1959 Present: Basnayake, C.J., and Pulle, J.

M. M. MOHAMED, Appellant, and SITTI CADIJA et al., Respondent8

S. C. 292-D. C. Colombo, 7841/L

    Fideicommission created by will-Posthumous child born to testator-Testotor's lawful heirs designated as entitled to toke their respective shares according to the Shafie sect-Testator's children's grandchildren designated as ultimate fideicommissaries-Division of properties between testator's widow and children including posthumous child- Validity of conveyance to posthumous child- Prescription against a fideicommissary-Burden of proof-Prescription Ordinance (Cap. 55), proviso to s. 3. "-.

A fideicommissum by will executed on 12th December 1872 by a testator (a Muslim) who died in 1876 provided as follows :-

"I do hereby will and desire that my wife-, and my children-(5 sons and 2 daughters), and my father-, who are the lawful heirs and heiresses of my estate shall be entitled to and take their respective shares according to my religion and Shafie sect-to which I belong, but they nor their heirs shall not sell, mortgage or alienate any of the lands, houses, estates or gardens belonging to me at present or which I might acquire hereafter, and they shall be held

in trust for the grandchildren of my children and the grandchildren of my heirs and heiresses only that they may receive the rents, income and produce of the said lands, houses, gardens and estates without encumbering them in any way or the same may be liable to be seized attached or taken for any of their debts or liabilities, and out of such income, produce and rents, alter defraying expense for their subsistence , and maintenance of their families the rest shall be placed or deposited in a safe place by each of the party, and out of such surplus lands should be purchased by them for the benefit and use of their children and grandchildren as herein before stated, but neither the executors herein named or any Court of Justice shall require to receive them or ask for accounts at any time or under any circumstances, except at tilile8 of their minority or lunacy.

I further desire and request that after my death the said heirs and heiresses or major part of them shall appoint along with the executors herein named three competent and respectable persons of my class and get the movable and immovable properties of my estate divided and apportioned to each of the heirs and heiresses according to their respective shares, and get deeds executed by the executors at the expense of my estate in the name of each of" them subject to the aforesaid conditions. "

A "posthumous" child was born to the testator after the execution of the will and before his death. The testator's father predeceased the testator.

In the testamentary case following the death of the testator. a division of the properties of the testator was effected in 1878 by the executor between the widow and children of the testator. with the sanction of Court. In that division the property, which was the subject matter of the present action, was conveyed to the eighth and posthumous child of the testator on the basis that each of the six sons (including the posthumous child) was entitled to 216th of the estate according to the rules of intestate succession under the Muslim law. From 1878 onwards the posthumous child and his heirs were in possession of the premises as owners.

Held, that the conveyance by the executor of a share of the estate to the posthumous child, represented by the property in suit, wag not in direct opposition o the terms of the will. Even assuming that those charged with the division of the estate might have been wrong in placing the posthumous child in the same cIass of beneficiaries as his brothers, it was too late now to impugn the conveyance effected by the executors in 1878 with the sanction of the Court.

Held further, that prescriptive possession cannot commence against