141-NLR-NLR-V-44-BANDULHAMY-et-al.Appellants-and-TIKIRIHAMY-et-al.-Respondents.pdf
KEiJNEMAN J.—Bandulhamy and Tikirihajpy.
539
Present: Howard C.J. and Keuneman J.
BANDULHAMY et alAppellants, and TIKIRIHAMY et al.,
,Respondents.
169—D. C. Ratnapura, 6,391.
Evidence—Plaintiffs proved to be in possession of land—Burden on defendant—
Hewelande land—Nature of tenure—Evidence Ordinance s. 110.
Wherp plaintiffs and their predecessors have been proved to be inpossession of a land, the burden of proving that they were not the ownerslies upon the defendants.
. Hewelande land includes land given on cultivation, the cultivator’sshare being half' the crop after deducting various payments calledwarawe.
Quaere (1) Is such right of cultivation in perpetuity, or heritable ortransferable ?
(2) Do customary hereditary rights of. cultivation unassociatedwith soil right exists in Ceylon ?
^ PPEAL from a judgment of the District Judge of Ratnapura.
N. Nadarajah, KtC. (with him G. E. Amerasinghe), for plaintiffs,appellants.
H. V. Perera, K.C. (with him E. A. P. Wijeyeratne), for defendantsrespondents.
Cur. adv. vult.
October 28, 1943. Keuneman J.—
This is an action for declaration of title. The plaintiffs claimed titleto a l/12th and l/72nd share of the land called Tunpelecumbura, andclaimed that as lessees of other shares they were entitled to open pits and
540
KEUNEMAN J.—BandvXhamy and Tikirihamy.
excavate for gems in an undivided £th plus l/18th share of the land.They also asked for an injunction restraining the defendants and theiragents and servants from opening pits and mining for gems until thedetermination of the action. They also prayed for quiet possession anddamages.
The first, second, and third defendants filed answer, denying theallegations in the plaint, and asked for the dismissal of the plaintiffs’action, and claimed certain damages till the dissolution of the injunction,and for shares of the .crop. The first defendant alone claimed title to theland, and the second and third defendants alleged that they were merelythe agents of the first defendant.'
In- substance the plea of the defendants was that the predecessors ofthe plaintiffs owned no share of the soil rights, but were only “HewelAndakarayas ”, and in any event not entitled to mining rights.
The field in question has a long history. The earliest documentrelating to it was D 1, produced by the defendant. This is a very inter-esting document. It is headed “Vidana-gan or Gabadagan of UdaPattu, Nawadun Korale ”. Under the heading “Name of owner”;there appears three names: — (1) “ Doloswala Disamahatma ”, the prede-cessor of the first defendant, (2)“ Gal-amune Patabenda ”, and (3)
“ ditto Unguralaya ”.(2) and (3) are the predecessors of the plaintiffs.
The field is said to be 1 amunam in extent, and it is agreed that this isthe extent of the whole fieid. The assessment is for the years 1826 to1830. Under the heading of " assessment ” for each of these years,there is a blank column. But there is a separate column headed “ Cropassessment ”, where the figure of “ 112 beras ” is giyen. A furthercolumn headed “ Income of Government in paddy ” has the entry“ 8 beras In the “ remarks ” column is the entry “ Exempted fromtaxation for Radalakama
A great deal of argument has been addressed to us with regard to thisdocument. For the plaintiffs it is argued that this document shows thatthe predecessors of the plaintiffs asserted rights as owners of soilshares and. Were recognised as such owners by the authorities. I thinkthis argument is entitled to great weight, and I do not -think that thisentry-is consistent with the theory that the Only right of the plaintiffs’predecessors was a hereditary right of cultivation, without any soil rights,as contended for by the defendants. Counsel for the defendants reliedvery strongly on the “ remarks ” column, and- contended that the wholeland was exempted from taxation “ for Radalakama ”, and this wordclearly relates., to the exemption from taxation of the lands of DoloswalaDisamahatma. But I doubt whether the whole land was exempted,because the Government income in paddy is. set out as 8 beras of paddy,and this may be regarded as the share payable by Patabenda and Ungu-ralaya.
On the whole, I think this document D 1 does support tlie contentionthat at this early date the predecessors of the plaintiffs were claimingrights as owners and were recognised as owners. It is difficult tounderstand why a person whose only right was that of cultivation inperpetuity, as the defendants contend, should be entered in the registeras an owner.
KEUNEMAN J.—Bandulhamy and Tikirihamy.
541
The later documents strongly support this view. There have beenseveral dealings with the land by the persons in plaintiffs’ pedigree on thefooting that they were owners. In the year 1848 Galamunage Unguhamy,who is said to be the same as the Unguralaya of D 1, granted to his wifeDinkirihamy “ the share which comes to me as Tattumaru turns in twoyears of every three years of one half share ” of this field. This is a cleartransfer of soil rights, and on the footing of this deed the plaintiffs allot toUnguralaya 2/3rd of £ of this land, and to Patabenda l/3rd of £, and sub-sequent deeds also proceed upon this footing. The evidence shows thatPatabenda had a son, Kaluhamy, who in 1871 by P 1 transferred a l/6thshare to Anadahamy, a son of Unguralaya. Unguralaya ha's four sons,Anadahamy, Mituruhamy, Mudalihamy, and Pinhamy. Mituruhamy by P 2of 1896 conveyed his l/12th share to Anadahamy. Anadahamy himselftransferred the shares he had inherited and acquired to his grandchildrenand to his son by P 3 and P 4 of 1899. Pinhamy by P 8 of 1898 giftedhis l/12th share to his three children, who leased to the first and secondplaintiffs by P 6 of 1937. Mudalihamy had three children, and thesecond plaintiff and fourth defendant acquired the share of one childRan Etana by P 5 of 1921, and the second plaintiff obtained a lease P 7of 1937 from another of the children Rankirihamy. The share leased is5/36th and there are two lessors, but Rankirihamy appears to havetransferred her l/36th share to her husband, Bandulahamy, previouslyby P 36 of 1914. What rights the other lessor in P 7, Dingirihamy,had, I have not been able to discover.
In addition to this, there is a mortgage bond P 23 of 1888 by Mituru-hamy to Pinhamy of l/12th ; another mortgage bond P 24 of 1894 byMituruhamy to Mudalihamy of the same l/12th ; and another mortgagebond P 25 of 1932 by Jasohamy, one of the grantees under P 8, and byRatranhamy, said to be a child of Mudalihamy.
No doubt these documents are all or almost all deeds executed withinthe family, but there is no reason to doubt that they were regarded by therecipients as genuine deeds, and the land has subsequently been dealt*with upon the footing of these deeds.
The plaintiffs have also produced a number of documents relating tothe grain tax, to show that their predecessors have had the grain taxlevied upon their shares of the field in question. The documents P 9 toP 22 relate to the period from 1883 to 1892, and are in the nature ofreceipts. Further, the registers P 27 to P 30 show members of theplaintiffs’ pedigree entered as owners for periods during the sixties andthe seventies of the last century. The actual years have not beenreproduced in the copies. Registers P 31 and P 34 show that the four, sonsof Unguralaya are entered as owners of this field in 1881.
P 37 is perhaps the most significant of these registers, for in it the nameof the owner of the field in question is given as Ratnapura Bandara,a predecessor of the first defendant, but the extent is given as . 2 pelasinstead of 1 amunam. The plaintiffs argue that this shows that Ratna-pura Bandara was only entitled to £ the field. P 37 is for a period ofyears in the sixties and seventies of the last century. P 35 is another
542KEUNEMAN J.—Bandulhamy and Tikirihamy.
register in which Ratnapura Bandara is entered as owner of this fieldthe extent being given as 2 pelas, but the date of the register does notappear.
It has been contended for the appellants, and I think rightly, thatthere is very strong evidence to show that the predecessors of the plaintiffsheld the land on the footing that they were owners of a half share of thesoil rights. That the predecessors of the plaintiffs were in possessionof the land has been amply proved, and in fact has been admitted by thedefendants, and under section 110 of the Evidence Ordinance the burdenof proving that the plaintiffs and their predecessors were not ownerslay upon the defendants.
The case for the defendants is as follows :—They contend that Dolos-wala Disamahatma was the owner of the whole field of 1 amunam. Ihave already dealt with their contention as regards D 1. They havealso produced the will of Doloswala Disamahatma, D 2 of 1837, in whichhe devised this field together with a very large number of other propertiesto his son-in-law. The point is made that he deals with the whole of theland, and not merely with a share. In the inventory D 3 the field isdescribed as 1 amunam in extent. D 4 is a mortgage bond by RatnapuraBandara, already mentioned, in 1876 of this field of 1 amunam. In viewof the suggestion to'be dealt with later, I may mention that among theother properties mortgaged are the “ Hewelande ” of two different fields,but there is no mention of “ Hewelande ” in connection with the fieldin question. I cannot say that a satisfactory explanation of thedifference has been given to us. D 5 is another mortgage by the samemortgagor of this field among other lands in 1882. In the inventory D 6of the estate of Ratnapura Bandara, this field of 1 amunam is included,and his successor mortgaged this field among other lands by D 7 of 1905.I may remark here that this field Tunpelecumbura appears together witha very large number of other lands in the will D 2. There is no descriptionof the extent or the tenure. In the inventory D 3 the extent of 1 amunamis given, and the subsequent documents D 4, D 5, D 6, and D 7 reproducedthat description. D 3 to D 7 deal with a large number of lands. If webear in mind the documents produced by the plaintiffs, I do not thinkthe defendants’ documents sufficiently displace the inference that theplaintiffs’ predecessors claimed soil rights in half this land, and that onlythe balance half share was vested in the Doloswala family.
The explanation offered by the defendants of the possession of theplaintiffs’ predecessors is that the latter were “ Hewel Andakarayas ”,whose only right was to cultivate the land—this was a perpetual andhereditary right—and to give the ground share, namely, one half, to theowners. They say. that the Hewel Andakarayas had no right to the soiland no right to dig for minerals. A witness, Tikiri Banda, Chairman ofthe Village Committee, said.that it was the custom for the owner toentrust a field to asweddumise, and the man who asweddumises has by’ arrangement the right to cultivate always—a right which is heritableand can be transferred by deed, but the soil rights remained with owner.Ellawala Rata Mahatmaya gave evidence to a similar effect. But Ido not think this is evidence of any value, for neither of these witnessesclaims to be a student of this system of land holding, and their experience
KEUNEMAN J.—Bandulhamy and Tikiriliamy.543
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of “ Hewelande ” is scanty and unconvincing. These witnesses cannotclaim to be experts in this connectioh. Undoubtedly, however, “ Hewe-lande ” is a term in use. Codrington in his Glossary of Native, Foreignand Anglicized Words describes “Hewelande” as (1) Cultivator’s shareof the produce of a field, being half of the crop after deducting variouspayments called War awe . . . . , (2) Paddy paid for hire of cattle,(3) Share of the crops to which a person is entitled for the trouble ofploughing ”. It is to be noted that Codrington nowhere suggests thatthe right is one in perpetuity, or heritable, or transferable. Nor has anyauthority been cited to us to show that by custom hereditary rights ofcultivation, unassociated with soil rights, exist in Ceylon, and it is difficultto see how such rights can be split up into fractions by the law ofinheritance, and still be exercised.
I may add that the plaintiffs’ witnesses denied that “ Hewelande ”applied to the field—whatever the meaning of the term may be. Innone of the plaintiffs’ deeds is there a reference to it in connection withthis land, except in P 36 of 1914. In that case the transferee wasBandulahamy, and the transferor, his wife, Rankirihamy, who appears inplaintiffs’ pedigree. It is, however, in evidence that Bandulahamy was aservant of the Doloswalas, and that in 1912 trouble had broken outbetween the Doloswalas and plaintiffs’ predecessors in connection withthe latter using clay from this land for tile making. Rankirihamyherself subsequently leased to the second plaintiff by P 7 of 1937—it isnot clear whether her husband was alive or dead at the timd. I do notthink we can regard P 36 as establishing that the plaintiffs’ predecessorswere Hewel Andakarayas. It is to be noted in this connection thatregister P 38 shows that in the sixities and seventies of last century it wasnot unusual for a field given in Hewelande to be so described in theremarks column. This register does not relate to the land in question.The registers relating to this field in question contain no suchreference.,
The defendants themselves led no evidence to show that the Doloswalasgave this field to the original predecessors of the plaintiffs to be asweddu-mised. In fact the history before 1826 is unknown to us, and I do notthink we can draw any inferences from the documents in this respect.
The learned District Judge held that Doloswala Disamahatma was theoriginal owner of the whole field. There is no satisfactory evidence ofthat, and the District Judge was wrong in so holding.
A good deal of the evidence turned on the question whether theplaintiffs’ predecessors and the defendants’ predecessors held the land intattumaru. The learned District Judge held against the plaintiffs in thisrespect. But the reasons he gives are not supportable in their entirety.The defendants produced D 8 and D 10, which purported to be leasestaken by Mohottihamy in 1907 and 1908, i.e., two years in succession,from the Doloswalas. Now Mohottihamy is described here as Galamune-gedera Mohottihamy, while in all other documents the name given to theMohottihamy in plaintiffs’ documents is Galamuna Patabendige Mohotti-hamy. This is not all. The defendants have entirely failed to prove thesignature of Mohottihamy, and the documents which were objected to44/39
544
KEUNEMAN J.—Bandulhamy and Tikirihamy.
should have been rejected. The next point made by the District Judgewas that grain tax was collected |or a number of continuous years frommembers of plaintiffs’ pedigree—wide P 20 of 1882, P 21 of 1883, P 12 of1884, P 9 of 1885 and P 13 of 1886—and the District Judge concludedthat this showed that these people cultivated each year. But this doesnot follow. Whatever the private arrangement may have been betweenthe Doloswalas and the plaintiffs’ predecessors, whether tasttuma.ru or not,the grain tax would be payable yearly and would be levied on the ownersliable each year. The District Judge also depended upon the Vel Vidane’slist of cultivators of this field, D 18, but it is clear that most of theparticulars in the Vel Vidane’s list were provided by the Doloswalas andthat the plaintiffs’ predecessors were not consulted. Ellawela RateMahatmaya’s evidence that the plaintiffs’ claim as Hewel Andakarayasat the inquiry is not supported by any note made at the time. Thefinding of this point is very much weakened, and I think the evidence ofthe Gan Arachchi called by the plaintiffs was not shaken to the extent theDistrict Judge thought it was.
, But perhaps the most significant omission of the District Judge washis failure to realize that while taXtuma.ru, if established, would be con-■elusive of the plaintiffs’ case, the failure to establish that fact did not giveconclusive effect to the defendants’ contention. Even if the plaintiffs’predecessors cultivated each year, the question was whether they gavethe Doloswalas a half share of the crop each year, or in alternate yearsappropriated the whole crop for themselves, or gave less than half to theDolaswalas each year. Nowhere in their evidence have the defendantssaid that they received a half share of the crop each year.
On an examination of the whole of the evidence, I am of opinion thatit has been proved that the plaintiffs’ predecessors in title were in possess-ion of this field as qwnerS of a half share. They were in such possessionfor over a century7 and accordingly must be regarded as owners of a halfshare of the soil by prescription. The plaintiffs are accordingly declaredentitled to an Undivided l/12th and l/72nd of . this field. They are alsodeclared entitled to open pits and excavate for gems. They are alsoentitled to the leasehold rights under P 6. As regards P 7, if the question-now arises, the Court will determine whether Dingirihamy and Rankiri-hamy hkd any interests at the time of P 7. The claim in rficonvention ofthe defendants is dismissed. The District Judge has not determined thequestion of damages to the plaintiffs, and the case must be sent back forthe determination of that matter. It is very desirable that the partiesshould come to some agreement on that point..
The appeal is allowed in the manner I have indicated. The plaintiffsare entitled to costs in this Court and in the District Court from the first,second and third defendants.
Howard C.J.—I agree.
Appeal allowed; case remitted.