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1822. |jy fjjg Privy Council in the case of Samaradiwakara et al. v. DeScbhsxder Saram et al. as reported in 14 N. L. R. 321. This argument is based** upon a misconception of facts. The provisions of that will areGunatoardene to be found more fully, as that case is reported in 13 N. L. R. 333Viaoanaihan an^ *n ^ C'104 ‘ There is qo similarity in the two documents.
Here we have a direct devise to the widow. In that there was nosuch devise. There, under the head of “ Provisions for the widow,”it was said she was to stand ” vested ” with certain property untila distribution as provided in the will took place upon her death.Jn the same clause she declared that she would have a “ life interest ”in those properties. The whole of the argument that the widowin that case acquired title to the properties subject to a fidei com-missum was based upon the use of the word ” vested.” The PrivyCouncil in its judgment concedes that there would be much forcein this argument if the word had been used in its strictly technicalsense, but that in their opinion the word had been employed in aloose sense as indicating the time when the enjoyment of the pro-perty was to commence (dies venit). I am therefore of opinonthat there is nothing common in the language of two wills.
In support of the same contention Mr. Jayawardene cited thefollowing cases:—Mendis v. Fernando (supra), Fonseka v. Babu Nona,1and Weerasinghe v. Qunatilake (supra). None of these cases help him.Their language is widely different to the language employed in thewill under consideration. The word ” possess ” was employed in allthese cases to indicate the interest conveyed. Fonseka v. BabuNona (supra) was decided by Wendt J. He gives as his reason forholding that only a usufruct passed the fact that there are no wordsof the devise of the dominium, but only words expressly limitingthe interest to a bare right of possession.
Mr. .Jayawardene raised the contention that assuming the interestof Paulus Hector to be that of a fidei commissarius, it was an interestwhich may even at this date be seised and sold. He argued thatit was a ” spes ” and could be the subject-matter of a sale. Thisargument is not sound. It is the provisions of section 218 of theCivil Procedure C.'ode which must be considered. Under '"thoseprovisions ” a merely contingent interest ” is not liable to seizureand sale. That the interest is a merely contingent one is apparentfrom the reasons to be found in Mohammed Bhey v. Lebbe Maricar.2
I agree with the order directed by my brother.
Set aside.
1 (1908) 2 S. C. D. 27.
* (1912) IS N. L. R. 466.