62WIJEYEWARDENE J.—Podimahatmaya v. Hendrick Appuhamy.
1942Present: Wijeyewardene J.PODIMAHATMAYA et al. v. HENDRICK APPUHAMY et ol.
159—C. R. Teldeniya, 10,069.
Prescription—Property gifted subject to life—interest of donor—Adversepossession—Death of donor—Interruption of prescription—PrescriptionOrdinance (Gap. 55), s. 3.
Where property is gifted to a person subject to the donor’s life-interest, adverse possession of the property by a third party during thedonor’s life-time is interrupted by the death of the donor and the periodof adverse possession does not enure to the benefit of such partyagainst the donee.
Geddes v. Vairavy (9 N. L. R7126) followed.
PPEAL from a judgment of the Commissioner of Requests, Tel-deniya.; .
J. E. M. Obeyesekere (with him Ivor Misso), for plaintiffs, appellants.
L. A. Rajapakse, for defendant, respondents.
Cur. adv. vult.
November 13, 1942. Wijeyewardene J.
The plaintiffs filed this action against one Francina, in February, 1940,as an action for rent and ejectment. Later, the plaintiffs filed anamended plaint in July, 1941, asking for a declaration of title to thehouse A on Lot 2, shown in plan P 1, and the plot of ground on which thehouse stood. Francina having died in the meantime, her husband,Hendrick, and children were substituted as defendants. They filedanswer setting up prescriptive title.-
One Philippu de Silva was admittedly the original owner of lots 1 and 2in plan P 1. He conveyed Lot 1 by deed D 2 of 1909, to his daughter,Francina. He gifted Lot 2 by dead P 2 of 1928, to two other children,Juwan and Carlina, subject to a life-interest in his favour. Philippudied in 1932. The plaintiffs are the heirs of Juwan, who died in 1939.The Commissioner of Requests held that Hendrick and Francina andtheir children have been in possession of the house for 10 years after 1923,and have acquired prescriptive title.
The evidence in support of the prescriptive title of the defendants isthat of Hendrick, the 1st substituted defendant, and his witness, Karuna-•ratne. Hendrick stated that as Lot 1 was. not suitable for erecting abuilding, his father-in-law, Philippu, asked him to put up the thatchedhouse A on lot 2. He said he got the permit D 3 from the GovernmentAgent in October, 1923, and then built the house A and' that he and hisfamily have lived there up to date. He admitted, however, in cross-examination, that up to the time of Philippu’s death in 1932 he lived inthat house “ with Philippu’s permission ” and added that after Philippu’sdeath he “possessed the thatched house”, without a.,/ dispute, up toJuwanis’s death in 1939, when Juwanis’s widow began to dispute hispossession. He admitted further that there was no fence separatinghis compound from the rest of lot 2 where admittedly Juwanis’s familyihhve lived for a long period in a tiled house. In re-examination, he said.
' WHfEYEWARDENE J .—Podimahatmaya v. Hendrick Appuhamy. 63
"Phiiippu gave me the ground on which to build the house”. Noattempt was made in re-examination to explain his previous statementas to his occupation with Philippu’s permission. The witness, Karuna-ratne, stated that Hendrick paid him for building the house but admit-ted that he built the house at the request of Hendrick, Juwan andPhiiippu and that Juwan himself used to bring materials for the house inthe absence of Hendrick.
The plaintiffs denied that Hendrick got the house built and led evidenceto prove that Juwan put up the house A for his parents, who lived thereat first before Francina and her husband were permitted to occupy it.
On this evidence, the Commissioner of Bequests has held in favour ofthe defendant on the ground that there was evidence of “ possession forover 10 years by defendants, unaccompanied by payment of rent or anyacknowledgment of any others’ rights”. It is difficult to ascertain fromthe judgment whether the Commissioner addressed his mind to thequestion whether Hendrick commenced his possession adversely toPhiiippu or with his permission and if such possession was permissive atthe start, whether there was any evidence that Hendrick and his familymade known to Phiiippu or Juwan that they were changing the characterof their possession at any time ten years before the filing of the action.
The learned Judge has not referred in his judgment to the admission ofHendrick that he lived in the house up to 1932, with Philippu’s permission.In the absence of any explanation it is dfficult to see how the defendantscould be held to have acquired prescriptive title, as the action was filedwithin the ten years. The Commissioner himself seems to have beenaware of the meagre nature of the evidence of possession but ho mis-directed himself when he said that “ the evidence of both parties cannotbe considered satisfactory ” and then proceeded to adjudicate on thequestion of prescriptive title. The question he had to decide was whetherthe defendants have led satisfactory evidence to prove prescriptivetitle. If that evidence is unsatisfactory, the defendants must fail andit does not matter whether the evidence of the plaintiffs’ possession isunsatisfactory, as plaintiffs have documentary title to the property.
There is another difficulty in the way of the defendants -setting upprescriptive title . against the appellants-. Even assuming that thedefendants commenced their adverse possession from October, 1923,they had only five years’ possession in 1928, when Phiiippu executeddeed P 2, reserving a life-interest in his favour. Could they rely on thatpossession or on the adverse possession from 1928, till Philippu’s deathin 1932, in support of their prescriptive title? Juwan, the predecessorin title of the plaintiff, “ acquired a right, of possession ” only in 1932,and as the defendants had not acquired a prescriptive title before 1928,do they not require 10 years adverse possession from 1932, in order todefeat the claim of the plaintiffs? The answers to these, questions willdepend on the construction of the proviso to section. 3 of OrdinanceNo. 22 of 1871, which reads : —
“Provided that the said period of ten years shall only begin to runagainst parties claiming estates in remainder – or reversion from thetime when the parties so claiming acquired a right of possession to theproperty in dispute. ”
84 WlJEYEWARDENE J.—Podimahatmaya v. Hendrick Appuhamy.
This Court considered the effect of that proviso in Geddes v. Vuiravy(supra). The facts of‘that case were briefly as follows : —Ramalingam, theadmitted owner of the property, mortgaged it with Geddes in 1875. Theexecutors of the last will of Geddes purchased the property in 1884, insatisfaction of the mortgage decree. In terms of the last will of Geddesthe property thereupon vested in his widow, subject to a fidei commissumin favour of her children. The widow died in 1901.. The defendant pleadedprescriptive title to the property against the children of Geddes on theground of adverse possession from 1875. Wendt and Wood-Renton, JJ.rejected that plea and held that where a property was burdened with afidei commissum, a third party could not acquire title by prescription tosuch property against the fidei commissarii durng the lifetime of thefiduciarius, as prescription did not begin to run against the fidei com-missarii until after the death of the fiduciarius. In the course of hisjudgment, Wendt J. said :
“ Appellants questioned- the right of an owner against whom aperson has held adversely for (say) nine years, to render that adversepossession nugatory by creating fidei commissum, but we fail to seeany injustice in upholding that right. Ex hypothesi, the owner isfull dominus until the completion of ten years. He may at once him-self try to vindicate the land, or sell it outright and enable the purchaserto do so. Why then may he not alienate it by way of fidei commissum ?And • oh what ground can the wrongful possessor complain that hisattempt to steal,the land,has been frustrated ?”
There- are some earlier decisions where this Court considered the effectof the corresponding provision in Ordinance No. 8 of * 1834 vide Kiri-Mehife'e v. Mirapettia1 ; Unga v. Tikiri Duraya". In all these casesit was,held, that prescription d‘id not run against'an heir, pending the lifeinterest of a Kandyan widow.. In some at least of. these cases, however,the adverse. possession appears- to have commenced to run after theaccrual of the fifeinterest of the widqw.. ■
After I reserved judgment my attention was drawn by Counsel for the.•defendants." 'to * the following-', passage in Lightwood’s Time . Limit onActions'
1* . *■ ’ ■■ V V ' t. -. ,
“An Owner entitled to; possession against Whom the statute is alreadyrunning, can-hot; by settling the' land, postpone the operation of thestatute as to persons taking future interests Under the settlement.”
That statement Of the law, appears at- first sight to be against the viewtaken in: Geddes v.' VaAravy (supra). The authorities on which thatstatemerit is–based are Stackpoole v. Stack-pool * and Doe .v. Moor '. The-decision-;in'Stackpoole to. Stackpoole is not available to.me. The latercase was a decision given with special reference' to section 15 of the RealProperty Limitation' Act, 1833. " That Act had the effect of abolishingthe old doctrines of adverse possession and it laid down special rules forascertaining in various'cases the date of accrual of the right'of action.Section 15 "was enacted in order to give some relief in those cases where
1 (1842) Morgan's Digest 328.3 (1843) 4 Drury and Warren- 320.
. 'V (1858) 3 Lorenz 101. ,' 115 English Reports (King's Bench) 1381.
Fernando v. Fernando.
by the operation of these rules a possession which was not adverse before1833 would have become adverse on the passing of the Act and thiswould have immediately deprived the owner of his right to the property.Section 15 provided for the suspension of the Act in such cases for aperiod of live years. I do not think that a decision construing such anenactment is of much assistance in interpreting our Ordinance.
According to the decision in Geddes v. Vairavy (supra) the defendantscould not in any event acquire title by prescriptive possession as Fhilippu’stitle was not lost by the adverse possession of Francina and Hendrickwhen he executed the deed F 2 in 1928, and as the defendants have nothad 10 years’ possession after the death of Philippu in 1932.
At the hearing of the appeal before me the defendants’ Counsel urgedthat he would be entitled to claim compensation for improvements inrespect of the house. According to the Surveyor’s report this house is awattle-and-daub building with a thatched roof. I think it will be in theinterests of the parties not to send the case back for the determinationof this question but to take this claim into consideration and make anappropriate order as to costs.
I set aside the decree appealed against and direct that decree beentered—
declaring the plaintiffs entitled to “ the house and premises ”
referred to in clause (a) of the prayer in the amended plaint;
restoring the plaintiffs to the possession of “ the house and premises ”
referred to and the ejectment of the defendants therefrom ;
granting plaintiff half costs of appeal.
Neither the appellants nor the respondents will be entitled to costs sofar incurred in, the lower Court.