1937 Present: Abrahams C. J., Poyser S. P. J. and Maartensz J.

DE SILVA v. DE ALWIS

276-D. C. Colombo, 397.

Joint will-Massing of property for joint disposition-Meaning of property in ?reversion, remainder or expectancy?-Contingent interest included in disposition-Power of the survivor to alienate separate property-Separate property includes contingent interest-Forfeiture on remarriage.

Where a joint will of husband and wife was expressed in the following terms:

?We do hereby give and devise to the survivor of us all our immovable property whatsoever and wherever situate and 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 any 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 . . . .

?It is our will and desire that, if on the death of either of us, the survivor shall marry again, he or she shall thereupon forfeit all the life-interest hereby given to the survivor and such survivor so marrying again shall not be entitled to the income of any of our immovable property and all our immovable property shall immediately devolve absolutely on our children",-

Held, that the property of the spouses had been massed for the purpose of a joint disposition and that the survivor had no power, after adiating the inheritance, to dispose of her separate property.

The separate property, which could not be alienated, included property of which the survivor had only a contingent interest at the time of the will and which vested in her after the death of the other spouse.

Held, further, that the expression in reversion, remainder or expectancy included property of which the survivor, had only a contingent interest, as for example, the interest of a fideicommissary and that the disposition of such a contingent interest was valid under the Roman-Dutch law.

Held, also, that the forfeiture clause operated to deprive the survivor on re-marriage of her life-interest in her own property as well as in that of the first-dying spouse.

THE plaintiff instituted the present action for declaration of title to an undivided 1/16 share of a land called Bogahawatta, situated at Gasworks street in the Pettah against the four defendants, who are his step children, being the children of his wife by J. P. de Alwis. The plaintiff alleged that his wife executed a deed of gift, in his favour whereby she purported to convey the undivided 1/16 share. Sometime after the execution of the deed of gift, the plaintiff executed a lease in favour of the donor in respect of the undivided share and allowed her to remain in possession of the property as lessee; after the termination of the lease, his wife Eugenie remained in possession and continued to appropriate the rents, notwithstanding the termination of the lease. When the plaintiff instituted action against Eugenie, for the recovery of the rents, as overholding tenant, subsequent to the determination of the lease, she set up the defence, that in 1913, during the lifetime of her first husband she executed a joint last will whereby she forfeited her share of the property to her children consequent on her marriage to the plaintiff and accordingly her deed of gift in favour of the plaintiff was ineffectual to pass title, that her children were now appropriating the rents, and that she has no interest in the property. Accordingly the plaintiff instituted the present action against the defendants for declaration of title and mesne profits.

The defendants pleaded-

(1) That the deed in favour of the plaintiff conveyed no title; (2) that it was not open to Eugenie to execute the deed of gift in the plaintiff's favour. She having executed a joint will with h