Hussaima v. Ummu Zaneera
[In the Privy Council]
Present: Viscount Radcliffe, Lord Evershed, Lord Devlin,Lord Pearce, and Sir Terence Donovan
HUSSAIMA (wife of Yoosuf Jallaldeen) and others, Appellants, and
L. UMMU ZANEERA(alias Shamsunnahar) and others,
Privy Council Appeal No. 53 op 1961S. G. 260—D. G. Colombo, 6970/M
Co-owners—Prescriptive possession by a co-owner—Adverse title—Burden of proof—Fideicoinmissum for four generations—Burden of proof regarding terminationof 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 propertyin the business district of Pettah, Colombo, was alleged by the plaintiff to havecreated a fidei commissum which continued in operation after the death of thegrantor’s wife in favour of the descendants for four generations. In thepresent proceedings for partition of that property the plaintiff was the great-great-grand daughter of the grantor’s wife and there were numerous otherparties. The 13th defendant was a grandson of the grantor’s wife, his fatherhaving been one of her three children and her only son. He denied that thedeed of gift created a fidei commissum, and claimed to have acquired exclusivetitle to the entirety of the property by prescriptive possession. This claim wasresisted by the plaintiff and all other defendants who particularly relied on theproviso 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 giftcreated a fidei commissum and he accepted also that, having regard to theirages of minority, he could not succeed against the plaintiff or the first or seconddefendant. It was also shown that the trial Judge wrongly placed on the 13thdefendant the burden of proving the exact dates when the successive interestsof 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 the13th defendant “ that the 13th defendant’s father has been in possession fromprior to 1916 and that the 13th defendant came into possession in 1916 ”. Itwas also admitted, in cross-examination, by the 2nd defendant, who was calledby 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 therecord of the plaintiff’s evidence there was also again recorded the plaintiff’sadmission “that from 1916 the 13th defendant collected the rents”. The 13thdefendant did not himself give any evidence.
Held, that the evidence that the 13th defendant “ collected the rents ” for 37years from 1916 till the time of the present action in September 1953, was notby itself sufficient to prove that a possession originally that of a co-ownerbecame adverse at some date more than ten years before the institution of theaction. The language of the admission and evidence upon the face of it andaccording to its ordinary sense was limited to the actual receipt or collectionof the rents and was silent as to their application. The point should also benoted that of a Muslim family the 13th defendant was the son of the only son ofthe original grantor’s wife. Such facts, unsupplemented, fell short of anythingthat amounted to an adverse title the onus of proving which, by the terms ofsection 3 of the Prescription Ordinance, lay on the 13th defendant.
2*R 11745 (8/63)
Appeal from a judgment of the Supreme Court reported in(1959) 61 N. L. R. 261.
Honan Ismail, for Appellants.
M. Markhani, with John Baker, for 5th. bo Stk Respondents.
Cur. adv. vult.
May 9, 1961. [Delivered by Lobd Evbbsbqbd]—
In their Lordships' opinion this appeal is one of considerable difficultyand the question involved very much upon the borderline ; but aftercareful consideration of the arguments submitted to their Lordships bylearned counsel their Lordships have come to the conclusion, not forreasons later appearing, without some regret, that they should humblyadvise Her Majesty to dismiss the appeal.
The appeal arises out of proceedings for partition begun nearly ten yearsago. The claim of the plaintiff, who has since died, was that she wasentitled to a share of certain property in the business district of Pettah,Colombo, by virtue of a Deed executed by one Ibrahim Lebbe Moham-madu Lebbe on the 16th July, 1872. The main question at the trial waswhether the Deed created an effective Jidet commissum and if so whethersuch Jidei commissum continued in operation after the death of thegrantor’s wife in favour of her descendants for four generations. Theplaintiff was a great-great-granddaughter of the grantor’s wife and, asmight be expected, there were numerous other parties to the proceedings.The 13th defendant was a grandson of the grantor’s wife, his father havingbeen one of her three children and her only son. The 13th defendanthas died since the trial and the appellants before the Board are his fourchildren, who were substituted in the proceedings for the 13th defendantbefore the case came to be heard by the Supreme Court of Ceylon. Inaddition to the question concerning the fidei commissum the 13th defen-dant before and at the trial claimed to have acquired an exclusive titleto the entirety of the property by prescriptive possession pursuant tosection 3 of the Ceylon Prescription Ordinance No. 22 of 1871. Thisclaim was resisted by the plaintiff and all the other defendants whoparticularly relied on the proviso to section 3 and also on section 13 of theOrdinance. The proviso and section referred to are set out in the judg-ment of the Chief Justice of Ceylon. For present purposes the relevanceof these terms of the Ordinance is that if the. jidei commissum be establishedand there was consequently a series of successive interests in the propertycorresponding in substance to successive beneficial interests under anEnglish Trust then the period of the prescription (unless it has then runits full course) starts afresh on each transmission of interest and moreoverdoes nob run against a beneficiary becoming entitled so long as he or sbeis under a disability, such as infancy.
LORD EVERSHED—Hussaima, v. Ummu Zaneera
These being the issues raised in the action, it appears from the record ofthe proceedings that whan in due course the issues involved came to beframed an admission was made by counsel for the plaintiff. Theadmission was “ that the 13th defendant’s father has been in possessionfrom prior to 1916 and that the 13tb defendant came into possession in1916 When, after the evidence had been called, counsel made theirfinaladdresses it was stated by the learned counsel for the 13th defendantthat “ on the first day the case came up for trial all the parties agreed tothe admission made by ” counsel for the plaintiff. There was somediscussion before their Lordships whether in truth all the parties bad soagreed, but it appears reasonably clear from the judgment of the DistrictJudge and the judgments of the Supreme Court that the admission wasregarded as having been accepted by all the parties other than the 13thdefendant.
In the meantime the evidence had been given but in fact only twowitnesses were called. On the plaintiff’s part, her brother the seconddefendant gave evidence in support of the claim of fidei commissum. Incross-examination on behalf of the 13th defendant the following twoquestions and answers were recorded :—
Q.“You know who is occupying these premises ?
Athe 13th defendant is occupying these premises.
Q.Has he not rented the use to anybody ?
He has rented the use and has collected the entire rent. ”
The only other witness called was the 11th defendant, whose evidencewas immaterial upon the- question before the Board.
The 13th defendant did not himself give any evidence. At the end of therecord of the plaintiff’s evidence there is also again recorded the plaintiff’sadmission “ that from 1916 the 13th defendant collected the rents
Their Lordships have referred to the precise terms of the admissionand of the two questions and answers given in evidence because, as thingshave fallen out, it is upon the proper inference to be drawn therefrom thatthe decision of this appeal must rest. As their Lordships will later notice,the Chief Justice in the Supreme Court (before which the 13th defendant’sappeal came in 1959) drew the inference that the admission and evidencequoted justified the conclusion that from 1916 the 13th defendant hadin fact enjoyed undisturbed and adverse possession of the property withinthe meaning of the Prescription Ordinance. The majority of the SupremeCourt, however, did not share the Chief Justice’s view and heldthat the 13th defendant had not proved such possession as section 3 of thePrescription Ordinance required.
Their Lordships think it most unfortunate, as things hare turned out,that the exact extent and meaning of the admission by counsel was notclarified either at the time when it was made or later when the case wasbefore the District Judge, and not the less so since it was first made, aspreviously stated, when the issues in the case were being formulated. The
12SLORD EVURSH3SD—Huaaaima v. Gmutu BtMsera
relevant issues so formulated ware in fast those numbered 3 0) and 4 andwere to the effect—Had the 1.3th defendant been in exclusive possessionand acquired a prescriptive title to the entirety of the property or to theshares therein of the j»l»in*U£ *«d the other several defendants f Thelearned District Judge could undoubtedly have caused the scope of theadmission to be made dear but unfortunately did not do so, and havingregard to the view which the learned District J udge took it may fairlybe said that it was not necessary for his decision that he should.
As already stated, the main question was that relating to the allegedfidei commissum in 1S72 and, as regards the claim of the 13th defendant,the extent of the admission was in the event immaterial because, in theview 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 theOrdinance for the 13th defendant to prove as regards each share in the trustproperty what were the exact dates when the successive interests thereindetermined and when any disability came to an end. The District Judgeheld that the fidei commissuvi had been validly established but he alsoheld that the claim of the 13th defendant wholly failed because he hadnot at all discharged the onus which the learned Judge thought lay upoDhim of proving the several dates above mentioned.
The 13th defendant then appealed to the Supreme Court of Ceylon.He accepted the District Judge’s finding of the creation of a fidei commissumand its extent and he accepted also that, having regard to theirages, he could not succeed against the plaintiff’ or the first or seconddefendant. The main argument before the Supreme Court was whetherthe District Judge bad been right in the view taken by him as regardsthe burdeD of proving the several dates above mentioned. Upon thispoint the 13tb defendant succeeded. Thereupon, and for the first time,the scopeand meaningofthe admission and the two questions and answersearlier quoted became vital to the conclusion of the appeal. It was,however, made quite clear before their Lordships that neither side thenasked for a retrial or for any order designed to obtain further clarificationof the admission and evidence. Each side was content to rest upon theterms of the admission and of the answers given by tbe second defendantas they were recorded, and the argument therefore was as regards tbeproper inference to be drawn therefrom.
The judgments of the learned Judges in the Supreme Court contain acareful review of authorities both English and Ce lonese upon tbe properapplication of the relevant terms of the Prescription Ordinance in the caseof one claiming a prescriptive title whose occupation of the property inquestion was or should be originally attribu ted to bis interest as co-owner ;particularly of the judgment of Lord Mansfield in the English case ofDoe d Fisher v. Prosser1 and the judgment of Bertram, C.J. intbe Ceylonese case of Tillekerat’ne et al. v. Baslian et al*. TheirLordships aj e content to accept the principles applicable as they wereexpounded in the Supreme Court. Nor, indeed, were the principles really1 1 Oowp : $17,* (1918) 21 N. L. B. 12.
LORD EVER SHED—Hussaima v. Ummu Zaneera
in dispute before their Lordships. The question, and the very difficultquestion, has been of their application. In the circumstances their Lord-ships are content to found themselves for piesent purposes upon twopassages in the judgment of Bertram, C. J. at pp.23 and 24 of the latter ofthe cases above mentioned : “It may be taken, therefore, that . ..
~ltis open to the Court, from lapse of 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 factwherever long continued exclusive possession by one co-owner is provedto have existed whether it is not just and reasonable in all the circumstancesof the case that the parties should be treated as though it had been provedthat that separate and exclusive possession had become adverse at somedate more than ten years before action brought.” As already observed,the learned Chief Justice in the present case felt able to draw from theadmission and the questions and answers of the second defendant therequisite inference in favour of the 13th defendant. In the course of hisjudgment he said : “ It would appear, therefore, that on the facts of theinstant case the co-owners cannot claim the benefit of the appellant’spossession as he bad possession not on their behaF but for himselfwithout giving them their share of the rent And again : “ Thereis no evidence that till the time of this aotion in September, 1953,anyone has ever questioned the appellant’s right to take the rentduring these 37 years.” In other words, it was the view of the learnedChief Justice, that in the absence of any other evidence on either side• than that quoted, the proper inference to be drawn from suchevidence and the admission was that the 13th defendant not onlyreceived and collected the rents but applied them for his ownpurposes without any accounting to any other members of thefamily. As their Lordships have also stated, De Silva and Fernando, JJ.were unable to accept the conclusion which had appealed to the ChiefJustice. In each of their respective judgments foroible attention wasdrawn to the fret 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 evidencehimself and to the absence of any evidence regarding such matters as theamount of the rents received or outgoings discharged or to the existenceof any document or writing executed by the 13th defendant consistentwith his claim to be exclusive owner of the property. Mr. Ismail for theappellant, stressed, naturally enough, the great length of time duringwhich, on any view, according to the admission and evidence, the 13tbdefendant and his father bad clearly in fact been in receipt of and collectedthe rents : and if (as he said) the 13th defendant had failed to give negativeevidence 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 partof any one of the other parties that he or she or any other members ofthe family had at any time received anything from the property or madeany claim in respect thereof. Mr. Ismail also criticised (in their Lordships’opinion justly) the view of the majority of the Supreme Court that if theadmission of counsel had been meant to have the scope and meaning for
LOBD EVERSHB3D—Buataima v. Ummu ikmeara
which the appellants contended there would have been no point in goingon with the trial. Such a view, as their lordships venture to think,loses sight of thn fact that at the trial the relevant question which the
District Judge had to decide was concerned with the dates of the coininginto existence of the successive interests in the property, having regardtc the terras of the Prescription Ordinance which prevent time runningagainst persons under a disability and which require or may requiretime to begin to run again whenever a new interest comes into existence.
Their Lordships have been very conscious of tbe force of Mr. Ismail’scontentions, but since, as already stated, both sides before the SupremeCourt were content to rest upon the ordinary meaning and inferences to bedrawn from the admission and the second defendant’s two answers, theyhave felt unable to conclude that the majority of the Supreme Court werenot justified in refusing to draw from the admission and tbe answers suchan extended scope and meaning as the appellant’s case inevitably re .pures.After all tbe language of the admission and evidence upon the face of it andaccording to its ordinary sense was limited to the actual receipt orcollection of the rents and was silent as to their application. TheirLordships have noted also the point made by De Silva J. that of thisMuslim family the 13th defendant was the son of the only son of theoriginal grantor’s wife. Such facts unsupplemented, fall short of provinganything that amounted to an adverse title.
Their Lordships repeat, none-the-less, that they have felt some regret atreaching a conclusion based as it is upon the inference proper to be drawnfrom such meagre premises as the recorded admission by counsel and thetwo short answers given by the second defendant in cross-examination—particularly since their Lordships cannot help feeling that the true factsmight at tbe time of the trial have been so easily discovered. Their Lord-ships were therefore disposed at one stage to think that in the interests ofjustice a new trial should be ordered. Ou the whole, however, theirLordships have decided against such an Order. In reaching their finalconclusion their Lordships have attached weight to these considerations :first that before tbe Supreme Court, both sides were content deliberatelyto take their stand upon the admission and evidence as they stood : secondthat the 13tb defendant is now dead: third, that it is now ten years sincethis litigation began and if tbe matter wer8 reopened upon afresh trial, thevalue of the property, situated though it is in a business quarter of Colombo,appears on tbe material before their Lordships not to be very great andto be therefore somewhat disproportionate to the costs that would ormight be incurred in addition to those incurred already ; and finallytheir Lordships have in mind that the appellants are in any case entitledto a one-third interest in the property (to which should be added thesum of Re. 1,000 which is conoeded to be payable to them out of the pro-ceeds of sale of the property by way of recoupment of moneys spent bythe 13th defendant upon drainage works) and have conceded before tbeBoard (as they did before the Supreme Court) that their claim cannot besustained in respect of one-fourth of another one-third share in tbeproperty.
BASNAYAJLE, C.J.—Muitu Menika Kumarihamy v. Mudiyanse
In all the circumstances therefore their Lordships will humbly adviseHer Maiesty that the appeal should be dismissed. The appellants mustpay the respondents’ costs before the Board.
HUSSAIMA (wife of Yousuf Jallaldeen) and others, Appellants, and A. L. UMMU ZANE