Paramanathan Et Al. V. Saravanamuttu

Present : Garvin and Drieberg JJ.

PARAMANATHAN   et   al.  v. SARAVANAMUTTU.

121-D. C. (Inty) Trivcomalee, 63.

    Joint will-Dispositions by two spouses-Massing of property-Benefit under will-Survivor's right of free disposition.

Where a joint will made by two spouses contained the following clauses :-

(3) All property movable as well as immovable now belonging and which may hereafter belong to me the said S. T., after my death, shall devolve on my wife N., subject to the stipulation which I have made hereby.

(5) In case my wife N. shall predecease me the said S. T., the property of all description, movable and immovable, which shall
lawfully belong to me according to this last will and by right of being married to her, after my death shall devolve in equal half
shares on her heirs and mine.

(6) The entire movable and immovable property of all description   and   of whatsoever kind now belonging  and which may hereafter belong to me the said N., shall wholly devolove on my lawful husband S. T. after my death.    In case of my husband predeceasing me, I shall have and retain all the property movable and immovable belonging to me according to this last will and by right of being married to him without subjecting them   to mortgage, otti, transfer, gift, or other deeds and shall enjoy solely the income and profits thereof, but after my death such property shall devolve in equal half share on his heirs and mine.

Held, that the property of the spouses had not been consolidated for the purpose of a joint disposition and that the surviving husband was free to make a new disposition of his property by will.

APPEAL from an order of the District Judge of Trincomalee. By his last will of January 11, 1923, one Tampar left all his property to the appellants and appointed 1st appellant executor, to whom probate was granted on June 30, 1924. Tampar and his wife Nakamuttu, who predeceased him, were married in community of property and they made a joint will on October 17, 1896. The 1st, 2nd, 3rd, and 4th respondents, who are the heirs of Nakamuttu, say that the joint will disposed of the common estate on the death of the survivor by which a half devolved on the heirs of Nakamuttu and the other half on the heirs of Tampar. Tampar proved the will of Nakamuttu in case No. 378, obtained probate, and admittedly remained in possession of the whole estate until his death in 1923.

The learned District Judge held that the disposition made as to      1928. the devolution of the entire estate on the death of Tampar was not revocable by him after the  death of Nakamuttu, and entered than v. Sara-decree   declaring   the   respondents   entitled   to a   half  share   of   Tampar's estate.

Hayhy, K. G. (with N. E. Weerasooriya), for appellants.

H. V. Perera (with Majapakse), for respondents.

September 24, 1928.   Drieberg J.-

The appellants are the respondents to a petition of August 27, 1927, by the respondents to this appeal.

By his last will of January 11, 1923, Tampar left all his property to the appellants, who are his nephews, and appointed the 1st appellant executor. Probate was granted to the 1st appellant on June 30, 1924.

Tampar and his wife Nakamuttu, who predeceased him, were married in community of property and they made a joint will on October 17, 1896. The 1st, 2nd, 3rd, 4th, and 6th respondents, who are the heirs of Nakamuttu. say that this will made a joint disposition of the common estate on the death of the survivor, by which a half was to devolve on the heirs of Nakamuttu and a half on the heirs of Tampar. The appellants are heirs of Tampar,. but it does not appear that they are the sole heirs.

Tampar proved the will of Nakamuttu in case No. 378, obtained probate, and admittedly remained in possession of the whole estate until his death on January 13,1923.

When the 1st appellant applied for probate of Tampar's will of January 11, 1

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