COORAY v. THE CEYLON PARA RUBBER CO., LTD

088-NLR-NLR-V-23-COORAY-v.-THE-CEYLON-PARA-RUBBER-CO.,-LTD.pdf


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Present; Bertram C.J. and De Sampayo J.
COORAY v. THE CEYLON PARA RUBBER CO., LTD.
209 and 210—D. G. Ratnapura, 3,198.
Contempt of Court—False evidence—Witness should not be punishedwhile he is being examined—Proper time for punishing for<contempt of Court is after the dose of the case of the party callingwitness or of the whole case—Criminal Procedure Code, s. 440—Prescription—Possession of a portion of a large extent of jungle—Interpretation of deed—Donation—Provision that donees were notto claim any further rights—Is it effective disinherison f
The proper time for dealing with a witness under section 440of the Criminal Procedure Code for giving false evidence is afterthe conclusion of his own evidence mid after the close of the caseof the party who calls him, or of the whole case if the completionof the trial is likely to render more apparent the falsehood of anystatement.
Semble, where a person sold to another about 573 acres of jungleland, and the purchaser at once cleared the boundaries of theentire extent and treated the entire area as one corpus, butplanted only a portion of the land, the possession of the plantedportion may be taken to be possession of the whole.
A Kandyan having five sons and one daughter gifted to hisfive sons a property. The. daughter claimed a share by inheritanceto the exclusion of the sons, relying on a passage in the deed ofgift which was to the effect that “ no further rights with respectto my interest in the scud nindegama shall be claimed by (thedonees) after my death.9*
Query, whether thi« amounted to an effective disinherison ofthe donees.
f | THE facts are set out in the judgment of De Sampayo J.
Bawa, K.C. (with him Drieberg, K.C., and Schokman), fordefendant company, appellants.
A. St. V. Jayawardme, K.C. (with him Fonseka), for respondent.
Bawa, K.C. (with him Drieberg, K.C., and Schokman), for witness,appellant in No. 210.
May 15,1922. Bertram C.J.—
1 have read the judgments of De Sampayo J., both on this'appealand on the subsidiary appeal, and agree with his conclusions.
In spite of the finding of the learned District Judge I can haveno doubt that Tikiri Kumarihamy understood that she and herbrothers were disposing of the whole of their interest in the land to
14 An kpo
1922.
1922.
Brbkbam
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Cootay v.The QeytonPara BobberOo., Ltd.
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Mr. (Sark, and that she realized that possession of the whole landwas retained, and the subsequent clearing and planting operationswere undertaken on this footing. Under these circumstances,even though it subsequently transpired that she had an outstandinginterest (which, as it seems to me, could not have been more than1 /84th), and even though after the execution of the deed sheremained a part-owner in respect of this interest, the possessionof those claiming through Mr. Clark must be considered adversepossession, and adverse with respect of the whole area which theparties to the deed had in contemplation.
I would, therefore, concur in the decree proposed by my brotherDe Sampayo on both appeals.
8. C. No. m.
Db Sampayo J.—
Many questions were discussed at the argument of this appeal,but I think the decision on one issue will dispose of the whole case.It is necessary, however, to state the facts at some length in orderto understand the dispute. The plaintiff N. K. Cooray has broughtthis action to vindicate 13/112 shares of certain lands included inthe Dela nindegama comprising several hundred acres of land.The nindegama belonged to two brothers—Loku Bandara aliasLoku Nilame and Punchi Bandara alias Heen Nilame. Theelder brother Loku Nilame was married to Elapata Kumarihamy,and had by her two children Loku Bandara and Tikiri Bandara,and then the younger brother Heen Nilame joined him as associatedhusband of Elapata Kumarihamy. By this association there werefour children bom, namely, Medduma Bandara, Punchi Bandara,Kuda Bandara, and Dingiri Bandara. About the year 1870Loku Nilame died, and thereafter Heen Nilame had two morechildren, namely, Podi Bandara and Tikiri Kumarihamy. It iscertain deeds granted by the last named for her interest in thelands in question that have led to the present dispute. LokuNilame’s half share of the nindegama was inherited by the firstsix children, that is to say, the two children bom to him solelyand the four children of the associated marriage. As regards thehalf share of Heen Nilame, he, by two deeds of gift dated December18, 1896, and November 6, 19(H), donated l/16th share to each ofthe four associated children, namely, Medduma Bandara, PunchiBandara, Kuda Bandara, Dingiri Bandara, and 1 /16th share tohis son Podi Bandara. Farther, Heen Nilame, byidsdeedNo. 13,922dated March 10,1904, purported to sell 1 /16th share to his daughter,the said Tikiri Kumarihamy. By deed dated August 28, 1907,executed in the circumstances which will be presently mentioned,Tikiri Kumarihamy sold l/14th share to the defendant company'spredecessor in title, Mr. P. D. 6. Clark, but notwithstanding that
deed Tikiri Kumarihamy by another deed dated May 7, 1918,purported to sell 13/112 share to the plaintiff on the footing thatshe was entitled to l/8th share by inheritance from Heen Nilamewho had died intestate in November, 1904, and to l/16th shareby purchase upon the above deed No. 13,922, and that after deduct-ing the l/14th share, which she had sold to Mr. Clark, she wasstill entitled to 13/112 share. This is the foundation of the plaintiff’sclaim in this action. But it will be observed that the l/8th sharewhich had remained undisposed of by Heen Nilame would, underordinary circumstances, have been inherited not by Tikiri Kumari-hamy alone, but by all the six children, and Tikiri Kumarihamy’sinherited share would have been only l/84th share. But in assert-ing title to the whole 1/8 share by inheritance, she appears to haverelied on a provision in Heen Nilame’s deeds of gift in favour ofhis five sons, to the effect that “ no further rights with respect tomy interest in the said nindegama shall be claimed by (the donees)after my death.” It is to me very doubtful whether this amountsto an effective disinherison of the donees, but, in view of thepoint on which the case turns, it is unnecessary to consider thisquestion.
The title of the defendant company to the entirety of the lands,so far as the claim is made under the members of the Dela family,is as follows: Heen Nilame by deed of agreement dated November20, 1896, that is to say, before the dates of the deeds in favour ofhis six children, agreed with Mr. P. D. 6. Clark to sell to him hisinterest in the chena lands of the said nindegama at the rate ofRs. 15 per acre, after a survey shall have been made, within twelvemonths of the date of the agreement, and received in advanceRs. 3,000 to secure which he granted a special mortgage to Mr.Clark. After Heen Nilame’s death, his six children carried outhis agreement with Mr. dark as follows: A survey was made bySurveyor Balasooriya on January 28,1906, and the entire land aspointed out to him was found to contain 710 acres 2 roods and14 perches, but excluding certain extents belonging to the pangu-karayas or tenants and to the Crown, the bandara lands availablefor sale were ascertained to be 573 acres 2 roods and 37 perches.By deed dated July 20,1907, Medduma Bandara, Punchi Bandara,Kuda Bandara, Dingiri Bandara, and Podi Bandara sold 13/14shares of the above extent of land to Mr. dark. A proportionateshare of the Rs. 3,000 paid in advance to Heen Nilame being takeninto account, the consideration paid on this deed was Rs. 7,989a 35.Similarly, by deed dated August 28, 1907, Tikiri Kumarihamysold the remaining l/14th share to Mr. dark for the considerationof Rs. 614*69J. In connection with the negotiations betweenMr. dark and his vendors, which took {dace at the family houseat Dela, it would seem that the latter agreed among themselvesto ignore the deeds given by Heen Nilame. The District Judge
1922.
Db SaupatoJ.
CoorayThe CeylonPara Rubber
Co., Ltd.
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1922. doubts whether Tikiri Kumarihamy would personally have takenDa Sampavo P*1* ^ese negotiations, but Mr. dark’s evidence is definite
J.on that point, though he admits that Medduma Bandara was theOoorayvspokesman. He says that there were conferences at Dela
The Oeylon Walauwa, and that the subsequent deeds in his favour were inR^er accordance with what was then agreed upon by all the parties.
*’ I have no reason to think that this evidence is false Or mistaken.Mr. dark purchased with the view of selling the lands again to thedefendant company, and I cannot conceive that Mr. dark whohas been described as a shrewd man of business would not havetaken care to secure the consent of all the parties concerned and tosee that the entire land was conveyed to him. Moreover, he wasanxious to know in what proportion the parties were to bear theadvance of Rs. 3,000, and it was natural for him to discuss thequestion of shares with, all the members of the family whom heknew very well personally. He entered into an agreement withthe defendant company on December 3,1907, and put the companyin actual possession of the land, and subsequently formally con-veyed it by deed on January 17,1910. It is true that Tikiri Kumari-hamy gave a separate deed to Mr. dark executed* not at Dcla, butat Balangoda. After her marriage which was in diga, her homeappears to have been at Balangoda, and the probabilities are thatshe returned home soon after the conferences at Dela withoutwaiting for the execution of any deed there. As a matter of fact,Mr. dark says that she was expected to join in the deed with herbrothers, but as she was not there at the time a separate deed wassubsequently obtained from her. The fraction l/14th wouldappear to be explainable in this way. There were altogethereight children of the two brothers Loku Nilame and Heen Nilameand one had died, and as Tikiri Kumarihamy and her brotherPodi Bandara were children of Heen Nilame alone, each of themwas considered to be entitled only tQ 1/7 of 1/2 or l/14th share, andthe remainder to belong to the other members of the family. Theform of Tikiri Kumarihamy’s deed and all the circumstancesindicate that she intended to convey to Mr. Clark her wholeinterest in the land, whatever it was, and that the fact of her havingany further share after her sale to Mr. Clark was a much later dis-covery probably due to Cooray, the plaintiff. It is possible that,as she says, she questioned Medduma Bandara why she was madeto sell only l/14th share, and was assured that he would “ settleand give her the remaining shares.” That assurance, if in factgiven, can only mean that Medduma Bandara undertook somepersonal responsibility, but Tikiri Kumarihamy’s own evidencemakes it sufficiently clear that she knew that between her and herbrothers the whole land was being sold to Mr. Clark. In thisconnection it is noticeable that, though the defendant companyentered upon the whole land at once, and by the year 1909 the
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entire acreage was converted into a robber estate, she made nosign, and only sold her alleged remaining shares to the plaintiffin May, 191fi.
1922.
Db Saupavo
J.There was a question as to whether some of the lots comprisedin the area sold to Mr. Clark were not tenants’ holdings, and not TheOeyUmbandara lands to which, therefore, the plaintiff could not claim!title under Tikiri Kumarihamy. The defendant company also °‘*set up title upon a Grown grant issued in connection with certainWaste Lands proceedings. This was pnmd facie a good sourceof title with regard to chenas in the Kandyan Provinces, but theplaintiff sought to meet it by relying on a saunas in favour of theDela family. The Grown appears to impeach the saunas as aforgery, but the matter could not be fully investigated, as onlya copy of the saunas was produced. But if the defendant company’splea of prescription is upheld, none of these other questions needbe gone into.
On the issue of prescription I am distinctly of opinion that thedecision should be in favour of the defendant company. TheDistrict Judge has upheld the prescriptive title of the defendantcompany to the lower portion which was planted with rubber in1907 and which forms the larger portion of the area in dispute, buthas not similarly upheld the claim with regard to the upper portionconsisting of about 130 acres, which was not opened till 1909, andhe has accordingly declared the plaintiff entitled to 13/112 of thatportion. The boundaries of the entire extent were cleared byMr. Clark on purchasing the land, and it is certain that Mir. Bridge,manager of the estate under the defendant company, whose evidencehas been generally accepted by the District Judge, from the begin-ning treated the entire area as one corpus, under suph circum-stances that possession of part must be taken to be possession ofthe whole. Moreover, rights of ownership were exercised evenbefore 1909 over the upper portion by acts of possession such ascutting apd taking timber and sticks, and I think that the defendant
company’s claim by prescription in respect of the entire area,including the upper portion, is well founded. It was contended,however, that Tikiri Kumarihamy was a co-owner, and that thedefendant company’s possession was on her behalf also. But if,as I hold, Tikiri Kumarihamy, when she sold l/14th share toMr. Clark, thought that she was disposing of her whole interestin the land, or at a^. events if she knew, as it must be concludedshe did, that oh the strength of the sales by her and her brothersMr. Clark and the defendant company considered the entire landto have been acquired and entered into and continued in possessionon that footing, and if notwithstanding that knowledge she allowedthem so to possess the land exclusively, the circumstances amountedto something in the nature of an ouster of Tikiri Kumarihamy, and
the possession became at once adverse to her. For . this reasofiL.
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1322. also the plaintiff’s cross notice of appeal from the judgment of the_ “—District Judge so far as it rejects his claim to the power portion
j. of the land is bound to fail.
Oooray «.^ °P^on the defendant company’s appeal must be allowed,
The Oeylon and the plaintiff’s action dismissed in its entirety, with costs^ ®ourfcs» and the plaintiff’s cross notice of appeal mustlikewise be dismissed.
8. C. No. 210.
Db Sampayo J.^—
This is an appeal taken by the witness Kuda Bandara from anorder sentencing him to pay a fine of Rs. 60 as for contempt ofCourt under section 440 of the Criminal Procedure Code. Theappellant was called as a witness by the defendant company, andin the course of his cross-examination he said with reference toHeen Nilame’s deed of gift : “ We showed the deed of gift toMr. dark himself. I cannot say why he should deny it. No, thedeed was with my brother Medduma Bandara, and he might haveshown, I do not know whether it was shown or not.” TheDistrict Judge here noted at once that the witness gave falseevidence in saying “ we showed that deed to Mr. Clark himself,”and then saying " I don’t know whether it was shown or not.”The answer one way or the other was not material to the case, andit is obvious that the witness did not intend to mislead or deceivethe Court, nor does the District Judge state that the witness hadany such intention. On being called upon to show cause why heshould not be punished for contempt of Court, the witness statedsomewhat pathetically “ I have forgotten.” I am not surprisedthat the man forgot or .had no clear recollection of one small detailof a transaction which took place thirteen years before, and whichaccording to the District Judge himself was carried through by hisbrother Medduma Bandara. I think either the appellant’s expla-nation should have been accepted, or the matter should have beenoverlooked as not worth noticing. The proceeding has, however,a serious aspect about which I wish to add a word. Theappellantwas dealt with for contempt of Court, while he was still underexamination and before the conclusion of the case of the defendantcompany which had called him. In my opinion, a proceedingsuch as this is apt to intimidate the witness with regard to therest of his evidence, and other witnesses who are still to be called,and generally to prejudice the course of justice. Section 440 ofthe Criminal Procedure Code no doubt provides that it shall belawful for the Court to sentence a witness “ summarily.” Butthat expression refers not to the time at which a witness should bedealt with, but to the nature of the proceedings. I think it shouldbe laid down, as a general rule, that the proper time for dealing
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with a witness under section 440 is after the conclusion of his ownevidence, and after the close of the case of the party who oaHs himor of the whole case if the completion of the trial is likely to rendermore apparent the falsehood of any statement.
The order appealed from should, in my opinion, be set aside.
Appeal allowed.

1922.
-DB SiUPiTO
J.
Oooray v.The CeylonPara RubberCo., Lid.