Rajapakse Estates Company Ltd. v. Dulsin
1985 PresentH. N. G. Fernando, S.P.J., and T. S. Fernando, J.
RAJAPAKSE ESTATES COMPANY LTD., Appellant,and N. DULSIN and 9 others, Respondents
S. C. 119/63 (Inly.) —D. 0. Negombo, 325/P
Donation—Nude prohibition against alienation—Inoperative to create a fidcicom-mieeum—Effect of clause vesting property in the donees “ and their heirsexecutors administrators and assigns."
Where a deed of gift contains a clause prohibiting the alienation of thegifted property by the donees, the prohibition against alienation is nude andinoperative to create a fideicommiaanm, unless the persons who are to take inthe event of the breach of the prohibition are clearly designated.
A clause which vests property in the donees “ and their heirs executorsadministrators and assigns ” is merely a mode of vesting the full dominiumin the donees themselves.
ApPEAL from an order of the District Court, Negombo.
J.W. Subasinghe, for the 6th defendant-appellant.
T. B. Dissanayake, for the plaintiffs-respondenta.
Our. adv. vult.
888 H. N. G. FERNANDO, S.P.J.—Rajapakae Estates Co. Ltd. v. Dulsin
September 2, 1965. H. N. G. Fernando, S.P.J.—
By a deed of gift No. 25795 of 1880 (P3), one Endoria Silva conveyeda one-third share of the land which is the subject of this action to thechildren, then bom and unborn, of his son Marthelis, subject to a life-interest reserved for Marthelis and his wife. There was a clause in thedeed prohibiting the alienation of the property by the donees, followedby the following provision:—
“ Therefore all the right title claim and interest of me the saiddonor and of my heirs executors administrators and assigns in andto the said four portions of land hereby gifted shall vest in the above-named three children of my said son and in the children that maybe born to him in the future and their heirs executors administratorsand assigns and they may after the death of the said Marthelis Silvaand Sethan Silva Hamine possess the same, for which I have herebygranted and set over the same as a gift.”
I cannot but express dismay at the fact that the District Judge,without any reference to authority, formed the opinion that (P3) createda fideicommissum. The prohibition against alienation, which wasthe only feature of the deed which could lead to that opinion, was nude,and inoperative to create a fideicommissum, unless the persons whowere to take in the event of a breach of the prohibition were clearlydesignated. It has repeatedly been held in decisions of this Court,the most recent of which is that of Weerasooriya, J. in Seneviratne v.Mendis1 that a clause which vests property in the donees “ and their heirsexecutors administrators and assigns ” is merely a mode of vestingthe full dominium in the donees themselves. Even in cases wheresuch a clause has wrongly been thought to be a sufficient designation ofthe persons to benefit in the event of a breach of a prohibition againstalienation, there have usually been other circumstances which led tosuch mistaken findings. There is no such excuse for the finding inthis instance.
The decree appealed from is set aside with costs in both Courts. TheDistrict Judge will enter a fresh decree on the basis that the deed (P3)did not create a fideicommissum.
T. S. Fernando, J.—I agree.
Decree set aside.
(1963) 65 N. L. K7171.
RAJAPAKSE ESTATES COMPANY LTD, Appellant, and N. DULSIN and 9 others, Respond