ARUNASALAM CHETTY . v. BILINDA et al

097-NLR-NLR-V-24-ARUNASALAM-CHETTY-.-v.-BILINDA-et-al.pdf


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Present: Ennis and Schneider JJ.
ABUNASALAM CHETTY a. BILINDA et al.
€8—D. C. Chilaw, 6,831.
Possession under an invalid lease for over ten years—Does lessee acquirea title by prescription to possess the land as lessee for the remainderof the period of lease?
Principal and Agent—Power of attorney—Emphyteusis.
Defendant took on lease from the attorney of N a land for twentyyears. The attorney did not sign the lease in the manner prescribedby the power of attorney, but signed his own name, and the, leasewas consequently not valid. H after ten years sold the land to theplaintiff.
Held, that as the defendant had possession' under the lease /orover ten years, he was entitled to possess the land for the remainingperiod by right of prescription.
Bawa, K.C. (with him H. V. Perera)f for the appellant. .
Pereira, K.C. (with him £. W. Jayawaxfa&e and Samarawickreme),for the respondent.
October 11, 1922. Ennis J.—
This was an action for declaration of title to 11/24 of a land. Itis common ground that this 11/12 belonged to one Ismail Natchia,and that- some of it was conveyed to her on March 3, 1902. Shewas in India, and gave a power of attorney to her brother MadanaKunni to act for her in Ceylon. Madana Kanni oh March 9, 1902,leased the land for twenty years to his son-in-low MohammaduMohideen, who died leaving as his heir one Ibrahim Saibo, who sub-let the land to the defendant. On June 6, 1905, Ismail Nachiaconveyed this 11/12 to Alima Utiama and Sara Umma . AlimaUmn» then conveyed 11/21 t» the (duatiff on January 23; 1917.
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1MB.On July* 7, 1919, Ismail Natchia conveyed 11/12 to the added
E-ImT j parties in the action. The learned Judge found in favour of the
’ defendant, and the plaintiff and the added parties present separate
aPPea^s f,om that judgment.
BUfnda With regard to the plaintiff’s appeal, the. only point argued wasthat the lease to Mohammadu Mohideen was bad, inasmuch asMadana Kanni had not executed it in the manner prescribed by hispower of attorney, but had signed it in his own name, and not in thename of Ismail Natchiu. This contention appears to be good. Thecases on the point were summed up in Evartx v. Chellamma * fromwhich it would seem that there is no particular form of words requiredto be used in signing a document under a power of attorney, providedthat the act was done in the name of the principal. In this case theact was not done in the name of the principal, and the signaturestands alone, and is that of Madana Kanni. There is, however, nooccasion to go into this point in detail, as Mr. Pereira, for the defend-ant, has argued that the defendant is entitled to retain possessionfor the remainder of the term of the lease by right of prescription.This contention appears to be good. The case of Jayawardene a.Silva 2 decided that it was possible to establish title to the servitudeof emphyteusis. On the analogy of that case, the right to hold aland for a period of years would be an interest- in immovable pro-perty for that term; and here the right was founded upon a writtendocument which though not good as a lease from Ismail Natchiacomplies with the Ordinance relating to frauds. The defendanthas had possession for over the prescriptive period, and has therebyacquired a right to remain in possession until the expiration ofthe term for which it- was his intention to hold and exemplified bythe lease. The defendant's leases were continuous, one from theother. So in this case there can be no argument that he has nothad continuous possession for the prescriptive period. The appealof the plaintiff, therefore, fails.
With regard to the appeal of the added parties, that must alsofail on this finding; for they could not be in possession while thefirst defendant was in possession, and they cannot make thedefendants’ possession their own. I would accordingly dismiss bothappeals, with costs.
Schneider J.—I agree.
Appeal dismissed.
»{1918) 21 N. L. R. /.
* (1915) 18 N. L. R. 269.