116-NLR-NLR-V-39-JURY-v.-ATTORNEY-GENERAL-et-al.pdf
416
Jury v. Attorney-General.
•1937Present: Abrahams C.J. and Maartensz J.
JURY v. ATTORNEY-GENERAL et al.
121—D. C. Colombo, 3,541
Fidei commissum—Joint will—Gift of property to male descendants of devisees
—Meaning of expression—Cross objections by one respondent against
another—Civil Procedure Code, s. 772.
Where property was left by joint-will, after the death of the survivorto the nephews of the testator and “ after their death to be descended totheir male descendants ”, and the will further provided, after a prohibitionagainst alienation, that the said heirs and their descendants shall possessthe same under the bond of fidei commissum",—
Held, that the expression “ male descendants ” meant descendantsclaiming through males only.
Held further, that the limitation to male descendants was not restrictedto the immediate children of the original devisees.
It is not open to the respondent to an appeal to- file cross objections toa decree in favour of another respondent.
B
Y their joint last will dated February 28, 1868, Francisco Pulle andhis wife Lucia devised after the death of the survivor all their
landed property to Francisco’s deceased brothers’ two sons, Miguel JuryChristofEel and Francisco Jury Christoff el, and after their. “ death to be■descended to male descendants.” The will further declared “ that the said
property cannot be sold, mortgaged or otherwise alienated
and the said heirs and their descendants shall possess the same under thebond of fidei commissum … The will was proved in testamentary –
action No. 3,541 of the District Court of Colombo. In 1875 one of theproperties devised was acquired by the Crown. The compensation
Jury v. Attorney-General.
417
•— ■ ■■■"" — *i,~ '
amounting to Bs. 2,900 was deposited in the Loan Board on April 18,1888. Interest on this amount was drawn on September 16, 1890. Asno claim to the money or interest was made after that date, the principaland interest was credited to the revenue on December 13, 1900.
Miguel Jury Christoffel died leaving a son Christopher, who diedunmarried, and a daughter Anne, whose children are not represented inthe proceedings. The other devisee Francisco Jury died, leaving a sonAnthony, who was twice married. By his first marriage he had adaughter Flora,' the intervenient, who has a son. The petitioner isAnthony’s second wife.
The intervenient claimed that her son is entitled to sum of Rs. 2,900 asa male descendant of Anthony.
The petitioner alleged that male descendant meant male descendantin the male line and that the fidei commissum terminated by the death ofAnthony and Miguel without male issue.
H. V. Perera, K.C. (with him N. Nadarajah), for intervenient,appellant.—The fidei commissum was in favour of the male descendantsof the two devisees under the will, i.e., Miguel and Francisco Jury.Miguel’s son predeceased him who thus left an only daughter Anne, whodied leaving as heirs eight children who are not parties to these proceedings.Francisco Jury died leaving a son, Anthony, who was twice married. Bythe first marriage he had a daughter Flora, who has a son. The petitionerwas Anthony’s second wife. There was no issue of this marriage.[Maartensz J.—Are the sons of daughters male descendants ?]
Anthony died in 1935 and his widow, the petitioner, was the adminis-tratrix. The Attorney-General states, that the money in this case—theproceeds of compensation for the acquisition of property—irrevocablylapsed to revenue, but between the appellant and the respondent, theposition is whether there was a fidei commissum binding Anthony.
[Maartensz J.—Did the fidei commissum end on Anthony’s death, as heleft no son but only a daughter ?]
There is no doubt that male descendants are descendants who are males ;the son of a daughter of a man is a male descendant.
[Maartensz J.—Should the descent be through males ?]
It could then have been worded male descendants on the male line.[Abrahams C.J.—Suppose Miguel and Anthony left no sons—would theproperty lapse ?]
Irrespective of the line of descent, the children would succeed if theywere males.
[Abrahams C.J.—Supposing the daughter leaves a son, what happens ?]The son would get the property, but not so the daughter. Whensuccessive classes are to take the property, we go to the last holder. Thenearer class excludes the more remote.
A fidei commissum cannot be held in suspense till the descendants comeinto existence. If at the death of the testator, there is no proper fidei-’commissary, the fidei commissum lapses; but the intestate heirs enjoythe property and hold it in trust for the proper male heirs, in the inter-val between the death of the last holder and the accrual to a properdescendant.
418
Jury v. Attorney-General.
Here there is a real prohibition and members of that group will takeproperty according to closeness of relationship to last holder, and theprohibition will be, till members of the proper class are born.
4
[Abrahams C.J.—In English law, descent is through males and a maledescendant is one descended through a male.]
We do not have the same meaning here as in the English law.
Where land is devised by a testator, the devise should be construed in.the way least divergent from the legal manner. Here both femalesand males are to enjoy. The testator may have stated :—“ I do not wantfemales to enjoy my property In early days one could understandwhy property was not left to females as the latter on their marriagehanded over their property to the husband (or to the community ofproperty). Here the will was in 1868.
If the Attorney-General is to succeed in his objections against me andthe respondent, he should have filed an appeal. I ask for no relief againsthim! He says : 1,1 Long years ago, this money lapsed to revenue. Youcome in too late The acquisition was in 1875.
[Maartensz J.—Does the fidei commissum go beyond the immediategeneration ?]
Yes. There was a real and further prohibition imposed on thesons of the nephews, vide “ and the said heirs and their descendants shallthereafter hold in fidei commissum Note the words “ male descendants ”are not used. . Therefore Flora will come in as a fiduciary. Either sheis entitled to the property subject to a fidei commissum or her son should,get the property in its entirety. In any case, the fidei commissum has notcome to an end.
Grandsons would include sons of daughters. Here the words “ saiddescendants ” are not used. Thus the children and grandchildren of thenephews as substitutes form the first set. Anthony, being a male descend-ant, the property went to his heirs, whether descended from males orfemales. Here there is a distinction drawn between (i) male descendantsand later (ii) their descendants.
The descendants alive at the deaths of Migel and Francisco will notinherit in succession ; but the nearer would exclude the remote. A son’sson is excluded by the son.. In this case the immediate devisees and themale descendants are described as heirs. It may be noted that “ The said,heirs ”, including male descendants, “ and their descendants shall holdunder fidei commissum. ”
The exclusion of females ceases after the death of the heirs. AfterAnthony’s death, the limitation ceases. The words “ their descendants ,rcannot refer only to the descendants of Migel and Francisco. It neces-sarily implies that the class is now expanding.
The reason why he institutes male descendants as heirs is because hewishes to emphasize the exclusion of females. The words “ the properties….. shall wholly be left to their maintenance and support ”
indicate the life-interest of the male descendants. Further on the wordstheir descendants refer to a later stage of descendants, male and femalewithout limitation ; and these are indicated as beneficiaries..
Jury v. Attorney-General.
419
A son excludes a grandson, but a son does not exclude a son of apredeceased son. Here the fidei commissum has not come to an end asFlora's son is living. The petitioner’s claim should be disallowed as sheclaims as the widow on her husband’s intestacy ; for if there is a fideicommissum, this property does not go to the estate.
As regards the Attorney-General’s objection—vide section 772 of the CivilProcedure Code. That procedure is available to a respondent who hasgained a benefit by the decree, to one who claims a further benefit, andnot to one against whom an order was made. For should he succeed, hesucceeds not only against the appellant but als>o against the respondent.Vide Croos v. Fernando’, Doloswela Rubber and Tea Estate Company v.Swaris Appu'. He who desires to question the decree in favour of anotherrespondent should establish an identity of interest. The Attorney-General’s appeal should be against the party to whom something has beengiven. Here that person is the respondent. The interest accumulatedup to 1935 and payable to Anthony is payable to me who are Anthony'sheir. Vide section 18 of the Loan Board Ordinance, No. 4 of 1865. Byan order of Court, the money was sent to the Loan Board, and that moneyis subject to the directions of Court, section 20. It was only in 1911 thatAnthony had the right to the corpus. A third of a century has notelapsed since that date, and therefore no forfeiture applies.
N. Kumarasingham (with him K. Herat), for petitioner, respondent.—The cross-objections of the Attorney-General should not be entertainedas no appeal has been preferred by him from the order against him. Hecannot attack the order of the District Judge on the main points.. Thereis a special significance in the omission of male descendants in clause 2 ofthe will. Male descendants mean those descended in a male line. Inthe first place, the property here is left to the two sons of his brother.Vide Bernal v. Bernal *, where male descendants “ were held to meandescendants claiming through males only ”. Vide also Oddie v. Woodford *,where it was held that the designation “eldest male lineal descendant”was inapplicable to a male person claiming in part through a female.Vide also Trigona v. D’Amico ’, and Jarman on Wills, vol. II. (6th ed.).p. 1562.
Clause 1 read with clause 3 and clause 6 indicates that the fideicom-missary heirs are the male descendants of the two nephews. On failureof male descendants with the death of our husband, we (the petitioners)are entitled to one half of the estate and our step-daughter to one half.On our husband’s death, the property was released from the fidei com~missum, and therefore the succession would be as on an intestacy. (VideSteyn, p. 220.)
H. V. Perera, K.C., in reply.—Dealing with “ male descendants ”after the male descendants have held the property, the further fidei-commissaries are the descendants. Does the term “ heirs and descend-ants ” mean (1) only male descendants, or (2) only Miguel and Francisco,or (3) Miguel and Francisco and male descendants ? The expression“ male descendants ” is not a term of ours, but an English term. If a person
1 (1913) 1 Bal. Notes of Cases 84.* (1989) 31 N. L. R. 60
(1838) 3 Mytne <Ss Craig’s Reports 559.
(1821) 3 Mylne 3b Craig 584 at p. 605.
* 61 L. J. (p.c.) 8.
420
J[wry v. Attorney-General.
of male sex was intended, could not the testator have used “ male descend-ant”. Is “male” the qualification of a class or a reference to the sex?why should it not mean descendants who are males. Vide 10 HaresReport 389, “ nearest of kin ” in male line in preference to female line,was held not to be indicative of sex. It is not necessary to draw thedescent continuously from males, and therefore not in a line of males.“ Male descendant ” can be used (1) as a complex word, and as suchindicates the line, or manner of descent; or (2) maje as an adjective anddescendant as a noun. Here, it would mean descendants who are males,indicating the sex of the descendant and not the manner of descent.
J. E. M. Obeyesekere, C.C., for Attorney-General.—The intervenientdesires the Attorney-General to bring into Court further interest. Hisappeal against the order of the District Judge’s confining the decree tothe amount at the date 1900, and his prayer that the Attorney-Generaldo pay interest from 1900 up to .now, is relinquished. Therefore hisappeal should be dismissed with costs.
As regards the status of the Attorney-General in these proceedings, heis in every sense a party to the proceedings.
[Abrahams C.J.—If the order was against you, why did you notappeal ? This present appeal is not on your behalf.]
As regards the appellant’s objections—vide British Corporation v. UnitedShipping Board The Attorney-General, respondent, has the right totake cross-objections.
As regards, the objection of the petitioner-respondent—vide DoloswelaTea & Rubber Co. v. Swaris*. There is an identity of interest between/the intervenient and the petitioner. Money has been paid to revenue,and they claim repayment frpm the Crown. The objections taken againstthe appellant are available against the respondent also. They claim themoney which has been paid into revenue upon the same basis. Section772 is similar to Order 41', Rule 22, of the Indian Code, 1908.
H. V. Perera, K.C., in reply.—Identity of interests is equivalent to theidentity of interests that are claimed. My interests are directly opposedto those of petitioner-respondent. Here only part of the ground onwhich they rely are identical. That would not make the interestsidentical. Our contentions are identical, but not so our interests.
Where there is a three-cornered contest, there is always an identity ofcontentions. (Vide Paldane v. Horatala ‘).
Where there are two joint-debtors and one appeals while the other is arespondent—in fact an appellant, though on paper a respondent—onlythe latter can take cross-objections, section 772. Here the petitioner-respondent claims the whole of the property as administrator. I alsoclaim the whole of It for Flora’s son. Thus there is a conflict of interests.Therefore the Attorney-General can file cross-objections only against theappellant alone and that if he has got any relief. Thus the objections ofthe Attorney-General are not in order.
[Maartensz J.—So far as the money is concerned, there are the claimsagainst the Attorney-General, and thus the interests are identical.]
The District Judge held against the Attorney-General and against me.I made no claim as heir in Court, but as a fidei commissary.
* 36 N. L. R. 225.J 31 N. L. R. 63
‘ (1925) 3 Times of Ceylon Lav Rep. 58
MAARTENSZ J.—Jury v. Attorney-General.
Kumarasingham, in reply—Our husband was the "'last fideicommissary'heir under the will. We made an application on the ground of the lapseof the fidei commissum by our husband’s death. Flora applied that themoney be brought not to case No. 7,471 but to case No. 3,541. Her claimis in direct conflict with ours. The Attorney-General States that we arenot entitled to the money as administratrix in case No. 7,471. Is itstill subject to a fidei commissum ?
The Attorney-General has not appealed and after the appealable timewe could have compelled him to bring the money to Court. It is not opento him in this Court to question the validity of the order against him.
We claim the money in action No. 7,471, but the appellant in 3,541.We come by conflicting rights, though appellant is also an heir in 7,471.
[Maartensz J.—Here the Attorney-General claims relief against boththe appellant and the respondent on the same grounds.]
The Attorney-General was satisfied with the order against him in myfavour, and I was satisfied with the order. No appeal was preferred byhim.
It is case law that provides exception to section 772, in which thereis an identity of interest between the appellant and the respondent.
[Abrahams C.J.—Both of you want to take away the money from theAttorney-General. If he succeeds, he succeeds against both, similarly ifhe fails.]
The bases of our rights are different, though we may claim the same sumof money.
Cur. adv. vult.
November 30, 1937. Maartensz J.—
By their last joint will dated February 24, 1868, Anthony Jury Fran-cisco Pulle and his wife Lucia Fernand declared that after the death of thesurvivor, “ all the landed properties hereinafter mentioned as well asmovable and all the monies shall devolve on the testator’s deceasedbrother’s two sons, viz., Miguel Jury Christoffel Pulle and Francisco JuryChristoffel Pulle, and after their death to be descended to their maledescendants who are hereby nominate and institute as the heirs of them,the testator and testatrix, and they also declare that the landed propertieswhich are in the town of Colombo cannot be sold, mortgaged or otherwisealienated, nor the rents and profits and income of the said properties cannotbe seized, sold for any debts nor shall be attached to any writ or writs ofexecution nor the life-interest shall not be liable to be seized for any debts,but shall wholly be left to their maintenance and, support and the saidheirs and their descendants shall possess the same under the bond of fidei ■commissum, and the said heirs and their descendants shall not lease outthe said landed properties without any notarial document and such lesseeor lessees should be in possession of properties to the worth of upwards offifteen pounds sterling, also on condition that such lessee or lessees to payGovernment Assessment Tax and such lease shall not exceed for a periodof more than one or two years ”.
The landed property referred to is specified in the third clause of thewill. The third clause provided that each property “shall be held'andpossessed …. by the said Miguel 'Jury Christoffel Pulle and
422
MAARTENSZ J.—Jury v. Attorney-General
. Francisco Jury Christoff el Pulle immediately after the demise of the.testator, and after their death by their male descendants under the bondof. fidei commisswm
The will was proved in testamentary action No. 3,541 (old series) of theDistrict Court of Colombo.
hi 1875 one of the properties so devised—a house and grounds situatedat Front street in the Pettah—was acquired by the Crown.
The compensation amounting to Rs. 2,900 was, by an order made in caseNo. 3,541 on March 12, 1888, deposited with the Loan Board on April 18,1888. The interest on this amount up to the half year ending June 30,1890, was drawn on September 16, 1890. As no claim to the money orinterest was made after that date, the principal and interest was creditedto revenue on December 13, 1900.
This sum of mortey is claimed adversely to each other by the petitionerand the intervenient-appellant.
It- appears from the pedigree filed in this case .that Miguel Jury Chris-toffel Pulle died leaving a son Christopher, who died in 1880 unmarried,and a daughter Anne, who died leaving as heirs eight children. They are.not parties to these proceedings.
The other devisee, Francisco Jury, died leaving a son Anthony, whowas twice married. By his first marriage he had a daughter Flora whohas a son. The petitioner was Anthony’s second wife. There was hoissue of this marriage.
The intervenient claims that her son is entitled to the sum of Rs. 2,900as a male descendant of Anthony.- The petitioner alleges that “maledescendant ” means descendant in the male line and that the fidei ctrni-missum terminated by the death of Anthony and Miguel without maleissue.
The argument for the appellant was that her son was a male and adescendant of Francisco Jury and that he therefore answered to thedescription of a male descendant prescribed by the will.
The question, what is meant by the term “ male descendant ”, wasdecided in the case of Bernal v. Bernalwhere “ male descendants ” was“held to mean, according to the English law (and semble, according to• the Dutch law also), descendants claiming through males only ”.
Dealing with the argument that “male descendants” would include/ any male person who is a -descendant, the Lord Chancellor said : “The■gift, therefore, is (taking the particular case which has occurred) to his/ nephew Benjamin Bernal, and his male descendants ; and such the orderof August 15, 1837, declares to be the construction ; the law of Hollandpermitting this species of provision of families. It must be considered,for the purpose of ascertaining who are to take, in the nature of aninheritance; the qualification to take being derived from the parties’descent; and that qualification is being male descendants. The generalclass is descendants ; the qualification of 'the class is being male. Toentitle anyone to claim, he must show that he is one of the -favouredclass ; that is, one of the class of male descendants. A male descended froma female of the family, would undoubtedly answer the description, as hewould be a descendant and a male ; but he would not be one of the classof male descendants.
i (Z83S) 3 Mytnc <& Craig SS9-
423
MAARTENSZ J.—Jury v. Attorney-General.
“ Such would be the ordinary acceptation of the terms. In speakingof a man and his male descendants, as a class, no one would conceive the'son of a female descendant as included; and such' is the constructionwhich our law has put upon the words ; as “ issue male”, which is, in fact,the same thing as male descendants.
“ The case of Oddie v. Woodford appears to me to be a strong authorityfor the same purpose ; for although the word “ lineal ” was much reliedupon, the force of that word was to mark the class to which the party wasto belong, in contra-distinction to the particular description of theindividual. In no other sense could the term “ lineal ” be of any impor-tance, as the party must have been lineally descended, whether descendedthrough a male or a female; but considering the word “ lineal ” asindicating the class, and, therefore, as meaning a descendant of the maleline rather than a male descendant, the House of Lords held the grandsonof the testator’s second son (being the son of a daughter of the testator’ssecond son) not to be entitled. In this case, it is clear that the testatoris speaking of and describing a class; which brings it directly within, theprinciple of Oddie v. Woodford”.
On the principle laid down in this case I hold that the intervenient’sson is not a male descendant contemplated by the will.
It was also submitted by the appellant in the alternative that thelimitation to male descendants was restricted to the immediate childrenof the devisees. This submissiori was based on two passages of the,will.The first passage is as follows : “ And after their (devisees’) death to bedescended to their male descendants who are hereby nominated andinstituted as the heirs of them the testator and testatrix”. The otherpassage provides that the “said-heirs and their descendants shall possessthe same under the bond of fidei conmitiissurn".
It was argued that the word “ heirs ” in the latter passage meant thedevisees and their male descendants who were nominated heirs, and thewords “ their descendants ” meant the descendants of the heirs withoutlimitation to male descendants.
I am unable to accept this argument. It is in the highest degreeimprobable that the testators who intended to benefit the male descend-ants of the devisees would immediately thereafter limit the restriction tothe immediate children of the devisees. I am accordingly of opinionthat the words “ their descendants ” must mean the male descendants ofthe heirs. That the testators intended to limit the devolution of theproperty to male descendants is clearly borne out by the terms attachedto each of the properties described in the third clause ; that it should bepossessed solely by the devisees after the demise of the testator ($) andafter their death—that is, the devisees,—by their male descendants.
There are here no words to suggest that the limitation to “ males ” isrestricted to the children of the devisees.
I am accordingly of opinion that the iptervenient’s. appeal against theorder made by the District Judge in favour of the petitioner should bedismissed with costs.
39/32
424
MAARTENSZ J.—Jury v. Attorney-General.
The intervenient’s appeal against the order of the District Judgerestricting the interest to be brought into Court to the interest, whichaccrued up to the date the principal sum was credited to revenue, was notpressed. This part of the appeal is therefore also dismissed with costs.
The Attorney-General against whom the order was made that the sumof Bs. 2,900 and interest should be brought into Court did not appealfrom the order but filed objections to it under the provisions of section 772of the Civil Procedure Code. The petitioner and the appellant took thepreliminary objection that the Attorney-General should have filed aregular appeal and that it was not open to him to object to the order ofthe District Judge under the provisions of section 772 of the Code.
As we were not prepared to decide the preliminary objection withoutconsideration, we heard arguments on the merits of the objections as wellas on the preliminary objection.
I am of opinion after consideration that the preliminary objectiontaken by the petitioner-respondent must be upheld on the ground that onerespondent cannot file cross-objections to a decree in favour of anotherrespondent. (See Croos v. Fernando 1 and Noordeen v. Chandrasekere °.)
In the case of Paldano et al. v. Horatala et alS, the decree declared X (theplaintiff),- who had claimed the whole land, entitled to one-third of theland, A and B to one-third, and C and D to one-third. A and B appealedand X filed cross objections. It was held that these cross objections weregood as against A and B but not as against C and D. The distinctionmade in this case is of no avail to the Attorney-General as the order madeagainst him in favour of the petitioner and appellant is not separable.
Jayewardene J. said in that case that a respondent cannot be heard byway of cross-objection on appeal against another respondent, and addedthat the rule is subject to certain exceptions, but did not refer to them.
Drieberg J. referred to this dictum in the case of Doloswela Rubber andTea Estate Company v. Swaris Appu*, and said it recognized the possibilityof certain exceptions, and added that “ an exception may be allowed incases where there is an identity of interests between the appellant andthe respondent against whom the statement of objections is directed ”.
It was accordingly urged on behalf of the Attorney-General that it wasopen to him to file objections under section 772 against both the appellantand the petitioner respondent as their interests were, as between them andthe Attorney-General, identical.
It was argued that although the petitioner and the respondent claimedthe sum in dispute adversely to each other yet they were both interestedin the money being brought into Court. That appears to be the case.But I am not prepared to assent to the dictum of Drieberg J., which wasoibiter to the question to be decided by him. He cited no authority insupport of it nor were we referred to any by Counsel for the Attorney-General.
I am of opinion that the proviso to section 772, requiring the respondentto give the appellant or his Proctor seven days’ notice in writing of hisobjections clearly limits the rights of the respondent under section 772to objections which affect the appellant only. This opinion is supported 1
1 (1913) 1 Bat. Notes of Cases 84.* {1925) 3 Times of Ceylon Law Rep. 58.
* (1913) 1 Wijewardene's Reports 24.4 {1929) 31 N. L. R. 60-
MAARTENSZ J.—Jury v. Attorney-General.
425
by the decisions which I have cited and by the case ot'Timmayya Made. V.Lakshamana Bhaktal, where the Court discussed the effect of sections of^ the Indian Codes corresponding to section 772. It would appear from thiscase that it was repeatedly held by the High Court of Calcutta that cross-objections under section 348, the corresponding section of the Code of1859, were restricted to matters in contention between the objectingrespondent and the appellant. In the Code of 1877 the correspondingsection required seven days’ notice of the objections to be given to theappellant and his pleader, and the Court observed that if it had beenallowed to stand it might possibly have formed a good ground for adoptingthe narrower construction of the section.
This clause was repealed by the Act of 1879 which substituted thefollowing proviso to the corresponding section 561': “ Provided he has_ filed a notice of such objection not less than seven days before the datefixed for the hearing of the appeal ”. This clause was as far as I can seethe clause in force when the question was argued whether a respondentcould take exception to a part of a decree in favour of another respondentand it was held that he could. The facts were as follows : A obtained adecree for possession of a land against B and for costs against B, C, D andothers, defendants in the suit. C and other defendants appealed againstthis decree so far as it awarded costs aganist them, making A and Drespondents to the appeal. D under section 561 objected to that part of thedecree which awarded possession of. the* land to A. It was held inappeal, reviewing the judgment of the subordinate judge, that it wasopen to D, although improperly made a party to the appeal by C againstA, to take objection to the rest of the decree.
In view of the observations in the judgment I am of opinion that thedecision of the subordinate judge would have been affirmed if the clause ofthe Code of 1877 had not been repealed.
Since this decision a new Code was enacted which came into force in1882. Section 561 of this Act provides for cross-objections being filed inCourt by a respondent within one month from the service of the notice ofthe day fixed for hearing of the appeal or within such time as the AppellateCourt may see fit to. allow.
Section 48 of the Act VII of 1888 provided that “ unless the respondentfiles with the objections a written acknowledgment from the appellant orhis pleader of having received a copy thereof the Appellate Court shallcause such a copy to be served as soon as may be after the filing ofobjections on the appellant or his pleader at the expense of the respond-ent ”. This amendment, in my judgment, had the effect of limitingthe objections to such as would not affect the other respondents.
The identity of interests mentioned by Drieberg J. in the case I havereferred to possibly refers to appeals under the provisions of section 760of the Civil Procedure Code which enacts as follows :“ Where there are
more plaintiffs or more defendants than one in an action, and the decreeappealed against proceeds on any ground common to all the plaintiffs orto all the defendants, any one of the plaintiffs or of the defendants mayappeal against the whole decree, and thereupon the Appellate Court mayreverse or modify the decree in favour of all the plaintiffs or defendantsyas the case may be
1 (1SS3) I. L. R. 7 Mad. 215.
426
Weerasinghe v. Peter.
I am of opinion that even in such a case a respondent cannot by filingobjections under section 772 of the Code deprive a party who has notappealed of what he has obtained under the decree. I rest my opinion onthe provision that notice of the objection must be given to the appellantand that there is no provision by which the respondent filing crossobjections can give notice to a co-respondent.
The exception suggested by Drieberg J. would, if adopted, mean, totake a particular case, that if A, B, and C bring an action and partlysucceed on a ground common to all three, and one of them appeals, adefendant, by filing a cross-objection, may deprive the plaintiffs whohave not appealed of the benefit of the decree, although they were notentitled to notice of the cross-objection. The fact that the appeal by Amight be of benefit to B and C does not in my opinion deprive themof the right to notice of an objection which, if given effect to, wouldprejudice them.
If the intention of the legislature was that cross-objections might befiled under section 772 either against the appellant or the other respond-ents I have no doubt some provision would have been made for notice ofsuch objection being given to the respondents.
The fact that the Attorney-General has in fact given notice of hisobjections to the petitioner-respondent does not in my judgment enlargethe scope of the section.
I accordingly uphold the preliminary objection of the petitioner-respondent to the cross-objections being entertained against him. As theorder against which objections were filed is not separable the appellantcannot be deprived of the advantage,' if any, she has gained by the order.
The objection to the order must therefore be dismissed. I would makeno-order as to costs- as I do not think either the petitioner or the appellanthas incurred any additional costs as a result of the objections being filed.
Abrahams C.J.—I agree.