The facts of this case seem to raise in a very clear and succinctform a question which was discussed, but not decided, in the case ofCorea v. Appuhamy. 2 The decision in that case had a very far-reachingeffect. It ii-i.c. down for the first time, in clear and authoritativeterms, the principles that the possessibn of one co-owner wasin law the possession of the others; that every co-owner mustbe presumed t<- be possessing in that capacity; that it was notpossible for such a co-owner to put an end to that title, and toinitiate a prescriptive title by any secret intention in his own mind;and that nothing short of “an ouster or something equivalentto an ouster ” could bring about that result'. The question wasraised in the argument in that case, and discussed in the judgment,whether in the circumstances of the case, even admitting theseprinciples, an ouster should be presumed from the long-continuedpossession of the co-owner in question. The Privy Council, withoutnegativing the possibility of a presumption of ouster, held that thiswas not a case in which the facts would justify such a presumption.The questions, therefore, to be decided for the purposes of thepresent case are:—
What is the meaning of the principle of the English lawreferred to under the expression “ presumption of ouster ”?
How far is it to be considered as being in force in this Colony?
Do the facts justify its application in the present case?
1 t 1915) 19 N. L. B. 38.*<1912) A. 0.230 ; (1911) 15 N. L. R. 65.
TMekeratnev. Bastion
( 14 ■)
TSltkeratnev. Bastion
The question of the conversion of a possession which in its originis not adverse into an adverse possession has been the subjectof prolonged controversy in our Courts. The case with which ourauthorities mainly deal is that of the possession of a person occupy-ing by the permission or license of the true owner. That case is,however, so closely akin to that now under consideration, namely,that of one co-owner possessing the common property, that thetwo cases may be conveniently discussed together. The principlesgoverning them are identical.
The problem before us is simply a problem of interpretation.What we have to do is to interpret and to apply to these twocases certain words which occur in section 3 of the PrescriptionOrdinance, No. 22 of 1871, namely, “ Proof of the .undisturbed anduninterrupted possession by a defendant in any action, or by thoseunder whom he claims, of lands or immovable property, by a titleadverse to or independent of that of the claimant or plaintiff insuch action (that is. to say, a possession unaccompanied by paymentof rent or produce, or performance of service or duty, or by anyother act by the possessor, from which an acknowledgment of aright existing in another person would > fairly and naturally beinferred) …”
Before addressing ourselves to this question, it would be con-venient to ascertain what was the common law applicable to itbefore this enactment, or those which it replaced, came to beenacted. The principles of the Roman-Dutch law with regard tothese two cases, were as a matter of fact, not the same. With regardto possession by permission or license, a person who so possessesis said to possess precario. This form of possession will be founddiscused in Voet XLIIL, 26. A person who is in possession ofproperty precario cannot prescribe against the owner, however longhis possession may be. A restitutory action in such a case cannever be extinguished:Sic ut ne immemorialis quidem temporis
preescription cesset (Voet XLIII., 26, 3.) In order to initiate aprescriptive title, it is necessary to show a change in the nature ofthe possession (Of Voet XLI., 2, 13.) It is otherwise with regardto possessionbya co-owner.If one co-owneris in exclusive
occupation ofanypart of thecommon property,or even of the
whole of it,fora period ofthirty years, theclaim of other
co-owners for a partition of the property is absolutely prescribed,without the necessity of showing any change in the nature of the
'■ Si tamen unus coheredum res hereditarias totis triginta annissolus suo nomine proprio tanquam suas possederit ; magis est, ut inuniversum deciceps hoc cesset indicium. ” (Voet X., 2, 33.)
See also Struvious X., 2,14; “ Si autem unus ex cohercdibus tantumpossidet res hereditarias communes; tunc alter, qui non possidet, pesttriginta annorum cursum actionem hanc movere nequit. ”
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This distinction is recognized in French law, which in this respectfollows the principles enunciated by Pothier. See Planiol, DroitCivil, vol. III., 234:2.
These are the principles of the Homan and Roman-Dutch law.They are, however, only of historical interest, as it is recognizedthat our Prescription Ordinance constitutes a complete code; andthough no doubt we have to consider any statutory enactments inthe light of the principles of the common law, it will be seen thatthe terms of our own Ordinance are so positive that the principlesof the common law do not require to be taken into account.. Letus, therefore, consider the terms of our own Ordinance.
In the first place, it will be convenient to put aside one part' ofthe enactment which at one* time caused considerable confusion,namely, the words enclosed in the parenthesis: (“ that is to say,a possession unaccompanied by payment of rent or produce, orperformance of service or duty, or by any other act by the possessor,from which an acknowledgment of a right existing in another personwould fairly and naturally be inferred.”)
It was originally thought that these words, which appear for thefirst time in Ordinance No. 8 of 1834, were inserted in order toexplain by way of an illustration the words “ by a title., adverse to,or independent of, that of the claimant or plaintiff in such action.”This was so declared by’ the High Court of Appeal (see Vand.45); and this appears to be the view taken by Chief JusticeMarshall (see Marshall's Judgments 519). Subsequently, how-ever, the words were held to constitute a complete definition. SeeThompson’s Institutes, vol. II., 189:—
“ Sir C. Marshall looked upon the words added in the Ordinance asa partial mid incomplete explanation of the words ‘ adverse title,’leaving it open to the law, as found in English reports and formerdecisions, to complete the explanation when required. But, in1844, the Supreme Court enunciated that the words in the paren-thesis were not only ‘ some explanation,’ but a declaration ofwhat an adverse title is under the Ordinance. The Court, afterrepelling certain decisions, on the ground that they were unfortu-nately found on the general law independent of the expressprovisions of the Ordinance, went on to say: ‘ the Ordinance ofprescription has not simply declared that a possession of ten yearsadverse to, or independent of, that of the claimant shall givea prescriptive title, leaving it to the Court to say what is, in thelaw, an adverse possession; but in the parenthesis in the secondclause of the Ordinance it is also declared what shall be consideredsuch an adverse possession under that Ordinance.’ ” See 6,587,
B. Colombo, No. 4, August 6, 1844.
The same interpretation was also enunciated in the judgment ofthe Full Court in C. R. Batticaloa, No. 9,653, in the year 1870,reported in Vand. 44. So late as 1892 this interpretation was
TiUeheratne-«. Bastion
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T&dceratnev. Bastion
adopted in its most unqualified form, by Burnside C.J. in the caseof Carim v. Dholl1: "In the present case the evidence leads to noother conclusion than that the defendant’s mother entered intopossession of the tenement Out of the charity of the owner, herbrother; that she possessed it by residing in it with her familyalone, without interruption or disturbance from him, for long overthe prescriptive period, perhaps out of sheer benevolence, which hemight have terminated at his pleasure, and during that period shenever paid rent, nor performed service to him, nor did she do anyact" by which his ownership was acknowledged. I take it as beyonddoubt that she acqhired prescriptive title as against him and thoseclaiming under him. ”
Lawrie J., however, in that case refrained from basing his judg-ment on that ground. Thompson in his Institutes further recordsthat this principle was applied in the very question since decided inCore a v. Appuhamy. 2 Speaking with reference to the definition of“ adverse title ” given by the Supreme Court, he says on page 190=" It will be seen from the last of these definitions that, as jointtenants have a unity of title, time, interest, and possession, if onejoint tenant obtains his legal possession of his co-tenant’s share, hecannot^ be said at any time to have a possession inconsistent withthe probability of any just right or title on the part of his co-tenant;and thus, under this old definition, which is that of the general law,no joint tenant could – prescribe against his co-tenant. But theOrdinance is held to introduce a new definition, namely, that tofound adverse title, all that is sufficient is that the possessionshould be unaccompanied with any acknowledgment of a rightexisting in another person. A definition which allows a collateral orjoint tenant to prescribe as well as any other person. Accordingly,in all recent cases the Court has uniformly held that under thatparenthesis there can he no exception drawn in favour of thepossession of one.co-heir, joint tenant, or tenant in common, notbeing adverse to the other, from the tenure of their estates alone;and, looking to the evil arising from the extreme subdivision ofland in the Colony under the existing law of succession, it may bereasonably presumed that, the Legislature intended to annul alldistinctions in law between the possession of such persons andothers.”
All this must now .be considered as superseded by the decision ofthe Privy Council in Corea v. Ajppuhamy (supra), which gave thecoup de grace, if a coup de grace was needed (see per Wendt J. inJoseph v. Annapillai3) to the theory that the words in the paren-thesis-in section 3 were intended as a definition of " adverse title. ”It is only necessary carefully to scrutinize the terms of the sectionto see that that interpretation was untenable. The phrase uponwhich the parenthesis follows is not V adverse title,” but “by a
» (1892) 2 O. L. R. 418.2 (1911) IS N. L. R. 65.
* (1904) 5 Tomb. 20.
( 17 )
title .adverse to or independent of.” It is impossible to refer theparenthesis purely to the words “ adverse to,” it must also bereferred to the words “ independent of ”; and though the paren-thesis might conceivably have been construed as a possible defini-tion of one of the alternatives, it cannot possibly be construed as adefinition of both.
The true explanation of this parenthesis appears to have beenfirst suggested by the late Mr. Justice Walter Pereira on page 888of his Laws of Ceylon (1913 edition), namely, that the parenthesiswas- intended to be explanatory of the expression “ undisturbedand uninterrupted possession ” occurring earlier in the section.This suggestion gives an explanation to the parenthesis whichis grammatically intelligible, and it may be noted that it has- beenexpressly adopted by the Privy Council in Corea v. Appuhamyat 15 N. L. R. 77: “ The section explains what is meant by‘ undisturbed and uninterrupted possession.’ It is ‘ possession un-accompanied by payment of rent or produce, or performance ofservice or duty, or by any other act by the possessor from whichan acknowledgment of a right existing in another person wouldfairly and naturally be inferred.’ ” It is clear, therefore, that theparenthesis has no bearing on the question of the meaning of thewords “ adverse title it may henceforth be left out of accountin the discussion of the question.
The ground being cleared in this manner, it would be seen thatall we have to ask ourselves in this case is, what is the meaning ofthe word “ adverse ”? And that the only question "we have toconsider in any particular case is whether the possession in questionwas “ adverse,” or, if it was not originally adverse, at what pointit may be taken to have become so. It appears to me to a certain1extent unfortunate that the Privy Council in discussing this questionshould have adopted the technical terms of certain rules of theEnglish law of real property -which have now, in effect, beenextinguished by Statute; the more so, as these rules belonged toa department of the English law which was recognized as beinginvolved in the greatest obscurity. It was in connection with- thissubject that Lord Mansfield said: “ The more we read, unless weare very careful to distinguish, the more we shall be confounded.”See Taylor Atkyns v. Horde 1 and 2 S. L. C. (11th ed.), at page 629.
The phrase “ adverse possession ” was not a statutory term inthe English law at all, nor was the word “ ouster.” The Statute ofLimitations passed in the twenty-first year of King James I. didnot contain either phrase. The material part of section 1 of thatStatute (21 James I., c. 16) simply said that “• no person or personsshall at any time hereafter make any entry into any lands, tenements,or hereditaments but within twenty years next after his or theirright or title which shall hereafter descend or accrue to the same.”
»(1757) 2 Burr. 60.
0J.. ”
Ttilekeratnev. Bastiqn
( 18 )
■». Bastian
On this it was held that the-Statute only ran against a true ownerin cases in which at' common law he was reduced to what wasknown as his “ right of entry ”—a highly technical question. Nooccasion to assert a right of entry arose unless there has been an“ ouster.” The term “ ouster ” is itself highly technical.- Thosewho are curious on the subject will find it explained' in WoodRenton’8 Encyclopaedia of the Laws of England, vol. X., 2U-. Itwas considered and treated in old text books under the heads ofdisseisin, abatement, discontinuance, deforcement, and intrusion,terms which are no longer in common use. See 2 8. L.. 0. (11thedition) 651.
The whole subject will be found explained in Mr. William Smith’snote to Taylor v. Horde in Smith’s Leading Cases, from which I willquote the following passage:—
” In order to determine whether the claimant had been out ofpossession under circumstances which would turn his estate to aright of entry, it was necessary to inquire in what manner theperson who had been in the possession during that time held. Ifhe held in a character incompatible with the idea that the freeholdremained vested in the claimant, then …. it followed thatthe possession in such character was adverse. But it was otherwiseif he held in a character compatible with the claimant’s title.”
As I have said, it would probably have been better if in Ceylonwe had been relieved of this technical and antiquated phraseology.The word “ ouster ” is unknown to our local law, and does notspontaneously convey any idea to the mind. It would be well, Ithink, that we should drop the word ” ouster,” and that, instead ofasking whether there has been an “ ouster,” we should ask ourselvessimply whether.the possession in question was or has become adverse.And it will be sufficient for this purpose to adopt the definition givenin Smith’s Leading Cases that adverse possession ” is “ possessionheld in a character incompatible with the claimant’s title.’,’
What, then, is the real effect of the decision in Corea v. Appuhamy(supra) upon the interpretation of the word “ adverse ” withreference to cases of co-ownership? It is, as I understand it, thatfor the purpose of these cases the word ” adverse ” must, in itsapplication to any particular case, be interpreted in the light ofthree principles of law:—'
(i.) Every co-owner having a right to possess and enjoy the wholeproperty and every part of it, the possession of one co-ownerin that capacity is in law' the possession of all.
(ii.) Where the circumstances are such that a man’s possessionmay be. referable either .to an unlawful act or to a lawfultitle, he is presumed to possess by virtue of the lawful title,(iii.) A person who has entered into possession of land in onecapacity is presumed to cohtinue to possess it in the samecapacity.
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It will be seen that the first of these principles is a principle ofsubstantive law; it is established by numerous authorities in thelaw of 'F.ngland. See Ford v. Orey,1 Gulley v. Doe.3 There iB alsoadequate, though not very extensive, authority for the principle inour own reports. See the cases cited in the argument in Corea v.Appuhamy before the Privy Council.3 The principle is not peculiarto the law of England, arid may be found in Pothier. See Planiol,Droit Civil, vol. III., a. 2342.
The second and third of the above principles are presumptions,t.a., they are principles of the law of evidence. Jt is the third ofthese principles, namely, that a person who has entered into thepossession of land in one capacity is presumed to continue topossess it in the same capacity, which has been the basis of ourlocal decisions on this subject, both as regards tenants in commonand as regards possession by licensees. Thus, it was the foundationof the judgment of Lawrie J. in Jain Carim v. Pakeer* where hesaid: " .. the party claiming adversely to the possessor
must allege and prove that the possession was not ut dominus. Ifhe succeeds in proving that the possession began otherwise than utdominus, then the burden of proof is shifted, for, to use the words ofRough C.J., which have often been quoted with approval in thisCourt: ‘ It being shown that the possession commenced by virtueof some other title such as tenant or planter, the possessor is to bepresumed to have continued to hold on the same terms until hedistinctly proves that his title has changed.’
It has been enunciated in a series of judgments of Wendt J.,which are often quoted as authorities for the proposition, e.g.,Orloof v. Orebe,s Joseph v. Annapillai,s Perera v. Menchi Nona,7 andit was recognized by the decision of the Privy Council in NagudaMarikar v. Mohammadu.* The same principle is embodied inthe oft-quoted Roman law maxim: neminem sibi ipsum causampossessions muturce posse (Voet XLI., 2, 13). It is also embodiedin Art. 2240 of thevCode Napoleon: “ On ne peut point se changera soi-meme la cause et le principe de sa possession and in a furtherArticle, viz., 2231: Quand on'a commence a posseder pour autrui,on est toujours presume posseder au mime titre, s’iln’y a preuve ducontraire.”
The effect of this principle is that, where any person’s possessionwas originally not adverse, and he claims that it has becomeadverse, the onus is on him to prove it. And what must he prove?He must prove not only an intention on his part to possess adversely,but a manifestation of that intention to the true owner againstwhom he sets up his possession. The burden he must assume is, in
TiUekerafaev. Bastion
11 Salk. 286.
(1840) 11 Ad. & E. 1008.
(1912) A. C. 230.
4 (1892) 1 S. C. R. 282.
(1907) 10 N. L. B. 83.
(1904) 5 Tomb. 20.
7 (1908) 3 A. C. R. 84.
(1903) 7 N. L. R. 91.
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TiOekeratne*. Bastion
fact, both definite and heavy, and the authorities have been accus-tomed to emphasize its severe nature. Thus, it is sometimes saidthat he must prove an “ overt unequivocal act ” (per Wendt J.in Perera v. Menchi Nona *). I do not think that this principle is putanywhere more forcibly than in the Indian case of Jogendra NathRai v. Baladeo Das .* The whole judgment is one of great interest,but appears, perhaps to allow somewhat undue emphasis to theAmerican authorities on the subject. I quote from page 969: —
“ Much stronger evidence, however, is required to show anadverse possession held by a tenant, in common than by a stranger;a co-tenant will not be permitted to claim the protection of theStatute of Limitations unless it clearly appears that he hasrepudiated the title of his co-tenant and is holding adversely tohim; it .must further be established that the fact of adverseholding was brought home- to the co-owner, either by informationto that effect given by the tenant in common asserting the adverseright, or there must be outward acts of exclusive ownership ofsuch a nature as to give notice to the co-tenant that an adverse. possession and disseisin are intended to be asserted; in other words,in the language of Chief Justice Marshall in MacClung v. Ross 3:A silent possession, accompanied with no act which can amount toan ouster or give notice to his co-tenant that his possession is adverse,ought not td be construed into an adverse possession merepossession, however exclusive or long-continued, if silent, cannotgive one co-tenant in possession title as against the other co-tenant;see Clymer v. Dawkins, 4 in which it was ruled that the entry andpossession of one tenant in common is ordinarily deemed to be theentry and possession of all the tenants, and this presumption willprevail in favour of all, until some notorious act of ouster or adversepossession by the party so entering is brought home to theknowledge or notice of the others; when this occurs, the possessionis from that period treated as adverse to the other tenants.”
One cannot read this statement of the law without being impressedwith the artificial nature of the position which it embodies, if itsprinciple is accepted without qualification. The presumptions ofthe law of evidence should be regarded'as guides to the reasoningfaculty, and not as fetters upon its exercise. Otherwise, by anargumentative process based upon these presumptions, we mayin any particular case be brought to a conclusion which, thoughlogically unimpeachable, is contrary to common sense. It is thereverse of reasonable to impute a character to a man’s possessionwhich his whole behaviour has long repudiated. If it is round thatone co-owner and his predecessors in interest have been in possessionof the whole property for a period as far back as reasonable memoryreaches; that he and they have done nothing to recognize the
»(1908) 3 A. C. R. 84..» (1820) 5 Wheaton 116.
* (1907) I'. L. R. 35 Cal. 961.4 (1845) 3 Howard 674.
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minima of the other co-owners; that he and they have taken thewhole produce of the property for themselves; and ihat theseco-owners have never done anything to assert a claim to any shareof the produce, it is artificial in the highest degree to say that sucha person and his predecessors in interest must be presumed to bepossessing all this time in the capacity of co-owners, and that theycan never be regarded as having possessed adversely, simply because.no definite positive act can be pointed to as originating or demon-strating the adverse possession. Where it is found that presumptionsof law lead to such an artificial result, it will generally be found thatthe law itself provides a remedy for such a situation by meansof counter-presumptions. If such a thing were not possible, lawwould in many oases become out, of harmony with justice andgood sense.
In this very instance the English law provided a corrective ofthe principles which it has developed by means of 'a counter-presumption, that is to say, a “ presumption of ouster.” Theleading case on this point is Doe v. Prosser,1 where Lord Mansfieldsaid:—
“ It is very true that I told the jury they were warranted by thelength of time in this case to presume an adverse possession andouster by one of the tenants in common of his companion; andI still continue of the same opinion …. The possession of .
one tenant in common, eo nomine, as tenant in common, can neverbar his companion; because such possession is not adverse to theright of his companion, but |n support of their common title; andby paying him his share, he acknowledges him co-tenant. But if,upon demand by the co-tenant of his moiety, the other denies topay and denies his title, saying he claims the whole and will notpay, and continues in possession, such possession is adverse andouster enough …. In this case no evidence whatever
appears of any account demanded, or of any payment of rents andprofits, or of any claim by the lessors of the plaintiff, or of anyacknowledgment of the title in them, or in those under whom theywould now set up a right. Therefore, I am clearly of opinion,as I was at the trial, that an undisturbed and quiet possessionfor such a length of time is a sufficient ground for the jury topresume an actual ouster …. ”
The same principle was expounded by Lord Kenyon in anothercase, in which it was held, nevertheless, that the facts did notwarrant the application of the principle: Peaceable v. Read 2—
“ I have no hesitation in saying where the line of adversepossession begins and. where it ends. Primd facie,- the possession ofone tenant in common is that of another; every case and dictumin the books is to that effect. But you may show that one of themhas been in possession and received the rents and profits to his1 (1774) 1 Cowp. 217.2 (1801) 1 East 569, at page 574.
Ttiteteratnev. Bastion
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THUkeratne«. Bastion
own sole use without account to the other and that the otherhas acquiesced in this for such a length of time as may induce ajury under all the circumstances to presume an actual ouster ofhis companion. And there the line of presumption ends”
The only real question that we have to decide in this case, apartfrom the question of fact, is whether the principle of this counter-presumption is in force in. Ceylon. As I have said, the judgmentof the Privy Council in Corea v. Appuhamy (supra) referred to thisprinciple, but did not definitely declare that it must be consideredin force in Ceylon; as a corollary of the general principle which thatcase enunciated. It does not appear to me that there can be anyreasonable doubt on the subject. The case for declaring thisprinciple to be part of the law of Ceylon is indeed, overwhelming.It was referred to before the decision in Corea v. Appuhamy byMiddleton J. in the Full Court case of Odris v. Mendis.1 It hasbeen recognized and applied in a series of the judgments of thisCourt since that decision, namely, William Singho v. Ram Naide,x;Mailvaganam v. Kandiya,3 A. 8. P. v. Cassim* and Samara v.Duraya.5 It has been adopted in India. See Gangadhar v. Para-shram,* Amrita Ravji Rao v. Shridhar Narayan.'' It is also supportedby various passages in the old Roman-Dutch law authorities.These passages all relate to a special sort of adverse possession.Adverse possession as between co-owners may arise either byabsolute exclusion of'one of the co-owners or, by the conversion ofundivided shares into divided shares. The principles governingthe two cases are the same. One co-owner who takes part of theproperty as his share from that moment possesses that shareadversely to the co-owners. There are numerous references to befound in the Roman-Dutch law authorities to the effect that whereco-owners are thus found to have occupied the land during -a'prolonged period, some mutual arrangement for – this purpose mustbe presumed from lapse of time. For example: —
Observandum tamen prcesumi inter Jratres divisionem factarneo casu, quo res hereditarias aut communes diutino tempore posseder-unt, fructus percipiendo, tributa consueta solvendo, sumptusque aliosfaciendo suo nomine. Idque ex praesumpta voluntate, ratione ianti tem-poris, quod facit prcesumi intervenisse ditisionem.” Perez, III, 37, 4.
“Posset hie queeri, An Saltern possit divisio prcesumi interfratres, qui longo tempore res hereditarias aut communes separatimpossederunt, fructus percipendo, sumptus impendendo suo nomine?Recte id aliqui affirmant, idque ex preesumpta voluntate, ratione tantitemporis quod facit prcesumi intervenisse requista.” Zoesius, X., 3, 3.
Cf. also Sande Dec., Fris. IV., 11, 3.
111910) 13 N. L. R. 309.4(1914)2Bed.Notes40.
» (1915) 1 C. W. R. 92.‘(1913)2Bed.Notes70.
• (1915) 1 C. W. R. 175.’(1905)I.L.R. 29 Bom. 300.
» (1908) I. L. R. 33 Bom. 317.
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It may be taken, therefore, that this principle is part of the lawof the Colony, and that it is open to the Court, from lapse of timein conjunction with the circumstances of the case, to presume that apossession originally that of a co-owner has since become adverse.
What does such a presumption mean ? Does it mean that theCourt must find as a fact that some definite transaction took placebetween the parties by which the claim of the person now settingup the adverse possession was recognized, or that some formalintimation was made by him to the other party, or that someunequivocal and notorious act on his part brought the claimpalpably to the notice of the other ? I do not think so. Thepresumption based upon lapse of time was a benevolent presump-tion, and often assumed the character of a legal fiction. The bestknpwn applications of the principle are the presumption of a lostgrant and the presumption of the dedication of a highway. LordMansfield, speaking generally of presumptions of this character inEldridge v. Knoot,l says: “There are many cases not within thestatute where from a principle of quieting possession the Court hasthought that a jury should presume anything to support a lengthof possession.” (See also Taylor on Evidence, paragraph 313 (a).)
With regard to presumptions of lost grants, the English Courtswent to most extraordinary lengths. See the judgment of Cockbum
J. in Angus v. Dalton,2 where it was said, at page 105: —
“ The boldness of judicial decision stepped in to make up defectsin the law which the supineness of the Legislature left uncaredfor ;…. but after the Statute of James, user for twenty
years was—here, again, without any . warrant of legislativeauthority—held to be sufficient to raise this presumption of a lostgrant, and juries were directed so to find in cases in which noone had ever existed, and where the presumption was known to bea mere fiction.”
Cockbum C.J., indeed, declares that the Prescription Act wasintroduced to put an end to the “ scandal on the administration ofjustice which, arose from this forcing the conscience of juries.”Similarly, with regard to the presumption of the dedication of ahighway. Long user of a highway by the public was considered.evidence of an intention to dedicate by the owner, but it was notnecessarily thought that he had really intended to dedicate it. Hewas considered to have acted in such a way that it was proper totreat him as though he had so intended. See per Lord Ellenboroughin Rex.v. Lloyd3; " If the owner of the soil throws open a passage,and neither marks by any visible distinction that he means topreserve all his rights from passing through it by positive prohibition,he shall be presumed to have dedicated it to the public. Although
1 (1714) 1 Cowp. 215.2 (1877) 3 Q. B. D. 85.
* (1808) 1 Camp. 260.
C. j.
TOUkeratnov. Bastion
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TiUekeratnev. Bastion
t,he passage in question was originally intended only for privateconvenience, the public are not now to be excluded from it, afterbeing allowed to use it so long without any interruption.”
In applying this principle to Ceylon, therefore (though it is notnecessary to go to the lengths which Cockburn C.J. criticised inAngus v. Dalton (supra) ), I would apply it in the same spirit, andI think that the principle enunciated by Lord Mansfield in Doe v.Prosser (supra) should be interpreted in this sense. It is, in short, aquestion of fact, wherever long-continued exclusive possession byone co-owner is proved to have existed, whether it is not just andreasonable in all the circumstances of the case that the partiesshould be treated as though it had been proved that that separateand exclusive possession had become adverse at some date morethan ten years before action brought.
I will now proceed to apply these principles to the fact of thepresent case. The claim under consideration is a claim by theplaintiffs to a one-eigth share of certain lands which belong toa family descending from one Simon de Silva. Simon de Silvahad five sons: one admittedly died without issue; three—juwanisAndris-, and Selenchi—are represented by the defendants;- and theplaintiffs claim to have acquired the interest of the fourth, oneAllis. Allis is said to have married a woman called Abohamy,and to have had one son, Babappu, who in 1893 purported tosell his interest to Don Nadoris TiUekeratne. TiUekeratne died in1901, and the plaintiffs claim by inheritance from him.
The question turns on the relationship of Babappu to the family.His paternity is not denied, but his legitimacy is put in question.Allis and Juanis, another of the sons of Simon de Silva, are said bythe plaintiffs to have married sisters. It is asserted by the defend-ants, on the other hand, that the connection of AUis with Abohamywas an irregular one. After the death of Allis, Abohamy left thelocality and married a man in another village, where she settled,her child Babappu being at that time about eight years old. Thedate of the birth of Babappu is not definitely fixed, but it. may beconjectured that he was born about the year 1856, and that thismigration to the other viUage consequently took place about 1864.
The learned District Judge has come to the conclusion thatalthough the evidence of a lawful marriage is not whoUy satisfactory,yet it may be taken that Babappu was the lawful son of Allis,though he adds that “it is extremely doubtful whether he wasrecognized as a legitimate son.” He is said at one time to havestayed with his uncle Juanis, who had married his mother’s sister.This visit is consistent with the connection between his mother andAllis having been an irregular one, but it is difficult to reconcilethe visit with the finding of the District Judge that he was a legiti-mate son, whose legitimacy was not recognized by the family. Inthe year 1885 he was associated with another member of the family,
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.namely, the first defendant, a son of Juanis, as a recipient of aCrown grant. There is a presumption in favour of marriage, andthough, as I have said, there are difficulties in the view taken bythe District Judge, I think, on the whole, his conclusion should beaccepted, namely, that though Babappu wa's the legitimate son ofAllis, he was not accorded this status by the family.
Ti^e property in question was plumbago land. From the year1877 until the present time it has been worked only intermittentlyand through the medium of lessees. But the only branches ofSimon de Silva’s family who have dealt with the land have beenthose connected with- the three sons of Simon de Silva abovementioned: Juanis, Andris, and Selenchi. The extent to whichthe land was worked is not very clearly defined; but Babappu, whois still alive, says that at all times be received his ground share,and that after his sale to Tillekeratne in 1893 he continued toreceive that share, with the acquiescence of Tillekeratne, or at anyrate, without any objection on his part. This evidence the learnedDistrict Judge rejected. He does not believe that Babappu’sclaim to the share was ever recognized by the other branches of thefamily, pr, indeed, that it was ever made. We must take it, therefore,that Babappu was a person whose status in the family was, to saythe least, doubtful, and that from the year 1864 he lived in anotherlocality, and neither asserted nor received any recognition of anyclaim to a share of the land in dispute. Accepting the suppositionthat h’e was born in 1856, he would have attained his majority in1877. The period, therefore, for which the claim now asserted hasbeen dormant is no less than forty years; and it is a very significantfact that Tillekeratne, who purported to have acquired his sharein 1893, became insolvent in 1897, and did not include this land inthe schedule of his assets.
Tillekeratne«. Bastion
These being the facts, it is very difficult to say that any proofhas been given of any overt unequivocal act manifesting to Babapputhe fact that the possession of his uncles, and those through whomthey claim, was adverse to his claim. Their attitude was a negativeone; they ignored him, and according to their own evidence, theywere barely aware of his existence, if aware of it at all. On theother hand, it would be doing violence to the ordinary ideas ofmankind to say that the possession of these branches of the familymust be presumed to have been that of co-owners with Babappu,because no definite positive act can be pointed to as initiating orbringing home to him a repudiation of the claim which he now .makes. It would, moreover, be contrary to equity that a personpossessing a doubtful status in the family, who has lived apart fromit for over a generation in another locality, should be permittedthrough the medium of a sale to a speculative purchaser to revivehis obsolete pretensions, and to assist those claiming through thatpurchaser to invade the family inheritance. ■ The case is one in
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Titlokeratnev. Bastion
which in my opinion, the Court ought to presume that the posses-sion of the three branches of Simon de Silva’s family, who actuallydealt with the land, became adverse to the claim of Babappu atsome point more than ten years prior to the institution of this action.
I would, therefore, affirm the decision of the learned District Judge,and dismiss the appeal, with costs.
Shaw J.—
The Judge has found that Babappu, under whom the appellantclaims, was the legitimate son of Allis, who was admittedly a co-owner of the land. The appellants are, therefore, entitled to a sharein the land, unless Babappu's co-owners have prescribed againsthim and his successors in interest.
The precise time when Allis died, and Babappu succeeded to hisinterest, does not appear from the evidence; but it must havebeen over fifty years ago, and the Judge has found as a fact thatneither Babappu, his vendee Tillekeratne, nor. the appellants haveever had any possession of Allis’s share, which has, since thedeath of Allis, always been possessed by his co-owners and theirsuccessors. These findings of fact appear to be justified by theevidence, and I see no reason why we should differ from them onappeal.
The Judge has also decided that Babappu’s co-owners haveprescribed against him and his successors in interest, and hasaccordingly dismissed the plaintiff’s action. The nature of theholding of a co-owner of land and the circumstances under which aco-owner can commence to acquire a prescriptive title against otherowners under Ordinance No. 22 of 1871 is authoritatively laiddown by the Privy Council in the case of Corea v. Appuhamy.'That case shows that the possession of one co-owner is in law thepossession of all, and that a person who has entered into possessionin his capacity of co-owner must be considered to continue topossess in the same capacity until he has by some ouster of hisco-owners, or by something equivalent to an ouster of them changedthe character of his possession and commenced to hold adverselyto them. In effect, the case appears to decide that the position ofa co-owner in Ceylon is the same as it was in England prior tothe Statute 3 & 4 W. 4. c. 27.
The question for our consideration in the present case is whether,from the uninterrupted sole possession of certain co-owners extendingover a large number of years, and the conduct of the other co-ownersin not asserting any right to possess, a presumption of an ousterby the co-owners in possession and the commencement of an adverseholding by them can be presumed, and if so, whether in the presentcase such a presumption should be drawn. The judgment in Corea
» (1911) IS N. L. R. 65.
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v. Appuhamy 1 does not pretend to lay down any rule as to themanner in which the “ ouster or something equivalent to an ouster ”may be established by evidence.
In England, under the previously existing law, it was held thatjuries might properly be directed that they could presume an ousterof the other co-owners after an uninterrupted possession for a numberof years. An example of this is found in Doe v. Prosser,a whereuninterrupted possession for thirty-six years was held to justifysuch a presumption, and that an ouster might have been so presumedis recognized in the judgment in eorea v. Appuhamy.1
see no reason why similar presumption should not be made insuitable cases in Ceylon.
That such a presumption may be made appears to have beenrecognized by the Court in Appuhamy v. Rah Naide,3 and byMiddleton J. in his judgment in the Full Court case of Odris v.Mendis,4 and it has also been recognized in India in the case ofBahavant v. Bhal Ghandra.s Presumptions of this character seemto be authorized by section 114 of the Evidence Ordinance of 1895.In the present case, although Babappu, according to his ownevidence, knew that his co-owners had during his minority granteda mining lease in respect of the land, he never, when he attainedmajority, attempted to assert any right to his share, and, althoughhe purported to sell to Tillekeratne in 1895, his vendee neverpossessed, nor was the land included in the inventory of his estateon his death in 1901, and his heirs, the present appellants, made noattempt to assert any right'to possess until the year 1916.
It appears to me that the correct presumption to draw from thelong uninterrupted possession of Babappu’s co-owners, and theconduct of himself and his vendee, is that Babappu and his vendeeknew that Babappu’s co-owners were holding adversely to him, andthat they had, in fact, ousted him from possession.
would therefore dismiss the appeal, with costs.
De Sampayo J.—
have had the advantage of perusing the judgment of the ChiefJustice, and I agree with his conclusions of law and fact. A pre-sumption of adverse possession may, I think, be drawn from thefact of exclusive possession by one co-owner extending over sucha long period as to render non-possession by the other co-ownerinexplicable, except upon the theory of acquiescence in an adverseclaim. In the present case the circumstances appear to me toamount to something more than presumption. Babappu, fromwhom the plaintiffs claimed title, appears not to have been reallyrecognized as a legitimate son of Allis by the rest of the family.
* (1915) 1 C. W. R. 92.
4 (1910) 13 N. L. R. 309.
* I. L. R. 24 Bom. 300.
Shaw J.
TRUkeratnev. Bastion
1 (1911) 15 N. L. R. 65.* (1774) 1 Cotoper 217.
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Da SampayoJ.
Tillekeratnev. Bastion
He must have known that he was being intentionally excludedfrom possession. He was not so well oft as to make a share of theproduce of the land of no importance to him, and yet, accordingto the finding of the District Judge, which there is no Reason toquestion, he never did at any time claim or take his alleged share.Moreover, the nature of the possession is significant. The land hadno plantation worth considering; it was plumbabo land, and thedefendants dug plumbago therein both by themselves and throughlessees all throughout. While a co-owner may without any inferenceof acquiescence in an adverse claim allow such natural produce asthe fruits of trees to be taken by the. other co-owners, the aspect ofthings will not be the same in the case where valuable minerals aretaken for a long series of years without any division in kind of money.The effect of this becomes still more pronounced where the co-owner, being also a co-heir, has alienated his share to a stranger,and the stranger, too, is kept out. Babappu sold his alleged sharein 1893 to one D. N. Tillekeratne, whose widow and children theplaintiffs are, and it is proved that Tillekeratne never possessedthe share he purported to buy. He appears to have owned andworked a plumbago pit on another land in the neighbourhood, andit is remarkable that, a plumbago merchant as he was, he neverclaimed or took a share of the plumbago, which to his knowledgewas being dug from this land by the defendants and their lessees.The plaintiffs perceived the force of this circumstance, and un-successfully attempted to prove that Babappu had with the consentof Tillekeratne taken a share of the produce of few plantain bushesand trees on the land.
I think that the circumstances sufficiently justify the inferenceof what was alluded to by the Privy Council in Corea v. IserisAppuhamy1 as “ something equivalent to an ouster, ” and that thischange, even if it did not take place in the time of Babappu, mustbe regarded as having occurred at all events in 1893, when he soldto Tillekeratne. In my opinion the defendants have succeeded inestablishing their claim to the whole land by prescription, and Iagree that the appeal should be dismissed, with costs.
Appeal dismissed.
111912) A. O. 230.