018-NLR-NLR-V-22-CORNELIS-et-al.-v.-WATTUHAMY.pdf
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Present: De Sampayo J. and Dias A.J.
CORNELIS el al. v. WATTUHAMY.
418—D. G. Tangalla, 1,754.
Fidei commissum—Prohibition against alienation in favour oj a personother than an heir.
Under a joint will the land in question was devised by one Ato his two sons B and C, subject to the following condition: Thatif the aforesaid parties mortgage, lease out, transfer, gift out, orgive over in any other way any lands of this estate to any oneother than an heir of this estate, suoh grant shall be null and void,and the property should belong to the estate.
Held, that the prohibition in the will was only against a voluntaryalienation, and not against a sale in execution.
. Dias A.J.—The ruling that the last will created a valid fideicommissum cannot be supported.
rj^HE last will was as follows:—
This last will c-r testament is made on this 15th day of April, 1894,purporting, to wit:—Whereas we, the two undersigned, SamarasingArachchige Don Andris alias Loka Appubamy of Talahaganwaduwa,in the Giruwa pattu of Tangalla district, and my lawful wife PenagamaKalu Achchige Kaweni Hamine, are old, and whereas the first namedDon Andris alias Loku Appuhamy am laid up since a short time, thislast will or testament is made with the consent of both of us when wetwo are in our sound mind as follows:—
That after the death of one of us, the survivor may be entitledto a half share of the movable and immovable property of this estate,the entire soil and plantations of the garden Danwatta, together withthe tiled house of thirteen cubits standing thereon, and the fieldBadanagekumbura Fahalakebella, in extent three pelas of paddy.
That after the death of both of us, our three lawful children,Samarasing Arachckige Don Davith Appuhamy, brothers SamarasingAraclichige Don Niculas Appuhamy and Samarasing Arachchige.Wattuhamy alias Balappuhamy may be equally entitled to theproperty allotted to the survivor.
That our two sons Samarasing Arachchige Don Niculas Appuhamyand Samarasing Arachchige Wattuhamy alias Balappuhamy may beentitled to two pelas extent of paddy from Badanagekumbura.
That our adopted daughter Samarasing Arachohige Kaluhamy,who is now married, may be entitled to one pela extent of paddy fromGeegamagedeniya, situated at Kadigamuwa, and five kurunies extentof paddy from Bakmigahakumbura.
That after the death of either of us, our three children SamarasingArachchige Don Davith Appuhamy, brothers Samarasing ArachchigeDon Niculas Appuhamy and Samarafling Arachchige Wattuhamy alias
"Balappuhamy, all residing at Talahaganwaduwa, may be equally entitledto the remaining property, excepting what we have already allotted toeaoh of them.
1920.
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1920.8. That if the aforesaid parties mortgage, lease out, transfer, gift
—•out, or give over in any other way any lands of this estate to any one
Ooi*neZfe v. other than an heir of this estate, such grant should be null and void,WaUukamy au(| $h© property should belong to the estate*
The District Judge.. H. J. V. Ekanayake, Esq.., made the followingorder on the question relevant to this report:—
In this will the testators, husband and wife, after making somespecific bequests of lands to their children and others in paragraph 7,deal with the residue.
In paragraph 8 they will that if the aforesaid parties transfer orencumber in any way any lands of this estate except to an heir of thisestate* such transfer and encumbrance should be null and void, andthe property should become the property of the (budela) or estate.
The intention of the testators is clear, i.e.9 to prevent the dispersionof the lands beyond the heirs, penalizing any attempt by causing theproperty attempted to be transferred into the residue, and to becomethe common property of the heirs. ^
The prohibition is, therefore, in favour of the heirs, and I hold thata valid fidei cammissum has been created.
Therefore, the sale under the writ was invalid.
Arulanandanf for the appellant.
J. S. Jayawzrdene, for the respondent.
June 10, 1920. De Sampayo J.—
The plaintiffs brought this action for a declaration of title to twopelas of the field called Badanagekumbura by virtue of a deed intheir favour and also by prescriptive possession. They complained. that they were interfered with in their'possession by a . claim onthe part of the defendant, with the result that a certain paddy cropwas sequestered by the Vidane Arachchi at his instance, and theyasked the value of that crop from the defendant. It appears thatthese two pelas originally belonged to one Don Andris. He andhis wife made a joint will by which they devised the two pelas totheir two sons, Niculas and Wattuhamy, the defendant. Thesetwo pelas were seized in execution against the defendant, and wassold and purchased by one Balahamy, who obtained the Fiscal’stransfer of June 14, 1901. Balahamy conveyed them to theplaintiffs by deed dated November 7, 1918. A point discussedat the trial was whether the last will by Don Andris and his wifecreated a valid fidei commissum so as to render the propertyincapable of a sale. The condition in the will which is relied on isclause 8, which is in these terms : “ That if the aforesaid partiesmortgage, lease out, transfer, gift out, or give over in any otherway any lands of this estate to any one other than an heir of thisestate, such grant shall be null and void, and the property shouldbelong to the estate.” The District Judge considered that this
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provision created a fidei commissum, and that the Fiscal’s sale was,therefore, nugatory. He proceeded to decide the question ofprescription, and held that issue against the plaintiffs. But asregards damages claimed, namely, the value of the crop, he heldthat the plaintiffs were entitled to that, and ordered the value of thecrop to be paid by the defendant to the plaintiffs. But he gaveno costs to either side. The defendant has appealed from theorder as to costs on the ground that he is entitled to costs to bepaid by the plaintiffs. Apart from any other question involvedin the case, it seems to me that the success in the Court below wasdivided, and the question of costs ordinarily is at the discretionof the District Judge, and I do not think that a division of costsin this way is unreasonable in the circumstances of the case. Butthe plaintiffs have also given notice, under section 772 of the CivilProcedure Code, in respeot of the judgment which did not give them• a declaration of title. If they succeed in this oross appeal, clearlythe defendant can no more maintain the argument that the orderas to costs is wrong. Now, as regards the point of title, it seemsto me that clause 8, which I have quoted, hardly creates a fideicommissum. I cannot quite see who are the persons who are to getthe property in the event of alienation in breach of the condition.All that I can find is that the property should belong to the estate.However that may be, it is quite clear that, whatever interest the.defendant had in the property passed on the Fiscal’s transfer fromhim to the execution-purchaser, Balahamy, and is now vested in theplaintiffs. Therefore, the plaintiffs were entitled to a declarationof title as against the defendant. Moreover, if the question offidei commissum is to be considered, it is quite clear that theprohibition in the will was as regards voluntary alienation. But aforced sale, like a sale by the Fiscal in execution, is not affected bythe provision in question. For these reasons I would modify thejudgment of the District Judge, declaring the plaintiffs entitled asagainst the defendant to the two pelas of the field Badanagekum-bura. The plaintiffs are entitled to the costs of the day in theCourt below and of this appeal..
1920.
Dn SampayoJ.
Cornelia uWattuhamy
Dias A.J.—
The District Judge’s ruling that the last will created a validfidei commissum cannot be supported, and even if it did create sucha fidei commissum, the compulsory sale by the Fiscal was sufficientto pass a valid title to the purchaser Balahamy. The plaintiffsare the purchasers from Balahamy, and, consequently, they areentitled to whatever rights this defendant had in the two pelasreferred to. The plaintiffs were, therefore, entitled to a declarationof their right. I agree to the order proposed by my brother DeSampayo.
Varied.