1915 Present : Ennis J. and Shaw J.

BRITO v. MUTHUNAYAGAM.

331-D. C. Negombo, 9,946.

Ante-nuptial contract-Interpretation-Communio quaestuum must be expressly excluded-Roman-Dutch law-Prescription-Co-owners.

Under the Roman-Dutch law ante-nuptial contracts were strictly interpreted, and unless the document expressly renounced the communio quaestuum, property acquired during the subsistence of the marriage was deemed to be held in community.

An ante-nuptial agreement contained the following clause: -

" In consideration of the premises the said Tangamma doth hereby renounce all right to community so far as the property, estate, and effects of the said Christopher Brito are concerned, it being under stood that the said Christopher Brito shall have, hold, and enjoy his separate property, without any claim thereto on the part of Tangamma."

Held, that the communio qucestuum was not excluded by the above clause.

THE facts are fully set out in the judgment.

E. W. Jayewardene (with him Balasingham, Obeyesekere, Canekeratne, and Loos), for appellant.

A. St. V. Jayewardene (with him Allan Drieberg and Samarawickreme), for respondent.

Cur. adv. vult.

December 10, 1915. ENNIS J.-

Christopher Brito and Tangamma Nannitamby married in 1866, having executed an ante-nuptial agreement which contained the following clause:-"In consideration of the premises the said Tangamma doth hereby renounce all right to community so far as the property, estate, and effects of the said Christopher Brito are concerned, it being understood that the said Christopher Brito shall have, hold, and enjoy his separate property, without any claim thereto on the part of Tangamma."

In 1879 Nannitamby, the father of Tangamma, sold to Christopher Brito an estate called Dombawinne.

Tangamma died in 1900, Christopher Brito in 1910, leaving surviving them four children, Philip, Christopher, Teresa, and Aloysia.

Philip died in 1911, and his wife, the plaintiff, sues as executrix of his estate.

Teresa died in 1905, and her husband, one Senathiraja, is the plaintiff in a connected case.

Aloysia, the first defendant in the case, married the second  defendant.

Christopher Brito left all his property by will to his daughter Aloysia.

The plaintiff contends that the Dombawinne estate was held by Christoper Brito and his wife Tangamma in community of property, and that on the death of Tangamma her half share devolved upon the children in equal shares. She claims as executrix of Philip a one-eight share.

The learned District Judge held that Tangamma had renounced her right to community of property in Dombawinne by the ante-nuptial agreement, and that the property was the separate property of Christopher, and passed under his will to the first defendant. The learned Judge also decided an issue as to prescription in the defendant's favour, and dismissed the plaintiff's claim. The plaintiff appeals.

There are two points for determination on the appeal:-First, whether Dombawinne was held by Christopher and Tangamma in community of property; and second, if so, whether the respondents have established a prescriptive title.

The determination of the first point turns on the construction of the ante-nuptial agreement. I can see no ambiguity in the terms of this document, and accordingly no oral evidence can be considered in deciding the meaning. The Roman-Dutch law with regard to the interpretation of such documents is perfectly clear. There was a strong presumption in favour of community, and unless the community was expressly renounced the presumption prevailed. So, where in the document the communio omnium bonorum was renounced, the communio qucestuum was deemed to be included. Briefly, a renunciation of the communio omnium bonorum covered all property in which the parties had an interest at the time of the marriage, the communio qucestuum all other property acquired during the subsistence of the marr