056-NLR-NLR-V-61-D.-S.-A.-WIJESINGHE-Appellant-and-C.-A.-KULATUNGA-et-al-Respondents.pdf
Wijesinghe v. K-ulatunga
223
Present: Basnayake, C.J., and Pnlle, J.D. S. A. WIJESZN’GHE, Appellant, and C. A. K.ULATXJNGA et al.t
Respondents
S. G. 80—D. G. Mambantota, 144/5,640
43rovm grant—Authentication thereof—Requirement of signature of “ countersigningofficer ”—Acquisition of prescriptive title as against the grantees—CrownGrants (Authentication) Ordinance (Cap. 317), s. Z (2).
A Crown grant given under the provisions of the Crown Grants (Authentica-tion) Ordinance is not valid if it does not hear the signature of the “ counter-signing officer ” referred to in section 2 (2). The fact, however, that the certi-ficate bears the signature of the Assistant Private Secretary to the Governor,instead of that of the Private Secretary, is not a ground for saying that thegrant is had on the face of it.
Where a Crown grant in respect of a field was given to certain persons in theyear 1928 but the contesting defendants and their predecessors in title had solepossession of the field from 1909 to 1947 without any acknowledgment of titlein any one else—
Meld, that, in spite of the Grown grant, the contesting defendants had a goodprescriptive title.
224
PpXXJE, J.—Wijesinghe v. Kulalimffa
i^-PPEAL from a judgment of the Distinct Court, Hambautota.
H. V. Perera, Q.C., 'with A. F. Wijemanne, for the plaintiff-appellant.
H. W. Jayeward&ne, Q.C., 'with W.P.N. de Silva, for the 2nd and21st defendants-respondents.
A. L. Jayasuriya, with N. Aheyasinghe, for the 19th defendant-respondent.
Cur. adv. miU.
November 4, 1957. Pux,bb3 J.—
The appellant is the plaintiff who sought to partition in this action afield of the extent of nearly 25 acres. There is no dispute as to theidentity of the corpus but only as regards its name. The plain tiff callsit Kadawinnawalahena and the contesting defendants, namely, the 2nd,19th and 21st call it Lihiniyanara.
The plaintiff bases his title on the Crown Grant Pi dated the 26thApril, 1928, and the main argument on his behalf in this appeal centresround this document. There are twelve grantees in PI to each of whomis given a named share calculated on the basis that had the wife of oneDon Andiris Rajapakse, named Weeraman Senerat Ratnayake Baba-hamine, and her brother, one Don Tiyadoris Weeraman, been alive atthe time of the grant each would have been given a half share of the land.The twelve grantees fall into two groups, the first eight can be describedas the representatives in interest of Babahanr-ne and the last four as therepresentatives of Don Tiyadoris.
If the Grown Grant can be regarded as the common source of title theplaintiff is entitled to succeed. The case for the contesting defendants,however, is that their title began with possession at a date much anteriorto the grant, and that that possession was on the basis that Don AndirisRajapakse was the sole owner of the land and that there was no acknow-ledgment of title in any one outside the line of devolution of Don AndirisRajapakse.
The question of possession loomed large in the trial court. A con-siderable volume of oral and documentary evidence was placed before thelearned trial Judge on whieh he held as a matter of “ irresistible con-clusion ” that Don Andiris Rajapakse and his heirs and successors intitle had been in possession of the land from 1909 to the date of actionand thereafter, and that, in spite of the Grown Grant, none of the heirsand successors in title of the grantees had possession except the heirs andsuccessors in title of Don Andiris Rajapakse.
PULLE, J-—Wije&inghe v. K-ulcUttnga
225
Before dealing with the submissions on behalf of the plaintiff it isnecessary to state a few farther facts. The 2nd defendant who wasmarried to a daughter of Don Andiris gave evidence in this case and ithas been accepted in its entirety. According to him the land in suit wasgiven to Don Andiris and his wife in exchange for a land of theirs calledJoolauwela which was taken over for the construction of a tank. Barringthe recitals in the Crown Grant the circumstances in which it came to beexecuted are shrouded in obscurity. A curious feature about the grantis that while it bears the date 26th April, 1928, it was not registered till3rd August, 1946. Very soon afterwards the plaintiff became active andpurchased on a number of deeds shares on the basis of the Crown Grant.The last of such deeds is P3 of 16th June, 1947, and on 10th July, 1947,he filed the present action with, according to the trial judge, no otherobject than to test the validity of the grant. The plaintiff himself didnot give evidence but apparently he felt he had a powerful ally in one ofthe children of Don Andiris who gave evidence for him. This son is thewitness Don Davith Rajapakse whose son married the plaintiff’s daughterin 1944. On 22nd May, 1947, Don Davith executed the deed P2 bywhich he conveyed an undivided l/10th share to the plaintiff. DonDavith was one of the five sons of Don Andiris who according to thegrant was entitled to a 1/2 share. The learned trial judge had nodifficulty in finding that Don Davith executed P2 with no other objectbut to assist his son’s father-in-law to help him to as large a share of thefield as possible. He was one of the executors of the last will of DonAndiris and had inventorized the entirety of the land as forming part ofthe estate of his father. His attempt to make out that shares of theproduce were divided among the heirs and successors of Tiyadoris wascompletely discredited and acting on the evidence mainly of the 2nddefendant the trial judge held that since 1909 the working of the fieldand the sharing of the produce were on the footing that Don Andirisalone was the owner of the field.
There were two findings in regard to the Crown Grant which wereattacked by learned Counsel for the appellant. The first of these ariseson a point of contest raised at the trial and formulated as follows :
“ Was the land to be partitioned at the disposal of the Crown in
1928 ? If not, did the Grown Grant convey any title to the purchaser ? ”
It is obvious that from 1909 to 1928 sufficient time had not elapsed foracquisition of title by prescriptive possession as against the Grown.That the land in suit was at one time the property of the Crown Wasrecorded as a matter of admission at the commencement of the trial andis also implicit in the answer of the 2nd defendant which is to the effectfhat a land belonging to Don Andiris was submerged by a tank atMamadola and *' the said land Inhiniyanara was given to the said DonAndiris Rajapakse in exchange therefor by Government I am unableto agree with the finding that at the date of the grant the land was not atthe disposal of the Crown.
The trial judge went on also to hold that on the face of it the CrownGrant did not comply with the provisions of the Authentication of Orown
226
PTJXjLB, J.—Wijesinghe v. ILulatunga
Grants Ordinance (Cap. 317) and was, therefore, not an instrumentcapable of conferring any rights on the grantees. He says that thesignature of the Governor by means of a stamp has only been certified byan Assistant Private Secretary. Section 2 (2) of the Crown Grants(Authentication) Ordinance provides that every signature by means of astamp “ shall be attached by or in the presence of the Private Secretaryto the Governor or other person authorised by the Governor Thefact that the certificate bears the signature of the Assistant PrivateSecretary is not a ground for saying that the grant is bad on the face of it.The Ordinance also provides that every grant by means of a stamp sha.1tbe countersigned by a person appointed by the Governor for the purposeand ho is referred to-as the “ countersigning officer”. There is nosignature of the “ countersigning officer ” on the grant and I am inclinedto agree with the judge, although we did not have the advantage ofhearing an argument on that point, that the absence of the signature ofthis officer rendered the grant ineffective. The grant was an inchoateinstrument.
After dealing with the validity of the Crown Grant the judge said,
“if PI was a genuine Crown Grant it had not been acted
upon; no one had possessed this land or* the basis that the grantees onthe Grown Grant PI were owners of it. On the other hand all theevidence in this case which I accept is to the effect that this land hadbeen possessed on the footing that Andiris Rajapakse was the sole ownerof it from 1909.” He also held that the name of the land is LiMniyanara.I am of opinion that on these findings the judge was entitled to hold, ashe did, that shares in the land should be allotted on the basis that DonAndiris was the sole owner and not on the basis of the shares set out inthe Crown Grant. The possession of Andiris from the beginning wasut dominus and it continued on that footing to the end. The nature ofthat possession could not be altered by the bare execution of the grantunaccompanied by the acknowledgment by Andiris Rajapakse or any ofhis successors of any right of co-ownership in the representatives ininterest of Don Tiyadoris.
The legal result flowing from the findings of fact in this case is supported,by the judgments in Fernando et al. v. Podi Nona 1 and Tennekoon v,Podisingho et al. 2 and the result is that in spite of the Grown Grant thesuccessors in title of Andiris Rajapakse had at the date of action acquireda good prescriptive title not only as against the persons falling within theDon Tiyadoris group hut even as against the Grown.
In my view there is no reason to disturb the decree and the appealshould be dismissed with costs.
Bashayaxe-, C. J.—I agree.
Appeal dismissed.
1 {1955) 56 N. J,. B. 491.
s {2945) 46 N. L. B. 373,