019-NLR-NLR-V-10-SEGOE-MOHIDEEN-v.-ISAMIL-LEBBE-MARICAR.pdf
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Present: The Hon. Mr. A. G. Lascelles, Acting ChiefJustice, and Mr. Justice Wendt.
SEGOE MOHIDEEN v. ISMAIL LEBBE MAEICAB.
D. C., Colombo, 21,973.
Heir ab intestato, possession by—Appointment of administrator—Pre-scription—Salebyadministrator—Title—" Adverse possession.
Ordinance No. 9Q of 1871, s. 3.
Held, that possession by heirs succeeding ab intestato is, always,a possession subject to the title of a legal representative, if oneshould be appointed; but that it is competent for an heir, afterthe appointment of an administrator, by overt acts to change thecharacter of his possession into an '* adverse " one.
Held, also, that the onus is on the heir, in such a case, to provewhen, and how, his subordinate and derivative possession becameconverted into an “ adverse ” one; and that the mere enjoymentof the rents and profits, or the erection of buildings, or the makingof other improvements, would not amount to proof of .such M ad-verse " possession, as such acts are not inconsistent with possessionas an heir only.
^ CTION rei vindicatio.
One Gasie Lebbe, being owner of the premises in dispute, died .intestate on 12th June, 1892. Administration was granted to hisestate in August, 1904, in case No. 1,884, D. 0., Colombo; the ad-ministrator sold the property by public auction in February, 1905,and it was purchased by the. plaintiff, who obtained a conveyancedated 2nd May, 1905. The plaintiff sought to vindicate the premisesfrom the defendants, who were in possession. The first defendant,admitting that Gasie Lebbe was the owner and that he died intestate,alleged that he was his sole heir, and that as such he has been inpossession since 1892, and had acquired title by prescription/
The other defendants claimed to be tenants of the first defendant.
The question whether the first defendant was the sole heir of GasieLebbe was raised in the testamentary proceedings, .and the Judgehad held that the first defendant was not the sole heir, and thatone Avoo Lebbe was also one of the heirs of the deceased*
The District Judge (F. B. Dias, Esq.) gave judgment for the firstdefendant, holding that he had acquired title by prescription. Theplaintiff appealed.
Domhorst, K.G., and Walter Pereira, K.G. (with them Samara*wickreme)^ for the plaintiff, appellant;*
H. J. C. Pereira (with him F. M. de Saram), for the defendants,respondents.
Cur. adv. twit.
1906.
June 6%
4:J. N. A 99907 (8/50)
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1906. 5th junei 1906. Wendt J.—<-
Jttfee 5.
——This is an action to vindicate a small plot of land with the buildings
thereon, bearing assessment No. 8, Dean’s passage, in the town ofColombo. Admittedly, one Casie LeBbe Marikar died possessed ofthis land. He died on 12th June, 1892. The plaintiff's title is basedon a sale by his administrator in February, 1905, followed by aconveyance dated 2nd May, 1905. The first defendant, who is CasioLebbe’s brother, claims title by prescription, and, in the alternative,asks for compensation for improvements, asserting that all thebuildings were erected by him. The other defendants are his tenants.The learned District Judge has dismissed the action, and the questionis, whether first defendant has made out his prescriptive title.
Casie Lebbe left, besides the property in question, an interest inanother parcel of land bearing No. 20, which adjoins it. He diedintestate and unmarried, survived by the first defendant andone Avoo Lebbe, who claimed to be his brother, but whom firstdefendant alleges to have been only the adopted son of their father.No application was made for administration of Casie Lebbe’s estate.Defendant states that he entered into possession of No. 8 as his heir,and that he regarded himself as sole heir. In fact, however, the estatebecame divided between him and Avoo Lebbe, defendant havingexclusive enjoyment of No. 8 and Avoo Lebbe of No. 20. In thetestamentary proceedings .the question whether Avoo Lebbe was abrother—and, therefore, an heir—of Casie Lebbe was tried betweenhis representative and defendant and determined against the defend-,ant, who appealed unsuccessfully against that determination. Inmy opinion it is no longer open to defendant to contest that question.
Now, it is. true that in actions brought by the heirs of an intestateto vindicate his property, inherited by them from third parties;claiming adversely to the deceased owner, the plaintiffs have beenheld entitled to rely on prescriptive possession b/ them in order toavoid the objection to their title based on want of probate oradministration. But that is not prescription against the legal re-presentative of the deceased, but (in effect) by such representativeagainst strangers. The possession' by heirs succeeding ab intestatois always a possession subject to the title of a legal representative,if one should be appointed. It may perhaps be possible for an heir,* after an administrator is appointed, by overt acts to cliange thecharacter of his possession into one that could properly be describedas “adverse, ” within the meaning of cur Prescription Ordinance,but the onus will distinctly lie on such heir to show when, and how,his original subordinate and derivative possession became cbnvertedinto nossession ut dominus. Mere enjoyment of the rents and
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profits will not suffice, nor will the erection of buildings and making *1906.
of other improvements, for none of these acts is inconsistent with June 5.possession as an heir only. It is even doubtful that defendant made wbndv Jany such improvement earlier than ten years prior to action brought,for he stated, when examined as a witness in the testamentaryproceedings on 12th September, 1903, that he built " four or fiveyears ago, ” say, in 1898 or 1899.
Consider the consequences of giving first defendant a prescriptivetitle as against his administrator. A man dies leaving a valuableestate, which thereupon owes a large sum to the Crown as duty.
That is not paid, but his two brothers as heirs divide the landsbetween them and enter into possession. After ten years an applica-tion is made for administration, which is opposed by the brothers,as defendant opposed it here, but the grant is made. In order topay the Crown duty and the costs of the administration, the adminis-trator obtains the leave of the Court to sell the lands. Whicheverland he may put Eis hands upon, one of the brothers will say:" I
have acquired a prescriptive title to this, ” and what is admittedlya charge upon the whole estate would go unsatisfied. Besides, theremay conceivably be unpaid debts of the deceased. How are they tobe discharged ? And here it suggests itself that if defendant’s con-tention be sound, it formed a good objection to any grant of adminis-tration at all. “ Administration is unnecessary (he should havesaid), because there is nothing to administer. No doubt deceased leftan estate, but that has now disappeared by my acquisition of prescrip-tive title, and you cannot disturb that title.. ” If that view be right,the defence is not open now, the order for administration having beenmade in the presence of the defendant and being binding on him.
, I think that the defence of prescriptive title in the first defendantfails, and that the case should go back to the District Judge toascertain whether-any, and if so what, compensation is due to himfor improvements. The plaintiff will have the costs of appeal, andthe District Court, costs will abide the event.
Lascelles A.C.J.—
1
I have come to the same conclusion as my brother. The first defend-ant was a party to the testamentary proceedings, and he cannotnow be allowed to deny that Avoo Lebbe was his brother and co-heir.
On Casie Lebbe’s death the first defendant and Avoo LeBbe eachentered upon separate portions of the estate* Their possession was as •heirs, and was not inconsistent with the title of the administrator,who represented all the heirs.
In my opinion the question of adverse possession does not arise.
• Appeal allowed.