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Present : Mr. Justice Wendt and Mr.. Justice Wood Benton-GEDDES v. VAIBAVY et al.
D. C., Jaffna, 4,078.
No. 22 o/ 1871.
Where a property is burdened with a fidei' commission, a third,party cannot acquire title by prescription to such property againstthe fidei commissarii during the lifetime of the fiduciarius, inasmuchas prescription does not begin to run against the fidei commissariiuntil after the death of the fiduciarius.
The principle that prescription when it once begins to run is notinterrupted by the death of the owner does not apply in such a case,
rpHE facts sufficiently appear in the judgment of Wendt J.
The Hon. Mr. Kanagasabai (Balasingham with him), for thedefendants, appellants. •♦
Walter Pereira, K. G. (Wadsworth with him), for plaintiff,respondent.
Cur. adv. vult.
28th May, 1906. Wendt J.— .
The plaintiff has shown a complete paper title derived fromBamalingam, the admitted original owner of the land in question.The executors of plaintiff's father, the mortgagee from Bamalingam,
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purchased the land in execution of the decree .obtained by them onthe mortgage, being allowed credit for the whole of the price, andthe Fiscal duly conveyed it to them, and they subsequently conveyed-it to plaintiff and his co-heirs, as directed by the joint last will ofMr. Geddes, senior, and his wife.
Plaintiff’s title being established, the burden lay on defendant toprove his claim by prescriptive possession, and that was the maindefence to the action. Bamalingam was the admitted owner at thedate of the mortgage in 1875, and within nine years of that date,viz., in October, 1884, came executor’s purchase. That purchasehad the effect of substituting the dominium in the land for thehypothec held by the testator- and of bringing land within thegeneral devise contained in the will of all the testator's and testatrix’sestate in favour of the survivor. In the event (which happened) ofthe testatrix being the survivor the devise was subject to the provisionthat she was to keep the whole joint estate under her sole and entirediscretion, and remain in the' full and undisturbed possession thereof,and in the enjoyment of the rents and profits thereof for life, provid-ed she remained unmarried, but without the right to sell or encumberany part thereof. On her death the estate was to be divided equallyamong the children (the plaintiff and the first, second, third, fifth,and seventh defendants) with representation. The testatrixaccordingly continued in possession of the whole estate until herdeath in December, 1901. The effect of the will was to create afidei commissum, or at all events to give the widow the usufruct ofthe whole estate. In either case it precluded the children frominterfering with the possession until after their mother’s death.It follows from this that possession by any third party during thewidow’s life might be adverse to her, but could not be adverse toher children so as to give that party any right of prescription asagainst them, whose right to possession only accrued within fouryears of the institution of this action. Assuming, therefore (whatthe District Judge does not find), that, the appellants and theirpredecessors in title had possession ut dornini from 1875 to the presenttime, that possession avails nothing as against • the plaintiff andhis co-heirs.
The learned counsel for the appellants sought to apply to this casethe well-known principle that once prescription has commenced torun against an owner it will continue after his death to run againsthis heir, notwithstanding the latter’s minority, but, as we pointedout, there is a fundamental distinction between the two cases. Inthe case of the minor he is entitled to possession, and by a guardianor next friend could vindicate the property from the wrongful holder,
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whereas a fidei commissary, although of full age, could not objectto an outsider’s possession, because the right to object belongs to thefiduciary. Of course the fiduciary or usufructuary will himselflose the right to possession when that outsider has completed tenyears’ adverse enjoyment as against him, but the moment thefidei commissary’8 right to possession accrues the term'of prescriptive-possession must begin over again.
Appellants questioned the right of an owner, against whom aperson has held adversely for. (say) nine years, to render that adversepossession nugatory by creating fidei commissum, but we fail to seeany injustice in upholding that right. Etc hy-pothesi, the owner is<full dominus until the completion of the ten years. He may at once-himself vindicate the land, or sell it outright and enable the purchaserto do so. Why then may he not alienate it by way of fidei com-missum'i And on what ground can the wrongful possessor complainthat his attempt to steal the land has been frustrated?
In the view we have taken it is unnecessary to consider whetherappellants have in fact shown ten years’ possession of the characterrequired by the Ordinance.
The decree appealed from comprises an order for the ejectmentof the defendants, who have a claim for compensation for improve-ments to the land. This claim the District Judge has reserved to bedealt with in a separate suit. Respondent's counsel very properlyconceded that the decree for possession could not be sustained, andit will therefore be struck out.
:The appeal costs should, I think, be divided.
Wood Benton J.—I agree.
GEDDES v . VAIRAVY et al