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Present: Schneider and Garvin JJ.
RODRIGO et al. v. PERERA.298—D. C. Chlaw, 6,794.Fidei oommisaum—Donees to sell, mortgage, donate,. or exchange amongst
Sale by fiduciarius—Is sale invalid t
A deed of gift gave the property to seven persons subject to thefollowing conditions: —
" The donees are authorised to sell, mortgage, donate, orexchange amongst themselves, and shall not ■ do so between anyothers, and they are at liberty to lease over the said property toany one they choose at any period.”
” Therefore, the said seven donees,' their heirs, executors,administrators, and assigns are empowered by these presents topossess the said' . . . . subject to the above conditions, forever, and deal with it aoeording to pleasure.”
Sold, that the deed did not create a fidei commissum.
Passage (A) confers npon the donees a right to sell, mortgage, orexchange among themselves, and forbids their dealing with the
properly in any one of those ways with others than the donees.The effect of those words ib to give the donees right of pre-emption,but the words do not create a fidei commis&um.
Where a fiduciarius by deed purports to transfer absolute domi-nium the transfer is not invalid, hot it operates only to the extentof passing such interest ae he is entitled to.
fpHE facts are set out in the judgment.
The deed of gift was as follows:—
Deed of Gift No. 171.
On this 27th day of March, 1912.
Know all men by these presents:
T, Thelesinghe Arachchige Palis Perera of Marawila, Mudukatuwa,in Meda pa lata of Pitigal korale, do hereby declare and say:
That I, the aforesaid Palis Perera, am entitled to and possessed of,nnder and by virtue of deed No. IS,046 dated May 27, 1898, attested by1*. P. Silva, Notary Public, for the district- of Chilaw, a divided half 3harecontaining 49 marked coconut trees and 7 jak trees of an undivided halfshare, save and except the soil of all that land called Ehetugahawattft,which is bounded on the north …. containing in extent about200 coconut trees, situated at Marawila, Mudukat-uwa, in Meda palataof Pitigal korale, in Chilaw District, having valued for a sum of Bs. 609in Ceylon currency, is hereby donated over unto my cousin, Warnaknla*suriya Jokinu Fernando, of Bihiladeniya, in Katugampola korale ofKatagampola hatpattu, and to my brothers (named), for and on accountof love and affection I bear towards them and of diverse good causesand for .their future welfare as an irrevocable gift nnder any pretencewhatever, and that the donees are authorized to sell, mortgage, donate,or exchange among themselves, and shall not do so between any others,and they are at liberty to lease over the said property to any onethey choose at any period, and this is subjected to a lease of two yearsand six months upon the deed of lease bearing No. 170 written andattested' by the hereunder attesting notary.
Therefore,' the said seven donees, their heirs, executors, administrators,and assigns are empowered by these presents to possess the said 49coconut trees and 7 jak trees from this day forward, subject to the aboveconditions, for ever, and deal wit-h it according to pleasure.
Whereas I do further declare that I have not done any act or thing1so that this gift may become null and void, and that 1 have full rightto donate the said property in manner herein set forth, and also promiseto settle any 'dispute if arise in respect of this and pay any damages conse-quent thereon, and that I bind to procure any documents or writingsfor more fully confirming this gift when requested by the donees attheir cost and expense, for which I bind myself, my heirs, Ac., by thesepresents.
Whereas we tire seven* donees have thankfully received this gift fromthe donor, Thelesinghe Arachchige Palis Perera.
Samarawickreme (with him- H.V.Perera),* for plaintiffs,
H. J. C. Pereira, K.C. (with him Crooe-Da Brer a), for defendant,respondent.
February 1ft, 1023. Schneider J.—
The dispute between the parties to this action arose upon theconstruction of the deed of gift marked P2 dated March 27, 1912.Admittedly the defendant was entitled to a number of coconuttrees and jak trees as the planter's interest in the land. By thedeed P2t he conveyed by way of gift a certain number of these treesto the second plaintiff and six others. Those six others, by thedeeds marked P8 and P9 in 1918 and 1920, conveyed all theirrights to the first plaintiff. Subsequent to the execution of P2,the defendant created a mortgage, over the remainder of his interestin these trees in favour of the first plaintiff by the documentmarked P10. The first plaintiff sued upon that bond, and when theinterest mortgaged was sold in execution, he became the purchaserand obtained a Fiscal’s transfer by the. document marked Pll.If, therefore, the documents P2, Pll, and P10 are to be given theirface effect, the first plaintiff and the second plaintiff are entitled tothe trees and the possession of them. In his defence the defendantpleaded that the deed of gift, F2, created a fidei commissum, andthat, therefore, the transfers by P8 and P9 were invalid andIneffectual to pass any interest whatever. He also pleased that•subsequent to the creation of the mortgage by P10 he had transferredthe interest mortgaged by the document D2 to two persons, butthat these persons were not made parties' to the mortgage action,find that they are, therefore, not bound by the mortgage decree,and that those parties were in possession of the trees which hadbeen mortgaged. He contended, therefore, that the Fiscal'stransfer, Pll, conveyed no title to the first plaintiff which could besustained against those persons. This was the defence set up inhis answer and at the framing of the issues upon which the case wentto trial, but in giving evidence the defendant said that he was inpossession of the trees which had been mortgaged to those twopersons to whom he had transferred those trees. The learnedDistrict Judge dismissed the plaintiffs’ action for two reasons.He held, first, that the document P2 created a valid fidei commisswm,and next, that the Fiscal’s transfer, Pll, did not bind the two personsunder whom the defendant said he was in possession. On appealMr. Pereira sought to sustain the judgment of the learned DistrictJudge by the argument (1) that a fidei commissum conditionalewas created by the condition in the deed which prohibited thesale by the donees except amongst themselves, and (2) that the nextclause in the deed, which speaks of the possession by the donees,their executors, administrators, and assigns, had created a fideicommissum. I should have mentioned earlier that the defendanthad also pleaded the decrees in two cases, namely, Nos. 5,227 and5,281 of the District Court of Chilaw, as res judicata. I will disposeof this defence first. It seems to me that there is no materialwhatever upon which it can be pleaded that the j'udgments in these
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cases are res judicata. In fact I am entirely at a loss to understandthis plea. In regard to the argument as to the construction oi P2,the donor by that deed conveyed the .trees in question to theseven persons mentioned already, who are said to be, six of themhis brothers and sisters and one a cousin. The material partsof the conditions under which this gift was made are the following : —
(A) “ The donees are authorized to sell, mortgage, donate, orexchange amongst themselves, and shall not do so betweenany others, and they are at liberty to lease over the saidproperty to any one they choose at any period.”
<B) “ Therefore, the said seven donees, their heirs, executors,administrators, and assigns are empowered by thesepresents to possess the said 49 coconut trees and 7 jaktrees from this day forward, subject to the above con*ditions, for ever, and deal with it according to pleasure.”
In regard to the argument that the portion of the deed, P2, marked(A) created a fidei commissum, I find myself unable to accept thatcontention. The existence of the words ” executors, administrators,and assigns,” in my opinion, renders it impossible to say that thispassage creates a valid fidei commissum. The words in this passagebring this case within the principle of the case which wasdecided by my brother and myself a few days ago (Boteju v.Fernando).1 All the reasons which we gave in our judgment in thatcase for holding that the instrument failed to create a fidei com-missum are fully applicable to the facts of this case. I would,therefore, hold that there was no fidei commissum created by thispassage in P2.
There then remains to be considered Mr. Pereira’s argument thatthe passage (A) created a fidei commissum conditionals. He citedto us the case of Robert v. Abeywardane.a He contended that thewords which were interpreted in that case are in all material respectsthe same as the words in passage (A). I am unable to agree withthis statement. The words which were interpreted in that casewere contained in a last will, and were to the following effect :—
“ They (the children) should not sell, mortgage, &c., the immovableproperty to strangers except the original heirs, nor * couldone or more people outside their circle be granted orobtain any rights.”
It was held by De Sampayo J. that those words created a fideicommissum within the family. In so deciding he followed whathas been held in several cases with regard to the language by which
such a fidei commissum could be created i but there is one dictum
^.. »* ' /
* (1923) 24 N. L. R. 293.* (1912) 15 N. L. R. 383.
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which Mr. Pereira relies on in support of his argument that P8Scaamnum and P9 were invalid, and therefore the first plaintiff derived noJ* rights under these deeds. The passage is this :—
“ In my opinion, the will created a fidei commisaum, and themortgage to a person outside the family, or, as the willputs it, 1 outside the circle,’ is invalid.”
I cannot regard that passage as meaning any more than thatthe instrument there referred to was invalid only to .the extent towhich it purported to transfer rights .which the transferor did nothave. It is well-settled law. that the fiduciarius may by deedpurport to transfer absolute dominium, but that such a transfer isnot invalid, but operates only to the extent of passing such interestas he is entitled to. Then the case of Joseph v. Mulder 1 was citedby Mr. Pereira to support his contention that a fidei commissurncondiiionale had been created. Now, the instrument construed inthat case was a will by parents devising certain landed propertyto their children subject to the condition that they were not tosell, but that the property shall remain permanently among theirlegal heirs. I do not see how it is possible to apply the words ofthat case to the passage which we are called upon to construe inthis deed. It seems to me that we must give the words in passage (A)their plain meaning. It confers upon the donees a right to sell,mortgage, or exchange among themselves, and forbids their dealingwith the property in any one of those ways with others than the donees.The effect of those words is to give the donees a right of pre-emption.I am unable to conceive how these words could be said to create afidei commissum. It is no argument in this case to say that becausea right of pre-emption was reserved for the donees that thereforethe plaintiff derived no title under P8 and P9, because by thesedeeds six of the donees transferred their rights to the plaintiff, andtherefore they are not entitled to resist any claim which may bemade by the first plaintiff. The only other person who mighthave resisted the first plaintiff’s claim under that deed is the second'plaintiff. By the very fact that he is a plaintiff, it is manifestthat his intention is not to dispute the first plaintiff’s rights underthose deeds.
I would, therefore, hold that deeds P8 and P9 purported to passthe interest of the six transferors under those deeds.
There then remains the question as to the effect of the Fiscal’stransfer, Pll. I do not think that the defendant’s contention thatPll did not pass title to the first plaintiff should be sustained,because, as he contends, the two persons to whom he had trans-ferred , the property wer§ not made parties to that action. Thereis material on the record to show that the transfer in favour ofthese two persons was subject to the mortgage created in favour
» (1903) A. C. 190 i 3 Bal. 86.
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of tbe first plaintiff. In view of the fact that it is possible thatthese two persons may still try the question of title as betweenthemselves and the first plaintiff, I will not express any opinionas regards their right, but it seems to me that it does not lie. in thejffoffrifln-
znouth of the defendant to plead the rights of those two persons, *• ■PeremIt was no part of his defence. It was only a passage in his evidencewhich disclosed the fact when he said he was in possession on theirbehalf. Any judgment given in this case will not bind those parties,and it will be still open to them if they are entitled to rights in thisproperty as against the first plaintiff to claim those rights.
I would, therefore, set aside the judgment appealed from endgive judgment for the plaintiffs as prayed for, with costs, in bothCourts, and also give the plaintiffs damages as agreed upon.
Garvkt J.—I agree.
RODRIGO et al. v. PERERA