009-NLR-NLR-V-20-FERNANDO-v.-SHEWAKRAM.pdf
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Present : Ennis J. and De Sampayo J.
FERNANDO v. SHEWAKRAM.84—D. C. Colombo, 46,719.
Fidei commissum—How for affected by partition decree—Effect of partitiondecree entered up without proper investigation—Discovery of freshevidence—New trial.
Afidei commissumisnotextinguished. by apartition nnder
OrdinanceNo. 10 of1868;it remainsattached totheproperty
allotted in severalty to the fiduciary.
Adecree in apartitionactionentered without investigation into
title,as requiredby the PartitionOrdinance, but upon mere consent
of parties, does not have a conclusive effect as a decree under theOrdinance.
Section40 of theCourtsOrdinance,which givestheSupreme
Court large powers to order a new trial or further proceedings,contemplates only cases in which the fresh evidence, discovered sincethejudgment, relatestothematters already indispute between
theparties andsufficientlyraisedin the pleadings, and does not
applyto cases inwhich adefendant wishes to withdraw his defence .
and start an entirely different defence.
facts are set out in the judgment.
A. St. V. Jayewardene (with him Bawa and Talaivasingkam), fordefendant, appellant.
Samarawicfcreme, for plaintiff, respondent.
Cur. adv. vult.
September 21, 1917, De Sampayo J.—
This is a contest for title to house No. 56, Chekku street. Theplaintiffs, who are the children of one Anthony Migel Fernando,deceased, claim the property under the joint last will of their grand-parents) Pasqual Fernando Anthony Pulle and Ana Selembram,
1917.
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1917on the footing that the 6&id property was devised to Anthony Migel
De 8Amivo J. Fernando subject to a fidei commissum in favour of his issue.- The
defendant not only admitted, but stated affirmatively in his answer,
that the property belonged to the joint estate of Pasqual FernandoAnthony Pulle and his wife Ana Selembram, and that under the provi-sions of their joint last will it devolved on Anthony Migel Fernando,but he disputed the existence of any fidei commissum under that1 will, and proceeded to state that in the partition action, No. 97,278D. C. Colombo, between Anthony Migel Fernando and one LaityBamanafchan, for the partition of certain lands under the previsionsof the Ordinance No. 10 of 1863, the said property was decreed toAnthony Migel Fernando, and a certificate of title was issued to him.He further pleaded a transfer of 1905 by Anthony Migel Fernandoto Pahloomal Shewakram, under whom he claims. Thus, as theDistrict Judge put it in his judgment, it was common ground betweenthe parties that the entire land belonged to Pasqual FernandoAnthony Pulle and his wife Ana Selembram in community ofproperty, and was devised by their joint will to Anthony MigelFernando, and the issues tried were (1) whether the will created avalid, fidei commissum; and (2) if so, whether the fidei commissumwas wiped out by the decree in the action No. 07,278.
The District Judge has held, and there is no doubt whatever,that the will, created a valid fidei commissum in favour of AnthonyMigel Fernando's lawful issue. There is also good authority for theproposition that a fidei commissum is not extinguished by a partition,but that it remains attached to the property allotted in severaltyto the fiduciary. See the judgment of the Privy Council in Tileke-ratne. v. Abcyesekera,1 Baby Nona v. Silva,2 Abeycsundera v. Abeye-sundera.3 I may add in this connection that the decree in actionNo. 4:7,278 was not entered after investigation into title as requiredby the Partition Ordinance, but upon mere consent of parties,and, in my opinion, such a decree. cannot have a conclusne effectas a decree under the Ordinance. The defence, therefore, failed onthe only questions raised as to title, and the District Judge byagreement of parties adjourned to a further date the considerationof a claim for compensation for improvements, which the defendanthad set up in the alternative.- This appeal was then filed, thepetition of appeal only questioning the soundness of the DistrictJudge's decision on the issue above mentioned. The same pointswere argued before us, but for the reasons above indicated the appealas taken cannot succeed. Counsel for the defendant has, however,submitted an affidavit, and asked us to send the case back for a newtrial. The affidavit is to the effect that the defendant Las, sincethe trial and the appeal, discovered facts showing that the testators,Pasqual Fernando and Ana Selembram, were entitled only to a share
1 {1906) 9 N. L. JR. 261„
* (1909) 12 N. L. R. 373.
1 (1897) 3 N. L. R. 313.
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of the property, and that Ana Selembram had repudiated her partof the joint will. The circumstances of this alleged discovery arenot stated, and, even if the application for a new trial were otherwisein order, the affidavit must be considered to be insufficient for thepurpose. The facts are stated to have been found on reference to thetestamentary case in which the will was proved. The will itselfand the testamentaiy case were fully pleaded in the platut. Thepartition action which the defendant himself pleaded would have'lisclosed the same facts. The defendant, therefore, had at thevery commencement all the means of information which he couldreasonably desire. The circumstances, I think/ would not justifyany order for further proceedings on the ground of discovery offresh evidence not available at the trial. But the application is inreality not made for such a purpose, but for the purpose of abandon-ing the only defence put forward in the answer and at the trial andof setting up an entirely new defence. 1 do not think that thedefendant: is entitled to make an application for such a purpose.Section 40 of the Courts Ordinance undoubtedly gives this Courtlarge powers to order a new trial or further proceedings, but it isclear to my mind that that section contemplates only oases in whichfresh evidence, discovered since the judgment, relates to the mattersalready in dispute between the parties and specifically raised in .thepleadings, and does not apply to cases in which a defendant wishesto withdraw his defence and start an entirely different defence. Noprecise authority to the contrary has been cited to us, and it seemsto me that any such practice as that contended for would be notonly opposed to principle, but highly inconvenient and prejudicialto the administration of justice. In my opinion the defendant'sapplication ought not to be allowed.
I would dismiss the appeal, with costs.
Ennis J.—I agree.
1917.
Da Samfato J.
Fernando v.Sheioakram
Appeal dismissed.