087-NLR-NLR-V-51-CAROLISAPPU-Appellant-and-ANAGIHAMY-et-al-Respondents.pdf
NAGALINGAM ,J ,—Carolisappu v. Anagihamy
3J35'
1949Present: Nagalingam J. and Windham J.CARODISAPPU, Appellant, and ANAGIHAMY et at, Respondents8. C. 4o$—D. C. Tangalla, 5,617
Prescription—Adverse possession—Continuity betireen an intestate and kis heirs—Prescription Ordinance (Cap. 55), s. 3.
'Die period of possession of an intestate person can bo tacked on to thepossession of his heirs for the purpose of computing the period of ten yearsrequired to acquire preseriptivo title under section 3 of tho Prescription Ordi-nance.
from a judgment of the District Court of Tangalla.
C. E. S. Pe.re.ra, with T. B. Dissanayake, for plaintiff appellant.
W. Wijayaratne, for defendants respondents.
Cur. adv. tmlt.
November 30,1949. Nagalingam J.—
This is an appeal from a judgment of the District Court of Tangalladismissing the plaintiff’s action for declaration of title to an allotmentof land on the ground that though the plaintiff may have the documentarytitle to it the defendants have acquired a title by prescription to theallotment as against the plaintiff.
NAGAMXGAM -T.—Carnlisappu v. Anagiharrw
One A. M. A. Carolis who was the owner of the land under Crowngrant PI of 1914 hypothecated the allotment with the plaintiff who putthe bond in suit and at tho sale in execution one David Silva became thepurchaser thereof ill whose favour deed of conveyance F3 of 1935 wasduly executed. David Silva died, and his widow and children conveyedthe land to the plaintiff by deeds P5 of 1936 and P6 of 19*41. Thatnotwithstanding the execution sale of 1935 A. M. A. Carolis continuedto possess the land up till the date of his death in 1937 is clear from theevidence. It is also equally clear that after A. M. A. Oarolis’s death hiswidow and children continued in possession up to the date of theinstitution of the action which was on May 23, 1947.
Learned Counsel for the appellant contends that the possession ofA. M. A. Carolis between the years 1935 and 1937 cannot be tacked onto tho possession of his widow and children for the purpose of computingtho period of ten years required to acquire prescriptive title under theOrdinance. He amplified his argument by asserting that it had to beshown cither that A. M. A. Carolis had himself possession for ton yearssubsequent to the date of tho execution sale against him .or that thewidow and children had possession themselves for a complete period often years before advantage could be taken of section 3 of the. PrescriptionOrdinance by tho defendants, and that it was not permissible to aggregatethe broken periods of possession of A. M. A. Carolis and of the wife andchildren which separately did not amount to over ten years in each case.Loarned Counsel relied upon two judgments of this Court in supportof the proposition he advanced. One is the case of Fernando v. Podisinno1and tho other an unreported judgment2.
In the former of the two cases the facts were that a co-owner who hadpossessed in lieu of his undivided share certain divided portions of thecommon land and acquired a prescriptive- title to the divided portionsin transferring his interests conveyed not the specific allotments to whichhe had acquired a prescriptive title but his undivided interest in thoentirety of the land. On a contest as to the right of the transferee to thespecific allotments to which the vendor had acquired a title by pres-cription it was hold that the transferee was not entitled to take advantageof the possession of his vendor but that if he relied upon prescriptionfor his title he had to show that his possession had been for the requiredprescriptive period. The reason underlying the judgment is oasy to see.The vendor did not convey the specific portions of his land and it cannotbe said that the transferee was a person who was claiming under thevendor in so far as tho specific allotments which he claimed were concerned.This case, therefore, is authority for the proposition that a person whofloes not derive his right to the land from another cannot fall back onthe possession of that other in order to establish a prescriptive title butthat he would have to establish it by his possession for ovor theprescriptive period.
In the latter case, too, the principle enunciated was similar. Theretoo for a number of years well over the prescriptive period certain
1 (1925) 6 C. L. Hec. 73.
* S. C. 90-91 D. C. Kandy, 48,783, 8. C. Minutes 11.11.40.
NAGALINGAM J.—Carolis Appu v. Anagihamy
357
successive ownors had been in possession of a large tract of land. When aconveyance was executed by the last of these owners to the plaintiff,a certain parcel of land was omitted from the deed of conveyance.Plaintiff himself bad not been in possession for over ten years at the, dateof the institution of the action by him against a third party trespasser.It was held that as the vendor had not conveyed the parcel of land, theplaintiff could not rely upon the prescriptive title of his vendor or of thelatter’s predecessors in title, for he was not one who was claiming theparcel under his vendor.
In the present case, however, the question that arises for determinationis one that is altogether different. Here the question is whether thepossession of an intestate and of his heirs can bo added together for thepurpose of computing the period of ten years’ adverse possession. Underthe common law, that tho tacking of broken periods of possession of anintestate and his heir was permitted is clear from Voet1. Nathan alsorefers to this passage of Voeta. Tho proposition is viewed by him from thepoint of interruption of possession, for where an intestate possesses theland and before completing tho full term required to confer acquisitive titledies, it may be said that there is an interruption of his possession by hisdeath and that when the heir continues in possession, it is a possessiondistinct and separate from that of the intestate. It was having regardto this aspect of tho question that Nathan states :
“ There are some cases of actual interruption where the possessionis by legal fiction regarded as continuous. This happens where aproperty passes from a deceased person to his heir, from a seller to apurchaser and in the case of similar universal or particular successors.”
Grotius too enunciates the same principle3. “ The periods of occupationof a seller and a purchaser were reckoned together.” This, no doubt,is set out by Grotius as the Roman Law, but no modification of thatprinciple was introduced in the Dutch Law. When our PrescriptionOrdinance was enacted the Legislature merely embodied the commonlaw when it permitted proof of possession by a defendant or by thoseunder whom he claims.
In the case of Charles v. Nona. Hamy4 the question that arose waswhether a fideicommissarius could call to his aid the possession of thefiduciaries. That a fidoicommissarius is not a successor in title to thefiduciarius is a proposition well understood and hence it was that thecontention was put forward that the possession of the fiduciarius cannot berelied upon by the fideicommisssarius in asserting a prescriptive title.JayewaTdeno A.J. in the course of his discussion of the law said :—
“ Section 3 of the Ordinance does not enact any new law when itsays that a party can tack to his possession the possession of the personunder whom he claims. It merely declares a well known principleof our common law which seems to obtain for all the countries where'title to immovable property can be acquired by adverse and con-tinuous possession for the prescriptive period.”
1 Voet 41.3.16 to 20.
Natlvan Vol. I, sec. 581, p. 354.
Maasdorp'a Translation, 3rd cd., p. 65, eee. 272.
[1023) 25 N. L. R. 233.
353
DIAS J.—The King v. Aron App.thainy
The law on tho point is correctly set out by Mr. Balasingham in hisTaws of Ceylon1 as follows : —
“ For the purpose of computing this period of prescription thepossession of a deceased person and his executor or heir and of aperson and his particular successor whether legatee or purchaserwill be reckoned together.”
[ am therefore of opinion that the learned District Judge was right intacking the possession of A. M. A. Carolis to that of the defendants inconsidering the question whether the defendants had acquired a title byprescription. Doubtless if such tacking is permitted the defendants haveestablished possession by themselves and by the deceased Carolis for aporiod of over ten years. The judgment appealed from is therefore right;the appeal fails and is dismissed with costs.
Windham J.—I agree.
Appzal dismissed.