036-NLR-NLR-V-53-HEWAVITHARANA-Appellant-and-CHANDRAWATHIE-et-al.-Respondents.pdf
Hewavithama v. Chandrowathie
ISO
rl9fllPresent : Giatiaen J. and Gonasekaia J.
HE WAVTTHARN A, Appellant, and CHANDKAWATHIE et al.,
Respondents
8. 0. 575—D. C. GaUe, 3,738
Quia timet action—Nature and scope of relief—Ingredients necessary—Requirementof proof of actual damage or substantial imminent danger—Infringement ofvested or contingent rights—Fideicommissary interests—Risk of extinctionunder partition decree—Partition Act, No. 16 of 1951, 88. 6, 48, 79.
A quia timet action Bhonld not be entertained merely because the rights of the-plaintiff have been disputed by the defendant. To succeed in such action the-plaintiff must establish acts or conduct committed or threatened on the part ofthe defendant which can be construed as an effective infringement of the allegedinterests pi the plaintiff. The interest threatened need not be a presentvested interest in immovable property, but a contingent interest which may'eventually enlarge into a vested right is sufficient. A fideicommissary, therefore,may in certain circumstances legitimately claim a judicial declaration for the^protection of his rights, even though such rights can be classified only as futureof contingent, provided that he can prove that there is a present risk of theirinfringement to his ultimate prejudice.
A declaratory decree granted in quia timet proceedings is not available toa party as of right, and a Court should not exercise its discretion in favour ofa plaintiff unless the immediate advantages accruing therefrom would substan-■tially outweigh the unsatisfactory features attendant on premature pronounce-ments as to the future contingent rights of claimants—more so, of persons whoare not parties to the proceedings.
The provisions of the Partition Act, No. 16 of 1961, have reduced the possibi-lity of a decree being entered in a partition action without due consideration ofthe rights of persons who have fideicommissary interests in the corpus,
^/^.PPEAIj from a judgment of the District Court, Gralle.
Plaintiffs alleged that they were fideicommissaries under a gift and thatthe defendant, who was the transferee of the interests of the fiduciaryin the property gifted held the property subject to their interests asfideicommissaries. The defendant claimed to be the absolute owner ofthe property unfettered by any fideicommissum. The alleged cause of.action against the defendant was specified in the plaint as follows: —
“ The plaintiffs fear that the defendant may deal with the propertyto the prejudice of the plaintiffs by the sale of a portion of it and the"institution of a partition action without notice to the plaintiffs.
A cause of action has arisen to the plaintiffs to sue the defendantquia timet to have themselves declared entitled to the premises describedin the schedule hereto subject to a life interest in favour of the defendantnbovenamed ”.
The plaintiffs accordingly asked for a decree- declaring them entitled.to the premises subject to an interest in favour of the defendant which’would terminate on the death of the alleged fiduciary.
8—LOT
170GBATTAEN J.—Hewazithama v. Chandrawathie
The learned trial Judge entered judgment declaring that “ the plaintiffs-be entitled to the premises on the death of their mother (the fiduciary)
H. V. Perera, K.C., with M. H. A. Aziz, for the defendant appellant.
B. Wikramanayake, K.C., with Litcian de Alwis, for the plaintiffsrespondents.
V
Cur. adv. vult.
August 29, 1951. G-ratiabn J.—
Deonis Appuhamy, the maternal uncle of a woman named Jane Nonarhad admittedly owned the property which is described in the scheduleto the plaint. A marriage between Jane Nona and Hendrick Appuhamywas arranged to take place on June 7, 1926. In anticipation of thisevent Deonis, by a notarial conveyance, P4 dated June 2, 1926, giftedthe property to her subject to the following conditions: —
The said Ekanayaka Jane Nona, the donee herein, shall enjoy andpossess- the said premises hereby gifted and everything appertainingthereto from the date hereof but cannot sell mortgage or alienate samein any way but she is at liberty to lease the said premises for a termof below two years at a time.
And I appoint the lawful children of Ekanayakage Jane Nonato be the owners, and they shall not sell mortgage or alienate samein any way but shall reserve same to the children and grandchildren.And I declare that the said premises hereby granted by me are subjectto mortgage bond No. 30,262 dated 26th February, 1925, attested by
J.P. Weerasinghe for Rs. 500 payable with interest thereon at 12per cent, per annum and the donee shall pay and settle the same. ”
This gift was accepted by Jane Nona on the face of the deed P4.
The celebration of the marriage between Jane Nona and HendrickAppuhamy was postponed, for some reason which has not been disclosed,but it eventually took place on August 13, 1926. In the meantimeshe and her uncle Deonis purported to take certain steps to have the deedof donation P4 hedged in, as it was, by the conditions and restrictionsrecited above, revoked. For this purpose a notarially attested documentP5 was executed on July 27, 1926, whereby Deonis revoked, with Jane’sconsent, the earlier gift. Her previous acceptance of the gift was thusrescinded by implication. On the same day, by a fresh deed of donationP6, he donated the property to her absolutely to take effect from thedate of her marriage with Hendrick and subject only t'o a life interestin himself. The mortgage bond No. 30,262 referred to in P4 continuedto encumber the property.
About 18 months after Jane Nona and Hendrick’s marriage had takenplace she, with the concurrence of her husband who joined in the deed,sold the property to the defendant in this action, by P7 of April 10,1928. Part of the consideration was applied in discharge of the mortgagebond No. 30,262. P7 recites Jane Nona’s title as having been derived
GRATIAEN J.—Hewavitharna v. Chandratoathie
171
.not from P4 but from the later deed of donation P6, and it purportedto vest in the defendant full dominium free frond any encumbrances.The defendant has since then been in possession of the property claiming.to be its absolute owner unfettered by any fideicommissum.
Jane Nona and Hendrick are still alive. At the time when this action-commenced on September 23, 1948, seven children had been bom to.the marriage. Of these, the lBt plaintiff is a major and the 2nd to the7th plaintiffs were still minors.
The plaintiffs have adopted in these proceedings a form of action which,though well recognised in law, is not frequently resorted to in our Courts.Their complaint against the defendant is that he claims . the property.absolutely whereas in fact he enjoys only the limited interest which hadoriginally passed to their mother Jane Nona under the earlier deed of-donation P4. His title, they contend, is subject to their interests asfideicommissaries in terms of P4 which, by reason of Jane Nona’s earlieracceptance of the gift, could not validly be revoked to their prejudicewithout their consent. The alleged cause of action against the defendant.is specified in paragraphs 9 and 11 of the plaint as follows; —
“ 9. The plaintiffs fear that the defendant may deal with theproperty to the prejudice of the plaintiffs by the sale of a portion ofit and the institution of a partition aotion without notice to theplaintiffs.
11. A cause of action has arisen to the plaintiffs to sue the defen-dant quia timet to have themselves declared entitled to the premisesdescribed in the schedule hereto subject to a life interest in favourof the defendant abovenamed ”.
'They accordingly asked for a decree “ declaring them entitled to thepremises …. subject to a life interest in favour of the defendant ”—presumably meaning thereby an interest which would terminate on JaneNona’s death.
This case would have presented fewer difficulties if, as the plaint-suggests, P4 can legitimately be construed as having passed only an usu-fructuary life interest to Jane Nona and, subject to that life interest,vested the property in the children who would be bom to her marriagewith Hendrick. In that event the plaintiffs might well have been entitledto relief in a quia timet action on the basis that they already enjoy vestedinterests in the property—vide Atchi Kannu v. Nagumma, 9 N. L. R.282—subject of course to our decision as to whether the gift had sub-sequently been validly revoked, as against the plaintiffs, by the execution-of P5. Mr. Wiekremanayake concedes, however, and the learned DistrictJudge has held, that the particular interpretation given to the deed of■donation P4 in the plaint cannot be supported. His argument on behalf-of the plaintiffs may be summarized ag follows with reference to thispart of the case under appeal: — 1
(1)that P4 created a valid fideicommissum in favour of the lawfulchildren of Jane Nona’s marriage with Hendrick;
172
GXRATIAEN J.—Hetoavithama v. Chandrawathic
that the acceptance of. the gift P4 by Jane Nona on her ow»behalf operated as an irrevocable acceptance on behalf of her unborn-children (i.e., the fideicommissari.es) aa well; and that her purportedsubsequent revocation of the gift without their consent was of no-avail against them. John Perera v. Lebbe Marikar, 6 8. C. C. 138;Soysa v. Mohideen l; Abeysinghe v. Perera 2 and Wijetunga v. Duwalage-Ro8sie 3 (where Wijeyewardene J. followed the earlier authorities which.
I have cited, and dissociated himself from the doubts as to theircorrectness expressed by Soertsz J. in Carolis v. Alwis 4) and, finally rVullipuram v. Oasperson 5;
that although P4 does not specify in explicit terms the timewhen the property was to vest in the fideicommissaries, there is asufficiently clear indication that the donor had intended the time ■ of-vesting to be the date of Jane Nona’s death; and that the fideieom-missum created by P4 was therefore not bad for uncertainty. Mr.Wickramanayake points out that the absence of an express indication-,as to the time of vesting has not deterred this Court in the past fromadopting the interpretation for which he now contends. Vide, forinstance, the decisions referred to in Mr. Nadarajah’s Treatise, page–258. and the dissenting judgments of Keuneman J. and Wijeyewardene-
J.in Sitti Kadija’s case * which were approved on appeal by the Privy-Council in 47 N. L. R. 171. In view of these authorities, Mr. Wick-ramanayake has invited us to depart from, if we cannot distinguish,th3 later rulings of the learned Judges in Pabilina v. Karunaratne 7'and Lewis Appu v. Perera 8 on this point.
This summary represents the substance of the conclusions arrived at-by the learned District Judge in the Court below, and he entered judgment,declaring that “ the plaintiffs be entitled to the premises on the death ofthdir mother Jane Nona ”. It should be noted in this connection thatthere is no suggestion that a breach by Jane Nona of the prohibitionagainst alienation contained in P4 operated to vest the propertyimmediately in her lawful children.
Mr. E. V. Perera, who appeared before us for the defendant, has in the-first instance joined issue with Mr. Wickremanayake on each of the pointswhich I have enumerated above. He contends, fo’r instance, that thedeed of donation P4, in so far as it purports to create a fideicommissumin favour of Jane Nona’s children, is void for uncertainty as to the dateof vesting; "that in any event the acceptance of the gift P4 by JaneNona on her own behalf could not be construed as an acceptance on behalfof the unborn fideicommissaries designated by the instrument, and thatthis court should, on reconsideration, considerably modify the earlier.doctrine whereby an acceptance of a gift by a fiduciary has been regardedas a .sufficient acceptance on behalf of the fideicommissaries in cases“ where the donation involves a benefit to the family ”; and that' P5being a 'valid revocation of the earlier gift, the subsequent deed P 6 passed*to Jane Nona not merely a fiduciary interest but absolute domini-um, imthe property’ which she has since conveyed to the defendant.
(1914) 17 N. L. R. 279.* (1950) 62 N. L. R. 169.
(1915) 18 N. L. R. 222.• (1944) 46 N. L. R. 265.
(1946) 47 N. L. R. 361.2 (1948) 50 NSL. R. 169 at 171.
. * (1944) 45 N. L. R. 156.• (1949) 61 N. L. R. 81.
GEATXAEN J.—Bewavithama c. Chandra wathie1-7^1
I have sufficiently indicated, I think, the extent of the controversyupon which we have atthis stage beeninvitedtoadjudicate. Some
of these questions are complicated by aconflictofjudicial authority,
other by dicta which cannot, to say the least, be easily reconciled. Iwould refer, by way of illustrationj to the contrary views expressed bySoertsz J. and Wijeyswardene J., both of whom were Judges withconsiderable experience inthis branch of the law,asto the doctrine of
acceptance in relation tofideicommissarygifts “forthe benefit of a
family.”
Is it really necessary or desirable for the Court now to pronounce adecision, affecting perhaps the interests of persons who cannot yet beascertained with certainty, as to the proper construction of thedeed P4 and as to the validity or otherwise of the purported deed ofrevocation P5? This question seems to me to go to the root of actionssuch as proceedings for quia timet relief, and I proceed therefore to examinethe defendants fundamental ground of objection to the judgment appealedfrom in the present case.
Mr. Perera has strongly urged that the plaintiff’s cause of action ispremature. He argues that none of the facts pleaded in the plaint orproved at the trial in the Court below entitle the plaintiffs at this stageto a declaratory decree in their favour. He has invited us to go to theextent of assuming that the interpretation of the deed P4 for whichMr. Wickremanayake contends is correct according to our present under-standing. of the law. Even upon such a hypothesis, says Mr. Perera,we should bear in mind that the fiduciary Jane Nona is still alive, and thatadmittedly the condition has yet to be fulfilled upon which the presentcontingent interests in the property claimed by the plaintiffs can becomeenla-gfcd into vested rights. Whether, as Mr. Wickremanayake contends,each plaintiff already enjoys a apes or expectation which would be trans-mitted to his heirs in the event of his pre-deceasing Jane Nona", or whetherthe true intention of the donor, was to benefit only those children whowould still be alive at the date of vesting, it is impossible to take the viewthat all the persons who may eventually succeed to the property are nowbefore thp Court. In the result, can one exclude the possibility thatdisputes may on Jane Nona’s death arise between some of the plaintiffsthemselves (or their lawful heirs) as to who should eventually benefitunder the deed P4?
At this point of time the spes fideicommisai of each of the plaintiffs,even if transmissible, is in a sense only a ** fleeting and uncertain hopeof acquiring in his own right a vested interest in the property. Voet2-15-8. The ultimate beneficiaries under P4 cannot at present beascertained with certainty; indeed, we do not know that the class hasyet been closed. In the face of .these unpredictable contingencies, itis apparent that, even if a cause of aotion has accrued to the presentplaintiffs , to claim some declaration in general terms that the conveyanceby Jane Nona to the defendant under P7 transmitted to him only herfiduciary interest which is subject to the fideicommissum created by P4,a premature interpretation of P4 in respect of all its implications seems to
174
GRATIAEN J.—Hcwavitharna v. Chandrawathie
be extremely undesirable. In re Grobler l. The same point of view hasbeen emphasised in the English Courts with regard to the proper scope ofdeclaratory action. In re Staples 3.
' The question arises whether any events have yet occurred giving riseto a cause of action entitling the plaintiffs to relief in quia timet proceedings;and, as a corollary, whether in that event the circumstances of the presentcase would justify the exercise of our discretion to grant a declaratorydecree. That such relief is not available to a party aa of right is recog-nized even in South Africa although special legislation was introducedin 1935 to remove some of the limitations inherent in the common lawjurisdiction to enter declaratory decrees., Durban City Council v. Asso-ciation of Building Societies 3. It is implicit in this principle that aCourt of law should not exercise its discretion in favour of a plaintiff unlessthe immediate advantages accruing therefrom would substantiallyoutweigh the unsatisfactory features attendant on premature pronounce- •ments as to the future contingent rights of litigants—more so, of personswho are not parties to the proceedings.'
The ingredients of a cause of action in quia timet proceedings in thiscountry have invariably been examined by reference to the principlesof the English Law. Fernando v. Silva *, Atchi Kannu v. Naguma(supra); Haramanis v. Haramanis *, Ceylon Land and Produce Co. v.Malcolmson *, Raki v. Cassi Lebbe 7, De Silva v. Dheerananda Thero *,and Gunasekara v. Kannangara *. It is not desirable, as Wood Renton J.points out in Raki v. Cassi Lebbe, to attempt to lay down any generalrules as to -the classes of cases in which such actions are maintainable,but they are admittedly designed “ to accomplish the ends of precau-tionary justice ” by preventing wrongs or anticipated mischiefs insteadof merely redressing them after they have been committed. Story onEquity, pages 349 to 350.“ There must, if no actual damage is done,
be proof of imminent danger, and there must also be proof that the appre-hended danger will, if it comes, be very substantial …. It mustbe shown that if the damage does occur at any time, it will come in sucha way and under such circumstances that it will be impossible for theplaintiff to protect himself against it if relief is denied to him in a quia timetaction ”. Fletcher v. Bailey 10. I have not discovered any local pre-cedents for the granting of relief to protect purely contingent interests inimmovable property, and the ratio decidendi of some of the authoritiespreviously cited by me certainly suggests that a threat to a presentvested interest in land is a sine qua non to a quia timet action. On theother hand, Story points out in paragraph 827 at page 350 that " thejurisdiction is equally applicable to cases where the right of enjoyment isfuture or contingent ”. As at present advised, I see no reason why reliefin a quia timet action should necessarily be denied to a person who, thoughpossessing only a contingent interest in land, is placed by the conduct ofsome third party in such a situation that there exists at present a substan-tial and imminent risk of the loss or impairment of his interests when the
1 (1916) T. P. D. 205.
•(1916) 1 Ch. 322.*(1942) A. D. 27.-
*( 1878) 1 S. C. G. 27.
(1907) 10 N. L. R. 335.
• (1942) 43 R. 174.
10 (1885) 28 Ch. D. 688.
(1908) 12 N. L. R. 16.
7 (1911) 14 N. L. R. 441.
(1926) 28 N. L. R. 257.
GBATIAEN J.—Hewavitharna v. Chandrawathie
175
time eventually arrives for its enlargement into a vested right. The prin-ciple? applicable under our common law are in conformity with this view.Bo long as proof is forthcoming of some threatened " concrete invasionof a party’s rights ”, he can claim the protection of a declaratory decreein his favour. Norris v. Mentz l. In the words* of de Villiers C.j.in Oeldenhuys v'. Neetling and Beuthin3 the claim ” must be foundedupon the actual infringement of rights ”, and it is not impossible to visualiserare instances when an invasion of future or contingent rights can becommitted or threatened before they have reached the stage of finalvesting. In such an eventuality, it would be idle to wait until the damagehas actually occurred. I am therefore inolined to the view that a fidei-commissary may in certain circumstances legitimately claim a judicialdeclaration for the protection of his rights, even though such rights canbe classified only as future or contingent; provided that he can provethat there is a present risk of their infringement to his ultimateprejudice.i
The plaintiffs’ complaint against the defendant must now be examined.They allege that the defendant “ wrongfully and unlawfully disputesthe rights of the plaintiffs to the property This circumstance byitself is insufficient to establish a cause of action. As de "Villiers C.J.pointed out in Oeldenhuys' case (supra), a declaratory order cannot beclaimed “ merely because the rights of the claimant have been disputedIt. seems to me that the plaintiffs have failed to prove an actual orthreatened infringement by the defendant of their alleged fideicommissaryrights. It is no doubt true that, in a pending partition action institutedby a neighbouring landowner who had sought to include this propertyin the corpus, the defendant had intervened in order to have the propertyexcluded from the scope of those proceedings. But this intervention,though influenced primarily by the defendant’s desire to protect .hisown interests rather than those of the plaintiffs, was not calculated toprejudice their rights. Indeed, one finds that the members of the plain-tiffs’ family were no less vigilant in the same proceedings to achieve thisend. Mr. Wickremanayake has urged, however, that his clients genuinelyfear that the defendant might at some future date, and without noticeto his clients, dispose of an undivided share in the property to someoneelse, so as to pave the way for dishonestly obtained thereafter a partitiondecree in which their rights are not reserved. He argued that, if in thatevent the property should subsequently pass to a bona fide purchaser,the fideicommissum created by the deed P4 would be extinguished.Under the new Partition Act, No. 16 of 1951, the consequences of such animproper proceedings would, I . think, be even more fundamentallyprejudicial to the plaintiffs.
The risks attaching to fideicommissary rights which are not expresslyreserved in decrees for partition are indeed substantial, and when oneexamines the authorities on this subject one cannot but endorse theobservation of Mr. Nadarajah at page 186 of his -Treatise on the RomanDutrh Law of Fidetcommissa that ” the law of Ceylon relating to the parti-tion of fideicommissary property (i.e., under Ordinance No. 10 of 1863)cannot be said to rest on any very satisfactory basis ”. The present1 (1930) W. L. W. 100.* (1918) A. D. 426.
17 – N. L. R. Vol. – Lui
176
GBATIAEN J.—Hewavitharna r. Chandrawothie
trend of judicial authority inclines to the view that such property couldproperly be partitioned or sold in terms of the earlier Ordinance, and thatunless the rights of fideicommissaries are expressly reserved under thedecree, a subsequent bona fide purchaser would take the property un-affected by those rights. (Vide the authorities discussed at pages 181to 187 of Mr. Nadarajah’s Treatise). It is a situation‘of this kind thatthe plaintiffs apprehend.
It seems to me that the plaintiffs’ fears are premature. In the firstplace, Jane Nona’s title, whether it be absolute or limited only to afiduciary interest, is now enjoyed exclusively by the defendant, so thatno “ common ownership.” of the property yet exists which is a pre-requisite to the institution of partition proceedings. Besides, theearlier Ordinance has, since this action commenced, been supersededby the Partition Act, No. 16 of 1951, and many of its provisions arespecially designed to afford a greater measure of protection to theinterests of persons claiming fideicommissary interests in property soughtto be partitioned. For instance, section 5 in terms requires a plaintiff .to disclose in his plaint not only the admitted rights of fideicommissariesbut also any disputed claims to such rights. As a further precaution,the filling of a proctor's certificate, prepared after due inspection of therelevant land registers, is made essential to the continuation of the actionafter lis pendens has been duly registered; a professional duty is imposedon the proctor concerned to specify in his certificate the names of allpersons whose claims or interests can be ascertained from the relevantregisters. Finally, any fraudulent or dishonest non-diselosure offideicommissary claims (whether admitted or not) is made an offencepunishable under section 72 of tbe Act. The purpose of the legislatureis by this means to minimise the risk of such .claims being overlookedbv the Court exercising jurisdiction in partition actions.
In this state of things, no immediate danger attaches at the presenttime to the interests' (assuming that they exist) which in the plaintiff’sexpectation will ultimately becomeenlarged into vested rights.
Admittedly, if the interpretation which the plaintiffs place upon the deedV4 be found to be correct, no question of adverse prescriptive user againstthem has yet arisen-. Abdul Coder v. Habibu Umma 1 and the casescited in Mr. Nadarajah’s Treatise, – page 170 {footnote 77). No act orconduct on the part of the defendant has therefore been committed orthreatened which can be construed at this stage as an effective infringe-ment of the alleged interests of the plaintiffs or of those to whom thoseinterests would, in their submission, be transmitted in a certaineventuality. I would hold that, in the circumstances, no cause of actionhas accrued to the plaintiffs to claim the relief granted to them by thejudgment under appeal. Until such a cause of action has in fact accrued• the plaintiffs are not entitled to obtain from this Court a bare declaration-as to their hypothetical rights on questions of law which • still remainacademic. The legal problems now submitted for our adjudicationliave not yet been crystallised into a “ crisp dispute
It- must be remembered that in this country, unlike in England andin South Africa, the common law jurisdiction of the Courts to grant1 (1926) 28 N. L. R. $2 at page 95.
GBATTAEN J.—Hetcavitharna c. Chcndrawathie
177
■ declaratory decrees has not been enlarged by statute. In England,for instance, Order 25 Rule 5 of the Rules of .the Supreme Court providesthat: —
“ No action or proceeding shall be open to objection on the groundthat a merely declaratory judgment or order is sought thereby, andthe Court may make binding declaration of right whether anyconsequential relief is or could be claimed, or not.”
Order 54a also authorises an application to be made to the High Courtby “ originating summons ” by any person claiming interests under adeed, will or other instrument “ for the determination of any questionor construction arising under the instrument,' and for a declaration ofthe rights of the person interested ”. Even under this enlargedjurisdiction the English Courts refuse on principle to make declarations asto rights accruing upon a future event unless (a) a present right depends onthe decision, or (b) all the parties interested in that event are sui jurisor (c) there are other special circumstances. In re Staples (supra)and re Freme’s Contract l. Similarly, in South Africa, “ theinconvenience that has been caused by the inability! of the Court tosettle a dispute between parties unless there has been an infringementof rights ” (ex parte Ginsberg 2) has in some respects been removed bythe provisions of section 102 of the South African Act, No. 46 of 1935,in terms of which—
” A Court may in its discretion and at the instance of any interestedperson inquire into and determine, any existing, future or contingentfuture right or obligation notwithstanding that such person cannotclaim any relief consequential upon such determination.”
I do not doubt that the introduction of similar statutory provision ofthis nature in Ceylon would in appropriate cases provide a simple,inexpensive and beneficial remedy for the solution of concrete disputesregarding the true meaning of wills and other instruments.
In the meantime, governed as we are by the principles of the commonlaw, I take the view that, even if the plaintiffs may legitimately beregarded as having a locus standi to make the present application,they have not established facts entitling them to claim a declaratorydecree against the defendant. I am aware that the Provincial Courts of■South ~5frica have, under the common law and before the Act of 1935was passed, granted quia timet relief to contingent or even potentialfideicommissary heirs in circumstances which in this country would not■constitute an actual or threatened infringement of future rights.Van Rensbury v. Registrar of Deeds 3 and Mare V. Grobler *. I have notexamined the system obtaining – in South Africa for; the registration oftitles to land, but in Ceylon, at any rate, as Mr. Wickremanayake hasfrai kly conceded, no risk can attach to the plaintiffs’ future titleunless it be extinguished by a decree in a partition action,, and I havealready pointed out that the provisions of the new Act of 1951 havereduced the possibility of such a decree being entered without dueconsideration of the rights of persons claiming fideicommissary
1 (1895) 2 Ch. 266 and 778.3 (1924) O. P. D. 508.
• v1936) T. P. D. 165.* (1930) T. P. D. 632.
178GRATIAEN J.—Heicavitharna v. Ckandrawathie
interests in the property. The deed P4 is registered in the samefolio as P7. The defendant, and those who hereafter derive little from,him, would expose themselves to the risk of criminal proceedings if,with the assistanceof somenegligentproctor, theyshould attempt-
before Jane Nona’s death to institute proceedings under the Actwithout giving theplaintiffs(or theirheirs) an opportunity to put
forward their claims under P4. These are claims which certainly meritadjudication at the proper time and therefore require disclosure inany future partition proceedings. That the defendant or his successorsin title would make bold to circumvent their statutory obligationsand incur the consequential risk of criminal proceedings under thenew Act is not lightly to be presumed. Meanwhile the plaintiffs mustcontinue to realisethat theprice ofall contingentfideicommissary
benefits is constant vigilance.
I am in any event not convinced that a declaratory decree which theplaintiffs are now claiming would necessarily guarantee them any certaintyof protection. Section 48 of the new Act indicates that a subsequentpartition decree entered by a Court of competent jurisdiction, from whichnotice of even such a declaratory decree has been dishonestly or carelesslywithheld, would extinguish – any fideicommissum for which provision is notexpressly made—leaving the fideicommissaries whose rights have beendefeated only the consolation of an action for damages and of a criminalprosecution againstthe wrongdoer. To this extentthe position of
fideicommissaries under the new Act is, notwithstanding the precautionarystatutory provisions to which I have referred, perhaps more precariousthan it used to be. The passing of a declaratory decree would thereforenot afford a perfect insurance against dangers of the kind which theplaintiffs appear to apprehend.
The dismissal of this action does not involve an adjudication by usone way or the other as to whether the deed of donation P4 created a validfideicommissum, the earlier acceptance of which by Jane Nona allegedlyrendered it irrevocable by her unilateral act at a later date. My only de-cision is that the plaintiffs’ action is premature. Nor will the plaintiffs beprecluded from instituting fresh proceedings for quia timet relief it atsome future date an actual or threatened infringement of their rights canbe established to the satisfaction of the Court. I trust that the outcomeof these proceedings will serve at least to convince the defendant and per-sons succeeding to his present title that the claims of the plaintiffsunder P4, although disputed, are sufficiently substantial to merit judicialinvestigation at the proper time.
I would set aside the judgment appealed from, and, on the analogy ofFletcher v. Bailey (supra), I would, make order that a decree be entereddismissing the plaintiffs’ action on the ground that it is premature,but without prejudice. to their rights to bring another action in case ofactual injury or immediate danger to their alleged interests under thedeed P4 No. 26251 dated June 2, 1926, -attested by E. A. Gurusinghe,Notary Public. ' The plaintiffs must pay to the defendant his costs bothhere and in the court below.
Gtjnasbkara J.—I agree.
Judgment set aside.