086-NLR-NLR-V-37-SILVA-v.-SILVA.pdf
388
Silva v. Silva.
1935Present : Koch J and Soertsz A.J.
SILVA v. SILVA.
416—D. C. Colombo, 839.
Joint will—Property devised to survivor—All property in possession, reversionremainder or expectancy—Fidei commissum in favour of children—Right of survivor to deal with property acquired after the death ofhusband.
Where a joint-will contained the following clause: “We do herebygive and devise to the survivor of us all our immovable property whetherin possession, reversion, remainder or expectancy (nothing excepted)subject to the express condition that such survivor shall not sell, lease,mortgage or otherwise alienate or encumber such property, but shallonly enjoy the rents, profits, and income thereof during his or her naturallife and that after his or her death the said property shall devolve onour children absolutely ”,—
Held, that the survivor had no disposing power over property acquiredby her after the death of the husband.
T
HE plaintiff instituted this action against his wife to recover asum of Rs. 2,027.79 alleged to be due to him as his half share
of the rents and profits accruing from a property situated in Gasworks
Silva v. Silva.
389
street, Colombo, which the plaintiff alleged he owned in common withthe defendant. The defendant sometime prior to the dates materialto the suit executed a deed of gift in favour of the plaintiff, wherebyshe conveyed to him an undivided half share of the property. Thereafterthe plaintiff executed a deed of lease in favour of the defendant in respectof the same property. Nothwithstanding the termination of the lease,the defendant remained in possession, appropriating the entirety of therents and profits. There was no dispute as regards the rents and profits,but the defendant contended that, according to the terms of a joint will,she executed along with her former husband, she having contracteda marriage with the plaintiff forfeited her rights to the property, andconsequently the deed of gift in favour of the plaintiff was ineffectualto pass title. The learned District Judge held that, inasmuch as theproperty dealt with under the deed of gift was acquired by her afterthe death of her former husband, the testator, the survivor’s powersto deal with such property were unaffected by the terms of the joint will,and entered judgment for plaintiff. The defendant appeals.
N. E. Weerasooriya (with him Ranawake and T. S. Fernando), for thedefendant, appellant.—The plaintiff at no time had possession. Thedocument is a testamentary disposition; effect must be given to thetestator's intentions. The appellant brought no property when shemarried the testator, the testator had considerable property; clearlyhe intended to provide for his children in the event of the appellantcontracting a second marriage. By her marriage with the respondentshe forfeited all rights. The testator clearly intended that she shouldforfeit not only her rights to his property, but to property she mayacquire subsequently; Wirasinha v .Rajapakse1 shows that a testatormay deal with property in this manner. The words of the will are wideenough to cover the property dealt with by the defendant. There isevidence of adiation which the respondent has not rebutted.
Mackenzie Pereira, for respondent.—The plaintiff seeks to recoverhis share of the rents and profits, appropriated by the appellant. Ourownership cannot now be disputed. This is not an action for declarationof title to land. The appellant entered into possession of our half shareas lessee. She cannot dispute our title, vide Ameer Ali on Evidence,p. 867. Section 115 of the Evidence Ordinance is quite clear. Thedeed of lease is pleaded and the appellant does not deny it. If theappellant wishes to dispute our title she must first surrenderpossession, and divest herself of the character of lessee. Vide AmeerAli on Evidence, p. 868, Muthuneyien v. Samaraya’, Bilas Kunwar v.Ranjit Sinh *, Ganapat Rai v. Multan *. Apart from the question ofestoppel, the appellant here is seeking to derogate from her own grant.The evidence shows that the testator’s mother had a life interest in allthe properties dealt with under the will; she died sometime after thetestator, the appellant could not have taken any benefits under thewill so long as the testator’s mother was alive. Entering into possession
* 16 N. L. R. 366.- 2* Marl. 526.
» 31 All. 557.* 38 All. 226.
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KOCH J.—Silva v. Silva.
per se is an equivocal act, it is inssufficent to constitute adiation. Theproperty conveyed to us accrued to the appellant long after the testator’sdeath. It cannot be urged that the possibility of the survivor obtain-ing the present property could have been in the contemplation of thetestators, at the execution of the will. The case of Wirasinha v. Rajapakse(supra) does not cover the facts of the present case; there the intentionof the testator was quite clear. The dictum of Wood Renton J. is obiter,it cannot be claimed as an authority for the proposition, that a testatorcan in a joint will dispose of the property which the surviving spousemay acquire after the death of the testator: The words “ nothingexcepted ” cannot help the appellant, as they refer to the class ofproperty designated in the preceding words “ reversion remainder orexpectancy ”. They do not, for instance, cover property she may acquireby some accidental circumstance. The property dealt with cannotbe designated as property in remainder reversion or expectancy.
Cur. adv. vuit.
October 3, 1935. Koch J.—
We think the appeal in this case should succeed.
The plaintiff sued the defendant for the recovery of a sum ofRs. 2,027.79 with interest on the footing that he was the owner of anundivided one-sixteenth share of certain premises situated in Dam streetand Gasworks street. His position briefly was that he had acquiredtitle to this one-sixteenth on a deed of gift from his wife who is thedefendant, and that he thereafter leased this share under deed to thedefendant, and that after the expiration of the lease the defendant“ continued to collect the rents of the plaintiff’s share together with thosedue on her share ”—paragraph 3 of the plaint. The sum he claimedrepresented these collections from. May 1, 1933, to March 1, 1934. Thedefendant denied the plaintiff’s title to this share and consequentlyhis right to sue.
There were three specific issues on which the District Judge hasrecorded that the parties went to trial. An issue of estoppel wassuggested by the defendant’s counsel but this was not allowed by theDistrict Judge.
The learned District Judge in the course of his judgment observesen passant that no estoppel could arise. It is not necessary for us inappeal to say anything more regarding this point except that it wouldappear that the District Judge was right in his remark.
The entire appeal therefore rests'on one point only, and that is whetherthe plaintiff has a status on which he can found his claim. Thi^ purelydepends on the construction of paragraph 5 of the joint will D 13, filedin case No. 53,500 of the District Court of Colombo. The paragraphreads thus :—
“ We do hereby give and devise to the survivor of us all ourimmovable property whatsoever and wheresoever situate and whetherIn possession reversion remainder or expectancy (nothing excepted)
KOCH J.—Silva v. Silva.
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subject to the express condition that such survivor shall not sell,lease, mortgage or otherwise alienate or encumber any such propertybut shall only enjoy the rents, profits, and income thereof duringhis or her natural life and that after his or her death the saidproperty shall devolve on our children absolutely in the followingmanner.”
This being a will, full effect must be given to the intentions of thetestator and testatrix.
Considering that the first husband of the defendant—one of theauthors of the will—owned valuable properties at the date of the executionof the will and his wife the defendant had nothing, it would be reasonableto suppose that his intention was that if his wife gained benefit underhis will in respect of those properties, she should in the event of hermarrying a second time be deprived of not only her interests in hisproperties but also of any property that she may be invested with at anytime in the future, even though acquired after his death. The one-sixteenth share conveyed to the plaintiff was half of a one-eighth sharethe defendant acquired after her first husband’s death. Do the wordsin the will bear out this intention?
I think the words “ whatsoever and wheresoever ”, “ whether inpossession, reversion, remainder or expectancy ” were inserted in thewill by the notary on instructions that the defendant should be deprivedof whatever properties she held at the time of the second marriage.There are the additional words “ nothing excepted ” which lend pointto the intention of the husband to deprive her of everything immovableshe may acquire before a second marriage.
The case of Wirasinha v. Rajapakse1 is referred to by the learnedDistrict Judge. It is true that Wood Renton J. there was of opinionthat the intention of the testator was not to include the property acquiredby the testatrix after the death of the testator. The learned Judge,however, came to that conclusion and disagreed with the District Judgebecause the language of that will hardly justified the District Judge’sfinding. The relevant terms of that will are recited in Wood Renton J.’sjudgment, and it will be seen on comparison that the language in thewill before us is much stronger and clearer as to the intentions of thetestator. It must be noted that Wood, Renton J. definitely states thatthe words appearing in that will were, to use his own words, “ no doubtwide enough to cover property acquired by one spouse after the deathof the other, and there is of course no reason in law why effect shouldnot be given to such a provision in a will if we can really find it there ’’.He, however, decided against the District Judge’s view because he feltthat on the whole, taking the passage which contained those wordswith the context, “ the intention of the spouses was to deal merely withthe property belonging to them at the time of marriage or acquired byeither of them while the marriage subsisted ”.
I see nothing in the context of the will before us to detract in any wayfrom the effect of paragraph 5.
i 16 .V. L. ft. 3M.
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KOCH J.—Silva v. Silva.
There is clear evidence of the defendant having stepped into possessionof the properties of her husband after his death, and there is thereforethe necessary adiation required by the Roman-Dutch law.
The judgment of the District Judge will be set aside and the plaintiff’saction dismissed with costs. The appellant will have her costs of appeal.
Soertsz A.J.—I agree.
Appeal allowed.