103-NLR-NLR-V-23-SILVA-v.-LETCHIMAN-CHETTY.pdf
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1922.
Present: Ennis and Schneider JJ.
SILVA v. LBTOHIMAN CHETTY.
386—D. C. Negombo, 14,106.
Agreement to seU land belonging to vendor and minor children—Con-sideration paid—Possession by vendee—Adverse possession—Prescription.
A agreed to sell to B by deed in 1893 his share (one-twelfth) andthe share of his two minor children (one-twelfth) of a gardenp andundertook to get the minors to convey when they came of age.The deed recited that the two shares of the garden were given overto B for possession and improvement from the date of theexecution of the agreement, and that A had received the fullconsideration. B had possession ever since 1893 to date ofaction. The minors attained the age of majority, twenty-one andfifteen years, before date of action, 'but did not make any claimduring these years.
Held, that B’s possession was adverse, and that he had acquiredtitle by prescription to the share of the minors.
HHHE facts are set out in the judgment. The deed of 1893 was asfollows:—
No. 30,625.
Know all men by these presents that I, Wamakulesuria AlensokuttigeDominikko Fernando of Second Division of Kurana, Bolawalana,within Negombo gravets, as the first party, and I, WamakulesuriaIchchampullige Mariano Fernando of Third Division of Kurana, Bola-walana, within scud gravets, as the second party, bound ourselvesand hereby declared that the Pokunabodewatta at Third Division ofKurana, Bolawalana, within Negombo gravets, Western Province, isbounded, Ac., in extent about three roods of the one-sixth share of thisland and plantations a just half share.
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The Kosgahawatta at Third Division oi Kuranft, Bolawalanaaforesaid, is bounded, &c., of this land and plantations a Just half shareof undivided one-sixth share.
And the said undivided two portions of garden belonging to the twominor children of me, the first party, and who are under my protection,named Warnakulesuria Alensokuttige Sopi Nona Fernando and dittoAnthony Fernando, I have agreed to sell for Rs. 22 * 60, Ceylon currency,to second party, and have received the said amounts in full from secondparty.
1982.
Silva e.LetchimanOhetty
So, within sixteen years from this day, or when the two children reachthe age of signing a deed when the second party, executes a deed oftransfer for the said property and gives notice, I, the first party, pro-mise to get the two children sign it within eight days of that notice, andit is agreed that the two parties should bear the costs of execution; andif I, the first party, fail or neglect to do so, I promise to pay the secondparty as fine, at the rate of fifty cents for each day elapsing after thesaid eight days, and to get the said business done.
And the Madangah akumbura, now made into a garden at SecondDivision of Kurana, Bolawalana, within Negombo gravets, WesternProvince, is bounded, &c., in extent about one acre, and the undividedhalf share of me, the first parly, of this land and the plantations thereofI bound as mortgagee and security to secure the fulfilment of the saidagreement, and I promise not to lease the plantations of the saidportion of garden-until the settlement of this agreement; and tlje saidtwo portions of garden are hereby given over to the second party forpossession and improvements from this day ; and for the due fulfilmentof these conditions, we for ourselves, and our heirs and assigns or lawfulrepresentatives, bind ourselves, and in proof hereof we signed threewritings as this on February 7,1893.
H. V. Perera, for plaintiff, appellant.
Samarawickreme (with him C. 0. de Silva), for respondents.
March 16,1922. Ennis J.—
This was a partition action. The land sought to be partitionedoriginally belonged to Manuel Dabrera and his wife Agida. Manueldied, whereupon his widow became entitled to a half, and each of histhree children—Juana, Ana Maria, and Barbara—to a one-sixth.Juana married one Dominico, and died leaving two children, Sophiaand Anthony. On her death her husband Dominico becameentitled to one-twelfth, and each of the children to one-twelfth.Ana Maria, married Bastian. Barbara married Mariano. Agidagifted her half to Barbara and Mariano in 1893 by the document D 4.Dominico agreed to sell to Mariano his one-twelfth share and theshares of his two children, Sophia and Anthony, who were thenminors. He undertook taget Sophia and Anthony to convey whenthey came of age. The document recited that the two portions ofgarden were given over to Mariano for possession and improvementfrom the date of the execution of the agreement, and further recited
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1022.
Ennis J.
8Uva t>.LetchimanChetty
that Dominico had received the full consideration. In 1804 Barbaraand Mariano mortgaged five-sixths of the land reciting their title,Mariano saying that he had a one-sixth share on a deed which wasnot then at hand. It can only have been the deed of 1893. Therewas a later mortgage D 7 in 1915, by which Mariano, Barbara, andone Ladis Fernando mortgaged the whole of the land. This bondwas put in suit, the property sold at auction, and the second added-defendant became the purchaser. He took out his Fiscal’s transferon March 15, 1920, the document D 3. The plaintiff claimed athird of the land by virtue of a conveyance to him P1 in 1919 byMariano, Ana Maria, Sophia, and Anthony. The learned Judgeawarded the plaintiff a one-sixth, and the plaintiff appeals. On theappeal his claim to a one-twelfth share frGm Sophia and Anthonyalone has been pressed. The learned Judge found that Barbara andMariano had had possession ever since the document D 4 in 1893.There is no reason to disturb that finding of fact, but it was urgedthat at the date of the document Sophia and Anthony were minors,and it appears they were bom in 1878 and 1884, respectively, andthey, therefore, came of age in 1899 and 1905, respectively, that is,twenty-one and fifteen years, respectively, before the institution ofthe present action. The learned Judge held that the fact that theyhad made no claim during all these years established a prescriptivetitle in Mariano. Against this finding we have been referred to thecaseot Lebbe Marikarv.Sainu.1 There it was held that a person whoenters into possession of land under an agreement with the ownersto sell the same to him cannot acquire title by prescription after thelapse of ten years, his possession not being adverse to the trueowners. The ground of that finding was that a person so enteringinto possession was a mere licensee of the owner. It is not clear thatboth the Judges in that case were of the same opinion on this point,as Middleton J. agreed that the appeal should be dismissed, as noovert act of a change in the character of the possession had beenproved. ' This case was referred to in the case of ThdmniviUai v.Arumugam.2 There Lascclles C.J. referred to the case of LebbeMarikar v. Sainu (supra)* and said :—
" ** On"the facts reported I confess that I find it difficut to seehow an intending purchaser who is given possessionwith an agreement that the vendors would convey the landto him .when they had perfected their own title can beregarded as a licensee under the vendor.”
Wood Renton J. locked up the record in Lebbe Marikar v. Sainu(supra)* and said that he found the agreement referred to in thejudgment one of a special character, in which the grantee was merelyto possess and take the produce till the execution of the real transferdeed. I am in entire accord with the observations of Sir AlfredLascelles. in that case, and, looking at the agreement in the present1 (1908) 10 N. L. B. 389.* (1918) 15 N.B. 858.
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case, I find that it is not merely an agreement that Mariano was topossess and take the produce till execution of the transfer deed.There was a delivery of possession to Mariano to enable him toimprove the land and payment of the full consideration. Theimprovements could not be for the benefit of the vendors, and,therefore, his possession under that agreement was ut dominies, and,in fact, he exercised his rights as owner under the mortgage of 1604and the later mortgage of 1915. As to whether his possession underthose circumstances was adverse to the interests of Sophia andAnthony is a question of fact. This question was fully gone into inthe case of Tillekeratne v. Bastion ,* and the present Chief Justicethere said, at page 20 :—
“ It is the reverse of reasonable to impute a character to aman's possession which his whole behaviour has longrepudiated. If it is found that one coowner and hispredecessors in interest have been in possession of the wholeof the property for a period as far back as reasonablememory reaches; that he and they have done nothing torecognize the claims of the other coowners ; that he andthey have taken the whole produce of the property forthemselves; and that these coowners have never doneanything to assert a claim to any share of the produce, it isartificial in the highest degree to say that such a personand his predecessors in interest must be presumed to bepossessing all this time in the capacity of coowners, andthat they can never be regarded as having possessedadversely, simply because no definite positive act can bepointed to as originating or demonstrating the adversepossession. Where it is found that presumptions of lawlead to such an artificial result, it will generally be foundthat the law itself provides a remedy for such a situationby means of counter-presumptions.’3
So in this case I am of opinion that there isa counter-presumption,that Sophia and Anthony were well aware of Mariano’s intention tohold ut dominus, and this counter-presumption in the present casereceives considerable support from the plaintiffs owndccument P1,wherein Mariano recites his own title as the deed of 1863. It ispossible that Sophia and Anthony joined in that deed by way ofratification of the agreement that Mariano entered into with theirfather in 1893, and not by way of an assertion of an independenttitle.
In the circumstances, I see no reason to interfere with thejudgment appealed from, and would dimnias the appeal, with costs.
Sceneidbb J.—I agree.
Appeal dismissed,
1982.
Enhis J.
SUva v.Letehiman
1 (1922) 21 N. L. B. 12.