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1914 Supreme(SC) 79
Privy Council
Robson, Mersey , Justice Lords Macnaghten, JJ.
Charles Edward Victor Seneviratne Corea -Appellant
Versus
Mahatantrigey Iseris Appuhamy and another -Resopndent
On Appeal from The Supreme Court of Ceylon
Decided On : 14-12-1914
Surridge , Blyth, Hartly , Dutton, Blyth, Horace Miller, Atherley-Jones, Barrington-Ward, Mullis, P.O. Lawrence Dornhorst
Possession by a co-owner is deemed possession for all co-owners and cannot be adverse if it can be referred to a lawful title. To establish prescriptive title against co-owners, proof of ouster or an equivalent act is required; secret intention is insufficient.
Headnote:(A) Partition Ordinance of 1863, Section 18; Ordinance No. 22 of 1871, Section 3 - Prescriptive title - Undisturbed and uninterrupted possession - Possession by a co-owner - Whether possession by one co-heir can be deemed adverse to other co-heirs without proof of ouster - Possession is never considered adverse if it can be referred to a lawful title.
(B) Law of Limitation - Possession of lands by a tenant in common - The possession of any one of the co-proprietors is the possession of the others - To terminate such joint possession and establish an adverse title, there must be an ouster or something equivalent to ouster - A secret intention to exclude co-owners is insufficient in law to establish adverse possession.
Facts of the case:
An intestate died without a will, leaving lands to his brother and three sisters, who took as tenants in common. The brother entered into possession of the lands. Years later, the brother settled the land on his son, reserving a life estate for himself. One of the sisters brought an action for partition, and subsequently, the rights of the sisters were assigned to a third party who continued the action. The defendant brother claimed a prescriptive title under the relevant Ordinance, asserting that his possession had been undisturbed and uninterrupted for over ten years and was adverse to the other claimants.
Findings of Court:
The court found that the defendant entered the property as a co-heir with a lawful title. Consequently, his possession was, in law, the possession of all co-owners. There was no evidence of ouster or any act equivalent to ouster that would have converted his possession into adverse possession. The court further held that the defendant's long-continued possession did not justify a presumption of ouster, especially given the circumstances.
Issues: Whether the possession of a co-heir, who entered the property under a lawful title, can be considered adverse to other co-heirs in the absence of proof of ouster, and whether long undisturbed possession allows for a presumption of ouster.
Ratio Decidendi: Possession is not considered adverse if it can be referred to a lawful title. Since the defendant was a co-heir, he and the other heirs had unity of title and possession. The possession of one tenant in common is the possession of all. No secret intention to cheat co-owners can end this joint possession; only an actual ouster or an equivalent act can establish a separate, adverse title. In the absence of such ouster, the prescriptive period cannot run against co-owners.
Result: Appeal allowed.
Legal Category Hierarchy
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property law
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land law
- partition
- adverse possession
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land law
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practice and procedure
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evidence
- perjury
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evidence
Lord Macnaghten :-
This seems to be a very plain case.
The action out of which the appeal has arisen was an action for partition of certain lands, part of the estate of one Elias Appuhamy of Galmuruwa, in the district of Chilaw.
Elias died in July, 1878. He was never married and he died intestate. His heirs were his brother Iseris and three sisters. Taking by descent the heirs took as tenants in common in accordance with the provisions of Section 18 of the Partition Ordinance of 1863.
Elias came originally from Baddegama, in Galle district, about 120 miles from Chilaw. His father and mother and the rest of his family lived there apparently in somewhat humble circumstances. Elias prospered in Chilaw. After a time he was joined by his brother Iseris, who says that he left home alone when he was ten years old, though he was probably three or four years older at the time. The two brothers kept a shop or store in Chilaw, in which they seem to have been jointly interested. But it is admitted that the lands in question in this action were the separate property of Elias.
At the time when Elias died, Iseris was in gaol under sentence of imprisonment for assault and robbery.
The property being thus left derelict, possession was taken by officials of the District Court. It must be presumed that such possession was taken for the benefit of the persons rightfully entitled.
Iseris came out of gaol in December, 1878. Thereupon, or soon afterwards, he entered into possession of the intestate's lands. The circumstances under which the officials of the Court relinquished possession in his favour do not appear in evidence. It seems, however, to be immaterial whether there was an order of the Court on the subject or whether the officials who must have known who Iseris was, and must have been aware of his relationship to the intestate, retired in his favour without any specific directions. The Trial Judge says that they were "ejected" by Iseris, but no statement or suggestion to that effect is to be found in the evidence.
Some time after the death of Elias two of his sisters made their way to Chilaw. They seem to have been kindly treated by Iseris, who gave them small sums of money from time to time and allowed them to obtain provisions from his shop without payment. Indeed, one of the sisters named Balohamy lived for a long time in a house on Medawatta, which was one of the plots or parcels of land belonging to Elias and part of his estate.
In 1907 Iseris by deed settled the intestate's land on his son, reserving a life estate. This action on the part of Iseris was the talk of the neighbourhood. Balohamy, who was then the only survivor of the three sisters, became alarmed. Lawyers were consulted. Under their advice Balohamy brought an action for partition against Iseris. The action was confined to Medawatta, on the score, it was said, of expense, in order to save the stamp or fee which would have been payable if the whole estate had been the subject of the action. Then Iseris turned her out of her home. Being without means, Balohamy and other co-proprietors in the same interest sold their rights or claims to the plaintiff Corea, who was Balohamy's legal adviser and advocate. He brought this action against Iseris. Iseris' son was afterwards made a party to the action.
Iseris in his defence claimed the benefit of Ordinance No. 22 of 1871 entitled "An Ordinance to amend the laws regulating the prescription of actions."
It is not disputed that by that Ordinance, or by an earlier Ordinance of 1834 which was repealed by the Ordinance of 1871, the old law was swept away. The whole law of limitation is now contained in the Ordinance of 1871.
Section 3 enacts that
"proof of the undisturbed and uninterrupted possession by a defendant in any action......of lands or immovable property by a title adverse to or independent of that of the claimant or plaintiff in such action...for ten years previous to the bringing of such action shall entitle the defendant to a decree in
