049-NLR-NLR-V-49-COLONNE-Appellant-and-and-SENARATNE-et-al-Respondents.pdf
164
Cotonne v. Senaratne.
1948Present: Soertsz S.P.J. and Canekeratne J.COLONNE, Appellant, and SENARATNE et al. Respondents.
S. C. 294-5—D. C. Colombo, 3,515.
Fidei commissure—Land donated to two persons with fidei commissum »n favour oftheir heirs—Death of one donee—-Sale by intestate heirs—Partition action byvendee—Deeres allotting particular lot to vendee—Conclusive title.
By a deed of 1884 a donor gifted certain property to his two daughtersS and F on condition that after their death the property should descend to theirheirs. S died unmarried and without issue and her intestate heirs soldtheir rights to one C who brought an action for the partition of the property.In the final decree C was allotted lot A in lieu of his undivided shores. F diedthereafter and her children sued for declaration of title to this lot on the footingthat on the death of S her half share passed to her sister F subject to thefidei commissum.
Held, that it was not open to the plaintiffs to reopen the fideicommissarysuccession adopted in the partition case and that the title under the partitiondecree was conclusive.
Held, further, that the words “ after their death ” in the context meantafter the death of S and F respectively.
>S. C. 810/M.C. Calls, 5,343.
SOERTSZ S.P.J.—Colonne v. Senaratne.
155
Ap:
PEAL from a judgment of the District Judge, Colombo.
N. E. Weerasooria, K.C., with K. Herat, for plaintiff, appellant.
H. V. Perera, K.G., with E. B. Wickremanayake, for first defendant,respondent.
Vernon Wijetunge, for third defendant, respondent.
Cur, adv. vutt.
February 23, 1948. Soebtsz S.P.J.—
That deed No. 5,648 of September 28, 1884, created a fidei commissumwas not seriously disputed. It seems clear that it did. The question,that was open to debate was in regard to the devolution of title on the-death of the first dying donee. The donor gave, granted, assigned, andtransferred a land three acres, three roods and twenty-one perches inextent to his two daughters Sophia and Francina and to their heirs,executors, adminstrators and assigns on the condition that he shouldhave the right to recover, receive, take and enjoy the rents, profits andrevenue during his lifetime, and that after his death, the donees shouldhold the property and enjoy the rents, profits and revenue thereof butthat the property should not be subject to any debts of themselves,and that the same should not be sold or alienated and that after theirdeath, the said property should descend to their heirs. The plaintiffcontends that, upon a true interpretation, the property passed on thedeath of Sophia unmarried and issueless, to the surviving donee, hersister Francina. The defendant, however, asserts that the half sharethat Sophia got under the deed, passed, on her death, in the mannerstated in the plaint filed in D. C. Colombo Case No. 25,575 by one Don.Davith who sought to have this land partitioned, that is to say thatSophia’s half share did not go, in its entirety, to her sister Francina,her co-donee, but that it devolved on Francina, Comelis her brother,the children of a deceased sister Helena, and the children of anotherdeceased sister Regina. This was the fideicommissary successionadopted in that partition case and the present first defendant’s fatherthe plaintiff in the partition who had acquired 125/640 from personsin that line of succession was allotted that share and was, later, givenlot A in respect of that share. The present plaintiff now asks that hebe declared entitled to a half of lot A on the footing that on Sophia’sdeath Francina became entitled to the whole land and that he, theplaintiff, bought, in.the year 1943, a half share from one of Francina’s twochildren.
The learned trial Judge approached the question thus raised in regardto the correct fideicommissary succession under the deed of gift byway of a preliminary consideration of the vexed question whether afinal decree in a partition suit extinguishes fidei commissa which havenot been referred to or reserved in that decree, and confers an absolutetitle on parties to whom separate lots are given in lieu of their shares in
15G
SOERTSZ S.P.J.—Golonne v. Senaratne.
sbveralty, and he came to the conclusion that a bona fide purchaser■without notioe who had bought a defined lot from a fiduciarius whohad obtained it under a partition decree, held the lot free from thefidei corrvmissum, the partition decree not making any reference tothe fidei commissum. He then proceeded to apply the principle he had soadopted to the facts of this case which he found to be that the presentfirst defendant who claims under a partition decree is a son of the plaintiffwho filed the partition action. The plaint shows how the property wassaid to devolve on the parties to that action. Mention was made of thedeed which creates the fidei commissum under whioh Sophia and Francinabecame fiduciarii. The plaint recites that on the death of Sophia herrights devolved on all her collateral heirs and not on Francina aloneas the plaintiff now alleges, and, for these reasons, the trial Judge heldthat as the separate lots were allotted to the parties without any referencein the decree itself to the fidei commissum that decree created a newtitle and that in regard to the shares the first defendant in this casebought from his mother and sisters, he was a bona fide purchaser withoutnotice of the fidei commissum and that he, therefore, held those sharesfree from the fidei commissum, but that he stood in a different positionin respect of the share he inherited from his father, the plaintiff in thepartition ease.
The learned Judge overlooks the real question in the case, namely,the fact that the partition decree was based on the fideicommissarysuccession set forth and adopted in the plaint in that case. The trialJudge went on to give judgment on that footing. He held that thepresent first defendant was entitled to the 41/48 shares he had boughtfrom his brothers and sisters and that the 7 /48 shares he had inherited,he found was subject to the fidei commissum and that the present plaintiffwas entitled to that fractional share subject to claims for compensation.
Neither the plaintiff nor the first defendant appear satisfied with thesefindings. The former has appealed and the latter has filed cross objections.For the reasons given by me for the view I expressed in the case ofTillakaratna v. de Silva 1 I should have been disposed to hold, in thiscase, that the fidei commissum attached to the shares actually allottedin severalty to the parties in the partition action and to the lots theywere given in lieu thereof, but that would not have been of any avail tothe plaintiff here because, on that basis he would be entitled to halfof 5/8tbs of Francina, but the present first defendant did not claim anyinterest under Francina nor did his father the plaintiff in the partitionsuit. What the plaintiff is now seeking to do is to reopen the fidei-commissary succession adopted in the partition case, and substitutingtherefor, a succession on the basis that, on Sophia’s death, Francinagot Sophia’s entire half to the exclusion of her brother and of her twodeceased sisters’ children, to throw the present first defendant out of Court.I am quite clearly of the opinion that this he cannot now do. Perhaps,much could have been said in support of that contention but for thepartition decree, but in view of that decree, the title found and decreedthereunder must from the date of the decree be deemed to be a titlegood against the world, as the phrase goes. The question whether that
»< 1947) 49 N. L. It. 23.
SOERTSZ S.P.J.—Peiris v. Peiris.
167
•title itself is or is not subject to the fidei commisaum is a different matterthat does not arise, on the facts, as between the plaintiff and the first■defendant here.
I must therefore, hold that as between the two of them the first defend-ant is entitled to lot A which is the land now in dispute and that meansthe plaintiff’s action fails and must be dismissed with costs in both■Courts.
CaneKebatne J.—I agree. The words “ after their death " mean inthe context, after the death of Sophia and Francina respectively.
Plaintiff's action dismissed.