R. M. BANDA, Appellant, and A.

ALITAMBY, Respondent
The possession of a usufructuary
mortgagee is presumed to enure to the
benefit of the original mortgagor and
thereafter to the person to whom the
contractual rights of such mortgagor have
at any relevant point of time been
transmitted or ceded.

Held, that, in the circumstances of the
case, the earlier possession of the
usufructuary mortgagee enured to the
benefit of D. for the purpose of defeating by
prescription the subsequent claim of E. to
have acquired superior title to the property
on the ground of prior registration.
A. granted a usufructuary mortgage over certain
property in favour of B. While the bond was still
subsisting A. died and the mortgaged property
devolved on C. C. sold his rights in the property to
D. and again, subsequently, to E. E.'s deed, though
later in point of time, was registered earlier than
D.'s deed, but E. never possessed the property or
even asserted any claim to it until very shortly
before the present action was instituted by him.
When the usufructuary mortgage bond was
discharged by payment, D. was admitted to
possession by the mortgagee on the footing that he
was the person who had lawfully succeeded to the
mortgagor's interests in the land.
A. P. GUNASEKERA, Appellant, and R. A. LEWIS APPUHAMY,
Where an owner of a land transfers it by
gift to a person, reserving to himself a life
interest, the donee becomes the true
owner from the date of the gift. The donor's
right of usufruct is, from that time, a
contractual one arising from the contract of
donation, and his possession enures to the
benefit of the donee for the purpose of
enabling the donee to acquire prescriptive
title to the land as against a third party.
Where A gifts a land to B reserving to himself a
right to possess a half-share of the land during his
life time, his possession of the entirety of the land
from the date of the gift enures to the benefit of B
for purposes of prescription. If the deed of gift is
unregistered and A's heirs subsequently transfer a
portion of the land to C, who registers the deed of
transfer, B can still claim prescriptive title to the
land as against C, if the transfer to C was executed
ten years after A and, after A's death, B had been
in exclusive possession of the land.
CHARLES v. NONOHAMY
Held, that B had title by prescription to the
property.
A property of which C was the owner was sold in
execution against him and purchased by O, who
died before he obtained a Fiscal's transfer and
before he could acquire prescriptive title to it by
possession for ten years. By his last wi,l O directed
his executor to sell such lands as may be
necessary for the payment of debts, and thereafter
to convey the remaining properties to his son W
subject to a fidei commissum by which after the
death of W the properties were to pass to his
children. The executor entered on the land in
question and possessed it for over ten years. W,
who did not him-self possess the property during
his lifetime, died leaving a son, B.
T. LESIN. Appellant, and P. S. KARUNARATNE,
Where a person donates immoveable property
reserving to himself a life interest prescription does
not begin to run against the donee until the death of
the donor. In such a case, the donee, as
remainder-man, is entitled to the benefit of the
proviso to section 3 of the Prescription Ordinance,
and adverse possession against the donor cannot
be counted against the donee.
BANDA et al. v. BANDA
Ordinance No. 22 of 1871, s. 3-" Possession for ten
years previous to the bringing of the action "-Proof
of appointment of assignee in insolvency.
Per Moncreiff, J.-The natural meaning of section 3
of Ordinance No. 22 of 1871 is not, in my opinion,
that the ten years' possession must endure until the
bringing of the action. The words-" the bringing of
the action "-were introduced simply to prevent any
dispute as to the stage in the action before which
the ten years' possession must be complete. Those
words do not confine the ten years to the period
next before the bringing of the action.
Per Browne ,A.J.-I agree with my brother's views,
and feel bound by the decision in Nakar v. Sinnatty
(Ram. 1860, p. 75).
Silva v. Siman (4 N. L. R. 144), disapproved.
The method of proving the appointment of an
assignee in insolvency explained.
ACTION for ejectment, and that plaintiffs should be
placed in possession of the lands unlawfully held
by defendant.
Plaintiff alleged title to an undivided half share in
several lands by. right of purchase from one
Kumarihamy upon deed dated 19th July, 1897. The
action was instituted on the 7th December, 1897.
Defendant alleged that Kumarihamy was adjudged
an insolvent in 1878. and that defendant's right was
by inheritance under Bandara Mahatmaya and his
wife, who died, the former in 1878 and the latter in
1895.
The District Judge found that Kumarihamy was
declared insolvent and an assignee appointed to
her estate on 6th December, 1878, and that
therefore the insolvent's immovable property
vested in him from that date.
A further issue framed by the District Judge was
whether the plaintiff and his predecessor in title had
acquired a prescriptive right by adverse possession
for ten years previous to action. The District Judge
found against the plaintiff upon this issue and
dismissed the action with costs.
Plaintiff appealed
CHARLES v. RAMAIYA et al.
Defendant entered into possession of a parcel of
land on an agreement with C to purchase it. Ho
pleaded that ho paid the purchase money by
instalments, and that the last instalment was paid
six years after he had commenced to possess the
land, but that C failed to grant him a conveyance;
held, that such payment, if true, was an
acknowledgment of a right existing in 0, and
interrupted prescription under section 3 of
Ordinance No. 22 of 1871.
FERNANDO, Appellant, and WIJESOORIYA et al., Respondents.

Held, that the dismissal of the previous action was
not an interruption of possession and that the
appellant had acquired a prescriptive title to lot B.


The appellant entered into possession of a certain
block of land under a deed in 1928. When he
brought an action for declaration of title to a small
portion (lot B) of that land, about 1 1/2 acres in
APPEAL from a judgment of the District Judge of
Kandy,
extent, in 1933, the plaintiff-respondent denied the
appellant's right to this portion and claimed in
reconvention title to a block 9 acres in extent which
included for B. The appellant's action was
dismissed simpliciter. The appellant continued in
possession inter alia of lot B till the institution of this
action in 1942.

SIMAN APPU v. CHRISTIAN APPU.
It is " interrupted " if the continuity of possession is
broken either by the disputant legitimately putting
the possessor, oat of the land and keeping him out
of it for a certain time, if the possessor is occupying
it; or by occupying it himself for a certain time and
using it for his own advantage, if the party
preventing is not in occupation.

And possession is " disturbed " either by an action
intended to remove the possessor from the land, or
by acts which prevent the possessor from enjoying
the free and full use of the land of which he is in the
course of acquiring the dominion, and which
convert his continuous user into a disconnected
and divided user.

LAWRIE, A. C. J.-If the actual physical possession
has never been interrupted, it matters not that the
possessor has been troubled by lawsuits or by
claims in execution or by violence. If he has
succeeded in holding possession, such attempts to
oust him only make it the more certain that he held
adversely to those who disputed with him.
LUCIHAMY v. HAMIDU et al.

An action for partition cannot be said to have been
brought as. between the original parties and an
intervenient until he has intervened, and the plaintiff
may count the period up to the intervention for
purposes of prescription as against the
intervenient.
When an amended plaint or statement of claim is
filed, it is considered for all purposes as relating
back to the date of the original plaint or statement
of claim.
Plaintiff instituted this action on March 6, 1918, for
partition. The ninth defendant claimed a 6-acre
block under a Crown grant of December 14, 1908,
and he was added as ninth defendant on May 8,
1919. It then transpired that the 6-acre block was-
not included within the boundaries given in the
plaint by an oversight Plaintiff amended his plaint
on June 19, 1919, and ninth defendant filed his
statement of claim on July 3. The ninth defendant
never possessed the block either before or after the
Crown grant.
Held, that plaintiff was entitled to count his
possession up to the date of the intervention of the
ninth defendant for purposes of prescription.
EMANIS v. SADAPPU et al.

Held, by Lawrie and Withers, J. J., following the
decision in Unambuwe v. Janohamy (2 C. L. R.
103), that an action for the recovery of land, which
had ended in a non suit or other decree against the
plaintiff, was not such an interruption of the
defendant's adverse possession of the land as
disentitled him to a decree in his favour in terms of
section 2 of Ordinance No. 8 of 1834, or section 3
of Ordinance No. 22 of 1871, in a subsequent
action against him for the same land by the same
plaintiff.
Per Bonser, C. J. -A solemn and unanimous
decision of the Supreme Court in its collective
capacity on a question of law must be treated as a
binding authority in all subsequent cases. Even if
the Court as constituted at a later date was
unanimously of opinion that the original decision
was wrong, it would be out of its power to alter the
law as there laid down. That can only be done by
the Privy Council altering such decision, or by an
enactment of the Legislative Council.

RAMACHANDRAN AND ANOTHER (SC APPEAL No. : 5/2004)
ANANDASIVA AND ANOTHER (SC APPEAL NO.:9/2004)
Writ of Certiorari- Recovery of Loans by Banks
(Special provisions) Act, No. 4 of 1990 - Parate
execution - Sections 2, 3, 4, 5, 8, 9, 14, 75, 16 and
17 of the Act - whether the "borrower" whose
mortgaged property may be sold without recourse
for court includes 'mortgagor" of property pledge to
the Bank by surety who guarantees the loan -
Articles 105(1),12(1),3 and 4 of the Constitution -
Interpretation of "borrower" narrowly as a broader
interpretation would erode the judicial power of the
(Bandaranayake, J. dissenting)
1. In Roman Law where the debt was secured by
mortgage of property by an instrument called
hypotheca , the mortgagee could sell such property
without recourse to court. In England, the Law of
Property .Act. 1925 permitted the mortgagee to sell
secured property subject to conditions including the
right of a party affected to seek relief from a court.
Our Common Law (Roman Dutch Law) did not
people.
The petitioners in the above appeals had sought
writs of certiorari from the Court of Appeal to
quash, resolutions of the respondent Bank to sell
by parate execution the property of the appellants
(sureties to loans) mortgaged to secure loan as
guarantees thereto. The Court of Appeal refused
interim relief to the effect.
recognize any right in the mortgagee to sell the
secured property . Institute of Justinian gave
remedy to mortgagee to obtain possession by an
action described as "actio serviana.""
2. The Mortgage Act, No. 6 of 1949 read with the:
Civil Procedure Code created an action described
as a hvpothecary action in default of mortgagor's
property.
3. The provisions of our law which required a
judicial decision for sale of mortgaged property
were in conformity with Articles 105(1), 12(1),3 and
4 of the 1978 Constitution relating to judicial power
and sovereignty of the people.
4. The Recovery of Loan by Banks (Special
Provisions) Act, No.4 of 1990, applicable to Loans
granted for the econocmic development of Sri
Lanka was a depature from the normal law. Act,
No.4 of 1990 was fortified by an amendment Act,
No. 3 of 1990, introducing sections 62A and 62B to
the Mortgage Act to enable the person authorized
to take possession of the mortgaged property who
apprehends an obstruction or resistance to obtain
an order of a Magistrate without notice to the
person in possession directing the fiscal to deliver
the possession of the land to him.
5. Sections 2 and 14 of Act, No. 4, 1990 require the
borrower to register an address with the Bank to
which notices may be sent. If the borrower alone is
not recognized as being liable to seizure of his
property the guarantor's property could be sold
without any notice to him.
6. ' Section 17 provides that where the value of the
property sold is more than the debt, the excess will
revert to the borrower. Such reversion would be
absurd if the property of the guarantor is itself liable
to parate execution.
7. Accordingly, property liable to be sold under Act,
No. 4 of 1990 is limited to the property mortgaged
by the borrower and this would exclude the
property mortgaged by the guarantor.
Per Bandaranayake, J :
"Having regard to the intention of the Legislature
that Act, No. 4 of 1990 was to recover loans
granted by banks for the economic development of
Sri Lanka and the fact that the appellant has
pledged his property as security on the basis of
joint and several liability, the provisions of Act, No.
4 of 1990 should be broadly interpreted to enable
the seizure and sale of the property of the debtor
and also the guarantor.
The Special Determination No. 22 of'2003
considered the proposed amendment to Act, No. 4
of 1990 to enable sale of property mortgaged by
the borrower and guarantor (i. e. a person other
than the borrower). The Supreme Court determined
the Bill as being inconsistent with Articles 12(1) and
105(1) of the Constitution and that therefore, the
amendment had to be enacted by a special
majority under Article 84(2). As the Court of Appeal
held, that was not a judgment of the Supreme
Court interpreting Act, No. 4 of 1990."
Per Bandaranayake, J
"If the law is absurd it is for the Legislature to
correct it by a valid amendment and not a function
vested in the court in the exercise of appellate
jurisdiction. As regards the "absurdity" raised on
the basis of section 17 the excess property must
revert to the actual owner and it is the duty of the
bank to take appropriate action."