evidence was as follows :- XXd. " Q. He (Don James) was as a matter of fact insane ? A. Yes. Q. A good time of his life he was chained to a bed ? A. Yes."
- 116. Haramanis stated asfollows :- XXd. "Q. She (Nonahamy) gave evidence stating right through that her brother was insane. A. He was not insane all throughout. Q. He was most of the time insane ? A. Now and then he was insane." Don Davith gave the following evidence :- XXd. " Q. For what period of time was James insane ? A. About 25 years. Q. He died in 1954 ? A. Yes. Q. He was mad from 1929 ? A. Yes." . . . . . . . To Court. Q. From 1929 till he died he was mentally unsound ?
- 117. A. From 1930he was a little better in his senses. 343 XXd. Q. You stated he was right through ill ? A. He became insane in about 1912 or 1913. From 1930 he was a little better." It is not possible to draw an inference from the evidence quoted above that in 1935, at the time of the alleged amicable division of the land, James was of unsound mind and was incapable of giving his consent to such division or that prescription could not begin to run against him by reason of such incapacity. The burden was on the plaintiff to establish such incapacity. The question should have been specifically raised as one of the points of contest between the parties. Even at the stage at which the evidence referred to above was given by the witnesses, the plaintiff refrained from raising it as a point of contest. The vague evidence given by the witnesses under cross-examination was insufficient for the plaintiff to discharge the burden that lay on her. The learned trial Judge was ' therefore justified in not adverting to this question in the course of his judgment, before arriving at his finding on the issue of prescription. It was also submitted by learned Counsel for the appellant that in his pleadings the 2nd defendant had not mentioned James as one of the persons who had given his consent to the amicable division. But the sworn testimony of Nonahamy, Haramanis and Don Davith was that all the co-owners were parties to the amicable division and this testimony has been accepted by the trial Judge. The question whether one of the co-owners has acquired prescriptive title to a divided lot is one of fact and has to be determined by the circumstances of each case. A reference to undivided shares in deeds executed after the date of the alleged division is not conclusive of the question (vide Danton
- 118. Obeyesekere v. Endoris[1(1926)66 N. L. R. 457.]). An amicable division among the co-owners can be the starting point of prescription although no cross conveyances or other document have been executed by them. Unlike a fence, a parapet wall is of a permanent nature and the fact that Babynona and Haramanis constructed a parapet wall 144 feet in length (though not covering the entire length of the boundary) between their divided portion and the rest of the land and that they incorporated that divided portion with the eastern land of which they were owners and exclusively possessed the whole as one entity for nearly 30 years are circumstances from which ouster of the other co-owners from the divided lot can reasonably be inferred. In the instant case, as stated above, the trial Judge has, in addition, accepted the evidence that the exclusive possession of the divided lot was after an amicable division of the land by the co-owners. 344 There is a further circumstance which strengthenes the case of the 2nd defendant. The transfer deed P 3 in favour of the plaintiff describes the share purchased by her as follows:- " The undivided 1/3 share belonging to Pulikkuttige Haramanis Baas being excluded, an undivided half share of the soil of the remaining undivided 2/3 share." The deed P2 in favour of the plaintiff's vendor by Podinonohamy described the excluded portion as being on the eastern side. Learned Counsel for the appellant laid stress on the fact that the deeds P2 and P3 do not refer to the portion excluded as a divided share. The description in the deeds is, no doubt, inaccurate but apparently what was meant was that a portion
- 119. representing the undivided1/3 share was being excluded. This is made clear by the fact that what the plaintiff purchased was not an undivided 1/3 share of the whole land (which would have been the description if the land was still undivided) but " an undivided half of the remaining 2/3 share ", i.e., the portion representing the remaining 2/3 share after the exclusion of Haramanis's share on the eastern side. It is also clear from the evidence that in 1962 when the plaintiff and the 1st defendant got Surveyor Atureliya to survey the land of which they were the co-owners, they excluded the portion to the east of the parapet wall from the corpus and it was only when the plaintiff found that there was a short fall in the extent in the corpus to the west of the parapet wall that she decided to take up the position that the whole land was still undivided. For the foregoing reasons I am of the opinion that the learned Judge was right in excluding lot 3 (on plan X) from the land sought to be partitioned in this case. I dismiss the appeal with costs. P. K. J. NONIS vs H. D. PETHTHA Co-owners-Informal partition of a number of lands-Exclusive possession, by one co-owner, of a specified land thereunder-Adverse possession-Prescription Ordinance (Cap. 68), s. 3 73 New Law Reports Page No 1 Co-owners-Informal partition of a number of lands-Exclusive possession, by one co-owner, of a specified land thereunder- Adver8e possession-Prescription Ordinance (Cap. 68), s. 3.
- 120. 1969 Present: LordMorris of Borth-y-Gest, Lord Donovan, Lord Wilberforce, Lord Pearson, and Lord Diplock and another, Repondents PRIVY COUNCIL APPEAL NO. 32 OF 1968 2. C. 436/64 (F)-D. U. Kuliyapitiya, 784/P In consequence of an informal partition of a number of lands which belonged to three co-owners in equal one third undivided shares, the first respondent, who was one of the co- owners, was in exclusive possession for ten years thereafter of a specified land which was allotted to him under the informal document. Held, that the first respondent acquired prescriptive title to the specified land as against the other co-owners. APPEAL from a judgment of the Supreme Court. E. P. N. Gratiaen, Q.C., with Brian Sinclair, for the plaintiff'-appellant. M. P. Solomon, for the defendants-respondents. Cur. adv. vult. 2 December 2, 1969. [Delivered by LORD WILBERFORCE]-
- 121. The action inrespect of which this appeal is brought was a partition action, brought by the appellant against the two respondents, seeking a declaration that the appellant was entitled to an undivided one third share of certain land described in the Plaint and for partition of the land. This claim was rejected by the District Court of Kuliyapitiya and, on appeal, by the Supreme Court of Ceylon. The lands in question which consisted of some 7 acres comprised in three Crown Grants dated 20th September 1913, 20th February 1914 and 10th May 1919, had belonged, at the last mentioned date to Horatalpedi Durayalage Peruma who amalgamated them into a single parcel. By a Deed of Gift No. 2452 dated 17th July 1924 Peruma gifted them in equal undivided shares to his children the first respondent, the second respondent and one Sekara. Sekara, by Deed No. 29662 dated 18th March 1960, sold his share to one Sumanadasa, who in turn by Deed No. 820 dated 26th July 1962, sold it to the appellant. Thus, according to the documentary title, the appellant and the two respondents were each entitled to a one third undivided share. The first respondent however contended that he had become entitled to the whole of the 7 acres in question by prescription. Before the year 1947 it appears that the 7 acres in question were in the occupation of and were farmed by the first respondent. The appellant's predecessor, Sekara, and the second respondent were in occupation of, and farming, other lands, specified in the Statement of the first respondent dated 17th July 1963, of approximately 14 acres, which, it appears, had also been derived from Peruma. These 14 acres, according to the first respondent, and this does not seem to be disputed, were similarly owned in one third undivided shares by the three sons of Peruma. It is not contended that prior to 1947 any of the three brothers had acquired any separate title either to the 7 acres now in dispute or to the 14 acres.
- 122. The contention ofthe first respondent was that on 26th June 1947 an informal partition occurred by which the first respondent was allotted the 7 acres in dispute, and the appellant's predecessor, Sekara, and the second respondent, jointly, the 14 acres; that this was acted upon so that thereafter the 7 acres were possessed and enjoyed by the first respondent to the total exclusion of the other two co-owners. In consequence, as the first respondent claimed, he became, prior to the date of the Plaint (namely 7th December 1962), entitled to the 7 acres by prescription. Prescription under the Law of Ceylon is regulated by the Prescription Ordinance (1956), Cap. 68. Section 3 contains the following provision: "3. Proof of the undisturbed and uninterrupted possession by a defendant in any action, or by those under whom he claims, of lands or immovable property, by a title adverse to or independent of that o the claimant or plaintiff in such action (that is to say, a 3 possession 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) for 10 years previous to the bringing of such action, shall entitle the defendant to a decree in his favour with costs. . . It will be observed that this contains, by the words in parenthesis, what is in effect a definition of what is commonly, for convenience, referred to as adverse possession. In relating this provision to the case of co-owners, it must be borne in mind that separate possession by an individual co- owner of part of the property in common ownership may, and often does, occur and continue for a considerable period, purely for reasons of convenience, and that in order to displace
- 123. the title ofthe other co-owners, clear and strong evidence of possession exclusive of the other co-owners, and inconsistent with the continuation of the co-ownership is required. (See Simpson v. Omeru Lebbe 1 per Soertsz S.P.J. [1 (1947) 48 N. L. B. 112.] ). And, as was explained by Lord Macnaghten in delivering the Board's judgment in Corea v. Appuhamy 2,[2 (1912) A- C. 230, 236; 15 N. L. R. 65. ] a mere intention in the mind of one co-owner to displace the others is not sufficient to constitute " adverse " possession. But, side by side with this basic rule, the Courts of Ceylon have recognised that acts of an informal character, falling short of a partition effective in law, may be sufficient to found a prescriptive claim. In Tillekeratne v. Bastian3 [3 (1918) 21 N. L. R. 12.] it was held to be a question of fact, wherever long continued exclusive possession by one co-owner is proved to have existed, whether it is not just and reasonable in all the circumstances of the case that the parties should be treated as though it had been proved that separate and exclusive possession had become adverse at some date more than 10 years before action brought. And in Kirimenika v. Menikharny4 [4 (1921) 22 N. L. B. 510.] the alternatives were contrasted of, on the one hand, an informal but definite partition, where each party enters into possession of his share and, on the other, a permissive arrangement. In the first case, title by prescription might be acquired, and even in the second case this might follow if the arrangement continued so long that on equitable grounds it might be presumed that possession became adverse. These decisions have been followed and applied in later cases-see De Mel v. De Alwis 5; [ 5 (1934) 13 C. L. Rec. 207. ] Bandara v. Sinnappu 6-[ 6 (1946) 47 N. L. R. 249. ] The latter case cites with approval a passage from the judgment of De Sampayo J. in Mailvaganam v. Kandaiya 7 -[ 7(1915) 1 C. W. R. 175. ] which is apposite to the present case
- 124. "There is nophysical disturbance of possession necessary-it is sufficient if one co-owner has to the knowledge of the others taken the land for himself and begun to possess it as his own exclusively. 4 This sole possession is often attributable to an express or tacit division of family property among the heirs, and the adverse character of exclusive possession may be inferred from circumstances." To apply these authorities to the present case: it was pleaded by the first respondent that on 26th June 1947 the three brothers exchanged with one another their interests and that on this exchange the disputed 7 acres were allotted to him. The issues as framed by the learned district judge contained the following: "(4) Did Petta the first defendant, Sekera and Wattuwa exchange their lands as described in para. 5 of the statements of the first defendant. (5) As a result of such exchange, are the premises in suit, in the - exclusive possession of Petta the first defendant." The first (defendant) respondent gave evidence in support of his contention that there had been an exchange in 1947 and produced a document, signed by all three brothers on 26th June 1947, which evidenced the division. Neither the appellant, nor the second respondent gave evidence, and the judge accepted the first respondent's evidence. He answered the two issues (4) and (5) in the affirmative. His judgment was upheld on appeal; and not surprisingly it was argued that there were such concurrent findings of fact as should preclude their re-examination by the Board.
- 125. The argument ofthe appellant was based upon the terms of the document of 26th June 1947. This, it was said, merely continued a pre-existing state of affairs-the parties "agree to possess as possessed earlier until deeds are executed." It contemplated a future partition by notarially attested deeds: meanwhile the co-ownership was to be preserved, the first respondent's possession was never adverse but was, as it had previously been, on behalf of the co-owners. There are arguments upon the language of the document alone which cast doubt upon the validity of this contention, but their Lordships are reluctant to place much weight upon verbal expressions in a writing of this character, prepared as it was by a coconut dealer who was the uncle of Sumanadasa, and written in Sinhalese from which a translated version was before the Court. It was clear from the evidence, that the document, so far from being intended to preserve the status quo, was drawn up as part of an arrangement which was meant to resolve certain difficulties between the co-owners, by attributing to the first respondent on the one hand, and to Sekara and the second respondent on the other, separate properties which thenceforth would be separately enjoyed. The learned district judge accepted this view of the matter and held that thereafter, in fact, the lands in dispute, as well as the other lands, were to be and were exclusively enjoyed by the first respondent and by his brothers respectively. There was ample evidence on which he could so hold. The case is, in the opinion of their Lordships, dearly one of 5 an informal partition, acted upon by the assumption, as from June 1947, of exclusive possession. This exclusive possession having continued for more than 10 years prior to the issue of the Plaint, the first respondent succeeded in establishing a title by prescription.
- 126. Their Lordships willtherefore humbly advise Her Majesty that this appeal be dismissed. The appellant must pay the costs of the appeal. Appeal dismissed. U. G. JAYANERIS VS U. G. SOMAWATHIE Volume 76 New Law Reports Page No 206Partition action-Claim to part of corpus by the contesting defendants on basis of prescriptive possession-Possession by same person as agent of the contesting defendants and on behalf of some of the co-owners-Adverse possession-Burden of proof 206 1968 Present: T. S. Fernando, J., and Weeramantry, J. S. C. 41/66 (Inty.)-D. C. Galle, 2504/P Partition action-Claim to part of corpus by the contesting defendants on basis of prescriptive possession-Possession by same person as agent of the contesting defendants and on behalf of some of the co-owners-Adverse possession-Burden of proof. The 7th, 8th and 9th defendants, who were the contesting defendants in a partition action, claimed an undivided one-sixth share of the corpus on the basis of prescriptive possession. Their claim was based on the possession of one J who acted as their agent. This same J was already in possession of the land on behalf of two of the co-owners. The contesting defendants' claim based on the possession of J therefore raised the
- 127. question of possession,by an agent acting in disparate capacities-on the one hand for the benefit of co-owners claiming by a rightful title and on the other for the benefit of those seeking to dispossess them. Held, that the burden-was on the contesting defendants to prove by clear and cogent evidence that the adverse aspect of J's possession on their behalf was so manifest that all the. co- owners, and not merely some of them, saw in it a challenge to their claims. APPEAL from an order of the District Judge, Galle. H. W. Jayewardene, Q. C, with S. S. Basnayake, for the plaintiffs-appellants. 207 M. T. M. Sivardeen, for the 7th, 8th and 9th defendants respondents. Cur. adv. vult. March 8, 1968. WEERAMANTRY, J - In this case the plaintiffs seek to partition a land originally belonging to one Odiris de Silva, who died intestate leaving six children. The contest in this case centred around the undivided one-sixth share that devolved on Agiris, one of the children of Odiris. It was common ground that this Agiris had not been heard of for several years and according to the plaintiffs his share devolved on his surviving brothers and sister on the basis that he died intestate, unmarried and issueless. The seventh, eighth and ninth defendants on the other hand laid claim to the undivided share of Agiris on the basis that Agiris had conveyed his share by deed to one Salman to whose interests they succeeded upon intestacy. However, though this was the position envisaged by them in their pleadings, these defendants (hereinafter called the contesting defendants) proceeded to trial on the basis of a claim to this undivided one-
- 128. sixth share bypurely prescriptive title, the possession alleged by them being in the main a period of possession on their behalf by one Jayaneris who acted as their agent. This same Jayaneris, at the time he is stated to have been entrusted with possession on behalf of these contesting defendants, was already in possession of the land on behalf of certain co-owners, namely the first defendant and the fifth defendant, who claimed under the common title devolving from Odiris. The possession of one co-owner must necessarily enure to the benefit of all. The contesting defendants' claim based on the possession of Jayaneris therefore raises the interesting question of possession by an agent acting in disparate capacities -on the one hand for the benefit of co-owners claiming by a rightful title and on the other for the benefit of those seeking to dispossess them. Mr. Jayewardene argues, and rightly in my view, that such a contention can only be based upon clear and cogent evidence pointing unmistakably to this dualism in the nature of his possession. The adverse aspect of his possession cannot in other words remain a mere concept in the recesses of the agent's mind but must so manifest itself that those against whom it is urged may see in it a challenge to their claims. Even as possession qua co-owner cannot be ended by any secret intention in the mind of the possessing co-owner,1 so also is possession through an 1 Corea v. Appuhamy (1911) 15 N. L. R. 65, P.C. 208 agent incapable of being affected adversely by an uncommunicated attitude or mental state existing in the mind of that self-same agent.1 This does not mean however that express communication is required of the change in the nature of the agent's possession. So long as the agent's conduct carries without ambiguity the
- 129. message of thealtered nature of his possession, express communication may well be dispensed with ; but we have here no conduct so unambiguous, no distinction of capacities so clear, that we may with assurance invest the co-owners with knowledge that adverse possession had commenced or was running against them. The only material before us on this matter is that Jayaneris planted "catch crops" on the land. There is no evidence of a division of this produce between two sets of principals nor is there such a demarcation of the crops as to lend colour to the suggestion that he played a dual role. His simple activity on the land would appear difficult therefore to relate to the sophisticated notion of agency in opposed capacities, as contended for by the respondents. Jayaneris was there on behalf of some of the holders on a lawful title and hence on behalf of them all. It would thus be as difficult for us to attribute to him a simultaneous possession eroding that same title as it was for the Privy Council in Corea v. Appuhamy 2 to permit Iseris who entered under a legal title to " masquerade as a robber or a bandit" ; and we are drawn back again to the cardinal principle approved in Corea v. Appuhamy and consistently followed ever since, that " possession is never adverse if it can be referred to a lawful title". The material before us does not in this view of the matter bring us anywhere near the high order of proof required to establish adverse possession, the burden of which rests entirely upon the contesting defendants. It has been submitted by learned Counsel for the contesting defendants that the dichotomous nature of Jayaneris' possession was admitted by two defendants, namely the second and the fifth. These defendants are brothers of Jayaneris and are parties who are entitled to other undivided shares than those deriving from Agiris.
- 130. However the defendantswho would otherwise succeed to Agiris' share have not admitted that Jayaneris' possession was of the character claimed by Jayaneris or the second and fifth defendants, and, in the absence of any admission by them, the admission by the second and fifth defendants cannot avail the contesting defendants. Moreover, where notice of the altered 1 Nagudu Morikar v. Mohammadu (1903) 9 N. L. R. 91, P. C. 2 (1911) 15 N. L. R. 65, P.C. 209 character of a person's possession is necessary, this notice is necessarily required to all the co-owners, and a notice .to some alone will not suffice to stamp the, possession in question as adverse. Another observation I feel constrained to make is that the case of prescriptive possession set up by the contesting defendants became apparent only at the trial and indeed after the close of the plaintiffs' case. The plaintiffs were entitled to assume upon the pleadings of the contesting defendants that their title was based upon a transfer by Agiris. Indeed when the points of contest were formulated at the commencement of the trial, the learned Judge noted that, apart from the usual issue relating to prescriptive rights of parties, the only dispute was whether Agiris died without marriage or issue and whether the rights of Agiris devolved on his surviving brothers and sisters as stated by the plaintiffs or whether Agiris sold his rights to Salman who died leaving the contesting defendants as his heirs. It would be wrong, therefore, to say that a case of adverse possession was the case which the plaintiffs were called upon to meet or that there was a burden on them to lead evidence in disproof of prescriptive title on the part of the contesting defendants. Consequently I do not think that an adverse inference can be drawn against the plaintiffs from their failure to meet in advance this altered case of the contesting
- 131. defendants. In thiscontext the comments made in the judgment on the weakness of the plaintiffs' evidence of possession and on their failure to call other witnesses on this point would appear to lose their force. Another item of evidence relied upon by the contesting defendants in support of prescriptive title, is an inventory of 1930 filed in the testamentary case of Salman, their predecessor. This document is relied upon to show that a land by the same name as that of the corpus in this case was included in the estate of Salman. The appellants contend that the inventory is inadmissible as evidence of ownership unless the affirmant to the affidavit filed therewith is called as a witness. The appellants further dispute the identity of the land referred to therein, in view of a discrepancy between the extent there stated and the extent of the corpus. Be these objections as they may, the inventory is at best a pointer to possession in or around the year 1930 and is insufficient of- its own force to establish prescriptive possession. In the view indicated above of the nature of Jayaneris' possession, the inventory does not advance the case of the contesting defendants. 210 In the result, therefore, we hold that the claim of the contesting defendants to an undivided one-sixth share of the corpus on the basis of prescriptive possession must fail. The order of the learned District Judge is hence set aside in so far as he holds the contesting defendants entitled to the undivided one-sixth share of Agiris. The rights to this one-sixth share will devolve in the manner set out in the plaint and the interlocutory decree will be amended accordingly. As regards the costs of contest, the order of the trial Judge will be reversed and the seventh, eighth, and ninth defendants must pay a sum of rupees sixty-three to the plaintiff and a like sum to the third and sixth defendants. The plaintiffs will be
- 132. entitled to thecosts of this appeal. The costs of the action, including survey fees, will be borne by the parties pro rata. T. S. FERNANDO, J.-I agree. Order set aside. Y. C. PERERA vs D. L. D. C. KULARATNE Partition action-A co-owner's claim to a portion of the corpus exclusively-Evidence led, by him that a subsidy to replant rubber on that portion was granted to him upon an application made by him under the Rubber Replanting Subsidy Regulations, 1953- Weight of the evidence- Trusts Ordinance, s. 92-Rubber Replanting Subsidy Act (Cap. 437). Volume 76, Page No 511 1972 Present: Wijayatilake, J., and Pathirana, J.
- 133. S. C. 109/69(Inty.)-D. C. Kalutara, 2308/A Partition action-A co-owner's claim to a portion of the corpus exclusively-Evidence led, by him that a subsidy to replant rubber on that portion was granted to him upon an application made by him under the Rubber Replanting Subsidy Regulations, 1953- Weight of the evidence-Trusts Ordinance, s. 92-Rubber Replanting Subsidy Act (Cap. 437). A co-owner as such is not entitled to make an application for himself under the Rubber Replanting Subsidy Regulations, 1953. "Under Regulation 2, it is on an application made by the "Proprietor" as defined in Regulation 12 that a subsidy can be granted for the purpose of replanting rubber in an estate. A co-owner who manages the common property on behalf of the other co-owners and is their accredited agent is a "proprietor" within the meaning of Regulation 12. Where he has obtained a subsidy for the purpose of replanting rubber in a certain extent of the common property, he cannot claim that extent exclusively for himself unless he proves by clear, cogent and unequivocal evidence that he renounced his position as an accredited agent and also as a co-owner acting on behalf of the other co-owners. The provisions of section 92 of the Trusts Ordinance would also be applicable in such a case. APPEAL from an order of the District Court, Kalutara. H. W. Jayewardene, with N. R. M. Daluwatte, for the 1st, 4th and 13th defendants-appellants. A. C. Gooneratne, with R. C. Gooneratne, for the plaintiffs- respondents. Cur. adv. vult. November 10, 1972. PATHIRANA, J.-
- 134. The plaintiffs-respondents institutedthis action to partition the land called Lot No. 14 of the Eastern Division of Tempo Estate depicted in the Plan marked 'X' as lots 1 to 7 in extent 51A. 2R. 25P. The 1st, 4th and 13th defendants-appellants in their statement of claim admitted the soil shares given to them but disputed the claim of the plaintiffs-respondents that the entirety of the budded rubber plantations on lots 1 and 4 were made by the first plaintiff exclusively for his benefit. The appellants took up the position that the 1st plaintiff made the plantations for and on behalf of all co-owners. 512 The only point of contest was whether the 1st plaintiff planted this extent exclusively for himself or on behalf of himself and the other co-owners. It was admitted that the first plaintiff planted lots 1 and 4. The 1st plaintiff's case was that he commenced to make these improvements in 1956 after he obtained a subsidy of Rs. 9,000 from the Rubber Controller under the Rubber Replanting Subsidy Act, Ch. 437. He had become a co-owner of an undivided 1/10th share on Deed P3 of 30.4.1953 along with the 1st, 2nd, 3rd defendants and 2 others. He uprooted the old rubber trees and got nothing from them as he was not able to sell them for firewood. He had to barb wire and construct drains. He bore the entire expenses of replanting and none of the other co-owners contributed anything. At the" beginning he gave a share of the income to the other co-owners but later a kangani who worked under the co-owner gave a share of the income to all co-owners. After 1954 there was no income from the land. The 13th defendant who gave evidence for the defendants was a purchaser from the 3rd defendant and is a son of the 2nd defendant and a brother of the 5th defendant. He stated that the subsidy was obtained for and on behalf of all the co-owners and that the income from the estate was used by the 1st plaintiff for replanting the land. The 1st plaintiff gave the share
- 135. of the incomeof the 2nd and 3rd defendants to his father who maintained the book 1D7. The learned District Judge held that the 1st plaintiff planted lots 1 and 4 exclusively for himself. This appeal is from this finding. Three main reasons have been given by the learned District Judge for his decision. Firstly, he says that the application for replanting which was made in forms provided by the Rubber Controller for the purpose marked 1D1 of 1.8.1955 by the 1st plaintiff under the Rubber Replanting Subsidy Act was for himself, and the other co-owners had signed the declaration 1D2 stating that they had no objection to this. The second reason was that the defendants had failed to prove, although the burden of proof was on them, that there was sufficient income from the land which could have been utilized by the 1st plaintiff to plant the land. Thirdly, he held that the defendants had failed to prove that the first "plaintiff planted this land for the benefit of the other co-owners on an agreement between the plaintiff and the other co-owners. He further held that all evidence pointed to the 1st plaintiff planting for his benefit exclusively. 513 On 1D1 when the 1st plaintiff made the application for a replanting permit and a subsidy on 31.8.1955 he was only a co-owner of an undivided l/5th share which amounted to a little over 5 acres. His application was to replant 10 acres. The application was made as a co-owner in respect of Tempo Estate. He has given the names of the other co-owners. In the cage: " If you are not the sole owner give the names of the other co-owners and ask them to sign against their names to show that they agreed to this replanting the land and receiving the subsidy on their behalf "; the other co-owners had accordingly entered their names and put their signatures. 1D2, presumably annexed to 1D1, is a declaration signed by the other co-owners to the effect that they had no objection to the
- 136. 1st plaintiff beingregistered as the Proprietor of the entire Lot 14 which is Tempo Estate. 1D3 is an application made to the Rubber Controller by the 1st plaintiff dated 25.8.1956 for a subsidy to replant another 15 acres. On Deed No. 1991 of 9.2.1956 (P6), the 1st plaintiff had become entitled to another 1/10th share. In this application which was again on a printed form the 1st plaintiff stated that he was not the absolute owner of the land but only a co-owner and an authorized agent of the other co-owners whose names he mentioned. He further stated that in order to replant the land and for the purpose of obtaining the subsidy the other co- owners had consented. The name of the estate for which the subsidy was applied for was stated as Tempo Estate. 1D1 is a letter dated 3.9.1961 to the 1st plaintiff from the Rubber Controller in respect of lot 14 Tempo Estate, issuing him a permit to plant another extent of 26A. 2R. 25P. The permit was valid up to 31.12.1961. On 1D6 dated 18.1.1963 the Rubber Controller had extended this permit up to 31.12.1963. A co-owner of a land as such cannot make an application for himself under the Rubber Replanting Subsidy Regulations, 1953 (Subsidiary Legislation of Ceylon, Volume VII, Chapter 437). Under Section 2 of these regulations, it is on an application made by the " Proprietor " that a subsidy can be granted for the purpose of replanting rubber in an estate. Under Regulation 12 -the Proprietor is defined as follows :- "Proprietor, in relation to a Rubber Estate, means the owner or lessee of such estate and includes a duly accredited agent of such owner or the lessee and the person for the time being in charge of such an estate." 514 The 1st plaintiff in his evidence has admitted that from the- date he and the other co-owners purchased the land in 1953 he managed the property on their behalf as the other owners were living far away and he gave a share of the income to the
- 137. other co-owners. The13th defendant on behalf of the other defendants in his evidence has confirmed this. Documents 1D1, 1D2 and 1D3 along with this evidence unequivocally make the 1st plaintiff the " Proprietor " within the meaning of Regulation 12 as he is. the duly accredited agent of the owners of this rubber estate and was the person for the time being in charge of the estate. The 1st plaintiff has therefore undertaken to replant this land not only as a co-owner but also as an accredited agent of the other owners. In the circumstances, if he desired to assert his own rights and claim that he independently for himself and not on behalf of the other co- owners obtained this subsidy and com¬menced to replant the land for his exclusive benefit, there must be evidence that he first renounced his position as an accredited agent and also as a co-owner acting on behalf of the other co-owners. Whenever a person acts as an agent, he is estopped from setting up any claim adverse to that of his principal in respect of the subject matter of his authority. Thus, he cannot dispute-his principal's title to goods or money which have been entrusted or received by him in his capacity as agent............. If the agent wishes to assert his own right he has first to renounce his position as Agent. (Powell on the Law of Agency, Second Edition, Page 327). The 1st plaintiff is also in the position of a co-owner in terms of Section 92 of the Trusts Ordinance, who as representing all persons interested in a property, gains an advantage; he must hold for the benefit of all persons so interested, the advantage so gained. He having taken advantage of his position as a co- owner and acting for and on behalf of the other owners obtained a subsidy from the State to replant the land and having also made a declaration which he has certified as true and correct to that effect, he cannot now be allowed to claim this advantage for himself and claim the sole benefit of it. He is in a position analo-gous to that of a co-owner who wishes to set up prescriptive title. He must, therefore, adduce clear, cogent and unequivocal evidence that he had shed his character as Agent or trustee when he obtained this subsidy and also when he started replanting the land. The burden of proof is therefore clearly on the 1st plaintiff and on the
- 138. evidence he hasfailed to prove this. On the contrary, there is a preponderance of evidence both oral and documentary in favour of the view that he obtained this subsidy to replant rubber for and on behalf of the other co-owners of: this Division of the Tempo Estate. 515 The next question is, whether he planted an extent larger than that he was entitled to, was on the basis that the other co- owners had agreed to sell the said extents of land to him. Both in the plaint and the amended plaint and in the submission made by Counsel in the opening of the case, this was not given as the reason for replanting. It only transpired in evidence. The 13th defendant denied such an agreement. The 1st plaintiff is a trader, 57 years old, and it is very unlikely that he would have embarked on a venture like this to plant an area of land out of proportion to an extent which he was in fact not entitled to and especially after making the declarations 1D1, 1D2 and 1D3, without at least obtaining some writing even of an informal nature that the defendants would transfer the said portions to him on completion of planting. The learned District Judge has suggested that the burden was on the appellants to prove that there was sufficient income from the land which was utilized by the 1st plaintiff for the purpose of replanting. If as the 1st plaintiff admitted that he was looking after the land when the other co-owners were far away, the burden will be on him to give an account of his management and produce accounts and all presumptions would be available against him if he does not do so-Medonza v. Kiel,1 61 N.L.R., 459, Chattoor v. The General Assurance Society Ltd., 2 60 N.L.R. 169. Mr. Jayewardene has drawn our attention to the plaintiff's list of documents dated 23.8.1968, in which are listed the books of accounts in respect of the land called Tempo Estate, Lot 14. The 13th defendant has stated in evidence that his mother had asked the 1st plaintiff to submit accounts in respect of the income from the uprooted rubber trees, income from the estate
- 139. and the expensesincurred in replanting. He further stated that the 1st plaintiff had kept accounts which were checked by himself and his mother. These books of accounts were not produced by the plaintiff. On the other hand the 13th defendant has produced a pass book D7 maintained by his father in respect of Tempo Estate which gives an account of all income given by the 1st plaintiff to the father of the 13th defendant on behalf of the 2nd and 3rd defendants up to 1956. There are no entries after this date. This is possible as the uprooting of the old rubber trees started in 1956 and the replanting commenced in 1957. There is also in 1D1 the statement of the 1st plaintiff in his application to obtain a rubber subsidy that the production for the year 1954 was 1,500 pounds of latex and 200 pounds of scrap rubber. The learned District Judge did not seek to place much reliance on 1D7 1 (1957) 61 N. L. R. 459. 2 (1958) 60 N. L. R. 169. 516 because the 13th defendant's father had not been called as a witness although he was present in Court. The intrinsic evidence in this document 1D1 however suggests strongly that hese were accounts in respect of Tempo Estate as there were also entries regarding the execution of deeds in respect of this land and also fees paid to Notaries etc. along with the income received. In addition to the documentary evidence in the case which supports the position that the 1st plaintiff obtained the subsidy and improved the land on behalf of the. other co-owners, there is the legal position that whenever a co-owner plants or improves the common property the improvements accrue to the benefit of all co-owners and the improving co-owner is only entitled to possess the plantations till common ownership is put an end to by the institution of a properly constituted partition action, in which the improving co-owner's rights to
- 140. compensation will beadjudicated and compensation ordered in the event of improve¬ments made, been allotted to other co- owners-Arnolis Singho v. Mary Nona 1 33 C. L. W. 64, Peiris Singho v. Nonis 2 33 C.L.W. 65, Appuhamy v. Sanchi Hamy 3 21 N.L.R. 33. The very concept of co-ownership is incompatible with the assertion that one co-owner can improve land exclusively for himself. A co-owner when he starts to improve the land acts as the Agent of the other co-owners, the improvements accede to the soil and all that he is entitled to is compensation for improvements. In this connection, the 1st plaintiff has received a subsidy of Rs. 9,000 for himself and on behalf of the other co-owners to replant the land. He has had the benefit of the old rubber trees for which he has not given proper accounts. He has managed the property for and on behalf of the other co-owners. Although the burden was on him he has failed to show accounts of the income and expenses of his stewardship. Shaw J. in Appuhamy v. Sanchi Hamy 4 21 N.L.R. 33 at 36 refers to a decision in an unreported case S.C. Min. July 28, 1896. In that case "Withers J. referring to the improvements made by a co-owner said " If the entire increase in value is due to his expenditure, the whole of the expenditure, but no more, will have to be brought into account. If part only of the increase is due to the outlay, so much will only have to be brought into account. If nothing is due to the outlay, nothing will be brought into account." 1 (1946) 33 C. L. W. 64. 2 (1919) 21 N. L. R. 33. 3 (1944) 33 C. L. W. 65. 4 (1919) 21 N. L. R. 33 at 36. 517
- 141. On the totalityof the evidence, I am of the view that the 1st plaintiff improved the land for himself and on behalf of all the other co-owners. The appeal of the first, fourth and thirteenth defendants-appellants is therefore allowed with costs in both Courts. WIJAYATILAKE, J.-I agree. Appeal allowed.
- 142. M. M. BELINNONA, Appellant, and H. K. PETARA- Co-owners of two lands- Averment that both lands were amalgamated and divided among the co-owners- Prescriptive possession thereafter of the parts severally allotted-Proof. It is only rarely possible for a party successfully to maintain that there had been an actual division of a land among co-owners and prescriptive possession thereafter of the parts severally allotted. The difficulty of proving separate title is all the more difficult when two lands are said to have been amalgamated and the same persons are not shown to have owned the same shares in the two lands. Volume 77, Page No 270 1972 Present: H. N. G. Fernando, C. J., and Walgampaya, J. S. C. 23/69-D. C. Gampaha, 11922/P Co-owners of two lands-Averment that both lands were amalgamated and divided among the co-owners-Prescriptive possession thereafter of the parts severally allotted-Proof. It is only rarely possible for a party successfully to maintain that there had been an actual division of a land among co- owners and prescriptive possession thereafter of the parts severally allotted. The difficulty of proving separate title is all the more difficult when two lands are said to have been amalgamated and the same persons are not shown to have owned the same shares in the two lands. APPEAL from a judgment of the District Court, Gampaha. H. W. Jayewardene, with N. R. M. Daluwatte and Miss Ivy, Marasinghe, for the plaintiff-appellant.
- 143. J. W. Subasinghe,for the 9th to the 12th defendants- respondents. July 14, 1972. H. N. G. FERNANDO, C. J.- The only issues which were framed in this action related to a position taken up by the 9th to the 12th defendants, that the land depicted in the plan filed of record in this case had been previously amalgamated with the land depicted in plan No. 776 filed of record in case No. 11923/P, and that the land so amalga¬mated had been divided among the co-owners of both lands. The learned District Judge answered these issues in favour of the 9th to the 12th defendants, and therefore dismissed this action. Counsel for the 9th to the 12th defendants has now to concede that the former co-owners of this land and the former co-owners of the other land are not the same persons, although some of them may have been co- owners of both lands. It is only rarely possible for a party successfully to maintain that there had been an actual division of a land among the co- owners and prescriptive possession thereafter of the parts severally allotted. In the circumstances of this case, the difficulty of proving separate title in that way is all the more difficult because the same persons are not shown to have owned the same shares in both the lands- In our opinion, the evidence upon 271 which the trial Judge acted fell far short of establishing the complicated division which is alleged to have been made. Accordingly we hold that the answers to the issues should be as follows:- Issue No. 1 No. Issue No. 2 No. Issue No. 3 No.
- 144. Issue No. 4Yes- The plaintiff can maintain this action because it has not been proved that this land was amalgamated and divided together with the land shown in plan No. 776. Issue No. 5 Yes. Issue No. 6 Yes. The decree dismissing the plaintiff's action with costs is set aside and the case is sent back to the District Court, where it will be open to any party to raise any issue which properly arises on the pleadings, but of course not to raise again any of the issues which have been decided in this judgment. The costs of the former proceedings in the District Court will abide the final result of the action. The plaintiff-appellant will be entitled to the costs of this appeal to be paid by the 9th to the 12th defendants-respondents. WALGAMPAYA, J.-I AGREE. Case sent back for further proceedings. HAMTOU LEBBE v. GANITHA. Co-owners-Prescriptive title-Long-continued exclusive possession- Presumption of ouster. NLR 27, Page No 33
- 145. View - Volume27 Present: Ennis A.C.J. and De Sampayo and Dalton JJ. 418-D. C. Regatta, 6,815. Co-owners-Prescriptive title-Long-continued exclusive possession- Presumption of ouster. Where a co-owner of land seeks to establish a prescriptive title against another by reason of long-continued exclusive possession, it depends on the circumstances of each case whether it is reasonable to presume an ouster from such exclusive possession. Per DALTON J.-I see no reason to suppose that the law as laid down in Tillekeratne v. Bastion,1[1 (1918) 21 N. L. R. 12.] is in any way inconsistent with the decision in Brito v. Muttunayagam2[ 2 (7918) A. C. 895 ; (1918) 20 N. L. R. 327.] CASE referred to a Bench of three Judges by Ennis A.C. J. by the following judgment, which states the facts :- ENNIS A.C.J.- This was an action for a declaration of title to a half share of Kongahakumbura. The land originally belonged to one Kirihatana, and it appeared, in the course of the case, that Kirihatana died leaving two sons, the defendant-Ganitha and Suddana. Suddana had two children, Rankira and Ukku, who in 1921 sold to the plaintiff. The learned Judge in a very brief judgment has held in favour of the defendant, saying that it is too late |in the day for the plaintiff to assert title through the children of Suddana, and that, therefore, the plaintiff's case must fail on the issue of prescription. Ganitha, the defendant, came into Court, saying in his answer that he was the sole heir of his father, Kirihatana, and an issue was framed as to
- 146. whether Suddana wasthe son of Kirihatana. In the course of the trial, after the plaintiff had proved that Suddana was a son of Kirihatana, the defendant went into the box and himself gave evidence admitting that his father had two sons, himself and Suddana. He then proceeded to say that he held the land in dispute for the last forty or fifty years, and that Suddana had left long ago for the Gampola District, and never took any share and never performed any of the rajakariya services. Again the defendant's evidence is extremely brief. But in cross examination he admitted that in 1923 he had mortgaged a half share of the land claimed, and in re-examination he explained merely that this was a usufructuary mortgage bond. I am unable to find in the defendant's evidence any starting point for prescription, 34 He came into Court with, a false assertion, and it then transpired Hamidu Prove a possession adverse to his brother, Suddana. Lebbe v. In view of the relationship existing between the parties, the case of am a Corea v. Appuhamy1[1 (1911) 15 N. L. R. 65 ; (1912) A. C. 230.] seems to be much in point in connection with this case. However, Mr. Keuneman for the defendant has called our attention to the case of Tillekeratne v. Bastian (supra), where the question as to whether an ouster could be presumed was gone into at some length. The case itself is not on all fours with the present case, inasmuch as the facts there show that the parties in possession of the land had been dealing with it for over forty years by means of leases, and that the land in question was a valuable mineral land, and that there had been no division of the proceeds during the entire period of the occupation by one co-owner and his predecessor in title. However, in the course of that case, Bertram C.J. expressed the opinion that "It is the reverse of reasonable to impute a character to a man's possession which his whole behaviour has long repudiated." In the present case, it seems to me, we are not called upon to do any such thing. I am unable to see in the evidence of the defendant anything in the defendant's behaviour which repudiates the character of his possession. His possession can
- 147. be attributed toa lawful right which he had to possess as a co- owner, and in order to prescribe against his co-owners, some act of ouster would have to be proved or some definite facts from which one could infer a change in the character of the defendant's intention with regard to the holding of this land. I am unable to see in his evidence anything whatever which points to a change in his intention. On the contrary, it seems to me that the mortgage in 1923 shows that even at that date he was aware that only half the land belonged to him. I am of opinion that the defendant's possession cannot in any way be said to be adverse to that of his brother, Suddana, notwithstanding that the defendant has taken the crops from the land for the last forty years and performed the services. My brother, however, is of a different opinion, and in the circumstances the case must be referred to a Court of three Judges. R. L. Pereira (with him Ranawake), for the plaintiff, appellant. Keuneman (with him Jansz), for the defendant, respondent. July 8, 1925. ENNIS A.C. J.- I have very little to add to what I have already said in the terms of reference. I am in accord with the conclusion arrived at in Tillekeratne v. Bastian (supra), but am of opinion that the evidence in the present case does not justify its application here, or support a presumption of something in the nature of an ouster so as to give 35 the defendant a starting point for prescription. The defendant, upon whom the burden lay, gave evidence in chief which is contained in five lines of the typewritten record, and in cross- examination made admissions which militate against his claim to have prescribed. The defendant called no witnesses. He mentioned brothers and sisters as if acknowledging claims at some time in them, but he did not say more. He mentioned
- 148. having performed servicewithout saying what it was. The defendant and his brother, Suddana, were clearly co-parceners in the land, and as such the possession per se of one could not be held as adverse to the other. This is the rule laid down in Corea v. Appuhamy (supra) and re-enunciated in Brito v. Muttunayagam (supra). In my opinion the defendant has failed to establish any fact which could give rise to a presumption of ouster, and I would allow the appeal with costs. DE SAMPAYO J.-I agree. DALTON J.- In view of the difficulty I felt and expressed when this appeal was argued before a Bench of two Judges, it is, I think, due to the parties and to this Court, now that the case has been argued again, to set out fully my views of the law as applicable to the facts of the case before us. In this action the plaintiffs claimed a declaration that they are entitled to an undivided half share of the land named Kongahakumbura, an order to eject the defendant therefrom, and that they are entitled to damages in the sum of Rs. 80, and further damages until possession of the land was restored to them. They set up in their plaint that the defendant, Ganitha, and one Suddana were by right of maternal inheritance each possessed of an undivided half share in the land in question; that Suddana died about eight years ago intestate, leaving as his heirs his children, Rankira and Ukku Amma, who became entitled to their father's undivided half share ; that Rankira and Ukku Amma, by their deed No. 3,882 of June 2, 1921, sold all their undivided half, share in the land to the plaintiffs, and that the plaintiffs and their predecessors in title have been in the undisturbed and uninterrupted possession of the said half share for more than ten years before the institution of this action by
- 149. a title adverseto and independent of that of the defendant and all others. To this the defendant answered that he was the sole heir of his father, Kirihatana, to whom the land belonged, that he died many years ago, and that he (the defendant) and his predecessors in title had been in the undisturbed and uninterrupted possession of the land for a period exceeding ten years prior to the institution of this action. He accordingly asked that the plaintiff's action be dismissed. 36 The issues settled were- (1) Was Suddana a son of Kirihatana ? (2) Has defendant acquired prescriptive title ? I would point out Here that these issues do not appear to me to be sufficient to decide the matter in dispute. It is clear from the evidence subsequently led that neither the plaint nor the answer adequately set out the case of either party. The defendant, although he claimed to be sole heir of Kirihatana, admits that Suddana was a son of Kirihatana, whilst the plaintiffs set up a prescriptive title themselves, presumably in view of the fact that Suddana and the defendant had other brothers and sisters as they (the plaintiffs) sought to establish in the cross-examination of Ganitha. If they succeeded in establishing this, Suddana himself, through whom they claimed, had no right to half the property, hence their claim in their plaint to a prescriptive title on behalf of Suddana and his heirs. The evidence is short, the second plaintiff and one other witness alone giving evidence in support of the claim. It is to me worthy of notice that they do not call either of their vendors. The second plaintiff states that he does not know how
- 150. many children Kirihatanahad, but that he died leaving two, defendant and Suddana. But, then, he causes confusion by saying he purchased from these two children of Kirihatana, which is clearly an error. He continues : " Suddana lived at Heracola beyond Gampola, and was married in binna." This is corroborated by the marriage certificate which is produced. He then states that he and the first plaintiff bought a half share in the land. " Kirihatana lived at Gampola, and died leaving two children, from whom we bought a half share about 2 1/2 years ago on deed P 2." There seems an error here, for the deed purports to say the purchase was from the two children of Suddana. As regards the purchase he states that Rs. 300 was paid before the Notary which is confirmed by the deed, but he admits no possession of the land was obtained. The witness called in support of the claim says nothing about the number of children born to Kirihatana, but states that defendant and Suddana were owners of the land, and cultivated it jointly until about thirty-eight or forty years ago, since when defendant alone cultivated it. He adds that Suddana left Gampola district after a quarrel with defendant, but that he used to come once a year to get his share of the produce, as did his two children (the plaintiff's vendors) after his death. The land was service tenure property, and defendant alone performed the rajakariya (" services"); what these services were is not stated. The defendant admits Suddana was his brother, and states he has been in sole possession of the land for forty or fifty years. The date when Suddana left Gampola may be fixed by the marriage certificate 37 which is dated 1876. He denies that Suddana ever took any share of the produce, and states he alone performed the services to the landlord. In 1923 he admits he mortgaged only half of the land, but this he purports to explain by saying it was a usufructuary mortgage'. As these were paddy fields it was stated that he, by only mortgaging half in this way, retained
- 151. possession of theother half to obtain paddy for his own use. It was suggested to him in cross-examination that he had other brothers and sisters besides Suddana, and he admitted he had some sisters, but states they are dead. He also admits that in 1923 he brought an action in respect of his maternal estate against one Kalu Banda. In that case the defence of Kalu Banda was based on the allegation that he (defendant) had five brothers and sisters, but he says the case was settled by Kalu Banda taking a deed for the whole property from defendant alone. Whether the sisters and brothers (if there were any brothers) left any heirs who might be entitled to an interest in the property does not appear. He calls no witnesses, and hence it will be seen the evidence is somewhat meagre on both sides. The judgment is equally short. The learned trial Judge, however, comes to the conclusion that after leaving the Gampola district, Suddana never had any possession of the land. He would, therefore, appear to disbelieve the evidence that Suddana or his children took any share in the produce. He seems also to lay some stress on the performance of the services to the landlord by defendant alone. As regards the purchase by plaintiffs, he comes to the conclusion that it is a speculative one, on the ground that they have not called or apparently given any notice of these proceedings to their vendors. He concludes that the plaintiffs' case must fail on the issue of prescription (issue 2), and dismisses the action with costs. He does not refer to the plaintiffs' plea of prescription as against the defendant " and all others." If he had come to the conclusion that there were other brothers and sisters of defendant and Suddana, as urged for the plaintiffs in the cross-examination of defendant, it is certainly a matter which affects the plaintiffs' claim to hah5 the property. In any case, however, before plaintiffs can succeed on their claim, even if defendant's plea be not upheld, it seems to me that on the case they put forward, that other brothers and sisters of Suddana do exist, they must satisfy the Court that they have succeeded on their plea of prescription, for admittedly their vendors would not be entitled by inheritance to half the land.
- 152. They appeal fromthe judgment shortly on the ground that defendant's plea of prescription could not be upheld, for " the mere possession even, if true, of one brother's share by another brother does not ripen into a title by prescription." The authority relied upon is Corea v. Appuhamy (supra). The circumstances of that case are certainly remarkable ; it has been my experience elsewhere that 38 that fact is somewhat lost sight of when the authority is cited. For the respondent the law there laid down is not questioned, but it is urged that nowhere is it held that even against a co- owner may not an ouster be presumed from the circumstances of any particular case. In Tillekeratne v. Bastian (supra) decided in 1918, this question was answered after being dealt with at length. It was there held that the principle of " a presumption of ouster" is part of the law of the Colony, and that it is open to the Court from lapse of time taken in conjunction with the circumstances of the case to presume that the possession originally that of a co-owner has since become adverse. It has been suggested to us that that would, under local conditions, be a dangerous principle to apply to the Colony, but it is clear from that judgment that it has been applied in a series of judgments of this Court and has also been adopted in India (Gangadhar v. Paraskram).1[1 I. L. R. 29 Bom. 300.] But the question arises whether the decision in Tillekeratne v. Bastian (supra) is not overruled by the decision of the Privy Council in Brito v. Muttunayagam (supra), the decision in which of the local Court (but not of the Privy Council) was referred to in Tillekeratne v. Bastian (supra). In this case between father and children it was held that as the children were co-owners with the father, his possession of the property was not adverse, although there were strained relations between father and children. In the course of the judgment it is stated-
- 153. " It isthe fact that no claim was made by the wife's next of kin after her death, and that the strained family relations made it likely that such a claim would have been preferred. From these circumstances the District Judge drew the conclusion that the possession was adverse. This, however, depends on what was the character of G. Brito's possession as a matter of right. The learned District Judge seemingly overlooked the case of Corea v. Appuhamy (supra) which the learned Judges of the Court of Appeal took as decisive of the question. In that case it was held by this Board that the possession of one co-parcener could not be held as adverse to the other co-parceners. Lord Macnaughten, who delivered the judgment, cited the dictum of Wood V.C. in Thomas v. Thomas2[2 (1856) 2K & J 79, 83.] Possession is never considered adverse if it can be referred to a lawful title." Is this an authority for the proposition that under no circumstance can the possession of one co-owner be held as adverse to another co-owner ? It has been so argued before us. Reference to the judgments of the Court of Appeal in Brito v. Muttunayagam (supra), decided by Ennis and Shaw JJ., shows that neither of these learned Judges had any doubt that Corea v. Appuhamy 39 (supra) decided that an ouster, or something of the nature of, or equivalent to, an ouster, would result in the possession of a co-owner becoming adverse to the other co-owners. Ennis J. says- " In the case of Corea v. Appuhamy (supra) the Privy Council held that the possession of one co-owner enured to the benefit of the other co-owners, and that position could only be altered by an ouster or something in the nature of an ouster." And Shaw J. says- " He was a co-owner with his children, and his possession is that of his co-owners unless something equivalent to an ouster
- 154. by him ofhis co-owners can be shown. Corea v. Appu hamy (supra)." It still remained, however, to be decided whether or not an ouster might be presumed from long-continued, undisturbed, and uninterrupted possession. And on that point all the Privy Council was prepared to say was that, whether or not it was still law that such a presumption might be drawn, in that particular case the circumstances would not justify any such presumption. When Brito v. Muttunayagam (supra) came before the Privy Council, the question of presumption of ouster was not referred to or dealt with. All that the Privy Council decided on the question of prescription was that if the interest of Brito was, or was analogous to, the interest of co-ownership, then Corea v. Appuhamy (supra) applied. The dictum of Wood V.C., in Thomas v. Thomas (supra) that" possession is never considered adverse if it can be referred to a lawful title " is again cited with approval, and the possibility of any presumption of ouster is not mentioned. For that very reason it may be said that the extracts I have given above from the Privy Council's judgment do not decide that no question of presumption of ouster can arise as between co-owners, and hence I see no reason to suppose that the law as laid down in Tillekeratne v. Bastian (supra) is in any way inconsistent with the decision in Brito v. Muttunayagam (supra). This is not exhaustive of the reasons which can be put forward in support of this conclusion. In the result it seems to me that the law of this Colony on this point is clearly laid down in Tillekeratne v. Bastian (supra). It is a question of fact where ever long-continued exclusive possession by one co-owner is proved to have existed, whether it is not just and reasonable in all the circumstances of the case that the parties should be treated as though it had been proved that that separate and exclusive possession had become adverse at some date more than ten years before action
- 155. brought. The questionis dealt with at length in the judgment of Bertram C.J. in that case. I would not do more here than refer to the very definite opinion on the point in English law as expressed by Lord Mansfield in Doe v. Prosser,1[1 Cowp. 217.] and cited by him. 40 In appeal before this Court we have this question of fact answered by the trial Judge in favour of the defendant (respondent), and when the case was argued on the first occasion I was unable to say that that finding of fact was not justified by the evidence, and a just and reasonable one in all the circumstances of the case. The long-continued exclusive possession of the one brother from thirty-eight to forty years was proved. It was proved that they had quarrelled, and one had left the other in possession. Although Suddana went to live at a place, only eight or nine miles away, yet during all that time the trial Judge finds neither he nor his children exercised any right to possess the land. Lastly, the service to the landlord, it being service tenure land, was performed by defendant alone. The evidence which seemed to me to weigh very strongly in favour of the defendant was the fact that the brothers had quarrelled, taken together with the short distance which separated their residences. Is it not most likely that, with the existence of the quarrel, a claim would, under the circumstances, have been preferred by Suddana It certainly seemed so to me. But on that occasion the case of Brito v. Muttunayagam (supra) was not cited in the argument before us, and there the very matter which cause me the difficulty is dealt with. In that case there were strained relations between father and children, a condition of affairs which was duly considered by the Privy Council, for this was one of the chief circumstances in the case on which the trial Judge had come to the conclusion that the possession of the father had become " adverse" to his children. It was held that the trial Judge was wrong. It seems to me that it is a decision or an expression of opinion, however it be regarded, which must govern me in this appeal, however hard the result may be to the defendant. I feel that it comes very near to the border line of those " stale claims" to which Wood V.C. referred in Thomas v. Thomas (supra), to which the provisions of the Prescription Ordinance
- 156. should be appliedto the fullest extent, and which ought to be discouraged. Under all the circumstances, therefore, for the reasons given above, applying the cases of Corea v. Appuhamy (supra) and Brito v. Muttunayagam (supra), and also the law as laid down in Tillekeratne v. Bastian (supra) I have, but I must state on the facts with some hesitation, come to the conclusion that the defendant did not discharge the onus laid upon him in his plea of prescription. On the' other hand, I am satisfied that the plaintiffs have also failed to substantiate their entire claim, although they are entitled to so much of the land as was inherited by Suddana and his heirs. They have failed in their plea of prescription against the other brothers and sisters of Ganitha and Suddana, who they allege still exist. The question is whether under all the circumstances a new trial should be ordered, or whether the case be referred back for the trial 41 Judge to take farther evidence and decide on this point, namely, the amount of the shares which fell to Suddana and his heirs, or whether, the action brought being against the defendant alone, it will be sufficient to make an order allowing the appeal. On Consideration, the property being a very small one, and liable to be dissipated in costs, it will be sufficient to make the latter order. I would accordingly allow the appeal. In the result the appellant would be entitled to the costs of appeal. Appeal allowed.
- 157. SIDERIS vs SIMONPrescription-Co-owners-Long continued and undisturbed possession-Presumption of ouster-Question of fact. In an action between co- owners the question whether a presumption of ouster may be made from long continued and undisturbed and uninterrupted possession is one of fact, which depends on the circumstances of each case. New Law Reports Volume 46, Page No 273 1945 Present: Howard C.J. and Canekeratne J.
- 158. 57-D. C. Colombo,2,880. Prescription-Co-owners-Long continued and undisturbed possession-Presumption of ouster-Question of fact. In an action between co-owners the question whether a presumption of ouster may be made from long continued and undisturbed and uninterrupted possession is one of fact, which depends on the circumstances of each case. APPEAL from a judgment of the District Judge of Colombo. H. V. Perera, K.C. (with him S. P. Wijewickrema), for the first to fourth defendants, appellants. N. E. Weerasooria, K.C. (with him M. D. H. Jayawardene), for the plaintiffs, respondents. Cut. adv. vult. 274 June 18, 1945. HOWARD C.J.- The first to fourth defendants appeal against a judgment of the Additional District Judge of Colombo, declaring the plaintiffs entitled to an undivided share in certain land, and ordering that the first to fourth defendants be ejected therefrom and the plaintiffs placed in possession. The plaintiffs claimed that they and the fifth defendant were jointly entitled to the land in dispute and that the first to fourth defendants who had no manner of right or title to any portion of the said land wrongfully and unlawfully entered into a portion and cut and removed the crop which the plaintiffs had raised thereon. It was conceded that the land in dispute originally belonged to one Henchappu who had 4 sons and 3 daughters. The plaintiffs and the fifth defendant maintained that the four sons entered into exclusive possession of the land and acquired a title by prescription. The plaintiffs are the successors in title of the four sons of Henchappu whilst the second defendant is the son of one of the daughters of
- 159. Henchappu and thefirst, third and fourth defendants are her grandchildren. The learned Judge held that the four sons of Henchappu and their successors were in exclusive possession of the land in question and acquired a prescriptive title thereto. In coming to this conclusion he thought that taking all the circumstances of the case into consideration and having regard to the documents produced and accepting the fact that the four sons of Henchappu and their successors possessed the field to the exclusion of the three daughters he was entitled to presume an ouster. It has been contended by Mr. Perera on behalf of the appellants that, inasmuch as the four sons and three daughters of Henchappu were co-owners, the learned Judge was wrong in coming to the conclusion that there had been an ouster. There have been numerous cases on the question as to the acquisition of rights by prescription against co-owners. In Thomas v. Thomas 1 it was held by Wood V.C. that possession is never considered adverse if it can be referred to a lawful title. This dictum was cited with approval in the Privy Council case of Corea v. Appuhamy 2. In that case the principle was formulated that the possession of one co- parcener could not be held as adverse to the other co-parcener and in spite of over thirty years' possession the defendant's title by prescription was not upheld. The possession of one co- owner was the possession of all the co-owners. It was not possible, for one co-owner to put an end to that possession by any secret intention in his mind. Nothing short of ouster Or something equivalent to ouster could bring about that result. The principle as laid down by the Privy Council in Corea v. Appuhamy was cited with approval in the later Privy Council cases of Brito v. Muttunayagam 3 and Cadija Umma v. S. Don Mania Appu 4. It has been followed in the local cases of Cooray v. Perera 5 Fernando v. Fernando6 and Fernando v. Fernando and others7. Doubts however, as to what was necessary to prove ouster have arisen since the judgment of Bertram C.J. in Tillekeratne v. Bastian 8 who accepted the principle formulated in Corea v. Appuhamy by stating that it was not 1 (1855) 2K.&J. 83. 5 45'N. L. R. 455. 2 15 N. L. R. 65. 6 44 N. L. R. 65.
- 160. 3 20 N.L. R. 327. 7 27 C. L W. 71. 4 40N. L. R. 392. 8 21 N. L. R. 12. 275 possible for a co-owner to put an end to the title of another co- owner and initiate a prescriptive title by any secret intention in his own mind and that nothing short of an " ouster or something equivalent to an master " could bring about the result. The learned Chief Justice then sent on to say that although the question had been argued in the case and discussed in the judgment, the Privy Council in Corea v. Appuhamy and not decided whether an ouster could be presumed from the long continued possession of the co-owner in question. He then proceeded to formulate the principle that it is open to the Court, from lapse of time in conjunction with the circumstances of the case, to presume that a possession originally that of a co-owner, has since become adverse. In Tillekeratne v. Bastian the claim on the ground of co-ownership had been dormant for a period of more than forty years. Moreover, the nature of the possession was significant. The land had no plantation worth considering. It was plumbago land and the defendants dug plumbago thereon both by themselves and through lessees all throughout. In these circumstances the principle to which I referred was formulated by the Court which held that the defendants had succeeded in establishing their claim to the whole land by prescription. The decision, however, did not go so far as to lay down that ouster could be presumed merely from long and exclusive possession. Such a decision would have been contrary to Corea v. Appuhamy. It is a question of fact in each case and the question as to whether from long continued, undisturbed and uninterrupted possession ouster may be presumed depends on all the circumstances of the case-vide judgment of Dalton J. in Hamidu Lebbe v. Ganitha 1[ 27 N. L. R. at p. 39.]. In Tillekeratne v. Bastian there was long continued, undisturbed and uninterrupted possession for a period of over 40 years. The nature of the possession was for the purpose of digging plumbago both by the defendants and their lessees. In this connection De Sampayo J. in his judgment at page 28 drew a distinction between the possession of land for the purpose of
- 161. extracting minerals andthe possession for the taking of natural produce in the following passage: - " Moreover, the nature of the possession is significant. The land had no plantation worth considering; it was plumbago land, and the defendants dug plumbago therein both by themselves and through lessees all throughout. While a co-owner may without any inference of acquiescence in an adverse claim allow such natural produce as the fruits of trees to be taken by the other co-owners, the aspect of things will not be the same in the case where valuable minerals are taken for a long series of years without any division in kind or money." Moreover, it would appear that the plaintiff Tillekeratne had bought the share of the co-owner, had worked a plumbago pit himself on another land in the neighbourhood, and had never claimed or taken a share in the plumbago which to his knowledge was being dug from the disputed land by the defendants and their lessees. It seems to me that the distinction drawn between the excavation and removal of minerals, an act definitely depreciating the value of the holding, and the taking of natural produce 276 such as the fruit of trees or the development of lands for the cultivation of paddy by expenditure incurred by the occupier is both logical and sound. The only matter remaining for consideration is whether the learned Judge has correctly upheld the principles to which I have referred and. rightly come to the conclusion that he was entitled to presume ouster. It may be conceded that the possession from 1904 to 1942 was long continued, undisturbed and uninterrupted. But this is not enough. What other circumstances existed leading to the presumption that there was an ouster ? It is suggested that various deeds written on the basis that the four sons of Henchappu are the owners supply the other circumstances from which ouster can be
- 162. presumed. The earliestdeed (5 D3) dated October 4, 1894, was by Davith Appu, one of the four sons and conveyed an undivided one-third share of the land to Peeris Appu and Deonis Appu. Davith Appu on the assumption that the four sons were entitled, should have conveyed one-fourth only. But it is clear that Davith conveyed more than the one-seventh share to which he was entitled if all the brothers and sisters were co-owners. The next document is a deed of lease (P 12) dated January 12, 1901, in which the lessors are two of the sons of Henchappu, Velun and Jeelis, William, a child of Saran who was another son of Henchappu and Peeris, one of the transferees on 5 D3. This deed dealt with the entirety of the land and none of the daughters of Henchappu joined in. There is also another deed dated January 20, 1904 (5 Dl), in which Velun, one of the sons of Henchappu, reciting that he was entitled to an undivided one-fourth share of the land which he and his three brothers held and possessed by right of " Sambuddi " possession and " asweddumising ", sold to his daughter and her husband an extent of 10 kurunies. This deed ignores the rights of the daughters of Henchappu. But do these deeds inevitably point to an acquiescence by the daughters of Henchappu in the acquisition of their rights as co-owners by the sons? Was the making of these deeds something equivalent to an ouster? The land was being cultivated by the growing of paddy and hence any inference of acquiescence would not arise as it did in the case of Tillekeratne v. Bastian where the co- owner stood by when plumbago was excavated and removed. Moreover, there is no evidence that the daughters of Henchappu knew of the execution of the various deeds. Without such proof there was nothing more than a secret intention in the mind of the transferors and lessors to initiate a prescriptive title and put an end to the co-owners' co- possession. This is not sufficient to constitute ouster. The judgment of the District Court is set aside and judgment must be entered for the first to fourth defendants with costs in this Court and the Court below. CANEKERATNE J.-I agree. Appeal allowed.
- 163. RAJAPAKSE vs HENDRICKSINGHO Co-owners-Exclusive possession of the common property by some of the co-owners- Effect-Ouster- Prescription. Fresh evidence- Retrial-Permissibility. New Law Reports Volume 61, Page No 32 1959 Present: Basnayake, C.J., and Pulle, J. S. C. 815-D. C. Gampaha, 3,761JP Co-owners-Exclusive possession of the common property by some of the co-owners- Effect-Ouster- Prescription. Fresh evidence-Retrial-Permissibility. (i) Action for the partition of a land was instituted on August 24, 1953. There was overwhelming evidence that the defendants,. since the year 1922, were not only in occupation of the land but also took its produce to the exclusion of the plaintiffs and their predecessors in title, and gave them no share of the- produce, paid them no share of the profits, nor any rent, and did no act from which an acknowledgment of a right existing in them would fairly and naturally be inferred. Held, that the evidence disclosed an ouster of the plaintiff's by the defendants and that the ouster continued for a period of over ten years. (ii) If evidence which was in the possession of parties at the time of a trial, or by proper diligence might have been obtained, is either not produced or has not been procured, and the case is decided adversely to the side to which the evidence was available, no opportunity for producing that evidence will be given by an appellate Court by granting a retrial. APPEAL from a judgment of the District Court, Gampaha.
- 164. Sir Lalita Rajapakse,Q.C., with F. W. Obeyesekere and D. C. W. Wickremasekera, for Plaintiffs-Appellants. Cecil de S. Wijeratne, with G. L. L de Silva" for Defendants- Respondents. Cur. adv. Vult 33 June 22,1959. BASNAYAKE, C.J.- This is an action for the partition of a land called Keragahalanda in extent 4 acres and 3 roods. It is common ground that Atapattu LiyanaraIlage Paulis purchased it on deed No. 5,822 of 17th December 1895 (PI). Of this land, Paulis sold to Don Thelenis " an undivided portion of land of the extent of about two acres" on deed No. 17,115 of 6th January 1919 (P2) and "an undivided portion of land of three roods" on deed No. 18,352 of 23rd July 1920 (P3). On 11th August 1921 by deed No. 2,131 (P4) Don Thelenis sold "an undivided eleven- nineteenth (11/19) part or share " to his grandson Ranatun Vidane RaIlage Gunasekera who on 28th October 1927 by deed No.3, 766 (P5) sold the undivided interests he purchased to Dun John Seneviratne Gunawardhana. On 1st May 1953 the plaintiffs purchased those interests on deed No. 14,871 (P6) from Gunawardhana and on 24th August 1953, less than four months after their purchase, they instituted this action. The defendants, ten in number, resist the plaintiff's action on the ground that they have been in possession W the exclusion of the plaintiffs and their predecessors in title. The 1st, 2nd, and 3rd defendants are children of Paulis, the 5th, 7th, 8th, 9th and 10th defendants are his grandchildren. The 4th and 6th defendants made no claim. The 1st, 2nd, 5th and 8th defendants live on the land. On it there are three houses and the foundation of a fourth. There is also a well. The 1st plaintiff in his evidence admits that the 1st defendant owns one of the houses, the 2nd defendant another, and the 8th defendant the
- 165. third. He alsoadmits that the foundation and well belong to the 5th defendant, and that the 1st defendant planted all the coconut trees on the land, one hundred and forty-two in number. The 1st plaintiff confessed that he never got "possession " but he says that his predecessor Gunawardhana who owned the ten acres of land adjoining this land which at one time formed part of it plucked coconuts. This evidence is of little value in view of the 1st plaintiff's own statement that the land is a jungle and that the coconuts that can be plucked from it are not enough for a meal. Not one of the predecessors in title of the plaintiffs was called to give evidence on their behalf. The surveyor's report discloses that the 1st plaintiff had no knowledge of this land whatsoever. There are plantations valued at Rs. 4,274, consisting of coconut, jak, arecanut, mango, coffee, del, tamarind, beli, cotton, pepper, kaju, lime, orange, kitul, in a land which he calls a jungle. The 1st defendant a man 60 years of age, a son of Paulis, states that after the death of his father in 1922 he took the produce of the land and gave his brothers and sisters their share to the exclusion of the predecessors in title of the plaintiffs. Don Thelenis's grandson, .D. G. Ranatunga, Village Headman of Dematadenikane for twenty-seven years, who is also known as R. Q. Gunasekera, to whom in 1921 Don Thelenis transferred the share now claimed by the plaintiffs, states that he never enjoyed the produce of the land nor occupied it and that his successor in title Gunawardhana never exercised any rights of ownership and that the defendants lived on the land and enjoyed its produce to his exclusion. 34 R. P. Jema the retired headman of Radawadunna, who had been headman for thirty-two years, supports the 1st defendant. He says that it was Paulis's children and grandchildren who enjoyed the produce of this land to the
- 166. exclusion of allothers and that to his knowledge neither Don Thelenis nor Gunawardhana "possessed" it. I shall now turn to the law on the subject of prescription among co- owners as admittedly the plaintiffs and defendants are co- owners and the latter have been in occupation of the land since 1922 to the exclusion of the predecessors in title of the plaintiffs. It is settled law (Corea v. Appuhamy1 and Cadija Umma fl. Don Manis2) that the possession of one co-owner is the possession of the other co-owners and that possession qua co-owner 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. In our judgment in S. C. 12-D. C. Tangalle No. P. 60 delivered on. December 19, 1958, which has not yet been reported, we have discussed the question of prescription among co-owners at length and we do not. I therefore propose to refer to all the cases discussed in that judgment. The law being as stated above the only question that arises for decision i in this case is whether the evidence discloses an ouster of the plaintiffs by the defendants and whether that ouster continued for a period of over ten years. The expression " ouster " which is used in Corea's case (supra) and later in Cadija Umma' s case is a concept of English Law and we must, turn to that system of law in order to ascertain its meaning. The matter is discussed in the cases of Doe fl. Prosser 3 and Peaceable fl. Read '. In the former case Justice Aston said- "There have been frequent disputes as to how far the possession of one tenant in common shall be said to be the possession of the other and what acts of the one shall amount
- 167. to an actualouster of his companion. As to the first, I think it is only where the one holds possession as such, and receives the rents and profits on account of both. With respect to the second, if no actual ouster is proved, yet, it may be inferred from circumstances, which circumstances are matter of evidence to be left to a Jury." In the latter case Lord Kenyon C.J. said- " I have no hesitation in saying where the line of adverse possession begins and where it ends. Prima facie the possession of one tenant in common is that of another, every case and dictum in the books is to- that effect. But you may shew that one of them has been in possession and received the rents and profits to his own sole use, without. account to the other, and that the other has acquiesced in this for such a length of time as may induce a jury under all the circumstances to presume an actual ouster of his companion. And there the line of presumption ends. " 35 The expression "actual ouster" needs explanation and as it is an expression used by both Lord Mansfield and Lord Kenyon in the cases referred to above I cannot do better than explain it in the very words of Lord Mansfield- "Some ambiguity seems to have arisen from the term' actual ouster' as if it meant some act accompanied by real force, and as if a, turning out by the shoulders were necessary. But that is not so. '" In the instant case the evidence that the defendants since the death of Paulis in 1922 were not only in occupation of the land but also took its. produce to the exclusion of the plaintiffs and their predecessors in title, and gave them no share of the produce, paid them no share of the profits, nor any rent, and did no act from which an acknowledgment of a right existing in them would fairly and naturally be inferred, is overwhelming.
- 168. In this stateof evidence I do not see how we can disturb the finding of the learned District Judge though undoubtedly there are statements in his judgment which invite criticism, and learned counsel for the appellants rightly directed our attention to those statements especially the statement of the learned District Judge that questions of ouster and prescription did not arise for consideration. With that view we are unable to agree. Those questions do arise but on the facts of this case. there is no difficulty in resolving them ill favour of the defendants. Learned counsel also complained that on the mistaken impression, for which, he submitted, there was no justification in the evidence, that Don D Thelenis was alive at the date of trial, the learned Judge had drawn an adverse inference against the appellants and we were invited to send the case back for a retrial on the ground that Don Thelenis was not alive at. the date of the trial. Learned counsel submitted an affidavit with the, certificate of registration of death of a Police Headman named Don Thelenis in support of his application. But in view of the uncontradicted1 evidence of Jema that Don Thelenis did not possess the land it is immaterial whether Thelenis was alive or not at the time of the trial. The complaint of learned counsel does not appeal' to be entirely justified on the evidence. R. P. Jema the retired headman who is a witness for- the defendant stated- " Q: Do you know a person called Thelenis ? "A: Yes. " Q: He is also a man of that area? " A: He is living in the adjoining village.
- 169. " Q: Theoriginal owner sold over half a share when he was residing on this land to Thelenis? "A: Yes. " Q: And Gunasekera got the land from Thelenis ? "A: Yes." It would appear from the record that the above answers were elicited in cross-examination. If Thelenis was in fact dead the failure of the plaintiffs to challenge witness Jema's statements is inexcusable especially 36 If the grandfather of Gunasekera and Don Thelenis, the Police Headman referred to in the affidavit, Were one and the same person. If a. statement m regard to a fact which could have been ascertained with the exercise of due diligence is allowed to pass unchallenged at a time when they had an opportunity of contradicting it the plaintiffs alone must be the blame. It would be wrong to criticize the trial Judge on that score. "The principles governing the grant of a retrial to enable a party to produce fresh evidence are well established. It has been repeatedly stated that the invariable rule in all courts and one founded upon the clearest principles of reason arid justice, is that, if evidence which either was in the possession of parties at the time of a trial, or by proper diligence might have been obtained, is either not produced or has not been procured, and the case is decided adversely to the side to which the evidence was available, no opportunity for producing that evidence ought to be given by granting a, retrial. (Nash v. Rochford Rural Council ; E. H. Lewis J J Sons Ltd. v. Morelli 2.) There being no presumption that all the predecessors in title of the plaintiffs are dead it is for them to explain why they are not called to give evidence. The plaintiffs have failed to do so and it
- 170. is legitimate forthe court to presume that the evidence of those persons if produced would be unfavourable to them, especially as one of them, (a headman, did give evidence in favour of the defendants. Before we part with this judgment we desire to draw the attention of both practitioners and Judges to the "lords of Bertram C.J. in Alwis v. Perera 3 wherein the importance of requiring a witness to explain exactly what he meant by such expressions as " I possessed ", " We possessed " is emphasised. The appeal is dismissed with costs. PULLE, J.-I agree. Appeal dismissed
- 171. JAMIS PERERA ANDANOTHER v. CHARLES DIAS AND OTHERS Prescription - Prescription among co-owners - Division and adverse possession of co-owned property. Sri Lanka Law Reports 1999 - Volume 2 , Page No - 159 SUPREME COURT G. P. S. DE SILVA, CJ., KULATUNGA, J. AND RAMANATHAN, J. S.C. APPEAL NO. 10/95 C.A. NO. 898/82 (F) D.C. HOMAGAMA NO. 611/L JANUARY 26, 1996 Prescription - Prescription among co-owners - Division and adverse possession of co-owned property. The State acquired an extent of IA, OR. 08 P. out of a 6-acre land called Alubogahawatte which was the Southern portion of the land. Alubogahawatte was originally co-owned. At the trial of the title dispute referred to the District Court by the Acquiring Officer under s. 10 of the Land Acquisition Act, it was established by oral and documentary evidence that the land which was the subject-matter of the acquisition proceedings was possessed entirely for about 60 years by the parents of the 1st, 2nd and 3rd defendants. Consequently, those defendants
- 172. claimed that theyhad acquired a prescriptive title to the entire land, which was the land in dispute. Held : There was cogent evidence of separation, division and adverse possession of the land in dispute by the 1st, 2nd and 3rd defendants and their predecessors in title. APPEAL from the judgment of the Court of Appeal. R. K W. Goonesekera with D. F. H. Gunawardhana for the 5th and 6th defendants-appellants. D. R. P. Goonetilleke with S. A. D. Suraweera for the 1st to 3rd defendants-respondents. Cur. adv. vult. 160 February 1, 1996. G. P. S. DE SILVA, CJ. These proceedings relate to a 'reference' made to the District Court in terms of section 10 of the Land Acquisition Act by the Acquiring Officer. The dispute (as regards title) was between the 1st, 2nd and 3rd defendants-respondents on the one hand and the 5th and 6th defendants-appellants on the other. The 1st, 2nd and 3rd defendants respondents claimed that they had acquired a prescriptive title to the entirety of the land, (the subject-matter of the acquisition proceedings), while the 5th and 6th defendants-appellants denied the claim of the defendants-respondents and asserted title to 3/4th share of the land. Both the District Court and the Court of Appeal held with the 1st, 2nd and 3rd defendants on their claim of prescriptive title. Hence the appeal by the 5th and 6th defendants to this Court. The State acquired an extent of 1A. OR. 08P. out of a 6-acre land called Alubogahawatte which was originally owned by Davith Perera (a 2/3 share), Luwis Perera and Mango Perera (1/3 share). Davith Perera, in lieu of his undivided 2/3 share,
- 173. possessed a dividedlot and on his death the said lot devolved on his widow and children. By deed 5DI of 1909 a half-share of the said lot was conveyed to the daughter Jane and her husband Jamis Silva. By deed 1D2 of 1910 the balance half- share was conveyed to another daughter Lousia and her husband Henderick Dias. Lousia and Henderick are the parents of the 1st, 2nd and 3rd defendants. These facts are not in dispute. It is the case of the 1st, 2nd and 3rd defendants that Lousia and Henderick, in lieu of the aforesaid 1/2 share possessed the entirety of the land which is the subject of the acquisition proceedings as a distinct and separate land for a period of about 60 years and thus acquired a prescriptive title thereto. Likewise, Jane and her husband Jamis Silva possessed exclusively the balance 1/2 share which was to the North of the corpus acquired by the State. The 2nd defendant, 161 whose evidence was accepted by the District Judge, stated that after the execution of 1D2, his parents separated off their portion of the land and possessed it as a distinct lot to the exclusion of all others. He further testified that after the death of his parents he and the 1st and 3rd defendants continued to possess the land in dispute as a divided and separate lot. On a consideration of the documents in the case, it seems to me that there are two deeds which tend to support the oral evidence given by the 2nd defendant. The first deed is ID6 of 1935. This deed refers to a sale by Jane and Jamis Silva of half an acre of land on the northern side. The portion conveyed is the portion on which the school stands. The significance of 1 D6 is that it shows that as far back as 1935 Jane and her husband Jamis Silva sold half an acre from their rights on the northern side. This is indicative of the division of the land referred to by the 2nd defendant in his evidence. The other deed which is of relevance is 1 D7 of 1944 by which the predecessor in title of the 5th and 6th defendants conveyed one rood to Joseline Silva, a sister of the 6th defendant. It is of importance to note that in this deed (executed about 30 years prior to the present dispute) the southern boundary of the land conveyed is described as the 'land of P. P. Henderick Dias'
- 174. (which is theland in dispute). This too is a circumstance which tends to show that the land possessed by Henderick and Lousia was separate and distinct from the land possessed by Jane and Jamis Silva. The principal point urged by Mr. R. K. W. Goonasekera for the 5th and 6th defendants-appellants against the case of divided possession relied on by the 1st to 3rd defendants-respondents is that the latter claimed rights in the northern portion of the land in two previous acquisition proceedings. Mr. Goonesekera submitted that a claim of that nature could only be on the basis that the entirety of the land was co-owned. This submission is not without attraction. However, on a consideration of the evidence on record as a whole 162 it seems to me that the conduct of the 1st to 3rd defendants is not of sufficient weight to displace the cogent evidence of separation, division and adverse possession by the 1st, 2nd and 3rd defendants and their predecessors in title. The appeal turns on what are essentially questions of fact. The findings of the trial Judge are based on credible evidence, both oral and documentary. The concurrent findings of both courts are against the appellants. I can see no reasonable basis to reverse these findings. In the result, the appeal fails and is dismissed with costs fixed at Rs. 750. KULATUNGA, J. - I agree. RAMANATHAN, J. - I agree. Appeal dismissed.
- 175. LEISA AND ANOTHERv. SIMON AND ANOTHER Rei Vindicatio - Prescriptive rights - Presumption of right to possess - Difference between possession, occupation and dominium - Prescription Ordinance, section 3 - Plaintiff claims paper title as well as by prescription - Should the plaintiff prove prescription Sri Lanka Law Reports 2002 - Volume 1 , Page No - 148 Sri Lanka Law Reports 148 COURT OF APPEAL WIGNESWARAN, J. AND TILAKAWARDANE, J. CA NO. 443/93 (F) DC GAMPAHA NO. 26653/L
- 176. SEPTEMBER 28, 2000. ReiVindicatio - Prescriptive rights - Presumption of right to possess - Difference between possession, occupation and dominium - Prescription Ordinance, section 3 - Plaintiff claims paper title as well as by prescription - Should the plaintiff prove prescription? The plaintiff-appellants instituted action seeking declaration of title and ejectment of the defendants from the premises in question. The defendants claimed pre-scriptive rights. The plaintiff's action was dismissed. On appeal - Held : (1) The contest is between the right of dominium of the plaintiffs and the declaration of adverse possession amounting to prescription by the defendants. (2) The moment title is proved the right to possess it, is presumed. (3) Thus, even if the Court found that the defendants had prescribed to the corpus, the proper answer to the 1st issue would have been yes, but the defendants have prescribed. (4) An averment of prescription by a plaintiff in a plaint after pleading paper title is employed only to buttress his paper title.
- 177. (5) For theCourt to have come to its decision as to whether the plaintiff had dominium, the proving of paper title is sufficient. 149 (6) The mere fact that the plaintiff claimed both on deeds as well as by long possession did not entail the plaintiff to prove prescriptive title thereto. Their possession was presumed on proving paper title. The averment of prescription in the plaint did not cast any burden upon the plaintiff to prove a separate title by prescription in addition to paper title. (7) Once paper title became undisputed the burden shifted to the defendants to show that they had independent rights in the form of prescription as claimed by them. Per Wigneswaran, J. "A person is in possession of a house for example, when he or his servants or licensees are living in it, if he or they are absent from it, he would still be held to be in possession, if such absence was only temporary. In this case the brother of the 1st plaintiff (1st defendant) could have been in occupation and still the 1st plaintiff would have been in possession simultaneously." APPEAL from the judgment of the District Court of Gampaha. Case referred to : 1. Pathirana v. Jayasundera - 58 NLR 169 at 177. G. L. Geethananda for plaintiff-appellants.
- 178. Dinesh de Alwiswith Janaki Nawaratne for defendants- respondents. Cur. adv. vult. January 16, 2001 WIGNESWARAN, J. This appeal by the plaintiff-appellants is against the judgment dated 24, 09. 1993 delivered by the Additional District Judge, Gampaha, wherein this action of the plaintiffs for a declaration in their favour in respect of the land described in the schedule to the plaint (viz. Lot A in plan No. 1177 (P3)), ejectment of the defendants therefrom, demarcation of the southern boundary of the said land, damages and costs was dismissed with costs. The learned Additional District Judge had found that the defendants had prescribed to the land in dispute. 150 The 1st plaintiff is the elder sister of the 1st defendant. The 2nd plaintiff is the son of the 1st plaintiff and the 2nd defendant is the daughter of the 1st defendant. There cannot be any dispute that by PI the 1st plaintiff and by P2 the 2nd defendant on the same day (04. 08. 1966) obtained title from the same source to Lot A in extent A0 R1 P32 and Lot B in extent 38 perches, respectively. The 1st defendant Marasinghe Pedige Simon was in fact a witness to deed P2 executed in favour of his daughter the 2nd defendant. At pages 168 to 170 of the Brief, Simon had accepted that his sister became owner of Lot A by P1. His evidence is as follows: 151 On 18. 03. 1983 the 1st plaintiff sold 6/10th share of Lot A abovesaid to the 2nd plaintiff by P4. As per plan 'X1 No. 4670 dated 10. 06. 1985 prepared by K. A. J. Amerasinghe, Licensed
- 179. Surveyor, prepared forthis case, Lot 1 in plan X was Lot A in plan 1177 and Lot 2 and 3 in plan X were Lot B in the said plan No. 1177. When this action was filed on 10. 04. 1984 the paper title to Lot A depicted in plan 1177 (P3) (Lot 1 in plan X) was with the 1st and 2nd plaintiffs. Once the paper title became undisputed the burden shifted to the defendants to show that they had independent rights in the form of prescription as claimed by them. In fact, the following dictum of Gratian, J. in Pathirana v. Jayasunder (1) at 177 became applicable. "In a rei vindicatio proper the owner of immovable property is entitled, on proof of his title, to a decree in his favour for the recovery, of the property and for the ejectment of the person in wrongful occupation. 'The plaintiff's ownership of the thing is of the very essence of the action'. Maasdorp's Institutes (7th ed.) vol 2, 96." In this connection it is useful to consider the submissions of the learned Counsel for the defendant-respondents at this stage. He has submitted as follows: (1) Unless paper title coupled with prescription was proved, the plaintiffs in this case could not have obtained a decree in their favour. (2) The evidence of the 1st plaintiff proved that she was not in possession of the premises in suit. (3) No obstruction to the construction of any fence had been proved there being no physical division between Lots A & B depicted in plan No. 1177 (P3). 152
- 180. (4) The defendant-respondentshad been in possession of Lots A & B (in plan P3) from 1947 and even after P1 was executed. (5) Boutique in Lot B had been given on rent to the 2nd plaintiff- appellant. (6) The land and premises in suit were part of Lot S in plan 932 (preliminary plan) submitted in DC Gampaha Case No. 16214/P. Each of the above submissions would now be examined. 1. Paper title plus prescription must have been proved Wille in his book "Principles of South African Law" (3rd edition) at page states as follows: "The absolute owner of a thing has the following rights in the thing: (1) to possess it; (2) to use and enjoy it; and (3) to destroy it; and (4) to alienate it." In discussing the right to possession, he states, also at page 190:
- 181. "The absolute ownerof a thing is entitled to claim the possession of it; or, if he has the possession he may retain it. If he is illegally deprived of his possession, he may by means of vindicatio or reclaim recover the possession from any person in whose possession the thing is found. In a vindicatory action the claimant need merely prove two facts, namely, that he is the owner of the thing and that the thing is in the possession of the defendant". Thus, in this action there was no question of the plaintiffs having to prove their title by deeds as well as prescription. The contest in 153 an action of this nature is between the right of dominium of the plaintiff and the declaration of adverse possession amounting to prescription by the defendant. The moment title to the corpus in dispute is proved the right to possess it is presumed, Thus, even if the Court found that the defendants had prescribed to the corpus the proper answer to the first issue would have been "Yes. But, the defendants have prescribed to the corpus". An averment of prescription by a plaintiff in a plaint after pleading paper title is employed only to buttress his paper title. Such pleading also acts as an advance assertion against any averment of prescription that may be claimed by the defendants. For the Court to have come to its decision as to whether the plaintiffs in this case had dominium over the corpus, the proving of paper title was sufficient. The mere fact that paper title was claimed both by deeds as well as by long possession amounting to prescription did not entail the plaintiffs to prove prescriptive title thereto. Their pos¬session was presumed on proving paper title. The burden was cast on the defendants to prove that by virtue of an adverse possession they had obtained a title adverse to and independent of the paper title of the plaintiffs. The averment of prescription in the plaint did not cast any burden upon the plaintiffs to prove a separate title by prescription in addition to the paper title as asserted by the learned Counsel for the defendant-respondent.
- 182. 2. Possession byplaintiffs The learned Counsel seems to confuse between possession and occupation - two important concepts in Land Law. It must be noted that the brother of the 1st plaintiff (1st defendant) could have been in occupation and still the 1st plaintiff could have been in possession simultaneously. A person is in possession of a house, for example, who in he or his servants or licensees are living in it. If he or they are absent from it, he would still be held to be in possession, if such absence was only temporary or if he could return and re-enter at any moment if he chose, without asking anyone's permission or without any preliminary ceremony. But, the moment anyone else enters into 154 and remains in possession of the premises without his consent the former possessor is ousted. According to section 3 of the Prescription Ordinance such a possession must be undisturbed, uninterrupted, adverse to or independent of that of the former possessor and should have lasted for at least 10 years before he could transform such possession into prescriptive title. In this instance the possession of Lot A by Simon was not of such nature. The 1st plaintiff stated at pages 114 and 115 of the Brief as follows: 155 The above said pieces of evidence prove that the defendants did not have exclusive possession of Lot A. The 1st plaintiff did possess Lot A and enjoyed produce from her land though she did not object to Simon, her brother, taking whatever he wanted. She had given an undivided share to her son the 2nd plaintiff and intended to give some shares to her other sons too. Thus, the relationship of parties as sister and younger
- 183. brother was veryrelevant in examining the nature of possession. There was no evidence placed before Court that the relationship between 1st plaintiff and 1st defendant was strained until 1984. At pages 158 and 159 the 1st defendant gave evidence as follows: 156 1st defendant admitted the smooth relationship between him and his sister though he sought to bring in the idea of renting out the premises to the 2nd plaintiff. No contemporaneous records pertaining to any payment of rents was produced. No letters or correspondence was produced. No questions were put to the 1st plaintiff when she gave evidence about her son occupying premises belonging to 1st defendant's daughter, the 2nd defendant, on rent. In any event the question of actual occupation by 1st plaintiff of the land and premises in suit was irrelevant so long as her possession of the land and premises in suit through her brother the 1st defendant was perceivable and presumable from the evidence. If suppose a third party was laying claim to the disputed land and the 1st defendant brother, had been in occupation, such occupation of the brother as against the third party would have been taken to be possession by the 1st plaintiff even though she may not have been in occupation. Thus, the occupation of the brother must be considered to have been the 1st plaintiff's possession uniess there was sufficient evidence of adverse possession by him. 3. No obstruction proved
- 184. The proof ofobstruction, again, is an incidental matter. It is the disputing of the paper title of the plaintiffs that is relevant for the first relief claimed - viz. declaration of title to Lot A above said. At pages 147/148 of the Brief the 1st defendant stated as follows: 157 But, the surveyor at pages 141 and 142 of the Brief stated as follows: The plan X filed of record also showed that there was no demar¬cating boundary and that it was shown by fixing stakes on the ground (vide pages 235 and 237 (line 7) of the Brief). Hence, it is to be understood that the 1st defendant was averse to the 1st plaintiff constructing any fence between Lots A & B since he was trying to lay claim to the entirety (Lots A & B) with his daughter. 4. Possession from 1947 by 1st defendant-respondent As stated earlier occupation from 1947 has no relevance. Possession and occupation must be distinguished. What is referred to as possession by the learned Counsel was in fact occupation by the 1st defendant. So long as such occupation was as a brother of the 1st plaintiff and therefore as a licensee of the 1st plaintiff, the long period of occupation would not make it an adverse possession unless there had been an overt act of ouster as in the case of prescription among co-owners. The long occupation by the brother must in law be deemed as possession by the sister through her younger brother. The
- 185. learned Judge alsoseems to have overlooked the difference between long occupation as a licensee and adverse possession. There was only a long period of occupation as a licensee in this instance. There was no adverse possession until 1As stated earlier occupation from 1947 has no relevance. Possession and occupation must be distinguished. What is referred to as possession by the learned Counsel was in fact occupation by the 1st defendant. So long as such occupation was as a brother of the 1st plaintiff and therefore as a licensee of the 1st plaintiff, the long period of occupation would not make it an adverse possession unless there had been an overt act of ouster as in the case of prescription among co-owners. The long occupation by the brother must in law be deemed as possession by the sister through her younger brother. The learned Judge also seems to have overlooked the difference between long occupation as a licensee and adverse possession. There was only a long period of occupation as a licensee in this instance. There was no adverse possession until 1984. Action itself was filed in 1984. 158 5. Boutique in Lot B As earlier referred to there is insufficient evidence of the boutique being given on rent to the 2nd plaintiff-appellant. No question regarding the boutique being given on rent was put to the 1st plaintiff when she related in her evidence about the existing state of affairs pertaining to cordial relationship between the families of the sister and the brother. The story about the boutique being given on rent to the 2nd plaintiff- appellant must have been an after thought to show that the occupation of Lot A by the 1st defendant was independent and that the 2nd plaintiff was only a licensee on Lot B. In any event the possession of the 1st defendant prior to 04. 08. 1966 was as a licensee of the previous owner, (vide page 193 of the Brief). 6. DC Gampaha Case No. 16214/p
- 186. The above saidpartition case was for an estate in extent 24 acres 1 rood 18.5 perches (vide plan 932 (V1)). Though P1 and P2 had been executed in 1966, yet Lot S encompassing the lands transferred on P1 and P2 to the 1 st plaintiff and the 2nd defendant, respectively, was also surveyed for this partition case without excluding it (Lot S). The plan only referred to the 8th defendant (Simon the 1st defendant in this case) being in occupation at the time of Survey. In fact, neither P1 nor P2 executed in 1966 was in his favour. There was no statement of claim filed by him. In any event for him to claim adverse possession against his sister, the plan V1 abovesaid was drawn up in 1972 while his sister obtained title on P1 in 1966. In this connection his evidence at pages 177 and 178 is revealing - 159 Hence, the 1st defendant's claim to the Surveyor was not as an owner in his own rights of Lots A and B in plan No. 1177, but as the caretaker of the Virasinghe family. The said action (case No. 16214/P) was not proceeded with, but was dismissed in 1973 (vide V3 at page 308 of the Brief). Thus, the legal arguments put forward by the learned Counsel for the defendant-respondents though accepted by the Additional District Judge, Gampaha, were in fact, erroneous and contrary to admitted legal principles pertaining to occupation, possession and dominium. The Additional District Judge had erroneously concluded that long possession automatically gives rise to prescription. This need not be so. We, therefore, allow the appeal. We set aside the judgment dated 24. 09. 1993 and enter judgment in favour of the plaintiff-appellants as prayed for in the plaint dated 10. 04. 1984. We direct the learned District
- 187. Judge of Gampahato take steps to ensure the demarcation of the southern boundary of Lot A in plan 1177 in terms of prayer (c) of the plaint. The damages claimed appear reasonable and therefore we have allowed prayer (d) together with taxed costs in both Courts (Original and Appellate). TILAKAWARDANE, J. - I agree. Appeal allowed. FERNANDO v. FERNANDO New Law Reports Volume 44, Page No 65 Co-owners- Purchaser of entire property from a Co-owner-Prescription- Ouster. View - Volume 44 New Law Reports 65 1942 Present: Wijeyewardene J. 108-C. R. Negombo, 44,783. Co-owners-Purchaser of entire property from a Co-owner- Prescription- Ouster. A purchaser of property from a co-owner, who purported to sell the entirety of the property, is bound to prove an ouster or to lead such evidence as would justify the Court in presuming that an ouster has taken place at least ten years before the institution of the action. APPEAL from a judgment of the Commissioner of Requests, Negombo. C. E. S. Perera (with him C. J. Ranatunge), for defendant, appellant.
- 188. L. A. Rajapakse(with him R. N. Ilangakoon), for plaintiff, respondent. Cur. adv. vult. 66 October 27, 1942. WIJEYEWARDENE J.- The plaintiff instituted this action to obtain a declaration of title to lots N and O of a field called Davatagaha Cumbura. The defendants admitted the title of the plaintiff to the entirety of lot O and two-eighth shares of lot N. They further pleaded that the second defendant was entitled to five-eighth shares of lot N and the added-defendant to the remaining one-eighth share of lot N. The following is a brief statement of the devolution of title on deeds to lots N and O as proved by the evidence in this case : - (a) By virtue of a partition decree entered in D. C. Negombo, 1,764, and by right of inheritance from their parents, eight persons, Allis, Noiya, Roido, Mendiris, Carolis, Suwaris, Mango and the added-defendant, became entitled to an undivided one-eighth share each of lot N. Noiya conveyed his one-eighth share to Carolis by deed D 5 of 1918, Mango her one-eighth share to the added-defendant by AD 1 of 1920, and Roido her one-eighth share to the second defendant by D 4 of 1920. Mendiris, Carolis and Suwaris and the added-defendant conveyed four-eighth shares to the second defendant by D 3 of 1921. The heirs of Allis conveyed their one-eighth share to Carolis by P 1 of April 7, 1926. Thus, in 1926, Carolis was entitled to two-eighth shares, the second defendant to five- eighth shares and the added-defendant to one-eighth share of lot N. (b) Allis and Carolis were each entitled to a half share of lot O. The heirs of Allis conveyed their half share of lot O to Carolis by P 1 of 1926, who thus became entitled to the entirety of lot O.
- 189. (c) By deedP 2 of February 4, 1935, Carolis purported to convey the entirety of lots N and O to Migoris, who by P 3 of March 2, 1940, conveyed them to Cornells, who in turn conveyed them to the plaintiff by P 4 of June 15, 1940. It is, therefore, clear that the plaintiff can claim only two- eighth shares of lot N and the entirety of lot O by virtue of deed P 4, as his predecessor in title, Carolis, was entitled to only those interests in 1926, though the deed P 3 executed by him in 1935 purported to convey the entire lots N and O. In order to substantiate his claim to the entirety of lot N, the plaintiff must prove that he acquired a prescriptive title against his co-owners, the second defendant and the added-defendant. The plaintiff relies, for this purpose, on a usufructuary mortgage bond P 6 of July 12, 1926, executed by Carolis in favour of one Sanchina in respect of the lots N and O and the oral evidence given by himself and the two witnesses, Sanchina and Davith Perera. Sanchina stated that lots N and O were cultivated for her by Migoris up to 1935, when the bond was discharged. Davith Perera corroborated Sanchina and added that from 1935 up to the date of the action neither Carolis nor the second defendant cultivated the field. The plaintiff, too, gave similar evidence. No explanation has however, been given for the failure of the plaintiff to call Migoris to prove 67 the possession from 1935 to 1940. On the other hand, Carolis, who was called as a witness by the defence, stated that the field was not cultivated by Migoris from 1935 to 1940. He explained that he mortgaged the whole of lot N as the second defendant, his son, was a minor at the time and could not join in the execution of the bond. Carolis gave his age as 50 years and the second defendant could not have been possibly more than 15 years old when the bond was executed in 1926. It may also be noted that, when Carolis sold the entirety of lots N and O by P 2 in 1935 to Migoris, he based his title to the property
- 190. on the deedP 1 and did not claim to have acquired title to any shares by prescriptive possession. The question now arises whether the plaintiff can be said to have established his title by prescriptive possession, even if all the evidence led by him in support of that plea is accepted. In Corea, v. Iseris Appu1[ (1911) 15 N. L. R . 65], the Privy Council stated the law with regard to prescription among co- owners in the following terms : - " His possession was in law the possession of his co-owners. It was not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or something equivalent to ouster could bring about that result." In that case, the defendant who attempted to set up a prescriptive title against his co-owners, had de facto possession of the whole estate for over 30 years. The trial Judge found that during that period " he had planted and leased and mortgaged and sold various lands and generally dealt with them as owner ". In spite of this and other findings of fact in favour of the defendant the Privy Council refused to uphold his claim to title by prescriptive possession. In Tillekeratne v. Bastion[(1918) 21 N. L. R. 12. ] this court upheld a claim to prescriptive possession by the defendants against a co-owner. In that case, the period of possession was more than forty years. Referring to the nature of the possession in that case, de Sampayo J said : " The land had no plantation worth considering; it was plumbago land and the defendants dug plumbago therein both by themselves and through lessees all throughout. While a co-owner may without any inference of acquiescence in an adverse claim allow such natural produce as the fruits of trees to be taken by the other co-owners, the aspect of things will not be the same in the case where valuable minerals are taken for a long series of
- 191. years without anydivision in kind or money. The effect of this becomes still more pronounced where the co-owner, being also a co-heir, has alienated his share to a stranger and the stranger too is kept out (for over 20 years) ". In that case a Divisional Bench of this Court expressed the view-" It is a question of fact, whenever long continued exclusive possession by one co-owner is proved to have existed, whether it is not just and reasonable in all the circumstances of the case that the parties should be treated as though it had been proved that separate and exclusive possession had become adverse at some date more than ten years before action was brought." A similar question arose in Brito v. Muthunayagam[(1918) 20 N. L. R. 38.]. In that case, which dealt with the rights of the children against their father, the Privy 68 Council held that as the children were co-owners with the father the possession of the entire property by the father was not adverse, although there were strained relations between the father and the children. In the course of his judgment, Lord Dunedin said, referring to Corea v. Iseris Appu (supra). " In that case, it was held by this Board that the possession of one co-parcener could not be held as adverse to the other co- parcener. Lord Macnaughton, who delivered the judgment, cited the dictum of Wood V.C., in Thomas v. Thomas1[ (1855) 2 K. J. 79.]: Possession is never considered adverse if it can be referred to lawful title." In Brito v. Muthunayagam (supra) it was found that the father had executed a mortgage in respect of the entire property many years before the institution of the action but that was not considered as furnishing evidence of an ouster. While approving the principle laid down in Tillekeratne v. Bastian (supra) this court refused in Hamidu Lebbe v. Ganitha[(1925) 27 N. L. R. 33.] to presume an ouster though in that case the defendant was found to have had possession for nearly 40
- 192. years. In Careemv. Ahamadu[(1923) 5 C. L. Rec. 170.] one Noorami Umma and her brothers and sisters were entitled to a land by inheritance. In 1889 Noorami Umma obtained a conveyance for the whole property from one of her brothers, who was entitled to only a share of the land.' Noorami Umma remained in the occupation of the house on the land from 1889, mortgaged the whole land in 1892, and executed a deed in respect of the entirety of the land in 1897. The defendant claimed the entirety of the property by right of purchase in 1920, in satisfaction of a mortgage executed by the children of Noorami Umma. The plaintiff, who was one of the brothers of Noorami Umma, disputed the title of the defendant shortly afterwards. This court held that the evidence of possession did not lead to the presumption of an ouster in the absence of evidence to' show that the co-owners of Noorami Umma had knowledge of the various transactions of Noorami Umma. In the present case, the judgment of the Commissioner of Requests is not very helpful on the question of prescription. He has upheld the plea of prescription on the ground that Carolis and the second defendant " do not derive title from the same source ". It is difficult to understand what the learned Judge meant by that statement as admittedly they derive title from Allis and others who were co-owners. The learned Counsel for the respondent was unable to throw any light on this observation of the Commissioner of Requests. The plaintiff does not purport to prove exclusive possession for more than 15 years before the institution of the action, and the evidence shows that during some part of that period the second defendant was a minor. To uphold the plea of prescription it is necessary to presume that Carolis began to possess adversely against his minor son from 1926, when he executed the mortgage bond. There is not even a suggestion of any ill-feeling between Carolis and the second defendant and added-defendant, the sister of Carolis. The deed P 2 executed by Carolis shows that when he transferred the land to Migoris he claimed title only on deed PI and, 69
- 193. did not asserttitle on any other ground. There is, moreover, nonviolence whatever to show that either the second defendant or the added-defendant was aware of the execution of the mortgage bond P 6. The plaintiff has failed to prove an ouster or to lead such evidence as to justify the Court in presuming that an ouster must have taken place at least ten years before the institution of the action. I set aside the judgment of the Commissioner of Requests and direct decree to be entered, declaring the plaintiff entitled to lot O and two-eighth shares of lot N. The plaintiff will be entitled to a writ of ejectment in respect of lot O, if the defendants are in possession of lot O. The plaintiff will pay the second defendant and the added-defendant the costs here and in the lower Court. Judgment varied.
- 194. MARIA PERERA v.ALBERT PERERA Partition Amicable partition Ouster Prescription Sri Lanka Law Reports 1983 - Volume 2 , Page No - 399 1983 - Volume 2 Sri Lanka Law Reports 399 COURT OF APPEAL B. E. DE SILVA. J. AND G. P. S. DE SILVA, J. C.A. (S.C.) NO. 426/75 (F) D.C. KALUTARA NO. L/ 1997 10, 11 OCTOBER 1983. Partition Amicable partition Ouster Prescription Held An amicable partition can be a starting point of prescription even though no deed of partition or cross deeds or other documents have been executed. But inclusive possession by a co owner for a period of 10 years alone cannot give rise to prescriptive title. There must be the further important element of all change of circumstances from which an inference could reasonably be drawn that such possession is adverse to and independent of "all other co owners. There must be proof of circumstances from which a reasonable inference could be drawn that such possession had become adverse at some date ten years before action was brought. Mere exclusive possession for 20 years (by taking the natural produce of the land) on a plan not signed by any of the co owners to whom the plaintiff claimed lots were allotted cannot constitute proof of ouster. The possession of a co owner would not become adverse to the rights of the other co owners until there is an act of ouster or something equivalent to ouster.
- 195. Cases referred to: 1.Ponnambalam v. Vaitialingam and another (1978 79) 2 Sri LR 166 2. Obeysekera v. Endoris and others 66 NLR 457 3. Simon Perera v. Jayatunga 71 NLR 338 4. Nonis v. Peththa 73 NLR 1 5. Ram Menika v. Ram Menika 2 SCC 153 6. Mensi Nona v. Nimalhamy 10 Ceylon Law Recorder 159 7. Abdul Majeed v. Ummu Zaneera 61 NLR 361 400 APPEAL from Judgment of the District Judge of Kalutara. D. R. P. Gunatilaka with R. S. Tillakaratne for defendant appellant. J. W Subasinghe, S. A. with Miss E M. S. Edirisinghe for plaintiff respondent. Cur. adv. vult
- 196. November 18, 1983 G.P. S. DE SILVA. J. The plaintiff brought this action against the defendant on 2nd May, 1972 for a declaration of title, damages and ejectment inn respect of the land described in Schedule B to the plaint. The title set out in the plaint was : (a) that on deed No. 55 of 1928, the person called Martin Munasinghe became entitled to an undivided 63/144 shares of the land called Hewawatta alias Mahawatte in extent Al. R2. P0, described in Schedule A: (b) that the said land was amicably partitioned between the four co owners in the year 1951 and the said Martin Munasinghe was allotted Lot D in plan 46, dated 12.4.51, and that he entered into possession of the said Lot D and possessed it from 1951 (vide paragraph 3 of the plaint) : the plan of partition was produced marked 'P 2' ; (c) Martin Munasinghe died intestate, leaving as his heirs, his widow Luvie Perera and four children who sold their rights on P 3, dated 27th February, 1961, to Millie Nona who thus became entitled to Lot D ; (d) that Millie Nona possessed Lot D and acquired a prescriptive title to it ; 401 (e) that Millie Nona by P4 of 23rd March, 1971, sold a portion of Lot D (shown as Lot A in plan P1 of 12th April, 1967) to the plaintiff.
- 197. After trial, theDistrict Judge entered judgment for the plaintiff and the defendant has now appealed. Mr. D. R. P. Gunatilake, Counsel for the defendant appellant, pointed out that in paragraph 3 of the amended Answer, the defendant has averred that : " the purported amicable partition mentioned in paragraph 3 is invalid and is ineffective in law as all co owners, including the plaintiff's predecessors in title, have not joined same and on the ground that no valid deed of partition has been executed. " Mr. Gunatilake submitted that the foundation of the title relied on by the plaintiff was the amicable partition of 1951 ; that in the absence of a deed of partition or of cross conveyances, the amicable partition did not confer title on Martin Munasinghe to Lot D in the plan P2, and therefore, the entire case for the plaintiff necessarily failed. Counsel's submission was that this being a rei vindicatio action, the burden is on the plaintiff to prove his title as set out in the plaint. On the other hand, Mr. Subasinghe, Counsel for the plaintiff respondent, whilst conceding that the execution of P2, the plan of partition, in 1951, did not terminate co ownership, strenuously contended firstly that the amicable partition of 1951 was the starting point of prescription amongst the co owners, and that the evidence led on behalf of the plaintiff was sufficient to establish title to Lot D shown in P2 by prescription. I am in entire agreement with Mr. Subasinghe's submission that an amicable partition amongst the co owners can be a starting point of prescription even though no deed of partition or cross deeds or other documents have been executed. However, it is to be noted that P2 has not been signed by any of 402
- 198. the co ownersto whom the plaintiff claims lots were allotted at the division in 1951. As observed by Ranasinghe, J., In Ponnambalam v. Vaitialingam and another (1): "The termination of common ownership without the express consent of all the co owners could take place where one or more parties either a complete stranger or even one who is in the pedigree claim that they have prescribed to either the entirety or a specific portion of the common land. Such a termination could take place only on the basis of unbroken and uninterrupted adverse possession by such claimant or claimants for at least a period of ten years ... Proof of such termination would be a question of fact depending on evidence, direct and or circumstantial. " The question that arises for decision in this case is whether, upon the evidence, it could be said that the plaintiff and his predecessors in title have acquired a prescriptive title to Lot D in plan P2. Mr. Subasinghe urged that upon the evidence of Millie Nona and specially Neris Perera called on behalf of the plaintiff, there was sufficient evidence to establish title by prescription. I have perused the evidence of Neris Perera in regard to possession, and his evidence, at most, would show that his father Michael Pereira, D. N. Perera, the deceased husband of the defendant, Martin Munasinghe, and Annie Nona who were allotted separate lots, possessed their lots separately. Millie Nona in her evidence, stated that she possessed the land after he purchase on P3 in February 1961. She further stated that Martin Munasinghe was in possession of Lot D and after his death, his widow and children possessed it. Thus, it is seen that the evidence accepted by the District Judge, establishes the fact of possession of the divided Lot D in P2 for a period of 20 years. Possession was by taking the natural produce of the land. The possession of a co owner would not become adverse to the rights of the other co owners until there is an act of ouster or something equivalent to
- 199. ouster. Ranasinghe, J.,in Ponnambalam v. Vaitialingam and another 403 (supra), after a very careful consideration of the authorities dealing with the question of prescription among co owners, expressed himself thus : "....... that the inference of ouster could only be drawn in favour of a co owner upon proof of circumstancesadditional to mere long possession: that proof of such additional circumstances has been regarded in our courts ,as a sine qua non where a co owner sought to invoke the presumption of ouster. " In my view, the evidence of possession relied on by plaintiff, does not show any circumstances from which the inference could be drawn that the separate possession of Lot D had become adverse at some point of time more than ten years before the institution of the action. On the other hand, there are circumstances which tend to indicate the contrary. It is of some significance that P3 of February 1961 upon which Millie Nona purchased the land, makes no reference whatever to the plan of partition P2. If, in fact, Lot D in P2 was possessed as a distinct and separate lot, it is strange that there was no reference to P2 in the deed P3. Moreover, there is the evidence of Millie Nona that after her purchase in 1961, the defendant claimed that she was entitled to 1/12 share of the land. Millie Nona's testimony is that, since the defendant was worrying her, she got surveyor U. M. de Silva to prepare the plan P1, dated 12.4.67, and gave the defendant 7.2 perches out of her land (Lot B in P1). This, in my view, is a circumstance that goes against the plaintiff's case, for it is a recognition of the defendant's claim to rights in the land in dispute.
- 200. Finally, I wishto refer to the cases relied on by Mr. Subasinghe. Mr. Subasinghe cited the case of Obeysekera v. Endoris and others (2). Ranasinghe, J., In Ponnambalam v. Vaitialingam (supra), referring to this case, stated: - "The additional circumstance that was required was supplied by the 1st defendant's prosecution of the 404 2nd defendant for destroying the barbed wire fence which had been erected to separate off the portion which was then being separately possessed by the 1st defendant. " Mr. Subasinghe next cited Simon Perera v. Jayatunga, (3). Here, too, there was an additional circumstance : "In the instant case, the learned District Judge has found that after Baby Nona purchased a share, there had been an amicable division among the co owners in pursuance of which Baby Nona possessed lot 3 in plan X filed of record as her exclusive property. She not only annexed this lot to the land on the East, which was her property, but also constructed a wall which is in the nature of a permanent structure to a length of 144ft. and possessed this portion exclusively ................ for a period of nearly 30 years. " (The emphasis is mine) Another case cited before us was the decision of the Privy Council in Nonis v. Peththa (4). In this case, the " informal partition " which involved an exchange of lands amongst the co owners was evidence by a document which had been signed by all three co owners. The judgment does not refer to the precise evidence relating to possession but the Privy Council observed:
- 201. It was clearfrom the evidence, that the document, so far from being intended to preserve the status quo, was drawn up as part of an arrangement which was meant to resolve certain difficulties betwen the co owners, by attributing to the 1st respondent on the one hand, and to Sekera and the 2nd respondent on the other, separate properties which thenceforth would be separately enjoyed. " Mr. Subasinghe also relied on the case of Ram Menika v. Ram Menika (5), and invited our attention to the following passage in the judgment: It need hardly be added that exclusive possession originally referable in the way just indicated to the consent of the Co 405 proprietors may sometimes by change of circumstances become a holding adverse to and independent of all co-owners such as may, by lapse of time, give rise to a prescriptive right. " This passage is not an authority for the proposition that exclusive possession by a co owner for a period of 10 years is alone sufficient to give rise to a prescriptive title. There must be the further important element of a " change of circumstances ", from which an inference could reasonably be drawn that such possession is " adverse to and independent of " all other co owners. Before I conclude, I wish to refer to the case of Mensi Nona v. Nimalhamy (6), which appears to contain dicta that tend to support the contention of the plaintiff respondent. But it is important to note that this was a case where there was clear and cogent evidence that the land " had been amicably partitioned between the then co owners as far back as 1895 ...
- 202. It has alsobeen clearly established by the evidence of the surveyor, Mr. Weeraratne, that in 1895, at the instance of the then co owners, he surveyed and blocked out the land and handed to each of the persons then in possession a plan of the block allotted in severalty to him. " (The emphasis is mine.) Thus, it is clear that the division took place with the knowledge of all the co owners and the possession of the separate lots thereafter was on a permanent basis, and not on grounds of convenience. In the appeal before us, however, there is no evidence as to the circumstances in which P2 came to be prepared. As stated earlier, it has not even been signed by any of the co owners and Noris Perera stated in cross examination, that he does not know upon which plan the amicable partition was effected. On a consideration of these cases, it seems to me that there is no departure from the principle that exclusive possession of a separate lot alone is not sufficient, and that there must be proof of circumstances from which a reasonable inference could be drawn that such possession had become adverse at some date ten years before action was brought a principle which was 406 emphasized in the judgments of K. D. de Silva, J. and H. N. G. Fernando, J. in the decision of the Divisional Bench in Abdul Majeed v. Ummu Zaneera (7). It is this essential requirement that the plaintiff has failed to prove in the instant case. For these reasons, I am of the opinion that the plaintiff has failed to establish title by prescription to the land in suit. The appeal is accordingly allowed, the judgment and decree of the District Court are set aside and the plaintiff's action is dismissed with costs. The defendant appellant is entitled to the costs of appeal.
- 203. B. E. DESILVA, J. I agree. Appeal allowed. BANDARA, Vs SINNAPPU 47 NLR 249 Where a Iand Panguwa consisted of gardens, deniyas and chenas and it was established that these deniyas were assweddumized by the various co-owners and possessed separately by them without interference by the other co-owners for a period of over twenty years- 1946 Present. Howard C.J. 171-C. B. Ratnapura, 1,244. Co. owners-Possession of specific portions of the common land by the various co-owners-Title by prescription. Where a Iand Panguwa consisted of gardens, deniyas and chenas and it was established that these deniyas were assweddumized by the various co-owners and possessed separately by them without interference by the other co- owners for a period of over twenty years- Held, that each co-owner acquired a title by prescription to the specific portion in his possession.
- 204. 250 APPEAL from ajudgment of the Commissioner of Requests of Ratnapura. H. V. Perera, K.C. (with him G. P. J. Kurukulasooriya), for the plaintiff appellant.-This is a case .where one co-owner merely cultivated a field and took the produce to the exclusion of the other co-owners. Nothing short of ouster or something equivalent to an ouster is sufficient for one co-owner to dispossess another. In Cadija Umma v. Don Manic Appu 1 the Privy Council held that one co-heir?s possession cures to the benefit of his co-heirs, unless ouster or something equivalent t an ouster is proved. This was followed in Umma Ham v. Koch2where it was held that mere possession and execution of deeds were not sufficient to constitute an ouster. See also Fernando v. Fernando and another3. It is a question of fact in each case, and the question whether from long continued, undisturbed and uninterrupted possession ouster may be presumed depends on all the circumstances of the case. In this case the respondent has only put the land to its natural use, and it should be distinguished from a case where the nature of the land is altered as for the digging of plumbago-See Sideris v. Simon 4. N. E. Weerasooria, K.C. (with him H. Deheragoda), for the defendants, respondents-In this case the respondents have assweddumized the land, and a case of assweddumizing should be distinguished from mere cultivation and the taking of natural produce; as assweddumization involves the conversion of high land into low land it should be analogous to the digging of plumbago. There is also evidence that the respondents were possessing this land in lieu of their undivided interests in other lands of the same ?ganpanguwa ?, and that other co-owners were similarly possessing other lands in lieu of their undivided shares. This type of possession is often attributable to an express or tacit division of family property among the heirs and is sufficient to
- 205. prove an ouster-Mailvaqanamv. Kandaiya 5. Whether this division is done by arrangement or not, under such circumstances one co-owner can prescribe against the other within a period of ten years-De Mel v. De Aiwis6 . Ouster can also be presumed where one co-owner enters a land and takes the profits exclusively and continuously for a very long period- Subramaniam v. Sivaraja 7. H. V. Perera, K.C., in reply.-An improving co-owner is entitled the the fruits of the improvements effected by him-Podi Sinno a. Aiwis8 . Hence plaintiff could not in law enjoy the fruits of the improvements made by the defendants. Cur. adv. vult. June 20, 1946. HOWARD CJ.- The appellant in this case appeals from a judgment of the Commissioner of Requests, Ratnapura, dismissing his action with costs. The appellant sought to be declared entitled to 1/24th share of a field called Wereney Cumbure Inhale Asseddumdeke which was described in the schedule to the Foot notes 1 (1938) 40 N. L. R. 392 apt. 396. 5 (1913) 1 C. W. R. 175. 2 (1946) 47 N. L. R. 107. 6 (1934) 13 C. L. Rec. 207 at 209. 3 (1944) 27 C. L. W. 71. 7 (1943) 46 N. L. R. 540 at p. 543. 4 (1945) 46 N. L. R. 273 at p. 275. 8 (1926) 23 N. L. R. 401. 251
- 206. plaint. The Commissionerheld that the plaintiff is entitled to 1/24th share of the lands specified in the plaint, but the defendants have acquired title to lot 1 by prescription. The evidence established that three brothers by name W. A. Viand, W. A. Madduappu, and W. A. Punchirala were entitled to a 4 share of the field in question. W. A. Vidane who was thus entitled to 1/6th died, leaving two children Naidehamy and Dingirihamy. Naidehamy?s 1/12th share devolved on his two children Dantahamy and Kaluhamy. Dantahamy?s 1/24th share devolved on his sole child Menikhamy who died leaving Siriwardenahamy who by deed No. 5550 of February 7, 1914 (P 1), sold this 1/24th share together with other lands to Punchimahatmaya. The latter sold this 1/24th share with other lands by deed 1171 of June 16, 1937 (P 2), to the plaintiff. The defendants traced their title to Kaluhamy who died leaving the first defendant? and three others. The first defendant maintained that in lieu of a part of his undivided interest in the Weerasinghe Aratchillage Gan Panguwa he entered into possession of Wereney Cumbure Deniya, which is lot 1, about 20 years ago, assweddumized it and has been in exclusive possession of it ever since. By deed No. 15124 of November 30, 1031 (B 1), the first defendant sold lot 1, known as Pambeyakumbura, act?s it was assweddumized, to his son-in- law and daughter, the second and third defendants, who have been in possession ever since. The plaintiff not only claimed the land in question by virtue of his paper title hut also maintained that he and his predecessors in title had been in possession of lot 1. This contention was rejected and in my opinion rightly rejected by the Commissioner. The latter has accepted the evidence of the first defendant that he entered into possession of lot 1 as co-owner of Weerasinghe Aratchillage Gan Panguwa, that he started assweddumizing it little by little without any interference by any other shareholders of the Gan Panguwa, that certain co-owners of chenas and fields of this Gan Panguwa had been ?in the habit of possessing certain lands exclusively in lieu of their shares in all the lands, that lot 1 was possessed by him in that manner, and that he has been in exclusive possession of this lot for over 20 years without any interference by any one else. There is no doubt ample evidence to support the Commissioner?s findings of fact in regard to the previous history of lot 1. Thus
- 207. Punchimahatmaya, the plaintiff?spredecessor in title, states on p. 15 as follows: - ?This panguwa is in extent about 300 acres. I am a Kandyan. If there are deniyas the various co-owners assweddumize them and possess separately. Similarly they possess chenas also. I do not know who assweddumized those lots but when I bought they wore fields. There were Val Vidanes at that time also. They used to make a list of the fields and the cultivator.? Again at pp. 13 and 14 Bandara, another of the plaintiff?s witnesses, states as follows: - ?Weerasinghe Aratchige Gan Panguwa consisted of gardens and deniyas and chenas, The whole panguwa is about 200 to 300 acres.? The first defendant on p. 17 states :- ?The land in dispute was a been. When I first entered it was overgrown with mamba and weraniya sticks. Because of the pamba jungle 252 it was called Pambagahakumbura. When the Land Commissioner came I gave Pambakumbura to this field. I entered this land about 40 years ago and started assweddumizing it. I have not completed assweddumizing it. There is about one lathe yet to be-assweddumized. For the last 40 years I am assweddumizing. After I started assweddumizing I did not allow any co-owners to possess it .- When that was put about 12 lahas had been assweddumized and after that I ass assweddumized the rest. My brothers have assweddumized. Dodampe Mudalihamy has assweddumized. His mother is Lokuetana, Lokuetana is Punchirala's daughter or Naidehamy?s daughter. She is not a descendant of Vidane, Madduma Appu or Punchirala. Mudalihamy has assweddumized Suduwelikandedeniya. He has also planted - acre of
- 208. Gonnamaladeniya pahalakella andadjoining these he has assweddumized 5 lahas. The two portions of high land and the field of Suduwelikandegodella is 14 acres high land and 3 pelas paddy. That Mudalihamy did not allow any other co-owner to possess.? and again at p. 18 ?It is not correct to say that I entered this land 20 years ago as stated in my answer. The other shareholders had other lands to assweddumize. I have assweddumized the entirety of this chena and deniya. There is one laha more to be assweddumized.? On pp. 22 and 23 Thomas Singho states as follows :- ?I know this land in dispute for the last 30 years. When I came to know it first this land was in deniya. This first defendant assweddumized this deniya. He may have taken 10 or 15 years to assweddumize the whole field. He used to assweddumize it year after year. No one else possessed this field for the last 30 years besides first defendant and his son-in-law. Plaintiff never possessed. In 1942 plaintiff claimed this field for the first time. This land belongs to Weerasinghe Aratchillage Panguwa. This panguwa may be about 100 acres both high ad low. There are other co-owners of this Panguwa. They assweddumize different portions and possess them. Wastuhamy is possessing ?Gode Deniye Kumbura? which he assweddumized. It is about 6 lahas in extent. Menikrala also has assweddumized in two places and he is possessing them. First defendant is possessing the land called Godadeniyewatta in its entirety. Appuhamy is possessing the land called ?Godedeniye Udahakella ?. The chenas are also worked by different co-owners in different blocks. I live within mile of this field in question. I have worked this field also for 2 years as cultivator under first defendant. These years first defendant took the landowner?s share.?
- 209. It has, therefore,been established that (a) the lot in dispute was part of a panguwa of 200 to 300 acres consisting of gardens, deniyas and chenas, (b) that these deniyas were assweddumized by the various co-owners and possessed separately by them without interference by the other co- owners for a period of over twenty tears. The question, therefore, arises as to whether this possession is sufficient in law to confer on the 2nd and 3rd defendants a title by prescription. Mr. Perera has contended that it 253 does not inasmuch as there has been no ouster and the possession of the defendants is that of their co-owners. In support of this contention Mr. Perera has relied on the cases of Ummu Ham v. Koch 1 , Sideris v. Simon 2,Fernando v. Fernando 3, and Cadija Umma v. Don Manis Appu 4 . All these cases followed the well known Privy Council case of Corea v. Appuhamy 5 . Mr. Perera, however, concedes that, on the principle established in Podi Sinno v. Alwis 6, the defendants as improving co-owners would he entitled in a partition action to the fruits of the improvements effected by them. In spite of Mr. Perera?s contention I am of opinion that it is impossible to distinguish the facts in this case from those in De Met v. De Alwis 7, the headnote of which is as follows :- ?Each of two co-owners of two contiguous lands was entitled to an undivided half share of the first land, and an undivided third the second. One of them allocated to himself the entirety of the first land and a portion of the second adjoining the first. The remaining portion of the second land passed into the exclusive possession of the other co-owner. The portions thus allocated were roughly the equivalents of their respective fractional interests in the two lands. Each of the areas thus separated was incorporated with certain interests of which each co-owner was sole owner. These consolidated areas were possessed as distinct and separate lands for well over ten years. In the action between the representative in interest of one co-owner and the successors in title, by purchase, of the other, the trial Judge rejected the plea of prescription on which the defendant relied. In appeal this judgment was reversed.
- 210. Held .- That,where co-owners enter into possession of a specific portion of a land and remain in exclusive and adverse possession thereof for a period of ten years, each co-owner acquires a title by prescription to the specific portion in his possession. The dictum of De Sampayo J. in Mailvaqanam v. Kandaiya 8 , is also very much in point so far as the facts of this case are concerned. This dictum is as follows ?The Commissioner has found that possession has all along been with the plaintiff and his predecessors in title and that Sabapathy from whom the 1st defendant derives title never had any possession, but lie has not given effect to that finding on the ground that there was no ouster of Sabapathy, who was a co-owner. It seems to me that the Commissioner has misunderstood the nature of ouster required for the purpose of prescription among co-owners and of the evidence necessary to prove such ouster. There is no physical disturbance of possession necessary-it is sufficient if one co-owner has to the knowledge of the others taken the land for himself and begun to possess it as his own exclusively. This sole possession is often attributable to an express or tacit division of family property among the heirs, and the adverse character of exclusive possession may be inferred from circumstances. 1 (1946) 41 N. L. R. 107. 5 (1912) A. C. 230. 2 (1945) 46 N. L. R. 213. 6 (1926) 28 N. L. R. 401. 3 (1944) 27 C. L. W. 71. 7 (1934) 13 C. L. R. 207.
- 211. 4 (1933) 40N. L. R. at p. 396. 8 (1915) 1 C. W. R. 175. 254 The judgment of Canekeratne J. in Subramaniam v. Sivaraja1,[1 (1945) 46 N. L,. R. 540] which deals with the circumstances in which an ouster may be presumed is another decision that supports the principle which Mr. Weerasooria contends is applicable to the facts of this case. For the reasons I have given I have come to the conclusion that the Commissioner came to the right decision and the appeal is dismissed with costs. Appeal dismissed.
- 212. P. P. G.SEDIRIS, vs M. S. ROSLIN In considering whether or not a presumption of ouster should be drawn by reason of long-continued possession alone of the property owned in common, it is relevant to consider the following, among other matters: (a) The income derived from the property. (b) The value of the property. (c) The relationship of the co-owners and where they reside in relation to the situation of the property. (d) Documents executed on the basis of exclusive owner ship. New Law Reports Volume 78, Page No 547 1977 Present : Ismail, J., Sharvananda, J., and Ratwatte, J. S.C. 213/72 (Inty)-D. C. Matara 3973/P Marriage-Presumption of marriage-Marriage by habit and repute-Rebuttal of presumption of marriage-Prescription among Co-owners. Where a man and a woman belonging to two different castes are proved to have lived together as man and wife for many years and where there is evidence that relatives and friends of the man had ostracized him from their society, Held, the association between the parties attracted the presumption of marriage which could be rebutted only by strong and cogent evidence. "The test is whether the conduct of the parties produced among their relatives and friends a general belief that they were really married. Ordinarily, in the case of parties of the same caste, their relations and friends acknowledge and recognize their marriage by visiting them and mixing with them in their social ceremonies. But, if a person marries outside his caste beneath his social status, his relatives and friends disapprove that marriage and manifest their disapproval by
- 213. ostracizing him fromtheir society. The recognition they give to such a marriage is in the shape of out casting him and boycotting him from their social functions. This negative conduct is exhibited only if the parties are married and not if they live in concubinage ". APPEAL from a judgment of the District Court, Matara. P. R. Wikremanayake, for the Plaintiff-Appellant. J. W. Subasinghe for the 3rd Defendant-Respondent. 1st and 2nd Defendant-Respondents absent and unrepresented. Cur. adv. vult. February 7, 1977. SHARVANANDA, J.- In this action, the plaintiff seeks to partition the land called Lot D of Belikatulande Dawaniyagahakoratuwa, which is depicted as Lot A in Plan 153 filed of record marked X. 548 It is common ground that one Siyadoris and Andiris Appu. were both declared entitled equally to this lot by final decree in partition action D. C, Matara 1438. By deed No. 6864 dated 24.6.35 marked 3D1, Siyadoris sold his rights to Pinonahamy, his sister-in-law, who, on deed No. 44595 dated 8.1.63. marked 3D2, sold her half share to Rosalin, the 1st defendant. According to the plaintiff, Andiris Appu, who was entitled to the balance half share, died leaving as heirs five children, three of whom died without marriage or issue, leaving the plaintiff and the 2nd defendant as the only heirs. As such, the plaintiff claimed one fourth and second defendant the other one fourth of the corpus. The 3rd defendant, in his answer, denied that the plaintiff and the 2nd defendant were entitled to any share on the plea that they were not the legitimate children of Andiris
- 214. Appu. According tothe 3rd defendant, Andiris Appu died unmarried and issueless and his rights devolved on his brother Carolis and the latter joined Siyadoris in the execution of deed No. 6864 of 1935 (3D1) and purporting to transfer the half share which originally belonged to Andiris Appu. The transferee Pinonahamy is a daughter of Carolis. According to the 3rd defendant, Pinonahamy. who was thus entitled to the entire lot on deed No- 6864 of 1935, by deed No. 1610 dated 12.1.63 (3D3), transferred to him the balance half share remaining after her disposition on deed No. 44595 (3D3). The 3rd defendant states that neither the plaintiff nor the 2nd defendant are entitled to any rights in the corpus. The crucial question in this case is whether Andiris Appu was married to Dingihamy, the mother of the plaintiff, and the second defendant or not. Andiris Appu died on 27.05.29; Dingihamy the mother of the plaintiff is also dead. According to the 1st and 3rd defendants, Dingihamy was only the mistress of Andiris Appu and not his wife. If Andiris Appu was not married to Dingihamy, then admittedly, no rights pass to the plaintiff or the 2nd defendant. But, if there was a valid marriage between Andiris Appu and Dingihamy, then the plaintiff and the 2nd defendant would be entitled to Andiris Appu's half share, and Carolis could not have any right to dispose that half share, and his purported transfer of Andiris Appu's half share on 3D1 is null and void. The evidence in this case shows that Andiris Appu was a man of the Durawa community while Dingihamy, the mother of the plaintiff and the 2nd defendant, was a woman of the Salagama community. The birth certificates P4 of 1907 and P5 of 1909 of the plaintiff and of the 2nd defendant, respectively, show that Andiris Appu was their father and Dingihamy their mother. Counsel for the 3rd defendant-respondent stressed the fact that 549 in the cage in P4 and P5 'Were the parents married?', both parents have given the answer 'No' and submitted that this
- 215. answer supported hiscontention that the parents were not married. Though this is a relevant circumstance, as stated in the case of Ladeu Adirishamy v. Peter Perera 38 C. L. W. 88, such declarations to a Registrar of Births might well amount, particularly in the case of ignorant villagers, to little more than an admission that the marriage of the parents was not registered and not necessarily to an admission that a marriage by custom had not taken place. The evidence in this case establishes that Andiris Appu and Dingihamy lived together as man and wife for very many years and that the relations of Andiris Appu disapproved of this association and outcast Andiris Appu from their society. The evidence of Pinonahamy is as follows : " I knew that Carolis had a brother called Andiris. I have seen Andiris. I do not know where he was living, but occasionally he used to come to our house. During my father's life-time, he used to come to our house. He comes only to meet my father. We did not go to their house. Nobody visited the uncle's house. Even during the lifetime of my father, there was no association with them. Andiris used to come occasionally to our house. " On the evidence led in this case, the trial Judge relevantly observes : " The evidence in this case shows that Andiris was a man of the Durawa community, while his wife Dadalage Dingihamy was a woman of the Salagama community. There is the evidence of Jansohamy that these two communities lived on either side of the bridge and they never intermarried. For the first time, Andiris Appu appeared to have broken this tradition and brought a woman from the Salagama community. As such, this was an intercommunity marriage. The burden is on the plaintiff to establish that the association between Andiris Appu and Dingihamy was of such a nature as to establish a marriage by habit and repute." Here co- habitation or living together does not constitute ' habit.' "The evidence of 'habit' must be supported by evidence of ' repute'. When both are established, they lead to the inference that the parties were lawfully married "-per Basnayake C. J. in Wijesinghe v. Kulawardene 60 N. L. R. 121 at 125. The test is whether the conduct of the parties produced among their relatives and friends a general belief that they were really - married. Ordinarily, in the case of parties of the same caste, their relations and friends acknowledge and recognize their marriage by visiting them and mixing with them in their social
- 216. ceremonies. But, ifa person marries outside his caste beneath his social status, his relatives and. friends disapprove that marriage and manifest their disapproval by ostracizing him from their society. The 'recognition' they give to such a marriage is in the shape of outcasting him and boycotting him from their social functions. This negative conduct is exhibited only if the parties are married and not if they live in concubinage. Had Andiris Appu kept Dingihamy, who was of an inferior caste, as a mistress only he would have been admitted in the society of his relatives and friends, though Dingihamy would have been kept out. But, if Andiris Appu had married Dingihamy, then of course he would have been ostracized by his relatives and friends. In this case, the evidence of Pinonahamy, a niece of Andiris Appu, is that Andiris Appu was never invited for any of the family functions or social occasions. This animosity of Andiris Appu's relatives and friends can be appreciated only in the context of an inter-caste marriage between Andiris Appu and Dingihamy. This circumstance tends to support the evidence of the plaintiff that his father's relatives and friends believed that Andiris Appu was married and demonstrated their recognition of the marriage by outcasting Andiris Appu from their society. From this conduct, it can be presumed that there was an inter-caste marriage. It was stated in Fernando v. Dabrera 65 N.L.R. 282 that evidence of marriage ceremonies or religious rights is not essential to establish marriage by habit and repute if both the parties to the marriage are dead and the marriage itself was contracted at a very early date. As was stated by the Privy Council in Valaider v. Vaigalie 2 N. L. R. 322 "Under the law of Ceylon, where a man and woman are proved to have lived together as man and wife, the law would presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage ". The evidence, for the purpose of resisting this presumption, must always be strong and cogent. In the present case, the learned District Judge has not acted on the aforesaid presumption but has cast a very heavy burden on the plaintiff to establish marriage between Andiris Appu and Dingihamy. The facts of this case attract the presumption of
- 217. marriage between AndirisAppu and Dingihamy and this presumption has not been rebutted by the 3rd defendant. In these circumstances, it has to be held that Andiris Appu was lawfully married to Dingihamy and that the plaintiff and the 2nd defendant are the legitimate children of Andiris Appu entitled to the half share of Lot A which was admittedly vested in Andiris Appu. Carolis had, therefore, no right to transfer Andiris Appu's half share to his daughter Pinonahamy on deed No. 6864 (3D1). On the transfer by Siyadoris of his half share, Pinonahamy became a co-owner of the land along with the plaintiff and the 2nd defendant. The trial Judge has, on the question of prescription, held that the 1st and 3rd defendants and their predecessors-in-title have prescribed to the entire land and that in any event Andiris Appu's heirs, who are the plaintiff and the 2nd defendant, have lost their rights, if any, in the corpus. Because Pinonahamy and her successors were admittedly in possession of the land from 1935, the trial" Judge has concluded that they have prescribed to the land. Influenced by his earlier finding that Andiris Appu died unmarried and issueless and that the plaintiff and the 2nd defendant were not co-owners, he was predisposed to hold with the 1st and 3rd defendants on the question of prescription. He might not have reached that result had he borne in mind that the plaintiff and the 2nd defendant were co- owners of the land with Pinonahamy and that the possession of the land by Pinonahamy was, in law, possession by the other co-owners. The possession of one co-owner does not become adverse possession for the purpose of acquisition of title by the other co-owner by prescription, unless ouster, or something equivalent to ouster, had taken place. As was stated by de Silva J. in Abdul Majeed v. Ummu Zaneera, 61, N.L.R. 361 at 372. " In considering whether or not a presumption of ouster should be drawn by reason of long-continued possession alone of the property owned in common, it is relevant to consider the following, among other matters: (a) The income derived from the property.
- 218. (b) The valueof the property. (c) The relationship of the co-owners and where they reside in relation to the situation of the property. (d) Documents executed on the basis of exclusive owner ship. If the income that the property yields is considerable and the whole of it is appropriated by one co-owner during a long period, it is a circumstance which, when taken in, conjunction with other matters, would weigh heavily in favour of adverse possession on the part of that co-owner. The value of the property is also relevant in considering this question although it is not so important as the income. If the co-owners are not related to one another and they reside within equal proximity to the property, it is more likely than not that such possession is adverse and it would be particularly so if the property is valuable or the income from it is considerable. If the co-owners are also co heirs, the position would be otherwise." On an application of this test to the facts of this case, a presumption of ouster cannot be drawn by reason of long- continued possession alone by Pinonahamy from 1955 onwards. In his report XI dated 26.10.64, the Surveyor has stated that the land contains a few houses and a few coconut trees and that the land is in extent 14.6 perches of the value of Rs. 365 only, The houses consist of building NO. 1 in Plan X described as part of a house under construction which commenced in 1963 only. This incomplete building is claimed by the 1st defendant who acquired 552 interest in this, land on deed No. 44595 dated 8.1.63 (3D2). The other buildings on the land are a tomb, a part of a foundation for a house claimed by the 3rd defendant valued at
- 219. Rs. 150, anda temporary shed also claimed by the 3rd defendant valued at Rs. 30. The plantation on the land consists of nine coconut trees, 50 years old, valued at Rs. 135, and five ' Billing' trees. Thus, it would appear that the income derived from the property is meagre and that the total value of the property is only. Rs. 1,445. According to Pinonahamy. the predecessor-in-title of the 1st . and 3rd defendants, she never recognized the plaintiff and the 2nd defendant as her relatives. Yet, as the" plaintiff and the 2nd defendant were residing miles away from the land, even if the plaintiff's evidence that they were given certain sums of money, such as Rs. 5, or Rs. 10, or Rs. 15 once in 4 or 5 months' time by Pinonahamy is not accepted, as the property was not valuable and the income from it small, the possession of Pinonahamy cannot be regarded as adverse to that of the plaintiff and the 2nd defendant. Further, Pinonahamy executed the transfers 3D2 and 3D3 in favour of the 1st and 3rd defendants, respectively, only in 1963. Thus, in the circumstances of this case, though Pinonahamy had, according to her evidence, been in exclusive possession of the land after the conveyance 3D1 in her favour in 1935, a presumption of ouster in her favour cannot be drawn. The deed No. 6864 of 1935 (3D1), though couched as a deed of sale, appears to be a deed of gift. Further, the transferee Pinonahamy must have been aware when she obtained the conveyance that Andiris Appu's heirs were, in fact entitled to the half share conveyed to her by Carolis.-Kanapathipillai v. Meera Saibo, 58 N.L.R. 41. The learned District Judge was in error in holding that the 1st and 3rd defendants had prescribed to the land. For the reasons set out above, the conclusions of the District Judge cannot be sustained and his judgment has to be set aside. On the evidence led in this case, 1 hold that the plaintiff and the 2nd defendant are each entitled to a one-fourth share and the 1st defendant to a half share of the land as pleaded by the plaintiff. The 3rd defendant is not entitled to any share or' rights in the land.
- 220. The appeal isallowed and judgment of the lower Court dismissing the plaintiff's action is set aside and the case is sent back for further proceedings in the District Court with the direction that interlocutory decree be' entered on the basis of the title pleaded by the plaintiff. The 3rd defendant-respondent shall pay the plaintiff the costs of contest and of this appeal. ISMAIL, J,-I agree. RATWATTE J.-I agree. Appeal allowed. Sri Lanka Law Reports 1997 - Volume 2 , Page No - 356
- 221. MARIA FERNANDO ANDANOTHER v. ANTHONY FERNANDO Sri Lanka Law Reports 356 COURT OF APPEAL. WIGNESWARAN, J., C.A. NO. 700/85(F). D.C. NEGOMBO NO. 1666/P. OCTOBER 21, 1997. Partition - Prescriptive possession between co-owners. Long possession, payment of rates and taxes, enjoyment of produce, filing suit without making the adverse party, a party, preparing plan and building house on land and renting it are
- 222. not enough toestablish prescription among co-owners in the absence of an overt act of ouster. A secret intention to prescribe may not amount to ouster. APPEAL from the District Court of Negombo. Cases referred to: 1. Ponnampalam v. Vaithialingam and Another [1978-79] Sri. L.R. 166. 2. Tillekeratne et. al. v. Bastian et. al. - 21 NLR 12. 3. Sideris et. al. v. Simon et. al. -46 NLR 273. 4. Don James Walpita v. Athukoralage Dharmasena Bar Association Law Journal 1984 - Vol. I Part 4, P9 145. 5. Corea v. Appuhamy-15 NLR 65. 357 6. Abdul Majeed v. Ummu Zaneera et. al. - 61 NLR 361. 7. Hussaima (wife of Yoosuf Jallaldeen) and Other v. Ummu Zaneera (alias Shamsunnahar) 65 NLR 125. 8. Wickremaratne and Others v. Alpenis Perera [1986]1 Sri. L.R. 190. 9. Brito v. Muttunayagam 20 NLR 327.
- 223. 10. I. L.M. Cadija Umma and Others v. S. Don Manis Appu and Others 40 NLR 392. 11. Cooray v Perera - 45 NLR 455. 12. Fernando v. Fernando- 44 NLR 65. 13. Girigoris Appuhamy v. Maria Nona - 60 NLR 330. 14. Danton Obeysekere v. W. Endoris and Others- 66 NLR 457. 15. Fernando v. Fernando 27 CLW 71. 16. Siyadoris v. Simon - 30 CLW 50. 17. Hevawitharane v. Dangan Rubber Co. Ltd., 17 NLR 49. 18. Rockland Distilleries v Azeez 52 NLR 490. 19. Dias Abeysinghe v Dias Abeysinghe - 34 CLW 69. J. W., Subasinghe, P.C. with J. A. J. Udawatte for defendant- appellants. P. A. D. Samarasekera, P.C. with R. Y. D. Jayasekera for plaintiff-respondents. Cur adv. vult.
- 224. February 07, 1997 WIGNESWARAN,J. There is no dispute in this partition case with regard to pedigree nor identity of the corpus. The plaintiff and the deceased 1st defendant were cousins. The 2nd defendant was the wife of the deceased 1st defendant. The corpus belonged to a common ancestor Warnakulasuriya Dominicco Fernando who donated the said corpus in extent 1 Rood 4 Perches with the buildings standing thereon by Deed No. 1042 dated 24.06.1919 (P1) to his daughters Anna Maria and Phelornena. Anna Maria with her husband Romel Fernando transferred her half share to her son Cyril and daughter-in-law Maria the deceased the 1st and the 2nd defendant-appellants respectively above named in equal shares by deed No. 1636 dated 24.10.1958 (D1). The deed referred to her 358 half share of the soil and plantations and the entirety of the house bearing Asst. No. 74/1, Lewis Place. The above said Phelomena by deed No. 1390 dated 10.02.1969 transferred her half share to her son Antony Wilfred the plaintiff respondent above named (P2). This deed referred to half share of the buildings and plantations bearing Assessment. No. 74/1. In this partition case No. 1666/P thus brought between the plaintiff respondent and the 1st and 2nd defendant- respondents the District Judge of Negombo by his judgment dated 03.04.1985 allotted undivided 1/2 share of the land to the plaintiff-respondent, undivided 1/4th to the 1st defendant- appellant and the balance undivided 1/4th share to 2nd
- 225. defendant-appellant. The buildingsand plantations on the land were allotted in terms of "X1". That is, two houses and well marked 1, 2 and 3 together with four 15 years old coconut trees, one mango tree about 15 years' old, three young coconut palms were all claimed by the 1st defendant and they were allotted to him. It is against this judgment dated 03.04.85 this appeal was preferred. It was the contention of the 1st and 2nd defendants that they had prescribed to the entire land and premises. In support of this contention the following matters were placed before Court by the learned President's Counsel appearing for the 1st and 2nd defendant appellants: (i) Since 1919 (when P1 was executed) it was Anna Maria and her family who resided on the land, first in a cad Jan thatched house which came down in 1948 and then rebuilt, and later in a tiled house built around 1954. Another house too was built thereafter. Phelomena left in 1942 and never came back. (ii)D4 showed that Municipal rates and taxes were paid from 1941 up to 1979 by Anna Maria. Her name alone was registered as owner. (iii) Plaintiff did not have possession of the land at any time. Even on the basis of the evidence led on behalf of the plaintiff no nuts were plucked nor any produce taken from the land at least for 13 years from 1966 to 1979. Defendants have always acted as sole owners. 359 (iv) The defendants filed case No. 610/1- in the District Court of Negombo on 11.07.1963 for a right of foot path of necessity
- 226. for the landin question against 3rd parties qua owners. They never recognised any others as co-owners. Phelomena was then alive but was not made a party. (v) The defendants made a plan for their land qua owners on 21.07.1967 (Plan No. 565 - D2). According to the superimposition report D3, Plan 565 and preliminary plan X refer to the same land. (vi) A new house was constructed in or around 1976 without any claim or objections being made by the plaintiff. It was given on rent by the defendants without any protest from Phelomena (who died only in 1979) nor the plaintiff. Their silence was an acknowledgment of the sole ownership of the property by the 1st and 2nd defendants. (vii) The reference to undivided shares by Anna Maria in D1 was the outcome of the Notary following the earlier title deed by which Anna Maria and Phelomena were given undivided half shares. This did not reflect the position in reality and therefore could not militate against- the position taken up by the defendants. Ponnampalam u Vaithialingam and Another.(1) (viii) W. Hubert Fernando who had known the land for over 50 years giving evidence on behalf of the plaintiff had stated that though nuts were earlier plucked from the coconut trees on the land and divided among co-owners the plaintiff does not pluck any now since there are no bearing trees. He further stated that nuts were plucked by Phelomena and Wilfred only in earlier days. Therefore it is to be presumed that the plaintiff did not have possession at any time. The learned President's Counsel on behalf of the defendant- appellants therefore argued that all these facts should have been taken together and the learned District Judge should have concluded that there was adverse possession by the 1st and
- 227. 2nd defendants whichgave them prescriptive title to the entire land. The following cases were mentioned: Tillekeratne et. al. v. Bastian et. al.,(2) Sideris et. al. v. Simon et. al. ,(3) Don James Walpita v. Athukoralage Dharmasena.(4) 360 Learned President's Counsel on behalf of the plaintiff- respondent on the other hand contended that the facts enumerated did not prove adverse possession among co- owners since there was no proof of ouster. He supported the decision of the learned District Judge. He referred to the following references: (1) Corea v. Appuhamy.(5) (2) Abdul Majeed v. Ummu Zaneera et. alas(6) (3) Hussaima (wife of Yoosuf Jallaldeen and Others v Ummu Zaneera (alias Shamsunnahar).(7) (4) Wickremaratne and Others v. Alpenis Perera.(8) He also pointed out that D4 which was an extract from the assessment register was not a document of title. He pointed out further that D1 referred to half share of the soil and plantations and entirety of the house thereon. All these matters would now be examined. The documentary evidence shows that Maria and Phelomena were co-owners. In Corea v. Appuhamy (supra) the principle
- 228. was formulated thatthe possession of one co-owner could not be held as adverse to that of the other co-owner. In spite of over 30 years' continued possession the defendant's title by prescription was not held in that case. The settled law presently in Sri Lanka is that the possession of one co-owner is in law the possession of all the co-owners. Every co-owner is thus presumed to be possessing the property in his capacity as a co-owner. It is not possible for one co-owner to put an end to such possession by any secret intention in his mind. If is only "ouster" or something equivalent to "ouster" which could bring about that result. Brito v. Muttunayagam,(9) l. L. M. Cadija Umma and Others v. S. Don Manis Appu and Others, (10) Cooray v. Perera,(11) Fernando v. Fernando,(12)Girigoris Appuhamy v. Maria Nona,(13) Danton Obeysekere v. W. Endoris and Others,(14) Fernando v. Fernando,(15)Sideris v Simon (supra), Wickremaratne and Others v Alpenis Perera (supra). The question therefore arises in this case whether long possession by the 1st and 2nd dependants amounted to ouster. Whether ouster may be presumed from long, continued, undisturbed, and uninterrupted possession depends on all the circumstances in each case. (vide Siyadoris v. Simon).(16) 361 Justice G. P. S. de Silva (as he then was) in Wickremaratne v. Alpenis Perera (supra) looked in that case for an overt act on the part of the person claiming prescription which could have brought to the notice of the other co-owners that such a person was denying the other co-owners' rights to the corpus. Thus an overt act is considered necessary to prove ouster since any secret intention to prescribe may not amount to ouster. The acts on the part of the 1st and 2nd defendants referred to by the learned President's Counsel for the defendant-appellants to prove adverse possession are:
- 229. (i) Long possession. (ii)Payment of rates and taxes. (iii) Enjoyment of produce though not really admitted by the plaintiff-respondent. (iv) Case No. 618/L was filed by the 1st and 2nd defendant- appellants qua owners without making the plaintiff-respondent a party. (v) A plan (D2) was prepared for the entire land by the defendant-appellants qua owners. (vi) New house built on the land and given on rent without any objection being raised by the plaintiff-respondent. None of these acts seem to connote an outward, overt act which informed the plaintiff-respondent that the 1st and 2nd defendant-appellants were bent on adversely possessing the land and premises. (i) Long possession The long continued undisturbed and uninterrupted possession by a co-owner has been held to be insufficient to counter the presumption of one co-owner possessing for the benefit of all other co-owners. It was held in Fernando v. Fernando (supra) that apart from such long possession to prove prescription it was necessary to lead evidence that the co-owners who were not in possession had knowledge of the dealings of the person in possession. Let us examine such dealings in this case. 362
- 230. (ii) Payment ofrates and taxes The payment of rates and taxes by a co-owner in possession is not an act unexpected from a co-owner. It must be remembered that Maria's name continued in the assessment register even after the execution of D1 in 1958 until 1976. The plaintiff-respondent had therefore no reason to change his aunt's name in the assessment register. In any event the registration of a person's name in the assessment register does not make that person an owner of the premises. D4, it must be remembered was not a document of title. It merely contained the name of the person given to the local authority at a particular point of time (in 1941) carried over in the assessment register for several years (until 1981) even after she divested of her ownership to the 1st and 2nd defendant- appellants. (iii) Enjoyment of produce There is a difference in evidence with regard to the enjoyment of the produce by parties in this case. Even if one co-owner continued to enjoy the produce at the expense of another co- owner that by itself does not prove adverse possession unless for example one co-owner claimed the produce and the person in possession refused to give any part of the produce and claimed total ownership. There is no such evidence in this case. (iv) Case No. 610/1 The plaintiff-respondent stated in evidence that his mother Phelomena did not become a party to the "right of way case" (No. 610/1-) since at the time of the institution of the said action she had got a stroke and was paralysed. This position was supported by witness Hubert Fernando. It was said that when she recovered she attended Court in connection with the
- 231. case. In anyevent a co-owner can institute an action against a third party who interferes with the lawful user of the coowner's rights in a co-owned and (Vide Hevawitharane v. Dangan Rubber Co. Ltd.,(17) and Rockland Distilleries v Azeez.(18)) Therefore the 1st and 2nd defendants filing Case No. 610/1- in 1963 without making Phelomena a party does not amount to an overt act capable of conveying the message to 363 Phelomena that those in possession were desirous of asserting title to her half share. (v) & (vi) Preparing Plan D2 and building new house The same observation could be made with regard to the preparation of a plan for the entire land and also building a house and giving it on rent. These are acts co-owners do resort to and at a partition case these matters are resolved by either allowing the house built by one co-owner being allotted to that same co-owner or others paying owelty or compensation and taking over such houses. In Dias Abeysinghe v Dias Abeysinghe,(19) it was held that erection of a new building on the common land and exclusive possession thereof for over 10 years did not give rise to a prescriptive title to the building and the soil on which it stood as against the other co-owners. Thus none of these acts contain an overt act of refusal to recognise the title in the plaintiff-respondent and his predecessor in title. Even if all these acts are taken together as items of adverse possession as stated by Mr. Subasinghe they are off-set by the recognition of Phelomena's title by Maria in 1958 (D1) when her deed referred to "half share of the soil and plantations and the entirety of the house bearing Asst No. 74/1, Lewis Place". These were not words used -by the Notary arbitrarily merely following earlier deed No. 1042 (P1). The Notary could not have referred to the entirety of the house as
- 232. opposed to halfshare of the soil and plantations unless he was so instructed to prepare the deed. Therefore the reference to half share of the soil and plantation was a deliberate reference which showed the intention of Maria to recognise Phelomena's ownership of half share. Under these circumstances the decision in Ponnambalam v. Vaithialingam and Another (supra) has no relevance to the facts of this case. W. Hubert Fernando's evidence cannot be said to have helped the defendant-appellant's case as asserted by her learned President's Counsel. The evidence of W. Hubert Fernando at page 92 of the brief is as follows: 364 The fact that old coconut trees had come down and new ones were still not bearing cannot be a ground to show either that the plaintiff had given up his claim to co-ownership or that the defendants had asserted their right to the plaintiff's half share. It appears that while Cyril was prepared to purchase the plaintiff's share recognising the plaintiff's rights, Maria the wife was trying to claim title to the plaintiff's share. Such secret intentions of greed or desire in one's mind cannot put an end to the title of another co-owner. That is why "an ouster or something equivalent to an ouster" has been recognised by law as being necessary to make long, continued, uninterrupted and undisturbed possession by a co-owner turn adverse. This Court therefore sees no reason to interfere with the judgment of the learned District Judge dated 03.04.85. The
- 233. appeal is dismissedwith taxed costs payable by the appellants to the respondent. Appeal dismissed. ANGELA FERNANDO VS. DEVADEEPTHI FERNANDO Partition Law, No. 21 of 1977, sections 2(1) and 25(1) -If land is not commonly owned is investigation of title necessary? - Ouster - Possession becoming adverse - Long continued possession by a co - owner? - Counter presumption of ouster. 2006 - Volume 2 , Page No - 188 Sri Lanka Law Reports SUPREME COURT. BANDARANAYAKE, J. WEERASURIYA. J. FERNANDO, J. SC 48/2003. CA 98/94 (F). DC MT. LAVINIA 1236/P. DECEMBER 02, 2004. MARCH 02, 2005. SEPTEMBER 21, 2005.
- 234. Partition Law, No.21 of 1977, sections 2(1) and 25(1) -If land is not commonly owned is investigation of title necessary? - Ouster - Possession becoming adverse - Long continued possession by a co - owner? - Counter presumption of ouster. Plaintiff's action to partition the corpus was dismissed as the parties who were said to be entitled to rights in the corpus in fact had separately possessed with clear and permanent boundaries the Lots depicted in the preliminary plan for a long period of time. The Court of Appeal reversed the judgment on the grounds- (a) that the District Court has failed to investigate title. (b) that the parties had failed to prove ouster to claim prescription. HELD: (1) It is imperative that the investigation of title must be proceeded by a careful examination of the preliminary issue, whether the land sought to be partitioned is commonly owned as required under5ection2 (1). The District Judge having carefully examined the question had correctly held that the land was dividedly possessed as from 1938 and proceeded to dismiss the action without resorting to a full and exhaustive investigation as to the rights of the parties which in the circumstances was lawful and justified. Held further: (2) Adverse possession as between co-owners may arise by absolute exclusion of one of the co-owners or by conversion of undivided shares into divided shares in an informal manner. (3) Ouster does not necessarily involve the actual application of force. The presumption of ouster is drawn in certain circumstances where exclusive possession has been so long continued that it is not reasonable to call upon the party who relies on it to adduce evidence that at a specific point of time in the distant part there was in fact a denial of the rights of the other co-owners. Per Weerasuriya, J. "The decision in Tilakaratne vs. Bastian recognizes an exception to the general rule and permits adversity of possession to be presumed in the presence of special
- 235. circumstances additional tothe fact of undisturbed and uninterrupted possession for the requisite period". (4) The presumption that possession is never considered adverse if it can be referable to a lawful title may sometimes be displaced by the counter presumption of ouster in appropriate circumstances. (5) The Court of Appeal failed to appreciate the salient feature in the evidence adverted to by the District Judge in respect of the corpus and their relevancy on the question of ouster. APPEAL from the judgment of the Court of Appeal. Cases referred to :- 1. Corea vs. Iseris Appuhamy - 1911 15 NLR 65 (PC) 2. Tilakaratne VS.Bastian - 21 NLR 12 3. Orderis VS.Mendis- 1910 13 NLR at 315,316 4. William Singho VS.Ran Naide 1915 1 CWR 92 5. Mailvaganam VS.Kandiah 1915 1 CWR 175 6. ASP VS.Cassim 1914 2 Bal Notes 40 7. Kapuruhami VS.Appu Singho 3 NLR 144 8. Ran Menike VS.Ran Manike 2 SCC 153 9. Selenchi Appuhamy VS.Luvinia 9 NLR 59 10. Obeysekera VS.Endoris 66 NLR 457 11. Simon Perera vs. Jayatunga 71 NLR 338 12. Nonis VS.Peththa 73 NLR 1 13. Abdul Majeed VS.Umma Zaneera 61 NLR 361 at 374 Rohan Sahabandu for substituted 10A defendant respondent - appellant. N. B. D. S Wijesekara for substituted plaintiff appellant - respondent. Cur. adv. vult. May 04, 2006. WEERASURIYA,J.
- 236. The (deceased) plaintiffby his amended plaint dated 28.03.1988sought to partition the land called Lot E of Badullagahawatta alias Kahatagahawatta situated at Karagampitiya within the Dehiwala-Mount Lavinia Municipal Council limits, in Palle Pattu of Salpiti Korale of the Colombo District in the Western Province and depicted as a divided lot in plan No. 191 dated 20.12.1905 made by Licensed Surveyor H. G. Dias, containing in extent 1. Acre and 36 perches less 23.73 perches to the North. The trial in this case which commenced before the District Court of MountLavinia on 15.09.1992wasconcludedon30.11.1993andthe learned District Judge by his judgment dated 11.02.1994 dismissed the action with costs. Thereafter the substituted plaintiff appealed from the aforesaid judgment to the Court of Appeal and this appeal was taken up for hearing on 19.08.2002. On08.11.2002 the Court of Appeal delivered the judgment allowing the appeal and directed that a fresh trial be held. The substituted 10A Defendant-Respondent-Appellant sought special leave to appeal from the aforesaid judgment of the Court of Appeal and this Court granted special leave to appeal on the following questions of law: (i) Did the Court of Appeal err in holding that the District Court has not investigated title? (ii) Did the Court of Appeal err in holding that the defendants had not proved ouster? (iii) Did the Court of Appeal misinterpret section 25(1) of the Partition Law when in fact on a question of fact the District Court had held that the plaintiff has not proved his title or that the property is co owned? (iv) Did the Court of Appeal err in law in ordering a trial de novo and also permitting the plaintiff to institute a fresh action which is contradictory? (v) Did the Court of Appeal err in coming to the conclusion that the District Court erred in law and in fact? (vi) Is the judgment of the Court of Appeal valid and legal?
- 237. (vii) In thecircumstances of this case is the judgment of the District Court lawful, valid and according to law? (viii) Could the Court of Appeal interfere with the judgment of the District Court which was based on a question of fact when the judgment is not perverse? (ix) As the partition action has been instituted in 1981, is it just and reasonable to order a retrial after 21yearswhen most of the parties and witnesses are dead and gone and further as it is admitted that the contesting defendants have been in possession/occupation for over 50 years now? Learned District Judge had dismissed the action on two grounds namely that the corpus was not commonly owned and that the parties had acquired prescriptive rights to the lots they possess. The Court of Appeal has reversed the judgment of the District Court on the following grounds:- (1) that the District Court had failed to investigate the title of the parties and (2) that the parties had failed to prove ouster to claim prescription. Therefore this appeal raises the question of prescription among co-owners which had received careful and exhaustive consideration both by the Supreme Court and the Privy Council in previous cases. Investigation of Title (Question No.1) Section 25(1) of the Partition law provides that "On the date fixed for the trial of a partition action or on any other date to which the trial may be postponed, or adjourned, the Court shall examine the title of each party and shall hear and receive evidence in support thereof and shall try and determine all questions of law and fact arising in that action in regard to the right, share or interest of each party of, or in the land to which that action relates, and shall consider and decide which of the orders mentioned in sub section 26 should be made". In terms of this section, it is obligatory on the District Court to carefully investigate title of all the parties in the action at the trial and decide on their rights. The binding and conclusive
- 238. character of apartition decree makes it imperative that the investigation of the title by Court must be full and exhaustive. It will not be possible for a plaintiff to prove his title by the mere production of several deeds and to merely rely on the shares which the deeds purport to convey. It is significant that there must be clear proof as to how the executants of a deed was entitled to the share which the deed purports to convey. It is not uncommon in this country for a deed of conveyance to purport to convey interests either more or less than what the vendor is entitled to. Learned District Judge in the course of his judgment had made specific reference to the inconclusive and uncertain nature of the evidence of the 16th defendant who chose to testify on behalf of the plaintiff in respect of the pedigree pleaded by him. It was revealed that the 16thdefendantin the course of his evidence had adverted to the disposing of the rights of some persons twice without realizing that with the first transaction all their rights would have been exhausted. In certain instances he had failed to state as to how some persons were entitled to the shares which they purport to claim. It was conceded that the 16th defendant had no claim to soil rights but was pursuing a claim for a roadway over Lot 9 in the preliminary plan. On a careful examination of the totality of his evidence learned District Judge was justified in stating that his evidence was inconclusive and devoid of certainty and clarity in regard to the question of devolution of title. The inability of the 16th defendant to give conclusive evidence on the pedigree pleaded by the plaintiff stems mainly from the fact that he was an outsider insofar as the pedigree pleaded by the plaintiff is concerned. His evidence which consisted mainly of bare assertions as to the relationship and other matters of pedigree, reflected his lack of personal knowledge in respect of such matters. It is a prerequisite to every partition action that the land sought to be partitioned must be held in common as seen from the provisions of section 2(1) of the Partition Law. What is understood as common ownership is where persons do not hold on separate and distinct titles or where land is not held as separate and divided lots. When land is not held in common
- 239. but exclusively bya party even though under prescriptive title, no action can be maintained to partition such land. It is imperative that the investigation of title must be preceded by a careful examination of the preliminary issue whether the land sought to be partitioned is commonly owned as required by section 2 (1) of the Partition Law. Learned District Judge having carefully examined this question had correctly held that the land was dividedly possessed as from 1938 and proceeded to dismiss the action without resorting to a full and exhaustive investigation as to the rights of the parties, which in the circumstances was lawful and justified. Ouster and the Judgments of the District Court and the Court of Appeal (Questions (ii), (iii), (v), (vi), (vii) and (viii)) The general principle recognized by our law in respect of co- owners is that the possession of one co-owner is in law the possession of other co owners as well. In Corea vs. Iseris Appuhaml(1) - the Privy Council laid down (a) that every co-owner is presumed to be possessing in the capacity of a co owner (b) that it was not possible for a co- owner to put an end to such possession by a secret intention in his mind and (c) that nothing short of an ouster or something equivalent to ouster could bring about that result. Thereafter in 1918 a F~I Bench of the Supreme Court in the case of Tillekaratne vs Bastian - was called upon to apply the principles laid down in Corea Vs Iseris Appuhamy (supra) and to consider the meaning and the application of the English law principle of presumption of ouster, and it was held (a) that it is open to the court from lapse of time in conjunction with the circumstances of the case to presume that a possession originally that of a co-owner has since become adverse and (b) that it is a question of fact whenever long continued exclusive possession by one co-owner" is proved to have existed, whether it is not just and reasonable in all the circumstances of the case that the parties should be treated as though it had been proved that separate and exclusive possession had become adverse at some date more than ten years before the institution of the action.
- 240. On the factsof Tillekaratne vs. Bastian (supra) the Court was able to distinguish the decision in Corea vs. Iseris Appuhamy (supra) and to hold that the co-owner in physical control of the land had 'ousted' the other co-owners by a series of overt unequivocal acts. At page 21 of the judgment Bertram C. J. observed that "where it is found that presumption of law leads to an artificial result it will generally be found that law itself provides for such a situation by means of counter presumption" In these circumstances the presumption in regard to the continuity of common possession may be effectually negative by a counter presumption of ouster. In Corea vs. Iseris Appuhamy (supra) the Privy Council made reference to this principle but did not declare that it must be considered as being applicable in Sri Lanka as a corollary of the general principle as to continuity of common possession of the undivided property by co-owners. Nevertheless a principle analogous and in distinguish able from the doctrine relating to ouster was explicitly recognized by Middleton J in Odiris vs. Mendis(3- at 315 and 316 even before the decision in Corea vs. Iseris Appuhamy (supra) and thereafter it was consistently applied in a series ?J judgments of the Supreme court (Vide William Singho vs. Ran Naide) ) Mailvaganam vs. Kandiya (5- A. S. P. vs. Cassim.(6) In certain circumstances adverse possession as between co- owners may arise either by absolute exclusion of one of the co- owners or by conversion of undivided shares into divided shares in an informal manner. This approach had been adopted in the case of Kapuruhami vs. Appusinno - which was decided in 1898. In that case Bonser C. J. observed that where co-owners had verbally agreed among themselves to hold the common property in divided shares, each co-owner may prescribe in respect of his own divided share and that such possession will give him an absolute title against the other co-owners to the divided shares held separately by him. In Ran Menika vs. Ran Menika(B) - the Supreme Court reiterated the general rule that the possession of a co-owner is not adverse but a common concurrent possession in that the
- 241. original title beingthe same, the possession of one is the possession of all. However, it was pointed out in the judgment that exclusive possession referable to the consent of the co- owners may sometimes by change of circumstances become a holding adverse to and independent of other co-owners and such a holding may by lapse of time give rise to a prescriptive right. Selenchi Appuhamy vs. LuviniEi9) - was a similar case where it was held that the partition suit was not maintainable since there was no common possession between the two co- owners, each party having acquired a prescriptive right to a divided portion of the land. In all the cases referred to in this page, it was apparent that Court considered the attendant circumstances would warrant an inference to be drawn as to ouster. It is a common occurrence that co-owners possess specific portions of land in lieu of their undivided extents in a larger corpus. This type of possession attributable to an express or classic division of family property among the heirs is sufficient to prove an ouster provided that the division is regarded as binding by all the co-owners and not looked upon solely as an arrangement of convenienc11Jhis position was accepteR1j'lnd acted upon in Mailvaganam vs. Kandiaya - Obeysek[rfp vs. Endoris - Simon Perera vs. Jayatunga(12) - and Nonis VS.Peththa . Ouster does not necessarily involve the actual application of force. The presumption of ouster is drawn in certain circumstances when exclusive possession has been so long continued that it is not reasonable to call upon the party who relies on it to adduce evidence that at a specific point of time in the distant past there was in fact a denial of the rights of the other co-owners. It has to be reiterated that the decision in Tillakeratne VS. Bastian (supra) recognizes an exception to the general rule and permits adversity of possession to be presumed in the presence of special circumstances additional to the fact of undisturbed and uninterrupted possession for the requisite period. The presumption that possession is never considered adverse if it can be referable to a lawful title may sometimes be displaced by the counter presumption of ouster in
- 242. appropriate circumstances. Neverthelessthis counter presumption should not be invoked lightly." It should be applied if, and only if, the long continued possession by a co- owner and his predecessors in interest cannot be explained by any reasonable explanation other than that at some point of time in the distant past the possession became adverse) to the rights of the co-owners". (vide Abdul Majeed VS.UmmuZaneera - at 374. Having regard to the principles set out above I shall now proceed to consider, the findings by the trial judge that the corpus sought to be partitioned was dividedly possessed for a long period of time and therefore it had ceased to be owned in common and that the parties had prescribed to the lots they possess before the plaintiff instituted this action. The trial Judge had found that the parties who are said to be entitled to rights in the corpus in fact had separately possessed with clear and permanent boundaries the lots depicted in the preliminary plan for a long period of time. He had observed further that the land sought to be partitioned and depicted in preliminary plan (X) at a glance seems to be the land shown in plan No. 2153 made by A. M. Fernando, Licensed Surveyor on 23.08.1938. This observation by the learned Trial Judge has some significance on this question despite the discrepancy in respect of the extent by nearly 27 perches. It will be relevant to note that the extent of land described as an allotment of land called Badullagahawatta in Fiscal conveyance bearing No. 19755 dated 26.04.1944 is a divided portion towards the West of the larger land called Badullagahawatta which was in extent 2 Acres 3 Roods and 27 Perches. This Fiscal conveyance had been executed on 26.04.1944 in favour of Carolis Fernando after his purchase of the land at the public sale held by the Fiscal in execution of the writ issued by the District Court of Colombo in Case No. L293 against Seemon Peiris, :PiyaseeliPeiris and Karunapali Peiris in place of the deceased plaintiff Rosalin Fernando in the above case. It is noteworthy that the operative plan for the Fiscal conveyance was Plan No. 625 dated 11.02.1944 made by Licensed Surveyor R. S. Dissanayake. Nevertheless the Fiscal
- 243. had chosen todescribe it in accordance with the earlier plan made in 1938 for purposes of correct description of the land. The deceased plaintiff too had described this land in the schedule to the plaint as a divided lot towards the West of the larger land called Badullagahawatta and shown as lot E in the plan bearing No. 191 made by Licensed Surveyor H. G. Dias dated 20.12.1905. On the above material it is clear that Carolis Fernando by Fiscal conveyance (P8)had secured title to a divided portion towards the West of the land called Badullagahawatta in extent 1 Acre 9.87 perches and depicted in Plan No. 625 (P8X) as Lots A, B, and C. Therefore as from 1938 this land was considered a divided and distinct land separated off from the larger land as evident from the Fiscal conveyance. The division of the larger land prior to the execution of the writ in case No. L 293 as evident from the plan No. 2153 made in the year 1938 and the subsequent survey of the land just prior to the execution of the Fiscal Conveyance on 26.04.1944 for the operative plan 625, would be a clear indication to all the co-owners that the undivided shares of Rosalin Fernando had undergone a change to become divided shares before the execution of the Fiscal Conveyance. The evidence of the contesting defendants in this case were to the effect that this land ceased to be commonly owned with the purchase of the interests of Rosalin Fernando by Carolis Fernando on account of the execution of the writ against her by order of the District Court of Colombo. As discussed in the earlier paragraph the presumption of ouster of the co-owners in respect of this corpus could be drawn by the additional factor which had taken effect with the seizure and execution of the writ after ascertaining the rights of Rosalin Fernando in lieu of her undivided rights. The 16th defendant in his testimony before the District Court did not allege that plans bearing Nos. 2153 made in 1938 and 625 made in 1944 referred to in the Fiscal Conveyance had been made and the divisions had been effected without the knowledge and acquiescence of other co-owners. It is to be noted that Carol is Fernando thereafter by deed marked (P9) dealt with property as a divided portion solely owned by him
- 244. and that subsequentlythis land had undergone further sub- divisions at the instance of the parties. In the light of the above material, I hold that the learned District Judge had correctly arrive data finding that the corpus had ceased to be commonly owned before the plaintiff instituted this action. The Court of Appeal had failed to appreciate the salient features in the evidence adverted to by the District Judge in respect of the corpus and their relevancy on the question of ouster. Questions Nos. (iv) and (ix) In view of the conclusions drawn in the foregoing paragraphs in respect of the issues involved in questions (i), (ii), (iii), (v), (vi), (vii) and (viii) it would be futile to discuss matters pertaining to these two questions. For the aforesaid reasons, I set aside the judgment of the Court of Appeal dated 08.11.2002and allow this appeal. Having considered all the circumstances of this case, I make no order as to costs. SHIRANIBANDARANAYAKE,J. -I agree. RAJA FERNANDO,J. -I agree. Appeal allowed. LESLIN JAYASINGHE VS ILLANGARATNE - Sri Lanka Law Reports - 2006 - Volume 2 , Page No – 39 Partition Action-Evidence Ordinance, section 103-Burden of proof- Prescription 'Ordinance, No. 22 of 1871-section 3-Symbolic Possession-section 31, section 33,-Notaries Ordinance-t: Due Execution?-Notaries failure to observe his duties with regard to formalities 7- Registration of Documents Ordinance section 7-Prior Registration-Can it be raised in appeal 7- Mixed question of law and fact 7 - Co-ownersRights7-ouster vital.
- 245. COURT OF APPEAL.EKANAYAKEJ. W. L. R SILVAJ. CA 895/97 (F). DC KURUNEGALA5185/P. JULY 19,2005. OCTOBER 18, 2005. DECEMBER 1, 2005. Partition Action-Evidence Ordinance, section 103-Burden of proof-Prescription 'Ordinance, No. 22 of 1871-section 3- Symbolic Possession-section 31, section 33,-Notaries Ordinance-t: Due Execution?-Notaries failure to observe his duties with regard to formalities 7- Registration of Documents Ordinance section 7-Prior Registration-Can it be raised in appeal 7- Mixed question of law and fact 7 - Co-ownersRights7- ouster vital. The plaintiff-respondent sought to partition the land in question, and did not give any shares to the 6th defendant- appellant. The 6th defendant-appellant claimed the entirety on a different chain of title. The Trial Judge held with the plaintiff- respondent, and gave the 6th defendant-appellant only a building and rejected his deed 6V6. on Appeal - HELD: (1) The onus was on the appellant to prove his pedigree- section 103 Evidence Ordinance, but he had failed to summon any of his predecessors in title or produce any deed or document. (2) Notary's failure to observe his duties with regard to formalities which are not essential to due execution so far as the parties are concemed does not vitiate a deed. (3) The various facts and factors that persuaded the trial Judge not to place any reliance on Deed BV6 are sound. (4) Whether a particular deed is earlier in time and gets priority over another, deed by prior registration under section 7 of the Registration of Documents Ordinance is a mixed question of fact and law-and cannot be raised for the first time in appeal.
- 246. (5) It isonly a pure question of law that can be raised in appeal for the first time, but if it is a mixed question of fact and law it cannot be done. Per Ranjith Silva J. "As the appellant raised issues based on the provisions of section 7- Registration of Documents Ordinance consequent upon such issues the question whether in spite of the fiscal conveyance the judgment debtor continued his possession and thus prescribed to the land would have been an inevitable issue. . . . ." (6) Even assuming that 6V6 was a valid deed and that it gets priority over the plaintiff's deeds still that will only make the appellant a co-owner. (7) A co-owners possession in law is the possession of other co-owners nothing short of ouster or something equivalent to ouster is necessary to make possession adverse to end co-ownership. APPEAL from the judgment of the District Court of Kurunegala. Cases referred to : 1. Weeraratne vs. Ranmenika-21NLR 287 2. Hemathilake VS.Allina - 2003 1 Sri LR 144 at 151 3. Wijeratne VS.Somawathie - 2002 1 Sri LR 93 at 98 4. Seetha VS.Weerakone - 49 NLR 225 5. Jayawardana VS.Silva 76 NLR 427 6. LeachmanCompany Ltd., VS.Rangfalli Consolidated Ltd.- 1981 2 Sri LR 37 7. Candappa VS.Ponnambalampillai - 13 NLR 326 8. Muthu Caruppaen VS.Rankira - 13 NLR 326 9. Jane Nona VS.Gunewardene - 49 NLR 522 10. Emanis VS.Sudappu - 2 NLR 261 11. Siman Appu VS.Christian Appu - 1 NLR 288 12. Emanis VS.Sadappu2 NLR 261
- 247. 13. Alwis VS.Perera-21NL~ 321 14. Maria Fernando VS.Anthony Fernando - 1997 2 Sri LR 15. Seetiya VS.Ukku-1986 1 Sri LR 225 16. Thilakaratne VS.Bastian - 21 NLR 12 17. Ameresekera VS.Ranmenike- 3 NLR 137 N. R. M. Daluwatte, PC, with Gamini Silva for 6th defendant- appellant Simal Rajapakse for plaintiff-respondent. cur.adv. vult. May 26, 2006. RANJITH SILVA, J. The Plaintiff-Respondent who shall hereinafter be referred to as the Respondent filed plaint dated 11.11.1973bearing number 5185-P in the District Court of Kurunegala seeking inter alia a partition of the land called Thalagahayaya Modarawatte alias Arnbalanpitiye Watte (which shall here in after be referred to as the Land) containing in extent Acres O. Roods 2. Perches21 depicted in planmarked"x". The report to the plan is marked as"X1". The respondent pleaded title from Perris Perera and Soyza Hamine who according to the Respondent and the 1st -5th Defendant-Respondents were the original owners of the Land. It was the case for the Respondent that according to the chain of title and the series of deeds as mentioned in the Plaint title to the land devolved on the Respondent and the 1-5th Defendant-Respondents who became entitled to undivided shares of the Land as pleaded in the Plaint and the statements of 1-5 Defendant- Respondents. At the trial in the District Court of Kurunegala the 6th Defendant who shall hereinafter be referred to as "the Appellant" claimed the entirety of the Land on a different chain of title. He pleaded inter alia that Charles Pereraand Edward Abeyrathna were the original owners of the Land and that on a decree entered against the said Edward Abeyratne in case No. 14131 a fiscal sale took place on 07.03.1930 consequent to which the fiscal conveyance marked as 6v4 was granted in favour of one Karuppana Chettiar who by deed No. 3742 of
- 248. 23.12.1939 (marked 6v5)transferred the same to Natchiappa Chettiar who died leaving his son Sangrapille who transferred the Land by Deed No. 6984 of 13.08.1968 (marked as 6v6), to the Appellant and the Appellant thus became-entitled to the entire land which is depicted in the plan marked "X". According to section 103 of the Evidence Ordinance which reads as follows ;- ''The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person". The onus was on the Appellant to prove his pedigree. But the Appellant failed to summon any of his predecessors in title or produce any document or any other proof in order to prove that Sangarapille was indeed a son of Natchiappa Chettiar. What's more the wife of the Appellant has candidly admitted that she did not know and was not aware as to where Sangarapille or Natchiappa Chettiar was residing. At page 342 of the typed brief she has mentioned that Sangarapille was the adopted son of Natchiappa Chettiar although it is mistakenly recorded in the proceedings that the Appellant was adopted by Nachiappa Chettiar. It should, read as Sangarapille was adopted by Natchiappa Chettiar. To read otherwise will be meaningless in the context. None of the parties disputed the identity of the corpus. The identity of the subject matter was never in issue. The appellant claimed title to the land on the strength of the deed marked 6v6. In addition to that the .Appellant claimed prescriptive rights to the entire land and the buildings including the building markea (~) in plan X, as. well. After trial the learned District Judge rejected the Appellant's claim based on 6v6 stating that he would not place any reliance on deed 6v6, that he was not prepared to act on 6v6, that no title passed to the Appellant on 6v6 and rejected the claim of prescriptive rights put forward by the
- 249. Appellant holding thatthe Appellant had only succeeded in proving that he has prescribed to the building marked (~) shown in Plan X. Aggrieved by the said judgment of the learned District Judge of Kurunegala dated 22.10.1997 the Appellant has preferred this appeal to this Court praying inter alia for reversal of the judgment for the reasons set out in the Petition of Appeal and the oral and written submissions tendered on his behalf. On a perusal of the pleadings and the judgment of the learned District Judge it appears to this court that this court is called upon to answer two issues namely- (1) Whether deed 6D4 gets priority over deed P2 and thus 6D6 on which the Appellant claims title gets priority by registration over deed P2, according to section 7 of the Registration of Documents Ordinance. (2) Whether the learned District Judge was wrong in rejecting the claim of the Appellant that the Appellant acquired prescriptive title to the entire land by prescriptive possession based on section 3 of the Prescription Ordinance No. 22 of 1871 as amended thereafter. The Appellant, citing Weerarathna vs Ranmenika (1)where it was held I quote" . . . It is well settled that a notary's failure to observe his-duties with regard to formalities which are not essential to due execution so far 2- CM 8091 as the parties are concerned, does not vitiate a deed. For instance, the absence of the attestation clause does not render a deed invalid. If the absence of an attestation clause does not render a deed invalid, similarly think the failure on the part of the notary to have a deed executed in duplicate does not affect its operation as a deed". Argued, that by the same token, any
- 250. other error orslipperiness as observed by the learned District Judge in the instant case couldn't invalidate a deed. The same argument was cited with approval by Somawansa, J., in Hemathilake Allina (2)at 151 where Somawansa, J. observed "In any event if in fact the notary has failed to comply with any provision in section 31 of the Notary's Ordinance it's well settled law that the validity of the deed is not thereby affected in view of section 33of the Notary's Ordinance. The Appellant has also cited Wijeratne vs. Somawathie (3)where it was held by Udalagama, J. I quote" It is my view that the essential elements of due execution is to comply with the provisions of section 2 of the Prevention of Frauds Ordinance. There is no evidence that section 2 has been violated and that section enacts that it shall be - (1) in writing (2) signed by the Party making the same (3) in the presence of a Licensed Notary Public (4) and two or more witnesses (5) present at the same time and (6) the deed is duly attested by the Notary and the witnesses." Therefore it was argued on behalf of the Appellant that 6V6 showed that all those requirements have been complied with and that there was no vitiating fact or factor in respect of deed 6v6. The Appellant further contended that the learned District Judges's finding to the effect that the 6th Defendant (Appellant) had not proved that he obtained rights under the said deed 6vI .was erroneous as the learned District Judge arrived at that finding mainly influenced by the following facts :- (1) By considering the discrepancies between the evidence of the witnesses and the contents of the attestation clause in 6V6. (2) The attestation clause does not reveal that the two attesting witnesses either knew or did not know the executants ? (3) The evidence of the Appellants as to the mode of payment of the consideration was contradictory to what is stated by the Notary in the attestation clause to the deed, namely that the
- 251. 6th Defendant statedin his evidence that he paid Rs. 500 by cheque and the balance in ten 100rupee notes whereas according to the attestation clause it is stated that Rs. 250 was paid in cash, Rs. 500 by cheque and Rs. 750 on a promissory note. Although I agree with the law cited I find that the contentions of the Appellant on the facts are not sound. The question of due execution was not the only issue even though it is inextricably mixed with the other facts. The Appellant has failed or deliberately refrained from stating in his submissions the other various facts or factors that persuaded the learned District Judge not to place any reliance on 6v6. Some of them amongst others are: (1) The fact that 6v6 was executed in a hurry on 13.08.1968long after the dispute arose between the parties and that too was after the dispute was referred to the Conciliation Board. The instant case was instituted 01)11.11.1973. (2) The fact that there is no proof to say that Sangarapille was the son of Natchiappa Chettiar although it's so stated in 6v6. Even the Notary has not mentioned that the executant was known to him. (3) The fact that the deed 6v6 does not state that Sangarapille or any of his predecessors were in possession of the Land at any time. (4) That the evidence of the Appellant or his witnesses did not disclose that Sangarapille or any of his predecessors in title was in possession of the Land at any time. (5) The fact that the evidence given on behalf of the Appellant disclosed that the Appellant had together with Paul is Perera the husband of the 7th Defendant constructed a boutique on this Land. (6) The fact that by 1953 long before the execution of 6v6, the Appellant was in possession of the boutique marked (~) in plan X and had received a part of the rent paid in respect of the same having leased out the same to one Jayathissa (Vide 6v1) even prior to the execution of 6v6.
- 252. (7) The factthat although the Appellant was in possession of building (~) long before the execution of 6v6 he failed or refrained from indicating to court on what right he happened to come into possession of the said building as his initial possession of this building was certainly not on the strength of 6v6 since that deed was not even in existence when he first came into possession/ occupation of the boutique marked (~). (8) The fact that there were suspicious circumstances surrounding the hurried execution of 6v6 which appeared to the learned District Judge as a self serving deed. In all the circumstances adumbrated above it's my considered view that the learned District Judge cannot be faulted for deciding not to place any reliance on 6v6. Whether 6D4 which is earlier in time and one of the deeds in the chain of title through which the Appellant is said to have acquired title which is claimed to be a preclude to 6D6 gets priority over P2 by prior registration under section 7 of the Registration of Documents Ordinance is a mixed question of law and fact and is raised for the first time in this court by the Appellant. Section 7(1) of the Registration of Documents Ordinance reads thus "An instrument executed or made on or after the 1st day of January, 1864 whether before or after the commencement of this Ordinance shall, unless it is duly registered under this chapter or, if the Land has come within the operation of the Land Registration Ordinance. . . be void as against all parties claiming an adverse interest there to on valuable consideration by virtue of any subsequent instrument which is duly registered under this chapter, if the land has come within the operation. . . ." 7(2} "But fraud or collusion in obtaining such subsequent instrument or in securing the prior registration thereof shall defeat the priority of the person claiming there under." 7(3}. . . . 7(4} Registration of an instrument under this chapter shall not cure any defect in the instrument or confer upon it any effect or validity which would not otherwise have except the priority conferred on it by this section.
- 253. The learned DistrictJudge in deciding this case had no occasion to try any issue based on section 7 and the subsections as the parties did not plead or raise a single issue on the subject of prior registration. I find that a substantial part of the written submissions of the Appellant has been devoted to the issue of 'prior registration'. This is not a subject the parties have contemplated, pleaded or put in issue at the trial in the District Court. It's now too late in the day for the Appellant to raise such issues for the 1st time in appeal, having failed to agitate the same in the District Court, as it is not a pure question of law that could be agitated for the 1st time in appeal. In Seetha vs Weerakoon(4)it was held that a new point which was not raised in the issues or in the course of the trial cannot be raised for the first time in appeal, unless such point might have been raised at the trial under one of the issues framed, and the Court of Appeal has before it all the requisite material for deciding the point or the question is one of law and nothing more. In Jayawickrema vs Silva (5)it was held that a pure question of law can be raised in appeal for the first time, but if it's a mixed question of fact and law it cannot be done. In Leachmen Company Ltd vs Rangfalle Consolidated Ltd(6)it was held that a pure question of law which does not require the ascertainment of new facts can be raised for the first time in appeal. In Candappa vs Ponnambalampilla(7), it was held that a party cannot be permitted to present in appeal a case different from that presented in the trial court where matters of fact involved which were not in issue at the trial, such case not being one which raises a pure question of law. The question of prior registration of 6v4 over P2 (P2 is one of the deeds that links the chain of the devolution of title of the Respondent) is a question of mixed fact and law. If the parties had raised an issue on prior registration inevitably the District Court would have gone in to or would have been compelled to
- 254. go in tothe following several connected issues among others such as, (a) Whether the deeds P2 and 6D4 emanate from the same source. (b) Whether 6D4 was executed for valuable consideration. (c) Whether 6D4 was registered in the correct folio. Whether 6D4 was executed fraudulently or with collusion etc. . . None of these issues were raised at the trial. On the other hand whether the judgment debtor, against whom it is alleged that a decree was entered in case No. 14131 and thereafter the fiscal conveyance NO.10892 dated 31.05.1934 (6V4) was granted in favour of Karuppan Chettiar, continued to remain in possession of the Land in spite of the fact that a fiscal conveyance was executed depriving him of his Land, is also a question of fact that would have been raised as a consequential issue if the above mentioned issues were raised by the Appellant. Assuming without conceding that the Chettiyars owned the subject matter on the strength of V3-V5 the evidence disclosed that they only had paper title and no physical possession even for a day. The Appellant has not led any evidence to give the slightest indication let alone proof that his predecessors had even a day's possession of the Land. 6V6 was executed in 1968. The relevant fiscal conveyance 6V4 was executed on 31.05.1934. From 1934 up to 1968 the Respondents their predecessors and even the Appellant were in possession of this Land. The possession of this land by the appellant during this period was not on title based on 6V6. The Respondents and their predecessors possessed this Land and are in possession of this Land in their rights. What matters is that the Respondents are in possession of the Land to date in their own rights irrespective of the fact whether at a given point of time one of the predecessors in title who had an undivided share of the Land lost his rights to his undivided share of the land or not.
- 255. It was heldin Muttu Caruppen vs. Rankira (8)where the question arose as to whether a judgment debtor who has been in possession of the Land for more than 10 years after fiscal's sale can claim prescriptive title. Hutchinson C. J. decided that there is nothing in sections 289 and 291 of the Civil Procedure Code which debars a judgment-debtor from claiming title for such Land by prescription. In Jane Nona vs. Gunewardend9) Basnayake, J. decided that a judgment debtor who continues in adverse possession after a sale in execution can acquire title by prescription. The symbolical possession by a purchaser at a court sale is not an interruption of such possession. There must be an interruption of actual physical possession (vide Emanis vs. Sudappu (gg)), Muttu Caruppen vs. Rankira (supra) Simon Appu vs. Chrishan Appu (supra), Therefore it is seen that had the Appellant raised issues based on the provisions of section 7 of the Registration of Documents Ordinance consequent upon such issues the question whether in spite of the fiscal conveyance 6v4the judgment debtor continued his possession and thus prescribed to the Land would have been an inevitable issue. If there had been an issue to that effect the District Judge would have certainly answered that issue in the affirmative in all the circumstances of this case. The Counsel for the Appellant at the stage of arguments in this Court conveyed on behalf of the Appellant that the Appellant did not have title to the entire Land and confined his claim only to a 1/4th share of the Land. This was on the basis that his predecessor in title, Edward Abeyratne only had an undivided 1/4 share of the corpus. This shows a clear recognition or an admission on the part of the Appellant that the Respondents were also co-owners of the Land. If that stance is correct then the rights of the Respondent have not been wiped out by 6v6, if at all would only limit their rights. But in fairness to the appellant it must be stated that the deed 6V6 is not in respect of undivided shares but the entirety of the land.
- 256. Assuming without concedingthat 6V6 was a valid deed and that it gets priority over P2 still that will only make the Appellant a co-owner. A co-owner's possession is in law the possession of other co owners. Every co owner is presumed to be in possession in his capacity as co owner. A co-owner cannot put an end to his possession as co owner by a secret intention formed in his mind. Nothing short of ouster or something equivalent to ouster could bring about that result. (Vide Alvis vs Perera) (13) Judgment in Maria Fernando vs. Anthony Fernando (14).is applicable to the facts of this case. It was held in that long possession, payment of rates and taxes, enjoyment of produce, filing suit without making the adverse party, a party, preparing plans and building houses on the land and renting it, are not enough to establish prescription among co owners in the absence of an overt act of ouster. It was held in Seetiya vs Ukktl'5)that nothing short of an ouster or something equivalent to ouster is necessary to make possession adverse to end co ownership. Although it is open to a court from long lapse of time in conjunction with other circumstances of a case to presume that possession originally that of a co-owner had later became adverse, the fact of co owners possessing different lots, fencing them and planting them with a plantation of coconut trees which is a common plantation in the area cannot make such possession adverse. In Thilakaratne vs. Bastianf'6) at page 12 it was held I quote; "It is a question of fact, wherever long continued possession by one cowner is proved to have existed, whether it is not just and equitable in all the circumstances of the case that the parties should be treated as though it had been proved that separate and exclusive possession had become adverse at some date more than 10 years before action was brought. In Amerasekera vs Ranmenika (17) it was held that among co owners the strongest evidence of adverse possession should be given. In this case there is none. For this reason my view is that the Respondent need not necessarily prove prescriptive title in addition to the paper title they relied on at the trial
- 257. to succeed inthe case. On the other hand the Appellant having claimed title to the entire Land and later limited his claim to 1/4th share of the land on 6V6 ~ also claimed prescriptive rights to the entire Land including building. This was the conclusion drawn by the learned District Judge. Therefore the learned District Judge has held that the Appellant was entitled only to building (8) and the land covered by the building namely an area of 20 square feet in extent. In all the circumstances of this case I cannot see any fault in the reasoning or the findings of the learned District Judge with regard to the issue of prescription. For all the reasons I have enumerated I find no justification to interfere with any of the findings of the learned District Judge. I find no merit in this appeal and the same is hereby dismissed with costs fixed at Rs. 7500 to be paid to the Plaintiff Respondent (Respondent) by the 6th Defendant- Appellant (Appellant). EKANAYAKE J. -I agree. Appeal dismissed. Editor's Note: The Supreme Court in SC sp La 172/06 on 13.09.2006 refused special leave to the Supreme Court. PUNCHI MENIKE v. APPUHAMY et at. Diga marriage of daughter-Re-acquiring binna rights-Prescription among co-owners. A daughter married in diga can regain, even after her father's death, binna rights during the lifetime of her husband and without any divorce from him, or re-marriage in binna, by maintaining a close and constant connection with the mulgedara.There may be prescription among co-heirs where there is an overt act of ouster or something equivalent to ouster. But what might be acts of adverse possession against a stranger have, in questions arising between co-heirs, to be regarded from the standpoint of their common ownership. New Law Reports Volume 19, Page No 353 View - Volume 19
- 258. New Law Reports1917 Present : Wood Renton C.J. and De Sampayo J. 414-416-D.C. Ratnapura, 2,076. Diga marriage of daughter-Re-acquiring binna rights- Prescription among co-owners. A daughter married in diga can regain, even after her father's death, binna rights during the lifetime of her husband and without any divorce from him, or re-marriage in binna, by maintaining a close and constant connection with the mulgedara. There may be prescription among co-heirs where there is an overt act of ouster or something equivalent to ouster. But what might be acts of adverse possession against a stranger have, in questions arising between co-heirs, to be regarded from the standpoint of their common ownership. THE facts are set out in the judgment. Zoysa, for the appellant in No. 414. Bawa, K.C., and W. H. Perera, for the appellant in Nos. 415 and 416. R. L. Pereira, for plaintiff, respondent, in all the appeals. Cut. adv. vult. January 30, 1917. WOOD RENTON C.J.- This is a complicated partition action, the trial of which has proceeded before four different District Judges. The District Judge who actually disposed of it did not himself hear most of the evidence, and a most regrettable delay of about nine
- 259. months occurred betweenthe close of the trial and the delivery of the judgment. The lands sought to be partitioned are valued at about Rs. 8,000, and are set out in two schedules to the plaint. The plaintiff claims a one-fifth share of the lands in the first schedule, and a one-sixth share of the lands of the second schedule, by right of inheritance. The property originally belonged to Hamy Lekama, who died fifty or sixty years ago. He left six children, namely, (i) Dingiri Menika, (ii) Hamy, (iii) Punchi Mahatmaya, (iv) Ran Menike, (v) Kiri Menike, and (vi) Punchi Menike, who is the plaintiff. The first defendant is a son of Dingiri Menika, Ran Menike is the second defendant, Punchi Mahatmaya is the third, and the fourth to the eleventh defendants represent Kiri Menike. There are, besides, two added defendants, of whom, the first, Kiri Appuhamy, claims under Punchi Mahatmaya, and the second, Mr. Tennekoon, claims 354 under Dingiri Menika, by deeds of transfer which are of comparatively recent date. Hamy, the second son of the original owner of the lands, died intestate and without issue, after having transferred his interests to his bother, Dingiri Menika. One of the main issues raised and contested in the District Court was the question whether Punchi Mahatmaya was a son of Hamy Lekama. The learned District Judge, after hearing evidence on both sides, answered that question in the affirmative, and his decision upon that point was not challenged at the argument of the present appeal. The remaining issues were (i) whether the three daughters of Hamy Lekama, Ban Menike, Kiri Menike, and Punchi Menike, were or were not married in diga, and whether, if so, they had thereby forfeited their claim to a share in their father's estate; and (ii) the rights of the added defendants above referred to. The learned District Judge held on the evidence that all three daughters had been married out in diga. There is no appeal against this finding by the fourth to the eleventh defendants, who claim under Kiri Menike, and we are, therefore, no longer concerned with that part of the case. But the District Judge also
- 260. held that, whilePunchi Menike had been married out in diga, she had re-acquired binna rights by subsequently returning to the mulgedara, and that neither her brother Dingiri Menika nor her sister Ran Menike had acquired as against her title by prescription to her share of the inheritance. In dealing with this point, the District Judge says incidentally that there can be no question of prescription between co-heirs. That is, of course, too general a statement, which the decision of the Privy Council in Corea v. Appuhamy1[(1913) A. C. 230.] does not support. There may be prescription among co-heirs where we were in the presence of an overt act of ouster or of something equivalent to ouster. But what might be acts of adverse possession against a stranger have, in questions arising between co-heirs, to be regarded from the standpoint of their common ownership. The Kandyan law as to the circumstances in which a woman married in diga can regain her interest in the paternal inheritance is somewhat obscure. But it has been interpreted by a long series of local decisions, from which, I think, it would now be unwise to depart. The general rule undoubtedly is that when a woman marries in diga, that is to say, when she is given away, and is, according to the terms of the contract, conducted from the family house, or mulgedara, and settled in that of her husband, she forfeits her right to inherit any portion of her father's estate. But this forfeiture was an incident, not so much of the marriage, as of the quitting by the daughter of the parental roof to enter another family,2[ Kalu v. Howwa Kiri, (1892) 3 C. L.R. 54.] and the status which the daughter would have enjoyed if she had been married in binna-that is to say, if under the contract her husband had been received by her parents as a member of her family and had come to live with her in the 355 mulgedara in that capacity-can be acquired in various ways, as clearly recognized as the general rule to which they are exceptions. A diga married daughter will regain binna rights 1 (a) By being recalled by the father and re-married in binna;
- 261. (b) By herfather, on her return to his house along with her husband, assigning to them and putting them in possession of a part of his house and a specific share of his lands; (c) On her returning home along with her husband and attending on her father, and rendering him assistance until his death; (d) On her coming back and attending on and assisting her father during his last illness, and the father on his deathbed expressing his will that she should have a share of his lands. The question at issue in the present case is whether a wife married in diga can regain, even after her father's death, binna rights during the lifetime of her husband, and without any divorce from him or re-marriage in binna, by maintaining a close and constant connection with the mulgedara., and, in particular, by leaving one or more children of the diga marriage to be brought up, or herself bringing them up, there. The learned District Judge has answered this question in the affirmative, and, in my opinion, has done so rightly, both on principle and on authority. A daughter married in diga forfeits her interest in her paternal inheritance, not by virtue of that marriage, but because it involves a severance of her connection with her father's house. If that connection is re- established on its original basis, if the diga married wife is once more received into the family as a daughter, it is only reasonable that she should enjoy a daughter's rights of inheritance. So much for the principle underlying the problem that has to be solved. We come now to the authorities. There is no express statement in any of the text books on Kandyan law adverse to the ruling of the District Judge on the legal issue above mentioned. The only judicial decision of that character is to be found in the recent case of Simon v. Dingiri,2 in which it was held that, where a Kandyan woman, who was married out in diga, ten or fifteen years afterwards returned to the mulgedara subsequent to the death of her father and married a second time in binna, she did not acquire any rights to the
- 262. paternal property. Inthat case, however, the attention of the Court was not apparently directed to the trend of a strong current of judicial authority running in the contrary direction, and impliedly recognized in the case of Dingiri Menika v. Appuhamy,3 which Simon v. Dingiri2 purported to follow. It is argued, however, in the first place, that the instances given in the text books on Kandyan law of the circum-stances in which a diga married daughter can recover binna rights are definitive and not merely illustrative; and, in the second place, that, if the ruling of the District Judge in this case were affirmed, 1 See Modder's Kandyan Law, 2nd ed., pp. 460 et seq. 2 (1916) 3 Ceylon W. R. 55. 3 (1915) 4 Bal. N. C. 66. 356 the general principle that a diga married daughter forfeits her share in the paternal inheritance would be abrogated altogether, since she could set aside the forfeiture at her own pleasure by periodical visits to her father's house. I will deal with each of these points briefly in turn . It must be remembered that the ancient standard text books on the Kandyan law consist for the most part of reports of, or comments upon, particular decisions, rather than legal treatises in the modern sense of the term. But in point of fact, as I will show in a moment, authority is not wanting even in these text books for the proposition of law involved in the decision of the District Judge upon this point. As regards the argument ab inconvenienti, it is obvious that the question whether a diga married daughter has regained binna rights must always be one of fact, and the Court would have in each case to consider whether the evidence affirmatively proved that she had been received back into her father's family as a daughter. I pass now to the judicial decisions, apart from Simon v. Dingiri,1[(1916) 3 Ceylon W. R. 55.] to which I have already alluded. The earliest authority is the Madewelletenne case,2[ (1834) Marshall's Judgments 329.] decided as far back as
- 263. 1834. Much turnsupon this decision, and I propose, therefore, to cite the report of it in full. " A father dying about 1814 left six pellas of land, and on his deathbed gave a talpot to his son, the defendant, telling him to support his mother, to whom he gave two other talpots, and who took the produce of one of the pellas till her death, which happened about 1826; from that time the defendant, her son, took the produce of this pella as well as of the other five. The present action was brought for a share of the land by a daughter who had been married in diga, but who, it appeared, had frequently resided at her father's house, where several of her children were born; it further appeared that she and her children were in a state of destitution. The talpots given to the mother were not to be found. In his answer the defendant stated with great particularity the divisions made by his o father of his lands, alleging all those which he now possessed had been bestowed on him by his father, and that his sister, the plaintiff, had forfeited those which had been given to her for non-performance of Government services, but of his he offered no proof. The assessors in the original Court were of opinion that the plaintiff, in consideration of (her) distressed circumstances, was . entitled to the pella which (her) mother had enjoyed; the Judicial Agent, that she was only entitled to support for her life; but on reference to the Court of the Judicial Commissioners (this being before the new Charter came into operation), that Court decreed that she was not entitled to anything. On appeal to the Supreme Court, it was decreed that the plaintiff be put into possession of the pella possessed by her mother till her death. The Supreme Court adopted the opinion of the assessors in the Court of Madewelletenne 357 for the following reasons: ' Independently of the state of destitution in which it appears that the plaintiff now is, and which Of itself' would entitle her to some assistance from the estate of her deceased parents. It appears that, though she married in diga,
- 264. she always keptup a close connection with her father's house, in which, indeed, three of her children were born. Another reason is, that the defendant, although he undertook to assert in his answer that the plaintiffs had received a share of the parental lands which he even specifically described, yet has not shown that she did receive any part thereof. Again, it appears that the father, on his deathbed, gave one talpot to the defendant, and two others to his wife; what has become of these two latter olas does not appear. But it is not improbable that one of them may have been intended for the plaintiff, more especially considering the frequency of her visits to the parental residence.' " It seems to me to be reasonably clear from the mere language of this report that at least one of the grounds on which the plaintiff's right to the pella to which she was declared entitled was upheld by the Supreme Court was the fact that, in spite of her diga marriage, she had maintained a close connection with her father's house, in which, indeed, three of her children were born, and that the ratio decidendi was that by so doing she had a right to share as a daughter in his inheritance. The Madewelletenne case1 has been consistently interpreted by the Courts in that sense. Pereira cites it in his Collection2 as an authority for the following proposition:-:-" A marriage in diga does not divest the wife of her inheritance where she has always kept up a close connection with her father's house; and this independently of the state of destitution in which she may be, and which of itself would entitle her to some assistance from the estate of her deceased parents." In the case of Dingiri Amma v. Ukku Banda,3 Pereira J. also quotes it as an authority, and it has been adopted in the same sense by a Bench of two Judges in Appuhamy v. Kiri Menika,4 in which all the previous relevant decisions are reviewed. There is nothing in the earlier cases that conflicts with the interpretation put by the Supreme Court on the Madewelletenne case1 in this series of authorities, and in my opinion the rule thus laid down should now be adhered to.
- 265. My brother DeSampayo has analysed the evidence as to the position of the plaintiff in the present case, and it is, therefore, unnecessary for me to deal with it. I entirely agree with the conclusions at which he has arrived on that point, and on the only remaining issue as to whether the evidence of prescriptive possession is sufficient to displace the plaintiff's right to share in her father's inheritance. I would dismiss the appeal with costs, subject to the modification mentioned by my brother. 1 (1834) Marshall's Judgments 329. 3 (1905) 1 Bal. 193. 2 Volume II., p. 173. 4 (1912) 16 N. L. R. 238. 358 DE SAMPAYO J.- The principal question raised in all these appeals is whether the Appuhamy plaintiff, who is a daughter of Hamy Lekama of Muduwe, deceased, is entitled to share the father's inheritance with her brothers, the third defendant and Dingiri Menika, the father of the first defendant. According to her marriage certificate she was married in diga to Pinhamy of Pelmadulla in the year 1874, and in my opinion her attempt to prove by oral evidence that she was in fact married in binna has failed. But she, in the second place, maintains, and the District Judge has found in her favour, that she subsequently regained binna rights. As regards the law bearing on this point, the passages in the text books as to the circumstances in which binna rights can be regained are not very clear, and are capable of being interpreted either as giving instances or as stating conditions, but these passages and the judicial decisions have been considered in Appuhamy v. Kiri Menika.1[(1912) 16 N. L. R. 238.] There a daughter had, after her father's death, been married out in diga, but one of her children was left in the mulgedara and was brought up by her mother, and she herself had kept up a close and constant connection with the
- 266. mulgedara, and itwas decided that in these circumstances she re-acquired the status of a binna married daughter and was entitled to inherit the father's property. Mr. Bawa, for the first defendant-appellant, invited us to review that decision on the ground that the Kandyan law recognized the rights of a diga married daughter to paternal inheritance only in such special cases as those mentioned at pages 66 and 67 of Armour's Kandyan Law. This point was considered in Appuhamy v. Kiri Menika,1 and I think it desirable in the somewhat doubtful state of authorities to adhere to that decision as a correct exposition of the law on this subject. It is true that, as pointed out by Mr. Bawa, " keeping up a close and constant connection with the father's family " is something indefinite, and oral evidence of it is calculated to introduce an element of uncertainty into the title of other members of the family. But this uncertainty is no greater than in the case where the question is whether the marriage itself was in binna or diga, or in those other cases where it is allowed a diga married daughter may, under certain circumstances, re-acquire binna rights. The point to- be kept in view in all cases, I think, is that the essence of a diga marriage is the severance of the daughter from the father's family and her entry into that of the husband, and her consequent forfeiture of any share in the family property, and the principle underlying the acquisition of binna rights, as I understand it, is that the daughter is re- admitted into the father's family and restored to her natural rights of inheritance. This, of course, is not a one-sided process; the father's family must intend, or at least recognize, the result. The 359 question accordingly in this case is whether the facts proved are sufficient to establish the plaintiff's restoration to her original position as a daughter of the house of Hamy Lekama. It appears that she was very young when Hamy Lekama died, and was given in marriage to Pinhamy by her mother and brothers in 1874. She returned to the family house at Muduwe for her confinement, probably about a year or two after the marriage, and there her son Punchi Mahatmaya was born. She appears to have had no other children. Punchi Mahatmaya, from the time of his birth, continued to be in the mulgedara, he
- 267. married in 1900,and conducted his wife there, and all his four children were born and live there. The plaintiff herself lived with the husband at Pelmadulla only for about four or five years and returned to the mulgedara, and never went back again. She appears to have quarrelled with the husband, who took another wife and had children by her. There was no formal divorce, but the circumstances indicate that the separation between husband and wife, which must have taken place shortly before 1880, was permanent and final. "At that time the plaintiff's brother Dingiri Menika was living in the family house, which was on Nindawatta, and the plaintiff was admitted into and occupied a part of the house. Afterwards Dingiri Menika built for himself a house on another land and took up his abode there, leaving the plaintiff and her son to occupy the whole family house. The old house soon came down, and another was rebuilt by the plaintiff on the same site, and has since been occupied by her and her son alone. That this was not a mere exercise of charity on the part of Dingiri Menika and the other heirs of Hamy Lekama but a recognition of resumption of her position as a member of her father's family is sufficiently shown by several other circumstances. There were altogether six children of Hamy Lekama, three sons and three daughters. In 1881 and 1882, Hamy, one of the sons, disposed of one-sixth share of some of the family lands to Dingiri Menika. If the daughters had no right to them, his share should have been one-third, and not one-sixth. It is true that two of plaintiff's sisters were also married in diga, but at the same time it is material to note that the plaintiff herself was taken into account in the calculation of Hamy's share. In 1908 the plaintiff and her sister, the second defendant, gave a mortgage of some lands. The shares so mortgaged are not reconcilable with the case of either party but the mortgage, which was usufructuary, is an act in exercise of the right of ownership. Dingiri Menika died some seven years ago, and the first defendant, his son, purported to lease the entirety of some lands, and that led to an action in 1911 by the second defendant against the first defendant. To that action the present plaintiff was made a party defendant, and she put in an answer claiming a share by paternal inheritance. The first defendant eventually compromised the case by transferring certain lands to the second
- 268. 360 defendant, plaintiff inthat action. As regards possession, it appears that Dingiri Menika, who was the eldest son, generally possessed the family lands, but, as the learned District Judge remarks, it does not follow that he was not doing so on behalf of the whole family, especially in view of the fact that the other sons, who were undoubtedly entitled to shares, did not interfere with him either. The evidence indicates that the plaintiff not only occupied the family house on Nindawatta, but enjoyed a share of the produce, and as regards the fields, of which there are many, the first defendant himself says that his father Dingiri Menika used to give plaintiff paddy. The facts which I have briefly summarized show, first, that plaintiff, notwithstanding her original diga marriage, was re- admitted into, or with the consent of her brothers resumed her position in, Hamy Lekama's family and regained her rights of paternal inheritance; and, secondly, that Dingiri Menika and those claiming under him have not acquired title to her share of the family property by prescriptive possession. The appellants in the District Court maintained that the third defendant, Punchi Mahatmaya, was not a son of Hamy Lekama, and was not entitled to any share. This point was not seriously pressed in appeal, and even if it were, it would not be possible in view of the evidence to sustain it. I think the District Judge's allotment of shares to the several parties is right. It appears, however, that the first defendant and his father Dingiri Menika and the added defendants who claim under the first defendant have made certain improvements on some of the lands. The interlocutory decree includes no order with regard to 'these improvements, nor is the evidence sufficiently directed to that point. I think that before the partition is proceeded with some further inquiry should be made as to improvements, and the inter-locutory decree should, if necessary, be amended. Subject to the above direction, I would dismiss the appeal with costs. Appeal dismissed.
- 269. J. M. DONHANNY ALEXANDRA, vs Thomas Jayamanna Prescription-Co-owners- Family arrangement whereby property of deceased given to one of the heirs by the others-Oyster-Evidence of adverse possession thereafter by such heir- Acquisition of title by prescription. New Law Reports Volume 79, Page No 184 184 1978 Present : Udalagama, J., Ismail, J. and Tittawella, J. S. C. 21/73 (Inty.)-D. C. Negombo 1143/P Prescription-Co-owners-Family arrangement whereby property of deceased given to one of the heirs by the others-Oyster- Evidence of adverse possession thereafter by such heir- Acquisition of title by prescription. Where the heirs to the estate of a deceased person agree that certain property of the deceased be given to one of the heirs such decision amounts to an ouster of the rights of the other heirs. Accordingly such a person acquires prescriptive title where the evidence shows that he has possessed the property for over 10 years adverse to and independent of all the other heirs. 185 Case referred to: Mailvaganam v. Kandaiya, 1 C.W.R. 175.
- 270. H. W. Jayewardene,Q.C., with N. R. M. Daluwatte and Miss Sriyangani Fernando, for the plaintiff-appellant. C. Ranganathan, for the defendant-respondent. Cur. adv. vult. May 25, 1978. UDALAGAMA, J. The plaintiff-appellant in this case sought to partition the land called Madangahawatta alias Suriyagahawatta depicted in Plan 1961 of 18.9.71 and 5.11.71 filed of record marked X and comprising of Lots 1 to 13. It was common ground that Marthelis Saparamadu alias Appuhamy was the original owner of the said land and that he died leaving as his heirs, his nine children Thomas Jayamanne the 1st Defendant, J. M. Jayamanne, David, Hannie Alexandra the plaintiff, Agnes, Josephine, Charlotte, Lily and Matilda. J. M. Jayamanne, David, Agnes, Josephine, Charlotte, Lily and Matilda donated their rights to their brother Thomas Jayamanne the 1st defendant who thus became entitled to a 8/9 share of the said land. In respect of the 1/9 share of the plaintiff, the 1st defendant's case was that immediately after the death of his father Marthelis Saparamadu alias Appuhamy in 1955, there was a family arrangement among all the 9 heirs of the deceased, where it was agreed that the undispersed properties of the deceased, including the land in suit, should go to the 1st defendant, and by virtue of this agreement the 1st defendant entered into possession of the land in suit and possessed the same adversely and independently of the other owners of the said land, and acquired a prescriptive title to the same. The case went to trial on the question whether the 1st defendant had acquired a prescriptive right to the plaintiff's 1/9 share of the land in suit. The learned District Judge after trial, held that the 1st defendant had prescribed to the 1/9 share of the plaintiff-appellant and dismissed the plaintiff-appellant's action with costs.
- 271. Learned counsel forthe plaintiff-appellant has canvassed the findings of the learned District Judge in favour of the 1st defendant-respondent on several matters. It was contended that, the fact that the deceased's other children, apart from the plaintiff, had donated their undivided rights to the 1st defendant and the 1st defendant had "sold divided extents out of his undivided 8/9 share, negatived a family arrangement, whereby the 1st defendant. was to get the entire land in suit. Further it was submitted that according to Charlottes' evidence, the plaintiff-appellant was not a consenting party to the 1st defendant getting 186 the undispersed lands. Finally it was argued, that according to Charlotte, the 1st defendant and the plaintiff were not on cordial terms from 1945 and it was highly improbable that she would have consented to the 1st defendant being given her rights of all the undispersed properties of the deceased. As against these submissions of learned counsel for the plaintiff- appellant, counsel for the 1st defendant-respondent, submitted, that it was common ground that after Marthelis Saparamadu's death on 14.11.1955 there was a conference among all the children of Marthelis and that after this conference, the 1st defendant possessed the undispersed properties of the deceased and took the income from them and paid the rates and taxes until the filing of the present action in March 1971. It was also submitted by Counsel for the 1st defendant-respondent, that at the conference held immediately after the death of Marthelis, on 14.11.1955, the heirs of Marthelis including the plaintiff-appellant, came to a family arrangement, whereby the 1st defendant-respondent, who had not been given any properties during the lifetime of the deceased, whereas all the others had been given deeds, should get all the undispersed properties of the deceased. On this family arrangement, the 1st defendant entered into possession of the land in dispute and possessed the same adversely and independently of all others, including the plaintiff-appellant, and acquired a prescriptive title to the same.
- 272. The important questionthat arises for our decision in this case is whether there was a family arrangement soon after the death of Marthelis, whereby the 1st defendant was to get, all the undispersed properties of the deceased including the and in suit, and pursuant to such an arrangement, the 1st defendant possessed the land to the exclusion of the other heirs, and acquired a prescriptive title. If one of the heirs of a common deceased owner, in pursuant of a family arrangement where all the other heirs agreed to his getting the entire property, enters into sole possession of the common property and possesses the same to the exclusion of all others for 10 years or more, such an arrangement would be an ouster of the rights of the others and he will be entitled to a prescriptive title in respect of the shares of the heirs. In Mailvaganam v. Kandaiya, 1 C.W.R. page 175, De Sampayo, J. stated: - " It seems to me that the Commissioner has misunderstood the nature of ouster required for the purpose of prescription among co-owners and of the evidence necessary to prove such ouster. There is no physical disturbance of possession necessary-it is sufficient if one co-owner has to the knowledge of the others taken the land for himself and begun to 187 possess it as his own exclusively. This sole possession is often attributable to an express or tacit division of family property among the heirs and the adverse character of exclusive possession may be inferred from circumstances." The burden of establishing prescriptive title to the entire land was clearly on the 1st defendant. It is common ground that shortly after the death of Marthelis, there was a conference in the mulgedera of the heirs of the deceased, where certain decisions were taken in regard to the estate of the deceased. The plaintiff's position is that at this conference, at the suggestion of J. M. Jayamanne one of the children of the deceased and a leading Advocate, it was agreed by all the heirs, that the 1st defendant look after the undispersed properties of the deceased and pay all the debts and taxes. The
- 273. position of the1st defendant on the other hand was to quote his own words " I came to possess those lands because on the day of my father's burial a meeting was held at my father's house in a room and my brothers and sisters agreed to hand over these lands to me because of the intention of my father to give these lands to me. Immediately then I entered into possession of all the lands and up to date I am in possession of these lands ". In view of the two conflicting positions taken up by the plaintiff and the 1st defendant it becomes necessary to examine what exactly was decided upon, at the conference held soon after the death of their father on 14.11.1955. Both the plaintiff and the 1st defendant relied to a large extent on the evidence of Charlotte, their youngest sister. Charlotte's evidence on the point as appearing in the English version of the proceedings is as follows : - "A1 of my brothers and sisters got together and had a discussion in my father's house and gave the lands to him to be looked after. Q. You were asked to look after the properties on whose behalf ? A. On behalf of my brother the 1st defendant. My father had prepared a deed to give over these lands to the 1st defendant and I am aware of it. He was asked to come and sign the deed, but he did not come to sign it. On the day of the discussion the other brothers and sisters also knew that my father had got prepared a deed in favour of the 1st defendant. The lands were given to me to be looked after and to be given to the 1st defendant. All of us discussed the matter and came to an understanding that we should give the lands to the 1st defendant, but only the plaintiff 188
- 274. did not consentto it. At that time the plaintiff consented to her share also being given to the 1st defendant, but later she did not sign the deed. 1st defendant paid the estate duty as he was possessing the lands." The Sinhalese version of her evidence is as follows:- It was also her evidence that the 1st defendant paid the estate duty as he was possessing the lands and that up to the date of her giving evidence, she was looking after the lands for the 1st defendant and she gave the income from the land in suit to the 1st defendant and the plaintiff never claimed her 1/9 share of the income from her. It was common ground that Charlotte looked after the land until the present action was filed. Charlotte's evidence was that she looked after the land for the 1st defendant. The plaintiff's position was that J. M. Jayamanne entrusted the land to the 1st defendant who got Charlotte to look after the land. Now this position of the plaintiff, as stated by learned counsel for the 1st defendant, looks highly artificial. After all, why should J. M. Jayamanne entrust the property to the 1st defendant, if Charlotte was to look after the property. The 1st defendant was living in Colombo and was employed in government service as an electrical engineer. J. M. Jayamanne could very well have entrusted the property to Charlotte straightaway instead of adopting a devious route. The only reasonable inference one could draw from the 1st defendant getting Charlotte to look after the land, is because the 1st defendant was given the land by all the heirs and the 1st defendant requested Charlotte to look after the land as she was living in the adjoining property. It was the evidence of the plaintiff that some time before the death of Marthelis, he gave deeds of gift to all the children except to the 1st defendant. She denied any knowledge of an intention on the part of Marthelis, to give the 1st defendant also a deed of gift. Charlotte on the other hand in her evidence quoted above
- 275. categorically states that.a deed was prepared to give the undispersed properties to the 1st defendant. Learned counsel for the plaintiff-appellant strongly contended that it was highly improbable, that the plaintiff would have consented to her 1/9 share being given to the 1st defendant as she and the 1st defendant had not been on cordial terms since 1945. This is a circumstance that has to be considered in arriving 189 at a conclusion, whether the plaintiff would have consented to her share being given to 1st defendant In the statement of claim filed by the 1st defendant, he had taken up the position that there was an agreement among the heirs of Marthelis Appuhamy after his death, that he (1st defendant) should enter into exclusive possession of the entirety of the land in suit and other undispersed lands and that he should pay the estate duty on the said lands. Accordingly he entered into possession of the land in suit and other lands on 15.11.55 and paid the estate duty on the said lands and acquired a prescriptive title thereto. At the trial the 1st defendant raised the point of contest, whether there was an agreement among the heirs of Marthelis in regard to the undispersed properties of the deceased, and in pursuant to such an agreement whether the 1st defendant had entered into exclusive possession of the land in suit. The plaintiff would have had no doubts in the face of the statement of claim of the 1st defendant about the position taken up by the 1st defendant. Still in the entirety of her evidence there is only this sentence elicited in cross-examination in regard to the ill-feeling between her and the plaintiff : -" I was not on good terms with the defendant from 1945 and I was not associating with him ". The 1st defendant was cross-examined on this alleged ill-feeling and his evidence was : - " Q. Was not there a very unhappy incident between the plaintiff's husband in 1943 to 1945 ?
- 276. A. No. Plaintiff saidthat there was no cordiality between herself and myself from 1945 but that is not true. Q. Was there not a threat of violence between yourself and her husband ? A. That is absolutely untrue. When the plaintiff came for the survey I spoke to her and to her son. I even asked about the motor race; from her son. " Charlotte in her evidence under cross-examination stated: - " I do not know the incident at which the plaintiff and 1st defendant fell out and whether it was an incident over which, they were to come to court. From 1945 the plaintiff and the 1st defendant are angry ". An examination of the evidence on this point given by the respective witnesses, at most shows that there had been some incident in 1945 but as to what exactly that incident was, is not very clear. Was it of such a serious nature that it disrupted the filial relations between brother and sister ? or was it some trivial incident which neither party took 190 account of ? There was a suggestion made to the 1st defendant by counsel for the plaintiff at the trial that the incident was a threat of violence by the 1st defendant to the husband of the plaintiff. The 1st defendant rejected the suggestion as "absolutely untrue". The plaintiff in her evidence did not elaborate this incident, although it was an important point in her case. Counsel for the plaintiff argued, why was the 1st defendant denying that his feelings with the plaintiff were not cordial, when Charlotte was admitting there was such ill- feeling. One explanation may be, that even if there was such an incident it was so trivial that the 1st defendant would not
- 277. have harboured anyill-feeling against the plaintiff. Another explanation may be that whatever the feelings between the 1st defendant and the plaintiff's husband may have been, his feelings towards his sister the plaintiff were cordial. Plaintiff admitted she consented at the conference after the death of her father to the 1st defendant, managing the undispersed properties of the deceased. If the feelings between the parties were bad, would she have consented to such an arrangement ? The probabilities are she would not. Moreover it is significant she did not ask for the income from these lands up to the time of her coming to court in the present case. Surely would she not have at least asked for an accounting or the income from the immovable properties in the testamentary case ? It is our conclusion that this ill-feeling, even if there was such an ill- feeling, was not one which the plaintiff harboured, to withhold her agreeing to the 1st defendant getting the undispersed properties of the deceased. Finally it was contended by counsel for the plaintiff, that the fact that the 1st defendant has accepted gifts of undivided shares from J. M. Jayamanne, David, Agnes, Josephine, Charlotte, Lily and Matilda show that the heirs of the deceased Marthelis had not parted with their rights at the meeting held after the death of Marathelis in November 1955. It will be noted that all these gifts have been given nearly three years after the death of Marathelis. If there was a family arrangement in 1955 and the 1st defendant entered, into exclusive possession of the entire land, their gifts only strengthen the adverse possession of the 191 1st defendant to the entire, land. Moreover the evidence of the 1st defendant and Charlotte is that besides the agreement to give the undispersed lands to the 1st defendant after the death of Marathelis, there was also a promise by the heirs to transfer their shares to the 1st defendant. The deeds 1D1 to 1D5 bear this out. The fact that the plaintiff did not execute a deed of gift would not affect the 1st defendant's prescriptive title, if there was this family arrangement and the 1st defendant was in exclusive possession of the land in suit in pursuance of it. It
- 278. was also submittedby counsel for the plaintiff-appellant, the fact that the 1st defendant had executed deeds 2D1, 3D, 4D1, 5D1 and 6D, in favour of 2 to 6 defendants of divided extents, out of an undivided 8/9 share, shows an acknowledgment by the 1st defendant of the plaintiff's 1/9 share. The 1st defendant's evidence in regard to those conveyances is " I had only paper title to 8/9 shares. It was at the request of the Proctor that these deeds were written, in that manner. The 1/9 share that the plaintiff claims was also possessed by me ". An examination of these deeds shows that what has been conveyed are divided extents from the land called Madangahawatte alias Suriyagahewatta depicted in Plan 336411 dated 1.1.68 and made by A. C. S. Gooneratne, Licensed Surveyor. In the last para to the schedule the Notary has stated, these divided portions are from the undivided 8/9 share of Madangahawatta alias Suriyagahewatta. Why the Notary added this para does not appear to be clear from the deeds. But one explanation may be, as stated by the 1st defendant, as the 1st defendant had paper title to only 8/9th share, the Notary had thought he was safe-guarding the rights of the vendee by putting it that way. But what is significant is that the the 1st defendant has undertaken to warrant and defend the title conveyed on these deeds. We reject the contention that the manner in which these deeds have been executed amounts to an admission by the 1st defendant of the plaintiff's 1/9 share. On a proper evaluation of the evidence of Charlotte and the other circumstances, like the 1st defendant being in sole possession of the undispersed properties of the deceased, taking the entire income from the same, paying all rates and taxes due on 192 the said properties and the fact that the sum of Rs. 30,000 left by the deceased was equally distributed among the heirs even before estate duty and debts of the estate were paid, and the fact that the 1st defendant paid all the estate duty, point to the clear inference that at the conference held after the death of Marathelis among the heirs, it was decided that the 1st
- 279. defendant be giventhe undispersed properties of the deceased. This decision was a clear ouster of the rights of the other heirs. His possession thereafter was adverse and independent of all other co-owners. As 10 years had passed since this ouster, at the time the present action was brought the 1st defendant has discharged the burden cast on him of proving prescriptive title to the entire land. We affirm the judgment of the learned District Judge and dismiss the plaintiff's appeal with costs. ISMAIL, J.-I agree, TITTAWELLA J.-I agree. Appeal dismissed.
- 280. WICKREMARATNE AND ANOTHERv. ALPENIS PERERA Prescription among co- owners- Proof of ouster-Partition action. In a partition action for a lot of land claimed by the plaintiff to be a divided portion of a larger land, he must adduce proof that the co owner who originated the division and such co-owner's successors had prescribed to that divided portion by adverse possession for at least ten years from the date of ouster or something equivalent to ouster. Where such co-owner had himself executed deeds for undivided shares of the larger land after the year of the alleged dividing off it will militate against the plea of prescription. Possession of divided portions by different co-owners is in no way inconsistent with common possession. 1986 - Volume 1 , Page No – 190 Sri Lanka Law Reports 190 COURT OF APPEAL. G P S. DE SILVA, J. AND JAYALATH, J. C.A. 574/77 (F). D.C. GAMPAHA 14320/F. NOVEMBER 18 - 21, 26, 28 AND 29, 1985. DECEMBER 02-05, 1985. Prescription among co-owners- Proof of ouster-Partition action. In a partition action for a lot of land claimed by the plaintiff to be a divided portion of a larger land, he must adduce proof that the co owner who originated the division and such co-owner's successors had prescribed to that divided portion by adverse possession for at least ten years from the date of ouster or something equivalent to ouster. Where such co-owner had himself executed deeds for undivided shares of the larger land after the year of the alleged dividing off it will militate against the plea of prescription. Possession of divided portions by
- 281. different co-owners isin no way inconsistent with common possession. 191 A co-owner's possession is in law the possession of the co- owners Every co-owner is presumed to be in possession in his capacity as co-owner A co-owner cannot put an end to his possession as co-owner by a secret intention in his mind Nothing short of ouster or something equivalent to ouster could bring about that result. Registration extracts are evidence of the particulars entered in the register. The objection that the documents referred to in them should have been produced cannot be taken for the first time in appeal. Cases referred to: (1) Ponnambalam v. Vaitialingam and Another [1978-1979] 2 Sri L. R. 166, 167. (2) Corea v. Iseris Appuhamy (1911) 15 NLR 65. (3) Mohamedaly Adamjee v. Hadad Sadeen (1956) 58 NLR 217, 225. (4) Girigoris Appuhamy v. Maria Nona (1956) 60 NLR 330, 331. (5) Kodituwakku v. Anver and Others C.A. 13/81 D.C. Matara 7475/P, C.A Minutes of 10.12.1985. (6) Karunaratne v Sirimalie (1951) 53 NLR 444. (7) Sediris Appuhamy v. James Appuhamy (1958) 60 NLR 297, 302, 303. (8) Danton obeysekera v. Endoris (1962) 66 NLR 457. APPEAL from a judgment of the District court of Gampaha. P. A. D. Samaasekera. P. C. with G. L. Geethananda for 6th and 7th defendants-appellants. N. R. M. daluwatte, P.C. with Miss S. Nandadasa for plaintiff- respondent. Cur. adv. vult. February 7, 1986.
- 282. G. P. S.DE SILVA, J. This appeal raises once again the recurring question of prescription among co-owners While the appeal was strongly pressed before us by Mr. Samarasekera counsel for the 6th and 7th defendants appellants, Mr. Daluwatte counsel for the plaintiff-respondent, tenaciously sought to resist the appeal. The plaintiff sought to partition a ...divided and defined allotment of land called Horahena portion" about 1 acre in extent described in the second schedule to the plaint. The entire land called Horagalhena alias Horahena containing in extent 22 acres, 3 roods and 21 perches was described in the first schedule to the plaint. The plaintiff averred in his plaint dated 28.9.67 : that the original owner of the entire land described in the first schedule was carolis ; that Carolis on P 1 of 1898 192 transferred an undivided half share of the entire land to Lanchinona who on P2 of 1921 sold an undivided 1/4 share to Abraham. On P3 of September 1936 Abraham said an undivided extent out of an undivided 1/4 share of the entire land to Don Heras, the predecessor in title of the plaintiff. The essence of the plaintiff's case relevant for the purpose of the present appeal, is set out in paragraphs 4 and 5 of the plaint which read thus: "(4) The said Don Heras in lieu of his undivided interests in the land described in schedule (I) hereunder divided and separated two portions of land and possessed them exclusively and adversely and acquired a prescriptive title to the said two lots. (5) That one of the said lots referred to in the preceding paragraph hereof is more fully described in schedule 2 hereto and forms the subject matter of this action." It is right to add that the original owner Carolis transferred the balance half share to his son Girigons on 6D1 executed on the same date as P1 The interests of Girigoris devolved on his children Abraham, Seetinona, Jane Nona, Sara Nona, Delin Nona (1st defendant), william and Laisa Nona (widow). It may be noted that William (to whom reference is made later) was admittedly one of the co-owners of the entire land.
- 283. The issues relevantfor present purposes are issues Nos. 1 and 2 raised by the plaintiff and issues Nos 3 and 4 raised by the 6th and 7th defendants. These issues are as follows : (1) Has Heras in or about 1936 separated off the divided arid separate portion of Horagahahena described in the 2ndschedule to the plaint? (2) Has the said Heras and his successors in title prescribed to the said lot? (3) Is the plaintiff seeking to partition in this action an undivided portion of the land described in the first schedule to the plaint? (4) If issue No. 3 is answered in the affirmative, can the plaintiff have and maintain this action? 193 After trial the District Judge answered issues 1 and 2 in the affirmative and issue 3 in the negative and entered interlocutory decree for partition of the land. This plaintiff was declared entitled to 1/2 share and the balance 1/2 share was allotted to the 1st defendant. The 6th and 7th defendants who sought a dismissal of the action have now appealed against the judgment and decree. The one submission that Mr. Samarasekera pressed before us is that the finding of the District Judge that the land sought to be partitioned is a divided and separate portion carved out of the entire land described in the 1st schedule to the plaint is clearly insupportable, having regard to the evidence. Counsel stressed the fact that the plaintiff has failed to produce a deed of partition or cross conveyance, or any plan indicative of a partition. Although one of the witnesses claimed that there was a survey and a division of the land, no surveyor who effected such division was called to give evidence. What is more, counsel urged that the documentary evidence in the case completely contradicts the theory of the alleged division and separation and that the oral evidence fails far short of the proof required to establish the fact that Heras had prescribed to the land sought to be partitioned as against all the co-owners of the larger land, in short, Mr. Samarasekera submitted that there was in law no separation or division of the entire land
- 284. and the evidenceat best showed that some of the co-owners possessed different portions of the land purely for convenience of possession. On the other hand, Mr. Daluwatte argued that the question before us is a pure question of fact and that this court should not disturb pure findings of fact; that the oral evidence accepted by the trial Judge established a case of separation and division of the entire land; that the absence of a deed of partition or cross conveyance or a plan of partition only goes to the weight of the evidence; that the mere reference in the deeds to undivided extents of the entire land is not material for what is important is, if I may use counsel's own words, ...what happens on the land and not what is done in a Notary's office"; that the several co-owners made no claim before the surveyor at the preliminary survey nor did they prefer any claim thereafter in court; that the 6th defendant who was present at the time of the survey did not state that the corpus is only a portion of a larger land; that one of the admitted co-owners (Gunasekera) of the larger land had gifted a portion of his land to the State to construct a dispensary and that he 194 had also sold a portion of his land by public auction ; that Heras himself gave a portion of his land for the construction of a V.C. road ; that the exercise of these rights of ownership by some of the admitted co-owners was not objected to by the other co-owners ; that the preliminary plan prepared for this case shows that the corpus was separated by fences from the land of two other co-owners, namely Gunasekera and Pathiraja ; that in any event the 6th defendant who is in possession of the corpus is a tenant under the 1st defendant and has no locus standi to take the objection that the corpus is only a portion of the larger land. Now, on the pleadings and issues it is clear that the plaintiff's case was that the corpus in dispute was prior to 1936 a portion of the larger land described in schedule (1) to the plaint. In or about 1936 Heras separated off the corpus from the larger land and commenced to possess it adversely to all the other co- owners of the larger land. In other words, the allegation of the plaintiff was that around 1936 a new corpus, separate and
- 285. distinct from therest of the land, came into existence and that Heras as owner of that corpus possessed it at least for a period of 10 years and acquired a prescriptive title thereto. As Mr. Daluwatte himself submitted, the foundation of the plaintiff's case was a unilateral act of separation which was not opposed by the co-owners of the larger land. However, it is of the utmost significance to note that this was not the approach of the District Judge to the case of the plaintiff. His clear finding was that Heras separated off the corpus in 1936 with the prior approval of all the co-owners of the larger land. Here the District Judge was in serious error, for that was not the case of the plaintiff as set out in the Plaint and embodied in the issues. What is even more important is that there was no evidence that the separation or the division of the corpus was with the prior approval of all the co-owners of the larger land. As to who the co-owners of the entire land were, was not a matter which was put in issue at the trial and the result was that no evidence was led on that point. There was a further consequence arising from the erroneous finding on this crucial matter. Since the trial Judge wrongly took the view that the separation of the corpus was with the prior approval of the co-owners, he did not address his mind to the vital question of ouster or something equivalent to ouster. If in fact there was evidence that the separation of the corpus was with the prior approval of all the co-owners, then that fact may be sufficient evidence of ouster. In the absence of such 195 evidence, it was the clear duty of the trial judge to look for evidence of ouster or something equivalent to ouster. This he failed to do in the absence of ouster or something equivalent to ouster, possession by one co-owner ensures to the benefit of all other co-owners. The principle was succinctly stated by Ranasinge, J. in Ponnambalam v. Vaitialingam and Another (1) in the following terms. ...The termination of common ownership without the express consent of all the co-owners could take place where one or more parties-either a complete stranger or even one who is in the pedigree claim that they have prescribed to either the entirety or a specific portion of the common land Such a
- 286. termination could takeplace only on the basis of unbroken and uninterrupted adverse possession by such claimant or claimants for at least a period of ten years" (The emphasis is mine) Admittedly Heras entered into possession of the land in the character of a co-owner. Ever since the decision of the privy council in Corea v. lseris Appuhamy (2) it is settled law that- (a) a co-owner's possession is in law the possession of other co-owners ; (b) that every co-owner is presumed to be possessing in his capacity as co-owner; (c)that it is not possible for a co-owner to put an end to his possession as co-owner by a secret intention in his mind ; (d) that nothing short of ouster or something equivalent to ouster could bring about that result. The District judge therefore had to look for an overt act on the part of Heras which brought to the notice of his co-owners that he was since 1936 denying their rights to the corpus. This he failed to do, for he proceeded on the basis that the separation of the lot was with the prior approval of al the co-owners a basis which as stated earlier was not the case of the plaintiff nor was any evidence led of such prior approval. This was not the only error committed by the District judge. In reaching the finding that Heras had prescribed to the subject- matter of the action, he acted on the oral evidence of the plaintiff, the 5th defendant, the witness Adiris and certain admissions made by the 6th defendant in the course of his evidence. The effect of the oral evidence at its best was that there was a division of the larger land and that some (but certainly not all) of the co-owners possessed different 196 portions of the larger land. Although the witnesses claimed that a surveyor effected the division, no surveyor was called nor was any plan of any kind produced in support of any sort of division. Not one plan was produced to show that even a single co-owner has separated off his portion. But the matter does not rest there. The documentary evidence produced on behalf
- 287. of the contestingdefendants clearly and unmistakably negatived the story of the division of the entire land and divided possession. The trial judge, however, summarily dismissed the overwhelming documentary evidence and preferred to accept the oral evidence. There was here a clear misdirection in the assessment of the evidence. In unreservedly accepting the oral evidence, the District Judge overlooked the fact that oral evidence in a case of this kind could come from partisan sources and that too, long after the dispute had arisen. Such evidence must be critically examined as against documents which were executed long before the dispute arose. The documents are a contemporary record of transactions and they cannot be possibly ignored in the way the District Judge did, particularly when the documents clearly contradict the plaintiff's case of separation and divided possession. I shall now turn to the relevant documents. The registration extracts marked 6D5 to 6D18 are most revealing. The second transaction in 6D13 shows that Heras himself in 1939 mortgaged an undivided ¼ share (less certain undivided portions) to one Jan Singho. Thus three years after the alleged separation and division Heras deals with undivided shares of the entire land. Again, 6D14 shows that in 1955 Heras mortgaged to one Charlis Perera Wijesekera an undivided ¼ share (less certain undivided portions) of the larger land. Once again in 1959 Heras mortgaged an undivided share of the larger land-vide 6D16. Moreover 6D16 shows that the 1st defendant gifts to the 5th defendant an undivided 5 acres out of the larger land in April 1962 and in April 1963 the 5th defendant mortgages the said undivided 5 acres. It must be noted that the 1st and 5th defendants are persons who supported the plaintiff's case and claimed that the land was divided. In short, the registration extracts produced by the contesting defendants furnish clear proof of the fact that several co-owners including Heras, the 1st defendant, the 5thdefendant, one Gunasekera and one Pathiraja have dealt with undivided shares of the larger land over a long period of time after the alleged division in 197
- 288. 1936. The documentsshow that even as late as 1959 Heras considered himself a co-owner of the undivided larger land. The first deed in respect of a divided portion of the land was written only in 1963 (P4), that is 4 years prior to the action. It is significant that P4 executed by Heras for the first time refers to the corpus as a "divided portion". If such a division had taken place earlier, then the previous deeds would have referred to the fact of separation and division. The only two deeds which speak of a divided lot are P3 and 1D1 executed in 1963 and 1964 respectively. No other document has been produced to show that any of the admitted co-owners like Gunasekera or Pathiraja have dealt with divided lots. The documents are of great importance as they reflect the state of mind of Heras in particular and of the other admitted co-owners. It would appear that on the documents Heras considered himself to be the sole owner of the corpus only in 1963. Mr. Daluwatte sought to get over the effect of the documents by submitting that the mere reference to undivided shares is not material. But this is not a case of isolated documents which refer to undivided shares in the instant case, several deeds have been executed over a long period of time after the date of the alleged division on the basis of undivided shares. The deeds therefore are a very strong item of evidence which runs counter to the theory of a division of the larger land. In my view, had the District judge carefully considered the documents, as he ought tohave done, and given the documents due weight in his assessment of the entirety of the evidence, he could not have reasonably answered the issues relating to prescription in favour of the plaintiff. At this point it is right to add, that Mr. Daluwatte objected to Mr. Samerasekera relying on the registration extracts in the absence of the documents referred to in the extracts. Mr. Daluwatte submitted that the registration extracts cannot be used as secondary evidence to prove the contents of the documents referred to in the extracts. In my view, there is no merit in this objection raised for the first time in appeal. At the trial these extracts were marked in evidence without objection. These are certified extracts of documents maintained under the provisions of the Registration of Documents Ordinance and the regulations framed under the Ordinance. Section 15 of the
- 289. Ordinance enacts thatthe "Registration of an instrument shall be effected by entering the prescribed particulars in the proper folio." The particulars are prescribed under the Registration of Documents Regulations 198 (Subsidiary Legislation, Vol. II, Chap. 117). Mr. Samerasekera relied on the particulars of the transactions entered in the register. These certified extracts were in the forefront of the appellant's case at the trial. There is no question that the plaintiff was fully aware of the purpose for which the registration extracts were produced by the contesting defendants. Having regard to the issues in the case, it cannot be denied that the registration extracts were intensely relevant. (see also the observations of the Privy Council in Mohamedaly Adamjee v. Hadad Sadeen (3)). Had the objections now taken by Mr. Daluwatte been taken at the trial, the appellants would have had an opportunity of producing the documents relating to the relevant transactions shown in the extracts. This was not done, and we cannot now permit an objection of this kind to be taken for the first time in appeal. The oral evidence that some of the co-owners possessed different portions of the entire land is not inconsistent with co- ownership. In this connection the observations of Sansoni, J. in Girigoris Appuhamy v. Maria Nona (4) are apposite: "There is no doubt that the land is possessed in different lots by different co-owners but such a mode of possession is in no way inconsistent with common possession. It would have been different if the co-owners had executed decals for divided shares; some weight would then have been lent to the theory that there had been a division of the entire land many years ago." The preliminary plan prepared for the present action in 1970 shows that there is a fence on the east separating the corpus from the land of Pathiraja and a fence on the west from the land of Gunasekera. But the point is that there is no evidence at all in regard to the age of the fence. Nor is there any evidence that Heras put up the fences. All that the plan shows is that in 1970 there were two fences on the eastern and western boundaries of the corpus. There is evidence that one of
- 290. the admitted co-owners,namely Gunasekera, gifted a portion of the land he was in possession to the State to construct a dispensary. This gift is not very different from the case of a co- owner selling his undivided interests in the land. The position may have been somewhat different if there was evidence that the State paid compensation for the acquisition and the entire compensation was appropriated by Gunasekera. There is no such evidence. Mr. Daluwatte relies on the evidence that Gunasekera sold by public 199 auction a portion of his land. But the 5th defendant has stated that the auction sale was only in 1971, that is after the institution of this action. In any event, an auction sale would afford only a good starting point for prescription. Although Mr. Daluwatte stressed the fact that no other co-owners made a claim, before the Surveyor or filed a statement of claim, it seems to me that little importance could be attached to this fact. There may be several reasons for the failure of the co- owners to prefer a claim. Some of them may be living away from the village in which the land is situated. Some others may not have had notice of the action for varying reasons. Still others may be in possession of an extent more than their entitlement and would prefer to remain silent, No case was cited before us where a court has attached any importance to the failure of co-owners to prefer a claim in court or before the Surveyor. Mr. Daluwatte contended that the 6th defendant lacked locus standi to raise the objection that the corpus was an undivided portion of the larger land for the reason that he got rights on 6D3 after the institution of the action and that he was no more than a tenant under the 1st defendant. Apart from the fact the question of locus stand was not put in issue at the trial, the lack of locus standi in the 6th defendant is not an infirmity which in any event affects the 7th defendant who is the other appellant before us. This being a partition action, there are certain duties cast on the court quite apart from objections that may or may not be taken by the parties. As rightly observed by Jameel, J. in Kodituwakku v. Anver and Others (5):
- 291. .........................in addition tothe duty that is cast on the court to resolve the disputes that are set out by the parties in their issues, the court has a supervening duty to satisfy itself as to the identity of the Corpus and also asto the title of each and every party who claims title to it." Therefore the fact of division, separation and adverse possession pleaded in paragraphs 4 and 5 of the plaint must be proved to the satisfaction of the Court. This is not a matter which could be decided by the failure of the co-owners to prefer their claims or on the basis of the lack of locus standi on the part of the 6th defendant. As stated by Gratiaen, J. in Karunaratne v. Sirimalie (6) the Court must be satisfied that the ...rights of possible claimants who are not parties to the proceedings have not been shut out accidentally or by design". It is in evidence that William, an admitted co-owner, was not allotted a portion in the alleged division in 1936. William is closely connected to 200 Heras. Heras was married to William's sister and William was married to the sister of Heras. William could not have lost his rights in the absence of evidence of ouster or something equivalent to ouster. It seems to me that the entirety of the evidence led in the case shows that at the most some of the co-owners were in possession of divided lots not as a permanent mode of possession, but for mere convenience of possession. A division of the land on the basis of convenience of possession does not result in the termination of co-ownership. ...Very clear and strong evidence of ouster among co-owners is called for and separate, possession on grounds of convenience cannot be regarded as adverse possession for purposes of establishing prescriptive title ............. Every co-owner is in law entitled to his fractional share of everything in the co-owned property including the soil as well as plantations, but in practice it is not possible for every co-owner to enjoy his fractional share of every particle of sand that constitutes the common property and every blade of grass and every fruit from trees growing on the land without causing much inconvenience to himself as well as the other co-owners. To avoid this for the
- 292. sake of convenience,co-owners possess different portions of the common land ..........", Sinnetamby, j. in Sediris Appuhamy v. James Appuhamy (7). Mr. Daluwatte stressed the fact that the oral evidence showed that two of the admitted co-owners, namely Gunasekera and Pathiraja were in possession of separate and divided lots. But the deeds they executed as shown by the registration extracts do not indicate that they considered themselves owners of divided lots. In fact the question whether Gunasekera and Pathiraja separated off portions of the larger land and possessed them as their own, was not a matter which arose for decision at the trial. As stated earlier, it was not the plaintiff's case that there was an amicable division of the entire land amongst all the co-owners. The District Judge as well as Mr. Daluwatte relied very strongly on the case of Danton Obeysekera v. Endoris (8).That was a case where an outsider bought about 2 roods from two co- owners and separated off such portion "not for mere convenience of possession and as a temporary arrangement". What is more, there was evidence of two plans, one made in 1938 and the other in 1948 which strongly 201 supported the separation of the lot and was also evidence of ouster. The plans showed that the lot in dispute was possessed as a separate entity. In the appeal before us, there is a total lack of evidence of this nature. The best, answer to the plaintiff's case of separation of the lot in dispute and the division of the land are the deeds executed by Heras himself. It was only as late as 1963 that Heras executed for the first time a deed (P4) on the basis that he was the sole owner of the corpus. In short, the deeds of Heras himself disprove the plaintiff's case, not to mention the deeds of the other co-owners. The evidence does not disclose an ouster and there is nothing to warrant a presumption of ouster. am therefore of the view that the District Judge was in error when he answered issues 1 and 2 in favour of the plaintiff and issues 3 and 4 against the contesting defendants. I hold that the plaintiff has failed to establish that the corpus sought to be
- 293. partitioned is aseparate and divided portion of the larger land. Therefore this action cannot be maintained. I accordingly set aside the judgment and interlocutory decree and dismiss the plaintiff's action. The plaintiff-respondent must pay the defendants - appellants the costs of appeal fixed at Rs. 210. JAYALATH, J. - I agree. Appeal allowed. Sri Lanka Law Reports
- 294. PIYADASAAND ANOTHER VS.BABANIS AND ANOTHER Partition Law, No. 21 of 1977 - Plea of Prescription - Co-owner prescribing to entire land?-Presumption of ouster - Essentials of a Kandyan Marriage - Special Law in derogation of the Common Law -Can a new point be raised for the first time in appeal?-Can there be a valid Kandyan marriage by way of habit and repute - Kandyan Marriage and
- 295. Divorce Act, Section3 - Presumption in favour of marriage under Roman Dutch Law - Evidence Ordinance, section 103. 2006 - Volume 2 , Page No - 17 COURT OF APPEAL. IMAM,J. W. L. R. SILVA, J. CA 457/94(F). DC EMBILIPITIYA2389/P. NOVEMBER 23, 2005. FEBRUARY 13, 2006. MARCH 28, 2006. Partition Law, No. 21 of 1977 - Plea of Prescription - Co-owner prescribing to entire land?-Presumption of ouster - Essentials of a Kandyan Marriage - Special Law in derogation of the Common Law -Can a new point be raised for the first time in appeal?-Can there be a valid Kandyan marriage by way of habit and repute - Kandyan Marriage and Divorce Act, Section 3 - Presumption in favour of marriage under Roman Dutch Law - Evidence Ordinance, section 103. The Plaintiff-appellant instituted action seeking to partition the land in question, giving 1/2 share to the 1st and 2nd defendant - respondents. The 1st and 2nd respondents claimed title to the whole land by prescription. The trial Judge dismissed the plaintiffs action on the ground that Pemanisa and Salo Nona were not married and therefore appellants and defendants were not legitimate children and further rejected the plea of prescription to the whole land by the respondents. Both parties depended on the fact that there was a valid marriage. .
- 296. HELD: (1) None ofthe parties have led any evidence in order to prove an overt act of ouster against the other party. per Ranjith Silva, J. "I must emphasize that considerable circumspection should be exercised before arriving at a finding on prescription as it deprives the ownership to the party having paper title. Title by prescription is an illegality made legal, due to the other party not taking action at the proper time. Held further: (2) If the parties were subject to Kandyan Law there could not have been a marriage by habit and repute. Registration is the essence of a valid Kandyan marriage. Per Ranjith Silva, J. "A marriage between persons subject to Kandyan Law if not solemnized and registered under the Kandyan Law or under the Marriage Registration Ordinance will not be regarded as a valid Kandyan marriage and the intestate succession to the property of such persons will not be in accordance with the Kandyan Law. The necessary corollary of this would be that in such an event the law applicable would be the Common law." Held further: (3) There is no evidence that Salo Nona and Pemanisa were Kandyans and that they were subject to Kandyan Law. (4) The trial Judge had completely ignored the overwhelming evidence sufficient to prove that there was a marriage by way of habit and repute between Salo Nona and Pemanisa. (5) According to the Roman Dutch Law there is a presumption in favour of marriage rather than that of concubinage. When persons who were living together as husband and wife were recognized as such by everybody in the circle in which they move it created a presumption in favour of marriage and in the absence of evidence in rebuttal to the contrary the court was entitled to presume that the parties were duly married as
- 297. required by law.In this case there was ample evidence before the trial Judge for him to have considered the presumption. (6) On a question of fact the appellants cannot agitate for the first time in appeal without first having contested the matter in the original court. (7) An entry of not married in a register is intended by parties to mean no more than not registered. APPEAL from the judgment of the District Court of Embilipitiya. Cases referred to : 1. A/wis vs. Perera 21 NLR 321 2. Thilakaratne vs. Bartan 22 NLR at 121 3. Mena Fernando vs. Anthony Fernando 19972 Sri LR at 350 4. Seetiya vs. Ukku 19861 Sri LR 225 5. Podi Nona vs. Harathhamy and Others 19852 Sri LR 237 6. Spencervs. Rajaratnam 16 NLR at 321 7. Sitha vs. Weerakoon 49 NLR 225 8. Jayasekera vs. Silva 76 NLR 427 9. Candappa vs. Ponnamba/ampillia 19931 Sri LR at 184 10. Sastry Va/aider Aronegin and his Wife vs. Sembekutty Viaga/ie2 NLR at 322 11. Dinohamy vs. Ba/ahamy 29 NLR at 114 12. Fernando vs. Dabarera 65NLR 282 13. Laddu Adirishamy vs. Peter Perera 38 CLW87 at 88. 14. Don Simon alias Singha Appu vs. Fernando 38 CLW 38 L. C. Seneviratne, PC with Anuruddha Dharmaratne for 1A substituted-plantiff appellant and the 2nd plantiff-appellant. S. C. B. Walgampaya, PC with Ajith Liyanage for the 1A substituted-defendant respondent and 2nd defendant - respondent. Cur.adv.vult.
- 298. June 2, 2006. RANJITHSilVA, J. The Plaintiffs-Appellants (Appellants)institutedthis action bearing No.2389/P in the District Court of Embilipitiya seeking to partition the land called Landegedarawatta alias Kaluwagewatta(hereinafter referred to as the 'Land') about one acre in extent which is depicted in plan No. 1012 prepared by G. Warnakulasuriya Licensed Surveyor marked as 2 at the trial in the District Court. According to the pedigree relied on by the appellants the land originally belonged to one Morapitiyage Babanisa. Babanisa died intestate and upon his death title to the same devolved on his son Morapitiyage Rankira who was his sole heir. Morapitiyage Rankira died intestate leaving as his sole heir, his son Morapitiyage Pemanisa who by inheritance became entitled to the entirety of the Land. The Appellants further pleaded that the said Pemanisa died intestate leaving the 1st and 2nd appellants (Piyadasa and Edwin) and Disi Nona and William on whom devolved Pemanisa's rights; that the said Disi Nona and William in or about 1952conveyed their undivided 1/2 share to the 1st and 2nd defendants Respondents (who shall hereinafter be referred to as "the Respondents"). The case for the Appellants as well as the Respondents mainly depended on the fact that there was a marriage by habit and repute between Pemanisa and Selonona. Why the Appellants did not propose to give any shares to Selonona the wife of Pemanisa is a mystery. The 1st and 2nd Respondents in their statement of claim admitted that Morapitiyage Pemanisa was at one time the owner of the entire corpus. Both the appellants and the Respondentsaccept the devolution of title up to Pemanisa ; it is from this point onwards that the Parties differ as to the devolution of title. The Respondents pleaded that upon the death of Pemanisa the widow of Pemanisa that is one Selonona became entitled to an undivided 1/2 share of the land and the balance 1/2 share devolved on the 1st and the 2nd Appellants and Disi Nona and William who thus became entitled to 1/8 share of the land each. The Respondents further averred that
- 299. the said Selonona,Disinona and William conveyed their undivided 3/4 shares of the Land to the 1st and 2nd Respondents upon deed No. 13328 dated 09.02.1952 and that 1st and 2nd Respondents as the owners cultivated the entire land in coconut, jack, arecanut and rubber and thus had been in possession of and residing on the land ever since. The Respondents claimed title to the entire land based on prescriptive possession and prayed for a dismissal of the action. At the trial it has been recorded that there was no dispute with regard to the corpus and thus the identity of the corpus was never in dispute. The dispute is with regard to the devolution of title. The Appellants claim that they are entitled to a 1/2 share of the 'Land' and that the Respondents are entitled to the balance 1/2 share. The Respondents on the other hand do not concede that they are only entitled to a 1/2 share of the 'Land'. Instead they claim that although they are entitled to 3/4 shares of the Land on paper title they have acquired prescriptive title to the entire land based on prescriptive possession. The Learned District Judge, after trial, held by his judgment dated 10.08.1994, that the evidence led in the case did not establish that Pemanisa was married to Selonona and therefore the 1st and the 2nd appellants and Disinona and William were not the legitimate children of Pemanisa and as such they could not have inherited the 'Land' from Pemanisa. The Learned District Judge further held that neither the Appellants nor the Respondents have proved prescriptive rights to the said 'Land' and accordingly dismissed the appellants' action. Being aggrieved by the said judgment the appellants have preferred this appeal to this court. There is no cross appeal taken by the Respondents on the question of prescription raised by the Respondents even though the learned District Judge has held against the Respondents on that issue. The Appellants have, although whatever the relief they may have prayed for in their petition of appeal, at the stage of arguments, in this court limited the relief they sought and prayedthatthejudgmentdated10.08.1999 dismissing the Appellant's action be vacated and a fresh judgment be entered
- 300. declaring, that theRespondents were entitled, to an undivided 3/4 shares of the land and the Appellants were entitled to an undivided 1/4 share of the land, together with similar shares that is 3/4 for the Respondents and 1/4for the Appellants from the house and whatever the plantation standing thereon. PRESUMPTION OF OUSTER Whether the Appellant as a co owner of the land could have prescribed to the entire land as against the other co owners in the absence of any specific overt act of ouster as far as the other co owners are concerned is a vital point that ought to be decided in this regard. In this case on a perusal of the brief. I find that none of the parties have even contemplated, let alone led any evidence in order to prove an overt act of ouster against the other party. I must emphasize that considerable circumspection should be exercised before arriving at a finding on prescription as it deprives the ownership of the party having paper title. Title by prescription is an illegality made legal due to the other party not taking action at the proper time. I would like to quote one of the relevant maxims namely the maxim Vigilantibus non domientibus, Jura subvenient meaning-the laws assist those who are vigilant, not those who sleep over their rights. Dealing with this maxim, it is stated, in the book entitled 'Broom's Legal Maxims' Tenth Edition at page 599 that I quote;" for if he were negligent for a long and unreasonable time, the law refused afterwards to lend him any assistance to recover the possession; both to punish his neglect nam leges vigilantibus, non dormientibus jura subvenient and also because it was presumed that the supposed wrong-doer had in such a length of time procured a legal title, otherwise he would sooner have been sued." A co-owner's possession is in law the possession of other co owners. Every co owner is presumed to be in possession in his capacity as co owner.A co-owner cannot put an end to his possession as co owner by a secret intention formed in his mind. Nothing short of ouster or something equivalent to ouster could bring about that result. (VideAlvis vs.Perera(1)) In Thilakarathne vs. Bastian (2)itwas held I quote; "It is a question of fact, where ever long continued possession by one co owner is proved to have existed, whether it is not just and
- 301. equitable in allthe circumstances of the case that the parties should be treated as though it had been proved that separate and exclusive possssion had become adverse at some date more than 10years before action was brought." The judgment in Maria Fernando vs. Anthony Fernando (3)at 356 is applicable to the facts of this case. It was held in that case that long possession, payment of rates and taxes, enjoyment of produce, filing suit without making the adverse Party, a party, preparing plans and building houses on the land and renting it, are not enough to establish prescription among co owners in the absence of an overt act of ouster. It was held in Seetiya vs. Ukku(4)that nothing short of an ouster or something equivalent to ouster is necessary to make possession adverse to end co ownership. Although it is open to a court from long lapse of time in conjunction with other circumstances of a case to presume that possession originally that of a co-owner has later became adverse, the fact of co- owners possessing different lots fencing them and planting them with a plantation of coconut trees which is a common plantation in the area cannot make such possession adverse. For the aforesaid reasons I find that there is no flaw in the findings of the learned Judge with regard to the issues based on prescription. In any case none of the parties, neither the Appellants nor the Respondents have seriously contested in this court, the findings of the learned Judge on the issues based on prescription.' On the first day of the oral submissions the counsel for the Appellants submitted to this court for the first time that the parties were subject to Kandyan Law and therefore Selonona was entitled only to a life interest in the property and that the rights to the entire property devolved on the children of the said Pemanisa. In the lower court, it was never the case for the appellants that the parties were subject to Kandyan law. On the second day of oral submissions the counsel for the appellant abandoned the said submission but never denied that Selonona was married to Pemanisa. Therefore one can only assume that the appellant thereby conceded that the parties were married under the common law especially so in view of the fact that the appellants averred and maintained the position right through that the appellants being two of the four
- 302. children of Selononaand Pemanisa inherited the property on the demise of their father Pemanisa. In any event if the parties were subject to Kandyan Law there could not have been a marriage by habit and repute. It was held in Podinona vs. Harathhamy and Others(5) that registration is the essence of a valid Kandyan marriage. Special Law in Derogation of the Common Law Even otherwise the law is very clear on this point. It was held in Spencer vs. Rajaratnam(6) at 321 that any person claiming to be subject to any special law in derogation of the common law must prove it. According to the ratio decidendi in the above mentioned case, the onus in the instant case was on the Appellants to prove on a balance of evidence that Selonona was subject to Kandyan Law being a special law in derogation of the common law. Since the appellants totally failed or neglected to frame any issues on this point and since there is not an iota of evidence led by either party to give the slightest indication that Selonona was subjected to Kandyan law, the argument that Selonona had only a life interest over the land cannot be sustained and therefore should be rejected in toto. New point raised for the first time in appeal On the other hand this being a question of fact the appellant cannot agitate this matter in the Court of Appeal for the first time without first having contested this matter in the original court. In Setha vs. Weerakoon (7) it was held that a new point which was not raised in the issues or in the course of the trial cannot be raised for the first time in appeal, unless such point might have been raised at the trial under one of the issues framed, and the Court of Appeal has before it all the requisite material for deciding the point or the question is one of law and nothing more. In Jayawickrama vs. Silva (8) It was held that a pure question of law can be raised in appeal for the first time, but if it is a mixed question of fact and law it cannot be done. In Candappa vs. Ponnambalampillai (9) at 184 it was held that a party cannot be permitted to present in appeal a case different from that presented in the trial court where matters of fact are
- 303. involved which werenot in issue at the trial, such case not being one which raises a pure question of law. In this regard I would also like to quote section 103 of the Evidence Ordinance which reads as follows: "The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any lawthat the proof of the fact shall lieon any particular person." Since both parties admitted expressly or impliedly that Selonona was the lawful spouse of Pemanisa it was incumbent on either party to prove that fact. Section 58 of the Evidence Ordinance is as follows; "No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleading." "Provided the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions." KANDYANLAW VS MARRIAGE BY HABITAND REPUTE The 2nd Respondent in giving evidence at the trial stated that Selonona and Pemanisa were married; that they both resided in one house on a land called Kumburugedera Watta and that they had four children by this union. (vide. Proceedingsat page 85 and 86 of the brief) This witness also stated that they were lawfully married and that the children were born unto them. It was also admitted by this witness that the said parties lived as one family, lived at Hatangala and that William, Dissinona, Piyadasa (1st plaintiff Appellant) and Edwin (2nd Plaintiff Appellant) were their children. (Vide.page91of the brief).The Appellant too in giving evidence maintained that Pemanisa and Selonona were their father and mother and that they were legally married. Unfortunately for the Appellants as far as the judgment of the learned trial Judge is concerned, even though the effect is temporary, their counsel marked as P1 and produced the birth certificate of Piyadasa one of the Appellants, wherein it is stated that the parents of Piyadasa were not married. The learned trial Judge banking entirely on
- 304. that statement, foundin column 7 of the said birth certificate, fatally misdirected himself and held that the parties were not married and dismissed the case on the basis that since Pemanisa and Selonona were not married, both the Plaintiffs (Appellants) and the Defendants (Respondents) did not derive any title to the Land as they were not the legitimate children of Pemanisa and Selonona. In doing so the learned Judge has completely ignored the over whelming evidence that was before him, sufficient to prove that there was a marriage by way of habit and repute between Selonona and Pemanisa. There is noevidence that Selonona and Pemanisa were Kandyansor that they were subject to Kandyan Law. Hence the provisions of section 3 of Kandyan Marriage and Divorce Act will not apply.Assuming arguendo that Selonona and Pemanisawere persons subject to the Kandyan Law, it is my opinion that the heirs could still claim the benefit of the presumption arising out of marriage by habit and repute even though the devolution of title would be not under the Kandyan Law but the Common Law. The provisions of section 3 of Kandyan Marriage and Divorce Act is to the effect that a marriage between persons subject to Kandyan Law shall be solemnized and registered under that Act or the Marriage Registration Ordinance and any such marriage not so solemnized and registered, shall be invalid. It was held in Podinona vs. Harathhamy and others (supra) quote "After 1859 registration is the essence of a valid Kandyan marriage and customary Kandyan marriages ceased to be valid. The marriage here being one said to have been contracted sometime prior to 1937,the entry in the Register of marriages in terms of section 39 of Ordinance NO.3 of 1870, is the best evidence of the marriage. The expression 'best evidence' as used in the said section 39 refers to the registration entry in the Register of Marriages and excludes all evidence of an inferior character." It is therefore mainfest that there cannot be a valid Kandyan marriage by way of habit and repute. If there be any such marriage then the law applicable to intestate succession will be the common law and certainly not the Kandyan Law. In support of this view of the matter I would like to quote section 3(2) of the Kandyan Marriage and Divorce Act which reads as follows:
- 305. "The fact thata marriage, between persons subject to Kandyan Law, is solemnized and registered under the Marriage Registration Ordinance shall not affect the rights of such persons, or the other persons claiming title from or through such persons, to succeed to property under and in accordance with the Kandyan Law." On a reading of this sub section it is apparent that the intention of the legislature in enacting section 3 of the said Ordinance was to lay down the law that a marriage, between persons subject to Kandyan Law if not solemnized and registered under the Kandyan law or under the marriage Registration Ordinance will not be regarded as a valid Kandyan Marriage and that the intestate succession to the property of such persons will not be in accordance with the Kandyan Law. The necessary corollary of this would bethe Common Law. It was never the intention of the legislature to deprive the Kandyans of their right to rely on or claim the benefit of the presumption arising out of marriage by habit and repute, in a fit case, if they so wish. To hold otherwise will result in the bastardization of hordes of unsuspecting innocent children, depriving them of their legitimate dues. Such an interpretation will be against public policy and should be dissuaded from, unless there is no alternative. In the case of Sastry Valaider Aronegiri and his wife vs. Sembekutty Viaga/e (10)at 322 it was held that according to the Roman Dutch Law of Ceylon there is a presumption in favour of marriage rather than that of concubinage. According to the law of Ceylon, as in England where a man and woman are proved to have lived together as man and wife the law will presume unless the contrary be clearly proved that they were living together in consequence of a valid marriage. In Dinohamy vs. Ba/ahamy (11) at 114 once again the Privy Council held that under the law of Ceylon, where a man and a woman are proved to have lived as husband and wife, the law will presume unless the contrary be clearly proved that they were living together in consequence of a valid marriage and not in a state of concubinage. In the instant case before us too the evidence discloses that Selononaand Pemanisa had lived together as husband and wife and were thus recognized by the
- 306. villagers and allthose who knew them. What is more they had four children and all the parties concerned have admitted this fact in no uncertain terms. In Fernando vs. Dabrera (12) the Supreme Court held that the evidence of marriage ceremonies or religious rites was not essential to establish a marriage by habit and repute if both parties were dead and the marriage was contracted at a very early stage. The Supreme Court, in this case too, held that the fact that when persons were living together as husband and wife and were recognized as such by everybody in the circle in which they move it created a presumption in favour of marriage and in the absence of evidence in rebuttal to the contrary, the court was entitled to presume that the parties were duly married as required by law. In this case too there was ample evidence before the learned District Judge for him to have considered this presumption. The District Judge did not propose to rely on this presumption, instead held otherwise apparently because he completely misdirected himself on the law. He, I believe, came to this conclusion simply because the birth certificate of one of the Appellants states in column 7 that the parents were not married. In Laddu Adirishamy vs.Peter Perera(13) at 88 it was held by the Supreme Court citing earlier cases that such declaration to a Registrar of Births might well amount, particularly in the case of an ignorant villager to little more than an admission that the marriage of the parents was not registered, and not necessarily an admission that a marriage by custom has not taken place. The learned trial Judge appears to have pitched, the fact that column 7 of the birth certificate contained such entry, very high and given undue weight to that fact, in arriving at his findings on this point. Following the dictum in Don Simon alias Singha Appu vs. Fernando (14) it was held by Sinnetam by, J. in Fernando vs. Dabrera (supra) at 282 that, I quote 'The only positive item of evidence against the marriage is the document 7D1, which is the birth certificate of one of the children, where the parents are stated not to have been married: but as was observed by the judges who decided Laddu Adirishamy vs. Peter Perera (supra) at 87, an entry of "Not married" in a register is
- 307. intended by partieswho are illiterate to mean no more than "not registered". For the aforesaid reasons I hold that the findings of the learned Judge on this issue to be per incuriam. Therefore on the facts and the law and for the reasons adumbrated above I find that I am unable to agree with the findings of the learned District Judge other than with his findings on the issues of prescription. Accordingly I set aside the judgment of the learned District Judge dated 10.08.1994 and hold that the devolution of title to the property should be on the basis as setout by the Respondents. Namely an undivided 1/4 share of the land, to the 1st and 2nd appellants jointly and an undivided 3/4 share to the 1st and 2nd Respondents jointly. This shall include a similar share in the plantation and the house on the land that is 1/4 share of the house and plantation to the 1st and 2nd Appellants jointly and 3/4 share of the house and plantation to the 1st and 2nd Respondents jointly. Accordingly I hold that the answers, to the issues framed by the parties, at the trial held in the District Court to be as follows: (1) Yes (2) Yes (3) Yes (4) No (5) Yes (6) No (7) No (8) The Plaintiffs are jointly entitled to 1/4 share of the land and 1/ 4 share of the house and plantation thereon. (9) Yes (10) Not proved (11) No (12) The defendants are jointly entitled to 3/4 shares of the land and 3/4 shares of the house and the plantation thereon.
- 308. The Learned DistrictJudge of Embilipitiya is hereby directed to enter judgment and the interlocutory decree in conformity with this judgment. In the circumstances of this case we make no order as to the costs of this appeal. IMAM J. -I agree. Appeal allowed.