036-NLR-NLR-V-10-ORLOFF-et-al.-v.-GREBE-et-al.pdf
( 183 )
1907.March 27,
ORLOFF et ah v. GREBE et aLD. CKandy, 14,759.
Prescription—Possessionwithconsent—Adversepossession—Overtact—
Ordinance No. 22 of 1871.
Where a person enters into occupation of property belonging;to another with the latter’s consent and permission, he cannotacquire title by prescription to such property, unless he gels rid'of the character in which he commenced to occupy by doing someovert act showing an intention to possess adversely to the owner.
Judgment of the Privy Council in Noguda Marikar v. Mohani-madu (1) followed.
H
EARING in review of the judgment of the Supreme Court inappeal, dated 13th October, 1904, preparatory to* an appeal
to His Majesty in Council.
Elliott, for the defendants, appellants.
Batva, for the plaintiffs, respondents.
Cur. adv. vuU.
27th March, 1907. Wendt' J.—
This is a hearing in review, preparatory to defendants appealingto His Majesty against the judgment of this Court pronounced bymy brother Middleton and myself on 13th October, 1904. Wedismissed defendant’s original appeal and affirmed the judgment ofthe District Court of Kandy, which was in favour of the plaintiffs asprayed.
The plaintiffs are the executors of the late Edward TheodosiusGerlits, who died on 13th August 1877, leaving a last will dated28th June of the same year, and they seek to recover from the defen-dants, who are man and wife, the house No. 47, Trincomalee street,
Kandy. On the pleadings it is admitted (save as to a differenceof extent to which I shall presently refer) that Gerlits became ownerof the house by purchase on the conveyance dated 1859 pleaded bythe plaintiffs. The defendants, however, deny that he died possessedof it, ancf spy that his three sisters and the second defendant (thedaughter of one of the sisters) had by possession adverse to himacquired a prescriptive title to it. They next say that if the testa-tor died possessed of the -property, his “ heirs-at-law r’ were histhree sisters and the children of a deceased sister; that the fifsfc
■. *
[In Review.]
Present : Sir Joseph T. Hutchinson, Chief Justice, Mr. JusticeWendt, and Mr. Justice Middleton.
a) (1®3) 7 N. L. R.
1907.
March 27.
OTbndt J.
( 184 )
defendant, having been married in community of estate to one ofthose children (now deceased) became entitled to an undividedone thirty-second share of the property in question; and that thesecond defendant, a daughter of one of the three, sisters, Mrs.Frederica Perera, is entitled by inheritance from her mother toone-fourth share thereof. Lastly, the defendants say that they andMrs. Perera had had prescriptive possession as against the plaintiffsuntil the mother’s death in 1900, and that thereafter the defendantshave continued in such possession up to date, and they accordinglyclaim a title under the Prescription Ordinance.
The last will, after directing the payment of debts and funeraland other expenses, proceeded as follows (clause 2): —
" I give and bequeath to my dearly beloved sister Frederica, nowthe wife of Mr. J. H. Perera, to my unmarried sisters Anesta Gerlits,Margaret Cecilia Gerlits, and to my niece Selina Ashbourne; all theissues, rents, and profits arising from my real and personal propertysituate at Kandy, Nuwara Eliya, and Badulla, or wheresoeversituate, and all the interest and dividends arising and accruing fromthe moneys now laid out at interest on the mortgage of real propertysituate at Kandy and at Badulla in equal shares and proportions,and I direct that the same be paid to them by my executors duringthe term of their natural life, and after the death of any. one oreither or all of the said legatees I direct that the share of the rentsand interest aforesaid of the legatee so dying should be distributedamong the widows, orphans, and really deserving destitute people.of the Burgher community according to the discretion and judgment,of my executors hereinafter named.”
The 4th clause directed that the testator’s houses < and landssituated in Kandy should not be sold at any time, but gave theexecutors leave to sell other lands, and in that event directed thatthe proceeds, with the other moneys of the estate, be held in trustand invested, and the interest and dividends arising therefrom beapplied as provided for in clause 2. The 5th clause forbade the execu-tors to incumber the real property, and directed that the expensesof keeping and maintaining such property in good and proper repairand order be paid from the funds of the estate, the executors how-ever taking care “ that such expenses'be not incurred at once ifthey will materially diminish the life interest of my aforesaid sistersand niece.” The 6th clause prohibited the legatees from mortgagingor alienating “ their life interest in this my estate ” or drawing the.same in anticipation.(
It is common ground that for several years before the testator’sdeath his three sisters named in his will (the eldest being a widowand the other two, Anesta and Margaret, being unmarried) livedin the house in question rent free, and they continued to live thereintill their respective deaths. Anesta and Margaret died in 1885,and Mrs. Perera on 14th January, 1900; the fourth legatee, Selina
Ashbourne, the only one now surviving, is the wife of R. 0. Estrop. 1907*She is one of the daughters of Adelaide, a sister of the testator’s March 27.who had predeceased him; The. plaintiffs allege that the sisters* Wendt J.occupation was by the leave and license of Gerlits, who put of loveand affection for them (they being destitute of means of their own)permitted them to live in the house free of rent. The defendants,who are unable to throw any light on the circumstances attendingthe sisters* entry, say that their occupation was adverse to any claimon the testator's part. It is proved that Gerlits, who was himselfunmarried and was a fairly wealthy man, was a proctor practisingat Badulla, whence he visited Kandy every year' at Christmas tosee his sisters and relatives. On those occasions (the last of whichwas in the year before his death) he stayed in this house. He toldthe first plaintiff Mr. Sproule (a fellow practitioner and very oldfriend) that he wished his sisters always to live in the house free ofrent. The title deed* remained always in Gerlits’ possession, and isproduced now by the plaintiffs^ Considering the sisters* entiredependence on the testator, the probabilities are strongly, in favourof plaintiffs* contention, that their occupation of the house was by -his permission and not in assertion of any independent right. Thepossession presumably follows the title, and there is an entireabsence of proof of any overt act of the sisters which would character-ize their living in the house as adverse to the ownership of theirbrother. I think therefore that .the learned District Judge was rightin deciding that Gerlits died possessed of the property in question.
As regards the prescription by defendants against the executors,the District Judge believes; that the defendants, as the daughterand son-injaw of Mrs. Perera, went to live with her, with her per-mission, and that no overt act has been proved whereby they mani-fested an intention of occupying the house as their own, until afterher death and within two years of the institution of this action.
The District Judge finds that from 1878 until 1899 Mr. Sproule,the second plaintiff as the working executor, repaired and kept thehouse in order sometimes at the request of one of the sisters, at othertimes St the request of the first defendant. There is an obviousslip of the pen in certain passages of the judgment, where BenjaminGrebe is spoken. of as second defendant. He annually whitewashedthe bouse, and since 1884 (when he came to reside in Kandy) visitedit in order to ascertain the nature and extent of the repairs needed,.for the execution of which he had estimates submitted which hesanctioned# and paid for. The quarterly Municipal taxes assessed*upon the property were' paid by the second plaintiff from 1878 to1899, and during all that time the house was entered in th§ Municipalbooks as the property of Gerlits or his estate, and it still remains soentered. The defendants never paid any of the taxes. They soughtto avoid the assertion of title which is to be inferred from these actsof the second plaintiff, by suggesting that he merely expended the
( 186 )
1907.
March 27.Wendt J.
moneys as the agent of Mrs. Perera, and deducted his disbursements.out of her share of the rents, &c., payable under the will. This isentirely negatived by the testimony of Mr. Sproule and by theevidence of his accounts, and it has to be borne in mind that the willrequired the executors to maintain and keep the property in order.Mr. Sproule in truth, actuated by the affection he bore the memoryof his friend, the testator, discharged his duties as executor in themost generous and liberal spirit towards Mrs. Perera and her sisters,;and it is impossible to resist the conclusion that that lady wouldhave given no countenance whatever to the claim of prescriptionput forward after her death by her daughter and son-in-law. Onsome material points there is a conflict of evidence between Mr..Sproule and the first defendant, and the District Judge unhesitatinglyprefers the testimony of Mr. Sproule. There is no reason whatever■for'thinking he was wrong in so doing. This disposes of defendants’iclaim to have prescribed against the legal representatives of Gerlits.On this part of the case I need only add a few words as to the caseof Jain Carim v. Rahim Dholl (1), upon which appellants relied asrecognizing a possession similar to that of Gerlits' sisters as being aprescriptive possession under the Ordinance. The difference in the•facts distinguishes that case from this. There Burnside C.J. saidthat, although the occupation of Saibo Umma began by the sufferanceof the owner, she had by exercising independent acts of ownership,'such as repairing the house at her own expense, converted herpermissive occupation into an adverse possession, and that beyond«loubt the owner had regularly recognised her separate possession.There are, however, expressions in the judgments both of theChief Justice and of Lawrie J.. which at first sight lend colour tothe contention that, if for ten years the possessor has not paid rentor produce, or performed service or duty to the owner, nor done-any other act from which an acknowledgment of the owner's titlewould fairly and naturally be inferred, such possessor has acquired-a prescriptive right. But that view has been repeatedly held, to beerroneous in not taking account of the origin ofnthe occupation or^enjoyment by the- person claiming such right. It can only betrue where <at the commencement of the ten years the parties are•at arm’s length and independent of each other. So far back as inthe year 1887 this Court laid down in Coloeterie Goeroenanselagev. Don Christian Arachchy (2), that “ a possessor is always presumed,to hold in his own right, and as proprietor, until the contrary be^demonstrated; the contrary being once established an/i it being■shown that the possession commenced by virtue of*' some othertitle, such as that of tenant or planter, then the .possessor is tobe presumed to have continued to hold on the same terms, untillie distinctly proves that his title has changed." 1
(1) (1892) 2 C. L. R. 118.(2) Morgan's Digest 1€9.
( 187 )
Lawrie J. (2 C. Li R., p. 120) attributes this summary of the lawto Bough C.J., but the report shows that it was due to JeremieJ.,the other member of the Court.
That this is the correct view is proved by the decision of theJudicial Committee of the Privy Council in Naguda Marikar v.Mohammadu (1). See also the decision of this Court in Maiuwan-wala v. Ekneligoda (2). In the case now before us, the persons inoccupation and enjoyment, even if they did no act acknowledgingGerlits’ title, never got rid of the character in which they commenced,to occupy and enjoy the house, and never put themselves in a positionto possess adversely to the true owner.
The appellants argued that the will had disposed of the rents andprofits alone of the house in question; that therefore Gerlits haddied intestate in respect of the dominium which had accordinglydevolved ab intestato in equol shares on the surviving sisters and thechildren of the deceased sister; that the firs.t defendant had thereforebecome owner of one thirty-second share by his first marriage with,one of those children, and that his present wife, the second defendant,had also now inherited a share from Mrs. Perera. This contentionis intended to lead up to the argument that the executors cannoteject the heirs in possession, to which I shall presently refer. In myopinion Gerlits did not die intestate ,as alleged. His will says thatthe houses in Kandy shall not be sold at any time, and at any rateas respects them he intended that the income from them should bedevoted in perpetuity after the death of all the legatees, to the charit-able purpose defined in the *2nd clause. That provision is inconsis-tent with a vesting of the dominium in the next of kin immediatelyupon the tostator's death. I think the dominium is vested in theexecutors. If that provision is void in law, it could only be sodeclared in an action properly constituted for that purpose, and wecannot discuss that question as a defence to the claim of theexecutors.
Besides, assuming Gerlits did die intestate to the extent alleged,,the probate vests*his whole estate in the executors, even althoughthe distribution may have to be by the rules of succession ab intas-tato; and the executors are entitled to vindicate .the property frompersons who, like the defendants, deny their testator’s title. Thecontention to which I alluded just now, viz., as to the inability ofthe plaintiffs as executors to recover the property from any personentitled as heir to a distributive share of the estate, was not fultyargued before us in review, but counsel stated the general proposition*that, after the lapse of an unreasonable time, an executor or adminis-trator before he could recover judgment in ejectment ^gainst theheirs, claiming to be in possession as such, must show that the-property in question is required for purposes of due administration 1
(1) (1903) 7 N. L. R. 91.. (2) (1898) 3 N. L. R. 213.
1907.
March 27.
Wendt J
1907.
March 27.Wbndt J.
( 188 )
of the-estate. No oases were specifically cited, and counsel admittedthat he had not found one in which persons who denied the testator'stitle had succeeded in keeping possession. The cases which gavesupport to the view thus put forward are old cases, decided beforethe law was as clearly understood or settled as it is now. That lawis the English Law of Executors and Administrators, and it affordsno ground for the claim of the defendants.
There is only one other point I need advert to, viz., the contentionthat the executors are at most entitled to recover only 7.67 perchesof land (that being the extent mentioned in the conveyance toGerlits), whereas the premises now comprise 9.358 perches. Theconveyance was of the ground and buildings within specific bounda- tries, the ground being practically covered by the house. True, it isdescribed as containing 7.67 perches according to the annexed figureand survey, but that is matter of description merely and does notcontrol the conveyance. .It was not a conveyance of a portionout of a larger corpus. From the time of the conveyance to thepresent the ground has been occupied by the house, and there isnothing to suggest that Gerlits did not enter into possession of thewhole extent in claim. Nor is there anything which indicates thathis sisters or the defendants entered upon 7.67 perches extent underGerlits, and upon the remainder in assertion of an independentright. There is nothing to indicate on which side the boundaryhas been pushed forward, if it has been pushed forward at all. Thedefendants occupied the property as a whole, and they must holdit or surrender it as a whole.
The value of the mesne profits as the measure of damages was notcontested before us. For the reasons I have given, I am of opinionthat we should affirm our judgment under review and leave thedefendants to proceed with their appeal to His Majesty. Thedefendants will pay the respondents their costs of the hearing inreview.
Middleton J.—
This was a hearing in review previous to appeal to the PrivyCouncil from a judgment delivered by me and concurred in by mybrother Wendt.
The defendants’ Counsel, Mr. Browne, on the original appeal inopening, endeavoured to support, their case on the ground of pre-scription, but in reply Mr. Walter Pereira declined toc rely on thatground, and we have now again been addressed on the point of pre-scription, Vhich has been strongly urged by Mr. Elliott.
In my judgment, as I believe, I stated on the former argumentthere was no evidence of adverse possession to enable the defendantsto support a title by prescription.
( 189 )
As regards the point that defendants are .entitled to succeed asregards the difference between the area in the plaintiff’s title deedand the actual area of the properly in question, what the defendantsoccupied were the premises known as 47, Trincomalee street, Kandy,within the boundaries given in the title deed.
The fact that those premises have a somewhat larger area withinthe boundaries than the area specified in the deed does not therebyentitle the defendants to claim; they have acquired a title byprescription by adverse possession as regards that difference.
The' nature of the defendants' occupation applied to the wholepremises which the plaintiffs might claim under, their title deed.The portion in excess of.the area in the title deed, if there was infact such a portion, has not been shown to be a separate dividedportion capable of separate exclusive occupation, and I would holdthat the argument as to the want of adverse possession appliesequally strongly to such portion.
It was objected to my judgment that I had put forward Selina'srights as a reason for the view that I took in holding that thecorpus including this house vested in the executors.
I ought perhaps to have gone further, and suggested that theexecutors would not be able to carry out the terms of the wiU asregards the poor Burgher community if deprived of the rents andprofits of the house in question.
I see no reason to alter the view I took in my former judgment,and would dismiss this appeal-with costs.
Hutchinson C.J.—I' agree'
Judgment in appeal confirmed.
1907.
March 27.
Middleton
J.