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KIRTHISINGHE v. THE ARCHBISHOP OF COLOMBO
NLR50V498
1948 Present: Basnayake
and Gratiaen JJ.
KIRTHISINGHE,
Appellant, and THE ARCHBISHOP OF COLOMBO,
Respondent
S. C. 148-D. C. Negombo, 14,045
Last
Will-Property bequeathed belonging to testator and another-Rights of
legatee-Election-Principles applicable.
Where property bequeathed belonged to the testator jointly with,
another he is, in case of doubt, presumed to give only his own share.
The doctrine of election does not operate unless the person
alleged to have made the election knew his alternative rights and knew that he
was under a legal obligation to make a choice.
APPEAL from a judgment of the District Judge, Negombo.
D. W. Fernando, for plaintiff appellant.
C. V. Ranawake, for defendant respondent.
June 29, 1948. BASNAYAKE J.-
This is an action by one Earnestine May Kirthisinghe nee
Fernando against the Archbishop of Colombo. The plaintiff claims all but
one-fourth share of an allotment of land in extent 2 and 93/100 perches,
according to the plan dated January 24, 1890, made by W. C. Fernando, Surveyor,
together with the tiled building bearing assessment No 283: now bearing
assessment No. 272 standing thereon. The defendant- claims one-half of the
land. The dispute is in respect
of one-fourth
share (hereinafter referred to as the
disputed share). The learned trial Judge has dismissed the plaintiff's action
with costs, and the present appeal is from that decision.
Learned counsel for the appellant at the very outset
indicated that he could not support the claim of the plaintiff to the whole of
the disputed share and restricted his claim to one-eight of one-fourth of
premises No. 272 ; in other words, to one thirty-second share of it. His reason
for so restricting the plaintiff's claim is that she is one of eight children
who would become entitled to the disputed share by right of inheritance.
It appears from the evidence that one Virisida
Fernando (hereinafter referred to as Virisida) was married to one John Peiris
in 1878. At the time of her marriage she owned an undivided half share of
premises No. 272 by right of inheritance, and her brother Stephen Manual
Fernando owned the other undivided half. By deed No. 3,980 dated December 30,
1876 (P 1), Stephen Manuel Fernando agreed to give his share to his sister on
her marriage to John Peiris, which he conveyed jointly to Virisida and John
Peiris by deed No. 29,649 dated March 4, 1892 (P 3). John Peiris died in 1918
leaving a will dated November 11, 1918 (P 4), the material terms of
which are as follows:
" I give and devise the whole of my residing
property situated at Grand Street, Negombo, bearing assessment No. 79 called
and known as Suriyagahawatta to my nephew Kurukulasuriya Alfred Benjamin
Christopher Piries of Grand Street, Negombo, son of my cousin Kurukulasuriya
John Pieris whom I have been adopting subject to a life interest in favour of
my wife Kurukulasuriya Virisida Fernando of Grand Street. Negombo, and subject
also to the condition and restriction that my said nephew shall not have the
right or power to sell, gift, mortgage or lease for a period not exceeding tw
