149-NLR-NLR-V-22-KIRIMENIKA-v.-MENIKHAMY.pdf
( 510 )
1991.
Present: Bertram C.J.
KIRIMENIKA v. MENIKHAMY.
10—<7. S. Ratnapwra, 16J48.
Informal partition among members of a family—Adverse possession—Permissive agreement—Possession of definite blocks for a longtime—Presumption that possession became adverse.
When members of a family make an informal but definite parti-tion of their lands, and each party enters into possession of hisshare* then the possession of the several shareholders beoomesadverse from the date of their doing so, and title by prescriptionoan be acquired.
Where the arrangement is permissive, then each co-owner mustbe deemed as possessing on behalf of himself and others, unlessthe arrangement continues so long that on equitable grounds it ispresumed that at some point it became adverse. Such a presump-tion is only drawn upon a consideration of all the circumstancesof the case.
rpiHE facts are set out in the judgment.
R. L. Pereira* for appellant.
E. 0. P. Jayatilake, for respondent.
July 18, 1921. Bertram C.J.—
This is a dispute between two members of a Kandyan family withregard to a land which forms part of the family inheritance. It wasat one time possessed by one Ukku Hamy who died leaving eightohildren. These children by deaths and diga marriages were in thecourse of time, for the purposes of the present case, reduced to two,Bauddahamy and his sister, Ramalhamy, the present first defend-ant.
The present action is the sequel to another which was tried outbetween the same parties, namely, C.R. Ratnapura, No. 15,894.
A question of fact has been raised to which it is first necessaryto refer. Ramalhamy was originally married in digay but herpresent claim is made on the basis that she had re-acquired binnarights. The learned'Commissioner refused to frame an issue on thisquestion, holding that the point had practically been conceded inthe previous action. The learned Commissioner was perhaps nottechnically right in this course, but there can be no doubt, in viewof the course taken at the previous action, and the evidence givenin the case that Ramalhamy had in fact for years been treated ashaving re-acquired binna rights. She must therefore be so treatedfor the present case,
( 811 )
There were two family lands, the first Iriyankufiabura now indispute, and the other Meddekumbura, which was the land indispute in the previous aotion. The shares of Bauddahamy andRamalhamy in these two lands were based partly upon inheritance,partly upon transfers from other members of the family, which it isnot necessary to particularize. In this way, brother and sisterbecame entitled in respect of Iriyankumbura to shares in theproportion of 3/8 to 5/8; «and in respect of Meddekumbura to sharesin the proportion of 9/16 to 7/16. They, nevertheless, by a sort oftaoit permissive arrangement possessed the lands in equal halves,and in the present case Bauddahamy possessed the upper portion,two pelas in extent, and ^Ramalhamy the lower portion, also oftwo pelas in extent. This arrangement by which the lands werepossessed in halves had prevailed even before the members of thefamily interested had been reduced to two.
On November 5,1906, Bauddahamy conveyed his interests in bothlands to his step-daughter, Kirimenika, the plaintiff in the presentaction, purporting in each case to convey a half. Possessioncontinued on the footing already explained. By the action C.R.*Ratnapura, No. 15,894, this state of affairs was for the first timedisturbed. Plaintiff attacked Ramalhamy and her family by thisaction and claimed 5/8 of Meddekumbura. Eventually, this aotionwas settled on the basis that plaintiff was entitled to 9yi 6 and defend-ant to 7/16. An order on the basis of this settlement was madeproviding for cultivation of the field in rotation and entitlingplaintiff to cultivate the whole of the field for one year, so as to giveher the advantage of her additional 2/16.
As I have said the present action is a sequel to that action.Dissatisfied, apparently, with the settlement whioh entitled Kiri-menika to reap the whole of the produce for one year, Ramalhamydetermined to reopen the question of Iriyankumbura also. Themethod she adopted for this purpose was an irregular one. Insteadof bringing an action, she took possession of the whole of the producefor one year, and this action was brought by the plaintiff to recoverdamages for the proceeding and for declaration of title.
The learned Commissioner has found for the defendants, and, insubstance, I think, he is right. Defendant is entitled to stand uponher strict legal rights, and if her legal title is investigated it will befound that she is the owner of 5/8 of the land and not of 1/2; nor isher position affected by the fact that for many years the land hasbeen possessed in equal shares.
When members of a family make an informal but definite parti-tion of their lands, and each party enters into possession of his share,then no doubt the possession of the several shareholders becomesadverse from the date of their doing so and title by prescription canbe acquired, but I do not take it that the arrangement in this casewas as definite as that. The learned Commissioner is, I think,
1921.
Bbbsram
ax
Kirimeniha
v.
Menikhcmy
( 612 )
1981.
Bertram
C.J.
KiHmenika
Vi
Menikhamy
oorreot in describing it as a permissive arrangement. On thatfooting each co-owner must be deemed as possessing on behalf ofhimself and the others, unless the arrangement continues so longthat on equitable grounds it is presumed that at some point itbecame adverse. Such a presumption is only drawn upon a consider-ation of all the circumstances of the case. 1 do not think that &Court could justly draw it in a case like the present where thearrangement related to two lands, and it has already been cfisturbedin regard to one of them by the voluntary act of the party who nowsets up the presumption.
Indeed, the case might be put in another way ; that the plaintiffhaving repudiated the arrangement in the oase of Meddekumbura,and that repudiation having been acted upon, is not entitled to setup the arrangement with regard to Iriyankumbura.
It is, nevertheless, the case that in taking possession of the wholeproduce for a year Ramalhamy has acted irregularly. The decree,therefore, should be varied declaring the plaintiff entitled to 3/8 of theland, and directing defendant to pay to plaintiff 3/8 of Rs. 54, thevalue of the crop, that is, Rs. 20 ■ 25. The parties should pay thei?own costs, both here and below.
It is much to be regretted that the family arrangement was everdisturbed, and as defendant is prepared to resume it in both lands,it is to be hoped that this offer will be accepted. Unless this is doneor unless some arrangement similar to that in C. R. Ratnapura,No. 15,894, is reached, the only result must be friction. I trust thattffe learned Commissioner will make some effect to bring about afriendly settlement.
Sent back.
♦
B* B. COTT£E* GOVERNMENT PRINTER, COLOMBO, CEYLON.