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Present : Wood Renton C.J. and Shaw J.DASSANAYAKE v. TILLEKERATNE.
57—D. 0. Ratnapura, 2,655.
Fidei commissum—Bequesttochildren, theirheirs, andassigns—Com-
pensation for improvements effected by fiduciary.
Tlefthisproperty by lastwill to his wife forlife, andthewill
farther provided:“Afterher demise all my property to devolve
anddescendonto my said children, share and share alike, tobe
held and possessed by them, their heirs and assigns, ' for ever,subject to the reservations and restrictionshereinafter mentioned,
that is to say, I will and' direct that neither .my said wife, nor children,■noranyofthem whomsoever,nor their nor anyof theirheirsor
assigns, shall nor may on any account whatsoever alienate, transfer,&c., the following premises, viz., all my lands situated at Ratnapura,which property Iwilland direct only tobe enjoyedand held by
my wife and children during theirnatural lives, and at their
respective deathstodevolve unencumbered untothe snrvivor or
survivors of them, and unto their respective heirs and assigns insuccession for ever. "
Held, that thewillcreated a fidei commissum infavour of the
surviving childrenofthetestator, andthat consequently, when
oneofthetestator’s childrendied intestate andissueless,nopart
of such child’s share devolved on his widow; the other children ofthe testator were entitled to it.
A fiduciary is entitled to the same right of compensation forimprovements asanyother bona fidepossessor,and to retention
of the propertynntilthe compensationis paid;a purchaser from
a fiduciary is in the same position as the fiduciary.
rjVHE facts are set out in the judgment.
E. W. Jayewardene (with him Batuwantudawa), for appellant.-—This will does not create a fidei commissum, as the persons to bebenefited are not clearly designated. Here the word “ assigns ” is
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• not used merely to confer plena proprietaa, but occurs in every: clause along with heirs, executors, and administrators. In Wije-tunga v. Wijetunga1 there was a clear designation of the persons infavour of whom the prohibition was declared, in spite of the presenceof the word “ assigns. ” That case went the furthest your Lord-ships were prepared to go in gathering from ambiguous words anintention to create a fidei commissum. Silva et al. v. Silva etal.,aHormusjee v. Cassim, s Ayaa Vmma v. Noordeen, 4 Dassanaike v.Dassanaike. 5
In any case the appellants are entitled to compensation, as afiduciary is a bona fide possessor.
Bawa, K.C. (with him M. W. H. de Silva), called upon to reply onlyon the point with regard to compensation.—A fiduciary is entitledonly to compensation for necessary improvements, see Livera et al.v. Abeyesinghe et al. 6
Gut. adv. vult.
May 30, 1917. Shaw J.—
Don Moses Tillekeratne by his last will, dated January 8, 1866,left certain property to his wife for life, “ and after her demise allmy said property to devolve and descend unto my said children,share and share alike, to be held and possessed by them, theirheirs and assigns, for ever, subject to the reservations and restrictionshereinafter mentioned, that is to say, I will and direct that neithermy said wife, nor children, nor any of them whomsoever, nor theirnor any of their heirs or assigns, shall nor may on any accountwhatsoever alienate, transfer, sell, mortgage, or otherwise encumberthe; following premises out Cn. those Bequeathed and devised unto
them as aforesaid, namely,,all my lands and houses situated
within the town of Ratnapura, which property I will and directonly to be enjoyed and held by my said wife and children duringtheir natural lives, and at their respective deaths to devolve un-encumbered unto the survivor or survivors of them, and unto theirrespective heirs and assigns in succession for ever. ”
The testator died in 1868, leaving a widow and six children.Two of these children died intestate and without issue, and thewidow also died some time ago. The four remaining children wereDona Sophia, Helen Kumarihamy, Alice Dissanayake, and W. D.Tillekeratne. W. D. Tillekeratne died intestate in 1913, leavinga widow, Susan Tillekeratne, who has taken out administration ofhis estate, and who is entitled to one-half of his property under-section 26 of the Matrimonial Rights Ordinance, 1876.
The plaintiffs, who are grantees from Dona Sophia, have broughtthe present action, claiming a declaration that they are entitled toa 'one-third share of the property in Ratnapura, on which has been
1 (1912)15 N. L. it. 493.* (1902)6 N. L. R. 173.
. »(1914)18 N. L. R. 174.5 (1906)8 N. L. R. 361.
* (1896)2 N. L. R. 190.* (1914)18 N. L. R. 57.
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erected a building known as the Survey Office bungalow, and hasallotted the other two-thirds to Helen Kumarihamy and AliceDissanayake, the second and third defendants, and claim damagesagainst Susan Tillekeratne, who is in possession of the bungalow.
The rights of the parties to shares in the property depend uponwhether or not the will of Don Moses Tillekeratne is to be construedas creating a fidei commissum in favour of the children. I.feel nodoubt that the decision of the Judge that it does so is correct.
A large number of old cases were cited to us on behalf of theappellant, in which it was held that the use of the words “ heirs, "“ heirs and assigns, M and “ heirs, administrators, executors, andassigns * ’ in certain clauses of a will or deed must be held to preventthe construction that a fidei commissum was intended.
I do not think that these cases, in which great emphasis was givento the form of particular words, and to the particular clause of thedeed in which such words occur, are of authority at the presentday. The trend of the more recent decisions, of which I will mentionWijetunga v. Wijetunga,1 *Goudert v. Don Elias,2 Silva v. Silva,3Ouneratne v. Pereraf and Mirando v. Goudert,5 is to give effect tothe true intention of the donor whenever it can be gathered fromthe language used, and not, as remarked by Pereira J. in Wijetungav. Wijetunga,l to embark on a voyage of discovery to search for apossible interpretation that defeats this intention. As said byWood Renton C.J. in Gunefatne v. Perera,4 “ the recent cases havelaid down the rule that the words ‘ heirs, executors, administrators,and assigns 1 in a deed alleged to create a fidei commissum may benothing more than a means of vesting in the fiduciary the 'plenaproprietor as a preliminary to imposing a fidei commissum uponproperty. ”
In the present case I feel no doubt of the intention of the testatorfrom the language used, namely, to create a fidei commissum infavour of his children, and he clearly intended, as indeed he saidin his will, that at the respective deaths of his wife and childrenthe properly was to pass unencumbered to the survivor or survivorsof them. On the death of W. D. Tillekeratne, therefore, his sharepassed to his surviving sisters, who each became entitled to one-third.
The plaintiffs stand in the position of Dona Sophia, so far asher life interest and possibility of succession to the entirety isconcerned, and they would be entitled to the possession of one-third.It appears, however, that the bungalow was put up. by W. D.Tillekeratne, who was in possession of it until the time of his death.The Judge has held that he. can have obtained no right to it byprescription, and in this he is clearly correct; he has also held thathe and his widow are not entitled to compensation for the improve-ment to the property, on the- ground that there cannot be ownership
» (1912) IS N. L. R. 493.8 (1914) 18 N. L. R. 174.
8 (1914) 17 N. L. R. 129.8 (1915) 1 C. W. R. 24.
6 (1916) 19 N. L. R. 90.
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of the entirety of a building put up by a co-owner, and that he canonly get compensation on a partition. This is undoubtedly so withregard to co-ownership, but W. D. Tillekeratne was in possessionas a fiduciary, and it is wejl-established law that a fiduciary is en-titled to the same rights of compensation for improvements as anyother bona fide possessor, and to retention of the property untUthe compensation is paid (see Walter Pereira 452). The case ofhivera v. Abeyesinghe,x cited contra on behalf of the plaintiffs, does notconflict with this proposition ; there the person claiming compensationwas not a fiduciary, but a purchaser from a fiduciary heir, who wasin the position of a mala fide possessor.
I would set aside the decree appealed .from pro forma, andremit the case back to the District Judge for inquiry what, ifany, compensation is payable, and for him to make a new decreein accordance with his finding.
Neither party having entirely succeeded on the appeal, I wouldmake no order as to the costs of the appeal.
The costs of the trial and further hearing I would leave to thediscretion of the Judge after he has ascertained what, if any,compensation the first defendant is entitled to receive and retainpossession in respect of.
Wood Benton C.J.—I agree.
Set aside and sent bach.
DASSANAYAKE v. TILLEKERATNE