091-NLR-NLR-V-50-FERNANDO-Appellant-and-RASHEED-Respondent.pdf
NAGAUNGA2I J.— Fernando v. Rasheed
349
1949Present: Nagalingam and Windham JJ.
FERNANDO, Appellant, and RASHEED, RespondentS. C. 297—D. C. Puttalam, 5,099
Fidei commissum—Deed of gift—Description of fidei eommissarii—Heirs,executors, administrators and assigns—"Uncertainty of beneficiaries.
A deed of gift vesting property in three persons in equal sharesimposed a prohibition against alienation and went on to say “ andthereafter their heirs, executors, administrators and assigns shall possessthe same for ever
Held, that no fidei commissum was created as there was no cleardesignation of the beneficiaries.
-A-PPEAL. from a judgment of the District Judge, Puttalam.
E. B. Wikramanayake, K.C., with H. A. Eoattegoda, for defendant•appellant.
Naina Marikar, for plaintiff respondent.
Cur. adv. vult.
January 21, 1949. Nagaungam J.—
The only point involved in this appeal is whether the deed P 1 createsa valid fidei commissum.. The relevant clause runs as follows :—•
“ I do hereby make known that I shall be entitled to the life interestof the said properties during my life time and thereafter the said CasieMohiedeen Peeru Mohamado and Casie Mohiedeen Mohamado Cassimshall possess in equal shares the said property and all things appertain-ing, connected, used or enjoyed therewith together with all my right,title and interest thereon without encumbering same by way ofmortgage or usufruct or alienating by way of transfer or gift andwithout leasing same for over three years at' any one time and subjectto the condition oifidei commissum and thereafter their heirs, executors,administrators and assigns shall possess the same for ever and that thesaid property have not been encumbered or alienated in any way,that I have full right and power to donate the said property herebyand that I shall not have the right to revoke this gift in any manner orfor any reason, so as to make it null and void.”
That the fiduciarii are indicated with a sufficient degree of certaintyis not challenged and that they are prohibited" from alienating orencumbering the premises is also conceded; but the question that hasbeen contested is whether the fidei eommissarii are equally clearly specified.The words “ and thereafter their {fiduciarii) heirs, executors, administra-tors and assigns shall possess the same for ever ” are the only words fromwhich the persons to be benefited could be ascertained. No doubtwhere similar words were used in describing the fiduciarii, those words
350
Wije Bus Co.a Z*td., «. Soysa,
have been held to be words used by a notary for the purpose of vestingthe dominium in the fiduciarii and that they must be regarded as in noway derogatory to the creation of a valid fidei commissum. But a similarreasoning cannot be said to apply where in regard to the persons to bebenefited these are the only words, for as de Sampayo J. said inSilva v. Silva x,
" Where the instrument to be construed is such that there is noclear designation of the persons who are to take after the immediatedonee, then I think that the use of such words as * executors,administrators and assigns ’ as part of the same formula with the word‘ heirs ’ is of material importance. The present case is in that situa-tion. For it is argued that the fidei commissarii are the * heirs * whoare mentioned in that context. It appears to me impossible todisconnect the word ‘ heirs ’ from the rest of the context, and so I thinkthat this is a case in which there has been no designation of the personsin whose favour or for whose benefit the prohibition against alienationis provided.”
The learned District Judge seems to have been to some extent influencedin the view he took that the deed creates a valid fidei commissum by thereference to the fact that the property was to be held subject to the“ condition of fidei commissum ”, but the most that can be said, giving fulleffect to these words, is that the donor intended to create a fidei commissumand no more. While the intention to create a fidei commissum isunquestionable, it is an essential requisite to the constitution of a validfidei commissum that the beneficiaries to be benefited must be specificallyand clearly designated. In this respect the deed completely fails.
I am therefore of opinion that the deed does not create a valid fideicommissum. The plaintiff’s action therefore fails and is dismissed withcosts in both Courts.
Windham J.—I agree.
Appeal allowed.