028-NLR-NLR-V-61-T.-LESIN-Appellant-and-P.S.-KARUNARATNE-Repondent.pdf
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SANSOjKfX, J.—Laain o. K.arunaratne
1959 Present:Sansoni, J., and H. N. G. Fernando, J.
T. LESIN, Appellant, and P. S. KARTJISFARATNE, RespondentS. G. 188—D. C. Balapitiya, 1,013JP
Prescription—Donation of immovable property-—Reservation of life interest in donor-—Donee's position as remainder-man—Prescription Ordinance (Cap. S3), provisoto section 3.
Where a person donates immovable property reserving to himself a life interest,prescription does not begin to run against idle donee until the death of the donor.In such a case, the donee, as remainder-man, is entitled to the benefit of theproviso to section 3 of the Prescription Ordinance, and adverse possession againstthe donor cannot be counted against the donee.
Appeal from a judgment of the District Court, Balapitiya.
Sir LaUta Bajapakse, Q. G., with D. G. W. Wickremesekera, for the 3rdDefendant-Appellant.
A. G. Nadarajah, with J. N. David, for the Plaintiff-Respondent.
Cur. ado. vult.
June 22, 1959. Sansoni, J.—
It is common ground that one Noisa was entitled to the lots A and B idepicted in plan X : they now form the subject matter of this partitionaction. His rights devolved on Babun Appuhamy in 1913, and the latterby deed P4 of 1939 donated the land to his son William, reserving tohimself a life interest. William by deed P 5 of 1950 transferred theland to the plaintiff and the 1st defendant.
The 3rd defendant claimed that lot A belonged solely to him by pres-criptive possession. TTis case was that Charles, one of the six childrenof Noisa, was allotted this lot by arrangement among the six children,land Charles in 1950 sold the land to the 3rd defendant.
The learned District Judge held on the evidence that the land waspossessed by Charles from about the year 1943 as the plaintiff himselfhad admitted. Since this action was filed in 1950, such possession wouldin any event be insufficient to enable the 3rd defendant to set up a titleby prescription.
The appellant’s counsel urged that he could show that possession byCharles started even prior to 1943, but he did not suggest that such pos-session began prior to the execution of the deed of gift P 4 : even if itdid, so long as he had not been in adverse possession against BabunAppuhamy for 10 years prior to the execution of deed P 4, the 3rd defen-dant cannot claim title by prescription. The reason is that from the
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date of the execution of the deed P 4 no possession by Charles or any otherperson could affect the rights of William, who was entitled to the benefitof the proviso to section 3 of the Prescription Ordinance, Cap. 55. Underthat proviso, prescription begins to run against parties claiming estatesin remainder or reversion only from the time when such parties acquirea right of possession to the property in dispute. William was such aparty, and since B&bun Appuhamy did not die till 1944 William had noright of possession till then.
The appellant’s counsel relied on the well-known rule that where timehas once begun to run, no subsequent disability will suspend the operationof the statute. But this is not a case of disability. We are dealing with aparticular provision relating to future interests. The proviso enacts thattime in such cases runs only from the actual date when the claimant’stight to possession has been infringed, for the right of action does notaccrae to him till then. Whether the prior interest is that of a fiduciary,. a lessee, or a donor who has a life interest, the fidei commissary, thelessor and the donee must wait till that interest terminates before hecan sue. Of course, prescription can run against those who have thepresent interest, that is the fiduciary, the lessee and the donor, but onlyagainst them.
The proviso was to be found even in the earlier Prescription OrdinanceNo. 8 of1834 and it has been applied in numerous cases. In one of the earliestreported cases 1 the plaintiff and the defendant were children of a deceasedproprietor who also left his widow surviving him. The widow had a lifeinterest which only ceased on her death within 10 years of the filing of theaction. As the plaintiff acquired the right of possession only on herdeath, it was held that the defendant could not acquire a prescriptivetitle against the plaintiff. The proviso was sought to be applied also inNonai v. Appuhamy 3 in the case of a donation which reserved a lifeinterest. But the difficulty there was that there had been no valid accep-tance of the donation, and in such a case the donee could not be said tohave an estate in remainder or reversion.
might refer finally to Geddes v. Vairavy 3 which was the case of afidei commissary. The moment the fidei commissary’s right to possessionaccrues, the term of prescriptive possession must begin over again, eventhough the fiduciary may have lost his right of possession through per-mitting an outsider to possess the land adversely to him. As Wendt J.said in that case, an owner can render nugatory the possession of atrespasser by creating a fidei commissum even after the trespasser hashad possession for nine years.
would therefore dismiss this appeal with costs.
N. G. Fukstasdo, J.—I agree.'
1 (1842) Morg. Dty. S28.
Appeal dismissed.3 f 1919) 21 N. L. .R. 165.
8 U906 9 N, L, B. 128.