043-NLR-NLR-V-50-WIJESEKERE-et-al.-Appellants-and-JAYAWARDENE-et-al.-Respondents.pdf
172
Wijesekere v. Jayawardene
1948Present : Jayetileke S.P.J. and Nagalingam J.
WIJESEKERE et al., Appellants, and J AY AW ARDEN E et al.,Reap ondents
S. C. 33-34—D. C. Kalutara, 22,308.
Family arrangement—Heirs o f deceased Muslim—Division of property accordingto Roman Dutch law—Possession.
Where the intestate heirs of a deceased Muslim divided his estateaccording to the Roman-Dutch law of succession, and possession for a longperiod of time followed on that basis—
Held, in a partition action, that shares should be allotted on the basisof the Roman-Dutch law of succession.
Appeal from a judgment of the District Judge, Panadure.
B. Wikramanayake, for sixteenth defendant-appellant in No. 33and sixteenth defendant-respondent in No. 34.
H. W. Jayewardene, for eighth, ninth, twentieth and twenty-seconddefendants, appellants in No. 34 and respondents in No. 33.
N. K. Choksy, K.C., with A. C. Gooneratne, for second plaintiff andsecond and twenty-fourth defendants, respondents in both appeals.
A. G.
appeals.
Gooneratne, for fifth and sixth defendants, respondents in both
Cur. adv. wit.
3 (1921) 22N.L. R. at p. 392.
* Voet 36—1—6, Sande Restraints. 3-7-10.
46 N. L. R. p. 390.
47 N t. R. p. 176.
SAGAUKGAM J.—Wijeaekere v. Jaynwardene
173
July 27, 1948. Nagalengam J.—
There are two appeals in this action which is one for the partition of anallotment of land called Puwakwatte depicted in plan filed of recordmarked Z.
The first appeal is one that arises between the sixteenth defendant-appellant on the one hand and the second plaintiff-respondent on theother and involves the construction of a deed of gift which admittedlycreates a fidei commissum. It is common ground that one Podihamywho had certain interests in this land under Deed P3 of 1901 gifted thoseinterests by Deed 16 D1 of 1911 (or P4) to her three children, Jayawar-dena the second plaintiff, Sampo Nona and Alice Noha, subject to certainconditions of which in the events that have happened those that needbe noticed are the following :—
“ And I do hereby enjoin …. that the said property hereindonated shall be held and possessed by the said three doneesin any manner they please up to the end of their lives but shallnot be sold, mortgaged, exchanged, gifted or in any wise alie-nated or shall be subject to a lease of more than four years andthat after the death of the said three donees their respect velegitimate children shall have and hold the said property or todo whatever they like with the same.
And I do hereby further enjoin that should anyone of the said threedonees die unmarried or without any lawful issues after marriagethe share of the property accruing to such a one shall belongin entirety to the remaining two of the said donees or theirrespective children.”
The donee Alice Nona died unmarried leaving her surviving her brotherthe second plaintiff and her sister Sampo Nona. Sampo Nona wasmarried to the sixteenth defendant and she died leaving her survivingher husband the sixteenth defendant and a child. That child survivedits mother only for a period of days, and on its death its heir was itsfather, the 16th defendant.
It appears to have been contended on behalf of the second plaintiffin the lower Court that on Sampo Nona’s death her interests accruedto the second plaintiff by the rule of jus accrescendi and that the sixteenthdefendant therefore acquired no interest in the property. LearnedCounsel for the second plaintiff-respondent has not been able to supportthis view. A reading of the conditions above set out can leave no roomfor doubt that; on Alice Nona’s death, by virtue of the direction that inthe event of anyone of the donees dying unmarried the share of such aone should belong in entirety to the remaining two, her -J share vested inher co-donees, the second plaintiff and Sampo Nona, each ofwhom thereupon became entitled to a just half. Sampo Nonacould not have dealt with the interests that vested in her because of theprohibition against alienation and of the further condition that on herdeath the property should devolve on her legitimate children. On herpredeceasing, therefore, her child, the interests to which she was entitleddevolved on the child, which took those interests absolutely. On thechild’s death, the sixteenth defendant being its legitimate heir inheritedthose interests.
1 *J. N. A 86024 (1/491
-174
NAGAX.INGAM J.— Wijeaekere. v. Jayawardene
The sixteenth defendant, therefore, is entitled to a half share of theland and of all the other interests in buildings, plantations, &c., that havebeen allotted to the second plaintiff. The decree entered by the learnedDistrict Judge will be modified in this wise. The second plaintiff-respondent will pay to the sixteenth-defendant appellant the Costs of-appeal and of the contest in the lower Court.
The second appeal relates to the devolution of title, the contestantsbeing the eighth, ninth and twentieth-defendants appellants on the one■side, ar.d the fourth, fifth, twenty-fourth and twenty-fifth defendants onthe other. A question also does arise with regard to the ownership of a' bakery and of a foundation which are claimed by the twentieth defendant•adversely to the fifth.
All the parties derive their title from one Thamby Seiyadu Lebbe whobecame the owner of the property from one Bastian Silva by virtue ofdeed PI of 1885. Seiyedu Lebbe died leaving as his heirs his widow,Pathumma Nachchia, and three children, Samsudeen, Sothumma andHabibu Nachchia. There can be little doubt that according to the lawof intestate succession that would govern these parties, who are Muslims,the widow would have been entitled to a J share, the son Samsudeen to7/16 and each of the daughters Sothumma and Habibu Nachchia to 7/32shares.
The case for the appellants is that, by a family arrangement eitheentered into deliberately or in ignorance of the true legal position, therule of succession applicable to those governed by the Roman-Dutch lawwas applied, the widow taking a half share aiid each of the children a £share and that possession of the property has followed on this basis.
As early as 1894, the widow, Pathumma Nachchia, leased by indenture8 D1 not a | share, which would have been the share she would have beenproperly entitled to under the Muslim law, but a half share of the land ;and she expressly states that the other half share had been excluded for thechildren. This lease which embodies in documentary form the firstdealing with the property by anyone of the heirs of Seiyedu Lebbe clearlysupports the contention of he appellants that the land was dividedbetween the mother and children in equal shares. In the following yearPathumma Nachchia, following the basis of division set out in the lease,sold a half share of the land by deed 20 D4 of 1895, and this deed of saleis more than of ordinary interest in view of the contest between theparties, as in this deed she assigns to the vendee her right in the indenture■of lease 8 D1 under which the rent reserved had to be paid annually, onlythe first year’s rent having been paid at the time of the execution of thelease, the full term of which was a period of eight years. It is thereforemanifest that the lease was acted upon by the lessee entering into posses-sion of the half share, thus establishing that possession in regard to a halfshare of the property was first with Pathumma Nachchia, then with herlessee and thereafter with the purchaser from her. Had the indenture oflease and the deed of sale stood by themselves, they would no doubt beopen to the attack that the one-sided action on the part of the w'dowin purporting to deal with larger interests than she was entitled to cannotindicate a family arrangement, much less bring home to her co-heirsknowledge that she was claiming more than her due share in the property.
NAGALESTGAM J.—Wijesekere v. Jayawardene
175
But we find that prior to the sale by the widow and subsequent to theindenture of lease executed by her, her son, who would have been themajor shareholder according to the Muslim law of intestate succession,sells only a £ share by deed 3 Dl, and three years later her daughter,Sothumma, also sells again a $ share by deed P2 of 1898.
It has been urged that as both the son and daughter were each entitledto more than a 1 /6 share of the land they should be presumed to haveintended to reserve to themselves the excess interest to which theywere entitled, especially as in 1899 both Samsudeen and Sothummaconveyed those excess interests to the predecessor in title of therespondents by deeds 25 Dl and 25 D2 both of 1899. While, no doubt,this argument as an argument is possible, I am not impressed by it inview of the other special circumstances in this case. If the deeds 25 Dland 25 D2 were acted upon and possession followed on them, one wouldhave expected that a conflict would have arisen at that date as betweenthe lessee under 8 Dl and the transferee Cassim under those deeds,but there is no evidence that any dispute arose at that time. There is,however, clear evidence that after the execution of deeds 8 Dl of 1894,and 20 D4 and 3 Dl both of 1895 and P2 of 1898, no Muslim everpossessed this land and Cassim, the purchaser under 25 Dl ’ and 25 D2of 1899, was a person resident at Alutgama, which is far away from thearea where the land is situate. Besides, the widow, belonging to a com-munity whose womenfolk are very conservative, would have beenguided entirely by her son who appears to have been a major himself atthat date, and it is impossible to believe that the widow would haVteaeted in opposition to her son in regard to the execution both of the leaseand of the deed of sale by her. That the deeds 25 Dl and 25 D2 werenot acted upon is further established by the purchases made by thefifth defendant, Ariyawansa. Ariyawansa by deed 5 Dl of 1936 appearsto have made a purchase of certain interests supposedly devolving fromCassim. If Ariyawansa had possession under that deed, he would haveknown that Sothumma had already parted with her title to the excess,amounting to 5/96 over and above the which she conveyed by P2, andthat Sothumma had no further interests in the land ; but in 1940 wefind that Ariyawansa by deed 5 D2 obtained from Sothumma herself adeed of conveyance for the identical 5/96 share. This clearly provesthat deed 25 D2 had not been acted upon.
I am therefore of opinion that the contention of the appellants is entitledto prevail, namely, that on Seiyedu Lebbe’s death the property was dividedequally between the widow on the one hand and the three children,Samsudeen, Sothumma and Habibu Nachchia, on the other. The sharesmust therefore be allotted on this basis. The decree of the DistrictJudge is therefore varied accordingly and the shares will be allottedanew on this footing by the District Court.
In regard to the bakery and the foundation, there is ample evidencewhich supports the finding of the learned District Judge, and I amtherefore not prepared to disturb his finding in regard to them. Thefoundation, which does not appear to have been built upon for a numberof years by or on behalf of the fifth defendant, appears to have beensubsequently built upon by the 20th defendant without any protest.
176
BASNAYAICE J.—Thidoris Perera v. Eliza Nona
In these circumstances, the foundation and the building standing thereonwill he allotted to the twentieth defendant who, however, will paycompensation in respect of the foundation to the fifth defendant.
As the appellants have succeeded substantially, I direct that the fourth,fifth, tswen'y-fourth and twenty-fifth defendants-respondents do pay tothe eighth, ninth and twentieth defendants the costs of appeal and of thecontest In the lower Court.
Jayetileke S.P.J.—I agree.
Appeals attended.