( 481 )
Present: Lascelles C.J. and Wood Benton J.
CHABLES HAMY et al. v. JANE NONA et al.
16—D. C. Kalutara, 4,457.
Title wider a will can only be established by proof of probate—Willcannot be proved incidentally for that purpose in another action—Prescription—Co-heirs—Adverse possession.
It is only by proof of probate that title under a will can beestablished; awill cannot beproved incidentallyinthecourse of
another actionfor the purposeof establishing title.
The title ofa co-heir enuresto the benefit of all his co-proprietors,
and his possession is in law the possession of his co-owners, andnothing shortof ouster or something equivalenttoitcan make
the possession of co-owners adverse.
fJlHE facts are set out in the judgment.
Sampayo, K.C., for the appellants.
Bawa, K.C., for the respondents.
Cur. adv. vult.
.March 15, 1912. Lascelles C.J.—-
This is a partition action in which the contest is between thefirst plaintiff, who is the daughter of one Nanghamy by her secondmarriage, on the one side, and on the other the seventeenth to thetwenty-third defendants and the thirty-third defendant, who derivetitle through two of Nanghamy’s children by her first marriage.
The questions on which the appeal turns are, first, whether thelearned District Judge was right in admitting in evidence and ,acting on a document purporting to be the joint will of Nanghamyand her husband Hendrick Silva, which had never been admitted toprobate; and secondly, whether he was right in deciding that therespondents had acquired prescriptive title to the two parcels ofland in question as against the first plaintiff.
With regard to the first of these questions, there could hardlyhave been any difficulty but for certain decisions of this Court, thescbpe of which, I 'think, has been misapprehended. Section 8 ofOrdinance No. 7 of 1840 enacts that testamentary writings executedin accordance with the Ordinance shall be valid without furtherpublication, and then provides “ that every such will, testament,or codicil shall, after the decease of the testator or testatrix, beduly proved and recorded in the District Court empowered by the
1«J. K. A 9941$ (8/(0)
• OharltaHomy t>.•7<*n« Nona
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Charter to' grant probate or administration in such cue, accordingto suoh general rules of practice as may now or hereafter be madeby the Judges of the Supreme Court.”
In Punchi Menika v. Ukku Menika,1 decided in 1878, Fhear C.J,held that under the rules and orders which then regulated the pro-bate of testamentary instruments a will might be incidentally provedin the course of the proceedings in which it was tendered in evidence.In Silva v. Ooonawardene,a which was decided in 1892 with referenceto the same will as was tendered in evidence in this case, Lawrie J.appears to have doubted whether any other evidence than probatewas sufficient to establish that a testamentary writing is the l&Bt will.But Silva v. Ooonawardene* is hardly an authority on the point underconsideration, as the case was really decided on an issue as toprescription.
Fernando v. Fernando,* decided in 1898, was a case is which theDistrict Judge had declined to follow Punchi Menika v. UkkuMenika.1 Bonser C.J. thought that he was wrong in so doing, butexpressed the opinion that, although the District Court slight havejurisdiction to prove testamentary inauruments incidentally in thecourse of the proceedings in whioh they were tendered, yet it wouldbe in most cases highly inconvenient for the Court to exercise itsjurisdiction in that way. It is clear that neither of the two laBt-mentioned oases carries the matter au, further.
The question strikes me as a very simple one. Under section 8of Ordinance No. 7 of 1840 testamentary instruments must beproved and recorded by the duly empowered Court “ according tosuch general rules of practice as may now or hereafter be made bythe Judges of the Supreme Court in other words, according topractice and procedure in force for the time being.
In the first-mentioned case Fhear C.J. held, rightly or wrongly,that under the rules whioh at that time regulated the practice of theDistriot Courts testamentary instruments might be proved in thecourse of an ordinary action. But the question is whether such a.proceeding is permissible under the Civil Procedure Code which nowregulates the probate of testamentary writings. To this questionthere can be but one answer. If chapter XXXV11I. of the CivilProcedure Code means anything at all, it means that the wills ofpersons dying in Ceylon must be proved in the manner therein pres-cribed, and that they can be proved in no other manner.
The decision of Phear C.J. waB merely a decision on the procedureas it stood in Bis day, and is, in my opinion, no authority for theproposition that, since the enactment of the Civil Procedure Code,wills can be proved otherwise than by means of a testamentaryaction. The Distriot Judge was therefore, in my opinion, wrong in
» (1876) 8 C. L. R. UO.» (1892) 2 C. L. R. 1M.
* (1898) 2 S. C. R. ISO.
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treating the will as having been duly proved by the evidence givenin this action. I would add that in any case I should have hesi-tated to rely on the testimony of the witness Karunaratna as to hishaving been shown the will when he was a boy of about fourteenyears of age. The question then arises whether we should allow therespondents an opportunity of taking proper testamentary proceed-ings to prove the will. I am of opinion that we should not do so.The delay in proving the will is inexcusable, and testamentaryproceedings would probably result in a trial covering pretty muchthe same ground as the present action.
On the second point I find myself unable to agree with the findingof the learned District Judge that the respondents have acquiredprescriptive title as against the first plaintiff. The learned DistrictJudge has analysed the evidence with care and lucidity, but heappears to me to have lost sight of the leading principles which areapplicable in such oases.
The circumstances under which a co-heir can obtain a title by.prescription are authoritatively laid down by the recent judgmentof the Privy Council in Core a v. Appuhamy.1 The title of aco-heir enures to the benefit of all his co-proprietors, and his posses-sion is in law the possession of his co-owners, and nothing shortof ouster or something equivalent to it can make the possessionof co-owners adverse.
Can it be said that anything in the shape of ouster has been provedor can' be presumed in this case?
The first plaintiff up to the date of her marriage, which I gatherwas shortly before 1892, lived with her eldest half-brother Asseneris;and up to that date it is hardly possible that her share was beingpossessed adversely by her. The learned District Judge finds thatup to that date she did not deal with her share independently. Butthis fact, if it be a fact, in no way helps the respondents, on whomlies the onus of proving an ouster. After that date the plaintiff,dealt with the property on the footing that she was entitled to hershare in. the property. The District Judge finds that ever since hermarriage fifteen years ago the first plaintiff has been setting up aclaim to her share of her mother’s land. But the question is not“ whether she actually possessed ” as the District Judge states.The question is whether the respondents have affirmatively provedadverse possession in the manner in which adverse possession canbe proved by one co-heir against the other co-heirs. The evidenceshows, that there have been dealings by the co-heirs on the footingthat the will was in force, and also dealings on the footing that therewas an intestacy. But the findings of the District Judge fall farshort of proving such adverse possession as the law requires in orderto enable one co-heir to obtain title by prescription against hisco-heirs.
■CharlesHomy v.Jane Nona
» (IMfl 15 N. L. B. 65.
( 484 )
Oharlt* ■Bamyv.Jane Nona
For the above reason X would set aBide the judgment of theDistrict Judge and send the case, back for a partition to be carriedout on the footing that (1) Nanghamy and her husband died intestate;and (2) that the respondents have not aoquired a prescriptive title.
The appellants are entitled to their costs of appeal and also in theCourt below.
Wood Benton J.—
The plaintiffa-appellants brought this action for the partitionof two lands, Ambagahawatta and Mawataboda Bulugahawatta.The original owners were Hendrick Silva and his wife Nanghamy,who were married in community of property. The defendants-respondents are the representatives of the children of that marriage.After the death of Hendrick Silva, Nanghamy married again. Sheadmittedly died about forty years ago. The first plaintiff-appellantwas the only child of the second marriage, and the second plaintiff-appellant is her husband. The defendants-respondents deny theappellant’s right to any share of the lands sought to be partitioned.The seventeenth to the twenty-third claim the whole of Ambagaha-watta under an alleged joint twill dated September 8, 1855, byHendrick Silva and Nanghamy, and also by prescription. Thethirty-third defendant-respondent claims a half of MawatabodaBulugahawatta under that will, and says that the other half belongsto Julis Silva, the sixteenth defendant. The twenty-fourth to the. thirty-first defendants, who are not respondents to this appeal,claimed two-sevenths of both lands by inheritance, purchase, andprescription, but they abandoned that claim at the trial andidentified themselves with the case of the respondents. The learnedDistrict Judge has dismissed the appellants’ action. He held thatthe joint will had been proved and acted upon, and that therespondents had established a prescriptive title to the land. Thepresent appeal is brought against that decision. Three points wereargued by Mr. de Sampayo in support of it: firstly; that as noprobate had ever been obtained for the alleged joint will no proofof it aliunde should have been admitted; secondly, that in any casethe evidence adduced for the purpose of establishing the will, wasinsufficient to do so; and lastly, that the respondents had notnqpde out a case of title by prescription. On all three points I' think that the appeal succeeds.
Apart from authority, I should not have had any difficulty inholding that it is only by proof of probate that title under a will canbe established in the Courts of this Colony. .It is clear law that therights of heirs ab mte&tato can be displaced only by proof of a validlast will and testament. Section 8 of Ordinance No. 7 of 1840enacts that every will executed in accordance with the requirementsof the earlier sections in the Ordinance shall be valid without any
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other publication, “ provided always that every such will shafll,
after the decease of the testator or testatrix, be duly proved andrecorded in the District Court empowered by the Charter to grantprobate or administration in such case.” The efiect of the proviso tothis section is to make probate of a will a condition precedent to itsvalidity as a direct source of title, and until the existence of such awill has been established the rights of the heirs ab intestalo stand.This view of the law was adopted obiter by Lawrie J. and Withers J.in Silva v. Qoonewardene.1 “ As a will, ” said Lawrie J., “is re-vocable by the execution of a subsequent will, the mere proof thatthe < testamentary document was executed by a deceased will notprove that it was his last will. ” In the earlier case of Punchl Menikav. Uklcu Menika 2 Phear C.J. and Clarence and Dias JJ. held thatifoe second rule of section 4 of the then existing rules and (Ordersmade by the Supreme Court enabled a will to be proved in legalproceedings under the practice laid down by rules 1 and 2 of thesection just mentioned without the further steps being taken, whichby the following rules were rendered necessary for the purpose ofprobate. There is no need to express an opinion on the questionwhether that was a correct interpretation of the then existing law.It is sufficient to say that in the corresponding section of the CivilProcedure Code—section 516—there is nothing analogous to theprovisions of the second rule of section 4 of the old rules, and thatunder the present practice it is only by proof of probate that titleunder a will can be established. In Fernando v. Fernando3 BonserC.J. and Lawrie and Withers JJ., following the decision in Silva v.Qoonewardene held that a Court may in its discretion allow a willto be proved incidentally in the course of an action, but that itwould be highly inconvenient to do so, and that the better coursewould be, under such circumstances, to adjourn the case so as toenable the parties to prove the will in independent proceedings.The learned Judges who decided Fernando v. Femqndo3 followedSilva v. Qoonewardene1 with evident reluctance, and I think that adifferent opinion would have been expressed if the attention of theCourt had been called to the material difference between theprovisions of the second rule of section 4 of the old rules and ordersand those of section 5l6 of the Civil Procedure Code. .In myopinion the decision of the learned District Judge on this point iswrong.
' As regards the actual proof of the will, the evidence of its executionby Hendrick Silva himself is meagre, and there is no evidencewhatever that it was executed by Nanghamy. There can be nodoubt but that, if the existence of a joint will by Hendrick Silva andNanghamy had been proved by reliable evidence, it might haveformed a good starting point for prescriptive rifle in the respondents,i (1892) 2 C. L. R. 140.2 (1S7S) 2 C. L. R. 140.
* (1893) % flL C. R. ISO.
CharlesHomy v.Jane Nona
CharlesHomy v.Jane Nona
( 486 )
But here both the appellants and the respondents are heirs ab intea-tato, and it seems to me that the evidence shows thaF in their deal-ings with the land the respondents were not acting under the will,but were proceeding on the footing of an intestacy. The fact thatthe first plaintiff-appellant did not interfere with the respondents, oract adversely to them prior to 1892, may be satisfactorily explainedon the grounds, first, of their co-heirship, and second, of her minority.Her statement in cross-examination, that she had heard her brothermention the will before the marriage, is not sufficient to show thatshe knew that a will existed, still less that she was aware of its terms.From 1892 onwards, however, her rights were asserted. In 1896the appellants mortgaged land to which they had no title under thewill. The fourth and twenty-fifth defendants claimed it under thewill in 1898, and their claim was dismissed. We find the children ofthe first marriage, or their representatives, dealing with lands towhich under the will they had no claim. This was so with Nilaris in1898, and again in 1894, and also with Evans in 1894. The evidencetaken as a whole points, I think, to the conclusion that therespondents were possessing and dealing with the land, not under awill, but on the footing of an intestacy, and in any case, in view ofthe decision of the Privy Council in Corea v. Appuhamy,1 it isimpossible to say that their possession' and dealings with it havebeen shown to be adverse to the rights of the first plaintiff-appellant.
Mr. Zoysa'asked us to give the respondents an opportunity still oftaking out probate -of Hendrick Silva and Nanghamy’s will. I donot think that we should do so. It is conceded that Nanghamydied about forty years' ago. The will 'ought to have been proved, ifit was capable of proof, long ago. To permit the respondents totake independent proceedings for probate now would simply beto re-open the whole litigation. I would allow the appeal and sendthe case back for trial as a partition action, giving the appellantsthe costs of the appeal and of the action up to date.
Appeal allowed. .
i (2911) 25 H. L. R. 65.
CHARLES HAMY et al. v. JANE NONA et al