K.anapcUhipiUai v. Subramaniam
Present : Sansoni, J., and H. N. G. Fernando, J.
S. A. KANA PATHIPILLAI, Appellant, and A. SUBRAMANIAM
et. al.y Respondents
S. C. 544—D. C. Jaffna, 424(L
DoruUion—JteciUil tluit donee, should settle ct morhjit'jc of the gifted property—Vttluttble
co 11.9 ideration..
Prescription—Jjaches—“ Acquiescence ”—“ Estoppel
A person gifted two lands to his son for and in consideration of loveand affection The deed of donation contained a recital that the landsdonated, which were of the value of !Rs. 2,500, were subject to a mortgagedebt of "Rs. 1,500 and interest which was to bo paid and settled by the donee.
Held, that the deed could not be regarded as a transfer for valuableconsideration.
When a person refrains from seeking redress when a violation of hisrights, of which he did not know at the time, is brought to his notice, his lachesconstitutes a form of acquiescence, which, however, would not deprive him ofhis rights unless prescriptive title is proved against him in terms of thePrescription Ordinance. Accordingly, when A conveys to B property whichbelongs to C, who subsequently comes to know of the transaction, C wouldnot lose title to the property unless B can prove prescriptive title to it.'
1 HSS5) 15 Q. 13. D. 54 at 5S.
2*J. X. R 15840 (3/G1)
SANSONI, J.—ICanapathipiUai v. Subramaniam
Appeal from a judgment of the District Court, Jaffna.
C. Ranganalhan, with E. B. Vannitamby, for plaintiff-appellant.
No appearance for defendant-respondent.
Cur. adv. vuU.
Eebruary 13, 1959. Sansoni, J.—
The plaintiff in this action obtained a money decree in caseNo. M. S. 582 against the 1st defendant on 11th September 1956. In exe-cution of that decree he seized 1 /10 share of the land called Kiluvanai■described in the schedule to the plaint. The 2nd defendant claimed theland, and as his claim was upheld the plaintiff has filed this action tohave it declared that he was entitled to seize and sell the 1 /10 share.
The entire land was purchased by KLandappar Arumugam on deedP 2 of 1912 during the subsistence of his marriage with His wife KLathire-sapillai. The land thereupon became thediathettam of Arumugam and
K.athiresapillai, and each of them became entitled to 1 /2 share. Aportion of the land was given as dowry to their daughter, and Arumugampurported to gift the remaining portion (described in the schedule to theplaint) to their son Velupillai by deed P 4 of 1930. There can be nodoubt that Arumugam was entitled to donate only his 1 /2 share, and Ineed only refer on this point to the case of Mattayer v. Kanapathipillai K
The plaintiff’s case is that when Kathiresapillai died in 1940 she wasstill entitled to 1/2 share which devolved on her five children, the 1stdefendant (one of her sons) thereby becoming entitled to 1/10 sharewhich the plaintiff claimed he was entitled to seize and sell. The 2nddefendant pleaded that Velupillai, the donee on deed P 4, sold the entireland to his brother Paramu on deed D 2 of 1937, and that the latter ond.eed D 1 of 1956 sold it to him. He claimed the entire land upon thistitle. He further pleaded (1) that the plaintiff’s decree was obtainedfraudulently and eollusively, (2) that the deed P 4 was in fact a transferfor valuable consideration, (3) that he had acquired a prescriptive titleto the land, and (4) that Katliiresapillai acquiesced in the conveyance ofthe land to Velupillai.
After trial the learned District Judge held (1) that the plaintiff’sdecree was neither fraudulent nor collusive, (2) that deed P 4 was not asimple donation but was in reality a transfer for valuable considerationbecause it stipulated that Velupillai should settle a mortgage whichhad been created over the land, (3) that the 2nd defendant had acquireda prescriptive title, and (4) that Kathiresapillai had acquiesced in thedonation P 4. He dismissed the plaintiff’s action on these grounds.
1 (192S) 29 N. L. JR. 301.
SANSONI, J.—JZanapathipillai v. Sttbrttinaniam
By the deed P 4 Aramugam gave the land in dispute and another landby way of donation to Velupillai " for and in consideration of the love andaffection ” he had for his son, reciting as his title the deed P 2. Thedeed of donation contains a recital that the two lands donated, whichwere of the value of Rs. 2,500/, were subject to a mortgage debt ofRs. 1,500/ and interest which was to be paid and settled by the donee.It seems to me that the donor was making it clear in the deed that thegift was subject to an encumbrance, and that it was the duty of thedonee to free the lands of that encumbrance. Undoubtedly the donorwould benefit to that extent, but I am unable to say that the considerationfor the donation was anything except love and affection, which is theconsideration recited in the deed. I therefore do not regard the deedas a transfer for valuable consideration.
Inasmuch as the deed P 4 was effective to transfer only an undivided1/2 share of the land to Velupillai, Kathiresapillai remained a co-ownerof a 1/2 share until her death in 1940. The learned Judge has held thatKathiresapillai and Velupillai were in possession of the land until Kathi-resapillai’s death in 1940, and that thereafter Velupillai possessed theland. But Paramu who claims to speak to such possession was out ofthe Island till 1947. His evidence of possession is therefore hearsay.In any event, the question remains whether even if Kathiresapillai andVelupillai were in possession it was not as co-owners. It must be re-membered that till Kathiresapillai’s death title to 1/2 share was in her.It matters not that she was aware of the donation P 4 so long as she hadpossession of her share. Thereafter that share devolved on her fivechildren, of whom Velupillai, Paramu and the 1st defendant were three.It was not open to Velupillai or Paramu by any secret intention to changethe character of his possession as that of a co-heir to that of one pos-sessing adversely. Proof that the 1st defendant was made aware ofthe deeds in their favour and that they were possessing adversely tohim has not been adduced in this case. Seeing that Paramu andVelupillai were co-heirs of the 1st defendant, cogent evidence of adversepossession and ouster would be necessary before prescription couldbegin to run in their favour against the 1st defendant.
On the question of Kathiresapillai’s acquiescence in the conveyanceto her son Velupillai, the learned Judge has found in favour of the 2nddefendant on the ground that the deed P 4 is referred to in a mortgagebond P 5 executed in 1932 by Kathiresapillai and Velupillai. By P 5they mortgaged two lands, but neither of them is the land in dispute.Velupillai has mentioned the deed P 4 as his title to one of the mortgagedlands, and the learned Judge has on this ground held that Kathiresapillairegarded Velupillai as the sole owner of the land in dispute. Apartfrom the fact that the land in dispute was not mortgaged by the deedP 5, even if the reference to the deed P 4 be regarded as an admission byKathiresapillai of Velupillai’s right to the entirety of the land in dispute,she or her heir the 2nd defendant does not thereby lose any rights inthe land.
SA.NSONI, J.—KanapcUhijyUlai v. Subramaniatn
“ The term ‘ acquiescence * is used, in two senses. In its proper legalcense it implies that a person abstains from interfering while a violationof his legal rights is in progress. In another sense it implies that herefrains from seeking redress when a violation of his rights, of whichhe did not know at the time, is brought to his notice ” (13 Halsbury—Hailsham Edition—page 208). In the former sense acquiescence operatesby way of estoppel, and in the latter sense it is an element in laches.
Now the issues dealing with acquiescence are :
Did Kathiresapillai acquiesce in the conveyance of this land in
favour of her son Velupillai ?
If so, can any of the other children of Kathiresapillai claim any
share of this land %
There is no evidence at all that Kathiresapillai stood by and knowinglypermitted the donation P 4 to be executed in favour of Velupillai.Therefore these issues can only relate to Kathiresapillai’s acquiescencein the donation after she had come to know of its execution. Eventhen the 1st defendant’s share will not be lost to him unless the 2nddefendant can prove prescriptive title to it. “ The defence of laches,however, is only allowed when there is no statutory bar. If there is astatutory bar, operating expressly or by way of analogy, the plaintiff isentitled to the full statutory period before his claim becomes unenforceable”(page 112).
Another matter referred to in the judgment is that Kathiresapillaiwas aware of the transfer D 2 bj' Velupillai to Paramu. It is not clearfrom the finding in the judgment whether she has been held to be awarethat the transfer was to be made, or only that it had been made. If itis the latter, then again her knowledge would not deprive her of herrights for the reasons given in the passage just quoted. If it is the former,then if the requisite proof had been adduced she and her successors intitle might have been estopped from disputing the title of Paramu andthe 2nd defendant ; but there is no plea of estoppel, and the issues relat-ing to acquiescence, are confined to the conveyance P 4. only. Thereis no plea, nor issue, of estoppel relating to the transfer T> 2.
The learned Judge finally held that the transfer to Paramu was forvaluable consideration to a bona fide purchaser. A finding on such amatter can only be made after it has been put in issue. There is no issuewhich calls for or justifies such a finding, and therefore the questiondoes not arise.
On the issues as framed it seems to me that the 1st defendant’s titleto 1/10 share must be upheld and I would therefore set aside the judg-ment appealed against and give judgment for the plaintiff as prayed forwith costs in both Courts.
H. N. G. Fernando, J.—I agree.
S. A. KANAAPATHIPILLAI, Appellant, and A. SUBRAMANIAM et. al.. Respondents