C 138 )
Present ; Emm and Porter JJ.
FERNANDO et al. v. FERNANDO.
839—D. C. Negombo, 14,SOI.
Property gifted by parents to child subject to the life interest of both—Death of mother—Is father entitled to life interest over the entireproperty f
Wherea property was giftedbya father and mother to their
child “ subject to the life interest of us both donors.”
Held, that on the death of the mother a half share of theproperty became the absolute property of the donee, and thatthe surviving parent was not entitled to take the life interest ofthe half share.
HE deed of gift in question was as follows:—
P. 1.Degd op Gift.
Know all men by these presents:We, Xurukuiasuriya Weerasinghe
Marcel iue Fernando andwifeKurukulasuriyaWeerasingheCharlotta
Peries, both of Negombo, hereinafter called the donors, for and hisconsiderationof the love and affectionthat we have atand towards
Kurukulasuriya Weerasinghe Manuel Laser Fernando and wife Kura-kulasuriya Mary PolorensJaneFernando, bothof Negomboaforesaid,
hereinafter called the donees, andfordiverse other goodcauses, the
following land more fullydescribed here below,which is ofthe value
of Rs. 8,000 of lawful money of Ceylon, to wit: —
The land called Weediyabodawatta alias Suriyagaba walta belongingto me, the first person out of us the donors, upon deed No. 1,153dated October 5, 1907, ofthisland, of all thefruit trees, plantations,
and of the buildings thereon, the western undivided half share, togetherwith all and singular the rights, ways, easements, advantages, andappurtenances whatsoever thereto belonging, or in any wise appertaining,or usuallyheld, occupied, used,orenjoyed therewith,or reputed
or known as part or parcel thereof, and together with all our right,title, interest, and claim therein and thereto, and also together withall . the title deeds and. other writings relating thereto, are hereby given,granted, assigned, and set over, as an absolute gift which cannot becancelled, unto the said donees and their heirs, Ac.
And the said donees, Kurukulasuriya Weerasinghe Manuel LazerFernando and Kurukulasuriya Mary Polorens Jane Fernando, and tbeirheirs, Ac., are at liberty to possess the said property hereby donatedwith the estate rights thereof subject to the hereunder mentionedconditions and to the- life interest of us, the said two donors, for ever.
That the said donees cannot sell, mortgage, exchaoge, or alienate thesaid property, or shall not lease out for over four years at a time,and still not give another lease before the expiration of a given lease,and that after their death, the same shall devolve on their lawful heire,and they may do whatever at pleasure.
And we the said donorB for ourselves and our heirs, Ac., do herebycovenant, premise, and declare that we have good right and properpower' according to law to donate the said property as aforesaid, that-
( 189 )
fbe said property is not subject to any incumbrance, that we °hPi1land will warrant and defend the name unto the said donees and totheir aforewritten against any person or persons whomsoever and paycompensation.
And we the said donors have accepted the above gift with thanksand respect.
H. J. C. Pereira, K.C. (with him M. W. H. de Silva), for defendant,appellant.
V. Perera, for plaintiffs, respondents.
February 3, 1922. Ennis- J.—
This is an appeal from a decree declaring the plaintiffs entitledto the possession of a half share of certain land and buildingsthereon. It appears that the plaintiffs are minor children suingby their next friend, and they sue their grandfather, claiming undera deed of gift dated November 9, 1909, made by their grandfatherand grandmother to their father and mother subject to a fideicommissum in their favour. The grandmother died about 6 yearsago, and their father also died. The deed of gift conveys theproperty “ subject to the life interest of us both donors.” Thelearned District Judge held in favour of the minor children, thatthese words meant that on the death of the grandmother a halfshare of the property became the absolute property of the minors.It was contended on appeal that the intention of the donors wasthat on the death of one of them the survivor should take theprofits of the property donated during his lifetime, and it wassuggested that the terms of the document were wide enough, togive effect to this intention, and that if they were not wide enoughfor the purpose that a grant or condition was implied. Gifts of asimilar nature, it is said, are common in Geylon, and our attentionhas been drawn to the gift which was the subject of the case ofNona v. Appukamy.* In that gift there was an express conditionthat on the death of one of the donors the survivor should take andenjoy all the produce during the lifetime of the survivor. No suchexpress provision is found in the deed in the present case, and inview of the terms of section 20 of Ordinance No. 21 of 1844, I findit difficult to hold that we can imply any such condition. TheOrdinance expressly provides that where a person jointly holds>land, they shall be deemed to hold in common, unless the instrumentunder which the property is jointly held expressly provides thatthe survivor shall become entitled to the whole estate on thedecease of one of them. In the circumstances I am of opinionthat the decree appealed from is right.
I would accordingly dismiss the appeal, with costs,
Porter J.—I agree.
1 (1921) 21 y. L. R. 165.