Present: Lascelles C.-J. and Grenier -T.
KUD.V ETANA v. RAN ETANA et al.
400—D. C. Hatton, 223.Partition—Kandyan widow entitled to life interest—Heirs cannot claimpartition during lifetime of widow Fidei commissaries cannotclaim partition during the time the fiduciarius is entitled to possession.
The heirs of a Kandyan cannot claim partition of the acquired pro-perty of the deceased during the. life time of the widow, who is entitledto a life interest ■ in that property. The property cannot be said to beheld in common, within the meaning of section 2 of Ordinance No. 10of 1803, by the widow and the heirs who will take after her death.
Obiter,—So long as the fiduciarius is entitled to possession, thefidei commissarius has not that present interest in the propertywhich entitles him to bring a partition suit.
N this case the plaintiff-appellant, as the daughter of one Appu-rala, brought a partition suit to have the lands which Appurala
died possessed of partitioned between herself and the second andthird defendants-respondents.
Some of the lands were inherited by the said Appurala, and the•rest were acquired by him during the subsistence of his marriagewith the first defendant-respondent.
The plaintiff-appellant in her plaint expressed her willingness, inconjunction with the second and third defendants-respondents, to
( 155 )
maintain the first defendant-respondent out of the inherited lands, 1912.and to permit the first defendant-respondent to remain in possession stanaof the acquired lands by right of her life interest in them.«. Ran Etanaf
The learned Judge ruled that it was not competent to theplain tiff-appellant, during the lifetime of the first defendant-respond-ent t who is the widow of the said Appurola, to maintain a suit forthe partition of the acquired lands.
The plaintiff appealed.
A. St. I’. Jayewardene. for the appellant.—The plaintiff is clearlythe owner of the property. He does not have a .merely contingentright as a fidei contmissarhis.
It has been held that a land burdened with a fidei commission maybe partitioned. See Abeyasundra vm Abeyasundra *, Baby Nona v-Silva 2. A fortiori, the plaintiff who has a present interest in theproperty is entitled to get a partition decree.
The appellant does not seek to disturb the widow's possession.
There is no reason why the partition inquiry should not be heldnow when all parties are alive and when all evidence is available.
Counsel cited Jayewardene on Partition 16, Ausadahami v.
Tikiri Etana*, Evans v- BayshairVavderstraatcn s Reports 116.
Bartholomeusz, for the respondent.—The plaintiff has no presentright to possession. The acquired property cannot be said to be“ held in common " by the plaintiff and the first defendant. InAbeyasundra v. Abeyasundra,1 the plaintiff being a fidnoiarius hada right to possession.
The authorities cited are in favour of the respondent.
A. St. V. .Jayewardene, in reply.
Cur. adv. vult.
February 15, 1912. Lascei.les C.J.—
This case raises the question whether, under Kandyan law, it iscompetent to one of the heirs to claim partition of acquired propertyduring the lifetime of the widow, who is entitled to a life interest inthat property.
No precedent has been cited in favour oFthe appellant's conten-tion that such a claim is maintainable, and the authorities collectedat page 16 of Mr. A. St. Y. Jayewardene’& work on Partition, so faras they bear on the present question, tell in the opposite direction.
With regard to fidei commissa, the better opinion appears to bethat so long as the fiduciaries is entitled to the possession, the fideicommissarmis has not that present interest in the property whichentitles him to bring a partition suit. Voet (10, 2] 14) places heredessub conditions instiiuti in the first rank of those who cannot claim-partition; and Burge adopts this opinion.
1 (1909) 19 N. L. R. 373.* (1901) 0 N. L. R. 177.
M1906) 9 N. L. R. 251.<(1339-70) L. R. 5 Ch.- 340.
( 15C )
1912. Under English law no one can successfully institute an action forLasoem.es partition whose estate is not in possession, and a reversioner cannotC.J. maintain such a suit (Evans v. Bagshawr). But I prefer not toKudo, Etana ground ■ my decision on the analogy between the Kandyan widowv. Ran Etana.on the one side, and the fiduciary owner of the Roman-Dutch lawor the tenant for life of the English law on the other side.
The right of a Kandyan widow to possess the acquired propertyfor her life does not depend on any disposition of property in thenature of a will or settlement. It is a privilege allowed her by thelaw, which rests, at any. rate1 partly, on the presumption that theacquired property was purchased by the savings and exertion ofthe wife as much as by those of the husband.
The question really is whether, in a case like that now before us.where the widow is entitled to possess for her life, the property canbe said to be “ held in common,” within the meaning of section 2■of Ordinance No. 10 of 1863, by the widow and the heirs who willtake after her death. On any reasonable construction of thesewords, the answer, I think, must be in the negative. The object ofthe Ordinance is to provide a remedy for the inconvenience causedby property being held in common. It is obvious that in the caseunder consideration the mischief which the Ordinance was designedto remedy does not exist. The difficulties and disputes which areincident to undivided ownership in common do not arise so long asthe widow is in possession.
I think it is clear that the Ordinance does not extend to the presentcase; and personally I have the greatest reluctance to extend anOrdinance, which is so frequently abused, to any case which is not■distinctly contemplated by the Ordinance. In my judgment thedecision of the District Judge was right, and I would dismiss theappeal with costs.
1 agree. So far as I am aware, I believe this is the first attemptto. apply the provisions of the Partition Ordinance to land in thepossession of a Kandyan widow who has a life interest in it. Aspointed out, by my Lord, there is no analogy between the Roman-Dutch law relating to fidei commissa and the rights of fiduciariesand the Kandyan law, whicfT is a primitive system, and which willhardly .permit of the application of section 2 of the Partition Ordi-nance to property, which can in no sense 'be said to be “ held incommon. ” The heirs would no doubt be entitled to succeed to theproperty after the death of the widow, hut pending that event theycannot be regarded as having any common ownership or possession■with the widow. This being so, it follows that there exists- no■condition which renders the possession of the property inconvenientor inexpedient-
i (1869-70) L. R. 5 Gh. 840.
KUDA ETANA v. RAN ETANA et al