[PRIVY COUNCIL.]

1918 Present: Lord Buckmaster, Lord Dunedin, and Lord Wrenbury.

BRITO v. MUTTUNAYAGAM.

D. C. Negombo. 9,946.

Ante nuptial contract-Exclusion of communio bonorum--Communio quantum -Prescription-Co-owners.

An ante-nuptial contract entered into before Ordinance No. 15 of 1878 came into force provided as follows: " 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 Brito shall have, hold, and enjoy his Separate property without ANY claim there to on the part of the said Tangamma."

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

After the death of Tangamma, the property acquired after marriage by Brito was possessed by him for over ten years.

Held, that as the children were  co-owners with the father his  possesion was not adverse, though there were strained relations between father and children

" The question turns on whether Corea v. Appuhamy 1[(1912) A. C. 230.] applies. and that depends on the true character of . the interest in the estate, to wit, the half share in communion which on the death of the lady passed to the next of kin. If that interest is or is analogous to the interest of co-parcenary the case applies; if it is a mere right of action again.?: the surviving husband it does not. In the latter case the defence is clearly good, whether under the limitation of ten years as applying to suits in connection with land, or under the limitation of three years, which applies to all rights of action not specifically dealt with."

THE facts are set out in the judgment. The judgment of the Supreme Court is reported in 19 N. L. R. 38.

July 22, 1918. Delivered by LORD DUNEDIN : -

The late Christopher Brito, Advocate in Ceylon, married, in June, 1866 Tangamma Nanny Tamby, a Tamil lady. The lady's father was possessed of a property called Plopalle, which he was willing to settle on the spouses. Accordingly an ante-nuptial contract of marriage was entered into between the affianced spouses to which the father of the lady was a party, by which Plopalle was settled on the spouses and survivor in life interest, and after their death on the children of the marriage, whom failing on the heirs of the lady.

The spouses had four children, two sons and two daughters; the eldest son, Philip Brito, married a wife, Lily. He died in 1911 leaving a will in favour of his wife and children, and appointing his widow executrix. The elder daughter, Theresa, married Elangai Seni Wasager Senathi Raja. She died in 1905, leaving a will in favour of her husband. The younger daughter, Aloysia, married A. M. Muttunayagam, and is with her husband appellant in this suit.

After his marriage Christopher Brito acquired an estate called Dombawinne.

Tangamma Brito died on March 31, 1900. C. Brito died on December 26, 1910. and left a will in favour of his daughter, Aloysia. appointing her husband as his executor.

After the death of the wife, Tangamma, there were violent family quarrels and estrangement between Brito and his eldest son. No claim was made against Brito in his lifetime, after the death of hi& wife by any of the children as in right of their mother. There had also been quarrels between the husband and wife, but they had been settled by the husband giving up his life interest in plopalle.

The two actions which are consolidated in this appeal ware raised, the one by Lily, the widow of the eldest son, as his executrix, and the other by Senathi Raja, as executor of his deceased wife, Theresa and were both directed against Aloysia and her husband, who, as beneficiary and executor of C. Brito, were in possession of the estate of Dombawinne. The demand of each plaintiff is for a declaration of right to one-eighth share of Dombawinne. The claims are made as in right of their share of their mother Tangamma's s