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Present; Wood Reuton C.J. and De Sampayo A.J.,ABEYESINGHE w. PERERA et al.
—D- C. Colombo, 37,905.
Fiduciary donalion—Prohihition against leasing land for a periodexceeding ten years—Ttco leases for ten years each—Second totake effectafter the first—Right of donor toconsentto waiver of
condition of gift without reference to reversioners.
James and Maria donated (heir land to their son John, with areversiontohislawfulchildren. The materialclausein the deed
of gift was as follows:—
“ li i:s herebystipulated(hatthe .aforesaidJohn shall only
possess theaforesaidproperty,but. notsell, mortgage, or
lease for a periodexceeding tenyears atatime,oralienate
the same inany otherway. After his death his legitimate
children shallbe entitled tothesame, andpossess or dispose
of the same according ‘to their will and pleasure."
Johnexecutedtwo leasesin favour ofdefendants, eachfor a
period of ten years; the second was to take effect on the expirationof the first. X ho donors (James and Maria) consented, to theleases. John died in1900, during thependencyofthefirstlease.
Held,thatthefirst leasewas not validafter the deathof the
lessor, and that the second lease was bad altogether, and that itwas notinthepowerof the donors to waiveany ofthe- conditions
iu favourofthedoneewithout reference to thereversioners.
" Insucha esse – as thepresent, wherethe reversionersare the
legitimate descendantsofthe donees, acceptanceofthegiftby the
fiduciary donee is a sufficient Acceptance on behalf of the descend-ants, and precludesthedonors fromrevokingit,evenifsnch a
consent as tbc original owners of the land gave to the execution ofthe second lease could be regarded os a revocation."
HE facts are set out in the judgment. The material portionsof the deed of donation on which parties based their rights are
Iu consideration o! the love and affection we the aforesaid havetowards one ofoursons, JohnHenry AbrewAbeyesinghc, ofRagaxna
aforesaid, and of his divers good qualities, and in view' of bis future welfare we dohereby grant convey and assure nufo him, ae an irrevocable gift, subject to thefollowing conditions, in lies: of the share of inheritance which the said John HenryAbcyesinghe will be entitled, to from ns, for a sum of Bs. .1,000 of the lawful moneyof Ceylon, all the soil and plantations, &c.. within the boundaries of the aforesaidland, held and possessed by virtue of deed of partition No. 1^958 datedJanuary 96, 1686, attested by G.AnthonyWijcsinghe Xcla&arataa,
Notary Public., Colombo District, in favour of Maria Ejostina PereraAmarasekera SiriwardanaHamiuc, one of the aforesaid grantors, end
containing in extent 10 acres 2 roods and 8 perches.
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It is hereby stipulated that the aforesaid John Henry Abrew Abeve- 191&ainghe shall only possess the aforesaidproperty,butnotsell, mortgage, •’“T.
or lease for a period exceeding ten years at a time, or alienate the *4iwep permt
in any other way. After his death his legitimate children shall beentitled tothe same, and possess ordisposeofthesame according
to their will and pleasure. In the event of the Government acquiringthe aforesaid land at any time, the said John Henry Abrew Abeyesingheis authorized to receive the compensation that will be paid therefor bythe Government.
Therefore,we do hereby declare thatneitherwe,the grantors, nor
our heirs, executors, administrators, nor assigns shall have any rightor fllftim to the land and its appurtenance hereby granted.
I, JohnHenry Abrew Abeyesinghe aforesaid,dohereby declare that
I have accepted with pleasure and thanks the grant hereof.
Allan Driebetg, for plaintiffs, appellants.
Samarawickrema, for defendants, respondents.
Cut. adv. vult.
February 3, 1915. Wood BeStok C.J.—
The plaintiffs, the appellants, sue the defendants, the respondents,for a declaration of title to the land described in the plaint, forpossession, and for damages. The defendants deny the plaintiffs'title and claim possession of the land in suit by virtue of two leases,No. 1,658 of December 22, 1904, and No. 14,609 of March 2, 1908.The original owners of the land, James de Abrew Abeyesinghe andhis wife Maria, by deed No. 1,657 of December 22, donated it totheir son John Henry Abrew Abeyesinghe, with a reversion to hislawful children. The first and second plaintiffs, who are miuors,are his lawful children, and “the third plaintiff is their next friend.The leases under which t.he defendants claim possession of the landwere granted by John Henry Abrew Abeyesinghe. Each lease isfor a period of ten years. The second is to take effect on theexpiration of the first, and the original owners and donors of theland consented to it. The real question on which the parties areat issue is whether John Henry Abeyesinghe had power under thedeed of gift to grant either of the leases in question. The learnedDistrict Judge has answered this question in the affirmative. Iumy opinion, it should have been answered in the negative. Thematerial clause in the deed of gifts is as follows:—
“ It is hereby stipulated that the aforesaid John Henry AbrewAbeyesinghe shall only possess the aforesaid property, butnot sell, mortgage, or lease for a period exceeding ten yearsat a time, or alienate the same in any other way. Afterhis death his legitimate children shall be entitled to thesame, and possess or dispose of the same according to theirwill and pleasure."
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1816. The learned District Judge holds that under this clause theWood donors intended that the donees should have power to grant leasesHentok C.J. for the full period of $en years, and that any lease so granted wouldAbeyeainghe be valid for that period, even if the lessor should die during itst. Perera currency. I am unable to agree. The faculty of leasing is intro-duced into, the clause in question merely as an exception to a generalprohibition of leasing, and the words which follow, giving thelegitimate heirs of the donee a right to “ possess after ** his death,seem to me to point to the conclusion that that right was to takeeffect whenever the death of the donee occurred.
These considerations are sufficient to dispose of the first lease.The second stands in an even less favourable position. The lessordied in 1909, some years before it could come into operation. Itwas not argued, nor did the learned District Judge hold, that thislease could be defended as a valid exercise of the power of leasingcontained in the deed of gift. The view of the District Judge wasthat, as the heirs of the donee had not accepted the gift, it was inthe power of the donors to waive any of its conditions in favour ofthe donee without reference to the reversioners. In such, a case asthe present, where the reversioners are the legitimate descendantsof the donees, acceptance of the gift by the fiduciary donee is asufficient acceptance on behalf of the descendants, and precludesthe donors from revoking it, even if such a consent as the originalowners of the land gave to the execution of the second lease couldbe regarded as a revocation. The law is expressly declared in thissense by the decision of this Court in Soysa v. Mohideen1, and thedefendants' counsel admitted in argument that it was so.
On these grounds I would set aside the decree of the DistrictCourt and direct judgment to be entered for the plaintiffs for adeclaration of title to the premises in question, and for the ejectmentof the defendants therefrom. In accordance with the agreementof the parties at the trial damages will be assessed by a commissionerto be appointed by the parties, whose decision will be final. If theparties are unable to agree to such an appointment, it must bemade by the District Judge. The plaintiffs are entitled to thecostr of the action and of the appeal.
Df. Sampan o A.J.—I agree.
» (1014) 11 Af. L. R. 279.
ABEYESINGHE v. PERERA et al