104-NLR-NLR-V-15-THEIVANIPILLAI-v.-ARUMUGAM-et-al.pdf
( 358 )
1912.
Present : Lascelles C.J. and Wood Benton J.THETVAMIPILLAI v. ARUMUGAM et al.
110—D. V. Batticaloa, 3,493.
Prescription—Adverse possession—Verbal dower—Possession for over ten years.
Where A made an informal grant of a land to B by way of dowry, and Bentered into possession with the full intention of occupying it as owner andpossessed it for over ten years—
Held, that the possession was adverse, and that he had acquired a prescripttive title to the land.
Lebbe Marikar v. Sainu 2 distinguished.
I
N this action the plaintiff sought to set aside a deed of transfer ofa land dated August 31, 1911, executed by the first and second
defendants in favour of the third. The plaintiff claimed the landby.virtue of a deed of gift dated July 9, 1897; executed by herparentis in her favour and in favour of her husband, KumaraveluMaarimuttu.
The second defendant is the daughter of the plaintiff, and firstdefendant is the husband of the second defendant. These defend-ants alleged that they were married about eighteen years beforedate of action, and that the land was dowried to them by the plaintiff’sfather Veeracutty by word o,f mouth, and they set up title thereto byprescription. The third defendant was the purchaser of the landfrom first and second defendants. The first defendant in giving
> ( 1894) A. C. 670.2 (1907) 10 .V. L. H. 339.
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evidence said:" The land in dispute was given to us in dower. No
deed was executed. The dowry was promised before our marriage.After I married I was let into possession the same year. -1 have been
in possession ever since: Veeracutty, who gave the dower,
put me off, saying:1 Why are you in such haste about a deed? You
are-in possession of the land. Has any one tried to disturb you? ’About six months before we sold to the third defendant we askedthe plaintiff to make a deed in our favour. She said she had to makea pilgrimage* and would come back and execute a deed. She finallyrefused. It was after that that I executed the deed in favour ofthe third defendant. ”
The learned District Judge (G. W. Woodhouse, Esq.) dismissedplaintiff’s action.
The plaintiff appealed.
Bawd, K. C.t for the appellant.—The possession of the first andsecond defendants was not adverse. They were possessing theland as licensees or agents of Veeracutty. Their occupation waspermissive and on sufferance. The first defendant asked for aconveyance from Veeracutty, and from the plaintiff after Veeracutty'sdeath. That clearly shows that he acknowledged Veeracutty wasthe owner. Counsel referred to Nagudu Marikar v. Mohamadu,lOrloff v. Grebe,2 Joseph v. Annappillai and Raphael,* Lebbe Marikarv. Sainu*
J,'W. de Silva, for the first and second defendants, respondents.—The defendants did not possess as agents. They possessed fromthe very beginning as owners. The plaintiff herself has admittedthe ownership of the defendants by not including this land in theinventory of Veeracutty’s estate.
In Lebbe Marikar v. Sainu4 there was a notarial agreement topurchase. The possessor, moreover, was aware that the intendingvendor was expecting to get a Crown grant.
Balasingham, for the third defendant, respondent.—The action isnot maintainable in this form. According to the plaintiff she wasthe owner at the date of the action, and the defendants were inunlawful possession. Under these circumstances, an action quia timetdoes not lie. The action should have been one for declarationof title. The Ceylon Land and- Produce Co., Ltdv. Sevaratna 5relied on by the District Judge, does not apply to the facts of thiscase; there the party in possession brought an action quia timetagainst a person who had obtained a mortgage decree against a thirdperson with respect to t£e land which the plaintiff in the quia timetaction claimed.
i (1903) 7 N. L. R. 91.3 (1904) 5 Tamb. 20.
a (1907) 10 N. L. R. 183.* (1907) 10 N. L. R. 339.
3 (1908) 12 N. L. R. 16; 4 Bah 33.
1912.
Theivani*pillai v.Arumugam
( 360 )
1912. The fact that the first and second defendants hud asked for aTrlkun f transfer from Veeracutty does not show that the possession was nottpillai®. adverse. Where a person who had obtained a prescriptive titleirmwgom wan^3 to get a paper title from the person who holds the paper title,he does not surrender his title by prescription. See observations ofMiddleton J. in Odris v. Mendis.1
The possession in this case was adverse from the very start. Thefirst and second defendants possessed as owners from the date s of thedowry. In Lebbe Marikar v. Sainu2 the possession was that of anagent to commence with.
Bawa, in reply.
Cur. adv. vult.
June 18, 1912. Lascelles C.J.—
This is an appeal from the decision of the District Judge ofBatticaloa that the first and second defendants, who are the thirddefendant’s vendors, have acquired title to the land in dispute byprescription. The question involved is whether the possessionof the first and second defendants is adverse to or independent ofthe plaintiff’s title. The learned District Judge has accepted theevidence that at the time of the marriage of the first and seconddefendants, about seventeen or eighteen years before the date of theaction, the land was the property of the plaintiff’s parents, thegrandparents of the first defendant; that the grandparents informallygranted the field in dispute to the first and second defendants asdower, and that the latter then entered into possession and continuedin possession up to the date of the transfer to the third defendant.The appellant contends that the occupation of the first and seconddefendants was not "of such a character as to enable them to acquiretitle by prescription. If it were the case that the first and seconddefendants entered the property as the agents or licensees of theirgrandparents or of the plaintiff, or that their occupation was merelypermissive or on sufferance, their possession would not be adverse-to and independent of tbe plaintiff’s title in the absence of proofthat the character of their occupation had been changed. But theDistrict Judge has found, and I entirely accept his finding, that thegrandparents intended to give the land to the first and second defend-ants, in the same way that they gave other lands in dower on themarriage of their other daughters, but for some reason they madethe grant informally. On this footing it is difficult to see how thepossession of the first and second defendants can be otherwise thanadverse to and independent of the plaintiff’s title. The land wasgiven to them to keep it for themselves, and they entered it withthat intention. How can their possession be otherwise than adverseto the title of the grantors and their heirs ?
» (1910) 13. N. L. R. 309.2 (1907) 10 N. L. R. 339.
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Amongst other authorities we were referred to Nagudu Marikarv. Mohamadu,1 Orloff u. Qrebe,2 Odris v. Mendis* Joseph n. Annap-piUai and Raphael* and Lebbe Marikar v, Sainu5 Of these, thelast-named case is the only one the facts of which present any realanalogy to the present case. In that case the question was whetherone Meera Lewai Kalender Lewai had acquired title by pre-scriptive possession. This person had entered on the land undera deed which was held not to be a conveyance of the land, butmerely an agreement to sell the land. He was, therefore, held to bea licensee under the grantors of the agreement.
On the facts reported, I confess that I find it difficult to see howan intending purchaser who is given possession with an agreementthat the vendors would convey the land to him when they hadperfected their own title can be regarded as a licensee under thevendor. But it is possible that there is something in the deed ofagreement which may explain and justify that conclusion. Be thatas it may, there is nothing in that decision which need force us to theunreasonable conclusion that where a bride and her husband haveentered into possession of property which has been informally madeover to them by their relations as dower, with the full intention thatthey should occupy it as their own, they merely possess the propertyas licensees or agents or on sufferance under the donors, and cannotacquire prescriptive title by possession. I find it impossible, onthe findings of the District Judge, which are well supported by theevidence, to hold that the possession of the first and second defend-ants was that of agents or licensees, or that their possession wasotherwise than adverse to and independent of the plaintiff’s title.In view of my opinion on the title of the third defendant, it isunnecessary to consider whether the ** action can be justified asa quia timet action. On this ground I would dismiss the appealwith costs.
Wood Renton J.—
I entirely agree. I would only* add that I have examined theoriginal record in Lebbe Marikar v. Sainu3 and find that the agree-ment referred to in the judgments was one of a special character, inwhich the grantee was merely to possess and take the produce tillthe execution of the real transfer deed. The language used by theSupreme Court in Lebbe Marikar v, Sainu5 must, I think, be regardedas limited by the particular circumstances.
Appeab dismissed.
* (1303) 7 N. L. R. 91,3 {1910) 13 N. L, R. 309.
3 (1907) 10 N, L. R. 1834 {1904) 5 Tamb. 90,
5 (1907) 10 N. L, R. 339,
1912.
C.J.
Theivatii*
piUai t>.Ammugam