006-NLR-NLR-V-46-SAIBO-Appellant-and-JAYAWARDENA-Respondent.pdf
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KE U NEMAN J.—Saibo and Jayawardena.
1944
Present: Keuneman J.
SAIBO, Appellant, and JAYAWARDENA, Respondent.
■80—C. II. Tangalla, 17,002.
Last Will—Property left to granddaughter and her husband—On death of one.
the property to vest in survivor and children—Devolution of property—Repugnancy of subsequent clause.
Where the last will by which a testator devised property to his grand-daughter Eliza and her husband provided as follows: —
In case the said two persons be blessed with children, and while
such childen are alive, both or one of them should die .
the same should devolve on any one of the said two persons
that may be living and their children ….
As the devolving according to the above devises of the movable
and immovable property belonging to me is to occur after thedemise of Eliza, none of my property, is to be alienated byEliza or her husband or any other person.
Held, that the intention of the testator was that on the death of Elizaor her husband the property should vest in the survivor and the children.
Held, further, that the direction in clause (b) did not override theclear words of clause (al.
A
PPEAL from a judgment of the Commissioner of Requests,Tangalla.j
E. B. Wikremanayake for defendant, appellant.
C. E. S. Perera (with him J. A. Obeysekera) for plaintiffs, respondents.
of the last will P8, and to prescription. Dona Johana Ekanayake diedleaving a last will (P8) by which the property in question in this case was
Cur. adv. vuIt.
July 17, 1944. Keuneman J.—
The principal points argued in this appeal relate to the construction
KE IFNKMA .-s' .T.—Saibo and Jayatcardcna.
a i
Revised to her granddaughter Eliza and her husband David ObeysekeraMudaliyar. After making provision for the case of Eliza having nochildren,—we are not concerned with these provisions,—the last willcontinued, “ That in case the said two persons (viz., Eliza and her husband)
…. be blessed with children, and while such children are living
both or one of them should die …. the same should devolve■on any one of the said two persons that may be living and theirchildren ”.
David Obeysekera died about 1899, and Eliza in 1933. There werechildren of the marriage.
There has been earlier litigation concerning this, last will. In C. R.Tuiigalla, 16,183 (see P 1 to P 5) the heirs of Sampoe, a child of Elizawho had predeceased her, sued the defendants, and the present plaintiffswere also added as defendants. The Commissioner held in the case thatSuinpoe having predeceased his mother had lost his rights under the;idei commissum. In appeal this finding was not supported, but Soertsz J.-dismissed the appeal on another ground. He stated—“ The will states■cuite clearly that on the death of Eliza or her husband David Obeyesekerathe property (is to) vest in the survivor of them and their children.Soertsz J. held that the defendants who had been in exclusive possession.since 1899 had prescribed for the property.
In the present case too it appears that Eliza- by D 1 of 1899 purportedto sell this property among others to the defendants with authority ofcourt for defraying the expenses of David Obeysekera’s testamentarycase. Since thut date the defendants have been in exclusive possessionof this property.
It was argued that the C. R. case is res judicata. I do not agree withthis contention. There was no issue raised between the present plaintiffsand the present defendants in that case, and the present plaintiffs wereoniy joined io give them notice of the action because they were alsoco-owners, and they took no part in the proceedings.
The case, however, is of importance because it contains a decision as tothe meuning of the last will, which I should ordinarily be disposed tofollow. Counsel for the respondents, however, argues that Soertsz J.has not taken into account a further clause in the last will P S: This clausestates " that as the devolving, according to the above devises, of themovable and immovable property belonging to me is to occur after thedemise of Eliza, none of the property is to be alienated by Eliza oi-lier husband or any other person
may say that I do not agree that there is in this clause an imperative -direction that the property should only devolve on the death of Eliza.It should be noted that the words relied upon are only added as anexplanation of the direction against alienation. I do not think there is anintention to over-ride the clear words occurring earlier. The explanationis not accurate, or rather is not complete. Had there been any imperativeforce in the words relied upon, a repugnancy would have arisen in thewill, but I do not think the words were intended as an imperativedirection.
22SOJSRTSJ5 J.—King c. Kilchilun.
If the interests of the fidei commiaaarii, viz.—filiza and her children—vested in 1899, there can be no question but that the defendants haveacquired a title by prescription.
I allow the appeal and set aside the judgment of the Commissionerwith costs, and dismiss the plaintiffs’ action with costs.
Appeal allowed.