Perera v. Thomas Sintio.
1948Present: Basnayake J.
PERERA et at., Appellants, and THOMAS SUNTNO et at.,Respondents.
S. C. 13—C. R. Panadure, 10,843.
Co-owners—Tattumaru possession—Adverse possession while arrangement lasts—Prescription against co-owners—Rights of co-owners to property—Must all beparties to action ?
Where a person exercises at agreed intervals of time not only his rights ofpossession but also the rights of possession of others by virtue of a customaryarrangement among the co-owners, such possession can never, while thearrangement lasts, afford a basis on which prescriptive rights can be acquiredas against the parties to the arrangement.
Held, further :The respective rights of co-owners to a land can be properly
determined only in proceedings to which all of them are parties.
/ PPEAT, from a judgment of the Commissioner of Requests,Panadure.
M. D. H. Jayawardene, for the plaintiffs, appellants.
H. A. Koattegoda, for the defendants, respondents.
27 – N.L.R. Vol – xlix
Cur. adv. wdt.
BASNAYAKE J.—Perera v. Thomas Sinno
April 27, 1948. Basnayake J.—
The • two plaiiltiffs-appellants (hereinafter referred to as the plain-tiffs) instituted this action on October 19, 1944, against the fourdefen’dants-respondents (hereinafter referred to as the defendants),asking that they be declared entitled to 1/30 + 1/8 of 3/60 sharesof a paddy field called Galpotte Kumbura of five bushels paddy sowingextent. The defendants admit that the second plaintiff is entitled to1/8 of 3/60 shares in the field but dispute his claim to 1/30 share andask that his action as respects that share be dismissed.
The history of the devolution of title to the paddy field in questionso far as is material to the decision of the present dispute is as follows:One Salmon Perera was entitled to an undivided half share. He diedleaving five children Malhamy, Bunja Appu, Geeris, Elenis, andNonahamy. Malhamy died leaving three children, Noris, Nonoh ayand Jomis. Jomis sold 1/30 share to Noris and Nonohamy on deedNo. 24,209 of August 8, 1910. Noris died leaving eight children oneof whom is the second plaintiff. Nonohamy died leaving four childrenDon Siman, Babu Singho, James, and Dona Susana Harnine. DonSiman died leaving two children, Carolis and Nonnohamy. These twoby deed No. 13,730 of March 7, 1944 (hereinafter referred to as P 2)sold their shares to the plaintiffs. The defendants resist the plaintiffs’right to the share claimed by virtue of this deed. The first defendantVithanage Don Thomas, described in the plaint as Vithanage ThomasSinno, bases his claim on deed- No. 2,533 of October 3, 1927 (herein-after referred to as D 1) executed by the aforementioned Babu Singhoand James by which they conveyed an undivided 1/10 share of afield called Galakumbura of four bushels paddy sowing extent toVitanage Don Charlis, Vitanage Don Thomas, and Vitanage DonSedoris. Of the vendees mentioned in D 1 only the second namedVitanage Don Thomas is a party to these proceedings. The thirddefendant appears to have been added as a party as he along withthe first defendant according to the plaintiffs actually cultivated theshare of the first defendant’s vendors Babu Singho and James beforethe sale in 1927. The second defendant is the wife of the first andthe fourth is the mother of the third. It is not clear why they havebeen made parties to this action, and I cannot help feeling that theallegation in the answer that they have been wrongly and maliciouslyadded is not entirely ill-founded. The first defendant does not assertthat Babu Singho and James were entitled to 1/10 share but claimsthat since 1927 he has possessed the 1/10 that was conveyed'to him.Clearly Babu Singho and James were not entitled to sell more thantheir share and even if they purported to do so the first defendantdid not by virtue of D1 become entitled to more than their share.On the question of sale by co-owners of their interests in propertyowned in common, Voet says 1 :
“ If he sold the portions belonging to the others together withhis own, he would not prejudice them in any way, nor passtheir shares to the purchasers without their consent,although he and they were co-owners of all the estateand property of each other. "
1 Voet Bk. 10. 3. 7, Sampson's Translation, p. 392.
BASNAYAKE J.—Per era u. Thomas Sinno.
The act of possession on which the claim is based is that this fieldwhich is cultivated in tattumaru was cultivated by the first defendantonce in 1935 and next in 1944. He is supported by one D. S.Kotalawala, a Vel Vidane. Tattumaru is thus defined in Codrington’sGlossary 1 :
“ Possession of a land cultivated or enjoyed by the joint ownersin turns ; thus, if a field belongs to three families intattumaru possession, each family will cultivate the wholefield every third year; if it were held in common, eachfamily would take one-third of the produce every year.The rotation of the members of the family among them-selves is called karamaruwa. ”
The procedure adopted in respect of this particular field is that theowner of an undivided 1 /30 share cultivates 1 '3 of the field once inten years. Though the first defendant claims an undivided 1/10share the evidence is that his turn for cultivation after his purchasecame first in 1935 and next in 1944.
The learned Commissioner of Requests has accepted the evidenceof the first defendant that he possessed 1/10 share of the field since1927 and held in his favour relying on the case of Punchi et al. v.Bandi Menika, 43 N. L. R. 547. I am afraid I cannot agree withthe learned Commissioner. In that case my brother Jayetileke heldthat when one co-owner sells the entire corpus held in common andthe purchaser enters into possession under the conveyance claimingtitle to the entire corpus, such possession is adverse to the co-tenantsof the grantor. The present case is different. Here the firstdefendant is a co- owner and did not cultivate the land to the exclu-sion of the other co-owners. In fact, under the arrangement whichsubsisted among the co-owners, he had at the date of the commence-ment of these proceedings on his own showing cultivated the extentof land he claims to be entitled to cultivate only twice, the secondoccasion being the first since the plaintiffs’ purchase of the disputedshare, and this suit is the sequel to that act. In the case of posses-sion such as we have here, where a person exercises at agreed inter-vals of time (once in ten years in this case) not only his rights ofpossession but also the rights of possession of others by virtue of acustomary arrangement among the co-owners, I am inclined to theview that such possession can never, while the arrangement subsists,afford a basis on which prescriptive rights may be acquired as againstthe parties to the arrangement. I think the case of Meydin Bawa,et al. v. S. Agamadu Lebbe 2 supports this view. Before a co-ownercan claim prescriptive rights to a land owned in common he mustprove exclusive possession of the entire land extending over such along period as to render non-possession by the other co-owners in-explicable, except upon the theory of acquiescence in an adverseclaim 3. There is no. such evidence here. The defendant claims thathe possessed the undivided 1/30 share claimed by the plaintiff whohe admits is a co-owner entitled to an undivided 1/8 of 3/60 of the
1 Codringlon’s Glossary of Native, Foreign, and Anglicized Words, p. 58.
M1879 ) 2S.C.C. 87.
3 TiUekeratne et al. v. Baslian et al., (1918) 21 N. B. R. 12.
B ASN AY AKE J.—Per era v. Thomas Sinno.
field. On such possession a prescriptive title cannot be acquired,for as Voet says 4,
“ by the very fact of holding the property in undivided shares■with another a person acknowledges an associate ; nor can heacquire by prescription who has held not in his own name alone,but in the name of himself and another. ”
The same proposition has been thus stated by the Privy Councilin the case of Cadija Umrrui v. Don Manis Appu B.
“ Thus in a case where A’s possession has been on behalf ofB or has been the possession of B (whether by reason of agencyor co-ownership) it seems impossible to apply this definitionclause as between B and A so as to defeat the rights of B. Itcannot be applied to defeat the rights of a person in possession.Under what conditions an agent or co-owner can be heard to saythat his possession has been an ouster of his principal or co-sharer is a matter which need not here be examined. Ousterapart, from a man’s possession by his agent is not dispossessionby his agent. The like is true between co-owners in Ceylon, andis the ground of decision in Corea’s case. ”
Although I have for the reasons stated above formed the conclu-sion that the learned Commissioner’s decision must be set aside, Ifind myself unable to grant the plaintiffs their prayer. Admittedlythere are several other co-owners of this field who are not parties tothis action and the declaration which they seek, even if made in thisaction, would be ineffective as against those who are not parties.Besides, the respective rights of co-owners to a land can be properlydetermined only in proceedings to which all of them are parties. Ithas been so held by this Court in the case of Uduma Lebbe andanother v. Mehidin Lebbe and others, 2 S.C.C. 148, which was citedwith approval by the Bull Bench in Bargarge Juse Pasivoe Appuhamyv. Liana Appu and others, 7 S.C.C. 190. The observations of PhearC.J. in the earlier case are relevant to this case and bear repetition.
“ In truth, it is very apparent that the questions which theplaintiffs desire to litigate between themselves and the defendantalone in this action are questions which are proper to, and canonly be effectively determined in an action for partition. Thecivil court can seldom, if ever, interfere satisfactorily betweenjoint owners of property in regard to the regulation of their jointenjoyment thereof; that is matter to be settled and adjusted fromtime to time by the consent of all the owners. If they cannotmanage to agree upon this, the alternative is to divide the property.No doubt recourse may often be usefully had to the court for thedetermination of any question which has bona fide arisen betweenthe owners in regard to the relative proportions of their shareswithout the court being called upon to deal with the actual pos-session at all ; but even in that case it is essential that all the co-owners should be before the court. ”
* Voet Bk. 10. 2. 33, Sampson's Translation, p. 376.
(1938) 40 N.L.R. 392 at 396.
BASHAYAKE J.—Fernando v. Inspector of Police, Panadure.
For the reasons I have discussed above the appeal is allowed butwithout costs as the plaintiffs have not brought their suit agarnBt. theproper parties. The plaintiff’s action is also dismissed without costs,but with liberty to institute fresh proceedings against the properparties.