Amarasekere v. Podi Menika.
Present : Garvin S.P.J. and Drieberg J.
AMARASEKERE v. PODI MENIKA et al.
9—D. C. Kurunegala, 12,889.
Fidei commissum—Deed of gift—Prohibition imposed on donee and heirs,executors, and assigns—No indication of persons to be benefited—Validity.
Where a deed of gift, contained the following clause :—I, the saiddonor, have hereby granted and set over unto the said donee as a giftall the aforesaid lands …. and have also hereby ordered thatthe same shall not : be sold, mortgaged, or in any manner alienatedby him the said donee or by his heirs, executors, administrators, andassigns and the same shall not be leased out more than two years butto be held and possessed by them for ever after the death of the saidM (i.e.. donor).
Held, that it did not create a-valid fidei commissum.
HIS was an action for partition in which the question was whetherthe deed of gift No. 5875 granted by one Menuhamy to her son
Kiri Banda created a valid fidei commissum. The District Judge heldthat the deed created a fidei commissum.
Croos Da Brera, for plaintiff, appellant—There is no indication ofthe persons who are to benefit by the fidei commissum. The heirs,executors, administrators, and assigns are grouped together as one class.This is not a clear designation as required by the Entail Ordinance,Nc. II of 1876. Counsel relied on Silva v. Silva/ Ponnusamy v. Karthi*Boteju v. Fernando3.
N. E. Weerasooriya (with him M. C. Ab eywar dene), for defendant, re-spondent.—Words used expressly indicate an intention at least toprevent donee from alienating or even leasing. The word used to denotedonee’s right is “ possessed ” not “ entitled ”.“ To be held and possessed
by them for ever ” means that the heirs are the instituted donees.
i (1914) 16 N. L. 11. 174.* (1915) 1 C. W. R. 91.
a (1923) 24 N. L. R. 293.
, GARVIN S.P.J.—Amarasekere v. Podi Menika.
An entail may not be valid as a whole in that the person to get thefree inheritance is not indicated but it may be good in part. The prohi-bition imposed on the donee’s heirs may be disregarded (17 N. L. R. 129).
[Drieberg J.—There are no fidei commissarii mentioned at all.]
The word “ assigns ” must be ignored in view of the use of the words“ for ever ”. When the words “ heirs for ever ” are used, Statute lawallows an entail for four generations.
[Garvin J.—Statute law definitely states that you must indicatewho is to take the free inheritance.]
“ Heirs ” is a sufficient designation. The Supreme Court has held this.
The deed in itself may not give it free. The question will arise, Howwill the law construe such a term. The law might hold that in fact theyare to get it free.
July 12, 1932. Garvin S.P.J.—
The only question which arises for decision upon this appeal is whethera valid fidei commissum has been created by a certain deed of gift No. 5,785of the year 1899, marked P 1. By that deed one Menuhamy purportedto give the lands marked 1, 3, and 5 in the schedule to the plaint andcertain other premises to her son, Kiri Banda. The plaintiff and thedefendants both claim through Kiri Banda. The learned DistrictJudge took the view that the deed did create a valid fidei commissum.
Now the words which we have to construe are really those whichconstitute the last paragraph in that deed. They are as follows:—“ And I the said donor have hereby granted and set over unto the saiddonee as a gift all the aforesaid high and low lands with all the thingsthereto belonging or used or enjoyed therewith together with all right,title, and interest thereto and all the deeds and writings relating theretoand have also hereby ordered that the same shall not be sold, mortgaged,or in any manner alienated by him the said .donee or by his heirs, executors,administrators, and assigns and the same shall not be leased out morethan two years but to be held and possessed by them for ever afterthe death of me, the said Menuhamy, the ex Korala.” There is here aclear conveyance of the estate to the donee and the conveyance so madeis followed by a prohibition against alienation which is imposed uponthe donee as well as upon his heirs, executors, administrators, and assigns.The prohibition having thus been imposed both upon the donee and., hisheirs, executors, administrators, and assigns, the donor has not proceededto indicate in any way who are to be the ultimate beneficiaries. Thisis the first objection to the submission that these words create a validfidei commissum for they do not “ name, describe, or designate the personor persons in whose favour or for whose benefit such a prohibition hasbeen imposed.” That being the case, the whole prohibition is nulland void and the submission that this is a valid fidei commissum fails.
We have been invited, however, to construe these words as if theprohibition which the donor has undoubtedly imposed upon the heirs,executors, administrators, and assigns were ineffective or inoperative.While I do not desire to appear to assent to any such suggestion or to
admit that this is a possible construction, if I take the case upon thatbasis I am still unable to see how it would be possible to give to thisclause the effect which counsel invites us to do. If we treat this as acase in which the prohibition against alienation has been imposed uponthe donee alone, it remains to inquire for whose benefit that prohibitionhas been imposed and to whom it was intended that the property shouldultimately pass as a free estate. The only words in the deed which canbe pointed to as giving us any such indication are the words “ his heirs,executors, administrators, and assigns These words as I have saidin the case of Botejue v. Fernando' are wide enough to include any andevery person into whose" hands this property may pass by operationof law or by assignment. They clearly do not describe or designatethe person or group of persons to whom the property is to pass ultimatelyand it is impossible as a mere- matter of construction to infer from thesewords any intention on the part of the donor to benefit any particularindividual or group of individuals. If, therefore, the case be takenupon the basis upon which counsel for the ■'respondents has invited usto take it, he is confronted by the decision in the case of Botejue v.Fernando (supra) which is a clear authority for the proposition thatin such circumstances as these no valid fidei commissum is created, andfor my part I see no reason to think that that decision is otherwisethan sound.
The case will therefore be remitted to the Court below for furtherproceedings upon the footing that so far as the lands Nos. 1, 3, and 5in the schedule to the plaint are concerned Kiri Banda through whomthese parties claim was the full owner free from the burden' of a fideicommissum. The judgment of the District Court is accordingly setaside. The appellant is entitled to .the costs of this appeal. '
Drieberg J.—I agree.
AMARASEKERE v. PODI MENIKA et al