DE LIVERA et al. v. ABEYSINGHE et al

144-NLR-NLR-V-40-DE-LIVERA-et-al.-v.-ABEYSINGHE-et-al.pdf


516 .
de IAvera v. Abeysiiighe.
1938Present: Maartensz S.P.J. and Keuneman J.
DE LIVERA et a. v. ABEYSINGHE et al.
16—D. C. Galle, 33,082
Evidence Ordinance—Last will—Translation of a Dutch will—Proof bysecondary evidence—Res judicata—Question not decided in appeal—Ordinance No. 14 of 1895, s. 63.
An English translation of a document in another language cannot beregarded as secondary evidence of the original document under section 63of the Evidence Ordinance.
Even if a document is admitted to the record by. consent, that alonewill not enable either party to prove by that document anything whichunder the Evidence Ordinance cannot be proved.
Where an appeal has been taken from the decision of an originalCourt and the Appellate Court does not think fit for some reason todecide the matter, the question is left open and is net res judicata.
T
HE plaintiffs brought this action against 203 defendants for thepartition of Pokunebodawatta alias Pokunewalawwa. The plaintiffs
contended that the original owner of the land was Nicholas Dias Abey-singhe Amerasekera, who left a last will dated May 21, 1793, wherebyhe devised the land in question to his heirs subject to a fidei commissum.
de XAvera v. Abeysinghe.519
The 139th and 140th defendants denied that Nicholas Dias Abeysingheleft a last will dated May 21, 1793, and, even if he had, it did not createa valid fidei commissum binding to the 4th degree of succession. Theyfurther contended that the plaintiffs were not the only heirs of -the 3rdand 4th degree of succession. Further, the defendants objected to theadmission of the copy of the will which was not the original. It wasa copy of a translation. The learned District Judge held in favour of theplaintiffs and the defendants appealed from this order.
A. Hayley, K.C. (with him E. B. Wikremanayake), for the 139thand 140th defendants, appellants.—The appeal involves three points oflaw. Firstly, the will must be proved. An alleged translation had beenfiled. It had been the subject-matter of several actions, but no probatehad been granted. The procedure under the Dutch Is unknown. Thewill must be proved. There is no evidence that the document is a lastwill so as to enable secondary evidence to be led under section 65 (3) ofthe Evidence Ordinance. Section 63 of the Ordinance defines the natureof secondary evidence. A translation is not a certified copy. In AbdulRahiman v. Kanni Umma', it was held that a translation of a deed ofconveyance would not be admissible as secondary evidence to prove thecontents of the original deed.
Secondly, this case involves the number of generations to whom thefidei commissum pass. The obiter dictum of Koch J. in Siri Kantha v.Thiagarajah1 that a fidei commissum extend^ up to and including thefourth generation should not be followed. Thfe’ only reference to the fourgenerations is a decision in D. C. Galle, 23,3763, but it is a decision withregard to the same will. Walter Pereira deals with this question onp. 446 of his Laws of Ceylon. Juta says that a fidei commissum isconfined to four generations counting from the first fideicommissary heiror legatee (Juta on Wills, p. 103). Steyn, p. 200, says the same thing.Though the plaintiffs claim that they have an absolute title, thedefendants submit that they have only a life-interest as the testatormust not be included in the four generations.
Thirdly, as the plaintiffs have no absolute title, a partition should notbe allowed. There are limits to the proposition that fidei commissumproperty can be partitioned. This point is discussed in Kuda Etana v.Ran Etana *, though the question in that case was different. InFernando v. Fernandos, Sampayo J. stressed the inadvisability ofdividing land subject to fidei commissum. The same proposition waslaid down in wider terms by the learned Judge in Dassanaike v. Tilleke-ratne *.
[Maartensz S.P.J.—Is there any provision corresponding to OrdinanceNo. 17 of 1852 during the Dutch times? |
Walter Pereira refers to Dutch wills at page 400 of his book, Laws o'Ceylon. Members of the Court referred to must be Judges—See Groth11., 17,18.
> (1912) 14 N. L. R. 279.5 (1935) 37 N. It. R. 270.’ (1869) Vand. 32.
* (1912)-Id N. L. R. 154 at 255.5 (2925) 2 C. W. R. 46.r- (2917) 4 C. IV. R. 334 at 335.
520
de Livera v. Abeysinghe.
N. Nadarajah (with him G. E. Chitty), for the plaintiffs, respondents.—The. will had been produced and acted upon. Portions of the will arequoted in D. C. Galle, 23,376'. This was considered in Doraisamy v.Raman Chetty and Supramaniam Chetty'.
A copy can be made from a copy. A copy of the translation was .produced. This tallied with the one produced by the defendants. Sincethe original and the translation formed one document, the translation isin the same position as the original. See Lachman Singh v. Mussumat, Puna In Silva v. Kindersley it was held that when a document was■ tendered by a party and was accepted without objection, it would bedeemed to be legally admissible. A certified copy of a certified copy of/an old deed was accepted in Sartasang v. Narasingji “. If this view isnot accepted it would be difficult to prove an old Dutch deed when it isdestroyed.
It was held in Babun v. Dingihamy ° that where a party went to Courton a certain footing and- the Court decided, it would operate as res judicatain future proceedings. The only exception to this rule is section 44 of theEvidnce Ordinance. See Endris v. Adrian Appu Hukumchand on ResJudicata p. 89, Dingiri Menika v. Punehi Mahatmaya *, Canapathipillai v.Arumugam", Bissorup Gossamy v. Gorachand Gossamy Spencer Boweron Res Judicata 126, Saravanamuttu v. Solamuttu
The manner in which the generations are to be reckoned is given inSiri Kanlha v. Thiagarajah./
A Court can partition land subject to a fidei commissum—See Sathia-naden v. Mathes Pulle ", Baby Nona v. Silva Abeysundera v. Abey-sundere “ and Jayawardene on Partition, p. 38.
XF. A. Hayley, K.C., in reply.—Under section 207 of the Civil ProcedureCode all decrees are made subject to the appeal. When an appeal is filedit is no longer res judicata but res sub judice. See Annamalay Chetty v.ThornhillThen there must be a further judgment of the Court ofAppeal to operate as res judicata. Further the question of res judicata hadnever been raised. The various judgments were filed not for the purposeof res judicata but to prove the document by secondary evidence.
Now secondary evidence can be led under certain circumstances onlyas for instance the loss of a document. There must be the proof of theloss. See Amir Ali on Evidence, s. 63, clause 3. It was held in Jaga-natha Naidu v. The Secretary of State for India” that a translation wasnot secondary evidence of the original.
Under section 547 of the Civil Procedure Code a will can be admittedonly after probate is taken out. It applies retrospectively. SeePonnamma v. Arumugam ", Gunaratne v. Hamine ”, and Gunaratne v.
1 (1869) Vand. 32.
‘ (1910) 2 Cur. L. Rep. 217.a L. R. 16 I. A. (1888-1889), 125.
(1914) 18 N. L. R. 85.
5 (1922) A. I. R. Bom. 177.
(1899) 2 Malar a 80.
■> (1905) 11 N. L. R. 62.
(1910) 13 N. h. R. 59.
® (1917) 5 C. W. R. 23 at 24.
(1882) I. L. R. 9 Calc. 120.ii (1924) 26 N. L. .R. 385, at 392.i= (1935) 37 N. L. R. 270, at 271.>3 (1897) 3 N. L. R. 200.i“ (1906) 9 N. L. R. 251.
>3 (1909) 12 N. L. R. 373.m (1931) 33 N. L. R. 41.
I1 (1922) A. I. R. Madras 334.m (1905) 8 N. L. R. 223.
>® (1903) 7 N. h. R. 299.
MAARTENSZ J.—de Livera v. Abeysinghe.
521
Appuhami'. In Charles Hamy v. Jane Nonait was held that a willcould not be proved incidentally. Section 547 of the Civil ProcedureCode is imperative.
Cur. adv. vult.
July 8, 1938. Maartensz J.—
This is an action for the partition of a land called Pokunabodawattaalias Pokune Walauwa which belonged to Nicholas Dias AbeysingheAmerasekera, Maha Mudaliyar.
The plaintiffs brought this action on the footing that Nicholas Diasby his last will dated May 21, 1793, devised the property to his childrenAna Gertrude, Johannes Wilhelminus, and Don Abraham subject to afidei commissum in favour of their descendants.
Don Abraham left six children one of whom was William Alexander.He had five children one of whom was Abraham Nicholas whose childrenare the 133rd to the 140th defendants. The 139th and 140th defendantsfiled answer in which they pleaded inter alia that Nicholas Dias did notleave a last will and that he did not subject the property to a fideicommissum.
At the trial the 137th defendant associated himself with the contestsraised by the 139th and 140th defendants (see page 142 of the record).
The fourth plaintiff produced the document P 1 as evidence thatNicholas Dias left a will executed in 1793. Counsel for the 139th and140th defendants submitted that it was inadmissible and moved that thisquestion and certain other legal questions should be tried first.
The District Judge acceded to this request and adjudicated on thefollowing legal points regarding the will.
Did it create a fidei commissum binding to the 4th. degree of
succession?
Are plaintiffs only the 3rd and 4th degrees of succession?
If so, is this action maintainable?
Is the document P. 1 admissible in evidence?
The 139th and 10th defendants appeal from the District Judge’s rulingson these points—
The questions which have to be decided in this appeal are: —
Whether P 1 is secondary evidence of the will?
Whether the plaintiffs have led other evidence which amount to
secondary evidence of the will?
Whether the 139th and 140th defendants are bound by the judgment
and decree in ease No. 33,087 of the D. C. of Galle?
I have had the advantage of reading the judgment of my brotherKeuneman and I agree, for the reasons given by him,, that the decree incase No. 33,087 does not bind the appellants. I also agree that P 1 is notsecondary evidence of the will as it is a translation of the will whichis in Dutch and therefore does not come within the categories of secondaryevidence prescribed by section 63 of the Evidence Ordinance and that theplaintiffs have not led any other evidence which amounts to secondaryevidence of the will.
1 (1906) 9 N. L. R 90.
– (1912) 16 N. L. R. 481.
522
MAARTEN3Z J.—de lAvera v. Abeysinghe.
Tlje question arises whether the District Judge’s order should be setaside in toto or only so far as it affects the appellants.
In this case there can be no doubt that Nicholas Dias was the ownerof the property in question nor in my opinion can there be any doubtthat he left a will dated May 21, 1793. The authenticity of the will isalso beyond doubt. It has been acted upon and interpreted by thisCourt and the D. C. of Galle in a series of cases of which the first wascase No. 23,376 of the District Court of Galle which was decided in 1868and affirmed in the Supreme Court in 1869.
The 140th defendant filed a copy of the will or a translation of it incase No. 3,170, D. C. Galle (Land Acquisition) and it was returnedto him (see journal entries P 6). The 140th defendant in that case,in support of his application to draw a share of the compensation, filedan affidavit dated October 25, 1920, in which he swore that NicholasDias Abeysinghe by his will dated May 21, 1793, created a fideicommissum in favour of his heirs and died leaving as heir a son, one ofwhose descendants was the deponent. The 139th defendant addresseda petition to the Attorney-General qlaiming his share of theinterest earned by the compensation deposited in that case (P 6).
The 139th and 140th defendants for purposes of their own now put theparties to the partition action to the proof of the contents of the will.The objection though highly technical one must be upheld but I am notprepared in the circumstances of this case to exercise the powers vestedin this Court by section 760 of the Civil Procedure Code even if it wasapplicable and reverse or modify the decree in favour of all the defendants.
I accordingly make the following' order. The order of the DistrictJudge is varied and the shares or interests if any of the 139th and 140thdefendants are declared free from the burden of a fidei commissum.This exception will not extend to the interests, if any, of which the 139thand 140th defendants have divested themselves and the owners of whichare parties to the suit and have not appealed.
It is now settled law that a partition suit can be brought by one of twoor more fideicommissaries as fideicommissaries and the objection that theaction is not maintainable fails.
Subject to the above variation the order of the District Judge is affirmed.The 139th and 140th defendants will be entitled to the costs of appealand the costs of contest in the Court below payable by the plaintiffs.
Keuneman J.—
The five plaintiffs brought this action under the Partition Ordinanceagainst 203 defendants for the sale of the land Pokunebodawatta aliasPokune Walauwa. There were many points of contest, but a certainnumber of these points were taken up by way of preliminary inquiry,viz., the points numbered, 4, 5, and 6, which are set out as follows in thejudgment appealed from: —
The legal points are—
(4 and 5) 139th and 140th defendants deny that Nicholas DiasAbeysinghe left a last will dated May 21, 1793. If the Court holds thatthere was such a will,
KEUNJEMAN .7.—de Livera v. Abeysinghe.$23
Did it create a fidei' commission binding to the 4th degree of
succession? and
Are the plaintiffs only the 3rd and 4th degree of succession?
If so, is this action maintainable?
Is the document P 1 admissible in evidence?
The contention of the plaintiffs was that the original owner of the landin question was Nicholas Dias Abeysinghe Ameresekera, Chief Mudaliyar,who left a last will dated May 21, 1793, whereby he devised the land inquestion to his heirs, subject to a fidei commissum which was binding tothe full extent allowed by law, viz., for four generations. This wasdenied by the 139th and 140th defendants.
In proof of the said will, the plaintiffs produced document P 1, whichwas objected to by the appellants, and the question arose whether thatdocument was admissible.
The learned District Judge held on these points in favour of theplaintiff. The learned District Judge further held that the fideicommissum attached to the donees and three generations following.
The appellants appeal from this judgment.
The first question to be decided is whether the document P 1 isadmissible in evidence. P 1 is not the original will, nor a certified copyof that will. P 1 purports to be an English translation of a documentin Dutch which had been deposited in the office of the Secretary of Policeon May 21, 1793, during the time of the Dutch Government of Ceylon.A copy of this document had been granted to Mudaliyar Don BastianDias Abeysinghe Siriwardene on May 4, 1793. P 1 may be a translationof the original document deposited or of the copy granted as shownabove. There is an endorsement that the copy agrees with the original,so probably the translation was of the copy. Now the terms of P 1show that Nicholas Dias Abeysinghe Ameresekera appeared -at theoffice of the Secretary of Police and made certain declarations, but P 1purports to bear the signature of G. C. Dias as executant. No explana-tion has been given for this difference in initials. In an old actionD. C. Galle, 23,376, about the year 1865 one Nicholas Dias Mudaliyar,a grandson of the original owner, produced what he described as the“ old Dutch deed of 1793 ”. A translation was also filed in the case.In April, 1872, one Petrus Dias, a member of the same family moved forpermission to withdraw the will, leaving the translation behind in the case.The reason given was that there was no person procurable who wascompetent to make a copy of the will. The will was accordingly handedto Petrus Dias, who signed as having received the same.
In D. C. Galle, 38,454, about the year 1880, Fred Dias the son of PetrusDias produced this “will” for the purposes of the case, and was allowedto withdraw it again. (Vide document P 1.)
The fourth plaintiff stated in evidence that on the death of Fred Dias,
“ the contesting defendants, i.e., Abraham Dias’ family, got the will. • InD. C., Galle, 3,170, land acquisition, 140th defendant produced a copyof this will and withdrew it later …. The will cannot now befound No explanation in this connection has been offered by thepresent appellants.
524
KEUNEMAN J.—de Livera v. Abeysinghe.
The document P 6—the journal entries in case D. C. Galle, 3,170—shows that the 140th defendant moved to withdraw the last willNo. 1,543 filed by him and was allowed to do so on July 18, 1930. Thisis the number appearing in P 1. Apart from the evidence of the fourthplaintiff there is nothing to show definitely whether the documentwithdrawn was a certified copy of the Dutch will, or a translation. Theappellants produced document 139 D 1, which is an English translation,in similar terms to P 1 except for the fact that the first page is missing.139 D 1 contains an endorsement at the back of the last page under dateJuly 18, 1930— “ Doct. filed in D. C. Galle, case No. 3,170 returned to
P. Dias Abeysinghe defendant ”, i.e., to the present 140th defendant.*
The contention for the plaintiff is two-fold, (1) that the Dutch last willis in the possession of the 140th defendant, and (2) in the alternativethat it is lost. It is urged that secondary evidence can be given of thecontents of the will under section 65 (1) and (3) of the EvidenceOrdinance.
As regards the first contention, it is only necessary to state that thenotice to produce the document required by section 66 has not beengiven to the 139th and 140th defendants, and that no circumstanceshave been established which dispense with the necessity of notice. Butthere is another and more serious objection which is applicable to boththe contentions, viz., that P 1 is not secondary evidence of the documentwithin the meaning of section 63 of the Evidence Ordinance. P 1purports to be a. translation of the Dutch original or of the copy suppliedby the office of the Secretary of Police. In Abdul Rahiman v. KaniUmma1 Lascelles C. J, stated, “The different kinds of secondary evidencethat are admissible to prove the contents of a document are enumeratedin section 63 of the Evidence Ordinance, and the enumeration does notinclude translations. That. section 63 is intended to be exhaustiveis clear from the language of the section, and in India the section has beenso construed. (Ram Prasad v. Raghunadan Prasad!) ”.
It has also been held in India that a translation is not secondaryevidence of the contents of the original, vide Jaganatha Naidu v.Secretary of State for India". In this case what was sought to be put inwas a translation contained in a judgment in a suit not between the sameparties or their representatives in interest^ Ip this case however mention„is made of two other Indian cases not obtainable here in which it washeld that a translation is not secondary evidence.
I am in agreement with these findings and hold that an Englishtranslation cannot under section 63 be regarded as secondary evidenceof an original document in some other language. Accordingly P 1cannot be admitted in evidence. In addition to the fact that strictinterpretation must be given to section 63 it does not appear to methat any probative value is to be found in the translation PI. We donot know who made the translation, and there is no certificate that it is a.correct translation from the Dutch.
Counsel for the respondents further argued that there was proof ofother secondary evidence of the existence and the contents of the oldDutch will of 1793..
1 14 N. L. R. 279.2 I. IA R. 7 All. 739, at 743.
* A. I. R. Madras 11922) p. 334.
KEUNEMAN J.—cle Livera v. Abeysinghe.
525
The first line of proof offered is the evidence>of Nicholas Dias Mudaliyarin D. C. Galle, 23,376 (P 1). The evidence of this witness who was fifthdefendant in that case and gave evidence in 1865 was produced. Witnesshimself was the .son of Abraham Dias and grandson of the original owner.He stated, “The land was the property of my grandfather. He left anold Dutch deed of 1793 which I produce It is sought to bring thisevidence under section 63 (5) of the Evidence Ordinance, viz., " Oralaccounts of the contents of a document, given by some person who hasseen it ”.
The difficulty in the respondent’s case is that, while this evidencedoes tend to prove the existence of the will of 1793, it is silent as to thecontents of the will.
A similar difficulty applies to the recorded evidence of Fred Diasin D. C. Galle, 38,454 (P 5). Here also the existence of the will is spokento, but not the contents of the will.
Reference has also been made to P 10, the last will of Abraham Dias,made on December 13, 1830. Here there is undoubtedly a referenceto the terms of the old Dutch will of 1793 as far as it relates to theproperty in question. The anthenticity of this document however hasnot been established. The notary’s attestation is to the effect thatP 10 is a correct translation from the Dutch of a paper writing purportingto be the last will of Abraham Dias, but produced by Nicholas Diason December 30, 1830. There is no production of the original Dutchwill of Abraham Dias. But apart from this infirmity, it is not possibleto regard this as an “ oral account ” of the contents of the old willof 1793, and it cannot be regarded as a copy made admissible undersection 63.,
Further, it has been contended that the contents of the old Dutch willof 1793 have been admitted by the appellants. The present case is -anaction under the Partition Ordinance, and I do not think that admissionsof this nature can be regarded as establishing the high degree of proofwhich is required in such cases.
Counsel for the respondent relied in this connection on an affidavitmarked P 6 sworn by the 140th defendant and filed in the land acquisitioncase D. C. Galle, 3,170. Here the appellant stated that the landoriginally belonged to Nicholas Dias Abeysinghe “who by his will datedMay 21, 1793, created a fidei commissum in favour of his heirs and. diedleaving three children who became entitled to the same”. In a laterparagraph he added that “ so far as myself and my brothers and sistersare concerned the said restriction is at an end ”. I do' not think thatwe can find here an admission that a fidei commissum was created whichhad the effect of binding the 139th and 140th defendants, or'in factany admission that there was a fidei commissum binding on four genera-tions. Further, the admission if any related to the land Poloyamodera-watta and not to the land ait present in question.
Counsel for respondent also relied on a petition filed by the 139i;hdefendant 'in the same case D. C. Galle, 3,170, also marked P 6, butI am not able to find any admission of the contents of the old Dutch willin this document.
626
KEUNEMAN J.—de Livera v. Abeysinghe.
Counsel for the respondents also argued that the production by theappellants of the document 139 D 1 must be construed as an admissionof the contents of the old Dutch will of 1793. This document again is anEnglish translation—the first page is missing. Apparently this transla-tion was produced by the 140th defendant in the land acquisition case-D. C, Galle, 3,170, either with or without a Dutch copy of the original,and was subsequently withdrawn from the case by th 140th defendant.Now it appears clear that this document was not produced to prove thecontents of the will, and that there was no consent by the appellantsthat it should be treated as proving the contents of the will. Theapparent reason for producing it was to show what document hadactually been filed in D. C. Galle, 3,170 by the 140th defendant andremoved by him. The same objection applies to 139 D 1 under theEvidence Ordinance which applies to P 1. Under these circumstancesthe language of Reilly J. in Marri Narasayya v. Peruri Krishnamurthi1becomes relevant. “ Even if a document is admitted to the record byconsent, that alone .will not enable either party to prove by that documentanything which under the Evidence Ordinance cannot be proved. Butif the parties consent that for the purposes of the case it shall be treatedas showing the contents .of some other document, then although thecontents of that other document could not be proved under the actby the document proved, ,that is of no consequence”. With respect,I think this is a salutary rule and I do not think there is any admissionin this case of the contents ef the original Dutch will, even supposingthat in an action under the Partition Ordinance such admission can haveany defect.
A further point raised by Counsel for the respondents is that the 139thand 140th defendants are barred from denying the existence and contentsof the old will of 1793 in consequence of the decree in .D. C. Galle, 33,087,which it is claimed is res judicata on this point. The question of res-judicata was not one of the points originally reserved for preliminarydetermination, but the learned District Judge was of opinion that resjudicata was established, and I think, it is possible to decide this matterin appeal. It is clear that all the parties to the present action includingthe plaintiffs and the 139th and 140th defendants were parties to D. C.Galle, 33,087, and that in the District Court the identical questionsarising in this case were in question in respect of the land Poloyamodera-watta, and the same or similar documents were produced and similarevidence was givep. In that case the document P 1 was admitted inevidence in proof of the contents of the will of 1793, and the learnedDistrict Judge held that the existence and contents of the will wereproved, and that the terms of the will were as contained in the transla-tion P 1, and created a fidei commissum binding on the heirs of the originalowner, and three generations next succeeding them. Had the matterstood there, a strong case might perhaps have been made out in favour ofres judicata. Thereafter the 139th and 140th defendants appealedagainst the judgment; In appeal the Supreme Court gave no decisionon the merits of the appeal, but dismissed the appeal on the groundthat the appellants had transferred all their interests in the land inquestion and accordingly had no interest in the decree.
> A. I. R. (1928) Madras 1255.
KEUNEMAN J.—de Livera v. Abeysinghe.
527
It has been held in the Privy Council in Annamalay Chetty v. Thronhill1that no decree from which an appeal lies and has in fact been taken isfinal between the parties so as to be res judicata. This effect arises fromsection 207 of the Civil Procedure Code. In India it has been held that
where the decision of a lower Court is appealed to a superior tribunalwhich for any reason does not think fit to decide the matter, the questionis left open and is not res judicata.” See Caspersz on Modem Estoppeland res judicata, vol. Ill, p. 156. So where a lower Court had decidedissues as to title and possession, but on special appeal the question ofpossession alone was adjudicated upon, it was held that the question oftitle was still open to the parties {Gungabishen Bhugust v. RaghoonathOftha2). In a later case Nilvaru v. Nilvaru3 the reason for the rule waslaid down as follows: “ When the judgment of a Court of first instanceupon a particular issue is appealed against, the judgment ceases to beres judicata and becomes res sub-judice, and if the appellate Courts,declines to decide that issue and disposes of the case on other grounds,the judgment of the first Court upon that issue is no more a bar to afuture suit than if that judgment had been reversed by the Court ofappeal.” This rule was based upon the interpretation of section 13of the Civil Procedure Code of 1877 which said that no Court shall tryany suit or issue in which the matter directly and substantially in issuehas been heard and finally decided by a Court of competent jurisdictionin a former suit.
The section in our Civil Procedure Code is section 207 which rims asfollows:—“All decrees passed by the Court shall, subject to appeal,when an appeal is allowed, be final between the parties, and no plaintiffshall be non-suited.” I. think the word ‘ allowed ’ in this section mustmean * permitted In the case of Annamalay Chetty v. Thornhill {supra),their Lordships of the Privy Council said, “.where an appeal lies, thefinality of the decree, on such appeal being taken, is qualified by theappeal, and the decree is not final in the sense that it will, form resadjudicate as between the parties.” I think the words “ subject to appeal ”contained in section 207 brings into force a similar rule to that explainedin Nilvaru v. Nilvaru (supra), and that on appeal the matter once morebecomes sub-judice. Since the Appeal Court declined to decide theissues raised in D. C. Galle, 33,087, and disposed of the case on othergrounds, the decree in that case is not res judicata.
I accordingly hold that the judgment and decree in D. C. Galle,33,087, is not res judicata of the issues raised in the present action.
In view of these findings the further questions of law specially reservedfor consideration as preliminary issues do not arise.
It is with considerable reluctance that I have arrived at these con-clusions, As the existei contents and the effect of the old Dutch willof 1793 have been consiv sred and established in several previous cases,the oldest judgment available in respect of this matter is in the year 1869,and is reported in van der Straaten at page 32. This is a judgment of this
» 33 N. L. R. 41.. * I. L. R. 7 Calc. 381.
I. L. R. 6 Bom. 110.
528
KEUNEMAN J.—de Livera v. Abeysinghe.
Court and there have been other judgments of this Court. I do not,however, think that X can escape from the conclusions at which I havearrived.
The pedigree in this case has been proved and I can see no validobjection to the plaintiff bringing the present action. .
The matter was set down for further hearing as to what order shouldbe made in this appeal. -I agree with my brother Maartensz that weshould not exercise our powers under section 760 of the Civil ProcedureCode in this case. I also agree to the order my brother has made in thisappeal.
Judgment varied.