128-NLR-NLR-V-58-SABARATNAM-et-al.-Appellants-and-KANDAVANAM-Respondent.pdf
1957Present:Weerasooriya, J., and Sansoni, J.
SABARATXAJI cl fit.. Appellants, awl KAXDAVAXA^r, Respondent.,S‘. C. 424—I). C. {Inly.) Point Pedro. 4,43!
Peal—Sale by two or «iore person* of their shares of a land—f ailure of one of them tosign the- died—fsimliny effect of deed.
Co-owners—Transfer of entire property Ly a co-owner—Transferee’s riyl Is—Pres-cription—Ouster.
(i) A, 11 and C purported to sell to V by cite same deed an undivided S/32share of a land. The S/32 share consisted of the 0/32, 1/32 and 1/32 shnresof A, B and C respectively. Although the deed of sale (PI) recited C 03 one ofthe parties to it, his interest did not actually pass as lie cither omitted or declinedto sign it. Subsequently A transferred the entirety of tho land to 13. In«he present action instituted by D claiming 7/32 share ns against 13—
Held, that the failure of C, one of the intended executants, to sign the deedPI did not have the effect of not binding the other parties who executed it.
• (ii) Where a person who is in possession of property ns a co-owner transfersthe entirety of tho common property to a stranger but continues to be solelyon the land, his continued possession, though covertly on behalfof the transferee,is not adverse to the other co-owners in.the absence of evidence of ouster by him■ of tho other co-owners.
A '
.Xj-PPEAL from an order of the District Court, Point Pedro.
Thiagalingam, Q.G., with A. Ncigendra, for the 1st and 2nd defen-dants • appellants.
S. J. V. Ghclvcinayakam, Q.G., with K. Rajaratnam, for the plaintiff-respondent.,
Gur. adv. wilt.
March 4, 1957. We eras ooriva, J.—
In accordance with our previous order the proceedings were remittedto the District Court to enable the plaintiff-respondent to produce theduplicate of deed No. 113S5 dated the 20th October, 1911, which is in thecustody of the Registrar of Lands. This deed has now been producedmarked PI A, and the learned District Judge has held that the presumptionin section 90 of the Evidence Ordinance relating to the due execution andattesting of it may be applied. We see no reason to disturb that finding.
This deed purports to be a sale of certain interests in the land in suit,aggregating an undivided S/32 share, in favour of one Velar Kandiah,by Sathasivampillai (who is the predecessor in title of the 2nd defendant-appellant) in respect of an undivided 6/32 share, and Nagalingam andSivasambu each in respect of an undivided 1/32 share. Meenatchipillaithe mother of Sathasivampillai also joined in the conveyance in respectof her life interest over the share of Sathasivampillai. Although thethe deed recites Sivasambu as one of the parties to it, his interest didnot actually pass as he either omitted or declined to sign it. The claimof the plaintiff-respondent to the balance undivided 7/32 (or 42/192)share rests mainly on this deed.
We were invited by learned counsel for the defendants-appellants tohold that the failure of Sivasambu to sign the deed has the result that it isnot binding even on those parties who executed it since, according to hissubmission, the parties who executed it must have done so on the faiththat it would be executed by Sivasambu as well, and he invoked theEnglish rule of equitable relief as stated by Jessel, M. R., in Luke v. SouthKensington Hotel Go.1 (and for which the earlier case of JBolilho v. Hillyor 2is also an authority) that “ if two persons execute a deed on the faiththat a third party will do so, and that is known to the other parties to thedeed, the deed docs not bind in equity if the third refuses to execute, andconsequently on that ground the deed could not have bound the two ".But even if this rule isapplicable in an appropriate case I do not see howit c-aii be availed of by the dcfendants-appellants who were not partiesto the deed. Moreover, it was held in Ex parle Harding 3 that suchequity “ must be alleged and proved ”. No issue regarding this wasraised at the trial, nor is there any evidence that the other parties exe-cuted the deed on the faith that Sivasambu himself would do so. Hence
counsel’s submission that the deed is not binding on the parties whoexecuted it cannot be accepted.
In view of this deed it clearly would not be open to the 2nd defendant-appellant to take up the position that Sathasivarupillai was the solo ownerof the land in suit or acted under that belief. The 2nd defendant-appellant is the daughter of Sathasivainpillai, and on the occasion of hermarriage to the 1st defendant-appellant-, Sat has i vamp i 11 a i, ignoring theother co-owners, purported to convey the entirety of the land to her byway of dowry on deed 2D1 of the loth August, 1920. The trial Judgeheld, in regard to such, of the interests of Sathasivainpillai conveyed on2D1 as had already been sold on PI A, that 2D1 by reason of its priorregistration prevailed over PI A, and this finding has been accepted by theplaintiff-respondent. But apart from those interests Sathasivainpillaihad, at the time of the execution of 2D1, certain other undivided interests^3 well, and these undoubtedly passed under 21)1. The only questionremaining for decision is whether by reason of the alleged exclusivepossession of the entire land by the 2nd defendant-appellant after theexecution of 2D1 she has prescribed against the other co-owners.
The principle is now- well recognised that where a co-owner purportsto sell the entire common property to a stranger and the latter entersinto possession claiming title to the entirety, prescription begins to runat once and uninterrupted possession over a period of ten years resultsin the acquisition of a prescriptive title to the land. Most of the easesaffirming this principle are referred to in ICanapathipiliai v. Mecra-saiboet al. where, however, it was held that the principle did not apply if thestranger was aware that his vendor was only a co-owner. Relying onthese decisions learned counsel for the defendants-appellants contendedthat despite the fact that Sathasivainpillai was only a co-owner of the'land, the principle referred to would apply in the present ease as the 2nddefendant-appellant is in the position of a stranger to whom the entiretyof the land had been transferred and there is no evidence that she hadknowledge of the true capacity in which her father Sathasivainpillai wasin possession of the land nor should such knowledge be inferred merelyfrom her relationship to Sathasivainpillai.
The evidence regarding the possession of the land subsequent to theexecution of 2D1 is by no means satisfactory. According to those wit-nesses called by the defendants-appellants who claimed to be in a positionto speak to possession, the land was a barren one which could not becultivated except “ once in a way ”, for about three or four years oneMandalam was in occupation of it, ostensibly under Sathasivainpillai,and another person called Ponniah had been running a boutique on aportion of it for many j ears. It is clear, however, that during this periodthe other co-owners had no reason to think that the land was otherwisethan in the occupation of Sathasivainpillai, and in his capacity as aco-owner, whoever may have been actually on the land from time totime. The 1st defendant-appellant himself stated that he commenced
possessing the land (on behalf of the 2nd defendant) only after Salkasivam-pillai’s death -which, it is clear, took place within ten years of the insti-tution of the action. Even if the possession of the land by the 2nddefendant-appellant from that point of time onwards be regarded asadverse to the other co-owners (and I express no opinion on this question)the period is insufficient for her to have acquired a prescriptive title toit. But she would have acquired such a title if her possession throughSathasivampillai during the period subsequent to the execution of 21)1is held to be adverse to the other co-owners.
The present case is, however, different from any of the earlier cases inwhich the principle relied on by learned counsel for the defendants-appellants was applied, as in each of them the stranger himself wouldappear to have entered on possession of the land after the sale to him.The ratio decidendi of those cases seems to be that the possession of astranger in such circumstances is in itself sufficient notice to the otherco-owners of the adverse nature of it. The same cannot, in m3' opinion,be said of a stranger who possesses the land through the very* co-owncrwho sold it to him (even conceding that ho was ignorant of the fact thathis vendor had no title to the entirety of it).
In the case of Fernando v. Podi Nona 1 it was stated by Gratiaen J.that where “ a stranger enters into possession of a divided allotment ofproperty, claiming to be sole owner, although his vendor had legal titleto only a share, Gorcu v Appuhamy 2 has no application unless his occu-pation of the whole was reasonably capable of being understood b3' theother co-owjiers as consistent with an acknowledgment of their title ”.Having regard to the evidence in the present case it is manifest that thecontinued occupation of the land by Sathasivampillai after the executionof 2D1, though covertly on behalf of the 2nd defendant-appellant, wasreasonably capable of being understood by the other co-owners asconsistent with an acknowledgment of their title.
The effect of the decision of the Judicial Committee of thePrivy Councilin Corea v Appuhamy (supra) is that where a person who is in fact a co-owncr is in possession of the whole of the common property, then in theabsence of evidence of ouster by him of the other co-owners, his possessionis referable to the right, which he has to the enjoyment of the land by' virtueof his being a co-owner, and it cannot-, therefore, be regarded as adverseto the other co-owners. Notwithstanding that 21)1 purported to bea conveyance of the entire land, the 2nd defendant-appellant acquiredonly' certain undivided intersts on that deed and her possession of theland thereafter through Sathasivampillai was consistent with her rightsas a co-owner. There is no room, therefore, for holding that herpossession of the land up to the time of Sathasivampillai’s death wasadverse to the other co-owners..
The appeal is dismissed with costs. The plaintiff-respondent will,however, pay the defendants-appellants their costs of the proceedings
in which, in forms of our previous order, the plaintiff-respondent- wasgiven an opportunity of producing the duplicate of deed Xo. 11385 datedthe 20th October, 1911.
Sansoni. .1.—
l agree and only wish to add some observations on two submissionsmade by .Mr. Thiagalingam. They arc :—
that deed PIA was ineffective because Sivasambu, one of the
intended executants, did not sign it: and
that even though Sathasivampillai was a co-owner when he exe*
euted the deed 2D1 in favour of his daughter the 2nd defendant!prescription began to run in her favour from that point of timeas it was a deed executed by a co-owner in favour of a strangerfor the entire land, and Sathasivampillai’s possession thereafterwas his daughter’s possession.
On the first point the rule enunciated by Jessel, II. R., in Luke v. SouthKensington Hotel1 , to which my brother has referred, has been criticisedby the House of Lords in Lady Naas v. Westminster Bank Limited8,where it was held that the rule was expressed far too widely. LordRussell of Killowen. at page 391 said :—
I do not think that the proposition can be carried further than this,that the equity arises .where a deed is sought to be enforced against anexecuting party, and owing to the non-execution by another personnamed as a party to the deed the obligation which is sought to be en-forced is a different obligation from the obligation which would havebeen enforceable if the non-executing person had in fact executedthe deed ”.
Lord Wright and Lord llomer were in substantial agreement with thisview, and the latter said at page 410 :—
“ The equitable principle that they lay down is that where, owingto the non-execution of a deed by one of the parties, the others whohave executed, it would by the application of the common law rule bebound by a covenant or transaction different in kind from that whichit was their intention to enter into, they can be relieved in equityfrom the results of their execution of the deed "
These opinions show that the appellants who are no pai-ties at all tothe impugned deed PIA cannot derive any assistance from this equitableprinciple.
(/sro) ii Ch. D. ill.
* (1040) A. C. 300.
Oil thcsecondpointit must remembered thatsolong as Sathasivampillaiwas in possession of the common land prior to liis transfer to his daughterin 1920, he was there as a co-owner. c£ His possession was in law the
possession of his co-owners.- It was not possible for him to put an endto that possession by any secret intention in his mind. Nothing short ofouster or something equivalent to ouster could bring about that result ”—per Lord MacNaghten in Corea v. Appuliamy 1. Assuming, then, thatSathasivampillai continued to be solely on the land and that he intendedto be there and possess it on behalf of his daughter from 1920, such posses-sion will not assist the appellants because neither ouster nor its equivalenthas been established.
But it is said that although Sathasivampillai could not have pres-cribed against his co-ownex*s on his own behalf, he was able to prescribeon his daughter’s behalf because this was a case where a co-owner trans-ferred the entirety of a common land to a stranger. This is to ignore thevery reason of the rule which permits a stranger in such a case to prescribeagainst the other co-owners. That rule has been stated as follows :—
“ while the possession of one co-owner is, in itself, rightful, and doesnot imply hostility, the position is different when a stranger is in posses-sion. The possession of a stranger in itself indicates that his possessionis adverse to the true owners…. When one of several co-sharerslets into possession a stranger who proceeds to cultivate the land forhis own benefit the other co-sharers must, unless they deliberatelyclose their eyes, know of what is going on, but if they are soregardless of their own interests they must take the consequences ”—
see the judgment of Leach, C.J., in Palania Pillai v. Amjath IbrahimRowlher The rule cannot therefore apply in this case because therewas no such possession by the stranger (2nd defendant) as would indicateto Sathasivampillai’s co-owners that prescription had commenced to runagainst them. It is impossible for these reasons to uphold Mr. Thiaga-lingani’s argument that the 1st and 2nd defendants had acquired pres-criptive title to this land by reason of Sathasivampillai’s possession ontheir behalf from 1920.
I agree to the order proposed by my brother.
Appeal dismissed.
* (1S70) 11 Cb.D. 121 at 125:* (ISOS) 34 Beau. ISO.
‘ (1S70) 12 Cb.D. 557 at 554..