HEMAWATHIE SAHABANDU vs. GUNASEKERA

024-SLLR-SLLR-2006-V-2-HEMAWATHIE-SAHABANDU-vs.-GUNASEKERA.pdf


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HEMAWATHIE SAHABANDUVS.GUNASEKERACOURTOFAPPEALMS. EKANAYAKE, J.,
W. L. R. SILVA, J.
CA 476/95 (F).
DC MT. LAVINIA1954/L.
MAY 18,2005.
JUNE 1,2005.
NOVEMBER 8,2005.
JANUARY 23, 2006.
Reivi Vindicatio action, section 84- Defence of Trust and Prescription – TrustOrdinance, No. 9 of 1917, section 111(1) – Prescription Ordinance, section 3 -Are the two defences contradictory?-Rent Act, No. 7 of 1972 – Can the tenantclaim the benefit of the Rent Act whilst denying that he is a tenant?-EvidenceOrdinance, sections 114(f), section 116 – Approbate and Reprobate?
The plaintiff-respondent instituted action seeking a declaration of title to theland in suit and the ejectment of the defendant-appellant. The defendantappellant pleaded a constructive trust and prescription.
The trial judge held in favour of the plaintiff-respondent.
Hemawathie Sahabandu Vs. Gunasekera
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HELD:
There is no express trust and the burden of establishing a constructivetrust lies on the defendant-appellant. The appellant herself admitsthat she paid only a fraction of the consideration and that the majorportion of the money was provided by the mother and the respondent.There is no trust.
There was adequate evidence to arrive at a finding that the defendant-appellant acknowledged the ownership of the respondent in respectof the premises. The conduct of the appellant and her husband iswholly inconsistent with the appellant’s position that they becamethe owners of the said property by prescriptive title.
It is clear that the appellant and her family occupied the said premiseswith the leave and licence of the respondent. There is no evidencepointing to the fact that the appellant started at some point of time, topossess the property in a manner adverse and independent to theinterests of the respondent.
Held further-
The whole purpose of section III (I) of the Trust Ordinance is to protectthe trust property and beneficiaries and not to protect the trustee. Thissection has not stipulated that the beneficiary cannot prescribe againstthe trustee.
PerW. L. Ranjith Silva, J.:
“I am constrained to disagree with the view expressed by the Counsel for the
respondent that the two defences viz. trust and prescriptive title cannot exist
side by side in a fit case if the circumstances of that case warrant such strategy”.
APPEAL from the District Court of Mt. Lavinia.
Cases referred to :
Sirijudeen vs. Abbas 1994 Sri LR 365
Maduwanwela vs. Ekneligoda 3 NLR 213
Kandasamy vs. Gnanasekeram 1983 2 SPLR 01 (SC)
Ranasinghe vs. Premawardena 1985 1 Sri LR 63 (SC)
Lucia Perera vs. Martin Perera 53 NLR 347
Mohamed vs Abdul Gaffoor – 57 NLR 228
Bahar vs Burah – 55 NLR 1
Vaidhiarathan and Another vs Idroos Mohideen and 1988 – 2Sri. L.R. 55
Maureen Seneviratne, P. C. With Tilak Gunawardena and Nalinda Premaratne
for appellant.
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L C. Seneviratne, P.C. with U. H. K. Ahangama and Anuraddha Dhaimaratnefor respondent.
Cur.artv.vutt
March 3,2006.
RANJITH SILVA, J.
This Appeal has arisen from the judgment of the learned AdditionalDistrict Judge of Mt. Lavinia dated 04.09.1995 delivered in case No. 1954/
The Plaintiff Sumithra Rani Gunasekara, the elder sister of the Plaintiffinstituted this action against the Defendant (hereinafter referred to as theAppellant) for a declaration of title to the land and the house thereon referredto in the schedule to the plaint (hereinafter referred to as the premises), forthe ejectment of the Appellant and all those in occupation of the land andhouse under the appellant and for compensation and damages resultingfrom the unlawful occupation of the said premises and the house by theAppellant. After trial the learned Additional District Judge in his judgmentheld inter a//athat the Plaintiff was the owner of the said premises and thatthe appellant was in unlawful occupation of it. This appeal is taken againstthe said judgment. Whilst this appeal was pending the plaintiff died on13.01.2001 and is his stead the present Substituted-Plaintiff-Respondent(hereinafter referred to as the Respondent was substituted for the purposeof prosecuting this Appeal. Both parties made their oral submissionsfollowed by written submission and subsequently the matter was fixed forjudgment of this court.
The facts
The Appellant who lived in Colombo prior to and subsequent to hermarriage continued to live in rented premises. Her mother who lived atAnuradhapura frequently stayed with the Appellant whenever she happenedto be in Colombo.
The plaintiff purchased the said house and property in suit on deed1595 dated 01.04.1965 attested by M. U. Mohammed Saleem NotaryPublic which is filed of record in the main case marked as P1. Accordingto this deed the consideration of Rs.28,500 was paid to the vendor by theVendee Sumithra Rani, the original plaintiff in this case to whom the propertywas sold and delivered by the vendor. The appellant herself was one of thewitnesses to the said deed. Both the appellant and the husband havestated in evidence that they paid the assessment rates in respect of the
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premises until 1984 (although on some occasions in the course of theirevidence they have given the year as 1981 or 1982) and that thereafter theplaintiff herself paid the assessment rates to the said premises.
The appellant’s husband has stated in his evidence that his wife theappellant paid the assessment rates and the said payments were made inthe name of the Plaintiff. He has also stated that his wife ceased to makethe said payments after the Plaintiff commenced making payments, thatthey did not make any payments after 1984 and that they did not care toascertain as to why the Respondent started to make the necessarypayments from 1984. (Vide pages 99,105, and 107) The Appellant too inexamination has stated that the assessment rates in respect of thepremises were paid by the Appellant in the name of the Plaintiff up to 1982and that the assessment rates, in respect of the premises, thereafter,were paid by the Plaintiff herself.
It was the case for the appellant, that having realized the hardship ofthe appellant her mother asked her to look for a house in Colombo thatthey could buy for themselves to live in, that the Appellant together withher husband searched for a house, that they found the premises which isthe subject matter of this action and that after consultation with her motherand her sister who is the Respondent in this case decided to buy thesame. Admittedly the appellant’s own evidence is to the effect that out ofthe total consideration for the purchase of these premises Rs.16000 wascontributed by the appellant’s mother and a sum of Rs. 10000 wascontributed by the Respondent. The Appellant contends that the Respondentsaw the premises only once prior to its puchase, that the Respondentmade no inquiries about the premises and thus showed no interest inrespect of the premises from whom the property was purchased and thatall the spade work was done by the appellant and her husband whilst theRespondent conducted herself in a lackadai sical manner. What is more,the Appellant argued that the Respondent later wanted the money shecontributed for the purchase of the property to be regarded as a gift fromher to the appellant’s daughter Dharshini. (vide pages 76-77 of the brief)but there is no corroboration of this fact and it was only the Appellantsword against the Respondent’s. The Respondent has categorically deniedthis position. Explaining why the deed of transfer was written in favour ofthe Respondent, the possession of which as all times remained with theAppellant, the Appellant has stated that it was because the Respondentcontributed money for the purchase of the said property and in view of the
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fact that the Appellant believed that disputes with her husband were likelyto ensue in the future, in case some mishap befell on her.
This argument sounds rather preposterous because if they contemplateda situation of that sort they could have circumvented such a situation bythe simple expedient of writing the deed in favour of Dharshini the daughterof the Appellant to whom the Appellant alleged that the Respondentintended to gift the money. It is not unusual for the Respondent to haverelied on her sister’s discretion and to depend on her assistance inpurchasing the said property especially so, as the Respondent was livingat Anuradhapura, a place far away from Colombo and the appellant wasliving with her husband and the family, in Colombo. The relevant deed is anout right grant and there is no ambiguity. Therefore the deed cannot becontradicted by oral evidence unless it is attacked on the ground of fraudor in order to prove a constructive trust. The Appellant has alleged that theRespondent is holding the said property in trust for her and it has to beexam ined very carefully whether the Respondent is holding the said propertyin that capacity for the benefit of the appellant.
TrustWhen a person obtains a title to a property for the consideration paidby another person, he is aware that the person who furnished theconsideration becomes the true owner of the property. There are instanceswhere conveyances are executed in another’s name without the knowledgeof the purchaser. Some times the conveyances are executed in another’sname with the understanding that the property is to be conveyed to thetrue owner at a particlar time agreed upon or at request. If such conditionsare not fulfilled the true owner can bring an action on the ground ofconstructive or implied trust. In such cases the parties are entitled to leadparol evidence up to a particular extent without violating the provisions ofthe Prevention of Frauds Ordinance. In the instant case before us none ofthe aforesaid conditions exist. Nearly half the consideration for the purchaseof the property was paid by the Respondent is the version of the appellantherself. The Respondent categorically denied this position and maintainedthat she provided the entire consideration for the purchase of the saidproperty, a fact born out by the statement of the notary found in theattestation clause to the deed P1. Also there was never an agreementbetween the parties that the property should be transferred to the Appellantby the Respondent on the happening of an event or on a future date fixedor otherwise, what is more the whole transaction took place in the presence
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of the Appellant and with her full knowledge. The Appellant states inparagraph 10 of her answer that the Respondent held the premises intrust for the Appellant for the reason that the parties had by their act anddeed accepted that the premises belonged to the Appellant and the deedwas written in the name of the Respondent as security for the Rs. 10,000the Respondent contributed towards the payment of the considerationdue on the contract of sale.
Issue No. 9, reads, thus;
“Has it been accepted at all times by the parties that by the act anddeed of the parties the premises which is the subject matter of this actionis property held by the Respondent in trust for the appellant."
There is no express trust in this case and the burden of establishing aconstructive trust lies fairly and squarely on the Appellant. Chapter XI ofthe Trust Ordinance give various instances that give rise to a constructiveTrust. The Appellant relies on section 84 of the Trust Ordinance. Underthis section where property is transferred to one person for a considerationpaid by another and it appears that the person who paid or provided theconsideration did not intend that such payments was made for the benefitof the transferee, the transferee must hold the property for the benefit ofthe person paying or providing the consideration. But in this case theappellant herself admits that she paid only a fraction of the considerationand that the major portion of the money was provided by the mother andRespondent. It is not the case for the Appellant that the Respondent holdsthe property in trust for her mother who is alleged to have contributedRs.16,000 for the purchase of the property.
If, as the Appellant has stated in evidence the Respondent had nointerest in retaining the beneficial interest or the ownership of the premisesthere was no need to go to the extent of executing the deed P1 in theRespondent’s name for the purpose of certifying the payment of Rs.10,000.All that the Appellant need have done to certify the payment of the saidRs. 10,000 was to issue a receipt or a promissory note to the Respondentfor the payment of the said sum of Rs. 10,000.
Furthermore there is no corroboration supporting the version of theAppellant that out of the consideration of 28,500 their mother paidRs.16,000, the Respondent paid Rs.10,000 and that the appellant paidRs.3,000. The attestation clause in PI does not mention the names of the
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monther or the appellant as having paid any part of the consideration andwhat is more the deed contains a statement that the entire amount waspaid by the vendee to the vendor. The Appellant whose burden it was toprove her assertions did not even care to summon Mr. Saleem, the notaryas a witness to explain how and by whom the payments were made or didnot explain as to why she did not propose to summon him and thus itwould not be unfair to draw the presumption arising out of section 114 (f) ofthe Evidence Ordinance. Therefore in the circumstances of this case thepresumption arising out of section 114(f), that is, if such evidence was led,that evidence would have been adverse to the appellant, could be reliedon. What is more in the instant case the Appellant well knowing what waspassing, was not only content to stand by and see what was passing butalso has placed her signature as an attesting witness to the deed P 1according to which the entire consideration was paid by the Respondent.For these reasons among others I am of the view that this court should notdisturb the findings reached by the Learned Additional District Judge withregard to the claim of a constructive trust relied on by the Appellant.
PrescriptionThe appellant relied on the defence of prescription and endeavoured toestablish prescriptive title to the said property by reason of the fact thatthe appellant possessed the property from the time it was purchased bythe Respondent, that is from 1965. The appellant in support of her claimhas stated in her evidence that the original of the deed P1 was always inher possession and that her husband effected repairs to the said housefrom time to time without any objection from the Respondent. This conductof the appellant is not inconsistant with the Appellant and her family beingin possession of the said property with the leave and licence of theRespondent, further this conduct certainly does not amount to adversepossession as far as the Respondent is concerned. In Sirajudeen vAbbasf11it was held that as regards the mode of proof of prescriptive possession,mere general statements of witnesses that the plaintiffs possessed theland is dispute for a number of years exceeding the prescriptive period arenot evidence of uninterrupted and adverse possession, necessary tosupport a title by prescription. It was further held that it was necessarythat the witnesses should speak to specific facts and the question ofpossession has to be decided thereupon by Court.
There is ample evidence lead in this case to indicate that the respondentand some times even her mother stayed in the said premises for longspells at a time, when they came to Colombo occasionally.
Hemawathie Sahabandu Vs. Gunasekera
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There was adequate evidence placed before the learned District Judge,for him to have arrived at the finding that the appellant acknowledged theownership of the respondent in respect of the premises. For instance thefact that the appellant and her husband had admitted in evidence that upto 1984 (some times referred to as 1982 or 1981) they paid the assessmentrates for the premises in the name of the respondent is itself, in my view,sufficient proof of this fact. The appellant has also admitted that therespondent paid the assessment rates for the said premises thereafter.This conduct of the appellant and her husband is wholly inconsistent withthe appellants position that they became the owners of the said propertyby prescriptive title. If they had prescribed to the said property they wouldnot have allowed any other person including the respondent to pay taxesin respect of the said property, especially so after having paid the relevanttaxes by the appellants up to the year 1984 in the name of the respondent.
The above facts are totally inconsistent, with the fact that the appellantwas the owner of the property and is a clear indication of the fact that theappellant and her family occupied the said premises with the leave andlicence of the respondent. As it is provided in section 116 of the EvidenceOrdinance No. 14 of 1895 tenants and licensees have been debarred fromclaiming title to the premises which they commenced to occupy in theircapacity as tenants or licensees. Section 116 of the Evidence Ordinancereads thus;
“No tenant of immovable property, or person claiming through suchtenant, shall during the continuance of the tenancy, be permitted to denythat the landlord of such tenant had, at the beginning of the tenancy a titleto such immovable property; and
No person who came upon any immovable property by the licence of theperson in possession thereof shall be permitted to deny that such personhad a title to such possession at the time when licence was given.”
' In Maduwanwala vs Ekneligodcf2) at 213 Bonser C. J. held ; That aperson who was let into occupation of property as a tenant or licensee,must be deemed to continue to occupy on the footing on which he wasadmitted, until by some overt act he manifests his intention of occupyingin another capacity. No secret act will avail to change the nature of his
occupation. It was further held in that case I quote; “the possession,
as I understand it, is occupation either in person or by agent, with theintention of holding the land as owner.” (ut dominus)
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A person, who enters into possession of a land as a licensee, who failsto prove that the character of his initial possession had changed to adverseand independent possession, at a particular point of time, against theinterest of the land lord who let him into possession, in my view, is certainlynot entitled to claim the benefit of section 3 of the Prescription Ordinance. Inthe instant case too I find that there in not an iota of evidence pointing to thefact that the Appellant started at some point of time, to possess the propertyin a manner adverse and independent to the interests of the Respondent.
For these reasons I find that the learned judge cannot be faulted for hisdecision that the appellant has not proved prescriptive title to the property.The learned Additional District Judge has correctly answered issue No.12in the negative.
Approbate and Reprobate
In view of the findings of facts and the law reached by the Learned judgeand the conclusions drawn by him based on such facts resulting in therejection of both the defences put forward by the Defence namely thedefence of trust and the defence of prescription, it is my opinion that itwould be frivolous or redundant for me to deal with this aspect of the lawraised by the Respondent, in their submissions that the two defences areconflicting and therefore the appellant cannot maintain the two defencesat one and the same time. Even if this court were to hold that the twodefences are not contradictory that will not help the appellant as I find thatthe Learned Additional District Judge was quite correct when he held thatthe appellant failed to prove both the defences taken by them. Although itis not necessary to deal with this matter yet in view of the fact that theRespondent has vigorously argued on this subject I thought I should expressbriefly, my views on this matter.
The Appellant based her case mainly on two defences. The first of thetwo is that the property in suit is trust property held by the Respondent intrust for the appellant and the second defence is that the appellant acquireda prescriptive title to the said property. In the written submissions filed onbehalf of the Respondent, the Respondent contends that the two claims/defences taken by the appellant, cannot be maintained as they are whollyinconsistent and in conflict with each other. In other words the Respondentsargument is that if the property is held in trust on behalf of the appellantthen the defence of prescriptive title of the apellant cannot stand ; by thesame token if the appellant maintains that she had acquired a prescriptivetitle to the said property then the claim/defence that the said property isheld in trust by the Respondent on her behalf cannot exist; that is to saythat the Appellant cannot be allowed to Approbate and Reprobate one and
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the same time (blow hot and cold, to affirm at one time and deny at another).In support of this the Respondent relies on two decision namely KandasamyVs Gnanasekararri3* and Ranasinghe Vs Premawardena.w Both thosecases are Rent and Ejectment cases of which the facts are completelydifferent from the instant case. In Kandasamy vs Gunasekaram the premiseswere subject to Rent Act No.7 of 1972 and the Plaintiff sought to eject thetenant on the ground that the premises were reasonably required for his useand occupation. A year's notice of the termination of the tenancy has beengiven by him to the defendant in terms of section 22 (6) of the Rent Act. TheDefendant in his answer denied that he was a tenant of the premises. Thetrial judge held on the evidence that the Defendant was the tenant of thepremises under the Plaintiff, that the premises were reasonably required forhis use and occupation and ordered the ejectment of the defendant. TheCourt of Appeal affirmed this finding of reasonable requirement which waschallenged in appeal. The Supreme Court set aside the finding of reasonablerequirement, but held that the District judge came to a correct finding thatthe Plaintiff was entitled to the order of ejectment of the defendant on thebasis that he was never a tenant of the premises as the defendant himselfhad denied in his answer that he was a tenant. The basis of this judgment isthat one cannot claim the benefit of the provisions of the Rent Act whilstdenying that he is a tenant. (Approbate and Reprobate)
In Ranasinghe l/s. Premawardana and Others (Supra) too it was heldthat the tenant was not entitled to notice because he had repudiated histenancy. In such a case the land lord need not establish any one or moreof the grounds of ejectment stipulated in section 22 of the Rent Act No.7of 1972 for success in his suit for ejectment.
I fully agree with this statement of law expressed in the two casesmentioned above. But I am constrained to disagree with the view expressedby the counsel for the Respondent that the two defences mentionedabove cannot exist side by side in a fit case if the circumstances of thatcase warrant such strategy.
Section III (1) of the Trust Ordinance No.9 of 1917 makes provision toexclude the defence of prescription in respect of actions for trust. Section
Hl(1>-
In the case of any claim by any beneficiary against a trusteefounded upon any fraud or fraudulent breach of trust to which thetrustee was party or privy;
In the case of any claim to recover trust property or the proceedsthereof still retained by a trustee, or previously received by thetrustee and converted to his use; and
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In the case of any claim in the interest of any charitable trust,for the recovery of any property comprised in the trust, or for theassertion of title to such property,
the claim shall not be held to be barred or prejudiced by any provision ofthe Prescription Ordinance.
The whole purpose of section 111(1) is to protect the trust property andthe beneficiaries and not to protect the trustee. This section does notstipulate that the beneficiary cannot prescribe against the trustee.
Lucia Perera t/s Martin Perera was a case where A, bought an undivided1/4 share in a land at the request of his daughter B who had paid thepurchase price, but, contrary to his mandate he obtained from thevender a conveyance in which A, not B, was named as purchaser. Shortlythereafter B, under the belief that she was the absolute owner, went intooccupation of a divided allotment which represented the undivided shareand remained in occupation of it for over 19 years on the basis that shewas entitled to possession in her own right. During that period, A, wheneverhe was requested by B, to execute a fresh conveyance in her favour,promised to do so. Subsequently, however, A, without the knowledge of Bconveyed the 1/4 share to C, who was in fact a bona fide purchaser forvalue without notice of the trust. It was held that B, had acquired prescriptivetitle to the land before the date on which the share was conveyed to C, andtherefore, her rights were completely protected. The request of B, that A,should execute a conveyance of the property did not constitute anacknowledgement of As rights so as to interrupt B’s possession utdominus. Mohamed vs Abdul Gaffor<6>, Bahar vs Buraf7) Vaidhianathanand Another vs Indoor Mohideen and Another From this it is clear thatunder certain circumstances a beneficiary can prescribe against a trusteebut not vice versa. In the instant case, no matter whether the appellantwas successful or not in proving that he prescribed to the land, quiteindependently of that, the appellant was not precluded in law from takingboth the defences together at the trial.
For the reasons adumbrated above I find no justification in interferingwith the judgment of the Additional District Judge of Mt. Lavinia dated
delivered in case No. 1954/L. Accordingly this appeal isdismissed with costs fixed at Rs.5,000, to be paid to the Respondent bythe Appellant.
EKANAYAKE, J. -1 agree.
Appeal dismissed.