CHELLIAH et al. v. KUTTAPITIYE TEA AND RUBBER CO

027-NLR-NLR-V-34-CHELLIAH-et-al.-v.-KUTTAPITIYE-TEA-AND-RUBBER-CO.pdf


Chelliah v. Kuttapitiye Tea and Rubber Co.
89
Present: Garvin S.P.J. and Jayewardene A.J.
CHELLIAH et al v. KUTTAPITIYE TEA AND RUBBER CO.
178—D. C. Ratnapura, 4,774.
Kandyan law—Mamnage registered in diga—Wife acquiring binna rights—Character of marriage—Rights of husband—Property of deceased child—Inheritance.
Where a Kandyan woman whose marriage was registered as digaavoids a forfeiture of her rights in the paternal inheritance by preserving. or subsequently acquiring binna rights, it does not alter the character ofthe marriage itself.
In such a case, the diga husband is heir to his child in respect of landdevolving on her from the mother, who had inherited the property invirtue of the retention of her binna rights.
A
CTION for declaration of title to a £ share of a certain panguwaoriginally owned, by one Appuhamy Lekama who died in 1874.
He was survived by a son, Rataranhamy, two diga married daughtersYahapathamy and Kirimenike, and another daughter, Punchimenike,whose marriage in 1882 to G. V. Kirimenika was registered as a digamarriage. Rataranhamy. died in 1894 arid his only child, Appuhamy,died in 1895. Yahapathhamy and Kirimenike died leaving respectivelyPullihamy and Punchimenike, through whom the defendant companyclaimed title.
Punchimenike, who was married in 1882 to G. V. Kirimenika, died in1898 leaving a daughter Ramalhamy who died in 1899, and in 1927G. V. Kirimenika conveyed the entirety of the £ share of the panguwa tothe plaintiff’s predecessors in title.
On December 20, 1927, the plaintiff institued this action against thedefendant company for a declaration of title to share. Plaintiff’saction was dismissed.
H. V. Perera, for plaintiff, appellant.—The entry of the marriagecontracted between Punchimenike and G. V. Kirimenika as a digamarriage in the register kept under the provisions of the KandyanMarriage Ordinance, No. 3 of 1870, is the best evidence of the nature ofthe marriage and binds the parties to the marriage and their representa-tives in interest (section 39 of Ordinance No. 3 of' 1870 ; Mampitiya v.Wegodapolal). A Kandyan woman, though married in diga, may stillpreserve her binna rights through not incurring the forfeiture whichresults when she is conducted away from the mulgedera or she mayreacquire binna rights. In neither ,case would the husband’s rights underthe marriage contract be affected; he would continue to have the rightsof a diga married husband (Seneviratne v. Atalangoda ~).
The defendant company is a representative in interest of Ramal-hamy and therefore of Punchimenike. The evidence in the case showsthat Punchimenike never lost her binna rights, and if that is so, then on
24 N. L. R. 120.
*22 N. L. II. 472.
90Chelliah v. Kuttapitiye Tea and Rubber Co.
the death of Appuhamy (Rataranhamy’s son) his share passed -to Punchi-menike, who, thereupon, became vested with the entirety of the £ shareand this, on her death, passed to Ramalhamy. On Ramalhamy’s deathG. V. K. was entitled at least to a life interest in the £ share (Appuhamy v.Hudu Banda*), but it is further submitted that G. V. K. is entitled tothe £ share absolutely both because the diga marriages of Yahapathhamyand Kirimenike place them, as regards Punchimen'ike’s intestacy, in theposition of strangers, and because G. V. K. would be entitled to thedominium by virtue of the principle of Jatake TJruma {Perera’s Armour p.76; (1852) Austin 155).
The defendant company cannot rely on prescriptive possession becausethe evidence does not clearly establish that they have been in possessionfor 10 years and the deeds by which Pullihamy and Punchimenike con-veyed to the defendant company’s predecessors date respectivelyno further back than 1919 and 1920. Moreover, the defendant companycannot claim that its possession from about November, 1917, was adversesince it recognized the claims of Pullihamy and Punchimenike bypurchasing from them subsequently. •
The defendant company cannot claim to be compensated for improve-ments because its possession cannot be regarded as possessio civilis inas-much as when it entered on the land it could not have believed that itwas entitled to the land. It is, therefore, a mala fide possessor. Theimprovements fall in the class of impensae utiles and not impensae neces-sariae, and only the latter class gives a mala fide possessor a right tocompensation.
A, E. Keuneman (with him F. C. W. van Geyzel) for defendant, re-spondent.—The case where binna rights are reacquired is different fromthe present case. There must be a point of time—the date of themarriage—when the rights or status of both husband and wife must bethe same, either binna or diga. The entry in the marriage register washeld not to be conclusive of the nature of the marriage in Ran Etana et al.v. Nekappu et al.' and in Dingirihamy v. Mudalihamy3. Here the plaintiffseeks to show that, at- the time the marriage between Punchimenike andG. V. Kirimenika was made and registered as a diga marriage, Punchi-menike had binna rights and G. V. Kirimenika had the diga rights whichthe registration of the marriage as a diga marriage conferred upon him.
. Either both parties must be bound by the register or if one of them seeksto contradict by evidence the nature of the marriage as registered thenthe other party must be allowed to show the real nature of the marriage.The principle is that a' man cannot both approbate and reprobate thesame transaction. (See the judgment of the Judicial Committee in ShahMukhun Lall v. Baboo Sree Kishen Singh *.) In this case G. V. Kirimenikagiving evidence said, “ It was in fact a binna marriage and I was a birmahusband. ” That being so, he cannot claim any interest in Ramal-hamy’s estate (Appuhamy v. Dingiri Menika" and Ran Menikav. Mudalihamy ‘). If, on the other hand, both parties are bound
7 N. L. R. 242.4 12 Moore'■« Indian Appeals 157
14 N. L. R. 289..al 185 and 186.
16 N. L. R. 61.*-9 S. C. C. 34. Full Bench.
« 6 N. L. R 131.
GARVIN S.P.J.—Chelliah v. Kuttapitiye Tea and Rubber Co.
91
by the register, then the h share of Rataranh&my’s son Appuhamy would:go equally to Yapahathamy, Kirimenike, and Punchimenike, and vonRanmalhamy’s death her property (being ancestral property derived fromher mother) would revert to the next of kin in her mother’s familyYahapathhamy and Kirimenike, on the principle that such property'sreverts to the source from which it was inherited (Seneviratne v. Halan-godal), subject of course to a life interest in favour of G. V. Kirimenika.
It is submitted that the finding in favour of the defendant company *on the issue of prescription is correct. G. V, Kirimenika himself said,
“ It must have been cleared about November, 1917,” and this, issupported by the evidence of the defendant company’s agent, Craib.The fact that after entering into possession the defendant companyrecognized the claims or titles of Pullihamy and Punchimenike by buying (from them in 1919 and 1920 does not mean that the defendant company’spossession was not adverse, and the defendant company is entitled torely on its possession prior to 1919 and 1920. To succeed on the ground,of prescriptive possession, it is not necessary to show a title adverse X6 the •whole world (Raki et al. v. Lebbe et dl.e) •
It is submitted that the defendant company had the possessio civilisbecause it possessed with the intention of holding the land as owner,but. even if its possession is held not to be possessio civilis inasmuch as itis not derived from ajustus titulus and the defendant company is,therefore, not a bona fide possessor, it is nevertheless entitled to a bpnafide possessor’s rights to compensation because G. V. Kirimenika. .has -stood by and acquiesced. in the improvements effected. He might, and ’should, have brought a vindicatory action, (Nugapitiya v. Joseph “).Further, the presumption of law runs in favour of possession being 'bonafide and the burden of proving it mala fide is on the party alleging it,in this case the plaintiff (Walter Pereira, Compensation for Improvementsy ■23 and Carimjee v. Abinchena'). The plaintiff has done nothing to. dis-Tcharge that onus save to rely on the protests made by G. V. Kirimenikawhen felling on the land began.
August 31, 1932. Garvin S.P.J.—
The parties are agreed that the interests in dispute once belonged <toone Appuhamy Lekama who died in 1874 leaving him surviving sonRataranhamy and three daughters Yahapathhamy, Kiri Menike, andPunchi Menike. The son Rataranhamy died in 1894 leaving him sur-viving his son Appuhamy who died in the -year 1895. Yahapathhamydied leaving a daughter Pullihamy and Kiri Menike also left a daughterPunchi Menike. By deed D 1 of 1919 Pullihamy purported to conveywhat she claimed to be her interests to one Ferdinando who in the year1921 sold and conveyed to the defendant company. Similarly PunchiMenike, the daughter of Kiri Menike, purported to convey the interests ;claimed by her to one Tennekoon by deed D 3 of 1920. In the year 1021.Tennekoon by the deed D 4 sold to the defendant company.
Both Yahapathhamy and Kiri Menike, who were the predecessors intitle of the defendant company, were married .in diga.
1 24 N. L. R. 257.3 28 N. L. R. 140.
* 16 N. L. R. 138.* 8 C. W. R. 18.
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GARVIN S.P.J.—Chelliah v. Kuttapitiye Tea and Rubber Co.
Punch! Menike, the daughter of Appuhamy, married Gampaha Vidana-lage Kiri Menika. She died in the year 1898 leaving a daughter Ramal-hamy who died in the following year. Kiri Menika the surviving husbandof Punchi Menike conveyed the entirety of the interests which originallybelonged to Appuhamy in the year 1927 to Don William Jayamaha andDon Peter Jayakoddy, and in the same year Jayamaha sold to the secondplaintiff and Jayakoddy to the first plaintiff. The two plaintiffs claimthat by virtue of the conveyance in their favour they are entitled to theentirety of the interests which once belonged to Appuhamy, to the exclu-sion of the defendant company.
By reason of the marriages of Yahapathhamy and Kiri Menike in dig athey lost their rights to succeed to any part of their father’s estate.There remained then two children, Rataranhamy and Punchi Menike,the wife of Kiri Menika. Rataranhamy as the son would undoubtedlybe an heir.
The question we have to decide first is whether Punchi Menike, theremaining daughter, was also an heir or whether she had lost her rightto the inheritance as her other sisters had done. The position of thedefendant company in relation to Punchi Menike is, that she was adaughter married in binna. If so she would clearly be an heir of herfather and upon the death of her brother Rataranhamy and his sonAppuhamy, would be entitled to succeed to the interests of Appuhamyas well. She would thus have become entitled to the entirety of herfather Appuhamy’s interest. The company contends however thatthese interests passed from Kiri Menika to his daughter Ramalhamyand that when Ramalhamy died in 1899 the interests passed to Pullihamyand Punchi Menike, the daughters of Yahapathhamy and Kiri Menike,to the exclusion of Ramalhamy’s father Kiri Menika through whom theplaintiffs claim. If the marriage of Punchi Menike and Kiri Menike wasa marriage in binna it is not disputed that in the circumstances of thiscase Kiri Menika as a binna’married husband would not be the heir of hisdaughter Ramalhamy in respect of the paraveni property inherited byher through her mother, and that those interests would therefore pass toher mother’s next of kin.
The plaintiffs on the other hand claim that Kiri Menika and his wifePunchi Menike were married in diga, but that she either preserved herrights of succession or reacquired them and as a result, ultimatelysucceeded to the entirety of the interest of her father Appuhamy. Thoseinterests admittedly passed to Ramalhamy as I have said earlier and itwas urged that Kiri Menika being a diga married husband was the heirof his child.
A copy of the entry of the. marriage in the register kept under theprovisions of the Kandyan Marriage Ordinance, No. 3 of 1870, shows thatPunchi Menike and Kiri Menika were married on August 7, 1882, and thatthe marriage contracted by them was a marriage in diga. Section 39of that Ordinance constitutes this entry the “ best evidence ” of themarriage contracted and of the other facts stated therein. If thereforeregard be had to what the law constitutes “ best evidence ” theirs wasclearly a marriage in diga.
GARVIN S.P.J.—Chelliah i>. Kuttapitiye Tea and Rubber Co. 93
Kiri Menika who was called as a witness stated that after the contractof marriage had been entered into and recorded in the register, he and hiswife returned to her father’s house and lived there continuously till hiswife died in 1898, when he returned to his own house. Three childrenwere bom to this marriage. All of them were born in the house of PunchiMenike's father Appuhamy. The whole family lived together and thereis evidence that Kiri Menika and his wife possessed and enjoyed thefields and gardens and lands belonging to Appuhamy. The lands indispute in this case were chena lands and speaking with reference to themKiri Menika said “ when the chenas were cultivated I got a share of theproduce ”.
These facts are relied on by the plaintiffs as showing that notwithstand-ing that Punchi Menike and Kiri Menika intended to, and did contract amarriage in diga, the former never lost her right of succession to herfather’s property on his death, and that if she did by the mere fact ofhaving contracted a marriage declared to be in diga sustain a forfeitureshe reacquired those rights and was fully revested with them at thetime of her father’s death.
The defendant company on the other hand has invited us to hold thatnotwithstanding the entry in the register the marriage contracted was amarriage in binna and not in diga. Certain answers were elicited fromKiri Menika in the course of his cross-examination which, it is said,,proved that this was a marriage in binna and not a marriage in diga.“ Although the marriage was registered in diga ” said Kiri Menika“ it was in fact a binna marriage and I was a binna husband ”.
In Mampitiya v. Wegodapola' Bertram C.J. and Ennis J. havingconsidered whether the character of a marriage solemnized under theprovisions of the Kandyan Marriage Ordinance of 1870 can be provedto be other than it is stated to be in the register by oral evidence cameto the following conclusion: “ As between, or as against the parties, ortheir respective representatives in interest, the register of the marriage isconclusive ,of the intention with which the marriage was celebrated,unless the case is shown to be one of mistake or fraud, or can otherwisebe brought within the equitable exceptions of section 92 of the EvidenceOrdinance.”
This view of the law was approved by de Sampayo J. and Schneider J.in Seneviratne v. Halangoda The contestants in this action are thesuccessors in title respectively of persons claiming to be heirs of Ramal-hamy, the daughter of this marriage. It would clearly not be competentfor Ramalhamy to seek to contradict the statement in the register byleading parol evidence nor would such a course be open to those whoclaim to be her heirs and representatives in interest. Counsel for thedefendant company sought to escape from this situation by claimingthat Yahapathhamy and Kiri Menike were co-heirs with their sisterPunchi Menike of Appuhamy the son of Rataranhamy in respect of theshares which devolved upon him on his father’s death. But Yahapath-hamy and Kiri Menike would not be heirs of Appuhamy unless Punchi
1 s. C. No. 293, D. C. Kandy No. 27,829, S. C. Mins. 20.6.1921, also (1922) 24 N. L. R. 120.
= (1921) 22 N. L. R. 472.
34/10-
04
GARVIN S.P.J.—Chelliah v. Kuttapitiye Tea and Rubber Co.
Menike their sister was also married in diga and had also forfeited herright of inheritance. They would therefore have to affim the registrationof this merriage as a marriage in diga. To impeach the register andprove that the marriage of Punchi Menike was a marriage in binna wouldbe to divest themselves of every vestige of claim to be the heirs ofAppuhamy.
If the defendant company is to succeed it can only do so by establishingthat their predecessors in title Pullihamy and Punchi Menike were theheirs and representatives in interest of Ramalhamy the daughter of theiraunt Punchi Menike upon whom the whole of her grandfather’s estatehad devolved through her mother. Ramalhamy is bound by the registerand could only have claimed this inheritance upon proof that, though themarriage contracted by her parents was a marriage in diga, her motherdid not in fact leave the roof of her parents, that there was no severancefrom the family and consequently no forfeiture of rights, or upon proofthat if a forfeiture ever took place her mother reacquired the rights of abinna married daughter.
The decisions of this Court place the defendant company in the sameposition as Ramalhamy in regard to the declaration in the registrationof the marriage of Ramalhamy’s parents.
The learned District Judge treated this as a case in which there was amistake in the register and this conclusion has for its foundation the state-ment of Punchi Menike’s husband that theirs was in fact a marriage inbinna. No attempt was made to ascertain how the marriage came to beentered by the officiating registrar as a marriage in diga if the partiesdeclared it to be a marriage in binna, or how or by whom the mistake wasmade. Kiri Menika does not say that there was a mistake nor has he saidthat it was not his intention to contract a marriage in diga.
The statement somewhat adroitly elicited from this villager that hismarriage was “ in fact a binna marriage ”, is not, in my opinion, evidencethat the statement in the register that the intention of the partiesexpressed at the time of the solemnization of their marriage to contracta marriage in diga, was mistakenly entered. The statement of KiriMenika is consistent with his position that his wife never in fact sufferedthe forfeiture of rights of inheritance by severance from her father’sfamily usually involved in a diga marriage and that her position, in fact,was that of a binna married daughter notwithstanding that the marriagewas contracted in diga.
Whether a marriage is to be in diga or in binna would naturally bedetermined during the negotiations which precede the marriage. Fromthe point of view of the wife, a binna marriage leaves her rights intact,whereas a diga marriage and the departure from her family which itinvolves result in a forfeiture of her rights of inheritance to her father’sestate. On the other hand a binna marriage places the husband in aposition of great inferiority as compared with a diga married husband,especially in regard to his rights of inheritance to the property of his wifeand the property of his children inherited from her.
Prior to the legislation relating to the registration of Kandyanmarriages, it was in the nature of things almost impossible to obtainevidence of the type of marriage which the parties intended to contract
GARVIN S.P.J.—Chelliah v. Kuttapitiye Tea and Rubber Co.
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at the time of their marriage. In practically every case in which aquestion arose as to whether a marriage was contracted in binna or indiga, its decision depended on whether after the marriage the wife was-conducted from and lived away from her father’s house or whether sheand her husband continued to live under her father’s roof.
But it is conceivable that in many such marriages the intention withwhich the parties entered into a marriage may have been that it shouldbe a marriage in diga, the husband refusing to accept the position of abinna husband, and that notwithstanding that the marriage contractedwas in diga the parties continued to reside in the house of the wife’sfather. In such a case the wife presumably would retain her rights ofinheritance to her father’s estate and the husband the rights he contractedfor when he insisted on a marriage in diga. But the difficulties of proofwere in the past, frequently, insurmountable.
Since the legislation to which I have referred there is a clear contem-poraneous record of the type of marriage entered into by the partieswhich the law declares to be the “ best evidence ”, and it is now possibleto prove that a marriage was in diga notwithstanding that the wiferemained in her father’s household and perhaps never sustained a forfei-ture of her rights and that the husband remained a diga married husbandwith all the rights he intended to secure for himself, when he contractedthat the marriage should be in diga.
A case in point is that of Seneviratne v. Halangoda (supra) in which itwas sought to prove that, though registered as in diga, the marriage was infact a binna marriage. De Sampayo J. there held that the marriage wasa marriage in diga as registered and that “ the only consequence of adiga married daughter preserving or subsequently acquiring binna rightsis that the forfeiture of the rights of paternal inheritance does not takeplace, but she inherits as though she was married in binna. It does notalter the character of the marriage itself. The diga marriage remains adiga marriage so far as other results of such a marriage are. concerned.The husband does not cease to be a diga married husband and beginto be a binna married husband”.
With this statement of the law I entirely agree. This is Kiri Menika’sposition in law. He was married in diga. In fact his wife never left herparents’ house and preserved her rights of inheritance. He appears tohave accepted in cross-examination the suggestion that in such circum-stances his marriage was in fact a binna marriage and he a binna husband.Manifestly, assuming he realized what he was saying, he was mistakenin his view of his position in law. I may add, however, that inasmuchas he claimed to be the heir of his child when he sold these premises tothe two plaintiffs it is extremely doubtful whether he even did intend tosay or at least that he realized what he was saying when he accepted theposition in eross-examination that as the husband of a wife who was“ in fact ” married in binna he was a binna married husband. Butwhatever his impressions may have been there can be no doubt on theevidence of the register that his marriage was a marriage in diga andthat Kiri Menika therefore is entitled to all the rights of a diga marriedhusband. The evidence is overwhelming that Kiri Menika and his wifePunchi Menike lived continuously in the house of her father Appuhamy
96 GARVIN S.P.J.—Chelliah v. Kuttapitiye Tea and Rubber Co.
that all her children were born there and that she herself died there longafter her father’s death leaving her surviving her daughter Ramalhamyand her husband. It was Kiri Menika who cultivated the fields whichbelonged to Appuhamy and it was he who shared in the profits obtainedby cultivating the family chenas.
From these facts the conclusion is inevitable that Punchi Menike wasfully vested with rights of inheritance and did in fact inherit her father’sproperty which at her death passed to her daughter Ramalhamy.
We have next to determine to whom this property passed on the deathof Ramalhamy. The rival claimants are her father and her maternalcousins. The property with which we are concerned is the landed pro-perty of Appuhamy, the grandfather of Ramalhamy and her cousins,which came to her through her mother.
Sawers in a passage which will be found in Modders Edition p. 12,s. 33, says— “ A wife dying intestate, leaving' a son who inherits herproperty, and that soil dying without issue, the father has only a lifeinterest in the property, which the son derived or inherited from or throughhis mother. At the father’s death, such property goes to the son’s uterinebrothers or sisters, if he have any, and failing them, to the son’s nearestheirs in his mother’s family ”.
In Appuhamy v. Hudu Banda 1 Middleton J. held that a diga marriedfather was entitled to a life interest in the property of his three deceasedchildren inherited by them from their, mother.
There seems no reason to doubt that a diga married father is at leastentitled to a life interest in the landed property of a deceased child whichsuch child inherited through his mother. Kiri Menika is thereforeentitled at least to a life interest in the lands involved in the action.
It was submitted, however, that he is entitled to inherit such deceasedchild’s property without any limitation it being premised that such childdied without issue. This is a point upon which the Kandyan law is farfrom being clearly ascertained and I am not sure that it is necessary forthe purpose' of this case to decide the question.
Kiri Menika the plaintiffs’ predecessor has been shown to have had aninterest in the premises whereas the defendant company’s predecessorsin title have none. We have not even been told whether they are alivetoday; we certainly cannot undertake to say that they will survive KiriMenika and ultimately at his death be found to, be Ramalhamy’s nextheirs in her mother’s family.
Inasmuch however as the question has been raised and argued at somelength it is perhaps desirable that we should express our views upon thepoint. The question, therefore, is whether a father is heir to his childborn in a diga connection in respect-of landed property inherited throughthe mother who inherited in virtue of her retention or reacquisition ofher rights of inheritance to her father’s estate.
In Dingiri Menika v. Appuhamy ~ a Bench of two Judges (Wendt J.-andMiddleton J.) held that where a Kandyan whose parents were married indiga died intestate and without issue leaving him surviving his father,his mother’s mother, and two uterine half sisters of his mother, andwhere the intestate’s estate consisted exclusively of lands inherited byi (1903) 7 N. h. R. 242.2 (1907) 10 N. L. R. 114.
Garvin SPJ.—Chelliah v. Kutiapitiye Tea and Rubber Co.
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Him from his mother, who had inherited them from her father, the intes-tate's father was sole heir to his estate and that the uterine half sisters ofthe intestate’s mother were not entitled to any share thereof.
Wendt J. who delivered the principal judgment in the case recognizesthe “undoubted difficulty” caused by the passage from Sawers quotedearlier in this judgment and which he quotes in extenso but bases hisconclusion on a passage in Armour (Pererd’s Edition, p. 76) that “thefather (by Jatake Uruma) is entitled to inherit the lands and other pro-perty, which his deceased infant child had inherited from the mother,in preference to the relations of the person from whom that propertyhad been derived to the said child’s mother
This proposition is illustrated by a case in which a mother who inheritedher child’s paraveni property has a son by a second marriage who inheritsthe property from her : this son dying in his father’s care that father washeld to inherit the property in preference to the representatives of theoriginal owner from whom it had descended to the first child.
As is pointed out in Hayley on Kandyan Law pp. 414-415 both in thepassage from Armour and in the case given by way of illustration thefather is preferred to “the person from whom that property is derivedto the rpother ” but nothing is said of the mother’s relations.
The general rule of the Kandyan law would seem to be that in the caseof a person who dies intestate unmarried and without issue the propertyreverts to the source from which it came—the property derived from thefather or mother reverts to them respectively; where the mother is deadand the father alone survives his child bom in a diga connection he takesa life interest in the property derived from or through the mother whichat the death of the father reverts to the child’s nearest heirs in his mother’sfamily—vide Sawers, Modders Edition p. 32, s. 33.
The case referred to in the. judgment of Middleton J. is D. C. Kandy,case No. 23,620.1 There the property had descended from one Sarana•to his daughter Rangkiri and from her to her daughter Belinda. OriBelinda’s death a contest arose between her father and the defendantsthe children of her grandfather Sarana’s sister Poossamba. The fatherwas preferred. The reasons for the decision are not stated. Hayley atp. 413 suggests that if Poossamba was married in diga her childrenmight have been considered too remote. This is a possible explanationfor the preference of the father who it must be assumed was a digamarried husband.
In Ranhotia v. Bilindas it was held that the father took an absoluteestate in the acquired property to the exclusion of the deceased’s brother.
The weight of judicial decision would seem to favour the view that thefather is heir to the property of his child who dies intestate and withoutissue not merely to a life interest therein but to the full dominium.
While I am myself inclined to think that it is more in keeping with theprinciples of intestate succession so far as they are discernible in theKandyan law that the father should only take a life interest in theproperty which his deceased child inherited from his mother the balanceof judicial decision is the other way. In this particular case since theproperty cf the child was originally that of her grandfather it may well' (1852) Av.itin 155.2 (1909) 12 N. L. R. 1U.
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GARVIN S.P.J.—Chelliah v. Kuttapitiye Tea and Rubber Co.
be that in the absence of closer relations of the intestate child’s motherthe father would be preferred to the children of the child’s mother’s sisterswho by contracting dig a marriages had excluded themselves fromparticipating in that inheritance. In the result therefore Kiri Menikahas been shown to be vested with a definite interest in these premiseswhether it be only an estate for life or full dominium while the defendantcompany’s predecessors in title had no immediate interest in the premisesat the time of the execution by them of the conveyances relied upon by thedefendant company and have not been shown to have any interest evenat the date of this action. The weight of judicial decision favours KiriMenika’s claim to an absolute estate.
If the defendant company is to succeed it must be by proof of a titleby prescription. The title of the plaintiffs being superior the onus is onthe defendants to establish if they can that they have had 10 years’ adverseand uninterrupted possession prior to the institution of this action beforethey can claim a decree in their favour.
The action was instituted on December 20, 1927. The defendantcompany in its answer dated August 8, 1928, paragraph 13, pleaded asfollows:—“ The defendant company and its .predecessors in title havebeen in the undisturbed and uninterrupted possession of an undivided£ share of the said lands for upwards of 10 years by a title adverseto and independent of that of all others and claims the benefit ofsection 3 of Ordinance No. 22 of 1871 ”.
Now the defendant company acquired the interest they claim in 1921from two persons of the names of Ferdinando and Tennekoon. Ferdinandopurchased from Pullihamy in 1919 while Tennekoon obtained a convey-ance from Punchi Menike in 1920. There is no evidence of any possessionby either Pullihamy or Punchi Menike, Ferdinando or Tennekoon, thedefendants’ predecessors in title. The defendant company and its prede-cessors have not therefore been shown to have had 10 years’ possession,and the plea fails.
Kuttapitiya Estate with which these lands have now been incorporatedconsists of 1,650 acres. A beginning was made with the clearing andplanting in November, 1917, and the 1,650 acres now forming Kutta-pitiya Estate were opened and planted between that date and the year1929. Mr. Craib, Manager of the Kuttapitiya Estate Co., says that 225acres were opened in 1917. Early in his evidence he stated generally ofthese lands that they must have been opened in November, 1917. Hewas certain that they must have been opened then. He did not howeverproduce any books or plans or company’s reports or any document whichwould have enabled him to swear that these lands were opened inNovember, 1917, nor did he say that they formed part of the 225 acresopened in 1917. Now Mr. Craib and the defendant company, if he wastheir agent at the time and even this we do not know, were trespassersand if they are to succeed a;s against the person entitled to the landsthey must give strict proof of adverse and uninterrupted possession fromsome date prior to December 20, 1917. The opening of this large extentof 1,650 acres commenced some date in November, 1917, but I am notprepared to hold that these lands which together are said to amount onlyto about,60 acres “must have been” cleared prior to December 20, 1917.
I
GARVIN SJP.J.—ChelUah v. Kutiapitiye Tea and Rubber Co.
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When this case first came up in appeal attention was specially drawn tothis point and the defendant company was given a further opportunityof supplementing its evidence on the point in particular by proof thatthese lands were part of the 225 acres said to have been opened in 1917.They have adduced no further evidence and rely on Kiri Menika’sadmission that inasmuch as the land was planted “ about February,1918,” it must have been celared “ about November, 1917 This doesnot seem to me to carry the case much further. The defendant companyhave not adduced evidence as to the date when these lands were enteredupon and cleared presumably because they have no evidence to adduce.
The defendants’ case on this point can hardly be put higher than thatMr. Craib and they have kept plaintiffs out Of possession for about 10years; the period may be just above 10 years, it may be just below 10years. They have not proved affirmatively that they have had 10 years*adverse and uninterrupted possession and are not therefore entitled to adecree in their favour.
Earlier in this judgment it was pointed out that the defendant companyunder the title pleaded by it could not carry its possession further backthan the years 1919 and 1920 and that inasmuch as their predecessorsin title have not been shown to have had any possession at all theirpiea failed.
Had Pullihamy and Punchi Menike been proved to have been inpossession it would have been competent for the defendant company totack on to their possession that of their predecessors for the purpose oftheir plea of prescription. But what they are now seeking to do is verydifferent. To the ‘ possession upon the title which they plead theyacquired from Pullihamy and Punchi Menike they are seeking to tack onpossession for a period of about 3 years prior to that acquisition byMr. Craib. The plea is materially different from that taken up in theanswer in which they ascribe their possession to the title they plead andseek to add to their own possession the prior possession of those underwhom they claim.
Whether a trespasser who after a few years’ possession acknowledgesa title in another obtains a conveyance from that other and possessedthreafter by virtue of that title for a further period of years can claimwhen he finds himself defeated on the question of title to tack on theperiod of possession he enjoyed before he acknowledged and acquiredthat title for the purpose of making up the period of 10 years’ possessionnecessary to the success of a plea of prescription is a question whichdoes not really arise since in any event the two periods have not in thiscase been proved to extend together to a date 10 years before action.There is this difference between the two periods of possession—the first wasmerely the possession of a trespasser, adverse to every body and withoutacknowledgment of title in any body, the second follows the acknowledg-ment of title in another and the acquisition of that title and the possessionthereafter is by virtue of that title. Whether the two periods togethercan be treated as one period of adverse and' uninterrupted possessionwithin the meaning of section 3 of Ordinance No. 22 of 1871 is a questionupon which I should prefer to reserve my opinion until a case arises inwhich it is necessary to decide the noint. In addition to the reasons
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GARVIN S.P.JCheiliah. v. Kuttapitiye Tea and Rubber Co.
given by me there is- the further difficulty that there is no evidence thatthe company was in existence in 1917. Indeed the District Judge saysthat Mr. Craib entered upon the land in 1917 in anticipation of the flota-tion of the company in 1918. Mr. Craib could not have been the agentof the company in 1917 if it did not come into existence till 1918 norcould the company have had possession for 10 years prior to December22, 1927. Even if it be assumed that Mr. Craib entered into possessionof the land in dispute in November, 1917, he was not the predecessor intitle of the company and such possession does not therefore avail thedefendant company.
There remains the alternative prayer of the defendant company forcompensation in respect of the plantations made by them. They claimthe rights of bona fide possessors. Mr. Craib in his evidence said “ WhenI opened the lands I believed that we were entitled to them”. Thisevidence given at the first trial has not been supplemented in any wayat the second trial. The grounds for this belief are not stated. On theother hand the evidence in the case shows that the company did notacquire the title they rely on until July, 1920, as to £ of these lands andSeptember, 1921, as to the other | share, Even their immediate prede-cessors to whom it is said money was advanced to make the purchasesdid not obtain their transfers till December, 1919. If, as they say, theselands were cleared “ about November, 1917,” and planted early in 1918it is impossible upon the evidence on record to understand how thecompany or its agents could possibly have believed that they wereentitled to them. The only possible conclusion is that these villagechenas were entered upon, cleared, and planted without any title at all.It may well be that there was always the intention of buying off any claim-ants who might appear and prove title to them but the defendant com-pany certainly had no title and Mr. Craib could not therefore have believedthat they were the owners.
There is the further fact that the company had notice of Kiri Menika’sclaim. Kiri Menika says “ I asked the defendant company not to clearthe lands ”. He said further “ I heard of the felling but did not know itwas my share. When I found it out I protested ; that was when thepolice came
A witness, Juwanissa, said “ I remember the lands being opened bydefendant company. Kiri Menika and the other villagers objected andthe police had to interfere; that was when Kiri Menika’s lands werecleared, a portion at a time ”. That this is substantially in accord withfact is proved by Mr. Craib who said “ There was no opposition to our open-ing up the land. I had to take the police there on- one occasion because wefeared trouble”. It is not surprising that these villagers were unable toassert their objections more vigorously. The company succeeded inbringing the police to the scene fearing that there would be trouble whenthey commenced felling and in resisting the attempt of Kiri Menika andother villagers to assert their rights to possession.
It is quite. impossible in these circumstances that the company or itsagent, if Mr. Craib was their agent, could have been under the honestbelief that they were entitled to these chenas when they proceeded toclear them and make these plantations. They were trespassers without
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any shadow or claim of title, they had notice of Kiri Menika’s claim andwere therefore rriala fide, possessors at the time.they cleared the landsand planted them and at least for two to two and half years thereafteruntil they acquired the title which it is possible they believed to be good.
Whatever their position may be after their purchases of 1920 and 1921I cannot see how it is possible to treat the possession prior thereto asother than mala fide. The plantation may be a useful but cannot beconsidered a necessary improvement, and it is settled law in Ceylon that amala fide possessor is not entitled to compensation for useful improvements.
For these reasons I would set aside the judgment under appeal anddirect that judgment be entered declaring the plaintiffs entitled to a halfshare of the premises described in the plaint with damages as agreed atRs. 50 a year and costs both here and in the Court below.
Jayewardene A.J.—I agree.
Appeal allowed.
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