121-NLR-NLR-V-19-DE-LIVERA-et-al.-v.-ABEYASINGHE.pdf
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1917.
[Privy Council.]
Present : Bari Loreburn, Viscount Haldane, Lord Sumner,
and Lord Parxnoor.
HE LTVERA et al. v. ABEYASINGHE.
D. 0. Oalle, 11,672.
Fidei commissum — Construction of win — Improvements – effected by
purchaser from fiduciarius—Compensation.
'A husband and wife, by their joint will dated Augnst 26,1860,
devised the land in question to their three sons C, F, and Gr, subject' to a lifeinterestasto half infavour of the testator'swife,with
the following provision:"When my three sons aforesaid become
absolutely entitled they and their posterity are at liberty
to possessand enjoythe samefor ever,bntthey andtheirheirs
are respectively restricted from selling, mortgaging, or otherwisealienating the same, and the same I hereby entail as a fide*commissum.”
There was also a provision that should any of the sons diewithout issue, their widows Bhould possess the entailed property,with the same restrictions, in proportion to their respective shares,and thataftertheirrespectivedeaths theentailed propertywas
to revert to the children of the testator upon the same restrictions.
C died leaving a daughter Mary, who had two. children—theplaintiff'smotherandVictor. Mary giftedherone-thirdto her son
Victor, who transferred it to Kadiravel Chetty (appellant).
Held, that the will created a fidei commissum, which preventedMary from disposing of the property to the prejudice of the plaintiffs.
The right to compensation for improvements of a purchaserfrom a fiduciarius considered.
T
TTF, facts are stated in the judgment of the Supreme Courtreported in 18 N. L. B. 57.
May 15, 1917. Delivered by Earl Loreburn : —
Their Lordships are of opinion that this will created a fideicommissum, which prevented Mary de Livera from disposing of thisproperty, and also prevented both of her uncles and her son fromdoing so to the prejudice of the plaintiffs. It was admitted inargument that if there is a fidei commissum these parties could notalienate to the appellant, and it follows that the plaintiffs havemade out their title.
The, judgments appealed from are admirably clear, and dispensewith any need for travelling over the ground again.
In regard to the claim for compensation, the claim of right by atrespasser to compensation for money he has expended in impensaeutiles involves a wide principle. It does not seem to be necessaryto scrutinize the various dicta of learned writers, none of which are
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exhaustive*, or to enter at all upon the law in South Africa, as 1917.to which no question arises in the present case. An abstractproposition that a person who is not acting bona fide oan get Lobebubhcompensation does not carry any one the whole length. Obviously, £>« Livera *>.it must ftlan be considered whether ;if the mala fides involves fraud, Abeyaaingheany compensation could possibly be recovered. Also it would beneeoessary to inquire what are impensae utiles, and whether themeasure of compensation should be the enhanced market value.
This does not arise for decision in the present case; nor is it necessaryto enter upon the decision in Pulle's Case {1913, 16 N. JL. R. 474). 1Their Lordships think that the circumstances of' the present casedo not render it necessary to consider the principle of that decision.
In the facts of the present case the appellant was not acting bonafide. He knew the risk, he knew the facts, showing that he was amere trespasser in what he did, and he knew that he was invadingthe rights of the heirs, and knew that Mary de Livera had no rightto alienate, and knew he was altering the character of this propertywithout the consent of the persons whose interest it was to preserveit, and without any authority from any one except the trustee whoseduty it also was to preserve it. Their Lordships think, in such aease as this, it is quite impossible to suppose compensation would bepayable; and they will humbly advise His Majesty that this appealshould be dismissed, with costs.
Appeal dismissed.