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■SINNATAMBY v. MEERA LEVVAI.
B., Anuradhapura, 2,837.
Prescription—Ordinance No. 22 of 1871, s. 14—Adverse possession—Interrup-tion by minority.
The running of prescription', already started, cannot be stopped byreason of the minority of a person who succeeds to the right in dispute.
HE plaintiffs, as the heirs of one Naina Mohamadu, claimedcertain allotments of land which were said to be in the
unlawful possession of the defendants. It was proved that NainaMohamadu had bought tjie land at a Fiscal's sale held in 1879under a writ of execution issued against One Kuppa Tamby, whowas in some manner related to the defendant; that just beforeNaina Mohamadu’s departure for India in 1892 he entrusted thelands to the defendant to be cleared of jungle and kept in order;that Naina Mohamadu died in India in 1894, when the plaintiffswere minors; and that neither they nor their father had receivedany produce from the defendant for ten years before action,which was instituted on the 8th July, 1901.
The Commissioner, Mr. L. W. C. Schrader, held as follows:— .
“ The prescriptive claim would be complete had plaintiffs notbeen underthe legal disability ofminority,during that period,
Their right to sue, according to them, accrued about two years ago)when second plaintiff attained his majority. The period ofprescription, however, counts not from that date, but from thedate of the death of Naina Mohamadu, which occurred about sixor seven years ago. Until then the plaintiffs’ predecessor in titlewasbeyondthe seas, and thereforenoperiodof adverse prescrip-tioncountsagainst him so long ashewas under that disability.
Defendants have not shownbywhatright they are in
possession. I have no difficulty in finding in favour of plaintiffs.Let them be declared entitled to the lands described in the plaint.”
Bawa, for appellant, cited Siwnatamby V. Vairavy (1 8. C. G.
19th August, 1902. Moncreiff, A. C. J.—
This was an action for vindication of various parcels of land by thechildren of one Naina Mohamadu. Naina Mohamadu was ownerof the property in question under a Fiscal’s sale which took placein 18791 The conveyance was obtained in 1882. In 1892 NainaMohamadu went to India, and apparently never returned. Hedied there six or seven years before this action, the plaint in which
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is dated 8th July, 1901. Some time after his death his childrenreturned to Ceylon and proceeded to claim this land. They weremet by the defendants, who hare apparently been in possession ofthe land for a long time; and, without going further into facts, Imay say that the Commissioner has found that the plaintiffs admitthat the land was in fact in the possession of the defendantsindependently of, and adversely to, the rights of Naina Mohamadu.The Commissioner,, however, says that, although the title was inthe plaintiffs, and although the defendants have had what may becalled adverse possession for more than ten years, the period ofprescription has been interrupted by the fact that during theearlier part of the defendants’ occupation Naina Mohamadu wasbeyond seas, and that until recently the plaintiffs have beenminors, and therefore were protected by the provisions of thePrescription Ordinance (section 14 of Ordinance No. 22 of 1871).The Commissioner thereupon gave judgment for the plaintiffs.
He has, however, overlooked the principle which is laid down inthe case of Sinnatamby v. Vairavy (1 8. C. G. 14), in which it washeld by a Court of three Judges that, where prescription had runand the matter had not been, taken out of the Ordinance byany act or other incident, the objection was nob sound that theminority of the heir had defeated the Ordinance, because itappeared that the bond in question had been made by theplaintiffs’ mother; that the Ordinance had begun to run againsther; and that its progress was not arrested by the fact that herchild (the plaintiff) was at her death a minor. The decision wasgiven under the Prescription Ordinance, No. 8 of 1834, section 10,the terms of which are very much the same as those of section 14 ofOrdinance No. 22 of 1871. The Court held that they could not readthe clause so as to stop the running of prescription already startedby reason of the disability of a person succeeding to the right ofthe obligor.
In this case Naina Mohamadu did not leave the country until1892, and the Ordinance must be taken to have begun to runagainst him for some time at all events; and, on the principleenunciated in the case to which I have referred, the mere factthat his succession passed to the plaintiffs on his death, andthat they were minors at the time, cannot arrest the progress ofprescription. It being admitted, therefore, that the defendants havebeen in adverse possession for more than ten years, the progress ofthe Prescription Ordinance has not been arrested by the minorityof the plaintiffs, or the absence of their father beyond the seas.
I think the Commissioner’s decision is wrong and must bereversed.
SINNATAMBY v. MEERA LEVVAI