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Present: De Sampayo and Dalton JJ.
8ILVA t>. KEKULAWELA.340—D. C. Colombo, 101,815.
Fidei commissum—Grant to donees, iheir descendants, executors, am?axitgnm—-Dfsiflnafcton o/ persons to be bene/Ued—Sale for non-payment of taxes—Purchase by Municipality-^Munictpal CouncilsOrdinance, A7o. d of 1910.
Where a deed of gift contained the following clause:—“ The saidproperty shall be owned, improved, and possessed by the said threepersons, as aforesaid, during their lifetime, and 1 have herebyfirmly directed that the said three persons cannot sell, mortgage,or subject the said property to any debt, security, or writ, or other-wise alienate the same: And I have hereby further directed thatthe descendants, executors, administrators, and .assigns of the saidthree persons can do whatever they please with the said propertyafter the death of the said three persons.
Held, that the deed did not create a valid fidei commissum.
CTION for declaration of title to half share of certain buildingsand premises bearing assessment No. 32, Armour Street,
Colombo. One Dona Erancina Hamine was admittedly the originalowner of the premises, the subject-matter of the action. She giftedthe property in equal shares to her son and daughter. The daughter'shalf share devolved on the present defendant, and there is no disputeregarding it. The dispute relates to the other half.
The plaintiff contended that the gift to the son created a fideicommissum in favour of the heirs of the donee, and he claimed titleto that half share as purchaser from the sole heir of the donee. Thedefendant claimed it on a deed of gift from K. Don David- to whomthe son had transferred his interests in 1901. The defendant whofor a considerable time was in possession of the entire propertyleased the whole of the premises subject to the due payment of ratesand taxes. The lessees having committed default, the propertywas sold and purchased by the Council. Thereafter, the defendant,got a retransfer of the property in his favour. The learned District'Judge held that the deed of gift created a valid fidei commissum, butwas of opinion that the purchase by the Municipal Council underthe circumstances stated gave the Council an absolute title, whichtitle on its retransfer to the defendant enured to ,his benefit andprevailed over the title of the plaintiff.
De Zoysa, for plaintiff, appellant.
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1925. Plaintiff as a purchaser from the sole surviving heir of the originalv. donee on the deed of gift of 1881 claims superior title to n half share,Kitotforrla on the ground that that deed created a fidei comminsttm in favour ofheir6, and that consequently the sale by Don Davith Aluis in 1901was bad, and conveyed no title to defendant’s predecessor in title.
The defendant sets up two defences: In the first place, he contendsthat no such jidei commissum was created by the deed of gift. Hefurther contends that even, if there was a fidei commissum, on thesale by the Municipality—the purchaser being the Municipalityitself—the Municipality ;obtain(ed absolute title to the property,which title has enured to his benefit by the sale of the right, title,and interest of the Municipality.
The deed of gift in unmistakable terras contains a prohibitionagainst alienation. “ The executors, administrators, and assignees ,fare clearly those of the descendants of the donees and not the doneesthemselves. The words “ after the death of the said three persons(donees) " makes it clear that the reference is not to the doneesthemselves. Hence the sale by Don Davith Alwis is bad. and thedefendant gets no title thereby.
With regard to the other contention of the defendant that he hasabsolute title by virtue of the transfer to him by the MunicipalCouncil. In the first place, the defendant was at the date of thesale by the Municipality a co-owner in possession of the whole of theproperty. He could not by his own default in not paying up taxeschange the nature of his possession as co-owner. Accordingly, onhis repurchase from the Municipality, he must be taken to be atrustee of the half share in dispute. All that the defendant isentitled to is to be compensated for moneys paid out by him inrespect of this half share.
It has been doubted whether a sale such as the present one wipesout a fidei commissum, vide Sivacohuulu v. Naormaliya.'
Furthermore, the v sale itself is not valid, inasmuch as there is noevidence that the rule with regard to the sales of movables first hasbeen complied with. The trend of modern decisions of this Courtseems to require a strict compliance with this rule, and it was for thedefendant to prove that such order was complied with in thepresent case.
Samaraivich-eme, for defendant, respondent.—On the questionwhether the deed in question created a fidei commisattmt it must beconceded that there is a prohibition against alienation. But thisis in itself insufficient to create a fidei commissum, as the party tohe benefited has not been indicated at all or at the best there is noclear indication. The deed, therefore, creates no fidei commissum,and hence defendant’s title is superior. Cited Silva v, Silva 2 andJJoteju v. Fernando.3
(1914) 18 N.L. X. 174 <0 178.(1923) 24 N. L. R. 293.
(1921) 22 N. L. R. 427.
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The decision (Sivacolundu v. Noormaliya (nupra)) has beenconsidered in a later case S. C. Min., 175—D. C. Colombo, 9,360,and a distinction was drawn there between sales under sections148 and 146 of the Municipal Councils Ordinance. The sale undersection 146 was held to vest absolute title in the Council, and thecertificate to be conclusive evidence. So that the defendant beingat present the successor in title to the Council must also be deemedto have absolute title.
With regard to the rule referred to as to the order in which salesought to take place, it need only be stated that there is the returnof the officer who conducted the sale, and that.must be deemedsufficient prima facie evidence that the order was duly observed.
The contention that* the defendant is a trustee for the plaintiffof the half share in dispute cannot on the argument of the appellantbe sustained, as it assumes that the defendant committed default.That is not so. The deed of lease recites that the taxes were to bepaid by the lessee, and the default was on the part of the lessees and
not of this defendant.
June 16, 1925. De Sampayo J.—
This is a claim by the plaintiff to a half share of certain premisesand buildings bearing assessment No. 32, Armour street, Colombo.One Dona Francina Hamine was the former owner of the entireproperty, and she, by deed No. 3,160 dated October 5, 1881, giftedone-half of it to her daughter, Dona Carlina, and intendedson-in-law, Don Harmanis Perera, and the other half share to her son.Don Davith Ahvis. The defendant has upon various deeds becomeentitled to Dona Carlina's and Don Harmanis Perera’s half share,and there is no dispute as to it. The dispute is to the other halfshare. In February, 1901, Don Davith Alwis sold his half share tpK. Don David from whom the defendant received it as a gift inFebruary, 1913. The defendant, being in possession of the entiretyof the premises, leased it to a third party for a number of years,subject to payment of the assessment taxes to the Municipal Council.The lessee having made default in the payment of the taxes for acertain period, the Municipal Council seized and sold the propertyin May, 1920, for the recovery of the amount of taxes due, andpurchased it themselves for the sum of Rs. 120. Subsequently,the Council by deed dated February 25, 1924, sold it to the defendantfor a sum of Rs. 1,190.38. T have mentioned these figures in orderto show that this sale by the Council to defendant was an inde-pendent transaction and not-, as was contended' for the plaintiffappellant, a mere handing back of the property on receipt of thetaxes due. The facts which I have so far stated show that the-defendant has a privia facie good title, both through the gift- fromK. Don David and the purchase from the Municipal Council.
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The plaintiff, however, says that the deed of gift No. 9,160 ofJ881from Dona Frapcina Hamine creates a fidei commmam. in favour ofthe children of the donees, and that therefore the' sale by Don DavithAlwis in 1901 of a half share'of the property, had only the effeet-oftransferring• his life'interest to' K. Don David. Don Davith Alwisdied in 1916, leaving one child named Don Mendis < Alwis, who,on February 9, 1921, purported to sell the half share to the plaintiff.
The plaintiff contends that the defendant, who' was in possessionof the whole premises, should have paid .the Municipal taxes, andhaving-made default and allowed the property to be sold andhaving, subsequently repurchased it .from the Council, he, must, -inview of the provision of. section 92 of the Trust Ordinance, No. 9 of1917, be taken to hold the half share in trust for the plaintiff. Asregards the sale by the Municipal Council he contends that theCouncil should have observed the order in which the property ofthe defaulter is. required to be sold, and should have first sold the.movable property on the premises. But it should be noted thatthe failure to pay the taxes was not intentional on the defendant’spart, and the defendant relied on his title to the' whole property andwas not even aware of a possible claim by Don Mendis Alwis. Asregards the order which is to be observed in selling property for therecovery of taxes, there is nothing to contradict the- return of theofficer who conducted the sale, and who reported, that various classesof property were first put up for sale and that there were no bidders.Moreover, as was pointed out in 178—D. C. Colombo, 9,869 (S.C. Min.,February 12, 1925), there is a great distinction-between section 148■and section 146 of the Municipal Councils Ordinance, No. 6 of 1910,and-when the Council purchases under the latter section objectionsas regards .formalities cannot be taken and are even forbidden.
But it is unnecessary to notice the above contention' further,'because all the objections vanish if there was no fidei oommissumattaching ' -to the property. The relevant portion of the deed•No.'3,160 is as follows: —
•• And the said property shall be owned, improved, and possessedby the said three persons as aforesaid during their lifetime,and – I have hereby firmly directed that the said threepersons cannot sell, mortgage, or subject the said propertyto any debt, security, or writ, or otherwise alienate the same.And I have hereby further directed that the descendants,executors, administrators, and assigns of the said threepersons can do whatever they please with the said propertyafter the death of the said three persons.
The question is whether there is a clear designation of those whoare to take the property after fhe death of the immediate donees.The District Judge thinks that in the above passage *' the executors,administrators, and assigus ” are those of the descendants of the
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donees and not of the donees themselves, and that the fidei commit- IMS.varies are the descendants. But this is an impossible construction.
All-the words “ descendants,, executors, administrators, and assigns/’ X"'go tQgether and clearly refer to the.descendants, executors, adminis- g^~vtutors, and assigns of .the donees. In my opinion the .deed, while Kekuiawdait. contains a prohibition against alienation, does not designate theparty or parties who are to take the property after- the donees, andthere is, therefore,, no valid.fidei commissum created .thereby. ..The.sale .by Don Davith Alwis to K. Don David was good .and effectiveas regards the half share, and Don Mendis Alwis had ;n? interesttherein…..
The appeal fails, and should be dismissed vith costs.
Dalton J.—I ,$gree..
SILVA v. KEKULAWELA