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Present: Ennis A.C.J. and De Sampayo and Dalton JJ.HAMIDU LEBBE v. GANITHA.
418—D. C. KegaUa, 6,815.
Co-owners—Prescriptive title—Long-covUitvued exclusive possession—Presumption of ouster.
Where a co-owner of land seeks to establish a-prescriptive titleagainst another by reason of long-continued exclusive possession, itdepends on the circumstances of each case whether it is reasonableto presume an ouster from such exclusive possession.
Per Dai/ton J.—I see no reason to suppose that the law as laiddown in TUlekeratne v. Bastian1 is in any way inconsistent withthe decision in Brito v. Muttunayagam.8
ASE referred to a Bench of three Judges by Ennis A.G.J. by thefollowing judgment, which states the facts :—
This was an action for a declaration of title to a half share ofKongahakumbura. The land originally belonged to one Kiri-hatana, and it appeared, in the course of the case, that Kirihatanadied leaving two sons, the defendant—Ganitha and Suddana.Suddana had two children, Rankira and Ukku, who in 1921 soldto the plaintiff. The learned Judge in a very brief judgment hasheld in favour of the defendant, saying that it is too late |in theday for the plaintiff to assert title through the children of Suddana,and that, therefore, the plaintiff's case must fail on the issue ofprescription. Ganitha, the defendant, came into Court, saying inhis answer that he was the sole heir of his father, Kirihatana, andan issue was framed as to whether Suddana was the son ofKirihatana. In the course of the trialp after the plaintiff hadproved that Suddana was a son of Kirihatana, the defendant wentinto the box and himself gave evidence admitting that his fatherhad two sons, himself and Suddana. He then proceeded to saythat he held the land in dispute for the last forty or fifty years, andthat Suddana had left long ago for the Gampola District, and nevertook any share and never performed any of the rajaiariya services.Again the defendant's evidence is extremely brief. But in cross-examination he admitted that in 1923 he had mortgaged a half shareof the land claimed, and in re-examination he explained merelythat this was a usufructuary mortgage bond. I am unable to .findin the defendant’s evidence any starting point for prescription.1 (19JS) 21 N. L. B. 12.a (1918) A. C. 895; (1918) %0 N. L. B. 327.
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He came into Court with a false assertion, and it then transpiredthat he had to prove a possession adverse to his brother, Suddana.In view of the relationship existing between the parties, the case ofCorea v. Appuhamy1 seems to be much in point in connection withthis case. However, Mr. Keuneman for the defendant has calledour attention to the case of Tillekeratne v. Bastian (supra), where thequestion as to whether an ouster could be presumed was gone intoat some length. The case itself is not on all fours with the presentcase, inasmuch as the facts there show that the parties in possessionof the land had been dealing with it for over forty years by meansof leases, and that the land in question was a valuable mineral land,and that there had been no division of the proceeds during the entireperiod of the occupation by one co-owner and his predecessor intitle. However, in the course of that case, Bertram C.J. expressedthe opinion that “It is the reverse of reasonable to impute acharacter to a man's possession which his whole behaviour has longrepudiated.”
In the present case, it seems to me, we are not called upon to doany such thing. I am unable to see in the evidence of the defend-ant anything in the defendant’s behaviour which repudiates thecharacter of his possession. His possession can be attributed to alawful right which he had to possess as a co-owner, and in order toprescribe against his co-owners, some act of ouster would have to beproved or some definite facts from which one could infer a changein the character of the defendant’s intention with regard to theholding of this land. I am unable to see in his evidence anythingwhatever which points to a change in his intention. On thecontrary, it seems to me that the mortgage in 1923 shows that evenat that date he was aware that only half the land belonged to him.
I am of opinion that the defendant’s possession cannot in any waybe said to be adverse to that of his brother, Suddana, notwithstand-ing that the defendant has taken the crops from the land for the lastforty years and performed the services. My brother, however, isof a different opinion, and in the circumstances the case must bereferred to a Court of three Judges.
R. L. Pereira (with him Ranawake), for the plaintiff, appellant.
Keuneman (with him Jansz), for the defendant, respondent.
July 8, 1925. Ennis A.C.J.—
I have very little to add to what I have already said in the termsof reference. I am in accord with the conclusion arrived at inTillekeratne v. Bastian (supra), but am of opinion that the evidencein the present case does not justify its application here, or support apresumption of something in the nature of an ouster so as to give1 (1911) 15 JV. L. R. 65 ; (1912) A. C. 230.
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the defendant a starting point for prescription. The defendant,upon whom the burden lay, gave evidence in chief which is containedin five lines of the typewritten record, and in cross-examinationmade admissions which militate against his claim to have prescribed.The defendant called no witnesses. He mentioned brothers andsisters as if acknowledging claims at some time in them, but he didnot say more. He mentioned having performed service withoutsaying what it was. The defendant and his brother, Suddana, wereclearly co-parceners in the land, and as such the possession per seof one could not be held as adverse to the other. This is the rulelaid down in Corea v. Appuhamy (supra) and re-enunciated in Britov. Muttunayagam (supra). In my opinion the defendant has failedto establish any fact which could give rise to a presumption ofouster, and I would allow the appeal with costs.
De Samfato J.—I agree.
In view of the difficulty I felt and expressed when this appealwas argued before a Bench of two Judges, it is, I think, due to theparties and to this Court, now that the case has been argued again,to set out fully my views of the law as applicable to the facts of thecase before us.
In this action the plaintiffs claimed a declaration that they areentitled to an undivided half share of the land named Kongaha-kumbura, an order to eject the defendant therefrom, and that theyare entitled to damages in the sum of Rs. 80, and further damagesuntil possession of the land.was restored to them.
They set up in their plaint that the defendant, Ganitha, and oneSuddana were by right of maternal inheritance each possessed of anundivided half share in the land in question; that Suddana diedabout eight years ago intestate, leaving as his heirs his children,Rankira and Ukku Amnia, who became entitled to their father’sundivided half share ; that Rankira and Ukku Amma, by their deedNo. 3,882 of June 2, 1921, sold all their undivided half, share in theland to the plaintiffs, and that the plaintiffs and their predecessorsin title have been in the undisturbed and uninterrupted possessionof the said half share for more than ten years before the institutionof this action by a title adverse to and independent of that of thedefendant and all others.
To this the defendant answered that he was the sole heir of hisfather, Kirihatana, to whom the land belonged, that he died manyyears ago, and that he (the defendant) and his predecessors in titlehad been in the undisturbed and uninterrupted possession of theland for a period exceeding ten years prior to the institution ofthis action. He accordingly asked that the plaintiff’s action bedismissed.
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1925.The issues settled were—
Was Suddana a son of-Kirihatana ?
Has defendant acquired prescriptive title ?
I would point out Here that these issues do not appear to me to besufficient to decide the matter in dispute. It is clear from theevidence subsequently led that neither the plaint nor the answeradequately set out the case of either party. The defendant,although he claimed to be sole heir of Kirihatana, admits thatSuddana was a son of Kirihatana, whilst the plaintiffs set up aprescriptive title themselves, presumably in view of the fact thatSuddana and the defendant had other brothers and sisters as they(the plaintiffs) sought to establish in the cross-examination ofGanitha. If they succeeded in establishing this, Suddana himself,through whom they claimed, had no right to half the property, hencetheir claim in their plaint to a prescriptive title on behalf of Suddanaand his heirs.
The evidence is short, the second plaintiff and one other witnessalone giving evidence in support of the claim. It is to me worthyof notice that they do not call either of their vendors. The secondplaintiff states that he does not know how many children Kiri-hatana had, but that he died leaving two, defendant and Suddana.But, then, he .causes confusion by saying he purchased from thesetwo children of Kirihatana, which is clearly an error. Hecontinues : “ Suddana lived at Heracola beyond Gampola, and wasmarried in binna. ” This is corroborated by the marriage certificatewhich is produced. He then states that he and the first plaintiffbought a half share in the land. “ Kirihatana lived at Gampola,and died leaving two children, from whom we bought a half shareabout 2| years ago on deed P 2.” There seems an error here, forthe deed purports to say the purchase was from the two childrenof Suddana. As regards the purchase he states that Rs. 300 waspaid before the Notary which is confirmed by the deed, but headmits no possession of the land was obtained.
The witness called in support of the claim says nothing aboutthe number of children bom to Kirihatana, but states thatdefendant and Suddana were owners of the land, and cultivated itjointly until about thirty-eight or forty years ago, since whendefendant alone cultivated it. He adds that Suddana left Gampoladistrict after a quarrel with defendant, but that he used to comeonce a year to get his share of the produce, as did his two children(the plaintiff’s vendors) after his death. The land was servicetenure property, and defendant alone performed the rajakariya(“ services”); what these services were is not stated.
The defendant admits Suddana was his brother, and states he hasbeen in sole possession of the land for forty or fifty years. The datewhen Suddana left Gampola may be fixed by the marriage certificate
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which is dated 1876. He denies that Suddana ever took any shareof the produce, and states he alone performed the services to thelandlord. In 1923 he admits he mortgaged only half of the land,but this he purports to explain by saying it was a usufructuarymortgage. As these were paddy fields it was stated that he, by onlymortgaging half in this way, retained possession of the other halfto obtain paddy for his own use. It was suggested to him in cross-examination that he had other brothers and sisters besides Suddana,and he admitted he had some sisters, but states they are dead. Healso admits that in 1923 he brought an action in respect of hismaternal estate against one KaJu Banda. In that case the defenceof Kalu Banda was based on the allegation that he'(defendant) hadfive brothers and sisters, but he says the case was settled by KaluBanda taking a deed for the whole property from defendant alone.Whether the sisters and brothers (if there were any brothers) leftany heirs who might be entitled to an interest in the property doesnot appear.
He calls no witnesses, and hence it will be seen the evidence issomewhat meagre on both sides. The judgment is equally short.The learned trial Judge, however, comes to the conclusion that afterleaving the Gampola district, Suddana never had any possession ofthe land. He would, therefore, appear to disbelieve the evidencethat Suddana or his children took any share in the produce. Heseems also to lay some stress on the performance of the services tothe landlord by defendant alone. As regards the purchase byplaintiffs, he comes to the conclusion that it is a speculative one,on the ground that they have not called or apparently given anynotice of these proceedings to their vendors. He concludes that theplaintiffs’ case must fail on the issue of prescription (issue 2), anddismisses the action with costs. He does not refer to the plaintiffs’plea of prescription as against the defendant “ and all others.” Ifhe had come to the conclusion that there were other brothers andsisters of defendant and Suddana, as urged for the plaintiffs in thecross-examination of defendant, it is certainly a matter which affectsthe plaintiffs’ claim to half the property. In any case, however,before plaintiffs can succeed on their claim, even if defendant’s pleabe not upheld, it seems to me that on the case they put forward,that other brothers and sisters of Suddana do exist, they mustsatisfy the Court that they have succeeded on their plea of pres-cription, for admittedly their vendors would not be entitled byinheritance to half the land.
They appeal from the judgment shortly on the ground thatdefendant’s plea of prescription could not be upheld, for “ the merepossession even, if true, of one brother’s share by another brotherdoes not ripen into a title by prescription.” The authority reliedupon is Corea v. Appuhamy (supra). The circumstances of that caseare certainly remarkable ; it has been my experience elsewhere that
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that fact is somewhat lost sight of when the authority is cited.For the respondent the law there laid down is not questioned, but itis urged that nowhere is it held that even against a co-owner maynot an ouster be presumed from the circumstances of any particularcase. In Tillekeratne v. Bastian (supra) decided in 1918, this questionwas answered after being dealt with at length. It was there heldthat the principle of “ a presumption of ouster” is part of the lawof the Colony, and that it is open to the Court from lapse of timetaken in conjunction with the circumstances of the case to presumethat the possession originally that of a co-owner has since becomeadverse. It has been suggested to us that that would, under localconditions, be a dangerous principle to apply to the Colony, butit is clear from that judgment that it has been applied in a seriesof judgments of this Court and has also been adopted in India(Gangadhar v. Paraskram).1
But the question arises whether the decision in Tillekeratne v.Bastian (supra) is not overruled by the decision of the Privy Councilin Brito v. Muttunayagam (supra), the decision in which of the localCourt (but not of the Privy Council) was referred to in Tillekeratne v.Bastian (supra). In this case between father and children it washeld that as the children were co-owners with the father, hispossession of the property was not adverse, although there werestrained relations between father and children. In the course of thejudgment it is stated—
“ It is the fact that no claim was made by the wife’s next of kinafter her death, and that the strained family relations madeit likely that such a claim would have been preferred.From these circumstances the District Judge drew theconclusion that the possession was adverse. This, however,depends on what was the character of C. Brito's possessionas a matter of right. The learned District Judge seeminglyoverlooked the case of Corea v. Appuhamy (supra) which thelearned Judges of the Court of Appeal took as decisive ofthe question. In that case it was held by this Board thatthe possession of one co-parcener could not be held as adverseto the other co-parceners. Lord Macnaughten, who deliveredthe judgment, cited the dictum of Wood V.C. in Thomasv. Thomas? Possession is never considered adverse if itcan be referred to a lawful title.”
Is this an authority for the proposition that under no circumstancecan the possession of one co-owner be held as adverse to anotherco-owner ? It has been so argued before us.
Reference to the judgments of the Court of Appeal in Brito v.Muttunayagam (supra), decided by Ennis and Shaw JJ., shows thatneither of these learned Judges had anydoubt that Coreav. Appuhamy
1 I. L. R. 29 Bom. 300.> (1855) 2 K <fc J 79, 83.
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(supra) decided that an ouster, or something of the nature of,or equivalent to, an ouster, would result in the possession of a co-owner becoming adverse to the other co-owners. Ennis J. says—
“ In the case of Corea v. Appuhamy (supra) the Privy Council heldthat the possession of one co-owner enured to the benefit ofthe other co-owners, and that position could only be alteredby an ouster or something in the nature of an ouster.”And Shaw J. says—
“ He was a co-owner with his children, and his possession is thatof bis co-owners unless something equivalent to an ousterby him of his co-owners can be shown. Corea v. Appu-hamy (supra).'3
It still remained, however, to b© decided whether or not an oustermight be presumed from long-continued, undisturbed, and uninter-rupted possession. And on that point all the Privy Council wasprepared to say was that, whether or not it was still law that sucha presumption might be drawn, in that particular case the circum-stances would not justify any such presumption.
When Brito v. Muttunayagam (supra) came before the PrivyCouncil, the question of presumption of ouster was not referred to ordealt with. All that the Privy Council decided on the question ofprescription was that if the interest of Brito was, or was analogous to,the interest of co-ownership, then Corea v. Appuhamy (supra) applied.The dictum of Wood V.C., in Thomas v. Thomas (supra) that “ posses-sion is never considered adverse if it can be referred to a lawful title ”is again cited with approval, and the possibility of any presumptionof ouster is not mentioned. For that very reason it may be said thatthe extracts I have given above from the Privy Council’s judgmentdo not decide that no question of presumption of ouster can ariseas between co-owners, and hence I see no reason to suppose thatthe law as laid down in Tillekeratne v. Bastian (supra) is in any wayinconsistent with the decision in Brito v. Muttunayagam (supra).This is not exhaustive of the reasons which can be put forward insupport of this conclusion.
In the result it seems to me that the law of this Colony on thispoint is clearly laid down in Tillekeratne v. Bastian (supra). It is aquestion of fact where ever long-continued exclusive possession byone co-owner is proved to have existed, whether it is not just andreasonable in all the circumstances of the case that the parties shouldbe treated as though it had been proved that that separate andexclusive possession had become adverse at some date more thanten years before action brought. The question is dealt with atlength in the judgment of Bertram C.J. in that case. I would notdo more here than refer to the very definite opinion on the pointin English law as expressed b^ Lord Mansfield in Doe v. Prosserand cited by him.
1 Coup. 217.
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In appeal before this Court we have this question of fact answeredby the trial Judge in favour of the defendant (respondent), and whenthe case was argued on the first occasion I was unable to say thatthat finding of fact was not justified by the evidence, and a justand reasonable one in all the circumstances of the case. The long-continued exclusive possession of the one brother from thirty-eightto forty years was proved. It was proved that they had quarrelled,and one had left the other in possession. Although Suddana wentto live at a place, only eight or nine miles away, yet during all thattime the trial Judge finds neither he nor his children exercised anyright to possess the land. Lastly, the service to the landlord, itbeing service tenure land, was performed by defendant alone. Theevidence which seemed to me to weigh very strongly in favour ofthe defendant was the fact that the brothers had quarrelled, takentogether with the short distance which separated their residences.Is it not most likely that, with the existence of the quarrel, a claimwould, under the circumstances, have been preferred by Suddana ?It certainly seemed so to me. But on that occasion the case ofBrito v. Muttunayagam (supra) was not cited in the argument beforeus, and there the very matter which cause me the difficulty is dealtwith. In that case there were strained relations between fatherand children, a condition of affairs which was duly considered bythe Privy Council, for this was one of the chief circumstances inthe case on which the trial Judge had come to the conclusion thatthe possession of the father had become “ adverse” to his children.It was held that the trial Judge was wrong. It seems to me thatit is a decision or an expression of opinion, however it be regarded,which must govern me in this appeal, however hard the resultmay be to the defendant. I feel that it comes very near to theborder line of those “ stale claims” to which Wood V.C. referredin Thomas v. Thomas (supra), to which the provisions of the Pre-scription Ordinance should be applied to the fullest extent, andwhich ought to be discouraged.
Under all the circumstances,, therefore, for the reasons givenabove, applying the cases of Corea v. Appuhamy (swpra) and Brito v.Muttunayagam (supra), and also the law as laid down in Tillekeratnev. Bastian (supra) I have, but I must state on the facts with somehesitation, come to the conclusion that the defendant did not dis-charge the onus laid upon him in his plea of prescription.
On the other hand, I am satisfied that the plaintiffs have alsofailed to substantiate their entire claim, although they are entitledto so much of the land as was inherited by Suddana and his heirs.They have failed in their plea of prescription against the otherbrothers and sisters of Ganitha and Suddana, who they allege stillexist.
The question is whether under all the circumstances a new trialshould be ordered, or whether the case be referred back for the trial
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Judge to take further evidence and decide on this point, namely,the amount of the shares which fell to Suddana and his heirs, orwhether, the action brought being against the defendant alone, itwill be sufficient to make an order allowing the appeal. Onconsideration, the property being a very small one, and liable tobe dissipated in costs, it will be sufficient to make the latter order.
I would accordingly allow the appeal. In the result the appellantwould be entitled to the costs of appeal.
HAMIDU LEBBE v. GANITHA