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IBRAHIM
V
THE BOARD OF TRUSTEES OF THEJAMIUL HARIRATH JUMMA MOSQUE AND OTHERS
SUPREME COURT.
G.P.S. DE SILVA, C.J.,
KULATUNGA, J. ANDWADUGODAPITIYA, J.
S.C. APPEAL NO. 97/94.
S.C. SPL. L. A. NO. 166/94.
A NO 202 /86 F.
C. PANADURA CASE NO. 15212 IP.
10 JANUARY & 7 MARCH, 1995.
Partition- Prescription Title- Family settlement by Administrator's Conveyancedistributing properties – Does Family Settlement by deed constitute an ouster?- Effect of Partition decree on Administrator's Conveyance.
An administrators's conveyance distributing the family property will resultin an ouster. Even though by a later Partition decree the family settlementwas ignored and title on the amicable settlement effected by Administrator'sConveyance would have been wiped out, continued possession on thebasis of acceptance of the family settlement will result in the parties inpossession acquiring prescriptive title.
Cases referred to:
Ponnambalam v. Vaithialingam (1978) 79 NLR 166
Alexander v. Jayamanne 79 (2) NLR 184
Alithamby v. Bastian [1984)1 Sri LR 243, 246.
Wijesena v. Fernando 78 NLR 193.
Corea v. Iseris Appuhamy (1911)15 NLR 65
Wickramaratne v. Alpenis Perera [1986)1 Sri LR 190, 194.
APPEAL from judgment of the Court of Appeal.
N.R.M. Daluwatta P.C. with Samantha Abeyjeewa for Plaintiff-Appellant-Appellant.
K.H.J. Pelrts with U. Gunawardena for 3rd, 5th, 6th, 9 A and 10th Defendants-Respondents-Respondents.
Cur.adv.vult.
sc
Ibrahim v. The Board of Trustees of the Jamiul Harirath Jumma
Mosque and Others (Wadugodapitiya, J.)
369
March 23, 1995.
WADUGODAPITIYA, J.
The Plaintiff-Appellant instituted these proceedings to partition theland described in the schedule to the plaint and shown in plan 1155made by Y.B.K. Costa, Licensed Surveyor, and produced marked ”x°.The land actually sought to be partitioned is Lot 10 in final partitionplan 2412 of the District Court of Panadura in case No 211 ( Plan PI,made by Lucas H.de Mel, Licensed Surveyor).
The case proceeded to trial on several points of contest, the mainpoint of contest being whether the contesting Defendants-Respond-ents had acquired prescriptive title to the corpus. The District Courtheld in favour of the contesting Defendants-Respondents, and dis-missed the action. The Plaintiff- Appellant's appeal to the Court ofAppeal was also unsuccessful. Hence the present appeal by the Plain-tiff- Appellant to this Court.
The facts unfold in this way: Kalutantrige Haramanis PeirisGoonetilleke was the orginal owner of the larger land, Dawatagahawatte,in extent A 4 -R0- P10,( vide Plan 2412 dated 17.4.1950 and made bythe said Lucas H. de Mel, Licensed Surveyor), of which the corpus inthe instant partition action, viz, Lot 10, in extent Al- R2- P22(vide thesaid plan 2412 and plan 1155 dated 11.8.78 and made by the saidY.B.K. Costa, Licensed Surveyor and marked "x"), forms a part. Hetransferred the said Dawatagahawatte to his two sons, Cornelis PeirisGoonetilleke and Johanis Peiris Goonetilleke.
Cornelis Peiris Goonetilleke died, leaving as his heirs, his widow DonaJohana Siriwardane Hamine, and his five children-
Herman Peiris Goonetilleke,
James Peiris Goonetilleke,
Albert Peiris Goonetilleke,
Richard Peiris Goonetilleke, and
Leonora Peiris Goonetilleke.
Johanis Peiris Goonetilleke died , leaving as his heirs, three chil-dren, one of whom was Aron Peiris Goonetilleke.
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On 25.7.1946, Dona Johana Siriwardane Hamine, the widow ofCornells Peiris Goonetilleke (who was the Administratrix of the estateof Cornells), excuted Deed No.1876, an Administrators Conveyance(marked 5 D4) for the purpose of distributing the several lands ownedby Cornells amongst his heirs, including herself. All the lands whichhad belonged to Cornells were divided into Six Schedules labelled A,B, C, D, E, and F , and the distribution was as follows:-
The lands in Schedule A went to Siriwardane Hamine
The lands in Schedule B went to Herman
The lands in Schedule C went to Leonora
The lands in Schedule D went to Albert
The lands in Schedule E went to James
The lands in Schedule F went to Richard.
Where the larger land Dawatagahawatte (in extent A4- R0- P10)was concerned, by the said Administrators' Conveyance (5D4), halfof it was givetj to James and the other half to Richard, so that, byvirtue of 5 D4 the entirety of Dewatagahawatte became vested exclu-sively in James and Richard in equal shares. This however, was in theteeth of the transfer of the said Dawatagahawatte by KalutantrigeHaramains Peiris Goonatilleke to his two sons Cornelis and Johanis.
A significant point here is that all the heirs of Cornelis signed theAdministraters Conveyance 5 D4, whereby each accepted what wasgiven to him and relinquished all rights to the rest.
Learned Counsel for the Respondents submitted that the Adminis-trator's Conveyance (5D4) constituted a family settlements of Cornelis'lands and that such settlement finally put an end to the co-ownershipof those lands by his heirs. He cites the case of Ponnambalam v.Vaithialingarrf" in support. He submits further, that a family settle-ment would amount to an ouster even if not reduced to the form of anactual conveyance and cites Alexander v. Jayamanne™ in support.He most strongly urges that, inasmuch as the other children of Cornelisviz., Herman, Leonora and Albert have in fact signed the Administra-tors' Conveyance (5D4), it" points unequivocally to a voluntary aban-donment which is stronger than ouster, and brings to an end co-owner-ship"; Allthamby v. Bastian.(3)
sc
Ibrahim v. The Board of Trustees of the Jamiul Harirath Jumma
Mosque and Others (Wadugodapltiya, J.)
371
Things went awry however, when after the execution of the Admin-istrator's Conveyance (5D4), Aron Peiris Goonetilleke the son and heirof Cornelis' brother, Johanis (and in one way an heir of Cornelis) fileda partition action , D.C Panadura Case No 211, to partition the ances-tral land, Dawatagahawatta, as he found his cousins enjoying it exclu-sively. This partition case however, proceeded to a conclusion withoutany reference to the Administrator's Conveyance (5D4) and wound upwith a final decree dated 8.5.1951 (P2), allotting, in common, Lot 10,(which was a portion of Dewatagahawatte) not only to James andRichard (who already owned and possessed it) but also to Herman,Leonora and Albert who had already relinquished all rights to it. It iscommon ground that the said Lot 10 constitutes the corpus of thepresent partition action, and was, after the said partition decree (P2),owned in common by all five children of Cornelis viz. the said Herman,Leonora, Albert, James and Richard.
The dispute in the instant case lies in the fact that whilst the Ap-pellant claims a share of the corpus by virtue of purchases made fromthe heirs of Herman, Leonora and Albert, basing their title on partitiondecree (P2), the Respondents claim title to the same corpus (Lot 10)from James and Richard, basing their title on acquisitive prescriptionof Lot 10 by the said James and Richard to the total exclusion ofHerman, Leonora and Albert, after the partition decree (P2).
The Appellant contends that rights, if any, acquired by James andRichard in terms of the Administrator's Conveyance (5D4) were wipedout by the partition decree in D.C Panadura Case No 211 (P2), and thatthe new title created in the names of Herman, Leonora and Albert wascapable of transferring ownership to him.
The Respondents' position on the other hand, was that even thoughthey concede that the said final decree(P2) conferred title upon Herman,Leonora and Albert, the latter never exercised rights of ownership inview of the family settlement entered into by the Administrator's Con-veyance (5D4) and that therefore even after the final partition decree(P2)was entered, James and Richard continued to possess the said Lot10, exclusively and adversely to all others without recognising the rightsof Herman, Leonora and Albert, and that they (i.e James and Richard)thereby acquired prescriptive title to the said Lot 10 subsequent to thepartition decree(P2).
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At this point, it may be necessary to consider the effect of thesubsequent partition decree (P2) on the earlier Administrator's Con-veyance (5D4). It was conceded by learned Counsel for the Respond-ent that 5D4 was rendered void by the operation of section 17 of thePartition Ordinance (which was the operative law at the relevant time),as 504 was not written subject to the partition action, D.C. PanaduraNo 211. It was also conceded that this position was correct; but onlyto the extent of the disposition with regard to Dawatagahawatte, andnot as regards the disposition with regard to the other lands in 5D4,which latter remained untouched by the partition decree (P2).Thus,since the partition case 211 only related to Dewatagahawatte, Jamesand Richard lost their sole title to Dewatagahawatte which title theyhad originally got from the Administrator's Conveyance 5D4.
It is however correct to say that even though the rights acquiredby James and Richard by virtue of 5D4 were wiped out by the partitiondecree (P2), the said James and Richard were not precluded in lawfrom acquiring fresh title, subsequent to the partition decree (P2), byacquisitive prescription.
First, it seems to me, in this connection, that in the minds ofCornells' children, the family settlement of their father's lands by 5D4was the operative writing which was sacrosanct where they were con-cerned. The children were united and friendly at all times, and there isno reason to think that any of them would have wanted to violate theterms of 5D4; least of all, for three of them, Herman, Leonora andAlbert to deprive their brothers, James and Richard of what they re-ceived under 5D4 and what Herman, Leonora and Albert in fact aban-doned under 5D4. Therefore, to my mind, the reasonable presumptionin the circumstances would be that, in terms of the family settlement,(5D4), James and Richard continued to physically possess the corpusas their own, to the total exclusion of Herman, Leonora and Albert. Itis also reasonable to presume that, inasmuch as Herman, Leonoraand Albert had relinquished and abandoned their rights to the corpus,having got in exchange, rights in other lands, they were no longer in-terested in any way in the corpus.
It must not be forgotten that the Partition Action 211 was not filedby any member of Cornells' family since their land matters were set-
sc
Ibrahim v. The Board of Trustees of-the Jamiul Harirath Jumma
Mosque and Others (Wadugodapitiya, J.)
373
tied by 5D4.That action was filed by their cousin, Aron who wanted topartition Dewatagahawatte because he found that James and Richardwere enjoying it exclusively. Not knowing about the family settlement5D4, Aron named all the five children of Cornells as defendants to thePartition Case 211.
At the trial in the District Court, various suggestions were made bythe Appellant. One was that in addition to James and Richard, theothers, viz., Herman , Leonora and Albert also physically possessedLot 10. However, the Learned District Judge after carefully examiningthe evidence on the point rejected this contention.
The Appellant thereafter contended that James, by himself, physi-cally possessed Loti 0, but that such possession was not solely on hisown behalf, but on behalf of Herman, Leonora, Albert and Richard aswell. The Respondents deny this and point out that Richard was amental patient whose person and property were both looked after byJames, and that the exclusive possession by James was in fact, onbehalf of himself and his incapacitated brother Richard only, and neveron behalf of Herman, Leonora and Albert. The Respondents add that itis common ground that there was amity and total friendliness amongstthe family members, and that, as the Learned District Judge observed,“ It is unimaginable that having got their share in the estate, Herman,Albert and Leonora would also try to possess a share in a land given toJames and Richard".
The Appellant attemps to muster support for his contention thatJames physically possessed Lot 10, after the partition decree (P2) forand on behalf of himself and his sister and brothers as aforesaid, bydrawing attention to what happened at a subsequent stage in the parti-tion action No.211, where James and Richard had to eject some squat-ters from the corpus, and for this purpose joined Herman, Leonora andAlbert.The Appellant says that this showed common possession.
The Respondents, contra, state as follows:- The partition actionD.C.Panadura No.211 was filed by Aron Peiris Goonetilleke. There isno evidence of the participation of Herman, Leonora and Albert in thepartition case No.211 up to the stage of entering final decree, presum-ably because, in terms of the family settlement (5D4), they had no
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claim to the corpus. Therefore, it was only James and Richard (whohad been given a half share each of Dawatagahawatte by (5D4) whofiled their proxies and statements of claim. It was after final decree(P2) was entered that the question of ejectment of squatters from Lot10 arose. Since Lot 10 was allotted by P2 not only to James andRichard, but also to Herman, Leonora and Albert, upon the Court sodirecting, the same Proctor who was appearing for James and Richard,filed the proxies of Herman, Leonora and Albert, and thereupon writwas allowed. The Respondents therefore submit that, far from what theAppellant suggests, Herman, Leonora and Albert came into the casenot for the purpose of setting up a claim, in which case they ought tohave come in much earlier and filed their statements of claim but onlyto assist their brothers James and Richard to overcome the legal im-pediment to the issue of writ, since it was necessary that all the fiveco-owners of Lot 10, as declared by the final decree P2, should join inasking for writ.
Much was made in this connection by the Appellant, of 5D7 whichis the Journal Entry No:377 dated 7.1.52 which stated as follows:-
"Writ of possession returned with report that possession of Lot10 was delivered to the 2nd Defendant on behalf of 1,3,4 and 5Defendants."
James and Richard were the 2nd and 4th Defendants respectively,while Herman, Albert and Leonora were the 1 st, 3rd and 5th Defend-ants respectively.
While the Appellant insisted that this Journal Entry showed jointpossession, the Respondents submitted that if this item of evidence,is viewed from its proper perspective, it would be apparent that boththe legal necessity to file the proxies of Herman, Leonora and Albert,and the necessity for the Journal Entry (5D7) to state that possessionwas handed over on behalf of all stemmed from the fact that the finaldecree (P2) created title in all five. The Respondents stress that untilacquisitive prescriptive title is created at a future date, the final decree(P2) would be paramount and that therefore whether they liked it ornot,if James and Richard wanted the squatters ejected from Lot 10,there was no alternative for them, but to conform to the legal proce-
sc
Ibrahim v. The Board of Trustees of the Jamiul Harirath Jumma
Mosque and Others (Wadugodapiliya, J.)
375
dure necessary for the purpose. Learned Counsel for the Respondentscited a dictum by Sharvananda, J. in Wijesena v. Fernanda to theeffect that it was necessary for a Court at times to take a “realistic”rather than a “legalistic" view of facts, and submitted that the realquestion was, not whether an act of a "legalistic" nature was done toconform to the final decree (P2), but .whether, in actual fact Jamesaccepted delivery of possession on behalf of all, not as a mere formal-ity, but with intent to benefit Herman, Leonora and Albert as well.Thequestion Learned Counsel for the Respondents further poses is, whetherHerman, Leonora and Albert asserted title on their own behalf andadversely to James and Richard so as to negative their earlier aban-donment of their rights under the family settlement (5D4).The answerto this question seems to be in the negative.
I have considered the above questions carefully and am compelledto the view, having taken into account ail the material set out above,that James possessed Lot 10 on behalf of his incapacitated brotherRichard and himself only, and further, that he did so adversely to Herman,Leonora and Albert. I am also of the view that in the circumstances ofthis case it cannot be said that James accepted delivery of posses-sion on behalf of Herman, Leonora and Albert, as set out in the JournalEntry(5D7), which entry was, I feel, an act of a "legalistic" nature donein order to conform to the final decree (P2).
As may be seen then the main question that arises for decision,namely whether the possession of Lot 10 by James and Richard wasadverse to the other three members of the family, viz., Herman, Leonoraand Albert, must be answered in the affirmative.
A further question arises as to whether ouster is necessary. Thisquestion must be looked at in the context of this case having regard tothe peculiar facts of this case.
In the instant case, James and Richard originally entered into ex-clusive possession of the larger land.Dawatagahawatte by virtue ofthe Administrative Conveyance (5D4), the very purpose of which wasto settle the lands amongst the family members and to put an end toco-ownership. As set out above, in terms of 504, James and Richardwere allotted Dawatagahawatte and the other three children, viz, Herman,
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Leonora and Albert relinquished and abandoned their rights toDawatatagahawatte. Therefore James and Richard entered upon thepossession of Dewatagahawatte as sole owners. As set out above,the partition decree in case No.211 (P2) reduced their holding to Lot 10only, but nevertheless James and Richard continued to possess eventhe said Lot 10 as sole owners; the Conveyance 5D4 being still valid•and sacrosanct in the minds of the family members who signed it. Inthese circumstances, it appears that there was, in effect, an ouster ofHerman, Leonora and Albert. Thus the entirety of the co-owned prop-erty after P2, was Lot 10, and it is clear that James and Richard,having entered into exclusive possession thereof much earlier, contin-ued in possession of Lot 10 in the belief that they were the sole own-ers, inasmuch as the other three had already relinquished and aban-doned their rights to it in writing and continued to be of the same mindeven after the partition decree, (P2).
In any event, even if ouster is considered a necessary ingredientin terms of Corea v Iseris Appuhamy,(s) the Court of Appeal inWickramaratne v. Alpenis Perera{6) held that, "If in fact there was evi-dence that the separation of the corpus was with the prior approval ofall the co-owners, then that fact may be sufficient evidence of ouster."
In the instant case, the "separation” occurred on 25.7.1946 after5D4, and as has been seen, such "separation" continued unbrokendespite the partition decree (P2). In terms of the above dictum, it seemsthat, that fact alone would amount to sufficient evidence of ouster. Itmust of course, be mentioned that the Appellant has failed to presentany convincing evidence to the contrary.
Another fact relevant to this issue is that whereas neither Herman,Leanora nor Albert, although declared to be co-owners by P2, everdealt with any rights to the corpus during their lifetime, it is in evidencethat both James and Richard executed deeds on the basis that theywere the sole owners of the corpus. Eg. Deed P9 (page 576) whichwas produced by the Appellant himself was one of the earliest deedswritten by James after partition decree (P2) was entered. Thus in 1952itself, James has dealt with the land as owner. Also Deed 5D1 (page630) was written in 1964 by Richard, also after the partition decree(P2). Here too, Richard has dealt with the land as owner. (This deed
sc
Ibrahim v. The Board of Trustees of the Jsrrtiol Hsrirath Jumma
Mosque and Others (Wadugodapitiya, J.)
377
was attacked as it was executed at the Mental Hospital.) Thereafter,on 28.8.1967, the Deed 2D1 (page 485) was executed by James, alsoas owner.
Another significant fact is that it was only on 15.12.1976 that theAppellant made his first purchase from the heirs of the other three "co-owners". (viz:, Herman, Leonora and Albert) i.e., full quarter of a cen-tury after the entering of the partition decree P2 on 8.5.1951. By thattime, a successor in title to James had, as shown by plan 5D8 of8.9.1968, even gone into divided possession of an extent of 2 Roodson the South by erecting a barbed-wire fence.
Thus, it appears that James Peiris Goonetilieke and his brother,Richard Peiris Goonetilieke had been in exclusive possession of thecorpus from the date of delivery of possession of the said Lot 10 on7.1.1952, after partition decree (P2), and that they had held the corpusadversely to the other three members of the family, viz., Herman,Leonora and Albert, and had thereby acquired prescriptive title to thesaid Lot 10.
In the circumstances, I can see no basis for interfering with theconcurrent findings in favour of the Respondents.
I hold accordingly, and dismiss this appeal with costs.
P.S. DE SILVA, C.J. -1 agree.
KULATUNGA, J. -1 agree.
Appeal dismissed.
