090-NLR-NLR-V-18-PATHUMMA-v.-SINNA-LEBBE-et-al.pdf
Present: Wood Benton O.J. and Shaw J.
PATHUMMA v. SENNA LEBBE et al
101—D. C. Matara, 6,209.
Prescriptive possession—1 tit c rr uption by minority of heir.
When prescriptive possession has once commenced to ran againstthe owner of land it will not be ' interrupted by his death andminority of his heirs.
T
HIS was a partition action in which the plaintiff and the 11thdefendant claimed the land sought to be partitioned. as
purchasers at a Fiscal *s sale in execution against the original plaintiff«nd defendants. The owner of the land was Kungi Bawa. The•original plaintiff was his widow, and the original defendants werehis children and their husbands and the guardian of five otherminor children of Kungi Bawa by his second wife. On the occasionof the marriage of his daughter, the 1st defendant to the 2nd, KungiBawa executed a kadutam dealing with half of the land in dispute,dated December 5, 1809, in her favour. On the marriage of anotherdaughter, the 3rd defendant to the 4th, he executed in her favoura second kaduiam, dated December 3, 1906, dealing with the otherhalf. The plaintiff, and the 11th defendant claimed the entireproperty by virtue of their purchase at the Fiscal's sale. The 6thto the 10th defendants were minors at the date when each of theIcadutams was executed. At the trial, and for the purposes of thisappeal, the plaintiff and the 11th defendant limited their claim tothe one-eighth share conveyed by Kungi Bawa under the kaduiamof December 5, 1899; the daughter to whom that share was conveyedwas Pattumanafchiu. The ground of the waiver was that therehad not been sufficient time to acquire title by prescription to theother half share passing under the kadutam of December 8, 1908.The learned District Judge held that the kadutam of December5, 1899, was merely an unexecuted promise to convey, and nota conveyance in itself; and further, that prescription would notbegin to run against the minors until they had attained majority.'The plaintiff and the 11th defendant appealed against these findings.
Arulanandam (with him A. St. V.. Jayewardene), for plaintiffand 11th defendant, appellants.—The District Judge is wrong inholding that the kadutam granted by Kungi Bawa to his daughter,the 1st defendant, operated as a promise to transfer the land atsome future date. It was an out-and-out grant. There is evidencethat the 1st defendant and her husband entered into possession onthe execution of the kadutam, and that they lived on the land In
( 381 )
dispr e. Therefore prescription in favour of the 1st defendant 19t5,bega to run during the lifetime of Rungi Bava. The subsequentmine ty of the heirs will not interrupt the running of prescriptions. *•
(See . 'itmazamby r. Y&iravy.1} 8i*watdmhy v. Vdimvy – was followedby M« aereiff A.C.J. in Siumtamby t>. Meera Levvai*
Thb District Judge has failed to. observe the important distinctionbetw een tL=r facts of the present case and that reported in Koch'sRepnts at pages 61 and 62, where the tadwtsm was executed, not bythe original owner* but by the eldest sen of the original owner. Atthe ame thr prescription- claimed began to run, the persons whoclairred adversely later were miners. Counsel also cited WalterPerei'a 8Q4_ and 805.
J. jl. Jaycirardene, tot respondent*—Section Id of the PrescriptionOrdingfrce. No. 22 of 1871r deals with disabilities affecting claimsother than those for lands, and is purposely differently worded fromsection 14* which relates to landed property. Counsel adopted theobservations of-Pereira J. at page 805 of his book.
Sinnatamby v. Vairavy1 was decided on the older PrescriptionOrdinance, and is no authority now. Counsel cited 2 Ch. D. 233and 62 L. T. Reports 796.
A. St. V. Jayewardene, m reply.—The English cases cited aremore in favour cf our contention.
Cur. adv. vulU
June 7, 1915. Wood Benton C.J.—
[His Lordship set out the facts, and continued]
The language of the kadutam, of which we have merely a trans-lation before us, does not, in my opinion, support the view of theDistrict Judge that it was only an executory agreement. It con-tains no reference to any future instrument of transfer. It is anout-and-out conveyance cf the lands dealt with, and although, ofcourse, it could not pass title, it formed a good starting point foradverse possession.
The second point involved in the appeal is, however, moredifficult. The evidence shows that adverse possession under thedeed commenced during Kungi Bawa’s lifetime. Was it liableto be interrupted after his death by the minority of some ofhis heirs?
If the matter had been res iniegra there would, in my opinion,,have beensa great deal to be said in support of the contention of'the respondents1 counsel, that the difference of the language usedin section 14 of the Prescription Ordinance, 1871 (No. 22 of 1871)rexcludes the application of th& rule laid down by the Pull Court inSinnatamby v. Vairavy1 in regard to an action on a bond, that , pre-scription which has already commenced to run in favour of a plaintiff
3 (1876) X S. C. G. U.3 (1902) 6 N. L. R. 60.
( 832 )
1815.
Wocto
Kekton C.J.
Ptahtmvma
v. &tntto
Left©
is not interrupted by the supervening minority of a person whosucceeds to the right in dispute. But I am unable to see that,when due allowance has been made for the fact that the PrescriptionOrdinance, 1871, bad to take account of prescriptive and possessoryrights under Boman-Dutch law, there is any fundamental differencebetween section 3 of that Ordinance and section 1 of the EnglishReal Property Limitation Act, 1874 (87 and 38 *Vict. c. 57), underwhich such cases as Murray v. Watkins1 and Qamer v. Wtngrove2were decided. I have little doubt that the Legislature to Ceylonintended to follow the law of England with reference to the effectof disabilities upon the limitation of actions, and the weight ofjudicial authority, from the case of Muttu v. Menlka3 down toSinnatamby v. Meera Levvai, 4 descends so unmistakably on this sideof the controversy that we should not be justified now in disturbingthe settled interpretation of the law upon the ground of a strictlyliteral construction of section 14 of the Ordinance of 1871. Thereis nothing contrary to this rule in the decision of Sir John BonserO.J. and Withers J. in 280—D. C. (Final) Galle, 4,903,5 in which itwould appear that the minority of the heirs was operating as a barat the very commencement of the adverse possession. I may addthat, in my opinion, there is no good reason why any such distinctionas the respondents contended for should be established betweenland actions $md any other form of litigation.
I would set aside the decree under appeal and send the case back,in order that decree might be entered up afresh on the basis thatthe appellants are entitled to the share of the property conveyedby Kungi Bawa to Pattumanatchia. I would leave it open toEither side to raise for further inquiry and adjudication.any questionwhich this declaration of title may involve. The appellants areentitled to the costs of contest in the District Court and to thecosts of this appeal in any event. The costs of any further inquiryand adjudication that may be necessary will be costs in the cause.
Shaw J.—
This case raises a somewhat important point under the Prescrip-tion Ordinance, 1871, namely, whether, when prescriptive possessionhas once commenced to run against the owner of land it will beinterrupted by his death and the minority of his heirs. The learnedDistrict Judge has held that it will be so interrupted, and from hisdecision the present appeal is brought.
It is well-settled law that in cases other than those relating toland an action will be prescribed when the time of limitation hasexpired after it has once commenced to run, notwithstanding any
> (1890) 62 L. T. 796.3 (1854) Ram. 1843*1855, 53.
* (1905) 2 Chan,. 233.4 (1902) 6 N. L. R. 60.
5 Koch's Reports 61 and 62.
( 383 )
subsequent disability of a party entitled to sue. See Sinnatamby v.Vairavy. 1 This case was decided under the old Prescription Ordi-nance of 1834, the wording of which was practically the same assection 16 of the Ordinance now in force. It is pointed out. bycounsel for the respondents, however, that in the Ordinance of 1871there are two sections relating to disabilities which are differentlyexpressed. Section 15, which relates to actions other than tnose forlands, speaks of disability “ when the right of action shall accruesection 14, which deals' with disabilities in the cane of notionsrelating to lands, provides that “ if at any time when right of anyperson to sue for the recovery of any immovable property shallhave first accrued, such person shall have been under any of thedisabilities hereinafter mentioned, ” and it is contended on behalf ofthe respondent that the Legislature intended the law to be differentin the two classes of cases, and that in actions relating to land thedisability of a person whose title commences after the period ofprescription has commenced to run • interrupts the running of theprescription, because at the time when the right of that person tosue first accrued he was under disability.
It is difficult to see why any difference should have been intendedby the Legislature in the two classes of oases, but if such a difference isclear from the words used, we are, of course, bound to give effect to it*
I do not think, however, ihat such a difference is dear, ornecessarily follows from the words used. Section 14 of our Ordinanceis almost precisely in the same words as section 3 of the English BealProperty Limitation Ordinance, 1874; and section 3 of our Ordinanceis substantially .the same as section 1 of the English Statute. Underthe English Statute it has been held in Murray v. Watkins 2 and inother cases that when prescription has once commenced to run, thesubsequent disability of an infant heir does not interfere with it,and the ssfrne was also held to be the law under prior English Statutesrelating to the same matter and couched in somewhat similar words.
I am of opinion that the law here on the matter was intended bythe Legislature to be the same as the law in England, and that the• wording of our Ordinance carries out that intention. The questionhas several times been before this Court, and in the cases of Sinna-tamby v. Meera Levvai 3 and 1,690—D. C. Kegalla 4 the law herehas been expressly held to be as indicated above. It is .true that inthe case of Bawa v. Serahami s Bonser C. J. seems in the course ofargument to have expressed a contrary view, but the strong currentof decisions has been .to the effect that the law here is the same onthis subject as it is in England.
I would therefore set aside the decree and make the order indicatedby the Chief Justice in his judgment.
Set aside.
i (1876) 1 S. C. 0. 14.3 190S) $ N. L. R. 50.
* (1890) 62 L. T. 796.4 S. C. C. Mins., July IS, 1904.
8. C. C. Mins., March 17, 1899.
19? 5.
Shaw J.
Pathxmmav.Sinna Lebbc