D. C. WIJESURIYA, Appellant, and T. S. PEIRIS et al., Respondents

067-NLR-NLR-V-59-D.-C.-WIJESURIYA-Appellant-and-T.-S.-PEIRIS-et-al.-Respondents.pdf

, 270 ' ..' Wijestiriya v. Petris
1957 Present H. N. G. Fernando, J., and T. S. Fernando, J.
•D. C. WIJESURIYA, Appellant, and T. S. PEIRIS
et al., Respondents
C. 146—147 (Inly.)—D. C. Panadura, 1,901
Partition action—Appeal—Several respondents—Security for costs of appeal—Quantum.
Whore the plaintiff in a partition action preferred an appeal ancl the con-testing respondents to the appeal wore “ more or loss identical ” for tlio reasonthat they all relied on one alleged defect in the plaintiff’s title—-
.Held, that one sot of costs was sufficient as socurity for tho costs
of appeal..
Fideicommissa—“ Fideicom/nissum to a family"—“ Fideicommissutn graditale"—
“ Nude prohibition ”Will of 1SG1—Creation therein of a trust or fideicom-
missum—Probate—Is registration of it necessary ?—Registration of OldDeeds and Instruments Ordinance No. 3-5 of 1947, ss. 2, 11, 12—Preventionof Frauds Ordinance (Cap. 57), s. 9—Wills Ordinance (Cap. 49), s. 9—Registration of Documents Ordinance (Cap. 101), ss. 7, 8 (a) (b), 10 (2), 2C—Land Registration Ordinance of 1891, ss. 16, 17.''
The establishment of a fidoicommissum stepwisoor graduate does not necess-arily connote an intention on the part of tho grantor that tho fideicommissaryproporty should remain in the direct line in his family beyond tho specifiedgenerations..
In 1861, a testator devised by Will certain proporty to his son “ as his in-' heritanco ”, Similar bequests were made of otlior properties to four othersons, and Clause 12 of tho Will providod as follows :—“ I (tho testator) nor myfivo children nor tho children of tho said fivo persons i.e., no person out of thesethroo generations shall have tho power to sell, mortgage, or gift tho aforesaidlands and only tho right to possess of tlieso three generations shall bo entitledto sell, mortgage or gift the aforesaid lands and only tho right to possess andimprove tho samo is reserved. ” Clause 14 further granted full power to tho, tostator’s executors to deal with a number of lands which wore not tho subject1 of specific boquests, tho tostator stating in tho Clauso :I trust that theso.two
oxccutors will arrange from these said lands tho future well being of my grand-sons and grand-daughters and it doos not behovo for the children to act agatnst- the good acts of these two or to litigato with them ‘ …. " ‘
H. N. G. FERXAXDO, J.—lVijcsuriya v. Peiris
271
Held, that the Will created a valid fidoicomraissum eilectivo to prohibitalienation by tho testator’s children but not effoctivo to prohibit alienationby tho testator’s grandchildren. There was not in tho torms of tho Will abequest to a family, nor a prohibition against alienation outside tho family,nor any oxpress or implied designation of tho testator’s great-grandchildrenas fidcicommissaries.
Held further, that section 2 of tho Registration of Old Deeds and Instruments•Ordinance No. 35 of 1947 docs not prevent a Will from being used to provea trust or fidoicommissum in a case whero tho probate has not itself beorf regis-tered as provided in that section. In the present caso the conditions sot outin section 2 (1) (6), namely that tho Will was referred to in-some other dulyregistered instrument, was satisfied. It is only if application had been madounder that Ordinance to register a Will that tho applicant had tho duty undersection 3 (3) to present tho probate also for registration. If, therefore, the Willin tho present caso did in law create a fideicommissum in favour of tho great-grandchildren of tho testator, tho Ordinanco of 1917 would havo boon no barto tho availability of tho Will in proof of the fideicommissum, provided of coursothat tho grant of probate had actually been made.
A
jTXPPEALS froru two orders of tho District Court, Panadura.
Walter Jayeicardena, with Neville Wijeratne and N. Rodrigo, for the1st and 3rd defendant^-appellants in Appeal No. 147 and the 1st and3rd defondants-respondents in Appeal No. 146.
H. W. J ayewardene, Q.G., with D. R. P. Goonetilleke and P. Ranasinghe,for tho plaintiff-appellant in Appeal No. 146 and tho plaintiff-respond-ent in Appeal No. 147.
' G. P. J. Kurukulasuriya, with B. S. Dias, for tho 4th and 6th defend -ants-respondents in both appeals.
Cur. adv. vult.
May 16, 1957. H. N. G. Ferxaxdo, J.—
In appeal No. 147, tho appellants (who aro some of the respondentsin tho main appeal No. 14G) applied to tho District Court for an orderabating tho main appeal, the ground of tho application being that,although notices of intention to deposit Rs. 175 as security for the costsof each respondent to tho main appeal were duly served, tho amountactually deposited and accepted by tho Court was only Its. 175, andnot that amount multiplied by tho number of respondents. Tho appel-lants in appeal No. 147 arguo that they wero misled by tho notices,and would havo objected to the security if the notice had stated thattho intention was to deposit Its. 175 as security for tho costs of all thorespondents. Nevertheless that argument does not avail in a partitionaction. In Ibrahim v. Rebee1 it was pointed out that “it hasbeonthepracticoin partition actions to allow ono sot of costs only whero tho title is derivedfrom tho samo source, and tho interests of tho claimants aro moro orless idontical Wo woro not referred to’ any caso whore this decisionof a bench of four Judges has been questioned. Tho interests of thecontesting respondents to appeal No. 146 aro “ more or less identical ”
1 {1916) 13 H. 17. R. 2S9.
272-H. If. G. FERX.ANDO, J.—Wijesuriya v. Petris
for the reason, that they all roly on one alleged defect in the plaintiff’stitle. As to the sufficiency of Rs. 175 as security for one set of costs,there can be no question. The failure of any of the present appellantsto object to that amount as being insufficient security for his costs ofappoal prevents that question from being now raised.: Appeal No. 147is therefore dismissed, but without costs.,
The principal point taken in the main appeal involves the interpre-tation of tho will of one Davith Rodrigo, made in 1861, wheroby hedevised tho property in dispute to his son Bastian upon conditions towhich I shall presently refer. Bastian died intestate leaving his widowand seven childron one of whom was Francina. In April 1S95 thewidow and six of the children, claiming title to a 13/14 share in theland, that is on tho basis of an intestacy, sold that sharo to tho otherchild Francina. Francina in 1904 donated a half share of tho landto her daughter Meraya Cecilia and her son-in-law Daniel Pciris, thelatter of whom died in 1929. Meraya Cecilia was therefore entitled,after 1929, to a 3/8 sharo, and each of her two daughters (the 1st and2nd defendants) to a 1/16 share, each. The whole of Meraya Cecilia’sinterest was transferred to tho 1st defendant in 1933, so that the half-share dealt with by Francina in 1904 devolved as follows:—7/16 tothe 1st defendant and 1/16 to tho 2nd defendant. The entire interestof tho 1st defendant was transferred in 1950 to her husband the 3rddefendant.
Francina had rotained a half share in tho land after 1904. This halfsharo was mortgaged in 1924 and, after a sale in execution of the mort-gaged property and subsequent transactions, has now passed to thoplaintiff.■
The ground upon which the devolution of title as set out above was.challenged in this action was that Davith Rodrigo’s last will createda fideicomrnissum in favour of his grandchildren and great grandchil-dren, and that the transfer in 1S95 by six of those grandchildren in favourof tho 7th one (Francina) was ineffective, being in breach of a fideicom-nlissary substitution of Davit-h’s great grandchildren in successionto their paronts.-
Tho terms of the bequest to Bastian in tho last will are that the property in question shall devolve on him “ as his inheritance ”. Similarbequosts aro made of other properties to the testator’s four other sons,and clause 12 of tho will later provides in terms which have been trans-lated as follows :—-
“12. I tho said Davith Rodrigo nor m3r five children nor thechildren of tho said five persons i.o., no person out of these threegenerations shall have tho power to sell, mortgage, or gift the afore-said lands and only the right to possess of these threo generations shallbe entitled to soil, mortgago, or gift the aforosaid lands and only thoright to possess and improve the same is reserved. ”.' – ■ – –
It is relevant also to refer to clause 14 which grants full power tothe testator’s executors to deal with a number of lands which aro nottho subject of specific bequests, the testator stating in this clauso that/;.
II. y. G. FERXAXDO, J.—IVijesuriya v. Petris
273
“ j trust that thoso two executors will arrange from those said landsthe future well being of my grandsons and grand-daughters and it doesnot behove for tho children to act against the good acts of those two orto litigato with them …. ”
Tho question for decision is whether these provisions in the last willshould bo construed as creating a fidcicommissum binding not onlyBastian, but also on Bastian’s children, and preventing alienation intervivos by those children. The terms of this samo will wero interpretedin the caso of Abeyralne v. Fernando1, the subject of which was a land-devised to Hendrick, another son of Davith. Tho argument on thatoccasion was that Hendrick had acquired absolute title on tho footingthat the last will croatcd no fidcicommissum at all. Reliance wasplaced on the point that tho testator in prohibiting alienation failedto designate the person in whose favour the prohibition was made.It was held, however, that tho combined effect of the clause of devise-and of clause 12 was to creatc-a fidoicommissum. Van Langenburg,A.J. said that tho testator contemplated tho event of Hendrick’s child-ren receiving tho property “ for he prohibits them from alienating thesame and to my mind there is sufficient to show that the prohibitionpreventing Hendrick from alienating was mado for their benefit. ”Other authorities to which wo wore referred establish tho correctnessof the view taken by this Court that there was a sufficient designationof the children of Hendrick by the dovico of directing expressly thatthose children themselves should possess and should not alienate.
The samo will also came up for consideration by this Court in subse-quent cases. In a judgment dated 24th October 1917 in caso JSTo. 5S68
O. Kalutara, which also concerned a portion of tho land devised tothe son Hendrick, it was held that the land was subject to a fideicoru-missum in favour of Hendrick’s children, but it was held neverthelessthat the 5th defendant to the action had prescribed to the interests. of those children. Dc Sampaj'o, J., however, remarked “ it is notrelevant to this case to consider how far the fidcicommissum extends-and what the rights of the remoter descendants of Hendrick may be. ”
'Hendr ick’s remoter descendants, his grandchildren, instituted action
Ko. 11,-5S9 D.G. Kalutara in 1923 claiming that their father, who wasa son of Hendrick, succeeded to a 1/4 share on Hendrick’s death andthat that sliaro passed to them on their father’s death, despite an alie-nation by the father. This claim was uphold by the District Judge,who answered affirmatively the issue whether the last will created avalid fideicomraissum in favour of Davith’s “grandchildren and groatgrandchildren to threo generations. ” Tho Judgo merely refers to thejudgment of this .Court in Abeyralne v. Fernando as ground for hisdecision. That decision itself was affirmed by this Court on 3rd March1927, but tho judgment does not sot out reasons which induced this-Court to tho viow that tho fidcicommissum bound the property in thehands of tho testator’s grandchildren.. :
It is, however, a judgment of two Judges of this Court in which the.-language of tho last will now' being questioned wras interpreted as
1 (1911) 14 N. L. R. 307.
274_ H. X. G. FERXAXDO, J.'—Wifesuriyd v. Feins.
creating a fideieommissum effective to prohibit alienation by the grand-children. That decision i3 not res judicata for" present purposes be-cause the parties to this action aro different and the subject matteris a different land. Nevertheless we should have much hesitation inplacing a different interpretation upon the document unless we arecompelled to conclude that the former intorpretr-tion was wrong.*
The essential requirements for the creation of a valid fideieommissumare well understood and have been repeatedly stated in judgmentsof this Court. “ No special form of words is required for its creation . …. Any words or mode of expression may bo used, if only the
intention can be shown ; for in an inheritance by way of fideieommissumtho intention of the testator must be chiefly examined.” (Van Lee-uwen—Commentaries, Kotze’s translation. 2nd Ed. Vol. 1 p. 376).The intention may be present despite the absence of such words as fidei-commissum, fiduciary or fideicommissary, and “ it is not his verballyexpressed intention that is looked to, but also that intention which istacit and gathered from conjectures … .as a necessary or mani-
fest consequence from what lia.s been expressed ” (Vender Linden—Censura Eorensis 1.3.7.7).
In the will under consideration there is clearly'no express fideicommis-sion. The judgments in Abeyralne v. Fernando show clearly that theintention to create a fideieommissum binding on the devisee Hendrickwas inferred by this Court from the following circumstances :—(a) theprohibition against alienation imposed on Hendrick, and (b) tho desireto benefit Hendrick's cliildren evinced by the pro vision that they' them-selves should possess and should hot alienate. The property was boundin Hendrick’s hands upon the well-known principle that a fideicommis-sum arises from a prohibition against alienation coupled with a clearindication of tho persons in whose favour the prohibition was imposed(The Roman-Dutch Law of Fideicommissa—Nadaraja p. 30 ).As to the claim now set up for tho grandchildren of thedevisoe Bastian, the last will undoubtedly prohibits their parentsfrom alienating, but is there the necessary additional requisite, namelyany indication that the prohibition was imposed for the benefit of thegrandchildren ? Mr. Walter Jayawardena has addressed to us aninteresting argument in support of the view tfiat there is such an indi-cation. It is contended that a recognised type of fideieommissum isthe " family' ” fideieommissum where the testator manifests the inten-tion to fetter property' for the benefit of his family and that where thisintention has been manifested, the prohibition against alienation, thoughit may' be nude or incomplete in appearance, is nevertheless effectivebecause of the manifested intention that the prohibition should benefitthe family. In the present case, it is said, the testator in establishinga fideieommissum stepwise or graduate, that is to say in first appointinghis son and then substituting his grandchildren, manifested an intentionthat the property should remain in the direct lino in his family, and .thataccordingly' when the prohibition against alienation by the grandchild-ren is considered, it should be regarded as having been imposed to bene-fit the next generation in the direct line. It seems to me that this con-entioxi proceeds upon a misconception of the-type of fideicommissa.
H. >T. O. FBHX-ANDO, J.— H'ijcsiirit/a i>. -Petris
275-
which have sometimes been loosely termed “ family fideicommissa ”.Voet 3G.I.27, as translated by Ga.no, states that “finally a fideicommis-sum can also be left to a family. ”, and then refers to tho persons whocan be regarded as being included in the term “family ”. Ho there-after passes to the proposition “ moreover a bequest is also made to afamily in the case when a testator forbids property to be alienated out-side the family ”, or saj*s “ that it shall not go away from his lino andblood (Gane’s translations, p. 370). Pritna facie what is hero statedis (i) that there can bo a devise in which a fideicommissum is expresslyleft to a family, and (ii) that the same result can be achieved by impli-cation when there is a prohibition on alienation outside the family oroutside the testator’s line and blood. In tho latter case tho intention •to benefit tho family by means of the prohibition is implied from theterms of the prohibition itself. In subsequent sections Voet deals atlength with the effect and consequences of different forms of bequests“to a family” whether the bequests be of the direct tyq>e first men-tioned in section 27 or of the implied type there secondly mentioned.
If it. is clear that the testator’s intention is such that the fideicom-missum left to a family would be stepwise and permanent, that orderof succession will be followed ; but a devise “ to a family ” need notnecessarily have effect stepwise and collaterals may bo called to thesuccession in the event of a failure in the direct line (Voet idem sections29 & 30), so that the stepwise order of succession is not a necessarycharacteristic of this typo of fideicommissum. Hence the fact thatthere has been express stepwise substitution connotes no more thanan intention to substitute in that order and should not be consideredto be a manifestation of the same intention as is attributed to the grantorof a devise “ to a family ”.
The view I have formed is supported by an examination of themanner in which Voet in Book 36 Title I considers fideicommissa. Inthose sections which precede section 27 he deals first with classificationand thereafter with express fideicommissa and certain types of impliedfideicommissa. In the course of classification he finds it necessai-yto refer in section I to a fideicommissum “ to a family ” but only for thopurpose of illustrating the difference between a simple fideicommissum,ibi which the institute lias no right of disposition or alienation, and theconditional fideicommissum, in which the institute is left with somediscretion to prefer one member or degree in a family over others,- buthe leaves for tho later section 27 consideration of the creation of a fidei-commissum to a family, and in dealing with this ty-pe, as already stated,he refers first to a fideicommissum expressly left to a family and secondlyto a fideicommissum impliedly left to a family by the device of theprohibition against alienation outside. There is no suggestion in Voetor in any other authority to which we were referred which supportsthe proposition that provision for express substitution graduate is tobe considered as being equivalent to a bequest “ to a family ”, Indeedtho only purpose of tho . classification of the substitution graduate isin order to distinguish it from the typo of fideicommissa in whichcollaterals may be called to the inheritance either because of expressprovision or else in the event of a failure of succession in the direct line.
276'H. N. G. FERNANDO, J.—Wijesuriya v. Peiris
The -weakness of the contention wo are considering is also illustratedupon a consideration of the essential nature of almost every concci-vablc fideieommissum. Except in the ono case of a devise to A andafter him specifically to B, and thereafter to C, -where A, B and C areall " strangers ” to the testator and to each other, it -will bo seen thatevery fideieommissum bears the characteristic that it is intended forthe benefit of the family either of the testator or of the institute ; inthe lay sense, therefore, it would bo true, to say generally that all fidei-commissa are intended for the benefit of a family. It would follow, ifthe respondent’s contention be correct, that the construction ordinarilyplaced upon fideicommissa expressed to bo to a family must be appliedequally in all cases of fideicommissa except the remotely possible casewhere strangers are expressly substituted for each other. It is to benoted also that in Professor Nadaraja’s book (as in other texts), whatis first dealt with is the express fideieommissum, within which cate-gories he considers the case where the family is collectively designatedas the fidcicommissary—p. 55. In a subsequent chapter in whichtacit fideicommissa created by means of prohibitions on alienationare considered, the author refers to the case of the tacit fideicommis-sum created by prohibition on alienation outside the family. Theprinciples of construction applicable to the latter case are nowherestated to be applicable in order to extend bejond specified generationsa substitution effected expresslj*, or to render effective a prohibitionagainst alienation which is unaccompanied by a clear designation ofthe persons who are intended to be benefited thereby. None of thedecided cases upholding fideicommissa to which we were referred isof assistance to the respondents ; there is not in the terms of the lastWill either an express substitution, nor a bequest to a family, nor aprohibition against alienation outside the family, nor any express orimplied designation of the testator’s great-grandchildren. In factthis particular question is nowhere mentioned or referred to byimplication in the terms of the bequest.
The will under consideration, therefore, in so far as the prohibitionimposed on Davith Rodrigo’s grandchildren is concerned, falls withinthat well known class of cases where the prohibition is nude becauso“ persons are not found indicated in respect of whom the-dispositionhas been made by the testator” (Voet 3G.I.27—Gane p. 370). I neednot refer to the numerous authorities on this point which are collectedin the Notes to Chapter VI of Professor Nadaraja’s book.
I have now to consider a point raised on behalf of the appellant which,if good, would bo decisive in his favour even on tho footing that thelast will did create a valid fideieommissum binding the grandchildrenof tho testator. Tho last will was executed in 1S61 and was not (untila rccont alteration in tho law) an instrument which required registra-tion in order to retain priority by virtue of prior execution against subso- .quent documents. Tlio Registration of Old Deeds and InstrumentsOrdinance No. 35 of 1947 is however applicable to tho Bast Will; accor-dingly, in terms of section 2 of that Ordinan'co, it cannot be used toestablish a trust or fideieommissum as against a person claiming uponvaluable consideration under a registered instrument unless there lias
II. X. G- FERX.AXDO. J.—TYijcsuriya r. Pciris
277
Tjeen compliance with one of tlio conditions mentioned in that section.The principal condition so imposed is tho requirement of registrationcither under tho former law or under the Registration of DocumentsOrdinance Cap. 101, and neither of these requirements is satisfied inthe present case. The third alternative condition contained in section 2is that the instrument should have been referred to in some other dulyregistered instrument. Tins condition is satisfied in the present casebecause the deed of 1S05 whereby Franeina claims title to the entireland refers to the Fast Will of Davith Rodrigo and mentions the numberand date of attestation as well as the nanle of the attesting notary. Thewill itself therefore is not rendered ineffective by section 2 of thoOrdinance against the interest claimed by the appellant.
However, tho probate of the Will has also not been registered, and itis argued for the appellant that section 2 of the 1947 Ordinance readwith section 9 of the Prevention of Frauds Ordinance prevents tho ad-mission in this case of proof of probate of the Will. The crux of thoargument is that a probate is an instrument affecting land within themeaning of section 2 of tho 1947 Ordinance and that an unregisteredprobate is subject to the disqualification imposed by that section andcannot therefore be proved in this case.
The expression “ instrument affecting land ” is given, through section11 of the 1947 Ordinance, the same meaning as is assigned by para-graph (a) of section S of the Registration of Documents Ordinance(Cap. 101), and tho argument in reality poses the question whethera probate falls within the definition in the paragraph aforesaid. Thatdefinition expressly mentions wills and grants of administration, butdoes not mention probates. But it is argued that a probate is a “ judg-ment or order of Court affecting land ” within the meaning of that'expression in paragra]Jh (a) of section 8 of Cap. 101.
Jt is undoubtedly correct that a Will is ineffective to pass title toland unless it has been duly proved (section 9 of tho Wills Ordinance) ;but it is not equally clear that a probate for this reason is an “ orderof Court affecting land ”, and it is still less clear whether the Legis-lature intended to include a jjrobatc within the latter expression as de-fined in paragraph (a) of section S. Reference to the Land RegistrationOrdinance of 1S91 shows that under tho law which preceded the enact-ment of Cajn 101, the Legislature had expressly included a probatewithin the category of instruments which section 16 of the Ordinanceof 1891 required to be registered. In view, however, of tho form inwhich the 1S91 Ordinance was drafted, doubts appear to have arisenas to whether a failure to register a probate would render it‘void asagainst subsequent instruments duly registered. Section 17 of the 1S91Ordinance which dealt with the effect, of non-registration did not enu- .rueratc specifically all the instruments listed in section 16, and onlydealt with tho voidability of “ every deed, judgment, order or otherinstrument as aforesaid unless so registered ”. Upon this phraseologyit was argued that section 17 did not avoid an unregistered probatebecause no mention of probates was made in that section. This view .was, however, rejected by a Full Bench in Fonseka v. Cornells1. It-1 (731?) 20 N. L. Jt. 97.'’’
278.>1. G. FERNANDO, J.—Wije&uriya v. Pciris.
was pointed out by Wood Renton C.J. that the expression “ everydeed, judgment, order or other instrument as aforesaid ” in section 17’was a compendious phrase intended to catch up and include every-. thing in section 1G that section 17 lias not expressly mentioned, andthat the words " as aforesaid ” govern not only instruments but also"judgments and orders”. So that in his opinion the words "orderas aforesaid ” included that type of order which is a probate. Shaw,J. and de Sampayo, J. both took the view that a probate was an “ otherinstrument as aforesaid ” within the meaning of section 17. In effect'then it was clear law prior to'the enactment of Cap. 101 that an un-registered probate, and consequently a will affected thereby, could beavoided on the ground of non-registration. But when the new Ordi-nance of 1927 (Cap. 101) came to be enacted two significant changeswere made; a term of art, namely “ instrument affecting land”, wasemployed to denote registrable instniments, and within this term wereincluded two classes distinguished according to the time of their exe-cution. The first class, that is of instruments executed prior to the1927 Ordinance, is mentioned in paragraph (a) of the definition in sec-tion 8 of Cap. 101. This paragraph is in terms identical with thoseemplo3*cd in section 10 of the 1S91 Ordinance but for one difference,namely that the term “ Will ” is substituted for the term “probate ”. Inregard to instruments of the class executed after the enactment of Cap.101, paragraph (6) of section 8 also expressly mentions Wills but usesno phraseology which includes probates within the definition of an"instrument affecting land”. In view of these changes (which rmistbe presumed to have been made with full knowledge that the Pull Courthad expressly to decide the earlier disputed question whether a probateis avoided by non-registration), one must at least prima facie infer anintention to modify the former law of Registration. Prima facie then,neither paragraph (a) nor paragraph (6) of the definition in section 8includes a probate, so that a probate would appear not to be an “ ins-trument affecting land ” witliin the definition. At first sight this viewmight be said to lend to absurdity in that the mere registration of awill without also registration of the probate, might seem sufficient to -support a claim of prioritj^ on the ground of prior execution : but suchan absurdity is avoided in fact by the provision in section 2G of Chapter101 to the effect that when a will is tendered for registration, the pro-bate together with a copy of the will shall be presented for registration.By this means the Legislature has secured that when one particularkind of “ instrument affecting land ”, namel3' a will, is registered, theprobate will be registered at the same time. The argument that theprobate itself is “ an instrument affecting land ” is negatived or atleast much prejudiced by the provision in section’2G, for, if the Legis-lature regarded a probate as falling within the scope of the term " ins-trument affecting land ” as occurring in sections 8 and 7 of Cap. 101,there would seem to bo no reason to require expressly in section 26that a probate be presented for registration. Suppose for instancethat section were in its present terms but that section 2G had provided"that a will would only be registered if the certificate of death of thetestator is also presented for registration, then clearb' the certificate
JI. x. G. FJiRXAXDO, J.— H'tjesitrit/a v. Petris
279
of death would be a document which must be registered under thoOrdinance at the time of tho registration, of tho will; but could thecertificate for that reason be an " instrument affecting land ” ?
We have been referred in this connection to a recent judgment ofthis Court in Mohamedaly Adctmjee et al. v. HadadSadeen et al.1. TheDistrict Judge had there found that a deed of 1916 and subsequentinstruments had been duly registered but that the probate granted in1S7G of an earlier Will had not been registered, and held for that reasonthat the probate was void as against the interests claimed under theregistered conveyances. Tiiis decision was upheld by this Court uponthe authority of the case of Fonseka v. Cornells2 to which I havealready referred. The fact that the latter case was a decision under theformer Registration Ordinance of 1891, and that section S (a) of Chapter101 enumerates documents executed prior to its enactment which maynow fail for want of due registration, may perhaps have been overlooked.If, as I think, the document which is now required to be registered asan instrument affecting land ” is the Will, and the provision for regis-tration of the probate at the same time is only additional, then thedecision in Adamjee v. Sadcen1 is correct, but for the reason that (aswould appear from the judgment) the will itself was not registered. Iconsider it useful in passing to refer to the other point decided in thatcase, namely that a disposition by an heir of a testator gains by regis-tration priority over the testator's Cast "Will. That decision too wasreached upon the authority of the views expressed by do Sampayo, J.in the earlier ease of Fonsekav. Cornells 2, but it must be noted that in thisrespect section 10 of the Registration of Documents Ordinance haseffected an alteration in the law whereby a will is not avoided on theground of non-registration as against a pxior disposition bjT an heir oftho testator. The decision in the case of Fonseka v. Cornel is2 wouldonly continue to be applicable, not of its own force, but because* sub-section (2) of section 10 of Cap. 101 excludes tho application of the newlaw in cases of dispositions by heirs executed prior to the enactmentof Cap. 101.
For the reasons stated above I am of opinion that section 2 of theRegistration of Old Deeds and Instruments Ordinance 1947 docs notprevent a will from being used to prove a trust or fideieommissum ina case where the probate has not itself been registered as provided inthat section. In the present case the condition set out in paragraph(£>) of sub-section (1) of section 2 of that Ordinance, namely that thewill has been referred to in a duly registered instrument, has been satis-fied. It is only if application had been made under that Ordinanceto register a will that the applicant had the duty under sub-section (3)to present the probate also for registration. If, therefore, the willnow in question did in law create a fideieommissum in favour of thegreat grandchildren of the testator, the Ordinance of 1947 would havebeen no bar to the availability of the will in proof of the fideieommissum,provided of course the grant of probate had actually been made.
(19.54) 50 X. L. R. 345.
– (1917) 20 N. L: R. 97.
2S0' ' H. N. G. FERNANDO. J.— Wijesuriya v. Peiris
A further point which has been argued on behalf of the respondentsis that shortly after the decision of this Court in 1927 as to the cons-truction of the Last Will, the property has in fact beon possessed bythem on the basis of the rights understood to have beon conferred onthe descendants of the testator, that is on tho basis of a drio fideicommis-saiy substitution, and that by virtue of possession on this basis thedefondants have acquired a title by prescription to tho shares claimedby them. This matter was put in issue at tho trial in the general form“ (3) Proscriptive rights of parties ”,
Counsol for the plaintiff had very correctly stated in his closing add-ress a t the trial that if tho claim based on a fideicommissum wore up-held, the issue of prescription did not arise; ho conceded in substancethat his client could not, on the evidence, rely on possession to defeata fideicommissum, and it was in this sense that tho Judge understoodthe concession. But neitlier the Judge nor tho defendants’ lawyersappear to have realised that tho question of prescription would arise,and should have been dealt with, in case the plaintiff’s title to a halfsharo of the land was upheld in appeal on tho basis that tho fidei-commissum did not extend beyond tho grandchildren of the originaltestator. There is fortunately sufficient material on record to enable usto determine whether or not the plaintiff’s titlo has been defeated by•adverse possession..
There is a considerable volume of oral evidence to the effect thatFrancina and her daughter Moraya Cecilia did recognise the rights ofFrancina’s two sisters to a one-third share each on the basis of tho exis-tcnco of a fideicommissum. Tho witnesses to this alleged recognitionand the alleged oxorciso of rights by those two sisters and their childrenworo tho 3rd defendant, Meraya Cecilia herself, Emalin Fernando (adaughter of a sister of Francina), one Simon Peiris, and P. J. Fernando(a son of tho other sister Angela). As to this evidence, I would maketho following observations :—
(а)Despite the suggestion that these rights were recognised andoxorciscd since 1931, no single member of the family (other thanFrancina and her descendants) dealt in an}r way with any sharesuntil 1949, when one M. T. Fernando purchased sorno of theirinterests ; these interests passed with significant speed to the 3rddefendant, who also obtained a transfer of all his wife’s interests atabout the same time.
(б)Meraya Cecilia’s ovidenco is quito inconsistent with her own
dealings with tho land : in 1933 sho gifted to her daughter a 1/4 plus1/S sharo of the land, claiming titlo on tho transfer to her and her.liusband of a 1/2 share by her mother Francina in 1904. Her expla- ;nation, that sho ignored the fideicommissum because her son-in-law(tho 3rd defendant) did not want entailod property, is proved to befalso by tho 3rd defendant himself when ho says that ho know since1931 that tho other branches of tho family had rights and woreexorcising them.“
H. X. O. FEKy.AXDO, J.—Wijesurit/a r. Pciris
2SV
The 3rd defendant and Meraya Cecilia alleged that when Fran-cina’s mortgaged half share was sold in execution in 1939, they pub-lished a printed leaflet referring to tho Last Will and stating thatthe judgment-debtor had no title. Such a document would havebeen an aspersion on the title of Francina, not only to the mortgagedhalf-share but also to tho other half-sharo which b3r 1939 had passedto tho 1st and 2nd defendants, tho daughter of Moraj-a Cecilia. Tho3rd defendant’s wifo was at that stage entitled to a 7/16 sharo andshe had everything to gain if tho existence of the Last Will and ofa fideicommissum remained undisclosed. But the 3rd defendantwould have us believe that he was both so honoiu'able and so stupid asto givo public notice of the fact that his own wife's title to that subs-tantial share was defective. Tho leaflet is palpably a fabricationput forward to support tho conveyances very recently obtained bytho 3rd defendant from somo of the alleged fidcicomnhssary heirs.
Finncina's sister Angela lived till 19-12, but it was admittedthat she never possessed her rights. The only concreto evidenceof possession by her branch was that her children tried to put up aflag in 1931 during an election and were resisted by Francina. Thesuggestion that Angela’s children were allowed to possess is contra-dicted by Meraya Cecilia’s admission in cross-examination that“ Angela’s heirs did not possess this property ”.
These and other features of the case, to which it is unnecessary to re-fer, render quite unreliable the evidence that either Francina’s familyor the plaintiff’s predecessors ever recognised the rights of Francina’ssisters, and I am unable to agree with the argument that the trial Judgeshould or could have properly reached any such conclusion.
I seo no cause to interfere with tho finding of fact that tho boutiqueNo. 3 was built and paid for by Meraya Cecilia and that the 3rddefendant is now entitled to it.
For these reasons I would allow the plaintiff's appeal and hold thathe is entitled to a- half share of the land. The decree under, appealwill accordingly be varied as follows —-
Soil shares 1/2 to the plaintiff,-1/16 to 2nd defendant, and 7/16to 3rd defendant. No share to tho other defendants.
The 3rd, 4th and 7t-h defendants will pay to the plaintiff thecosts of contest in the District Court. Subject to these modifications,the other provisions in tho decree will stand. Tho 3rd, 4th and 7thdefendants will pay to the plaintiff tho costs of this-appeal.
T. S. Fjerxaxdo, J.—I agree.
Appeal No. 147 dismissed. .•Appeal No. 146 allowed..