1935   Present   :  Koch J and Soertsz A.J.

SILVA v. SILVA.

 416-D. C. Colombo, 839.

Joint will-Property devised to survivor-All property in possession, reversion remainder or expectancy-Fidei commissum in favour of children- Right of survivor to deal with property acquired after the death of husband.

Where a joint-will contained the following clause: "We do hereby give and devise to the survivor of us all our immovable property whether in possession, reversion, remainder or expectancy (nothing excepted) subject to the express condition that such survivor shall not sell, lease, mortgage or otherwise alienate or encumber such property, but shall only enjoy the rents, profits, and income thereof during his or her natural life and that after his or her death the said property shall devolve on our children absolutely ",-

Held, that the survivor had no disposing power over property acquired by her after the death of the husband.

THE plaintiff instituted this action against his wife to recover a X sum of Rs. 2,027.79 alleged to be due to him as his half share of the rents and profits accruing from a property situated in Gasworks

street, Colombo, which the plaintiff alleged he owned in common with the defendant. The defendant sometime prior to the dates material to the suit executed a deed of gift in favour of the plaintiff, whereby she conveyed to him an undivided half share of the property. Thereafter the plaintiff executed a deed of lease in favour of the defendant in respect of the same property. Nothwithstanding the termination of the lease, the defendant remained in possession, appropriating the entirety of the rents and profits. There was no dispute as regards the rents and profits, but the defendant contended that, according to the terms of a joint will, she executed along with her former husband, she having contracted a marriage with the plaintiff forfeited her rights to the property, and consequently the deed of gift in favour of the plaintiff was ineffectual to pass title. The learned District Judge held that, inasmuch as the property dealt with under the deed of gift was acquired by her after the death of her former husband, the testator, the survivor's powers to deal with such property were unaffected by the terms of the joint will, and entered judgment for plaintiff. The defendant appeals.

N. E. Weerasooriya (with him Ranawake and T. S. Fernando), for the defendant, appellant.-The plaintiff at no time had possession. The document is a testamentary disposition; effect must be given to the testator's intentions. The appellant brought no property when she married the testator, the testator had considerable property; clearly he intended to provide for his children in the event of the appellant contracting a second marriage. By her marriage with the respondent she forfeited all rights. The testator clearly intended that she should forfeit not only her rights to his property, but to property she may acquire subsequently; Wirasinha v .Rajapakse[1 16 N. L. R. 356.] shows that a testator may deal with property in this manner. The words of the will are wide enough to cover the property dealt with by the defendant. There is evidence of adiation which the respondent has not rebutted.

Mackenzie Pereira, for respondent.-The plaintiff seeks to recover his share of the rents and profits, appropriated by the appellant. Our ownership cannot now be disputed. This is not an action for declaration of title to land. The appellant entered into possession of our half share as lessee. She cannot dispute our title, vide Ameer Ali on Evidence, p. 867. Section 115 of the Evidence Ordinance is quite clear. The deed of lease is pleaded and the appellant does not deny it. If the appellant wishes to dispute our title she must first surrender possession, and divest herself of the character of lessee. Vide Ameer Ali on Evidence, p. 868, Muthuneyien v. Samaraya[2 28 Mad. 526.