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Present : De Sampayo J.
BABUN APPU t>. UPABIS.316—C. B. Matara, 8,297.
Divel lands—Right of Crown to sell a share of the land.
Db Sampayo J.—" Divel lands became the property of theholders,^ subject only to the payment of the above share of produce(one-tenth in the case of high lands and one-fifth in the case of lowlands) to Government. I am unable to say how the Crown* cameto be considered as having, a share in the lands themselves, but thefact is illustrated by many cases that come before the Courts.Probably, in course of time, the true reason for payment of a share,of the produce to Government was forgotten, and it was. assumedthat the payment was in respect of a corresponding share in theland still vested in the Crown.'*
HIS was an action for the partition o£ a land which is markedA, B, C, and D in .the plan filed in the case* The sixth
defendant-appellant's contention was that lot A in the plan filedwas no part of B, C, and D, and he churned the whole of A upona transfer deed (6D 8) from his. late , father Sinchi, who purchasedit from the Crown, upon a Crown grant (6 D 4). The plamtiffs-respondente contended that the Crown grant conveyed to the sixthdefendant-appellant, only a one-fifth of the lot A. The learnedCommissioner held against the sixth defendant, and he appealed.
B. L. Pereira, for the sixth defendant, appellant.
IF. H. Per era, for plaintiff, respondent.
Cur. adv. milt.
November 8, 1015. Ds Sampayo J.—
This is an action for the partition of a land consisting of lotsA, B, C, and D in the plan. The only dispute is rased by thesixth defendant, who claims the entirely of lot A upon the Crowngrant dated February 4, 1889, in favour of his. father Sinchi.The Commissioner considers that the Crown grant in reality conveyeda one-fifth share of the whole land, and in this opinion I think heis right. The land is of the tenure known as divel paraverti andalso as wedawasan. The origin of this tenure is traceable bach toremote times. Headmen were, according to immemorial custom,remunerated for their services by grants of land to be held free ofduty, and the land descended on male heirs under the condition of
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service, but reverted to the Crown on a total failure of male heirs 191&in fiie direot or collateral line.. The acaommodeacm had the same twsignificance with regard to'the Laaooreena, whe performed military J.service. This system was continued by the Portuguese and Dutch, 3abtm~Appuand was recognized also in the early dayB of .the BHtish Governments ®« Uparieihou^i, I take it, no new grants of land were made. When Ceylonwas still administered by the Government of Madras the salarysystem was adopted, and the lands were considered to be theproperty of the holders in full ownership, subject to & payment toGovernment, of a tenth share of the produce. See Bertolaooi 290,and also Cordiner’s Description of Ceylon, on the subject offeudalism in Ceylon. Governor North, by the proclamation ofMay 8, 1800, withdrew the pay of native headmen, and declaredthat all persons holding lands by tenure of service had permissionto appropriate the lands on the payment of one-tenth share of theproduce in the. oase of high lands and one-fourth share in the caseof low lands. With regard to Laseoreene, it provided -for theirgiving up accommodeaans and receiving pay for weir services, . Bythe proclamation of September 3, 1&01, however, all obligationto serve on tenure of lands was finally abolished, and it was enactedthat all lands held duty free at that time on account of serviceshould pay to Government a .tenth share of the produce in the caseof high Isolds and a fifth share in the oase of low lands. It will beseen that the result of those provisions was that divel lands becamethe property of the holders, subject only to the payment of theshove shares of produce to Government. I am unable to say howthe Crown came to be considered as having a share in the landsthemselves, but the foot is illustrated by many oases that have comebefore the Courts. Probably, in course of time, the true reason forpayment of a share of the produce to Government was forgotten,and it was assumed that the payment was in respect of ‘a corre-sponding share in the land still vested in the Crown: At any rate,tiie Crown frequently gives back its share in the lands on payment oftiie Value, and a grant in the usual form is made. In this case theCrown share of land was one-fifth, but, by some oversight orother, the grant issued to Sinchi was for a specific portion of tiieland, which'is identified as lot A in dispute. It is, however, clearfrom the record of the sale that only a one-fifth share belonging totiie Crown was sold. The Crown, grant can therefore be construedas conveying only a one-fifth share of the entire land, and this hasbeen allowed to the sixth defendant and the other heirs of Sinchi.
-1 think the judgment appealed against is right. The appeal isdismissed, with costs.
BABUN APPU v. UPARIS