057-NLR-NLR-V-47-AIYASATHUMMA-et-al-Appellants-and-RETNASINGHAM-Respondent.pdf
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GANNON J.—Aiyasathumma v. Retnanngham.
1946Present: Cannon and Canekeratne JJ.AIYASATHUMMA et cd., Appellants, and RI5TNASINGHAM,Respondent.
351—D. C. Batticaloa, 184.
Fidei eommisaum by act inter vivos—Death of fideicommisaarius beforefiduciarius—Spes succeesionis passes to heirs of fidefoommissarius.
In the case of a fidei eommisaum created by deed of gift, if a fidei-commiaaariua predeceases the fiduciaries the former transmits the spessttccessionis to his heirs.
^ PPEAX. from a judgment of the District Judge of Batticaloa.
M.I. M. Haniffa (with him M. Abdulla), for the plaintiffs, appellants.
E. S. Perera (with him S.A- Marikar), for the defendant, respondent.
Cur. adv. wit.
April 1, 1946. – Cannon J.—
This appeal relates to a question of a fideicommissum. By a deed ofgift one P. P. Marikar transferred paddy land to his younger son, subjectto certain conditions, namely, that the donee “ shall possess and takethe produce thereof from the date of my death until his lifetime withoutusufructing, mortgaging or transferring them, that after his death thesaid properties shall devolve on my daughters only, that I the donor andmy heirs will have no right whatever to the said properties ”.
* {1929) 31 N. L. S. 55.
Anchafulle v. Mudiyanst.
181
There were seven daughters then living, but one of them Maimoona-thummah predeceased the donee. The sis surviving daughters sold theland in its entirety to the defendant, against whom this action was broughtby the appellants, of whom the 1st, 2nd, 3rd and 5th are the children ofMaimoonathummah, and the 4th a nominal party, he being the husbandof the 3rd appellant. The appellants claimed a declaration of title thatall of them, except the 4th, were entitled to an undivided one-seventhshare of the land jointly. The District Judge held that only the survivingdaughters were entitled to it because P 1 does not say “ my daughters ortheir heirs
This interpretation does not seem to me to be capable of support. Thematter must, as the District Judge says, be governed by the terms of thedeed, but when the donor executed the deed and made provision for hisdaughters, he obviously had in mind the daughters who were then living,and by using the word “ only ” he was not excluding the heirs of thedaughters but merely his sons. To introduce the word “ surviving ”is to restrict the meaning of the word “ daughters ” to an extent justifiedby neither the paragraph in question nor the context of the deed. In myopinion, TVfaimonnatbnmmah obtained a spes successionis when the deedof gift was executed, and therefore on her death her right passed to herheirs, namely, the 1st, 2nd, 3rd and 5th appellants—vide MohamadBhai ei. al. v. Silva et. al.1
The order of the District Judge must be set aside. The appeal is allowedwith costs, and the respondent will also pay the costs of the action anddamages Rs. 75, which sum was agreed upon at the trial.
Canhkeratite J.—I agree.
Appeal allowed.