SANGARAMORTHY et al. v. CANDAPPA et al

092-NLR-NLR-V-33-SANGARAMORTHY-et-al.-v.-CANDAPPA-et-al.pdf


Sangaramorthy v. Candappa.
861
1932Present: Garvin S.P.J. and Lyall Grant J.SANGARAMORTHY et al. v. CANDAPPA et al.
429-433— D. C. Colombo, 20,984.
Mutual will—Spouses married in community of property—Massing of whole
estate—Life interest of survivor—Gifts to children—Vesting of inheritance
—Dominium in survivor—Sale ofpropertyagainstsurvivorfordefault
m payment ofrates—Interestof defaulter—Municipal Councils
Ordinance, No. 17 of 1865, ss. 88 and 85.
A certificate ofsaleissued undersection 85of the MunicipalCouncils
Ordinance, No. 17 of 1865, passedto thepurchaserat thesalenothing
more than the title of the defaulter.
What the Council isauthorized toseizeandsell is the property of the
person who is “ the proprietor ” for the time being.
Where under a mutual will of spouses, married in community ofproperty, eachspouse,with the consentof theother, dealt withthe
common estate, subject to the lifeinterestof thesurvivor,thesurvivor
remains vested with the dominium to half, the common estate, notwith-standing the factthatfirst dying spousehas,with his consent,executed
a will by which he bequeathed the whole.
"When the survivor takes some benefit in the half share of the firstdying spouse, hi6rightto revoke • thewillso far as it relates tohis half
6Hare is at an end and he is bound to permit the will to take effect.
The legatees them become vested with the corresponding right tocompel the survivor toobservethe willand itstermsbyspecificper-
formance or other appropriate action.
But the actof thesurvivorin takingbenefit under thewill doesnot
of itself passthe dominium inhis half'share tothosetowhom ithas
been bequeathed.
T
HIS was a partition action in which the plaintiffs asked for adeclaration that they and certain of the defendants were entitled
to the entirety of the corpus in specified shares, subject to a fidei commissumcreated by the joint will, dated July 31, 1860, of one Candappa and his.wife, Lucia. The testator died shortly after the making of the will andprobate was granted to Lucia on June 16, 1862. In 1875 these premiseswere seized and sold for non-payment of rates. A certificate datedMarch 5, 1875, in the prescribed form, under section 85 of the MunicipalCouncils Ordinance, No. 17 of 1865, was issued to Don Jusey, the purchaser.The added defendants intervened and claimed to be entitled in variousinterests in severalty which exhausted the whole corpus, alleging thattheir respective titles flowed from Don Jusey. The learned DistrictJudge held that plaintiff and certain of the defendants were entitledtogether to half the land, and certain of the added defendants to the otherhalf. From this judgment the added defendants entered appealsNos. 432, 433, 430, 429; and plaintiffs appeal, No. 431. All the appealswere argued together.
Croos Da Brera, for seventh added defendant, appellant in No. 429, andfor respondent in all others.—In an action inw1877 the widow Lucia suedAmaris for declaration of title. Lucia represented her husband's estateand Amaris was our predecessor. The action was dismissed and the
Sanyaramcrthy c. Candappa.
decree, is, therefore, res judicata. The property was sold for non-paymentof taxes by the estate. The certificate of sale therefore#gave absolutetitle to the purchaser and the fidei commissutn was wiped out. The*rates were a charge on the property, and under the Municipal Councils-Ordinance, No. 17 of 1865, what was sold was the property itself and not theinterest of any particular person. The land has been dividedly possessed,for over 30 years and the parties have made considerable improvements.A partition action is therefore not appropriate. Plaintiffs’ properremedy is an action rei vindicatio in resp'ect of each block. The presentaction is an abuse of the Partition Ordinance and has saddled the partieswith unnecessary and heavy costs.
De Zoijsa, K.C. (with him Rajapakse), for sixth added defendant,,appellant in No. 430 and respondent in all others.—Certificate of Munici-pality under Ordinance No. 17 of 1865 vested absolute title in thepurchaser, Don Jusey. Therefore the added defendants are entitled to*the entirety of the corpus.
Gratiaen, for fourth defendant, appellant in No. 433 and respondent in*all others.—“ Property of the proprietor of the premises " means thevery premises themselves. “ Property M has no reference to title. WhatDon Jusey bought was the title of the-estate of Candappa. “ Proprietor ”has the same meaning as 11 owner *' in Ordinance No. 17 of 1865.
E. G. P. Jayatileke (with him Navaratnam), for third added defendant,,appellant in No. 432 and respondent in all others.
H. V. Perera (with .him N. E. Weerasooria and Nadarajcah), for plaintiff,,appellant in No. 431 and respondent in all others.—As,to res judicata,.,fideicommissary is not a privy of the fiduciary. . Therefore the judgmentin the previous action by Lucia does not bind the fideicommissaries.Usoof v; Rahimath et al. Moreover, before the Civil Procedure Code,,if there was no adjudication on the merits, the plea of res judicata would,not avail.
The certificate of sale issued by the Municipal. Council under section 85of Ordinance No. 17 of 1865 passes to the purchaser nothing more than,the title of the defaulter.
Where two persons jointly make a joint disposition, as here, each person-purporting to deal with the whole of the property, subject to a usufructto the survivor, joint will does not operate twice. No dominium passesto survivor.who has only a usufruct. Each gives the whole, and on thedeath of the first dying, nothing is left for the survivor to give. Rightsof Lucia in her property were taken away before her death. Giving ofproperty to children takes effect on death of the first dying as a givingof the entire estate of both spouses and the instrument takes effect if thasurvivor takes a benefit on death of the first dying (Lee, Roman-Dutch haw,p. 353). In Rosenberg's case 1911 A. D. 69 each party gave away his or. her particular share.
Counsel cited Oosthuyser v. Oosthuyser.2 Samaradhcakara v. de Saram sis directly in point-. Dominium in whole property vests in legatees.,
subject to a life interest in favour of the survivor.
1 20 N. L. R. 225 at 240.
* (1911) 24 N. L. R. 322.
*Buck. 51.
GARVIN S.P.J.—Sangaramorthy e. Candappa.
363
Croon Da Brera, in reply.—There is no massing or consolidation of■ estates. In reality there are two separate wills in one document. Thepresumption is that each party intended to deal with his or her half•share. There has been on adiation as required by law (3 Nathan 1845:Fernando v. Perera '.) The will of the widow spoke only on her death■and has not been admitted to probate (section 8 of Ordinance No. 7of 1840; Dias v. Livera2 ; Charles Hamy v. Jane Nona 3 : Pedris r.Femanndo 4 ; Kapumla v. Manikhamy ; 14 Ilalsbunj 100:(tSUi)
Prehate 7). Until her death the dominium vested in the widow. A.purchaser from her therefore got good title (Geddes v. Apothecaries Co.*;Mendis v. Mohideen T; Rabot v. Neina Marihar8; Rosenberg case (supra);Receiver of Revenue, Pretoria v. Hanche 11; Walter Pereira 40~>). The pro-bate of the will 1ms not been registered and the fdei commixvum istherefore defeated. The widow’s .title to half the estate was not takenaway from her. The husband had no right to deal with it. not evenwith consent (section 1 of Ordinance No. 21 of 1844).
Gratiaen, in reply.—Where ultimate beneficiaries- under a mutual will•obtain dominium on the death of both, presumption is that each testatordeals with his or her half share (Juta Leading Cases II., p. 114).
Dominium remains in the survivor (Maas I. (1920) 150). There canhe no contractual relationship between a husband and wife married incommunity of such a nature as to give the husband with the consent ofthe wife the right purport to convey by testament all her property.
No real rights are conveyed to the legatees, until some act of adiation isperformed by the survivor (Dennyssen v. Mostert I0).
Rajapakse, in reply, cited Juta Leading Cases II., .120-121. Unlessit is clear that a mutual will is a joint will, it must be read as two wills,‘each spouse dealing with his or her share of the property (Juta LeadingCases II., 107-11-5).
H. V. Perera, in reply.—All the authorities are agreed that when oneby will disposes of another’s property with his consent, there is an effectivedisposition. It necessarily means that title passes to the devisee.
.March 2o, 1932. Garvin S.P.J.—
This was a proceeding under the Partition Ordinance. The land inrespect of which the action was brought is depicted in the plan No. 1,218dated March 7, 1928, made by S. Ratnam, Licensed. Surveyor, arid filedof record, marked letter Z I. ’ The plaintiffs claimed a declaration thatthey and certain of the defendants are entitled to the entire corpus incertain specified shares, subject to a fidei commissum, which theycontend was created by the will of Francisco Nonis Candappa and his.wife Lucia. The added defendants intervened in the action and claimingto be entitled to various interests in severalty which exhausted the wholecorpus, prayed that the plaintiffs’ action be dismissed.
1 (1914) 18 N. L. R. ISO.6 (1901) 2 Browne 10.
(1879) L. R. S App. .0. 123.7 (1902) 5 N. L. R. 317.
3 (1912) 15 N. L. R. 481.8 (1913) 16 N. L. R. 99.
* (1919) 21 N. L. R. 91.8 (1915) A. D. 76.
5 (1919) 7 C. W. R. 101.10 (1872) 4 P. C. 236.
364
GARVIN S.P.J.—Sangaramorthy e. Candappa.
The learned District Judge held that the plaintiffs and certain of thedefendants were- entitled together to one-half of the land and certain ofthe added defendants to the other half, and on this basis entered a decreedeclaring those whom he held to be entitled to shares entitled to thewhole land in certain specific proportions.
He has also declared certain of the added defendants entitled byadverse possession to the fiduciary interests of certain of those who wouldbut for such prescriptive possession have been entitled to the enjoymentof certain fractional interests in the corpus for life.
From this judgment five appeals have been entered. The appealsnumbered 432, 433, 430, and 439 were entered by the third, fourth, sixth,and seventh added defendants respectively and appeal No. 431 by theplaintiffs.
The contest is between the plaintiffs and defendants on the one sideand the added defendants on the other. But all the contestants tracetheir respective titles back to Francisco Nonis Candappa and his wifeLucia, who were married in community of property, and were admittedlyonce' entitled to the entirety of the land to which this action relates.On July 31, 1860; these spouses made a joint last will. The testatordied shortly after and, on June 16, 1862, probate was granted to thesurviving testatrix as executrix of the last will. In the inventory of theestate of the deceased the executrix showed “ three adjoining pieces ofground in Contanchina ”; it was admitted at the hearing of this appealthat this is the land with which we are concerned in this action. Jt- is to benoted that she entered the whole of this land' and not a half share in theinventory and, since she has also entered the whole of several other landsand not half shares of them, it is evident, that she administered the wholeof tbeir common estate and treated the whole as affected by the dispositionon the death of her husband.
By this last will the spouses reserved certain rights in the entirety of thecommon property to the survivor and made various bequests including abequest of the “ three allotment of land in Cotanchina ” to their sevenchildren. All these bequests were affected by a clause in the will whichthe plaintiffs contend created a fidei commissum operating from generationto generation in terms of which they alleged that the interests they claimhave now vested in them, still burdened with the same fidei commissum.
’l’he added defendants denied that the premises were burdened withsuch a fidei commissum. The learned District Judge upheld the plaintiffs'contention; and in none of the argument addressed to us on behalf ofthe added defendants-appellants were we invited to hold that he waswrong. It is sufficient, therefore, to say' that clause 11 of the last willclearly and unambiguously impresses every disposition of landed propertymade by the will with a fidei commissum from generation to generationwhich, under our law, binds the land for four generations. The plaintiffswould, therefore, seem to have established the various steps in thedevolution of title from the admitted original owners io them and thedefendants.
In the year 1875, about 13 or 14 years after the death of FranciscoCandappa, these premises were seized and sold for non-payment of rates,and were purchased at the sale by Don Jusey, in whose favour a certificate,
GAEVIN S.P.J.—Santjaramorlhy v. Candvppa.y<»5
bearing No. 3 and dated March 5, 1875, was issued. The respectivetitles upon which the different added defendants claim flow from DonJusey and they contend that die certificate issued to him as the purchaserat the sale for non-payment of rates gave him an absolute and indefeasibletitle to these premises, freed from the fid-e.t cnmmissum created by thelast will of Francisco Candappa and his wife. The matter under con-sideration is governed by the Municipal Councils Ordinance, No. 17 of1865. Section 85 of that Ordinance authorizes the Chairman to issueto a purchaser at a s:de for non-payment a certificate in a prescribedform which, it says, “ shall be sufficient to vest the property in thepurchaser any law or custom to the contrary notwithstanding
The question for consideration is whether the language of this sectionof itself or »ead in the light of the other sections relating to the levying'and recovery of rates justifies the contention that whenever premises inrespect of which rates are due, are sold a good and conclusive title freefrom encumbrances and from every charge or burden in the nature offidei commissum vests in the purchaser upon the issue of a certificate underthe hand of the Chairman. Section 53 authorizes the Council to makeand Assess upon the annual value of all lands, tenements, houses, andbuildings, a rate which is not to exceed the cost of maintenance of thepolice and which is not to be less than 2 shillings in respect of any house,building, land, or tenement. The Council is further authorized by section'54 to levy lighting and water rates, such rates to be assessed as prescribedin the Ordinance or by by-law to be made thereunder. Section 71imposes the liability to pay the lighting and water rates on the occupier bywhom the rate assessed under section 53 is to be paid is not explicitlystated and must be gathered from the provisions relating to the recoveryof rates and taxes. Section 82, the material section, is as follows: —
‘ ‘ If the amount of any rate assessed or tax imposed under this.Ordinance shall not be paid into the office of the treasurer of theMunicipality within such time as the Council shall direct, a warrantsigned by the Chairman shall be issued to some' collector or otherofficer of the Municipality named therein, directing him to levy the-same, and the cost of recovery, by seizure and sale of all and singularthe property of the proprietor, or of any joint proprietor, of the premises'on account of which such rate or tax is due, and of all movable‘ property, to whomsoever the same may belong, which may be found,in or upon any such premises; and the said warrant shall be in the1form marked D in the schedule hereunto annexed.”
The opening words of the section indicate that the method of recoveryis applicable to rates as well as taxes though the re.st of the section wouldseem to indicate that Its provisions are only applicable to rates. It is-clear at all events that rates may be recovered by the seizure and sale ofthe ” property of the proprietor or any joint proprietor of the premises onaccount of which such rate or tax is due, and of all movable property towhomsoever the same may belong which,, may b'e found in or upon anysuch premises ”.
The concluding words relating to movable property must presumablybe read subject to the provisions of section 64 which prohibit the sale ofmovables found upon such premises for the recovery of any arrears o£
366
GARVIN S.P.J.—Sangaramorthy v. Candappa.
taxes beyond two quarters, unless such movable property shall belong tothe owner or joint owner of the said premises or to any person who shallhave been the occupier thereof at the time when such arrears became due.Although the Ordinance places the liability for payment of the lightingand water rate on the occupier, the Council is empowered in the event ofnon-payment to seize and sell the property both movable and immovableof the proprietor of the premises in respect of which the rate is due.
It would seem therefore that the ultimate liability for the payment ofrates rests on the “ proprietor ” of the premises in respect of which therate is payable anti that what the Council may seize and sell is the movableand immovable property of the "proprietor*’ and the movables foundon the premises, to whomsoever it may belong, up to a maximum amountnot exceeding two quarters’ arrears.'
On behalf of .the added defendants-appellants it was urged the‘‘ proprietor ” meant “ owner ” as defined in section 3 of the Ordinance’,and in support of this contention the case of Barley Butler v. JohnFernando 1 was cited. * After a consideration of the correspondingprovisions of the Municipal Councils Ordinance, No. 7 of 1887, which aresubstantially the same as those of the Ordinance No. 17 of 1865,Hutchinson C.J. held .that the person liable to pay the rates was the -“ proprietor ” of the premises during the period in respect of which therates were due and expressed the opinion that the word “ proprietor ”meant the same thing as “ owner Now the term “ owner ” as definedin both these Ordinances is a term of wide significance. It means" the person for the time being receiving the rent of the land or premisesin connection with which the word is used, whether on his own accountor as agent or trustee for any other person, or who would receive the sameif such land or premises were let jto a tenant There are indications inthe Ordinance that the term “ proprietor ” in section 83 was not perhapsintended to mean anything, other than a person who would come withinthe definition of “ owner ”, in particular section 64 which prohibits .theseizure of movables for. arrears in excess of two quarters’ rates “ unlesssuch movable property shall belong to the owner or joint owner of thesaid house premises. … ” It may be that, inasmuch as these are
rates assessed on the annual value, it was .the intention of the legislaturethat they should be made recoverable by seizure and sale of the propertyof the person who for the time being received the rents and profits orwould have received the same if they had been let to a tenant, .though it isalso possible that the change of phraseology was deliberate and madewith the intention of limiting the liability to the person or persons entitled,during the period in respect of which the rates were due, to the enjoymentof the rents of the premises. But whatever meaning be attached to theword proprietor, it is quite clear that what the Council is authorized toseize and sell is the property of the person who is the “'proprietor ” forthe time being. It is evident that in the Court below- it was the casefor the added defendants that Lucia as the person for the time being inenjoyment of the rents of the premises was the “ proprietor ” withinthe meaning of the section, and this was the impression left on my mindas their respective cases were presented in appeal. At a later stage,
1 2 Leader Law Rep. p. 1.
GARVIN S.P.J.—Sangaramorthy v. Candpppa-
867
however, as counsel for the plaintiffs-appellants developed his argumentthat Lucia had only a usufruct in the whole we were informed that it wasdenied that she had adiated the inheritance and on being specifically askedthe question we were informed that counsel did not admit that she wasthe person who for the time being took the rents of the premises. At alater stage, however, counsel for the fourth added, defendant drew ourattention to certain entries at pages 182-3 of the record and accepted theposition that it was Lucia who collected the rents. This was acquiescedin by counsel for the seventh added defendant. The ciunsel for thesixth added defendant alone expressed his inability to make anyadmission.
There is, however, ample indication both in the position taken up bythe other added defendants and in the whole course of the proceedingsin the Court below that all the added defendants proceeded upon the’footing that Lucia was the “ proprietor ” for the .time being and there isample evidence in her plaint in ease No. 72,428 marked 4 AD 1 that shewas.
If Lucia was not the “ proprietor ” there is no evidence who was andthe case of the added defendants must in my view of the law fail. ButI am satisfied that Lucia was at the time the “ proprietor ” of the premises,if so, it is only so far as and to the extent to which these premises wereher property that they were liable 'to seizure and sale.
The added defendants maintain that at the date of the sale Lucia wasvested with title to a half share, and enjoyed a life interest in the otherhalf. Despite this, they contend that what passed at the sale was anabsolute title to the whole of the premises. There is nothing in any ofthe other provisions or the Ordinance to support .this contention. I.trests, therefore, entirely upon the language of section 85, which is asfollows: —
“ If land or other immovable property be sold under .the warrant, acertificate in substantially the form marked E in the schedule hereuntoannexed, signed by the Chairman, shall be sufficient to vest the propertyin the purchaser, apy law or custom to the contrary notwithstanding.Such certificate shall be liable to the stamp duty fixed on conveyancesof immovable property, and to any registration or other chargesauthorized by law, such duty and charges being payable by thepurchaser. "
No sale of land or other immovable property in Ceylon is of any forceor avail in law, unless the same be in writing signed by the party makingthe same in the presence of a licensed notary public and two witnessesand unless the writing be attested by the notary and the two witnesses—vide Ordinance No. 7 of 1840. Under the Common Law there mustalso be. delivery to complete the transfer of title; under the law as i.tobtains to-day delivery of the deed is sufficient for the purpose.
The words “ any law or custom to * the contrary ” in section 85 clearlyhave reference to the above and what the section says is' that when asale for rates relates to land or immovable property the certificate of theChairman shall be sufficient to vest the subject of the sale without a
27/33
GARVIN S.P.J.—Sangaramorthy v. Candappa.
notarially attested writing or conveyance. And it is to be noted thatthe requirements & to stamp duty and charges in respect of registrationare insisted upon and made payable by the purchaser.
But it was urged that the words “ shall be sufficient to vest theproperty ” imply that the purchaser is to be vested with a title whichis perfect, absolute, and conclusive and which prevails over and indeedextinguishes every other adverse right, title, estate, or claim to the premises.If such were the intention of the legislature, it has certainly not expressedit, and in the absence of language, which clearly and unambiguouslydiscloses such an intention, there can be no justification for imputing tothe legislature an intention to give to the purchaser anything more thanthe title of the defaulter. The-word “ property ” in the expression “ vestthe property ” must be read with reference to what may be sold and'presumably was sold, i.e., the property of the defaulter, which meansthe land or premises in so far os the defaulter has an interest therein.The certificate vests in the purchaser the title of the defaulter. Itperforms the same functions as a notarially attested writing and deliveryby the seller in the case of a private sale.
When the legislature intends that a sale shall have the effect of givingto the purchaser a better title to property than that of the person againstwhom it is sold, it says so. Under the provisions of the Paddy Culti-vation Ordinance, No. 21 of 1867, the certificate issued to a purchaserat a sale for non-payment of money due vests “ absolute right and titleto and interest in the land sold, in the purchaser free from all encum-brances ”,Furtherexamples are tobe found in the MunicipalCouncils
Ordinance,No. 6 of1910, by which acertificate to a purchaser isdeclared
to be sufficient .to vest the property in the purchaser “free from allencumbrances ", vide section 143, and in the case of a sale for default ofpayment of rates when the purchaser is the Council the certificate “ veststhe property sold absolutely in the Council free from, all encumbrancesand such certificate is made receivable in every Court of justice as‘ * Conclusive evidence of the title of the Council to such lands .or immovableproperty ”, vide section 146. So also a purchaser at a sale held inpursuance of a decree for sale entered in a proceeding under .the PartitionOrdinanceobtains atitle “ good andconclusive against all persons whom-soever .. . .”,vide section 9 ofOrdinance No. 10 of 1863.
Language identical with that which appears in section 85 of theMunicipal Councils Ordinance of 1865 and with which we are concernedin this case is to be found in the Police Ordinance, No. 16 of 1865, section48, and existed in the Paddy Tax and Labour Commutation Ordinance,No. 5 of 1866, section 9. In Seniveratne Ranhami Mohandiram et al. v.Karavita Koralalaya Mudianse et al.,1 a bench of two Judges held that acertificate of sale granted pursuant to Ordinance No: 5 of 1866, section 9,vests in the purchaser nothing more than the interest of the defaultervaleat quantum- rejecting the contention that the words “ shall besufficient to vest the property in the purchaser ” gave the purchaser anindefeasible title against the whole world.
The case of Sivacoluiulu v. Noormaliya 1 is of interest for the reasonthat the contention that a fidei commissum. was wiped out by a sale for* 3 S. C. C. 103. ,« {1921) 22 N. L. S. 427.
GARVIN" S.P.J.—Sangaramorthy v. Candappa.otffl
non-payment of rates under the Municipal Councils Ordinance, No. 6 of1910, was based, not on the words “ shall be sufficient to vest the property ",but on the words 44 free from all encumbrances It was not evensuggested that the first-quoted words were sufficient of themselves togive the purchaser a title free of the fidei commissum which burdenedthe premises.
The certificate of sale issued under section 85 of the Municipal CouncilsOrdinance, No. 17 of 1865, passed to the purchaser at the sale for non-payment of rates nothing more nor other than the title of the defaulter.Lucia being the defaulter, what passed .to the purchaser Jusey was herright, title, and interest. In the view most.favourable to the addeddefendants Lucia's interests cannot amount to more than title to a halfshare with a fife interest jn the remaining half. But the plaintiffs contendthat her only interest in the premises was an estate for life and terminated1with her death. The determination of this issue involves a considerationof a branch of law of exceptional difficulty and complexity which will bemade later. It is more convenient at this stage to deal with the pointthat the plaintiffs and defendants are estopped by a judgment entered in
C. Colombo No. 72,428 in the year 1877. That action was broughtby Lucia, who based her claim on the joint last will of her husband andherself in terms of which she pleaded .that the premises at Kotahenawere “ devised to their children with possession to the survivor of .themShe alleged that upon the death of Francisco in the year 1860 she obtainedprobate of their joint last will, entered into possession of these premisesamong others, and continued in possession until the defendant, oneH. A. Fernando, a successor in title of the Don Jusey, who was the purchaserat the sale for non-payment of taxes earlier referred to, took wrongfulpossession of the premises. The prayer was that she be restored to and .quieted in possession of the premises.
The defendant H. A. Fernando relied on the title obtained by DonJusey which was ultimately passed to him. In her replication Luciaimpeached the sale by the Municipal Council on various grounds. Noevidence appears to have been recorded and there is no adjudication asto what if any interest passed to Don Jusey at .the sale nor whether thatsale had been regularly held. The plaintiff's action was dismissed on. theground that the action should have been brought against the MunicipalCouncil. This proceeding and the judgment were long anterior jtb theCivil Procedure Code and section 207, upon which our law of res adju&icatais based, is not therefore applicable .to the case. The copies of theproceedings in that case filed of record show that there was no adjudi-cation at all on the question of title and in the absence of? such’adjudication the plea of res adjudicate, cannot succeeded. All that Luciaclaimed in the action was a usufructuary interest and the dismissal ofher claim to possession even if it- does, having regard to the ground uponwhich it was dismissed, bar any further claim by her, does not bar thosewho claim the estate at her death. For these take under the last willand not from or through Lucia. If therefore Lucia's interest was merelythat of a usufructuary or fiduciary, the plea of res adjudicata is notavailable against those who take the estate in succession under the last
370OAHVIN S.P.-f.—Sangaramortky v. Candappa.
will and the fitlci commissum thereby created—vide Usoof v. Rahhncthtt «/.'11‘ on the other hand Lucia, despite the last will and her adoption
ot it, still remained vested with title to a half share of the property of .thecommunity, her title to that half share passed under the sale for recoveryof rates and has vested in Don Jusey and his successors in title—theremaining Half share bequeathed to the children charged with the fid'eicommissum passing under and in terms thereof to the fideicommissarieswhether Lucia’s interests therein were those of a fiduciary or of ausufructuary.
The provisions of the joint last will of Francisco Candappa and hiswife Lucia material to the decision of this question arc as follows: —
We jointly will and desire that the survivor of us shall remain iupossession of all our common property and estate movable as well asimmovable and enjoy the rents, interest, revenue, and income thereofuntil his or her death, without being interfered with by our children,but the survivin' shall not however sell, mortgage, or otherwise alienateany of the said movable or immovable property belonging to ourcommon estate.
44 We jointly give and devise unto our children the immovableproperty hereafter mentioned to take effect after the death of both ofus, that is to say :
“ To our sons ..
All the bequests which follow are charged-with a fidei commissum whichbinds the property for four generations. In a general residuary clausethe spouses nominate and appoint their seven children hei*rs and heiresses-of the residue and remainder of their joint property, share and sharealike, and state that it is their desire that, if any of the said childrendies without lawful issue, “ the devise or inheritance of such of .theirchildren which he or she may become entitled to under this will shallrevert to the surviving brothers and sisters The will thus disposes ofthe whole of the property of .the community. To the survivor is givenan interest for life in the whole, portions of the property of the communityare then specifically bequeathed to the children individually, otherportions to certain of their children in groups and again others to all thechildren and finally what is undisposed of by the specific bequests is•given to them all share and share alike. The survivor is appointedexecutor or executrix as the case may be of 44 this our will ”.
The event which the spouses had in contemplation was the death of thefirst dying of them and the consequent disruption of their common estate,for each has declared his will and desire that on the happening of thatevent the survivor was to have a life interest in the whole with thereversion to the children. Whether the interest left to the survivor isusufructuary or fiduciary is often a difficult question. The prohibitionagainst alienation of itself might indicate that the interest is fiduciary.But the opening words on the other hand state that what each spouseis to have is possession of the common estate and enjoyment of theentirety of the rents and profits proceeding therefrom and the prohibitionagainst alienation in the context appears to have been used to emphasizethis.
1 {1918) 20 N. L. R. 228, at p. 240.
GARVIN S.P.J.—Sangaramorthy v. Candappa.
m
No- title to the half share of the first dying is given to the survivor andto that extent at least this clause cannot be construed as passing anygreater interest than that of a usufructuary. Since both halves aredealt with as one whole the form of words employed must have beenintended to give to the survivor a usufruct extending to the whole of thecommon estate, and nothing more.
Moreover, there are also indications that the bequests to the childrenwere to vest in them immediately on the death of the first dying thoughthey were not to take effect in possession until the death of the survivor.The carefully drawn dispositions in favour of the children burdenedwith a fidei commissum from generation to generation and which exhaustthe whole estate is followed by a clause by which the survivor is appointedthe “ executor or executrix of this our will and guardian of the personsand administrator of the property of our minor children It is a fairthough perhaps not a necessary inference that by the property of theminor children was meant the property which they would get under thiswill on the death of the first dying. And in the appointment of theexecutor the will is treated as one and as the will of each of £hem tobecome operative on the death of the first dying.
Lucia’s plaint in D. C. Colombo No. 72,428, filed over 16 years afterthe death of her husband, shows that* she herself regarded the bequestsin favour of the children to have vested title in. them on the death of thefirst dying subject to the reservation to .her of a usufruct in and over thewhole of the common estate.
There can, I think, be no doubt as to the intention of the spouses and.that their intention has been carried out by each with the consent andauthority of the other making dispositions extending to and exhaustingthe whole estate to become effective on the death of the first dying.
On the death of Francisco in 1860 his widow LuGia took out probate ofthis will. She showed the whole of the estate in the inventory filed byher as executrix. In 1877 when she filed the action No. 72,428 shedefinitely adopted the last will and based on it her claim to a usufruct inthe whole estate and averred that on the death of her husband in 1860she 41 entered into possession ” of these premises among others and" continued in possession ” till 1876 when she was ousted by the defendant.It is quite clear from the judgment as well as from the statement made onbehalf of the fourth added defendant—vide pages 92a and 92b of therecord—that it was an accepted fact that Lucia collected the rent ofthese premises.
There is therefore ample evidence that Lucia affirmed the will of herdeceased husband which disposed of the entirety of the property of whatwas once their common estate and took benefit thereunder.
Whether a spouse who has consented to the disposition of her propertyas in this case can withdraw her consent and repudiate the dispositionafter the death of the testator is a point upon which certain passages inthe Roman-Dutch law at least suggest a doubt. But whatever differenceof opinion there may be on that point there can be no question that once"the survivor has affirmed the will and taken benefit thereunder he mustpermit the will to have its full effect—vide Dennyssen v. Mostert,l where it1 {1872} L. R. 4 P. C. 236.
28/33
372
GARVIN S.P.J.—Sangaramorthy v. Candappa.
was said that the conditions of massing and acceptance of some benefitby the survivor “ appear to apply as much to a will made by one spousewith the authority of the other as to a mutual will in the strict sense[t is a well established principle that when a testator makes a bequestto a legatee A and also a bequest of that legatee's property to another B,"then legatee A must choose—if he accepts the bequest made by thetestator—he must allow- his property to pass to B to whom it is bequeathed.But under the Roman-Dutch law a person may by testament bequeaththe property of another “if he permit it the person who permits hisproperty to be so disposed of cannot again revoke it—Kotze Van Le?uioenChapter 11, fteciion 1, p. 313. It does not appear ever to have beendefinitely raised or settled whether in such a case the person who gavesuch consent can after the death' of the testator withdraw his consentand refuse to deliver the property. In the case before us each spousehas consented to the other disposing of the whole of the property ofthe community. If Van Leeuwen is right then it would seem that thewill is not revocable after the death of the first dying. The Privy Councilhas, however, expressed a different view and we are bound to hold thatthe power to repudiate and revoke the disposition so far as it relates tothe survivor’s half exists until he has affirmed the disposition by takingunder it a benefit to which he would not be entitled but for the will.Even this condition has been satisfied in the case before us. The survivorhas affirmed the will to which she consented and has taken benefit underit, and that will made with her consent disposes of the whole of thecommon estate. It distributed the property between the children ofthe marriage reserving to her a usufruct in the whole. The question wehave to answer is whether despite this will and its adiation by.the survivor*Lucia she remained vested with the dominium in her half share notwith-standing that the testator with her consent had disposed of the property-leaving her only a usufruct in the whole.
The main contention was that the surviving spouse could not by willdivest herself during her lifetime of her dominium in her half share of theproperty of the community and pass it to another. A mutual will, evenwhere there has been a massing of property for the purpose of a jointdisposition after the death of the survivor, is ordinarily divisible intotwo wills by which each spouse disposes of his or her half in pursuanceof a common testamentary intention. The acceptance of some benefitby the survivor to which he would not be entitled but for the will of the-first dying deprives him of the power of revoking the will as to his half,but his half passes under his will and not under the will of the first dying.
The case, however, is different where the spouse with the consent ofthe other disposes of the whole of the common estate, for the first dyingdies testate upon the property of the other with his consent whetherexpress or implied. The bequest is that of the first dying and the legateebecomes entitled to the bequest under and by virtue of the will of thefirst dying and not under any testamentary disposition of the survivor*where the survivor has adiated or taken some benefit under the will.Transfer and delivery are not the only means by which title to propertypasses under our law. It passes by operation of law as in the case of amarriage in community when each spouse is without either transfer or*
OAR YIN’ S.P.J.—Sangaramorthy v. Candappa.
373
delivery divested of a half share of the property heretofore owned byhim and vested with a title to a half share of the property of the otherspouse. Notwithstanding that both in the deeds i and in the registers ofdeeds property may stand in the name of one of the spouses, it belongsto both of them in equal shares and upon the subsequent death of one ofthem, the survivor remains the owner of a half share. A purchaser ofthe entire property buys at his risk and the fact that he is a bona fidepurchaser for value avails nothing. A bequest by last will of the testator’sproperty passes title (dominium) to the property. Since under theRoman-Dutch law a person may by will make a bequest of the propertyof another with his permission or consent, is there any insuperableobjection to the theory that the property passes under the bequest andthat the legatee is vested with a real right in the property? Van Leeuwenapparently sees none. (Vide Gens. For. 1. 3. 11. 7.)“ When the one
gives the other permission to dispose of his property by testament or toleave it by fidei commissum and allows this will to be confirmed by thedeath of the disposing spouse, the ownership of the thing bequeathed orleft by fidei commissum passes to the legatee or fideicommissary providedthe inheritance has been ndiated. Nor does this produce merely apersonal action available for the recovery of the legacy against the heir'or other possessor of the property of the inheritance, but also actualownership and true property right.
This is such a will. Each spouse has expressed the wish that at thedeath of the first dying the survivor is to have a usufruct in the whole inexchange for his half share, and gives the dominium to the children.Possession is, of course, deferred till the death of the survivor. Each haswith the consent of the other disposed of the other's half share as well.When at the death of the first dying the will is brought into operation itdisposes of the whole of the common estate and there is nothing left uponwhich the will of the survivor can operate. Inasmuch as it is a dispositionby the first dying of the whole estate with the consent- of the other spousethe rule laid down by Van Leeuwen applies, and, if his is a correct state-ment of the law, a right of property in the legacy vests in the legatee.
In most joint wills of spouses a common testamentary intention ismanifested*, but that intention is earned into effect by simultaneousdispositions by each spouse of his half share. Whatever the form of thewill of the spouses, if it can be read as a disposition by each of his halfshare and not of the whole by each with the consent of the other, thenupon the death of the first- dying the will operates as a disposition of hishalf. In such cases where the survivor takes a benefit at the death of thefirst dying to which he would not be- entitled but for the will he may notthereafter revoke his own will.. Nevertheless the disposition so far as itrelates to the survivor’s half is the subject of his will and no rights inthat half are transmitted till his death.
Such joint wills are clearly distinguishable from wills by which eachspouse disposes of the whole or a part of the property of the survivor.When dealing with such wills Maasdorp in his" Institutes of Cape Law,Volume 1, pp. 135 and 136 (1903 Edition) says the survivor “ by theordinary- testamentary principle of election, by accepting benefits underthe will, becomes bound to allow his property to pass as the will of the*
374
GARVIN S.P.J.—Sangaramorthy v. Candappa.
first dying directs. Nay, more, this property, to the extent to whichit is disposed by the will of the first dying, has ceased to be his propertyand becomes burdened with a fidei commissum in terms of that will. Inone word, though the survivor is not prohibited from revoking his ownpart of the mutual will, he cannot revoke' or alter the will of the firstdying with respect to his (the survivor's) property, because it has in factceased to be the survivor’s property Among the judgments relied onis that of Connor J. in Oosthtiysen v. Oosthuysen
But thereafter the trend of judicial decisions of which Haupt v. Van derHeever's Executor#, Juta’s Leading Cases, Part 11., p, 112, is a typicalinstance, was in favour of the view that in respect of the half share of thesurvivor the legatee had only a jus in personam and not a jus in re.
These conflicting views were considered and settled so far as the SouthAfrican Courts are concerned in Rosenberg v. Dry's Executors 2, that therights of legatees under a mutual will disposing of joint property subjectto a usufruct in favour of the survivor differed in respect of the two sharesthus bequeathed—that as regards the half share of the first dying thelegatee acquired real rights but that the dominium of the other half shareremains in the survivor, the rights of the legatee being merely a personalright to compel him to observe the terms of the will of the first dying.
In the later case of Receiver of Revenue, Pretoria v. Hanck 3, there areindications in the judgments of two of the Judges that they were notperhaps altogether satisfied with the law as laid down in Rosenberg v.Dry's Executors (supra); they were however bound by that decision whichwas a judgment of the full bench.
Solomon J. in the course of his judgment draws attention to anamendment of the law which was passed after that decision indicating4‘ that the legislature has elected not to adopt the law as laid down inRosenberg v. Dry's Executors (supra) but has accepted the simpler viewthat the two halves of the joint estate shall be placed upon exactlythe same footing
In the case of Rosenberg v. Dry's Executors (supra) the nature and extentof the rights said to be rights in personam and not in re were not veryclearly defined. But in the later case of Receiver of Revenue v. Hancke-(supra) all the Judges were agreed that the legatees were entitled todemand the transfer of the dominium and that the survivor was boundto give effect to the will by passing transfer subject to the reservation ofhis life interest.
It would seem, therefore, that the law as determined by judicial decisionin South Africa and until the legislature thought fit to intervene was thatthe survivor of two spouses who had taken benefit in the half share ofthe first dying under a mutual will by which each disposed of the wholesubject to a usufruct in the survivor remained nevertheless vested withthe dominium in her half share but bound to transfer it subject to thereservation of a usufruct to the legatee or legatees.
Our own reports do not contain many cases in which the position of thesurvivor of spouses married in community who has taken benefit underthe will- of the first dying has been very fully considered. The earliest
1 (JS6S) Buchanan's Reports 66.2 {1911) S. A. L. Rt 679,
3 (1925) S. A. L. R. 76.
GARVIN S.P.J.—Sangaramorthy v. Candappa.
875
case to which we have been referred is D. C. Kalutara No. 2St882t 1869-—1871, Vanderstraatenf$ Reports p. 96. The husband made a will bywhich he purported to deal with the whole of the property of thecommunity giving to his wife a life interest in the whole of»a part of the-estate. It was held that the wife having made her election to take underthe will neither she 44 nor any one else in her name ” can set up her commonlaw right to a moiety of the joint estate. The contest arose between acreditor who having obtained judgment against the widow caused, certain,property to be seized in execution and the administrator of the estate ofthe deceased testator who was also a legatee.
The next case noticed in the course of the argument was that of Mendisv. Mohideenl. By their joint will the spouses who were married incommunity of property granted to the survivor the whole estate providingthat, after the death of the survivor, it was to devolve upon certainpersons. The widow leased a house for 8 years and died while therewere 5 years more to run. The executor apparently ignoring the leasesued the defendant who was the tenant of the lessee for use and occu-pation This Court referred wifh approval to the decision of the CapeCourts* holding that the dominium as to a half share remained in thesurvivor and that he was able to pass a title to a 6ona fide purchaser.The case was sent back for the determination of certain questions offact.
The only other case in which the point under consideration was dealtwith specifically was that of Robot v. Neina Marikar2. This Courtfollowed the law as stated in Haupt v. Van der Heever's Executors [supra)that in such cases the will gave the legatees not a real right in the propertybut only a personal right against the survivor.
The two latter cases are not of much assistance. There is no discussionof the Roman-Dutch law on the subject. The decision merely followsand adopts the law as stated in Haupt v. Van der Heever's Executora(supra).
In the earlier case reported in Vanderstraaten’s Reports the judgmentproceeds upon the principle of election and the view expressed is thatwhere a person is proved to have elected he. and ‘ 4 any one else in hisname ” will be estopped from setting up his common law title to a half .of the estate. In effect the Court held that the claims based on the willwere superior to those of the creditor of the survivor. It does not,however, go the length of holding that upon election the survivor isdivested of his title to his half or that the dominium in that half passedto the legatees under the bequest,
There are passages not only in the writings of Van Reeuwen but inVoet and Peccius which indicate that in their view there can Be norevocation by the surviving spouse after the death of the other spouseof a will by which each with the consent of the other disposed of thecommon estate. But there are other passages in the writings of theseand other authorities in which emphasis is laid generally on the subsistence. of the power of revocation after the death of one of the spouses and untiladiation by the survivor.
1 (1902) 5 N. L. R. 327.
* (1913) T6 X L. R. 99.
876GARVIN S.P.J.—Sangammorthy v. Candappa.
The special case of the disposition by one spouse of the property ofthe other with his consent does not appear to have been fully discussedor considered on principle or with reference to the circumstance that theeffect of admitting the right of the survivor to revoke such a dispositioninvolves the proposition that he may revoke the will of the first dying sofar as it relates to his (the survivor’s) share of the property and therebysometimes bring about the intestacy or partial intestacy of the firstdying.
Had it been the law that such a will is confirmed and is irrevocableupon the death of the first dying there would appear to be no obstacle tothe view that a disposition of properly will at the death of the first dyingpass the dominium both in the half share of the first dying and in thehalf of the survivor since the first dying would then die testate upon thewhole of the common property with the consent of the other.
But after an examination of the original authorities the Privy Councilin Denyssen v. Mostert (supra) decided that the right of the survivingspouse to revoke or repudiate such a joint disposition so far as it relatesto his half is not lost on the death of the first dying and continues till hehas accepted some benefit under the will. It must, therefore, be takento be settled law that it is the act of the survivor after the death of thefirst dying spouse which binds him to permit the will to have its effect.Whether .that results from the application of the principle of election orfrom a contractual or guasi-contractual relationship with the legateesinto which the survivor is brought when he adiates or accepts benefitsunder the will of the first dying, the situation in which the survivor isleft is that he may not revoke the last will so far as it relates to his halfshare and must permit it to have its effect. The corresponding rightwhich vests in the legatees is to insist on th’e survivor complying with the•will and claiming specific performance. But this is a right in personamand not a right in re since the disposition does not become effective asto the survivor’s half on the death of the first dying, even in a case inwhich the disposition has been made with the consent of the other and itis the act of the survivor in taking benefit under the will which bindshim to permit it take effect on his -half share as well. There is no principleupon which it is possible to say that the dominium which under the lawas it appears to me to be settled by Denyssen v. Mostert (supra) residedtill then in the survivor passed automatically to the legatees upon theact of the'survivor in taking benefits under the will.
It was urged that Sanuiradiwakara v. De Saram1 was an authorityfor the proposition that under such a disposition the right of the legateewas a right in re. But the judgment of the Privy Council shows that thereal point for decision was whether a son who predeceased the survivingspouse took a vested interest in a disposition extending to her half sharetransmissible to his heirs and that Involved the interpretation of the jointwill. The widow died after adiation and without dealing with her halfshare by act inter vivos and the question arose between an intestate heirof the deceased son* and the executor of the estate of the widow. It isnot possible to say with certainty that had the Privy Council been calledupon to determine the exact nature of the interest which vested in the
1 {1911) 14 N. L. R. $21.
LYAIiL GRANT J.—Sangaramorthy v. Candappa.
377
legatee it would have been held that it was the dominium and not merely^the right to call for the dominium.
1 feel bound by the weight of authority to hold that even in the caseof a mutual will of spouses married in community by which each spousewith the consent of the other deals with the whole of the common estateeach spouse has the power to revoke the will so far as it relates to liishalf at any time till the death of the first dying and that the survivorretains the power to repudiate or revoke the will so far as it relates to hishalf share so long as he does not take some benefit in the half share ofthe first dying. The survivor therefore remains vested with dominiumto half of the common estate and every part of it- notwithstanding thatthe first dying has with his consent executed and left a last will by whichhe bequeathed the whole. When and if the survivor takes some benefitin the half share of the first dying under the joint will his right to revokethe will so far as it relates to his half share is at an end and he isi bound topermit the will to take effect. The legatees and devisees then becomevested with the corresponding right to compel the survivor to observethe will and its terms by specific performance or other appropriate action.But the act of the survivor in adiating or taking benefit under the will in-the share of the first dying does not of itself pass the dominium in his-half share to those to whom it has been bequeathed.
Lucia therefore was vested with the dominium in a half share of these-premises at the time they were sold for her default in paying the ratesdue in respect of them. There is no reason to suppose no evidence from 'which it can be inferred, and not even a suggestion that the purchaserhad knowledge of the contents of this will or that his purchase was notbon fide. The sale was therefore effective to pass title to the purchaseras to a half share.
The judgment of the District Judge will stand affirmed. All theappeals to this Court from the judgment of the Court below will bedismissed with costs.
Lyall Grant J.—
The question of law which seems to present the greatest difficulty in*this case is whether Lucia haying adiated to the usufruct or to thefiduciary ownership of the whole joint estate was able to retain, and'effectively to dispose of, the dominium of half that estate so as to defeatthe rights of the fidei commissarii under the will to tha.t half.
That she should be able to do so seems contrary not only to well'known doctrines which appear in different systems of law but to funda- .mental principles of justice.
I agree with my brother, however, that the authorities, both Ceyloneseand South African, which were put before us have the effect that even:adiation to the husband's property does not divest the widow of thedominium of her separate estate.
I agree therefore to the judgment proposed by my brother, that the*appeals should be dismissed.
Appeals dismissed..