ANEES v. BANK OF CHETTINAD

111-NLR-NLR-V-42-ANEES–v.-BANK-OF-CHETTINAD.pdf


436
Anees v. Bank of Chettinad.
1941PresentHoward C.J. and Soertsz j.
ANEES v. BANK OF CHETTINAD.
269—D. C. Colombo, 1,091.
Partition—Fidei commissum property—Partition action by fiduciaries—Decree entered without reference to fidei commissum—Sale by fidu-ciaries:—Purchase without notice of fidei commissum—Fidei commissumwiped out by partition decree—Partition Ordinance, s. 9.
Where property subject to a fidei commissum is partitioned without■ reference to the fidei commissum and the title obtained under the decreeby a fiduciary is transferred to a bona fide purchaser without notice,—Held, that the purchaser obtained a valid title free from the fideicommissum.
Kusmawaihi v. Weeraziuyhe 35 .V. L. R. 265). followed.
Babe^i Ko.v.t ■>(9 N. 1.. R. 251), disiinijmsnod.
437
HOWARD C.J.—Anees v. Bank of Chettinad.
Held, further, that where a deed of gift provided inter alia that the saiddonee nor "her heirs and descendants shall not under any plan orpretext whatsoever, sell, mortgage or alienate the said premises herebygiven and granted but that the same shall be possessed and enjoyedby the said donee and her heirs and descendants in perpetuity under thebond of fidei commissum ”, the deed created a valid fidei commissum.Coudert v. Don Elias (17 N. L. R. 129), followed.
A
PPEAL from a judgment of the District Judge of Colombo. The factsare stated by him as follows : —
“ The original owners of the property were Hassan Lebbe and HadjiUmma who by deed No. 10807 dated May 21, 1859 (P 3) gifted it to theirgrand-daughter Kadija Umma alias Mohideen iNatchia subject to afidei commissum in favour of her heirs and descendants. Kadija Ummawas married to one Ahamado Ali and had two daughters Sevata Ummaand Safia Umma and on the death of Kadija Umma in 1869 the propertyvested in them in equal shares. But in 1903 Ahamado Ali suppressingdeed No. 10877 (P 3) which was unregistered executed a deed No. 522 ofSeptember 25, 1903 (D lj claiming to be the owner of the said land byright of prescriptive possession. This deed was duly registered. There-after by the deeds of gift No. 544 of November 6, 1903, and No. 546 ofNovember 7, 1903 (D 2 and D 3) he purported to gift the said land inequal shares to his daughters Sevata Umma and Safia Umma. SevataUmma by deed No. 515 of November 29, 1907 (P 7) gifted her share toher daughter Saleema. On November 19, 1914, Safia Umma institutedaction No. 38517 of this Court to partition the land between herself andSaleema Umma without reference to any fidei commissum or to deedNo. P 3 and under the final decree lot B was allotted to Saleema Umma.Sevata Umma died in 1931 leaving her surviving two children, theplaintiff and the first defendant, and the children of Saleema Umma,the second and third defendants. Plaintiff claims that on the death ofSevata Umma lot “ B ” devolved on plaintiff and the first, second, andthird defendants under the fidei commissum created by deed P 3.
The fourth defendant contends that the deed did not create a fideicommissum and that, in every event, it was invalid according to Muslimlaw. He further contends that the decree in the partition action gaveabsolute title to Safia Umma and Saleema free from any fidei commissumand claims the entire land absolutely on the title set out by him. ”
The District Judge held that the deed P 3 interpreted according toMuslim law was invalid as possession of the property was not given at thetime of its execution. In view of this finding he did not consider itnecessary to deal with the other points raised. He, however, held thatif the deed of gift was held valid, it created a fidei commissum.
N. Nadarajah (with him E. B. Wikremanayake and R. N. Ilangakoon),for plaintiff, appellant.
H. V. Perera, K.C. (with him N. E. Weerasooria, K.C., N. K. Choksyand A. C. Nadarajah), for fourth defendant, respondent.
June 4, 1941. Howard G.J.—
This was an action for a declaration of title in favour of the plaintiffend the first, second, and third defendants to certain property subjectto ~ fidei commissum. The action was brought by the plaintiff who asked,
438
HOWARD C.J.—Anees v. Bank of Chettinad.
moreover, that the said property should be sold under the provisions of thePartition Ordinance. The plaintiff based his title on a deed No. 10807 ofMay 21, 1859, P 3, by which Mahallam Hassen Lebbe and Hadji Ummathe original owners of property including the land in dispute dealt withit in the following terms : —
“ Know all men by these presents that we Hadji Umma and MahallamHassen Lebbe husband and wife, both residing at Marendahn in Colombofor and in consideration of the love and affection which we have untoour grand-daughter Mohideen Natchia, daughter of Hassen Lebbe SinneLebbe Marikar and for other causes and considerations us hereuntospecially moving have given, granted, assigned, transferred and set overas we do hereby give, grant, assign, transfer and set over unto the saidMeyedin Natchia as a gift absolute and irrevocable but under and subjectto the terms and conditions hereinafter set forth and declared (followthe particulars and boundaries of the parcels in question).
To have and to hold the said premises with all and singular the appur-tenances thereunto belonging unto her the said Mohideen Natchia uponthe following terms and conditions, that is to say, that the said HadjiUmma and Mahallam Hassen Lebbe during their mutual lives shallhave the free use, possession and occupation of the hereby grantedpremises that the said Mohideen Natchia nor her heirs and descendantsnor her husband shall not under any plan or pretext whatsoever sellmortgage or alienate the said premises hereby given and granted' norrents issues and profits thereof but that the same shall be possessed andenjoyed by the said Mohideen Natchia and her heirs and descendants in.perpetuity under bond of fidei commissum that the said property herebygiven and granted nor the rents issues and profits thereof shall not at anytime be liable to be attached, seized or sold for any debt of the saidMohideen Natchia or that of her husband or of her heirs anddescendants.
Provided always that nothing herein contained shall prevent the saidMeyedin Natchia by deed or testamentary disposition to give andgrant the said premises or any part thereof to any of her children butthe same must be given and granted strictly under and subject to allthe restrictions as are hereinbefore expressed ; otherwise such grantshall be null and void and provided that if the said Meyedin Natchiashould die without having any children or without leaving any heirsthen and in that case the said property hereby given and granted shallgo to and be the property of the Moorish Mosque at Marandahn underthe said restrictions. ”
Kadija Umma alias Mohideen Natchia, the grand-daughter of the donorsunder this deed, was married to one C. L. M. Ahamado Ali and had twochildren, Sevata Umma and Safia Umma. On September 15, 1903,the said C. L. M. Ahamado Ali registered a document No. 522 that purportedto be a declaratory act declaring himself entitled to the property dealtwith by P 3. By deeds dated November 6 and 7, 1903, the said C. L. M.Ahamado Allie gifted the same property in equal shares to the said SevataUmma and Safia Umma. By deed dated October 29, 1909, the saidSevata Umma conveyed the property to her daughter Saleema.On may 19,1914, the said Safia Umma brought an action
HOWARD C.J.—Anees v. Bank of Chettinad
439
No. 38,517 D. C., Colombo, for the partition of the said property. Byfinal decree in the said action dated August 24, 1915, the said SaleemaUnima was declared entitled to the property that is the subject-matterof this action. The said Saleema Umma died on June 18, 1931, leavingtwo children, I. L. M. Anees, the plaintiff, and I. L. M. Sameer, the firstdefendant. The said Saleema Umma, the other daughter of the saidSevata Umma, had predeceased the latter in 1915 leaving two childrenBurhan Mohideen, the second defendant, and Sitti Ralia, the thirddefendant. The fourth defendant was made a party to this actionby the plaintiff as he claims to be entitled to and is in fact in possessionof the property. He bases his claim through the rights obtained bySaleema Umma in Partition Action No. 38,517 hereinbefore mentioned.By mortgage bond No. 7438 dated April 25, 1010, the said SaleemaUmma mortgaged the undivided half share of the property dealt withby P 3 to one P. S. S. M. K. Kathiresan Chetty. By the above-mentionedpartition decree she was awarded the property in dispute. On or aboutNovember 16, 1916, she died intestate and letters of administration weregranted to her husband, S. D. M. Burhan. By a series of documentsending with deed No. 2554 dated March 11, 1931, the rights, title andinterest of Saleema Umma and Safia Umma passed to the fourth defendantwho claims that he is a bona fide purchaser for value without notice of thealleged fidei commissum hereinbefore mentioned. The learned DistrictJudge held that the deed P 3 interpreted according to Mohamedan lawwas invalid inasmuch as possession of the property was not given at thetime of its execution. In coming to this conclusion he stated that hewas bound not only by the ruling of the Privy Council in Weerasekera v.Pieris1, but also by the interpretation of this ruling by the SupremeCourt in Sultan v. Pierisa. In view of his finding on this point, thelearned District Judge did not consider it necessary to deal with theother points raised. He did, however, state that, although there may besome difficulty in ascertaining the actual beneficiaries, the deed P 3did contain a sufficient designation of such beneficiaries and if valid,P 3 did create a valid fidei commissrum. The learned District Judgeapplied to the facts of this case what he regarded as the principle laiddown in Tillekeratne v. Abeysekera’, Abeysundera v. Abeysundera', andBabey Nona v. Silva “. In so applying this principle he held that the titleof Saleema Umma and Safia Umma was subject to the fidei commissumin spite of the decree for partition and the fourth defendant who hadpurchased those interests was in no better position.
The arguments on this appeal have centred round three questions asfollows :—
Was the validity of P 3 to be decided by the priciples of Moha-medan law ?
<b) Did P 3 create a valid fidei commissum ?
(c) If a valid fidei commissum was created, is it binding on the fourthdefendant whose title is based on the decree of August 24, 1915,in the partition action No. 38,517 ?
1 24 N. L. R. 281.>2 N. L. R. 313.
3 35 N. L. R. 76.* 12 N. L. R. 373.
(
5 9 N. L. R. 251.
440
HOWARD C.J.—Anees v. Bank of Chettinad.
In order to come to a correct conclusion on (c) a careful scrutiny of theauthorities is necessary. Section 9 of the Partition Ordinance (Cap. 56,Leg. Enactments of Ceylon) is worded as follows: —
“ 9. The decree for partition or sale given as hereinbefore providedshall be good and conclusive against all persons whosoever, whateverright or title they have or claim to have in the said property, althoughall persons concerned are not named in any of the said proceedings,nor the title of the owners nor of any of them truly set forth, and shallbe good &nd sufficient evidence of such partition and sale and of thetitles of the parties to such shares or interests as have been therebyawarded in severalty :
Provided that nothing herein contained shall affect the right of anyparty prejudiced by such partition or sale to recover damages from theparties by whose act, whether of commission or omission, such damageshad accrued.”'
The phraseology employed in . this provision is definite and uneqivocalleading to the inevitable conclusion that a decree of the Ordinance vestedabsolute and indefeasible title wiping out all titles and interests notprotected by the decree. That this was the view so held is apparentfrom Jayewardene’s Partition in Ceylon, 2nd Edition, pp. 213 and 214.In Tillekeratne v. Abeysekera', this view so widely held and with suchjustification was in an obiter dictum by their Lordships of the PrivyCouncil deemed to be untenable. The case before the Privy Councilwas concerned with the question whether by virtue of the jus accrescendithe defendants were entitled to certain shares of the property which theyclaimed under a will creating a fidei commissum. It had nothing to dowith the Partition Ordinance. The obiter dictum that has had suchdevastating effect on the preconceived views as to the indefeasibility oftitles acquired under the Partition Ordinance was as follows : —
“ Not one of these enactments professes to deal with or alter the lawof fidei commissum, and in their Lordships’ opinion they cannot beconstrued as having that effect. The first and second of them appearto be limited to cases in which the persons interested, whether as jointtenants or as tenants in common, are full owners, and are not burdenedwith a fidei commissum; and even if they were not held to be so limited,the partition which they authorise would not necessarily destroy afidei commissum attaching to one or more of the shares before partition.”The first successful attack on titles based on a partition decree wasmade in the case of Babey Nona v. Silva (supra) . In this case the land indispute was donated by one Maria Silva to her three children subject to afidei commissum in favour of their lineal descendants from generation togeneration. As the result of a partition action a portion of the land,lot B, was allotted to Diyonis Silva one of the donor’s children. Lot Bwas sold under writ and bought by the defendant, another of the donor’schildren. Diyonis Silva died a few months prior to the action leavingfive children who in asking for a declaration of title claimed that on thedeath of their father lot B came to them under the fidei commissum,It was held by the Court, Lascelles A.C.J. and Middleton J., that the
1 (1897) 2 N. L. R. 312.
441
HOWARD C.J.—Anees v. Bank of Chettinad.
partition decree did not enlarge the life interests of the fiduciarius—Diyonis—into absolute ownership. In coming to this conclusion
ascelles A.C.J. cited the decision of Lord Watson in Tillekeratne v.Abeysekera (supra) that “ the partition …. would not necessarilydestroy a fidei commissum attaching to one or more shares beforepartitionThe partition decree operated subject to the conditions of
the fidei commissum and in no way prejudicially affected the rights of theplaintiffs as fidei commissaries under the deed. It will be observed thatthe decision turned on the fact that it was the fiduciarius who becameentitled to the plot in dispute on partition and that the defendant inpurchasing this plot bought knowing that it was subject to a fideicommissum Babey Nona v. Silva (supra) was considered in Abeysunderav. Abeysundera (supra) another of the cases cited by the learned DistrictJudge. This case is merely an authority for the proposition that landsubject to a fidei commissum may be partitioned or sold under thePartition Ordinance. The judgment in Babey Nona v. Silva (supra) wasnext followed in the case of Weerasekera v. Carlina'. The facts in thiscase were indistinguishable from those in Babey Nona v. Silva (supra)and Counsel in arguing that the fidei commissum was extinguished by thepartition decree could only contend that this latter case should be givenreconsideration as it is in conflict with section 9 of the PartitionOrdinance.
The next case requiring consideration is that of Marikar v. Marikar Before the decision in this case, however, in Babunona v. Cornelis* theplaintiffs sought to compel the defendants to convey to them land whichhad been allotted to the defendant under a partition decree but whichhad been purchased by him in trust for the plaintiffs. The SupremeCourt held that the right of the plaintiffs to the land had been extinguishedby the partition decree and that they were only entitled to a decree fordamages against the defendant. This decision was followed in Fonseka v.Fonseka'. For the review of these two decisions a special Courtcomposed of three Judges was constituted to hear Marikar v. Marikar(supra). The question that arose for the decision was whether a trust,express, or constructive, is extinguished by a decree for partition orwhether it attaches to the divided portion which on the partition isassigned to the trustee. It was held by the Court, Bertram C.J., Shawand de Sampayo JJ., that the principle underlying the decisions withregard to the partition of fidei commissum property apply and whereonce a divided portion is assigned to the trustee in respect of theundivided share, which was the subject of the trust, the object of thePartition Ordinance to put an end to undivided ownership of land iscarried out, but the rights and obligations of the trustee and beneficiaryinter se remain as they were. Marikar v. Marikar (supra), is, therefore, anauthority for an extension of the principle laid down by Tillekeratne v.Abeysekera (supra), Babey Nona v. Silva (supra), and Abeyesundera v.Abeyesundera (supra), by its application not only to fidei commissumproperty, the subject of a partition action, but also to property held undera trust. It cannot be regarded as a further extension of the principle
> 16 X. L. R. 1.* 14 N. L. R. 45.
* 22 X. L. R. 137.• (1891) 9 S. C. C. 19S.
442
HOWARD C.J.—Anees v. Bank of Chettinad.
with regard to fidei commissa as formulated in the three cases I havementioned. At the same time a passage in the judgment of Bertram C.J.might lead to such an inference. With reference to Babey Nona v. Silvaon page 139 he used the following words: —
“ In the former case ” (referring to Babey Nona v. Silva (supra) ),“ theCourt went further. Here the property had been partitioned withoutreference to the fidei commissum, and the share allotted to the fiduciaryin severalty was bought at a Fiscal’s sale, apparently by a bona fidepurchaser without notice. It was, nevertheless, held that, notwith-standing the partition, the fidei commissum attached to the dividedshare in the hands of the purchaser.”
Careful scrutiny of the facts in Babey Nona v. Silva (supra) indicates thatthe learned Chief Justice was in error in stating that in that case the. share allotted to the fiduciary was bought by a bona fide purchaser withoutnotice. Such share was purchased by another of the fiduciaries andhence a purchaser with express notice. The proposition formulatedby the Chief Justice in the next paragraph of his judgment—“ that thepartition decree operates subject to the conditions of the fidei commissum,which thus attach to the interest in severalty. It is immaterial whetherthe fidei commissum is mentioned in the decree or not, it binds theproperty in the hands of a purchaser whether with or without notice”—is not only obiter but is based on inaccurate premises and thereforecannot be regarded as binding. In this connection the facts in Marikar v.Marikar (supra) do not indicate that the rights of a bona fide purchaserfor value without notice were involved.
The last case that requires consideration is that of Kusmawathi v.Weerasinghe' where the law was subjected to a meticulous scrutiny byMacdonell C.J. The facts were as follows : In 1889 G donated by deed,duly registered, an undivided half share of a land to her son A “ as a giftinter vivos …. to have and to hold the said premises subject tothe following conditions —(1) That the gift shall take effect after mydeath ;(2) that the donee shall not alienate, sell or encumber the
property ; (3) the shares of land gifted should, after the death of thedonee, descend to his children or their descendants by . representationaccording to law ”. G remained in possession and in 1907 obtainedtitle under a partition decree to a portion'^ in severalty of the land,representing the undivided portion half interest on which she had dealtwith in 1889, A being a party to the partition action. Thereafter G soldthe land to the defendant’s predecessors in title, reciting in her convey-ance her title under the partition decree. G died in 1912 and A in 1927.The action was brought by the heirs of A claiming under the fideicommissum. Whereas in Babey Nona v. Silva (supra) it was a fiduciariuswho claimed title under a partition decree that was claimed to haveextinguished the fidei commissum. In Kusmawathi v. Weerasinghe (supra)the defendant claimed title under the partition decree from a personwho was not a fiduciarius. The plaintiffs contended that the deed ofgift created a fidei commissum and had the effect of vesting the propertyin A at the time of execution. Hence the partition decree cannot enlarge
33 X. L. R. 2Co.
HOWARD C.J.—Anees v. Bank of Chettinad.
443
the usufructuary right G possessed to absolute dominium as the decreesdo not wipe off a fidei commissum when once such a charge is impressedon the land. It was held by Macdonell C.J. and Garvin S.P.J. that thedefendant had the superior title. Inasmuch as G was not deemed to bein the position of a fiduciarius, the case was not covered by theprinciple laid down in Babey Nona v. Silva (supra) and extended byMarikar v. Marikar (supra). As, however, it was argued that, as fideieommissarii cannot be parties to a partition action, they must be protectedotherwise and that this protection is to be given by making the burdenof the fidei commissum valid as against a third party, even though hepurchased the property affected by the fidei commissum for value andwithout notice. Macdonell C.J. dealt comprehensively with the law asformulated in the cases I have mentioned. He was unable to accept thecontention that Babey Nona v. Silva (supra) decided that on a purchase■from the fiduciarius who has a partition title, the fidei commissum runswith the land even though the purchaser has no notice of the fideicommissum. He was also of opinion that, as the defendant in Babey Nonav. Silva (supra) was a purchaser with express notice, it did not supportthe proposition that purchase without notice is no bar to the fideiCommissarius’s rights. Hence Babey Nona v. Silva (supra) was noauthority for the proposition that a fidei commissum can be enforcedagainst a purchaser from a fiduciarius who has a partition title, thatpurchaser having no notice of the fidei commissum. The learned ChiefJustice further stated that he had been unable to find any other casewhich does establish that proposition and the point was open for decision.
The case now presented is, therefore, the first in which the questionas to whether a fidei commissum can be enforced against a purchaserfrom a fiduciarius who has a partition title, that purchaser having nonotice of the fidei commissum, arises for decision. Although the remarksof Macdonell C.J. in Kusmawathi v. Weerasinghe (supra) on this questionwere, as he himself stated, obiter they are of considerable value in enablingme to reach a decision. I have given careful consideration to the case ofBabey Nona v. Silva (supra) and have come to the same conclusion as thatreached by Macdonell C.J. that this case does not decide that a fideicommissum attaches to the land sold by the fiduciarius. It decides thata purchaser from such a fiduciarius with knowledge of the fidei commissumcannot hold the land purchased as against a fidei commissarius. Inother words a man cannot hold what he knows he has no right to. Thewords of section 9 of the Partition Ordinance which give “ A title goodand conclusive against all persons whatsoever ” are clear enough.Inroads have already been made by the cases I have cited on the inde-feasibility of title always thought to be conferred by this section. LikeMacdonell C.J. I do not consider it necessary or desirable to make anyfurther inroads on the plain words of the section. Nor does the lawas formulated in the decided cases warrant any such inroad. I am,therefore, unable to accede to the contention of Council for the appellantso far as this question is concerned and hold that the learned District 1Judge’s finding thereon cannot be upheld.
Although my decision on question (c) disposes of the case in favour ofthe respondent, I have thought it desirable to add a few words on the
444
HOWARD C.J.—Anees v. Bank of Chettinad.
other questions raised in this appeal, (b) raises the question as towhether a valid fidei commissum was created by P 3. It has beencontended by Mr. Perera that the learned District Judge came to awrong conclusion in finding that P 3 created a valid fidei commissum.He maintained that the use of the words “ shall be possessed and enjoyedby the said Meyedin Natchia and her heirs and descendants in perpetuityunder bond of Fidei Commissum” may have shown some intention tocreate a fidei commissum on the part of the donor, but that the prohibitionagainst alienation does not indicate a sufficient designation of the partiesto be benefited so as to constitute a valid fidei commissum. Numerouscases decided by the Ceylon Courts are available to assist me in arrivingat a conclusion as to whether P 3 created a valid fidei commissum. InAysa Umma v. Noordeen1 the use of the word “assigns” as personsin whose interest the prohibition was made meant that they may beanybody in the world and hence there was no designation of personssuch as was essential to the creation of a fidei commissum. In Coudert v.Don Elias the words imposing the prohibition were as follows :
“ provided always that the said garden and buildings shall not at anytime be sold, mortgaged or in any other manner alienated, but shall beonly held, possessed, and enjoyed by them and their heirs and descendantsin perpetuity under the bond of fidei commissum1 and that the rents,issues and profits …. and provided also that on failure orextinction of heirs, the said garden and buildings shall revert to andbecome the property of the Roman Catholic Church of St. Lucia.” Inhis judgment Pereira J. stated that it was manifest that the words“ in perpetuity under the bond of fidei commissum ” and the words“ on failure or extinction of heirs the said garden and buildings shallrevert to and become the property of the Roman Catholic Church ofSt. Lucia ” indicate an intention to create a fiedi Commissum. TheCourt held that a valid fidei commissum was thus created. In Pinnwar-dene v. Fernando ’ the operative words were as follows : “ In this mannerafter our death, they shall take charge of their respective propertiesas we have ordained, and they, their children, grand children, heirs andrepresentatives descending from them shall possess the same ; but theyshall not sell or alienate the said properties in any manner or cause thesame to be subject to any mortgage or security. Should such an act becommitted the right of the person who sells or alienates the lands orland ….shallcease, and it is ordained that the same shall go
to the Crown ”. In holding that these words created a valid fideicommissum de Sampayo J. (with him Schneider A.J.) expressed the opinionthat the use of the word “ heirs ” as synonymous with “ descendants ”,who are naturally the heirs of a man, is not uncommon amongst theSinhalese He also adopted the dictum of Shaw J. in Mirando v. Coudert *that the document must be looked at as a whole and if the intention tocreate a fidei commissum were clear, effect should be given to it, thoughthere might be in the document expressions inconsistent with a fideicommissum. The same view with regard to the use of the words “ heirs ”to mean descendants was expressed by the same Judge in Government
» 6 N. L. R. 173.3 21 N. L. R. 63.
* 17 N. L. R. 129.* 19 N. L. R. 90.
HOWARD C J.—Anees v. Sank of Chettinad.443
Agent, Central Province v. Silva'. With regard to P 3 I find myselfin the position of having to construe phraseology very similar to thatemployed in Coudert v. Don Elias (supra). As in that case there was alsoa reference to “ a bond of fidei commissum" and a charitable gift of theproperty on failure of heirs. In these circumstances I am unable todistinguish the facts of this case from those of Coudert v. Don Elias(supra) and am of opinion that on this question the learned DistrictJudge was right in holding that P 3 created a valid fidei commissum.
In view of my decision on question (c) and having regard to thenumerous decisions on the matter that have recently found their way intothe reports, I do not consider it either necessary or desirable to add to thealready voluminous case law on the subject by an expression of opinionwith regard to question (a).
For the reasons I have given in this judgment the appeal is dismissedwith costs.
Soertsz J.—
I am in entire agreement with the answers given by My Lord the ChiefJustice to questions (b) and (c). In regard to question (o) I would-takethis opportunity to say that if it had been necessary to answer it, I shouldhave felt bound by the interpretation given by a Divisional Bench of thisCourt in Sultan v. Pieris1 of the ruling of the Privy Council in Weerasekerav. Pieris’ but that I do not agree with that interpretation. In myjudgment, the point that arose in the former case, and in question (a) inthis case, is clearly within the rule laid down by their Lordships of thePrivy Council in the latter case.
Appeal dismissed.
♦
1 94 .V. L. It. 09.
* 35 N. L. R. 57.
• 34 N. L. R. 9SI.
42/33