Abeyesundere V. Abeyesundere

Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
and Mr. Justice Grenier.

ABEYESUNDERE v. ABEYESUNDERE.

D. C., Galle, 8, 707.

Partition-Land subject to fidei commissum.

A land which is subject to a fidei commissum may be partitioned or sold under the Partition Ordinance.

Obiter: Hutchinson C. J. - Where it is not practicable to partition the land and a sale is ordered under the Partition Ordinance, it might be right to have a petition presented under Ordinance No. 11 of 1876 and to make the order under both the Ordinances, so that the purchase money may be dealt with in one of the ways directed by the latter Ordinance.

APPEAL from a judgment of the District Judge of Galle. This was an action to partition a land alleged to be subject to a fidei commissum. The will by which the fidei commissum was created contained a direction that the management of the estate should be left entirely in the hands of the first defendant, and that he be allowed a salary as superintendent, independent of his own one-third share. The District Judge ordered a partition as prayed for, subject to the fidei commissum; the decree further directed that each divided one-third should be liable to pay to the first defendant Rs. 100 monthly by way of salary for the management.

The first defendant appealed.

Bawa (with him H. A. Jayewardene), for the appellant. -The Full Court has held that a fidei commissum property cannot be partitioned or sold under the Partition Ordinance {Ramanathan, 1877, 304).

The Ordinance No. 11 of 1876 was in operation at the time of the decision of that case. That decision is binding. The first case to indicate the opinion that fidei commissum property may be partitioned is Sathienader v. Mathes Putte. 1 That case converted a partition action into an application under Ordinance No. 11 of 1876, Baby Nona v. Silva 2 could not have the effect of over-ruling Full Court case reported in Ramanathan, 1877. In Baby Nona v. Silva, 2 Voet appears to have been misunderstood. The Privy Council has expressly held in Tillekeratne v. Abeysekera3 that the Partition Ordinance is "limited to cases in which the persons interested, whether as joint tenants or tenants in common, are full owners, and are not burdened with a fidei commissum. " Section 18 of Ordinance No. 10 of 1863 refers to property " held in common. " This land is not held in common, there is a right of survivorship created by the instrument. Counsel also cited De Saram v. Perera, 4 2 Burge 677, 678, and 1 Nathan 391.

Walter Pereira, K. C., S. -G., for the respondent (plaintiff). -The case reported in Ramanathan, 1877, was instituted before Ordinance No. 11 of 1876 was proclaimed (see 3 N. L. R. 200). Section 18 of the Partition Ordinance has no application. Baby Nona v. Silva 2 has reviewed all previous authorities, and is a binding decision. Voet has been wrongly printed in the report of Baby Nona v. Silva, 2 but the original passage in Voet bears the construction put upon it by Lascelles A. C. J.

Bawa, in reply.

Cur. adv. vult.

November 17, 1909. Hutchinson C. J. -

The question which has been argued on this appeal is whether the land, to the possession of which the plaintiff and the defendants are entitled, subject to a fidei commissum in favour of their issue, can be partitioned under the Partition Ordinance, No. 10 of 1863.

The District Judge having held that, under the will under which the parties claim, each of them is entitled to one-third of the land, subject to a fidei commissum in favour of their children and grandchildren, allotted the land and ordered partition accordingly. The will also contains a direction that the management of the estate should be left entirely in the hands of the first defendant Bennett, and that he be allowed a salary as superintendent, independent of his one-third share; and the decree directs that each divided one-third shall be liable to pay to the first defendant R

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