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

DAVOODBHOY, Appellant, and FAROOK
and others, Respondents

S. C. 402-D. C. Colombo, 6,419

Evidence-Burden of proving that a person who has not been heard of for seven years is dealt-Evidence Ordinance, ss. 101, 107, 108, 114.

Fideicommissum-Presumption against inference of perpetual fideicommissum-Last will of 1850-Requirement of registration under Ordinance No. 35 of 1947- Probate of will-Proof-Evidence Ordinance, ss. 64, 65, 91-Prescription Ordinance, proviso to s. 13-" Disability ".

(i) Section 108 of the Evidence Ordinance enacts a rule governing burden of proof and does not enact a presumption of law or fact. There is nothing in section 108 which compels a court to hold, upon proof that a person has not been heard of for seven years by those who would naturally have heard of him if he had been alive, that the fact of that person's death has been established by him on whom the burden lies under section 101 to prove such death.

The plaintiffs! claiming to be fideicommissaries under a last will, instituted a rei vindicatio action in respect of property of which the defendant was already in possession by virtue of a deed of sale in his favour. The question that arose for decision was whether J, the fiduciary, was dead. On this question the burden of proof, according to the pleadings and issues, was on the plaintiffs. The only evidence that was led on this point was that of the 1st plaintiff (one of J's sons), who stated that J. had not been heard of for seven years.

Held, that the evidence was not sufficient to discharge the burden that lay on the plaintiffs to prove that J. was dead.

(ii) A  fideicommissum  will not be construed as a perpetual fideicommissum in a case of doubt.

(iii) Considered also by BASNAYAKE, C.J.: (a) Scope of section 2 (1) (6) o Ordinance No. 35 of 1947 in regard to registration of a fideicommissary will executed prior to 1st January, 1864, (6) Applicability of sections 64, 65 and 91 of the Evidence Ordinance in relation to the mode of proving whether a will was admitted to probate, (c) Inapplicability of the word " disability ", in the proviso to section 13 of the Prescription Ordinance, to a fideicommissary whose right to possession has not accrued.

APPEAL from a judgment of the District Court, Colombo.

H. V. Perera, Q.C., with Walter Jayawardene and Nimal Senanayake, for Defendant-Appellant.

Sir Lalita Rajapakse, Q.C., with D. C. W. Wickremasekera, for Plaintiffs-Respondents.

Cur. adv, vult.

October 23, 1959. BASNAYAKE, C.J.-

The first and second plaintiffs are the children of one Samsudeen Mohamed Jaleel and the third and fourth plaintiffs are the minor children of Jaleel's deceased daughter Quraisha. The case for the plaintiffs is-  (a) that Hamidu Lebbe Samsudeen alias Colenda Marikar Samsudeen was by virtue of Deed No. 663 of 5th June 1902 attested by Notary P. A. Prins the owner of the land in dispute, subject to a fideicommissum created by Last Will No. 418 dated 22nd  July 1850.

(b) that Hameedu Lebbe died leaving two children Samsudeen Mohamed Jaleel and Samsudeen Zubaida Umma.

(c) that Zubaida Umma died leaving an only child who also died without issue.

(d) that Jaleel became the sole owner of the land subject to the fideicommissum.

(e) that Jaleel has not been heard of since the early part of the year 1942.

(f) that Jaleel should be presumed to be dead from the early part of 1949.

(g) that the first and second plaintiffs were each entitled to 2/5 share and the third and fourth plaintiffs to 1/10 share each.

(h) that the first and second plaintiffs by deed No. 1570 of 4th October 1951 attested by Notary K. Rasanathan transferred a half of their respective shares to the sixth plaintiff who is entitled to 2/5 share.

They ask that they be declared entitled to the land described in the Schedule to the plaint subject to the fideicommissum pleaded by them, tha