MARIA FERNANDO AND ANOTHER v. ANTHONY FERNANDO

038-SLLR-SLLR-1997-2-MARIA-FERNANDO-AND-ANOTHER-v.-ANTHONY-FERNANDO.pdf


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MARIA FERNANDO AND ANOTHER
v.
ANTHONY FERNANDO
COURT OF APPEAL.
WIGNESWARAN, J„
A. NO. 700/85(F).
C. NEGOMBO NO. 1666/P.
OCTOBER 21.1997.
Partition – Prescriptive possession between co-owners.
Long possession, payment of rates and taxes, enjoyment of produce, filing suitwithout making the adverse party, a party, preparing plan and building house onland and renting it are not enough to establish prescription among co-owners inthe absence of an overt act of ouster. A secret intention to prescribe may notamount to ouster.
APPEAL from the District Court of Negombo.
Cases referred to:
Ponnampalam v. Vaithialingam and Another [1978-79] Sri. L.R. 166.
Tillekeratne et. al. v. Bastian et. al. – 21 NLR 12.
Sideris et. al. v. Simon et. al. – 46 NLR 273.
Don James Walpita v. Athukoralage Dharmasena Bar Association Law Journal1984-Vol. I Part 4, P9 145.
Corea v. Appuhamy- 15 NLR 65.
CA
Maria Fernando and Another v. Antony Fernando
357
Abdul Majeed v. UmmuZaneera et. al. – 61 NLR 361.
Hussaima (wife of Yoosuf Jallaldeen) and Other v. Ummu Zaneera (aliasShamsunnahar) 65 NLR 125.
Wickremaratne and Others v. Alpenis Perera [1986] 1 Sri. L.R. 190.
Brito v. Muttunayagam 20 NLR 327.
/. L. M. Cadija Umma and Others v. S. Don Manis Appu and Others40 NLR 392.
Cooray v. Perera – 45 NLR 455.
Fernando v. Fernando-44 NLR 65.
Girigoris Appuhamy v. Maria Nona – 60 NLR 330.
Danton Obeysekere v. W. Endoris and Others-66 NLR 457.
Fernando v. Fernando 27 CLW71.
Siyadoris v. Simon – 30 CLW 50.
Hevawitharane v. Dangan Rubber Co. Ltd., 17 NLR 49.
Rockland Distilleries v. Azeez 52 NLR 490.
Dias Abeysinghe v. Dias Abeysinghe – 34 CLW 69.
J.W., Subasinghe, PC. with J. A. J. Udawatte for defendant-appellants.
P. A. D. Samarasekera, PC. with R. Y. D. Jayasekera for plaintiff-respondents.
Cur. adv. vult.
February 07,1997WlGNESWARAN, J.
There is no dispute in this partition case with regard to pedigreenor identity of the corpus.
The plaintiff and the deceased 1st defendant were cousins. The2nd defendant was the wife of the deceased 1st defendant. Thecorpus belonged to a common ancestor Warnakulasuriya DominiccoFernando who donated the said corpus in extent 1 Rood 4 Percheswith the buildings standing thereon by Deed No. 1042 dated24.06.1919 (P1) to his daughters Anna Maria and Phelomena. AnnaMaria with her husband Romel Fernando transferred her half share toher son Cyril and daughter-in-law Maria the deceased the 1st and the2nd defendant-appellants respectively abovenamed in equal sharesby deed No. 1636 dated 24.10.1958 (D1). The deed referred to her
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half share of the soil and plantations and the entirety of the housebearing Asst. No. 74/1, Lewis Place.
The abovesaid Phelomena by deed No. 1390 dated 10.02.1969transferred her half share to her son Antony Wilfred the plaintiff-respondent abovenamed (P2). This deed referred to half share of thebuildings and plantations bearing Assessment. No. 74/1.
In this partition case No. 1666/P thus brought between the plaintiff-respondent and the 1st and 2nd defendant-respondents the DistrictJudge of Negombo by his judgment dated 03.04.1985 allottedundivided 1/2 share of the land to the plaintiff-respondent, undivided1/4th to the 1st defendant-appellant and the balance undivided 1/4thshare to 2nd defendant-appellant. The buildings and plantations onthe land were allotted in terms of “X1”. That is, two houses and wellmarked 1, 2 and 3 together with four 15 years old coconut trees, onemango tree about 15 years' old, three young coconut palms were allclaimed by the 1st defendant and they were allotted to him.
It is against this judgment dated 03.04.85 this appeal waspreferred.
It was the contention of the 1st and 2nd defendants that they hadprescribed to the entire land and premises. In support of thiscontention the following matters were placed before Court by thelearned President’s Counsel appearing for the 1st and 2nd defendant-appellants:-
Since 1919 (when P1 was executed) it was Anna Maria andher family who resided on the land, first in a cadjan thatchedhouse which came down in 1948 and then rebuilt, and later ina tiled house built around 1954. Another house too was builtthereafter. Phelomena left in 1942 and never came back.
D4 showed that Municipal rates and taxes were paid from1941 up to 1979 by Anna Maria. Her name alone wasregistered as owner.
Plaintiff did not have possession of the land at any time. Evenon the basis of the evidence led on behalf of the plaintiff nonuts were plucked nor any produce taken from the land atleast for 13 years from 1966 to 1979. Defendants have alwaysacted as sole owners.
CA
Maria Fernando and Another v. Antony Fernando
(Wigneswaran, J.)
359
The defendants filed case No. 610/L in the District Court ofNegombo on 11.07.1963 for a right of foot path of necessityfor the land in question against 3rd parties qua owners. Theynever recognised any others as co-owners. Phelomena wasthen alive but was not made a party.
The defendants made a plan for their land qua owners on21.07.1967 (Plan No. 565 – D2). According to thesuperimposition report D3, Plan 565 and preliminary plan Xrefer to the same land.
A new house was constructed in or around 1976 without anyclaim or objections being made by the plaintiff. It was givenon rent by the defendants without any protest from Phelomena(who died only in 1979) nor the plaintiff. Their silence was anacknowledgment of the sole ownership of the property by the1st and 2nd defendants.
The reference to undivided shares by Anna Maria in D1 wasthe outcome of the Notary following the earlier title deed bywhich Anna Maria and Phelomena were given undivided halfshares. This did not reflect the position in reality and thereforecould not militate against the position taken up by thedefendants. Ponnampalam v. Vaithialingam and Another.™
W. Hubert Fernando who had known the land for over 50years giving evidence on behalf of the plaintiff had stated thatthough nuts were earlier plucked from the coconut trees onthe land and divided among co-owners the plaintiff does notpluck any now since there are no bearing trees. He furtherstated that nuts were plucked by Phelomena and Wilfred onlyin earlier days. Therefore it is to be presumed that the plaintiffdid not have possession at any time.
The learned President’s Counsel on behalf of the defendant-appellants therefore argued that all these facts should have beentaken together and the learned District Judge should have concludedthat there was adverse possession by the 1st and 2nd defendantswhich gave them prescriptive title to the entire land.
The following cases were mentioned: Tillekeratne et. al. v. Bastianet.al.,l2) Sideris et. al. v. Simon et. al.,l3) Don James Walpita v.Athukoralage Dharmasena.w
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Learned President's Counsel on behalf of the plaintiff-respondenton the other hand contended that the facts enumerated did not proveadverse possession among co-owners since there was no proof ofouster. He supported the decision of the learned District Judge. Hereferred to the following references:
Corea v. Appuhamy)*'
Abdul Majeed v. Ummu Zaneera et. al)*'
Hussaima (wife of Yoosuf Jallaldeen and Others v. UmmuZaneera (alias Shamsunnahar))7'
Wickremaratne and Others v. Alpenis Perera.<S)
He also pointed out that D4 which was an extract from theassessment register was not a document of title. He pointed outfurther that D1 referred to half share of the soil and plantations andentirety of the house thereon.
All these matters would now be examined.
The documentary evidence shows that Maria and Phelomena wereco-owners. In Corea v. Appuhamy (supra) the principle wasformulated that the possession of one co-owner could not be held asadverse to that of the other co-owner. In spite of over 30 years'continued possession the defendant’s title by prescription was notupheld in that case. The settled law presently in Sri Lanka is that thepossession of one co-owner is in law the possession of all the co-owners. Every co-owner is thus presumed to be possessing theproperty in his capacity as a co-owner. It is not possible for one co-owner to put an end to such possession by any secret intention in hismind. It is only “ouster" or something equivalent to “ouster” whichcould bring about that result. Brito v. Muttunayagam)9' I. L. M. CadijaUmma and Others v. S. Don Manis Appu and Others, (10> Cooray v.Perera)"' Fernando v. Fernando)'2' Girigoris Appuhamy v. MariaNona)'2' Danton Obeysekere v. W. Endoris and Others)"' Fernando v.Fernando)'*' Sideris v. Simon (supra), Wickremaratne and Others v.Alpenis Perera (supra).
The question therefore arises in this case whether long possessionby the 1st and 2nd dependants amounted to ouster. Whether oustermay be presumed from long, continued, undisturbed, anduninterrupted possession depends on all the circumstances in eachcase, (vide Siyadoris v. Simon))'*'
CA
Maria Fernando and Another v. Antony Fernando
(Wigneswaran, J.)
361
Justice G. P. S. de Silva (as he then was) in Wickremaratne v.Alperiis Perera (supra) looked in that case for an overt act on the partof the person claiming prescription which could have brought to thenotice of the other co-owners that such a person was denying theother co-owners’ rights to the corpus. Thus an overt act is considerednecessary to prove ouster since any secret intention to prescribe maynot amount to ouster.
The acts on the part of the 1st and 2nd defendants referred to bythe learned President's Counsel for the defendant-appellants to proveadverse possession are:
Long possession.
Payment of rates and taxes.
Enjoyment of produce though not really admitted by theplaintiff-respondent.
Case No. 618/L was filed by the 1st and 2nd defendant-appellants qua owners without making the plaintiff-respondenta party.
A plan (D2) was prepared for the entire land by thedefendant-appellants qua owners.
New house built on the land and given on rent without anyobjection being raised by the plaintiff-respondent.
None of these acts seem to connote an outward, overt act whichinformed the plaintiff-respondent that the 1st and 2nd defendant-appellants were bent on adversely possessing the land and premises.
Long possession
The long continued undisturbed and uninterruptedpossession by a co-owner has been held to be insufficient tocounter the presumption of one co-owner possessing for thebenefit of all other co-owners. It was held in Fernando v.Fernando (supra) that apart from such long possession toprove prescription it was necessary to lead evidence that theco-owners who were not in possession had knowledge of thedealings of the person in possession. Let us examine suchdealings in this case.
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Payment of rates and taxesThe payment of rates and taxes by a co-owner in possession isnot an act unexpected from a co-owner. It must beremembered that Maria's name continued in the assessmentregister even after the execution of D1 in 1958 until 1976. Theplaintiff-respondent had therefore no reason to change hisaunt’s name in the assessment register. In any event theregistration of a person’s name in the assessment register doesnot make that person an owner of the premises. D4, it must beremembered was not a document of title. It merely containedthe name of the person given to the local authority at aparticular point of time (in 1941) carried over in the assessmentregister for several years (until 1981) even after she divested ofher ownership to the 1st and 2nd defendant-appellants.
Enjoyment of produceThere is a difference in evidence with regard to the enjoyment ofthe produce by parties in this case. Even if one co-owner •continued to enjoy the produce at the expense of another co-owner that by itself does not prove adverse possession unlessfor example one co-owner claimed the produce and the personin possession refused to give any part of the produce andclaimed total ownership. There is no such evidence in this case.
Case No. 610/LThe plaintiff-respondent stated in evidence that his motherPhelomena did not become a party to the “right of way case"(No. 610/L) since at the time of the institution of the said actionshe had got a stroke and was paralysed. This position wassupported by witness Hubert Fernando. It was said that whenshe recovered she attended Court in connection with thecase. In any event a co-owner can institute an action againsta third party who interferes with the lawful user of the co-owner’s rights in a co-owned and (Vide Hevawitharane v.Dangan Rubber Co. Ltd.S'7' and Rockland Distilleries v.Azeez.m) Therefore the 1st and 2nd defendants filing CaseNo. 610/L in 1963 without making Phelomena a party does notamount to an overt act capable of conveying the message to
Maria Fernando and Another v. Antony Fernando
(Wigneswaran, J.)
363
CA
Phelomena that those in possession were desirous ofasserting title to her half share.
& (vi) Preparing Plan D2 and building new house
The same observation could be made with regard to thepreparation of a plan for the entire land and also building ahouse and giving it on rent. These are acts co-owners doresort to and at a partition case these matters are resolved byeither allowing the house built by one co-owner being allottedto that same co-owner or others paying owelty orcompensation and taking over such houses. In DiasAbeysinghe v. Dias Abeysinghe,m it was held that erection ofa new building on the common land and exclusive possessionthereof for over 10 years did not give rise to a prescriptive titleto the building and the soil on which it stood as against theother co-owners.
Thus none of these acts contain an overt act of refusal to recognisethe title in the plaintiff-respondent and his predecessor in title. Even ifall these acts are taken together as items of adverse possession asstated by Mr. Subasinghe they are off-set by the recognition ofPhelomena's title by Maria in 1958 (D1) when her deed referred to"half share of the soil and plantations and the entirety of the housebearing Asst No. 74/1, Lewis Place”. These were not words used bythe Notary arbitrarily merely following earlier deed No. 1042 (P1). TheNotary could not have referred to the entirety of the house as opposedto half share of the soil and plantations unless he was so instructed toprepare the deed. Therefore the reference to half share of the soil andplantation was a deliberate reference which showed the intention ofMaria to recognise Phelomena's ownership of half share. Under thesecircumstances the decision in Ponnambaiam v. Vaithialingam andAnother (supra) has no relevance to the facts of this case.
W. Hubert Fernando’s evidence cannot be said to have helped thedefendant-appellant's case as asserted by her learned President'sCounsel. The evidence of W. Hubert Fernando at page 92 of the briefis as follows:
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e: <30×3 raSateDO epa>.
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At page 93 and 94 the evidence runs this:—
gstaP ®0 oMSsnOca) So® Sqckd©) SeSSoxtoai ®§0 oi§^§sax3o)od g0®osaQe o0ego0eJ og&@> ooe» OetoOQ Sts®. ®® o® ©0 0e3©®Oc®ed0 S0). 68^-ssc©S8 dtssd. eo§£3) 2 o©S ©aJSaoScu ax®© §oa5 am 6 ©©©©Gtooa) @0 oozd© SoSam ®® ©03 es$§ Sm© go© g©ea© a© ©atoO ©o®. ®® ®@e 6 e®a©0G<3© ®£si©oS® aogqj ax$.
The fact that old coconut trees had come down and new ones werestill not bearing cannot be a ground to show either that the plaintiffhad given up his claim to co-ownership or that the defendants hadasserted their right to the plaintiff’s half share. It appears that whileCyril was prepared to purchase the plaintiff’s share recognising theplaintiff’s rights, Maria the wife was trying to claim title to the plaintiff’sshare.
Such secret intentions of greed or desire in one’s mind cannot putan end to the title of another co-owner. That is why “an ouster orsomething equivalent to an ouster" has been recognised by law asbeing necessary to make long, continued, uninterrupted andundisturbed possession by a co-owner turn adverse.
This Court therefore sees no reason to interfere with the judgmentof the learned District Judge dated 03.04.85. The appeal is dismissedwith taxed costs payable by the appellants to the respondent.
Appeal dismissed.