103-NLR-NLR-V-16-SENARATNA-v.-JANE-NONA.pdf
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Present: Lascelles C.J. and Wood Benton J.SENABATNA v.' JANE NONA.
69—D. G. Matara, 5,698.
Prescription—Cause of action—When it arises—Trust—Land bought byA in Ms name for B and with B*s money—Possession by B afterpurchase—Action to compel a transfer.
A bought a land at a Fiscal’s sale in 1890 with B’s money andfor B, but the conveyance was executed in A’s favour. B possessedthe land since the purchase. In 1912 the administratrix of .A’sestate included the land among A’s lands in the inventory. Btherefore brought this action, inter alia, to compel A’s administratrixto execute a conveyance in his favour.
Held, that the action was not barred by prescription, as nocause of action arose until the administratrix sought to disturb thestatus quo by including the land in suit in the inventory.-
Lascelles C.J.—The point of time when the right to bring theaction accrues is at the time when the party has been interferedwith in the enjoyment of his rights. So long as he receives all thathe considers himself to be entitled to, he cannot be expected totake action, and the legal cause of action cannot be said to havearisen.
Ma/rtelis Appu v. Jayewardene1 over-ruled on this point.
T
HE plaintiff in this case averred in his plaint that the land indispute was purchased at his request and with his money by
one Senaratna at a Fiscal’s sale (December 18, 1890); the Fiscal's
* 11908) 11 N. L. R. m.
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IMS.
Senaratnae. Jane Nona
conveyance was executed in favour of Senaratna on April 26, 1896,when it was handed over to plaintiff; plaintiff was in possession ofthe land since the purchase; Senaratna died on February 13, 1912;the administratrix, of Senaratna’s estate refused, to execute aconveyance in favour of the plaintiff, hence this action.
The following issues were framed at the trial: —
Was the money paid for the purchase of the property in
question advanced by the plaintiff?
Did the plaintiff make all the plantations since the Fiscal’s
sale?
Has plaintiff had prescriptive possession?
Damages.
Is plaintiff’s cause of action prescribed?
Is this action maintainable without a notarial agreement?
Can plaintiff, in the circumstances, acquire title by prescrip-
tion ?*
The learned District Judge (G. W. Woodhouse, Esq.) deliveredthe following judgment:—>
This is an action by the beneficiary or fidei commissary against histrustee’s legal representative, who has the legal estate of the landEdandagawawatta alias Godewatta, situated at Polwatta, praying fora declaration that he (the plaintiff) is the de facto owner and that he isentitled to a conveyance of the land, and for damages and costs.
It is abundantly proved by the evidence that, though the Fiscal’s '.conveyance was for convenience made out in Benjamin A. Senaratna’sname, the land was purchased by him with the plaintiff’s money andfor the plaintiff.
It was clearly on that understanding that the plaintiff entered intopossession and built a substantial house on it at great cost. If, as isalleged by the defendant, the arrangement was simply that plaintiffshould possess Benjamin’s land, while Benjamin for convenience usedplaintiff’s land Muttettuwatta, it is obvious that neither party wouldput up valuable buildings without some definite agreement as tocompensation for the buildings.
It is admitted that Benjamin Senaratna put up some valuable boutiqueson Muttettuwatta. There was a partition, I understand, of that land,and plaintiff was declared owner, and Benjamin was paid compensationfor the buildings. If it is true that the building concessions weredependent on a similar concession by Benjamin to plaintiff, it would atany rate have been referred to in that case.
I also find that soon after this land was purchased the plaintiff beganliving on it and planting it. All the plantations subsequent to the saleare plaintiff’s. The attempt on the part of defendant to prove thatthey were partly made by Benjamin’s borsekeeper (?) and anotherfailed utterly.
With reference to issues (3) and (7), I am of opinion that there is noquestion of prescription here, unless it‘is held that Benjamin boughtthe land with his own money and let plaintiff into possession as tenantof some smaller estate, and at some period of his tenure he began to
IMS.
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possess adversely. No more is plaintiff’s cause of action prescribed,seeing that it was only when defendant filed the inventory of Benjamin’sestate that it was discovered she claimed rights in the land at all. The6th issue presents some difficulty, but I fail to follow Mr. Jayewardene’sargument. If, as I find, plaintiff gave- Benjamin money to pay forthe land, and authorized him to take a conveyance in his own namefor plaintiff’s benefit, and Benjamin did so, then Benjamin certainlycommitted no fraud. In that case the plaintiff’s oase is established.
If, however, Benjamin took a conveyance for his own benefit, whichis defendant’s case, then Benjamin is at once guilty of a fraud; and allthe law to the effect that a man may not set up the statute of fraudsto commit a fraud, &c., comes to plaintiff’s aid.
Enter decree for plaintiff as prayed for with costs r No damages, asnone have been proved.N
The defendant appealed.
De Sampayo, K.C. (with him De Zoysa), for the appellant.
A. St. 7. Jayewardene, for the respondent.
April 15, 1913. Lascelles C.J.—
In this case there is no dispute with regard to the findings of thelearned District Judge on the facts. But it is contended by theappellant that the learned District Judge was wrong in holdingthat the plaintiff’s action was not prescribed. On the other hand,the respondent contends that the learned District Judge ought tohave held that the plaintiff had obtained a title to the land indispute by prescription. As to the latter point, I do not .considerit necessary to definitely decide it. I will only say that, on thefindings of the learned District Judge, I do not see why theplaintiff should not have been held to have obtained a prescriptivetitle. He entered into possession of the land in 1895. He improvedthe land, and he remained in possession without any dispute orwithout his right being in any way questioned until the year 1912,when the property was included in the inventory of the deceased’sestate. In these circumstances, it is hard to see why the plaintiffshould not be held to have prescribed. As to the finding of thelearned District Judge that the plaintiff’s right of action is notprescribed, the question turns on the time when the cause of actionaccrued. The plaintiff entered into possession, as I have said,in 1902, and as long as he remained in possession without anyinterference on the part of his brother or his representatives he hadobtained all that he had bargained for. He was in the enjoymentof the right to which he was entitled under the arrangement effectedbetween him and his brother. It cannot, I think, be said that _any cause of action accrued until something had accrued vhichinterfered with or placed in jeopardy his rights under that deed,and it is not contended that anything of that nature occurred beforethe property in question was included in the inventory. The
Senaratnav. Jane Nona
1913.
XlASOBLLES
C.J.
Senwratnav. Jane Nona
( 892 )
English case of Cowper v. Godmond 1 shows clearly the principlewhich is applicable in such oases. The point of time when the rightto bring the action accrues is at the time when the party has beeninterfered with in the enjoyment of hiB rights. So long as hereceives all that he considers himself to be entitled to, he cannotbe expected to take action, and the legal cause of action cannot besaid to have arisen. I think that the ruling of the learned DistrictJudge on this question is right, and as it is conclusive of the actionon the findings of fact, which are-not disputed-, I would dismiss theappeal with costs.
Wood Renton J.—
I am of the same opinion. The learned District Judge has heldthat the plaintiff-respondent in 1895, on the strength of the purchaseby Benjamin Senaratna with his money and on his behalf, enteredinto possession of the land in question, and held it without disputetill it became apparent that the defendant-appellant proposed toset up a claim of title on behalf of Benjamin Senaratna’s estate.That finding is of importance from two points of view. In the firstplace, it w.ould, in my opinion, have justified a decision of thepresent case in the respondent’s favour on the ground of prescription;in the second place, it throws an important light on the question ofthe point of time at which the respondent’s cause of action arose.He was in undisturbed possession of the land. He was improvingit. The^e was no pretence of any counter claim of title on BenjaminSenaratna’s behalf. For compensation was paid to him on the basisthat title was in the respondent. In that state of the facts, itcannot, apart from authority, be fairly said that the respondent’scause of action arose till the appellant sought to disturb the statusquo by including the land in suit in the inventory of BenjaminSenaratna’s estate. The only decision that could have been cited onthe other side is that of the Supreme Court in Martelis Appu v.Jayewardene.2 It was a decision by Sir Joseph Hutchinson andmyself. The facts were somewhat different, but there is no doubtthat we there held that the cause of action for the refund of moneyadvanced on a consideration which had failed arose immediatelyupon payment. That case has subsequently come before me onseveral occasions, and I have always entertained some doubtwhether the decision on that point was right. Now that myattention has been called to the case of Cowper v. Godmond,1 and tothe reasoning of the Court of Common Pleas in that case, I do notthink that it ought to be followed on the point with which I amdealing. I have taken this opportunity of making this observationseeing that I was myself one of the Judges who decided the case.
i (1833) 9 Bingham 748.
Appeal dismissed.* (1908) U N. L. R. 272.