GOVERNMENT AGENT, WESTERN PROVINCE v. FREDERICK PERERA et al

092-NLR-NLR-V-11-GOVERNMENT-AGENT,-WESTERN-PROVINCE-v.-FREDERICK-PERERA-et-al.pdf


( 337 )
[In Review.]
Present: Mr. Justice Wendt, Mr. Justice Wood Renton, andMr. Justice Grenier.
GOVERNMENT AGENT, WESTERN PROVINCE, v.
FREDERICK PERERA et al.
D. C., Colombo, 2,234.
Prescription—Usufructuarymortgagees—Purchaseunder subsequent mort-gage—Changeof character ofpossession—Adverse possession "
—Possession ut domini—Ordinance No. 22 of 1871.
Where {heusufructuary mortgagees of a land purchasedthe
same at a sale bv the Fiscal under a subsequent mortgage, andclaimed to set off the amount due on their mortgage against thepurchase-money, and did not obtam any Fiscal's transfer,- bntpossessed the land for over ten years,—
Held, that the usufructuary mortgagees had acquired title byprescription to the land, inasmuch as after their purchase at theFiscal's sale the character of their possession changed, and there*after they must be considered to have possessed ut domini and notqu& mortgagees.
1908.
October 27.
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M8.
October 27.
A
PPEAL by the second and third claimants from a decree ina. land acquisition case. The facts are fully stated in the
following judgment of the District Judge, F. R. Dias, Esq.(April 12, 1907): —
“ This is a reference by the Government Agent under the LandAcquisition Ordinance for tfye settlement of the claims of two rivalsets of claimants to a portion of land acquired by the Grown,viz. a small strip of 12f perches out of a larger land at Panchika-watta, which was admittedly in the possession of the first claimant.The amount of compensation tendered by the Government Agentwas Rs. 4,900, and its sufficiency is not disputed.
“ Counsel agreed at the trial that the portion acquired was a stripalong the southern end of the two lots marked A and B in Fonseka’splan (marked F) annexed to one of the first claimant’s title deeds,viz., No. 5,643. This plan shows the entire land (whose name wasAmbagahawatta) divided into four lots A, B, C, D, in the year1887. Portions have also been acquired from the lots C and D,but they form the subjects of inquiry in two other cases, those lotshaving been sold to and possessed by third parties. The contestin the present case is between the first claimant on the one side,who claims the whole of lots A and B under a string of deeds fromone Thangatchy Umma and one Nagooda Marikar, and the secondand third claimants on the other, who claim the entire garden asthe only children of one Cader Marikar, who died many yearsago. Even if it be the fact that Cader Marikar was at any timethe owner of the whole garden, it is quite clear that since 1878neither he nor any of his children has had a day’s possession; while,on the other hand, there is abundant testimony that since 1884the land was possessed and built upon, rightly or wrongly, as theirabsolute property, by the first claimant and his predecessors intitle, viz., Nagooda Marikar and Thangatchy Umma. And, so faras the first claimant is concerned, even the very existence of thesecond and third claimants seems to have been unknown, until theycame on the scene last year, when they found the Crown acquiringlands in this locality and paying fabulous sums for them.
“ The first claimant put his opponents to the proof that they werethe children of Cader Marikar, and some evidence of relatives andothers has been placed before the Court. In the absence of anyevidence to the contrary, we may take it as proved that the secondand third claimants are the lawful issue of Cader Marikar.
“ The real point in the case after all is one of prescription, whichI find no difficulty whatever in deciding. The history of thisgarden. Ambagahawatta was this, so far as I Can make it out fromthe evidence that has been led. It did not belong entirely toCader Marikar, but to two persons, viz., Cader Marikar and oneAisa Natchia Umma. The latter is said to have owned and lived
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on the western portion A, while Cader Marikar owned the easternportion represented by B, C, D.
“ Aisa Natchia Umma (who died about 1897) had four children,viz., Samsie Lebbe, Thangatchy Umma, Nagooda Marikar, andColenda Marikar, and in the year 1878 it would appear that CaderMarikar mortgaged his land to the above-named Aisa NatchiaUmma and her daughter Thangatchy Umma by the bond D 2 tosecure a loan of Bs. 400 payable at the end of five years, and inthe meantime it was stipulated that the mortgagees should possessthe land in respect of interest.
*' The debtor never repaid that loan, nor offered to redeem themortgage, but in 1882 he gave a secondary mortgage over his landto one Veerasamy Nayakar. That man put his bond in suit, andunder his writ the Fiscal sold the mortgaged properly and all thedebtor's right, title, and interest therein on May 27, 1884 (videFiscal’s Sale Beport D 4). At that sale notice was given of theprimary mortgage in favour of Aisa Natchia and Thangatchy, andthe purchase was “I. L. Nagooda Marikar for and on behalf ofAisa Natchia Umma,” that is, one of the mortgagees. The saleprice was Bs. 400, of which the purchaser paid down the usualone-fourth, viz., Bs. 100. The balance Bs. 300 was never paid,nor did the purchaser obtain a conveyance from the Fiscal,nor did the debtor Cader Marikar ever make any attempt to payhis debt to the primary mortgagees or have the sale annulled.There was some correspondence shortly after that sale between theprimary mortgagee’s proctor, Cader Marikar’s proctor, and theFiscal (vide Exhibits A D 1 to A D 6), which shows beyond allquestion that Cader Marikar acquiesced in the sale, recognized itsvalidity, and only wanted the Fiscal to recover from the purchaserthe balance Bs. 300.
“ It is equally clear what the position was that was taken upby the purchaser, namely, that it was under a mistake that eventhe Bs. 100 were paid, because the sale was subject to the primarymortgage of Bs. 400, and that was the exact amount for which theland was knocked down by the Fiscal, so that the purchaser, beingherself the primary mortgagee, was entitled to take credit for thefull amount. In other words, the position was this. What wassold by the Fiscal was, if I may borrow an expression from theEnglish Law, Cader Marikar’s equity of redemption, that is to say,his whole bundle of rights in and over this land after payment ofthe Bs. 400 due to the primary mortgagees. But, as it turned out,the money value of that equity of redemption was nil, as the landonly fetched the exact amount of the primary – mortgage. Hencethe primary mortgagee as purchaser was entitled to keep the landas owner free of encumbrances, and pay herself the whole sum ofBs. 400. At all events that was what Aisa Natchia and her co-mortgagee did, rightly or wrongly, though they foolishly paid the
1908.
October 27.
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1908.
Oetaber 17.
Rs. 100, which need not have been paid at all, and which by theway was drawn out of Court by the judgment-creditor Veerasamy.
“ Jn 1893, that is to say, just when the prescriptive period often years was expiring, Cader Marikar appears to have made anotherspasmodic attempt to get the Fiscal to recover from the purchaserthe balance Rs. 300, and received the reply AD4. This, too, showsthat he was not disputing the validity of the sale, or of thepurchaser’s right to possession, and the reply he received was the 'same as before, viz., that the purchaser was the primary mortgagee,and so was entitled to take credit pro tanto on account of her mort-gage instead of paying money. That was the last that was heardof Cader Marikar, and from that day till now even the very existenceof any children of Cader Marikar or of any claim by them wasunknown to the parties in possession.
“ There is no doubt whatever in my mind that, as alleged by thefirst claimant and his witnesses, since the Fiscal’s sale in 1884the primary mortgagee Aisa Natchia regarded herself as the lawfulowner, and dealt with the land as her own. This is shown bysomething more than mere oral testimony, for we find her in 1887employing the Surveyor Fonseka to divide the entire garden (in-cluding her own lot A) into four allotments for her four children.Of these four lots, it is said that she gave lot A to Thangatchy Umma,and lot B to her son Nagooda Marikar, who accordingly built uponthem and possessed them as . their own. In the year 1898 by thedeed P 1 Thangatchy Umma and her husband sold their lot A toNagooda Marikar, who by the deed P 2 sold it, plus his own lot B,to one Kan a Packir. This man put up several buildings, and 8oldboth lots by the deed P 4 to one I. L. M. Marikar Hadjiar, throughwhom by a succession of deeds (P 5, P 6, and P. 7) they were purchasedby the first claimant, an utter stranger to all the previous owners.He put up several new buildings on the land, and it was in his solepossession when the Crown acquired the portion in claim.
“ The two great points on which the second and third claimantsrely is the fact that their father Cader Marikar was never divestedof his title by the issue of a Fiscal’s transfer to the alleged purchaserin 1884, and the fact that the latter was a usufructuary mortgageewho had been let into possession by the owner. It is perfectlytrue that the legal title of an owner is not taken away from himby a Fiscal’s sale until the Fiscal executes a transfer in favour ofthe purchaser, and it is equally true that' a person in possession ofland with the leave and license of the owner (such as a usufructuarymortgagee) cannot convert that possession into an adverse possessionby a mere change of intention on his own part, so as to entitle himto the benefit of the laws of prescription. This, however, is not asimple case of that nature, as by more than one overt act on thepart of the purchaser and of those acting on her behalf it wasclearly indicated to Cader Marikar and the whole world what the
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attitude adopted by her, rightly or wrongly, was in respect of theproperty theretofore in her possession as mortgagee.
“ She did not fraudulently change her mind and convert herselfinto an independent and adverse possessor, but she bought the landat a public judicial sale, and regarded herself as owner from thatdate. The correspondence with the Fiscal, to which Cader Marikarwas himself a party, shows clearly that from that time she intendedto, and did in fact, put herself at arm’s length with the old ownerand constitute herself the new owner. Hence the fiduciary relation*ship between herself and her mortgagor ceased as from the dateof the Fiscal’s sale, and a new possession ut dominus commencedand continued till the date of the acquisition, that is to say, fortwenty-two years. Clearly, therefore, in my opinion, the firstclaimant and those under whom he claims had acquired a validtitle by prescription as against Cader Marikar and his descendants
ms.
OcuAer.81.
and all others.
“ An issue was raised as to when the second and third claimantsattained majority, but I am unable to decide that, as they haveplaced no reliable evidence before me to show, even approximately,when they were born. This is, however, an irrelevant matter inview of my finding on the main issue, because as prescription beganto run against Cader Marikar from 1884, and he was alive till solate as 1899, the minority of his sons in no way interfered with it.
“ 1 find that the second and third claimants have no light at allto the land, in question, and that the first claimant alone is entitledto it, subject, however, to a mortgage in favour of the tenth addedclaimant for Bs. 3,000, with interest at 12 per cent, per annumfrom September 16, 1906, as per bond No. 211 dated March 16,1906.
" Enter depree accordingly, and order the second and thirdclaimants to pay all the costs of the plaintiff and of the first claimantand tenth added claimant.
The second and third claimants appealed, and the case was heardbefore Mr. Justice Middleton and Mr. Justice Grenier, who affirmedthe judgment of the District Judge (October 10, 1907).
On the application of the second and third claimants, the casewas heard in review preparatory to appeal to His Majesty inCouncil.
B&wa (with him F. M. de Saram), for the appellants.
A. St. V. Jayewardene (with him B. F. de Silva), for therespondents.
Cur. ado. vult.
October 27, 1908. Wood Renton J.—
This is a proceeding under the Land Acquisition Ordinance, 1876(No. 3 of 1876), on a reference made to the Court by the Govern-ment Agent of the Western Province for a decision as to the rights
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1906. of several claimants to the compensation offered by GovernmentOeuAer 27. for part of a land called Ambagahawatta, situated at Maradana,WooD Colombo, and required for the purpose of railway extension. TheRbnton J. land in dispute originally belonged under a deed of April 25, 1877(No. 507, D 1), to one Cader Marikar. By deed of October 10; 1878(No. 1,007, D 2), he mortgaged it to one Aisa Natchia Umma andher daughter Thangatchy to secure the repayment “ on demandafter five years ” of a sum ox Rs. 400. The mortgage was usufruc-tuary, and was never redeemed or sued upon. The respondentsFrederick Perera and Mrs. Dickson claimed under Thangatchy, one ofthe usufructuary mortgagees, and by prescription. The appellantsIsmail Lebbe and Mohamado Hanifa are the children of CaderMarikar. Cader Marikar, by deed of September 23, 1882 (No. 1,369,D 3), created a secondary mortgage over the property in dispute infavour of Veerasamy Nayaker, who sued upon the bond in D. C.Colombo, No. 91,610, and obtained in May, 1884, a mortgagedecree for Rs. 400, interest, and costs. The decree declared theland liable to be sold, subject to the primary mortgage. The Fiscalsold it, subject to that mortgage, on June 30, 1884, and it was thenbought by Nagooda Marikar on behalf of Aisa Natohia Umma.The amount realized was Rs. 400, out of which one-fourth was paidby the purchaser to the Fiscal, and was subsequently drawn out bythe judgment-creditor. The sale was not confirmed, nor was anyFiscal’6 transfer obtained. Aisa Natchia, however, afterwardsdivided the whole property, which consists of four lots, among herchildren, giving lot A to her daughter Thangatchy, lot B to Nagooda,who was her son, lot C to another child, Colenda, and lot D to afourth, Samsie Lebbe. Lots A and B constitute the portion ofAmbagahawatta in dispute in the present case. By a series of deedsThangatchy’s rights in lot A passed to the first respondent FrederickPerera, who by deed of March 16, 1906 (No. 211), mortgaged it toMrs. Dickson, the second respondent. On the other hand, theappellants, as Cader Marikar’s sobs and heirs, allege that boththe lots now in question, are their property, and claim the entirecompensation offered by Government (Rs. 4,900), except the sumof Rs. 400 due on the primaiy mortgage bond. On the hearingof the reference in the District Court' the following issues wereframed: —
Have the first respondent and his predecessors in title
acquired a valid title of prescription or otherwise tolots A and B?
If not, what compensation, if any, is the first respondent
entitled to for any buildings erected by him and acquiredby the Crown?
When did Cader Marikar die, and are the appellants his
lawful children?
When did the appellants attain their majority?
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The learned District- Judge answered the first issue in the affirm- I9«t.ative. It was, therefore, unnecessary to answer the second. On °cto^er 37.the third he did not positively find the date of Cader Marikar’s Wooddeath, but held that the appellants were his lawful children. On Rmmnr Jthe fourth issue the District Judge expressed himself as follows: —
“ I am unable to decide that (issue), as they (the appellants) haveplaced no reliable evidence before me to show, even approximately,when they were bora. This is, however, an irrelevant matter inview of my finding on the main issue, because as prescription beganto run against Cader Marikar from 1884, and he -was alive till solate as 1899, the minority of hi^ sons in no way interfered with it. ’ ’
Decree was, therefore, entered in favour of the first respondent,subject to the mortgage debt of the second, and the appellants’claim was dismissed with costs. The judgment of the DistrictCourt was affirmed on appeal, and the case comes before us now inreview. The point on which our decision must turn is as statedby Grenier J. in his judgment on the appeal, the question whether,to the knowledge of Cader Marikar, the original predecessors in titleof the first respondent when they purchased the property in questionat the Fiscal’s sale on June 30, 1884, dropped their characterof usufructuary mortgagees and assumed that of purchasers.
1 agree with the learned District Judge and with Middleton J. andGrenier J. that this question must be answered in the affirm-ative. If it is so answered, the title of the first respondent iscomplete. For prescription had commenced to run against CaderMarikar in his lifetime, and after his death the minority of hischildren, if they were minors, would not interrupt it.
There is no controversy as to the law applicable to the decisionof cases of this description. Where a person who has obtainedpossession of the land of another in a subordinate character, e.g.as tenant or mortgagee, seeks to utilize that possession as thefoundation of a title by prescription, he must show that by an overtact, known .to the person under whom he possesses, he has got ridfor this proposition, it will be found in such cases as Maduanwala v.the property ut dominus. If it is necessary to cite local authorityfor this proposition, it will be found in such cases as Maduanwala v-Ekneligoda Orloff v. Grebe *, and Lebbe Marikar v. Sainu 3, Iagree with Mr. Bawa that the principle enunciated in Angohamy v.
Appoo 4 cannot apply here. In that case it was held that wherea mortgage deed stipulated that the property should be redeemedwithin a given time, and redemption was not affected within thestipulated period, the mortgagee’s possession became adverse fromthe date of the expiration of that period. But here the mortgagedeed itself contemplated the postponement of redemption beyondthe period of five years for which the loan was made. Even after
i (1898) 3 N. L. B. 213.» (1907) 10 N. L. R. 339.
* (1907) 10 N. L. R.183.4 Morgan's Dig. 381.
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i80« the five years had passed, the mortgage debt was only repayable " onOrtater 27.j am not prepared, however, to assent to Mr. Bawa's
Woos further contention that, inasmuch as the acts of user of the landRbmtok J. proved to have been by Aisa Natchia, such as the erection ofbuildings on it, were within her rights as usufructuary mortgagee,Cader Marikar, even if he was aware of them, and, for that matter,of the fact that they were being done ut dominus, could do nothingto protect his ultimate proprietary rights. In support of this argu-ment, Mr. Bawa referred to Pothier on Obligations, 8.451, and Bturgesv. Bridgman l. Pothier, in the passage cited, merely lays downthe rule, which cannot be disputed, that prescription runs onlyfrom the time when the creditor has a right to institute his demand.In Stwge8 v. Bridgman1 it was held that the right to make a noiseso as to annoy a neighbour cannot be supported by user, unless,during the period of user, the noise has amounted to an actionablenuisance. I do not think that Sturges v. Bridgman 1 is any authorityfor holding that; under our law it is not competent for the ownerof the dominium to take some proceedings of a declaration or quiatimet nature so as to make his position secure, when he is made awarethat a tenant or mortgagee, with the intention of prescribing againsthim, is doing acts of ah ambiguous character, which might afterwardsbe relied upon as evidence of possession ut dominus. There is noneed, however, to decide that point formally, for the evidencediscloses conduct on the part of Aisa Natchia going far beyond anyuser that could be justified under the mortgage deed. She purchasedit at a Fiscal’s sale. Although the sale purported to be subject tothe primary mortgage, I think with Middleton J. that the corre-spondence (A D 1 and A D. 3) shows that the proctors for thepurchasers and primary mortgagees were still construing thewords “ subject to the primary mortgage ” in the sense pointed outand condemned by Burnside C.J. and Clarence J. in WeeratungaAppuhamy v. Don Pedris4 although these words had already beeninterpreted by Fhear C.J. in Ludovici v. Per era3 in the sense nowenacted in the proviso to section 352 of the Civil Procedure Code.The fact, therefore, that the sale was “ subject to the primarymortgage ” does not prove; under the circumstances, that AisaNatchia had still retained her character of mortgagee in spite of it.Nor does the fact that the sale was never formally confirmed orfollowed by the execution of a Fiscal’s conveyance prevent herpurchase from being, as I think' it was, an overt act inconsistentwith her character as mortgagee, and adverse to the dominium ofCader Marikar. The subsequent division by her cxfi the propertyamong her children was an overt act of adverse possession of aneven more distinctive kind. On the question of Cader Marikar’sknowledge of these overt acts of adverse possession, I have nothing
» (2879) 12 CK D. 862, 868, 883.* (2888) 6 8. C. C. 209.
» (2878) 2 S. C. C. 22.
to add to what has been said on the subject in the District Courtand in the Supreme Court on appeal, except to call attention tothe evidence of Abdul Careem, who bought one lot of the land inquestion from Colenda, one of Aisa Natohia’s children, among whomthe division was effected (Record, p. 36) :—“ I knew Cader Marikar.He was related to me. He was alive when ! bought my lot, andsaw me in occupation of it. He never inquired what my rightswere.”
I would affirm the decree under review with costs.
Wbndt J.—I agree, and do not desire to add anything.
Grenier J.—1 agree, and have nothing to add.
ms.
Octoberii.
WoodBenson J.
Judgment in appeal affirmed.