Orloff Et Al. V. Grebe Et Al.

[IN REVIEW.]

Present : Sir Joseph T. Hutchinson, Chief Justice,. Mr, Justice
Wendt, and Mr. Justice Middleton.

ORLOFF et al. v. GREBE et al

D. C, Kandy, 14,759.

Prescription-Possession with consent-Adverse possession-Overt Ordinance No. 22 of 1871.

    Where a person enters into occupation of property belonging to another with the latter's consent and permission, he cannot acquire title by prescription to such property, unless he gets rid of the character in which he commenced to occupy by doing some overt act showing an intention to possess adversely to the owner.

Judgment of the Privy Council in Naguda Marikar v. Mohammadu (1) followed.

    HEARING in review of the judgment of the Supreme Court in appeal, dated 13th October, 1904, preparatory to an appeal to His Majesty in Council.

    Elliott, for the defendants, appellants.

     Bawa, for the plaintiffs, respondents.

Cur. adv. vult.

    27 th March 1907. WENDT J.-

   This is a hearing in review, preparatory to defendants appealing to His Majesty against the judgment of this Court pronounced by my brother Middleton and myself on 13th October, 1904. We dismissed defendant's original appeal and affirmed the judgment of the District Court of Kandy, which was in favour of the plaintiffs as prayed.

    The plaintiffs are the executors of the late Edward Theodosius Grerlits, who died on 13th August 1877, leaving a last will dated 28th June of the same year, and they seek to recover from the defendants, who are man and wife, the house No. 47, Trincomalee street, Kandy. On the pleadings it is admitted (save as to a difference of extent to which I shall presently refer) that Gerlits became owner of the house by purchase on the conveyance dated 1859 pleaded by the plaintiffs. The defendants, however, deny that he died possessed of it, and say that his three sisters and the second defendant (the daughter of one of the sisters) had by possession adverse to him acquired a prescriptive title to it. They next say that if the testator died possessed of the property, his " heirs-at-law " were his three sisters and the children of a deceased sister; that the first

Foot Notes:

(1) (1903) 7 N. L. R. 91.

defendant, having been married in community of estate to one of those children (now deceased) became entitled to an undivided one thirty-second share of the property in question; and that the second defendant, a daughter of one of the three sisters, Mrs. Frederica Perera, is entitled by inheritance from her mother to one-fourth share thereof. Lastly, the defendants say that they and Mrs. Perera had had prescriptive possession as against the plaintiffs until the mother's death in 1900, and that thereafter the defendants have continued in such possession up to date, and they accordingly claim a title under the Prescription Ordinance.

    The last will, after directing the payment of debts and funeral and other expenses, proceeded as follows (clause 2):

    " I give and bequeath to my dearly beloved sister Frederica, now the wife of Mr. J. H. Perera, to my unmarried sisters Anesta Gerlits, Margaret Cecilia Gerlits, and to my niece Selina Ashbourne, all the issues, rents, and profits arising from my real and personal property situate at Kandy, Nuwara Eliya, and Badulla, or wheresoever situate, and all the interest and dividends arising and accruing from the moneys now laid out at interest on the mortgage of real property situate at Kandy and at Badulla in equal shares and proportions, and I direct that the same be paid to them by my executors during the term of their natural life, and after the death of any one or either or all of the said legatees I direct that the share of the rents and interest aforesaid of the legatee so dying should be distributed among the widows, orphans, and really deserving destitute people of the Burgher community according to the discretion and judgment of my executors herei

Click Here to Read the rest of this document