M rs. J. M. A. MORAIS, Appellant, and Mrs. F. VICTORIA, Respondent

075-NLR-NLR-V-73-M-rs.-J.-M.-A.-MORAIS-Appellant-and-Mrs.-F.-VICTORIA-Respondent.pdf


ilorais t>. Victoria
403
1968Present: Sirlmane, J., and~de Krelser, J.Mrs. J. M. A. MORAIS, Appellant, and Mrs. F. VICTORIA, RespondentS. C. 167/65—D.C. Colombo, 1027/L
Rei vindicatio action—Cause oj action in such a cast—Claims to different lands in
tu-o separate actions on same title—Maintainability—Civil Procedure Cods,
ss. 14, 34, 36, 207—Trust—Creation of a Jideicommissvm therein—Validity.
A rei vindicatio action in respect of a land cannot be maintained unlessthe defendant -was in possession of the land at the time when the cause of actionaccrued.
In a rei vindicatio action instituted against the same defendant in respect ofdifferent lands claimed on one titlo from the same source, tho cause of action inrespect of each land is difibronfc. There is, however, no object ion to the plaintiffuniting in one action sovernl different causes of action against tho sainedorondantin accordance with section 30 of tho Civil Procedure Code.
riaintifT claimed a declaration of titlo to thirteen lands, damages and eject-ment of the defendant who was in possession. Some months earlier he hadfiled action No. 0029 Bgainst the same defendant claiming three other lands onthe same title. The two cases came up for trial together, and action No. 9929was laid by until the present action was decided.
Held, that the filing of the earlier action for three different lands did notconstitute a bar to the prosent action. Neither section 34 nor section 207 ofthe Civil Procedure Cede could affect tho maintainability of the present action.
Tho “ oxecutors and trustees ” under a Will wero directed by tho Will toconvoy cortain immovable property belonging to the “ trust estate ” to thetestator's son on his reaching tho ago of thirty-five yoars, subject to tho conditionthat ho should not sell, mortgage, alienate or encumbor those properties andthat on his death thoso properties should dovolve on his son or sons, and if therewero nono such on his daughtor or daughters.
Held, that the Will croatcd a valid trust. Thoro can bo no objection to atesta tor creating a trust and directing that the beneficiary, wbon ho becomes theowner, should take tho proportics subject to a fidoicommissum in accordancewith the testator’s directions.
A.PPEAL from a judgment of the District Court, Colombo.
C.'Thiagalingam, Q.C., with V. Arvlambalam and T. Jothilingani, for.tho defendant-appellant. II.
II. V. rercra.Q.C., with If. IT. Jayewardene, Q.C., C. Ranganatban,Q.C., 'and U. E. Cooray, for the plaintiff-respondent.
410
SIR IMAXE, J.—Mora is v. Victoria
July 11, 1968. .SlBlMAXE, J.—
By his Last- Will dated S.9.1917onoMarianuMorais appointed his threesons-in-law Carvallo, Miranda and Corera as ‘‘ executors and trustees ”under his Will. After making certain dispositions, he devised andbequeathed the rest and residue of his estate to the three persons namedabove as trustees, with certain directions which they were enjoined tocarryout. For the purposes of tin's case, it is only necessary to notethat these persons were directed to convey the immovable propertybelonging to the ** trust estate” to the testator’s son Lewis Anthony onhis reaching the age of thirty-five years subject to the condition that heshould not sell, mortgage, alienate or encumber those properties andthat on his death those properties should devolve on his son orsons, andif there were none such on his daughter or daughters.
The Will also empowered the trustees to sell such immovable propertieswhich did not yield a fair income and to buy other properties with theproceeds of such sales.
This action relates to thirteen lands ten of which belonged to thetestator at the time of his death, and three of which had been purchasedby the trustees in accordance with the terms of the Will as set out above.
By deed P6 of 21.9.1933 the trustees conveyed these lands to LewisAnthony subject to the conditions stipulated in the Last Will.
Lewis Anthony first married Mary Carvallo who died leaving twochildren, the plaintiff and one Xavier who also died without issue. Afterthe death of his first wife, Lewis Anthony married the defendant. Hehad no children by her and died on 2.9.1953 leaving the plaintiff ashis only child.
In this action, the plaintiff claims a declaration of title to the thirteenlands, damages and ejectment of the defendant who is in possession..
Tho defendant claims the lands by virtue of a joint Last Willexecuted by her and her husband by which they left their propertiesto the survivor.
The learned District Judge gave judgment for the plaintiff and thedefendant has appealed.
The appeal was pressed on two grounds, firstly, that the present actionwas barred as the plaintiff had filed a prior action (which has not yetbeen concluded) for three other lands on the same title ; and, secondly,that the Last Will has failed to create a fideicommissum under which theplaintiff could make a claim.
In regard to the first of these grounds—the argument was based on theprovisions of section 34 of the Civil Procedure Code. The relevant partof that section reads as follows :—
" (I) every action shall include the whole of ths claim which the plain-tiff is entitled to make in respec t of the cause of action ; but a plaintiffmay relinquish any portion of his claim in order to bring the action_ within the jurisdiction of any Court.
SIRTMANjE, J.—AT or a is v. Victoria
411
If a plaintiff omits to sue in respect of, or intentionallyrelinquishes any portion of his claim he shall not afterwards sue inrespect of the portion so omitted or relinquished. A person entitledto more than one remodj’ in respect of the same cause of action may suefor all or any of his remedies ; but if ho omits (except with the leave ofthe Court obtained before the hearing) to sue for any of such remedies,he shall not afterwards sue for the remedy so omitted. ”
Admittedly the plaintiff had filed D. C. Colombo 9929/L some monthsbefore this action, against the defendant claiming three other lands onthe same title. The cases had come up for trial together, and that casehad been laid by until this case is decided.
The argument for the appellant on this point was based mainly on thedecision in the Indian Case of M. Khalil Kahn and others v. Mahbub AliMiayi and others a. The facts in that case were briefly as follows : OneR.B., a Mohammedan lady, died leaving two properties referred to as theShajahanpur property and the Oudh property. There were three sets ofpersons who claimed to be her heirs, who may be referred to as K, INI andA. In mutation proceedings (unknown to our law) the Oudh propertywas registered in the name of A for the purposes of those proceedings.Such registration does not affect title but apparently enables tho personregistered to possess the property. M then filed suit No. 5 against Jv andA in respect of that property. K also filed 6uit No. 8 in respect of thesame property against M and A. Both suits were heard together andK’s claim to be the heir was upheld. K than filed another suit againstM in respect of Shajahanpur property. It was held by the Privy Councilthat the second suit was barred by Order 2, Buie 2 of the Indian Code,as this property was not included by K in suit S referred to above. Order2, Rule 2, is identical with section 34 of our Civil Procedure Code exceptfor the w ord “ suit ” being used in India for the word " action ”, Thisdecision undoubtedly supports the contention of the defendant.
But it has to be observed that the Indian Code is different from oursin certain respects. For instance, act ions such as suit 5 and suit 8 referredto above could not have been filed under our law, for there would be amisjoinder of defendants and causes of action, unless it could bo shownthat the defendants were acting in concert to keep the plaintiffs out ofpossession—which is not the case in these two suits as the different sets ofdefendants were claiming against each other. The terms of Order 1,Rule 3, of the Indian Code (to which I shall presently refer) are wideenough to maintain such actions. Under section 14 of our Code allpersons may bo joined as defendants against w hom the right to any reliefis alleged to exist in respect of the same cause of action. Our Courts haveconsistently held that when a plaintiff claims a declaration of title to aland on one title, and alleges that the defendants, denying his title, arein possession of separate and defined portions of that land, it would bea misjoinder of defendants and causes of action to institute one action,
{1949) A. I. R. (JPrity Council) 78.
4)2
SmiMAJfE, J.—Moraia v. Victoria
unless it can be shown that the defendants were acting in concert todeprivethe plaintiif of possession of the entire land (sec, for example, Loire v.Fernando)1. Further, in regard to actions for declaration of title, undersection 35 of our Codo no other cause of action can be joined exceptclaims in respect of mesne profits or arrears of rent, damages for breachof contract under which the property is held, or consequential cn the trespasswhich constitutes the cause oj action or claims by a mortgagee to enforceremedies under tho mortgage. It is perhaps- significant that in thecorresponding section of the Indian Code the words "damagesconsequential on the trespass which constitutes tho cause of action ”have been omitted.
Order 1, Rule 3 of tho Indian Codo is in tho following terms : “ Allpersons may be joined as defendants against whom any right to reliefin respect of or arising out of the same act or transaction or series of .actsor transactions is alleged to exist whether jointly, severally or in thealternative, where, if separate suits were brought against such personsany common question of law or fact would arise. ” It'was against thisbackground that Their Lordships, in the Indian case had to examine themeaning of tho term " cause of action ” (in Order 2, Rule 2) which, theypointed out was not defined. Having stated that.tho cause of actionmeans every fact which will be necessary for the plaintiff to prove iftraversed in order to support his right to the judgment, thejr said at pageS6, " having regard to the conduct of tho parties Their Lordships takethe view that the course of dealing by the parties in respect of bothproperties was tho same and the denial of the plaintiff’s title to the Oudhproperty and the possession, of the Shajahanpur property by thodefendantsobtained as a result of that denial formed part of the same transaction. ”Our Code defines “ cause of action ” as “ tho wrong for tho preventionor redress of which an action may be brought, and includes tho denialof a right, the refusal to fulfil an obligation, the neglect to perform a dutyand the infliction of an affirmative injury. "
The " cause of action "in a suit for declaration of title to land flows fromthe right of ownership. This right applies to a particular thing. Lee(Roman Dutch Law, 5th Edition) says at page 121, " Dominion or owner-ship is the relation protected by law in which a man stands to a thingwhich he may (a) possess, (6) use and enjoy, (c) alienate.. The rightto possess implies the right to vindicate, that is to recover possessionfrom a person who possesses without title to possess derived from theOwner. " “ The cause of action " in an action for declaration of title toa piece of land flows from the right of ownership of that particular piece ofland. It consists of tho denial of tho titlo of the owner to that land, andhis being prevented from possessing that land. The two acts togetherconstitute the wrong for which redress may be sought.- In respect ofeach different land, therefore, there is a separate cause of action.
;{1913)16 N. L. B. 398,'
SIRIMANE, J.—Morais l>. Victoria
The rei vindicatio action, as known to our law, must bo brought againsttho person in possession. Maasdorp says (Volume II, 5th Edition) atpage 101, “ The fact that the property in question was in the possessionof the defendant at the time when the cause of action accrued is of thevery essence of tho action, and it is therefore necessary for the plaintiffto allege such possession in his declaration and to establish it by evidence
” Unlike in India, the mere denial of the basis on which the
plaintiff claims title doo3 not give rise to a cause of action unless thoplaintiff is also kept out of possession,—and, the act of keeping the plaintiffout of possession is different in the case of different lauds. Section 34enacts that the plaintiff must make his whole claim in respect of a causeof action, e.g., where a defendant denying his title, keeps the plaintiffout of possession of a whole land, if the plaintiff chooses to sue in respectof only part of that land, he cannot suo the same defendant again fortho balance. Or, again, if the plaintiff fails to claim the damages sufferedin consequence of the defendant’s trespass, he cannot claim those damageslater.
There is, however, no objection to the plaintiff uniting in one actionseveral different causes of action against the same defendant in accordancewith section 36 of our Code, as has been done in the present case. Butthe cause of action as stated earlier in respect of each land is different.
I do not think that the explanation to section 207 supports the inference(as submitted by Counsel for the defendant) that the cause of action inrelation to different lands claimed on one title is the same. That sectionenacts that a decree passed by Court is final between the parties to it.Such a decree would, of course, bo based on a judgment which decidesthe matters put in issue between the parties at the trial. The explanationgoes on to say that every right of property (to take an example) whichcould have been put in issue between the parties to the action, whetherput in issue or not also becomes a res judicata on the passing of the decreeprovided those rights could have been put in issue upon the cause of actionfor which the action was brought. The whole contention for the plaintiff(which in my opinion is correct) is that his rights to land A (for example)cannot be put in issue upon a cause of action which has accrued to himin respect of land B.
This contention must not be confused with the undoubtedly correctproposition, that once an issue (e.g., that of heirship to a particularperson) has been decided, then tho decision on that issue is res judicata inrespect of every different cause of action where the same issue arisesbetween the same parties.
It was on this principle that the case of ingiri Menitra v. PunchiMahal may a1 was decided. In that case the plaintiff claimed a number oflands by paternal inheritance. In an earlier case she had claimed oneland on the same title against the same defendant. It was decidedthere (on the strength of a decisory oath) that as she had married in
1 (1910) 13N. L. R. SO.
J 18078 (12/70)
414
SIRIMAXJ3, J.—Mora is v. Victoria
decga she -was nob entitled to inherit from her father. That decree was,therefore, res judicata on the question whether the plaintiff is entitled toinherit from her father or not, and the decision in that ease, with respect,was correct. It is true that in the course of that judgment one of thelearned judges remarked that for tHe purpose of determining whetheror not two causes of action arc the same one has to look at the mediaon which the plaintiff asks for judgment . If by this remark it is meantthat there is but a single cause of action against the same disputant inrespect of different lands claimed from the same source, I must withgreat respect disagree.
The other ease, Samitchi v. Peiris1 relied on by the appellant wasdecided on the same principle. The learned judges were there dealingwith the question of res judicata and the effect of section 207 on a consentorder. Their minds Mere not directed to the meaning-of “cause ofaction” in relation to a land.
The filing of the earlier case for three different lands docs not, in myopinion, constitute a bar to the present action.,
The second argument urged was that the Last Will did not create afidei commissum, and the plaintiff could, therefore, claim no rights.
• One must not lose sight of the fact that when construing a last willthe primary duty of the court is to give effect to the testator’s intention.On reading the Will it is abundantly clear that the testator desired thatthese properties should pass to his son Lewis Anthony when the latterreached the ago of 35 years, and that after his death they should devolveon his child or children. This fact is not seriously denied, but it wasurged for the defendant that though the intention was clear, yet thetestator had failed to achieve what ho intended.
It was submitted that if the Will only created a Trust with the threeexecutors as trustees, then Lewis Anthony would get the propertiesabsolutely, and that his title was in no way fettered. In other wordsthat the prohibition against alienation in deed P6 was ineffective. It wasargued that the trustees (who derived no benefit from the lands) shouldnot be looked upon as fiduciaries—that such a construction would lead tothe recognition of a “ fidei commisum purum ”, which is no w looked upononly as a historical curiosity. But I see no necessity for such an approachwhen construing the terms of the Will. Indeed that is not,—and neverwas—any part of the plaintiff’s case.-
Keeping in mind again that the paramount duty of a Court is to giveeffect to the testator’s intention, we have to ask ourselves the questionwhether that intention has been clearly expressed, and if. so, whetherthere is any legal impediment in the way of giving effect to it.
As Counsel for the plaintiff pointed out, in order to achieve what hedesired, the testator created a Trust with the executors as trustees, and, his son; Lewis Anthony as the beneficiary. When tho deed' P6 was
– » {1913) 16 A’. L. B. 257.'
DE KRETSEK, J.—Moraia v. Victoria
415
executed by tho trustees in favour of Lewis Anthony, the Trust uas at anend. The testator' had directed, however, that the transfer to LewisAnthony should be subject to certain conditions. There are no limitationsplaced on the directions which the author of a Trust may give his trusteesand the trustees.are bound to carry out those directions.
It is true that these directions are such that when given elfcct to theycreate what wo call a “ fidei commisum ” with Lewis Anthony as fiduciary.Is there then, any rule of law which compels us to say “ We refuse to giveeffect to the testator’s clear intention ” ? I can see none ; and I can seeno objection to a testator in order to give effect to his wishes creating atrust and directing that the beneficiary, when he becomes the owner,should take the properties subject to a fidei commisum in accordancewith his directions.
I think that the learned District Judge was right in his decision on boththe points discussed above. His findings on questions of fact were notcanvassed before us.
The appeal is dismissed with costs.
DE Kbetser, J.—
The facts relevant to this order are fully set out in the judgment of mybrother Sirimane with whom I agree.
In regard to the bar imposed by the provisions of Section 34 of theCivil Procedure Code, I am of the view that the words " he shall notafterwards sue in respect of that portion ” found in Section 34 (2) referto the filing of a second action after a first one had been concluded. Itis only after a first action is concluded that a Plaintiff gets fixed to aposition in regard to the claim in that action, which is irretrievable, forup to that time any error or omission in setting out the whole of the claimon the cause of action can be rectified—e.g. by amending the Plaint.
It appears to me that there is a pointer to the correctness of this view
in Section 34 itself, for Section 34 (2) runs on as follows :— “a
person entitled to more than one remedy in respect of tho same causemay sue for all his remedies but if he omits (except with the leave ofCourt obtained before the hearing) to sue for any. of such remedies heshall not afterwards sue for the remedy so omitted. ”
It will be noted that the bar operates only after the hearing of the firstcase for until that point of time the Plaintiff can omit with the leave ofcourt any particular remedy he wishes to leave out.
For these reasons also then it appears to mo that it is not open to theDefendant Appellant to claim that Suit No. 9929 L, instituted earlier
but still pending, is a bar to Suit No. 10207 L instituted later
but taken up first for trial after Counsel on both sides had beenheard, before the Trial Judge exercised his discretion as to which of thetwo cases, both of which had been set down for trial on that day, should be
416
DE KRETSER, J.—Morais r. Victoria
taken up. In those submissions, the submission that No. 9929 L waspleaded as a bar to the other case and that therefore it was expedientthat it should be taken up did not play a part. It also appears to be notwithout significance that there is not a single case in our reports in whichthe claim in a case not j et tried has been held to provide the suit in barof the claim in the case which is being tried ; and that in the reportedcases the provisions of Section 34 have so often been considered togetherwith the provisions of Section 207.
In regard to the question whether the cause of action in L 9929 is t hesame as in L 10207 as Defendant claims, or different as Plaint iff claims,it is well to consider what a ret vindicalio action is, for both these casesin which the Plaintiff seeks :
A declaration of title to the lands and premises described in the
schedule to the Plaint (on the footing that the Plaintiff isthe daughter and the fidc-i commissary successor of LewisAnthony Morais).
The ejectment of the Defendant (who is the widow of Lewis
Anthony Morais and who has been, according to the Plaintiff, inwrongful and unlawful possession of these lands from 2.9.5Son which day Lewis Anthony Morais died).
Accrued and continuing damages.
are actions known to our law as rei vindicatio actions.,
“Reclame or rei vindicatio” says Van Der Linden (1.7.3.) " lies for theowner of anything movable or immovable, corporeal or incorporeal,against the possessor or any person who has mala fide divested him of the
possession to deliver it up to the owner”, while Voet says (6.1.2)
“ This action arises from the right of dominium. By it we claim specificrecovery of property belonging to us but possessed by someone else. ”The fact that Plaintiff never had possession of the property is no-bar tothis action nor is it a bar that the Plaintiff’s vendor had no possession. Ina rei vindicatio action a Plaintiff has to prove title to the laud in disputeas a means to an end for it is manifest that if he is not entitled to dominium,his action to regain or obtain possession of the property must fail; butsuccess in proving a contested title in a rei vindicalio action unless Plaintiffcan also succeed in proving ouster by the Defendant can at best obtainfor Plaintiff a decree merely declaratory of the Plaintiff’s title to theproperty claimed as against the Defendant-.
“ Dominium or ownership ” says Lee at Page 126 of his Treatise onRoman Dutch Law, “ is the relation protected by law in which a manstands to a thing which he may—
Possess
Use and enjoy. (c)- Alienate
X>E KJRETSER,’J.—Marais v. Victoria
417
The right to possess implies the right to vindicate—i.e., to recoverpossession from a person who possesses without title to possess derivedfrom the owner.” It will thus be seen that the cause of action in arei vindicatio action is the trespass which has resulted in Plaintiff beingkept out of property of which he is the owner, and which may have causedhim consequential loss.
Mr. Thiagalingam has submitted that the test approved of by WoodRenton J. in the case of Dingiri Menika v. Pnnchi Mahatmaya1 should boapplied in determining whether or not two causes of action are the same,viz., we have to look not to the mere form in which: the action is broughtbut to the grounds of the plaint and the media on which Plaintiff asksfor Judgment. He says that it will then be seen that the true cause ofaction is the denial that the Plaintiff is the daughter and the fiduciaryheir of Lewis Anthony Morais, and that Plaintiff had no right to bringseparate actions in regard to each land but should have included, in termsof Section 34, all of them as representing the whole of her claim in oneaction based on the one cause of action—that is the denial of her title.
It appears to me, when I apply the test suggested and examine thegrounds of the plaints and the media on which the Plaintiff asks for judg-ment in the two cases No. 9929L and No. 10207L that the wrong that thePlaintiff wants redressed is, that from the date of Lewis Anthony Morais’■death she is being wrongfully kept out of the possessions of the lands setout in the schedules to the plaints, of which she is owner on the title—which she is aware is disputed—which she has set out in the plaint.Her title will then be an issue the answer to which can be vital if she isto succeed in her action, but one must not confuse matters which wouldform an issue in an action with the cause of action. Findings in the casethat she is the daughter of Lewis Anthony Morais and his fiduciary heirwill be findings on issues in the caso and will certainly be res adjudicatabetween the parties in other cases between them where those mattersarc in issue, but such findings will not result ipso facto in it being possiblefor her to get an order that she should be restored to possession of the landof which she claims the dominium on that title, for that would turn onwhether she can prove the alleged ouster by the Defendant. Provingouster by the Defendant in respect of one l^pd would not result in Plain-tiff being able to claim that ouster is proved in respect of every otherland in dispute between them claimed on the same title or that thedamages consequential on each ouster have been proved. The cause ofaction in respect of each land is similar, viz. the trespass, but not thesame. Section 34 has application only where the cause of action fs thesame.
Mr. Thiagalingam relied strongly on the case reported in A. I. 31.1949 P. C. at Page 7S but it appears to me that the facts that in our Co dowe have definition of a cause of action while India has not defined it at all,that in India there arc mutation proceedings—which is something foreign
(1910) 13 It. L. B. 61.
418
DE KRETSER, J.—Jlorais v. Victoria
to our law-—that our rules for joinder of defendants differ from those inIndia and that in India apparently the incidents of what we know as arei vhidicatio action are different are sufficient to show that the decisionin that ease turns on matters and principles which have no applicationin Ccjdon.
In regard to the will P. 10 it seems to me that Mariam Morais in thiswill has created a perfectly valid trust and that there is no need to strainto show that it was in fact a fidei commissum in which the executortrustees were fiduciaries which was something Mr. Thiagalingam wrongly-anticipated Mr. H. V. Pcrera would attempt to do to bring the matterinto line with the case reported in 5S N. L. R. at Page 494. Mr. Pcrerasubmitted instead that the will did create a trust and that when thetrustees in terms of Para 6 of the will transferred all the trust propertyby. deed P. 6 to Lewis Anthony Morais when he attained t.he age of35 years they had faithfully carried out the directions of the creatorof the trust and the trust was at an end. I have considered anxiouslywhether there is any objection in Law to the trustees carrying out thedirections of Mariam Morais burdening the property which they conveyedto Lewis Anthony Morais with what is known to us as a fidei commisumconditional. It appears to me that the true test to apply is to considerwhether the beneficiary of the trust held the property as owner and itappears to me that he did, for by P. 6 the ownership of these propertiesvested in Lewis Anthony Morais who became entitled to possess them,use and enjoy them, and to alienate his right title and interest in them,and the fact that he enjoyed these incidents of ownership only duringhis life time due to a condition imposed by the testator that on his deaththe property vested in his daughter made no difference to the positionthat with the execution of P. 6 his ownership of the property werequite independent of the trust which then ceased to operate. In thesocircumstances, I am of the view that the provisions of the will areunimpeachable.
The other matter mentioned in appeal was that in as much as therewas no prohibition against forced sales the deeds executed in consequenceof those sales must he regarded as valid. As the learned Trial Judge(Sir. Thambydorai) points out in his very lucid judgment there is a clearindication in the will that Lewis Anthony Morais should only possessand enjoy during his life time and that there could be no doubt that theprohibition against alienation included alienation by donation or byforced sale. In the case reported in 2 Ceylon Weekly Reports at Page314 it has been held that a sale by fiscal against the fiduciaries of a landsubject to fidei commisum does not put an end to the fidei commisumand that appears to me to conclude the matter.
. For these reasons I dismiss with costs the appeal of the Defendant.
Appeal dismissed.