ABDUL MAJEED , Appellant, and UMMU ZANEERA et al , Respondent

093-NLR-NLR-V-61-ABDUL-MAJEED-Appellant-and-UMMU-ZANEERA-et-al-Respondent.pdf


Abdul Majeed v. Ummu Zaneera
361
Present: Basnayake, C. J., K. D. de Silva, J., andH. N. G. Fernando, J.ABDUL MAJEED, Appellant, and UMMU ZANEERA et al.,Respondents
S. G. 260—D. G. Colombo, 6970JM
Go-owners—Prescriptive possession, by a co-heir—Ouster—Fideicommissu/m for four
generations—Computation of period—Prescription against remainder-men
and minors—Burden of proof—Prescription Ordinance {Cap, 55), ss, 3, 13—
Evidence Ordinance, s. 114.
On an. issue of prescriptive title raised between co-heirs in respect of a property-valued at (Rs. 75,000 (land 12-61 perches in extent and a building coveringpractically the whole land)—
Held, by de Suva, J., and H. N. G. Feenahdo, J. (Basnayake, C.J.,dissenting), that proof that one of the co-heirs let out the premises andappropriated to himself the entire rent (which was not much) for thirty-sevenyears was insufficient, by itself, to bring the case within section 3 of thePrescription Ordinance.
Per de Silva, J.—“ In considering whether or not a presumption of oustershould be drawn by reason of long-continued possession alone, of the propertyowned in common, it is relevant to consider the following, among othermatters :—
(а)The income derived from the property.
(б)The value of the property.
(c) The relationship of the co-owners and where they reside in relation to thesituation of the property.
{d) Documents executed on the basis of exclusive ownership ”.
Per H. 1ST. G. Fekstando, J.—“ Firstly, section 3 (of the PrescriptionOrdinance) imposes two requirements: * undisturbed and uninterruptedpossession ’ and ‘ possession by a title adverse or independent ’ ; secondlythe question whether the second of these requirements is' satisfied does notarise nnlpiss the first of them has been proved. It is clear from the judgmentof the Privy Council in Corea's case {15 N. L. B. 65) that a co-owner in possessioncan satisfy the second requirement in two different modes :—
{a) by proving that his entry was not by virtue of his title as a co-owner,but rather of some other claim of title; in fact Their Lordships,in Corea's ease, rejected the finding of the Supreme Court that thepossessor had entered as sole heir of the former owner ;
(6) by proving that, although his entry was by virtue of his lawful title asa co-owner, nevertheless he had put an end to his possession inthat capacity by ouster or something equivalent to ouster, andthat therefore and thereafter his possession had been by an adverseor independent title ”.
Considered also:—(i) Duration of a fideieommissum lasting for fourgenerations. It would be only the fifth generation of fideicommissary heirswho would inherit the property free of the fideieommissum, (ii) Burden ofproof in cases falling under the proviso to section 3 and section 13 of thePrescription Ordinance in relation to the issue of prescription against remainder,men and minors.
16—LXI
T.J. M. It 8263-1,995(2/60)
362
BASEST AYAKZE, C'. J.—Abdul Majeed v. Ummu Zaneera
i^LpPEAL from a judgment of the District Court, Colombo. Thefacts appear from the judgment of de Silva, J.
H. V. Per era, Q.C., "with JS. Ismail, for 13th Substituted Defendant-Appellant.
M. S. M. Nazeem, with M. T. M. Sivardeen, for Plaintiff-Respondent.
8. Sharvananda, with M. Shanmugalingam, for 4th to 8th Defendants -Respondents.
H. W. Jayewardene, Q.G., with M. Rafeek and L. C. Seneviratne, for9th Defendant-Respondent and for 10th Substituted Defendant-Respondent.
M. Mohideen, with 8. M. Uvais, for 12-th Defendant-Respondent.
Cur. adv. wit.
December 11, 1959. Bashayake, C.J.—
This is an action under the Partition Act, No. 16 of 1951, instituted on17th September 1953. The main contest at the trial was whether deedNo. 260 dated 16th July 1872 attested by J. W. Vanderstraaten createda fideicommissum which endured for four generations. The learnedDistrict Judge held that the deed created a fideicommissum and learnedcounsel for the 13th defendant-appellant, who may conveniently bereferred to hereinafter as the appellant, does not challenge that finding.The appellant had also claimed that he was entitled to a decree in hisfavour under section 3 of the Prescription Ordinance as he had possessedthe entire land since the year 1916.
The learned District Judge while in effect holding that the appellanthad continuous and exclusive possession of the premises since 1916 rejectedhis claim for a decree in his favour under section 3 of the PrescriptionOrdinance on the ground that he had failed to prove that the proviso tosection 3 and section 13 of the Ordinance did not apply to his claim. Thedecision that the burden of proving the exceptions rests on the appel-lant is canvassed in appeal. It is submitted that the learned DistrictJudge has wrongly cast on the appellant the burden of proving matterswhich ha law he is not bound to prove. The portion of the learnedDistrict Judge’s judgment to which objection is taken runs as follows:—
. “In. fact, .the. burden is on the 13th defendant to prove that he hadacquired a title by prescriptive possession to the interests of all theparties to this action, who are the descendants of Muttu Natehia.
BASNATAKZE, C.J.—Abdul Majaed v. Ummu Ztmeera
363
Bis prescriptive possession has been interrupted always with the deathof a fiduciary. It is for him to produce the death certificates of thesuccessive fiduciaries and the birth certificates of the several fidei com-missary. Ansa TTmma, one of the daughters of AEuttu Naiehia, diedleaving three children, the 9th and 10th defendants and one MohamedRazeen. Ansa XTnuna was a fiduciary. It is not known when she died.It is only after her death that the 13th. defendant would start topossess adversely against the 9th and 10th defendants and MohamedRazeen. There is no evidence as to the age of the 9th and 10thdefendants. Similarly in the case of all the other defendants it cannothe held that the 13th defendant acquired a prescriptive title to theirinterests. I hold that the 13th defendant has not acquired prescriptivetitle to the interests of the plaintiff or any other defendants 51.
The plaintiff and the other defendants claim the benefit of the provisoto section 3 and section 13. Those provisions read—
“ Provided that the said period of ten years shall only begin to runagainst parties claiming estates in remainder or reversion from the timewhen the parties so claiming acquired a right of possession to theproperty in dispute.
c: 13. Provided nevertheless, that if at the time when the rightof any person to sue for the recovery of any immovable propertyshall have first accrued, such person shall have been under any of thedisabilities hereinafter mentioned, that is to say—
(а)infancy,
(б)idiocy,
unsoundness of mind,
lunacy, or
absence beyond the seas,
then and so long as such disability shall continue the possession of suchimmovable property by any other person shall not be taken as givingsuch person any right or title to the said immovable property, as againstthe person subject to such disability or those claiming under him, butthe period of ten years required by section 3 of this Ordinance shallcommence to be reckoned from the death of such last-named person,or from the termination of such disability, whichever first shall happen ;but no further time shall be allowed in respect of the disabilities of anyother person:
:t Provided also that the adverse and undisturbed possession for thirtyyears of any immovable property by any person claiming the same, orby those under whom he claims, shall be taken as conclusive proofof title in manner provided by section 3 of this Ordinance, notwith-standing the disability of any adverse claimant."
364
BASNAYAXE, C.J.—Abdul Majeed v. Umrtvu. Zaneera
Learned counsel’s contention that the learned District Judge has■wrongly cast on the appellant the burden of proving the exception issound. The rule of evidence is that whoever desires any court to give-judgment-as to any legal-right or liability dependent on the existenceof facts which he asserts, must prove that those facts exist. Thosewho assert that the period of ten years began to run as against themonly after a certain date in view of the proviso to section 3 orsection 13 must produce evidence of facts which bring their case withinthose provisions. Learned counsel’s submission is supported by thedecision of the Privy Council in the case of Mohamedaly Adamjee v.Hadad Sade&n 1 to which he has referred us. In that case the Boardmade the following observations :—
“ Looking at the matter first as a question of construction they thinkthat once parties relying upon prescription have brought themselveswithin the body of section 3 the onus rests on anyone relying uponthe proviso to establish their claim to an estate in remainder or reversionat some relevant date and they cannot discharge this onus unless theyestablish that their right fell into possession at some time within theperiod of ten years. ”
In the instant case except in regard to the plaintiff, and the 1st and2nd defendants, the parties have produced no evidence which bringstheir claims within the proviso to section 3 or section 13. But it iscontended on behalf of the 9th and 10th defendants-respondents that theappellant is a co-heir and that proof that he collected the entire rent sincethe year 1916 is insufficient to bring his ease within section 3. It istherefore necessary to deal with that aspect of the case with which thelearned District Judge has not dealt specially though an argument inregard to it appears to have been addressed to him.
It has been laid down by the Privy Council in the case of Corea v.Appukamy 2 that the possession of a co-owner is in law possession of theother co-owners ; that it is not possible for a co-owner to put an end tohis possession qua co-owner by any secret intention in his mind ; thatnothing short of ouster or something equivalent to ouster could bringabout that result.
In the case of Cadija Urnma v. Don Manis8 in dealing with the caseof an agent’s possession the Privy Council said—
“ Ouster apart, a man’s possession by his agent is not dispossessionby his agent. The like is true between co-owners in Ceylon, and isthe ground of decision in Corea’s case.”
It is therefore necessary first to understand what the Privy Councilmeant by the words “his possession was in law the possession of hisco-owners ”. What is the kind of possession contemplated by these words ?
{1956) 53 N.L.K. 227 at 227.2 {1911) 25 Z't.L.R. 65.
8 {1938) 40 N.L.R. 392 at 396.
l
BASHA7AEE, C.J.—Abdul Majeed v. Dmrou Zaneera
365
Is it a possession, in which the rights of the other co-owners are recognisedor is it a possession in which they are not 1 For the answers to thesequestions we have to look to the English Law, as section S of the Prescrip-tion Ordinance is based on concepts of English and not on those of Roman-Dutch law. The English law on the subject is nowhere better expressedthan in Doe v. Prosser1 wherein Lord Mansfield and Justice Acton haveexplained what is meant by adverse possession and ouster. The formerexplains the law thus :—
“ So in the case of tenants in common the possession of one tenantin common, eo nomine, as tenant in common, can never bar his com-panion ; because such possession is not adverse to the right of hiscompanion, but in support of their common title and by paying himhis share, he acknowledges him co-tenant. Nor indeed is a refusal topay of itself sufficient, without denying his title. But if, upon demandby the co-tenant of his moiety, the other denies to pay, and denies histitle, saying he claims the whole and will not pay, and continues inpossession; such possession is adverse and ouster enough.”
Justice Acton’s words are pithy and to the point. He says—
“ There have been frequent disputes as to how far the possession ofone tenant in common shall be said to he the possession of the other,a.r>r> what acts of the one shall amount to an actual ouster of hiscompanion. As to the first, I think it is only where the one holdspossession as such, and receives the rents and profits on account ofboth. With respect to the second, if no actual ouster is proved, yetit may be inferred from circumstances, which circumstances are matterof evidence to be left to a jury. ”
It would appear therefore that on the facts of the instant case theco-owners cannot claim the benefit of the appellant’s possession as he haspossessed not on their behalf buti for himself without giving them theirshare of the rent-
Next let me consider whether in the instant case there is evidence of“ ouster ” or “ something equivalent to ouster ”. The meaning of“ ouster ” an expression which is not discussed in our reports must firstbe ascertained. Now “ ouster ” is a concept of English law. It isdefined thus in Sweet’s Law Dictionary :
“ To oust a person from land is to take the possession from him soas to deprive him of the freehold.An ouster may be either rightful or
wrongful. A wrongful ouster is a disseisin. ”
According to Blackstone—
“ Ouster, or dispossession, is a wrong or injury that carries with itthe amotion of possession : for thereby the wrong-doer gets into theactual occupation of the land or hereditament, and obliges him thathas a right to seek his legal remedy, in order to gain possession, anddamages for the injury sustained. And such ouster, or dispossession,
1 1 Coieper 216—98 E.R, 1052 {177£>.
2»J. N. B. 8263 (2/60)
366
BASUAYAKB, C.J.—Abdul Maje&d v. Uimrm Zaneero
may either be of the freehold, ox of chattels real; 1 a distinction 'whichwas formerly of the utmost importance, as the remedies for an ousterof the freehold were not only peculiar in their nature, but were confinedin their use to that species of property; while those which the lawafforded for recovery of the possession of chattels real were totallyinapplicable to all estates of freehold. We shall see afterwards howthe action of ejeetment has come to supply the place of nearly allthese remedies”
“ Ouster of the freehold then ‘ was, and in theory may still be ’effected by one of the following methods : 1. Abatement; 2. Intrusion;
Disseisin ;4. Discontinuance ; 5. Deforcement ’. ” (Blackstone,
Vol. ill p. 176—Kerr’s edition 1862).
The last named is the form of ouster that applies to the case of aco-owner who decides to keep out the other co-owners. Blackstonedescribes it thus—{ibid, p. 182).
“ The fifth and last species of injuries by ouster or privation of thefreehold, where the entry of the present tenant or possessor wasoriginally lawful, but his detainer has now become unlawful, was thatby deforcement. This, in its most extensive sense, is nomen genera-lissimum ; a much larger and more comprehensive expression than anyof the former ; it then signifying the holding of any lands or tenementsto which another person has a right. ”
Blackstone gives many examples of deforcement and the only one germaneto the subject under discussion is the following—(ibid, p. 182).
“Another species of deforcement is, where two persons have thesame title to land, and one of them enters and keeps possession againstthe other, as where the ancestor dies seized of an estate in fee-simple,which descends to two sisters as co-parceners, and one of them entersbefore the other, and will not suffer her sister to enter and enjoy hermoiety ; this is also a deforcement. ”
In the instant case there is evidence of “ ouster ” in the sense statedin the passage from Blackstone last cited and the English cases I shallrefer to later in this judgment. The appellant came into possession ofthe land in 1916 on the death of his father, who himself had been inpossession of it, and has continued to take the entire rent from that day.The plaintiff and the 1st and 2nd defendants are the great-great-grand-children of the author of the fideicommissum. Several generations ofhis descendants have been content to allow the appellant and his fatherto collect the entire rent. There is no evidence that till the date of thisaction in September 1953 any one has even questioned the appellant’sright to take the rant during these thirty-seven years.
Apart from actual ouster in the sense stated above TiVnorKgTi lawrecognises a presumption of ouster. The cases of Doe v. Posser {supra) and
BASNAYAJOD, O.J.—Abdul M.ajeed v. Zhnmu Zaneera
367
Ho'tiiblower v. Read 1 decide that ouster may be presumed in a case whereuninterrupted possession for thirty-six years is established. In theformer case Lord Mansfield stated—
“ It is very true that I told the Jury, they were warranted by thelength of time in this case, to presume an adverse possession andouster by one of the tenants in common, of his companion ; and Icontinue still of the same opinion—Some ambiguity seems to havearisen from the term ‘ actual ouster ’, as if it meant some actaccompanied by real force, and as if a turning out by the shoulderswere necessary. But that is not so. A man may come in by arightful possession, and yet hold over adversely without a title. If hedoes, such holding over, under circumstances, will he equivalent to anactual ouster. ”
After enunciating the rule that the possession of one tenant in common,eo nomine, as a tenant in common, can never bar his companion ; becausesuch possession is not adverse to the right of his companion, but insupport of their common title, Lord Mansfield adds—
“but in this case no evidence whatsoever appears of any
account demanded, or of any payment of rente and profits, or of anyclaim by the lessors of the plaintiff, or of any acknowledgment of thetitle in them, or in those under whom they would now set up a right.Therefore I «.m clearly of opinion, as I was at the trial, that an un-disturbed and quiet possession for such a length of time is a sufficientground for the jury to presume an actual ouster, and that they didright in so doing. ”
Justice Acton in the same case puts the proposition thus :
" How in this case, there has been a sole and quiet possession for40 years, by one tenant in common only, without any demand orclaim of any account by the other, and without any payment to himduring that time. "What is adverse possession or ouster, if the un-interrupted receipt of the rents and profits without account for near40 years is not % ”
Justice Willes in agreeing with Lord Mansfield and Justice Actonstates—
“ The possession is a possession of 16 years above the 20 prescribedby the Statute of Limitations, without any claim, demand, or interrupt-ion whatsoever ; and therefore, after a peaceable possession for such alength of time, I think; it would be dangerous now to admit a claim todefeat such possession. However strict the notion of actual oustermay formerly have been, I think adverse possession is now evidence ofactual ouster. ”
1 1 East 568.
368
BASNAYAKE, C.J.—A.bdziL Majeed v. Ummu Zaneera
In the latter ease Lord Kenyon C. J. observes —
“ 1 have no hesitation in saying -where the line of adverse possessionbegins and where it ends. Prima facie the possession of one tenant incommon is that of another : every case and dictum in the book is tothat effect. But you may shew that one of them has been in possessionand received the rents and profits to his own sole use, without accountto the other, and that the other has acquiesced in this for such alength of time as may induce a. jury under all the circumstances topresume an actual ouster of his companion. And there the line ofpresumption ends. ”
In this discussion it is important to bear in mind the words of LordMansfield quoted above that actual ouster is not some act accompaniedby force. The expression is defined in Black’s Law Dictionary thus :
“ Actual ouster does not mean a physical eviction, but a possessionattended with such circumstances as to evince a claim of exclusiveright and title, and a denial of the right of the other tenant toparticipate in the profits. ”
The presumption of ouster referred to in the cases cited by me is onethat a court may draw under section 114 of the Evidence Ordinance,which provides that the court may presume the existence of any factwhich it thinks likely to have happened, regard being had to the commoncourse of natural events, human conduct, and public and private businessin their relation to the facts of the particular case.
The facts of the instant case fall within the ambit of Lord Kenyon’swords. Here the appellant has been in possession and received the rentto his own use without accounting to the others and those others haveacquiesced in it for such a length of time as will enable the court topresume under all the circumstances an actual ouster of the othersmore than ten years before the institution of this action.
Before I part with this judgment I wish to add that in counting thenumber of generations for the purpose of a.fideicommissum which enduresfor four generations the person who has been expressly named and is theimmediate donee is not taken into account. This is what Van Leeuwensays :
“ It has been received as a general rule, that a fideicommissum ofthis or a similar kind in a case of doubt and when the prohibition isdifficult to be understood, is not perpetual, but only extends to thefourth degree of succession, counting from him to whom after thedeath of the first heir the inheritance has come saddled with such aburden, up to the fourth degree beyond him inclusive, for the personwho has been burdened expressly and by name does not form a degree,bnt his successor is the first to do so. ” (Censura Eorensis, Part I,Book HI, Ch. Vll, S. 14, Eord’s Translation, p. 92.)
Eor the reasons stated above the appellant is entitled to a decree inhis favour declaring him entitled to all the shares excluding those of theplaintiff and the 1st and 2nd defendants.
EE SILVA, <T.—Abdul Majeed v. Ummu Zaneera
369
In regard to costs the appellant is entitled to the costs of the con-tested trial as against the plaintiff who alone resisted his claim. Theother costs will be borne by the parties declared entitled to the landpro rata. The appellant would also be entitled to the costs of appealpayable by the 9th and 10th defendants.
de Silva, J.—
The plaintiff instituted this action under the Partition Act, No. 16 of1951 praying for a sale of the premises described in the schedule to theplaint. Admittedly the property in question belonged to one IbrahimLebbe Ahamado Lebbe. He by deed No. 260 dated the 16th July, 1872(P2) gifted it to his wife Muttu Natchia subject to certain conditions.The plaintiff and certain defendants contended that this deed created avalid fideicommissum in favour of the children and the remoter des-cendants of the donor and donee binding on four generations. MuttuNatchia and her husband died leaving two daughters and one son. Thedaughters were Candumma and Ansa TJmma while the son was AbdulRahaman. Abdul Majeed the 13th defendant is the only child of AbdulRahaman. The plaintiff and the other defendants are the successors intitle of the two daughters of Muttu Natchia. The 13th defendant tookup the position that P2 did not create a valid fideicommissum. He alsoaverred in his answer that Muttu Natchia had “ put him in completepossession ” of the property and that thereafter he had been in sole andexclusive possession of it and had acquired a prescriptive title to theentire property or at least to the shares claimed by the plaintiff and1, 2, 5, 6, 7, 8, 11 and 12.th defendants and the rights which the 9th and10th defendants derived from one Noor Lahira the grand-child of AnsaTJmma.
The learned District Judge held that P2 created a valid fideicommissumwhich endured for four generations and rejected the claim of the 13thdefendant based on prescription. He allotted shares according to thedevolution of title as set out in the plaint and entered a decree for sale.This appeal is by the 13th defendant against the judgment anddecree.
At the hearing of this appeal the finding of the learned District Judgethat the deed P2 created a valid jfideicommissum binding on four genera-tions was not challenged. The learned counsel for the appellant,however, contended that his client had established a prescriptive title tothe half share which devolved on the 2nd to 9th defendants and NoorLahira. That is the main question for decision on this appeal.
At the trial the counsel for the plaintiff made an admission regardingthe possession of this land. It is recorded in the following terms.“ Mr. Weerasinghe admits that the 13th defendant’s father has been inpossession from prior to 1916. ” The only persons who gave evidencewere the 2nd defendant and the 11th defendant. The 13th defendantneither gave evidence nor called any witness on his own behalf. The2nd defendant was called on behalf of his sister the plaintiff while the11th defendant did not give any evidence whatsoever in regard to
370
DE SILVA, J.—A.bdul Majeed v. TJmmu Zane&ra
possession. However, it was elicited from the 2nd defendant in cross-examination that from the time he became aware of things the 13thdefendant had been collecting the rent of this property. It is significantto observe that the age of the 2nd defendant when he gave evidencewas 32. After the plaintiff’s case was closed the following admission isalso recorded. “ Plaintiff admits that from 1916 the 13th defendantcollected the rents. ”
Thus the prescriptive title set tip by the appellant rests solely on thetwo admissions I have quoted above and the statement of the 2nddefendant that from the time he came to know things the 13th defendanthad been collecting the rent of the building which stands on this landwhich is 12-61 perches in extent. The plan PI reveals that practicallythe whole land is covered by this building. It is rather remarkable thatalthough it was elicited from the 2nd defendant in crnsR-ftvamiua.tin-nthat the 13th defendant collected the rent yet no attempt was made toobtain any admission from him that the entire rent collected was alsoappropriated by the 13th defendant. I do not think for a moment thatwhen the counsel for the plaintiff admitted that from the year 1916 the13th defendant was in possession and before that the latter’s father hadbeen in possession he meant to concede that the possession they had wasof the character contemplated by section 3 of the Prescription Ordinance.The word “ possession " was obviously used by him in a loose and vaguesense. Probably he meant merely physical possession and this is madeclearer by the 2nd admission which only conceded that the 13th defen-dant collected the rent. If he admitted that these two persons hadpossession in the sense the word is used in that section there was nopurpose in going on with the trial thereafter. Prom the evidence of the2nd defendant and the two admissions referred to, one cannot reasonablysay that anything more was conceded than that the 13th defendant letout the premises and collected the entire rent. There is no definiteevidence as to what he did with the rent whether he appropriated thewhole of it for himself, shared it with the other co-owners, spent it on themaintenance of the building or used it for charitable purposes. It wouldnot he strange if the 13th defendant collected the rent and looked afterthe building and before him his father did so. Of the three children ofMuttu Natchia the 13th defendant’s father was the only male. Thatbeing so it is quite natural, these parties being Muslims, that the 13thdefendant’s father, the only male in the family, was in charge of thepremises and collected the rent. On the death of the father the son maywell have taken over those duties without any objection from the otherco-owners. If the 13th defendant did not appropriate for himself theentire rent his claim to this property on a prescriptive title is quiteuntenable. The prescriptive title is set up on the basis that he approp-riated the entire rent for himself. Assuming that he did so, althoughthe evidence is insufficient for so holding, is he entitled to succeed onthe issue of prescription ?
As the deed P2 created a valid fideicommissum the 13th defendantand the other descendants of Muttu Natchia and her husband would beco-owners of this property. In Corea v. Iseris Appuhamy 1 the Privy
1 {1911) 15 N.L.R. 65.
DE SELVA, J.—Abdul Majeed v. UmmU Zaneera
371
Counoil recognized the principle “ Possession is never considered adverseif it can. be referred to a lawful title There is no doubt that in theinstant case the 13th defendant entered into possession of the propertyin the character of a co-owner. In that case the Privy Council furtherheld that, in law, the possession of one co-owner is also the possession ofhis co-owners, that it was not possible to put an end to that possessionby any secret intention in his mind and that nothing short of ouster orsomething equivalent to ouster could put an end to that possession. Aninvitation by the counsel for the respondent to presume an ouster orsomething equivalent to an ouster from Iseris’s long-continued possessionwas rejected by Their Lordships of the Privy Council in that ease butthe point was not fully considered.
In TiUelceratne v. Bastian 1 a case decided by a Bench of three Judges,this Court held that it was open to the Court, from lapse of time inconjunction with the circumstances of the case, to presume that apossession originally that of a co-owner had since become adverse.Bertram C. J. who delivered the main judgment in that case referred tothe observations of Lord Mansfield in Doe v. Prosser a and followed theprinciple enunciated therein. Lord Mansfield said in that case “ But if,upon demand by the co-tenant of his moiety, the other denies to pay anddenies bis title, saying he claims the whole and will not pay, and continuesin possession, such possession is adverse and ouster enough …… In
t.bia case no evidence whatever appears of any account demanded, or ofany payment of rents and profits, or of any claim by the lessors of theplaintiff, or of any acknowledgment of the title in them, or in thoseunder whom they would now set up a right. Therefore, I am clearly ofopinion, as I was at the trial, that an undisturbed and quiet possessionfor such a length of time is sufficient ground for the jury to presume anactual ouster”
Whether the presumption of ouster is to be drawn or not depends onthe circumstances of each ease. In Tilleheratne v. Bastian1 there werethree circumstances of great importance which justified this Court inpresuming an ouster. They were :—(1) Bastian whose share was inissue had not been recognized by the other members of his family as thelawful child of his father (2) Neither Bastian nor his vendee claimed ashare of the plumbago dug from the land and (3) The share of this landpurchased from Bastian was not included in the schedule of assets of thevendee when he became insolvent. There are no circumstances of suchimportance in the instant case.
In regard to the observations of Lord Mansfield referred to above Iwould venture to say that there is some risk in applying the principleenunciated by him indiscriminately to a set' of similar circumstancesexisting in this country. Our land tenure is different from that pre-vailing in England and our laws of inheritance in respect of immovableproperty also differ from theirs. Common ownership of lands is rampanthere whereas it is comparatively rare in England. Our social customsand family ties have some hearing on the possession of immovableproperty owned in common and should not be lost sight of. Many of
1 {19X3) 21 NJ1.3. 12.8 {1774) 1 Cowper 217.
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DE SILVA, J.—Abdul Jklajeed v. Ummu Zaneera
our people consider it unworthy to alienate ancestral lands to strangers.Those who are in more affluent circumstances permit their less fortunaterelatives to take the income of the ancestral property owned in common.But that does not mean that they intend to part with their rights inthose lands permanently. Yery often if the income derived from such aproperty is not high the co-owner or co-owners who reside on it arepermitted to enjoy the whole of it by the other co-owners who live faraway. But such a co-owner should not he penalized for his generousdisposition by converting the permissive possession of the recipient erfhis benevolence to adverse possession.
In considering whether or not a presumption of ouster should bedrawn by reason of long-continued possession alone, of the propertyowned in common, it is relevant to consider the following, among othermatters :—
(а)The income derived from the property.
(б)The value of the property.
The relationship of the co-owners and where they reside in relation
to the situation of the property.
Documents executed on the basis of exclusive ownership.
If the income that the property yields is considerable and the whole ofit is appropriated by one co-owner during a long period it is a circumstancewhich when taken in conjunction with other matters would weigh heavilyin favour of adverse possession on the part of that co-owner. The valueof the property is also relevant in considering this question although it isnot so important as the income. If the co-owners are not related to oneanother and they reside within equal proximity to the property it ismore likely than not that such possession is adverse and it would beparticularly so if the property is valuable or the income from it isconsiderable. If the co-owners are also co-heirs the position would beotherwise.
In this case it is unfortunate that no evidence has been led to showwhat the income from this property was. If the rent was high it wouldhave been a point in favour of the 13th defendant if he appropriated thewhole of it. The fact that no evidence was adduced by the 13th defendanton the question of rent, probably, indicates that the rent was not much.In the plaint the property is valued at Rs. 75,000. That would appear tobe a fair valuation as the premises were situated in Prince Street, Pettah.The building on it must be an old one because none of the co-ownersclaimed to have constructed it. If the rent was small, not much wouldhave been left, after paying the rates and taxes, to be shared by theco-owners. If that assumption is correct the fact that the other co-owners did not press the 13th defendant for their shares of the incomewould not be a strong point against them. That of course, is on thebasis that the 13th defendant appropriated to himself the whole income.In this case the 13th defendant has failed to produce a single documentexecuted by him on the basis that he was the sole owner of the property.
3333 SILVA, J.—Abdul Majeed v. Urnmu Zaneera
373
The absence of such documents goes to show that he did not intend tochange the character of his possession or to assert a title to the wholeproperty.
There is also no ostensible reason why the other co-owners should havemeekly acquiesced if they became aware that the 13th defendant wassetting up an independent title to the entire property.
In my view the evidence of possession by the 13th defendant is whollyinsufficient to hold that he has acquired a prescriptive title to a share ofany of the co-owners.
I am also inclined to the view that no occasion to draw a presumptionof ouster arises where a co-owner relies only on his own exclusive possession,as in this case, in support of the prescriptive title he sets up. The13th defendant relied on his possession alone according to the statementof claim filed by him. Therefore he onght to know when he decided toassert a title to the property adverse to the interests of his co-owners.What is the overt act he did which brought to the notiee of his co-ownersthat he was denying their rights to the property 1 Did he refuse to givetheir shares of the income ? He did not say so. But the burden wason him to establish the prescriptive title. The presumption of ouster isdrawn, in certain circumstances, when the exclusive possession has beenso long-continued that it is not reasonable to call upon the party whorelies on it to adduce evidence that at a specific point of time, in thedistant past, there was in fact a denial of the rights of the other co-owners.The duration of exclusive possession being so long it would not be practi-cable in such a case to lead the evidence of persons who would, he in aposition to speak from personal knowledge as to how the adverse posses-sion commenced. Most of the persons who had such knowledge may bedead or cannot be traced or are incapable of giving evidence when theease comes up for trial. In such a situation it would be reasonable, incertain circumstance, to draw the presumption of ouster. But in theinstant case the party who claimed to have originated the adversepossession was alive at the time of the trial. He is no other than the13th defendant himself. There was no necessity, therefore, to resort to apresumption of ouster. The 13th defendant’s adverse possession, if any,was a question of fact which he could and should have proved. Hefailed to do so. In Tili-ekeratne v. Bastion1 Bertram C.J. while dealingwith the circumstances in which the presumption of ouster may be drawnstated “ If it is found that one co-owner and his predecessors in interesthave been in possession of the whole property for a period as far back asreasonable memory reaches; that he and they have done nothing torecognize the claims of the other co-owners ; that he and they have takenthe whole produce of the property for themselves ; and that these co-owners have never done anything to assert a claim to any share of theproperty, it is artificial in the highest degree to say that such person andhis predecessors in interest must be presumed to be possessing all this timein the capacity of co-owners, and that they can never be regarded ashaving possessed adversely, simply because no definite positive act can
1 {192$) 21N. A,. R. 12.
374
H. N. G-. FERNANDO, J.—jLbdzil Majeed v. TJmmu Zaneera
"be pointed to as originating or demonstrating the adverse possession.”All the circumstances set out in this passage are not present in theexclusive possession attributed to the 13th defendant in this case. It issignificant to note that the learned Chief Justice contemplates here acase where a co-oumer and his predecessors in interest are concerned- Ido not think that he would have been prepared to draw the presumptionof ouster if the exclusive possession relied on was solely that of theoo-owner who set up the prescriptive title. In such a case the ouster orsomething equivalent to ouster would have to be proved, as any otherquestion of fact, by leading the necessary evidence.
The presumption that possession is never considered adverse if it canbe referred to a lawful title may sometimes be displaced by the counter-presumption of ouster in appropriate circumstances. However, thiscounter presumption should not be reached lightly. It should be appliedif and, only if, the long continued possession by a co-owner and hispredecessors in interest cannot be explained by any reasonable explanationother than that at some point of time, in the distant past, the possessionbecame adverse to the rights of the co-owners. Indeed, this is not sucha case.
The appeal must therefore be dismissed. The judgment, however,needs variation on one point. The learned District Judge was of theview that the rights allotted to the plaintiff and certain defendantsspecified by him were free of the fideicommissum. That is not correct.Only the l/9th share originally belonging to Noor Lahira and whichdevolved on 9 to 12th defendants will not be subject to the fideicommissum.As this fideicommissum, endures for four generations it would be only the5th generation of fideicommissary heirs who would inherit the propertyfree of the fideicommissum. Therefore the proceeds of sale of the balance8/9ths of the property should be deposited in Court and would be subjectto the fideicommissum. The substituted defendants appellants ■will paythe costs of this appeal to the respondents.
H. N. G. Fernando, J.—
It is common ground in this case that the land which is the subject ofthe action belonged originally to one Ibrahim Lebbe Ahamado Lebbe.By a deed No. 260 of 16th July 1872 he made a gift of that land to his wifeMuttu Natchia subject to certain conditions. Muttu Natchia had threechildren ; her son Abdul Rahuman was the father of the 13th defendant;her two daughters were the ancestors of the plaintiff and the otherdefendants. When the plaintiff'instituted this action for the partitionof the land on the basis that the deed P2 created a fideicommissum infavour of the descendants of Muttu Natchia up to the fourth generation,the 13th defendant filed answer claiming that the deed P2 of 1872 didnot create a fideicommissum and also that the deed was void for want ofacceptance on behalf of the persons designated as fideicommissaries. Inaddition the 13th defendant claimed that Muttu Natchia had placed him(the 13th defendant) in complete possession of the property and that he
U. X. Q. FEEtNAXDO, J.—Abdul Jtlajeed v. Ummu Zaneera
375
had acquired prescriptive title thereto as against all or some at least ofthe other parties to the action* The issues concerning the questionwhether the deed did create a valid fideicommissum and the question ofdue acceptance were answered in the lower Court against the 13tbdefendant, and the correctness of those answers has not been canvassedat the hearing of the appeal. On behalf however of the appellants, whoare the heirs of the 13th defendant who died after the filing of the appeal,it has been strenuously argued that the appellants are entitled to a decreein their favour under section 3 of the Prescription Ordinance in respect ofthe shares of certain of the defendants in the action. X have thereforeto refer to the evidence concerning possession and to the conclusionsreached by the District Judge on the issue of prescription.
At the commencement of the trial, the Counsel who appeared for theplaintiff is recorded as having admitted that “ the 13th defendant’shither had been in possession from prior to 1916 and that the 13thdefendant came into possession in 1916 ”. Thereafter the seconddefendant, a brother of the plaintiff, gave evidence. According to thisevidence, the plaintiff, her sister the first defendant, and her brother thesecond defendant succeeded to interests in the property on the death oftheir mother in 1939 but were all minors at that time. The seconddefendant, who was the eldest of the three was bom in 1923, and wouldhave attained majority only in 1944. The plaint having been filed inSeptember 1953 it is clear that the 13th defendant cannot claim a. decreeunder the Prescription Ordinance, in respect of the shares to whichthese three parties were entitled, and the District Judge so held. Thisfinding is not now challenged.
In regard to the interests of certain other parties, there was no evidencewhich established clearly the time at which their interests accrued ortheir ages at that time. The learned District Judge however took theview that it was for the 13th defendant to prove the tame of accrual ofthese interests and to establish that the parties have been free of thedisability of minority for over ten years prior to the institution of theaction. On this ground he held that the 13th defendant, having failed toestablish the necessary matters, was not entitled to a decree in respectof the interests of the parties concerned. He accordingly allotted to the13th defendant only the one-third share which under the deed P2 accruedto him as the only child of his father Abdul Rahaman and rejected hiscl aim to the entirety of the property. It has been argued for the appel-lants that the District Judge wrongly placed on the 13th defendant theburden of showing when the interests of these other parties accrued andof further establishing that they were free of the disability of minorityreferred to in section 13. It seems to me that this argument is entitledto succeed, and in the absence of evidence to the contrary, I will assumethat neither the proviso to section 3, nor the provisions of section 13 canbe of avail to these parties.
The second defendant and the eleventh defendant were the onlywitnesses called at the trial, the second defendant being called on behalfof the plaintiff and the eleventh dependent on his own behalf. In his
376
EL N. Gt- Jj'JSBNASTDO, J.—Abd/ul Sdajeed, v. Umrmt Zaneera
evidence-in – chief the second defendant gave no evidence whatsoeverconcerning possession of the property, bnt in cross-examination thefollowing questions and answers were recorded :—
Q.You know who is occupying these premises 1
A. A. It. Abdul Majeed the 13th defendant is occupying these premises.
Q. Has he not rented it out to anybody ?
A. He has rented it out and he is collecting the entire rent. From thetime I became aware of things he has been collecting the rent.
The 11th defendant gave no evidence concerning possession and the 13thdefendant neither gave evidence himself nor called any witnesses.
The learned District Judge did not expressly consider in his judgmentthe question whether the possession of the 13th defendant was of thecharacter required by section 3 of the Ordinance.He has either assumed
that his possession was of the requisite character, or else considered itunnecessary to deal with the question because he decided that in anyevent the claim of the 13th defendant had to fail on other grounds.
The arguments for the appellants have been, firstly that the learnedDistrict Judge impliedly held, and in view of the admission of plaintiff’sCounsel could rightly hold that the possession of the 13 th defendant wasof the nature contemplated in section 3, and secondly that such a con-clusion was justified by the evidence which is reproduced above. As tothe first argument, I am quite unable to accede to it. Even if the ad-mission “ that the 13th defendant’s father had been in possession before1916 and that the 13th defendant came into possession in 1916 ” canlegitimately be construed to mean that the possession of the 13thdefendant had been “ undisturbed and uninterrupted ” since 1916, it isinconceivable that the Counsel who appeared for the parties opposed tothe 13th defendant did intend to concede to the latter the right to a decreeunder section 3. The admission, for what it was worth, was made at thecommencement of the trial by Counsel appearing for the plaintiff, whocould in no way be prejudiced by it, because he had been a minor andwas in any event protected by section 13. No similar admission wasmade by Counsel representing the fourth to eighth defendants, or byCounsel representing the ninth and tenth defendants, all of whom arefideicommissaries under the deed P2. In fact at the stage of the addressesit was stated on behalf of the ninth and tenth defendants that, even if afideicommissum had not been duly created, these defendants were inany event co-owners against whom the 13th defendant, who was not astranger, could not prescribe. In these circumstances, it is impossible toregard the admission by the plaintiff’s Counsel as having involved aconcession, binding on the other parties, that the character of the 13thdefendant’s possession has been of such a nature that the possession couldbe of avail against his co-fideicommissaries or co-owners.
H. If. G. STSRNANDO, J.—Abdul Majead v. Ummu Zaneera
377
I have therefore to consider the second argument for the appellants,namely that the evidence reproduced above was sufficient to entitle the13th defendant to a decree against all those parties who had failed tobring themselves within the protection afforded either by the proviso tosection 3 or by section 13. Be it noted that this evidence was only tothe effect that the 13th defendant let out the premises and had alwayscollected the rents : there was no specific statement either that he hadappropriated the rents exclusively for himself or that he had never givena share to any of the other fideicommissary heirs of Muttu Natehia.
But let me assume, although I cannot agree, that the only reasonablemeaning of the evidence of the second defendant is that the 13th defendantfor nearly forty years from 1916, not only gathered the rents of thepremises, but also appropriated them solely for himself without evergiving or conceding a share in the rents to any descendants of his twoaunts. Upon this assumption, the 13th defendant undoubtedly hadundisturbed and uninterrupted possession of the property in the sensecontemplated by section 3 of the Prescription Ordinance, for (in thelanguage of the parenthesis in section 3) his possession was “ unaccom-panied by payment of rent, by the performance of any service or duty, orby any other act from which a right existing in any other person wouldfairly or naturally be inferred But a person is not entitled to a decreeunder section 3 by virtue of such possession alone : the section requiresthe proof of a second element, namely that the possession must be “ by atitle adverse to or independent of that of the claimant or the plaintiff in suchaction That this is a distinct and separate element was emphasised byBertram C.J. in his judgment in Tillekeratne v. JJastian1. Havingreferred to a view earlier prevailing that the parenthesis was intendedto be an explanation of everything which the section required the pos-sessor to establish, and having cited certain judgments and Thompson’sInstitutes as endorsing that view, the learned Chief Justice, adoptingan expression earlier used by Wendt, J., pointed out that the coupde grace had been administered by the decision in Corea v. Appuhamy ato the theory that the words in the parenthesis were intended as a defini-tion of “ adverse title He then referred to the suggestion made inPereira’s Laws of Ceylon that the parenthesis was intended to be expla-natory of the expression " undisturbed and interrupted possession ”—asuggestion which was expressly adopted by the Privy Council in Corea’scase (at page 77):—" The section explains what is meant by undisturbedand uninterrupted possession …. Assuming that the possession ofIseris has been undisturbed and uninterrupted since the date of his entry,the question remains, has he given proof, as he teas hound to do, of adverseor independent title ?
Having regard to my own nnfa.mfiia.rity with a subject which hasreceived much critical and learned consideration from the Bench and theBar, and in connection with which Lord Mansfield had observed :—•" themore we read, unless we are very careful to distinguish, the more we shallbe confounded ”, I must be pardoned if, in the course of my attempt toanalyse the problem which possession by a co-owner presents, I emphasisetoo much that which should have been obvious. Firstly, section 3imposes two requirements : “ undisturbed and uninterrupted possession ”1 {1918) 21 N. L. S. 12.8 (1911) 15 N. L. B. 65.
378
JEL. N. G. FERNANDO, J.—Abdul Majeed v. Unvneu Zanevra
and " possession by a title adverse or independent ” ; secondly tbequestion whether the second of these requirements is satisfied does notarise unless the first of them has been proved. It is clear from thejudgment of the Privy Counsel in Corea’s case that a co-owner inpossession can satisfy the second requirement in two different modes :—
(a) by proving that his entry was not by virtue of his title as aco-owner, but rather of some other claim of title ; in fact Their Lord-ships, in Corea’s case, rejected the finding of the Supreme Court thatthe possessor had entered as sole heir of the former owner ;
by proving that, although his entry was by virtue of his lawfultitle as a co-owner, nevertheless he had put an end to bia possessionin that capacity by ouster or something equivalent to ouster, andthat therefore and thereafter his possession had heen hy an adverse orindependent title.
Long-continued possession by itself is clearly not contemplated in eitherof these two modes of proving that the possession of a co-owner had been“ by a title adverse or independent ”. The appellants therefore obtainno assistance from the decision in Corea’s case. On the contrary I findit impossible to distinguish the facts of that case from the facts of thepresent one, and the decision operates strongly against the appellants.I have now to consider the so-called presumption of ouster which wasreferred to hy the Privy Council in the judgment.
In Tilleheratne v. Bastian1 Bertram C.J. adopted from Smith’s LeadingCases, the definition of adverse possession, i.e. “ possession held in amaimer incompatible with the claimant's title ”, and he observed thatthe question whether possession hy a co-owner is adverse must he con-sidered in the light of three principles of law, the third of which is :—** That a person who has entered into possession of land in one capacityis presumed to continue to possess it in the same capacity Havingthereafter referred to the English Law, and to early Ceylon cases, he wenton to hold that there is a counter-principle which is part of the law ofCeylon and that it is open to the Court, from lapse of time in conjunctionwith the circumstances of the case, to presume that possession originallythat of a co-owner has since become adverse. He later explained how thispresumption should be applied :—“ It is in short a question of fact,whenever long-continued exclusive possession is proved to have existed,whether it is not just and reasonable in all the circumstances of the casethat the parties should be treated as though it had heen proved thatthat separate and exclusive possession had become adverse at scone datemore than ten years before action was brought ”. The words I haveparenthesised indicate that this presumption is available in connectionWith the mode (6) of proving an adverse or independent title which Ihave elicited from the judgment in Corea’s case, namely in order toestablish that although the entry had been qua co-owner, the possessionhad commenced at some later time to be upon an asseition of an adversetitle. No such presumption would be available to counter the principle 1
1 (1928) 21 N. L. R. 12.
H. X. G. FE1RXAXDO, J.—Abdul Majeed v. Ummu Zaneera.,
379
that a co-owner is presumed to enter by virtue of his lawful title. Thepresumption referred to by Bertram C.J. has since been usually referredto as the presumption of ouster.
The argument for the appellants has been that this presumption ofouster, applies in their case, that it is just and reasonable that the pos-session of the 13th defendant, having been exclusive and of long duration,should be regarded as having become adverse at some time after 1916.Let me first repeat the language employed by Bertram C.J.:—“ It isopen to a Court from lapse of time in conjunction with the circumstances
of the case” ; “ whenever long-continued possession is
proved to have existed, whether it is not just and reasonable in all the
circumstances of the cade” Long-continued possession (for
nearly 40 years) was established indisputably in the case of TilleJceratnev. Bastian1 but that was not all—Bach of the three Judges thought itnecessary, as indeed Bertram C.J’s language rendered it necessary, torefer to circumstances, quite distinct from the mere duration ofpossession, which induced them to apply the presumption :—
“ Though Babappu was the legitimate son of Allis, he was not accordedthis status by the family ” ;
“It is a very significant fact that Tillekeratne, who purported to haveacquired his (Babappu’s) share in 1893, became insolvent in 1897,and did not include this land in the schedule of his assets.”
“ It would moreover be contrary to equity that a person possessing adoubtful status in a family, who has lived apart from it for a generationin another locality should be permitted through the medium of a sale to aspeculative purchaser to revive his obsolete pretensions, and to assistthose claiming through that purchaser to invade the family inheritances ”
(per Bertram, C.J.)
“ Although he (Babappu) purported to sell to Tillekeratne in 1893,his vendee never possessed, nor was the land included in the inventoryof his estate on his death in 1901, and his (the vendee’s) heirs made noattempt to assert any right until 1916. ”
(per Shaw, J.)
“ Babappu appears not to have been really recognized as a legitimateson of Allis by the rest otf he family. He must have known that he wasbeing intentionally excluded from possession. ”
” 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 for a long series of yearswithout any division in kind or money. ”
(per de Sampayo, j.)
380
H. N. G. FEKNAJSTDO, J.—Abdul Majeed v. Ummu Zaneera
There were thus in that ease several proved circumstances rendering itreasonable to presume that the possessor’s title had become adverse tothat of their co-owner : the co-owner’s status in the family was doubtfuland had not been accorded to him : valuable minerals had been appro-priated for the sole benefit of the possessors: the co-owner must haveknown that he was being intentionally excluded from possession: theactual claimant was a vendee horn the co-owner, but this vendee hadhimself neither possessed nor claimed his share for over ten years. Werenot these cogent circumstances from which to infer that the possessionhad become adverse at some time ?
The passages which I have cited horn the judgments in TiTlekeratne v.Bastion were 'preceded, by certain observations which fell from BertramC.J (at pages 20 and 21) :—
“ It is the reverse of reasonable to impute a character to a man’spossession which his whole behaviour has long repudiated. If it isfound that one co-owner and bis predecessors in interest have been inpossession of the whole property for a period as far back as reasonablememory reaches ; that he and they have done nothing to recognizethe claims of the other co-owners ; that he and they have taken thewhole produce of the property for themselves; and that these co-owners have never done anything to assert a claim to any share of theproduce, it is artificial in the highest degree to say that such a personand his predecessors in interest must be presumed to be possessing allthis time in the capacity of co-owners, and that they can never beregarded as having possessed adversely, simply because no definitepositive act can be pointed to as originating or demonstrating theadverse possession. Where it is found that presumptions of law leadto such an artificial result, it will generally be found that the law itselfprovides a remedy for such a situation by means of counter-presump-tions. ”
Read out of their context, these observations may tend to supportthe view that adversity may be presumed from mere long-continuedand exclusive possession. They emphasise the absurdity and artificialitywhich might prevail if there were no “ counter-presumption ”, butthey do not constitute an enunciation of the principles governing theapplication of that presumption. They are only a preface or preamble,so to say, to the enunciation of principles which is to follow and which iscontained in the passages I have earlier cited, and cannot be regarded asaltering or extending the principles as so enunciated.
In Hamidu Lebbe v. Ganitha1, one of two brothers had been in exclusivepossession for nearly forty years. They had quarrelled, and the excludedbrother had left the ancestral village. Dalton J., relying on thedecision in TilleJceratne v. Bastion, was much inclined to presume fromthese circumstances that this brother must unsuccessfully have preferreda claim to his share, and that the possession would thereafter have beenadverse. He felt, however, that the Privy Council decisions in Corea’scase and in Brito t>. Mutiunayagam 2 (where a father had possessed his
1 {1925) 27 N. L. R. 33.
2 (1915) 20 N. L. JR. 327.
jEL N. Gt. FERNANDO, J.—Abdul M.ajeed v. Vmmu Zaneera38 i
-widow’s share after a quarrel with his children) did not permit him topresume adverse possession. TEnnist J. observed that “ some definite factswould have to be 'proved ” from which one could infer a change in thecharacter of the possessor’s intention with regard to the holding of theland. If the quarrel and the departure of the co-owner from the villagedid not constitute sufficiently definite facts from which this inferencecould be drawn, would it ever be reasonable to draw that inference whereall that is proved (as is so in the present case) is long-continuedpossession 1
There have been numerous subsequent decisions of this Court whichhave denied to co-owners in exclusive possession a decree under section 3of the Prescription Ordinance, but it is sufficient for present purposesto summarize their effect by reference to some of them. Exclusive pos-session for many years, coupled with the execution by the possessor ofdeeds inconsistent with the title of his co-owners, is insufficient in theabsence of evidence that the co-owners knew of and acquiesced in theexecution of the deeds. This proposition was accepted as settled lawin Umma Ham v. Koch'1 2 which followed earlier decisions to the sameeffect:—Careem v. Ahamadu 8 and Sideris v. Simon 3. The preparationof a Plan indicating that the possessor regarded himself as exclusivelyentitled to a specific portion of the common land and purporting to allotanother specific portion to his co-owners, coupled with dealings by thepossessor with his portion on the basis of sole ownership, does not justifya presumption of ouster in the absence of evidence that the co-ownersacquiesced in the preparation of the plan of partition :—Gifkohamy v.Karanagoda*. It is significant that, in these and other cases, therewas almost invariably reliance, even by unsuccessful possessors, uponsome circumstance additional to the mere fact of long and undisturbedand uninterrupted possession, and that proof of some such additionalcircumstance has been regarded in our Courts as a sine gua non where aco-owner sought to invoke the presumption of ouster.
I am aware of one decision only which is seemingly contrary to thecursus curiae as just stated. There is language in the judgment ofCanekeratue J. in Subramaniam v. Sivaraja et al. 5 to indicate that thetaking of profits exclusively and continuously for a very long period, andthe acquiescence of co-tenants in the possessor’s omission to account,would justify the presumption of an ouster. But there is no reference inthe judgment to any earlier decision relative to prescription by co-owners,and the facts as stated in the judgment show that there had been noproof that the person in possession claimed title from the same sourceas did her adversaries. On the contrary the claims of title were mutuallyexclusive. I cannot regard this case as providing a relevant precedent,but even if it does there is at least one ground upon which it shouldbe distinguished. While the possessor’s name had continuously appearedin the assessment Register of the Sanitary Board as the owner of theproperty, and she alone had paid the rates, the alleged co-tenants had insome years placed their names also on the Register. The fact that they
1 (1946) 47 N. L. R. 107.3 (1945) 46 N. L. R. 273.
2 (1923) 5 O. L. Rec. 170.4 (1954) 56 N. L. R. 250.
(1945) 46 N. L. R. 540.
382
33. if. G. FERNAIsTDO, 3.—Abdul Majeed v. Zfanmu Zaneera
did so but nevertheless did not receive any of the profits from thepossessor might have justified the inference that they had staked aclaim to their share in the profits and had been rebuffed by the possessor.Even in that case therefore the possessor, if she was properly regarded asa co-owner, did rely upon a circumstance additional to the fact of longpossession, as a ground on which the presumption of ouster might bedrawn.
That line of decisions, one of the more recent being Fernando v. PodiNona 1, which recognize the principle that, where a stranger obtains atransfer of the entire land from one co-owner, his possession commencesas adverse, is not relevant to the present discussion. “ The possessionof a stranger in itself indicates that his possession is adverse —LeachC. J. in PiUai- v. Pawther a. When the title upon which the strangerenters into possession, though in law defective, is based upon a transferto him of the entire land, it is nevertheless a title adverse, inasmuchas it constitutes a denial of the rights of others. What such a strangerproves is an entry hy a title adverse—the mode (a) of proof which Ihave elicited from the judgment in Corea’s case, and not the mode (6)(i.e. of change in the character of the possession) which is required of aperson who enters qua co-owner. Those decisions therefore throw nolight on the question I am now considering.
The judgment in the case of Rajapakse v. Hendrick Singho 3, thoughdelivered on June 22, 1959, was not referred to during the argument ofthe present appeal, and I was unaware of it when the preceding part ofthis judgment was prepared. The facts in that case were, briefly, asfollows :—The original owner had conveyed an undivided portion ofthe land to T by deeds executed in 1919 and 1920 : T in 1921 transferredan undivided 11/19 share to his grandson, who in turn sold the undividedinterests in 1927 to G: the plaintiff purchased the interests of G in May1953 and instituted a partition action in August of the same year. Thedefendants, who were descendants of the original owner and thusentitled to the shares outstanding after the transfers of 1919 and 1920,claimed that they had exclusively possessed the entire land from 1922and had divided the produce among themselves and to the exclusion ofthe plaintiff’s predecessors in title. The grandson of T, who had been apredecessor of the plaintiff and had been the owner of the undividedinterests for about six years, admitted at the trial that neither he norhis successor G had ever occupied the land, and that the defendantshad lived on the land and enjoyed the produce to the exclusion of himselfand G. It was held on these facts that there was overwhelming evidenceupon which ouster could be presumed.
The plaintiff in that case claimed under T, who was a purchaser and notan heir of the original owner, and the plaintiff’s predecessors were stran-gers to the family of the original owner. It is reasonable to assume thatwhen a stranger purchases undivided interests in land, he does so as aninvestment and with the object of enjoying his due share of the fruits.If having purchased such an interest, a stranger does not assert his rightto possession, but instead acquiesces in the exclusive appropriation
*• {1954) 56 N. L. R. 491.*1.1,. R. 23 Bomb. 137.
3 {1959) 61 N. L. R. 32.
H. N. G- FERNANDO, J.—Abdul Majeed v. XJnvtnu Zaneera
383
of the entire produce by the members of the family of the original owner,it may be reasonable to presume from his unusual conduct that he eitheracknowledged the exclusive rights of the family or else failed in an effortto assert his own rights. Indeed this same feature, namely that therights of the family were challenged only after a long period of acquies-cence on the part of a stranger-purchaser, was one of the circumstanceswhich induced this Court in TUlekeratne v. Bastian to presume that therehad been an ouster. If the ratio decidendi of the decision in Majapakse v.Hendrick Singho is that acquiescence, on the part of a purchaser of anundivided interest, in the exclusive possession of the entire land andthe appropriation of its profits by the other co-owners, is a circumstancefrom which the adversity of the possession of the other co-owners canbe inferred, then that decision may be in consonance with the dicta ofBertram C. J. and Tennis J. to which I have earlier referred. If that be thebasis of the decision, it is easily distinguishable from the present oase,where the title has throughout remained vested in the members of thesame family.
Before concluding this judgment, it may be useful to add one obser-vation concerning the presumption of ouster. Some of the presump-tions mentioned in the Evidence Ordinance are arbitrary, in the sensethat a Court is permitted to presume the existence of facts, even thoughit may be uncertain that the facts did indeed exist. The presumptionof legitimacy is a good example of such an arbitrary presumption: aCorut may be compelled to regard the child of a wife as legitimate despitethe availability of evidence, whether direct or in the form of admissions,which can establish illegitimacy. The presumptions as to the regularityof official acts and the “ course of business ” are also examples, thoughless pointed, of something alrin to a “ rule of thumb ”. In my view,however, the so-called presumption of ouster is not to be applied arbit-rarily, but only if proved circumstances tend to show, firstly the probabi-lity of an ouster, and secondly the difficulty or impossibility of adducingproof of the ouster. If the circumstances justify the opinion that posses-sion must have become adverse at some time, a Judge is not in realitypresuming an ouster : he rather gives effect to his opinion despite theabsence of the proof of ouster which a co-owner would ordinarily berequired to adduce. This aspect of the matter was touched upon byBertram C. J. in TUlekeratne v. Bastian (at page 18).
The principle as stated in judgments of Bertram C. J. in TUlekeratne v.Bastian and of Ennis J. in Hamidu v. Ganitka 1, that the inference o±ouster can only he drawn in favour of a co-owner upon proof of circum-stances additional to mere long possession, has been consistently recognizedand strictly applied. To draw that inference from mere duration ofpossession would be to disregard the very terms in which they statedthe principle, and to ignore the requirement of an :e adverse or indepen-dent title ” prescribed in section 3. Moreover, if exclusive possessionalone is to suffice, after what period will it be just and reasonable topresume ouster ? There being nothing in the section to the contrary, aparticular Judge may well be inclined to presume ouster from possession
1 (1925) 27 N. L. JR. 33.
384H. H. Ct. FERNANDO, J.—Abdul JHajeed v. TJmrrvu, Zaneera
for a period of ten years : but if another Judge declines to do so unless theperiod is much longer, can it be said that one Judge is right and the other’wrong ? Will not such a situation be reminiscent of the days whenthe principles of Equity were said to vary-with the length of the Chan-cellor’s toe ? The proposition we are invited to uphold is not onlycontrary to settled law ; it contains no criterion by the application ofwhich consistency of judicial decisions can be reasonably expected.
Our Courts have constantly recognized the rule that undisturbed anduninterrupted possession by a co-owner does not suffice to entitle hi-m toa decree unless there is proof of the ouster of the other co-owners. Thedecision in TiUeleeratne v. Bastian recognized an exception to thatrule and. permits adversity of possession to be presumed in the presenceof circumstances additional to the fact of undisturbed and uninterruptedpossession for the requisite period- If the true effect of the exceptionis that the fact of such possession simpliciter established a title “adverseor independent ”, what need is there for a co-owner to prove ouster andwhat scope remains for the operation of the rule % What need for aco-owner to prove anything more than is required of a trespasser ?
I would hold for the reasons stated that the 13th defendant wasentitled only to the one-third share which accrues to him under thedeed which created the fideicommdssum, and that he did not acquire anytitle by prescription to any other share. The judgment of the DistrictJudge has therefore to be affirmed, subject to the correction of one errortherein. As stated in the judgment, it is only the fifth fideicommissary heirwho holds the property free of thGfideicommissiim. It was common groundat the hearing of the appeal that none of the parties are of the fifthgeneration. Accordingly, the fideiccmmissum attaches to all the sharesallotted in the judgment and to the proceeds of sale, except to the 1/9share referred to by my brother de Silva. I agree with the order proposedby him.
Appeal dismissed, subject to the
correction of one error.