027-NLR-NLR-V-30-SELOHAMY-v.-GOONEWARDENE.pdf
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1928.
Present: Garvin and Drieberg JJ.
SELOHAMY v. GOONEWARDENE.i 10—D. G. Negombo, 1,474.
Usufruct—Prescription—Acquisition of life interest—Roman-Dutch law.
A usufruct may be acquired by proof of prescriptive possession.
^ PPEAL from a judgment of the District Judge of Negombo.
De Zoysa, for defendant, appellant.
Rajapakse, for plaintiff, respondent.
June 5,1928. Gabvin J.—
Don Davith Vedarala and his first wife were the owners of aportion of land called Harakkotulanda. Upon the death of hiswife a half share devolved upon his children, two of whom are thefirst defendant and his sister Nono Hamy. He then contracteda second marriage with the present plaintiff. In the year 1903Don Davith executed two deeds. By the first of these markedP 1, he conveyed an undivided two-third of the half share whichremained to him of this land to the defendant reserving to himselfand his wife a life interest. On the same day he also executedthe deed D 1 conveying the remaining one-third of his half shareto his daughter, Nono Hamy, again reserving a life interest tohim and his wife. Then this land and several others which belongedto this family were made the subject of proceedings for partition.A decree was entered in the year 1911. So far as this land wasconcerned shares in severalty were allotted to the various co-owners,and in that apportionment lot marked B was assigned to thedefendant, and the lot C to Nono Hamy. The decree, however,did not expressly reserve a life interest to the plaintiff. It mustbe taken that as at that date this life interest was legally determined,but there can be no doubt upon the evidence which has been placedbefore the Court, and which the Court has accepted, that in pointof fact, so far as the plaintiff was concerned, there never was anydenial of her right to take a share of the proceeds upon the footingthat she was still the owner of the life interest. It is the case forthe plaintiff that she had continued to be in active possession andenjoyment of this interest, and that despite the partition decreeentered in the year 1911, she has by ten years’ possession acquireda usufruct in eight-eleventh of lot B to which the defendant wasdecreed entitled in severalty. In regard to lot C, to which NonoHamy was declared entitled, there is no dispute. The plaintiff’srights to a life interest in that lot have been fully and franklyacknowledged in a deed of lease executed in September, 1921,
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by which she and Nono Hamy leased that lot reciting that the titleto the lot was in Nono Hamy, but that the plaintiff was entitledto a life interest therein. The plaintiff has, therefore, establishedby her evidence that she had the full benefit of her life interestso far as the lot assigned to Nono Hamy was concerned. In respectof the lot assigned to the defendant she says that she has from timeto time and at regular intervals received from the defendant, whohas been permitted to remain in occupation thereof, sums of moneysometimes amounting to Rs. 100 and at others to Rs. 50. Moreover,in the year 1915, it became necessary to raise some money to meeta certain emergency. The lot was accordingly leased and a premiumpaid in advance. The plaintiff is a party to the lease and shesays that she insisted upon her rights and only consented to joiningin the lease in consideration of a sum of Rs. 500 being paid to her,and there is evidence that she received this sum. In, these cir-cumstances I think the learned District Judge was correct in hisview that the plaintiff has had possession and enjoyment in theassertion of a right to a life interest and that that interest is correctlyestimated as extending to eight-eleventh of lot B. That a usufructis a right capable of being acquired by prescription can hardly bedenied. Lee in his Introduction of Roman-Dutch Law saysa usufruct is constituted (1) by agreement, (2) last will, (3) prescrip-tion. Moreover, it has been decided by a decision of this Courtthat a right in the nature of an emphyteusis is capable of beingacquired by prescription (see Jayawardene v. Silva1). If a rightin the nature of an emphyteusis is capable of acquisition by pre-scription, a fortiori a usufruct may also be acquired by proof ofprescriptive possession for the necessary period. A usufructgenerally extends to the possession and enjoyment of the fruitsand other rights of and in a piece of land and the inference ordi-narily to be drawn from proof of such possession and enjoymentwould be that the possession was with the intention of holding theland as owner. The plaintiff has, however, elected to claim somethingless, and upon the evidence which she has placed before the Court1 think it would be fair to infer—indeed to accept what she hasasserted—that her intention was not to acquire title to the landitself but merely to secure a right to possession and enjoymentdining her lifetime. For these reasons the appeal must be dismissedwith costs. It is necessary to invite attention to a defect in thedecree. As it stands it declares the . plaintiff entitled to eight-eleventh of the land. What she claimed and what she has acquiredis a right to a usufructuary interest therein. She should thereforebe merely declared entitled to a life interest in eight-eleventh.
Driebekg J.—I agree.
J. N. 9487 (11/46)
1 18 N. L. H. 269.
Appeal dismissed.
1928.
Garvih J.
Selohamy v.Qoone-loardene