1922      Present : Ennis and Schneider JJ.

SILVA v. LETCHIMAN CHETTY.

386-D. C. Negombo, 14,106.

Agreement to sell land belonging to vendor and minor children-Consideration paid-Possession by vendee-Adverse possession- Prescription.

A agreed to sell to B by deed in 1893 his share (one-twelfth) and the share of his two minor children (one-twelfth) of a garden, and undertook to get the minors to convey when they came of age. The deed recited that the two shares of the garden were given over to B for possession and improvement from the date of the execution of the agreement, and that A had received the full consideration. B had possession ever since 1893 to date of action. The minors attained the age of majority, twenty-one and fifteen years, before date of action, but did not make any claim during these years.

Held, that B's possession was adverse, and that he had acquired title by prescription to the share of the minors.

THE facts are set out in the judgment. The deed of 1893 was as follows:-

No. 30,525.

Know all men by these presents that I, Warnakulasuriya Alensokuttige Dominikko Fernando of Second Division of Kurana, Bolawalana, within Negombo gravets, as the first party, and I, Warnakulasuriya Ichchampullige Mariano Fernando of Third Division of Kurana, Bolawalana, within said gravets, as the second party, bound ourselves and hereby declared that the Pokunabodewatta at Third Division of Kurana, Bolawalana, within Negombo gravets, Western Province, is bounded, &c, in extent about three roods of the one-sixth share of this land and plantations a just half share.

2. The Kosgahawatte at Third Division of Kurana, Bolawalana aforesaid, is bounded, &c., of this land and plantations a just half share of undivided one-sixth share.

And the said undivided two portions of garden belonging to the two minor children of me, the first party, and who are under my protection, named Warnakulasuriya Alensokuttige Sopi Nona Fernando and ditto Anthony Fernando, I have agreed to sell for Rs. 22 .50, Ceylon currency, to second party, and have received the said amounts in full from second party.

So, within sixteen years from this day, or when the two children reach the age of signing a deed when the second party executes a deed of transfer for the said property and gives notice, I, the first party, promise to get the two children sign it within eight days of that notice, and it is agreed that the two parties should bear the costs of execution ; and if I, the first party, fail or neglect to do so, I promise to pay the second party as fine, at the rate of fifty cents for each day elapsing after the said eight days, and to get the said business done.

And the Madangahakumbura, now made into a garden at Second Division of Kurana, Bolawalana, within Negombo gravets, Western Province, is bounded, &c, in extent about one acre, and the undivided half share of me, the first party of this land and the plantations thereof I bound as mortgagee and security to secure the fulfilment of the said agreement, and I promise not to lease the plantations of the said portion of garden-until the settlement of this agreement; and the said two portions of garden are hereby given over to the second party for possession and improvements from this day; and for the due fulfilment of these conditions, we for ourselves, and our heirs and assigns or lawful representatives, bind ourselves, and in proof hereof we signed three writings as this on February 7,1893.

H. V. Perera, for plaintiff, appellant
.
Samarawickreme (with him C. O. de Silva), for respondents.

March 16,1922. ENNIS J -

This was a partition action. The land sought to be partitioned originally belonged to Manuel Dabrera and his wife Agida. Manuel died, whereupon his widow became entitled to a half, and each of his three children-Juana, Ana Maria, and Barbara-to a one-sixth. Juana married one Dominico, and died leaving two chil