The Archbishop Of Colombo, V. Veerapathirapillai

1948     Present: Wijeyewardene A.C.J. and Jayetileke S.P.J.

THE ARCHBISHOP OF COLOMBO, Appellant, and
VEERAPATHIRAPILLAI, Respondent

S. C. 200-D. C. Colombo, 5,445

 

Will-Devise of property-Description in clause at variance with reference in schedule-Construction.

Where the relevant Clause of a Will described one of the properties devised as " the allotment of land bearing assessment No. 50 . mentioned in the Schedule " but the Schedule referred to the property as " the undivided half share of the land bearing assessment No. 50 "-

Held, that the phrase "mentioned in the Schedule" qualified but did not reduce the property. The phrase brought in the Schedule for the elucidation of the clause by giving the boundaries and extent of the property and' not for the purpose of subordinating the Clause to the Schedule by reducing the extent of the devise.

APPEAL from a judgment of the District Judge, Colombo.

H. V. Perera, K.C., with A. H. E. Molamure, for the defendant, appellant.

S. J. V. Chelvanayagam, K.C., with P. Navaratnarajah, for the plaintiff, respondent.

 

Cur. adv. vult.

 

July 6, 1948. WIJEYEWARDENE A.C.J.-

The subject matter of this action is a property bearing Municipal assessment No. 50, Silversmith Street, Colombo. It consists of a house and a small garden appurtenant to it. One W. P. de Silva was the original owner of that property. By deed No. 814 of October 31, 1924, (D 1) W. P. de Silva conveyed a half share to Mary Josephine Perera, and by deed No. 815 (D 2) of the same date W. P. de Silva conveyed the remaining half share to Jane de Silva who conveyed that half share to Mary Josephine Perera by deed D 3 of 1928. Mary Josephine Perera who was thus entitled to the entirety of the premises died leaving a last will which was duly proved in D. C. (Testy.) Colombo 2,208. By that last will the testatrix made a devise in respect of No. 50, Silversmith Street, directing that the property devised " shall dovolve on the Church of St. Joseph, Grandpass, Colombo, and the Parish Priest of the said church shall utilise the income thereof for the charities of the Society of St. Vincent de Paul ". The defendant-appellant makes his claim on that devise. The question that arises for determination is whether the defendant-appellant became entitled to the entirety of the property or only an undivided half share of it. The residuary legatees who appear to have taken up the position that the devise in favour of the defendant was in respect of only a half share claimed the other share under the residuary clause of the last will and mortgaged that half share by P3 in 1935 with one Visalatchi. That bond was put in suit, and at a sale held in satisfaction of the hypothecary decree entered in that case, the plaintiff purchased that half share and obtained a Fiscal's conveyance P4 of 1942.

 

The last will is in Sinhalese, The relevant clause transliterated into English reads as follows: -

" Mata danata ayitiva tibennavu niscal

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