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Before the Loros of the Judicial Committee of the Privy Council.
(18th June, 1903.)
NAGUDA MARIKAR v. MOHAMMADU.
LKC.. Colombo, 7,068.
Prescription—Entry into possession as agent—Outlay of money on repairs ofhouses occupied and enjoyment of rents—Exclusive possession—Want ofchange of quasi fiduciary possession to adverse possession—OrdinanceNo. 22 of 1871, s. 3.
Where M, in consideration of certain services and outlays of money,was permitted by tbe owners of a house to enjoy its rents and recouphimself, and he repaired the house, paid taxes due thereon, leased it. anddid not- account for the rents or any surplus for about twenty years,—
Held, by the Judicial Committee of the Privy Council, that in theabsence of any evidence to show that he got rid of bis character ofagent, he was not entitled to the benefit of section 3 of OrdinanceNo. 22 of 1871.
Anthonies v. Cannon (3 C. L. H. Ho) over-ruled.
HIS was an appeal preferred to the Judicial Committee ofHis Majesty's Privy Council by the plaintiff from a judgment
of the Supreme Court of Ceylon delivered on the 18th January,1893, setting aside the decree made by the District Court of Colomboin favour pof the plaintiff.•
The only question pressed in this appeal v/as whether one Wappu »Marikav, the added defendant in the cash, had acquired a title byprescription to the immovable property claimed in the action.
. The action was raised against ,one Nina Mohammadu (the ori-ginal defendant) to recover possession of certain premises occupied10-
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1803 by the defendant in Sea Street, Colombo. The defendant pleadedJune, 18. that he held the premises under a lease granted by Wappu Marikar~ in 1898. Thereupon Wappu Marikar was added as a defendant inthe case.
The added defendant, now deceased and represented by hisadministrator, Wappu Marikar Mohammadu, in his reply allegedthat he was put in possession of the premises by one PattumaNachchiya twenty-five years before that date, and that he hadundisturbed and uninterrupted possession for that period by atitle adverse to and independent of the plaintiff and his allegedpredecessors in title, and had thus acquired a prescriptive titlethereto by virtue of section 3 of Ordinance No. 22 of 1871.
It was admitted by all the parties that the property belonged atone time to Pattuma Nachchiya, widow of Uduma Lebbe Mapillai;that the rents were collected for her up to .1871 by her son-in-lawand her grandson, the added defendant; that in 1871 P.attumaNachchiya gifted the northern portion of the land to her daughterMuttu Nachchiya, the central' portion to her granddaughterZeynambu Nachchiya, and the southern portion to her daughterKadija Umma, who in turn shortly afterwards, conveyed her shareto her daughter Tumumma; that though these gifts appeared tobe absolute, Pattuma Nachchiya continued to enjoy the rents untilher death in 1878; that in 1878 the added defendant leased thepremises to one Karupen Chetty for three years ending 30th'November, 1881; that at the commencement of that lease oneMeera Saibu, being in possession as monthly tenant, refused toquit. owing to a claim against the owners for improvements madeby him during his tenancy; that the added defendant gave MeeraSaibu a lease for five months from the 1st November, 1878, to the31st March, 1879, covenanting to pay him compensation; that inJune, 1879, Meera Saibu instituted action No. 7S,280 in the DistrictCourt of Colombo against the added defendant claiming compen-sation for improvements made by him, and obtained judgment indue course for Rs. 804 and costs; that this judgment was satisfiedby the added defendant, and thereup6n the premises were, vacateoby Meera Saibu; that Karupen Chetty, not being satisfied with thelease signed in his favour by the added defendant on the 13thNovember, 1878,c obtained nearly a year later from Muttu Nach-chiya, Zeynambu Nachchiya, and Tumumma another lease for aterm of six years from the 15th November, 1879, to the 15thNovember, 1885; that from the time of Karupen’s entry the addeddefendant appropriated the rents of the property to his own use;and that when Karupen Chetty ^ent out of possession in 1885, theadded defendant leased the property for three years from the 1st
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March, 1886, to one Meera Saibu, and again for three years to oneMarinai from March, 1889 to 1892, and again for three years to■one Nagamani, and again for four years to the original defendant.
Commenting on the circumstances which led the added defend-ant to appropriate the rent adversely to the claims of all others, theDistrict Judge of Colombo, Mr. D. F. Browne, found as follows:—
“ The added defendant does not sustain the allegation in hisanswer that Pattuma Nachchiya put him in possession, but he saysthat after the decree in 1878 to 1880 his father and mother andhis aunt Muttu Nachchiya gave over the house to – him to collectand take the rent for his use. In another place he says thatPattuma also joined them in giving it to him,- but that his sisters,Tumumma and Zeynambu, did not. What happened, he says, wasthis—that after the decision in case No. '78,280, his father andmother said to him, ‘ You take charge of the house ’, for till thatdate the rent had been paid to them.
“ The construction I place upon this incident is, that when theadded defendant satisfied the decree for Bs. 804 and costs, theowners for whom he was managing agreed he should recouphimself out of the rents. Possibly they never applied for anaccounting thereafter, and his practice of keeping the money tohimself has inured to the present time.
“ But will this give him title? I consider not, for the lease bythe owners to Karupen Chetty, under which possession- may bepresumed to have been held from the 30th November, 1881, untilthe 15th November, 1885, would be a possession by them, and thedefendant would not begin to have adverse possession until hehad recouped himself by the rents received. And again, when onthe 20th April, 1880, he accepted from his aunt Muttu Nachchiyathe gift of one-third for his son and nephew, it is idle for him tosay he has been prescribing against them. The added defendanthas failed to satisfy me that he has acquired statutory title byadverse possession for a period exceeding ten years as against theparties presently entitled by deed to the house.”
• The learned District Judge give judgment for plaintiff.
The added defendant appealed to the Supreme Court of Ceylon,on the 7th August, 1896, and the judgment of the District Courtwas set aside by Lawrie and Withers, J.J., by the followingjudgments ?—
28th January, 1898. Lawrie, J.—
In my – opinion it is proved that for ten years before theinstitution of this action the added defendant was in exclusivepossession of this house, leasing it and repairing it, paying the
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1903. (axes, and receiving the rents. The other members of his familynuary 18. who hold paper titles did not interfere with him and did notshare in the profits nor contribute to the expenses incident topossession and ownership. The added party seems to be in amore favourable position than the successful party in Anthonisz v.Cannon, for, though originally he entered as agent and collectorof rents for his grandmother, he shortly after her death spentlarge sums of money on their house, and there is evidence thathis position as agent and collector changed to that of a man who,the family acknowledged, was in equity entitled to possession, atleast until the money spent by him was repaid.' That moneynever was repaid, and his continued possession was, I think, on anadverse title.
I dissented from the judgment in Anthonisz v. Cannon, but 'ofcourse I am bound by it; and relying on that, and treating it as ofconclusive authority, I would set aside this judgment and dismissthe action. The added party is entitled to his costs.
Withers, ,J.—I am of the same opinion.
These judgments of Lawrie and Withers, • J.J., were broughtin review before a Full Bench of the Supreme Court at theinstance of the plaintiff, and the case was argued on the 8thNovember, 1898, before Bonser, C. J., and Lawrie and Withers, J.J.
The,ir Lordships delivered their judgments in review on the17th .March. ! si I! i. :md by a majority continued their previousdecision of the 28th .January. 189S.
Lawrie and Withers, J.J., were agreed in holding that thepossession of the added defendant was nt dominus, but the ChiefJustice dissented from that view. The following were thejudgments of the learned Judges: —
17lh March, 1899. Bonser, .C.J.—
The only question in this case is whether the defendant hasmade out his plea of prescriptive possession. In my opinion hehas not done so. He admits that he was. ‘ ‘ given charge of theIonise.*" Thatobeing so, it is for him to show that his quasifiduciary position was changed by some overt act to ^possession,i.e., a holding with the intention of keeping the property tohimself. This lie* lias 'failed to do. T cannot agree that therebuilding of the house was of itself sufficient to give the ownersnotice that he intended in future to treat the property as his ownregardless of their rights. Considering *< that the parties areMohammedans, T think that the defendant’s acts and conduct are
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quite consistent with the position of manager of the property ofhis female relatives. He would be entitled to retain the rentsuntil he had recouped himself his expenditure.
As regards Anthonisz v. Cannon (3 C. L. R. 65), in the decisionof which I took part, I have more than once stated in open Courtthat in my opinion that case was wrongly decided, and oughtnot to be considered an authority. I am afraid that at the date ofthat decision I did not sufficiently appreciate the force of theterm “ possession ” in Roman-Dutch Law.
Lawrie, J. —
In my opinion the judgment under review should be confirmed.I desire to modify slightly the judgment I gave, and in lieu of itto say that I hold it proved that for more than ten years prior tothe 4th March, 1894, the date of the institution of this action,•the added defendant was in exclusive possession of the house: heleased it and took the rents; he repaired it and paid the taxes.
The other members of the family, who afterwards sold to theplaintiff, did not interfere with him; they did not share in theprofits nor contribute to the expenses incident to possession andownership. The reason of this probably was that about 3882 or'1883 the house fell into a dilapidated state and required extensiverepairs, if not indeed total reconstruction. This was done bythe add^d defendant at his own cost. He had for several yearsbefore been the- ostensible landlord, who had given leases andagainst whom actions bad been brought; but I am willing to holdthat he there acted as agent for the family.
But when the house was repaired or rebuilt at his own expense
the agency ceased. He possessed thereafter ut dominus. Possibly
his aunts and nephew looked forward to the day when they could
in equity claim to be restored to possession, but they allowed full
ten years to elapse before that claim was made, and I read the
evidence for the added defendant (none was adduced for the
plaintiff) as proving that the possession by the added defendant
was on an adverse title. t••
The position of the added defendant towards his own son, forwhom he accepted the gift of a share of the house, is different, andthe right of the son is not adjudicated on and is not affepted ^bythis judgment.
We are all at one, I th’ink, about the law applicable to a case ofthis kind. The only question before »us is one of fact. Now,whatever the circumstances may have been under which the
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1903.defendant dealt with thehouse in dispute, they ceased to exist
January is.when the house, if it didnot cease to exist, became untenantable
for want of repair, and had virtually to be rebuilt. The defendantrestored it at his own cost, and without being asked to do so byhis sisters or aunts. From that time he used the house as hisown; he let it and tookthe rents for himself. The house was
restored more than tenyears before action brought. In my
opinion the judgment in review should be affirmed.
From this judgment the plaintiff appealed to the Privy Council.
The case came on for hearing before Lord MacNaghten, LordRobertson, Sir Andrew Scoble, and Sir Arthur Wilson.
Arthur Cayley, for appellant.
Chalton Hubbard, for respondent.
The judgment of theCourt was delivered by Lord Mac-
Naghten on the 18th June, 1903, as follows: —
Their Lordships are of opinion that this appeal must succeed.
The added defendant,who is represented by the present
respondent, entered uponthe premises in dispute as agent for
other persons. He nevergot rid of his character of agent, but
having spent some moneyon the repairs of the house, which fell
down, and not having duly accounted for the rents or for anysurplus, he claimed that he was entitled to hold the property ashis own under the Ceylon Ordinance, No. 22 of 1871. It appearsto their Lordships that there is no foundation whatever for thisclaim, and that this appeal ought accordingly to be allowed.
Their Lordships will therefore .humbly advise His Majesty thatthe decree of the Supreme Court ought to be discharged withcosts and the decree of the District Judge restored. Therespondent will pay the costs of the appeal.
NAGUDA MARIKAR v. MOHAMMADU