regarded as an assignment of the mortgage bond by way of a 66 Now, the question that arises is whether the purchaser under this deed acquired the usufructuary rights of Johanis to take the produce of the land in lieu of the interest on the mortgage debt. Mr. Samarawickreme has contended that no such rights passed to the purchaser. He says that these usufructuary rights are purely ancillary to the mortgage debt, and can only exist in conjunction with the mortgage debt. He contends, therefore, that they did not pass to the purchaser. In my opinion this contention is erroneous. It is quite true that in a mortgage there are certain rights which are ancillary to the main obligation, and can only exist with that obligation. I refer particularly to the right to have the land sold for realization of the debt, but the right to take the produce in lieu of interest is not a right of this description. It must be conceded that if a man is indebted to me, and the debt carries interest, I may assign to others the debt and the interest separately. The right to take the produce of a land, subject to a mortgage in lieu of interest, is only a way of collecting the interest. I fail to see why, if this right may be assigned separately, it should not pass separately in execution if appropriate words are used for the purpose. It is quite true that when once the mortgage debt is paid, the right to take the produce disappears, but so long as the mortgage debt exists this right to take the produce is an interest in the land. Now, what does the auctioneer's transfer purport to convey in this case? It purported to convey the dominium of the land, but Johanis had not the dominium. He had certain rights which are essential to the dominium, but only constitute one or more strands out of the bundle of rights which go to make up the dominium. He had the right fructus percipiendi: it may be said also that he had the right utendi These are constituent parts of the whole dominium, see Vanderlinden. What actually passed by the mortgage deed was the interest of Johanis in the property, and these particular rights, as my brother put it, were caught up 1 Institute of Holland: Bk. 1, chap. VII., S. I. 1922. BERTRAM C.J. Appuhamy v. Baby Singho 1922. BERTRAM C.J. Appuhamy v. Baby Singho by the general sale of the dominium and passed to the purchaser, although the dominium did not so pass. It is clear law that a usufructuary mortgagee can lease his usufructuary rights. I can see no objection to those usufructuary rights existing in a person other than the mortgagee or an assignee of the mortgagee. It seems to me, therefore, that they passed by the sale, and that Mr. Samarawickreme's legal point on which he rests his claim is not sound. There is another point which is also fatal to him, and that is this: This is an action rei vindicatio. It implies that the plaintiff is entitled to the possession of the land, but the right to the possession of the land has passed from him for the time being, and in any view of the case is either in Johanis or in the defendant. Neither Johanis, nor the defendant, nor anybody else, contest his title to the dominium subject to the mortgage. Mr. de Silva relied upon the case of Allis Appu v. Endris Hamy. In that case the owner was allowed to assert his rights in spite of the fact he had leased the land against a person who was challenging his whole title. This person is said to have prevented him from exercising his proprietary rights during the existence of the lease, because his proceedings hindered the owner from disposing of his rights, had the effect of imposing a blot upon his title. There is nothing of the sort here, and I think these facts distinguish this case from the one cited. In any case, the first point is fatal. Mr. de Silva says that if he is unsuccessful in this action, it is conceivable that the purchaser may prescribe against him. I do not think that there is any real danger of this sort, but, as Mr. Jayawardene sees no objection, I think that plaintiff might be declared entitled to the possession of the land on discharge of the mortgage debt. Subject to this, I think the present appeal should be dismissed, with costs. SCHNEIDER J.-I agree. 1(1894) 3 S. C. Reports 87. Appeal dismissed. Fidei commissum-Usufruct-Property left to wife subject to condition that she shall not sell, &c., but only hold and possess the sameCivil Procedure Code, s. 218-Seizure of interests of fidei commissarius. The words of a last will were as follows: "I give and devise all my immovable property unto my wife, subject, however, to the condition that she shall not sell, mortgage, or encumber, or in any wise alienate the same, but that she shall only hold and possess the same during her lifetime, and after her death the same shall devolve in equal shares on my two children, H and S." Held, that the will created a fidei commissum, and not a mere usufruct in favour of the testator's wife, and that during her lifetime the interests of H cannot be seized in execution. THIS HIS was an action under section 247 of the Civil Procedure Code for a declaration that a half share of the house in question was not liable to be sold under the writ of execution issued in D. C., Colombo, 687/1920, at the instance of the defendant against the plaintiff's son, Paulus Hector. The house belonged to the plaintiff's late husband, K. Sinno Appu, and he dealt with it by his last will (see below). The plaintiff's case was that by the last will the house was given to her subject to a fidei commissum in favour of Paulus Hector and his brother. The defendant's case was that the last will did not create a fidei commissum, but that the plaintiff obtained on it only a usufruct. The District Judge dismissed plaintiff's case. This is the last will and testament of Kiri Kankanange Singho Appu de Silva of Patabendimulla in Ambalangoda in the Wellaboda pattu of Galle District. I do hereby revoke, cancel, and annul all last wills and testaments and writings of testamentary nature, if any, heretofore made by me. I give and devise all my immovable property of what kind or nature soever wherever found or situate in possession or expectancy in remainder or reversion unto my lawful wife, Andrawas Patabendi Josie de Vas Gunawardene Haminey, subject, however, to the condition that she shall not sell, mortgage, encumber, or in any wise alienate the same, but that she shall only hold and possess the same during her lifetime, and after her death the same shall devolve in equal shares on my two children, Paulus Hector Lionel de Silva and Lionel Shelton de Silva. 8-XXIV. 18-23/455 1922. 1922. I bequeath all my money and all other movable property unto my wife, the said Andrawas Patabendi Josie de Vas Gunawardene Haminey, Gunawardene for her absolute use and benefit. v. Visvanathan I do hereby nominate, constitute, and appoint my wife, the said Andrawas Patabendi Josie de Vas Gunawardene Haminey, as the executor of this last will and testament. In witness whereof, I, the said Kiri Kankanange Singho Appu de Silva, have set my hand to two of the same tenor and date as these presents at Patabendimulla in Ambalangoda on this Twelfth day of February, One thousand Nine hundred and Sixteen. Witnesses: Signed and attested. Samarawickreme (with him M. W. H. de Silva), for appellant. E. W. Jayawardene (with him H. V. Perera), for respondent. November 7, 1922. PORTER J.— This was an action under section 247 of the Civil Procedure Code for a declaration that a half share of a house is not liable to be sold under the writ of execution issued in D. C., Colombo, 687/1920, at the instance of the defendant against the plaintiff's son, Paulus Hector. The house belonged to the late husband of the plaintiff, who dealt with it by his will. The plaintiff's case was that by her husband's last will the house was given to her, subject to a fidei commissum in favour of Paulus Hector and his brother. The defendant's case was that the last will did not create a fidei commissum, but that by it the plaintiff obtained only a usufruct. The learned Judge has dismissed the plaintiff's action with costs. The words of the will are as follows: "I give and devise all my immovable property of what kind or nature soever wherever found or situate in possession or expectancy in remainder or reversion unto my lawful wife, Andrawas Patabendi Josie de Vas Gunawardene Haminey, subject, however, to the condition that she shall not sell, mortgage, or encumber, or in any wise alienate the same, but that she shall only hold and possess the same during her lifetime, and after her death the same shall devolve in equal shares on my two children, Paulus Hector Lionel de Silva and Lionel Shelton de Silva." These words, in my opinion, create a valid fidei commissum in the clearest words. Mr. Jayawardene, for the respondent, has referred us to the following cases:-Mendis v. Fernando1; Samaradiwakara v. De Saram2 (a Privy Council Appeal); Weerasinghe v. Gunatilake.3 The words of this will, the subject-matter of this action, I think clearly vest the dominium of the house in question in the plaintiff. There is a presumption that where property is bequeathed to a 1 1 (1906) 9 N. L. R. 77. 2 (1911) 14 N. L. R. 321. 3 (1910) 14 N. L. R. 35. 1922. PORTER J. v. person, with a prohibition against alienation, the intention is presumed to be to confer on him full ownership. As there can be no question of a person who is not the owner of property alienating it, the presumption according to Voet is that where a testator prohibits Gunawardene a legatee from alienating property bequeathed, the intention is to Visvanathan make him owner. It has been argued by Mr. Jayawardene for the respondent that this is only a presumption which may be rebutted if there are other indications of a different intention on the testator's part, and he argues that the words" only hold and possess during her lifetime" show such contrary intention on the part of the testator. The words differ in the several cases cited to us, but in no one of them have the words "hold and possess been held to convey only a usufruct. I am therefore of the opinion, as I have already said, that the will in dispute creates a fidei commissum. It has been further argued that even if the will creates a fidei commissum the interest of Paulus Hector was liable to seizure. I cannot agree with the contention, as by section 218 (k) of the Civil Procedure Code the interest of Paulus Hector is merely a contingent, and not a vested, interest, and so not liable to seizure. I would allow this appeal and set aside the decree, and enter judgment for the plaintiff, with costs, both here and in the Court below. SCHNEIDER J. This appeal was argued at very great length for the defendant, respondent, but the point involved was the construction of a simple last will expressed in very appropriate legal language. The facts are these: The plaintiff's deceased husband made the will in question in February, 1916. It was drawn and attested by a notary public. The part of the will which has to be construed is the following: "I give and devise all my immovable property of what kind or nature soever wherever found or situate in possession or expectancy in remainder or reversion unto my lawful wife, Andrawas Patabendi Josie de Vas Gunawardene Haminey, subject, however, to the condition that she shall not sell, mortgage, encumber, or in any wise alienate the same, but that she shall only hold and possess the same during her lifetime, and after her death the same shall devolve in equal shares on my two children, Paulus Hector Lionel de Silva and Lionel Shelton de Silva." But I will quote the very next clause also "I bequeath all my money and all other movable property unto my wife, the said Andrawas Patabendi Josie de Vas Gunawardene Haminey, for her absolute use and benefit." One of the lands devised was seized by the defendant in execution of a writ against Paulus Hector. The plaintiff claimed the same, but her claim was disallowed. She then instituted this action under the provisions of section 247 of the Civil Procedure Code to have it declared that the land was not liable to be sold in execution. |