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Present: The Hon. Mr. A. G. Lascelles, Acting Chief Justice, andMr. Justice Middleton.
PONNIAH v. NUGU LEBBE et al.
D. C., Kandy, 17,343.
Prescription—Person outoftheIsland representedbyan attorney—pre-
scription Ordinance—Ordinance' No. 22 of 1871, s. 14.
The appointmentofanattorney to actinCeylon does not
remove the disability constituted by absence beyond the seas undersection 14 of Ordinance No. 22 of 1871.
CTION rei vindicatio. The plaintiff alleged that the firstdefendant and one Samu Lebbe were the original owners of
the land in dispute; that upon writ issued in D. C., Kandy, 2,779,against the first defendant and Samu Lebbe, the property was soldby the Fiscal and purchased by R. W. Boulton, who obtained Fiscal’stransfer No. 13,626, dated 3rd September, 1892; that upon promiseof the first defendant to re-purchase the land, he was allowed byR. V. Boulton to possess the land; that the first defendant havingfailed to purchase the land, as agreed, he was sued-by Mr. Boulton,who obtained a decree in ejectment against him; and that Mr. Boul-ton by deed No. 6,840 dated 14th June, 1904, sold and transferredthe land to the plaintiff.*
The defendants denied that the first defendant was entitled toany share of the land, and alleged that it belonged to Samu Lebbeand Cader Saibo, both of whom having died intestate in 1885 and1889 respectively, the defendants and added defendants, as theirheiis, became entitled to the property. The defendants also deniedthat Samu Lebbe’s share was sold in execution. The added parties
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fufober alleged that they were never in the Island, and that theirattorney, the'* fourth defendant, came to the. Island only in 1884,and that therefore prescription could not run against them.
The District Judge (J. H. de Saram, Esq.) gave judgment forthe plaintiff. The defendants appealed.
Batea, for the appellants.
Walter Pereira, K.O., S.-Q., for the respondent.
Cur. adv. vult.
18th October, 1806. Lascblles A.C.J.—
The claim is for a parcel of land of about 25 acres known as Kiri-galpottewatta or Makulgaharuppewatta, and is founded upon aFiscal’s sale and transfer in 1881 to a Mr. Boulton, the plaintiff’svendor, in execution of a judgment against the first defendant andthe executrix de son. tort of the estate of Samu Lebbe, the firstdefendant's brother. The plaintiff also alleges that his vendor,through the first defendant, had acquired title by prescription.
For the defence it is urgedlhat the land belonged originally notto the first defendant and Samu Lebbe, but to' Samu Lebbe andAbdul Kader Saibo, whp are now represented by the added partiesand their attorney, the fourth defendant, and issue was joined on theplea of prescription.
The District Judge has come to the conclusion that the plaintiffhas gained title by prescription, and it is only with the question ofprescription that we now have to deal.
Now, it is admitted that the added parties, who are the heirs ofSamu Lebbe and Abdul Kader Saibo, have never been in Ceylon;but the plaintiff contends that prescription began to run againstthem from the 13th October, 1894, at which date the added partiesappointed an attorney to act for them in Ceylon. This brings nsat once to the question of law whether the appointment of anattorney to act in Ceylon will remove the disability constitutedby absence beyond the seas. I have been unable to discover anyauthority as to the effect of the appointment of a local attorney eitherwith reference to section 14 of Ordinance No. 22 of 1871 or to sec-tion .16 of the Real Property Limitation Act (3 and 4 Will IV., c. 27),which appears to have been the model on which our section wasframed.
Seption 14 of the Ceylon Ordinance provides that if at the timewhen the right of any person, to sue for the recovery of immovableproperty accrues such person shall have been under certain dis-abilities—among which absence beyond the seas is named—then and
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so long as such disability shall continue the possession of such im-movable property by any person shall not be taken as’ giving such:person any right or title to the said immovable property as againstthe' person subject to suoh disability or those claiming under him,but the period of ten years shall commence -to be- reckoned from thedeath of such last-named person or from the termination of thedisability whichever first shall happen.
(There the disability of the added parties consisted in absencebeyond the seas. In default of any authority enabling me to do so,I cannot hold that absence from Ceylon is terminated by the appoint-ment of an attorney in Ceylon. I can conceive of only one way bywhich absence from a place is terminated, namely, by going to thatplace. It can scarcely be argued that the right to sue for the re-covery of the property first accrued to the attorney on his appointsinent in 1894. The right to sue had clearly accrued to the addedparties on the sale to Mr. Boulton and on his occupation throughthe first defendant.
Further, I do not think that the right to sue can be said, in any-proper sense of the expression, to accrue to the attorney. True,he may, if he is authorized to do so by the instrument by which he isappointed, sue on behalf of and in the name of his principal to re-cover property the title to which has accrued to the latter, yet theright to sue for the property can surely not be said to have accruedto the attorney himself.
It does not follow that because an absentee, who is representedby an attorney, is m some respects in the same legal position as ifhe were in the jurisdiction, he is therefore prevented from pleading“ absence beyond the seas.”' Both in India [A. Ayyan v. Kalingarayen(1) and Khodabux v. Budree Narain Singh (2)] and in-Ceylon [ManuelPillai v. Saverarnuttu (3)] it has been ruled that the fact that aminor has been represented by a guardian, who had sued to estab-lish his right, will not debar him from pleading his minority againstthe operation of the law regarding the limitation of actions. Thirtyyears’ adverse possession is of course conclusive proof of title againstan absentee, but the shorter period of ten years, as I construe theOrdinance, will not begin to run against him, even though he berepresented by an attorney, until he has terminated his disabilityin the only way in which physical absence can be terminated, namelyby coming to Ceylon.
I would also add with regard to the facts of this particular casethat, even on the assumption that the period of prescription began
a) /• L. R. 4 Mad. 119.(2) I. L. R. 7 Cal. 187.
(3) Bom. 1863-1868, p. 335.
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to run against the added parties from the appointment of theirattorney on 13th October, 1894, the plaintiff has nevertheless failedto acquire title by prescription.
It is not contended that Mr. Boulton, the plaintiff’s vendor, wasever in possession. It is said that he possessed vicariously by thefirst defendant, who was allowed to remain in possession on hispromise to buy back the property. But on lBt October, 1901, Mr.Boulton obtained a decree for the ejectment of the first defendant,who, notwithstanding the decree, remained in possession.
It is dear that the possession of the first defendant after the dateof the decree was not under Mr. Boulton and therefore cannot accrueto the plaintiff's benefit. Thus, on the most favourable assumptionto the plaintiff, he had possession only from 13th October, 1.894,to the 1st October, 1901, and did not complete the period of tenyears. In my opinion the plea of prescription fails, and the appealmust be allowed with costs and the action remitted for adjudicationon the other issues.
Middleton, J.—I agree.
PONNIAH v. NUGU LEBBE et al