Opalgalla Tea and Rubber Estates, Ltd., and Hussain.
1944Present: Howard C.J. and Jayetileke J.
OPALGALLA TEA AND BUBBER ESTATES, LTD.,Appellant, and HUSSAIN, Respondent.
298—D. C. Kandy, 682.
Principal and agent—Admissionof titlebyagent—Notbinding without
authority—Admission of letters without proof—Objection in appeal—Evidence Ordinance (Cap. XT), s.47,Civil ProcedureCode (Cap. 86),
The Superintendent of anestateisnotentitled tomake admissions
with regard to the proprietor’s title unless he is especially authorisedto do so or unless his duties as Superintendent by implication include-such authority.
Where certain letters were admitted without legal proof by the DistrictCourt without any objection being raised by the opposite party, it isnot open to such party toobjecttotheirreception inappeal.
A PPEAL from a judgment of the District Judge of Kandy.
H. V. Perera, K.C. (with him N. K. Ghoksy and R. A. Kannangara),for the defendant, appellant.
N. E. Weerasooria, K.C. (with him S. R. Wijayatilake and N. Ameer),for the plaintiff, respondent.Cur. a-dv. vult.
HOWABD C.J.—Opalgalla Tea and Rubber Estates, Ltd., and Hussain.
May 17, 1944. Howard C.J.—
The defendants appeal from a judgment of the District Judge, Kandy,declaring the plaintiff entitled to certain lands and premises claimedby him in his plaint. The plaintiff based his claim on deeds commencingfrom March 5, 1897, by virtue of which the lands in question weretransferred to one Assen Meedin. The ownership of Assen Meedin isclearly established. On Assen Meedin's death, letters of administrationwere issued on July 31, 1900, to his widow Asia Umma. On Asia Umma’sdeath the lands in question devolved on her son Meera Saibo who subse-quently transferred them to one Mohammedu Abdul Cader. The latterby a deed (P 20) dated December 16,1941, transferred them to the
plaintiff. In their answer the defendant Company asserted that, by adeed of May 23, 1906, one Abdul Cader, the brother of Assen Meedin,sold the lands in dispute to one Abdul Rahiman, who by a further deeddated June 2, 1906, conveyed them to one F. H. La Roche. La Rocheby deed dated May 30, 1912, conveyed the said lands to the defendantCompany. The defendant Company also stated that they bought thesaid lands along with other lands from the Crown on a grant by the latter•dated July 31, 1914. The defendant Company also further maintainedthat they had planted the said lands with tea and had possessed the.same for over ten years and thereby acquired a prescriptive title thereto.
The learned Judge in finding in favour of the plaintiff came to thefollowing conclusions : —
The deed by which Abdul Cader purported to convey, the lands
to Abdul Rahiman clearly established that he had no title tothe lands and was fraudulent inasmuch as the title was in MeeraSaibo whereas Abdul Cader purported to deal with them as hisown: Hence the defendant Company’s title, in so far as it isbased on that of Abdul Cader, cannot be sustained.
The planting of the lands was commenced in the year 1901 or
thereabouts and in 1914 the Crown by grant conferred titleon the said defendant Company. Such grant did not, however, .have the effect of wiping out the title of the plaintiff. More-over it was established by document P 14 and P 15 that thedefendant Company was in possession by virtue of an informallease for 25years from1906 whichto ally all troubles was
obtained from Asia Umma. The Crown grant must be deemelto have been obtained by the Company for the benefit of theirlessor.
The defendant Company’s possession until 1939, based as it was on
an informallease, wasnot adverseto" the true owner, the
plaintiff’s predecessor in title, Mohammadu Abdul Cader.
In these circumstances the defendant Company had not acquired titlebv prescription.
I do not think the learned Judge’s conclusions so far as they are sum-marisedin (a) can becontested.With regardto the conclusions at (b)
Ialsoagree that theplaintiff’s title was notwiped out by the Crown
•Grant of 1914. The Crown Grant (D 6) describes the premises transferred
256 HOWARD G.J.—Opalgalla Tea and Rubber Estates, Ltd., and Hussain.
as an allotment of land called Palatenna estate. It is not described as“ chena ” or waste land. Nor is there proof that it was such land. Inthese eirumstances there is no presumption that the previous title wasin the Crown—Petera v. Silva1. In regard to the finding against thedefendant Company on the issue of prescription the learned Judge hasstated in his judgment that, if it was not for the difficulties created by thedocuments P 14 and P 15, which are letters written in 1927 by Mr. Wills,the then Manager of the Company, there would be little difficulty inholding that at least since 1906 the lands have been in the possession ofPa Roche and the defendant Company adversely to the plaintiff and hispredecessors in title. The learned Judge then proceeds to hold that thetwo letters P 14 and P 15 clearly establish an informal lease for 25years from 1906. The only questions for consideration are whetherthe learned Judge was correct in coming to this conclusion and, if not,whether the defendant Company have established their rights to thesaid lands by prescription. .P 15 is dated December 11, 1927, and isaddressed to M. Chelvatambv, Esq., Proctor, Matale, and purports to besigned by Mr. Wills. The writer states that Mohammadu Abdul Caderhas purchased the lands in dispute, the description and dimensions ofwhich are set out in detail, from Meera Saibo, but he (the writer) hastaken a lease for 25 years from Asia Umma, the mother of Meera Saibo,to cultivate the said lands and to leave them for the owner after 25 years.The writer also states that Meera Saibo has shown him the deeds oftransfer and he will quit the lands after the lease expires in 1931 ac-cording to the terms of the informal writing taken from Asia Umma.P 14 is dated December 23, 1927, is addressed to Mohammadu AbdulCader and purports to be signed by Mr. Wills. It refers to the amicablearrangement with regard to the lease and reiterates the promise to givepossession in the year 1931 .and to pay damages in the event of failureto do so. Mr. Perera, on behalf of the defendant Company, has main-tained that the two letters have not been proved to be in the handwritingof Mr. Wills and cannot, therefore, be accepted in evidence in supportof the case put forward by the plaintiff. The letters were produced bythe plaintiff when he gave evidence. He further states that they werehanded to him by Mohammadu Abdul Cader when he purchased theproperty. Mohammadu Abdul Cader, according to the plaintiff, diedabout six months before the hearing of the case. The plaintiff is not ina position to prove Mr. Wills' handwriting. Mr. Grogan, the presentSuperintendent of the Group, of which the defendant Company forms.part and who gave evidence for the latter, was asked in cross.-examina-tion about the signatures on P 14 and P 15. In reply to these questionshe stated that the signatures on the two letters looked very like thesignature of Mr. Wills. Close scrutiny of the letters indicates that theyhave been written by a person who was unfamiliar with the Englishlanguage. It does not of necessity follow from this fact that they werenot signed by Mr. Wills and represented. his views. At the same timeit is quite clear that legal proof that the letters were signed by Mr. Willswas not adduced. In spite of the absence of legal proof the letters wereaccepted by the learned Judge without objection being raised on behalf
1 7 C. W. R. 135.
HOWARD C.J.—Opalgalla Tea and Rubber Estates, Ltd., and Hussain.
of the defendant Company. In these circumstances Mr. Weerasooriacontends that objection in this Court cannot be taken to their reception.I am satisfied that this contention is correct. Section 47 of the EvidenceOrdinance (Cap. 11) is worded as follows: —
“ When the Court has to form an opinion as to the persons by whomany document was written or signed, the opinion of any person ac-quainted with the handwriting of the person by whom it is supposedto be written or signed that it was or was not written or signed by thatperson is a relevant fact.”
No objection having been raised by Counsel for the defendant Companyto the admission of the two letters, it cannot be said that the Court hasto .form an opinion as to the persons by whom “ the letters were written ”.Moreover section 157 of the Civil Procedure Code (Cap. 86) states asfollows: —
“It is the duty of the Court, in the event of a witness professing tobe able to recognise or identify writing, always to take care thathis capacity to do so is thus tested, unless the opposite party admits it.”It seems to me that the defendant Company admitted the letters in thelower Court. In this connection I would also refer to the judgment ofPereira J., in Silva v. Krndersley1. There is, however, a furtherobjection to these documents being received in support of the alleged'informal lease. No doubt they do amount to an admission by Wills of alease. According to Wills the lease dates from 1906, six years before the -defendantCompany obtainedtheir titledeedfrom X<a Eoche.The-
letters do not make it clear whether Wills in writing them was actingin a personal capacity or on behalf of the defendant Company. Nodoubt if he was speaking for himself the letters would amount to anadmissionso far as he wasconcerned.Theplaintiff, however,has
throughout the case taken up the position that Wills in these letterswas writing as the Agent of the defendant Company. There is noevidence that he was specifically authorised by the Company to makeany such admissions, or that his duties as Manager or Superintendentby implication included such authority. The question as to whetheran agent of a landowner is authorised to make admissions with regardsto the latter’s title was considered in the case of Ley v. Peter1. In the-,couse of his judgment, on page 407, Bramwell B., with whom themajority of the other Judges agreed, stated as follows:—.. i :
“ Upon these facts I am of opinion that no evidence was givento prove Peter’s authority to Newton to write this letter. No express-authority was proved; no evidence given that the defendant everheard of, or had any knowledge, or ever acted upon or recognised this-letter. Then, was there anything to show that writing this letter by-*Newton was within the general scope of his authority? Newton wafiiian outside agent, and received the rent for the defendant; and receivedrents at the manor court, and paid the expenses of-the defendant there.-There is certainly no authority in a receiver of rents to make admissions.Throughout the country landowners are in the habit of employing'estate agents and others to receive their rents, and to conduct such
1 18 N. L. R. 85.2 157 E. R. 408.
9J. rr. A 93349 ril/491
258 HOWARD C.J.—OpalgdUa Tea and Rubber Estates, Ltd., and Hussain.
farming operations as repairing, draining, cutting timber and thelike; but such an employment would not enable that agent withoutexpress authority to make admissions in writing or otherwise as to hisemployer’s title, or to bind him by proposals to purchase, or take onlease, the lands of another. To hold otherwise would be to placelandowners at the mercy of their receivers or farm agents. Even anattorney employed in a matter of business is not an agent to makeadmissions for his client except after action commenced and in mattersrelating to that action—Wagstaff v. Watson1. Arid as to Newton,negotiating respecting some right of turbary on behalf of the defendantit is impossible to say that this would authorise him at any future timeto make statements as to title, or to make an offer for the purchaseof land.
Moreover, it is for the Judge to look at the letter to see whetherit professes to be written by an agent, and by the authorityof the defendant. It does not purport to be written by thedefendant’s sanction, pr authority, but merely asking Millett whethera lease would be granted, defendant being in possession of frds,who, as he says, no doubt will accept a lease, and no doubt would payrent for the past.”
In my opinion the letters P 14 and P 15 do not profess to be written byWills by the authority of the defendant Company. There is nothingto show that the writing of these letters was within the general scopeof his authority. In these circumstances the letters cannot be regarded,so far as the defendant Company is concerned, as evidence of an informallease. Apart from these letters, there is no evidence of such a lease.The plaintiff admits that his sole information of such a lease is derivedfrom the letters.
Can it be said that in these circumstances the defendant Companyhas established its claim by virtue of prescription? The evidence issomewhat meagre, but I am of opinion that it is sufficient to establishsuch a claim. The defendant Company purchased the said lands fromLa Roche in 1012. There is the further Crown Grant in their favourdated July 31, 1914. Mr. Grogan, the present Superintendent, statesthat he has known the lands in dispute since 1927, and that the defendantCompany was then in possession and taking the produce and continuedto do so until he himself took charge in 1935. After that time he tookthe produce up to the date of trial. Moreover he plaintiff himselfconcedes that the lands were in the possession of the defendant Company,which possession in the absence of evidence cannot be taken as arisingfrom a lease. These facts in my opinion prove 10 years’ adverse possessionby the defendant Company. The latter have established their claimby virtue of prescription. The judgment of the District Judge must, inthese circumstances, be set aside and judgment entered for the defendant-Company with costs in this Court and the District Court.
Jayetileke J.—-I agree.
1 4B & Ad. 339.
OPALGALLA TEA AND RUBBER ESTATES, LTD., Appellant, and HUSSAIN , Respondent