DALTON S.PJ.—Charles Appu v. Dias Abeysinghe.
1933Present: Dalton S.PJ. and Poyser J.
CHARLES APPU v. DIAS ABEYSINGHE.
236—D. C. Galle, 30,093.
Partition—Property held subject to life-interest—Right of holder to bringpartition action.
A person who is entitled to the dominion only of an undivided shareof land, the usufruct being vested in another, is not entitled to bring apartition action.
^^'PPEAL from a judgment of the District Judge of Galle.
Soertsz, K.C.. for plaintiff, appellant.
C. V. Ranawake, for defendants, respondents.
Cur. adv. vult.
December 1,1933. Dalton S.P-J.—
In this partition action plaintiff sought to partition the land describedin the plaint between himself and the second, third and fourth defendants.The first defendant was made a party as she had a life-interest in theproperty.
1 (1932) 34 N. L. R. 252.
DALTON SJPJ.—Charles Appu v. Dias Abeysinghe.
It is conceded that one F. E. Abeyesundere was at one time entitled tothe whole of the land sought to be partitioned. He by deed P 5 of Sept-ember 19, 1911, conveyed by way of gift the land to the second, third,and fourth defendants, subject to the right of their mother the iirstdefendant “ to take during her lifetime, the rents, profits, and issues of thesaid premises to and for her own use and benefit By deed P 6 of 1926,the third defendant sold “ an undivided one-fourth of an acre ” of hisinterest in the property to plaintiff. The description of the interest soldon P 6 is of course a most unhappy one, but it is not in the circumstanceshere material.
The trial Judge dismissed plaintiff’s action on the ground that no righthas vested in the plaintiff to enter into possession of the property pur-chased by him as the first defendant is still alive, and he holds that thedecisions in Carry v. Carry1 and Kuda Etana v. Ran Etana2 apply to thefacts of this case. I am not able to agree with this reasoning, althoughI have come to the conclusion, with some hesitation I must admit, thatthe appeal must be dismissed. No case has been cited to us in which theexact point arising here has arisen before.
The first matter for consideration here is the nature of the first defend-ant’s life-interest. Is it a life-interest created by way of fidei commissumor by way of usufruct ? If it is the former, the matter is governed byauthority. Having regard to the terms of P 5 there is no doubt whateverabout the nature of the interest. The property is immediately vested bythe deed in the second, third, and fourth defendants, the life-interest createdin favour of their mother being by way of usufruct. The dominiumtherefore vests in the donees, and by P 6 the interest of the third defend-ant vested, by virtue of that conveyance, in the plaintiff. The case of# Carry v. Carry (supra) is one where the deed in question there created afidei commissum. In that case the fideicommissary took no immediateinterest, since the dominium is vested in the fiduciary. Nevertheless,the mother, the fiduciary, and one of the fideicommissary heirs instituted apartition action against the other fideicommissary heirs. The Court heldthat the action could not be maintained since the property did not belongin common to the mother and her children.
The case of Kuda Etana v. Ran Etana (supra) is one dealing with the life-interest of a Kandyan widow in acquired property. No question of theapplication of Kandyan law arises in the case before us, and the learnedJudges in that case in fact point out that there is no analogy between theRoman-Dutch law relating to the rights of fiduciaries, and I might addthe rights of usufructuaries, and the Kandyan law. In any case, howeverif the presumption is that acquired property was purchased by the savingsand exertion of the wife as much as by those of the husband, it is difficultto see how the nature of the right of the widow in acquired property canbe akin to a usufruct.
The plaintiff then has a vested interest in the property, which interesthe can for example mortgage, sell, or dispose of by will, and in that sensecan possess and enjoy. He certainly has a “ present interest ”of a kind(see 2 Burge 678), although the first defendant during her lifetime is
1 4 C. W. R. 50.2 15 N. L. R. 154.
DALTON S.PJ.—Charles Appu v. Dias Abeysinghe.32S
entitled to all the rents, profits, and issues of a usufructuary. Whetherhowever he has such a “ present interest ” as to entitle him to prosecutethis remedy is, I think, doubtful, although it may well be that the plaintiff,if he can get the property belonging in common to him and others (subjectto the usufruct of course) partitioned so that his interest thereafter is in aspecific portion only, his title being also fortified by a partition decree,his interest may be still more valuable to him, expecially for such apurpose as raising money on mortgage.
In such a case as this, is there anything in the Partition Ordinancerepugnant to the plaintiff instituting a partition action ? The land is“held in common”, to use the words in the preamble, and “belong incommon”, to use the words in section 2 of the Partition Ordinance, asbetween him and the second, third, and fourth defendants subject to ausufruct. The words “ held in common ” have on occasion, it would seem,been construed to mean “ possessed in common ”, and we have also beenreferred in answer to this question to the decision in Evans v. Bagshaw'We have been asked to apply the rule followed in the case here. It wasthere held by the House of Lords that in England a tenant in common inreversion cannot maintain a suit for partition. The rule is stated to benot merely technical but to be founded on good sense in not allowing thereversioner to disturb the existing state of things. The term “ reversion ’’although it is sometimes loosely used, denotes an estate vested in interestalthough not in possession, as opposed to the term “ remainder ”, andtherefore in that respect a reversioner is in the same position as plaintiffin whom the dominium is vested. The rule followed in this Englishdecision is referred to by Lascelles C. J., with approval in Kuda Etana v.Ran Etana (supra) although he does not decide the matter arising there bythe help of this decision. It is further referred to by the late Mr. JusticeA. St. V. Jayewardene in his Law of Partition at p. 44, where he seems tosuggest that the reason for the rule followed there exists under the pro-visions of the Partition Ordinance. The use in Ceylon of terms takenfrom the English law of real property certainly at times is apt to causeconfusion ; whilst fideicommissaries and remainder-men may be put inthe same category, in so far as they have no “ present interest ”, I amdoubtful if same can be said of a reversioner. He would have no moreor no less interest than a person in the position of plaintiff in this case.To his rights I have already referred. However, the trend of opinionwould appear to support the conclusion that the effect of the PartitionOrdinance is that, to maintain a partition action, a person must be theowner or claim to be the owner of an undivided share, and also be inpossession or be entitled to be or have a claim to be in possession of thatshare. I have therefore come to the conclusion that the plaintiff, so longas he owns only the bare dominium of the property or a share in it withoutany right to the usufruct over the property is not entitled to bring apartition action.
The appeal must therefore be dismissed with .costs.
Poyser J.—I agree.
‘ (1870) L. n. 6 Ch. 340.
CHARLES APPU v. DIAS ABEYSINGHE