DON CHARLES WEERASEKERA Vs. HETTIGE DON JOHN PEIRIS

JUDGEMENT

(1.) This is an appeal by Don Charles Weerasekera, who was the plaintiff in the suit, against a decree of the Supreme Court of the Island of Ceylon, dated 20 January 1931, whereby an order of the District Court of Colombo, dated 15 July 1930, was set aside and the plaintiff's action was dismissed. The suit was brought by the plaintiff against the defendant Hettige Don John Peiris, claiming that certain immovable property situated within the Municipality and District of Colombo, and described in the schedule of the plaint, should be partitioned in terms of the Partition Ordinance 10 of 1863, and for such other and further relief as to the Court should seem meet. The claim was based upon a deed, dated 11 March 1904, executed by Ahamadoe Lebbe Marikar Arisie Marikar Hadjiar (hereinafter called the "father") and his son, Arisie M. H. M. S. Hadjiar (hereinafter called the son"), who were Mahomedans of the Shafi sect and resident in the Grown Colony of Ceylon. The deed refers to five-sixths of the property in question.

(2.) By the said deed the father purported to give, grant, assign and transfer the five-sixths share of the said premises to the son as a gift inter vivos. The plaintiff alleged that the gift was subject to a fidei commissum in favour of the children of the son and that the five-sixths share upon the death of the son, which took place on 12 February 1929, devolved upon his sons, Abdul Hassein and Mohammed Hassein. By a deed dated 30th August 1927, the plaintiff purchased all the right, title and interest of Abdul Hassein and Mohammed Hassein, and by reason thereof he claimed to be entitled to the five-sixths share of the said premises. The father died in 1908 or 1909, and on his death the son dealt with the entire premises as if he were the sole and absolute owner thereof. He mortgaged the premises to secure a loan obtained from the trustees of the will of one E. J. Rodrigo in the year 1913. The premises were sold in execution of a mortgage decree obtained against him in 1916, and the said trustees, having purchased the said premises, entered into possession thereof. In June 1929 the said trustees sold the said premises to the defendant, who went into and remained in possession thereof up to and at the time of the action, which was instituted on 16 August 1929.

(3.) The defendant's case was that no valid and operative gift was made by the father to the son by the deed of 11 March 1904, and that the son never took possession or held the said premises under the alleged gift. The defendant further alleged that the son, on the death of his father, entered upon the premises and enjoyed the same as absolute owner, and that he and those claiming under him including the defendant, had acquired a title by adverse and uninterrupted possession. The District Judge who tried the action decided in favour of the plaintiff and held that the deed of 11 March 1904 created a valid fidei commissum, and that the five- sixths share was conveyed by the father to the son subject to the restrictions set out in the deed. The District Judge further held that the possession of the defendant and his predecessors could not create a title by prescription against the children of the son, who did not die until 1929. He therefore made a decree in favour of the plaintiff in respect of the five-sixths share of the premises. No reliance was placed in this appeal upon the title of the defendant alleged to have been created by reason of adverse possession, and the arguments on both sides were directed to the construction and effect of the deed of 11 March 1904.