Abdul Majeed V. Ummu Zaneera

1959 Present: Basnayake, C. J., K. D. de Silva, J., and
H. N. G. Fernando, J.

ABDUL MAJEED, Appellant, and UMMU ZANEERA et al., Respondents

S. C. 260-D. C. Colombo, 6970/M

    Co-owners-Prescriptive possession by a co-heir-Ouster-Fideicommissum for four generations-Computation of period-Prescription against remainder-men and minors-Burden of proof-Prescription Ordinance (Cap. 55), ss. 3, 13- Evidence Ordinance, s. 114.

On an issue of prescriptive title raised between co-heirs in respect of a property valued at Rs. 75,000 (land 12.61 perches in extent and a building covering practically the whole land)-

Held, by DE SILVA, J., and H. N. G. FERNANDO, J. (BASNAYAKE, C.J., dissenting), that proof that one of the co-heirs let out the premises and appropriated to himself the entire rent (which was not much) for thirty-seven years was insufficient, by itself, .to bring the case within section 3 of the Prescription Ordinance.

Per DE SILVA, J.-" In considering whether or not a presumption of ouster should be drawn by reason of long-continued possession alone, of the property owned in common, it is relevant to consider the following, among other matters :-

(a) The income derived from the property.

(b) The value of the property.

(c) The relationship of the co-owners and where they reside in relation to the situation of the property.

(d) Documents executed on the basis of exclusive ownership ".

Per H. N. G;. FERNANDO, J.-" Firstly, section 3 (of the Prescription Ordinance) imposes two requirements: 'undisturbed and uninterrupted possession' and 'possession by a title adverse or independent'; secondly the question whether the second of these requirements are satisfied does not arise unless the first of them has been proved. It is clear from the judgment of the Privy Council in Corea's case (15 N. L. R. 65) that a co-owner in possession can satisfy the second requirement in two different modes :-

(a) by proving that his entry was not by virtue of his title as a co-owner, but rather of some other claim of title; in fact Their Lordships, in Corea's case, rejected the finding of the Supreme Court that the possessor had entered as sole heir of the former owner;
(b) by proving that, although his entry was by virtue of his lawful title as a co-owner, nevertheless he had put an end to his possession in that capacity by ouster or something equivalent to ouster, and that therefore and thereafter his possession had been by an adverse or independent title ".

Considered also :-(i) Duration of a fideicommissum lasting for four generations. It would be only the fifth generation of fideicommissary heirs Who would inherit the property free of the fideicommissum, (ii) Burden of proof in cases falling under the proviso to section 3 and section 13 of the Prescription Ordinance in relation to the issue of prescription against remainder,
Men and minors.

APPEAL from a judgment of the District Court, Colombo. The facts appear from the judgment of de Silva, J.

H. V. Perera, Q.C., with H. Ismail, for 13th Substituted Defendant- Appellant.

M. S. M. Nazeem, with M. T. M. Sivardeen, for Plaintiff-Respondent.

S. Sharvananda, with M. Shanmugalingam, for 4th to 8th Defendants- Respondents.

H. W. Jayewardene, Q.C., with M. Rafeek and L. O. Seneviratne, for 9th Defendant-Respondent and for 10th Substituted Defendant- Respondent.

H. Mohideen, with S. M. Uvais, for 12th Defendant-Respondent

Cur. adv. vult.

December 11, 1959. BASNAYAKE, C.J.-

This is an action under the Partition Act, No. 16 of 1951, instituted on 17th September 1953. The main contest at the trial was whether deed No. 260 dated 16th July 1872 attested by J. W. Vanderstraaten created a fideicommissum which endured for four generations. The learned District Judge held that the deed created a fideicommissum and learned counsel for the 13th defendant-appellant, who may conveniently be referred to hereinafter as the appe

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