SINNETAMBY, J.—Sediris Appuhamy v. James Appuhamy
Present: Pulle, J., and Sinneiamby, J.K.A. SEDIRIS APPUHAMY, Appellant, and K. A. JAMESAPPUHAMY et at., Respondents
S. C. 152 (Inly.)—D. G. Qampaha, 960JP
Co-owners—“ Adverse possession ”—“ Ouster ”.
Where a co-owner and his successors in title possessed for a period of aboutfifty years or more a specific portion of the common property on the ground ofconvenience, and their share in the common property was less than the extentof the specific portion—
Held, that the separate possession could not, by itself, be regarded as adversepossession for purposes of establishing prescriptive title. The fact that certaindeeds were executed in relation to the specific portion was not material if theother co-owners were not aware of their execution.
,i/. PPEAL from an order of the District Court, Gampaha.
H. W. Jayewardene, Q.G., with A. 0. M. Uvais and 0. P. Fernando, for the11th defendant-appellant.
Sir Lolita RajapaJcse, Q.G., with D. C. W. Wichremasehere, for theplaintiff-respondent.
K.Herat, with S. D. Jayasundera, for the 1st to 4th, 9th and 10thdefendants-respondents.
Cur. adv. vult.
September 3, 1958. Sinnetamby, J.—
The plaintiff sought in this action to partition the land depicted inplan No. 5000 dated 14th January, 1950, marked “ X ” and filed of recordcomprising of three lots marked A, B and C. The 11th, 12th, 16th and20th defendants contended that this land formed part of a larger landdepicted in plan No. 878 dated 10th May, 1951, and marked “ Y ”. Theplaintiff had traced his title from one Andiris who, he said, was the originalowner of the land he sought to partition. The contesting defendants onthe other hand said that Andiris was a son of one Punchappuhamy andthat lots A, B and C formed part of the larger land depicted in plan Y,which was owned by the said Punchappuhamy. Indeed, at the trial itwas agreed that the lots A, B and C depicted in plan X did form part ofthe larger land depicted in plan Y but it was contended on behalf of theplaintiff that A, B and C were separated off and became a separate entity.The contesting defendants on the other hand said that Andiris derivedmly a co-owner’s interest in the original land and that lots A, B and Cyere possessed by him for convenience: they claimed a partition of thesntire land among the heirs of Punchappuhamy allotting to the heirs»f Andiris a share. The plaintiff gave evidence of the title that devolvedipon himself and the defendants who supported his case and were suc-essors in title to Andiris. In the course of cross-examination therevas elicited from him the shares that devolved from Punchappuhamy
SINNETAMBY, J.—Sediris Appuhamy v. James Appuhamy
on the 11th and 12th defendants and on the other defendants who sup-ported them. The main contest resolved itself into a consideration ofthe question whether lots A, B and C had been separated off and possessedby Andiris and his heirs exclusively and adversely to the other co-owners;in short, the question was whether they had acquired a title by pres-cription to these lots. The learned District Judge held that they had andthis appeal is against that decision.
It would appear that Punchappuhamy was the owner of the largerland called Alubogahawatta or Alubogahalanda. He had four childrenof whom Andiris Appuhamy through whom the plaintiff claims is one;the others are Juwanis, Caronis and Ethan Hamy. The title of Andirisdevolved, however, as stated by the plaintiff on the 3rd, 4th, 5th, 6th,7th, 8th, 9th, 10th and 24th to 27th defendants. Punchappuhamy bydeed No. 11 D1 of 25th September, 1871, transferred an undivided halfshare of the larger land to his son Juwanis. Thereafter, ho died and eachof his four children including Andiris became entitled by inheritance tol/8thshare. Juwanis Appuhamy by deed No. 16 D4 of 1897 transferredan undivided l/4th share to Caronis who is also known as Carol is. EthanHamy’s share was also said to have been transferred to Caronis who,according to the plaintiff, at the time of death was entitled to a halfshare. His administrator on deed No. 16 D1 transferred this half shareto his six children, namely, the 14th, 15th, 16th, 22nd defendants, Brarnpyand Bartin Nona. Juwanis was thus left with a 3/8th share of the landwhioh by deed No. 11 D2 of 1900 he transferred to Baba Hamy, PunchiHamy and Joisa Hamy. Baba Hamy transferred her interests on deed11 D3 to the 11th defendant. Punchi Hamy’s interests by deeds 12Dl, 12 D2 and 12 D3 devolved as set out on the 12th defendant. JoisaHamy’s share also devolved as set out in the evidence on the 11th de-fendant and the 23rd defendant. Carolis had six children and hisinterests devolved on them, namely, the 14th defendant, 15th defendant,16th defendant, 22nd defendant, Brampy Appuhamy and Bartin Nona.Bartin Nona’s share is said to have devolved on the 19th and 20th de-fendants as set out in the evidence of the plaintiff. Brampy’s interestsdevolved on his widow, the 17th defendant, and his children the 18th and19th defendants.
Andiris married Delenchi Hamy and died leaving his widow and fivechildren, Soysa, Haramanis, Sanchi Nona, Pelis and Alisanclri. DelenchiHamy by deed PI of 1911 transferred her half share in the proportion of2 to 1 to Alisandri and Haramanis respectively. Haramanis died withoutissue and unmarried and his share devolved on his brothers and sisters.Soysa by deed P2 of 1920 transferred his share to the first defendantand plaintiff. Sanchi Nona by P3 of 1921 transferred her rights to the2nd defendant and Aron. The 2nd defendant died after the institutionof the action leaving her husband Lewis the 24th defendant and threechildren, namely, the 25th to 27th defendants. Aron’s interest devolvedon the 3rd, 4th, 5th and 6th defendants. Pelis’s interests devolved onthe plaintiff and the 7th and 8th defendants while Alisandri’s interestsby deed of transfer 1 Dl and by inheritance devolved on the 1st, 9th and10th defendants.
SIN NET AMB Y J.—Sediris Appuhamy v. James Appuhamy
In support of the plaintiff’s contention that lots A, B and C wereseparated off and possessed by Andiris and his heirs, reference was madeto a lease of 1862 marked P4 executed by Punchappuhamy, Andiris’sfather. By that deed Andiris leased to his son Juwanis Appuhamy andtwo others, all the fruit trees on a 7/8th share of Alubogahawatta. Inthat deed he gives the northern boundary of the land on which thesefruit trees stand as the “ l/8th portion of this same land belonging toAndiris Appuhamy ”, and not Iriyagahakumbura which lies to the northof the larger land. Reliance was also placed upon a deed of lease P5of 1869 by which this Punchappuhamy leased to Don Hendrick Appuhamyand Jusey Perera Appuhamy the produce of certain trees on this same landwhich is described as having as its northern boundary the land of AndirisAppuhamy but he describes the extent of this land as 12 acres. Bythese deeds and by the existence of old fences coupled with possessionit is sought to establish that Andiris’s portion has been separated off.As against this, however, the Uth defendant relies upon a deed 11 Dl,already referred to, of 1871 by which Punchappuhamy transferred anundivided half share of the entire land of 12 acres. The boundariesgiven are the boundaries of the entire land which would include the 1 /8thshare of Andiris. What value should therefore be attached to the des-cription in the lease P4 wherein the northern boundary of the 7/8thshare describes the 1 /8th share as belonging to Andiris Appuhamy % Theexecution subsequently of 11 Dl seems to suggest that this lease grantingto the lessee the right to enjoy the produce of certain fruit trees wasconfined to the 7/8th share of the larger land excluding the portion whichwas apparently possessed by Andiris. There is no evidence to establishthe identity of this 1 /8th share with lots A, B and C. The word “ be-longing ” in that deed must be taken to be somewhat loosely used: ifin fact title was transferred a deed would have been executed and mustbe produced: 11 D2 by which Juwanis transferred 3/8th share of 12acres which share he describes in extent as 4 acres and 2 roods also givesthe boundaries of the entire land and states that this share was possessedundividedly in common by the grantor. The contesting defendants alsorelied upon a deed of lease marked 12 D4 executed in 1896 by DelenchiHamy the widow of Andiris and her children one of whom is the father ofthe plaintiff, namely, Pelis. It is a lease of “ the undivided part of theland from and out of the land called Alubogahawatta …. con-taining in extent within the said boundaries about 12 acres ”. Thisdeed gives the northern boundary as Iriyagahakumbura which is thenorthern boundary of the larger land depicted in plan Y. Anotherdeed of which one should take note is 16 D4 which is the transfer of'Juwanis to his brother Carolis dated 1897 and the share conveyed is anundivided 1 /4th share of the entire land of 12 acres “ held and possessedby me in common and by virtue of deed of transfer No. 3423 dated 25thSeptember, 1871.” (11 Dl). Deeds PI, P2 and P3 describe lots A, B andC and give the southern boundary as another portion of the same land.These are fairly recent deeds and there is nothing to show that the suc-cessors in title of the other sons of Punchappuhamy were aware of theexecution of these deeds. On the other hand, plaintiff’s father Pelis hadbeen a witness to the deed of lease 16 D4 which dealt with an undivided
SINNETAMBY, J.—Sediria Appuhamy v. James Appuhamy
1 /8th share of the larger land: it was of course contended that Peliswas only a witness to the signature and one cannot infer that he knewwhat the contents of that deed were. It must, however, be rememberedthat he was a member of the grantor’s family and it would not be un-reasonable to assume that he was aware of the contents of the deed.It is relevant to note that in 12 D4 Pelis Appuhamy, the plaintiff’s father,was one of the lessors and the lease is in respect of that 1 /8th part orshare of the larger land of 12 acres the northern boundary of which isgiven as Iriyakumbura. All these facts afford overwhelming evidencethat the words “ belonging to Andiris ” in describing the northern boun-dary of the leased trees in deed P4 is not accurate. After all P4 was alease of fruit trees and it excluded the trees planted by Andiris Appuhamyand belonging to him on the north and only applied to the trees standingon the 7/8th share of the land.
The oral evidence in the case was confined to the evidence of theplaintiff and the 15th defendant Hendrick Appuhamy who i3 a son ofCarolis. The plaintiff is 65 years old and in the course of his evidencestated that he and the members of his branch of the family, that is, Andi-ris’s heirs, were in possession of lots A, B and C. He admitted thatAndiris had possessed the northern portion with the permission of Pun-chappuhamy. He is unable to explain why Andiris’s widow in 12 D4leased an undivided share of the entire land. The witness Don Hen-drick who is a little older stated that his father, Carolis, and his successorspossessed lots E and P and that Andiris’s descendants possessed lots A,B and C. Between these various lots there were old fences of 50 to 60years of age according to him. In the course of his evidence he purportedto speak of a division amongst the heirs of Punchappuhamy but he ad-mitted that he was living in lot E only since 1918 and the only reasonwhy he said there was division was because of the existence of the fences.In cross-examination he admitted that the persons whom ho had men-tioned were possessing various lots of this land for convenience. Indeed, inre-examination he admitted at first that Lewis, the husband of the 2nddefendant who claims a share through Andiris, has rights in lots E andP which were the lots possessed by the heirs of Carolis and that he hasa right in Lewis’s residing land. He explained the separate possessiononly on the ground of convenience. Subsequently, he went back on thisand stated that he did not claim rights in A, B and C nor did he concedethat Lewis had any claim to lots E and F. The learned Judge took theview that from the length of possession of the divided lots by the heirs ofPunchappuhamy and their successors he was entitled to conclude thatthere was exclusive and adverse possession. To use his own words,he states “ the evidence taken as a whole points to the inference of anamicable division at some point of time followed by exclusive possessionin severality for over half a century He accordingly rejected the claimby the 11th defendant and the 12th defendant and those who supportedthem for a partition of the larger land and agreed that the plaintiff andthose who supported him were entitled to partition lots A, B and C asforming a distinct and separate land.
I have already indicated that the earlier deeds by themselves do notsupport the contention of the plaintiff that Andiris’s share was separated
SINNETAMBY, J.—Sediris Appuhamy v. James Appuhamy301
from the rest of the land and owned and possessed by him as such. Theonly inference in support of this contention is to be gathered from thelease P4. There is no evidence at all of an amicable partition amongthe co-owners. The later deeds from 1911, no doubt, deal with lots A,B and C as if they formed a separate entity but, as I stated earlier, thereis nothing to indicate that the heirs of the other branches of the familyof Punchappuhamy were parties to these deeds or were aware of theirexecution. A co-owner cannot by a secret intention formed in his ownmind change the character of his possession of the common land to thedetriment of his co-owners. The mere fact, therefore, that deed PI andthe later deeds executed after 1920 described lots A, B and C as a separateland is by no means helpful in establishing adverse possession—Kabbi-Jcaduwe v. Seneviratne x. As against these documents there are severaldeeds executed by the other heirs of Punchappuhamy dealing with theentire land. While these deeds themselves are by no means conclusive,they are relevant in deciding whether a possession by Andiris and hisfamily was adverse. While the members of the other branches of thefamily of Punchappuhamy have not dealt with a separate portion in any■of their deeds, there have been produced deeds in which members of thefamily of Andiris had dealt with their shares as being undivided sharesof the larger land of 12 acres—vide 12 D4 and 16 D4—which it would bereasonable to infer were executed with the knowledge of the plaintiff’sfather Pelis.
The rule laid down by the Privy Council.in Corea v. Iseris Appuhamy 2that possession by one co-owner enures to the benefit of his other co-ownershas not been departed from and has been consistently followed in our•Courts. In Tillekeratne v. Baetian3 a Pull Bench of the Supreme Courttook the view that, if the circumstances of the case warranted it, longcontinued exclusive possession by one co-owner would justify a presump-tion of ouster at some point of time more than 10 years before actionbrought. In that case the special circumstances consisted of the co-owner in possession taking minerals that had been mined from the commonproperty without accounting to the other co-owners. De Sampayo,•J. puts the matter thus:—
“ While a co-owner may without any inference of acquiescence in anadverse claim allow such natural produce as the fruits of trees to betaken by the other co-owners the aspect of things will not be the samein the case where valuable minerals are taken a long series of yearswithout any division in kind or money.”
As pointed out by the learned Judge the mere taking of the naturalproduce of the co-owned land by one co-owner such as the produce of treeshas never been regarded as a circumstance from which ouster may be■presumed. This is particularly so where other co-owners are in possessionof other parts of the common property. The Courts have recognised-other circumstances from which a presumption of ouster may be drawnbut that has never been done where the only circumstance consists oflong continued possession where the other co-owners are also in possession
1 (1951) 53 N. L. B. 354. '
(1918) 21 N. L. B. 12.
* (1911) 15 N. L. B. 65.
SINNETAMBY, J.—Sediris Appuhamy v. James Appuhamy
of other allotments of the same land. The position is different whereone co-owner is in possession of the entire common land and does not ac-count for or share with his co-owners the income derived therefrom.For instance in Subrarmniam v. Sivarajah1 the Court presumed an ousterfrom the fact that one co-owner was in possession of the entire land andtook the profits exclusively and continuously for a period of over 60• years without accounting to the other co-owners who lived in closeproximity under circumstances which indicated a denial of a right tothe other co-owners to take or receive them. In the present case, how-ever, the facts are different. The co-owners are in possession of differentallotments of the co-owned land and the plaintiff’s witness himself ad-mitted that such possession was for convenience. It is now clear lawthat a co-owner who improves the common property or a portion ofit is entitled to possess the improvements effected even to the extent offencing it off without acquiring any exclusive right to the soil on whichthe improvements have been made. He is even entitled to bring apossessory action to remain in possession of the improvement if he isousted—Pieris v. Appuhamy* and Cathonis v. Silva3. There are otherinstances in which a presumption of ouster has been drawn or where therehad in fact been an ouster accompanied by adverse possession. Wherethere has been a division among co-owners of the common land unac-companied by a notarial deed of transfer, a possession by each co-ownerof the portion allotted to him for a period of over 10 years has been heldto entitle him to a decree under section 3 of our Proscription Ordinance—Mensin Nona v. Nimal Hamy 4. Likewise, where a co-owner who ownsexclusively property which adjoins the common land fences off a portionof this common land and incorporates it with his own land and possessesboth as one lot, an ouster has been presumed—de Mel v. de Alwlr Inthe present case the only evidence is that there has been possession for aperiod of about 50 years or more by Andiris and his heirs of lots A, Band C. There are also very old fences. These facts alone will not justifya presumption of ouster. The deeds of the contesting defendants on theother hand deal with the entire land as co-owned property and there aresome deeds signed or witnessed by members of Andiris’s family M'hichalso describe the land as undivided. There are no special circumstanceswhich would justify a presumption of ouster. Very clear and strongevidence of ouster among co-owners is called for and separate possessionon grounds of convenience cannot be regarded as adverse possession forpurposes of establishing prescriptive title—Simpson v. Omern Lebbe.6.
The learned District Judge, in my opinion, was wrong in the inferenceshe drew from the facts which he accepted as established. I do not agreewith him that convenience of possession means “ the personal comfortderived by such exclusive possession, and results, after a length of time,in material advantage to the possessor and that is the advantage of anew title which cannnot be lightly disturbed by the mere execution ofnotarial deeds which copy the description in earlier documents”. Everyco-owner is in law entitled to his fractional share of everything in the co-owned property including the soil as well as the plantations, but in
1 (1945) 46 N. L. R. 540.* (1927)10 C. L. R. 159.
(1947) 48 N. L. R. 344.* (1934)13 C. L. R. 207.
(1919) 21 N. L. R. 452.« (1947)48 N.L. R. 112.
SINNETAMBY, J.—Sediria Appuhamy v. James Appukamy
practice it is not possible for every co-owner to enjoy his fractionalshare of every particle of sand that constitutes the common propertyand every blade of grass and every fruit from trees growing on the landwithout causing much inconvenience to himself as well as the otherco-owners. To avoid this, for the sake of convenience, co-owners possessdifferent portions of the common land often out of proportion to theirfractional shares merely because of improvements they have effected.That is what I understand convenience of possession to mean and pos-session of a specific portion of the common property for such a purposewould certainly result in material advantage referred to by the learnedDistrict Judge. In my opinion, the evidence in the case does not justifya presumption of ouster. No doubt possession of the separate lots A, Band C by Andiris and his heirs has been for a very long period but thisalone is insufficient to establish title by prescription.
As observed earlier the Courts in Ceylon have recognised the possibilityof an ouster being presumed from special circumstances accompanied bylong continued exclusive possession. It is recognised for instance thatan amicable division accompanied by possession in severality of theseparate lots for a period of 10 years would put an end to common owner-ship. Proof of the division must be forthcoming for effect to be givento this principle ; but it may even be possible to infer from long continuedpossession, though I am not prepared to say that it must Always neces-sarily follow, that there had in the distant past been such a division, ifit is established that the allotments possessed by the several co-ownersare proportionate to the shares they have in the common property. Inthe present case even this is not so. Lots A, B and C which the heirs ofAndiris claim are in extent certainly more than 1 /8th share of the extentof the entire land. Lots A, B and C are approximately four acres whileAndiris’s 1 /8th share should only be 1 1/2 acres. To infer that there hasbeen such a division would in the circumstances be most unreasonable.In a recent case where one co-owner made a plan of a definite portion of thecommon land and improved and possessed it for a period of about 40 •years to the exclusion of other co-owners who possessed other portionsof the same land, the Supreme Court took the view that, in the absenceof evidence to establish that the other co-owners acquiesced in the pre-paration of the plan, the production of the plan by itself was insufficienteither to establish an amicable partition among the co-owners or tojustify a presumption of ouster—Githohamy v. Karanagoda1.
I would accordingly set aside the judgment of the learned DistrictJudge and send the case back for an interlocutory decree for partitionto be entered in respect of the entire land depicted in plan Y filed ofrecord. Before this is done, however, the learned District Judge shouldcall for further evidence and satisfy himself in regard to the followingmatters :
The deed by which Ethan Hamy is alleged to have transferred herinterests to Carolis Appuhamy must be produced or there should be otherevidence to satisfy the Judge that such a transfer did take place. Like-wise, the manner in which Bartin Nona’s interests devolved on the 19thand 20th defendants should be established by evidence.
1 (1954) 56 N. L. R. 250.
304T. S. FERNANDO, J.—NanayaJckara v. Faleel
I would therefore allow the appeal, subject to what I have stated above.The 11th, 12th, 16th and 20th defendants will be entitled to costs ofcontest and of this appeal payable by the plaintiff and those defendantswho contested their claim.
Pulle, J.—I agree.
K. A. SEDIRIS APPUHAMY, Appellant, and K. A. JAMES APPUHAMY et al., Respondent