Rabot Et Al V. Neina Marikar Et Al.

1913 Present: Lascelles C.J. and Wood Renton J.

RABOT et al. v. NEINA MARIKAR et al.

333-D. C. Colombo, 33,129.

Joint will-Fidei commissum-Power to survivor to sell property in the event of its becoming dilapidated-Sale in breach of trust by surviving testator-Rights of bona fide purchaser-Death of fidei commissarius before fiduciarius.

A surviving spouse has no right to revoke a mutual will (a) if the mutual will disposed of the joint property on the death of the survivor, that is to say, where the property is consolidated into one mass for the purpose of a joint disposition of it; and (b) if the survivor has accepted some benefit under the will.

Even where a mutual will has massed the joint estate and the survivor has adiated and accepted benefits under the will, and he transfers or mortgages the joint estate to a bona fide purchaser or mortgagee, the transfer or mortgage as to half the estate, namely, the survivor's half, is valid and cannot be set aside by the legatees, who in such a case have a personal claim against the survivor for damages.

A joint will provided that the property was not to be mortgaged by the surviving testator, and that after the death of both the testators the property was to devolve on their daughter A, and after her death on her children and grandchildren. The joint will, however, permitted the surviving testator to sell the property only in the event of its becoming dilapidated; in that case he was obliged to invest the proceeds of the sale in accordance with the fidei commissum. The surviving testator sold the property in breach of the trust to one S, from whom the defendants derived title.

Held, that if the defendants were bona fide purchasers for valuable consideration (and without notice of the breach of trust) they were entitled t° a half share of the property.

Held, further, that the fidei commissum did not fail on A dying before the surviving testator, as A died leaving children.

THE facts are set out in the judgment of Wood Renton J.

Bawa, K.C. (with him Allan Drieberg and Bartholomeusz), for the appellants.-(1) Christina had an absolute power to sell the property under the joint will; the will only took away the right to mortgage; a prohibition against alienation should not be imported into the- will; the presumption is always a prohibition against alienation.

(2) The Court was wrong in holding that Christina had sold the properties in breach of the trust created by the joint will; the onus was on the plaintiffs to have proved affirmatively that the sale was effected in fraud of the legatees. The District Judge cannot question the sale by Christina; she was the sole judge as to whether the house was dilapidated or not. The evidence shows that the house is an old house. It is not open to the District Judge to go behind the decision of Christina.

(3) Christina had a right to sell at least a half share of the joint estate to a bona fide purchaser; the District Judge has not found that the appellants were not bona fide purchasers, and it is not averred that the appellants were not acting bona fide in purchasing the properties. The surviving testator in the case of a joint will is not in the position of a fiduciarius. He has full dominium as to a half share of the estate. The legatees have only a personal action against the surviving testator or the estate of the surviving testator; they have no real right to vindicate the lands from purchasers. Juta on Wills, 119-121, 112; Mendis v. Mohideen;1[(1902) 5 N. L. R. 317] Lewin on Trusts, 11th ed., pp. 527, 514.

(4) The fidei commissum failed on the death of Antoinette before Christina; Christina had therefore full right to sell a half share of the properties. Galliers v. Kycroft;2[(1898) 3 Bal. 74.] Mohommad Bhai v. Silva.3[(1911) 14 N .L .R 193]

(5) The joint will has not been proved on the death of Christina; there is no proof to that effect;

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