128-NLR-NLR-V-24-APPU-et-al.-v.-SILVA-et-al.pdf
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Present: Be Sampayo and Schneider JJ
APPU et al. v. SILVA et al.231—D. C. Galle, 18,483.Crown grant in favour of six persons—Grant silent as to whet share isconveyed to whom—Presumption.*
When a property is purchased by several persons, and the deeddoes not specify what share is conveyed to each, the deed itself isprimd fade evidence that they acquired title in equal shares.This inference may be rebutted by specific evidence as to theintention of the purchasers.
T HIS was an action for partition of a land called Dammittn.
The contest was as' regards the extent of the share which oneBabunhamy, one of the six grantees, acquired under the Crowngrant No. 6,519 of August 13, 1887 (P 1). Thje third defendant-appellant’s case was that under the Crown grant Babunhamybought a half share, and that half of half or quarter was sold againstBabunhamy’s widow, Balahamy, in 1908, and purchased by oneSeelappu (3 D 1) who gifted his share to the appellant in 1917 (3 D 3).The case of respondents was that. Babunhamy bought an equalshare with each of the other five grantees, viz., one-sixth, and thatthe appellant was ,only entitled to half of one-sixth or one-twelfth.The District Judge (A. L. Crossman, Esq.) upheld the respondents*contention: —
The Crown grant was as follows: —
No. 6,619.
To. all to whom these presents shall come. Greeting. Know ye that'for and in consideration of the sum of Bs. 120 lawful money of Ceylonto us paid by Senadirage Babun Appu, Senadirage David de Silva,Kariyawasan Patiranage Don Andris de Silva, all of Atanikata, Atani-kata Hendirage Appu of Dikkumbura, Atanikata Hendirage CarolisAppu of Dikkumbura, and Atanikata Patiranage Don Andris of Atani-kata (the receipt whereof is hereby acknowledged). We of cur specialgrace, certain knowledge, and mere motion have granted and assigned,and by these presents do grant and assign, unto the said SenadirageBabun Appu, Senadirage David de Silva, Kariyawasan PatiranageDon Andris de Silva, Atanikata Henadirage Appu, Atanikata Hena-dirage Carolis, and Atanikata Patiranage Don Andris, their heira, andassigns, the following premises, to wit [laud described]:— '
To have and to hold the said premises with their and every of theirappurtenances unto the said Senadirage Babun Appu, SenadirageDavid de Silva, Kariyawasan Patiranage Don Andris de Silva, Atani-kata Hendirage Appu, Atanikata Hendirage Carolis, and A*ivnhatftPatiranage Don Andris, their heirs. Ac., in free and Mmmiw wwwgafor ever, he and they yielding, Ac.
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1a testimony whereof we have caused these our .Letters topatent, and the Public Seal of our said Island to be hereuntoColombo in the said Island, this 23rd day of August, inof our Lord One thousand Eight hundred and Eighty-seven.
be made 1928.affixed at ^
uw 3«" as.’’
Keuneman, for the appellant.
M. W. H. de Silva, for the plaintiff, respondents.
de Zoysa,. for the ninth defendant, respondent.
December 18, 1922. De Sampayo J.—
This is an fiction for the partition of a land which the Crown soldin August, 1887. The purchasers were six persons, of whom oneDa bun Appu was one. The dispute in the case is as regards theshare of Babun Appu. It is, in the first place, contended on behalfof the third defendant-appellant that the ninth defendant, whois the respondent, should have proved by oral evidence what share. Babun Appu acquired under the Crown grant. I understand theevidence desiderated is that Babun Appu paid a certain amount ofmoney. It is contended that he acquired not one-sixth share inproportion to the number of grantees in the Crown grant, ■ buta half share in the land. In this connection the case of SinnoAppu v. Dingirihamy 1 has been cited, But I cannot read thatcase as holding more than that there is no irrebuttable presumption,as regards the shares acquired by several grantees, that they becomeentitled in equal shares. To my mind when a property is purchasedby several persons, and the deed does not specify what share isconveyed to each, the deed itself is primd facie evidence that theyacquired title in equal shares. This inference may of course berebutted by specific evidence as to the intention of the purchasers.In the present case, there is no evidence that Babun Appu paid one-half of the purchase amount; and the third defendant, who-advancesthe contention in question, only relies upon possession of a shareon the footing that Babun Appu had one-half share of the land.But I am not satisfied that the evidence proves such possession.It is no doubt the case that the third defendant has been in posses-sion of a portion of the land in respect of the interest that he acquired.But the inference that is urged from that fact is not justified. Wemust then assume that Babun Appu acquired an equal share, underthe Crown grant as the other purchasers, that is to say, one-sixthshare of the land. Babun Appu was married twice. His firstwife was one Tussana, and of that marriage there was one child,a daughter Gimara, within December, 1917, 6old a half of one-sixthas inherited by her from her mother Tussa~i. It would be observedthat this daughter of Babun Appu deall with the share on. thefooting that Babun Appu had only one-s :th share. The contest,
1 {1912) 15 N. It. R. 21
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X
Utti however, is rather different. Babun Appu’s second wife was
Db Sampato Balahamy. She had seven children. It appears that on Babun
Appu’s death, in execution against Balahamy, another one-fourthshare was seized and sold by the Fiscal in February, 1908, andwas purchased by one Seelappu. Seelappu gifted that share tothe third defendant. Thus the third defendant claims theone-fourth share on the footing that Babun Appu had one-halfshare, and on his death the one-half came to his widow Balahamy.In order to establish that interest, the third defendant says inconnection with this appeal that it has not been proved thatBabun Appu purchased during the lifetime of his first wife Tussana.The marriage certificate of Tussana was put in at the trial, and itappears that she was married to Babun Appu when she was abouttwenty-six years old, and that the marriage took place in 1875.There is no question that Gimara was a child of Tussana and BabunAppu. There was no proof to the contrary that Gimara- inheritedone-half of one-sixth from her mother Tussana. But with thepetition of appeal is filed what purports to b,e a marriage certificateof Babun Appu and Balahamy; and the date of the marriage isgiven as the year 1888. This, it is contended, conclusively provesthat in 1887, when the Crown grant was executed, Tussana wasalready dead. But 1 wish to say, in the first place, that it was notregular to have annexed the alleged marriage certificate ofBalahamy with the petition of appeal. Such a practice has beencondemned over and over again by this Court. If it is intendedthat this Court should consider fresh evidence, the proper courseis to submit that evidence with an explanation that it was impossibleto have procured it at the proper time, and that it was subsequentlydiscovered. There is no affidavit to verify such a fact. In factno affidavit at all is submitted in appeal. On the other hand,I gather from the petition of appeal, to which the certificate isannexed, that the third defendant-appellant knew at the timethat there was such a document in existence, and he says that hedid not procure and produce it in the Court below, because he wastaken by surprise as to the nature of the claim of Gimara underTussana. But I do not think that there was any circumstancewhich justified the idea that the third defendant' was taken bysurprise. In a partition case, if there was any contest, the partiesshould have been prepared to put all the documents necessaryto establish their own case, and incidentally to destroy the caseof the opponent. I do not think we can look at that document inappeal. The result is that the judgment in favour of the ninthdefendant must be upheld, and I would; therefore, dismiss thisappeal, with costs.
Schneider J.—I agree.
Appeal dismissed.