last Will

 

Last will case of DR Amarasingha

This judgement arises on the appeal preferred by the plaintiff-appellants against the judgement of an additional district judge of Colombo, dismissing the action for declaration of title, damages and ejectment of the defendant-respondent.

The dismissal came to be made, inter alia on the ground that the plaintiff-appellants are not the owners of the entirety of the subject matter in respect of which the declaration of title and other reliefs were sought. The rival issues that have been framed asserting ownership to the subject matter by both parties, clearly demonstrate the conflictual interest to the subject matter which originates from the same source, namely through Dr HaramanisAmarasingha.

Admittedly, Dr Haramanis Amarasingha was the owner of lot marked 'A' depicted in plan No 2424 by right of purchase upon deed No 1868 dated 16- 12-1935. He departed this life on 6-10-1940, having executed a joint last will with his wife bearing No. 1314 dated 02-06-32, attested by N. Coomaraswamy, Notary Public. The position of the plaintiff-appellants is that the land and premises morefully described in the 2nd schedule to the plaint were purchased by Dr. Haramanis Amarasingha subsequent to the execution of the joint last Will No 1314 and therefore formed part of the rest and residue of his estate. The plaintiff-appellants contended both in the original court and before us that the subject matter of this action had not been distinctly dealt in the said last Will and therefore formed part of the rest and residue of the estate of Dr Haramanis Amarasingha. Accordingly, the plaintiffs-appellants maintain that Mrs. Mable Amarasingha the widow of Dr Haramanis Amarasingha thus became the owner of the said property. Mrs. Mable Amarasingha has caused the said allotment of land described in the 2nd schedule to the plaint to be subdivided into 5 lots in terms of plan No 2756 dated 10-10-63, made by S.Rajendra, Licensed Surveyor. By virtue of last Will No 261, she bequeathed lots 3 and 4 in plan No 2756 together with premises No 61, 5^th Lane, Colpetty and the road reservation depictedas lot 5 referred to in detail in schedule 3 to the plaint, to Dr P.H.Amarasingha. Incidentally, Mrs Mabel Amarasingha has bequeathed the remaining lots 1 and 2 in plan No 2756 with the road reservation depicted as lot 5 to the younger brother of Dr P.H. Amarasingha namely he defendant-respondent who is referred to in the last Will as “Malli”. More significantly a perusal of the last Will 261 reveals that both  P.H. Amarasinghaand Asoka Amarasingha have been appointed as the joint executors of the estate of Mrs. Mabel Amarasingha .

The said Dr P.H. Amarasingha too departed this life on 06-01-79 leaving last Will and Testament bearing No 50 dated 08-02-73 and attested by  M.I.M. Jauffer Notary Public of Colombo. By the said last will and testament amongst other properties the subject of this action to wit; lots 3 and 4 together with the full and free right to use road reservation along lot No 5 as depicted in plan No 2756 were bequeathed to the plaintiffs- appellants. The position of the plaintiff-appellants was that the defendant-respondent is in wrongful and/or unlawful occupation of the said premises.

The defendant-respondent admitted that Dr Haramanis Amarasingha became the owner of the larger land which formed part and parcel of the subject matter at one point of time but denied that the title in the said land and premises ever passed on to Mrs Mable Amarasingha. On the contrary the defendant- respondent took up the position that the rest and residue of the estate of Dr Haramanis Amarasingha, in terms of the joint last Will bearing No 1314 passed on to him as he was the only unborn child of Dr and Mrs Haramanis Amarasingha at the time of the execution of the said last Will. In the circumstances, the defendant-respondent claimed that by operation of the “rest and residue” clause in the joint last Will the subject matter of the action passed on to the defendant-respondent.

Quite surprisingly the defendant-respondent did not seek a declaration of title in hisfavour to the subject matter of the action, but only prayed for the dismissal of the action. The learned additional district judge inter alia held that the plaintiff- appellants had failed to prove their title. Hisfinding was that the rest and residue properties of Dr Haramanis Amarasingha did not pass on to Mrs Mable Amarasingha. The main question that arises for consideration in this matter therefore is the interpretation to be placed in relation to the particular clause dealing with the rest and residual properties of the testators. It is common ground that the subject matter of this action having been acquired by the testator who first died after the execution of the last Will should pass on to the beneficiary strictly in terms of the joint last Will.

For purpose of convenience the said clause of the last Will that has given rise to the controversy need to be reproduced. It reads as follows...

 

"We hereby give and bequeath the Eastern divided half share of the land purchased by us on 15th May 1932 from J.C. Seneviratne, Dehiwala comprising Assessment Numbers 12, 14 and 16 RajasinghaRoad, Wellawatta to any child or children who may be borne to us hereafter. In the event of there being no such issue the said property together with all the residue and remaining property belonging to our joint estate wheresoever the same may be situated and of what kind or nature whatsoever shall belong to the survivor of us with the power to sell, mortgaged, lease or otherwise dispose of the same and apply the proceeds thereof for his or her own use absolutely, save and except as regards the bequest of jewellery hereinafter set out. In the event of their being any such issue the survivor of us shall make for such issue a fair and equitable division of such residual and remaining property besides the above mentioned land in Rajasingha Road".

 

It has to be emphasized that the validity of the last Will No 1314 was never in issue before the learned district judge. So much so both parties relied on the said last Will to prove their title to the subject matter. Both parties are in agreement that the last Will 1314 has to be interpreted according to the intention of the testator. One of the main arguments advanced on behalf of the plaintiff-appellants is that immediately upon the death of the co-testator, the title in the property concerned, vested in the surviving spouse, namely Mrs. Mable Amarasingha. The contrary position taken up by the defendant- respondent is quite interesting. He maintains that by the said last Will No. 1314 the executrix was directed to ensure a fair and equitable distribution of the residual property among the children, born after the execution of the said Will, if in fact there be more than one child. The most interesting question that arises from this argument is as to the person in whom the title immediately vested upon the demise of Dr Haramanis, because it is only that person in whom the title vested by virtue of the joint last Will can effectively make a distribution equitably or otherwise. it is crystal clear from the argument advanced by the defendant-respondent that he indirectly admits the title that had in fact vested in the surviving spouse, because without making such an admission, he cannot claim that he is entitled to an equitable distribution through the surviving spouse.

 

The learned President's counsel of the plaintiff-appellants has contended that If the defendant’s position is to be followed, logically then, if there was more than one child born after the execution  of the joint last Will, the property must necessarily first vest in the executrix in order that she can distribute the same in a fair and equitable manner. Needless to state that even if there was one child, as has in fact occurred in this matter, the property must first necessarily vest in the executrix prior to the same being made available to such child, for she cannot distribute or make the same available unless she owns the same. Hence, as contended on behalf of the plaintiff-appellants, the understanding of the defendant-respondent too is that title in the property in question had vested in the executrix subject to direction to ensure a fair distribution. In that event, if there be any default or refusal on the part of the executrix to effect afair distribution among such issue (among the children born after the execution of the last Will) then such a Child or children cannot prefer a claim for the ownership of the rest and residual estate

of the deceased testator, but such child or children may have to advise themselves as to how best they could enforce the undertaking of the co-testator towards a fair and equitable distribution.

It is appropriate at this stage to consider the legal effect of the clause by which the joint testators have undertaken upon themselves to provide for an equitable distribution of the residual property.

The learned President's counsel of the plaintiff-appellants has strenuously argued that such an undertaking casts no legal duty on the surviving testator and is nothing more than a pious wish or a  ral obligation. The counter argument put forward by the learned counsel  of the defendant-respondent is that in terms of the last Will the rest and residual properties go to the only child of Dr Haramanis born after the date of execution of the Will, besides the Rajasingha Road property. In order to substantiate this argument learned counsel has drawn the attention to the fact that there was only one child born to Dr Haramanis and in the light of the clause which stipulates that in the event of there being no such issue (no children) the Rajasingha Road property and the other properties forming part of the rest and residual estate would go to the co-testatrix. However as there was a child, namely Dr Asoka Amarasingha who was born after the execution of the last Will, the learned counsel of the defendant-respondent contends that both Rajasingha Road property and the rest and residue would go to the child born after the execution of the Will. On a consideration of the material placed by both parties and a close scrutiny of the troublesome clause, I am not disposed to think that the learned counsel of the defendant-respondent is right in his proposed  interpretation of the said clause.

The operative part of the clause which has given rise to the disagreement reads that "in the event of there being no such issue the said property (which means Rajasinha Road property bequeathed to the child to be born) together with all the residue and remaining property  (which includes the subject matter of this action)  belonging to our joint estate wheresoever the same may be situated and of what kind or nature  whatsoever belong to the survivor of us[3]". The wording of the Will therefore appears to be extremely clear and cannot give rise to any ambiguity. What the testators have stated in no uncertain language is that the rest and residue property would pass on to the surviving spouse. If there be no issue, subsequent to the making of the Will, it is not only the rest and residue of the estate of the testators but also the Rajasingha Road property also would go to the surviving spouse. Since there was admittedly a child born to Mable Amarasingha by Dr Haramanis Amarasingha, it is only the rest and residue estate the surviving spouse would get but not the Rajasingha Road property. Therefore, the surviving spouse cannot and is not entitled to make any claim of ownership to the property along Rajasingha Road that had been specifically bequeathed to the defendant- respondent. Moreover, one has to be mindful of the fact that nowhere in the will it is stated that the rest and residue estate is bequeathed to the child or children born after the execution of the Will. In the circumstances the irresistible conclusion of the learned district judge should have been that the plaintiff-appellants are entitled to the subject matter on the chain of title set out, as opposed to the claim put forward by the defendant-respondent.

The unsuccessful attempt made by the defendant- respondent to challenge the termination of the testamentary proceedings in which the joint last Will of both Dr Haramanis Amarasingha and Mrs. Mable Amarasingha was sought to be proved and admitted to probate loomed large in the course of the presentation of the plaintiff-appellants case.

The role played by the defendant-respondent in that respect needs to be referred to briefly. It was admitted before the learned district judge that Dr Haramanis Amarasingha was the owner of the subject matter of the action referred to in paragraph 4 of the plaint. He also admitted the last Will of his father Dr Haramanis Amarasingha. A further admission recorded at the trial was the issuance of probate in testamentary proceedings 9622/T in favour of Mrs. Mable Amarasingha. The fact that Mrs. Mable Amarasingha was the wife of Dr Haramanis Amarasingha and that she was the co-testator and co-executrix was also not disputed. Undisputedly the defendant-respondent was born after the  execution of the last Will.

Subsequent to the termination of the aforesaid testamentary proceedings No 9622/T, the defendant-respondent in this case preferred an appeal to this Court in C.A 15/89 (F) challenging the termination of the proceedings in the testamentary case. It transpires from the judgment entered in the said appeal that the petitioner-appellant in that case namely Dr Asoka Amarasingha had failed to exercise his rights, if any, which he had for a period of 10 years and he has sought the intervention of the district court to set aside the order terminating the proceedings made by the probate officer at that time. Dealingwith the position relating to the residual property under the joint last Will of Dr Haramanis Amarasingha and Mrs. Mable Amarasingha this Court observed that the surviving spouse namely Mrs. Mable Amarasingha in her own last Will and some of it has been devised by the mother to the other heirs , one of whom is the father of the plaintiff-appellants in this case who has since departed this world after leaving a last Will by which some of the residuary property has been devised by him to his children. This Court further went on to state that the delay in making the application at that juncture did not warrant an interference of the court with the order of termination of the testamentary proceedings in 9622/T. The Court further held that in its view the Latin maxim "Vigilantibus non Dormentibus Jure subvenient" was an answer to the appeal preferred in that matter and dismissed the appeal.

A further important admission was the last Will of Mrs Mabel Amarasingha bearing No 261. By the said last Will 261 Mrs Mable Amarasingha has bequeathed lots 3, 4 in plan No 2756 together with Road Reservation along lot 5 which constitute the subject matter of this action to the father of the plaintiff-appellants and lots 1, 2 in plan No 2756 together with Road Reservation along lot 5 to her son Asoka Amarasingha. The Last will of Mrs Mabel Amarasingha has been admitted to probate in testamentary proceedings 25933/T, in the district court of Colombo. Dr Asoka Amarasingha was a respondent in that case and he has not challenged the issuance of the probate in the said testamentary proceedings as well. In other words, the joint last Will of the father and mother of the defendant-respondent dealing with the larger land, a portion of which forms the subject matter of this action has been proved in the testamentary proceedings and the same had been terminated despite the challenge made by the defendant- respondent. The said larger land has been divided into 5 allotments and bequeathed by Mrs Mable Amarasingha to the father of the plaintiff- appellants and the defendant-respondent in this case. The last Will which dealt with the said larger land also has been proved and admitted to probate. The father of the plaintiff-appellants has devised and bequeathed the subject matter by his last Will No 50 to the plaintiff-appellants in this case. That last Will also has been proved and admitted to probate. In the circumstances, not only it is quite apparent from the wording of the joint last Will that the rest and residual properties should go to the surviving spouse but the parties have acted and dealt with such property in that manner from the year 1944.

For the foregoing reasons it is beyond any imagination to think that by operation of the joint last Will the rest and residual estate of the joint testators has passed to the defendant-respondent. The resultant position would be that the learned district judge was patently in error when he proceeded to make what in his opinion was a just  and equitable division of the property. Obviously, he had no authority or power to do so in an action for declaration of title. The learned district judge has totally lost sight of the important question as to the person in whom the rest and residual estate of the joint testators immediately vested upon the death of Dr Haramanis Amarasingha. The learned district judge has also fallen into an error when he held that the position of the plaintiff-appellants was that the property in suit belonged to the plaintiff-appellants, whereas the case of the  plaintiff-appellants was that the survivor of the  two testators to the joint last Will having acquired a title to the property has subsequently by her last Will devised the property in question to the father of the plaintiff-appellants and they acquired title to the same through the last Will of their father.

The learned district judge has also failed to analyze properly the provisions of the last Will pertaining to the rest and residual property of the estate of the joint testators and the clear direction in the last Will that the rest and residual property should pass on to the surviving spouse, without the Rajasingha Road property, if there be an issue born after the execution of the last Will.

For the foregoing reasons, it is my considered view that the learned district judge should not have proceeded to dismiss the plaintiff-appellants action on the ground that they have failed to prove their title to the property. On the admissions the issue 1 and 2 should have been answered in  favour of the plaintiff-appellants and No's 3 to 6 against the defendant-respondents. As no evidence has been led before the learned district judge by either party, I consider it is appropriate to re answer the issues in the following manner.

1. Yes.

2. No

3. Yes

4. Yes

5. The defendant is not entitled to the rest and

residue of the estate of Dr Haramanis

Amarasingha.

6. No.

Subject to the above answers to the issues raised  by the parties, the plaintiff-appellants are entitled to succeed in their prayer for declaration of title to  the subject matter of the action as prayed for in paragraph (a) of the plaint dated 12-11-97 and therefore judgement and decree of the learned additional district judge stand reversed.

The plaintiff-appellants are entitled to costs in the lower court and I make no order as to costs in this Court.

Sgd.Judge of the Court of Appeal

I agree

Ranjith Silva J.

 

Sgd.Judge of the Court of

Appeal

 

END

 

 

 

 

OTHER DETAILS

CA Appeal No. CA 604/1999

D.C. Colombo: 18090/L

 

1. Rohan Lakshman Amarasingha,

83/3A, Ward Place,

Colombo 7

2.Shirani Anoja Amarasingha,

82/3B, Ward Place,

Colombo 7

3..Nedra Manorani Amarasingha,

82A, Ward Place,

Colombo 7

4. Prasanna Hiran Amarasingha,

82/3,Ward Place,

Colombo 7.

Plaintiff-Appellants

 

VS

 

Dr Asoka Amarasingha,

Defendant-Respondent

 

Before: Ranjith Silva J, & A.W.A.Sậlam J

Romesh de Silva P.C with Geethaka Gunawardena and Chanaka Cooray for

Plaintiff-Appellants and Rohan Sahabandu for Defendant-Respondent.

Argued on: 16.06.2008

Decided on: 26.08.2008.