t 318 )
July 7,1910 Present: Mr. Justice Wood Renton and Mr. Justice Grenier.
TIMOTHY DAVID v. IBRAHIM.D. G., Puttalam, 2,100.
Prescription—Proofofprescriptivetitle ina thirdparty who was not a party
to. thejase,orpredecessorin titleoftheparty settingup prescription
—OrdinanceNo. 22 of1871,s.$—Muhammadanwife—femme
■sole—Husbandcannot bring actionon behalf ofwife without
In order that, a person may avail himself of section 3 of OrdinanceNo. 21 of 1871, possession for the prescriptive period must – b«shown on the part of the person litigating or of those under whomhe claims.
Where plaintiff who had paper title to a land sued defendant, aMuhammadan, for declaration of title, ejectment, and damages, anddefendant setupa prescriptive titleonthe part of hiswife, and
alleged that he was in possession of the land on behalf of his wife,but did not get his wife added as a party to the action,—
Held, (1) That it was not open to defendant under the circum-stances to establish his wife’s prescriptive title.
That itwasforthe defendanttohave got his wife made a
party to , thecaseifhe wanted tosetup her title byprescription.
That under Muhammadan Law the husband is in no Bense the
legal representativeofthe wife forthepurpose of suchproceedings
HE facts of this case are stated in the judgment of WoodRenton J. as follows: —
In this case the. plaintiff-respondent sued the defendant-appellantfor damages on account of alleged trespass on land claimed by therespondent as his, for declaration of title, and for the ejectment ofthe appellant from the land in suit. The appellant in his answerpleaded that the land belonged to his wife, Mira Natchia, and hersister Balkis Umma, under a deed of gift executed in their favourby their father, and that these two persons were no parties to theaction. He proceeded, however, in the next paragraph of the .answer, to set up a prescriptive title in himself, in virtue of the termsof section 3 of Ordinance No. 22 of 1871. The learned DistrictJudge held, that the paper title to the land in question was in therespondent, but he went on to indicate that if the proper partieshad been before him, he should have been disposed to uphold theplea of prescription in so far as the appellant’s wife is concerned,but’pointed out, however, that the wife was no party to the case,
( 319 )
and on the authority of the decisions in Terunnanae v. Menika 1 ^vly 7+1910
and Kirihamy Muhandirama v. Dingiri Appu1 the respondent’sAlaim of title could not be defeated by proof of prescriptive title, inla third party, who was not a party to the case, or the predecessor'in title of such party. On these grounds be gave judgment infavour of the respondent in regard to the .questions of title andejectment, with damages and costs. He was careful to explain,however, that his decision in no way prejudiced the rights of theappellant's wife, whatever these might be.
The defendant appealed.
Sampayo, K.C. (with him Tiaaeveraainghe), for the defendant,appellant.—The defendant is not precluded from showing that theperson under whom he claims is lawfully entitled to the property.
Defendant is entitled to prove the prescriptive title of a thirdperson incidentally to justify his occupation. Plaintiff should havejoined the person disclosed as owner in the answer as a party tothis action, and got a decree against him if he could.
The case relied on by the learned District Judge, Terunnanae v.
Menika,1 has been commented upon by Hutchinson C.J. in PedroCosta v. Fernando;3 and it was held in the latter case that in anaction under section 247, Civil Procedure Code, the execution-creditormay prove the prescriptive title of the execution-debtor.
Bawa (with him Zoysa), for the respondent, not called upon.
July 7, 1910. . Wood Renton J.—
His Lordship stated the facts, and continued:—
It would appear that the appellant and his wife are Muhammadans;and it is therefore clear law that the husband is in no sense the legalrepresentative of the wife for the purpose of such proceedings asthese. On this point I may refer to the case of Saibo Dorey v.
Ahamado Lebbe Marikar* where it was held that a Muhammadanhusband, on the ground that his wife is practically a femme aole asregards her property, has no right to sue for her dowry withouteither joining the wife or having obtained her special authority.
So far as this case is concerned, the appellant’s claim to have theexpress plea of prescription, which is set out in the plaint, and.which formed the subject of one of the issues at the trial, upheldto the extent of defeating the respondent’s claim, consists in thefact, if it be a fact, that,as healleges in his evidence, hehasbeen
possessing the lands on his wifes behalf. In view of thedecisions
to which I have just referred, I do not think that such possession
1 (1895) 1 A1. L. A. 200.* (1908) 11. N. L. R. 210, 4 B<d. 26.
' * (1903) 6 N. L. R. 197.* Ram 72-76, 309.
( 820 )
July 1, .1910 ** sufficient. The case of Kirihamy Muhandirama. v. Dingiri Appu
in particular bearsa strong resemblance to thepresent.It was a
RmraoNJ.case >n which certaindefendants,who weresued inan action
—ret vindicatio, set upa plea ofprescriptivetitle onbehalf of
IkreidvPersons who hadnotbeen madeparties tothe proceedings. It
Ibrahim was held by Mr. Justice Moncreifi, Sir Charles Layard concurring,that this cannot be done, and the law was laid down in generalterms that in order that a person may avail himself of section 3 ofOrdinance No. 22 of 1871, possession for the prescriptive periodmust be shown on the part of the person litigating or of those underwhom he claims. It is not, and it cannot be, contended here thatthe appellant in an way claims under his wife; and under thesecircumstances I think that the District Judge was right in theconclusion at which he had arrived. I do not see that there is anyhardship in that decision, apart from the question of law which thisappeal has Taised. The appellant was fully aware of his wife’s title,and he not only pleaded it, but alleged that his wife and her sisterwere necessary parties to the action. It was in his interest thatthey were necessary parties, for he had set up a plea of prescriptionso as to defeat the respondent’s title, and, in my opinion, it wasfor him to see that they were brought into the suit. On thesegrounds I would dismiss the appeal with costs.
Grenier J,—I agree.
TIMOTHY DAVID v. IBRAHIM