Appuhamy v Premalal
PREMALAL AND EIGHT OTHERS
COURT OF APPEAL.
ABEYWARDENA. J. AND MOONEMALLE. JS.C 137/77 – D. C. GAMPAHA 13409/PNOVEM8ER 21, 1983.
Partition action – Amicable division of undivided land – When amicable division isrecognised by law.
The plaintiff-appellant filed action to partition a land which he claimed was at one time aportion of a larger land which was co-owned by two persons who entered into anamicable division of that larger land each taking two divided portions one of which wasthe land to be partitioned The 4th defendant-respondent denied that there was such anamicable division of the larger land and averred that the corpus in this case was anundivided portion of the larger land and prayed for a dismissal of the action.
An amicable division to be recognised by law must be a division that puts an end toco-ownership of property.
An amicable division can be given effect to-la) by a deed of partition and a partition plan where all the co-owners sign agreeing tothe division or by a cross conveyance executed by each of thejco-ownerS whereby thenotarial deeds would be the best evidence of the termination of the commonownership , or
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(b) by proving that each of the co-owners entered into separate possession of thedivided portions allotted to each and that the co-owners possessed their respectivedivided portions for a period of at least ten years undisturbed and uninterrupted so thatthe common ownership would in law come to an end.
The documentary and oral evidence in this case clearly contradicts the contentionthat there had been an amicable division of the larger land.
APPEAL from an Order of the District Court. Gampaha.
D.RP GunatHlekewriri K. S. Tillekeratne for plaintiff-appellant.
P. A. D. Samarasekera for 4th defendant-respondent.
Other defendant-respondents absent and unrepresented.
January 19. 1984.
the plaintiff-appellant sought to partition the land calledMillagahalande alias Horagahalande in extent 3 acres 3 roods 25perches described in Schedule B to the amended plaint and depictedin Plan 2180 dated 6th August, 1966 made by G. A. H. PfiilipiahLicensed Surveyor, marked (X).
The surveyor's report is marked (XI). At the outset of the trial the4th defendant-respondent's mother Jayaweera Arachchige MaryNona was appointed the Manager of his estate, as he was insane. Sheis the 4th defendant. In the course of the trial of consent Lots A, B, C,D, E, F, G, H and J shown in Surveyor-General’s Plan No. 70/215marked (Y) were excluded from the corpus as belonging to the Crown.These same lots are reflected in Plan X.
The plaintiff-appellant’s case was that one Nonahamy who ownedthe entirety of the land called Millagahalande alias Horagahalande inextent 15 acres, 1 rood, 17.87 perches conveyed the same by deed13223 dated 12 1.1904 (P4) to Pingamage Don Elias Appu andJayaweera Arachchige Don John Appuhamy in equal shares.Thereafter the said Elias Appu and John Appuhamy had amicablydivided the said land into four portions. By this division Elias Appupossessed the westernmost portion ahd easternmost portion andJohn Appuhamy possessed the two centre portions. According to theplaintiff-appellant the corpus of this action is the western portion of thetwo centre portions possessed by John Appuhamy. John Appuhamyby deed 4725 dated 26.9.1908 (P11) conveyed to WeerasinghePatirage Anthony Appu and Weerasinghe Patirage Marathelis anundivided portion of thret acres of the southern newly planted portionwhich is separated by a road. Elias Appu by deed 17493 dated11.6.1910 (P7) conveyed an undivided three acres of his half share
Appuhamy v. Premalal (Moonemalle, J.j
to the said Weerasinghe Patirage Anthony Appu. Anthony Appu ondeed 6218 dated 28.7.1916 (P8) gifted an undivided 2/3rd shareout of the undivided three acres to his daughter Marthinahamy andson-in-law Dionis. Then by deed 13868 dated 16.1.1921 (P 9)Anthony Appu conveyed the balance 1 /3rd of the undivided thre*feacres to his wife. Engohamine who by deed 1015 dated 23.11.1938(P 10) gifted her share to Suwaris Appuhamy and SelestinuAppuhamy. Selestinu Appuhamy by deed 24923 dated 8.1.1955(4D1) conveyed an undivided 45200/245787 shares of the entireland of 15 acres. 1 rood, 17.87 perches to his son Weerasinghe the4th defendant-respondent, who by deed 3247 dated 15.9.64 (6D1)leased out two acres of the cinnamon plantation for five years toKarthelis the 6th defendant-respondent. Suwaris Appuhamy’s sharedevolved on his widow Agnes and children the 1st, 2nd and 3rddefendant respondents. Agnes by deed 48373 dated 2.10.1965(P12) conveyed'her interests to Jusey Appuhamy theplaintiff-appellant. Then Marathelis the other transferee on (P11)conveyed his interests to Mangohamy by deed 613 dated29 1 1.1938 (5D1) who by deed 8419 dated 22.1.1949 (5D2) soldthese interests to Dona Rejehamine and Samel Appuhamy who bydeed 7383 dated 3.12.1964 (5D3) sold the interests to PabilisAppuhamy the 5th defendant-respondent who is theplaintiff-appellant’s son. On the death of John Appuhamy, one of thehalf share owners, his balance interests passed to his widowMarihamy and child Anahamy. On the death of Elias Appu the otherhalf share owner, his balance interests passed to his widow andchildren.
The only contesting defendant was the 4th defendant-respondentwho denied that Elias Appu and John Appuhamy amicably divided thisland of 15 acres, 1 rood, 17.87 perches, and he averred that thecorpus in this case was an undivided portion of the larger land of 15acres. 1 rood, 17.87 perches. He therefore prayed for a dismissal ofthis action. He further averred that Dionis and Marthinahamy referredto in deed (P 8) were husband and wife respectively, and that Dionisdied leaving as his heirs the said Marthinahamy and four childreo.David Singho. Jopin Nona, Sirisena and Jinasena. Marthinahamymarried a second time and she died leaving as her heirs SimonAppuhamy her second husband and the said four, children by Dionisand one child Somawathie by Simon Appuhamy. Simon Appuhamyand David Singho by deed 2371 dated 6.1,1943 (4D6) conveyed
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their interests to Jopin Nona and Maisinghe who along with Jinasenaby deed 7635 dated 12.12.1947 (4D7) conveyed their interests toSelestmu Appu. Then the said Somawathie by deed 29907 dated8.4.1957 (4D8) conveyed her interests to the 4thdefendant-respondent.
After trial the learned District Judge dismissed theplaintiff-appellant's action with costs. This appeal is from thatjudgment.
Learned Counsel for the plaintiff-appellant strongly contended thatthe plaintiff-appellant's position that there had been an amicabledivision of the land of 15 acres, 1 rood, and 17.87 perches by EliasAppu and John Appuhamy was corroborated by the facts that inparagraph 4 of the plaint (P 5} in D. C. Gampaha Partition Action No.10641 filed by the heirs of Elias Appu against the presentplaintiff-appellant in respect of a divided portion of this land in extent 3acres, 2 roods and 33.7 perches, it was averred that "Elias and Johnamicably divided and separated off their rights into two portions andpossessed as divided distinct portions," and that final decree had beenentered in that case, and that the 4th defendant-respondent did notintervene in that case and challenge the averment that there had beenan amicable division of the entire land, though he had rights in the landthrough both Elias Appu and John Appuhamy. Learned Counsel for theplaintiff-appellant further submitted that the learned trial judgemisdirected himself in stating that the question of a division of the landhad not arisen for decision in the Partition Action P 10641. He alsosubmitted that deed 3444 dated 21.12.1964 (P 21) and deed 3247dated 15.9.1961 (6D1) were suppressed by the 4thdefendant-respondent and that these two deeds referred to dividedportions of the land leased by the 4th defendant-respondent toKarathelis Silva.
Learned Counsel for the 4th defendant-respondent maintained thatthe learned trial judge had come to correct findings and that theevidence oral and documentary clearly established that there had beenno amicable division as stated by the plaintiff-appellant. He submittedthat the deed (P 7) executed by Elias Appu and deed (P 11) executedby John Appuhamy contradicted the plaintiff-appellant's position thatthere was an amicable division. He also referred to deeds P 8, P 9,P 10, P 21! 4D1 and 6D1 vhich all deal with undivided allotments ofland. He further submitted that according to the Surveyor Mr.Phihpaiah there was no physical boundary on the western side of the
Appuhamy v. Prsmslal (Moonenwile, J.)
corpus. Even the Surveyor-General's Plan (P 3) showed no boundarieson this land to support an amicable division. Learned Counsel for the4th defendant-respondent also submitted that as Partition Action10641 was in respect of only 3 acres , 2 roods, and 33.7 perches ofland, while Elias Appu left a little over 41/2 acres, there would hayebeen good reason for the 4th defendant-respondent not to raise anydispute as the heirs of Elias claimed less than they were entitled to.
An amicable division to be recognised by law must be a division thatputs an end to co-ownership of property. An amicable division can begiven effect to by a deed of partition and a partition plan where all theco-owners sign agreeing to the division or by cross conveyancesexecuted by each of the co-owners, whereby the notarial deeds wouldbe the best evidence of the termination of the common ownership. Inthe present case, the plaintiff-appellant does not rely on a partitiondeed or cross conveyances to establish the amicable division.Therefore, the- plaintiff-appellant in order to establish the amicabledivision has to prove that each of the co-owners entered into separatepossession of the divided allotments which were allotted to each atthe division, and that the co-owners possessed their respectivedivided portions for a period of at least ten years undisturbed anduninterrupted, so that common ownership would in law come to anend. In the present case the deeds of Elias Appu and John Appuhamynamely (P 7} and (P 11) respectively, clearly do not reflect theexistence of an amicable division. Elias Appu's deed (P 7) of1 T.6.1910 dealt with an undivided portion of 3 acres of an undivided1/2.share out of the land of 15 acres, 1 rood, 17.87 perches andJohn Appuhamy's deed (P 11) of 26.9.1908 dealt with an undividedportion of 3 acres on the South of the land of 15 acres, 1 rood.17.87/100 perches. Each of those two deeds state, " held andpossessed by me and another person by virtue of Deed No. 3223dated 12.1.1904." (which is P 4). P 11 further goes on to state" andwhich said land exclusive of the western portion in extent 1 rood and30 perches alienated by me the said Don John Appu and the otherco-owner prior to this." The other co-owner can be no other than Elias.These two deeds show that at the time Elias Appu and JohnAppuhamy conveyed part of their interests in the land, they werepossessing the land as co-owners. These two deeds militate againstthe contention that Elias Appu and John Appuhamy amicably dividedthe land. Even deeds P 8, P 9, P 10, P 21, P 4,’ D1, P 4, D 6, P 4,D 7, P 4, D 8 and 6D1 all deal with undivided portions of the land and
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they do not refer to a division of the entire land of 15 acres, 1 roodand 17 8 perches and clearly contradict the position that there had beenan amicable division of the land. The only deed which refers to anamicable division is P 12 dated 2.10.1965, by which deed theplaintiff-appellant gets interests in the land. The deed (P12) wasexecuted five months before this action was instituted. The plaint inthis case was filed on 2.3.1966. The reference in P 12 to an amicabledivision appears to have been made for the purpose of this case.
Though it was contended on behalf of the plaintiff-appellant thatdeeds (P 21) and (6D1) were suppressed by the 6thdefendant-respondent as they were favourable to theplaintiff-appellant's case in that they dealt with divided portions of theentire land, by (P 21) of 21.12.1964 the 4th defendant-respondentleased to Karathelis Silva for a period of two years from the westernside consisting of the cinnamon plantation, an undivided portion oftwo and a half acres from and out of the land of 15 acres, 1 rood,17.87 perches. It is clear that (P 21) does not deal with a dividedportion of the entire land. Even (6D1) dated 15.9.1964 did not referto any share of the entire land as a divided entity. By 6D1, the 4thdefendant-respondent leased for a period of five years to KarthelisSilva an extent of about two acres containing cinnamon divided fromthe undivided 45200/245787 parts or shares from and out of theland called Millagahalanda alias Horagahalanda containing in extent15 acres, 1 rood 17.87 perches held and possessed by the lessor(the 4th defendant-respondent) by virtue of deed 24973 dated8.1.1955 (4D1). These two deeds (P21) and (6D1) are deedsexecuted in the year 1964, and they cannot be said to buttress theplaintiff-appellant’s case that there was an amicable division of theland by Elias Appu and John Appuhamy.
The plan (X) prepared for the purpose of this case shows a dark lineon the western boundary of the corpus. Mr. Philipiah the surveyor whosurveyed the land and prepared plan (X) stated that except for ananthill and a Hik tree to the north and a Hora tree to the south of theanthill there was no physical boundary on the ground to indicate thewestern boundary. The western boundary he said was indefinite andthat he had failed to mark the letter " U ’ on the dark line on thewestern boundary in plan (X) to indicate this. The plaintiff-appellant inhis evidence stated that there had been a live fence on the westernboundary which had been broken by the 4th defendant-respondent
Visuvalingam v, Liyanage
but he had not mentioned it to Mr. Philipiah at the survey when hepointed out the alleged western boundary to Mr. Philipiah.
The plaint (P 5) dated 6th February, 1963, filed in partition action10641 D C Gampaha which refers to an amicable division of theentire land of 15 acres, 1 rood, 17.87 perches by Elias Appu andJohn Appuhamy, and the fact that the 4th defendant-respondent didnot intervene in that action and challenge the averment referred to inthe plaint as to the amicable division, are not sufficiently convincing touphold the plaintiff-appellant's contention that there was such anamicable division. The strong documentary evidence and the evidenceof Mr. Philipiah which were led in this case clearly contradict theplaintiff-appellant's contention that there had been an amicabledivision On a consideration of the totality of the evidence oral anddocumentary, led in this case, I am of the view that the learned DistrictJudge has come to correct findings, and I see no reason to disturb anysuch findings For these reasons, ! dismiss the appeal with costspayable to the 4th defendant-respondent only.
ABEYWARDENA, J.-l agree