125-NLR-NLR-V-50-KIRTHISINGHE-Appellant-and-THE-ARCHBISHOP-OF-COLOMBO-Respondent.pdf
498
basnayakk J.—K.vrthisinghe v. 'The Archbishop of Colombo
1948Present : Basnayake and Gratiaen JJ.
KIRTHISINGHE, Appellant, and THE ARCHBISHOP OPCOLOMBO, Respondent
S. C. 148—D. G. Negombo, 14,045
Last Will-—Property bequeathed belonging to testator and another■—Rights oflegatee—Election—Principles applicable.
Where property bequeathed belonged to the testator jointly withanother he is, in case of doubt, presumed to give only his own share.
The doctrine of election does not operate unless the person alleged tohave made the election knew hia alternative rights and knew that hewas under a legal obligation to make a choice.
ApPEAI from a judgment of the District Judge, Negombo.
W. Fernando, for plaintiff appellant.
V. Ranawake, for defendant respondent.
June 29, 1948. Basnayake J.—
This is an action by one Eamestine May Kirthisinghe nee Pernandoagainst the Archbishop of Colombo. The plaintiff claims all but one-fourth share of an allotment of land in extent 2 and 93/100 perchesaccording to the plan dated January 24, 1890, made by W. C. Fernando,Surveyor, together with the tiled building bearing assessment No. 283now bearing assessment No. 272 standing thereon. The defendantclaims one-half of the land. The dispute is in respect of one-fourth
BASXAYAKE J.—K.irthisinghe v. The Archbishop of Colombo
499
share (hereinafter referred to as the disputed share). The learned trialJudge has dismissed the plaintiff’s action with costs, and the presentappeal is from that decision.
Learned counsel for the appellant at the very outset indicated that hecould not support the claim of the plaintiff to the whole of the disputedshare and restricted his claim to one-eight of one-fourth of premisesNo. 272 ; in other words, to one thirty-second share of it. His reasonfor so restricting the plaintiff’s claim is that she is one of eight childrenwho would become entitled to the disputed share by right of inheritance.
It appears from the evidence that one Virisida Fernando (hereinafterreferred to as Virisida) was married to one John Peiris in 1878. At thetime of her marriage she owned an undivided half share of premisesNo. 272 by right of inheritance, and her brother Stephen Manuel Fernandoowned the other undivided half. By deed No. 3,980 dated December 30,1876 (P 1), Stephen Manuel Fernando agreed to give his share to hissister on her marriage to John Peiris, which he conveyed jointly toVirisida and John Peiris by deed No. 29,649 dated March 4, 1892 (P 3).John Peiris died in 1918 leaving a will dated November 11, 1918 (P 4),the material terms of which are as follows :
“ I give and devise the whole of my residing property situated atGrand Street, Negombo, bearing assessment No. 79 called and knownas Suriyagahawatta to my nephew Kurukulasuriya Alfred BenjaminChristopher Pities of Grand Street, Negombo, son of my cousinKurukulasuriya John Pieris whom I have been adopting subject to alife interest in favour of my wife Kurukulasuriya Virisida Fernando ofGrand Street, Negombo, and subject also to the condition and restric-tion that my said nephew shall not have the right or power to sell,gift, mortgage or lease for a period not exceeding two years at a timeor otherwise alienate or encumber the said property or dispose of thesame by Will to among or in favour of any person save and except, hisown children or in case he has no children then to among or in favourof those who would be my legal heirs at his death.
“ I also give and devise an undivided half share of Boutique bearingAssessment No. 283 situate at Main Street, Negombo, to the RomanCatholic Church called St. Mary’s Church at Negombo, subject to thelife interest of my wife the said Kurukulasuriya Virisida Fernandoand out of the income derived from the said half share to say Massesfor the Repose Souls of me the said Kurukulasuriya John Pieris andmy wife the said Kurukulasuriya Virisida Fernando.
“ I give and bequeath to my wife Kurukulasuriya Virisida Fernandoall my movable property without any exception whatsoever.
“ I do hereby appoint Kurukulasuriya Virisida Fernando to be theExecutrix of this Last Will and Testament.”
The will was admitted to probate in D. C. Negombo Case No. 1,762/ T.It appears from the paragraph of the will sidelined that the testatorpurports to devise an undivided half-share of premises No. 272 when infact he was only entitled to an undivided one-fourth share by virtueof the deed P 3.
500
BASNAYAKE J.—Kirlhisinghe v. The Archbishop of Colombo
On June 10, 1922, Virisida gifted the half-share of premises No. 272she had inherited from her parents to the plaintiff, who is her niece,by deed No. 1,117 (P 6). In that deed she declared that she was marriedin community of property to the late John Peiris and also referredto her late husband’s will whereby a half-share of the said premises wasdevised by him to the Roman Catholic Church called St. Mary’s Church,reserving the life-interest to her. Virisida died on July 27, 1936, leavingamong others the plaintiff as her heir. She left no will. About a monthafter her death the defendant claimed a half-share of the income ofpremises No. 272 and took the income thereof and was receiving it at thedate of this action, which was instituted on July 26, 1946.
It is claimed on behalf of the defendant that, Virisida having acceptedunder the will, her right to the one-fourth share which she derived fromthe deed P 3 must be deemed to have passed to the defendant by virtue ofher late husband’s will P 4. In support of this proposition learned counselsubmits that it is a rule of equity that when a person accepts under a willby which the testator bequeaths the legatee’s property heis deemed to bebound by the bequest. Learned counsel also relies on the followingdeclaration in deed P6, wherein Virisida says that she was marriedin community of property and refers to this very bequest in theseterms :
'* And whereas the said John Peiris died in the year 1918 leaving alast will and testament bearing No. 1,162 dated November 11, 1918,and attested by P. X>. F. de Croos, Notary Public, whereby a half-shareof the said premises was gifted by him to the Roman Catholic Churchcalled St. Mary’s Church at Negombo, reserving the life interest of thesaid half-share to me.”
Learned counsel contends that Virisida having accepted the positionthat the will bequeathed not only the share of her late husband but alsoher share, her representative in interest is estopped from now denyingthat the will affects her share of the property. I am unable to upholdeither contention of learned counsel. Virisida’s declarations in P 6do not indicate that she was aware that her late husband had devisedany part of her property. She appears to have been under a mistakenbelief that she was married in community of property when in fact shewas not. She even appears to have assumed that her late husband wasentitled to an undivided half-share of premises No. 272.
It is clear that under our law when a thing which is common to thetestator and another is left as a legacy to a third party, in case of doubt,only that part which belongs to the testator, and not the other, must bepaid to the legatee, whether the testator knew or did not know that thething he so left was common to himself and that otherx. This ruleextends to property common to the testator and his spouse. In the titleI have quoted Voet indicates the difference between a legacy of propertywhich belongs entirely to another and a legacy of property which iscommon to the testator and another. He says :
1 Voet, B/c. XX2CS2LXII, Sec. 28, Buchanan'3 Translation.
B ASNAYA KE J.—JUrthisinghe v. The Archbishop of Colombo
501
“ But when a thing common to the testator and another is left bylegacy, the intention of the testator can be carried into effect, even ifonly that part of the common thing which belongs to the testator ispaid to the legatee, and so there is no necessity that the part whichbelongs to another should be made good to the legatee for the purposeof giving effect to the testament of the deceased testator.”
The defendant is therefore not entitled to claim more than the sharewhich belonged to the testator John Peiris.
The case of Estate. Brink v. Estate Brink 1 is in point, and supports theview I have taken. Gardiner J. elaborates therein the principle I haveStated above, and I quote below his .observations in externo as thereport of the case is not available in the majority of our aw libraries.
“ It must also be borne in mind that there is a presumption in ourlaw against an intention to create the burden of fidei commissum, andit seems to me that there is an even stronger presumption against anintention to deprive another of his property in return for a mereusufruct. If the testator knew and realised at the time he made hiswill that he owned only one-half of the common estate—and he maywell have known this seeing that, as appears from the will, the estate ofhis predeceased spouse was being separately administered-—then wemust take it that he used the word “ my ” in its legal sense ; see thejudgment of the majority of the Court in Caffin v. Heurtley’s Executors 2.If he did not know, or, what would be equivalent to anabsence of knowledge, did not realise that he had only a half-share inthe community, we cannot take it that he intended to deprive his wife,whom clearly he wishes to benefit, of her ownership in her share, and tohamper her in her enjoyment, of what would otherwise have been herown property, by the restrictions to which a person, who has only ausufruct, is subject.”
It is admitted that Virisida’s declaration in P 6 that she and her husbandJohn Peiris were married in community of property is not correct. In theinventory filed in her husband’s testamentary case (D 2), Virisida includedan undivided half-share of premises ISTo. 272. It appears from all this thatshe was ignorant of her rights in the property in question. In thesecircumstances it cannot be said that Virisida renounced her right to thedisputed share. There is no evidence of an express renunciation nor evenis there material from which a renunciation can be implied. As wasobserved by Villiers C.J. in the case of Watson v. Burchell 3 :
“ no doctrine is better settled in our law than that a person cannotbe held to have renounced his legal rights by acquiescence unless it isclear that he had full knowledge of his rights and intended to partwith them.”
The ease in Vanderstraaten’s Reports page 96 {D.C. Kalutara, 23,882),which the learned District Judge has followed has no application to thefacts of this ease.
1 (1917) C. P. D. 612 at 615.2 1 M 178.
* 9 Jut a P. 2 at p. 5.
502
GRATIAEU J.—Kirthiainghe v. The Archbishop of Colombo
The appeal is allowed with costs, and judgment is entered for theplaintiff declaring her entitled to one-eighth of the disputed share. Theplaintiff is also declared entitled to one-eighth of the sum claimed by heras damages and further damages at the rate of one-eighth of the monthlyrental of the disputed share until possession is restored to her. Theplaintiff is entitled to the costs of the trial.
Ghatiadn J.—
I agree to the order proposed by my brother Basnayake. My view isthat the testator John Peiris, being under the erroneous impressionthat he was legally entitled to an undivided half-share of the premises,intended to dispose entirely of this half-share by his will P 4. I am notsatisfied, however, that “ the doctrine of election ” comes into operationin this case. The plaintiff can therefore defeat the testator’s intentionto dispose of a larger share than he actually owned.
The principle of law that where the property bequeathed belonged tothe testator jointly with another, he is presumed to give only his ownshare does not seem to arise except “ in cose of doubt ” (Voet Bk. 30—32,Section 28), and this presumption would certainly have applied if thelanguage of the will had left any room for doubt as to the testator’sintentions. But in the present case John Peiris purported specificallyto dispose of “ an undivided half-share ”, and I think that it would beunduly straining the language of the document to interpret it as a bequestof only the undivided one-fourth share which he legally owned. It wasnot the case for the appellant that such an interpretation of the will wasjustified As Wood Renton J. said in Kadija XJmma v. Meera Jbebbe x.“ The question involved is, What did the testator intend to dispose of 1—not—Did the testator know that the property he was disposing of was not hisown ? ” A similar case arose in South Africa {Phillips v. Standard Bank ofS.A., Ltd.2), where the testator, who owned certain property in communitywith his wife, purported by his will to dispose of the entire property underthe mistaken impression that he was the sole owner. Gardiner J.P. heldthat the testator intended to pass the whole of the property, but that,unless the “ doctrine of election ” came into operation, his wife wouldnot be obliged in law to part with her share of the property which he hadpurported to dispose of under the will. Similarly, I think that the onlyquestion which arises in the present action is whether the testator’s wifeVirisida can be held on the evidence to have elected to approbate the willby accepting, as she undoubtedly seems to have done, the benefits whichpassed to her under it. These benefits included the bequest of a lifeinterest in the one-fourth share in respect of which the testator had fulldisposing power. If Virisida had so elected, she and those who have nowsucceeded to her interests in the property would be precluded fromchallenging the bequest of the one-fourth share to which the testatorhad no legal title. If, on the other hand, no such election had takenplace, then only the testator’s quarter share passed to the defendant underthe will.
(1908) 11 N. L. It. 75 at p. 80.
(1929) C. P. D. 128.
Attorney-General v. Vattiyamma Atchi
503
The “ doctrine of election ” does not operate unless the election ismade “ by a person who knows what his rights are, and with thatknowledge really means to elect”—Wilson v. Thornbvry1. The Courtmust be satisfied that the person electing knew his alternative rights(namely, the right either to approbate or reprobate the will in its entirety),and knew that he was under a legal obligation to make a choice (Spread v.Morgan 2). The same principle applies under the Roman-Dutch Law andhas been consistently adopted in our courts. (Kadija Umma v. MeeraLebbe3 and Fernando v. Fernando4). In the case now under consi-deration it is clear that Virisida at all relevant times shared her husband’serroneous impression that he had full disposing power over a half – share ofthe property, and evidence of her conduct, which was influenced byignorance of the true legal position, falls far short of the evidence whichwould justify a court in holding that she had elected to approbate thewill with knowledge of her rights. In these circumstances I cannot acceptthe submission made on behalf of the defendants that either Virisida orthe plaintiff who claims certain interests as her intestate heir must honourthe testator’s bequest of any share in the property which belonged toVirisida and not to him. The plaintiff is therefore entitled to anundivided one-eighth of the disputed share of the property, and thedefendant’s claim must fail to this extent. The rights of Virisida’s otherheirs, who are not parties to these proceedings, do not arise for adjudica-tion in the present action.
Appeal allowed.