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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wood Benton.
JUANIS APPUHAMY et al. v. JUAN SILVA et al.
D. G. Kalulara, 3,439.
FideiCommissum—Prohibitionagainst'alienation—" Outsider "—Pre-
scription—Waiver—Civil Procedure Code, s. 44.
A joint last will made by husband andwife contained the
. following clause:—
“ That the income derived at present from • the said lands or theright of possession thereofis herebyreservedforthemaintenance,
expenses,andenjoyment during the lifetimeofthesurvivor out of
us, thetwopersona, to be dealt accordingto pleasure,and after
our, thesaidtwo persons’ demise, each femaleandmale and their
children and grandchildren from generation to generation' shallpossess the said lands and plantations for ever as stipulatedaforesaid; but any land ora portionof landoranytree thereon
which is not exempted in the said paragraphs shall not be sold,gifted, givenin dowry, or mortgaged, or doanyact toalienate to
an outsider atany time by any person whoisnotexempted herein;
and' it was – further ordainedthat allpersons whoshallact against
these stipulations shall bedeprivedof theinheritance of their
shares or anything belonging to them from this estate.”
Held,thatthe above clause created avalidfideicommissum,
and thattheterm ” outsider ” meant allpersonsother than the
beneficiaries, and included even blood relations.
Held,also,that it is competent for aparty towaive a claim by
1 (1903) A. C. 190.
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PPEAL from a judgment of the District Judge of Kalutara(P. E. Bieris, Esq.).
The facts sufficiently appear in the judgment.
A. 8i- V. Jayewardene, for the defendants, appellants.
Sampayo, K.C., for the plaintiffs, respondents.
Cur. adv. vult.
June 4, 1908. Hutchinson C.J.—
The decision of this case depends on the meaning and effect to begiven to a clause in a will. Malawara Arachchige Don Elias Appu-hamy and his wife, by their joint will dated December 28, 1855,apportioned in the first ten paragraphs of .the will separate lands andhouses and trees to each of their ten children, and then in the 11thparagraph declare that after the death of both the testators “ eachfemale and male and their children and grandchildren from genera-tion to generation shall possess the said lands and plantations forever as stipulated aforesaid; but any land or a portion of land orany tree thereon which is not exempted in the said (first ten)paragraphs shall not be sold, gifted, given in dowry, or mortgaged,or do any act to alienate to an outsider at any time by any personwho is not exempted herein; and it was further ordained that allpersons who shall act against these stipulations shall be deprivedof the inheritance of their shares or anything belonging to themfrom this estate.” And in the next paragraph the residue of thetestator’s estate is distributed amongst the ten children. Thereference in paragraph 11 to property “ which is not exempted ”and to persons “ not exempted ” appears to be to some provisionsin some of the first ten paragraphs by whioh the eldest son has certainproperty ” to be dealt with by him according to pleasure, ” and achildless daughter is allowed to give her share to two of her brothers.The will is in Sinhalese; the above extract is from the translationwhich is put in evidence in the case.
One of the children was Madalena, wife of Don Bastian Appuhamy;to her, in the 6th paragraph of the will, the land in dispute in thisaction was “ apportioned.” Both the testators died many yearsago, and the will was duly proved. Their daughter Madalenasurvived her husband and then died; and the plaintiffs claim thaton her death they and the 4th to the 8th defendants became entitled,as her children and grandchildren, to the land in dispute, relying onthe fidei commissum created in their favour by the 11th paragraphof the will. They say that the first three defendants are in unlawfulpossession of it, and they ask for a declaration of their title and forpossession, and for damages as against the first three defendants.
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The first three defendants denied that the will created a fidei 1908.eommiaaum. They said that Don Bastian, who married Madalena June 4.in community of property, by deed of July 27, 1872, sold and Hutchinsontransferred the land to Don J. Banasinghe and Galhenege Don C.J.Johannis, who in 1875 sold and transferred it to Mathew de Silva,who in 1905 sold and transferred it to the first and second defendants;that they (the third defendant being the husband of the second)thus became the owners of it, and that they had planted andimproved it. They further said that, assuming that a fidei eommiaaumwas created, " it only operates as a restriction against alienationbeyond blood relations,’’ and that the transfer to Banasinghe andGalhenege was therefore valid conveyance, Because, I presume,they were blood relations. And lastly, they set up a claim by•prescription. And they asked that, if the Court should hold thatthe will created a fidei eommiaaum, the plaintiffs might be orderedto pay them compensation for their improvements.
Two issues were tried first: (1) Does the will create a fideieommiaaum? (2) If so, does it absolutely prohibit alienation, or doesit admit of alienation to parties related as the transferees of DonBastian were ? The other issues related to the claim of the first threedefendants for compensation. The proctor of the first threedefendants waived the claim by prescription.
Evidence was given that Banasinghe (one of the transferees fromDon Bastian) had married a sister of Madalena, and that .the othertransferee of 1872 is a nephew of Madalena.
The District Judge gave judgment declaring the plaintiffs entitledto a share in the land and to damages, and that “ .the defendants ”are entitled to compensation, to be afterwards ascertained. Hesaid that he had held in a previous case, and he still held, that thiswill created a fidei eommiaaum; and that, even assuming thatalienation among the fidei commiasani was permissible, that wouldnot help the defendants (that is, the first three defendants), who arenot, and whose vendor was not, of that class. The first three defend-ants appeal against that judgment.
I am of opinion that the will created a fidei eommiaaum in favourof the “ children and grandchildren from generation, to generation *'of Madalena; that the prohibition against alienation adds nothingto the fidei eommiaaum; that the Attempted alienation by Madalena’shusband could have no effect on the rights of her children andgrandchildren, whatever effect (if any) it might have on her ownlife interest or on her rights to the other benefits given to her by thewill. I also think that the word “ outsiders ” means persons otherthan the beneficiaries, that is, in the case of the land apportioned toMadalena, the descendants of Madalena. No rights as againstMadalena’s descendants were acquired by the sale of 1872.
The appellant’s counsel argued that if the sale of 1872 was abreach of the prohibition against alienation, the effect of it was to
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1908.acceleratethe interestof Madalena’s children andgrandchildren,
June4.who thusbecame entitled to possession in1872,and that the
Hutchinson appellants have acquired a prescriptive title-by possession sinceC.J. 1872. This might be an arguable point if an issue on it had beenraised. But there is no evidence or admission as to the period of theappellant’s possession; they expressly waived any claim by pre-scription when the issues were settled in the District Court, and theyought not to be allowed to set it up now. Their counsel contendedthat a claim by prescription cannot be waived. I have no doubt thatit can. When one party says that he does not rely on a claim byprescription, the other party adduces no evidence to rebut such aclaim andtherefore theCourt must treat theclaimas not proved.
And evenif it had notbeen waived, there isno evidence here to
I would dismiss the appeal with costs.
Wood Benton J.—
I concur. On the question of the construction of the will I havenothing to add. But I desire to say something as to the waiver of aclaim by prescription. Mr. Jayewardene contended that, althoughthere was an express waiver of any claim on this ground at the trial,it was not binding on him here, inasmuch as section 44 of the CivilProcedure Code enacts that “ if the cause of action arose beyond theperiod ordinarily allowed by any law for instituting the action, theplaint must show the ground on which such exemption is claimed.”This section, says Mr. Jayewardene, enacts substantive law, and itsprovisions cannot be waived (c/. Muttiah Chetty v. Maricar '). I donot .think that section 44 of the Civil Procedure Code—whether itsprovisions can or cannot be waived—has any application here. Itcontemplates cases in which the bare recital of the facts in theplaint suffices to disclose a primd facie bar by prescription. Inthe present case, as Mr. Jayewardene was constrained .to admit, itis only by taking together the plaint, the answer, and evidenceadduced for a totally different purpose at the trial that the possibleexistence of any such bar can be evolved. Section 44 does not applyto a case of that kind. There is nothing in that section, or in anyother law of which I am aware, to prevent a litigant from waivinga claim by prescription set up by himself.
Appeal dismissed. 1
1 (1907) 10 N. 1,. R. 206; 11 N. L. R. SO.
JUANIS APPUHAMY et al. v. JUAN SILVA et al