063-NLR-NLR-V-30-JAMES-v.-DANIEL-et-al.pdf
Present; Fisher C.J. and Garvin J.
JAMES v. DANIEL el al.
. 239—D.C. Gaik, 24,356.
Fidei commissum—Devolution on heirs according to law—Designation ofpersons to be benefited—Construction of deed.
Where a deed of gift of property to five brothers contained aprohibition against alienation and provided as follows :—
“ If one of them should die before marriage his share shalldevolve on the other surviving brothers equally, and after theirdeath, the said premises shall devolve on their proper heirsaccording to law.”—
Held, that the deed created a valid fidei commissum and that itcontained a sufficient designation of the beneficiaries for the pur-pose. The words “ after their death ” should be construed asmeaning after their deaths respectively.
A
PPEAL from a judgment of the District Judge of Galle.
N. E. Weerasooria (with Wijeu-ardene), for-plaintiff and fourthdefendant, appellants. ^
H. V. Perera, for sixth and seventh defendants, respondent.
{ 246 )
June 29, 1929. Garvin J.—
The only question which was argued at the hearing of this appealwas whether a valid Jidei commissum under which the plaintiff takesbenefit was created by the deed PI. It is a deed of gift. Thedonor granted f of the premises described therein to the five sonsof one Thoronis de Silva Abeysundere and the remaining £ to oneJuwanis, stating in respect of the § share which was gifted to thefive brothers that they were to possess it equally. He vested thepremises in the five brothers subject to a prohibition against aliena-tion providing also as follows :—“If one of them should die beforemarriage bis share shall devolve on the other surviving brothersequally, and after their death the said premises shall devolve ontheir proper heirs according to law.” The learned District Judgeheld that no fidei commissum had been created, giving as his reasonthat the expression “ proper heirs according to law ” was not asufficient designation of the beneficiaries. Counsel for the respond-ents, however, preferred to support the judgment upon a differentground. He contended that the shares of these beneficiaries werecharged with a fidei commiasum and that in the event of the deathof any one of them unmarried that share vested in the remainingdonees in equal shares: he further argued that the only other.condition upon which the share, vested in each of such donees,passed to the ultimate beneficiaries by virtue of the provisions inthis deed, was the death of all of them. In other words, that theshare which vested in any one of the donees, if it did not by reasonof his death unmarried pass to the remaining donees, remains a partof his estate or in the enjoyment of the assignee, if any, and does notpass to the ultimate beneficiary till the death of the last of thedonees. That, condition, he argues, has not as yet been fulfilledinasmuch as one of the original donees is still alive.
The question is by no means free of all difficulty and we labourunder the disadvantage that our decision must turn upon thetranslation of a deed drawn in the Sinhalese language. The words“ after their death ” may, no doubt, mean “ after the death of allof them.” If the case of Fernando v. Fernando1 appears to supportthat contention, the case of A beyeratne v. Jagaris2 is even morestrongly in support of the contention of counsel for the plaintiff thatthe words “ after their death ” should be construed as though theyread “ after their deaths respectively ” and that the concludingwords “ their proper heirs” should be construed as though theyread “ their proper heirs respectively,”
A study of these two judgments shows only too clearly that wherethe intention of the donor is not clearly expressed in the languageused by him in a part of the deed, his intention must be gatheredfrom a consideration, not of any particular form of words in any
* 27 N. L. R. 321.2 26 N. L. R. 181.
30/1S1929.
James V.Daniel
( 246 )
1989.
GrABVIN J.
James v.Daniel
particular part of the deed, but from a consideration of the deed asa whole. Upon such a consideration it may be found necessary togive a different meaning to what is substantially the same set ofwords according as it appears in one document or another.
It appeared at the argument to be common ground that the. donor in this case intended to vest each of the five donees of the£ granted to them with an equal share even as he had definitelyvested the remaining £ in Juwanis. Having provided for the specialcase of donees dying unmarried, he provided generally for what wasto happen on the death of the donees. In the case of Juwanis, thedonee of the other £ share, similar provision is made for the case ofhis death unmarried. Excepting the special case of the death of adonee unmarried, there appears to be little doubt, that, as in the caseof Juwanis upon whose death the property was to pass to his heirs,so also it was the intention of the donor in regard to these fivedonees that upon the death of any one of them his share was to passto his proper legal heirs. This intention might, of course, have beenmade clearer. The language of the translation is ambiguous; butit is at least capable of the interpretation which I think it should begiven. I can see no reason to suppose that it was the into^-Vm ofthe testator that the share which was vested in one of the dopeesshould not immediately upon his death pass to his heirs, but shouldremain part of his estate or in the enjoyment of his assignee andonly pass to his heirs upon the death of the last of the originaldonees." '
The appeal is entitled to succeed, and in this view the plaintiff'sright to a share in this land must be admitted. The judgmentunder appeal must be set aside, and the case sent back for trial anddetermination upon this footing. The plaintiff-appellant is entitledto his costs of this appeal and of the contests in the Court below.
Fisher C.J.—I agree.
Appeal allowed.