1954 Present: Gunasekara J. and de Silva J.

MOHAMEDALY ADAMJEE et al, Appellants, and HADAD SADEEN
et al., Respondents

S. C. 72, with Application 203-D. C. Colombo, 5,951 L

Registration-Will-Probate-Failure to register it-Effect as against person claiming adverse interest under subsequently registered deed.

Fideicommissum-Claim by prescription as against fideicommissary-Burden of proof-Evidence Ordinance (Cap. 11), ss. 101, 103--Prescription Ordinance (Cap. 55), proviso to s. 3.

Partition Ordinance (Cap. 86)-Section 9--Finding of fraud and collusion-Final decree cannot be set aside on that ground.

The non-registration of the probate of a will affecting immovable property renders it void as against a person claiming an adverse interest under a duly .registered deed of a subsequent date. Therefore, where property of the estate

is disposed of by a devisee, who is also an heir of the deceased, or is sold against him in execution, upon an instrument which is registered prior to the probate of the will, the transferee obtains, in respect of any share or interest to which the devisee would have been entitled by law but for the will, a title superior to that of the executor or a party claiming under him.

Where a plaintiff claims title to immovable property by prescriptive possession as against a fideicommissary, the burden is on him to prove the point of time when the fideicommissary acquired, under the fideicommissum, a right of possession to the property in dispute and to establish that from that time he (the plaintiff) has been in possession for a period of ten years or more.

Fraud and collusion on the part of the parties to a partition action does not entitle the person defrauded to an order setting aside the decree entered in that action ; his only remedy, according to section 9 of the Partition Ordinance, is an action for damages.

APPEAL from a judgment of the District Court, Colombo.

H. V. Perera, Q.C., with S. J. Kadirgamar and B. S. C. Ratwatte, for the plaintiffs appellants.

E. B. Wikramanayake, Q.C., with V. Arulambalam, for the 1st to 8th, 13th, 21st, 29th to 31st, and 37 defendants respondents.

Cur. adv. vult.

February 10s 1954. GUNASEKARA J.-

In District Court Colombo Case No. 5,706/P, which was an action under the Partition Ordinance (Cap. 56), a decree was entered on the 30th April, 1950, declaring the respondents entitled to certain immovable property in Kollupitiya and directing a sale of the property under the Ordinance. On the 20th May, 1950, the appellants, who had not been parties to that action, instituted in the district court the action out of which this appeal arises, claiming title to the entire property and alleging that the respondents had obtained the decree in the partition action by fraud. They prayed that the district court should "set aside or vacate " that decree and declare that it was "null and void and of no force or effect in law " ; or, in the alternative, award them damages in a sum of Rs. 100,000. The learned district judge held that the appellants were entitled (up to the time of the decree in the partition action) to an undivided 1/16 share of the property and to compensation for certain improvements effected by them, and that the respondents " wrongfully, unlawfully, fraudulently and collusively " omitted to make them parties to the partition action or give them notice of it and that they obtained the decree in question by fraud. Upon this footing he awarded the appellants damages in a sum of Rs. 29,687.50 and ordered the respondents to pay them half the costs of the action. He held that the appellants were not entitled to have the decree in the partition case set aside, or to have it declared null and void or to be declared owners of the premises in question-

The property was originally part of the estate of one Idroos Lebbe Marikar, who died in 1876 and whose last will was admitted to probate on the 29th M