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
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.