056-NLR-NLR-V-25-CHARLES-v.-NONOHAMY-et-al.pdf
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Present: Garvin A.J. and Jayewardene A.J.CHARLES v. NONOHAMY et at.
f
100—D. 0. Chile, 9,167.
Prescription—Testator dying after possessing property for eight years—Last will creating fidei oommissum—Does possession of fiduciaryor executor enure to the benefit of fidei commissary ?—Prescription.
A property of which C was the owner was sold in execution againsthim and purchased by O, who died before he obtained a Fiscal'stransfer and before he could acquire prescriptive title to it bypossession for ten years. By his last wi,l O directed his executorto sell such lands as may be necessary for the payment of debts, andthereafter to convey the remaining properties to his son W subjectto a fidei commissum by which after the death of W the propertieswere to pass to his children. The executor entered on the land inquestion and possessed it for over ten years. W, who did not him-self possess the property during his lifetime, died leaving a son, B.Held, that B had title by prescription to the property.
Per Jayewardene A. J.—“ For the purposes of the PrescriptionOrdinance the fidei commissary must be considered as succeedingto the fiduciary.”
Obiter “ Under the Roman-Dutch law a fidei commissary istreated as a privy of the fiduciary or a person claiming underhim for the purposes of the law of res judicata.”
A fiduciary can acquire rights for the fidei commission property,and free it from burdens and any increase in the value of tho fideicommissary property while it is in the hands of the fiduciary,whether* due to his industry or not, would enure to the benefit ofthe fidei commissary.
fJ[EEE facts are set out in the judgment.
H. 7. Perera, for defendants, appellants.
J. Samaratoickreme (with him Soertsz), for plaintiff, respondent.
Cur. adv. wit.
October 3, 1923. Garvin A.J.—
The land which is the subject of this action admittedly was onceowned by one Carolis. It was sold in execution against Carolis andwas purchased by his brother, Odiris, who does not appear to haveobtained a conveyance from the Fiscal. Odiris, who at the date ofhis death had only been in possession of this land for about eightyears, left a last will by which he directed his executor to. sell, suchland or lands as may be necessary for the payment of debts, and .thereafter to convey the remaining lands to his son, Udenis, and his
1988#
1928*
Gabvin A.J.
Charles v.NonohOmy
( 234 )
daughter, Babunhamy, in equal shares. He further declared that theinterests to be passed to Babunhamy were to pass on her death toUdenis, and placed all the lands which Udenis took under his willunder the burden of a fidei commissum in favour of his children.
The intention of the testator would appear to have been that hisentire estate should vest in his executor for the purposes of ad-ministration and the payment of debts, and when these purposes hadbeen accomplished, that he should pass the residue to the legatees.This explains the circumstance that the executor entered upon thisland on the death of the testator. Udenis never entered intooccupation of this land, but why he did not do so is not known. Theexecutor continued in possession, and was in possession in 1913,when Udenis died. The District Judge has found that the executordid not change the character of his possession. He entered asexecutor under the will, and must, therefore, in the absence ofevidence to the contrary, be presumed to have continued inpossession in that capacity.
Now, whatever may be the circumstances under which it happenedthat Udenis did not enter into occupation of this land, immediatelyon his death the right accrued to his son Bastian to compel theexecutor to hand over the premises to him. Bastian, therefore,became entitled to a land of which the testator had had eight years*adverse possession, and which had thereafter been in the possessionof the testator’s executor for over ten years to the exclusion of allothers. .
The plaintiff is a purchaser from Bastian, and has, I think, clearlyestablished that his predecessors in title had acquired a prescriptivetitle to the premises.
The appeal is accordingly dismissed.
Jayewabdene A.J.—
This case raises an interesting question under section 3 of thePrescription Ordinance, No. 22 of 1871. The action is one torecover damages, under section 9 of the Partition Ordinance, fromthe defendants, by whose act the plaintiff says he has lost his rightsto a land worth Rs. 4,000. The land in question admittedlybelonged to the defendants’ father, Carolis. It was sold in executionagainst him, and purchased by his brother Odiris in the year 1889. NoFiscal’s conveyance was obtained. About seven or eight years laterOdiris died before he had acquired a title by prescription to the land.He left a will appointing another brother, Thambihamy Arachchi,his executor, and devising the property to his son, Udenis, subjectto a fidei commissum in favour of the latter’s children. Thambi-hamy obtained probate of the will and inventoried this landamong the assets of the testator. Udenis died in 1913, leaving ason, Bastian, who became entitled to the property under the will.Bastian by deed No. 32 of June 5,1920, sold it to the present plaintiff.
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Shortly after this Bale, the defendants, as the heirs of Carolis,instituted a suit, No. 18,049, to partition t^e land, and obtained afinal decree in their favour on June 16, 1921. The plaintiff allegesthat the title to the land is in him, and that the defendants actingfraudulently and collusively obtained partition of the land amongthemselves. He sues to recover the value of the land by way ofdamages; The defendants allege that they are owners of the landby virtue of Carolis’s title, of which he was never divested by adversepossession for the prescriptive period, and that they were entitledto bring the partition action. The learned pistrict Judge hasfound that on the execution sale Odiris took possession of theland, and that after his death, his executor, Thambihamy, was inpossession of the land until about the time of the institution of thepartition suit. He held, therefore, that Odiris and his successorsin title have acquired a title by prescription to the land, and thatCarolis and his heirs, the defendants, have been divested of theirtitle. He decreed the plaintiff’s claim. The defendants appeal.
On the Judge's findings on the facts, it is clear that Carolis and thedefendants have not been in possession of the land for about thirtyyears, and that the possession has been in Odiris and the executor ofhis will. But assuming this to be so, it is contended for the appellantthat such possession is not a prescriptive possession, within themeaning of section 3 of the Ordinance. The argument is put in thisway. Odiris himself had not acquired a title by prescription. Thefiduciary, Udenis, possessed through the executor for about fifteenyears. Thereafter the executor possessed without admitting the* title of Bastian, the fidei commissary, but adversely to him. AsBastian derived title to the property under the will of Odiris, he isnot a successor in title to the fiduciary, and does not, and cannot,claim under the latter. Bastian, the fidei commissary, can onlyclaim the benefit of the testator’s possession, which, however, wasnot for the statutory period. Bastian had no possession of his ownwhich he could add to this period to complete possession byprescription.
Two questions are, therefore, presented for decision: Does afidei commissary claim under the fiduciary within the meaning ofsection 3 of the Prescription Ordinance so as to enable the formerto tack the possession of the fiduciary to the possession of thetestator ? And must the possession of the executor, after the deathof Udenis, be deemed to be in possession on behalf of Bastian untilby some overt act he changed the character of the possession ?
The first question is not free from difficulty. To establish a titleby prescription to land, section 3 of the Ordinance requires proof ofundisturbed and uninterrupted possession for a period exceedingten years by the plaintiff, defendant, or intervenient (as the case maybe), or by those under whom he claims. Mr. Perera relies uponthese words, and contends that a fidei commissary does not claim
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1028.
Jatbwab*moms A.J.
Charts* v.Nonohamy
1923.
Jaybwab-DBNB A.J.
Chartea v,Nonohomy
( 236 )
under a fiduciary. He cites in support of his contention the case ofUsoof u. Rahimath,1 where this Court (Bertram C.J. and Shaw J.)held (see pages 240 and 243) that a judgment obtained againsta fiduciary does not operate as a res judicata against the fideicommissary. The learned Chief Justice said:—
“ The seventh and last of the suggested obstacles to the freeinterpretation of the instrument was the judgmentrecovered against Abdul Cader (fiduciary) by MohamaduUsoof (husband of the first fiduciary) in 1895 (that is,after the death of his wife), in which the interpretationnow contended for by the appellant was adopted by theCourt; it was argued that this judgment was res judicataas against Abdul Coder's children. But this is clearlyuntenable^. These children (the fidei commissaries) are notclaiming through Abdul Cader (the fiduciary), but on thedeed. It is certainly singular that it should be open tosuccessive generations of persons claiming under the samefidei commissum to litigate questions already the subjectof a judicial decree. But it is clear that, just as no agree-ment of Abdul Cader could affect the rights of his children,they are equally unaffected by any judgment against himto which they were not parties.”
That a fidei commissary does not claim under a fiduciary is strictlyspeaking correct, but the question arises whether, for the purposeof the Prescription Ordinance, this strict construction should beadhered to. No direct authority can be cited in favour of or againstappellants’ contention. It was, no doubt, held in Usoof v. Rahimath(supra) that a decree against a fiduciary does not bind the fideicommissary, the latter not being a privy of the former; but noauthority was cited in support of it, except the general principle thata res judicata binds only parties and their privies. But this rulingseems to be opposed to what is laid down in the Roman-Dutchlaw. Voet in bk. 2, 15, 8, of the Pandects, which treats of “ trans-actions ” or compromises, discussing the question whether a fideicommissary is bound by a compromise entered into by the fiduciaryconcerning the fidei commissum property, says that a compromiseentered into bona fide by a fiduciary ought to be binding :—
“ Eo modo, quo et Us ante restitutionem fiduciario mota nocet fideicommissariot non item ea, quae post restitutionem demumcoepta est ”;
and again in the same paragraph he says :—
“ Denique etiam in fiduciarium lata sententia fidei commissarionocitura est; nisi culpa fiduciarii condemnatio intervenisset,sive de re singulari, sive de tota haereditate fiduciario Us anterestitutionem mota esset, idque, ne alioquin dominia return1 (1918) 20 N. L. R. 225.
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in ineerto essent, incertaeque rerum indicatarum auctoritatestU plenius exsequitur. Peregrinus de fidei commissis, art.53, num. 49 et seqq. Si ergo et solutions, et impensa bonafide facia, et lite bona fide agitata, et denunciations sibi facta,fiduciariu8 fide commissario nocere possit; non est, cur nonet transigendo bona fide sine gratia aut sordibus eidem possetpraejudicare, praesertim, si meminerimus, transactionemaeque, as rem iudicatam, ad lites finiendas comparatam esse,nec minorem tins, quam rei judicatae auctoritatem”
In this passage Voet states that a judgment against the fiduciarybinds a fidei commissary if there has been no fault (culpa) on thepart of the fiduciary, and if the case has been fairly conducted (litebona fide agitata). It is, therefore, clear that under the Roman-Dutch law a fidei commissary is a privy of the fiduciary where thelaw of res judicata is concerned, and he must be considered as claim-ing under the fiduciary. I may here point out that judgment'obtained against persons in the position of a fiduciary in Englandand India have been held to bind their reversioners. In England,in the case of successive remaindermen, a decision against a remain-derman is admissible in evidence against a subsequent remainder-man in a suit brought against him for the same land, though liecannot be said to claim any estate under the first remainderman,because they claim under the same deed. (See Everest and Strode9sLaw of Estoppel, 2nd ed.t p. 60).
In India, where a Hindu widow’s position is almost exactly similarto that of a fiduciary, it has been held that a judgment against herbinds the reversionary heirs of her husband. Thus in KatamaEatchiar v. Srimat Raja Moothoo1 the Privy Council said :—
“ The whole estate would for the time being be vested in herabsolutely for some purposes, though in some respectsfor a qualified interest, and till her death it would not beascertained who would be entitled to succeed. The sameprinciple which has prevailed in the Courts in this countryas to tenants-in-tail representing the inheritance, wouldseem to apply to the case of the Hindu widow, and it isobvious that there would be the greatest possible incon-venience in holding that the succeeding heirs were notbound by a decree fairly and squarely obtained against thewidow.”
The same principle was held applicable where a Hindu widowwas granted the estate under a will which gave her the power tonominate a successor. Pertabnarain Singh v. Triloknath Singh?Caspersz says that this principle has now been established bynumerous decisions. (Caspersz on Estoppel, part II., p. 164, 3rded.) It is on this same principle that it has been held locally that»(US3) 9 Moo. I. A. 563 (604).«(1834) 11 Cal. 186.
1983.
Jaybw ab-ducts A. J.
Charles v.Nonohamy.
1983.
Jatbwab*DENE A.J.
Charles v.Nonohamy
( 238 )
ft partition effected between the fiduciarii or the fiduciarii and otherco-owners of ft land, whether by judicial decree or by mutual agree-ment, binds thefidei commissarii, mid cannot be re-opened by themwhen their interests accrue. (Babey Nona v. Silva.1) This decisionadopted the law as laid down by Voet in bk. 10, 2, 38, where herefers to his Title on Compromises, para 8. Therefore, underthe Roman-Dutch law a fidei commissary is treated as a privy of thefiduciary or a person claiming under him for the purposes of the lawof res judicata. The question is, whether he should not also beconsidered as holding a similar position with regard to,the law ofprescription. The rights and duties of the fiduciary and fideicommissary heirs are discussed by Voet in book 36, tide 1, particu-larly in paragraph 63. A consideration of these titles show that afiduciary has somewhat wide powers with regard to the fidei com*missum property, and that he can acquire rights for it and free itfrom burdens, and. any increase in the value of the fidei commissaryproperty while it is in the hands of the fiduciary, whether due to his*industry or not, would enure to the benefit of the fidei commissary.So much so, that according to Voet (see his Title of Compromises,para. 8) it is a matter of common dispute whether the fidei commissarysucceeds the testator or the fiduciary:
“ I vs fidei commissatii plane idem sit cum iure fiduciarii, ac simpli-citer onera omnia ac commoda a fiduciario in fidei commis -sarium transeant, quantacumque fuerint, sic ut disputeturwlgo, au gravanti au gravato succedatur ex fidei commisso:ut proiride fiduciarius de suo iuro transigens, non possitnon videri transegisse simvl de iure fidei commissarii, iussumm omne ex iure, quod fiduciario competebat, habentis acmetientis”
There he says that the right of th efidei commissary heir is the sameas that as the fiduciary, all the advantages and disadvantages passto him, and that the fidei commissary has and measures all his rightsfrom and by the rights which the fiduciary had. Hence it is amatter of dispute whether he succeeds to the person imposing theburden {gravanti) or to the person on whom the burden has beenimposed (gravato).
For the purpose of the Prescription Ordinance, the fidei commis-sary must, in my opinion, be considered as succeeding to the fidu-ciary. Otherwise, the consequences would be very anomalous, andthe fiduciary would be able to obtain the fidei commissum propertyby prescription. For instance, to take the facts of the present case,the testator only possessed the property for seven or eight years thefiduciary possessed it for a period exceeding the statutory period forprescription. If the real owner claimed the property at the death ofthe fiduciary, the fidei commissary, who claims under the testator,cannot get the benefit of the fiduciary's possession, and would not bei (1906) 9 N. L. B. 251.
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able to establish a title by prescription, and the owner would beentitled to the property, bat his right might be contested by theheirs of the fiduciary who has had possession for the prescriptiveperiod. So that, as between thefidei commissary, the owner, andthe heirs of the fiduciary, the last named would be entitled to theproperty. But the fiduciary or his heirs cannot set up a claimadverse to the will, where the fiduciary has obtained possession ofthe property under the will. The law of estoppel stands in the wayof his doing so. Thus in Board v. Board1 a testator made a willleaving property which he had no right to device (but which devolvedon his heir-at-law) to his daughter Rebecca with remainder to hisgrandson. The daughter mitered into possession under the will, andremained in possession for over twenty years (the statutory periodfor prescription), and then conveyed the land to the defendant. Therights of the heir-at-law had been extinguished by the daughter'spossession for over twenty years. In a contest between an assignee ofthe remainderman and the defendant,it was held that as the daughterhad entered under the will, the defendant claiming through her wasestopped as against all those in remainder from disputing the will,Mellor J. saying :—
“ The only person who could dispute the possession of Rebecca.under the will was the heir-at-law. He never disputedthe possession, and his title to the estate is barred by theoperation of the Statute of Limitations. Whatever hismotive was, whether he received advantages under the willor not, or whether he chose to abstain from making anyclaim or not, is wholly immaterial, because the effect ofthe statute is absolutely to bar him at the end of twentyyears. That being so, Rebecca enters into possession underthe will, taking a life estate, and during the continuanceof that estate effects a sale adversely to the interests ofthe remainderman under the will. Now, Rebecca havingaccepted the estate under the will, and having acted underthe will, treating the will as a perfectly valid will, cannotdefeat the title of the remainderman under the will byalleging that the devisor had no title. It would be con-trary to the wholesome doctrine of estoppel to allow aperson who takes a limited interest under the will, aftershe has been in possession for twenty years under the will,to convert her limited interest into a fee."
See also Dalton v. Fitzgerald? where this case was followed.
On the principle laid down there the fiduciary is barred fromclaiming the property, the fiduciary’s possession bars the true ownerfrom succeeding in his claim. Therefore the title to the property
must be in th efidei commissary.
1 (1873) 9 Q. B. 48.
Jaybwab-
DBNS .
Charles p.Nonohamy
* (1897) 1 Ch. 440 ; also 2 Ch. 86.
( 240 )
1928.
Jaybwab-
2>K9TB Ai'Ji
Charles v.Nonohamy
Furthermore, in the present case, Bastian, the fidei commissary,is also the heir of the fiduciary, his father, and is entitled to claimthe property by intestate succession from him, if he cannot claimit as fidei commissary under the will. In my opinion the fiduciarymust be considered as having acquired certain rights in the properly.He has completed the period of prescription which the testator’spossession had begun, and has divested the real owner of his rights.He has thereby gained an advantage which must accrue to thebenefit of the fiduciary and to the extent of that advantage, at least,the fidei commissary succeeds to the fiduciary, just as servitudesacquired by the fiduciary for the benefit of the fidei commissiumproperty, pass to the fidei commissary. Voet 36,1, 63.
Section 3 of the Ordinance does not enact any new law when itsays that a party can tack to his possession the possession of thepersons under whom he claims. It merely declared a well knownprinciple of our common law (Voet 4, 3,16) which seems to obtainin all countries where title to immovable property can be acquiredby adverse and continuous possession for a prescribed period.Halsbury’s Laws of England, vol. 19, p. 157; Rustomjee's Law ofLimitation in India, p. 504 (2nd edition) ; and Angell on Limitation,para. 413. Under these laws, as under our law, the possessionof two or more independent trespassers adverse to one another,not claiming through one another, and unconnected as of right,cannot be tacked. I do not think it could be said that persons inthe position of a fiduciary and a fidei commissary can be treated asindependent trespassers, adverse to one another, or that their titlesare wholly unconnected. The plaintiff is, therefore, entitled totack the possession of the fiduciary to the possession of the testator.Udenis, and to say that when Bastian succeeded to the property in1913 he had acquired a title by prescription to it.
In view of this decision it becomes unnecessary to considerthe second point arising in the case, as to whether the executor’spossession was on behalf of Bastian.
I have no reason to disagree with the learned District Judge’sfindings on the facts, that Odiris got into possession of the land afterhis purchase at the execution sale, and that thereafter the executorunder his will possessed it on behalf of the fiduciary, Udenis. Thecircumstances pointed out in his judgment strongly support thisview. It is also clear that defendants have had no possession of thdland from the date of the execution sale, until shortly before theinstitution of the partition action.
I would, therefore, dismiss the appeal, with costs.
Appeal dismissed.