089-NLR-NLR-V-25-APPUHAMY-v.MARIHAMY-et-al.pdf
'( ±21 )
Present: Porter J. and Jayewardene A.J.
APPUHAMY t>. MARIHAMY et at.
211—D. C. Kurunegala, 7,963.
■ Partition—Crown grant in favour of one heir in trust for all the heirsof original possessor—Action by another heir for partition—“ Owner ”—Prescription.
Where a eo-heir paid the Crown half-improved value (contributedby all co-heirs) and obtained a Crown grant in his favour, andheld the land in trust for all the co-heirs,—
Held, that another co-heir could bring an action for partitionalthough he was not the legal owner.
“ Here the trust is not denied, and it would be futile to refer theplaintiff to a separate action to obtain a conveyance to supporta title which is admitted to be in him.”
Silva v. Silva1 distinguished.
f pHIS w&s an action in which the plaintiff sought to partition aland called Kahatagahawatta, which was originally owned byone Appurala. He died leaving his widow and one son, who by theirdeed No. 843 of 1878 (PI) sold the land to one Jusey- Appu. JuseyAppu died about 35 years ago, leaving as heirs three brothers and asister, viz., Thomis, Elaris, Maiappu (fourth defendant), and Mari-hamy (first defendant). Thomis and Elaris both died, and theirheirs sold their half share of the land by deed 14,678 of 1917 (P 3)to the plaintiff.
The third, fourth, and seventh defendants filed answer pleadinga Crown grant dated February 7,1910, in favour of third and fourthdefendants, and prayed that plaintiff’s action be dismissed. Thesixth defendant filed answer claiming fourth defendant's half shareupon a deed of gift from him.
Plaintiff stated at the date of trial that the fourth defendant’sbrothers and sisters contributed an equal share each towards theconsideration, and that the fourth defendant had fraudulently hadthe grant executed in his own favour and that of his son-in-law,tiie third defendant, that the plaintiff and his predecessors in titlehad possessed their shares since the date of the Crown grant, andS&hat the third and fourth defendants had concealed the grantfrom the others and had not even registered it till after thepurchase by the plaintiff.
The third, fourth, and seventh defendants-admitted that theCrown did not sell the land to them, but that it was settled on themfor the half-improved value. The sixth defendant claimed the half1 (1916) 19 N. L. R. 47.
1988.
102ft.
Appuhamy
v.
Marihamy
( 422 f
-share the fourth defendant was entitled to on the Crown grantson a gift from him subjeot to his life interest.
After trial the learned District Judge dismissed the plaintiffsaction, with costs. The plaintiff appealed.
H. V. Perera, for plaintiff, appellant.
J. S. Jayewardene, for defendants, respondents.
October 24, 1923. Jayewabdene A.J.—
This is an appeal against the dismissal of a partition suit. It iscommon ground that the land sought to be partitioned, Kahatagaha-watta, depicted in plan No. 198 of June 23, 1920, as lots A, B,and C, was in the year 1878 sold by one Ukkurala Appuhamy -to>Jusey Appu. The latter died many years ago, leaving him survivingfour children as his heirs. They were, Thomis, married to Isohamy;Elans; Marihamy, the first defendant; and Maiappu, the fotffthdefendant. Thomis died leaving his widow and three children:Jusey, Marcelline, and Nona. Elans married R. Marihamy anddied leaving his widow and a child, Eugina. Maiappu, the fourthdefendant, gifted a half share to his son Jayarias on deed No. 6,262of January 11, 1913, subject to a life interest in his favour. Jaya-rias died leaving his widow, Rosalina, the sixth defendant. Th&heirs of Thomis and Elans sold their half share to the plaintiff bydeed No. 14,678 dated December 10, 1917. It would appearthat in the year 1909 the Crown claimed lots B and C of this landas the property of the Crown, being chena land, and by a Crowngrant of the year 1910 it was settled on payment of half -improvedvalue. All the co-owners—the heirs of Jusey Appu—contributedto pay the amount demanded by the Gro^n, but the fourth defend-ant, who was sent to obtain the grant, obtained it in his nameand in the name of his son-in-law, the third defendant. No&with-*Vstanding the Crown grant the mode of possession never ohanged,'and the fourth defendant, who remained in the village, admittedlypossessed it on behalf of his co-owners. The fourth defendantadmits that the other co-owners contributed their shares to paythe Crown demand. On these admissions it is perfectly clearthat the fourth defendant purchased the land in trust for the otherco-owners, and that the other* co-owners have acquired a title by ;prescription to their shares. The learned District Judge has, how- *■ever, dismissed the plaintiff’s action, holding that as the legal titlewhich is based on the Crown grant is in the fourth and third defend-'ants, the plaintiff is not entitled to bring a partition action. In;doing so he has followed the judgment of this Court in Silva v. Silva(supra}. In that case the plaintiff brought an action claiming to beentitled to a half share of a land which had been bought on a Crowngrant which was taken in the defendant's name. He alleged that
1088.
( & )in purchasing the land from the Crown idle defendant acted onbehalf of himself and the plaintiff, but this Court held that theplaintiff was not an “ owner ” within the meaning of the PartitionOrdinance, as he had no legal estate, and that his right, if any,was to bring an action to compel defendant to grant a conveyanceof a half share to him. The defendant had denied the trust. ButI think that case can be easily distinguished. Here the trust isadmitted, and the parties have had time to acquire a title by pre-scription, as at the date of the institution of the action ten yearshad elapsed since the issue of the Crown grant. In Silva v. Silva(supra) the Crown grant was issued in 1906, and the action forpartition was brought in 1915. In repelling an application of theappellant that the case should be sent back for a decision on thequestion of prescription, De Sampayo J. said
The plaintiff’s own case is that the Crown was owner of theland at the time of the sale, and that the defendant andJamis H&my became owners by virtue of the Crowngrant. That being so, the plaintiff cannot possiblysucceed on prescription, even if he has been in possessionof lot A with the defendant since the Crown grant, becausethe period that has elapsed is less than ten years. It is,therefore, idle to send the case back, as we are pressed todo, for.the purpose of taking evidence as to possession.”
Again, referring to an English case, Taylor v. Orange,1 whereFry J. said :—
“ No doubt an equitable owner may obtain a decree for partitionif he is entitled to call for a legal estate, which wouldhave entitled him to a partition at Common law.”
The learned Judge remained :—
“ These defects in the pleadings may be overlooked, but he mustprove the facts as they are denied. Can he be allowedto do so in a partition action- ? I think not. No authority. has been cited to show that even in England a partitionaction can be brought if the trust is denied. It appearsto me that there an action is possible only in the case ofan undisputed trust, the purposes of which have’ beenexhausted.”
In Gatgamuwa v. Weerasekere2 this Court has held that the:pimciple laid down in Silva v. Silva (supra) would not apply•to defendants or intervenients, and that the latter would be entitled%o establish a trust in a partition suit to which they are parties.Mere the trust is not denied, and it would be futile to refer theplaintiff to a separate action to obtain a conveyance to supporttitle which is admitted to be in him. Further, according to the1 (1876) 13 Ch* D. 223.1 U919) 21 N. L. R. 108.
Jaybwab*DjsH£ A.J.
Appuhamyv.
Marihamy
( 424 )
1928.
JaybwabJOBHB A.J
Appuhomy
Marihamy
admission of the fourth defendant, the plaintiff has acquired atitle by prescription. The plaintiff has, in my opinion, establishedhis right to a share of the land, consisting of lots A, B, and C. Theoase must go back for an adjudication upon the question of theshares the parties are entitled to, and upon the question of compen-sation that has been raised between the parties. The judgmentappealed from is, therefore, set aside, and the case will go backfor the purposes indicated. The appellant is entitled to his costsin appeal, all other costs to be costs in the cause.
Pobteb J.—I agree.
Sent back.