082-NLR-NLR-V-56-MOHAMEDALY-ADAMJEE-et-al-Appellant-and-HADAD-SADEEN-et-al-Respondents.pdf
•Adamjee v. Sadeen345
1954Present: Gunasekara J. and de Silva J.MOHAMEDALY ADAMJEE et al., Appellants, and HADAD SADEEN
et al., Respondents
.S'. C. 72, with Application 203—D. C. Colombo, 5,951 T.
Registration —Will—■Probate—Failure to register it—Effect as against person claimingmlverse interest under subsequently registered deed.
Fideicommissum—Claim by prescription as against fideicommissary —Burden of proof -Evidence Ordinance (Cop. 11), ss. 101, 103—Prescription Ordinance (Cap. 50),proviso to s. 3.
Partition (Ordinance (Cap. 36)—Section 9—Finding of fraud and collusion—Final decreecannot be set aside on that ground.
M lio non-registration of the probate of a wilt affecting immovable propertyrenders it void as against a person claiming an adverse interest under a dulyregistered deed of a subsequent date- Therefore, where property of the estate
H1953) 55 N. L. R. 57.
g46GUNASEKARA J .^-Adamjet, v. Sadeen
is disposed of by a devisee, who is also an heir of the deceased, or is sold againsthim in execution, upon an instrument which is registered prior to the probateof the will, the transferee obtains, in respeot of any share or interest to which thedevisee would havo been entitled by law but for the will, a title superior tothat of the executor ora party claiming under him.
Where a plaintiff claims title to immovable property by prescriptive possessionns against a fidoicommissary, the burden is on him to prove the point of time whenIho fideicommiesary acquired, under the fideioommissum, a right of possessionto the property in dispute and to establish that from that time he (the plaintiff)has been in possession for a period of ten years or more.
Fraud and collusion on the part of the parties to a partition action does notentitle the person defrauded to an order setting aside thedecree entered in thataction ; his only remedy, according to Section 9 of the Partition Ordinance, iban action for damages.
-i^-PPEAL from a judgment of the District Court., Colombo.
11. V. Perera, Q.C., with S. J. Kadirgamar and B. S. C. Ralwatte, forthe plaintiffs appellants.
B. Wikramanayake, Q.C., with V. Arulambalam, for the 1st to 8th,13th, 21st, 29th to 31st, and 37 defendants respondents.
Cur. adv. vult.
February 10, 1954. Gunasekara J.—
In District Court Colombo Case No. 5,700/P, which was an actionunder the Partition Ordinance (Cap. 56), a decreo was entered on the-30thApril, 1950, declaring the respondents entitled to certain immovableproperty in Kollupitiya and directing a sale of the property under thoOrdinance. On tho 20th May, 1950, the appellants, who had not beenparties to that action, instituted in the district court the action out ofwhich this appeal arises, claiming title to the entire property and allegingthat the respondents had obtained the decree in the partition action byfraud. They prayed that the district court should “ set aside or vacate ”that decree and declare that it was “ null and void and of no force or effectin law ” ; or, in the alternative, award them damages in a sum ofRs. 100,000. The learned district judge held that tho appellants wcroentitled (up to tho time of the decree in the partition action) to an undi-vided 1/16 share of the property and to compensation for certain im-provements effected by them, and that the respondents “ wrongfully,unlawfully, fraudulently and collusively ” omitted to make them partiesto tho partition action or give them notice of it and thatthey obtained thedecree in question by fraud. Upon this footing he awarded the appellantsdamages in a sum of Rs. 29,687 ’50 and ordered the respondents to paythorn half the costs of the action. He held that the appellants werenot entitled to have the decree in the partition case set aside, or to have itdeclared null and void or to be declared owners of the premises in question.
The property was originally part of the. estate of one Idroos LebboMarikar, who died in 1876 and ■yvhose last will was admitted to probateon tho 29th May of that year. In accordance with directions contained in.
GUNASEKARA J.—Adamjee v. Sadeen347
the will the estate was divided among those who would have been theintestate heirs in such a manner that each received the equivalent invalue of what would have-been his or her share upon an intestacy. Inthat division this property was conveyed by the executor, by the deedNo. 2,575 of the 14th September, 1888, attested by Don Simon Lewis,Notary Public, to Savia Umma, a daughter of the testator. The con-veyance was made subject to conditions that were set out in certainclauses of the will, which were alsoreproduced in the deed. It has beenheld by the Privy Council in Siiti Kadija v. de Saram 1 (where the samewill was construed) that the effect of these clauses was to create a fidei-commissum in favour of the children and grandchildren of the devisees.Later, in an appeal in the partition action, it wets held by this court that theproperty was subj'ect to a single fideicommissum andthat the time of thegift-over was the death of the last of Savia Umma’s children. Thelearned district judge holds that Savia Umma and her children are alldead, and that the respondents are her grandchildren. The appellantshave not canvassed this finding of fact or the view that the property wassubj'ect to a fideicommissum from which it was freed only upon the deathof Savia Umma and all her children.
In January, 1916, the property was sold in satisfaction of a mortgagedecree entered against Savia Umma and her husband, and was purchasedby the mortgagee, LeonoraFonseka, to whom it was conveyed by a fiscal’sconveyance dated the 291h March, 1916. This conveyance describes theproperty by reference to a “ diagram or map annexed to the deed No. 2,575dated 14th September, 1888, attested by Don Simon Lewis of Colombo,Notary Public ”. Leonora Fonseka sold the property on the 16th August.,1919, to Adamjee Lukmanjee, whose interests have devolved on theappellants.
The fiscal’s conveyance of 1916 and the other deeds in the appellants’chain of title have been duly registered, and the probate of 1876 and theexecutor’s conveyance of 1888 have not been registered. Upon thisground the learned district judge holds that the probate is void as. againstparties claiming an adverse interest under the fiscal’s conveyance andtherefore the appellants were “ entitled to claim the intestate rights ofSavia Umma from Idroos Lebbe Marikar free of the fideicommissumcreated by his Last Will by virtue of due prior registration ”, and that theinterest to which they were so entitled was a 1 /16th share of the property.He rejected a contention that what they were entitled to upon this viewwas “ the entirety of the property in question that was allotted to SaviaUmma at the division of Idroos Lebbe Marikar’s property amongst hisheirs
If the learned judge is right 1111118 view that the last will is void asagainst the appellants, it sterns to me that he is also right in holding thatthe interest they became entitled to'was no more than the share that SaviaUmma would have inherited (free of the fideicommissum) from IdroosLebbe Marikar if the latterhad died intestate. It was held in Fonseka v.Carolis 2, upon a point of'law reserved for consideration by a Bench ofthree Judges, that the non-registration of the probate of a will affecting 1
1 [1940) .1. (7. 208 ; (1946) 47 N. L. R. 171.» (1917) 20 N. L. R. 97.
'348
GUNASEKARA J.—Adamjee v. Sadeett
i in in 6 vr able property will render it void as against a person claiming anadverse interest under a duly registered deed of a subsequent date. He-furring to this decision de Samiiayo J. said in the same case
“ The effect of the decision on the point referred to the Full Bench,so far as this case is concerned, is that where property of the estate is•disposed of by a dovisee, who is also an heir of the deceased, or is soldagainst him in execution, upon an instrument which is registered priorto the jirobato of the will, the transferee obtains, in respect of any shareor interest to which the devisee would have beon entitlod by law butfor the will, a superior titlo to that of the executor or a party claimingunder him. ”
There is no dispute as to the extent of the share of her father’s estate towhich Savia Umma would have been entitled but for the will. It is con-tended for the appellants, however, that that by virtue of the fiscal’s con-veyance of 1916 they are entitled to claim not merely the share that SaviaUmma would have inherited in this property as an intestate heir butt he shares of the other heirs as well, upon the footing that there had beencross-conveyances among all the heirs at the division of the estate. It isalso argued, upon the authority of the decision in Fonseka v. Fernando 2,that the will is void only quoad the adverse interest claimed by the ap-pellants, and that Savia Umma must be regarded as having been allottedthe property in question froe of the fideicommissum in a division of theestato among the intestate heirs. It seems to me that to treat theexecutor’s conveyance of the property to Savia Umma as being in effect aconveyance by the other heirs of a 15/I6ths share to her would bo to takean altogether unreal view of the transaction. I am therefore unable toaccept the appellant’s contention on this point.
Mr. Wikramanayake has argued that Ihe interest that can be claimedby virtue of the fiscal’s conveyance is not adverse to the probate, and thattherefore the learned judge has erred in holding that tho will is voidagainst the appellants. In tho view that I take of the effect of this.finding it is not necessary to consider the argument that the will is notvoid against the appellants. The respondents have not appealed from thelearned district judgo’s decision that the appellants become entitled to al/10ih share of the property.
The appellants have also set up e. title by prescription. The learneddistrict judge holds that they and their predecessors have been in ex-clusive and uninterrupted possession of the property from 1919, but thatthey have failed to prove a titlo by prescription inasmuch as theyhave not proved possession for a period of ten years after the accrual of therespondents’ righ t of possession. The latter were fideicommissarics, and,JR terms of the proviso to section 3 of the Prescription Ordinance (Cap. 55),the period of ton years “ shall only begin to run against parties claimingestates in remainder or reversion from the time when Ihe parties so clai-ming acquired a right of possession to the property in dispute ”. Thetime when the respondents acquired this right has not been established,and the learned judge holds that the burden of proof on that issue lay ontho appellants. It is contended for tho appellants that this finding iR-erroneous.
1 (1017) 20 .V. L. R. 97, at page 10S.* (.V/2) 16 X. L. l(. 191.
G UNASEKARA J.— Adatnjec v. Sadeen
340
The argument for the appellants is that it was not necessary for them toprove that their possession was adverse to any particular person, butthat it was sufficient to prove as regards the character of their possessionthat it was possession ut dominus ; and when they had proved that theyhad such possession for a period of ten years or more, the burden shiftedto the respondents to prove that the appellants did not have possessionfor ten years after the respondents had acquired their right of possession.
I am unable to accept thiB argument. Section 3 of the PrescriptionOrdinance provides that the possession by a defendant for ten years thatmust be proved in order to entitle him to a decree in his favour is possession“ by a title adverse to or independent of that of the claimant or plaintiff; ”and, conversely that the possession by a plaintiff for ten years that mustbe proved to entitle a plaintiff to a decree in liis favour is possession “ by atitle adverse to or independent of ” that of the defendant. It seems to me,therefore, that before it can be held that the appellants have establisheda title by prescription there must be proof that they possessed the projiertyadversely to the respondents for a period of ten years or more. Thereapj>ears to be support for this view in two cases that were cited to us ;while no authority was cited in support of the appellants' contention.In Iiaki v. Lebbe 1 & decision that the-predecessor of the respondents inthat case had a title by prescription was based on a finding that his pos-session was adverse as against the appellants. In Abdul Coder v. HabibuUmma 2 it was held that (to quote the head note) “ possession which com-nienced before the accrual of a fideieommissary's right is not adverseagainst the fideicommisaary Mr. H. V. Perera contends that thehoadnoto is misleading where it uses the expression “ adverse against theJideicommissary With respect, I disagree. The idea that the possessionthat had to be proved by the defendants who were setting up a title byprescription was possession that was adverse to the plaintiffs (who hadbeen fideicoimnissaries) is implicit in both the judgments delivered in thatcase. Lyall Grant J. said 8 “ It seems to us clear on the Ordinance that afideicommissarius does not become an adverse claimant under the secondproviso of section 14 4 until he acquires a right of possession. If this heso, there is no adverse possession as against the present plaintiffs for thirtyyears, and there is nothing to take the case out of the ordinary rule thatthe ten years required to establish a prescriptive possession do not begin torun until the adverse claimant has attained majority Jayawardeue A.J.said:6 “ Mr. Hayley’sargument requires that adverse possession commencedbetore the accrual of the fideieommissary’s right should bo regarded asadverse possession against the jideicommissary himself. That wouldcertainly be a contravention of the principle laid down in Casim v.JJingehttmy 6- 11
11the possession that had to be proved before the appellants could gotjudgment was possession that was adverse as against the respondents, thenboth under section 101 and under section 103 of the Evidence Ordinance(Cap. 11), tho burden of proving such possession lay on the appellants. Aspossession could be adverse as against the respondents only from tho time
{191:*) 16 N. Lj. R. 138.4 Now Section 13.
{1926) 28 N. L. R. 92.5 ut page 96.
* at page 91.8 {1906) 9 N. li. 257.
350
GUNASEKARA J.—Adamjee v. Sadcen
of the accrual of their right of possession, it follows, I think, that thoburden of proving when that right accrued was on the appellants. As waspointed out in Chelliah v. Wijenelhan *, “ where a party invokes theprovisions of section 3 of the Prescription Ordinance in order to defeatthe ownership of an adverse claimant to immovable property, the burden-of proof rests fairly and squarely on him to establish a starting point for hisor her acquisition of proscriptive rights I agree with the learneddistrict judge’s view that the appellants have failed to prove a title byprescription.
A further contention that was urged in support of the appeal was thatthe decree in the partition action was a nullity or at any rate was notbinding on the appellants as a decree that was conclusive in terms ofsection 9 of the Partition Ordinance. It was urged that it had not been,given in the manner provided in the Ordinance, in that there had been no-proper investigation of the title to the property. Jn our opinion (he-learned district judge was right in his conclusion that the docrce was notopen to this cri icism, and we therefore did not call upon the learnedcounsel for the respondents to address us on this ground of appeal. Nordid we call upon him to reply to a further argument, that the finding offraud and collusion on the part of the respondents entitled the appollant®to an order setting aside the decree in the partition action. Mr. Perera.submitted that it was a general principle of the Roman-Dutch Law lhatfraud vitiates any transaction that is tainted by it, and that a decree thathas been obtained by fraud can bo set aside on that ground where no otherremedy is available. This common law remedy, he argued, had not beemtaken away by statute : section 9 of the Partition Ordinance did not pro-vide that the decree must stand notwithstanding that it may have hern,obtained by fraud, but only made it conclusive against all persons whileit stood, and the proviso merely saved the common law right of a partywho might be prejudiced by a partition or sale to recover dam acres in.certain circumstances in those cases in which the decree was not aside.This view of the effect of section 9 is in conflict ■with a current of authoritythat is binding on this court. It is sufficient to refer to one of the seriesof decisions on the point, Jayatvardene v. Weerasekera 2,where Sir AlexanderWood Renton said :
“It is as well settled as any point of law can be that a partition-decree is conclusive against all persons whomsoever, and that a personowning an interest in the land partitioned whose title even by fraudulentcollusion between the parties had been concealed from the court in thepartition proceedings, is not entitled on that ground to have the decreeset aside, his only remedy being an action for damages. ”
The appeal must be dismissed with costs, and Application No. 203, whichis an application for revision of the proceedings in the partition action,must be refused.
de Silva J.—T agree.
' Appeal and- Application dismissed',
' (1951) 54 N. L. R. 337 at 342 ; 46 C. L. W, 27 at 31,
* (1917) 4 C. !»’. R. 406.