049-NLR-NLR-V-24-ELLAPATA-et-al.-v.-FERNANDO.pdf
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Present : Ennis and Schneider JJ.
ELLAPATA et at, v. FERNANDO109—D. C. Hatnapurat 3,7&1.
Last will creating fidei commissum—Probate not registered—Mortgageby daughter of testator—Registration of mortgage—Priority o/mortgage *» respect of intestate share of the mortgagor.
D mortgaged a half share of a land to defendant* When theproperty wbb seized in. execution, the plaintiffs (who were children. of D) claimed it, asserting that the will of D'a father had created afidei commissiua, by which, on the death of D, it devolved upon thesurvivors. The defendant urged that as the probate was notregistered, the registered mortgage took priority.
Held, that the mortgage gained .priority by registration. If thedefendant asserts title independently of the will,' the mortgagor hadtitle only to what she inherited from her father by intestatesuccession.
HE plaintiff's mother, Dona Dorothy Helen TUlekeratneEUapata Kumarihamy, mortgaged the properties calledOalwalawatta. and Pelapolawatta, situated in the town of Hatnapurawith the defendant by bond No. 8,287 dated October 26, 1918, tosecure the payment of Rs. 1,000 borrowed by her from the defend-ant. and interest thereon. The defendant put the bond in suit inaction No. 8,609 of the District Court of Hatnapura,. and obtainedjudgment against Dona Dorothy Helen Tillekeratne EllapataKumarihamy, and in execution the properties were seised by theFiscal. The plaintiff preferred a claim to the properties. Theclaim was dismissed, as the plaintiffs were not in possession/of theproperties, and they, thereupon, brought an action to have itdeclared that the properties were not liable to be sold in executionof the judgment against their mother.
Hie case went to trial in the foUowing issues : —
(а)Did the Iasi; will of Don Moses TUlekeratne dated January 8,
'1866, create a valid fidei commissum with -regard to lands—
Oalwalawatta and (2) Pelapolawatta ?
(б)If so, could -Dona Dorothy . Helen Tillekeratne Ellapata
execute a valid mortgage of these lands ?
Can the plaintiffs maintain this action during the lifetime of
Dona Dorothy Helen Tillekeratne EUapata ?
Does the non-registration under sections 16 and 17 of Ordi-
nance No. 16 of 1891 of Hie probate of the said last wiUNo. *895 "affecting immovable property of Don MosesTUlekeratne render it void as aginst the defendant's dulyregistered deed No. 3,287 dated October 26, 1918.
The ActingDistrictJudge(J. Vandenberg, Esq.) deliveredthe
following judgment: —
The land9 in dispute are situated in the town of Ratnapura, and theSupreme Court has held that the last will of Don Moses dated January 8>
' 1866, created a.valid fidei commission (see N. L. it., vol. XX., p. 80).
The prohibition against alienation is in respect of these lands.
On the first ipsne 1 hold in the affirmative.
The second issue depends on the question what is the scope and effectof the title under which the lands were held by Dona Dorothy HelenTillekeratne at the date of the mortgage granted by her to the defendant.
By thelast willDon Moses Tillekeratne gave and bequeathedthe
lands tohis wifeDona8bpia Wijeyawardene Tennekoon Walauwe
Mahatmaya and children.
(1) DonaDorothyHelenTillekeratne and others to be heldand
possessed by the said wife during her natural life for herself and hischildren, and after her demise to devolve and descend unto the childrento be held and possessed by. them, their heirs, and assigns for ever,subject to the reservations and restrictions following, namely, “ I willand direct that neither my said wife, nor children, nor any of them whom*soever, *nor their nor any of their heirs and assigns shall, nor may onany account whatsoever, alienate, transfer, sell, mortgage, or otherwiseencumber the property.
Dona Sophia Wijewardene- died some time ago.
Dona Dorothy Helen Tillekeratne was expressly prohibited by thelast will to mortgage the lands. But, notwithstanding this prohibition,she mortgaged the lands to the defendant .upon mortgage bond Ho. 8,237dated October 26, 1916 (see D 3).i
The deed of mortgage (D 3) was -granted in excess and violation of heirights, and iB,. therefore, void and invalid.
I answer the second issue -in the negative.
The plaintiffs are the sons of Dona Dorothy Helen Tillekeratne, oneof the fiduciaries who is still living.
The interests of the plaintiffs, the fidei commissaries, are expectanciesof succession by survivorship.
Dona Dorothy Helen Tillekeratne was in possession of the lands noton* her own account as her own property, but in trust for the plaintiffs.
In my' opinion they have sufficient interest in the lands to enablethem to maintain this action during the lifetime of the fiduciary. –
On the third issue I hold in the affiirmative. '
' No question of priority by registration arises, as the deed of mortgage(D 3) was invalid for the reasons I have already given, and as the partiesdo not claim interests in the lands-under one and the same proprietor,because the plaintiffs^ claim interest in them from Don Moses Tille-keratne, and the defendant’s- interest in the mortgage bond is derivedfrom Dona Dorothy Helen Tillekeratne.
On the fourth issue I hold in the negative.
Enter judgment for plaintiffs declaring the said mortgage bondNo. 3,237 dated-October 26, 1916, void and invalid, as prayed for, withcosts.
Bamarawickreme (with him Canakeratne), for defendant, appellantH. V. Perera, for plaintiff, respondent.
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July 9, 1922. Ennis J.1922.
This was an action under section 247 of the Civil Procedure Code E^nP°Ul v
Fernanda
with regard to a half share in two lands, which had at-one time formedpart of the estate of Don Moses Tillekeratne. Don 'Moses Tilleke-ratne died, leaving a number of children, pi whom one Dorothy HelenEllapata mortgaged a half share of the lands to defendant. Thedefendant put the bond in suit in execution of a decree and seizedthe land. The plaintiffs, who are the children of Dorothy HelenTillekeratnev then claimed the lands, asserting that the will of DonMoses Tillekeratne had created & fidei connninsunt, by which at thedeath of the mother it devolved upon the survivors. It appear thatin a previous case the Supreme Court has held that the will of DonMoses Tillekeratne does create a fidei oommissmn. The learnedJudge decided in favour of plaintiffs, and defendant appeals. Itis urged on the appeal that inasmuch as the.probate of the will ofDon Moses Tillekeratne had not been registered, a fact which isadmitted, the mortgage to the defendant which was registeredgains priority by virtue of section- 17 of the Registration OrdinanceNo. 14 of 1891. So far as the effect Of the Registration Ordinanceis concerned, we are governed ’by the case of Fotiseka v. Cornells.'
This is, however, a matter which requires consideration in the appli-cation of the principles laid down by that case. If the defendantasserts his title independently of the will, then he can only claim toseize in execution so much of the property as belonged to DorothyHelen Ellapata by inheritance from her father by intestate succession,and by subsequent assertion, if any, from other members of thefamily. From the will it is evident that Don Moses Tillekeratnehad six children. We do not know how many survived at the timeof Ids -death, or how many have since died without issue, or whetherany of those who may have died have left wills, so that it is impossibleon the evidence recorded in the case to say what interest the defend-ant is entitled to seize and sell* in execution of his writ. I wouldaccordingly set aside the decree, and send* the case back for furtherevidence and adjudication as to the share which the defendant isentitled to sell on the basis of intestate succession from Don MosesTillekeratne and by inheritance from any of his children. All coststo abide the event.
Schneider J.—I agree.
Set aside.
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1 {1917) 20 N. L. Jt. 97*