Moraia v. Victoria
1972 Present: Viscount Dllhorne, Lord Hodson, Lord Simon of Glalsdale,Lord Cross of Chelsea, and Lord KllbrandonJOSEPHINE MORAIS, AppeUant, and FRANCESCA VICTORIA,RespondentPrivy Council, Appeal No. 41 of 1970S.C. 167/65—D. G. Colombo, 10207fL
(I) Fideicommissum—Last will—Creation therein of a trust for a period followed by afideicommissum—Validity—Power given to the trustees to sell testator's propertyand buy other property with purchase price—Effect.
(ii) Rei vindicatio actions—Claims by plaintiff against same defendant to distinctproperties under same title—Claim to each property is a claim in respect of aseparate cause of action—Action instituted in respect of some properties—Subsequent action in respect of the other properties—Maintainability—CivilProcedure Code, ss. 5, 34.
A testator left his last will providing that the executors and trusteesdesignated in the will should manage his immovable properties until his son
' Lewis was thirty-five years old ; that then the properties should be transferredto him ; but that he should have beneficially no more than a life interest in themand that on his death they, should pass, in the events which happened, to theplaintiff. Further, the trustees were given power under clause 7 to sell any of theproperties and to ro-invest the proceeds of sale in other immovable property.Indeed certain properties were sold by the trustees and other immovableproperties were bought in their stead.
Held, that there is no doubt that a “ trust ” as well as a “ fidoicommissum ”is recognized by tho Law of Ceylon and that tho directions given to the trusteeswith regard to the management of the properties while Lewis was under 35and their conveyance to him when he attained 35 were perfectly valid. Itcannot be contended that the fiduciary under a fideicommissum must always takethe property as legatee or devisee immediately on the death of the testator andthat it is not competent to a testator to create a trust for a period followedby a fideicommissum taking effect by the joint operation of the will anda conveyance by the trustees to the fiduciary in pursuance of directionscontained in the will.
Held further, that clause 7 of tho will could not affect the vnlidity of thefideicommissum.
Whore a plaintiff asserts his ownership of and right to possession of severaldistinct properties yielding different incomes, then even though his title tothem arises from the same document or Deed and the defendant denies theplaintiff’s title and right to possession to all of them at the same time and onthe same grounds, the claifn by the plaintiff to the ownership of each of theproperties is a claim in respect of a separate cause of action. Accordingly, heis entitled to institute a rei vindicatio action against the defendant in' respectof some of the properties and another such action against the same defendantsubsequently in respect of the other properties. In such circumstances section34 (2) of the Civil Procedure Code cannot bar the institution of the second actioneven though the plaintiff knew, when ho started the first action, the fullextent of his claim under the same Deed to all the properties covored bythe two actions.
Moraia v. Victoria
.A.PPEAL from a judgment of the Supreme Court reported in(1968) 73 N. L. R. 409.
A testator died in February 1918 leaving his last will which appointedthree persons to be executors and trustees. The will provided inter alia(1) that the trustees should cpnvey the immovable property belongingto the trust estate to the testator’s son Lewis on his attaining the age ofthirty-five years on the 25th July 1933, (2) that the trustees shouldmeanwhile manage the properties and sell some of them, if it becamenecessary, and buy new properties with the proceeds of sale, (3) that theproperty conveyed to Lewis should, in certain events, be subject to afideicommissum in favour of his daughter (the plaintiff in the presentaction No. 10207).
Lewis having attained the age of 35 on 25th July 1933 the trusteesexecuted a Deed on 21st September 1933 conveying the trust propertyto Lewis. The Deed, after reciting the relevant terms and conditionsof the Will of the testator, stated that the immovable property devisedto them by the testator consisted of the several properties described inSchedules A and B of the Will and that they had sold the propertiesdescribed in Schedule B and purchased those described in Schedule Cunder the powers given them by the Will. On 4th July 1947 Lewis andhis second wife (the defendant in the present action) made a joint willeach leaving his or her property to the other. After Lewis died on2nd September 1958 the plaintiff claimed the properties described inSchedules A and C on the footing that her father Lewis had held themsubject to a fideicommissum in her favour in the events which happened.The defendant contended that her husband was free to dispose of themin her favour by his Will.
The plaintiff instituted two rei vindicatio actions against the defendant.Action No. 9929, which was filed on 15th July 1962, related to alanddescribed in Schedule A to the Deed of 21st September 1933 and toanother land described in Schedule C. While action No. 9929 waspending, the plaintiff filed the present action No. 10207 on 13th May 1963in respect of the other thirteen lands described in Schedules A and C.
In the present appeal to the Privy Council from the judgment of theSupreme Court allowing the plaintiff’s claim in action No. 10207, it wasargued on behalf of the defendant-appellant (1) that the Will of thetestator did not create an effective fideicommissum in favour of theplaintiff, and (2) that as the plaintiff had omitted to claim the thirteenlands in action No. 9929 he was debarred by the provisions of section 34of the Civil Procedure Code from instituting action No. 10207 subse-quently in respect of the lands so omitted.
G. Thiagalingam, Q.C., with V. Arulambalam and Miss S. S. de Silva,for the defendant-appellant.
F. N. Gratiaen, Q.C., with L. Kadirgamar, for the plaintiff-respondent.
'Cur. adv. vult.
LORD CROSS OF CHELSEA—Morais w. Victoria
January 11, 1972.[Delivered by Lord Cross of Chelsea]—
This is an appeal by leave of the Supreme Court of Ceylon byJosephine Mary Aloysia Morais the defendant in the action from ajudgment of the Court given on 11th July 1968 dismissing her appealfrom the judgment of the District Court of Colombo given on 17th March1965 'in favour of the respondent Francesca Victoria the plaintiffin the action.
The respondent is the granddaughter of one Marianu Morais hereinafterreferred to as the testator. By his last will dated 8th September 1917 thetestator appointed his three sons-in-law to be executors and trustees.After making a number of specific dispositions of parts qf his estate hedevised and bequeathed the residue of his estate subject to the paymentof his debts, funeral and testamentary expenses to his trustees to be heldby them on the trusts thereinafter set out. There followed two bequeststo charity and a direction to the trustees to make monthly out of theresidue of his trust estate for a period of ten years from his deathcertain payments for the saying of Masses. The will then proceeded togive the following further directions to the trustees:—
“ 4. Upon trust to pay out of the Income of my trust estate thesum of Rupees Twenty-five (Rs. 25) per mensem to my son LewisAnthony Morais until hisimarriage and thereafter a sum of RupeesFifty (Rs. 50) per mensem together with a further sum of RupeesTwenty-five (Rs. 25) per mensem for each surviving child of mysaid son until my said son shall attain the age of Thirty-five yearson the 25th day of July 1933.
5. Upon Trust to convey the immovable property belonging tomy trust estate to my said son Lewis Anthony Morais on his attainingthe age of Thirty-five years on the 25th day of July 1933 subject tothe following reservations restrictions and conditions that is to saythat the said Lewis Anthony Morais shall in no wise sell mortgageor.otherwise alienate or encumber the immovable property belongingto my said trust estate or any portion thereof but shall only havepossess and enjoy the rents issues and profits arising and accruingtherefrom during the term of his natural life and that at his deaththe said immovable property shall devolve on his lawful son or sonsonly (if more than one, in equal shares) absolutely but if there be nolawful son surviving him at his death then and in that event thesame shall devolve on his lawful daughter or daughters (if more thanone, in equal shares) absolutely the lawful issue of a deceased son ordaughter taking the share to which his her or their parent would havebecome entitled if living. But in the event of the said Lewis AnthonyMorais dying without leaving any lawful issue or other descendantssurviving him then and in that event the said immovable propertyBhall devolve absolutely on the heirs of the said Lewis Anthony Morais.Provided however that in the event of my said son Lewis AnthonyMorais dying before attaining the age of thirty-five years I direct mytrustees to convey the immovable property belonging to my trust
LORD CROSS OF CHELSEA—Morais v. Victoria
estate to the lawful son or sons only (if more than one, in equal shares)of my said son Lewis Anthony Morais absolutely upon his or theirattaining the age of twenty-one years and in the meantime to administerthe trust estate in their absolute discretion but if there be no lawfulson or sons surviving him then to the daughter or daughters (if morethan one, in equal shares) of my said son Lewis Anthony Moraisabsolutely upon her or their attaining the age of twenty-one yearsor marrying whichever event first occurs and in the meantime toadminister the said trust estate in their absolute discretion the lawfulissue of a deceased son or daughter taking the share to which his orher or their parent would have become entitled if living and in theevent of my said son Lewis Anthony Morais leaving no lawful issueor other descendants surviving to the lawful heirs of the Baid LewisAnthony Morais absolutely.
7. Upon trust to sell and convert into money such of the saidimmovable properties belonging to my trust estate as my said trusteesshall in their absolute discretion think advisable or expedient to sellby reason of the said properties not giving a fair or reasonable rentincome or- return therefrom and from the proceeds sale thereof topurchase other immovable property or properties and any suchimmovable property or properties purchased as aforesaid shall formpart of my trust estate and be subject to the same trusts as areherein expressed and contained.
And I direct that my said trustees shall keep regular accountsof all rents income profits and other monies received by them andof all moneys expended by them and deposit the balance in one ofthe Banks in Colombo and to apply such balance from time totime as my said trustees shall think fit in the purchase of immovableproperty and any property so purchased shall form part of mytrust estate and be subject to the same trusts as are herein-expressedand contained.
And I further direct that my said trustees shall be entitledat all times during the continuance of this trust to put up buildingsand effect improvements to all or any of the properties belonging tomy said trust estate under the powers contained in clauses 7 and 9aforesaid.”
The testator died on 3rd February 1918 and his will was proved on10th June 1918. Between the date of his death and the attainment byhis son Lewis of the age of 35 years the trustees in exercise of thepower given them by clause 7 sold some of the immovable propertiesforming part of the trust estate devised to them and bought otherimmovable properties with the proceeds of sale. Lewis having attainedthe age of 35 on 25th July 1933 the trustees on 21st September 1933executed a deed which after reciting the relevant parts of the will of thetestator, stating that the immovable property devised to them by thetestator consisted of the several properties described in Schedules A and B
LOUD CROSS OF CHELSEA—Moraia v. Victoria
and. that they had sold the properties described in Schedule B andpurchased those described in Schedule C under the powers given themby the will continued as follows:—
" And whereas it is deemed expedient that the said Trusteesshould execute These Presents for the purposes of conveying thesaid several properties and premises in the Schedules A and Chereto fully described to and vesting the same in the said LewisAnthony Morais subject however to the reservations restrictions andconditions in the said Last Will and Testament of the saidMarianu Morais and hereinbefore recited.
Now KNOW VE AND THESE PRESENTS WITNESS that the saidMaria Joseph Carwalho, Bernard Miranda and Stephen Corera asTrustees as aforesaid in consideration of the premises do and eachof them doth hereby grant, convey, assign, transfer and set over untothe said Lewis Anthony Morais all those the several properties andpremises in the Schedules A and C hereto fully described togetherwith all rights privileges easements servitudes and appurtenanceswhatsoever to the said several properties and premises belonging orUsed or enjoyed therewith or reputed or known as part and parcelthereof and all the estate right title interest property claim anddemand whatsoever of the said Marianu Morais deceased and ofthem and each of them the said Maria Joseph Carwalho, BernardMiranda and Stephen Corera as Trustees as aforesaid in to out ofor upon the same.
To have and to hold the said several properties and premiseshereby conveyed unto the said Lewis Anthony Morais, subject tothe following reservations and restrictions that is to say that thesaid Lewis Anthony Morais shall in no wise sell mortgage or• otherwise alienate or encumber the said properties and premiseshereby conveyed or any portion thereof but shall only have possessand enjoy the rents issues and profits arising and accruing therefromduring the term of his natural life and that at his death' the saidproperties and premises shall devolve on his lawful son or sons only(if more than one in equal shares) absolutely but if there be nolawful son surviving him at his death then and in that event thesame shall devolve on his lawful daughter or daughters (if morethan one in equal shares) absolutely the lawful issue of a deceasedson or daughter taking the share to which his, her or their parentwould have become entitled to if living but in the event of the saidLewis Anthony Morais dying without leaving any lawful issue orother descendants surviving him then and in that event the saidproperty and premises hereby conveyed shall devolve absolutely onthe heirs of the said Lewis Anthony Morais.”
Lewis married twice. By his first wife who died in 1923 he hadtwo children—a son who died in infancy and a daughter the respondent!In 1927 he married the appellant but there were no children of that
LORD CROSS OF CHELSEA—Morale v. Victoria
marriage. On 4th July 1947 Lewis and the appellant made a joint willeach leaving his or her property to the other and on 2nd September 1958Lewis died leaving the appellant him surviving.
On Lewis’ death the respondent claimed the properties described inSchedules A and C to the deed of 21st September 1933 on the footingthat her father had held them subject to a fidei commissum in herfavour. The appellant on the other hand contended that her husbandwas free to dispose of them by his will and after his death she enteredinto possession of them or into receipt of the rents and profits arisingfrom them.
On 15th July 1962 the respondent filed a plaint (No. 9929/L) againstthe appellant in the District Court of Colombo in which she relied orpurported to rely on two separate causes of action. In the paragraphssetting out her first cause of action she alleged that the testator hadbecome the owner of the property described in Schedule A to the plaint(which was one of the properties described in Schedule A to the deedof 21st September 1933) under a deed dated 4tli October 1900. Shethen referred to the will and death of the testator, the deed of21st September 1933 and to the marriages, family and death of Lewisand continued as follows:—
“ 9. Upon the death of the said Lewis Anthony Morais thePlaintiff abovenamed became the owner of the land and premisesdescribed in Schedule ‘ A ’ hereto.
Since the date of the death of the said Lewis Anthony Moraisthe Defendant abovenamed who is widow has been in wrongful andunlawful possession of the said land and premises without any mannerof right or title and has been disputing the Plaintiff’s title thereto.
By reason of the wrongful and unlawful possession of thesaid lands and premises the Plaintiff has sustained damages at.—Rs. 180/- per month aggregating to Rs. 8,340/- and is continuing tosustain damages at the said rate.
A cause of action has therefore accrued to the Plaintiff tosue the Defendant (a) for a declaration of title to the said landpremises more fully described in the Schedule ‘ A ’ hereto, (6) forejectment of the Defendant from the said premises more fullydescribed in Schedule ‘ A ’ hereto, (c) for the recovery of the sumof Rs. 8,340/- from the 2nd day of September 1958 to date hereofand for the recovery of continuing damages at Rs. 180/- per monthfrom date hereof till date of delivery of the said land and premisesmore fully described in Schedule ‘ A ’ hereto to the Plaintiff.”
In the paragraphs of her plaint setting out her alleged second cause ofaction she repeated the facts already stated as to the will and death ofthe testator, alleged that on 3rd December 1924 the trustees had purchasedthe property described in Schedule B to the plaint (which was one ofthe properties described in Sohedule C to the deed of 21st September
LORD CROSS OF CHELSEA—Marais v. Victoria
1933) out of monies lying to the credit of the trust estate and repeatedthe averments already made as to the deed of 21st September 1933 andthe marriages, family and death of Lewis. The plaint then continuedas follows :
“ 20. Upon the death of the said Lewis Anthony Morais thePlaintiff abovenamed became the Owner of the land and premisesdescribed in Schedule ‘ B ’ hereto.
21. The Plaintiff avers that since the date of the death of thesaid Lewis Anthony Morais the Defendant abovenamed who ishis widow has been in wrongful and unlawful possession of thesaid land and premises without- any manner of right or title andhas been disputing the Plaintiff’s title thereto.
22 i By reason of the wrongful and unlawful possession of thesaid land and premises more fully described in Schedule * B ’hereto the Plaintiff has sustained damages at Bs. 400/- a monthaggregating to Rs. 18,535/- and is continuing to sustain damages atthe same rate.
A cause of action has therefore accrued to the Plaintiff tosue the Defendant—
for a declaration of title to the said land and premisesmore fully described in Schedule ‘ B ’ hereto.
(5) for the ejectment of the Defendant from the said landand premises more fully described in Schedule ‘ B ’ hereto.
for the recovery of the sum of Rs. 18,535/- from the2nd September 1958 to date hereof and for the recovery ofcontinuing damages at Rs. 400/- per month from date hereoftill date of delivery of the said land and premises described inSchedule ‘ B ’ hereto.
The Plaintiff avers that the value of the subjeot matter ofthis action aggregates to Rs. 136,875/—.
Wherefore the Plaintiff frays
that the Plaintiff be declared entitled to the said land andpremises described in the Schedule ‘ A ’ and Sohedule ‘ B ’ tothe plaint.
that the Defendant be ejected from the land and premisesdescribed in the schedules to the plaint and that delivery ofpossession of same be given to the Plaintiff.
for the recovery of Rs. 26,875/- as accrued damages from the2nd day of September 1958 to date hereof and continuingdamages at Rs. 580/- per month till delivery of possession of thesaid land and premises more fully described in the said Schedule
LORD CROSS OF CHELSEA—Moraia v. Victoria
to the Plaintiff with interest in the aggregate amount of thedecree at 5 per centum per annum commencing from the date ofthe decree to date of payment in full.
for costs and
for such other and further relief as to this Court shall seemmeet.”
On 17 th December 1962 the appellant filed an answer asserting thatshe was the owner of the two properties described in the Schedule tothe plaint and rightfully in possession of them. Having in the plaint-9929 /L selected two representative properties in respect of which tosue, the respondent’s advisers apparently later decided that it wasdesirable to sue in respect of the other properties as well and on13th May 1963 the respondent filed another plaint (10207/L) in theDistrict Court of Colombo relying on thirteen causes of action, tenrelating to other properties in Schedule A to the deed of 21st September1933 and three relating to other properties in Schedule C. Theparagraphs in the plaint relating to each cause of action were “ mutatismutandis ” to the like effect as the paragraphs in the first plaint alreadyreferred to and the relief claimed was in each case the same—namelya declaration of the respondent’s ownership of the property in question,possession, mesne profits and costs.
The answer of the appellant filed on 16th September 1963 as wellas alleging that she was the owner of and rightfully in possession of theproperties in question contained the following paragraph
“4.(a) The plaintiff had instituted against this defendant
proceedings No. 9929/L of this Court for the recovery of twoallotments of land and premises with buildings standing thereonbearing assessment (1) No. G 20 (1-12) Brassfounder Street, Colomboand (2) 219, 223, 225, 227 (1-3) 231, 233, and 239 Jampettah Streeton the ground that these belonged to the estate of Mariam Moraisor were purchased out of the funds of the said estate and that thesame had devolved on her.
(6) Though grouped under thirteen items in this case the claimfor the recovery of thirteen lands, is on the same ground as in9929/L.
(c) This defendant states that the plaintiff having omitted to suein respect of, or intentionally relinquished to claim the thirteen landsin proceedings No. 9929/L is debarred in law from now suing inrespect of the thirteen lands so omitted or relinquished.”
Both actions were fixed for trial on 23rd November 1964. On that daycounsel for the respondent (plaintiff) asked the judge to hear the secondaction (10207/L) first notwithstanding that it was later in date as thevalue of the properties to which it related was greater. This applicationwas resisted by counsel for the appellant (defendant) but the judgeacceded to it and the second action was tried on several days in November
LORD CROSS OF CHELSEA—Moraia v. Victoria
and December 1964. By the decree of the District Court dated 17th March1965 the respondent (plaintiff) was declared to be the owner of thethirteen properties to which the action (10207/L) related and the appellant(defendant) was ordered to give up possession of them and to paydamages at differing monthly rates in respect of each of them. Theother action (9929/L) has not yet been tried.
The appellant appealed to the Supreme Court against the decree inthe action 10207/L but on 11th July 1968 the Supreme Court affirmedthe judgment of the District Judge.
In the courts below the appellant relied on a number of grounds ofdefence to the respondent’s claim but only two,points were argued on herbehalf before the Board. One was that the will of the testator did notcreate an effective “ fidei commission ” in favour of the respondent. Theother was that raised in paragraph 4 of the appellant’s defence set outabove. Their Lordships will deal with them in that order.
The “ fidei commissum ” point
Counsel for the appellant did not suggest that there was any doubtas to what the testator intended to achieve by the dispositions whichhe made. He obviously intended that his trustees should manage theimmovable properties until his son was 35 years old; that then theproperties should be transferred to him ; but that he should havebeneficially no more than a life interest in them and that on his deaththey should pass in the events which happened to the respondent. Further,counsel did not suggest that the intentions of the testator could not havebeen given effect to by a will framed in appropriate terms. Hiscontention was that though the testator meant Lewis to hold the propertiesas fiduciary no effective “fidei commissum" was created (a) becauseLewis did not take the properties under an immediate gift taking effecton the testator’s death but only after an interval and under a conveyancemade by the trustees in pursuance of a direction in the will and(6) because the trustees were given power under clause 7 to sell any orall the properties devised to them by the testator and were not underan obligation to re-invest the proceeds of sale in immovable propertyor at all events might not in fact have so re-invested the proceeds whenLewis attained 35 and that a fidei commissum could not be created inrespect of money. In their Lordships’ view there is no substance ineither of these contentions. As to the first there is no doubt that a“ trust” as well as a “fidei commissum ” is recognised by the Law ofCeylon and that the directions given to the trustees with regard to themanagement of the properties while Lewis was under 35 and theirconveyance to him when he attained 35 were perfectly valid. Counselcould not refer their Lordships to any authority supporting his submissionthat the fiduciary under a fidei commissum must take the property aslegatee or devisee immediately on the death of the testator and thatit is not competent to a testator to do what this testator evidentlyintended to do—namely to create a trust for a period followed by a16-Volume LXXV
LORD CROSS OF CHELSEA—Moraia v. Victoria
fidei commissum taking effect by the joint operation of the will and aconveyance by the trustees to the fiduciary in pursuance of directionscontained in it. Their Lordships can see no objection in principle tosuch a disposition and in the absence of authority they are certainly notprepared to lay down a rule which would have the effeot of defeatingthe clear intention of the testator. As to the second contention counselfor the appellant quoted no authority for his submission that a fideicommissum could not be created in respect of money—and counsel forthe respondent was not prepared to accept it as correct. But even ifone assumes that it is correct their Lordships cannot see how theproposition advances the appellant’s case. Under clause 7 the trusteeshad no power to leave the proceeds of sale in the form of cash for anindefinite period but were under a duty to re-invest them in immovableproperty within a reasonable time. The powers given them by clause 7certainly did not confer on them—as counsel suggested—a discretionwhether or not to create a fidei commissum over all or any of theproperties devised by the testator. The most that can be said is thatif on Lewis attaining 35 there had been in the hands of the trusteessome proceeds of sale which had not yet been re-invested a questionmight possibly have been raised as to whether or not such proceeds ofsale should be treated as immovable property—as they certainly wouldhave been under the English doctrine of “ conversion ”. This questiondid not in fact arise. Their Lordships agree with the courts below thatthere is no substance whatever in the fidei commissum point.
Is the action barred ?
The point raised by paragraph 4 of the defence depends on s. 34 of theCivil Procedure Code; which is in the following terms:—
" 34. (1) Every action shall include the whole of the claim whichthe plaintiff is entitled to make in respect of the cause of action;but a plaintiff may relinquish any portion of his claim in order tobring the action within the jurisdiction of any court.
If a plaintiff omits to sue in respect of, or intentionallyrelinquishes any portion of, his claim, he shall not afterwards sue inrespect of the portion so omitted or relinquished. A person entitledto more than one remedy in respect of the same cause of action
. may sue for all or any of his remedies; but if he omits (exceptwith the leave of the court obtained before the hearing) to sue forany of such remedies, he shall not afterwards sue for the remedysq omitted.
For the purpose of this section, an obligation and a collateralsecurity for its performance shall be deemed to constitute but onecause of action.”
LORD CROSS OF CHELSEA—Moraia v. Victoria
Seotion 5 of the Code contains the following definitions of “ action ” and“ cause of aotion” :—
‘ action ’ is a proceeding for the prevention or redress of a wrong ;
* cause of action ’ is the wrong for the prevention or redress ofwhich an action may be brought, and includes the denial of a right,the refusal to fulfil an obligation, the neglect to perform a duty,and the infliction of an affirmative injury.”
The contentions of the parties on this point may be stated as follows:—The respondent says that if a plaintiff is asserting his ownership of andright to possession of several distinct properties, then even though histitle to them arises under the same document and the defendant denieshis title and right to possession to all of them at the same time andon the same grounds he has a separate cause of action in respect of eachproperty. The appellant on the other hand says that in a case like thiswhere the respondent is claiming all the properties described inSchedules A and C of the deed of 21st September 1933 under the jointoperation of the will of the testator and that deed and on the death ofLewis the appellant denied her title to all the properties on the samegrounds the respondent has in truth only a single cause of action coveringall the properties.
Before considering which view is to be preferred their Lordships mi istdeal with two subsidiary points. The first relates to the respondent’sstate of mind when she started her first action. The use of the wcrd“ omits ” in subsection (2) shows that the second action will only bebarred if the plaintiff when he first “ sued ” knew that he could haveincluded further claims in respect of the cause of action in questionbut ohose not to do so. Counsel for the respondent submitted that itwas for the appellant to show that the respondent knew the full extent ofher claim when she first sued, to which counsel for the appellant repliedthat it was for the respondent to show that she did not know her rights.In their Lordships’ view even if the respondent is right as to the “ onu* ”there cannot be any real doubt in this case that she knew when shestarted the first action that she had claims against the appellant not onlyin respect of the two properties referred to in her plaint in that actionbut also in respect of the other properties set out in Schedules A and Cto the deed of 21st September 1933 of the terms of which she was well -aware.
The second subsidiary point is whether b. 34 (2) can in any eventapply to a case such as this where the first action has not yet come totrial. In his judgment in the Supreme Court De Kretser J. gave as analternative ground for dismissing the appeal that the word “ afterwards ”means after judgment in the first action and their Lordships are disposedto agree with him. What claims are included or not included in thefirst aotion cannot be finally determined while the action is pending sinceup to the date of judgment the plaintiff may discontinue it or obtain
LORD CROSS OF CHELSEA—Moraia v. Victoria
leave to amend his pleadings. But their Lordships are unwilling to disposeof this appeal on a narrow ground which might still leave open thequestion whether the respondent could continue to prosecute the firstaction after judgment obtained in the second. Accordingly they willconsider how the matter would stand if the respondent had obtainedjudgment in the first action.
The actions 9929/L and 10207/L are what are called in Roman DutchLaw " rei vindicatio” actions—t. e. proceedings by which the plaintiffasserts his title to and his right to possession of a particular thing. Thebasis of the judgments below on this aspect of the case is simply thateach of the properties separately described in Schedules A and C tothe deed of 21st September 1933 is a separate “res” and that theaggregate of those properties cannot properly be viewed as a separate“ res ” of which the respondent can be regarded as having beendispossessed by a single act of the appellant giving rise to a single causeof action. That the courts of Ceylon do in fact look at this sort ofquestion in this way appears from the case of Kaluhamy v. Appuhamy1(1914) 18 N.L.R. 87, to which counsel for the respondent referred theirLordships. Counsel for the appellant rested his case on the decision ofthe Board in an Indian appeal—Mohammad Khalil Kahn and Others v.MahJbvb Ali Mian and Others2 (1949) All Indian Reports Vol. 36 p. 78.There the Board had to consider the application to the facts of thatcase of Order 2 Rule 2 of the Indian Civil Procedure Code, which is—ascounsel for the respondent admitted—for practical purposes in the sameterms as section 34 of the Civil Procedure Code of Ceylon. The faotsthere were that a lady R. who died intestate owned lands in Oudh andother lands in Agra. Three sets of persons who may be referred to asK. M. and A. laid claim to R’s estate on different grounds. In India-there are proceedings—unknown to the law of Ceylon—called “ mutationproceedings ” in which a Revenue tribunal can decide which of variousclaimants to the property of a dead man ought to be put into possession—and become liable to tax—pending and without prejudice to a finaldecision as to ownership in the appropriate tribunal. In this, case“ mutation proceedings ” in the respective Revenue Courts of Oudh andAgra resulted in A. being put in possession of the Oudh lands and M.being put into possession of the Agra lands. Meanwhile M. and K. eachstarted actions in the Oudh courts asserting title to the Oudh lands andmaking the other claimants defendants. These two actions were triedtogether and resulted in K. being declared owner of the Oudh lands.In the course of these proceedings K’s counsel sought leave to amendhis claim by including in it a claim to the Agra lands as well, but thisapplication was refused. Some years after the decision in their favouras to the Oudh lands K. etarted an action against M. claiming to be
1 11914) 18 N. L. R. 87.
(1949) 30 A. /. S. 78.
LORD CROSS OF.CHELSEA—Moraisv. Victoria
owner of the Agra lands. It was held by the Privy Council affirmingthe judgments below that this action was barred by Order 2 Rule 2 ofthe Civil Procedure Code because the claim of K. to the Agra lands wasa claim in respect of the same cause of action as their claim in respectof the Oudh lands—namely, that they were the rightful heirs of R.—and that as they had omitted to sue for the Agra lands in their firstaction they were not entitled to bring the second action. The SupremeCourt of Ceylon sought to distinguish this Indian case from the presentcase on various grounds which counsel for the appellant contended—astheir Lordships think with much force—were none of them distinctionsof substance. It was said, for instance, that the Indian code containedno definition of the phrase “ cause of action ”, that the Indian rules withregard to joinder of parties were different from those obtaining in Ceylon,and that Ceylon law knew nothing of “ mutation proceedings Thisis all true ; but none of these distinctions are real grounds of difference.There can, their Lordships think, be no doubt that in a case where thefacts are such as they were in this case or in the Indian case the courtsof the two countries approach the matter differently. The Indian courtssay that looking at the substance of the matter there is only a singleissue between the parties—namely, whether the claimant was the heir ofthe testator or a fidei commissary under a given will—whereas the courtsof Ceylon say that there are as many separate causes of action as thereare distinct parcels of land. But India and Ceylon are different countrieswith different systems of law and although the wording of the twolegislative provisions is the same their Lordships would not think it rightto say that this application of the words to the same set of facts mustbe the same in each country unless it could be said that only one viewwas reasonably tenable. Their Lordships are unable to say that here.It is certainly not unreasonable to say that there was really only oneissue in this case—namely, whether the respondent was fidei commissaryunder the will of the testator.. On the other hand one cannot say thatthe Ceylon approach is unreasonable. No doubt the question what doesor does not constitute a separate “ res ” is a question of degree. If thecontest is as to the ownership of ai farm it would not be reasonable tosay that the plaintiff had a separate cause of action in respect of eachfield which happened to be separately delineated on the plan. But herethe various properties described in" Schedules A and C to the deed of21st September 1933 Were separate properties, yielding different rents ; andthere is nothing unreasonable in saying that a claim to the ownershipof each of them is a claim in respect of a separate cause of action.
. For these reasons their Lordships will humbly advise Her Majestythat this appeal be dismissed. The appellant must pay the costs of theappeal to the Board.
JESEPHNIE MORAIS, Appellant, and FRANCESCA VICTORIA, Respondent