J. M. DON HANNY ALEXANDRA, Plaintiff- Appellant and J. M. DON THOMAS JAYAMA

029-NLR-NLR-V-79-2-J.-M.-DON-HANNY-ALEXANDRA-Plaintiff-Appellant-and-J.-M.-DON-THOMAS-JAYAMA.pdf


184
A/oxan'Ira v. •/aijamannc
1978Present : Udalagama, J.. Ismail, 3. ami
Tittawella. J.
J.M. DON HANNY ALEXANDRA, Plaintiff-Appellant
and
J. M. DON THOMAS JAYAMANNE, Defendant-RespondentS. C. 21/73 (Inty.) —D. C. Negombo 1143/P –
Prescription—Co-otoners—Family arrangement whereby property r.fdeceased given to one of the heirs by the others—Ouster—Evidenteof adverse -possession thereafter by such heir—Acquisition of titleby prescription.
Whore the heirs <o the estate of a deceased person agree thatpren^rt.v of the deceased he given <o nn° of the i"'irs s.,"hde/'ic'on amounts to an ouster of the rights of the other heirs.Aeeordinglv suf'h a nersor. acquires r>rr.scrio<ivc title wlv're theevidence sho’vs th^t. he has possessed ih" nron«ri.v for over 10 yearsadverse to and independent of all the oi.her heirs.
UDAL.AGAMA, J.—Alexandra v. Jayamanne
186
Ca^e referred to:
Mailuaganam v. Kandaiya, 1 C.W.R. 175.
W. Jayewardene, Q.C., with N. R. M. Daluwatte and MissSriyangani Fernando, for the plaintiff-appellant.
C. Ranganathan, < for the defendant-respondent.
Cur. adv. vult.
May 25, 1978. Udalagama, J.
The plaintiff-appellant in this case sought to partition theland called Madangahawatta alias Suriyagahawatta depicted inPlan 1961 of 18.9.71 and 5.11-71 filed of record marked X andcomprising of Lots 1 to 13. It was common ground that MarthelisSaparamadu alias Appuhamy was the original owner of the saidland and that he died leaving as his heirs, h'.s nine childrenThomas Jayamanne the 1st Defendant, J. M. Jayamanne, David,Hannie Alexandra the plaintiff, Agnes, Josephine, Charlotte, Lilyand Matilda. J. M. Jayamanne, David, Agnes, Josephine, Char-lotte, Lily and Matilda donated their rights to their brotherThomas Jayamanne the 1st defendant who thus became entitledto a 8/9 share of the said land. In respect of the 1/9 shareof the plaintiff, the 1st defendan’s case was that immediatelyafter the death of his father Marthelis Saparamadu alias Appu-hamy in 1955, there was a family arrangement among all the 9heirs of the deceased, where it was agreed that the undispersedproperties of the deceased, including the land in suit, shouldgo to the 1st defendant, and by virtue of this agreement the1st defendant entered into possession of the land in suit andpossessed the same adversely and independently of the otherowners of the said land, and acquired a prescript've title to thesame. The case went to trial on the question whether the 1stdefendant had acquired a prescriptive right to the plaintiff’s1/9 share of the land in suit. The learned District Judge aftertrial, held that the 1st defendant had prescribed to the 1/9share of the p’aintiff-appellant and dismissed the plaintiff-appellant’s action with costs.
Learned counsel for the plaintiff-appellant has canvassed thefindings of the learned District Judge in favour of the 1st defen-dant-respondent on several matters. It was contended tint, thefact tint the deceased’s other children, apart from the plninliff,had donated their undivided rights to the 1st defendant and t^e1st d°fendant had «o’d d:v:dod extents nut of h's undivided8/9 share, negatived a familv arrangement, whereby the 1st(jefondmi was to net pioin s"it. P'urther it was
submitted lhat according to Charlottes’ evidence, the plaintiff-appellant was not a consenting party to the 1st defendant getting
186
UDALA.GAMA J.—Alexandra, v. Jayautaimc
the undispersed lands. Finally it was argued, that according toCharlotte, the 1st defendant and the p’amtifr were not on cordialterms from 1945 and it was highly improbable that she wouldhave consented to the 1st defendant being given her rights ofall the undispersed properties of the deceased. As against thesesubmissions of learned counsel for the plaintiff-appellant,counsel f,or the 1st defendant-respondent, submitted, that it wascommon ground that after Marthelis Saparamadu's death on14.11.1955 there was a conference among all the children ofMarthelis and that after this conference, the 1st defendantpossessed the undispersed properties cf the deceased and tookthe income from them and paid the rates and taxes until thefiling of the present action in March 1971. It was also submittedby Counsel for the 1st defendant-respondent, that at the con-ference held immediately after the death of Marthelis, fon14.11.1955, the heirs of Marthelis including the plaintiff-appellant, came to a family arrangement, whereby the 1stdefendant-respondent, who had not been' given any propertiesduring the lifetime of the deceased, whereas all the others hadbeen given deeds, should get all the undispersed properties ofthe deceased. On this family arrangement, the 1st defendantentered into possession of the land in dispute and possessed thesame adversely and independently of all others, including thepis intiff-appellant, and acquired a prescriptive title to the same.
The important question that arises for our decision in thiscase is whether there was a family arrangement soon after thedeath of Marthelis, whereby the 1st defendant was to get, allthe undispersed properties of the deceased including the '’andin su’t, and pursuant to such an arrangement, the 1st defendantpo~sessed the land .to the exclusion of the other heirs, andacquired a prescriptive title. If one of the heirs of a commondeceased owner, in pursuant of a family arrangement where allthe other heirs agreed to his getting the entire property, entersinto sole possession of the common property and possesses thesame to the excTusion of al1 others for 10 years or more, suchan arrangement, would be an ouster.of the rights of the othersand he wUl be entitled to a prescriptive title in respect of theshares of the heirs. In Mvlvaganam v. Kandaiya, 1 C.W.R. page175, De Sampayo, J. stated : —
“ It seems to me that the Commissioner has misunderstoodthe nature of ouster required for the purpose of prescriptionamong co-owners and of the evidence necessary to provesuch ouster. There is no physical disturbance of possessionnecessary—it is sufficient if one co-owner has to the know-ledge of the others taken the land for himself and begun to
UDALAGAMA, J.—Alexandra v. Jayamanne
187
possess it as his own exclusively. This sole possession is oftenattributable to an express or, tacit division of family propertyamong the heirs and the adverse character of exclusivepossession may be inferred from circumstances.”
The burden of establishing prescriptive title to the entire landwas clearly on the 1st defendant. It is common ground th itshortly after the death of Marthelis, there was a conference inthe mulgedera of the heirs of the deceased, where certain deci-sions were taken in regard to the estate of the deceased. Theplaintiff’s position is that at this conference, at the suggestionof J. M. Jayamanne one of the children of the deceased and aleading Advocate, it was agreed by all the heirs, that the 1stdefendant look after the undispersed properties of the deceasedand pay all the debts and taxes. 1116 position of the 1st defendanton the other hand was to quote his own words “ I came to possessThose lands because on the day of my father’s burial a meetingwas held at my father’s house in a room and my brothers andsisters agreed to hand over these lands to me because of theintention of my father to give these lands to me. Immediately thenI entered into possession of all the .lands and up to date 1 am inpossession of these lands ”. In view of the two conflicting positionstaken up by the plaintiff and the 1st defendant it becomesnecessary to examine what exactly was decided upon, at theconference held soon after the death of their father on 14.11.1955.
B Both the plaintiff and the 1st defendant relied to a large extenton the evidence of Charlotte, their youngest sister. Charlotte’sevidence on the point as appearing in the English version of theproceedings is as follows : —
“ AH of my brothers and sisters got together and had adiscussion in my father’s house and gave the lands to himto be looked after.
Q.You were asked to look after the properties on whosebehalf ?
A. On behalf of my/brother the 1st defendant.
My father had prepared a deed to give over these landsto the 1st defendant and I am aware of it. He was askedto come and sien the deed, but he did not come to siern it.On the day of the discussion the other brothers and sistersalso knew that my father had got prepared a deed in favourof the 1st defendant. The lands were given to me to be lookedafter and to be given to the 1st defendant. Al1 of us d:som:s*dthe matter and came to an understanding that we shouldgive the tanas to the 1st defendant, hut only the plaintiff
188
UDALAGAMA, J.—Alexandra v. Jayamanne
It was also her evidence that the 1st defendant paid the estateduty as he was possessing the lands and that up to the date ofher giving evidence, she was looking after the lands for the 1stdefendant and she gave the income trom the land in suit to the1st defendant and the plaintiff never claimed her 1/9 shareof the income from her. It was common ground that Charlottelooked after the land until the present action was filed. Charlotte’sevidence was that she looked after the land for the 1st defendant.The plaintiff’s position was that J. M. Jayamanne entrusted theland to the 1st defendant who got Charlotte to look after theland. Now th:s posit'on of the plaintiff, as. stated by learnedcounsel for the 1st defendant, looks highly artificial. After all,why should J. M. Jayamanne entrust the.property to the 1stdefendant, if Charlotte was to look after the prooerty. The 1stdefendant was living in Colombo and was employed in govern-ment service as an electrical engineer. J. M. Jayamanne couldvery well have emrusted the property to Charlotte straightawayinstead of adopting a devious route. The only reasonable inferenceone could draw fTom t.he 1st defendant getting Charlotte to lookafter the land, is because the 1st defendant was niven the landby all the heirs and the 1st defendant requested Charlotte tolook after the land as she was living in the adioining property.It was the evidence of the plaintiff that some time before thedeath of Marthelis, he gave deeds of gift to all the childrenexcent to the 1st defendant. She denied any know’edpe of ~nintention on the part of Marthelis, to give the 1st defendantalso a deed of gift. Charlotte on the other hand in her evincequoted above categorically states *hat a de^d -.revved togive the undispersed properties to the 1st defendant.
Learned counsel for the plaintiff-apoellant strongly contendedthat it was hitdi’y imorobabie. that the plaintiff wo^’d haveconsented to her 1/9 share being given to the 1st defendantas she and the 1st defendant had not been on cordial terms since1945. This is a circumstance that has to be considered in arriving

did not consent to it. At^that time the plaintiff consented toher share also being given to the 1st defendant, but later shedid not sign the deed. 1st defendant paid the estate duty ashe was possessing the lands .”
The Sinhalese version of her evidence is as follows : —
ITD.I.,ACI..IA, J.—Alexandra r. .Juj/atnnnve1h1>
at a conclusion, whether the plaintiff would have consented toher share being given to 1st defendant. In the statement of claimfiled by the 1st defendant, he had taken up the position thatthere was an agreement among the.-heirs of Marthelis Appuhamyafter his death, that he (1st defendant) should enter into exclu-sive possession of the entirety of the land in suit and otherundispersed lands and that he should pay the estate duty onthe said lands. Accordingly he entered into possession of the landin suit and other lands on 15.11.55 and paid the estate duty onfthe said lands and acquired a prescriptive title thereto. At thetrial the 1st defendant raised the point of contest, whether therewas an agreement among the heirs of Marthelis in regard tothe undispersed properties of the deceased, and in pursuant tosuch an agreement whether the 1st defendant had entered intoexclusive possession of the land in suit. The plaintiff would havehad no doubts in the face of . the statement of claim of the 1stdefendant about the position taken up by the 1st defendant. Stillin the entirety of her evidence there is only this sentenceelicited in cross-examination in regard to the ill-feeling betweenher and the plaintiff : —“ I was not on good terms with thedefendant from 1945 and I was not associating with him ”. The1st defendant was cross-examined on this alleged ill-feeling andhis evidence was : —
“ Q. Was not there a very unhappy incident between theplaintiff’s husband in 1943 to 1945 ?
A. No.
Plaintiff said that there was no cordiality between herselfand myself from 1945 but that is not true.
Q.Was there hot a threat of violence between yourself andher husband ?
A. That is absolutely untrue.
When the plaintiff came for the survey I spoke to her andto her son. 1 even asked about the motor race from her son. ”
Charlotte in her evidence under cross-examination stated: —
“ I do not know the incident at which the plaintiff and 1stdefendant fell out and whether it was an incident over whichthey were to come to court. From 1945 the plaintiff and the 1stdefendant are angry ”. An examination of the evidence on thispoint given by the respective witnesses, at most shows thatthere had been some incident in 1945 but as to what exactlythat incident was, is not very clear. Was it of such a seriousnature that it disrupted the filial relations between brother andsister ? or was it some trivial incident which neither party took
19(tTIDAL, AG AM A, J.—Alexandra v. Jayamanne
account of ? There was a suggestion made to the 1st defendantby counsel for the plaintiff at the trial that the incident was athreat of violence by the ^st defendant to the husband of theplaintiff. The 1st defendant rejected the suggestion as “ absolu-tely untrue The plaintiff in her evidence did not elaboratethis incident, although it was an important point in her case.Counsel for the plaintiff argued, why was the 1st defendantdenying that his feelings with the plaintiff were not cordial,when Charlotte was admitting there was such ill-feeling. Oneexplanation may be, that even if there was such an incident itwas so trivial that the 1st defendant would not have harbouredany ill-feeling against the plaintiff. Another explanation may bethat whatever the feelings between the 1st defendant and theplaintiff’s husband may have been, his feelings towards hissister the plaintiff were cordial. Plaintiff admitted she consentedat the conference after the death of her father to the 1stdefendant, managing the undispersed properties of the deceased.If the feelings between the parties were bad, would she haveconsented to such an arrangement ? The probabilities are shewould not. Moreover it is significant she did not ask for theincome from these lands up to the time of. her coming to courtin the present case. Surely would she not have at least askedfor an accounting or the income from the immovable propertiesin the testamentary case ? It is our conclusion that this ill-feeling,even if there was such an ill-feeling, was not one which theplaintiff harboured, to withhold her agreeing to the 1st' defendantgetting the undispersed properties of the deceased.
Finally it. was contended by counsel for the plaintiff, that thefact that the 1st defendant has accepted gifts of undivided sharesfrom J. M. Jayamanne, David, Agnes, Josephine, Charlotte! Lilyand' Matilda show that the heirs of the deceased Marthelis hadnot parted with their rights at the meeting held after the deathof Marathelis in November 1955. It will be noted that all thesegifts have been given nearly three years after the death ofMarathelis. If there was a family arrangement in 1955 and the1st defendant entered into exclusive possession of the entireland, their gifts only strengthen the adverse possession of the
UDA.LAUAMA, 3 .—Alexandra a. Jayamannei U1
1st defendant to the entire, iahd. Moreover the evidence of the1st defendant and Charlotte is that besides the agreement to givethe undispersed lands to the 1st defendant after the death ofMarathelis, there was also apromise by the heirs to transfer theirshares to the 1st defendant; The deeds 1D1 to 1D5 bear thisout. The fact that the plaintiff did not execute a deed of giftwould not affect the 1st defendant’s prescriptive title, if there wasthis family arrangement and the 1st defendant was in exclusivepossession of the land in suit in pursuance of it. It was alsosubmitted by counsel for the plaintiff-appellant, the fact that the1st defendant had executed deeds 2D1, 3D, 4D1, 5D1 and 6D, infavour of 2 to 6 defendants of divided extents, out of an undivided8/9 share, shows an acknowledgment by the 1st defendant ofthe plaintiff's 1/9 share. The 1st defendant’s evidence in regardto those conveyances is “ I had only paper title to 8/9 shares.It was at the request of the Proctor .that these deeds were written,in that manner. The 1/9 share that the plaintiff claims was alsopossessed by me ”. An examination of these deeds shows that whathas been conveyed are divided extents from the land calledMadangahawatte alias Suriyagahewatta depicted in Plan 336411(dated 1.1.68 and made by A. C. S. Gooneratne, Licensed Surve-yor. In the last para to the schedule the Notary has staled, thesedivided portions are from the undivided 8/9 share ofMadangahawatta alias Suriyagahewatta. Why the Notary addedthis para does not appear to be clear from the deeds. But oneexplanation may be, as stated by the 1st defendant, as the 1stdefendant had paper title to only 8/9th share, the Notary hadthought he was safe-guarding the rights of the vendee by puttingit that way. But what is significant is that the the 1st defendanthas undertaken to warrant and defend the title conveyed on thesedeeds. We reject the contention that the manner in which thesedeeds have been executed amounts to an admission by the 1stdefendant of the plaintiff’s 1/9 share.
On a proper evaluation of the evidence of Charlotte and theother circumstances, like the 1st defendant being in sole posses-sion of the undispersed properties of the deceased, taking theentire income from the same, paying all rates and taxes due on
102
UDALAGAMA, J.—'Alexandra v. Jayamauno
the said properties and the fact that the sum of Rs. 30,000 left bythe deceased was equally distributed among the heirs even beforeestate duty and debts of the estate were paid, and the fact thatthe 1st defendant paid all the estate duty, point to the clearinference that at the conference held after the death of Marathelisamong the heirs, it was decided that the 1st defendant be giventhe undispersed properties of the deceased. This decision was aclear ouster of the rights of the other heirs. His possession there-after was adverse and independent of all other co-owners. As 10years had passed since this ouster, at the time the present actionwas brought the 1st defendant has discharged the burden cast onhim of proving prescriptive title to the entire land.
We affirm the judgment of the learned District Judge anddismiss the plaintiff's appeal with costs.
Ismail, J.—I agree.
Tittawella, J.—I agree.
Appeal dismissed.