078-NLR-NLR-V-53-KOBBEKADUWA-Appellant-and-SENEVIRATNE-et-al.-Respondent.pdf
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GUNASEKEBA J.—Kobbekaduwa v. Seneviratne
1981Present: Gratlaen J. and1 Gunasekara J.
KOBBEKADUWA, Appellant, and SENEVIRATNE et al..
Respondents
S. C. 383—D. G. Kandy, 1,874
Evidence Ordinance—-Evidence in a former judicial proceeding—Admissibility—
Section 33—Representative in interest ".
Kandyan Law—Adoption—Public declaration.
Prescription—Co-owners—Evidence of ouster.
The term “ representative in interest ” in the proviso to section 33 of theEvidence Ordinance covers “ not only cases of privity in estate and successionof title, but also cases where both the following conditions exist, viz.—(1) theinterest of the relevant party to the Becond proceeding in the subject-matterof the first proceeding is consistent with and not antagonistic to the interesttherein of the relevant party to the first proceeding; and (2) the interest ofboth in the answer to be given to the particular question in issue in the firstproceeding is identical
Observations in regard to the requisites of a valid adoption' by publicdeclaration, under the Kandyan Law.
The mere fact that a co-owner who was in occupation of the common propertypurported to execute deeds in respect of the entirety of it for a long period ofyears does not lead to the presumption of an oUBter in the absence of evidenceto show that the other co-owners had knowledge of the transactions.
.Appeal from a judgment of the District Court, Kandy.
H. W. Jayewardcne, for the plaintiff appellant.
Cyril E. S. Perera, with B. S. C. Ratwatte, for the first defendantrespondent.
K.Sivasubrarnaniam', for the second defendant respondent.
Cut. adv. vult.
August 20, 1951. Gunasekara J.—
• The plaintiff instituted this action for declaration of title to a parcelof land known as Adikariyewatta, valued at Rs. 500, and for ejectmentof the seven defendants therefrom and damages. At the trial he pro-ceeded only against the first to fourth defendants, of whom the first andsecond claimed to be entitled each to a one-third share of the propertyand the third and fourth disclaimed any interest. After trial the-learnedDistrict Judge declared the plaintiff and the first and second defendantsentitled to a one-third share each and directed the plaintiff to pay these twodefendants their costs. Against this order the plaintiff has appealed.
It is common ground that the original owner of the property was oneBandars Menika and that she had two brothers, Kalu Banda andMuhandiram Nilame. According to the case for- the plaintiff, Bandara
G-TJNA8EKABA J.—Kobbekaduwa e. Seneviratne
866
•Menika adopted as her heir Tikiri Kumarihamy, a daughter of one ofthese brothers, and upon her death Tikiri Kumarihamy inherited theproperty in question, and from Tikiri Kumarihamy it passed by a 3eriesof transfers to the plaintiff. The defendants deny the alleged adop-tion. Their case is that upon Bandara Menika’s death intestate, her brothersKalu Banda and Muhandiram Nilame succeeded to the property asher heirs and that from them it devolved by intestate succession on TikiriKumarihamy and her brothers Loku Banda and Tikiri Bands in equalshares, and that the first and second defendants eventually becameentitled to the two-thirds that devolved on Loku Banda and TikiriBanda. It is admitted by the plaintiff that these two were TikiriKumarihamy's brothers.
After the disposal of' a preliminary issue the case was tried on thefollowing further issues: —
“ (1) Did Bandara Menika adopt Tikiri Kumarihamy for the purposeof inheritance as stated by the plaintiff ?
Did Bandara Menika leave as her heirs her two brothers Muhandiramand Kalu Banda as stated by the first to fourth defendants ?
Prescriptive rights of parties.
Damages.”
The plaintiff relied for proof of his title on -a chain of deeds, wherebythe property was sold by Tikiri Kumarihamy to Nagapitiye WalawveLoku Banda in 1895, and by him to her son Punchi Banda in 1908, andby Punchi Banda to the plaintiff’s father S. D. Kobbekaduwa in 1939,and was gifted by the latter to the plaintiff in 1941. The preliminaryissue was one raised by the plaintiff as to whether the judgment inan action brought by S. D. Kobbekaduwa against the first to fourth defen-dants, District Court, Kandy, Case No. L. 476, to vindicate his titleto another piece of land operated as res judicata against these defendantsin the present action. One of the issues tried in that case was whetherTikiri Kumarihamy was adopted by Bandara .Menika and was her soleheir. ' The learned District Judge held against the plaintiff on thepreliminary issue, relying on the decision in Molagoda Kumarihamy v.Kempitiya *, for the reason that the judgment pleaded as res judicatawas delivered in 1943, after S. D. Kobbekaduwa’s gift to the plaintiff.The plaintiff’s counsel did not canvass this finding at the hearing of theappeal.
On the issue of adoption the plaintiff relied on evidence of statementsmade by Tikiri Kumarihamy on various occasions about her relationshipto Bandara Menika. Tikiri Kumarihamy appears to have died verymany years ago; according to the first defendant, who says that he isnow 50, she died when he was .yet a “ very small boy ”. In her deed of1895, she recited her title as “ inheritance from my deceased auntDugganarallage Bandara Menika ”. In the same year she and her sonPunchi Banda were sued in the Court of Bequests, Kandy (as the firstand the second defendant respectively), for declaration of title to a
1 (1943) 45 N. L. R. 34.
GTJNASEKARA J.—Kobbekaduwa «. Seneviratnc
property called Pissakotuwahena and in their answer they referred totheir possession of what they said was a property called Mulmediahenathat adjoined it' on the west. They said:
** The defendants who are mother and son are in possession byright of inheritance from one Dugganaralagedera Bandara Menikathe aunt of the first defendant and the grand aunt of the second defen-dant of the eastern two pelas and five lahas of the land called Mulmedia-hena of five pelas in extent."
Giving evidence in that case, on the 27th August, 1895, she said in thecourse of her examination in chief:
" Bandara Menika was my aunt. She owned the E 2% pelas ofMulmediyahena. She died about 20 years ago. As her heir Iinherited the land. I was her only heir. I possessed the land to date.There is only one Pissakotuwahena now in possession of the KobbekaduwaR. M., my portion is the E No. W portion of the 5 pelas. SaranaVeda owns the W portion of Mulmediahena.”
Under cross-examination she said :
My aunt had lost her husband long before and she had no relationsbut me. Saran.a Veda is a rich and influential man. My uncle KaluBanda once owned that portion of Mulmediyahena which SaranaVeda has.”
She has not on any of these occasions referred to any adoption, and therelationship by virtue of which she has claimed to be Bandara Menika’sheir is that she was her niece and her sole surviving relative. I agreewith the learned Disrrict Judge that this evidence does not prove thatTikiri Kumarihamy was adopted by Bandara Menika.
The plaintiff also sought to put in, as being admissible under section 33of the Evidence Ordinance, the record of certain evidence given by PunchiBanda in Case No. L. 476 on the 28th September, 1943: he had diedon the 27th December, 1946, before the trial of the present action. Thelearned District Judge excluded this evidence, holding that the conditionslaid down in the first proviso to that section were not satisfied. Hisreason for this view was that “ the plaintiff cannot be considered a re-presentative … in interest of his father because the plaintiff got titlefrom his father before the decree was entered in that case ”. Mr. Jaya-wardene has pointed out, however, that the interpretation of the provisoupon which the learned District Judge’s order was based has beenexpressly overruled by the Judicial Committee of the Privy Council inKriahnayya v. Venkata Kumara 1 (which was not cited to the DistrictJudge). It was held in that case that the party to the first proceedingmust have represented in interest the party to the second .proceeding,and not the other way about, and that there need be no privity in estatebetween them:
** It covers not only cases of privity in estate and succession of title,but also oases where both the following conditions exist, viz.,
the interest of the relevant party to the second proceeding in the1 A. I. Jt. {1933) Privy Council 202.
GUNASEKARA J.—Kobbekadutea «. Seneviratne867.
subjeet matter of the first proceeding is consistent with and not-antagonistic to the interest therein of the relevant party to the firstproceeding ; and (2) the interest of both in the answer to be given,to the particular question in issue in the first proceeding is identical.There may be other cases covered by the first proviso ; but if boththe above conditions are fulfilled, the relevant party to the firstproceeding in fact represented in the first proceeding the relevantparty to the second proceeding in regard to his interest in relation to-the particular question in issue in the first proqeeding, and maygrammatically and truthfully be described as a representative ininterest of the party to the second proceeding.”
When this test is applied it appears that S. D. Kobbekaduwa was inCase No. L. 476 the representative in interest of the plaintiff in thepresent case. The other conditions laid down in section 33 are satisfiedand it seems to me that the evidence in question was admissible.
With the consent of counsel for both parties we have obtained therecord in Case No. L. 476 and read .the evidence of Punehi Banda. Hehas said that Tikiri Kumarihamy, who according to him died about 1900,had told him “ that Bandara Menika adopted her ”. He also deposedthat Bandara Menika died about 15 years before Tikiri Kumarihamyand that the latter had lived with her in her house in Adikariyewatte(which is the subject-matter of the present action) and continued tolive there after her death.
Under the Kandyan Law, which has been assumed by the partiesto be the law that is applicable, the requisites of a valid adoption for thepurpose of inheritance include a public declaration by the adoptiveparent that the child was adopted for that purpose: Tikiri Kumarihamyv. Niyarapola *, Ukkubanda Ambahera v. Somawathie Kumarihamy 2.It seems to me that the statement alleged to have been made by TikiriKumarihamy to Punehi Banda is not sufficient evidence of such anadoption, particularly when it is considered with her statements in thedeed of 1895, and in the proceedings in the Court of Requests case.Had she been adopted in order that she might inherit Bandara Menika’s.property, and not merely brought up in the house of a childless auntand treated as her child, she would on each of those occasions havebased on adoption her claim to the inheritance and not on an allegationthat Bandara Menika was her aunt and had no other relatives besidesherself. Her continuing to live in Bandara Menika’s house after thelatter’s death is not inconsistent with co-ownership of the property withother heirs. In my opinion, if the rejected evidence had been receivedit ought not to have varied the decision on the issue as to adoption.
The learned Judge’s finding that Tikiri Kumarihamy was entitledto only an undivided one-third share which devolved on the plaintiff,and that her co-owners are now represented by the first and seconddefendants is supported by the evidence and must be affirmed. Theplaintiff would therefore be entitled to no more than a one-third shareunless he has proved a title by prescription to the whole property. Itis contended for the appellant that the evidence of prescriptive possessionrelied on by him has not been adequately considered.
i (1937) 44 N. L. R. 476.1 (1943) 44 N. L. R. 457.
GUNA8EKABA J.—Kobbekaduwa e. Seneviratne
The action was instituted on the 3rd May, 1946, about six years and ahalf after Punohi Banda’s conveyance to the plaintiff’s father, S. D. Kobbe-kaduwa. The only evidence of Tikiri Kumarihamy’s possession of theproperty is that she lived in the old house that stood there. There isno>> evidence that Nagapitiya Walauwe Lioku Banda to whom she pur-ported to convey the whole property in 1895, was in possession of itat – any time. The facts relied upon to prove Punchi Banda’s possessionare that he too lived in the old house and when it came down he builta new one and lived in it; that he planted with tea about J acre of theproperty, the whole extent of which is about acres, and took theproduce of that plantation; that he also took the produce of the coconutand arecanut trees that were scattered about the rest of – the land andsome of which he himself had planted, according to the plaintiff’s witnessUkkurala; and that he mortgaged the whole property on five occasions—in 1921, 1923, 1933; 1938 and 1939 respectively. According to Ukkurala,
■ the house that Punchi Banda built was built “ on the portion where the. tea was planted ”.
"According to the case for the plaintiff, Tikiri Kumarihamy could:have had no more than ten years’ possession of the property before shepurported to convey it to Loku Banda in 1895 ; for that is the effect ofPunchi Banda’s evidence in Case No. L. 476. As she was only a co-owner' ft must be presumed that she possessed in that capacity and that her' possession enured to the benefit of all the co-owners. The decision inCorea v. laeris Appuhamy 1 laid down the principles.
" that the possession of one co-cfwner was in law the possession ofthe others;. that every co-owner must be presumed to be possessingin that capacity; that it was not possible for such a co-owner to putan end to that title, and to initiate a prescriptive title by any secretintention in his own. mind; and that nothing short of ‘ an ouster orsomething equivalent to an ouster ’ could bring about that result ”.Per Bertram C.J. in Tillekeratne v. Bastian 2.
' There is nothing in the evidence to rebut the presumption that TikiriKumarihamy possessed in the capacity of a co-owner or to show thatany of her co-owners or their successors in title became aware of herdeed of 1895 at any time before 1939. Punchi Banda, who was 85 at thetime of his death, would have been 34 at the time of the execution ofthis deed and must have been fully aware that his mother was entitledto convev only a one-third share. He could have had no reason tothink that Loku Banda was entitled to convey to him anything moreby the deed of 1908. His case is, therefore, very different from such acase as that of the purchaser in -Punchi v. Bandi Menika 3, who “ enteredinto possession of the field upon the assumption that his vendor was thesole owner and that the deed in his favour gave him a sound' title ”.' -"’instances in which Punchi Banda acquired Loku Banda’s•»» than rebut, the presumption from co-ownershipproperty in .his capacity of a co-owner.
1911) IS N. L. R. 65.* (1918) 21 N. L. R. 12 at 13.
* (1942) 43 N. L. R. 547 at 548.
Perera ®. Perera
The learned District Judge, has considered the question whether ithas been proved that Punchi Banda’s possession became adverse, to hisco-owners and has held that it has not. As he points out, Punohi-Banda’s possession of the improvements made by him was.no more than’an exercise of his rights as a co-owner. The only fact relied on by theplaintiff as proof that Punchi Banda's co-owners were aware of themortgages is that the first defendant was one of the witnesses to thebond of 1933. The. first defendant, who gave evidence, denied thatthough he signed as a witness he was aware that the instrument was amortgage of the entire property. The learned Judge finds himselfunable to reject his explanation: “ whether or not. the first defendant ”,he says, “who signed as a witness, was aware "of the, contents of thedeed, I am not in a position to say ”, Moreover, the first defendantbecame a co-owner of the property only six years later .when he boughthis father’s share upon a deed executed on the day after Punchi Banda’sconveyance to S. D. Kobbekaduwa. There is thus no evidence thatit was with the knowledge of their co-owners that Tikiri Kumarihamyand her successors in title purported to deal with the whole propertybefore Punchi Banda's conveyance to S. D. Kobbekaduwa in 1939.There is no evidence of an ouster and nothing in the circumstances pf thecase to warrant-a presumption of ouster. It was held in’ the ease ofCareem v. Ahamadu1 that (to quote the head-note) “ the'mere fact thatone co-owner was in occupation of the entirety of a .house which wasowned in common and purported to execute deeds in respect of theentirety for a period of over ten years does not lead to the presumptionof an ouster in the absence of evidence to show that the other co-ownershad knowledge of the transactions The same principle is. affirmed inSCderis v. Simon* and Ummu Ham v. Koch3. I agree with the learnedDistrict Judge’s finding that the plaintiff has failed to establish a' titleby prescription.
I would dismiss the appeal with costs.
Gratiarn J.—I agree.
Appeal dismissed.