ANA LANA SAMINATHAN CHETTY v. VENDOR POORTEN

075-NLR-NLR-V-34-ANA-LANA-SAMINATHAN-CHETTY-v.-VENDOR-POORTEN.pdf


Ana Lana Saminathan Chetty v. Vander Poprten. –
287
1932
[In the Privy Council.]
Present: Lord Atkin, Lord Tomlin, and Lord IVfacmillan.
ANA LANA SAMINATHAN CHETTY v. VENDOR POORTEN."
Trust—Transfer of Crown land subject of decree—Advance of money to settle
with Croivn—Nature of conveyance—Security for money—Right to
redeem—Roman-Dutch law.
On March 28, 1923, a decree was entered in an action brought by theCrown against a certain Syndicate whereby it was declared that the landin question was the property of the Crown, and whereby the Crownsubmitted to sell the lard to the Syndicate, provided that a sum ofRs. 275,000 was deposited with the Settlement Officer within twelvemonths of the decree.
The defendant advanced to the Syndicate a sum of Rs. 210,000 for thepurpose of making the deposit. On March 28, 1924, after the deposithad been made the Syndicate executed a deed which purported to be anassignment by the Syndicate to the defendant of the benefit of the decree.Subsequently the Crown was requested by the Syndicate to make thegrant under the decree directly to the defendant, which was refused.
After the refusal, two deeds were executed dated March 2,‘ 1925, andnumbered 471 and 472.
Deed No. 471 was framed as an out and out conveyance by the Syndi-cate to the defendant of the whole of the estate with the exception of adefined portion.
‘v
The operative part of deed No. 472 was as follows : —
Now know ye ard these presents witness that the party of the firstpart shall hold and stand possessed of the said lands as absolute ownerand with full power and authority to manage and control the same, tofell and remove and dispose of the timber therein and to put the said landsto such use as he shall think fit in his absolute discretion and to sell thesaid lards for the best available price with or without the timber therein,such price to be in his absolute discretion, provided that if the price isless than one hundred rupees per acre, he shall obtain the approval ofthe parties of the second part for such sale and to apply all moneysrealized by him in respect of the sale of such timber and of the said landsor any portion thereof in payment of such sums as shall Be-due andpayable to him for moneys advanced to the Crown for the said purchasefrom the Crown and moneys expended on the management, control,and working of the said lands as aforesaid and of such compensation orprofits for himself as he shall think- reasonable and equitable in hisdiscretion, and shall pay over the balance pro rata according to theirrespective interests among the parties of the second or third parts ortheir successors in title ….
Held, that the transactions effected by deeds Nos. 471 and_472 createda security for money advanced, which, in certain events, imposed uponthe creditor duties and obligations in the nature of trusts.
Held further, that deed No. 472 did not impose upon the-defendantan' express obligation to sell; it only authorized him to sell and providedfor the distribution of the proceeds, if he did sell.
Held also, deed No. 472 did not preclude the debtors from at anytime redeeming the mortgaged property.
The principle of the Roman-Dutch law, which does not allow anagreement between debtor and creditor to the effect that, if the debtbe not paid within the specified time, the property mortgaged shouldbecome the property of the creditor, is not less applicable in Ceylonthan it is in South Africa.
288 Delivered by LORD TOMLIN—Saminathan Chetty v. Vander Poorten.
A PPEAL from a judgment of the Supreme Court.1
November 24, 1932. Delivered by Lord Tomlin—
In this ease the appellant appeals to His Majesty in Council from adecree of the Supreme Court of the Island of Ceylon, dated March 12, 1930,whereby a decree of the District Court of Colombo in favour of theappellant, dated July 1.9, 1929, was set aside and the action was dismissedwith costs.
The relevant facts are set out in the succeeding narrative.
In the year 1923, an action as to title to an estate in Ceylon, consistingof about 14,000 acres of forest land, was in progress between the Crownand certain persons who and whose successors in title will be hereafterreferred to collectively as the Syndicate. The appellant is the representa-tive of a person, now deceased, who was a member of the Syndicate intwo capacities, one original, and the other derivative.
The Syndicate had expended sums to the amount of Rs. 200,000 inacquiring the estate from those whom they believed to be the owners ofit. After they had done so the Crown asserted title to it, and the actionin question resulted.
On March 28, 1923, a decree was made in the action between the Crownand Syndicate whereby it was declared that the estate was the propertyof the Crown, but whereby also the Crown submitted to sell the estateto the Syndicate provided that a sum of Rs. 275,000 was deposited withthe Settlement Officer within twelve months from the date of the decree.
The Syndicate, towards the end of the period allowed under the decreeof March 28, 1923, for making the deposit, had succeeded in raising nomore than Rs. 64,000 towards such deposit, and the respondent, who wasapproached to assist the Syndicate, provided at' the last moment thebalance, viz., Rs. 211,000. By means of the Rs. 64,000 already raisedand the money provided by the respondent the deposit was in fact madejust before the time for making it expired.
A sum of Rs. 5,160 was immediately repaid to the respondent, so thatthe sum actually provided by him was Rs. 205,840.
No definite agreement appears to have been made between theSyndicate and the respondent at the time when the money was providedas to the terms upon which it was provided, but the respondent theninstructed his proctor to see that he was properly protected.
On March 29, 1924, after the deposit had been made, the Syndicateexecuted a deed which purported to be an assignment by the Syndicateto the respondent for Rs. 30,000 of the benefit of the decree of March 28,1923. No sum of Rs. 30,000 was in fact paid or intended to be paid byIhe respondent to the Syndicate.
Having regard to the circumstances of its execution their Lordshipsare of opinion that the only purpose of this document was to give therespondent a temporary security for the money he had. advanced.
Subsequently the Crown were requested by the Syndicate to make thegrant under the decree of March 28, 1923, directly to the respondent,but this request was refused. 1
After the refusal two deeds were executed, respectively dated March 2,1925, and numbered in the record 471 and 472.
1 31 N. L. R. 270.
Delivered by LORD TOMLIN—Saminathan Chetty v. Vender Poorten.289
Deed No. 471 recited the deed of March 29, 1924, and the request madeto the Crown, but not the Crown’s refusal of such request, and was framedas an out and out conveyance by the Syndicate to the respondent of thewhole estate with the exception of a defined portion of 1,000 acres on thesouth-eastern side thereof, which had apparently been otherwise disposedof, to hold unto the respondent, his heirs, executors, administrators, andassigns absolutely and for ever.
Deed No. 472 was of even date with deed No. 471. Upon its con-struction and effect the result of this appeal mainly depends. It wasmade between the respondent of the first part and the persons thenconstituting the Syndicate of the second and third parts, the group ofpersons who were of the third part being persons claiming derivativeinterest under original members of the Syndicate.
This deed contained recitals in the following terms : -—
“ Whereas the party of the first part has provided funds and assistedthe parties of the second part to deposit with the Settlement Officerthe purchase money for the conveyance to them by the Crown of thelands referred to in the schedule hereto in the terms of the decree intheir favour in case No. 3,656 of the District Court of Badulla, onthe 28th day of March, 1923, and the said parties of the second parthave by a deed No. 448 dated the 29th day of March, 1924, andattested by the Notary attesting these presents assigned to the partyof the first part all their right, title, and interest in and to the saiddecree and covenanted therein to convey the said land to the partyof the first part in the event of the Crown refusing to issue a Crowngrant in his favour instead of issuing a Crown grant in their favour.
“ And whereas the Crown grant in question is to be issued in favourof the parties of the second part, and not in favour of the party of thefirst part and the parties of the second part and third part have there-fore at the request of the party of the first part conveyed to him thesaid lands by deed No. 471 bearing even date with these presents andattested by the Notary attesting these presents.
“ And whereas the parties of the second and third parts haverequired the party of the first part to enter into these presents and todeclare their interests in the said premises.”
The operative part of the. deed was as follows: —
“ Now know ye and these presents witness that the party of ■ thefirst part shall hold and stand possessed of the said lands as absoluteowner and with full power and authority to manage and control thesame, to fell and remove and dispose of the timber therein and to putthe said lands to such use as he shall think fit in his absolute discretionand to sell the said lands for the best available price with or withoutthe timber therein, such price to be in his absolute discretion, providedthat if the price is less than rupees one hundred (Rs. 100) per acrehe shall obtain the approval of the parties of the second part for suchsale and to apply all moneys resized by him in respect of the sale ofsuch timber and of the said lands or any portion' thereof in paymentof such sums as shall be due and payable to him for moneys advancedto the Crown for the said purchase from the Crown and moneysexpended on the management, control and working of the said lands
10J. N. J1 1GS81 (4/52)
290 Delivered by LORD TOMLIN—Saminathan Chetty v. Vender Poorten.
as aforesaid and of such compensation or profits for himself as he shallthink reasonable and equitable in his own discretion, and shall payover the balance pro rata according to their respective interests amongstthe said parties of the second and third parts or their successors in titleand such other person or persons as shall have a legal claim to orinterest in the said lands, provided, however, that it shall not be obliga-tory on any purchaser from the party of the first part to see to the7 application of the purchase money by the said party of the first parti in manner "herein provided and receipt by him shall be a full and, complete discharge to such purchaser for the payment of such purchase nioneyf”
^Possession was taken by the respondent of the property conveyed bydeed No*, 471 after the dkecution thereof, and he has since remained inpossession. The respondent after going into possession admittedly cutand sold a considerable quantity of timber and alleges that he expendedlarge sums in cultivating and improving the estate. No account ofreceipts or expenditure has Over been rendered by the respondent, tOn March 30, 1925, the Crown executed a conveyance of the estate7 tothe Syndicate or-the survivors of the original members thereof. /^Efforts to sell the estate were apparbntlwmade/from time to time bothby the respondent and members of the Syndicate, but without resultOn March 14, 1926;' certain of-the Syndicate, having had interviewswithjhe respondent with a view to redeeming the estate and being dis-satisfied with the'position, wrote to him a letter which, omitting formalparts, was in the following terms : —
“We trust that you will not,-in the midst of your other engagements,forget to send us in time the promised reply as to the amount you willaccept in settlement of your claims on Tenketiya. Both iry our' inter-view at Galagedera on the 5th instant and/at the Grand Oriental Hotelon the 11th and 12th instant we made odr position quite/clear to you.You are fully aware that the present /unsatisfactory state of affairscannot possibly continue any longer/Without irreparable loss to us.We have already informed the people who have offered to help us withthe necessary moneys of your promise to give us a reply within fourdays as to the amount to be paid to you, and we hope not only to havethe reply in time, but that "in naming the amount you will considernot only your interest as financier in the matter and the possibilityof your making a profit by holding on to the land indefinitely, but alsoyour responsibility to us as our trustee in respect of the land.”
The answer of the respondent on the s^ame day was as follows : —
“ In reply to your letter of this day I am willing to' take Rs. 500,000(five hundred thousand rupees) as consideration for reconveyance ofthe Tenketiya lands provided_jthat the claims of the Bandas and anyother claims in respect of the lands are settled by you.
"As an alternative I have no objection to paying you ..rupees thirtyper acre in full settlement of all your interests in the land provided thatall claims are settled by you.”,
The amount claimed by the respondent was regarded by those seekingto redeem exorbitant, and as no sale was, effected the action out of which
Delivered by LORD TOMLIN—Saminathan Chetty v. Vander Poorten. 291
this appeal arises was^-bbgun by certain members of' the Syndicate?(including the person of whom the appellant is the representative) againstthe respondent and the other members of the Syndicate who did not joinas plaintiffs.
By reason of his twofold interest the person whom the appellantrepresents was entered on the record twice as the third plaintiff and asthe fifth plaintiff and in the subsequent proceedings reference is, some-times made to this record as though the third and fifth ^lamfmS' weretwo different persons.
The action was in the nature of an action for breach of trust andredemption. After it was begun the plaintiffs obtained leave td~amend >their plaint by adding an allegation that the respondent had by a docu7ment dated July 26, 1926, fraudulently and in breach of trust given to oneFombertaux an option of purchase over the site and to add Fombertauxas an additional defendant to the action.
The amended plaint stated (paragraph 7) the willingness of the plaintiffsto redeem upon the footing that the amount due to the respondent was theaggregate total of the sum advanced, money expended, interest at 9 percent, per annum to the date of the plaint, and a sum of Rs. 25,000 forreasonable compensation and profit for the respondent’s services, suchaggregate total amounting, apart from expenditure, to Rs. 274,090.
By paragraph 8 of such plaint the plaintiffs pleaded that by reason ofdeed No. 472 and of the facts alleged in the plaint, the respondent heldthe estate in trust for the plaintiffs and the defendants other than therespondents. In paragraph 10 the plaintiffs expressed their willingnessto pay what was due and alleged that the Rs. 500,000 claimed by therespondent was unreasonable. In paragraph 11 they claimed an accountof all moneys expended by the respondent and asked the Court to declarewhat sum was reasonable and equitable compensation and profit for hisservices.
Ih paragraph 13 the plaintiffs alleged that the respondent was fraudu-lently and in breach of trust attempting to effect a fictitious sale to anominee of his own at a price less than the market price, and in paragraph17 the option of July 27, 1926, to Fombertaux was stated and allegedto be fraudulent and in breach of trust.
The prayer of the amended plaint was in the following terms :—-s
“Wherefore the plaintiffs pray—
That the Court do declare the sum of Rs. 274,090 to be a reason-able sum to be paid to the first defendant in respect of the said loanand compensation and profit or in the alternative that the Court dodeclare what sum is reasonable.
That the first defendant be ordered to render an account ofmoneys expended by him on the management, control and working ofthe said property and of moneys received by him in respect of the saidproperty and that the plaintiffs be allowed to contest or surcharge thesame.
That the Court do order the first defendant, on receipt of thesaid sum and the amount of moneys so expended when the accountis taken, to reconvey to the plaintiffs and the second, third, fourth, fifth,
"292 Delivered by LORD TOMLIN—Saminathan Chetty v. Vander Poorten.
sixth and seventh defendants or their’ assigns respectively the saidproperty in the schedule described and that in that connection theCourt may give all necessary orders and directions.
For an injunction restraining the first defendant from selling thesaid property without the plaintiffs’ approval during the pendency ofthis action.
(4a) That the said deed No. 1,221 dated 27th July, 1926, attested byLeslie Mack, Notary Public, be declared null and void and cancelledaccordingly.
For costs ; and
For such other and further relief in the premises as to this Courtmay seem meet. ”
By his answer the respondent, while admitting deeds Nos. 471 and 472.alleged that the plaintiffs had no right or title to obtain a reconveyance,and denied that he held the estate in trust for the plaintiffs andthe other defendants. He further denied the plaintiffs’ right to anyaccount or to any declaration as to his compensation. He denied theallegations of paragraph 13 of the amended plaint, and while admittingthe option given to Fombertaux, denied that it was fraudulent or inbreach of trust. The two concluding paragraphs of the respondent’sanswer (in which answer he is throughout referred to as the first defend-ant) were in the following terms: —
“ 14. Further, the first defendant states that he has duly performedand is willing to perform the terms of agreement as set out in the saiddeed No. 472 and that no cause of action has accrued to the plaintiffsagainst the first defendant.
“ 15. As a matter of law the first defendant states that the plaintiffshave no rights of action in any event until the first defendant sells thesaid lands in terms of the said deed No. 472 and that this action ispremature and cannot be maintained.”
In fact, Fombertaux never exercised the option of July 26, 1926, andthe question in regard to it was, therefore, not pursued.
Further, before the trial of the action the respondent settled with allthe members of the Syndicate except the. person whom the appellantrepresents.
The person who the appellant represents died before the trial and theappellant was substituted for him.
The District Judge gave his judgment on July 19, 1929. After con-sidering the question of the admissibility of oral evidence to prove whetherunder the deeds Nos. 471 and 472 the respondent held the estate upona trust and ruling it was admissable, he held that the deeds Nos. 471and 472, taken by themselves, indicated a trust, and that the evidenceshowed that the respondent at the time of the advance was willingto give back the property directly he was paid his money, and that therebeing no express provision applicable if the respondent refused or failedto sell, he must in that event reconvey the estate if called upon to do soand upon being paid the money due to him. The learned Judge furtherheld that the respondent had failed to sell the estate and had becomeliable to retransfer ' the shares of the person whom the appellantrepresents.
Delivered by LORD TOMLIN—Saminathan Chetty v. Vander Poorten. 293
The operative part of the formal decree was in the following terms : —
“ It is ordered and decreed that the first defendant is holding theproperty set out in schedule hereto in trust for the plaintiffs andsecond to seventh defendants.
“ It is further ordered and decreed that the said first defendant dofile in Court an account showing the expenses incurred by him in themanagement of the property described in schedule hereto and allmoneys realized by him by the sale of timber or other produce of the saidproperty—this account should be filed within one month from datehereof with notice to the substituted plaintiffs (sic) in place of the thirdand fifth plaintiffs deceased who will be entitled to falsify or surchargethose accounts.
‘ It is further ordered and decreed that first defendant on receipt ofmoney due to him and the amount of money incurred by him in themanagement of the said property as aforesaid do reconvey to thesubstituted plaintiffs in place of the third and fifth plaintiffs theirshares of the said property.
“ It is further ordered and decreed that the first defendant do pay tothe substituted plaintiffs in place of the third and fifth plaintiffsdeceased their costs of this action and also to the added defendanthis costs up to 31st day of July, 1928.”
This decree, even upon the assumption that the learned Judge was rightin his conclusion, does not seem, in their Lordships’ opinion, to giveeffect accurately to that conclusion. It makes no provision in regard tointerest and contemplates a reconveyance to the redeeming plaintiff ofhis shares on payment, not of his proportion, but of the whole of whatwas due to the respondent.
The respondent appealed. The appeal was heard by Fisher C.J. andAkbar J., and judgment was given on March 10, 1930.
The appeal was allowed and the action was dismissed.
The Chief Justice said the question for decision was with regard to theeffect of deed No. 472, and that in his opinion the relationship createdby that document was not that of trustee and cestui que trust, but waspurely contractual, and that he did not think that it was correct to regardthe land as being a security for a debt.
Mr. Justice Akbar held that the respondent was right when he pleadedthat no rights could accrue to the plaintiff till the property had been soldand that the action was premature, and further that there was no suchtrust as contended for by the plaintiff.
The formal decree provided (inter alia) for the payment by the plaintiffof the taxed costs of the action in the Court below up to and includingJuly 31, 1928, of the added defendant Fombertaux.
Having regard to the views which were taken by the learned Judgesin the Court below, there was no discussion below of the Law of Ceylonin regard to trusts and mortgages, and their Lordships have thereforebeen without assistance from the lower Courts on these matters, whichseem to them of some importance in the case.
In their Lordships’ judgment, the first question is as to the constructionand effect of the deeds Nos. 471 and 472.
294 Delivered by LORD TOMLIN—Saminathan Chetty v. Vander Poorten.
Having regard to the circumstances leading up to and surroundingtheir execution and to the language employed therein, these deeds, intheir Lordships' opinion, clearly do not operate to vest in the respondentan absolute interest in the property conveyed.
It cannot be overlooked that the Syndicate had expended aboutRs. 200,000 on the property before they got into conflict with the Crown,and that they provided Rs. 64,000 towards the total sum which had to bedeposited under the decree made in the Crown’s favour. They could,therefore, have had no interest in entering into an arrangement by whichin effect the whole property passed absolutely to the respondent and theirexpenditure was wholly lost.
But the language of deed No. 472 is, their Lordships think, inconsistentwith any . such conclusion. By the terms of the documents (1) the re-spondent cannot sell below a certain price without the consent of theoriginal members of the Syndicate ; (2) if he does sell he has imposedupon him an obligation to deal with the proceeds in a specified manner;
the distribution |Of the proceeds of sale includes payment to therespondent of “ such Sums as shall be due and payable to him for moneysadvanced to the Crown for the said purchase from the Crown”; (4) theultimate balance of the proceeds of sale is to be distributed “ pro rataaccording to their interests amongst the said parties of the second andthird parts or their successors in title and such other person or personsas shall have a legal claim or interest .in the said lands”; and (5) thepurchaser is relieved of any obligation to see to the application of thepurchase money.
In these circumstances and upon this language their Lordships concludewithout hesitation that the transaction effected by deeds Nos. 471 and472 was the creation of a security for money advanced, which in certainevents imposed upon the respondent, who was the creditor, duties andobligations in the nature of trusts.
Deed No. 472 does not, however, impose upon the respondent anexpress obligation to sell, it only authorizes him to sell and provides forthe distribution of the proceeds, if he does sell.
The question is what is the position if the respondent does not sellor so long as the property remains unsold.
The policy of the Roman-Dutch law, being the law which governs inCeylon so far at any rate as this case is concerned, appears to be againstallowing the mortgage property to become the property of the creditorif the mortgage debt is not paid off within the specified time. In thisrespect the Roman-Dutch law recognizes something which bears a closeresemblance to the principle of English law embodied in the maxim“Once a mortgage, always a mortgage.” This trend of policy is wellillustrated by the case of John v. Trimble1 decided in the Transvaal HighCourt. In that case the debtor agreed with the creditor that the mort-gaged property should be reconveyed if the debt was paid off Within twoyears, but that otherwise the creditor was to be freeTd sell: and pay himrself. More than two years after the agreement the debtor sought to
• (1902) 1 T. H 140.
Delivered by LORD TOMLIN—Saminathan Chetty V. Vander Poorten. 295
redeem, but the creditor nevertheless sold to the defendant. It washeld that the debtor was entitled to redeem against the defendant. InnesC.J. in his judgment accepted the view that the policy of the law wasagainst allowing an agreement between debtor and creditor to the effectthat if the debt be not paid at the proper time the property was to becomethe property of the creditor, and held that the transfer by the creditorto the defendant could not operate as a sale so as to defeat the debtor’sright to redeem the property.
So far as Ceylon is concerned the case of Scribohamy v. Rattararihamy1seems to their Lordships to indicate that the benevolence of the Roman-Dutch law towards the mortgagor is not less in Ceylon than it is in SouthAfrica.
The conclusion must therefore be that nothing in deed No. 472 canpreclude the debtors from at any time redeeming the mortgagecUproperty.The fact that the respondent settled with all the^ debtors except onecannot put that one in a wors^ position, and their Lordships are of opinionthat the appellant, as representing the person with whom no settlementwas made, is entitled to redeem his shares on payment of his rateableproportion of the .total amount due to the respondent.
In ascertaining ithe amount due to their Lordships think that no regardshould be had to/ the provision of deed/ No. 472/ as to “ compensation orprofits.” That provision is/ expressed t^/ operate only in the event whichhas not happened of the respondent exercising his power of sale. It is,however, right /that reasonable interest should be alloWed on moneysadvanced or expended./■ /
bearing these considerations in mind, their /Lordships think that theappeal should/be allowed and that the decree below should be dischargedexcept so far as the costs of the added defendant Fombertaux wereordered to b4 paid. That direction should stand. /
Their Lordships do not, however, think that the/decree of the DistrictJudge should be restored, but that a decree should be framed providingfor the following matters : —
/A declaration that upon the true construction of deeds Nos. 471and A72 and in the events which have happened the appellant is entitledto redeem upon the terms hereinafter appearing the shares of the personwhom he represents in the property conveyed by deed No. 471. I
A direction for the taking/of the following inquiry and accounts : —
<i.) An inquiry as to me amount of the shares in the property inquestion of the person whom the appellant represents.
(ii.) An account of what is due to the respondent for principal moneysadvanced to provide the deposit under the decree of March 28,1923* and for moneys properly expended by him in the manage-ment and control of the property, together with interest at suchrate as the Court- shall deem reasonable upon the moneysadvanced or expended from the respective dates of such advanceor expenditure to the date of decree.–
»2 C. L. R. 36.
296
Silva v. Caruppen Chettiar.
(iii.) An account of rents and profits (including proceeds of sale oftimber and other produce) of the property received by therespondent or by any other person or persons by the order or forthe use of the respondent or which without the wilful defaultof the respondent might have been so received, with interestat such rate as aforesaid upon such rents and profits from therespective dates of receipt to the date of decree.
(iv.) An account of the costs payable to the appellant by the respondentunder their Lordships’ direction as to payment of costs herein-after contained and remaining unpaid.
A direction that the amounts certified under account (iii.) shall bededucted from the amount certified under account (ii.) and that uponpayment by the appellant to the respondent of the proportionate partof the balance so found corresponding with the shares which shall becertified under inquiry (i.) to be the shares in the property of the personwhom the appellant represents, less any costs payable to the appellantunder account (iv.) remaining unpaid, the respondent shall reconveyto the appellant the shares in the property of such person.
Such other directions as the Court may deem necessary or appro-priate for working out the decree.
. The respondent has throughout contended that the action was prema-ture and ought to be dismissed, and disputed the plaintiffs’ right toredeem. In these circumstances their Lordships are of opinion that therespondent ought to pay the costs of the person whom the appellantrepresents and of the appellant of the action up to the decree and of theappeal before the Supreme Court and of the appeal to His Majesty inCouncil.
Any subsequent costs in this action in working out the decree or other-wise will remain to be dealt with in due course by the Court having seisinof the matter.
Their Lordships will accordingly humbly tender to His Majesty advicein accordance with the conclusions which are indicated in this judgment.
Appeal allowed.
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