DE SILVA J.—Ummu Sam v. Koch.
1946Present: Howard CJ. and de SOva J.TJMMU HAM et al., Appellant, and KOCH, Respondent.
379—D. C. Kandy, 757.
Prescription—Go-owners—Possession of entire common property by one
co-owner—Heeds executed by him in respect of it—Inference of ouster.
Mere possession and the execution, without the knowledge of theother co-owners, of deeds referring to the whole of the common propertyby a oo-owner are not sufficient to constitute an ouster.
PPEAL from a judgment of the District Judge of Kandy.
N.Nadarajah, K.G. (with him H. W. Thambidh), for the plaintiffs,appellants.
V. Perera, K.C. (with him Kingsley Herat), for the defendant,respondent.
Cur adv. mdt.
February 26, 1946, db Silva J.—
This action was instituted by the plaintiffs for declaration of title to anundivided four-eighths shares of the land depicted as lots 1 and 2 in theplan P 1 filed of record. After trial the learned District Judge dismissedthe plaintiffs’ action, holding that the defendant had acquired title to theland by prescriptive possession. The plaintiffs appeal from this decree.
The case for the plaintiffs was that one Ahmed Keedin Tuwan was theowner of the entirety of lots 1 and 2 and that he, by deed No. 10620 ofNovember 9, 1875 (P 4), conveyed to Magudu Meera Saibo who diedabout the year 1886 leaving as his heirs his widow Pathumuthu, his threesons Mammado Thambi, Mamma do Meera Saibo, Magudu Mfiha.mma.duand a daughter Pathumma Natchiya; that Mammado Thambi diedin the year 1896 and left as his heirs his daughter, the first plaintiff,and his brother Mammado Meera Saibo, each of whom became entitledto a one-eighth share ; and that Mammado Meera Saibo died a yearlater leaving as his heirs his widow, Beebe Pathumuthu, and his daughter,the second plaintiff, who on the death of her mother became entitledto the entirety of her father’s interest.
The defendant in her answer stated that one Seyadu Ismail was theowner of the lands and that he by deed No. 1285, dated March 22, 1904(D 2), conveyed these lands to Seyed Ahamad and Sahul Hameed,two of the sons of Pathumma Natchiya, the daughter of Magudu MeeraSaibo. Seyed Ahamad and Sahul Hameed, who are alleged to haveconsolidated the two lands into one corpus called Hakgirigalawatta,by deed No. 953 dated July 2, 1923 (D 3), conveyed the same to LydiaAmerancia Schokman, who died on March 19, 1934, leaving a last will,dated December 7, 1933, by which the land was devised to the defendant.This last will was proved in D. C., Colombo, Testamentary case No. 6,780,and the executrix by deed No. 26, dated December 16, 1941, conveyedthe land to the defendant.
DE SILVA J.—Ifmrnu Ham v. Kook.
At tile trial it appeared that both parties traced their title to NaguduMeera Saibo. Seyadu Ismail, the defendant’s predecessor in title, hadon deed No. 4934, dated Jnly 17,1900 (P 6), purchased from Pathumuthu,widow of Magudu Meera Saibo, and his daughter Pathumma Natchiya,their interests in these lands. The learned District Judge appears tohave been under the impression that this deed purported to convey theentirety of the lands. It is not clear from the deed itself whether theseparties purported to convey their interests in these lands or the landsthemselves.
On March 22, 1904, Seyadu Ismail by deed No. 1284 (P 7) purchasedMagudu Mohammado’s rights which the latter had inherited from hisfather, Magudu Meera Saibo, in the two lands. It would appear fromthis that Seyadu Ismail was probably aware that the interests of the otherheirs oi Magudu Meera Saibo were outstanding. Seyadu Ismail, who wasthus entitled to the shares of Pathumuthu, the widow of Magudu MeeraSaibo, Pathumma Natchiya, his daughter, and Magudu Mohammado,one of the sons, purported to convey the entirety of the two lands toSeyed Ahamed and Sahul Hameed, but the deed would be operative toconvey only the shares to which Seyadu Ismail had acquired title.
It also appeared in evidence that Seyed Ahamed was married to thefirst plaintiff in 1906 and that he and Sahul Hameed were carrying onbusiness in Ceylon and that their wives were living in India in one housealong with the second plaintiff and her husband, the witness RawannaMagudu Meera Saibo, who is a brother of Seyed Ahamed and SahulHameed. It was also established that the two plaintiff's had never cometo Ceylon and that the first plaintiff was bom on July 11, 1895, and thatthe second plaintiff was born on July 22, 1894. It was further provedthat remittances had been made by Sahul Hameed from time to timefor the maintenance of the plaintiffs.
As the defendant and her predecessors in title had-title only to theshares of the widow, the daughter and one of the sons of Magudu MeeraSaibo, she has to rely on prescriptive possession to establish her title to thebalance shares. Therefore, the question which had to be decided waswhether, in view of the minority of the plaintiffs and their absencebeyond the seas, the defendant and her predecessors in title have hadadverse and uninterrupted possession for a period extending to 30 years.The learned District Judge, after considering all the evidence before him,came to the conclusion that there had been adverse and undisturbedpossession from the year 1904 and held that the rights of the plaintiffshad been lost owing to such possession.
In appeal it was argued for the plaintiffs-appellants that Seyed Ahamedand Sahul Hameed and their successors in title entered into possessionas co-owners and that in view of the authorities their possession cannot beregarded to be adverse unless there was proof of an ouster or somethingequivalent to an ouster. The appellants’ Counsel relied on the wellknown case of Corea v. Iseris Appuhamy and others 1 in which theirLordships of the Privy Council held that a co-owner’s possession was inlaw the possession of his other co-owners and that it was not possible forhim to put an end to that possession by any secret intention in his mind ;
> IS N. L. R. 65.
DE SELVA T.—Ummu Ham «. Koch.
nothing short of an ouster, or something equivalent to an ouster, couldbring about that result. He also referred to the case of I. L. M. CadijaUmma and another v. S. Don Mania Appu and others 1; Cooray v. Perera 2;and the case of Sideris and others v. Simon and others s> In the last-mentioned case all the previous authorities were reviewed and it was heldthat the question whether a presumption of an ouster may be made fromlong continued and undisturbed and uninterrupted possession is one offact which would depend on the circumstances of each case. In thecircumstances of that particular case it was held that possession from 1004to 1042, though undisturbed and uninterrupted, was not sufficient to givea title by prescriptive possession. It is therefore necessary to considerwhether there are any circumstances in this case which would amountto an ouster.
From 1904 to 1923 the property was possessed by Seyed Ahamed andSahul Hameed. Seyed Ahamed is the husband of the first plaintiff whomhe married in 1906 and second plaintiff was married to a brother of SeyedAhamed and Sahul Hameed in 1913. After their respective marriagesthe plaintiffs were being maintained from the general income of SeyedAhamed and Sahul Hameed but I agree with the learned Judge that themoneys remitted by them to their families in India were not remittedas the plaintiffs’ share of the income from the property in question andthat such remittances cannot be regarded to constitute an admission ofthe title of the plaintiffs. On the other hand, apart from the fact thatthe plaintiffs had received some benefit from the income of the property,the burden is on the defendant to prove some circumstance or incidentfrom which it can be definitely inferred that her possession and that ofher predecessors in title became adverse to the co-owners at some definitepoint of time.
The trend of judicial opinion in recent cases seems to be that merepossession and the execution of deeds referring to the whole land by aco-owner are not sufficient to constitute an ouster. In this case it ispossible to bold that the acts of Lydia Sehokman after her purchase,such as putting up buildings and letting such buildings on hire withoutreference to the other co-owners, would make it manifest that she washolding the land adversely to the other co-owners. But with regardto the period from 1904 to 1923 it is difficult to find any circumstancewhich would amount to an ouster of the plaintiffs. 7?ie learned Judgerefers to the various mortgages and sales which are disclosed in theextracts of encumbrances (D 8), and from the fact that these encumbranceswere paid off on the same day as that on which the transfer in favour ofSeyed Ahamed and Sahul Hameed was executed infers that it • ^emsprobable that it was intended that D 2 should pass title to the entirety ofthe lands.
At the time of the execution of D 2 the plaintiffs were about 9 and 10years of age respectively and it is very unlikely that they were aware ofany such intention or were capable of consenting to any arrangementby which they waived their rights in favour of Seyed Ahamed and SahulHameed. It is true that these vendees had subsequently in 1905 and
1 40 N. L. R. 392.
8 46 N. L. R. 273.
1 45 N. L. R. 455.
SSKyathamby v. Miranda.
1916 mortgaged the entirety of the land to Sivaprakasa Ammal andCraoklow bat there is no evidence to show that the plaintiffs were awareof these mortgages. It seems to be settled law that in the absence ofsuch knowledge such transactions are not sufficient to constitute an ouster.In the circumstances the conclusion that the defendant had failed toestablish her title to the shares of the plaintiffs by prescriptive possessionseems to be irresistible.
As stated before the plaintiffs alleged that on the death of MammadoThambi a one-eighth share devolved on the first plaintiff and the remain-ing one-eighth on Mammado Meera Saibo. It is not clear how MammadoMeera Saibo could have inherited a one-eighth share as Magudu Moham-madu appears to have been alive at the time of the death of MammadoThambi. The first plaintiff seems to have altered her position duringthe course of the trial and to have claimed the entire share of her fatheras his only daughter. This point, however, is not made clear in theproceedings.
I would set aside the decree of the District Court and send the case baokfor ascertaining the shares of the plaintiffs on the basis that the defendanthas not acquired their shares by prescription and for the trial of the otherissues between the parties. The plaintiffs will be entitled to the costs ofthis appeal. The other costs, including the costs of the trial already heldwill abide the final result of the case and the District Court should makean appropriate order at the conclusion of the further proceedings.Howard C.J.—I agree.
Decree set aside.
UMMU HAM et al , Appellant, and ,KOCH , Respondent