'T'HE facts are set out in the judgment. The judgment of the-*■ Supreme Court is reported in 19 N. L. R. 38.
July 22, 1918. Delivered by Lord Dunedin: —
The late Christopher Brito, Advocate in Ceylon, married, in June,1866. Tangamma Nanny Tamby, a Tamil lady. The lady’s fatherwas possessed of a property called Plopalle, which he was willingto settle on the spouses. Accordingly an ante-nuptial contract ofmarriage was entered into between the affianced spouses, to whichthe father of the lady was a party, by which Plopalle was settled onthe spouses and survivor in life interest, and after their death onthe children of the marriage, whom failing on the heirs of the lady.
1 (1912) A. C. 230.
Lobd Dunedin
Brito v. MuMu-noyagam
( 328 )
The spouses -had four children, two sons and two daughters; theeldest son, Philip Brito, married a wife, Lily. He died in 1911,leaving a will in favour of his wife and children, and appointing hiswidow executrix. The elder daughter, Theresa, married ElangaiSeni Wasager Senathi Baja. She died in 1905, leaving a will infavour of her husband. The younger daughter, Aloysia, marriedA. M. Muttunayagam, and is with her husband appellant in this suit.
After his marriage Christopher Brito acquired an estate calledDombawinne.
Tangamma Brito died on March 31, 1900. C. Brito died onDecember 26, 1910, and left a will in favour of his daughter, Aloysia,appointing her husband as his eiecutor.
After the death of the wife, Tangamina, there were violent familyquarrels and estrangement between Brito and his eldest son. Noclaim was made against Brito in his lifetime, after the death of hiswife, by any of the children as in right of their mother. There hadalso been quarrels between the husband and wife, but they had beensettled by the husband giving up his life interest in Plopalle.
The two actions which are consolidated in this appeal were raised,the one by Lily, the widow of the eldest son, as his executrix, andthe other by Senathi Baja, as executor of his deceased wife* Theresa,and were both directed against Aloysia and her husband, who, asbeneficiary and executor of C. Brito, were in possession of the estateof Dombawinne. The demand of each plaintiff is for a declarationof right to one-eighth share of Dombawinne. The claims are madeas in right of their share of their mother Tangamma’s share of thegoods in communion. Tangamma’s share being one-half, and therebeing four children, the share of each child was one-eighth.
The law of Ceylon in the case of marriages solemnized beforeJune 29, 1877, since which date only the Matrimonial Ordinance of1876 has effect, is the original law founded on the Eoman-Dutchlaw. Under that law it is not doubtful that on marriage, if there isno ante-nuptial contract providing otherwise, there ensures ipso jurea communion of property between the spouses. This communionof property is divided, so to speak, into two heads: comrmmion ofthe property held by the spouses at the moment of the marriage,commonly called communio bonorum, and communion of propertyacquired during the subsistence of the marriage, commonly calledcommunio quastuum. It was, however, possible by an ante-nuptialcontract to renounce the communio in either or both of its branches.Accordingly, the first argument in defence in this case is based onthe marriage contract as to Plopalle. This defence was given effectto by the learned District Judge, but rejected by the Court ofAppeal.
The words in the contract are (after the settlement of the estateon the persons above mentioned): ‘‘And in consideration of thepremises the said Tangamma doth hereby renounce all right to
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community so far as the property, estate, and effects of the saidChristopher Brito are concerned, it being understood that the saidChristopher Brito shall have, hold, and enjoy his separate property,without any claim thereto on the part of the said Tangamma.
Their Lordships are of opinion that this is a question of construc-tion, and of construction alone. Either the communio qucestuumwas renounced, or it was not. That was settled at the moment ofsigning the contract, and it seems to their Lordships illegitimate todo what the learned District Judge did, viz., "to try to colour theconstruction by the after-behaviour of the parties. •
On the question of construction their Lordships agree with theCourt of Appeal. It appears to be absolutely settled by consistentauthority that the communio quoestuum and the communio bonorummust be each indubitably dealt with, that is to say, that meregeneral words which may be satisfied by reference to the communiobonorum will not avail to discharge the communio qucestuum. Thus,Van Leeuwen (Con. For. 1, 1, 12, 10) says: " If community ofgoods be excluded, community in gains accruing or losses resultingis only held to be excluded if that be expressly stated. ” To thesame effect is Burge 3,397, who there cites a passage from Ven Wese:“ Igitur excluad pactis dotalibus bonorum communione lucri damniquein matrimonio facti communio remanet. ” This being so, it seemsimpossible to say that in this contract the communio queestuum wexcluded. Mr. Lawrence argued that the generality of the Englishword “ property ” must not be taken as equivalent to bona as opposedto qucestus. But it was a contract drawn up in Ceylon by Ceylonlawyers who knew the law, and it was incumbent on them to makethe matter clear. The onus is on the party who says that qucestuswere excluded. That onus was not in this case discharged.
The second ground of defence is based on the Limitation Statute.It is said that after the death of the wife, Christopher Brito, and afterhim the appellants, possessed the property on adverse title for tenyears. This defence was also sustained by the learned District Judge,but was rejected by the Court of Appeal.
It is the fact that no claim was made by the wife’s next of kinafter her death, and that the strained family relations made itlikely that such a claim would have been preferred. From thesecircumstances, the District Judge drew the conclusion that thepossession was “ adverse. ” This, however, depends on what wasthe character of C. Brito’s possession as a matter of right. Thelearned District Judge seemingly overlooked the case of Corea v.Appuhamy,1 which the learned Judges of the Court of Appeal tookas decisive of the question. In that case it was held by this . Boardthat the possession of one co-parcener could not be held asadverse to the other co-parceners. Lord Macnaghten, 'who delivered
Loan Dunedin
Brito v.Muttvnayagam
1 (1912) A. C. 230.
( 330 )
X.ORD Dunedin
Brito v.Muttunayagam
the judgment, cited the dictum of Wood V.C . in Thomas v.Thomas1:“ Possession is never considered adverse if it can be
referred to a lawful title. ”
The question, therefore, comes to turn on whether that case trulyapplies; and that depends on the true character of the interest inthe estate, to wit, the half share in communion which on the deathof the lady passed to the next of kin. If that interest is or isanalogous to the interest of co-parcenary the case applies; if it is amere right of action against the surviving husband it does not. Inthe latter case the defence is clearly good, whether under the limita-tion of ten years as applying to suits in connection with land, orunder the limitation of three years, which applies to all rights ofaction not specifically dealt with. Accordingly, Mr. Lawrence’sargument was entirely directed to this point. The point is, perhaps,rather assumed than argued in the judgments of the learned Judgesof the Court of Appeal, but they do not seem disturbed by anydoubts on the point. It may well be that they thought it so clearthat, no argument to the contrary being addressed to them (for theargument before them evidently turned on alleged ouster), theythought it unnecessary to discuss the point. Thus, Ennis J. says:
" On the death of Tangamma, Christopher became a co-owner ofDombawinne with his children. ” Shaw J. says: “ ChristopherBrito undoubtedly remained in possession of the property fromthe time of his wife’s death, but he was a co-owner with hischildren. ”
The authorities are not so absolutely clear on the matter as mightbe wished, and that for this reason. They are chiefly concernedwith the question of continuing community, or “ Boedelhoudersehap.”In some of the provinces this existed, in others it did not. Whereit did, then, until put an end to by the lodging of an inventory, &c.,there was a real continuing oommunio between the surviving spouseand the children; just as there had been between the spouses. Thereis, however, a Judgment of the Supreme Court of Ceylon in which itwas held that this custom had never been introduced into Ceylon:Wijcyekoon v. GooneiuardencAccordingly, many of the remarksmade by the writers on Roman-Dutch law generally as to . whatremains to be done by the surviving spouse are made with referenceto the prevention of the “ Boedelhoudersehap. ” On the wholehowever, the authorities seem to be in- accordance with the view ofthe -learned Judges of the Court of Appeal. Thus, Burge 3, 425,says: “ Though at the death of either of the spouses the communitycame to an end, an estate was left to which the survivor, togetherwith the next of kin, was entitled. If. there were children of themarriage, and the marriage property had been held in joint-ownershipby the spouses, it remained joint-property between the survivor
12 K. <b J. 83.
*2C.L, R. 59.
( 331 )
and the children. If there had existed between the spousescommunity of property in the sense of ‘ holding in common, ’ thechildren or other next of kin of the predeceased spouse inheritedhalf the common property and remained owners in common withthe surviving spouse until division. ” It is only after havingsaid this that he goes on to point out the distinction between theprovinces where there is a continuing community and where thereis not.
Their Lordships are, therefore, of opinion that there is, to say theleast of it, no material put before them which would enable themto say that the view taken as above by the learned Judges of theCourt of Appeal was wrong. There is, however, one matter whichmust be mentioned. During his lifetime and before the death of hiswife, C. Brito mortgaged the estate of Dombawinne: first for thesum of Rs. 60,000; and secondly, for the sum of Rs. 30,000. Afterthe death of his wife, he, in 1904, made a further tertiary mortgagefor Rs. 30,000. As regards the first two, there is no question of hisright to do so, and it is clear that the right declared in favour of therespondents must bear its proportionate share of the burden. Asregard the last, there being no continuing community he could notmortgage the whole property for his own debts, but he could do soto pay debts incurred during the communio. The decree must,therefore, be varied by adding a declaration to the effect that theone-eighth share in each case adjudged to the respective plaintiffsis liable to its proportionate burden of the Rs. 60,000 and Rs. 30,000respectively, and as parties are not agreed, there must be an inquiryas to whether the mortgage for Rs. 30,000 in 1904 was createdfor the purpose of the payment of debts incurred during thesubsistence of the communio.
Subject to these- variations, their Lordships will humbly adviseHis Majesty to dismiss the appeals, with costs.
Brito v.