DE SILVA J.—Qithohamy v. Karanagoda
1954Present : De Silva J. and Fernando A.J.M. GITHOHAMY el al., Appellants, and E. R. KARANAGODA et al.
S. C. 69 (Inly.)—D. C. Colombo, 5,889 P.
Co-owners—Amicable partition—Plan made by a co-owner—Its value as evidence »fdivided possession—Prescription—Ouster.. .
A plan made at the instance of a co-owner purporting to cause a division of thecommon land of which the other co-owners apparently had no notice does notform the basis of divided possession. Exclusive nossession on the footing ofsuch a plan docs not terminate the co-ownership of the land, and no presumptionof an ouster can be inferred from such possession.
“ When a land is amicably partitioned among the co-owners it is usual toexecute cross deeds among themselves or at least that all the co-owners shouldsign the plan of partition. ”
i^.PPEAL from a judgment of the District Court, Colombo.
Sir Lalitha Rajapakse, Q.C., with G. D. C. Weerasinghe, for tho 2nd and3rd defendants appellants.
Ivor Misso, for the plaintiffs respondents.
N. I'J. Weerasooria, Q.C., with Ivor Misso and S. W. IV al pita, for the1st defendant respondent.
Cur. adv. vuU.
December 21, 1954. de Silva J.—
This is an appeal from tho judgment.of the Additional District Judge,Colombo, in a partition action. The 1st plaintiff who is a minor appearingby his next-friend tho 2nd plaintiff instituted this action for «Jio part it ion
DE SILVA J.—Oithohamy v. Karanagoda
of the land called lot B of Delgahawatte in extent 2 roods, 17 * 12 perchesand depicted in plan Nq. 1034 marked X. The devolution of title wasset out in the plaint in the following manner. By right of purchase on deedPI of 1891 Sadiris became the owner of the subject matter of this action.He by deed P3 dated 24.8.1908 sold it to Maraya Tennekoon who bydeed P4 of 1911 sold it to Podihamy and she by deed P6 of 1927 transferredthe same to Sumanawathie who died leaving as her heirs her husbandRichard and one child Edmund the 1st plaintiff, a minor. . Richard bydeed 1D4 of 1940 sold his half share to the 1st defendant. Githohamy,the 2nd defendant and her son Reginald the 3rd defendant intervened inthe action and stated that the corpus sought to be partitionedwas an undivided portion of a larger land in extent about 1 acre, of whichthey claimed undivided shares. According to them the larger land of 1acre originally belonged to Don Lewis by right of purchase on deed 2D 1of 1886. Don Lewis was married in community of property to one IlonaAlwis who died leaving as her heirs her husband and 2 children, namelythe 2nd defendant and Peiris. Thereafter Don Lewis contracted amarriage wi1 h Caralina and he died leaving as his heirs his widow Caralinaapd the 2 children already mentioned. Accordingly, each of the twochildren became entitled to 3/8 share while the widow got J share. Peirisby deed 2D6 of 1910 conveyed an undivided half of half to Alwis thehusband of the 2nd defendant. Thereafter Peiris died unmarried and hisbalance rights, that is to say, £ share devolved on his sister the seoonddefendant. Alwis died leaving as his heirs his widow the 2nd defendant and8 children the 3rd and 5th to 11th defendants. Caralina sold her rights onPI to Sadiris whose interests have now devolved on the 1st plaintiff and the1st defendant in equal shares. Thus according to the contesting defen-dants the 2nd, 3rd and 5th to 11th defendants are jointly entitled to a £share of the larger land while the balance £ belongs to the 1st plaintiff andthe 1st defendant. At the trial the plaintiff and the 1st defendant concededthat the larger land belonged to Don Lewis the father of the 2nd defendant.The plaintiff and the 1st defendant, however, contended that on PiCaralina had conveyed a half share of the larger land and that her successorsin title exclusively possessed lot B in lieu of the undivided half shareconvoyed on PI and had acquired a prescriptive title to lot B. Thelearned District Judge accepted that position and ordered a decree forpartition allotting half share each to the plaintiff and the 1st defendant.The claim of the contesting defendants was dismissed and they have nowappealed from this judgment.•
The plaintiffs produced plan P2 dated 13th July, 1908. The land shownin this plan is identical with the corpus sought to be partitioned. In P2the wostern boundary is shown as'“ Lot A the other one-half portion of thesame land ”. In regard to the planP2 the learned District Judge commented,“ The plaintiffs are relying strongly on the plan P2 of 1908, which showsthat on that date when the plan was made and the' partition carried outSadiris claimed lot B depicted in that plan, and on the face of the plan it isquite clear that there was an actual partition of the land of 1 acre into2 halves ”. Sir Lalitha Rajapakse who appeared for the appellants arguedthat the learned District Judge had misdirected himself in holding that apartition of the land was effected on the date appearing on this plan. If I
DE 811*VA .T.—GUkohamy p. Raranagodn
may say so, with respect, there is substance in Sir Lalitha’s contention. It istrue that evidence has been led on behalf of the plaintiff’s and the 1stdefendant to prove that Podibamy and her successors in title were inexclusive possession of lot B. Apart from the plan P2 there is no otherevidenco to show that the land in fact was partitioned on the occasion theplan P2 was prepared. The preparation of a plan for a portion is one thingwhile the partitioning of a land is another. If one co-owner gets a planprepared fo»a portion of the land it does not mean that the land hasbeen partitioned. There is no evidence whatsoever to show that the co-owners other than Sadiris acquiesced in the preparation of this plan nor isthere any evidence that those co-owners were aware that such a plan hadbeen prepared. The fact that Peiris in the year 1910 conveyed on 2D6an undivided i share of the larger land establishes, beyond doubt, that,at least he, did not recognize the partitipn which is alleged to have takenplace 2 years earlier. It is conceded that Sadiris and his successors in titlemade plantations and built houses on lot B while they did not exercisesuch rights over the remaining portion of the land. There is no evidencein regard to the plantations standing on the portion to the west of lot B.According to the surveyor all the plantations on lot B are 40 years andunder, in ago. That is not disputed. The age of these plantationsclearly shows that they were made after Caralina had executed the deedPI of 1891. A co-owner who makes a plantation on the undividedland is entitled to take the entire produce of that plantation until theco-ownership is put an end to by a decree of the Court or mutual agree-ment. Similarly a co-owner who erects a building on the land held incommon iB entitled to possess it until the land is partitioned. Thereforeeven if Sadiris and his successors in title appropriated the produce of allthe trees standing on lot B and possessed the buildings put up bythem on itt hat itself is insufficient to give them a prescriptive title to lot B. Sadirisobviously entered the land as a co-owner. Therefore in the absonce ofother cogent evidence his possession of lot B as well as t-hatof his successorsin title must be referable to co-ownership. The possession of a co-ownerwould not become adverse to the rights of the other co-owners until thereis an act of ouster or something equivalent to ouster. In ’theabsence of ouster possession of one co-owner ensures to the benefit of otherco-owners. It was so held by the Privy Council in Corea, v. Iseris Appu-hamy1. It is true that ouster car. be presumed from exclusive possessionin special circumstances as was decided in the case of Tillelceratne v. Baa-dan 2. The special circumstance which was recognized in that case wsbthe fact that the co-owner who claimed a prescriptive title was provedto have excavated valuable plumbago on the land during a lengthyperiod of time. Such excavation of-plumbago during a protracted periodwould naturally diminish the value of the land. Therefore if the otherco-owners did not protest when the land was being possessed in a mannerhat its value would be considerably diminished, it is fair to presume anouster, but if a co-owner only takes the natural produce of the trees for along time no such presumption should arise. Sadiris and his successorsin title have executed a large number of deeds for lot B. There is noevidence nor is there any reason to think that the other co-owners were
i itoit ix w. r. r ttx
* i ioix s>iv r. » ip
DE SILVA J.—CHlhohamy v. Karanayoda
aware that such documents were being executed. In Kobbekadduwai>. Seneviratne1, it was held that the mere fact that a co-owner who was inoccupation of the common property purported to execute deeds for a longperiod on the basis that he was the sole owner, did not lead to the presump-tion of an ouster in the absence of evidence that the other co-owners hadknowledge of the transactions.
When a land is amicably partitioned among the co-owners it is usual toexecute cross deeds among themselves or at least that all the co-ownersshould sign the plan of partition. Neither of these methods has beenfollowed in respect of this land. Evidence was led on behalf of the plain-tiffs and the 1st defendant to establish that there was a wire fence sepa-rating lot B from the remaining portion of this'land. The contestingdefendants denied the existence of any such fence. Admittedly, there wasno such fence when the surveyor went to the land in the year 1950.According to the plaintiffs* witness Wilmot this fence was intact up to4 years prior to his giving evidence. He gave evidence in February1953. It was however suggested to the 2nd defendant in cross-examina-tion that this fence was pulled down in the year 1943. It is ratherstrange that if the fence was pulled down that there was no complaintto the Police or the headman. The evidence of the existence of this fenceappears to be very meagre. Even if such a fence did exist it is possiblethat it was erected either for the convenience of possession or for raisinga plantation. The house No. 1 was built by the 3rd defendant. He sayshe built it 16 or 17 years ago, whereas the 1st defendant in his evidencestated that it was built 5 years ago. The 1st defendant gave this evidencein February 1953. But before the surveyor in October, 1950, the 1stdefendant has stated that this house was built 8 years prior to that. It isclear that the 1st defendant has made an attempt to reduce the age of thishouse while the contesting defendants tried to make it a little older than"what it actually is. That observation would apply also to house No. 6which belongs to the 6th defendant. It would appear that both thesebuildings were constructed over 10 years ago, because according to thec.vidonco of the 3rd defendant, a building permit from the DistrictEngineer became necessaryaboutlOyearsagotoputupnewbuildings. The3rd defendant says that at the time he constructed house No. 1 no suchbuilding permit was necessary. If houses 1 and 6 were built within the last10 years the plaintiffs and the 1st defendant could have proved it by theproduction of certified copies of the building applications made to theDistrict Engineers. No . such documents have been produced. TheCounsel for the 1st defendant asked the 3rd defendant in cross-exa-mination whether he gave a writing in regard to the house he had put up.'Hie 3rd defendant denied that he gave any such document. If is ratherstrange that the writing was not produced by the 1st defendant if in factho obtained one from the 3rd defendant. Again, the 1st defendantclaims to have paid Rs. 125 to the 6th defendant about the year 1950as compensation for house No. 6. But the 1st defendant did notthink it necessary to obtain a writing in support of this transaction al-though by that time the 2nd defendant and her children were challenging
1 (1951) 53 N. Tj. K. 354.
Attorney-General v. Alwisappu
the claims of the 1st plaintiff and the 1st defendant. This story is diffi-cult to believe. The 6th defendant is still In possession of house No. (>through a lessee. The evidence of the 1st defendant that houses 1 and 6were erected with his permission is unsupported and should not have beenaccepted.
Pciris by deed 2 D 6 transferred a half of half share to his brother-in-law.The learned District Judge observes that this deed suggests that regardlessor ignorant of his legal right to § share, Peiris looked upon himself as theowner of only share and conceded a £ share to his step-mother. Thisinference is not warranted. It does often happen that a co-owner sells alesser share than what he is entitled to. In such event it is not necessaryto state expressly in the deed that he reserves to himself his balancerights.
It is clear that the possession of lot S by Sadiris and his successors intitlo, even if it was exclusive, which is doubtful, was not based on an ami-cable partition of the land. The evidence of exclusive possession led in thecase is insufficient to confer a proscriptive title to lot B on the 1st plaintiffand the 1st defendant. Therefore the larger land of 1 acre must be heldto be owned in common by the heirs and successors in title of DonLewis.
Accordingly I allow the appeal and dismiss the plaintiff’s action. The1st plaintiff and the 1st defendant will pay the costs of the 2nd and 3rddefendants of this appeal and in the Court below.
Frrnakdo A.J.—J agree.
M. GITHOHAMY et al , Appellant , and E.R . KARANAGODA et al , Respondent
DE SILVA J.—Qithohamy v. Karanagoda