DAVOODBHOY, Appellant, and FAROOK and others, Respondents

016-NLR-NLR-V-63-DAVOODBHOY-Appellant-and-FAROOK-and-others-Respondents.pdf


Davoodbhoy v. Faro oh
t
./'C
1959
Present : Basnayake, C.J., and Piffle, J.DAVOODBHOY, Appellant, and FAROOK and others, Respondents
S. C. 402—D. C. Colombo, 6,419
Evidence—Burden of proving that a person who has not been heard of for sevenyears is dead—Evidence Ordinance, ss. 101, 107, 108, 114.
Fideicommissum—Presumption against inference of perpetual fideicommissum—Lastwill of 1850—Requirement of registration under Ordinance No. 35 of 1947—Probate of will—Proof—Evidence Ordinance, ss. 64, 65,91—Prescription
Ordinance, proviso to s. 13—" Disability ",
Section 108 of the Evidence Ordinance enacts a rule governing burdenof proof and does not enact a presumption of law or fact. There is nothingin section 108 which compels a court to hold, upon proof that a person hasnot been heard of for seven years by those who would naturally have heardof him if he had been alive, that the fact of that person’s death has been estab-lished by him on whom the burden lies under section 101 to prove such death.
The plaintiffs, claiming to be fideicommissaries under a last will, instituted arei vindicatio action in respect of property of which the defendant was alreadyin possession by virtue of a deed of sale in his favour. The question that arosefor decision was whether J, the fiduciary, was dead. On this question theburden of proof, according to the pleadings and issues, was on the plaintiff's.The only evidence that was led on this point was that of the 1st plaintiff (oneof J’s sons), who stated that J. had not been heard of for seven years.
Held, that the evidence was not sufficient to discharge the burden that layon the plaintiffs to prove that J. was dead.
A fideicommissum will not be construed as a perpetual fideicommissumin a case of doubt.
Considered also by Basnayake, C.J. : (a) Scope of section 2 (1) (6) oOrdinance No. 35 of 1947 in regard to registration of a fideicommissary willexecuted prior to 1st January, 1864, (6) Applicability of sections 64, 65 and 91of the Evidence Ordinance in relation to the mode of proving whether a willwas admitted to probate, (c) Inapplicability of the word “ disability ”, in theproviso to section 13 of the Prescription Ordinance, to a fideicommissary whoseright to possession has not accrued.
Appeal from a judgment of the District Court, Colombo.
H. V. Perera, Q.C., with Walter Jayatvardene and Nimal Senanayake,for Defendant-Appellant.
Sir Lolita Uajapakse, Q.C., with D. G. W. Wickremasekera, for Plaintiffs-Respondents.
Cur. adv. yuU.
5—LX 111~-
3—J. N. B, 18749—2,033 (8/01)
98
BASNAYAKE, C.J.-—Davoodbhoy v. Farook
October 23, 1959. Basnayaxx, C.J.—
The first and second plaintiffs are the children of one SaxnsudeenMohamed Jaleel and the third and fourth plaintiffs are the minor childrenof Jaleel’s deceased daughter Quraisha. The case for the plaintiffsis—
(а)that Hamidu Lebbe Samsudeen alias Colenda Marikar Samsudeen
was by virtue of Deed No. 663 of 5th June 1902 attested byNotary F. A. Prins the owner of the land in dispute, subjectto a fideicommissum created by Last Will No. 418 dated 22ndJuly 1850.
(б)that Hameedu Lebbe died leaving two children Samsudeen Moha-
med Jaleel and Samsudeen Zubaida Umma.
that Zubaida Umma died leaving an only child who also died
without issue.
that Jaleel became the sole owner of the land subject to the fidei-
commissum.
that Jaleel has not been heard of since the early part of the year
1942.
that Jaleel should be presumed to be dead from the early part
of 1949.
that the first and second plaintiffs were each entitled to 2/5 share
and the third and fourth plaintiffs to 1/10 share each.
that the first and second plaintiffs by deed No. 1570 of 4th October
1951 attested by Notary K. Rasanathan transferred a half oftheir respective shares to the sixth plaintiff who is entitledto 2/5 share.
They ask that they be declared entitled to the land described in theSchedule to the plaint subject to the fideicommissum pleaded by them,that the defendant be ejected therefrom and for damages.
The defendant denies that Colenda Marikar Samsudeen held the landsubject to a fideicommissum. He challenges the claim of the plaintiffsthat the Last Will No. 418 of 22nd July 1850 created a fideicommissumand that it was admitted to probate. The defendant further pleadsthat Jaleel was the absolute owner of the land in dispute and claimsit by right of purchase from him on 8th November 1917, from whichdate he undoubtedly has been in possession.
The learned District Judge has held—
(a) that Mohideen Natchchia executed the Last Will No. 418 of22nd July 1850, a certified copy of the duplicate of which isproduced marked P2, and that it was admitted to probate in
C. Colombo Case No. 1734.
(5) that P2 creates a fideicommissum in perpetuity.
(c) that there is no proof that Jaleel is alive and should be presumedto be dead.
BASNAYABTE, C.J.—Davoodbhoy v. Farook
00
Learned counsel for the defendant-appellant submitted—-
that there is no proof that Jaleel is dead.
that the Last Will P2 is not registered as required by Ordinance
No. 35 of 1947.
that there is no proof that P2 was admitted to probate.
that the Last Will P2 does not create a perpetual fideicommissum.
that the defendant has possessed the land for thirty years and
was under the second proviso to section 13 of the Prescription
Ordinance entitled to it.-
The first of the above points was strenuously pressed. In dealingwith it sections 107 and 108 of the Evidence Ordinance were discussedat great length by both counsel. These two sections occur in a group ofsections in the Part of the Evidence Ordinance entitled " Productionand Effect of Evidence ” and under the heading “ Of the Burden ofProof ”. The first rule enacted under this heading is in section 101which reads—
“ Whoever desires any court to give judgment as to any legal rightor liability dependent on the existence of facts which he asserts, mustprove that those facts exist.
“ When a person is bound to prove the existence of any fact, it issaid that the burden of proof lies on that person. ”
It is not necessary for the purposes of this case to refer to any of theother rules which occur between sections 101 and 107. It will be convenientat this point to quote sections 107 and 108. They are as follows :—
“ 107. When the question is whether a man is alive or dead, andit is shown that he was alive within thirty years, the burden of provingthat he is dead is on the person who affirms it.
“ 108. Provided that when the question is whether a man is aliveor dead, and it is proved that he has not been heard of for seven yearsby those who would naturally have heard of him if he had been alive,the burden of proving that he is alive is shifted to the person whoaffirms it ”.
It is essential to bear in mind that these two sections do not enact apresumption of law or fact, but enact rules governing the burden ofproof like any one of the other rules that precede them. Section 107enacts the rule and section 108 enacts the proviso to it. In one case it issufficient to “ show ” that the person about whom the question has arisenwas alive within thirty years, in the other it must be “ proved ” that hehas not been heard of for seven years by those who would naturally haveheard of him if he had been alive. These sections regulate the burdenof proof in a case in which one party affirms that a person is dead andthe other party that the same person is alive, and the question for decisionis whether the person is dead or alive.
100
BA8NAYAKE,'kC.J.—Z>avoodbhoy~v. Farook
In the instant case the plaintiffs state in paragraphs 6 and 7 of theplaint that—
“ 6. The said Samsudeen Mohamed Jaleel has not been heard ofsince the early part of the year 1942 and the plaintiffs plead that thesaid Samsudeen Mohamed Jaleel should be presumed to be dead asfrom the early part of 1949.
“ 7. The said Samsudeen Mohamed Jaleel left as his heirs hischildren the first and second plaintiffs and a daughter Quraisha, whobecame entitled to the said land and premises as at early 1949subject to the same entail and fidei commissum ”.
The above allegations in the plaint are answered by the defendant asfollows :—
*' 6. Answering to paragraph 6 of the plaint the defendant putsthe plaintiff to the proof of the death of the said Jaleel.
“7. Answering to paragraph 7 of the plaint the defendant statesthat he is unaware that the 1st and 2nd plaintiffs and Quraisha arethe heirs of the said Jaleel and therefore puts the plaintiffs to the proofthereof. The defendant denies that the 1st and 2nd plaintiffs andQuraisha became entitled to the said land and premises ”.
It would appear from the foregoing that the question that arises fordecision is not whether Jaleel is alive or dead but whether he is dead.Doubtless if a man is not dead he must be alive ; but in a civil trial it isfor the party on whom the burden rests to discharge it and failure of theparty on whom the burden does not rest to disprove any fact the burdenof proof of which lies on the other does not enable him to succeed. Nowin the instant case the plaintiffs cannot maintain this action unless theyprove that Jaleel is dead, for if he is not dead, on their own showing theyhave no right to be declared entitled to the land or to be placed in possessionof it. The burden of proof in a case such as this would be governed bysection 101 and not sections 107 and 108, for the legal right of the plaintiffsis dependent on the fact of Jaleel’s death which the plaintiffs ask thecourt to presume without proving by affirmative evidence. They do notindicate that they have in mind section 114 of the Evidence Ordinanceand there is no other section under which the court may be invitedto presume the existence of a fact. The best form of proof ofa person’s death is the production of his death certificate with evidenceas to the identity of the person to whose death it relates. In the absenceof such a certificate it is open to a person to produce evidence of thosewho knew the deceased and were present at his death and attendedhis funeral. Where proof of death cannot be furnished by direct evidencea party on whom the burden lies may seek to discharge the burden byproving such facts and circumstances as would enable the court to presume• that the person is dead.
In A case where one party affirms that a person is dead and anotherthat he is alive, if a party produces evidence to the effect that he wasalive within thirty years then the person who affirms that he is dead
'I
BA6NAYAKR, CUT.—Uavoodbhoy v. Farook101
must prove that he is dead ; but if the person who affirms that he is deadinstead of proving that he is dead leads evidence which proves that hehas not been heard of for seven years by those who would naturally haveheard of him if he had been alive then the person who affirms that he isalive must prove that he is alive. So that in a case where the questionis whether a person is alive or dead and one party affirms that he is deadand the other that he is alive and it is in evidence that he was alivewithin thirty years the burden that lies on the party that, affirms thathe is dead by virtue of section 107 to prove that he is dead shifts by opera-tion of section 108 to the party that affLms that he is alive if it is provedthat he has not been heard of for seven years by those who would naturallyhave heard of him if he had been alive. The instant case is not such aone. Here the plaintiffs invite the court to presume that Jaleel is dead.They do not even affirm that he is dead.
So much for the provisions governing the burden of proof. I shall nowexamine the evidence. Giving evidence on the 29th November 1956the first plaintiff said—
(а)that his father, who was a gem merchant, left Ceylon in August 1942
by Talaimannar train for Madras in India.
(б)that he had not heard of him up to the date on which he gave
evidence.
that he wrote to some people in India inquiring about his father
but got no replies.
that he wrote to a Company with which his father had business
dealings in Singapore and he was informed that he had notcome there.
that his father was 65 years of age when he left for India.
(/) that his father had friends in Ceylon.
(g) that he has not paid any estate duty on the footing that his fatheris dead.
The witness Mohamed Muktar who gave evidence on behalf of thefirst plaintiff said that he made inquiries from his children about a yearor two after Jaleel left for India and was informed that he was gettingon well. Neither Jaleel’s wife who was alive nor his other son the secondplaintiff gave evidence. The evidence tendered by the plaintiffs doesnot establish that Jaleel is dead nor may a court presume upon thematerial offered by them regard being had to the common course ofnatural events, that Jaleel is dead. The best evidence of Jaleel’s age,his birth certificate, is not produced. But even accepting the firstplaintiff’s statement, which is hearsay and not .proof of his age, thatJaleel was 65 years of age when he left for India in 1942, on 17th October1951, the date on which this action was instituted, he would be 74 yearsof age. There are many persons of that age alive today and the courtmay not presume on the evidentiary material before it that’ a man of74 is dead. The plaintiffs have therefore not established either by
2*—J.X. B. 18749 (8/61)
102
•BASiTAYAICE, C.J.—Davoodbhoy v. Farook
affirmative or by presumptive proof that Jaleel is dead and their actionmust fail. The learned District Judge’s approach to the burden thatlay on the plaintiffs is wrong. He had addressed to himself the question—“ Is Jaleel alive ? ” The defendant did not affirm that he was alive.He put the plaintiffs to the proof of the fact on which they relied, namely,that he is dead, a fact on the proof of which the success of their casedepended. The burden was on them throughout to prove that fact.It never shifted to the defendant. As explained above, for sections 107and 108 to come into operation and the burden of proof to get shiftedfrom one to the other there must be one person who affirms that a personis dead and another who affirms that that person is alive.
The following issues were suggested by counsel for the defendant onthe subject of Jaleel’s death :—
“9. Has the said Samsudeen Mohamed Jaleel not been heard ofsince the first part of 1942 ?
“ 10. If so does the presumption arise that the said Jaleel is dead ? ”
The learned trial Judge adopted these issues and answered them in theaffirmative. They do not show precisely whether learned counsel hadin mind section 114 of the Evidence Ordinance or sections 107 and 108.It would appear that both Judge and counsel were not clear as to theprovisions governing the burden of proof in a case such as this. Thelearned Judge’s answers are wrong. The evidence is that up to about1944 his children heard from Jaleel, and the evidence produced doesnot support a presumption under section 114 of the Evidence Ordinance.
I now come to the second point urged by learned counsel. The trialJudge has held that neither the Will (P2) nor the probate of that Willwas duly registered and it is therefore not necessary to discuss it furtheras there is no proof that they were registered. The issue on this pointis as follows : “ Was the alleged Last Will and/or Probate if any thereofduly registered ? ” The learned Judge has answered it thus—“ Noproof of this, but the registration of deed 663 of 1902 (P6) which refers tothe Will is sufficient.” There is no evidence that P2 and the Probatethereof were registered either under the enactment relating to the regis-tration of documents now in force or any of the enactments on the subjectin force at the time of the execution of the Will or the grant of Probateor thereafter.
P6 undoubtedly refers to a Will of Mohideen Natchia. The onlyquestion is whether P2—Will No 418—is referred to therein.
Section 2 of Ordinance No. 35 of 1947 reads—
“ (1) On and after the first day of January, 1948, no instrumentaffecting any land, which was executed or made at any time prior to. the first day of January, 1864, shall unless^—
(a) it was, at the date of the commencement of this Ordinance,
• duly registered under any of the Ordinances specified insub-section (3) ; or
BASNAYAXE, C.J.—Davoodbhay v. Farooh
103
(6) it is referred to in any other instrument which was, at the dateof the commencement of this Ordinance, registered underany of the Ordinances specified in sub-section (3) as aninstrument affecting that land ; or
(c) it is registered in accordance with the provisions of this Ordin-ance,
be of any force or avail or be received in evidence in any Court asagainst any person claiming any interest in such land upon valuableconsideration or any other person claiming under any such person,for the purpose of proving the land to be subject to a trust or fidei-commissum.
“ In this sub-section * interest ’ means an interest created orarising whether before or after the date of the commencement of thisOrdinance.
The provisions of sub-section (1) shall apply to any instrumentexecuted or made prior to the second day of February, 1840, notwith-standing that such instrument may have been registered under theSannases and Old Deeds Ordinance.
The Ordinances referred to in paragraphs (a) and (b) of sub-section (1) are—-
The Registration of Documents Ordinance (Cap. 101)
The Land Registration Ordinance, No. 14 of 1891The Land Registration Ordinance, No. 5 of 1877The Land Registration Ordinance, No. 8 of 1863. ”
The expression se referred to ” does not mean “ incorporated inIt is therefore not necessary that the subsequently registered instrumentshould contain a reproduction of the terms of the old unregisteredinstrument. Is mere mention of the unregistered instrument sufficientor should the registered instrument refer to it in such terms that anyonereading it can if he is so minded ascertain the contents of the unregisteredinstrument by search at a Land Registry or a Court where records ofdeeds and documents are preserved ? I am inclined to think that thereference in the registered instrument should be such as to give toits reader sufficient information regarding the unregistered instrumentto enable him to trace it and refer to it in order to ascertain its purport.
The references in PG to the Last Will are as follows :—
<c Whereas Mohideen Natchia widow of Amidol Lebbe SamseeLebbe by her Last Will and Testament dated twenty-second July 1850executed before me Coonje Marikar Mohamado Lebbe, Notary Publicof Colombo, the original whereof is in Tamil and is filed of recordin the District Court of Colombo in Case No. 1734 declared that shewas in the possession of the premises described in the Schedule Ahereto and which premises she declared to bequeath to her eldest sonSamsee Lebbe Amidol (Hamidu) Lebbe with intent and meaning
104
BASNAYAKEr C.J.—DavoodbJioy v. Farook
that it shall be under the bond of fideieommissum for ever aud thesaid premises and the profits arising therefrom she willed that the saidSamsee Lebbe Hamidu Lebbe should enjoy, but the same could notbe sold or mortgaged for any debts or be otherwise ruined wasted ordamaged but that her descendants should inherit the same with theintent and meaning that if it be found necessary that the said premisesshould be bestowed for dowry the same should be given with the sameintent and meaning and that if there should be no heirs to the saidproperty it should devolve upon the mosque as is morefully stated inthe fifth clause of the said Last Will.
“ And whereas the said Mohideen Natchia died on or about thetwenty-fourth December 1855 and the said Last Will and Testamentof the twenty-second July 1850 was duly proved in suit No. 1734 ofthe District Court of Colombo and Probate thereof granted to SamsyLebbe Ahamadu Lebbe the Executor in the said Last Will and Testa-ment named ”.
This is not only a reference to a Last Will but is also an incorporation ofthe substance of that Will and in my opinion more than satisfied therequirements of section 2 (1) (6) ; but this does not answer learned counsel’scontention that Will No. 418 (P2) is not referred to. There is no evidencethat the Will referred to in P6 and Will No. 418 (P2) are the same. Itcannot therefore be said that P2 is referred to in P6.
In regard to the third point there is no proof that Will No. 418 (P2)was proved. Neither the Probate nor the testamentary proceedingsin which the Will was proved are produced. The first plaintiff hasproduced a letter dated 30th September 1952 (P3) from the Secretaryof the District Court of Colombo to the effect that the Probate andInventory in D. C. Colombo 1734T dated 15th September 1852 aremissing according to an Inventory prepared some years ago. This letterdoes not prove that Will No. 418 (P2) has been admitted to Probate in thecase mentioned therein.
He also produces a document (P4) which is as follows:—
“ IN THE DISTRICT COURT OF COLOMBO
Testamentary Index
XXXXXXXXX
Mohedin Natchie of Colombo
XXXXXXXXXXXX
* True copy * of extract from Testamentary Index Register page 197in D. C. Colombo.
(Sgd.) E. SangaraphaaiAsst. Secretary, D. C. Colombo.
XXX
Number
1734
Certified this 10th day of December, 1953. ”
BASNAYAKE, C.J.—-Davoodbhoy v. Faroob
105
Even this document does not prove that the Will No. 418 (P2) has beenadmitted to Probate. Another document on which the first plaintiffrelied for the purpose of establishing- that the Will P2 has been provedis P5 which is the copy of a deed No. 8744 executed on 4th April 1856 bySamsu Lebbe Ahamadu Lebbe one of the sons of Mohideen Nachchia.The recitals relied on are as follows :—
“ And whereas the said Mohideen Natchchi here to from to wit atColombo on or about the 24th day of December One thousand eighthundred and fifty-five departed her life having previously made andpublished her last will and testament bearing date the twenty-secondday of July One thousand eight hundred and fifty and thereby appoint-ing one of her two sons namely Samsu Lebbe Ahamadu Lebbe soleexecutor of the said Last Will who proved the said last will beforethe District Court of Colombo in the case No. 1734 and obtainedprobate thereof a copy of which said probate bearing date the thirty-first day of March One thousand eight hundred and fifty-six is hereuntoannexed. ”
The same deed also refers to an extract of the Last Will which is annexedto it in these terms—“ as is morefully stated in the fifth clause of thesaid Last Will an extract from which is hereto annexed. ” The copyof the Probate is not annexed to the certified copy of the deedproduced in this case nor is there an extract of the Last Will. He alsorelies on the copy of a deed (P6) of 27th May 1902 executed by Colend aMarikar which refers to a Last Will of 22nd July 1850 which was provedin suit No. 1734 of the District Court of Colombo and Probate thereofwas granted to Samsy Lebbe Ahamadu Lebbe the executor of the saidLast Will and Testament.
Do the documents on which the first plaintiff relies prove that theWill produced in the instant case has been proved as the Last Will ofMohideen Natchchia ? I think not. The granting of Probate is amatter which is required by law to be reduced to the form of a document.Section 91 of the Evidence Ordinance provides that in such a case noevidence shall be given in proof of the terms of such matter except thedocument itself or secondary evidence of its contents in cases in whichsecondary evidence is admissible. The Probate has not been producedalthough it would appear from the documents produced that a Probatewas in existence in 1856. There is no legal evidence that the Probatewhich was in existence in 1856 has been destroyed or lost. The Probateis a document given by the court to the executor. P4 establishes onlythat the entry Mohedin Natchie of Colombo . . .Number occurs in the
-1734
Testamentary Index. That is not enough to bring section 65 of theEvidence Ordinance into operation and to permit of secondary evidenceof the Probate being given, if such evidence were in fact available.
The evidence that has been produced by the first plaintiff to provethe Probate of the Will in question is not even secondary evidence though
106
BASNAYAKE, C.J.—Davoodbhoy v. Farook
that evidence has been allowed. Now the rule is that documents mustbe proved by primary evidence (s. 64 Evidence Ordinance). The excep-tions are to be found in section 65 which reads—
“ Secondary evidence may be given of the existence, condition, orcontents of a document in the following cases :—
When the original is shown or appears to be in the possession
or power—
of the person against whom the document is sought to beproved, or
of any person out of reach of, or not subject to, the processof the court, or
of any person legally bound to produce it,
and when, after the notice mentioned in section 66, suchperson does not produce it;
When the existence, condition, or contents of the original
have been proved to be admitted in writing by the personagainst whom it is sought to be proved, or by his represen-tative in interest;
when the original has been destroyed or lost, or when the party
offering evidence of its contents cannot, for any other reasonnot arising from his own default or neglect, produce it inreasonable time ;
when the original is of such a nature as not to be easily movable ;
when the original is a public document within the meaning of
section 74 ;
when the original is a document of which certified copy is
permitted by this Ordinance or by any other law in force inthis Island to be given in evidence ;
when the originals consist of numerous accounts or other docu-
ments which cannot conveniently be examined in court, andthe fact to be proved is the general result of the whole collec-tion.
In cases (1), (3), and (4), any secondary evidence of the contentsof the document is admissible.
In case (2), the written admission is admissible.
In case (5) or (6), a certified copy of the document, but no other- kind of secondary evidence, is admissible.
In ease (7), evidence may be given as to the general result of thedocument by any person who has examined them, and who is skilledin the examination of such documents. ”
BASNAYAKE, C.J.—Davoodbhoy v. Farook
107
In the instant case even if the plaintiffs had a certified copy of theProbate they would not have been entitled to produce it without bringingthemselves within the ambit of section 65. There being no proof thatthe Will No. 418 (P2) has been admitted to Probate it cannot be actedon as the Last Will of the deceased. It is therefore unnecessary todecide whether the Will No. 418 (P2) creates a perpetual fideieommissum.But as a great deal of time appears to have been devoted at the trialto a discussion of the effect of this Will (P2) and as the learned DistrictJudge has referred to it at length and formed the conclusion that itcreates a perpetual fideieommissum, I think I should express my opinion.The effective part of the document “ X ”, which is the translation ofWill No. 418 made by the plaintiffs* expert, reads—
” I give unto my first son Samsi Lebbe Hameedu Lewai subject,to the condition of fidei commissum in perpetuity over the entiretyof the property. He shall only enjoy the income from the said threehouses and the garden appurtenant thereto but shall not sell or mortgagethe same for any debts or in any other manner alienate the same ordo any kind of damage and even the successive progeny will onlypossess the same subject to the condition and if it became necessaryto give the said properties as dowries even then the said condition offidei commissum shall be attached to the whole of the said propertyand the said property shall be continued to be possessed and ir theevent of there being no persons at any time who shall be entitled tothe said properties then the same shall be given over to the Mosque. ”
At the trial a dispute arose as to the true rendering into English ofthe Will, which is in Tamil. Expert evidence was called by both sides.The dispute centred round the words “ even the successive progeny ”in the above extract. The defendant’s expert gives the following version :
" even their respective children shall possess the properties ”. Thelearned District Judge has preferred the version of the plaintiffs’ expert.The contentious words are “ Thangal Thangaludaiya ”. The defendant’sexpert restricts the meaning to “ their children ”. He is certain itnever means “ generation ” or “ progeny ”. Of the two meanings Iprefer the meaning which tends to support the view that the instrumentdoes not create a perpetual fideieommissum. My view finds supportin the following passage in Van Leeuwen’s Censura Eorensis, Bk. IllCh. VII s. 14 (Foord’s translation) : —
” It has been received as a general rule, that a fideieommissumof this or a similar kind in a case of doubt and when the prohibitionis difficult to be understood, is not perpetual, but only extends tothe fourth degree of succession, counting from him to whom after thedeath of the first heir the inheritance has come saddled with such aburden, up to the fourth degree beyond him inclusive, for the personwho has been burdened expressly and by name does not form a degree,but his successor is the first to do so. ”
108
PULLE, J.—Davoodbhoy v. Farook
The last point of learned counsel is that the defendant is entitled toa decree in his favour by virtue of his possession of the land for thirtyyears. He relies on the following proviso to section 13 of the PrescriptionOrdinance : —
“ Provided also that the adverse and undisturbed possession forthirty years of any immovable property by any person claiming thesame, or by those under whom he claims, shall be taken as conclusiveproof of title in manner provided by section 3 of this Ordinance,notwithstanding the disability of any adverse claimant. ”
It has been held by a Bench of three Judges in the case ofCassim v. Uingihamy1 that in the proviso “ disability ” meansincapacity to do legal acts, and that a fideicommissa ry whose right topossession has not accrued cannot be said to be under “disability”.With that decision I am in respectful agreement.
For the above reasons I set aside the decree of the District Court anddirect that a decree be entered dismissing plaintiffs’ action with costs.
In view of the order I have made the cross objections are also dismissed.
The plaintiffs are ordered to pay the costs of appeal to the defendant.
Pdix-e, J.—
In expressing my concurrence in the result reached by my Lord, theChief Justice, I wish to add a few observations of my own. By deedDl of 8th November, 1917, the defendant obtained from one MohamedJaleel for valuable consideration a conveyance of the property in suitand since then he has been in undisturbed possession and improved it ashis own. The plaintiffs of whom two are minor grandchildren of Jaleeland the 6th plaintiff a purchaser by deed P10 of 4th October, 1951,of a part of the joint interests of the 1st and 2nd plaintiffs, who are thesons of Jaleel, commenced the present action on the 17th October, 1951,to have the defendant ejected from the property and to recover Rs. 9,000as damages on account of mesne profits and continuing damages at therate of Rs. 450 per mensem. The contention of the plaintiffs wasthat the interests of Jaleel -in the property were of a fiduciary characterwhich terminated on his death and that defendant’s possession thereafterwas unlawful. Assuming that Jaleel had only a fiduciary interest it wasessential to the success of the case for the plaintiffs that they shouldestablish the fact of his death. It was not essential to the defence toaffirm that Jaleel was alive. First, he was in possession and it was leftentirely to the plaintiffs to prove, if such was the fact, that Jaleel was dead.Secondly, he bought the property on the basis that Jaleel was theabsolute owner, so that from his own point of view it was a matter ofindifference whether Jaleel was dead or alive. The strange result forwhich the plaintiffs, in these circumstances, contended was that, as Jaleel *
* (1906) 9 N. L. R. 257.
PDUiE, J.—Davoodbhoy v. Farook
109
had not been heard of since 1942, by operation of section 108 of theEvidence Ordinance they had discharged the burden of proving thathe was dead in 1951 when the 1st and 2nd plaintiffs purported to conveya share of their interests to the 6th plaintiff. In regard to the applica-tion of section 108 of the Evidence Ordinance I cannot do better thanrepeat the words of learned counsel for the defendant that a rule ofevidence as to burden of proof does not generate a presumption of fact.In my view there is nothing in section 108 which compels a court tohold, upon proof that a person has not been heard of for seven years bythose who would naturally have heard of him if he had been alive, thatthe fact of that person’s death has been established by him on whom theburden lies under section 101 to prove such death.
It is clear from the instrument Dl of 1917, read with P6 of 1902,conveying the property to the defendant that the title of Jaleel dependedon the terms of a Will dated 22nd July, 1850, executed by MohideenNachchia and admitted to Probate in D. C. Colombo case No. 1734.Again assuming that the Will referred to in P6 is identical with thedocument P2, namely, the last will No. 418, the question arises for deter-mination not whether it created a fideicommissum but a fideicommissumin perpetuity.
The immediate devisee of the property under the last will is SamsiLebbe Hameed Lebbe. One of Hameed Lebbe’s children is Samsudeento whom the property was allotted by the deed of partition P6. ThisSamsudeen is the father of Jaleel. That the prohibition against alienationbound the immediate devisee and their children is not contested but theplaintiffs’ claim that the prohibition bound Jaleel as well is disputed.The learned District Judge had before him as many as five translationsof will No. 418. These were P2 (a), produced by the plaintiffs at thetrial, Dll and D2 produced by the plaintiffs at an earlier abortive hearing,XI a translation prepared by the interpreter of the court and D10 a trans-lation by a teacher of Jaffna College who possesses an M.A. degree inTamil conferred by the Annamalai University. The variants in thetranslations of the crucial passage are striking and they turn on theproper meaning to be given to the Tamil expression, “ Thangal thanga-ludaya”. According to the translation XI the prohibition againstalienation is imposed also on the “ successive progeny ” of the deviseeswhile, according to D10, the devisees and their children alone areprohibited from alienating.
The difficulty in this case is much more than one of interpretation.When experts disagree as to the meaning and significance of words usedby the testatrix a real doubt arises whether she intended by those wordsto create a fideicommissum in perpetuity. Such a doubt would militateagainst the party contending that the will created a fideicommissumin perpetuity.
Appeal allowed.