CASIM et al. v. DINGIHAMY et al.

Present : The Hon. Mr. A. G. Lascelles, Acting Chief Justice,
Mr. Justice Wendt, and Mr. Justice Middleton.

CASIM et al. v. DINGIHAMY et al.

D. C., Matara, 2,885.

Powers of Executor-Will proved before Charter of 1833-Fidei commissum property-Sale by Executor-Roman-Dutch Law-Thirty years' possession -Fidei commissarius - " Disability " - Prescription - Ordinance No. 22 of 1871.

Held (by the Pull Court), that the executor under the Roman-Dutch Law was merely an agent of the heir and had not the same power and authority as an executor under the English Law.

The powers of an executor appointed under a will proved before the date of the Charter of 1833 must be regulated by the Roman-Dutch Law and not by the English Law.

According to the Roman-Dutch Law property burdened with a fidei commissum cannot be alienated by the executor except for the payment of the testator's debts and legacies, and then only, if there is no other property available for the purpose; or with the consent of all the beneficiaries under the fidei commissum; or where the property is perishable; or on certain special grounds with the leave of the Court. When fidei commissum property is improperly alienated the fidei commissarius is entitled to follow it into the hands of the purchaser and to assert his title by rei vindicatio.

Per MIDDLETON J.-When an executor deals with property burdened with a fidei commissum, it is his duty to observe the special rules of the Roman-Dutch Law in substance and in practice, so far as his office is compatible therewith.

Section 14 of Ordinance No. 22 of 1871, enacts as follows:-

" Provided, nevertheless, that if at any time when the right of any person to sue for the recovery of any immovable property shall have first accrued, such person shall have been under any of the disabilities hereinafter mentioned-that is to say, infancy, idiotcy, unsoundness of mind, lunacy, or absence beyond the seas-then and so long as such disability shall continue the possession of such immovable property by any other person shall not be taken as giving such person any right or title to the said immovable property, as against the person subject to such disability or those claiming under him, but the period of ten years required by the 3rd section of this Ordinance shall commence to be reckoned from the death of such last-named person, or from the termination of such disability, whichever first shall happen; but no further time shall be allowed in respect of the disabilities of any other person. Provided also that the adverse and undisturbed possession for thirty years of any immovable property by any person claiming the same, or by those under whom he claims, shall be taken as conclusive proof of title in manner provided by the 3rd section of this Ordinance, notwithstanding the disability of any adverse claimant."

Held (by the Full Court), that " disability " means incapacity to do legal acts, and that a fidei commissary whose right to possession has not accrued cannot be said to be under " disability " within the meaning of this section.

Held, also, that this section and its proviso in no way affect the proviso to section 3 of the Ordinance, which enacts that " the said period of ten years shall only begin to run against parties claiming estates in remainder or reversion from the time when the parties so claiming acquired a right of possession to the property in dispute," and that thirty years' possession does not give prescriptive title against parties whose right to possession had not accrued.

D. C. Matara, 3,236(1S. C. Min., April 3, 1905.) overruled.

ACTION rei vindicatio. The plaintiffs alleged that Kunji Packeer Meera Kandu Shroff was the owner of the land called Addaraederawatta; that he died on 28th April, 1828, leaving a last will

and testament dated 17th April, 1826, whereby he devised the said property to Sheikh Abdul Cader and Adibu Natchiya i

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