046-NLR-NLR-V-28-BIBILE-et-al.-v.-MAHADURAYA.pdf
( 253 )
Present: Garvin and Lyall Grant JJ.
1986.
BIBILE et al r. MAHADURAYA.
165—D. G. Kandy, 33,761.
Fidei commissum—Gift to wife subject to direction to give grandchildren—
Vesting of property—Persons to be benefited.'
Where a Kandyan gifted certain property to his wife with adirection that after his death the donee should give the propertyto two grandchildren named therein, and where the deed of giftcontinued to provide as follows:“ The said lands shall not in any
way be sold, subjected to security or mortgage, or leased for a periodexceeding three years. None of those children becoming ownersof the said lands shall by word or deed exercise any power orauthority whatsoever regarding the said lands. Hereby directingthat the said B (the donee) shall give the lands with these conditionsimposed, I authorize B, her children, grandchildren, race, andgeneration to undisturbedly possess all those lands as a poraveniinheritance for ever,”—
Held, that the deed created a valid fidei commissum.
Held, further, that no express deed from the donee was necessaryto render the fidei commissum effective.
PPEAL from a judgment of the District Judge of Kandy.
This was an action for declaration of title to half share of a
field called Radapetta, the original owner of which was one LokuMudianse. By deed No. 2,740 dated December 4, 1868, he giftedthe field to his wife Ran Menika subject to the direction that on hisdeath it should be given to his two grandchildren, Bandara Menikaand Muttu Menika, and that after them it should devolve on their.heirs. On the death of Ran Menika, the grandchildren dividedthe property between themselves and became entitled to a halfshare each. The said Bandara Menika died, leaving her survivingas heir a son, William, from whom the defendant purchased by deedNo. 4,929 dated January 9, 1914. William died in 1918, leaving himsurviving as heirs his widow, the first plaintiff, and her children, thesecond, third, and fourth plaintiffs. The learned District Judgeheld that the deed of gift by Loku Mudianse created a fidei com-missum in favour of the heirs of William, and that William had noright to sell to the defendant. He accordingly gave judgment forthe plaintiffs.
Drieberg K.C. (with Keuneman), for defendant, appellant.
Zoysa (with H. V. Perera), for plaintiffs, respondent.
( 254 )
1926.
Bibile v.Mahaduraya
November 24, 1926. Garvin J.—
This appeal depends upon a construction of a certain deed of giftbearing No. 2,740 and dated December 4, 1868, the question fordecision being whether or not it creates a vali.d fidei commissum.The donor, Loku Mudianse, made a gift of the subject of this actionand certain other property to his wife Ran Menika. The deedcommences with the statement that, having revoked certain otherdeeds of gift made by him, the donor " (hereby " gives to his wife“ who has for a long time been rendering me assistance ungrudg-ingly as an inheritance in the following manner." Then follows adescription of the property given. The deed continues " Thereforenone of my descendants shall dispute this gift either by word ordeed; the said Ran Menika shall, during my life in this world,render to me from date thereof all assistance ungrudgingly, andshall after my death have my body duly buried according to thecustoms of the world, and shall perform for me all necessary dutiesaccording to religion in regard to the next world." The partiesto this deed of gift are Kandyans, and the clauses which I have thusfar referred to are clauses of an ordinary Kandyan gift by a donorfor services and assistance rendered and in order to secure to him-self future assistance, but it will be noticed that the words of giftare made subject to limitations indicated by the words " in thefollowing manner." Then follows a somewhat lengthy clause, bywhich it is ordered " that neither the said Ran Menika nor anyonewhosoever may become entitled to the said lands shall, for anyreason or in any way, sell, subject to security or mortgage, or leasefor a period of more than three years"; and theii there are wordswhich lay Ran Menika under a duty to give the said lands " aftermy death " to two persons specified. Those persons were BandaraMenika and Muttu Menika, who are Ran Menika’s granddaughters.There are further provisions, which indicate that after the deathof one of them without children the children of the survivor of thosetwo was to be "made entitled to the land." There is a furtherclause which prohibits alienation, and the clause concludes asfollows: ‘ ‘ Hereby ordering or directing that the said Ran Menikashall give (convey) the land with these conditions imposed, I author-ize this Ran Menika and her children, grandchildren, race, andgeneration to undisturbedly possess all these lands as above as aparaveni inheritance for ever in the line." The learned DistrictJudge held that it created a valid fidei commissum. Counsel forthe appellant contended, however, that the direction to RanMenika to give the property has no real legal effect. He alsoargued finally that even if these words be construed as sufficientto disclose the intention of the donor to create a fidei commissum,Bandara Menika and Muttu Menika, the next instituted heirs, andtheir descendants took no real interest in the land in the absence of
( 255 )
a deed of gift by Ban Menika. The gift, as I have already indicated, 1926.is made subject to certain words which indicate at once that gabvin j*
the donor intended to impose certain limitations upon it. There is a
clear prohibition against alienation imposed upon the gift, not only MahadtJayaupon the immediate donee, Ban Menika, but upon all those subse-quently indicated as the persons who may become entitled to thesaid land. This is followed by a direction that after thfe death ofthe donor the land was to be gifted by Ban Menika to the personsindicated. The purpose of the prohibition against alienation isclearly that the property should be held by Ban Menika, not as herabsolute property, but for a definite purpose, and that purpose isindicated by an express direction to her that' after the death of thedonor the property was to be passed by her to the next set of in-stitutes. The concluding words I have referred to again emphasize,what is not a mere request to Ban Menika, but a direction and animperative order requiring her to pass the land to those indicated.
A little ambiguity as to the point of time when the property was tobe so passed appears in the words “ after my death,” but upon aconstruction of the terms of the deed of gift, I think it was theintention of the donor to secure to himself the assistance of BanMenika for the purpose indicated in the deed, that during thatperiod she was to have the enjoyment of the property, but immedi-ately there was no longer any need for assistance by reason of thedeath of the donor, her rights under the deed were to cease, and shewas to pass the property on to Bandara Menika and Muttu Menika.
There appears to me to be a clear indication here of an intention onthe part of the donor to impress this property with a fidei commissumby which Ban Menika was to be first instituted heir, and I agreewith the conclusion at which the learned District Judge arrived.
As to the contention that the fidei commissum did not becomeeffective by reason of the absence of a deed of gift in favour ofBandara Menika and Muttu Menika, I think the answer is thatif a valid fidei commissum has in point of fact been created, then thefidei commissary became vested with the property immediately thefidei commissum matured by the happening of the contingency, thedeath of the donor. That that event has occurred is beyondquestion. Counsel for the appellant relied on the judgment in thecase of Dantuwa v, Setuwa,* where it was contended that a certaindeed of gift contained language which created a valid fidei commis-sum, The Court there held that no fidei commissum was created.
Very little assistance is derivable from a decision which proceedsupon a deed of gift in which different language is used. The basisof the decision in Dantuwa v. Setuwa {supra) was that upon aninterpretation of that deed the Court was satisfied that it createdan absolute gift, and that the restrictions and limitations subse-quently imposed were inconsistent with the absolute grant. This
28/20*
1 (1909) 11 N. L. R, 39.
( 256 )
1926.
Gabvin J
Bibile v.Mahaduraya
case was considered in the case of S'ethuharriy v. Kiribandu,1 andit was thought that a different decision may possibly have been■ arrived at had the attention of the Court been drawn to certainpassages at pages 318 and 319 of Professor Lee’s Introduction tothe Roman-Dutch Law.
For the reasons that I have already given, my own opinion isthat the language of this deed sufficiently expresses an intentionto create a fidei commisaum.
I would therefore dismiss the appeal, and remit the case to theCourt below for further hearing and disposal.
The respondent is entitled to the costs of the appeal.
Lyall Grant J.—I agree.
Appeal dismissed.
’ (1912) 23 N. L.376.