042-SLLR-1984-V1-PEDRIS-v.-FERNANDO-AND-ANOTHER.pdf
274
Sri banka Law Reports
(1964)3 Sri L.R.
PEDRIS
FERNANDO AND ANOTHER
SUPREME COURT.
SHARVANANDA. J., WIMALARATNE, J.. AND ABDUL CADER. J.
S.C No. 18/82.- C.A. No. 551/73 (F> – D C. COLOMBO No. 13153 {L).
OCTOBER 12. 1983 AND FEBRUARY 24. 1984.
Fideicommissum conditionale – Prohibition of alienation by act inter vivos such as sale,donation, mortgage or lease – Does such prohibition extend to alienation by Last WHI PThe plaintiff sought to vindicate title to the lands described in Schedules 1 to 10 of theplaint and to have the defendants evicted therefrom. She traced title to one ComelisFernando who by his Last Will PI dated 21.6.1948 and Codicil P2 admitted to probatein D C. Kalutara 3435/T had devised the lands in Schedules 1 to 6 and 8 to 10 to Nsson Lambert Comis Fernando subject to the conditions that he shall not sell, donate,mortgage or lease for a period exceeding five years at a time or in any other wayalienate the same till the 31st day of December, 1970. Comelis Fernando by deed ofgift No. 3341 of 24th October, 1947 (P3) gifted the land described in schedule 7 alsoto his son Lambert Cornis Fernando subject to the condition that the donee shall not onany date prior to 31st December, 1968 sell, mortgage, donate, or lease for a periodexceeding five years at any time or otherwise alienate the said premises. In the event ofthe conditions in the Will and donation being disobeyed the premises were to pass overto the children of Cornis Fernando.
Cornis Fernando died on 27.4.1968 himself leaving Last Will No. 380 dated 21st April,1968 (P4) by which he devised the said lands to the plaintiff. This Last Will was thesubject-matter of testamentary proceedings where the two defendants claimed that thesaid lands were subject to a fidei commissum created by Last Will P1 and deed of giftP3 and that Cornis Fernando had no disposal interest in these lands. The plaintiff theninstituted the present action in the District Court.
The District Judge held that Cornis Fernando was entitled and competent to bequeaththe said lands by Last Will P4. In appeal the Court held that alienation by Last Will wascovered by the prohibitions imposed in Last Will P1 and donation P3 and that the LastWill P4 was a contravention of them.
Held-
By the documents P1 and P3 Lambert Cornis Fernando was prohibited from alienatingthe properties for a limited period to anybody whether within or without the family. Theprohibition created a 'fideicommissum conditional,' that is a fideicommissumconditioned to come into existence on the breach of the prohibition. A prohibitionagainst alienation must be strictly interpreted and ought' not to extend to modes ofalienation other than those expressly mentioned. The phrase "in any other way alienate'in P1 or 'otherwise alienate' in P3 does not cover alienation by Last Will because it isonly when alienation of a thing outside the family is forbidden in general terms that atestamentary disposition is also included in such a prohibition Alienation outside thefamily is not prohibited by PI and P3 and therefore must be limited to alienation by actinter vivos.
A will is ambulatory during the lifetime of the testator and does not operate as adisposing or putting away of any estate until after the death of the person making it. Itrequires the death of the testator for its consummation. The Last Will P4 does notconstitute a breach of the prohibition on alienation and therefore the plaintiff is .entitledto be declared owner of the properties in suit.
sc
Pedris v. Fernando (Sharvananda, J.)
275
Cases referred to:
Kanayson v. Rasiah. (1967) 69 N.L.R. 553 (P C.).
Doe Stevenson v. Glover. (1845) 14L.J.C.P. (N.S) 169; 1 C.B. 448; 135 E.R.
615.*
13) Executor of Last Will of Rambukweila Siddhartha v. Sumana Thero. (1943) 44N.L.R 365:/
Ex parte Van Eeden. (1905) T.S. 151, 153 (Transvaal Law Reports – SupremeCourt)
APPEAL from a judgment of the Court of Appeal.^
H. L. de Silva, P C. with Ifthikar Hassim for plaintiff-appeallant. _
K. N. Choksy. P.C. with L. C. Seneviratne. H. Soza and Miss. I. R. Rajepakse for thedefendant-respondents.
Cur. adv. vult.
May 17. 1984SHARVANANDA, J.
The plaintiff filed this action for a declaration of title to andejectment of the defendants from the lands described in the schedules1-10 in the plaint. The plaintiff pleaded that one Cornelis Fernandowas entitled to the said lands and that he by his Last Will P 1 dated21.6.1948 and Codicil P 2, which were admitted to probate in D.C.Kalutara 3435/T, had devised the said lands described in theschedules 1 -6 & 8-10 to his son Lambert Cornis Fernando, subject tothe terms .and conditions set out in the said Last Will P 1. The saidCornelis Fernando by deed No. 3341 of 24th October. 1947 (P.3)donated the lands described in schedule 7 of the plaint to the saidLambert Cornis Fernando, subject to the terms and conditions set out-in the said deed. The said Lambert Cornis Fernando who thus becameentitled to the said lands described in schedules 1-10 of the plaint,subject to the terms and conditions set out in P 1 and P 3 died on27th April, 1968, leaving his Last Will No. 380 dated 21st April,1968 (P 4) by which he devised and bequeathed the said lands to theplaintiff.
The said Last Will P 4 was the subject matter in testamentaryproceedings in case No. 24126, D.C., Colombo. In the said action the1st and 2nd defendants claimed that the said lands were subject tothe fidei commissum created by the Last Will P 1 and deed of gift P 3in favour of the first defendant and that the said Lambert CornisFernando had no disposable interest in the said properties to conveyto the plaintiff, and that the lands had vested on the 1st defendant.The plaintiff denied that the said Last Will P 1 and the deed of gift P3created a fidei commissum in favour of the 1 st defendant and pleadedthat the -said Lambert Cornis Fernando was legally entitled to andcompetent to devise and bequeath the said properties to the plaintiff.
276
Sri Lanka Law Reports
[1984] 1 SriLR.
The plaintiff has instituted the present action for a declaration of titleand ejectment of the defendants from the properties described in theschedules 1-10 of the plaint on the basis that the said Lambert CornisFernando was legally entitled to and competent to devise andbequeath the same to the plaintiff by-his Last Will (P 4). Thedefendants have in their answer disputed the claim of the plaintiff andhave pleaded that under and by virtue of the instruments P 1. P 2 &P 3 the said properties were subject to a fidei commissum in favour ofthe 1st defendant and had devolved on the 1st defendant on thedeath of the said Lambert Cornis Fernando, and that the said CornisFernando could not in law have devised and bequeathed the saidproperties to the plaintiff.
The contention of the parties revolve round the question whetherthe said Lambert Cornis Fernando was legally entitled and competentin law to make, bequeath and devise by his Last Will (P 4) the saidproperties to the plaintiff, in view of the conditions and prohibitionscontained in P 1 and P 3.,
The conditions contained in P 1 & P 3 read as follows :
“P V I devise and donate unto my beloved son Lambert Cornis thefollowing properties subject to the conditions that he shall notsell, donate, "mortgage or lease .for a period exceeding fiveyears at a time or in any other way alienate the same till the31st day of December, 1970, but shall possess the sameduring the said period and in the event of his contravening orviolating the aforesaid condition the same shall pass to hischildren as if there was no such sale or alienation. That after the31 st day of December, 1970, he shall be able to do whateverhe likes with the said properties as if no such condition orprohibition existed."
"P 3" That the said donee shall not on any date prior to 31stDecember, 1968, sell, mortgage, donate, lease for a period-exceeding five years at any time or otherwise alienate the saidpremises but shall possess the same till the aforesaid date.
In the event of the said Donee in disobedience to the conditionmentioned above were to sell, mortgage, donate, lease orotherwise alienate on any date prior to 31 st December, 1968,the said premises shall not pass to the person or persons inwhose favour such transfer, encumbrances or other alienationshall have been made but shall pass over to the lawful children
sc
Pedris v. Fernando (Shan/ananda, J.)
277
of the said donee in equal shares if there be any and on failureof such children the same shall pass over to my remainingchildren and their descendants in equal shares.
.The said Donee shall have full power and authority from and after1st January, 1969, to deal with the said premises as if therewere no such restrictions and prohibitions against alienationwhatsoever."
After trial the District Judge gave judgment for the plaintiff on theground that the prohibitions contained in P 1 and P 3 could not beconstrued to prohibit an alienation by Last Will and that hence LambertComis Fernando was entitled and competent to bequeath by the LastWill (P 4) the properties referred to in the schedules to the plaintiffwho is his sister and that he had not by executing the Last Will (P 4)committed any breach of the conditions imposed by the documentsP 1 and P 3.
On appeal by the defendants the Court of Appeal disagreed with theview of the District Judge and held that Lambert Comis Fernando wasnot competent to deal with the properties by his Last Will (P 4) andthat the alienation by Last Will (P 4) contravened the conditions setout in P 1 and P 3 and that such contravention operated to vest thetitle to the properties in question on the 1 st defendant who was theonly child of Lambert Comis Fernando, the fiduciary on P 1 and P 3.The Court of Appeal therefore set aside the judgment of the District'Judge and dismissed the plaintiffs action with costs in both courts.From the said judgment of the Court of Appeal the plaintiff-appellanthas preferred this appeal to this'court.
The decision of the appeal turns on' the answer to the questionwhether alienation by Last Will within the period specified in the LastWill (P 1J and deed of gift (P 3) constituted a breach of the prohibitionprescribed therein.
Counsel for defendant-respondents submitted that the terms in P 1which provide that Lambert Cornis Fernando, the devisee, shall notsell, donate, mortgage or lease for a period exceeding five years at atime or in any other way alienate the same till 31.12.70, but shallpossess the same during the said period ; and the terms in P 3 whichprovide "that the said Lambert Cornis Fernando the donee shall notprior to 31.12.68, sell, .mortgage, donate, or lease for a periodexceeding five years at any time or ptherwis'e alienate the saidpremises but shall possess the same till the aforesaid date," prohibit allforms of alienation, including alienation by Last Will till the expiry of the
278
Sri Lanka Law Reports
[1984] 1 SriLR.
dates mentioned in P 1 and P 3 and that hence Cornis Fernando, whodied on 27th April, 1968, could not have validly bequeathed the saidproperties to the plaintiff by his Last Will dated 21.4,68, prior to thedafles referred to in P 1 & P 3. He contended that the Last Will P 4took effect within the prohibited period mentioned in P 1 and P 3 andhence contravened the conditions set out in P 1 and P 3 and that suchcontravention'operated in terms of P 1 and P 3, to vest the title to theproperties on the 1 st defendant-respondent, the only child of the saidLambert Cornis Fernando, and that the testator on P 4 had nodisposable interest in the properties to convey to theplaintiff-appeallant and that the latter had no title to the saidproperties.
It was submitted on the other hand by Counsel for theplaintiff-appellant that the alienation that was prohibited by P 1 & P 3was alienation by act inter vivos, such as sale, donation, mortgage orlease and did not extend to alienation by Last Will. The intention ofCornis Fernando, testator of P 1 and donor on P 3 was that his sonLambert Cornis Fernando should possess the properties withoutalienating them prior to the dates mentioned in P 1 & P 3 and that bythe execution of his Last Will (P 4), Lambert Cornis Fernando did nothimself alienate the properties. His contention was-that the bequest byLambert Cornis Fernando was not alienation by an act inter vivos.
The ultimate question is whether the restrictions set out in P 1 andP 3 are wide enough to imply a prohibition against alienation by LastWill. Since there is no such express prohibition, having regard to thelanguage of P 1 and P 3 does the phrase "in any other way alienate" inP 1 or "otherwise alienate' in P 3 catch up the execution of a Last Willwhich comes into effect within the prohibited period set out in P 1 aridP 3.
A fidei commissum being essentially the divesting to some extent ofan absolute gift, so as to cut down that absolute gift is regarded withdisfavour by the court. It is a fundamental principle that where there isdoubt whether a fidei commissum has been created, that constructionshould be approved which will pass the properties unburdened. Whenmaking a testamentary disposition a testator is presumed to place asfew burdens as possible upon the affected property. If he institutes anheir he is presumed to have intended the heir to be dominus of all theproperty acquired with the full and unrestricted right of.alienating andbequeathing the same and where he makes a bequest it will requireclear words, not equivocal language to diminish the legatee's interest.
sc
Pedris v. Fernando (Shervenanda, J.)
279
In keeping with this principle a prohibition against alienation must bestrictly interpreted and ought not to extend to modes of alienationother than those expressly mentioned by the testator or donor (Voet36 : 1 : 27). A prohibition against any alienation by act inter viliosmust not be intended to include a testamentary disposition.(McGregor's Voet: page 68) A prohibitibn must be interpreted to'impose the least possible restraint consistent with the testator'sintention and the construction is favoured whereunder the burdenedlegatee is left with the free and unfettered possession of the bequestwhich he acquired from the testator or donor.
By the documents PI and P3 though Lambert Corms Fernando had'become the owner of the properties in question he was prohibited fora limited period from alienating them to anybody, whether within orwithout his family. The prohibition created what is termed "fidelcommissum conditionale". That is to say a fidei commissumconditioned or to come into existence on a breach of the prohibition.
Sande who is the accepted authority on the subject of "Restraintsupon alienation," in Chapter I of his treatise defines "alienation" to be"any course of dealing by which dominium is transferred". Hecatalogues the various species of alienation covered by the term.According to him the following transactions come under the head of.'Prohibited Alienation' – 1 11
1.Sale,
Barter or Exchange,
Donation,
A datio in solutum (the immovable property of minors cahnotbe so bestowed without an order of court),
The Settlement of a law Suit,
Division,
Repudiation.of immovable property, acquired as a legacy, or inany other way by a pupil.
Usucaption (Prescription),
A creation of a servitude,
Granting of a Usufruct,
11.Granting an Emphyteusis (leasing),
.12. Finally under the term "Prohibited alienation" comes every
course of action from which alienation can follow
When alienation is prohibited, therefore, pledging or anagreement of hypothecation is also prohibited."
280
Sri Lanka Law Reports
[1984] 1 SriLR.
Sande enumerates thus twelves ways in which breach of a prohibitedalienation can take place. (Sande 1 : 3 : 16 – 49). It is significant thatin this exhaustive enumeration of the different kinds of alienation hedo#s not include or mention alienation by Last Will. According to theOrdinary acceptation of the term ‘alienation/ only transfers by act'inter vivos appear to be embraced in that concept.
In Part 3. Chapter 3 of his book Sande, dealing with "When is a thingconsidered to be done in breach of a prohibition and what is includedunder the term prohibition?" states the rules of construction : 'Inorder to decide whether anything has been done contrary to a'prohibition against alienation, the chief point we should consider iswhether the testator has prohibited only a special kind of alienation orhas prohibited alienation in general. As if only some special form ofalienation has been prohibited the kinds of alienation with theexception of that one special form are allowed. For, he who forbidsonly one thing out of many is considered to countenance theremaining things"-{3 : 3 :1).
“Therefore a prohibition to sell does not prohibit the making of adonation, unless a sale is mentioned only as an example of the class ofalienation which is prohibited' (3:3:2- 3).
'Moreover, when a sale, donation and a pledge are prohibited,alienation by Last Will is considered to be permitted’ (3:3:6).
“Words used as a recommendation are inoperative and do notextend the provisions, nor do they give rise to any right; unless thewords are used to express the motive, or final reason ; as if thetestator, after he has said 'I forbid the properties to be sold' adds ashis motive and reason, 'Because I desire it to be kept in my family'. Inthis case the said property is considered to be prohibited from beingtransferred to a stranger by Last Will, because the expression of themotive explains add widens the provision' (3 : 3 : 7 – 8).
“But if the general term 'alienation' is placed in the midst of specialterms – for instance, if it is said. "I prohibit a sale, a donation, analienation or pledge' – then the general term 'alienation' is limited bythe special terms by reason of the alternative article 'or'. If howeverthe general term ‘alienation’ is placed last – for instance, if thetestator has said, 'I prohibit my property to be sold, donated, pledged,alienated" – then the generic term being placed last, includes everyclass of alienation/ (3:3:9-10).
sc
Pedris v. Fernando (Sharvananda, J.)
281
But if, no special class of alienation is mentioned, but alienationoutside the family is in general terms prohibited ; when, unless themotive for such prohibition and the intention of the provision, asdeclared in words, lead to a different conclusion, every ac^ isconsidered to be prohibited, by which anything is transferred by us toanother person. (3:3: 11).
Firstly, in a general prohibition of. this kind*are included thesemethods by means of which dominium is transferred inter vivos : sale,,donation, exchange. (3:3: 12)
Secondly a person who is prohibited in general terms cannot grant ausufruct, nor any real right or servitude over the prohibited property.(3:3: 16).
Thirdly, a thing prohibited from being alienated cannot be pawned.(3:3: 18).
Fourthlya'person who is prohibited from alienating is not
considered to have acted contrary to the will of the testator even if he
has granted a lease for a long period of timeBut if he died
before the years of the lease have expired, the next of kin are notbound to abide by such lease, but can by right of fidei commissumdemand the estate from the tenant. (3:3: 19).
Fifthly, when the alienation of a thing outside the family is forbiddenm general terms, all forms of Last Will, such as the institution of anheir, the giving as a legacy, or as a fidei commissum are understood tobe prohibited , such is the common opinion. (3:3:21).
(Sande states that this view is rejected by certain authorities whocontend that the institution of an heir is not included in such generalprohibition. Sande however supports this common view butmodifies it.)
Therefore the fact remains that the making of a Will or the
bequest of a legacy forms no exception from prohibition uponalienation when such prohibition is made in general and clear terijis,unless the motive for the prohibition and the intention of the testatortend to a different view: for example, if the testator has confinedhimself to transactions inter vivos, as if he has said, 'I forbid alienation'by sale, by donation, by pledge etc., or if to the term alienation used ina general sense certain words are added from which it.is clear that the
282
Sri Lanka Law Reports
{1984] 1 SriL. R.
testator was thinking not of alienation by Will but of alienation intervivos and of contracts ; or if the testator has several children andforbids them to alienate his property until the youngest come of age."(3j3 : 31).
Sixthly, there is just as much doubt as to whether a personforbidden to alienate outside the family can transmit the prohibitedproperty by succession ab intestato to an heir who is not a member ofthe family or as to whether such prohibited person can institute as hisheir by Will a stranger who would succeed him if he died intestate.'<3:3: 32).
'The more generally received view is that when alienation isprohibited, intestate succession or the institution of the legitimate heiris not considered to be prohibited unless he who would succeed abintestato is especially prohibited from acquiring the property or unlessthe terms of the prohibition are so wide as to include alienation to the(legitimate heir". <3 : 3 :33).
"I do not think that we ought to depart from the received opinion ofthe Doctors, when a testator simply prohibits alienation outside thefamily and adds nothing else to this prohibition. For it is nowhere laiddown that in a simple prohibition of this kind, legitimate succession isalso prohibited'. (3 : 3 :37).
“Seventhly and lastly, property prohibited from alienation cannot beost by committing a crime, so as to be confiscated for the crime of theprohibited person.' (3 : 3 ,41.)
According to Sande 3:3: 12, a general prohibition refers to thosemethods by means of which dominium is transferred inter vivos. But,Sande qualifies the proposition by stating that when the alienation of athing out of the family is forbidden in general terms, all forms of LastWills such as institution of an heir, the giving of a legacy or as a fideicommissum are understood to be prohibited. (3 : 3 :21). It wouldthus appear that alienation by Will is impliedly prohibited only whenalienation of a thing outside the family is forbidden in general terms.
But what Sande has stated in 3 : 3 : 31 above, isolated from thecontext, would appear to run counter to the view that a generalprohibition against alienation is confined to alienation inter vivos, but ithas to be noted that in the scheme of Chap. 3 of his book, Sande isenumerating the acts which are considered prohibited (firstly
sc
Pedris v. Fernando fSharvananda. J )
283
3.3: 12 to lastly 3:3: 41), when alienation outside the family is ingeneral terms prohibited (3:3:11). Hence what is stated in theabove passage 3:3:31 has therefore to be understood in thecontext as applying only to instances where alienation outside%thefamily is in general terms prohibited.
In the light of the propositions enunciated by Sande, it is relevant toconsider whether one can spell out of the prohibitions contained in P 1and P 3, a prohibition against alienation outside the family. There isno express prohibition against any such alienation ; nor is any motiveor reason set out for such prohibition nor any desire manifested tokeep the properties in the testator's/donor's family.
Heavy reliance was placed by Mr. Choksy, Counsel for thedefendants, on the judgment of the Privy Council, in Kanayson v.Rasiah. (1) to support his contention that the prohibition contained inP 1 and P 3 impliedly included the prohibition of alienation by Last Willand that the fidei commissum constituted by P 1 & P 3 could be saidto be a family fidei commissum. In that case a father, a Jaffna Tamil,donated certain properties to his two sons subject to the followingconditions :
" I do hereby give and grant by way of donation unto them in equal
shares the aforesaid landssubject to the following
conditions :
I do hereby bind them and declare that they should not alienatethe said lands by any instruments such as transfer, donation, dowryor any other documents and should not encumber the same by adocument such as mortgage, otty, security, or any otherinstruments within 25 years after me except giving and granting thesame to their children by way of mudusom or dowry and that thesaid lands shall not be liable for any debts incurred by them.
I do hereby nominate and appoint (X & Y) and give them power tojointly and severally look after and manage the said properties andutilise the produce and income thereof for the food, clothing pndeducation of (the donees) and for their wives and children during thesaid period."
In that case one of the donees sold some of the lands subject to thedeed to strangers in violation of the conditions imposed on him by thedeed, and died within the period of 25 years prescribed in the deed.
284
Sri Lanka Law Reports
11984/ 1 SriL.R.
The question of the effect of the donee bequeathing the lands, subjectto the deed to strangers by testamentary disposition did not arise inthat case for decision and hence the observation of the Privy Councilthatf" the words of prohibition (in the deed) could hardly be wider andseem apt and indeed directed to include a prohibition of alienation byWill" must be regarded as obiter. The relevant clause in that deed ofdonation prohibits alienation to strangers, but permits the donees togive by way of donation or dowry or mudusom (patrimonial inheritanceby way of testamentary disposition) to their children. From the natureof the provisions of the deed, the Privy Council in Kanayson'scaseconcluded –
•" The whole scheme of the deed, as it appears to Your Lordships,was to provide the donees’ family for the term of 25 years. Duringthe term the income was available for the support of the donee, hiswife and children. He could only dispose of the property by giving ortransferring it to his children. The property was, during this period,not to be liable for the donee's debts."
In view of these features the Privy Council held that the deed createda tacit fidei commissum in favour of the family. Any alienation of thelands by act inter vivos or by Last Will could be made only to thedonees' children and not to strangers. The intention of the donor tolorbid alienation outside the family was manifest there ; but in thepresent case, there is a total prohibition against alienation by LambertCornis Fernando not only outside the family but even within it. Implicitin the contention of counsel for the defendants is the postulate thatthe defendants could not even execute a Will bequeathing the lands orany of them to any member of his family. It is to be noted further thatthe beneficiaries, in the event of a breach of the conditions in P 1 andP 3 are not all those who compose the family, his intestate heirs (Voet36 . 1 :30) but only a segment of that family, i.e. his children. Whatseems to have been uppermost in the mind of the testator/donor inP 1 and P 3 was to invest Lambert Cornis Fernando with the power ofalienating the lands, that he should not by any act of his own deprivehimself of his property prior to the expiry of the specified period, ratherthan that the lands should remain in his family. Further unlike inKanayson's case there is no provision m P1 and P 3, that the propertyshould not be liable fbr involuntary sale. It is significant that while P 1and P 3 expressly empower the donee' to deal with the said premisesas if there were no such restrictions and prohibitions" after the
sc
Podris v. Fernando (Sharvananda, J.)
285
stipulated period, the text of the Will in Kanayson's case as reportedin 69 NLR, 557, does not contain any such express provision though,no doubt, such an authority is implicit.
The position in law thus appears to be that the term 'alienation*does not ordinarily catch up dispositions by Will. But there is anexception to that proposition ; when the alienation of a thing outsidethe family is forbidden in general terms, then testamentary dispositionis also included in the prohibition. Sande states that this exception isnot universally accepted. An exception has to be strictly construed.Since the prohibition in P 1 and P 3 does not accord with theprohibition of alienation outside the family, excepted by Sande(3:3: 21),the defendant cannot claim the benefit of the exception.The ordinary concept of alienation could therefore apply to measurethe dimension of the prohibition on alienation contained in P 1 andP 3 ; such prohibition is restricted to alienation by act inter vivos andnot by Last Will. A Will is ambulatory during the life of the personmaking ft, and does not operate as a disposing or putting away of anyestate, until after the death of the person making it. Doe Stevenson v.Glover. (2). It is a mere declaration of his intention during the life of thetestator and may freely be revoked. It requires the death of thetestator for its consummation. It is of interest to note that inRambukwella Sidhartha v. Sumana Them (3) the Supreme Court inconstruing the words 'alienation' during the lifetime appearing insection 23 of the Buddhist Temporalities Ordinance, held that thedisposition by Last Will of pudgalika property by a bhikku does notamount to an alienation during the lifetime of the deceased. Themeasuring of the ambit of the prohibitions contained in P 1 and P 3 isa matter of difficulty and doubt and it is not surprising that the lowercourts took different views of the scope of the restrictions. Theconstruction, contended for by the defendants does not lackattraction or merit. In such a context the rule applies that in theinterpretation of Wills that construction is adopted in case of doubtwhich limits the scope of the fidei commissum. "If those wordsare capable of more than one construction, then Court wouldlean towards the one in favour of freedom of alienation." Per Innes, C.J_, in ex parte Van Eeden (4).
Keeping in mind the above principles, I have to regretfully concludethat the prohibitions contained in P 1 and P 3 do not precludedisposition by Last Will and that it was competent for Lambert Cornis
286
Sri Lanka Law Reports
[1984] 1 SriL. R
Fernando to bequeath by his Last Will P 4, the lands, thesubject-matter of this action, to his sister the plaintiff over the head ofthe 1st defendant, his only child.
1^ my judgment, the plaintiff is entitled to the declaration that she isentitled to the properties set out in the schedules to the plaint, byvirtue of Lambert Cornis Fernando's Last Will P 4 and that the saidproperties are not subject to a fidei commissum in favour of the firstdefendant, and for an order granting possession of the said lands toher. The plaintiff has not claimed any relief by way of damages for thepossession of the said lands by the defendants and has not led anyevidence on that account and hence will not be entitled to anydamages from the defendants on account of their possession of thesaid lands.
I allow the appeal of the plaintiff and set aside the judgment of theCourt of Appeal and restore the judgment of the District Judge,declaring the plaintiff entitled to prayers (a) and (b) of the plaint. Ihowever direct that, in the interests of justice no writ of possession beissued until 30.3.1985. In the circumstances a fair order to make withrespect to costs is that the parties bear their own costs in all thecourts and I so order.
WIMALARATNE, J.-l agree.
ABDUL CADER, J.-l agree.
Appeal allowed.
Judgment of the District Judge restored.