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Present: Bertram G. J. and Schneider J.SAIDU e. 6AMIDU.
401—D. C. Gate, 18,613.
Deed of donation creating a fidei commissum—Is it mUd under theMuhammadan law t—Prohibition against lease for oner two years—No penalty stated—Brutum fulmen—Eight of lessor to sue trespasserin ejectment,
A deed of gift createda,/2de£c09»ffri*m»andconlamed&prohibitionagainst leasing for more than two years. There was no penaltyimposed in the event of the lease exceeding the prescribed limit.M, a fiduciary, leased it for four years, commencing from 1920,to defendant, but M died in 1919. thereafter the child of M andthe widow of M leased the property ior six years to the plaintiff.
Seld} that the lease to defendant, which was to take effect afterthe death of M, was not valid, and that the lease to plaintiff wasvalid* though it exceeded two years.
The deed of donation was as follows:—
Know all men who are concerned by these presents s—That I* Isa,Uinma, wife of Cader Kuttyna Kadas Sarai Lebbe Marikkar of Qalu-piyadda, within the Four Gravets of Galle, do hereby declare that asI am willing *to grant something out of my immovable property unto mysons Sarai Lebbe Marikkar Mahammado and Sarai Lebbe MarikarMahammado Abdul Cader, both of Galupiyadda, who have beennourishing me with humble obedience for their future welfare, thereforeI do hereby grant over as a gift the following premises held and possessedby me by right of purchase under and by virtue of a registered deedNo. 2,568, attested by Porolis Charles Perera Gunatilaka, Notary, onFebruary 14, 1887, to wit:—
Therefore in future no claim, demand, or dispute shall be made orcause to-be made either by me, the said donor, or by any of the heirs,executors, administrators, and assigns at my estate; and the said twodonees, Sarai Lebbe Mari Meat Mahammado and Sarai Lebbe Markka?Mahammado" Abdul Cader, their heirs, executors, administrators, andassigns of their estates are hereby authorized to have and to holdfrom this day the said premises hereby donated to possess, commencingfrom July 27, 1894, the said premises shall be possessed accordingly,
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but shall pot sell, mortgage, or do or commit any act whatsoever wherebythe same is, can, shall, or may be alienated, and that at one time theyshall not be leased out for a term over two years. (That should therecome a tima when there shall be no Sarai Lebbe Marifcfcar Mahammado,Sand Lebbe Marikfear Mahammado Abdnl Cader, and their children,grandchildren, or descendants, then, attract tame, the said premises shallbe vestedin the Kottuwal Palliya alias Mahapalliya of our Muhammadanreligion, situate at Talapitiya, to tabs the produce thereof.
Thus making these special orders this deed of gift was caused to bedrawn, and I» the said IsaUmma, have set my hand and seal to three ofthe same tenor as these presents on this 1st day of October, 1803*
And I, Sarai Lebbe Marihkar Mahammado, do hereby declare that Ihave accepted this gift granted to me and to my brother who is under agowith thanks to the donor promising to possess the same in equal shares.
In witness whereof, &o
rpHE facts appear from the judgment.
Soertsz, for tbe appellant.
Abdul Cader, for the respondent.
March 28,1922. Bebtbah C.J.—
Hub appeal relates to a document executed by one Isa Umxna onOctober 1,189S, and the action is concerned with the claims of rivallessees claiming under that document. There seems no questionthat it was the intention of the person executing that* document tocreate a fidei commissum. It was contended in the Court belowthat as the parties to the transaction were Muhammadans, mid thedocument in the initial part of it was in tbe form of a deed of gift,the matter was governed by the Muhammadan law, and that,consequently, any attempt to impose arestriction on alienation uponthe donees was invalid, and that the document, therefore, mustbe treated simply as a deed of gift.
Mr. Abdul Cader, however, in this Court quite properly admittedthat if the intention of the document was to create ufidei commissum,it would be governed not by Muhammadan law, but by Roman-Dutch law. No-objection has been taken either in this Court orin the Court below to the effectiveness of the fidei commissum whichtbe donor thursought to create. We need not, therefore, discussthe question here, and* it may be taken that the document is aneffective commissum.
Now, as I have said, both the parties claim under leases, one fromMahammado, one of the fiduciaries; the other from his child, thewidow of Mahammado, joining as a party and with tbe sanctionof the Court. As against the defendant, it is urged that the leaseinfringes one of the provisions of the fidei commissum. The fideicommissum contains a prohibition against leasing for more than twoyears. Mahammado, tbe fiduciary in question, purported to executea lease for four years from March, 1920. It was, therefore, urgedthat the lease, which is the lease under which the defendant now
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olaims, was void. It ia not neoessary to oonaider that point, becausethere Is another point whioh is wholly fatal to the person churningunder tbis lease, which is, that on January, 1910, Mahanunado died,and as under the fidei commissum he had only a life interest, any
invalid. It is clear, therefore, that the defendant has no title tostand upon.
The learned Judge, however, on examining the record oame tothe conclusion that the. lease under which the plaintiff claims wasequally ineffective, inasmuch as it purports to lease the share of theproperty dealt with for cdxyears. To that Mr. Soertsz replies that,at any rate, his lease is good pro tanto. This is no doubt a soundanswer. But there is a further answer. This provision in tihefideiconm%88um, purporting to restrict the power of alienation on bene-ficiaries, seems to ns to be altogether ineffective and nothing but abru&um fulmen. There is no penalty or forfeiture imposed in theevent of a lease exceeding the prescribed limit, and it appears to ubthat the restraint thus sought to be imposed is not effective. Ineither case, therefore, whether the lease to he considered is madepro tanto or is good altogether, the plaintiffs title is clearlysuperior to that of the defendant.
Mr. Abdul Cader sought to impugn the plaintiffs position by con-tending that, inasmuch as be was not given vacant possession, andas the defendant has been in occupation of the property, his trueremedy was an action against his lessor. He cited cases whichcontained dicta to the effect that, both in the case of a lease and inthe case of a purchase, the lessee or the transferee was not bound tosue in ejectment, but was entitled to sue at once the person throughwhom he claimed. These authorities do not assist Mr. Abdul Gader.They only jhow that there is an alternative remedy. There is noquestion that a.lessee can sue in a rei vindicaUo action, and theClaim in the present case seemB to be perfectly good.
Mr. Abdul Cader raised another point. The lease under whichthe plaintiff claims was made with the sanction of the Court, andthe order of the Court was to the effect that* the share in questionshould be leased for a period of six years at the expiration of thepending lease. The pending lease referred to seems to be that' underwhioh the defendant claims. I do not think this, point affects thematter. The Court made its order under the erroneous impressionthat there was in existence a valid pending lease, and had directedthat the lease authorized should take effect on the expiration of thatlease. As it now turns out that there was no such valid pendinglease, the order of the Court, I think, took effect immediately.
For these reasons I would allow the appeal, with costs, here andbdow.
Sghnetoeb J.—I agree.
SAIDU v. SAMIDU