WT.TE YE WARDENS A.C.J.—Archbishop of Colombo v. Veerapathirapitiai HI
1948 Present:Wijeyewardene A.C.J. and Jayetileke S.P.J.THE ARCHBISHOP OF COLOMBO, Appellant, andVEERAPATHIRAPILLAI, Respondent
8. C. 200D. C. Colombo, -5,445
Will—De-vise of property—Description in clause at variance with referencein schedule—Construction.
Where the relevant Clause of a Will described one of the propertiesdevised as ** the allotment of land bearing assessment No. 50…
mentioned in the Schedule ” hut the Schedule referred to the propertyas “ the undivided half share of the land bearing assessment No. 50 ”—Held, that the phrase “ mentioned in the Schedule ” qualified but didnot reduce the property. The phrase brought in the Schedule for theelucidation of the clause by giving the boundaries and extent of theproperty and not for the purpose of subordinating the Clause to theSchedule by reducing the extent of the devise.
Appeal from a judgment of the District Judge, Colombo.
H. V. Perera, K.C., with A. H. E. Molamure, for the defendant,appellant.
8. J. V. Chelvanayagam, K.C., with P. Navaratnarajah, for the plaintiff,respondent.
Cur. adv. vult.
July 6, 1948. Wijezewaedine A.C.J.—
The subject matter of this action is a property bearing Municipalassessment No. 50, Silversmith Street, Colombo. It consists of a houseand a small garden appurtenant to it. One W. P. de Silva was theoriginal owner of that property. By deed No. 814 of October 31, 1924,(D 1) W. P. de Silva conveyed a half share to Mary Josephine Perera, andby deed No. 815 (D 2) of the same date W. P. de Silva conveyed theremaining half share to Jane de Silva who conveyed that half share toMary Josephine Perera by deed D 3 of 1928. Mary Josephine Pererawho was thus entitled to the entirety of the premises died leaving a lastwill which was duly proved in D. C. (Testy.) Colombo 2,208. By thatlast will the testatrix made a devise in respect of No. 50, SilversmithStreet, directing that the property devised “ shall devolve on the Churchof St. Joseph, Grandpass, Colombo, and the Parish Priest of the saidchurch shall utilise the income thereof for the charities of the Society ofSt. Vincent de Paul ”, The defendant-appellant makes his claim onthat devise. The question that arises for determination is whether thedefendant-appellant became entitled to the entirety, of the property oronly an undivided half share of it. The residuary legatees who appearto have taken up the position that the devise in favour of the defendantwas in respect of only a half share claimed the other share under theresiduary clause of the last will and mortgaged that half share by P3in 1935 with one Visalatehi. That bond was put in suit, and at a saleheld in satisfaction of the hypothecary decree entered in that case, theplaintiff purchased that half share and obtained a Fiscal’s conveyanceP4 of 1942.
1J. N- A 84756—1.014 <12/481
122 WlJEl JtU WARDENE A.C.J.—Archbishop of Colombo v. Veerapathirapillai
The last will is .in Sinhalese. The relevant clause transliterated intoEnglish reads as follows :—
“ Mata dknata ayitiva tibennavu nigcala depala-valin Kolambanagaraya tula Badal-vidiye tibena ihata ki upa-lekhanaye pas vannatasandahan asasmant noxnmara 50 darana idam-kotasa saha ehi pihitige-t mage maranayen pasu Kojamba To^a-langa suddhavu JuseMunindrayanan vahansege namayen sthapita kara tibena devas-thanayata hixniva eyin labena adayama e-ki devasthanaye misamabharava sitina pujaprasadin vahanse vis in suddhavu Visenti dePavula Asarana Sarana Samitiye punya-karma-valata yedima mageasava ha balaporottuvayi
The points in dispute between the parties with regard to the translationof this clause are the meanings to be given to the words “ idam kotasa ”and “ sandahan ” underlined by me with double lines. I have alsounderlined some other words which have to be considered in decidingthese points.
The plaintiff contended that while the words, “ idam kotasa ” couldgenerally mean “ a share of land ” or “ a portion of land ” they meant“ a share of land ” in the clause in question. Of course, the word “ share ”must mean “ undivided share ” in this context, as the land is not possessedin divided blocks, and as the plaintiff’s case is that the clause dealt withan undivided half share of the land and the house. On the other hand,the contention of the defendant was that those words in the clauseshould be translated as “ an allotment of land I agree that generallythese words may mean (a) a share of land or (6) a portion or an allotmentof land, but I am unable to agree that, in the clause we are considering,the words could be given the meaning “ a share of land This is madeclear when we consider the phrases “ asasmant nommara 50 daranaidam kotasa ” and “ ehi pihiti ge-t In the phrase “ asasmant nommara50 darana idam kotasa ” the first four words qualify the noun “ kotasa ”and not the word “ idam ” which is used as an adjective here. If, there-fore, the meaning “ share ” is accepted for the word “ kotasa ”, thephrase referred to would mean “ the share of land bearing assessmentNo. 50 ”, the words, “ bearing assessment No. 50 ” qualifying the word** share ” and not the word " land ”. It is not possible to accept atranslation which results in giving an assessment number to an undividedshare. The interpretation favoured by the defendant would not giverise to this difficulty as according to that it would be an “ allotment ”that would be given the assessment number. I shall now consider thephrase ct ehi pihiti ge-t In this phrase the word “ ehi ” which means“ on it ” or “ thereon ” refers to the earlier word “ kotasa If theplaintiff’s meaning of “ kotasa ” is accepted, this phrase would berendered as “ and the house situated on it (the undivided share).” If,on the other hand, the defendant’s translation is accepted, the phrasewould mean “ and the house situated on it (the allotment of land)
It is difficult to believe that the Notary would have spoken of a housestanding on an undivided share of land. If the Notary intended to referto an undivided share of land and an undivided share of the house, hewould have used different words such as “ id amen saha ehi pihiti geyinkotasak ”.
WIJEYEWARDEXE A.G.J.—A.rchbishop of Colombo v. Veerapathirapillai123
The other word whose meaning is in dispute is “ sandahan Theplaintiff's witness, Mr-. Haturusinghe, gives it the meaning “ described ”while the defendant’s witness, Mudaliyar Waidyaratne, gives the meaning“ mentioned The translation given by Mr. Haturusinghe is clearlywrong and I have no hesitation in accepting the translation of MudaliyarWaidyaratne. The last will itself shows that where the testatrix wantedto use the Sinhalese equivalent of “ describe ”, she adopted the correctwords “ vistara karanu Iabana ”.
It is interesting to note that in the translation PI of the last will filedby the plaintiff in this action the words “ idam kotasa ” were translatedas “ portion of land ” and the word “ sandahan ” as “ mentioned ”.That translation has been made by Mr. Hathurusinghe who gave differentmeanings to those words in the do.cument P1A produced by him at thetime he gave evidence when he was called as a witness by the plaintiff.
I would, therefore, adopt the meanings given to “ idam kotasa ” and“ sandahan ” by Mudaliyar Waidyaratne and give the following literaltranslation of the clause in the will :—
“ It is my will (desire) and pleasure (expectation) that out of theimmovable properties owned by me at present the allotment of landbearing assessment No. 50 situated at Silversmith Street within the townof Colombo and the house standing thereon fifthly mentioned in theaforesaid schedule shall devolve after my death on St. Joseph’s Church,Grandpass, Colombo, and that the income thereof shall be utilisedby the Parish Priest of the said church for the charities of St. Vincentde Paul Society ”.
If the words “ fifthly mentioned in the aforesaid schedule ” areignored, there can be no doubt whatever that the testatrix devised theentirety of the property by this clause. But the plaintiff’s Counselcontended that those words “ fifthly mentioned in the Schedule ” madeit clear that the devise was only of an undivided half share of theproperty. That contention was based on the fact that the fifthparagraph in the Schedule read as follows :—
“ The undivided half share of the land bearing assessment No. 50situated at Silversmith Street in the town of Colombo, bounded on theNorth by Silversmith Street, east by the land belonging to Ana Sampayoand south and west by the land belonging to J. L. Perera ; containingin extent twenty seven decimal sixty four perches (A 0. R0. P 27.64)together with the trees, plantations and the buildings belongingthereto ”.
The description given in the Schedule has been copied, most probably,from one of the deeds, Dl, D2, and D3, each of which dealt with anundivided half share of the property bearing assessment No. 50, situatedin Silversmith Street, Colombo. It is interesting to note that the deed1)3 appears to have been attested by the Notary attesting the last will.
It was argued by the plaintiff’s Counsel that the description of theproperty given in the clause was subordinate to the statement in theSchedule which referred to an undivided half share of the property. Iam unable to accept that contention. The testatrix described in theclause the property devised by giving its assessment number and situation.
124WIJii! YEWABDENE J.—Subramaniam v. Sivagu.ru
That description, shows clearly that what was devised was the entireproperty. That description, however, was insufficient for the exactdelimitation of the property in the absence of any reference to boundariesand extent. It is for that purpose that reference was made to theSchedule. It is true that the Schedule refers to an undivided half share,but it cannot be gainsaid that the property No. 50 is “ mentioned ” inthe Schedule. I do not think that in speaking of the property“ mentioned ” in the Schedule the testatrix intended to reduce the extentof her devise. To adopt the words of Lord Sumner in Eastwood v.Ashton1 to the facts of the case, the phrase “ mentioned in the Schedule ”qualifies but does not reduce the property. That phrase brought in theSchedule for the elucidation of the clause by giving the boundaries andthe extent of the property and not for the purpose of subordinatingthe clause to the Schedule by reducing the extent of the devise.
I would allow the appeal and dismiss the plaintiff’s action with costshere and in the Court below.
Jayetileke S.P.J.—I agree.
THE ARCHBISHOP OF COLOMBO, Appellant, and VEERAPATHIRAPILLAI, Respondent