1944 Present : Howard C.J. and de Kretser J.

DE SILVA, et al., Appellants, and DE SILVA, et al., Respondents

90-D. C. Colombo, 2,187

Last Will-Condition against marriage-Prohibition to marry outside the Buddhist Goigama community of the Sinhalese race-Condition void, for uncertainty.

Where a last will contained the following clause:-It is my will and desire that none of my aforesaid children shall contract a marriage with those not belonging to the Goigama community of the Sinhalese race or not professing Buddhism. Such a marriage should further be sanctioned by all or a majority from and out of the following five persons . . . . In case any of my children contract a marriage contrary to these instructions such child or children shall forfeit whatever rights they may have acquired under this will and the property left and bequeathed by me to such child or children shall enure to the benefit of the remaining children . . . .

Held, that the condition imposed by the will was void for uncertainty.

Held, further, that where one climb of a composite condition is void it would sufficient to defeat the forfeiture.

APPEAL from an order of the District Judge of Colombo. The facts appear from the headnote.

N. Nadarajah, K. C. (with him E. G. Wikremanayake), for the fourth to seventh, ninth and tenth defendants, appellants.-Although  conditions in general restraint of marriage are void as being against public policy conditions in partial restraint of marriage are valid-Vol. 34 Laws of England (Hailsham), pp. 107-8; Theobald on Wills (8th ed.), p. 705, Steyn's Law of Wills in S. Africa (1935 ed.), pp. 69-70. Clause 12 of the will in this case imposes conditions only in partial restraint of marriage. It was not intended that the devisees should remain unmarried. What was prohibited was marriage with any person other than a Sinhalese Goigama Buddhist. Such a prohibition is valid and failure to observe it would result in forfeiture. Hodgson v. Halford [1 L .R. (1879) 11 Ch. D. 959.]; Jenner v. Turner [2 L. R. (1880-1) 16 Ch. D. 188.]; and In re Bathe [3 L. R. (1925) Ch. 377] are in point, although Sifton v. Sifton [4 L. R. (1938) A. C. 656.] and In re Blaiberg [5 L. R. (1940) Ch. 385.] express a conflicting view.

The conditions in clause 12 have, as the trial Judge holds, to be considered seriatim. Even if the terms "Goigama community" and "those not professing Buddhism" are vague and uncertain there can be no doubt with regard to what was meant by "of the Sinhalese race". This last condition has clearly not been complied with, as the plaintiff, having married a Burgher lady, admits. The plaintiff cannot, therefore, claim any share under the will.

H. V. Perera, K. C. (with him M. T. de S. Amerasekere, K. C., and H. W. Jayawardene), for the plaintiff, respondent.-Clause 12 of the will speaks of one composite condition and not of a series of conditions. It is void 

for uncertainty, and almost amounts to a general restraint of marriage. Clayton v. Ramsden [1 (1943) 1 A. E. R. 17.] is directly in point. One's faith is a matter of one's conscience and cannot be ascertained by a definite test. A condition subsequent, to be valid, must be clear and certain and must be such a limitation that at any given moment of time it is ascertainable whether the limitation has or has not taken effect-Sifton v. Sifton [2 L. R. (1938) A. C. 666 at 671.]. The expression "Goigama community of the Sinhalese race" too is vague. As regards the condition that each devisee should, before marriage, obtain the consent of the five persons mentioned in the will there is no provision as to what should happen if some or any of them die or refuse to act.

N. E. Weerasooria, K. C. (with him S. E. J. Fernando), for the first defendant, respondent.

E. B. Wikremanayake (with him G. T. Samarawickreme), for the second and third defendants, respondents.

N. Nadarajah, K. C., in reply.-A condition