BRITO v. MUTHUNAYAGAM

006-NLR-NLR-V-19-BRITO-v.-MUTHUNAYAGAM.pdf


I 88 )
1915.
Present : Ennis J. and Shaw J.
BRITO v. MUTHUNAYAGAM.
331—D. C. Negombo, 9,946.
Ante-nuptialcontract—Interpretation—Comm unioqUEBBtuum must be
expresslyexcluded—Roman-Dutchlaw—Prescription—Co-owners.
Under the Roman-Dutch law ante-nuptial contracts were strictlyinterpreted, and unless the document expressly renounced thecommunio queestuum,propertyacquired duringthesubsistence
of the marriage was deemed to be held in community.
An ante-nuptial agreement contained the followingclause: —
“ In consideration of the premises the said Tangamma doth herebyrenounce all right ‘to community so far as the property, estate, andeffects of the said Christopher Brito are concerned, it being under-stood that the said Christopher Brito shall have, hold, and enjoyhiu separate property, without any claim thereto on the part ofTangamma."
Held, that the communio queestuum was not excluded by theabove clause.
rjl HE facts are fully set out in the judgment.
E. W. Jayewardene (with him Balasingham, Obeyesekere, Caneke-ratne, and Loos), for appellant.
A. St. V. Jayewardene (with him Allan Drieberg and Samara-‘wickreme), for respondent.
Cur. ftdv. vult.
December 10, 1915. Ennis J.—
Christopher Brito and Tangamma Nannitamby married in 1866,having executed an ante-nuptial agreement which contained thefollowing clause:—“ In consideration of the premises the saidTangamma doth hereby renounce all right to community so far asthe property, estate, and effects of the said Christopher Brito are.concerned, it being understood that the said Christopher Britoshall have, hold, and enjoy his separate property, without anyclaim thereto on the part of Tangamma.”
In 1879 Nannitamby, the father of Tangamma, sold to ChristopherBrito an estate called Dombawinne.
Tangamma died in 1900, Christopher Brito in 1910, leavingsurviving them four children, Philip, Christopher, Teresa, andAloysia.
Philip died in 1911, and his'wife, the plaintiff, sues as executrixof his estate.
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Teresa died in 1905, and her husband, one Senathiraja, is theplaintiff in a connected -case.
Alojsia, the first defendant in the case, married the second•defendant.
Christopher Brito left all his property by will to his daughterAloysia.
The plaintiff contends that the Dombawinne estate was held by .Christoper Brito and his wife Tangamma in community of property,and that on the death of Tangamma her half share devolved uponthe children in equal shares. She claims as executrix of Philipa one-eight share.
The learned District Judge held that Tangamma had renouncedher right to community of property in Dombawinne by the ante-nuptial agreement, and that the property was the separate propertyof Christopher, and passed under his will to the first defendant.The learned Judge also decided an issue as to prescription in thedefendant's favour, and dismissed the plaintiff's claim- Theplaintiff appeals.
There are two points for determination on the appeal:—First,whether Dombawinne was held by Christopher and Tangamma' in•community of property; and second, if so, whether the respondentshave established a prescriptive title.
The determination of the first point turns on the construction ofthe ante-nuptial agreement. I can see no ambiguity in the termsof this document, and accordingly no oral evidence can. be consideredin deciding the meaning. The Boman-Dutch law with regard tothe interpretation of such documents is perfectly clear. There wasa strong presumption in favour' of community, and unless thecommunity was expressly renounced the presumption prevailed.So, where in the document the communio omnium bonorum wasrenounced, the communio qutsestuum was deemed to be included.Briefly, a renunciation of the communio omnium bonorum coveredall property in which the parties had an interest at the time of the .marriage, the communio qucesinium all other property acquiredduring the subsistence of the marriage. Ante-nuptial contractswere strictly interpreted, and unless the document expresslyrenounced the communio qucestuum, property acquired during thesubsistence of the marriage was deemed to be held in community—
1 Nathan 256; 3 Burge 397; Walter Pereira, 2nd ed., 212, 237, 24:3.
It would seem that ante-nuptial contracts are to be construed on"the state of things at the date of the marriage, and Tangamma,
In renouncing “ all rights to community ” in Christopher Brito’sproperty, renounced only her right of community in the propertyin which Christopher Brito had an interest at the date of the marriage.
It was urged that such a construction would have no meaning withreference to existing facts, as Christopher Brito had no propertyat the date of the marriage. The evidence that he had no property
IMS.
Enhib 3 m
Brito v.Muthu-
( 40 )
1915.
Ennis J.
Brito v.Muthu-nayagom
is far from conclusive, and in my opinion is not relevant, in that itseeks to contradict the terms of the document.
On the first point I would hold in favour of the appellant. Thereremains to be considered the question of prescription. In the caseof Corea v. Appuhamy 1 the Privy Council held that the possessionof one co-owner enured to the benefit of the other co-owners,' andthat position could only be altered by an ouster, or something in -the nature of an ouster. On the death of Tangamma, Christopherbecame a co-owner of Dombawinne with his children, and anyouster to establish prescription must be looked for between' thedeath of Tangamma in 1900 and July 7, 1904 (i.e., ten years before’the institution of the suit). In this 'Connection there is the letterI) 8 of December 9, 1900, written by,, the plaintiff to the seconddefendant, in which she states that Senathiraja recommended a“ fight ” for -Dombawinne. We are asked to presume from’ theword “ fight ” that Christopher Brito intended to hold the landadversely. Again, there is the letter D 85 of January 5, 1901, fromSenathiraja to the second defendant, offering to sell his wife’sinterest in Dombawinne. Neither of these letters is in any way,.,-sufficient to prove an ouster by Christopher. They merely indicatedthat Christopher was holding Dombawinne and possession by oneco-owner is not proof of an ouster by him. There is one otherdocument, the mortgage D 17 of April 17, 1904, by Christopher tosecond defendant. With regard to this, counsel for the appellantpointed out that a surviving spouse was by Roman-Dutch lawentitled to so deal with the property for the purpose of paying debts.The evidence of the second defendant shows that the money, raisedon the mortgage was mostly for interest on previous mortgages;This mortgage of the land by Christopher is therefore no evidenceof an ouster. I am unable to find in the evidence any direct act ofChristopher Brito which could be considered an ouster, and applyingthe principle of Corea v. Appuhamy,1 I would hold that ChristopherBrito’s possession enured for the benefit of his co-owners. Forthese reasons I would allow the appeal, with costs.
Shaw J.—
The appellant, as executrix of Philip J. R. Brito, deceased, suedthe respondents, claiming a declaration of title to a one-eighth shareof Dombawinne estate, and for damages for having been kept out. of possession, under the following circumstances:—ChristopherBrito, the father of Philip Brito, married Tangamma Nannitambyin the year 1866, prior to the coming into operation of the Matri-monial Rights and Inheritance Ordinance, • 1876, and, consequently,when community of goods was an incident to marriage. Prior tothe marriage an ante-nuptial agreement was made, by deed datedJune 25, 1866, to which deed Tangamma’s father, E. M. Nannitamby,
1 (1911) 15 N. L. R. 65.
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was also a party. By this deed E. M. Nannitamby Battled on theintending spouses a life interest in a property called the Plopalieestate, with a reversion to their children,, and by the same deedTangamma did hereby renounce all right to community, so faras the property, estate, and effect of the said Christopher Brito areconcerned, it being understood that the said Christopher Britoshall have, hold, and enjoy his separate property, without any claimthereto on the part of the said Tangamma."
During the existence of the marriage Christopher Brito acquiredby purchase from one Tambyah the Dombawinne estate, the subject-matter of the present suit.
Tangamma died in March, 1900, leaving her surviving her husbandand four children of the marriage, including Philip Brito, of whomthe appellant is widow and executrix.
After the death of Tangamma, Christopher Brito, remained inpossession of the Dombawinne estate, and died in December, 1910,having by his last will nominated the first defendant, respondent,his sole heir, and the second defendant, respondent, his executor.
During the lifetime of Christopher Brito and Tangamma. theestate was heavily mortgaged by Christopher Brito for the purposeof payment of debts, and it was again mortgaged by him to thesecond defendant, respondent, in 1904, subsequent to the death ofTangamma.
On August 18, 1914, the appellant instituted this action, thecontention being that the Dombawinne estate was, by reason of themarriage in 1866, the common property of Christopher Brito andTangamma, and that Philip, as one of the four heirs of Tangamma,was entitled to one-eighth of the property.
The defences raised were, first, that by the ante-nuptial contractof June 25, 1866, Tangamma had renounced community in herhusband’s property, both present and to be acquired during themarriage; and second, that Christopher Brito and the respondentshad a prescriptive title to the property.
By the law prevailing here at the time of the marriage, in theabsence of any ante-nuptial agreement to the contrary, communioomnium bonorum between the spouses ensued upon the marriage byoperation of law. This extended not merely to community in theproperty of the spouses existing at the time of the marriage, but tothe communio qucestuum, which, with the exception of certaininherited property, included acquisitions of the spouses during themarriage.
By ante-nuptial contract either of these species of communitymight be excluded (Pereira 243; Burge 396), but the presumption oflaw was in favour of community (Burge 397,. and authorities therecited), therefore whatever was not expressly provided for by ante-nuptial contract was subject to the community, and consequentlyif the community of property be excluded, community of all profit
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1916.Shaw J.
Brito v.Muthv-nayagam
( 42 )
1915.
Shaw J.
Brito v.Mittku-ttayagam
and loss accruing during the marriage remains (Maas. 12, 11, 1;Nathan 266). As stated by Van. Leeuwen (Cans. For. 1, 1, 12, 10),
“ when community of goods has been excluded, community of gainand loss arising during the marriages is, notwithstanding, considered
to have taken place by operation of law Tf community of
goods be excluded, community of gains accruing or losses resultingis only held to-be excluded if that be expressly stated ”; and if thehusband bought immovable property with his -own money, it wasconsidered on account of his marital power that he acquired it forcommunity, even if. he acquired it in his own name (see Burge 408).
Applying this law to the present case, I do not think that Tan-gamma, by the ante-nuptial agreement of June, 1866, can be heldto have renounced her interest in after-acquired property of Herhusband. The communio qucestuum is certainly not specificallyexcluded; therefore, the “ property, estate, and effects ” of Chris-topher Brito mentioned in the deed, and his “ separate property,’'can only refer to the property he had at the date of the marriage, allfuturb-acquired property falling into the Community of gains andlosses. This -being so, the half share of the Dombawinne estatebelonging to .Tangamma devolved, on her death in 1900, on herfour children, one-eighth of the property therefore vesting in PhilipBrito, the husband of the plaintiff, appellant.
The question then arises, whether Christopher Brito and hisexecutor and devisee have acquired a prescriptive title to the wholeestate as against his children, the legal owners of the half share?
Christopher Brito. undoubtedly remained in possession of theproperty from the time of his wife’s death, but he was a co-ownerwith his children, and his possession is that of his co-owners, unlesssomething equivalent to an ouster by him of his co-owners can beshown—Corea v. AppuhamyA'v
A mass of evidence and family correspondence has been adducedin the case, most of it entirely irrelevant, and in strictness in-admissible. It shows that most of the children were in impecuniouscircumstances, and were frequently, and often successfully, applyingto their father for money; but nowhere is there any direct demandby any of the children on their father for their share of the property,nor is there any assertion on his part, either verbal or in witing,that he claimed any legal right to the entire property. The onlyletters that seem to me to have any but the remotest bearing on thematter in dispute are the letter of December, 1900, from the presentplaintiff to her father-in-law, Christopher Brito, written in the life-time of her husband Philip, in which she. says that they have beenadvised “ to fight for our share of Dombawinne,” to which no replyappears to have been made; and a letter of January 5, 1901, fromMr. Senathiraja, the husband of one of the other children, to hisbrother-in-law the present second defendant, respondent, offering
H19U) 15 N. L. B. 65.
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to sell bin interest in the' property, and urging the children’s claimsthereto muim* the Roman-Dutch law. from these letters we areasked to infer that the father was claiming to hold the propertyunder an adverse claim of right. There is one other fact, which seemsto.be the strongest piece of evidence-in support of the claim toa, prescriptive .title, namely, the mortgage of this property byChristopher Brito in his own name in April, 1904, to the seconddefendant, respondent, for Rs. 30,000, which mortgage must havebeen made with the knowledge of his children. It appears, however,that the estate had been heavily mortgaged during the time of themarriage and was not of its present annual value, and that the greatpart of the consideration for the mortgage was the money due to thesecond defendant, respondent, for unpaid interest on one of theprevious mortgages.
I am of opinion that the legal title of the one-eighth claimed isin the plaintiff, and that the- respondents have not sufficientlyestablished an ouster by Christopher Brito of his co-owners. Iwould therefore allow the appeal, with costs.
With regard to the damages, the parties agreed on the method ofassessment in the course of the trial. In case of any difficultyarising, application must be made to the Judge.
Shaw J.
Brito t*.-JHuUvu-nayagam
Set aside.