Archbishop Of Colombo V. Don Alexander

1952 Present    :   Gratiaen J. and Pulle J.

ARCHBISHOP OF COLOMBO, Appellant, and DON ALEXANDER, Respondent

S. C. 168.-D. C. Colombo, 4,483L

Fideicommissum by will-Multiplex fideicommissum-Perpetual succession-Jus accrescendi-Will-Subsequent codicil-Interpretation.

Clause 21 of a last will of 1807 was in the following terms :-

" The testator bequeaths beforehand to his three children . . . . and likewise to the two children of the testator's deceased daughter . . . . (the property is here described) . . . . with the wish that not only must the said portion of the garden and the paddy field remain unsold in order that all his abovementioned children and grandchildren might enjoy the profits therefrom . . . . but also if one of the said children or grandchildren of the testator should happen to die without leaving lawful descendants behind, then his or her share must devolve to the testator's other children and grand-children who are alive ".

Held, that even if the words created a fideicommissum, they provided for only one grade of fideicommissaries end did not create a multiplex fideicommissum.

Per GRATIAEN J.-The clause did not create a valid fideicommissum. The presumption in favour of direct as opposed to fideicommissary substitution was not rebutted by the language of the will.

Quaere : Where a will was admitted to probate together with subsequent codicils, is the absence of evidence of the contents of the codicils a bar to giving effect to a particular clause of the will in a later action ?

APPEAL from a judgment of the District Court, Colombo.

N. E. Weerasooria, Q.C, with G. T. Samarawickreme and Vernon Wijetunge, for the defendant appellant.

H. V. Perera, Q.C, with C Thiagalingam, Q.C, and J. M. Jayamanne, for the plaintiff respondent.

Cur. adv. vult.

March 24, 1952. GRATIAEN J.-

This is an appeal by the defendant, who is the Archbishop of Colombo, against a judgment of the Additional District Judge of Colombo declaring the plaintiff entitled to an undivided 1/6 share of certain premises in Colombo hereafter described for convenience as " the Madampitiya property ".

The plaintiff claimed undivided shares in the Madampitiya property as well as in certain other premises under a deed of purchase in his favour dated 3rd November, 1941. His claim against the defendant in respect of the other premises has been rejected by the learned trial Judge and does not arise for consideration on the present appeal.

Admittedly the defendant, and those under whom he claims, had continuously possessed the entirety of the Madampitiya property ut dominus for over half a century, and under normal circumstances the plaintiff's claim would for this reason be barred by the provisions of section 3 of the Prescription Ordinance. He seeks, however, to defeat this plea of prescription by tracing the legal title of his vendors to the provisions of clause 21 of the " last will and testament "P1 dated 30th August, 1807, of a gentleman named Saviel Dias who thereby, in the plaintiff's submission, created in respect of the Madampitiya property " a valid fidei commissum in perpetual succession binding on (the immediate devisees) and their descendants to the fourth degree of succession ."

Mr. Weerasuriya concedes that if the plaintiff's legal title is in fact derived from clause 21 of the will P1 and if the provisions of clause 21 did create a valid fidei commissum which was effectual under the Roman-Dutch Law for four generations, the defendant's plea of prescription must fail by a very short period of time. Mr. H. V. Perera admits, on the other hand, that the plaintiff's claim is very clearly barred by prescription unless a multiplex fidei commissum such as his client contends for had been created by clause 21. It therefore follows that the present appeal must depend upon the applicability and the proper interpretation of clause 21 of the last will

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