( 207 )
Present: Lascelles G.J.
HARMANIS v. AMARASEKERA.
279—C. R. Balapitiya, 8,765.
Tattamaru possession—Co-owner cannot exclude another co-owner who
does not abide by the arrangement to possess in tattamaru.
Plaintiff, who purohased an undivided share of' a land, sued thedefendant for his share of the produce. The Commissioner ofRequests dismissed the action on the ground that plaintiff’s vendorhad taken the produce for the year in which he sold his share,and that defendant was entitled to take his turn before the posses-sion by tattamaru came to an end.
Heldf reversing the judgment of the lower Court, that- plaintiffas co-owner was entitled to get a share of the produce.
Lascelles C.J.—Possession in tattamaru is an arrangement bywhich the co-owners agree for considerations of convenience topossess the entirety of the corpus in turns instead of each takinghis proportionate share of each crop. The arrangement, not beingby notarial deed, in no way affects the rights of the co-owners*each of whom is free at any time to resume his strict legal rights.
The termination of the tattamaru possession may leave rightswhich require adjustment.
If, for example, one co-owner puts an end to the tattamarupossession, or alienates his share at a time when he has had moreturns of possession than his co-owners, he is liable to account tohis co-owners for what he has taken over and above his fair shareof the rents and profits. But a co-owner who is in the position ofthe defendant in this case cannot claim, on the strength of thetattmnaru arrangement, to exclude his co-owner altogether fromthe property.
rpHE facts appear sufficiently from the judgment.
Bawa, K.C., for plaintiff, appellant.
De Sampayo, K.C., for defendant, respondent.
Cur. adv. vult.
October 15, 1912, Lascelles C.J.—
This appeal raises a curious point with regard to the possessionby co-owners of the common property by tattamaru. The plaintiff'svendor and the defendant were entitled to the land in question inequal undivided shares, and had possessed by tattamaru for sometwelve years, when the plaintiff, in October, 1911, bought- one ofthese shares.
(When the plaintiff called upon the defendant for his share in theproduce, the latter refused to give it, on the ground that the plaintiff’svendor had possessed the land for. the last year, and that it wastherefore his, the defendant's, turn to possess it.
The plaintiff now sues for damages, the amount of which is agreedat Bs. 75. The learned Commissioner of Bequests has dismissedthe action on the ground, as I understand his judgment, that asthe plaintiff's predecessor in title took the first turn, the defendantshould be allowed to take his turn before the possession by tattamarucould come to an end.
In order to ascertain the rights of the parties,, it is necessary toconsider the real nature of possession by tattamaru. In this con-nection I have been referred to a passage in thef judgment of Phear
J. in Ram Mentha v. Ram Mentha and Appuhami,1 in which thelearned Judge describes the rights of co-owners who by mutualarrangement have separately occupied a fractional share of theproperty. This passage is, in my opinion, an equally apt descriptionof t]he rights of the co-owners when the land is possessed by them intattamaru. “ But obviously,” the learned Judge pointed out, ” this(i.e.j occupation in severalty) is only one of many methods by whichjoint proprietors exercise their right, and however long a period sucha user in guasi-severalty may endure, it cannot effect any alterationof right, because it is from beginning to end only referable to, andin exercise of the common right, an essential ingredient in which isthat any joint owner, or owner in common, is entitled at any timeto dissent from the existing arrangement. Doubtless, he must notexercise this right of dissent in such .a way as unnecessarily to causeloss to his co-proprietor.
Possession in tattamaru is an arrangement by which the co-ownersagree for considerations of convenience to possess the entirety ofthe corpus in turns instead of each taking his proportionate shareof each crop. The arrangement, not being by notarial deed, inno way affects the rights of the co-owners, each of whom is free atany time to resume his strict legal rights.
Of course, the termination of the tattamaru possession may leaverights which require adjustment. If, for example, one co-ownerputs an end to the tattamaru possession, or alienates his shareat a time when he has had more turns of possession than hisco-owners, he is liable to account to bis co-owners for what he hastaken over and above. bis fair share of the rents and profits.But a co-owner who is in the position of the defendant in thiscase cannot claim, on the strength of the tattamaru arrangement,to exclude his co-owner altogether* from the property. To holdthat he could do this would be to raise the tattamaru arrangementto the level of a notarial deed modifying the legal rights of theco-owners.
IS 8..C. C. 153.
The present case is, in my opinion, in no way analogous to thecases where an apparent breach of the English Statute of Frauds orof the Ceylon Ordinance No. 7 of 1840 has been allowed, on theground that the Courts will not allow'the Statute to be used as aninstrument of fraud. Here there is no question of fraud. If thedefendant has any claim against the plaintiff's vendor, there isnothing to prevent his recovering it.
– The decision is, in my opinion, erroneous, and I set it aside,entering judgment for the plaintiff for Rs. 75 with costs here andin the Court below.
HARMANIS v. AMARASEKERA