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Present: De Sampayo and Schneider JJ.HETTIARATCHI v. SURIARATCHI et al.
327—D. G. Galle, 17,353.
Fidei corain issum—Last will—Devise of residue to six children.—Provisionthat, sale or mortgage should be effected only amongst the heirs of theestate.
A testator by his last will gave the residue of his estate to hissix children, and directed that whenever it " was required to subjectthe properties to any debt, mortgage, sale, gift, or any other aliena-tion,'* the same should be done and effected only amongst theheirs of (he estate, and should not be done and effected amongstoutsiders."
Held, that the will did not create a fidei commissum in favour ofthe family.
IN this case the appellant sought to partition the land calledDanauwepahalawila. The land admittedly belonged at onetime to Don Juan Suriaratchi, who bequeathed the same, amongother-properties, by last will dated May 11, 1876, to six persons, oneof whom was the thirteenth defendant-respondent Abraham, whoseshare one-sixth, the appellant claimed on P7. It was also admittedthat one of the six persons who were legatees under the said will wasone James Henry, and that on his death Abraham and the otherheirs each inherited a further one-thirty-sixth share, which sharealso the appellant claimed on the same title as the one-sixth afore-said, t.e., on P 7.
In the course of the trial, the thirteenth to fifteenth defendants,respondents, raised the objection that the last will o£ 1876 (I *) createda fidei commissum, and that the legatees had no right to sell theirshares out of the family, and that, therefore, the plaintiff-appellanthad no title.
The Districti'Judge (T: B. Russel, Esq.) upheld the objection, anddismissed the plaintiff-appellant’s action, with costs.
The last will in question was as follows: —
Worshipping thb Thiplu Gems
We, Don Juan de Silva Suriaratchi and wife Buddha KoraJlageCicilia Hamine, both of Baddegama, in Gangahods pattu of GalleDistrict, of whom I, the first-named, Don Juan de Silva Suriaratchi,am laid up Bince of late and of old age; after full and careful consideration,it behoves me that I should make and keep a settlement of all themovable and immovable properties belonging to me and to my wife;therefore,- without any compulsion or threat of anyone, and of my ownfree will and• pleasure, whilst being of sound mind and memory, with the
consent and approval of my said wife, witnesseth the purport of the lastwill and testament, as drawn hereinafter mentioned, to wit: —
■ •*>«••*••• * •Thirdly.—I bequeath that out of my estate, properties of the valueof Rs. 500, both movable and immovable, to be given as dowry to mydaughter Suriaratchi Dona Cornells Hatnine at her marriage, shouldshe marry after my death.
Fourthly.—That it is enacted that as what was due as dowry to mydaughter, the late Suriaratchi Dona Madelena Hamihe, on theoccasion of her marriage with Don Deonis de Silva WeeragunaratneSahabandu Appuhamy, had been given at that time, therefore nothing
out of my estate shall devolve on to him.
Seventhly.—That it is enacted that after iny death, the administratorsof my estate shall proceed on with cases No. 26,035, which I haveinstituted, and No. 36,760, of .which I am the defendant of the DistrictCourt of Galle, if funds required by the sale of a land belonging to theestate; and that it is further enacted that this estate shall be subjectedto all the legal expenses of the said two cases.
Eighthly.—That it is enacted that out of the proceeds of the estate, myservant Thoronchy Kapuge Balo shall be maintained by giving her food,clothing, &c., during her lifetime, and at her death the funeral expenseson her shall also be borne by the estate.
Ninthly.—That exclusive of the said bequeaths, all the remainingmovable and immovable properties belonging to the estate shall, afterthe deaths of both of ns, be held in equal shares by our six children, viz.:—■Don Carolis de Silva Dissanayake Appuhamy’s wife Suriaratchi DonaGimara Hamine, Suriaratchi Don Nicholas Dias Appuhamy ofMagedera in lalpe pattu of Galle, Suriaratchi Don Andreas Appuhamyof Babarenda in Wellaboda pattu of Matara, Suriaratchi Don AmaselDias Appuhamy of Baddegama in Gangaboda pattu of Galle, Suriarat-chi Don. Abraham Dias Appuhamy, and Suriaratchi Don JamesHenry Dias Appuhamy, both of Baddegama aforesaid.
Tenthly.^-That should any one of the said heirs of the estate,-*, who isunmarried at present, contract a marriage against the wish, and indisobedience to the surviving testator, such person or persons. shall notbe entitled to the said settled share of the estate, but shall only be entitledto one rupee out of the proceeds of the estate.
Eleventhly.—That it is hereby enacted that the said movable andimmovable properties, which' have been disposed of amongst the heirsof this estate in the manner aforesaid, when required to subject them toany debt, mortgage, sale, gift, or any other alienation, shall be done andaffected only amongst the heirs of the estate, and shall not be done andaffected amongst outsiders.
Samarausickreme, for plaintiff, appellant.
A. St. V. Jayawardena, K.C. (with him Amarasekera), for thirteenthand fourteenth defendants, respondents.
March *29, 1922. De Sampayo J.—
The District Judge, relying on the decision in Robert v. Abay-wardena,1 has held that the last will of Don Juan de Silva Suri-aratchi and his wife created a valid fidei commissum, and has
*■ (1912) 15 N. L. R. 323.
dismissed the plaintiff’s action. He is mistaken in thinking that" the facts of this case are on all fours with the facts ” of the casereferred to. Thev are distinctly different. By the ninth clause of
the will in question, the testators gave the residue of their estate,movable and immovable, which included the land in suit, to theirsix children without any restriction. The tenth clause provided thatif any of the children contracted a marriage against the wish of thesurviving testator, he or she should not be entitled to the shareintended for him or her, but should only be paid one rupee out of theestate. Then came the eleventh clause which is supposed to containthe fidei commission. It was thereby declared that whenever itwas “ required to subject them (i.e., the movable and immovableproperties) to any debt, mortgage, sale, gift, or any other alienation,”the same should ” be done and effected only amongst the heirs of theestate, and should not be done and effected among outsiders.” Inmy opinion the provision in the eleventh clause is insufficient tocreate a fidei commissum in favour of the family of the kind discussedin Robert v. Abeyivardena (supra). By the heirs of the^estate ” aremeant the six legatees themselves, and a prohibition against alienation,except among themselves, cannot be interpreted as creating a fideicommissum in favour of their family.. It is noticeable that theprovision in question is not an integral part of the bequest to thechildren, but is disconnected from it. There is nothing to show thatit was. intended to keep the property in the family. On the other hand,alienation by the legatees was contemplated whenever they foundit'necessary, that is to say, whenever they wished to do so, and I donot think that the further direction, not to alienate to outsidersreally altered the nature of the. unconditional gift. It appears toamount only to a pious wish or advice, which can have no legal forceany more than the thirteenth clause, by which the testators purported?to deprive themselves of- the power of revoking or altering the willwithout the consent of both of them. It is, I think, a nudumpreeceptum. In this connection it may be noted that the prohibition,such as it is, extends to movable, as well as to immovable property.Moreover, it is imposed on the immediate legatees only, whereas theplaintiff's purchases, except in the case of Abraham, one of the sixlegatees against whom the plaintiff purchased- certain shares inexecution, were from remote parties. The dismissal of the plaintiff’saction is in any case not justified.
I think this appeal should be allowed with costs, and the case sentback to be proceeded with on the footing that the will in questiondid not create a valid fidei commissum.
Schneider J.—I agree.
HETTIARATCHI v. SURIARATCHI et al