H. N. G. FERNANDO, S.P.J.—Nasheen v. Sithy
Present : H. N. G. Fernando, S.P. J-, and T. S. Fernando, J.A. U. NASHEEN and others, Appellants, and M. S. SITHYand others, Respondents
S. C. 229/64— D. C. Colombo, 9560/P
Fideicommissum created by Will—Designation of devisees' children and grandchildrenas fideicommissaries—Death of a devisee’s son before the devisee—Rights of thechildren of the deceased.
Where, in a fideicommissum created by Last Will, the designated fidei-commissaries are not only the children of the devisees but include also thegrandchildren of tho devisees, the rights of a devisee’s grandchildren whosefather predeceases his mother (the devisee) are not affected.
A.PPEAL from a judgment of the District Court, Colombo.
J.M. Jayamanne, for plaintifls-appellants.
M.T. M. Sivardeen, for defendants-respondents.
October 13, 1965. H. N. G. Fernando, S.P.J.—
We are in entire agreement with the conclusion of the learned DistrictJudge that the fideicommissum created by the Last Will 2D3 in favourof the lawful issues of the devisees in that Will has the effect that thedesignated fideicommissaries are not only the children of the deviseesbut include also the grandchildren of the devisees.
The learned District Judge has based his decision on the assumptionthat because of the application made in the Entail case, the terms of theLast Will 2D3 became applicable to the lot : I which is the subject ofthis action. In fact, this is the only basis on which the defence would-be entitled to succeed in their claim. Although the learned DistrictJudge construed the term “ lawful issues ” to include the grandchildren,he nevertheless held that the 2nd to 7th plaintiffs have no right in theproperty because their father Abdul Gaffoor predeceased their grand-mother Thangatchi Umma. This view of the learned District Judgewas formed because of the decisions referred to in his judgment whichheld that where one of several fideicommissaries predeceased thefiduciary, no rights are transmitted to the heirs of the dying fideicommissary. But those decisions relate to bequests in which the desig-nated fideicommissaries were children of the fiduciary. In the presentcase, however, the designated fideicommissaries include grandchildren.The grandchildren whose father died before Thangatchi Umma arethemselves fideicommissaries in their own right as being 1 issue ’ ofThangatchi Umma and their claim does not depend on transmissionof their father’s rights.
The decree dismissing the plaintiffs’ action is set aside and the casewill be remitted to the District Court for a decree of partition to beentered on the basis that the 2nd to 7th plaintiffs are entitled to a one-fourth share of the property. The plaintiffs will be entitled to the costs-
of this appeal and to the costs of contest.
T. S. Fernando, J.—I agree.
A. U. NASHEEN and others, Appellants, and M.S. SITHY and others, Respondents