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DIAS v. KAITHAN et al.
D. C., Colombo, 7,223.
Fidei commisaum-—Gift to children not yet bom.
■ A gift in the following terms“ The above ^properties, movable
‘ and immovable, I gift to K and his sister P, the children of my'' sister, chiefly to he possessed by them from this date, and that in“ future neither I nor my heirs could at any time revoke or alter“ this deed, nor do we can (sic) dispute it; but the children of my“said sister chiefly can possess, and their ohildren and grand-“ children in generations,’ ’—held, not to create a fidei commissum,but that the gift was one to a class composed of the named doneesand their uterine brothers and sisters then in being, and those who• might come into being, each to have his or her share, free to disposeof the moment that it vested, the share vesting on the child on itscoming into existence.
Quaere, however, whether the law allows a gift to children enventre or not en ventre and unborn;
fJ^HE facts of the case sufficiently appear in the judgment.
Wendt and Pereira, for appellant.
7ypayo, for respondents.
18th August, 1896. Withers, J.—
It seems to me difficult to construe this deed of gift withoutknowing the circumstances existing at the date .of the donation, andthe events which have happened since: It is a gift in prcesenti for •good caiise of certain movable and immovable properties (describedin the documents) “ to one J. M. Don Kaitan Appuhami and his“ sister J. M. Dona Prolentinahamine, the children of my sister ”.before referred to, “ chiefly to be possessed by them and their uterine“ brothers and sisters by making a correct division of shares, or to“ do anything they please with them ; and I, the said donor, have“ empowered all the children of my said sister to be possessed by“ them from this date, and that in future neither I nor my heirs“ could at any time revoke or alter this deed, nor do we can (sic)
“ dispute it, but the children of my said, sister chiefly can possess,
“ and their children and grandchildren in generations.” Theordinary meaning of uterine is bora.of the same mother but by adifferent father, but this may be an incorrect translation, and uterinemay mean here bora of the same womb by the father of the twonamed children and no other father. Were there any children inexistence begotten by a former father of the named donees’ mother ?Was any child en ventre of the parents of the donees at the time of thedeed of gift ? If “ uterine.” here means children of the same wombby the same father, was the next child conceived after the date of
August 11and I S.
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the gift ? .jyhat children has the mother boriie since, and whohave had possession of the movables and immovables ?
Is this a gift to an existing class, i.e., to two living donees and achild en ventre, or is it a gift to the named donees and any brother orsister who may be conceived and born after the date of the gift, andthen as each member of the class comes into being, is he immediatelyvested under this instrument with his share of the donated pro-perties ?
Again, can there be a gift to a child en ventre or not en venire ? CFagain, is this a gift by way of fidei commissum to the named donee®and other children who may be born during the marriage of -thenamed donees’ parents, or who may be bom of the same mother by asubsequent marriage or marriages ? As regards the question offidei commissum, the District Judge has held that it is not necessarythat there should be restrictive or prohibitive words againstalienation in order to constitute a fidei commissum.
He compares the terms of this instrument with the terms of an ’instrument declared by this Court to constitute a fidei commissum—the words there were, “ shall and may not sell Or alienate, but“ be possessed by her children and their descendants ”—and saysthat the language of the present instrument is much more strongand clear than the language just recited.
I take, the Eoman-Dutbh Law to be that laid down by ActingChief Justice Fleming in the case of Bastion de Silva v. K. V. Sadris,reported 7 S. G. C., p. 135:—
' “ An inheritance may no doubt be entailed either by express“.words or by an apparent intention on the part of the donor or the“ testator to entail it, but when express words are not made use of“ and the least doubt exists as to the intention, judgment is given“ (Van Leeuwen, bk. III., chapter 8, section 4) in favour of the free“ inheritance and against the entail, because all hereditary encum-“ brances are odious, and can suffer no extension.”
For my part I confess that I do not see in the language of thisinstrument a desire that the properties should be tied up for three ormore generations.
In the absence of any restraint or alienation, I read the con-cluding words of the above extract from the deed of gift to signifythe entire abandonment of the properties of-the donor by him andhis, and an absolute surrender to the donees and theirs, words offull dominium.•
The subject of this gift being household furniture, as well as lands,one would require a clearer declaration of trust for generations thanin the case of lands alone which can be tied up for generations.
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I take the gift to be an absolute gift intended to have immediate 1890.effect to a class composed of the named donees and their uterine
brothers and sisters then in being and those who might come into
being, each to have his or her share free to dispose of the moment WlTHHB8>J-that it vested, the share vesting on the child on its coming intoexistence.
That, I take it, was the donor’s intention; whether that waseffected depends upon the validity of such a gift according to ourlaw, a point which was not very fully argued.
With this expression of our opinion as to the nature of the giftand the intention of the giver, the case will go back to the DistrictJudge to hear and determine the osse on its merits, including thequestion in whose favour does the deed of gift, as I have describedit, operate.
This will involve an inquiry into the facts existing at the dateof the instrument and subsequent facts ; such as in the after birthof “ uterine ” brothers and sisters and the actual enjoyment ofthe properties, and may be perhaps a reconsidered translation ofthe document.
Lawbie, J.—I agree.
DIAS v. KAITHAN et al