136-NLR-NLR-V-23-AMARAWICKREME-v.-JAYASINGHE-et-al.pdf
Present: De Sampayo and Schneider JJ.AMARAWICKREME v. JAYASINGHE el at.265—D. C. GaUe, 16,803.
Fidei commissum—Prohibition against [alienation to any one else butheirs—Pre-emption.
A joint will provided that (1) the survivor shall possess the pro-perties ; (2) after the death of the survivor the properties beequallydivided among the children; and (3) if the children require to sellthe property which they become entitled to from our estate, theyshall sell the same to an heir of this estate for the then value, butit is prohibited to sell the same to any one else.
Held, that the will created no fidei commissum.
rp BIS was an action for the partition of the land called Parangiya–L wattakebelle.
The plaintiff, alleging that the last will of Abaranand Christinacreated a fidei commissum, contended that the purchasers in
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execution against Thep&nis and Amolis, two of the children oftestators, got no title on their deeds, and that those shares devolvedon the heirs of the said Thep&nis and Amolis, of whom theplaintiff-respondent is one.
The appellants contended (a) that the will in question did notcreate a fidei comimsatm ; (b) that the plaintiff was not entitled tothe improvements he claimed. The District Judge held that thewill in question created a fide* conmiaavm.
Samaramckreme (with hi™ Soertaz), for nineteenth, twentieth, andtwenty-fourth defendants, appellants.
M. W. H. de Silva, for plaintiff-respondent.
February 27,1922. De Samp^vyc J~
The question for decision is whether the joint willof EudamadinageAbaran and his wife Punohihewage Bella Christina contains a validfldei eommiasum. The testators had six children, Hendrick, Elias,Nicolas, Julius, Thepanin, and Amolis. The testators by their will,which was. dated November 8, 1857, after making certain gifts,provided as follows:—
(6) The survivor of us two shall possess the remaining movableaixd immovable property, exclusive of the property giftedas aforesaid, during his or her lifetime, but it is prohibitedfrom selling, mortgaging, or giving in gift.
After the death of us both, all the movable and immovable
property to be equally divided among our six children(named).
If our said six children require to sell the immovable property
which they become entitled to from our estate, they shallsell the same to an heir of this estate for the then value,but it is prohibited to sell the same to any one else.
It is this last provision that is said to create the fidei eommiasum.Of the said children, Hendick died, leaving four children, namely,the plaintiff, first defendant, and Daniel, and Francis. In executionagainst Daniel and Francis their interests in the land were sold andpurchased by one Comelis de Silva, and in execution againstThep&nis and Amolis their interests were sold and purchased in equalshares by the said Comelis de Silva and one Johannes Abeysena’sadministrators. By deed dated June 17, 1918, Comelis de Silvasold his interests to the twentieth defendant, and the administratorsof Johannes Abeysena sold what they acquired at the executionsale to the nineteenth defendant* The share of Nicolas, the thirdson of the testators; was sold in execution in 1899 and purchased byone Abeysuriya, from whom that interest has passed to the twenty-fourth defendant. The claim of the nineteenth, twentieth, and
1922.
Amara*wickrcmB v.Jayasingh*
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1928. twenty-fourth defendants is tf on the ground that the will of_—Abaran and his wife created ain favour of the
j* AT° family, and that the Fiscal's sale* passed no title. On behalf of theplaintiff, the decision in Robert t>. Abeyewardene1 is relied on. Thatwicknme v. °*** is dearly distinguishable. The language of the present will isJayaeinghe insufficient to create &fidei commiesum in favour of the family of thetestators, and clause 9 of the will contains a bare prohibition whichhas no legal effect, except, perhaps, to give to the nominated heirea right of pre-emption if any of them should wish to sell his share.
I think the appeal should be allowed, with costs, and the caseremitted to the District Court , with di%&fcions tore-allot the shareson the footing that the said will did laot create a valid JWe» commissum.
SohitetdebJ.—I agree.
Appeal allowed.