COREA v. APPUHAMY et al

017-NLR-NLR-V-15-COREA-v.-APPUHAMY-et-al.pdf


( 65 )
[Pbivy Council.]
Present: Lord MacNaghten, Lord Mersey, and Lord Bobson.COBEA v. APPUHAMY et alD.G. Chilaw, 3,934.
Prescription—Possession by one co-heir enufes to the benefit of the otherco-heirs—Adverse possession.
Possession by a co-heir enures to the benefit of his co-heirs.
A co-owner’s possession is in law the possession of his co-owners.It is qot possible for him to put an end to that possession by anysecret intention in his mind. Nothing short of ouster or some-thing equivalent to ouster could bring about that result.
The whole law of limitation is’ now contained in Ordinance No. 22of 1871.
T
HE faots cf this case are fully set out in the judgment of theHistrict Judge {T. W. Boberts, Esq.): —
The plaintiff in the present action seeks a partition of' the fifteenlands mentioned in the schedule attached to his plaint on the strength ofhis purchase in 1907 of two-thirds share thereof from Balahami and hertwo nieces, Allina and Nonnohami.
The plaintiff and his vendors say that they were at the date of transferunder the impression that Balahami had married after the MatrimonialOrdinance, and that herchildren hadnot on their father'sdeath become
entitled to any part of Bal&hami’s share. It subsequently turned out,however, that Balahami‘s marriage was dated before 1876, and was incommunity of property. So hertwo. children have intervened, and
claimed each one-third part of one-half of the share to which Balahamiwas entitled. Their claim is admitted by the plaintiff.
In another point, too, the facts stated in the plaint are not accurate.Therein all fifteen landsare assertedto have formed partofthe estate
of one Elias, and so onhis death tohave devolved in partonhis sister
Balahami and nieces and nephews above mentioned. It was asserted,however, at the trial that certain of these lands never formed part ofElias’s estate, and plaintiff thereupon disclaimed title to such of thoselands as, may appear on the title deeds to have been bought originally inthe name, not of Elias, but of first defendant, Iseris.
The lands in question form a large and valuable estate of over onehundred acres, mostly now in. full bearing. The title deeds thereto, onwhich both the contesting parties rely, convey title to one Elias. Eliasdied in 1878. Since thatdate all thelands have been in theoccupation
of the contesting defendant-, Iseris, the brother of Elias.
The plaintiff's vendors allege title by inheritance- from Elias. Theysay that Elias was a man from Baddegama, which is situated in theGalle District, 120 miles distance from Chilaw; that he migrated, andmade a large fortune in Chilaw District and died here. Their case isthat Elias was one of a numerous family, and had one brother, the first3J. N A 99413 (8/50)
1911.
Corea v.
Appuhamy
( 66 )
defendant, Iseris, and three sisters, Babahami, Balah&mi, and Bin-natcho,Babahami,accordingtothe plaint,died childless.Balahami
married,had threechildren(theintervenients)byher firsthusband,
and another child,a bastard,by her secondconsort. She is stillalive.
Sinnatcho died in Galle District, leaving two daughters, Allina andNonno.
The plaintiffled evidence toshow that after thedeath ofElias
Balahami came to Ghilaw District with her children and her second. consort to seekher patrimony onreceipt of news thatElias haddied
and left a big estate; that some years thereafter Sinnatcho’s husbandand children alsomigrated to this district;and that both havethere-after allowed firstdefendant,Iseris, . as thechief male member oftheir
family, to manage and possess their estate.. They say that during thethirty years since their migration the first defendant, Iseris, had up to1907 all alongacknowledged theirtitle as his co-heirs,and madethem
continual advancesof moneyand provisionspending final settlement . of
the estate. They allege that Iseris deceived them into the belief thathehad takenoutadministration, and had to pay alldebtsbefore the
property could be divided among the heirs.
To all this Iseris gives a total denial. He says that he was partnerwith Elias, and that on Elias's death he took possession of the estate ashisown, andhasall alongpossessed it as such.Hedeniesthe allega-tions as tohis kinshipwith plaintiff’s vendors, and sbys theyare his
cousins. Duringhisde facto possessionfor thirtyyears he has planted
and leased, mortgaged, and sold various of the' lands, and generally dealtwith them as owner. He has, he says, been frequently liberal to hiscousins, andallowed Balahami to live on one ofthe lands inquestion.
■But he deniesthathe thereby acknowledged their title, andsays that
what he did wag simply matter of charity.
The issuesas to thepedigree and as to Iseris'salleged partnership with
Elias need not detain us long.
As to the pedigree, there is a considerable resemblance in physiog-nomy between Iseris and Balahami; and two witnesses from Baddegama,of a goodlyage, havetestified that the plaintiff’saccount of thepedigree
is the truth.Their depositions, itis true,displayed awonderful
accuracy of memory in regard to the names of. many members of Elias’sfamily. _ Such accuracy in nomenclature could, in Sinhalese village folk,only be the result ofcareful preparation.But thedrilling required
toproducethatexactitudemay have beentheirowneffort. My
impression, onthewhole, was thatthese twowere honestwitnesses,
and their statement is confirmed by facial resemblance above noted. Ishould have accepted thatevidence, evenif ithad stoodalone.As it is,
the plaintiffhasalso fileda number of olaextracts ofregistration,
which conclusively prove the . pedigree of his vendors. I accordinglyfind for plaintiff on issues 4, 5, 6, and 8.
Similarly, I have no hesitation in finding for plaintiff on issue 10. Theonly proof that the title deeds, which stand in the name of Elias,represent purchases with partnership money, consists • in the ipseof Iseris. How, Iseris’s evidence ' is deeply interested, and worthlesson that ground alone. Moreover, Iserisis aconvictedforgerand thief.
And his deposition inthe presentcase directlyandcategorically
contradicts on every possible point the evidence which he gave in D. C.Chilaw, No. 3,865.
mi
( W )
On the mere statement of such a witness, expert ~nofc only' in crime
and incarceration, but alsoinperjury, I am tootpreparedto find any Corea r.*
fact proved in the absence of their corroboration aliunde. On the AppuHamycontrary, I shall take steps to prosecute him for his perjury.
There remains the crux ' of the case, a the question of prescription.
Iserishas admittedly had dc facto possession for practically thirty
years, and it has to be decided whether that was precarious possessionor possession on an adverse and independent title.
The law on this point was exhaustively discussed by the plaintiff’sproctor, but I find myself unable to agree with much of his argument,endita as it was.
He argued, firstly—andthismuch, it seemstome,was clearly
sound—that no length of precarious possession, even if unaccompaniedbypaymentofrent orother such acknowledgment, canfounda valid
prescriptive, title. Further, non-enjoyment, for however long continued,willnotbyitself destorytitletopropertyprecariouslypossessedby
another.
To that extent it is manifest that the finding of the Privy Council inNagudu Marikar v. Mohamadu 1 has over-ruled the decision reported at:Vanderstraaten 44. But the plaintiff’s argument went further. Mr. C. A.
Corea contended also thatonthe over-ruling ofthedecision reported
inVenderstraaten 44 thelaw revertedto its conditionasit stood under
the more ancientdecision to befound inMorgan's Digest21and273.
Now, thisis clearly not thefact.While the PrivyCouncil in Nagudu
Marikar v.Mohamadu did in factover-rule anyprevious decisions in so
faras theymay have held thataprecariouspossessionmay givea
prescriptivetitle*itover-ruled nothing else, andnowhere hasruled that
the law of prescription isnowthe law laid down inthejudgment in –
Morgan's Digest, at page 273.
Ifthetwodecisions beexamined,it will*be foundthat theyare
profoundlyat variance. Whatwasheld in NaguduMarikar t. Moha-
maduwasthat noteven centuries of precarious possessionwill found a
valid prescriptivetitle. Whereasinthedecision reportedinMorgan's
Digest3 it is clearly implied that thirty years’ precarious possession willfoundandcreate avalid title. Thetwo decisions are therefore directly
atvarianceonthat point,and it is a contradiction interms tosay that
the later re-establishes the earlier.
Again, itis nowsettled law that since the Ordinanceof 1871 the
Roman-Dutch lawof prescriptionhasbeensuperseded {vide1 N. L.R.
200). Thiswasadecision of theFull Court, and thereare others.
Thereis nothiug inNagudu Matrikarv. Mohamadu whichover-rules this.
Butwiththisview' of thelaw itisimpossible'to reconcile the decisipn-
reported inMorgan'sDigest. Thelatter supportsand defends the
Roman-Dutch law, .the common law as it stood. Among other things, itdecides thataprecariouspossessor, in order to obtainagoodtitle by
prescription, must transform the character of his possession, not merelyinto an adverse possession, but into, an adverse possession based on ahone fidetitle.Italso recognizesthe distinctions- betweenprescription
longi andlongissuru temporis.But -our present lawrecognizes none' .of
these distinctions.Under the decisionreported at 1 N. L.R.200jand
under manyothers andclearlyunderthe words of 'thestatute, it matters
i {1003) 7 N. L. R. 91.
10-
( 68 )
1911.not whether the prescriptive possession commences with a bona fidetitle
Oorta vor ot^erw'ae- What is required, and all • that is required, is thatthere
Appuhamyfihould be proof of ten years’ unbroken possession, or an adverseand
independent title.It makesnodifference whether the titlebejustor
unjust,. It is necessary only that it should be adverse and independent.
To interpret the word“ title " inthestatute as meaningonly a
juetustitulus iaunwarrantably to importintoit a meaning whichis
not there. It is as if one were to agree that the abstract word ' ‘ colour "does not mean any colour but only blue, or .the word “ triangle ” refersonly to the isosceles and not te the scalene variety.
The law is, therefore, that one co-heir, so long as he possesses theproperty precariously ona-derivativeordependent title (which involves
acknowledgmentofthe title ofthe otherco-heirs), cannotby such
possession prescribe againsthisco-heirs.It ig not true thathecan
never, under any circumstances,prescribe againstthem.If heeets up
an adverse title,and byovertacts to the knowledge ofhisco-heirs
defies their title and disclaims the precarious character of his possession,and . thereafter ’ has the uninterrupted possession on such adverse title . for'ten years without paymentof rentorother acknowledgmentof their
collateral title,hewill therebyacquire agood prescriptivetitle. To
hold otherwise would be to encourage the careless in his lack of care andthe fool in hisfolly, itwouldenableindolent co-parcenerstorelyon
their own laches andoustinnocentpurchasers for value of apparently
goodprescriptivetitles. The numbers ofsuchpurchasers are greatin
Ceylon, and the view of thelaw whichMr.Coreaadvocated would
amount to a social revolution.
The burden, therefore, lay onplaintiff toprovethatIseris’spossession
began or went on in a precarious or permissive character. If he did sohe would shift the burden on toIseris, whowouldhaveto provehow and
when he converted this dependent .character of his title into one ofindependence.
I have come to the conclusion that plaintiff has wholly failed to provethat Iseris's possession either began or went on in a precarious character.He has equally failedto account fora long seriesofovertacts ut
dominus on Iseris'spart, whichwouldlong ago havetransformedthe
character of big possession fromprecarious to adverse,1if it hadever
stood in need of such change. I have summarized above the explanationwhichthe plaintiff's, vendorsgave ofthelong occupationbyIseris.
When we come toconsider the proofof that .story,its paucityand
weakness are strikingly apparent.
Practically the only proof that Iserispossessed, notasownerbut as
agent for his coheirs,consists of .theevidence of thoseco-heirs. Their
word deserves littlecredence. They arepersons neither of worthnor
position. They stand towin or lose on this litigationalargesum, in
each case running intoover Bs. 1,000.With so largeastakeinvolved,
it iscertainthatpersonsof their sort and position will deposeto almost
any 1falsehood. But Iconsider at lengththeir counsel sargument
on the facts, because the property involved is very large.
Mr.Corea appears to haverecognizedthathis evidence onthematter
of possessionwasslender,and attempted byhis argument toshow that
theevidenceforplaintiffwag supported bythe balance ofprobability.
H# set out, in the first place, to prove that Iseris had, on his brothers
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death, taken out administration, and then got the record of administra-tion proceedingsdestroyedto coveruphis track.Sow, the record is
lost, and Iseris has, by document D 87, clearly demonstrated that hecomplained to His Excellency the Governor of its loss and of othermatter, and that on hiscomplaintthirty years ago a recordkeeper of
this Court wasdismissed.If Iserighadwished todestroy it, and had
got it destroyed, why should he complain of its loss? And why should(he Governmentof Ceylonhave onthat complaintdismissed the record-
keeper? Thesefacts are irreconcilable withthe suggestion that Iseris
procured its destruction. That suggestionis evidently the merest
verbiage.
The proofof administration havingbeentakenoutby Iseris -isdefec-
tive, and consists chiefly of a dubitant recollection of Mr. Cooke's, ofthe general belief in and aronnd Galmuruwa, and of hearsay. It seemsto me that theproof of that .hasfailed, and so I findon thatissue. The
argument of plaintiff's proctor was to the following • effect. Migrationsof Sinhaleseto distant districts arerare,andnevermadewithoutgood
reason. Theonly reason why Balahamiandherniecescouldhave
come to this district, he contended,wasthattheywereseekingtheir
share ofElias’slarge estate.Havingsocome,' theywould,he urged, be
sure todemandthat share,a ml didsodemand it.If Iseris hadthen
refused, litigation would have been, it was argued, sure to have begunat once. Therefore, Iseris must, as theysay,have admitted their
claim, and entered on and thereafter continued his possession in thedependent titleofmanager forhis femalerelatives.Thereafter, it was
natural, and in accord with Sinhalese customs, that they should allowhim to manageashe pleased, asit was notinconsistent withhis position
that he should give out the lands on planting agreements- and leases,and mortgage them to meet expenses. His sales were matter which theydid notknow or understandto be salesof their shares. Itwill beseen
at oncethat this agreement beginswith a daringpetit inpriiwipii,and
continues alongaroad liberallypaved withexamples of thefallacy of
non sequitur.
In the first place, it is not true .that the only reason why Balahamiaud then Siuuatcho's children should have migrated was that theycame to demandshare of Elias's estate.Anynumber of equally natural
reasons are' possible and conceivable. It may have been that Bala-hami found her own village uncomfortable after her illicitrelations
withher second .consort. It mayhave been, andthis wasprobably the
case,that they migrated in thesimple hope ofcharity or employment.
With kinsfolk at the end of the journey, such migrations arc not in theleast uncommon, because the people of Ceylon invariably show the mostadmirable libertyto any of their .kinsfolk, atleast any with whomthey
have not quarrelled. The assertion that the object of their migrationmust have beento demand a share oftheir dead . brother s estatewas
thecoping stone of the wholeargument. Thatassertionis uot fact,
and consequentlythe whole argument crumblesaway. Not only is itnot
true, there is on the record proof of facts which clearly apd firmly negativethat suggestion.It is admitted that 'Sinnatcho's children didnot
migrate till some years after Balahami. But if the reason for migrationhadbeen to enter on the estateof Elias, whichthey sayhad devolved
on them, it would have been most natural that they should migratesimultaneously, or at any rate in quick succession- one after the other.
1M1.
Corea v.Appyhamy
1911.
Corfu v.
Appuhamy
( 70 )
Again, it appearsfromthe admission of plaintiff's ownwitnessthat
Elias’s other Sister, Babahami, (lid not die childless, as the. plaint aversshe did.Sheleftfourchildrenat her death. Neithershe norher
children, however, have evermigrated.Now, ifthestatement of
Balahamihadbeentrue,and ifon the death of Elias Iseris hadap-
prised his kinsfolk in Baddegama of that death, and their consequenttitle to Elias's estate, we maybe sure,with thesamecertaintywith
which we know that 2 plus 2 makes 4, that Balahami and. the familywould not have left that fortune, which awaited them, to go a-begging.It is, therefore, beyond doubtthatBalahami’sevidence as tothe object
of her migration is totally false.
In thenextplace, it is clear,since Iseris is not shownto havebeen
administrator, that at the date of his entry on Elias’s estate he did notask,nor needto ask.the consent of his sisters.Elias diedin, 1878.
Iseris came out of jail at the end of that year, or in 1879. Balahami,if we accept her own evidence as given in 8,855, migrated five years afterher father died, and she was thirty or thirty-five years old when, her fatherdied.She wagbora in1850. It follows that shewas aboutthirty-five
when she migrated, and that fixes the date of migration at 1885,but almost certainly not earlier. Therefore, Iseris had had seven years’possession before Balahami appeared on the scene.
In the third place, supposing for the sake of argument that the objectof her migration wag to claimshareof Elias’sestate, and thatshe did so
claim it, it does not in theleastfollow thatIseris admittedher claim.
She was a new arrival, and poor. Isons was a criminal, and had in hispossession the title deeds. Looking at his unsavoury past, it is in-finitely more probable that be.didnot admither claim. Hi'sinterest in
the law' as to co-heirs was probably slight. It is far more natural tosuppose that bis entry on the estate of Elias and his continuance thereinwas based on nothing else than the ancient doctrine that he should takewho can, and he should keep who has the- power.
That being so. supposing Balahami had demanded share of the estateand Iseris had refused, it isnotclear whylitigation shouldfollow. He
had seven years’ possessionbehind him. Ho. had the titledeeds. He
had the money. Balahami had nothing;whatis more likely than, that
•he acceptedhis bountyanddropped her* claim?Shewould buy her
claim in those circumstances? Howcould shefighttheclaimherself?
That is a double non seijuitm, then, when it was argued that Balahamimust have demanded her share ofthe estateandmust, havegot it.
These things were neither necessaiy nor probable.
Continuing further,the extraordinarytemerity of the argumentand
evidence forplaintiff revealsitself 'yet more glaringly. According to
Balahami—ami the remark applies, mutatis mutandis, to her nieces—she■owned' one-third share ofthe estate,andIserisadmitted that. On
Iseris’s estimate in his deed of gift the property is worth Rs. 70,000. OnBalahami’s statement, of thevalue, Its.80,000thirtyyears ago. Accord-
ing to her present estimate of the crop (100,000 coconuts at a plucking),it yields anincome ofIts.24,000per annum,andmust bo worth
Rs. 240.000. Much of it has beenin bearingformanyyears.At the
lowest estimate her share ofthe incomefor the lasttwenty years ought)
tohave been Bs. 3,000perannum. Nevertheless, shecomes intoCourt
inthe garb of poverty.She-has admittedly remainedpoor, whileIseris
bus been rich. She busgivenher sons and niecesinmarriage without
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portions. She has lived on Ks. 200 per annum. though the incomeshould have been Bs. 3,000, and had never complained about it. Oneof the husbands of her nieces said that he used to come and get Bs. 50or Bs. GO every other month from Iseris. Yet he, too, showed no signs ofwealth. On his statement of income andexpenditure heought tohave
now in his possessionBs. 3.000 orBs. 500 cash.He hasnot got it, and
says he spent it on vedaralas. To do so would take him over a century -1 have no doubt that his statement was false.
Finally,Balahiuni and the rest wish meto . believe thatforthirtyyears
they have believed Iseris's statement that he was still administering theestate, though they received no notices as heirs, and that they never'suspectedhis intentions during that longperiod, thoughhehasleased
afid mortgaged thelands, Sinhalesevillagersmay beignorant, bur
theyarenot- stupid in this degree. Thewhole story,as the vendors to-
plaintiff told it, appears to me be not only improbable, but hopelessly. incredible.I am of opinion that Iseris's possession beganaudweut
on in defiance. He ejected the official receivers, and be ejected themistress of Elias. Hecontinued inalong seriesof overtacts, of which
Balahaxtii and his nieces were probably well aware, to .lease, mortgagesell,«idplant, and otherwise dispose ofthe propertyas its sole owner.
As he had entered inthe characterofsole heir or plunderer, whichever it
was,sohe continued, and acknowledgedno title inany one else. He
has acquired a good prescriptive title.
Theplaintiff'scasemust thereforefail, evenif consideredonly as an
action in rei vindications. As an action for partition it would fail evenif his case hadbeen true,because onhiswitnesses’evidencecertain of
(he • co-heirs.viz.,Babahami’sdescendants. remain unjoined.and
because, doubtless, in the long list of lands, many of which plaintiff andhis witnesses admittedly know little or nothing about, there are doubt-less some to which other strangers have or claim title; as, for instance,,some of the persons who have planted them up. Plaintiff has not proveda title as against the world, even if all the witnesses’ evidence is true.
I have todiscussyet anotherpoint, riaintiffs purchase wascriti-
cized (1) as* a speculative purchase, (*2) as unprofessional conduct anddishonourableconduct.With thefirst criticism I agree. Thedeed
recitesa considerationof Bs. 18,000as receivedbefore itsexecution. In
fact, plaintiff andhis vendorsadmit thatthewhole hasnot yetbeen paid.
Up todate thevendors have receivedabout Bs.8,000, partly and mostly
in cash, and partly in rice, kurakkan, legal advice, and such curiousthough valuable equivalents of the solid rupee. For the payment of theunpaid balance the vendors obtained no security. The plaintiff wasaware that bis purchase wasof a disputedtitle, andthat* becould not
lay his grasp onwhat he bought exceptbyprocess ofexpensive litigation..
Certainly it was a speculative purchase.
It does not follow that it was dishonest, and Mr. Bawa in arguing at-one and the same time that the purchase was a speculative purchase of abad title, and also that the purchaser behaved unprofessionally in taking*from his clients credit for the large., unpaid balance, clearly fell into thefallacyknown totheschoolmen underthe nameof cirouhisin arguendo.
If the purchase was a speculative purchase of a bad title, the vendorshave lost nothing, but gained considerably at the expense of their legaladviser. In * that there was no dishonour. They, i.e., the vendors,confirm plaintiff’s statement that he has paid them Bs. 8.000 of the-
1®J1.
Corefrtr.
Appufutpiy
1911.
Corea v.
Appuhamy
( 72 )
consideration, and they make no complaint against him. It wasargued that plaintiff's statement as to payment should be disbelieved.Reference was made tohis yivaciouspast inthe matterof litigationand
to his cases with the present defendant. While, however, it is true thatplaintiffis addicted tothe habitof buying disputedtitles, andhas
consequently been involved in plenty of litigation, both, criminal and civil,he has never been found to hare done anything dishonest or dishonour-able. The criticism directed against him in the Privy Council decisionin Corea v. Pier is' bore reference to a case wrongly laid in Chilaw Court,but was based on a misapprehension of fact. And what is mostmaterial of-all,the defendantin thepresentcase oughteasilyto have
been able to show, if he seriously thought so. that the plaintiff has notpaid Rs. 8,000 to his vendors. If in fact he’ has not paid that sum, hisvendorsdoubtless havenot got itin theirpossession,and wouldpro-
bably have been unable to explain where it has gone to if they hadbeencross-examined onthatpoint. Theywere not socross-examined,
and Iconclude that defendant didnot atall firmlybelieve thatthat
sum had not been paid.
Anyway, the plaintiff is anadvocateof this Courtandagentleman of
wealth and position. His demeanour in the witness box was perfectlyhonest. Nor do I see any good reason, either in this case or in his somewhat livelyandlitigous past,why Ishouldbelievehimtobeanything
but an entirely truthful witness. I cannot tuen agree that he hasswindled his clients, or sought to 'deal withthem improperlyinomitting
to secure them the unpaid balance of the consideration in the deed. Headmits he owes that still. If he had denied it his conduct would havebeenunprofessional. Iftheirshad been agood title, thesamecriticism
may' perhaps have applied. In fact, it was a bad title; and his clientshavegained Bs. 8,000at his expense. Itis certainly amatterof sur-
prise that an advocate should indulge in'" such purchases of disputedtitles. Such is not, I am sure, the ideal; nor, as I believe, or ratherhope, the practice of hisprofession. But atthe same timeitdoes not
appear that plaintiff had done anything dishonourable.
. For the reasons given above, the plaintiff’s action must be . dismissedwith costs. I refrain frommaking an orderthat he should pay double
costs,because, while Iamanxious to discourage gambling inpurchase
of' title to land and theapplication of thePartition' Ordinanceto such,
the plaintiffhassuffered enoughin hisloss ordamageof lossofRs. 8,000.
Plaintiff appealed.
H. A. Jayewardene (with him Chi'tty), for the appellant.
Bawa (with him Wadsworth), for the respondent.
The following judgement was delivered by the Supreme Court: —
May 26, 1910. Hutchinson C.J.—
This action was brought for partition of certain lands whfch theplaintiff alleged had been the property of Elias Appuhamy, whodied unmarried and intestate in 1878 possessed of the said lands;and the plaintiff claimed an undivided share by purchase from someof the heirs of Elias. The first defendant, Iseris, denied the! plaintiff’s
i (1909) 13 N. L. R. 147.
( 73 )
claim; he alleged that some of the lands were bought in the name ofElias with the money of Iseris and Elias, and that others of themwere partly bought in the name of Elias with the money of Iseris andElias, and partly bought by Iseris after Elias's death; and he said thaton the death of Elias he, as Elias’s sole heir, entered into possession ofall the lands, and has been in undisturbed and uninterrupted posses-sion of them for ten years by a title adverse to and independent ofthe plaintiff and all others. The District Court held that Iserishad acquired a title by prescription, and dismissed the action.
The contest is as to whether Iseris has proved his prescriptivetitle. The appellant contends that the District Judge went wrongin thinking that, when it was once proved that Iseris had had defacto possession for more than ten years, the burden lay on theplaintiff to prove that Iseris’s possession began or went on in a“ precarious ” or permissive character; he contends that if the Judgehad not made that mistake, he might have come to a differentconclusion upon the evidence; and that the evidence raises in facta presumption that Iseris took possession as one of the heirs, and notas sole heir, and that that presumption had not been rebutted.
The remarks of the learned Judge about the burden of proof weremistaken. The burden lay on Iseris that he had such possession asis explained in section 3 of Ordinance No. 22 of 1871. But the Judgefinds that Iseris’s possession “ began and went on in defiancethat he acted from the time of his first entry in 1879 onwards as soleowner; and that “as he had entered in the character of sole heiror plunderer, whichever it was, so he continued, and acknowledgedno title in any one else. He finds that Iseris had had at least sevenyears’ possession before Balahami, the first of the alleged co-heirs,appeared on the scene; he thinks it beyond doubt that Balahami’sStatement that she went there in order to claim her share is. totallyfalse; and that even if she did make a claim, it is infinitely moreprobable that Iseris did not admit it. It appears, therefore, thathe was clearly of opinion that Iseris had proved such possession assection 3 required by a title adverse to that of the plaintiff and ofthose through whom the plaintiff claims; and that his opinion as tothe burden of proof had no effect on his finding, for he finds that theevidence establishes that Iseris had proved that which he had to. prove. With what intention did Iseris take possession on Elias’sdeath? Did he mean to take possession as sole owner (whether assole heir or otherwise), -or only as one of the heirs? That is -aquestion of fact on which I think that, upon the evidence, the Judgemight fairly find as he did. Then, was his possession unaccompaniedby any act from which an acknowledgement of a right in any otherperson would fairly and naturally be inferred?" That is again aquestion of fact, and I think that again the finding of the DistrictCourt on it was supported by the evidence.
1911.
HUTCHTNgOX
C. J.
Corea v,Appuhamy
I think that the appeal should be dismissed with costs.
(74 )
1911.
' Oorta v.
Apppuhamy
van Laxuenbebo A.J.—
This is an action brought under the Partition Ordinance. Theplalintiff, claiming to be entitled to two-thirds of certain lauds, allotsthe remaining one-third to the first defendant.
According to the title de.eds the lands belonged to one Elias, whowas born in the Southern Province, and migrated many years ago,when a young man, to the Chilaw District, where he traded, success-fully and amassed' wealth. He died on July 123, 1878, leaving,according to the plaintiff, three sisters, Babahami, Sinnatcho, andBalahami, and one brother, the defendant, as his heirs.
The plaintiff says that about twenty years ago Babahami died■without leaving issue, and that Sinnatcho died about 1899 leaving two‘children. Allina and Norino.
By deed No. 1,181 dated December 5, 1907, the plaintiff acquiredthe right of Allina, Nonno, and Balahami. The first defendant-claimed the whole land by prescription, and stated he hadconveyed the lands fn question to his son and the second defendant,reserving a life interest for himself. The second defendant wasaccordingly made a party in this action? The intervenients are thethree children of Balahami. They say that their mother wasmarried in community of property to their father Ovinis Appu, whohad died prior to the execution of the deed in favour of the plaintiffs,and that therefore their mother could not convey more than one-sixth. They claim the remaining one-sixth for themselves. It hasb'een proved that Babahami had married and left children, all ofwhom, it is said, are now dead. Who their legal representativesare has not been ascertained■ and there is nobody in this case torepresent them. Further, it has been established that Elias livedwith a woman called Kittoria, who claimed to be his wife.; she isno party to this action. I think our judgment should bind onlythose who are parties to this ease. I accepted the learned Judge’sfinding as regards the pedigree.
The first defendant states that he joined his brother Elias and■traded with him iii partnership but the lands which were boughtwith the profits of the partnership were purchased in the name ofElias alone; that when Elias died he was in jail, and when he came''out soon afterwards he found two headmen in possession; that heturned them out and entered into possession himself aud remained inpossession ever since; and that he had dealt with the property forover thirty years as his own.
Plaintiff, on the other hand, asserts that Balahami and herchildren and Sinnateho’s children left their, village on hearing ofthe death of Elias and came to first defendant, who acknowledgedtheir rights to share the inheritance from Elias by giving them fromtime to time sums of money, and by allowing Balahami to live onMedawatta, a land which formed part of that estate. First defend-ant, however, says that whatever he did for his sisters and nephews
f 75 )
and nieces be did it out of charity, and that us a matter of fact notone of them ever asserted title to any portion of Elias’s estate.
The learned Judge has gone very fully into the facts, and it isenough for me to say that I agree with his conclusion, that whatevermay have been the first defendant's reasons for doing so, the firstdefendant at the earliest possible moment, i.e., directly he came outof jail, took possession of Elias’s property on his own behalf and forhis own benefit, and that he has done nothing since showing that hehas acknowledged a right in anybody else.
The Judge points out that for seven years not one of the familyraised any questions as regards the first defendant’s right to possess-sion, and he does not accept, the evidence led'to show that firstdefendant in any way altered his position after the other membersof the family appeared on the scene.
Under our law there can be no doubt that one co.-owner canacquire a prescriptive title as against his co-owners, though ourCourts- insist on strict proof of adverse possession. On the factsas found by the learned Judge, is the plaintiff in law entitled to adeclaration that he has acquired prescriptive titles as against hisco-owners?
I understood Mr. Jayewardene to say, in answer to a questionhorn me, that his contention was that when the owner ofundivided share of land entered into the possession of the entirety,he must be presumed in law to have entered on behalf of himselfand his co-owners,and that theonus was onhfm to show the
starting ofan adverse possessionagainst- themby proof of some
overt act. I asked for some authority in support of this contention,but was referred to none. In the absence of any authority, I amunable to say that the contention is sound.
It seems to me that the facts in each case must be consideredbefore it can be inferred that one co-owner is in possession as agentof another.In thiscase, holding,as I do, thatthe first defendant
entered inhis ownright and forhis own benefit, I find that his
possession became adverse at once, and continued so up to the dateof the action.
I would dismiss the appeal with costs.
December 14, 1911. Delivered by Lokd MacNaghten:—
This seems to be a very plain case. The action out of which the-appeal has arisen was an action for partition of certain lands, partof the estate of one Elias Appuhamy of Galmuruwa, in the Districtof Chilaw.
Elias died in July, 1878. He was never married, and he died,intestate. His heirs were his brother Iseris and three sisters.Taking by descent the heirs took as tenants in common in accordancewith the provisions of section 18 of the Partition Ordinance of 1863-
1911.
vav
Langem-bkrg A.J,
Corea v.Appuhamy
( 76 )
1911.
Lord Mac-Naohten
Corea v.
Appuhamy
Elias came originally from Baddegama, in Galle District, about120 miles from Chilaw. His father and mother and the rest of hisfamily lived there, apparently in somewhat humble circumstances.Eliqs prospered in Chilaw. After a time he was joined by his brotherIseris, who says that he left home alone when he was ten years old,though he was probably three or four years older at the time.The two brothers kept a shop or store in Chilaw, in which theyseem to have been jointly interested. But it is admitted that thelands in question in this action were the separate property of Elias.
At the time when Elias died Iseris was in jail, under sentence ofimprisonment for assault and robbery.
The property being thus left derelict, possession was taken byofficials of the District Court. It must be presumed that suchpossession was taken for the benefit of the persons rightfully entitled.
Iseris came out of jail in December, 1878. Thereupon, or soonafterwards, he entered into possession of the intestate’s lands. Thecircumstances under which the officials of the Court relinquishedpossession in his favour do not appear in eveidence. It seems,however, to be immaterial whether there was an .order of the Courton the subject, or whether the officials, wno must have known whoIseris was, and must have been, aware of his relationship to theintestate, retired in his favour without any specific directions.The Trial' Judge says that they were “ ejected ” by Iseris, but nostatement or suggestion to that effect is to be found in the evidence.
Some time after the death of Elias, two of his sisters made theirway to Chilaw. They seem to have been kindly treated by Iseris,who gave them small sums of money from time to time, and allowedthem to obtain provisions from his shop without payment. Indeed,one of the sisters, named Balahami, lived for a long time in ahouse on Medawatta,. which was one of the plots or parcels of landbelonging to Elias, and part of his estate.
In 1907 Iseris by deed settled the intestate’s land on his son,reserving a life estate. This action, on the part of Iseris was thetalk of the neighbourhood. Balahami, who was then the onlysurvivor of the three sisters,’ became alarmed. Lawyers wereconsulted. Under their advice Balahami brought an action forpartition against Iseris. The action was confined to Medawatta,on the score, it was said, of expense, in order to save the stamp or feewhi'ch would have been payable if the whole estate had been thesubject of the action. Then Iseris turned her out of her home.Being without means Balahami and ether co-proprietors in thesame interest sold their rights or claims to the plaintiff Corea, whowas Balahami’s legal adviser and advocate. He "brought thisaction against Iseris. Iseris’s son was afterwards made a party tothe action.
Iseris in his defence claimed the benefit of Ordinance No. 22 of1871, entitled “ An Ordinance to amend the Laws regulating the
( 77 )
Prescription of Action.” It is not disputed that by that Ordi-nance, or by an earlier Ordinance of 1834, which was repealedby the Ordinance of 1871, the old law was swept away. The wholelaw of limitation is now contained in the Ordinance of 1871.Section 3 enacts that “ proof of the undisturbed and uninterruptedpossession by a defendant in any actionof lands or immov-
able property by a title adverse to or independent of that of the
claimant or plaintiff in such action for ten years previous
to the bringing of such action shall entitle the defendant to a decreeiu his favour with costs.” The section explains what is meantby undisturbed and uninterrupted possession. _It is “ possessionunaccompanied by payment of rent or produce, or performance ofservice or duty, or by any other act by the possessor from which anacknowledgement of a right existing in another person would fairlyand naturally be inferred.” Then follows an analogous provisionin favour of a plaintiff claiming to be quieted in possession of landsor other immovable property under similar, circumstances.
In the present action the plaintiff, Corea, offered some evidencetending to prove that Iseris took out administration to Elias. Therecertainly was a testamentary ease in the District Court relating tothe intestate’s estate. But the record of the case is missing, and itis not clear whether the case was concerned with an application byofficials of the Court, or with an application by Iseris for administra-tion. The District Judge held that it was not proved that Iseristook out administration to his brother’s estate.
The plaintiffals also endeavoured to prove that Iserils had ac-knowledged the title of his co-proprietors within ten years of thecommencement of the action. On this point also the DistrictJudge was against the plaintiff.
Their Lordships accept the decision of the District Judge on thesetwo points. In their Lordship’s opinion they are not material to thereal question at issue. Assuming that the possession of Iseris hasbeen undisturbed and uninterrupted since the date of his entry,the question remains, Has he given proof, as he was bound to do,of adverse or independent title? His title certainly was notindependent. The title was common to Iseris and to his threesisters. On the death of Elias, his heirs had unity of title as well asunity of possession. Then comes the question, Was the possession-of Iseris adverse? The District Judge held that Iseris “ entered inthe character of sole heir or plunderer.” ‘‘ Whichever it was,” saysthe learned Judge, ‘‘so he continued, and acknowledge no title inany one else. He has acquired a good prescriptive title ” It isdifficult to understand why it should be suggested that Iseris mayhave entered as “ plunderer.” He was not without his faults. Heis described by the learned Judge, who decided in his favour, as “ aconvicted forger and thief,” and “ expert not only in crime andincarceration, but also in perjury.” But is is perhaps going too far
1911.
L°rd Mao-Naohxbh
Corea v.Appuhamp
( 78 ).
1911.
XiOBD MAC-
KTaohxbit
Corea v.Appuhamy
to hold that he was so fond of crooked ways and so bent on doingwrong that he may have scorned to take advantage of a good legaltitle, and may have preferred to masquerade as a robber or a banditand to drive away the officers of the Court in that character. It i3not a likely story. But would such conduct, were it conceivable,Jhave profited him? Entering into possession, and having a lawfultitle to enter, he could not divest himself of that title by pretendingthat he had no title at all.. His title must have enured for thebenefit of his co-proprietors. The principle recognized by Wood if.C.,in Thomas v. Thomas,1 holds good: “ Possession is never consideredadverse if it can be referred to a lawful title. ”
The two learned Judges in the Court of Appeal did not adopt inits entirety the suggestion of the Trial Judge. They both held thatIseris entered as “ sole heir,” and that his title has been adverseever since he entered. They held that he entered as “ sole heir,”apparently because he had it in his mind from the first to cheat hissisters. But is such a conclusion possible in law? His possessionwas in law the possession of his co-owners. It was not possiblefor him to put an end to that possession by any secret intention inhis . mind. Nothing short of ouster or . something equivalent toouster could bring about that result. There is no provision in theOrdinance of 1871 analagous to the enactment contained in section12 of the Statute of Limitations, 3 & 4 Will. IV. c. 27, which makesthe title of persons ‘ '• entitled as co-perceners joint tenants ortenants in common ” separate from the date of entry. Before theAct was passed it was a settled rule of law that the possession ofany one of such persons was the possession of the other or others ofthe co-proprietors. It was not disputed at the Bar that such isnow the law in Ceylon.
The learned counsel for the respondent, who argued the case withperfect candour, and said all that could be said on behalf of his client,did not, of curse, question the .principle on which Wood V. C.relied in. Thomas v. Thomas. His submission was that the Courtmight presume from Iseris’s long-continued possession, undisturbedand uninterrupted as it was that there had been an ouster orsomething equivalent to ouster. No doubt in former times, beforethe statute of William IV., when the justice of the case seemed torequire it, juries were sometimes directed that they might presumean ouster. But in the-present case the learned Judge did not makeany presumption of that sort. Nor, indeed, did Iseris before thisaction was brought attempt to rely on adverse possession. Hispretence was that he was sole heir. In the first partition action heswore that he did not know the name of his father or that of hismother. He swore that Balahami was only a cousin; he knewnothing, he said, about his family, except that he was the onlybrother of Elias. For this audacious statement he was indicted
• 2 K. and /. 83.
for perjury at the instance of the Judge. He was convicted, andsentenced to fine and imprisonment. t The Judge who pronouncedsentence observed: " It is clear that he was determined to provethat he was the sole heir, and strenuously to deny anything thatmight count against him/1 Be that as it may, this is not a case inwhich the circumstances could justify the presumption of ouster infavour of such a man as Iseris.
Their Lordships will therefore humbly advise His Majesty thatthe appeal should be allowed, the judgment of the Supreme Courtand the judgment of the District Judge set aside, with costs in bothCourts, and a decree made for partition of the lands which on thedeath of Elias passed by descent to his heirs. The respondentswill pay the costs of the appeal.
1911.
Lobd Mac-Naohtkn
Corea V.Appuhamy
Appeal allowed.