S. K. CHELLIAH Appellant, and M. WIJENATHAN et al. Respondents

080-NLR-NLR-V-54-S.-K.-CHELLIAH-Appellant-and-M.-WIJENATHAN-et-al.-Respondents.pdf

ftRATTABW J.—Chettiak v. Wijenathail
337
1951Present : Bose C.J. and Gratiaen J.S. K. CHELLIAH Appellant, and M. WIJENATHAN et ahRespondents
S. C. 372—D. C. Colombo, 4,596L
Prescription—Administration of estates—Immovable property—Time of vesting oftitle in heirs—Actio rei vindicatio brought by administrator—Legal positionof administrator in such action—Civil Procedure Code, ss. 472, 519, 539, 540,740—Prescription Ordinance, ss. 3, 13.
When a person dies intestate, the title to his immovable property is trans-mitted automatically to his heirs. 3Tor the purpose, therefore, of reckoningprescriptive possession in an action brought by the administrator under Section472 of the Civil Procedure Code for the recovery of such immovable propertyfrom a trespasser, the administrator is deemed to represent the heirs of theintestate, and the date of appointment of the administrator is immaterial.Where the heirs, during the period when the defendant claims to have acquiredprescriptive title to the property, were subject to one of the disabilities contem-plated in Section 13 of the Prescription Ordinance, the administrator canplead the benefit of that disability on their behalf.
.^^.PPEAL from a judgment of the District Court, Colombo.
H. V. Perera, K.C., with P. Navaratnarajah and E. R. S. R. Coomara-swamy, for the plaintiff appellant.
Ar. K. ChoJcsy, K.C., with C. Renganathan, for the defendants respondents.Cur. adv. vult.
December 7, 1951. Gratiaen J.—
Learned Counsel who appeared before us were agreed that, for thepurposes of this appeal, the following findings of fact recorded by thelearned District Judge may be assumed to be correct :—
A. It. A. Arumugam Chettiar, Junior, who was the adopted son ofA. R. A. Arumugam Chettiar, Senior, died on 20th July, 1931. InMarch, 1931, he had become, by virtue of a notarial conveyance PIexecuted in his favour, the owner of a property called Caledonia Estatewhich is more fully described in the schedule to the plaint. After hisdeath, the widow of Arumugam Chettiar, Senior, obtained from thesame transferors a notarial document D34, dated 22nd November, 1932,purporting to operate as a deed which rectified PI by describing heras the real transferee of the property. D34 did not, however, defeatthe title which had previously passed to Arumugam Chettiar, Junior,and which, upon his death, had been transmitted, to his intestate heirs.Nevertheless, the widow went into possession of the property on 23rdNovember, 1932. On 1st February, 1939, she conveyed her allegedinterests in the property by the deed D35 to the 2nd defendant who inturn purported to convey the property to the 1st defendant by D36of 21st July, 1942.
15——-LIV.
2J. N. B 25005^-1,592 {2/53>
338
{jrltATXAJEN J.—Chelliah v. Wijenathan
The plaintiff is the administrator in Ceylon of the estate of ArumugamChettiar, Junior.' The appointment took place only in July 1944—-13 years after Arumugam Chettiar, Junior, had died. In that capacityhe instituted the present action on 16th July, 1946, claiming a declarationagainst the 1st defendant that Caledonia estate belonged to the deceased’sestate. He also claimed damages for ’wrongful possession of the property,and asked that the 1st defendant be ejected therefrom.
TJpon the facts recited by me the learned District Judge was clearlyright in holding that the plaintiff must succeed unless the 1st defendantand those under whom she claimed had, at the time when the actioncommenced, prescribed to the land. On the issues relating to pre-scription the learned Judge held in her favour and the only questionargued before us was whether this decision was justified in law. Hereagain Counsel were agreed that the learned Judge’s findings of fact,in so far as they are material to the issues of prescription, should beaccepted as substantially correct. It will therefore be convenient ifat this stage I summarise these findings :—
Before D36 was executed, the 1st defendant and her predecessors-in-title had enjoyed uninterrupted possession of the property since 23rdNovember, 1932—i.e. from a date some four months after the death ofArumugam Chettiar. There can be no doubt, therefore, that the 1st.defendant was pri/ma facie entitled to the benefit of Section 3 of thePrescription Ordinance. So much is conceded by Mr. H. V. Perera,but he has contended that in the circumstances of the present case the1st defendant cannot claim the benefit of Section 3 because all theintestate heirs of Arumugam Chettiar, Junior’s estate (with the possiblee'xception of his brother Socklingam Chettiar whose special positionwill be considered by me at a later stage) were admittedly “ absentbeyond the seas ” in India ever since 23rd November, 1932, on whichdate, according to the learned Judge’s findings, the 1st defendant’spredecessor commenced to possess the property adversely. In thatstate of things, Mr. Perera contends, the provisions of Section 13 ofthe Prescription Ordinance operated to prevent the acquisition ofprescriptive title against these heirs on whose behalf and for whosebenefit the plaintiff now claims the property.
The intestate heirs of Arumugam Chettiar’s estate are his widowKLannammai Aehi, his brothers Socklingam and Eamasamy, his sistersNagamai Achi and Valimmai Achi, and his mother Sithal Achi. Ithas been conceded that, according to the law of Ceylon which is appli-cable, the deceased’s title to the property was transmitted upon his.death to these heirs in the following shares —
to his widow ;
1/16 to each brother and sister ;
J to his mother.
Leaving out of consideration the case of the brother Socklingam, it isadmitted that none of the other heirs had visited Ceylon at any timematerial to the issue of prescription. I have come to the conclusionthat, upon these facte, the learned Judge was wrong in taking-the viewthat the 1st defendant had acquired prescriptive title, to the property.
GRATIAEN J.—Chelllah v. Wijcnalhnn
339
The grounds on which I differ from the learned Judge will be sufficientlyindicated in the reasons which follow..
It is now settled law that on the death of an intestate the title to hisimmovable property situated in Ceylon is on his death transmittedautomatically to his heirs. Such title is subordinated only to—•,
the right of the administrator, subject to the limitations expressed
in his grant—Apptihamy v. Silva1— to sell such property.forthe payment of debts, funeral and testamentary expenses.
the right of an unsatisfied creditor in certain circumstances to
proceed against the property for the recovery of his claim.
These principles were finally established by a Full Bench of this Courtin Silva v. Silva2 and spasmodic attempts to challenge its authorityhave met with little encouragement and no success for a period of over40 years.
An administrator's powers in relation to the intestate’s immovableproperty are derived from and can only be ascertained by reference tothe terms of the letters of administration issued to him. Sorlentinav. de Kretsers. If, therefore, no express letters (vide Sections 519 and539 of the Civil Procedure Code) be imposed on his authority by theCourt which appoints him, he is vested with general “ powers of admini-stration ” over “ every portion of the deceased’s estate, movable andimmovable ” (Section 540). The terms of the grant in favour of the-appellant in this action have been taken over from Form No. 87 re-commended in the First Schedule to the Code. If the language of thisgrant be examined and summarised, it becomes apparent that theauthority of the appellant, qua administrator, extended to all the well-recognised “powers of administration”, namely; (1) the recovery andcollection of the assets of the estate (2) payment of debts, expenses &e.,and, finally, (3) payment and distribution, in terms of a decree underSection 740 of the Code, among the heirs of any balance lying in hishands after the judicial settlement of his account..
The present action is concerned only with the exercise by the appellantof the first of the “ powers ” enumerated by me—namely, the recovery ofimmovable property from the possession of an alleged trespasser. It is nowcommon ground that, unless the 1st respondent had acquired prescriptivetitle to the property at the time when the action commenced, it belongedabsolutely to the intestate at the time of his death and was thereforean asset of the estate which the appellant was authorised and indeedunder a duty to recover for the benefit of the heirs.
The form of action prescribed by the Civil Procedure Code in proceed-ings of this kind is laid down in Section 472 which provides as follows :—“ In all actions concerning property vested in . . . an administrator,when the contention is between the persons beneficially interestedin such property and a third person, the . . . administrator shallrepresent persons so interested ; and it shall not ordinarily be necessaryto make them parties to the action. But the Court may, if it thinksfit, order them, or any of them, to be made such parties.”.-
1 (1915) 18 N. L. R. 491.- (1907) 10 N. L. R. $34,
(1927) 29 N. Tj. R. 174.",
340
GRATIAEN J.— Cholliah v. Wijenalhan
There can he ho doubt that movable property belonging to an intestate’sestate is “ vested ”, in the strict sense of the term, in an administrator.Kulendoeveloe v. Kandeperumal x. But in what sense does Section 472describe immovable property which forms an asset of the intestate’sestate as being “ vested ” in the administrator ? The answer has beengiven in the Judgment of Soertsz J., with whom de Kretser J. agreed,in De Silva v. Dambukpotta2. The administrator is, for the purposeof the litigation, the representative in law of each of the lawful heirsof the intestate ; and, the issues arising for determination relate to thecompeting claims to ownership of the heirs on the one hand and thealleged trespasser on the other. The land is regarded as “ vested ”in the administrator in a strictly limited sense—so as to enable him,in his representative capacity, to recover from a third party what isclaimed to be an asset of the intestate’s estate. Interpreted in this way,the language of Section 472 is perfectly consistent with the principlelaid down in Silva v. Silva (supra) which was, indeed, decided after theSection had come into operation. Section 472 does not purport tointroduce substantive law but merely prescribes a convenient procedurefor actions of the kind which we are now concerned with. Once theadministrator’s status has been established at the trial, the only matterfor investigation is the title of the heirs which he claims to be superiorto that of the opposing party. It is possible in this way to reconcilethe substantive law clarified by the Full Bench in Silva v. Silva (supra)with the procedural law prescribed in Section 472 of the Civil ProcedureCode. If this be the true position, the scope of Sections 3 and 13 ofthe Prescription Ordinance seems to me to present no special difficulties.Under Section 3, uninterrupted adverse possession by a defendant(and those under whoni he claims) of immovable property for the requisiteperiod defeats a claim to the property by or on behalf of the person orpersons who had legal title to the property. Section 13 provides anexception to -this general rule. If, at the time when the adverse posses-sion by the defendant (and those under whom he claims) first commenced,the true owner was under some special disability such as minority orabsence beyond the seas, the starting-point for calculating the period of10 years’ -prescription under Section 3 is postponed until the date onwhich such disability has been removed. As an alternative, the provisoto Section 13 recognises adverse possession for 30 years as sufficient todefeat the title of the owners notwithstanding any disability of thekind enumerated.
Tn a very large majority of actions in our Courts for vindication of titleto immovable property, the claimant is required to sue in his own namein order to assert his rights. But there are some forms of action wherethe assertion of a claimant’s rights must be made on his behalf by someother person suing in a representative capacity. Section 472 introducessuch an exception. It seems to me that, in proceedings of this specialkind, the “ disability ” contemplated by Section 13 of the PrescriptionOrdinance is clearly the disability of the true claimant and not that ofthe person who represents bim in the proceedings. To take a contrary5 (2905) 9 RT. L. R. 350 and (2906) 9 N. L. R. 353* (2939) 42 N. L. R. 37.
GBATI4EN J.—Ohelliah v. Wijenatkan
341
view is to introduce unreality to the scheme of the Ordinance and todefeat its true purpose. The Legislature could not have intended, forinstance, that the rights of a third party who has adversely possessedimmovable property for over ten years against an intestate heir duringa period when the heir suffered none of the disabilities enumerated inSection 13, could be defeated merely because an administrator of theintestate’s estate had been appointed at a much later date. This maypossibly be the position with regard to claims for movables which are*in the strict sense of the term “ vested ” in the administrator and notin the heirs. Kulendoeveloe v. Kandeperuma (supra). With regardto immovable property, however, the position relating to title andownership is different, and it seems to me 'that in these cases“ the right of a person to sue ” contemplates not only the right of aclaimant suing on his own behalf to vindicate his title but also the rightof a claimant on whose, behalf some other person institutes the actionfor the purpose of vindicating the claimant’s title..
It is apparent that if, in a case of this kind, the administrator andnot the intestate heir is to be regarded as the person vested with legaltitle to the property and against whom prescriptive title is capable ofbeing acquired, the 1st defendant would be confronted with an evenmore serious obstacle. In that event another principle of law wouldbe brought into operation. The so-called “ title ” of the appellantcould not have accrued until letters of administration were issued tohim, and—in the absence of any statutory provision in Geylon forrelating such “ title ” back to the date of the intestate’s death for thepurposes of prescription,-—the 1st defendant would necessarily havefailed to prove adverse possession in terms of Section 3 under a title,£ adverse to or independent of ” the plaintiff’s “ title ” (after it accruedin July 1944) for the requisite period of 10 years. No prescription canrun retrospectively against an administrator’s “ title ”. Kulendoeveloev. Kandepemmal (supra). On the interpretation of the law whichI prefer to adopt, this complication does not arise.
For the reasons which I have given I would hold that the 1st defendanthad not, when the action commenced, acquired prescriptive title so asto defeat the title of the intestate heirs (other than Socklingam) whowere admittedly “ absent beyond the seas ” within the meaning ofSection 13 at all times material to the issues of prescription.
Socklingam’s case requires special consideration. The plaintiff ledevidence which, if true, indicates that this heir, like all the others, hadnever visited Ceylon. As against this evidence, the 1st defendantcalled a witness who stated that Socklingam had to his knowledge cometo Ceylon from India on one occasion after the death of Arumugam.The witness was unable, however, to fix even approximately the dateof this alleged visit, and when he was asked specifically whether theCeylon estate was being administered at the time, he frankly -repliedthat he “ did not know ”.
The learned Judge’s finding with regard to the conflict of testimonyon this part of the case is not very precise—for the reason, no doubt,that it was immaterial to the decision of the case in the view which he
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GrRATIAE-N J.—Chelliah v. Wijenathan
had already taken of the proper interpretation of Section 472 of theCivil Procedure Code and Section 13 of the Prescription Ordinance.The evidence relied on by the 1st defendant ■with regard to Socklingam’salleged arrival in Ceylon seems to me to be too vague and inconclusiveto assist her. She did not dispute the position that all the intestateheirs -were normally resident outside Ceylon, and she 'was content torely on evidence which, if true, only suggests that Socklingam had visitedCeylon on one occasion on an unspecified date which has not beenproved to have occurred between 23rd November, 1932 (when adversepossession commenced) and 16th July, 1946 (when the present actionwas instituted).
Where a party invokes the provisions of Section 3 of the PrescriptionOrdinance in order to defeat the ownership of an adverse claimant toimmovable property, the burden of proof rests fairly and squarely onhim to establish a starting point for his or her acquisition of prescriptiverights. If that onus has prima facie been discharged, the burden shiftsto the opposite party to establish that, by reason of some disabilityrecognised by Section 13, prescription did not in fact run from the dateon which the adverse possession first commenced. Once that has beenestablished, the onus shifts once again to the other side to show thatthe disability had ceased on some subsequent date and that the adversepossession relied on had uninterruptedly continued thereafter for aperiod of ten years. Applying these principles to the present case,I take the view that the 1st defendant has failed to prove that, afterSocklingam’s alleged visit to Ceylon, she and her predecessors-in-titlehad enjoyed the property for ten years before the action was instituted.In the result, the plaintiff, as administrator of Arumugam ChettiarJunior’s estate, is entitled to the declaration asked for in respect of theentire property.
There remains for consideration the issue as to damages. The learnedDistrict Judge, in answering this issue, held that “ the quantum ofdamages is as at page 23 of the evidence of Chelliah Pillai ”. I thinkthat it would be more satisfactory if the record is now returned to theDistrict Court so that, upon an analysis of the evidence of ChelliahPillai and of any other evidence which the parties may desire to placebefore the Court, a decree can be entered awarding damages to theplaintiff according to law. For this limited purpose the case may betried by any Judge who is functioning in the District Court of Colombo.
For the reasons which I have given I would set aside the judgmentappealed from and enter judgment in favour of the plaintiff in terms ofparagraph (a) of the prayer to the plaint, ordering a writ of ejectmentin his favour against the 1st defendant. The case must be remittedto the lower Court for the ascertainment of damages payable to theplaintiff as indicated in my judgment. The 1st defendant will pay tothe plaintiff his costs both here and in the Court below, but the costsof the further proceedings to be held shall be in the discretion of thetrial Judge.
Rose C.J.—I agree.
Judgment set aside.