011-NLR-NLR-V-58-M.-KANAPATHIPILLAI-Appellant-and-M.-MEERASAIBO-et-al.-Respondents.pdf
1956Present .-Sansoni, J., and H. N. G. Fernando, J.
M.IvAXAPxlTHIPILLAI, Appellant, and2r. MEERASAIBO el al.. Respondents
S. C. 1GS—D. C. Ballicaloa, 753jL
Co-owners—Prescription—Transfer of entire land by a co-owner—Transferee's rightto prescribe against the other co-owners—Ouster.
When a co-owner conveys the entire land held in common to a stranger andthe latter is aware, at the tinio he obtains the conveyance, that his vendor isonly a co-owner and not the sole owner of the land, prescription will begin,to run-in the purchaser's favour against the the other co-owners only if therehas been an ouster or its equivalent.
A
Xj-PPEAL from a judgment of the District Court, Battiealoa.
RanganatJian, with P. Nagulesicaram, for the plaintiff appellant-
F. Scihukavatar, for the defendants respondents.
Cur. adv. milt.
February 27, 195G. Saxsoxt, J.—
The land in dispute in this case formerly belonged to Sintra ver Ivane-pathi who died about the j’ear 1934. She had two sons Kannappan andEliathamby. Kannappan pre-deecased his mother and his i sharedevolved on his four children Ponnamma, Pnrannam, Xagammaand Katpagam, each of whom became entitled to £ share. Katpagamdied leaving her husband Arulanautham and two children, the 2nd and.3rd defendants. Arulanantliam transferred his share to the 5tli defen-dant who thus became entitled to 1/16th share. Ponnamma, Xagamma.and Purannam transferred their interests to the plaintiff who thus-became entitled to 6 {lGt-li sliare.
. The other 4 share owner Eliathamby mortgaged liis £ share to oneTliambiayah by deed 1D3 of 193S. .The mortgagee put the bond insuit, and according to the mortgage decree which was entered in 1940,that share beeame liable to be sold in default of payment of the debt.
■*-, In 1941 by: deed. P5 Eliathamby purported to sell the entire land toThambiayah for Rs. 100, out of which Rs. 70 was set off against the debtdue,, under the mortgage decree. In 1944 by deed PG Thambiayahpurported to sell the entire land for a sum of Rs. 500 to the 1st defendant.
The 1st defendant claimed the entire land and denied that theplaintiff had any right to bring this partition action.
The learned District Judge held that Eliathamby possessed the entireland exclusively after the death of Kanepathi and that the 1st defendanthad acquired a prescriptive title to the entire land as the heirs of ICannappaudid not exercise any rights of possession. Seeing that Eliathamby andthe heirs of Kannappan were co-heirs in respect of this laud, somethingvery much more than mere possession by Eliathamby was necessaryto give him a starting point for acquiring a prescriptive title to this land.In any event, he had only seven years possession at the time he trans-ferred the entire land to Thambiayah. But for one circumstance, itmight have been argued that since Thambiayah was a stranger whoentered into possession of the entire land upon a deed which purportedto convey to him the entirety, although his vendor had title only to half-ehare, Thambiay all’s possession of the entire land was. adverse to theother co-owild's ; and since ten years had elapsed between the date ofhis purchase and the bringing of this action, the 1st defendant by tackingon Thambiayah’s possession to his own acquired a prescriptive title tothe entire land. The circumstance which precludes the 1st defendantfrom relying on the possession of Thambiayah is that Thambiayah wasaware, when he bought the entire land in 1941, that lie was buying fromone who owned only' a half-share.
The rule is well settled that when a co-owner converts the entire landlield in common to a stranger, and the latter enters into possession ofthe entire land under the conveyance, he can, by possession adverse toall the co-owners for ten 3-ears, acquire a prescriptive title. But wheresuch a stranger is aware, at the time lie obtains the conveyance, that"his vendor was only a co-owner and was not the sole owner of the land,ten years possession by him will not give him a prescriptive title. Such apurchaser cannot be said to have entered into possession as sole owner,for lie had knowledge that there were others who owned shares in tlieland, and he will be presumed to have possessed the land as a co-owner.The ordinary' rule which applies to possession by co-owners will thenapply, viz., that- before one can prescribe against the others there mustbe an ouster or something equivalent to an ouster. Hence prescriptive-possession will begin to run in his favour against those others only if■there has been an ouster or its equivalent, such as notice to those othereo-owners that he was setting up a title adverse to them. v,.
This qualificat ion in the rule which I have earlier referred to lias alwaysbeen referred to in cases where a stranger who purchased the entire landlias claimed a prescriptive title. Oneof the- earliest of such eases is Punchi
v. Bandi Jfeni/.a . In that case one Dissanayake claimed to havepurchased and entered into possession of an entire held although hij ven-dor was entitled to only £ sluice. Jaj-atilekc, J. held tliat as Dissanayakehad purchased and possessed the field upon an assumption that his ven-dor teas the sole oicner and that the deed of purchase gave him a soundtitle to the entirety, he had acquired a prescriptive title to the whole field.Similarly, in Sellappah r. Sinncdurai Nagalingaiu, J. held that where-a person purchased the entirety of a land and she and her successors intitle possessed the entirety without any knowledge or belief of the exis-tence of another party entitled to any interest in the land, a prescriptivetitle enures to their benefit.
Observations to the same effect are to be found in the decisions inJvobbekaduica- v. Seneviratne 3, and Fernando v. Podi -V<m» 4.
The distinction drawn between a stranger who purchases the entireproperty in the belief that it belongs solely to his vendor, and a strangerwho purchases the entire property knowing that Iiis vendor is only a co-owner is based, I think, on the principle that “ no man is allowed to take.advantage of his wrong : far less of his wrong intention which is not ex-pressed as Willes, J. said in Rumsey v. The North Eastern Railway Co. 3.Jessol, 3I.R., expressed the principle in his judgment in In re Hallett’sJEslette 6, where he said :
Xow, first upon principle, nothing can be better settled, either inour own law, or, I suppose, the law of all civilised countries, than this,that where a man docs an act which may be rightfully performed, hecannot say that that act was intentionally and in fact done wrongly.A man who has a right of entry cannot say he committed a trespass inentering. A man who sells the goods of another as agent for theowner cannot prevent the owner adopting the sale, and deny that heacted as agent- for the owner. It runs throughout our law, ancl woare familiar with numerous instances in the law of real property. Aman who grants a lease believing he has sufficient estate to grant it,although it turns out that he has not, but has a power which enableshim to grant it, is not allowed to say he did not grant it under thepower. Wherever it can be done rightfully, he is not allowed to say,against the person entitled to the property or the right, that he hasdone it wrongfully. That is the universal law. ”
There is a well-established rule that the law will presume in favour of“honesty and against fraud, but the circumstances under which Tliatn-biayah took a mortgage of i share from Eliathamby show that he wasaware that Eliathamby was entitled to only a i 'share. There is noproof of an ouster or its equivalent. It follows that the 1st defendant’sclaim to have acquired a prescriptive title to the entire land must fail-lie is entitled only to a 4 share and the house which he admittedly builton the land.
I would, therefore set aside the decree appealed against and direct-that a decree for partition be entered on the basis of the findings in thisjudgment. The plaintiff is entitled to his costs of the. trial- in the=District Court and of this appeal against the 1st defendant.
Appeal allowed.
N. G. Fersakdo, J.—I agree.