122-NLR-NLR-V-56-R.-S.-FERNANDO-et-al-Appellant-and-K.-PODI-NONA-et-al-Respondents.pdf
GRATIAEN J.—Fernanda v. Pod* Nona
491
1955Present: Qrattaen J. and Gonaseltara J.
R.S. FERNANDO et at., Appellant*, and K. PODI NONA etal.,Respondents
S. C. (Inty.) 124—D. C. Colombo, 5,1401P
Go-owners—Prescription—Adverse possession—Distinction between possession by aco-owner and possession by a stranger.
Where, a stranger enters into possession of a divided allotment of landclaiming to be sole owner, although bis vendor in fact had ligal title only to ashare, < area r. Appuhamy (1911) 15 N. I.. R. 65 has no application unless hisoccupation of the whole was reasonably capable of being understood by the otherco owners as consistent with an acknowledgment of their title.
C, who was entitled to only an undivided 1/10 share of a land, entered into anotarial agreement with a stranger, M. By this agreement, C, purporting to bosole owner, employed M to cultivate the entire land as planter for a period ofsix years expiring on August 21, 1877, after which C undertook to separate ahalf of the land and the new plantations and to grant the same (i.e.. the soilos well as the plantations) to M. M carried out his part of the agreement, butC did not apparently execute a formal conveyance of any part of the commonland to M in implementation of bis contractual obligation. Nevertheless, theland was in fact divided up into two allotments. Nos. 1 and 2, and lot 2 and theplantations standing on it were openly and exclusively occupied ut dominusby M and his heirs after the expiry of the six-year period.
Held, that M and his heirs acquired prescriptive title to the entirety of lot 2,although its area far exceeded the extent which C had legal title to convey to astranger.
^.PPEAL from an order of the District Court, Colombo.
R. Dias, with B. L. de Silva, for the 30th, 31st and 32nd defendantsappellants.
II. W. Jayeuxtrdene, Q.C., with D. R. P. Qoonetilleke, for the plaintiffsrespondents.
Cur. adv. vult.
May 19, 1955. Gratiaen J.—
The pLaintiff in this case was granted an interlocutory decree for thepartition of two contiguous allotments of land marked A and B in theplan No. 4148 filed of record. The surveyor reported that Lot B- was inthe possession of the 8th defendant and of the appellants who wereaccordingly added as parties to the action. They claimed no interestsin lot A, but asked that Lot B should be excluded from the partitionfor reasons which I shall later explain.
Lots A and B had originally formed part of a single land, a little overthree acres in extent, belonging to two brothers named Nandochchi andSamichchi in equal shares. In due course Nandochchi’s share passed byinheritance to his five children one of whom was named Comis.
On 22nd August, 1871, Comis, who in fact had legal title to‘ only anundivided 1/10 share, entered into a notarial agreement 30D1 with astranger called Maththa. By this agreement, Comis, purporting to besole owner, employed Maththa to plant the entire land (described as“ sufficient to plant 150 coconut trees ”) in coconuts and other crops.
492GRATIAEN J*.-—ganvandO p. Podi Nona
Maththa was to cultivate the property as plaster for a period of 6 yearsexpiring on 21st August, 1877, after which Comis undertook “ to separatea half of the land and the new plantations .and to grant the same (i.e.,the soil as well as the plantations) to Maththa
Maththa carried out his part of the agreement, but Comis does notappear, in implementation of his contractual obligation, to have executeda formal conveyance of any part of the common land to Maththa.Nevertheless, the land was in fact divided up into two allotments andlot B (or at least a substantial part of it) and the plantations standingon it were exclusively occupied by Maththa after the expiry of the 6 yearperiod referred to in 30D1. The learned Judge was also satisfied thatMaththa, and members of his family after him, “ built on this portionand raised other plantations on it Nor did Comis or his co-owners ortheir respective successors in title exercise proprietary rights over lot Bsince 1877. It is in these circumstances that the appellants and the 8thdefendant, claiming under Maththa, asked for the exclusion of this allot-ment from the proposed partition.
The learned Judge’s decision that both lots A and B, treated as anentity, should be partitioned was based on the following findings :—
(o)that Maththa had prescribed only to an undivided 1 /20 share of theentire land (i.e. one half of the 1 /10 share to which alone Comishad legal title) ;
(b) that, as Maththa occupied lot B under what must be regarded as aderivative title from a co-owner, neither he nor persons claimingunder him could prescribe against the other co-owners unlessthe presumption laid down by the Judicial Committee in Coreav. Appuhamy 1 could be rebutted.
With great respect, I think that it is permissible to take a more realisticview of the legal position resulting from the continuous, exclusive occupa-tion of lot B (or at least a defined part of it) by Maththa and his familyover since 1877. In the facts of this case, the same consequence followswhether or not Comis, in terms of his contractual obligation, had executeda formal conveyance to Maththa of a separated portion of the land andplantations in consideration of services rendered by tire latter as planter.In either event, what is significant is that in 1877 Maththa went intopossession claiming as of right to enjoy a defined portion of the land utdominus, whereas Comis and hiB co-owasre were content to exerciseproprietary rights over lot A alone.
The ratio decidendi of Corea v. Appuhamy (supra) is that a personentering as a co-owner into possession of the common property caftnot, bymerely forming a secret intention which has not been communicated tohis other co-owners either by express declarations or by overt action,alter the character of his possession and thereby acquire title to theirBhares by prescription. This prinqiple is, of course, subject to the ruleof common sense that, in appropriate cases, an ouster may be presumedto have taken place at some point of time after the date of entry whichwas originally not adverse. Tillekeratne v. Baslian 2, Hamidu Lebbe v.Ganitha 8.
* {1911) 15 N. L. R. 65.* {1913) 21 N. L. R. 12.
■'(1925) 27 N. i. B. 33.
ORATIAEN J.—Fernando v. Podi Nona
493
There is, however, no room for the application of presumptions or ofcounter-presumptions where a man had from the inception entered intopossession of the land unequivocally claiming title to the entirety. In sucha situation, his possession is at every stage adverse to the true owner orto his true co-owners (as the case may be), and in the latter event theother co-owners cannot be heard to say that his possession was merely“ in support of their common title
If Comis, pretending to be and believed by Maththa to be the soloowner, had in fact conveyed lot B to him on that basis, the case wouldhave been covered by the decision of Schneider J. and Garvin J. in Moka-med Marikar v. Kirilanaya *. Similarly, in Punchi Singho v. BandaraMenika 2, Jayetileke J., sitting alone, held that where one of the co-owners purports to sell the entire property, and the purchaser enters intopossession claiming title to the entirety, prescription begins to run atonce. This principle, though acknowledged as correct, was distinguishedon the facts by Howard C.J., sitting alone, in Cooray v. Perera 3 andsubsequently by the present Bench in Kobbekaduwa v. Seneviratne *.At a later date it was expressly followed by tw-o of the three Judges whodecided Sellappah v. Sinnadurai ®.
We have not been referred to any decision of this Court where the rulelaid down in Mo homed Marikar v. Kirilanaya (supra) and Punchi Singhov. Bandara Menika (supra) has been expressly dissented from.
After we reserved judgment, Sansoni J. has referred me to certaindecisions of the Indian Courts where a stranger purporting to havepurchased the entire land from a. person who was in fact only a co-owner,has been held to hold adversely against the other co-owners for purposesof prescription. In Bhavrao v. Rakhmin 8 the Full Court of the BombayHigh Court took the view that prescription would run in favour of thepurchaser as soon as he entered into exclusive possession of the propertyif he did so claiming to be the sole owner. “ Adverse possession ”, thejudgment points out, “ depends upon the claim or title under which thepossessor holds and not upon a consideration of the question in whomthe true ownership is vested The distinction between the possessionof the ontiro laud by a co-owner on the one hand and of a stranger whohas purported to purchase the entire land is also emphasised in PalaniaPillaiv. Rowther 7.“ While the possession of one co-owner ” said Chief
Justico Loach, “ is in itself rightful, the position is different when astranger is in possession. The possession of a stranger in itself indicatesthat his possession is adverse to the true owners ”.
These obse-vations are in accord with certain passages in Angell onLimitations (6th ed.) mentioned by Jayetileke J. in Punchi Singho v.Bandara Menika (supra). The text book refers at page 443 to a judgmentof Mr. Justice Story in an American case where the defendant, a stranger,had a deed of the whole estate but his legal title was valid only as to anundivided 1 /4 in common with others ; but he made an actual entry into
* (1923) 1 T. C. L. R. 158.
* (1951) 53 N. L. R. 354.6 (1951) 53 N. L. R. 121.4 I. L. R. 23 Bom. 137.
•(1942) 43 N. L. R. 547.
(1944) 45 N. L. R. 455.
7 (1942) 55 Madras L. TP. 532.
494
GRATIAEN J.—Fernando v. Podi Nona
the whole land, and claimed the whole in fee, that is to say, he enteredas sole owner and his possession was openly and notoriously adverseto the true owners of the balance 3/4 share. Story J. held that the dateof his entry claiming to be sole owner was a good starting point for pres-cription. “ Acts, if done by a stranger, would per ae be a disseisin,whereas acts if done by a co-owner are susceptible of an explanationconsistently with the real title
The true test now becomes dear. Where a stranger enters intopossession of a divided allotment of property; claiming to be sole owner,although his vendor in fact had legal title only to a share, Corea v. Appu-hamy (supra) has no application unless his occupation of the whole wasreasonably capable of being understood by the other co-owners asconsistent with an acknowledgment of their title. In the present case,the conduct of Maththa and his successors'in title was quite unequivocal, .and must have clearly indicated that he claimed lot B (or at least thedefined portion of it exclusively occupied by him) as sole owner adverselyto Cornis and all others. The area of lot B far exceeded the extentwhich Cornis had legal title to convey to a stranger, and it is not unreason-able to assume that he entered into the planting agreement as agent forall the co-owners. In the result, Maththa and his heirs have long sinceacquired prescriptive till3 to the entirety of the divided allotment.
I have so far assumed that Cornis had in fact granted a conveyance(which cannot now be traced) of a larger interest in the laud than hehimself enjoyed. If, on the other hind, Maththa had entered intooccupation of the divided allotment relying on the rights promised himunder the planter’s agreement but without an actual conveyance,his possession would have been equally adverse to the co-owners.TheivanapiUai v. Arumugam 1 and Silva v. Lechiman Chetty 2.
For these reasons, I would , set aside the judgment under appeal andhold that the interlocutory decree for partition must be confined to somuch of the land as was not occupied by Maththa and his successors-in-interest. The learned District Judge.has not given a definite finding as towhether this portion takes in the whole of lot B or only a defined partof it. I would therefore send the record back with a direction that thisissue should be decided and that an interlocutory decree must then beentered for the partition of the rest of the land depicted in plan No. 4148among the co-owners claiming title in accordance with the pedigreoproved by the plaint ff.
The appellants are entitled to the costs of this appeal and of the contestin the lower Court. The costs of the further inquiry which we now directwill be costs in the cause, and the other costs must be borne pro rataamong the co-owners of lot A and of any portion of lot B which may beincluded in the ultimate partition.
Gonasekara J.—I agree.
Appeal allowed.
(1912) 15 N. L. R. 358.
• (1923) 23 N. L. R. 372.