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KADIJA UMMA et al. v. MEERA LEBBE et al.
NLR11V75
[IN REVIEW.]
Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Middleton, and Mr. Justice Wood Renton.
KADIJA UMMA et al v. MEERA LEBBE et al.
Election, doctrine
of-Approbation or reprobation-Knowledge of testator -Fact of election-English
Law-Roman-Dutch Law.
A person who accepts a benefit under a deed or will is bound
to confirm the whole instrument, conforming to all its provisions and renouncing
every right inconsistent with them.
Noys v. Mordaunt 1 followed.
This rule applies whether the testator thought he had the
right, or, knowing the extent of his authority, intended by an arbitrary
exertion of power to exceed it.
Whistler v. Webster 2 followed.
HEARING in review at the instance of the plaintiffs of the judgments of the Supreme Court reported in (1903) 7 N. L. R. 33, where the facts are fully stated.
Bawa, Acting S.-G. (with him H. A. Jayewardene), for the plaintiffs, appellants.
Sampayo, K.C., for the defendants, respondents.
Cur. adv. vult.
March 6, 1908. HUTCHINSON C.J.-
The claim in this action is that the first
plaintiff may be declared entitled to an undivided one-fourth of premises in
Main street, Colombo,
and for mesne profits, and for possession. The contest is now as to part only of
the premises, viz.., No. 90. The second plaintiff is joined as the first
plaintiff's husband and the defendants are her brothers.
By deed of July 17, 1872, the grandfather of the first plaintiff and of the defendants conveyed the premises to their father Ibrahim Lebbe; and it has been held by this Court, and is not disputed, that this deed created a fidei commissum, after Ibrahim Lebbe's
1 (1706)
2 Vern. 581.
2 (1794)
2 Ves. Jun. 367.
death, in favour of his four
children, the first plaintiff and the defendants, and their issue; so
that on his death the first plaintiff became entitled under it to one
undivided fourth of the premises. for her life.
Ibrahim Lebbe, by his will dated January 29,
1893, gave No. 90, Slain street, specifically to the defendants, and, after
another specific devise, directed that all the residue of his property should go
to his wife and his said four children " according to our religion." He died on
January 31, 1893. His will was proved on March 4, 1893. The inventory filed on
June 22, 1893, enumerates a large number of properties belonging to the estate,
including the' other property specifically devised, but does not include No. 90,
Main street.
By deed of November 10, 1893, made between the
widow and the four children and the daughter's husband, after reciting that the
testator was entitled to the properties mentioned in the schedule thereto, and
reciting his will and death and the probate of the will, and reciting that
according to the Muhammadan religion the widow was entitled to one-eighth share
of the residue and the daughter to one-eighth, and each of the three sons to
two-eighth shares, and that the parties had agreed to a division of all the
immovables, certain divided portions thereof enumerated in the five parts of the
schedule were allotted to and accepted by each of the five parties in full
satisfaction of their said shares.
The defendants have been in possession of No.
90, Main street, ever since the testator's death; and the parties have been in
possession of the shares allotted to them by the deed of 1893 ever since the
execution of that deed.
The plaintiffs brought this action on December
15, 1900. The defendants in their answer first said that the provision in the
deed of July 17, 1872, in favour of the children of Ibrahim Lebbe, was expressly
subject to the qualification that he might give the premises to his heirs (a
defence which is not now insisted upon), and they further said that the first
plaintiff, after the death
