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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.
Fernando t>.Fernando
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.
Appeal dismissed.
1 (1921) 21 y. L. R. 165.