076-NLR-NLR-V-53-LUCIA-PERERA-Appellanrt-and-MARTIN-PERERA-et-al.-Respondent.pdf
GRATIAEN J.—Lucia Perera c. Martin Perero
347
1951Present: Dias S.P.J. and Gratlaen J.LUCIA PERERA, Appellant, and MARTIN PERERA, el al.,
Respondents
S. C. 371—D. G. Gampaha, 159/13,462
Prescription—As beLu'ccn constructive trustee and beneficiary—Distinction betweenassertion 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 hisdaughter 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 namedas the purchaser. Shortly thereafter, B, under the belief that she was theabsolute owner, went into occupation of a divided allotment which representedthe undivided share and remained in occupation of it for over 19 years on thebasis that she was entitled to possession in her own right. During that periodA, whenever he was requested by B to execute o 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 forvalue without notice of the trust.
. Held, that B had acquired prescriptive title to (he land, before the date onwhich the share was conveyed to -C and, therefore, her rights were completelyprotected. The requests of B, that A should give her a conveyance of theproperty did not constitute an acknowledgment of A’s rights so as to interruptB's possession ut dominus.
Appeal from a judgment of the District Court, Gampaha.
E. G. Wikremanayake, K.G., with T. B. Dissanayake and ChristieSeneviratne, for the plaintiff appellant.
V. Perera, K.C., with Kingsley Herat, for the defendant respondent.
Cur. adv. vvlt.
May 2, 1951. Gratiaen J.
There was a sharp conflict of testimony in the Court below on certainpoints of controversy, but our task -as an appellate tribunal has beenmade easier because Counsel have agreed that the learned DistrictJudge’s findings of fact should form the basis of our decision.
The plaintiff was the married daughter. of the first defendant Abeye-ratne. In December, 1925, she had purchased an undivided one-fifthshare in certain premises. She thereupon, for convenience of possessionas. a co-owner, went into occupation of a divided allotment, bearingassessment No. 25B, on which a thatched house had previously beenerected, by her predecessors in title. In March, 1926, she desired topurchase an additional one-fourth share in the larger land. At thattime she and her husband were living in Kadugannawa, and she thereforerequested her father Abeyeratne to negotiate the deal on her. behalf.The transaction went through and the agreed purchase price was pud toAbeyeratne by the plaintiff. The understanding between father and
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G-EATIAEN J.—Lucia Perera v. Martin Perera
daughter was that the conveyance should, as on the earlier occasion,be obtained in her name, but on March 12, 1946, Abeyeratne, actingcontrary to his mandate to this extent, obtained from the vendor aconveyance in which he was named as the purchaser. Shortly there-after the plaintiff, under the belief that she had now become the absoluteowner of this additional share by right of purchase, went into occupationof another divided allotment (bearing assessment No. 25) which re-presented the undivided share conveyed by the vendor. The premisesNo. 25 and 25b adjoined one another, and continuously from that dateshe regarded herself as entitled to occupy both blocks of land on . thebasis that she was entitled to the separate undivided shares purchasedin 1925 and 1926 respectively. Since 1935 these two divided allotmentswere treated for purposes of assessment and in all other respects asone consolidated block, and it is very significant that on some datebetween the years 1930 and 1935, the plaintiff and her husband pulled■down the old thatched house standing on lot No. 25b and erected in itsplace a more substantial dwelling house the foundations of which stillstand not only on lot 25b but on lot 25 as well.
I return now to the circumstance that the conveyance of March 12,1926, had been obtained by Abeyeratne in his own name instead of thatof his daughter. This complication first came to her knowledge somemonthe later, and when he was taxed with it he plausibly explainedthat this had been done merely for convenience because she, the truepurchaser, had not been able to be present at the Notary’s office at thetime of the conveyance. The explanation was accepted, and Abeyeratnepromised from time to time to execute a fresh conveyance in favour ofhis daughter. Relations between father and daughter were extremelycordial at the time, and, procrastination being a not uncommon character-istic of our race, his failure to implement his obligations in the matterwas not regarded by his daughter as having any sinister significance.Abeyeratne died pending the present action and before he could explainhis behaviour in the matter. It would therefore be uncharitable, andit is certainly unnecessary, for us to decide that his action in having theconveyance made out in his own name was in the first instance actuatedby improper motives. Be that as it may, it is not possible to takea lenient view of his conduct 19 years later. On March 6, 1945, he secretly,and without the knowledge of his daughter, conveyed the one-fourthshare for valuable consideration to the second defendant. As soon asthis transaction came to the plaintiff’s .notice, she sued her father and thesecond defendant in this action to vindicate her title to this share.
Thelearned DistrictJudge has heldthat,althoughAbeyeratne’s
legal estate in the share had been held by him subject to a constructivetrust in favour of the plaintiff, the second defendant was a bona fidepurchaser for value without notice of the trust. He was thereforeprotected by the provisions of section 98 of the Trusts Ordinance in sofar as the plaintiff’s claim was based on the footing of a trust. To thisextent the learned Judge’s view was clearly right.
Mr.Wikremanayake contends thattheplaintiffis entitled
to succeed in the action notwithstanding her inability to relyon a constructive trust in her favour. Her claim is that she had acquired
(SRATIAEN J.—Lucia Perera t>. Marlin Perera
349
prescriptive title to the land before the date on whioh the share wasconveyed to the second defendant. On this issue too the learned Judgeheld against the plaintiff, but his judgment does not indicate the groundson which he arrived at the conclusion. The view I have formed is thatMr. Wickremanayake’s contention must prevail in view of the strongfinding on fact in her favour on all the questions which seem to me tobe material to the issue of prescription.
Let me shortly recount the relevant facts. In 1926 the plaintiff,believing herself to be not only the beneficial but the absolute owner ofthe undivided one-fourth share in question, went into occupation of thedivided allotment of land represented by that share, and remained inoccupation of it for over 19 years on the basis that she was entitled topossession in her own right. It therefore follows that, on the expiryof 10 years from the date of the conveyance of March 12, 1926, sheacquired prescriptive title to the premises not only against the originalvendor but also as against her father who, by acting contrary to hismandate, had acquired under the conveyance only the “ bare bones ”of the legal estate. At the time of the purported sale to the seconddefendant in 1945, the plaintiff had already become the absolute ownerof the share and Abeyeratne had no title which he could effectivelyconvey to the second defendant. The present case seems to be in-•distinguishable in principle from the ruling' of this Court in Silva v. deZoysal. which was recently adopted with approval in Ranhamy v.Appuhamy 3.
Out of respect for Mr. Perera’s argument, I desire to explain morefully the reasons for my conclusion on this issue. He invited us to hold
that the plaintiff’s claim to prescriptive title failed because herpossession throughout the period 1926 to 1945, was only the possession■of a “ beneficial owner ” and not that of an “ absolute owner ”, and (b) thatwhatever her state of mind may have been when she first entered intopossession of lot No. 25, she soon realised and indeed acquiesced in theposition that her father was a trustee vested with legal title . to thisshare. Mr. Perera suggested for our consideration that the subsequent" acknowledgment ” by the plaintiff of her father’s status and powers asa “ trustee ” interrupted her possession ut dominus long prior to the timewhen prescriptive title could have been acquired by her. Finally, heargues, the plaintiff was already a co-owner of the larger land in respect■of the share purchased by her in 1925, and her possession of lot 25 after1926, was prima facie referable to her position as a co-owner to thatlimited extent. Indeed, according to this argument, Abeyeratne musthimself be regarded as a co-owner by reason of his so-called rights as thetransferee named in the conveyance of 1926, and the plaintiff’s claim toprescribe against her father, qua co-owner, is negatived by the principlelaid down by the Privy Council in Corea v. Appuhamy *.
I find myself unable to accept any of these attractive submissions.Questions as to the acquisition of prescriptive title must be examinedin relation to the realities of a given situation." It is no doubt truethat for at least 10 years since March 12, 1926, Abeyeratne must be
1 (1931) 32 N. L. R. 199.* (1945) 46 N. L. R. 279 at page 280.
3 (1911). 15 N. L. R. 65.
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GRATIAEN J.—Lucia Perera v. Martin Pcrcra
regarded by operation, of law as a trustee vested with legal title "to the disputed share because, acting contrary to his mandate, hehad obtained the conveyance in his own name instead of that of hisdaughter who was intended to become the real purchaser. Thiscircumstance immediately imposed upon him an “ obligation inthe nature of a trust ” (section 82 of the Trusts Ordinance) which requiredhim to hold what he had acquired for the benefit of his daughter (section84). In this particular case—although it makes little difference eitherway—this obligation was created not because “ it stood upon the presumedintentions of the parties to the transaction ” but because it “ was forcedupon the conscience of the party (i.e., Abeyeratne) by operation of law(Story on Equity—3rd Edition—^paragraph 1196'). How can it bereasonably contended that in such a situation the plaintiff's later dis-covery of her father’s unauthorised action and her repeated requeststhereafter that he should give her a conveyance of what he had im-properly acquired constituted an “ acknowledgment of his rights ” to theproperty so as to interrupt her possession ut dominus ? If the behaviourof parent and child be examined in the cold light of reason, I wouldrather say that her demand for a conveyance constituted not an acknow-ledgment of his rights but an assertion of hers—and indeed his promiseto make good his obligation in the matter was an acknowledgment onhis part of her right to regard the property as her own. As Story putsit in paragraph 1262 “ in cases of this sort the beneficiary is not at allbound by the acts of the other party (i.e., the constructive trustee).He has the option to insist upon taking the property or he may disclaimany title thereto and proceed upon any other remedies to which he isentitled ”. In the present transaction, the plaintiff exercised the optionof insisting upon retaining the property, and she remained in possessionthereof ut dominus without interruption. By permitting a long delayin the execution of a conveyance, she took the -risk of her rights beingdefeated by a clandestine sale by the so-called “ trustee ” to an innocentthird party for value, but after the prescriptive period had elapsed (ashas happened here) her rights were completely protected.
To regard the relationship between plaintiff and her father as that of“ co-owners ” seems to me equally unreal in the present case. Corea v.Appuhamy (supra) lays down the principles to be applied in disputesbetween co-owners who are jointly entitled to enjoy dominium in thecommon property. The facts here are entirely different. The plaintiff'soccupation of lot 25, after March 1926, was a clear assertion of her claimto rights of co-ownership additional to those which she had previouslyenjoyed as a co-owner under her earlier purchase.
In my opinion the judgment appealed from should be set aside. ' Theplaintiff is entitled to a decree against the second defendant declaringher entitled to an undivided one-fourth share of the land described inthe schedule to the plaint. She is also entitled to her costs both hereand in the lower Court.
Dias S.P.J.—I agree.
Appeal allowed.