010-NLR-NLR-V-23-ASSISTANT-GOVERNMENT-AGENT-KANDY-v.KALU-BANDA-et-al.pdf
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im.
Present: De Sampayo J.
ASSISTANT GOVBRNMEaT AGENT, KANDY, v.KALIJ BANDA el al.
187—C. B, Tddeniya, 4,833.
Kandyan law—Gifts in the nature o/JScW conamissum not contrary peKandyan law.
Gifts in the nature of fidei commissa are not contrary to thespirit of the Kandyan law. There is no principle of Kandyan lawwhich prevents a- Kandyan from giving a limited interest to oneperson, and providing that at the termination of that interest theproperty should vest in another person.
rpHE facts appear from the judgment.
Samarauoichreme (with him Groos-Dabrera), for ninth, tenth, andeleventh defendants, appellants.
M. W. E. de Silva, for sixth, seventh, and eighth defendants,respondents.
Cur. adv. volt.
September 30, 1921. ,.De Sampayo J.—
The point for consideration is the construction of a Kandyandeed of gift. The donor by the above deed gifted certain landsto his two nephews, Kalu Banda and Ukku Banda. As the doneeswere minors, power was given to their parents to take care of andpossess the lands during their lifetime, and it was provided that“ even when both of the said Ealu Banda and Ukku Banda reach *
* 5. C. Min., August 2, 1892.
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their lull age, they could only enjoy the produce without givingthem (the lands) to mortgage security or transfer, and after thedeath of the said K&lu Banda and Ukku Banda, their children,grandchildren, and up to the existence of their generation toinherit and possess the said premises uninterruptedly for ever/’As some stress was laid on the word “ inherit ” at the argumentof the appeal, I have looked into the original, of which the aboveis a translation. !Fhere is no word corresponding to “ inherit/*The sentence should read more properly as “ possess in paraveni”which has the signification of possessing “in full ownership.” . Thetranslation, though not perfect, substantially reproduces the senseof the deed. There is no doubt that the deed creates a fidei com*missum; that is to say, it grants the property to Kalu Banda andUkku Banda for life and thereafter to their cliildren and otherdescendants absolutely. But it is contended that the deed shouldnot be construed on the principles of the Roman-Dutch law, towhich fidei commieea are peculiar, that fidei commissa are unknownto the Kandyan law, and that, therefore, the conditions in thedeed should be ignored and the immediate donees should be takento have acquired absolute title to the property. It is true that theordinary text books on Kandyan law do not specifically treat offidei commiesa or gifts subject to similar conditions. But it shouldbe remembered that these text books are not institutes of theKandyan law, and do not profess to deal with the whole law asa system. Nor is there anything in these text books or anywhereto show that gifts in the nature of fidei commiesa are contrary tothe spirit of the Kandyan law. In this case, as I ventured toremark in the course of the argument, it is not a question of applyingany particular rules of the Roman-Dutch law to the constructionof this deed of gilt. It is rather a question of the right of an ownerof property to dispose of it according to his pleasure. I am notaware of any principle of the Kandyan law which prevents aKandyan from giving a limited interest to one person, and providingthat at the termination of that interest the property should vestin another person. Such a disposition would, of course, be calledin the Roman-Dutch law a fidei commismm. It may not be aproper, expression to describe a similar disposition by a Kandyan.It is, however, a convenient expression, and if the thing itself maybe done among the Kandyans, the Court will not hesitate to giveeffect to it, simply because the disposition may also amount toa fidei comrmeeum. During a century or more of administrationof the law applicable to Kandyans there must have been numerouscases in which deeds of gift of this description formed the basis ofdiaims to property, but there is no single reported case in whichtheir validity has been called in question. It is not unreasonableto conclude that these gifts were recognized as good and valid.The only case Mr. Samarawickreme, for the appellants, was able to
1921.
Ds SajbpayoJ.
AssistantGovernmentAgent,Kandy, vtKalu Banda
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ywi. cite Is Danhiiba v. Setmoa.1 There, too/ a Kandyan deed of gift^btSampatooonstrued, and Both Hutchinson C.J. and Middleton J.,
j. – who decided the case, considered the terms of the deed, and wereAsrietant opinion that under it the donee in question obtained an absoluteQfwrnmmt title to the share she claimed. The decision turned upon theKandtr* wording of the deed, and not upon any particular view of theKafojfynda Kandyan law. Mr. Samarawiokreme, however, relies on thispassage in the judgment of Middleton J.“ This is a Kandyandeed 6i gift, and I do not think it was intended that any analogyto the Roman-Dutch law of fidei comrmssum should be applied toits construction.” I find it difficult to understand what thelearned Judge really meant. The passage stops there, a;nd thepoint is in no way developed. The remark probably had reference"to some argument of counsel who might have relied on Roman-Dutchauthorities, in'order to show that this donee had only a life interestand hot any absolute title. In any case the decision is no authorityfor the contention on behalf of the appellants in this case.
In my opinion the Commissioner was right in holding that KaluBanda and Ukku Banda obtained under the deed of gift only anestate for life, and that after them their children and descendantswould be entitled to the property.
The appeal is dismissed, with costs.
> Appeal dismissed.,