De Livera Et Al. V. Abeysinghe Et Al.,

1938 Present: Maartensz S. P. J. and Keuneman J.

DE LIVERA et a. v. ABEYSINGHE et al.

16-D. C. Galle, 33,082.

Evidence Ordinance-Last will-Translation of a Dutch will Proof by secondary evidence-Res judicata-Question not decided in appeal-Ordinance No. 14 of 1895, s. 63.

An English translation of a document in another language cannot be regarded as secondary evidence of the original document under section 63 of the Evidence Ordinance.

Even if a document is admitted to the record by consent, that alone will not enable either party to prove by that document anything which under the Evidence Ordinance cannot be proved.
 
Where an appeal has been taken from the decision of an original Court and the Appellate Court does not think fit for some reason to decide the matter, the question is left open and is not res judicata.

THE plaintiffs brought this action against 203 defendants for the partition of Pokunebodawatta alias Pokunewalawwa. The plaintiffs contended that the original owner of the land was Nicholas Dias Abeysinghe Amerasekera, who left a last will dated May 21, 1793, whereby he devised the land in question to his heirs subject to a fidei commissum.

The 139th and 140th defendants denied that Nicholas Dias Abeysinghe left a last will dated May 21, 1793, and, even if he had, it did not create a valid fidei commissum binding to the 4th degree of succession. They further contended that the plaintiffs were not the only heirs of the 3rd and 4th degree of succession. Further, the defendants objected to the admission of the copy of the will which was not the original. It was a copy of a translation. The learned District Judge held in favour of the plaintiffs and the defendants appealed from this order.

F. A. Hayley, K. C. (with him E. B. Wikremanayake), for the 139th and 140th defendants, appellants. -The appeal involves three points of law. Firstly, the will must be proved. An alleged translation had been filed. It had been the subject-matter of several actions, but no probate had been granted. The procedure under the Dutch is unknown. The will must be proved. There is no evidence that the document is a last will so as to enable secondary evidence to be led under section 65 (3) of the Evidence Ordinance. Section 63 of the Ordinance defines the nature of secondary evidence. A translation is not a certified copy. In Abdul Rahiman v. Kanni Umma1 it was held that a translation of a deed of conveyance would not be admissible as secondary evidence to prove the contents of the original deed.

Secondly, this case involves the number of generations to whom the fidei commissum pass. The obiter dictum of Koch J. in Siri Kantha v. Thiagarajah 2 that a fidei commissum extends up to and including the fourth generation should not be followed. The only reference to the four generations is a decision in D. C. Galle, 23,376 3, but it is a decision with regard to the same will. Walter Pereira deals with this question on p. 446 of his Laws of Ceylon. Juta says that a fidei commissum is confined to four generations counting from the first fideicommissary heir or legatee (Juta on Wills, p. 103). Steyn, p. 200, says the same thing. Though the plaintiffs claim that they have an absolute title, the defendants submit that they have only a life-interest as the testator must not be included in the four generations.

Thirdly, as the plaintiffs have no absolute title, a partition should not be allowed. There are limits to the proposition that fidei commissum property can be partitioned. This point is discussed in Kuda Etana v. Ran Etana 4, though the question in that case was different. In Fernando v. Fernando 5, Sampayo J. stressed the inadvisability of dividing land subject to fidei commissum. The same proposition was laid down in wider terms by the learned Judge in Dassanaike v. Tillekeratne 6

[MAARTENSZ S. P. J. -Is there any provision corresponding

Click Here to Read the rest of this document