Tilakasxri Alenikc v. Ditigiri Banda
Present: H. N. G. Fernando, C.J., and Wijayatilake, J.M. M. S. TILAKASIRI MENIKE, Appellant, and W. M. DIXGIRIBANDA,’ RespondentS. C. 137166 (F)—D. C. Kurunegala, 1711 jL
Prescription Ordinat e• (Cap. CS)—Secti ns 3 and 13—Adverse possession as againsta minor uho is the successor in title oj another minor-—Computation.
Whoro A enters into possession of ft land bolonging to B, n. mi.tO", and, uponB'. death during hisminority, B’s successor in titlo is C, who is also a minor,the p Hod of A’s adverso possession for 10 years for the purposes of soction 3of tho Presc iption Ordinanco would commence to run fiom B's death andwould continue to run iv.n during tho po;icd of minority of C if C does notattempt to interrupt A’s possession by action or otherwise. Jn such a casesection 13 of tho Prescription Ordinanco declares that no further timo shallbo allowed in respect of tho minority of any person other then B.
Appear from a judgment of tho District Court, Kurunegala.C. Banganalhan, Q.C., with Lakshman Kadirgamar, for the plaintiff-appellant.
TV. D. Gunasekera, for tho defendant-respondent.Cur. adv. cult.
H. N. G. FERNANDO, C.J.—Tilakasiri Afenike v. Dingiri Banda
Juno 24, 1970. H. N. G. Fernando, C.J.—
Tliis appeal raises an interesting question concerning the prescriptionof actions. The land to which the action relates was owned in 1 /2 sharesby Bandimenika and Dingiri Amina. Bandimenika died on 2nd January1935 leaving an infant child Kiribanda. Kiribanda died on 20th January1935, and it is common ground that under Kanlyan Law the 1/2 sharewhich Kiribanda inherited from his mother passed to his aunt DingiriAmma. Dingiri Anima however had title to this 1/2 share only for ashort period, for she herself died on ISth October 193G. Dingiri Ammaherself was a minor, and had not attained majority at the time of herdeath. She was survived by her daughter the plaintiff who was bornon ISth October 1936.
The plaintiff instituted this action for a declaration of title in January1964, alleging that the defendant, who had been the husband ofBandimenika and the father of Kiribanda, was . in unlawful possessionof the land, and the principal question for decision was whether in thecircumstances the defendant was entitled to a decree under s. 3 of thePrescription Ordinance. The claim of the defendant is that he enteredinto possession in 1935 on the death of his Son Kiribanda, and that hisuninterrupted possession thereafter for a period of 29 years entitleshim to a decree under s. 3. This claim the plaintiff sought to meet byrelying on s. 13 of the Ordinance, which is a general Proviso to thepreceding sections :—
“ 13. Provided nevertheless, that if at the time when the rightof any person to sue for the recover}' of any immovable propertyshall have first accrued, such person shall have been under any of thedisabilities hereinafter mentioned, that is to say—
unsoundness of mind,
absence beyond the seas,
then and so long as such disability shall continue the possession ofsuch immovable property by any other person shall not be taken asgiven such person any right or title to the said immovable property, asagainst the person subject to such disability or those claiming underhim, but tho period of ton years required by section 3 of this Ordinanceshall commence to be reckoned from tho death of such last-namedperson, or from tho termination of such disability, whichever firstshall happen ; but no further time shall bo allowed in respect of thedisabilities of any other person ; ”
H. N. Q. FERXAXDO, C.J.—THaX-asiri Alenike v. Dingiri Banda
The learned trial Judge however upheld the contention for the defendant,'which (stated for the present in lay terras) is that, when thero aresuccessive minorities, section 13 makes only the first of them availableas a protection against persons claiming a decree by prescription. Inthe instant case, the position of the defendant was that since DingiriAmnia was minor, then in terms of s. 13 the defendant’s possessionduring her minority would not give the defendant a right or title ;consequently, the period of 10 years referred to in s. 3 would commenceto run from Dingiri Amnia’s death. But it was further contendedthat the defendant’s actual possession during that period of 10 yearswould give him title, because section 13 provides that no further timeshould bo allowed “ in respect of the disabilities of any other person ”,and thus excluded the allowances of further time on account of theminority of the plaintiff.
It is settled principle that once a period of adverse possession hascommenced, it will continue to run after the death of the owner despitethe fact that his successors may be minois—Pathumma v. Sinntt Lebbe1.To take the example where A possesses the land of X say for five years,then upon X’s death at that stage, A’s further possession for G yearswill give him title des|iito the fact that during those 6 years X’s heirsmay be minors. This principle depends upon what is also a settles:!construction of s. 13 of the Prescription Ordinance. Section 13 providesthat if at the lime when the right of any person to sue for the recovery of anyimmovable property shall have first accrued, such person shall hate lean aminor, then the protection given by the later part of the section willattach. If the minority of any person mentioned in the section has(in m3' example above) to bo taken as a reference to the minority of theheirs of X, then the protection of the section will attach to that minoritj',and accordingly A must possess for 10 3'ears aftc-r that minorit3' ceasesbefore he claims a decree. But the principle already stated was reachedupon a different construction of the language of s. 13, name^' thatany person mentioned in the section means (in m3' example) X himselfand not his minor heirs. Since X was not a minor at the time his rightto sue first accrued, A’s possession for the first five 3'ears has to be reckonedfor purposes of prescription, because s. 13 does not prevent that reckoning.This construction was adopted in Sinnatamby v. Meera Levvai,2 and inthe later case of Pathumma v. Sinna Lebbe Wood Renton, C.J. pointedout that it was too late in 191G to disturb that construction.
Appling now that construction to the facts of the present case, thedefciilant entered into possession on 20th January 1935, when his sonKiribanJa died ; thereupon in terms of s. 13 there accrued to the ownerDingiri Arana a right to sue the defendant for the recovery of this land.Had Dingiri Arama been a major in 1935, the defendant’s possessionwould have commenced to run in 1935 and would havo continued to
» (1015) IS N. L. It. 330.
(1002) 0 A”. L. It. 50.
H. X. G. FERNANDO. C.J.—Ti’aknsiri Jlcnilsc v. Dinqiri Banda
run despite the fact that the plaintiff, a minor, became owner in 1936(I’alhummci v. Sinnc l.cbbe). But because Dingiri A him a was a minorin 1935, the protection given by s. 13 then attached, so that the periodof 10 years required by s. 3 would commence to be reckoned only fromthe death of Dingiri Amma, i.c., from ISth October 1936. Thus thedefendant would acquire a right to the decree under s. 3, if the heir ofDingiri Amma did not attempt to interrupt his possession by action orotherwise sometime before ISth October 1946. In this nay, the'minorityof that heir would not bar the defendant, because s. 13 declares that nofurther time shall bo allowed in respect of the minority of any personother than Dingiri Amnia.
Mr. Banganathan advanced a competent argument against this viewof the operation of s. 13- He argued that where there has been possessionagainst a minor owner for a period shorter than 10 3'ears, and that owneris succeeded by another minor, the successor docs not have to dependupon the first minority, but depends instead only on his own minority ;so that proscription will not commence to run against him until hoattains his majority ; in this case therefore, because there was not acompleted period of 10 years of possession during Dingiri Amnia’slifetime, the plaintiff relies solely on her own minority, and not on twosuccessive minorities.
I think the fallacy of this argument appears on a consideration of theease n which a land is possessed as against a minor for 5 years, and uponthe minor’s death at that stage lie is succeeded by a major heir. Insuch a case, of course, proscription will begin to run against the majorheir on!3' from he time of the minor’s death ; but that is because thomajor heir does depend on the minority of his predecessor in order toexclude tho possession for tho first 5 3’cars.' Unless he depend – on thatniiuorit3?, then tho 5 3'ears’ possession against his predecessor wouldcount against him. In other words, it i; s. 13 which entitles a majorheir to exclude from the reckoning any period of possession howeverlong or hort against hi < minor predecessor. I am unable to distinguishin principle the ease in which one minor succeeds another. In this case,the possessor will maintain for the purposes of s. 3 that he had X 3'cars,possession against the first minor plus Y 3'ears’ possession against thosecond minor. If then the second minor contests tho claim, his positionfirst must be that the period X docs not count, and secondly that thoperiod Y also does not count or is instifiieicnt. Ho cannot exclude thoperiod X, except b3r red ing upon the minority of his predecessor, i.e.,b3' invoking s. 13. That being so, the language of s. 13 declares that nofurther time shall bo allowed in respect of the second roinorit3r.
I would hold for theso reasons that tho plaintiff’s notion was rightlydismissed. The appeal is dismissed with costs.
WuAYATrLAKE, J.—I agree.
M. M. S. TILAKASIRI MENIKE, Appellant, and W. M. DINGIRI BANDA, Respondent