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Present: Bertram C.J. and Schneider J.APPUHAMY t>. JAYASOOBIYA.819—D. C. Oalle, 17,978.Fidei wwnmiMmm—Last will—Devise to children and , their heirs—Prohibition against alienation—Permission granted to one .heirto give the property to another heir—Division of property amongco-heirs bp auction—Purchase of one property by one heir—Conveyance in his favour by all the other co-heirs—Is propertysubject to fidei commissum?
By a last will made in 1869 the testatrix gave her property toher four children, subject to the following condition: " I do herebydirect that my said heirs and their heirs and executors shouldpossess for ever all the immovable property, and that theyare prohibited from selling, giving in gift, mortgaging, renting ont,or giving otherwise any of these property to any other persons, andthey are at libertytogive themin any way they chooseto
their co-heirs or their descending heirs or executors according totheir own pleasure,orupon a propervaluation thereof.” The
children made a distribution of the property among themselvesby holding an. auction among themselves. The field in questionwas purchased by ason (Nicolas),anda. deed was executedin
his favour by all the other interested parties.
Held, (a) that thewill created afideieommissum in favourof
the children and descendants of the devisees; and (b) that thedeed in favour of Nicolas was subject to the conditions statedin the will, and that it was not one given in pursuance of theliberty contained in the concluding part of the above-quotedclause.
The last will in question was as follows:—Testament.
I, 8iribaddsnage Sipila Hamine, widow of Catukurunde MohottigcDon Mathes de Silva Appuhami of Mipe, in the Talpe pattu of OalleDistrict, am now decrepitude with age and^eick, and consider itexpedient to dispense my movable and immovable property accordingto my heart’s desire. I have therefore moved by various consider-ations in my sound mind and understanding, neither instructed norconstrained by others, given directions in tho manner following todraw out this last will and testament, to wit:—
I do hereby direct to be given on behalf of Buddha, and so forth,three gems in which I believe, five kumnies extent of the field Amba-gahshanatiakuinbnra; bounded on the cast by Bhalnmnlanemaha-kandia, on the south by Gallewittegodawatta and the remaining portionof Ambagahakanstiya, on the west by Divelkumbura, and on the northby Pinkumbum, situated at Mipe, and a piece of ground twenty yards
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breadthfrom thegardenGirambagahakanattewatta; bounded on the
east by DombagahaheneWatta, south by Gallawitigoda Pansalawatta,on the west by Divelkumbura, together'with all the fruit trees growingtherein, to the temple Gallawitigoda vihare at Mipe, to be possessedin common by priests resorting thereto from the four quarters accordingto Buddhism.
Ido giveand bequeathone-half of the soil and one-fourth
part ofthe fruittrees of thegarden Illeperuma-atchywatta, situated
at Mipe, together with one-sixth part of the planter's share of the saidgarden entitled to me by right of purchase, to my sister's son Moodo*gamuwa Malwattege Don Andris who resides in the same garden.
I do hereby direct to be given unto my grand-daughter, thedaughter of one of my sons, named Don David de Silva MohottiAppuhami, now deceased, the sum of five pounds-sterling when sheattained to the age of maturity.
I do hereby direct that all my movable and immovable property,excepting the bequests in the first, second, and third clauses aforesaid,to be equally entitled to my beloved children, Don Siman de SilvaMohottiAppuhamy, brother DonNicolas de Silva Mohotti Appuhamy
of Mipe, sister Dona Mariyana Haminc of Wnllawe, and Dona GimaraHamy of Mipe.
I do hereby direct that my said heirs and their heirs and executorsshould possess for ever all the immovable property including – gardens,fields, owiti grounds, and fruit trees bequeathed as per second andfourth clauses, excepting the lands offered as per first clause and moneybequeathed upon the third clause of this last will, and that they areprohibited from selling, giving in gift, mortgaging, renting out, orgiving otherwise any of those property to any other persons, and theyare at liberty to giver them in auy way they choose to their co-heiraor their descending heirs or executors according to their own pleasure,or upon a proper valuation thereof.
I do hereby revoke all other testaments and codicils if there isany executed by me by this last will and testament.
I do hereby nominate and constitute my afore-mentioned sons,Don Siman de Silva Mohotti Appuhamy and Don Niculas de SilvaMohotti Appuhamy, as executors-of my last will and testament.
’ I, the said Siribaddanage Sipila Haminc, have in my soundmind and understanding hereunto set my seals and signature withgreat pleasure, as the foregoing clauses contain iny will and pleasure,and executed on May 17, 1859, at Mipe.
Signed, witnessed, and attested.
Soertsz, for defendant, appellant.
J. 8. Jayawardene, for plaintiffs, respondents.
.March 23, 1922. De Sampayo J.—
This case involves the true construction to be placed upon anold will, and the effect to be given to a deed among the legateesunder the will. The field which is the subject of this actionbelonged to one Sepila Hamine who made her will in the year1859. By the second clause of that will, she gave a certain share
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of a land to her nephew, Don Niculas, and by the fourth clauseshe gave all her other immovable property to her four children, ^Don Sim an de Silva, Don Niculas de Silva, Dona Mariyana Hamine,
and Dona Gimara Hamy. The fifth clause of the will containedcertain conditions which have to be interpreted in connectionwith this appeal. The fifth clause of the will runs thus—
“ I do hereby direct that my said heirs and their heirs andexecutors should possess for ever all the immovable pro-perty including gardens, fields, owiti grounds, and fruittrees bequeathed as per second and fourth clauses, except-ing the lands offered as per first clause mid moneybequeathed upon the third clause of this last will, and thatthey are prohibited from selling, giving in gift, mortgag-ing, renting out, or giving otherwise any of those propertylo any other persons, and they are at liberty to givethem in any way they choose to their co-heirs or theirdescending heirs or executors according to their ownpleasure, or upon a proper valuation thereof.
The first question is whether this clause creates a fidci commuavin.It is contended on behalf of the appellant that it does not, on theground that it does not sufficiently designate the person or personswho are to take after the immediate legatees, the children of thetestatrix, but I think this clause read, as a whole, shows that thetestatrix intended that after her children, their children anddescendants should have the property. The testatrix died longyears ago. Her will was proved in the year 1879, and in the year1880 the beneficiaries under the will made a distribution of theproperty among themselves. For this purpose they appear tohave adopted the course, which is not uncommon, of holding anauction amongst themselves. At the auction this field vras pur-chased by Don-Niculas, one of the sons of the testatrix, and allthe rest of the parties interested, including the auctioneer, executeda deed in his favour, by which, after reciting their purpose andintention of distributing the estate amongst themselves, theyrenounced their rights to Don Niculas'. in respect of this field, anddeclared they authorized and empowered Don Niculas and hisheirs, executors, and administrators- “to be entitled to the saidpremises, to possess for ever, and to tlo whatever they like withthe same.” However imperfect; the words of the deed may beas a matter of conveyance, it clearly was intended to effect adivision of the various lands of the textatrix among the heirs,but such a deed would not, in my opinion, put an end to the fideicommissum originally created by the will, but in the hands of DonNiculas the land would be subject to the. conditions mentioned, inthe will. It is contended, however, that this deed is one authorisedby the concluding part of clause five of the will, by which the hein
ware given liberty to give the property to their co-heirs or theirdescending heirs according to their pleasure. In my opinion thedeed in question was not one given in pursuance of the libertycontained in this clause, nor is it a deed of the nature contemplated.It may, as I have said, be a distribution, and does not alter therights of the parties under the original will. The importance ofthese questions is that the defendant claims a half share of thefield under the following circumstances: In the year 1884, inexecution against Don Nieulas, a half share of the field wouldappear to have been sold and purchased by one Elias Jayasinghe,and since that year that half share would appear to have passedfrom hand to hand until it came to the defendant by virtue of adeed of gift in the year 1019 granted by -Beotian Silva, the lastholder. If the will in question created a fidei eommisaum, andif the effect of the deed among the heirs was such as I have venturedto describe it, then the execution sale and the subsequent transac-tions have no effect so as to deprive those claiming under the willof the rights intended for them. In view of the opinion I haveexpressed with regard to the nature of the will and the effect ofthe deed, these transactions on which the defendant relies areinoperative. There is a further question in the case, namely,whether, apart from all other questions, the plaintiffs, who arethe children of Don Nieulas, have not acquired a title by prescription.There is a body of evidence called on their behalf which the DistrictJudge credited, and upon which he has expressed a very strongopinion that ever since the deed in favour of Don Nieulas, he andhis children always passed the land to the exclusion of the purchaserat the Fiscal's' sale and those claiming under him. The .plaintiffsare entitled to depend on this source of title apart from that derivedunder the will.
therefore, think the judgment of the District Judge in favourof the plaintiff is right, and this appeal should, therefore, be dis-missed, with costs.
Schneider J.—I agree.
APPUHAMY v. JAYASOORIYA