Pathumma V. Sinna Lebbe Et Al.,

1915. Present  : Wood Renton C.J. and Shaw J.

PATHUMMA v. SINNA LEBBE et al.

101-D. C. Matara, 6,209.

Prescriptive possession-Interruption by minority of heir.

When prescriptive possession has once commenced to run against the owner of land it will not be interrupted by his death and minority of his heirs.

THIS was a partition action in which the plaintiff and the 11th defendant claimed the land sought to be partitioned as purchasers at a Fiscal's sale in execution against the original plaintiff and defendants. The owner of the land was Kungi Bawa. The original plaintiff was his widow, and the original defendants were his children and their husbands and the guardian of five other minor children of Kungi Bawa by his second wife. On the occasion of the marriage of his daughter, the 1st defendant to the 2nd, Kungi Bawa executed a kadutam dealing with half of the land in dispute, dated December 5, 1899, in her favour. On the marriage of another daughter, the 3rd defendant to the 4th, he. executed in her favour a second kadutam, dated December 3, 1906, dealing with the other half. The plaintiff and the 11th defendant claimed the entire property by virtue of their purchase at the Fiscal's sale. The 6th to the 10th defendants were minors at the date when each of the kadutams was executed. At the trial, and for the purposes of this appeal, the plaintiff and the 11th defendant limited their claim to the one-eighth share conveyed by Kungi Bawa under the kadutam of December 5, 1899; the daughter to whom that share was conveyed was Pattumanatchia. The ground of the waiver was that there had not been sufficient time to acquire title by prescription to the other half share passing under the kadutam of December 3, 1906. The learned District Judge held that the kadutam of December 5, 1899, was merely an unexecuted promise to convey, and not a conveyance in itself; and further, that prescription would not begin to run against the minors until they had attained majority. The plaintiff and the 11th defendant appealed against these findings.

Arulanandam (with him A. St. V. Jayewardene), for plaintiff and 11th defendant, appellants.-The District Judge is wrong in holding that the kadutam granted by Kungi Bawa to his daughter, the 1st defendant, operated as a promise to transfer the land at some future date. It was an out-and-out grant. There is evidence that the 1st defendant and her husband entered into possession on the execution of the kadutam, and that they lived on the land in

dispute. Therefore prescription in favour of the 1st defendant began to run during the lifetime of Kungi Bawa. The subsequent minority of the heirs will not interrupt the running of prescriptions. (See Sinnatamby v. Vairavy.1[(1876) 1 S. C. C. 14.]) Sinnatamby v. Vairavy2[(1902) 6 N. L. R. 50.] was followed by Moncreiff A.C.J., in Sinnatamby v. Meera Levvai.2[(1902) 6 N. L. R. 50.]

The District Judge has failed to observe the important distinction , between the facts of the present case and that reported in Koch's Reports at pages 61 and 68, where the kadutam was executed, not by the original owner, but by the eldest son of the original owner. At the time the prescription claimed began to run, the persons who clamed adversely later were minors. Counsel also cited Walter Pereira 804 and 805.

J. S. Jayewardene, for respondents.-Section 15 of the Prescription Ordinance. No. 22 of 1871, deals with disabilities affecting claims other than those for lands, and is purposely differently worded from section 14 which relates to landed property. Counsel adopted the observations of Pereira J. at page 805 of his book.

Sinnatamby v. Vairavy1[(1876) 1 S. C. C. 14.] was decided on the older Prescription Ordinance, and is no authority now. Counsel cited 2 Ch. D. 233 and 62 L. T. Reports 796.

A. St. V. Jayewardene, in reply.-The English cases cited are more in favour of our contention.

Cur.

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