Sangaramorthy Et Al. V. Candappa Et Al.,

1932 Present: Garvin S.P.J. and Lyall Grant J.

SANGARAMORTHY et al. v. CANDAPPA et al.

429-433-D. C. Colombo, 20,984.

Mutual will-Spouses married in community of property-Massing of whole estate-Life interest of survivor-Gifts to children-Vesting of inheritance -Dominium in survivor-Sale of property against survivor for default in payment of rates-Interest of defaulter-Municipal Council; Ordinance.. No. 17 of 1865, ss. 83 and 85.

A certificate of sale issued under section 85 of the Municipal Councils Ordinance, No. 17 of 1865, passed to the purchaser at the sale nothing more than the title of the defaulter.

What the Council is authorized to seize and sell is the property of the person who is " the proprietor " for the time being.

Where under a mutual will of spouses, married in community of property, each spouse, with the consent of the other, dealt with the common estate, subject to the life interest of the survivor, the survivor remains vested with the dominium to half the common estate, notwithstanding the fact that first dying spouse has, with his consent, executed a will by which he bequeathed the whole.

When the survivor takes some benefit in the half share of the first dying spouse, his right to revoke the will so far as it relates to his half snare is at an end and he is bound to permit the will to take effect.

The legatees them become vested with the corresponding right to compel the survivor to observe the will and its terms by specific performance or other appropriate action.

But the act of the survivor in taking benefit under the will does not of itself pass the dominium in his half share to those to whom it has been bequeathed.

THIS was a partition action in which the plaintiffs asked for a declaration that they and certain of the defendants were entitled to the entirety of the corpus in specified shares, subject to a fidei commissum created by the joint will, dated July 31, 1860, of one Candappa and his wife, Lucia. The testator died shortly after the making of the will and probate was granted to Lucia on June 16, 1862. In 1875 these premises were seized and sold for non-payment of rates. A certificate dated March 5, 1875, in the prescribed form, under section 85 of the Municipal Councils Ordinance, No. 17 of 1865, was issued to Don Jusey, the purchaser. The added defendants intervened and claimed to be entitled in various interests in severalty which exhausted the whole corpus, alleging that their respective titles flowed from Don Jusey. The learned District Judge held that plaintiff and certain of the defendants were entitled together to half the land, and certain of the added defendants to the other half. From this judgment the added defendants entered appeals Nos. 432, 433, 430, 429, and plaintiffs appeal, No. 431. All the appeals were argued together.

Croos Da Brera, for seventh added defendant, appellant in No. 429, and for respondent in all others.-In an action in 1877 the widow Lucia sued Amaris for declaration of title. Lucia represented her husband's estate and Amaris was our predecessor. The action was dismissed and the

decree is, therefore, res judicata. The property was sold for non-payment of taxes by the estate. The certificate of sale therefore gave absolute title to the purchaser and the fidei commissum was wiped out. The rates were a charge on the property, and under the Municipal Councils Ordinance, No. 17 of 1865, what was sold was the property itself and not the interest of any particular person. The land has been dividedly possessed for over 30 years and the parties have made considerable improvements. A partition action is therefore not appropriate. Plaintiffs' proper remedy is an action rei vindicatio in respect of each block. The present action is an abuse of the Partition Ordinance and has saddled the parties with unnecessary and heavy costs.

De Zoysa, K.C. (with him Rajapakse), for

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