Kelaart v. Van Twest
SUPREME COURTISMAIL, J., RATWATTE. J., &
S. C. 67/80
D. C. MT. LAVINIA917/LOCTOBER 27, 1981 ANDNOVEMBER 16 AND 17, 1981
Last Will — Option to purchase — Abolition of Fideicommissa and Entails Act No. 20 of1972 — Executor — Trustee — S. 58 of the Trust Ordinance.
A Will must be construed as a whole and apparent contradictions must be reconciledif possible. If that cannot be done, then only will a later provision prevail. But the mainthing is to get at the intention of the testator from the whole Will and when that is •found on evidence satisfactory in kind and degree, to that we must $acrifi6e the inconsis-tent clause or words whether standing first or last.
From clause 8 of the Will it is clear that the testator desired that 'Ralston House'belonging to the estate should be sold by the Executor with consideration for the marketvalue at the time and for the best advantage to the beneficiaries. For this purpose thetitle to the preinises must necessarily vest in the Executor and cohtinue to remain in himtill he decides to exercise the powers given to him. Although the testator used the word'desire' in this clause, in the context it had the clear effect of a peremptory directionrather than a precatory wish.
Clause 8 indicated the testator's dominant intention and by sacrificing the inconsis-tent words in Clause 9 it is possible to reconcile it with the testator's intention. Clause 9could be given effect to as ancillary to clause 8. The plaintiff and defendant had electedto take "Ralston House" in terms of Clause 8 and the Executor had executed a deed ofconveyance No. 570 of 4.4.39 by which Ralston House was conveyed to the plaintiffand defendant. This deed which the Executor must be regarded as having executed astrustee under s. 58 of the Trust Ordinance, did not specify shares but would vest 2/3 ofRalston House in the plaintiff and 1/3 in the defendant as provided for in cl. 8 and sub-ject to the provisions of cl. 9 whereby the testator had provided that if the defendantdied without issue the house would become the absolute property of the plaintiff andher children. In view of this fideicommissum the testator had clearly given the plaintiffan option to purchase 1/3 share at any time she was .in a position to before the fideico-mmissum became operative and for that event valued the 1/3 at Rs. 10,000/-.
An option to buy is purely a personal right and it places no burden on the land.
A breach of such a right could give rise to an action for damages only but the land can-not be pursued in the hands of strangers. But in this case in view of the fideicommissumthe plaintiff and her children could have followed the property in the hands of a pur-chaser from the defendant if she died without issue.
The abolition of Fideicommissa and Entails Act No. 20 of 1972 came into operationon 12.5.1972. On this date by s. 4 of the Act the defendant became vested with abso-lute title to 1/3 share of the house and by s. 6 was granted the absolute power to disposeof her 1/3 share. Hence when plaintiff in 1974 tried to seek to enforce the right to buy.
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her right had become frustrated by operation of law as by then the defendant's title to1/3 share ceased to be referable to the title which devolved on her underand by virtueof the Last Will
Cases referred to:
11) Fan Eyre v. The Public Trustee (1944) 46 NLR 59.
(2) In Re Morkel's Will (1938) T.P. D. 432.
■ (3) Mends v. Meda 8 Others (1938) A.D. 259.
Ex Parte Estate Paley 1943 C.P.D. 181.
Sinno Appu v. Dingirihamy (1912) 15 NLR 259.
Appu v. Silva (1922) 24 NLR 428.
APPEAL from judgment of the Court of Appeal.
Eric Amerasinghe, S. A. A. L. with A. Sivagurunathan, Mrs. S. Kalyanasunderam. HiranJayawardena. J. P. Almeida and Miss D. Guniyangoda for defendant-appellant.
H. L. de Silva, S. A. A. L. with K. Shanmugalingam for plaintiff-respondent.
Cur. adv. vult.
VICTOR PERERA, J.
This is an action filed on the 10th October 1974 by the plaintiff-respondent seeking to enforce a provision in the Last Will of heradoptive father in which she alleges she had been given the optionor right to purchase an undivided 1/3 share of the house and pro-perty called 'Ralston House' from the defendant-appellant, ano-ther adopted daughter of the testator at and for the price ofRs. 10,000/- which according to her the testator had placed as.theprice to be paid for the said 1/3 share. The defendant-appellanthas resisted this claim on several grounds. She has denied that theclause which contains the alleged option does not in law give theplaintiff-respondent such a right. She further pleads that even ifsuch a right did exist by virtue of the provisions of the Abolitionof Fideicommissa and Entails Act No. 20 of 1972, the plaintiff-respondent had lost the alleged right which was contained in thesaid Last Will and Testament in view of the drastic change in thecharacter of the interests held by her as at the date of this action.
Admittedly the late Charles Alexander Marshall, a Proctor whohad practised at Avissawella, had died on the 21st February 1929leaving a Last Will No. 367 dated 4th August 1928 which wasduly admitted to probate in Testamentary Suit No. 4521/T of theDistrict Court of Colombo. According to the documentary andoral evidence led in the case, the testator left the following immo-vable properties only:—
Ke/aart v. Van Twest
lands at Debagama in Kegalla District,
the house and property called 'Ralston House' bearingassessment No. 473/48, later 276, Ridgeway Place, Wella-watte Road, Colombo.
By this Last Will he made a clear and specific device of the landsat Debagama, Kegalle, to his adopted daughter Beatrice, the plain-tiff-respondent, and Irene the defendant-appellant in the propor-tions of 2/3 and 1/3 shares respectively absolutely without anyconditions attached. But in regard to the only other immovableproperty, namely 'Ralston House,' he by clause 8 of the Willdesired that it be sold and directed that the proceeds of sale bepaid to the plaintiff-respondent and the defendant-appellant in theproportion of 1/3 share each and the remaining 1/3 share was tobe applied for the education, maintenance etc. of the children ofBeatrice, the plaintiff-respondent. By clause 9 he made furtherprovisions in regard tp this same 'Ralston House' apparentlyinconsistent with the provisions in clause 8. It is significant thatthe testator dealt with his lands in two different ways.
It is the construction, interpretation and implementation ofthe two clauses 8 and 9 in the said Will that have given rise to thiscontroversy which appears to have started only after the Abolitionof Fideicommissa and Entails Act. No. 20 of 1972 came into ope-ration.. It would appear from the pleadings in the case that theplaintiff-respondent and the defendant-appellant had right up tothat time accepted that each was entitled to the premises in theproportion of 2/3 and 1/3 on the basis of a Deed No. 570 dated4th April 1939 attested by P. D. A. Mack, Notary Public, bywhich the executor of the Last Will had purported to convey thesaid premises to them without specifying the shares but makingthe transfer "subject to the terms and conditions of clauses 8 and9 of the said Last Will and testament of the late Charles JamesAlexander."
In paragraph 9 of the plaint filed in this case, the plaintiff-respondent'specifically pleaded that she had in terms of clause 9of the said Last Will No. 367 of 4th August 1928 regularly paidwithout default Rs. 30/- per month to the defendant-appellant andhad paid all taxes and charges. The defendant-appellant in heranswer admitted the said averments. There has thus been anacquiescence of the title created by the execution of Deed No.570 in 1939.
In regard to the construction of clause 8, the Senior Attorneys-at-Law for the defendant-appellant and the plaintiff-respondent, at
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the argument before us agreed that taken by itself clause 8 was aclear, complete and specific legacy of the proceeds of the sale withan unambiguous direction in regard to the appropriation of theproceeds of sale. In fact, Senior Attorney-at-law for the plaintiff-respondent agreed that if the executor had carried out the direc-tion in clause 8 by the sale of the premises to a third party therewould have been no room for the controversy whether the pro-perty vested in the adopted daughters of the testator and the nece-ssity to examine the provisions in clause 9 would not have arisen.
Our Courts have in a series of judgments consistently laid downthe principles to be followed in construing Wills. It would be suffi-cient to refer only to the case of Fan Eyre v. The Public Trustee(46 NLR 59)<1) in which de Kretser, J. stated as follows at page61:-
"The Will must be construed as a whole and apparent con-tradictions must be reconciled, if possible. If that cannot be..done, then only will a later provision prevail. But the main thingis to get at the intention of the testator from the whole Will.If'authority be needed for this well-known proposition, I wouldrefer to Burrows on Interpretation of Documents, p. 71. Beale'sCardinal Rules of Legal Interpretation, p. 607, gives manyinteresting dicta, e.g. "the paramount rule is that before allthings we must look for the intention of the testator as we findit expressed and clearly implied in the general terms of the Will;and when we have found that on evidence satisfactory in kindand degree, to that we must sacrifice the inconsistent clause orwords whether standing first or last.”
This is precisely what I propose to do to reconcile if possiblethe apparent contradiction avoiding getting enmeshed in theplethora of various decisions of other Courts enumerated in greatdetail by the Court of Appeal.
Senior Attorney-at-law for the defendant-appellant contendedthat the dominant intention of the testator in regard to 'RalstonHouse' was contained in clause 8 and that clause 9 should be readas ancillary to clause 8 sacrificing the inconsistent words orphrases. Senior Attorney-at-law for the plaintiff-respondent,however, contended that clause 9 evinced the dominant intentionof the testator even though he frankly conceded, there was noclear expressed disposition of the said premises to either of theadopted children. Nevertheless, he agreed that for the purpose ofclause 8 the premises would vest in the Executor to enable him tocarry out the directions of the testator. If that be so at the date of
Kelaart v. Van Twest
the death of the testator, the property could not possibly havevested simultaneously in both the Executor as well as in the adop-ted daughters.
The provisions in regard to 'Ralston House' contained in theLast Will and Testament read as follows:—
"Clause 8. I also desire that my home known as 'RalstonHouse' bearing assessment No. 473/48 and now 276 RidgewayPlace, Wellawatte Road, Colombo, be sold having considerationto the market value at the time and to the best advantage andthe proceeds thereof be allotted as follows: One third (1/3)share to Beatrice Emaline Murray Marshall nee Van Twest, OneThird (1/3) share to Irene Patricia Marshall nee Kelaart and theremaining 1/3 share for the education and maintenance etc. ofmy adopted daughter Beatrice Evelene Marshall nee Van Twest."
Clause 9. My daughter Beatrice Emaline Murray Marshallnee Van Twest shall have the right to occupy the house knownas 'Ralston House' as long as she pleases so to do, paying all thetaxes and other charges etc. in respect thereof and a sum equi-valent to rupees Thirty (Rs. 30/-) a month to my adopteddaughter Irene Patricia Murray Marshall nee Kelaart as rent forthe use of her undivided one third (1/3) share of the saidbungalow until such time as she is in a position to purchase thesaid one third share which I value at rupees Ten Thousand(Rs. 10,000/-). If, however, the said Irene Patricia MurrayMarshall nee Kelaart shall die without issue then in that case thepayment of rupees thirty (Rs. 30/-) a month shall cease and thesaid one third (1/3) share shall become the absolute property ofmy adopted daughter Emaline Murray Marshall nee Van Twestand her children."
On an examination of clause 8 it is clear that the testator desi-red that 'Ralston House' should be sold by the Executor. Thespecific legacies in respect of the proceeds of sale are clear andunambiguous. There was no discretion given to the Executor inregard to the distribution or appropriation of the proceeds of sale.The only discretion which the Executor was given was the consi-deration of the market value at the time and the best advantage,which necessarily meant the best advantage to the beneficiaries. AsI understand this clause it expresses a clear and unequivocalintention precisely worded in regard to sale and appropriation ofthe procceeds. For that purpose the title to the premises mustnecessarily vest in the Executor to carry out this exercise and willcontinue to -remain in him till he decides to exercise the powersgiven to him.
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It was contended that the word used, namely 'desire', in clause8 was a mere suggestion or recommendation to the executor and-could not be treated as a peremptory or mandatory direction tothe executor. The testator had used the words "will and desire" inclause 2, in clause 4, in clause 10 and in clause 13. It was thereforecontended that the use of the word "desire" only, in clause 8did not have the effect of the more forceful words "will anddesire." Senior Attorney-at-law for the plaintiff-respondent citedseveral cases from the South African Law Reports: In Re Morkel'sWill (1938 Transvaal Provincial Division, p. 432)12) Mende v.Mende & others (1938 Appellate Division, p. 259)(3) where theword "desire" had been used by testators. In those cases the wordhad been used to express a desire that something be done if in theopinion of persons previously vested with an absolute discretionshould think it advisable to be done. The Courts held that in suchcases the expression of a desire was precatory only and not pe-remptory. The situations that were considered in those cases werenot analogous to the position in this case.
In the present case by the expressed desire that the premisesbe sold vests in the executor and he is not left with a discretionwhether to sell or not according to his desire, and therefore theword in this context has the clear effect of a peremptory direc-tion.
It was next contended that even though in clause 9 there wasno expressed intention or direction that these premises do vest inthe two adopted daughters or anyone of them, there were wordsor phrases used which amounted to an implied device of an undivi-ded 1/3 share to Irene, the defendant-appellant. The words orphrases referred to in clause 9 are: "as rent for the use of herundivided one third (1/3) share of the said bungalow," "until suchtime as she is in a position to purchase the said one third share,"the "said one third (1/3) share shall become the absolute pro-perty." There could be no doubt that the testator appeared tohave contemplated certain situations such as Beatrice's continuedoccupation of the bungalow till the sale in view of his directionthat it be sold and of Irene, the defendant-appellant, dying with-out issue. These are matters that the testator did seem to havegiven some thought to after making clear his intention that thepremises be sold in clause 8. The question that arises is whetherthese expressions amount to an implied device which could begiven effect to as his dominant intention or whether such animplied device could be given effect to as ancillary to the earlierdirection- to sell. The case of Ex Parte Estate Paley (1943 CapeDivision, p. 181)^ was cited in support of the contention that by
Kelaart v. Van Twest
necessary implication there could be such an implied device. Inthat case it was held that necessary implication meant a strongprobability of intention, that an intention contrary to that whichis imputed cannot be supposed. However, in the present case theprobability of the imputed intention must be gathered in conside-ration with all the provisions in the Will. If these words or expres-sions could be read and given effect to taking the.provisions ofclause 8 also into consideration then the probable intention of thetestator implied in clause 9 could be ascertained, reconciled andgiven practical effect to as far as possible.
The Court of Appeal had been called upon to construe the Willbut it had not given sufficient consideration to the intention ofthe testator so clearly expressed in clause 8 and to the impact ithad on the legal title to 'Ralston House.' Clause 8 had the effect ofvesting the legal title to the property on the Executor immediatelyon the death of the testator to enable him to carry out the trustimposed on him by the testator. The true wish of the testator wasthat the Executor should at the appropriate time and under suita-ble conditions obtain by sale the best value for the property forthe beneficiaries of these specific legacies. The words 'having con-sideration to the market at the time' is an indication of what thetestator had in mind, namely, that the best price should be obtai-ned. The words having consideration to the ‘best advantage' is amatter relative to the beneficiaries again. Thus if Beatrice, theplaintiff-respondent, realised that her advantage would be bestserved by her getting the maximum price by giving up residence,then she could have assisted the Executor to her benefit. TheCourt of Appeal instead of interpreting the Last Will to give effectto this intention, had embarked on an attempt to ascertain thedominant intention by ignoring clause 8 and concentrating onlyon the use of certain words or phrases contained in clause 9 notreconciling as far as possible the wishes not so clearly expressedwith the clearly expressed intention of the testator. Clause 9 doescontain certain unexpressed but implied wishes that could begathered from the words or phrases used therein, which indicatethat the testator having expressed his earlier intention and wishthat 'Ralston House' be sold for the best advantage of the samebeneficiaries, had given his mind to consequential situations. Hadthe Court of Appeal tried to expound, rather than conjecture thetestator's intention, .it would have come to a different findingfrom that of the District Court. In my view, it is reasonably possi-ble to interpret the words or phrases used in clause 9 in a mannerwhich best harmonises with the intention expressed in clause 8.having due regard to the context of the consideration of the
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consequential circumstances that would have come into the con-templation of the testator after giving a direction to sell the pro-perty. He as a practising Lawyer would have been well aware thatthere would have inevitably been a considerable delay between thedate of his death, the testamentary proceedings, obtaining ofprobate and the sale of the property by the Executor. He wasvery conscious of the fact that his adopted daughter Beatrice theplaintiff-respondent and her children were living in 'RalstonHouse' and according to clause 13 specifically mentioned that allher property was in that house and he proceeded to leave hismovable property therein to her. Having taken into considerationall these circumstances he secured her continued occupation ofthe house during the interim period that would lapse before thesale is completed. The words "as long as she pleases so to do"read in that context does not necessarily mean that she was to livethere during her lifetime. The testator had even contemplated thesituation that the plaintiff-respondent may decide to buy theproperty if she was in a position so to do. In that event, thetestator wished that the defendant-appellant should be paid a sum -which he fixed at Rs. 10,000/- which she could receive in lieu ofher 1/3 share of the sale proceeds. Having considered that theplaintiff-respondent had the advantage of occupying the entiretyof the Bungalow till a sale was effected, he provided for thedefendant-appellant to receive a sum of Rs. 30/- a month, thoughneither of them had any title to the property but only a vestedright in the proceeds of sale in equal shares. The testator in clauses3, 4 and 6 provided for the devolution of the interests of Irene,the defendant-appellant, on her dying without issue. Similarly inclause 9 he contemplated that eventually, for reasons best knownto him, by providing that on herdeath without issue/her interestswould devolve on the plaintiff-respondent and her children. Con-sidered in this way, it is possible by sacrificing the inconsistentwords in clause 9 to reconcile the testator's implied intentionin a manner warranted by the immediate context or generalscheme the testator had in mind. Thus accepting that clause 8indicated his dominant intention, clause 9 could be given effect toas ancillary to it.
However, the necessity to ignore or bypass the provisions ofclause 8 in order to give effect to the implied intentions in clause 9does not arise in this case. The plaintiff-respondent and the defen-dant-appellant had elected to take the 'Ralston House' in terms ofclause 8. The Executor had in the exercise of the trust or powergiven to him executed after the lapse of 10 years from the date ofthe testator's death a conveyance No. 570 dated 4th April 1939attested by P. D. A. Mack, Notary Public, (P2) by which he had
Ke/aart v. Van Twest
purported to convey 'Ralston House' to Beatrice, the plaintiff-respondent and Irene, the defendant-appellant, without specifyingshares but expressly 'subject to the terms and conditions of the8th and. 9th clauses of the Last Will and Testament of Charles -James Alexander Marshall. This deed has been incorrectly referredto as an Executor's Conveyance, blit as any experienced conveyan– cer knows, this deed cannot fall into such a description. It is ratheras contended for the defendant-appellant and accepted on behalfof the plaintiff-respondent, a deed which the Executor as trusteecould have lawfully executed in terms of section 58 of the TrustOrdinance (Chap. 87, Vol III Revised Legislative Enactments)which provides as follows:—
"58. The beneficiary is entitled to have the intention of theauthor of the trust specifically executed to the extent of thebeneficiary's interest."
read along with
"Illustration (c) A transfers certain property to B anddirects him to sell or invest it for the benefit of C, who iscom-. petent to contract. C may elect to take the property in itsoriginal character."
Thus here we have a clear election by Beatrice the plaintiff-respondent and Irene the defendant-appellant to take the entiretyof 'Ralston House' instead of the sale proceeds by a sale of it tooutsiders. The parties have thereafter acted on the footing of thisconveyance giving effect to the intentions of the testator asimplied in clause 9. The plaintiff-respondent admittedly conti-nued in occupation till her death which occurred during the pen-dency of this action. She had paid the defendant-appellantRs. 30/- a month for the use and occupation up to a certain periodprior to the action.
In regard to the shares held by the parties in 'Ralston House'though the deed is silent, the plaintiff-respondent and the defen-dant-appellant held the shares in the proportions of two third.(2/3) and one third (1/3) respectively. Senior Attorney-at-Law forthe defendant-appellant contended that each held an undivided1/2 share as the deed was silent in regard to shares. I cannot agreewith that submission. The shares have to be on the basis of theprovisions in clause 8. It would be of interest to note that whenpersons obtain Crown Grants in respect of lands possessed bythem in certain given proportions, even though the Grants aresilent in regard to shares, our Courts have held that there is no irre-buttable presumption that the Grants were made in equal shares.(vide Sinno Appu v. Dingirihamy (15 NLR 259)(5) and Appu v.Silva (24 NLR 428)^6). The same principles will’apply to Deed
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570 of 1939 in favour of the parties to this dispute. In regard toBeatrice the plaintiff-respondent, she gets an undivided 2/3 shareas the maintenance and education of her children was the motiveof the specific devise in clause 8. It is settled law that the parentwho had maintained and educated the children could take thatshare meant for that purpose absolutely (Theobald on Wills, 12thEdn., p. 1256). The resultant position is that from 1939, theplaintiff-respondent and the defendant-appellant were the ownersof 'Ralston House' in the proportion of an undivided 2/3 shareand an undivided 1/3 share respectively subject to the provisionsof clause 9 in the said Last Will. The pleadings in this case amplysupport the fact that the parties accepted this position and actedon that basis.
It is not necessary to go into the questions of whether theplaintiff-respondent was given a right of habitatio or not becauseeven if she had such a right it has ceased on her death. But the •rights of Irene, the defendant-appellant, in regard to her undivi-ded 1/3 share of 'Ralston House' will have to be examined withreference to clause 9.
It was contended on behalf of the plaintiff-respondent that thephrase that Emaline the plaintiff-respondent shall pay Rs. 30/- amonth to Irene, the defendant-appellant, "until such time as she isin a position to purchase the said one third share which I value atRs. 10,000/-'' gave the plaintiff-respondent an option to purchasethe defendant-appellant's 1/3 share for Rs. 10,000/-. This claimwas resisted on the ground that this alleged option is vague inpoint of time and indefinite in al| other respects. But this phrasecould be considered in relation to the Fideicommissum imposedby the testator, in clause 9 by which the testator provided thatthe defendant-appellant's 1/3 share would if she died without issuebecome the absolute property of Beatrice the plaintiff-respondentand her children. In view of this Fideicommissum, the testator hadclearly given the plaintiff-respondent an option to purchase the1/3 share at any time when she was in a position to do so and inthat event valued the 1/3 share at Rs. 10,000/-. If she did notexercise the option on the death of Irene without issue the plain-tiff-respondent would have got that share. An option to buy ispurely a personal right and it placed no burden on the land. Abreach of such a right could give rise to an action for damages onlyand not to pursue the land in the hands of strangers. But in thiscase in view of the fideicommissum, she and her children couldhave followed it in the hands of a purchaser from the defendant-appellant if Irene died without issue. This option gave the plain-tifff-respondent the right to buy the fiduciary interests of thedefendant-appellant in 'Ralston House' for the sum of Rs. 10,000/-,the value which the testator himself placed on these fiduciary
Kelaart v. Van Twest
interests. The option cannot be enlarged to any other interests asthe testator gave this right, being fully aware that he had grantedthe defen'dant-appellant only such a fiduciary interest fetteredwith certain conditions.
This then was the position that existed up to the 12th May1972. The defendant-appellant was entitled to an undivided 1/3share of the house and property called 'Ralston House' subject toa fideicommissum that in the event of her dying without issue, theshare should devolve absolutely on the plaintiff-respondent andher children coupled with an option reserved to the plaintiff-respondent to buy the fiduciary interests in respect of that undivi-ded 1/3 share at any time before the fideicommissum becameoperative for Rs. 10,000/-. The Abolition of Fideicommissa andEntails Act No. 20 of 1972 came into operation on the 12th May1972. By Section 4 of this Act, the defendant-appellant becamevested with an absolute title to the said 1/3 share. By operation oflaw, she became vested with full and complete ownership and herfiduciary right or interest ceased to exist. By virtue of Section 6of this Act, she was granted the absolute.power to dispose of the1/3 share which she thus became vested with.
The title of the defendant-appellant to 1/3 share of 'RalstonHouse' ceased to be referable to the title which devolved on herunder and by virtue of the Last Will. This option if any which heldgood up to 1972, ceased to be effective not on the basis that itwas a limit or curtailment of her rights contemplated by this law,but by reason of the fundamental and drastic metamorphosiswhich came over the undivided one third (1/3) share held andowned by the defendant-appellant. Under these circumstanceswhen the plaintiff-respondent alerted herself in 1974 to seek toenforce the right she claimed, her right had been frustrated by theoperation of the law and the defendant-appellant had been clothedwith a new absolute title to the undivided one third share. Thedefendant-appellant did not retain the fiduciary interest whichalone the testator had in mind and valued at Rs. 10,000/- at thetime he granted the option.
• I therefore direct that the judgment and decree of the District"Court be set aside with costs. The appeal is allowed with costs inthe Court of Appeal and ih this Court.
ISMAIL, J. – I agree.
RATWATTE, J. – I agree.
Appeal allowed. .
KELAART v. VAN TWEST