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PEBERA v. PERERA.D.. C., Colombo, 6,322.
Donation—Adverse possession—Possession in trust—rPartition suit.
D donated a parcel of land to his daughter immediatelybefore her marriage. She accepted the deed, but handed it back toher father for safe keeping. She never entered into possession ofthe land donated, but her father let it to tenants, who paid him rent;and he repaired the buildings on it during the donee’s lifetime, whocontinued to be on the best of terms with her father—
Held, that D must be taken to have possessed the land in trustfor his daughter, and not by a title adverse to her.
A partition suit should not be brought by a man not in posses-sion, whose title is disputed.
f 11HE facts of the case sufficiently appear in the judgment.
Layard, A.-6., for appellant.
Domkorst, for respondent.
8th June, 1897. Lawrie,c A.C.J.—
Title to this land vested in the 'deceased wife of the plaintiff byvirtue of a conveyance from .her father, the late first defendant,the admitted owner.
The title was created in 1879, shortly before the marriage of thedonee to the plaintiff.
It is admitted that she accepted the donation, that the deed washanded to her by her father, and that she handed it to him for safekeeping.
It is admitted that she never entered into possession; that herfather let the premises to tenants, who paid rent to him ; that herepaired the house during the donee’s lifetime; that she and herfather continued to be bn the best of terms ; and there is evidencewhich the learned District Judge believed, and on which he laidmuch stress, that from time to time the first defendant gave hisdaughter small sums of money, saying, “ Child, this is your rent.”I do not reject nor entirely disbelieve this evidence of acknowledg-ment and of payment, but coming as it does from a stranger to thefamily, who was at the time of the alleged payments a boy offourteen, I am not able to attach much importance to it.
Independent of his evidence, I hold that it is not proved thatthe first defendant possessed by a title adverse to his daughter.He conveyed to her this land as a provision for herself, whichher husband could not alienate. It is said that after the marriagehe gave the plaintiff, his son-in-law, Rsi 1,000. If it had beenwell proved that the father gave that money to the plaintiff in lieuof the property gifted to the daughter, such a transaction to thedaughter’s prejudice without her knowledge and consent wouldhave been a fraud on her, which could not take from her the legalestate in the land: but there is not sufficient proof of such atransaction. When the first defendant getting the deed to keepcontinued to possess, he certainly at first possessed in trust .for hisdaughter as her caretaker and. agent. That title to possess mustbe held to have continued until by some overt act the possessionfor the daughter was changed into a possession on a title adverseto her.
In my opinion no such overt act was proved, and consequentlythere has not been proved a possession by the donor bn a titleadverse to the donee, his daughter.
■, I hold that when sjie died in December, 1884, she was vested
in the property conveyed to her by the deed of 1879, that
prescription had not commenced to run against her.
No administration was taken of her estate ; for several years
her husband allowed his father-in-law £o continue in the undis-
turbed possession of the land ; *he looked cn in silence when hisfather-in-law built a new house ; but latterly he and his father-in-law disagreed ; he charged him in the Police Court with the theft
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of the deed of donation ; and finally, nine years and nine monthsafter his wife’s death, he brought this action for a declaration ofhis title as one of his deceased wife’s heirs to ‘one-half of thepremises, and prayed for a partition, allotting to his father-in-lawone-fourth and to his brother-in-law the remaining one-fourth.
The latter part of his action cannot be approved: it has oftenbeen held by this Court that a partition suit should not be broughtby a man not in possession, whose title is disputed.
As for the prayer for declaration of title, the action was broughtwithin ten years of the time when the plaintiffs cause of actionarose, that is, within ten years of his wife’s death ; the possessionof the first defendant, however undisturbed, however distinctlyadverse, had not lasted quite long enough to entitle to the benefitof the Prescription Ordinance.
I am for affirming the declaration of the plaintiff’s title to half,with costs.
Withers, J., agreed.
LAW REPORTS VOLUME 02-PERERA v. PERERA