1951 Present: Dias S. P J. and Gratiaen J.

LUCIA PERERA,

Appellant, and MARTIN PERERA, et al.,
Respondents

S. C. 371-D. C. Gampaha, 159/13,462

Prescription-As between constructive trustee and beneficiary-Distinction between assertion of title and acknowledgment of title-Trusts Ordinance (Cap. 72), ss. 82, 84. 98.

A bought an undivided one-fourth share in a land at the request of his daughter B who had paid the purchase price, but, contrary to his mandate, he obtained from the vendor a conveyance in which A, and not B, was named as the purchaser. Shortly thereafter, B, under the belief that she was the absolute owner, went into occupation of a divided allotment which represented the undivided share and remained in occupation of it for over 19 years on the basis that she was entitled to possession in her own right. During that period A, whenever he was requested by B to execute a fresh conveyance in her favour, promised to do so. Subsequently, however, A, without the knowledge of B, conveyed the one-fourth share to C who was, in fact, a bona fide purchaser for value without notice of the trust.

Held, that B had acquired prescriptive title to the land before the date on which the share was conveyed to C and, therefore, her rights were completely protected. The requests of B that A should give her a conveyance of the property did not constitute an acknowledgment of A's rights so as to interrupt B's possession ut dominus.

APPEAL from a judgment of the District Court, Gampaha.

E. G. Wikremanayake, K.C., with T. B. Dissanayake and Christie Seneviratne, for the plaintiff appellant.

H. V. Perera, K.C., with Kingsley Herat, for the defendant respondent.

Cur. adv. vult.

May 2, 1951. GRATIAEN J.-

There was a sharp conflict of testimony in the Court below on certain points of controversy, but our task as an appellate tribunal has been made easier because Counsel have agreed that the learned District Judge's findings of fact should form the basis of our decision.

The plaintiff was the married daughter of the first defendant Abeyeratne. In December, 1925, she had purchased an undivided one-fifth share in certain premises. She thereupon, for convenience of possession as a co-owner, went into occupation of a divided allotment, bearing assessment No. 25B, on which a thatched house had previously been erected by her predecessors in title. In March, 1926, she desired to purchase an additional one-fourth share in the larger land. At that time she and her husband were living in Kadugannawa, and she therefore requested her father Abeyeratne to negotiate the deal on her behalf. The transaction went through and the agreed purchase price was paid to Abeyeratne by the plaintiff. The understanding between father and

daughter was that the conveyance should, as on the earlier occasion, be obtained in her name, but on March 12, 1946, Abeyeratne, acting contrary to his mandate to this extent, obtained from the vendor a conveyance in which he was named as the purchaser. Shortly thereafter the plaintiff, under the belief that she had now become the absolute owner of this additional share by right of purchase, went into occupation of another divided allotment (bearing assessment No. 25) which represented the undivided share conveyed by the vendor. The premises No. 25 and 25B adjoined one another, and continuously from that date she regarded herself as entitled to occupy both blocks of land on the basis that she was entitled to the separate undivided shares purchased in 1925 and 1926 respectively. Since 1935 these two divided allotments were treated for purposes of assessment and in all other respects as one consolidated block, and it is very significant that on some date between the years 1930 and 1935, the plaintiff and her husband pulled down the old thatched house standing on lot No. 25B and erected in its place a more substantial dwelling house the foundati