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Present; The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Middleton.
DANTUWA v. SETUWA et al.
C., Kandy, 18,125.
consistent with absolute gift.
D bydeedof gift “ gave, granted,and conveyed by wayof gift ”
to his wife U. and their fonr children, certain lands subject to thefollowing proviso:“ It has been hereby covenanted that my] wife
Ukku and children, N, S, T, and U, all five aforesaid, shallhereafter render to me all assistance and comforts of life, while Icontinue to live in this world, and that after my demise my saidwife and four children shall be entitled to have and to hold all theBaid several high and low grounds and houses and plantations attheir disposal for ever, but that my said wife, Ukku, having pos-sessed her share of the said several premises, shall, at the approachof her death, grant and convey the same. unto my said four children,and shall not make the same over to any outsider."
Held,that,under the saiddeed,U, the wife, wasabsolutely
entitled to one-fifth share, and was at liberty to dispose of it as shepleased.
Held,also,that the provisoin thedeed of gift being inconsistent
with the previous absolute giftin thesame deed could notbe given
PPEAL by the plaintiff from a judgment of the District Judgeof Kandy. The facts sufficiently appear in the judgment of
the Chief Justice.
B. L. Pereira, for the plaintiff, appellant.
Van Langenberg, for the defendants, respondents.
Cur. adv. vult.
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1*97. December 24, 1907. Hutchinson C.J.—
*mber 2i- This is a partition action, and the question now for decision is,how to construe a proviso in a deed of gift dated June 30, 1871.By that deed P. Dantuwa “ gave, granted, and conveyed by way ofgift ’’ to his wife Ukku and their four children certain lands; andthen comes the proviso: “ It has been hereby covenanted that mywife Ukku and children, Nanduwa, Setuwa, Tikira, and TJngu,all five aforesaid, shall hereafter render to me all assistance andcomforts of life while 1 continue to live in this world, and that aftermy demise my said wife and four children shall be entitled to haveand to hold all the said several high and low grounds and housesand plantations at their disposal for ever, but that my said wifeUkku, having possessed her share of the said several premises, shall,at the approach of her death, grant and convey the same unto mysaid four children, and shall not make the same over to any outsider.”
Two of the children died in Ukku’s lifetime, and she, after theirdeath, by deed dated September 30, 1899, conveyed to one of thetwo survivors (who are the defendants) her one-fifth share.
The plaintiff, claiming to be an heir of one of the deceased children,says that Ukku had no power to convey her share to one of thechildren; that her share was burdened with a trust in favour of all- the four children. The first issue tried was, Did Ukku under thedeed of gift get the fee simple or only a life interest?
The District Judge held that she got .the fee simple; and heconstrued the latter words of the proviso as being merely a “ request ”by the donor. The plaintiff appeals against that ruling.
The meaning and intention of a deed of gift have to be ascertainedby first seeing what were the circumstances with which the donorhad to deal, who the parties are, and what the subject-matter ofthe gift is, all of which in this case clearly appear in the deed; andthen giving to the words their plain and natural meaning, or, ifthere are technicalities employed in it, giving them their technicalmeaning, unless a contrary intention is apparent. Applying thistest here we find that the donor gives to Ukku one-fifth of theproperty to be at her disposal for ever, but then adds a proviso thatshe shall at the approach of her death grant and convey that one-fifth to the children, and shall not make it over to any outsider.The proviso is inconsistent with the previous absolute gift. Andhe does not say what is to happen if she does not so grant and conveyit to the children; apparently she might have disposed of it by willto any one she pleased. And if he meant that she should onlyhave a life interest with remainder to the children, I should haveexpected him to say so; and moreover, if that was his intention,what was the object of requiring her to " grant and convey?Decisions on the interpretation of other deeds which are not preciselyin the same terms are not of much use in interpreting any deed.
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In my opinion this is not a grant of a life interest with remainder 1907.
to the children, but it is a grant of the absolute ownership, coupled December 24
with an attempt to prevent the donee from exercising one of the Hor^mratnr
rights of ownership. In my opinion that eannot be done. Effect C.J.
cannot be given both to the grant and to the proviso. Tou cannot
give a thing absolutely and at the same time prevent the owner
from exercising the rights of an owner. You can of course make
him a trustee or fidei commissarius by making it clear that he is to
hold the property for the benefit of others; but I do not think that
such an intention is shown in this deed. There is no gift of Ukku’s
one-fifth to the children, if she does not convey it to them; and I do
not think we ought to insert such a gift, which would be inconsistent
with the absolute gift to IJkku. In'my opinion the proviso must be
disregarded. I should dismiss the appeal with costs.
I agree. This is a Kandyan deed of gift, and I do not think it wasintended that any analogy to the Boman-Dutch Law of fidei com-mission should be applied to its construction. The deed givesone-fifth absolutely to the widow, and effect cannot be given to theinconsistent provision of the proviso.
DANTUWA v. SETUWA et al