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GITHOHAMY et al. v. KARANAGODA et al.
NLR56V250
1954 Present : De Silva J. and
Fernando A.J.
M. GITHOHAMY et al., Appellants, and E. R. KARANAGODA et al.
Respondents
S. C. 69 (Inty.)-D. C. Colombo, 5,889 P.
Co-owners-Amicable
partition-Plan made by a co-owner-Its value as evidence of divided
possession--Prescription-Ouster.
A plan made at the instance of a co-owner purporting to cause a division of the
common land of which the other co-owners apparently had no notice does not form
the basis of divided possession. Exclusive possession on the footing of such a
plan does not terminate the co-ownership of the land, and no presumption of an
ouster can be inferred from such possession.
" When a land is amicably partitioned among the co-owners it is usual to execute
cross deeds among themselves or at least that all the co-owners should sign the
plan of partition. "
APPEAL
from a judgment of the District Court, Colombo.
Sir Lalitha Rajapakse, Q.C., with G. D. C. Weerasinghe, for the 2nd and
3rd defendants appellants.
Ivor Misso, for the plaintiffs respondents.
N. E. Weerasooria, Q.C., with Ivor Misso and S. W. Walpita, for the 1st
defendant respondent.
Cur. adv. vult.
December 21, 1954. DE SILVA J.-
This is an appeal from the judgment of the Additional District Judge, Colombo,
in a partition action. The 1st plaintiff who is a minor appearing by his
next-friend the 2nd plaintiff instituted this action for the partition
of the land called lot B of
Delgahawatte in extent 2 roods, 17 . 12 perches and depicted in plan No. 1034
marked X. The devolution of title was set out in the plaint in the following
manner. By right of purchase on deed P1 of 1891 Sadiris became the owner of the
subject matter of this action. He by deed P3 dated 24.8,1908 sold it to Maraya
Tennekoon who by deed P4 of 1911 sold it to Podihamy and she by deed P6 of 1927
transferred the same to Sumanawathie who died leaving as her heirs her husband
Richard and one child Edmund the 1st plaintiff, a minor. Richard by deed 1D4 of
1940 sold his half share to the 1st defendant. Githohamy, the 2nd defendant and
her son Reginald the 3rd defendant intervened in the action and stated that the
corpus sought to be partitioned was an undivided portion of a larger land in
extent about 1 acre, of which they claimed undivided shares. According to them
the larger land of 1 acre originally belonged to Don Lewis by right of purchase
on deed 2D1 of 1886. Don Lewis was married in community of property to one
Ilona Alwis who died leaving as her heirs her
husband and 2 children, namely the 2nd defendant and Peiris. Thereafter Don
Lewis contracted a marriage with Caralina and he died leaving as his heirs his
widow Caralina and the 2 children already mentioned. Accordingly, each of the
two children became entitled to 3/8 share while the widow got 1/2 share. Peiris
by deed 2D6 of 1910 conveyed an undivided half of half to Alwis the husband of
the 2nd defendant. Thereafter Peiris died unmarried and his balance rights, that
is to say, 1/8 share devolved on his sister the second defendant. Alwis died
leaving as his heirs his widow the 2nd defendant and 8 children the 3rd and 5th
to 11th defendants. Caralina sold her rights on P1 to Sadiris whose interests
have now devolved on the 1st plaintiff and the 1st defendant in equal shares.
Thus according to the contesting defendants the 2nd, 3rd and 5th to 11th
defendants are jointly entitled to a 3/4 share of the larger land while the
balance 1/4 belongs to the 1st plaintiff and the 1st defendant. At the trial the
plaintiff and the 1st defendant conceded that the larger land belonged to Don
Lewis the father of the 2nd defend ant. The plaintiff and the 1st defendant,
however, contended that on P1 Caralina had conveyed a half share of the larger
land and that her successors in title exclusively possessed lot B in lieu of the
undivided half share conveyed on P1 and had acquired a prescriptive title to lot
