053-NLR-NLR-V-66-B.M.-CHARLESHAMY-Appellant-and-P.-H.-CARLINA-and-others-Respondents.pdf
SANS ONI, J.—Charleshamy v. Carlina
217
1963Present: Sanson!, J., and L. B. de Silva, J.M. CHARLESHAMY, Appellant, and P. H. CARLINAand others, Respondents
S. G. 643(60—D. G. Galle, 6048
Fidei commiaaum in favour of particular membera of a family—Non-acceptance by
the fidei commissaries—Right of donor to revoke the gift.
A fidei coxnmissum in favour of particular members of a family is differentfrom a fidei commissura. in favour of a family as a class.
L gifted aland to C and C’s husband E subject to a fidei comnussum in favourof their two sons D and P and their lawful children. The gift was acceptedby the two fiduciaries but was not accepted by the fidei commissaries.
Held, that, since this was not a fidei comxnissum in favour of a family asa class, it was open to the donor, in view of the non-acceptance by the fideicommissaries, to revoke the gift so far as it related to the fidei commissariesand their children.
Appeal from a judgment of the District Court, Galle.
G. Banganathan, with Walter Widyaratne, for the Plaintiff*Appellant.
B. Wikramanayake, Q.C., with N. E. Weerasooria (Jnr.), for theDefendants-Respondents.
Cur. adv. wit.
March 22, 1963. Sansoni, J.—
The plaintiff sued for declaration of title in respect of a land whichformerly belonged to one Lusina. She gifted the land by deed Pi of1945 to Carlina (1st defendant) and Carlina’s husband Emanis (4thdefendant) subject to a fidei commissum in favour of their two sonsDharmadasa and Piyadasa (2nd and 3rd defendants) and their lawfulchildren.
The gift was accepted by the two fiduciaries ; but it was not acceptedby the fidei commissaries either at the time of the making of the giftor subsequently. Since this was not a fidei conamissum in favour of afamily, it was open to the donor, in view of the non-acceptance by thefidei commissaries, to revoke the gift so far as it related to the fideicommissaries and their children—see Packirmuhaiyadeenv. Asia Umma1.In 1951 the donor Lusina by deed P2, to which Carlina, Emanis, Dharana-dasa and Piyadasa were parties, revoked the earlier deed of gift PI and
1 (1956) 57 N. L. R. 449.
LXVI—10
2B 19752—1,855 (8/84)
218
SANSONI, J.—Charleshamy v, Carlina
Emanis, Carlina, Dharmadasa and Piyadasa renounced all their right,title, interest and claim, if any, under that deed of gift. This deed P2had the effect of revesting the title in Lusina.
The next transaction was a gift by Lusina to Carlina alone (P3 of1951), after which Carlina, Dharmadasa and Piyadasa by deed P4 of1953 transferred the land to the plaintiff, reserving to themselves theright to obtain a re-transfer on payment of Rs. 5,000 and interest at12% within a period of five years. That period elapsed without anyreconveyance being obtained, and the plaintiff brought this actionagainst the three vendors for declaration of title, ejectment and damages.The 4th defendant Emanis was later added as a party. The plaintiff’saction was dismissed by the learned District Judge and he has appealed.
It seems to me that the appeal must succeed because the deed PIof 1945 was effectively revoked by Lusina. Mr. Wikramanayakesought to support the judgment by relying on the ease of Abeywardem v.West1. He argued that acceptance by the fiduciaries was sufficientacceptance to make the fidei commissum valid and binding in favourof the chilchen of Dharmadasa and Piyadasa and to render the giftirrevocable. I do not agree that this decision is in point. It dealtwith a fidei commissum in favour of a family as a class, and not a fideicommissum in favour of particular members of a family, which is thecase we are dealing with. That difference makes the Privy Councildecision inapplicable.
I would, therefore, hold that in view of the non-acceptance by thefidei commissaries, it was open to the donor to revoke the gift so far asthey and their children were concerned. When the fidei commissariesand the fiduciaries renounced their rights, if any, in favour of the donor,who contemporaneously revoked the gift, there was nothing left to anyof the defendants. Consequently, the subsequent transactions werevalid and the plaintiff became the owner absolutely at the expiry offive years from the date of his purchase.
I would set aside the judgment under appeal and give judgment forthe plaintiff as prayed for with costs in both Courts, save that damageswill be at the agreed rate of Rs. 20 per month from the date of action.
L. B. de Silva, J.—I agree.
Appeal allowed.
1 {1957) 58 N. L. R. 313.