052-NLR-NLR-V-58-M.-KRISHNAPILLAI-Appellant-and-A.-S.-MANICAM-Respondent.pdf
Present : Sanson!, J., and Fernando, A.J.
M.KR1SHXAPILLAI, Appellant, and A. S. MAXICAM,Respondent
S. C. 319—D. G. Ballicaloa, 563jB
Fideicommissutn—Gift to bride and bridegroom ami the children of the bride’s womb-for ever—Construction—Prohibition against alienation out of the family.
When A was about to marry IS, A’s father donated certain lands to them“by way of dowry” and the deed further provided that they shall “takecharge of their properties and their rights and they and their children by her(A’s) womb shall enjoy tho possession of these properties according to theirwish for ever. ”
Held, that the deed did not create a fideieomrnissum in favour of the childrenof A and B. There was no implied prohibition, against alienation out of thefamily.
A
xjLPPEAL from a judgment of the District Court, Batticaloa.
S. Nadesan, Q.C., with S. Skarvananda and G. jSIanohara, for thedefendant appellant.
S. J. V. Gkclvanayaham, Q.G.. with T. Velupillai, for the plaintiffrespondent.
Cur. adu. vult.
September 16, 1954. Saxsoxi. J.—
Tho only question for decision on this appeal is whether tho dowrydeed of gift PI dated 14th December, 1915, created a fideieomrnissumin favour of the plaintiff-respondent. He is the only child of his motherThangapillai and his father Arulapapillai. When his parents were aboutto get married Thangapiliai’s father donated certain lands to them“ by way of dowry ” and the deed further provided that they shall“ take charge of their properties and their rights and they and theirchildren by her (Thangapillai’s) womb shall enjoy the possession of theseproperties according to their wish for ever Arulajrapillai died afterthe marriage ; his widow then married the defendant-appellant; there-after she died in 19-JS. The plain tiff-respondent brought this actionclaiming the entirety of the lands donated in the deed PI on tho basis-tliat the deed created a fideieomrnissum in his favour.
The learned District Judge decided that the deed created a fidcicom-missuni becausd, in his opinion, “ the intention of the donor was thatthese properties should never go out of the family and hence there wasan implied prohibition against alienation out of the famity and the fideieommissarii had been clearly designated as the donees’ children and theirdescendants from generation to generation His attention does notappear to have been drawn to the case of Kurunnlh’ipjnllni v. Sinnapittai which was also a case heard in the District Court of Batticaloa. Inthat case a deed of gift containing the following clause was considered :“ The garden, house, well and plantations of this value shall for ever fromthis day be possessed and enjoyed by them and the children of the wombof the said Sinnatankaelu from generation to generation as dowryMiddleton, J. and Grenier, J. hold that these words did not create a fidei-commissum. Middleton, J. said in the course of his judgment “ In acase decided by Mr. Justice Withers on the 2Gth September, 1S9S, (171C. R. Batticaloa 1150), almost identically the same words were employedand that learned judge, who must have had considerable experience inconstruing documents of this description, said that he could find thereno words of prohibition or precatory words indicating that those to whomthe gift first came should hand it over to those who came after. In thepresent case the same observations, it seems to me, apply He alsoquoted with approval the words of Wendt, J. in Ibanu Agcn v. Abeya-sekara 2 : “ Where the intention to substitute another for the first takeris expressed or is to be gathered by necessary implication from thelanguage of the will, a fidcicommissum is constituted Grenier, J.said : “ It seems clear to my mind on a careful consideration of the wordsin this deed that there was absolutely no intention on the part ofthe grantor to impose any kind of burden on the property which hehad dowried to the plaintiff. Indeed it seems to mo that the fact ofthe property in question being dowried property rendered it highlyimprobable that the grantor would have imposed a fidcicommissum onit ”, With respect, I think that these reasons arc quite sufficient tojustify a finding that the deed in question did not create a fidoicom-missum, in view of the similarity of the wording of the two deeds.
Mr. Chelvanayakam argusd that there was a clear indication of a giftever to the children of the donees but I am unable to agree with him.While mention is made of the children, they are not mentioned as bene-ficiaries whose rights are to accrue in succession to the immediate donees,for I cannot find a clear indication of a fidcicommissary obligationHaving been imposed by the donor upon tlic donees for their benefit; noris it reasonably clear when their rights, if any, are to vest in them—seePabilina v. Karunaratne et al. 3. Both these requirements are essentialto the existence of a valid fidcicommissum. The children might wellhave been referred to merely to indicate tho motive for the gift-, seeingthat the contemplated marriage was the consideration for the gift.
I do not think it is necessary to refer in detail to the authorities citedby Jlr. Chelvanaj'akam. It is sufficient to say that in my opinion the
1 (2007) 3 13'tinsingftnnv 104.2 (/903} 6 AT. L. 7?. 344.
3 (iois) ooln. too.
wording of the documents construed in the cases of Sitti Kndijn, v. deSaram 1 and Noordeen v. Badurdecn 2 Is not comparable with the wordingof the deed in this case. As so often happens in these cases the difficultylies not in ascertaining the principles, but in applying the principles tothe particular document under consideration.
For these reasons I would set aside the judgment of the learned DistrictJudge and hold that the deed PI did not create a fidoicommissum.
The plaintiff-respondent is therefore declared entitled only to anundivided one fourtli share of the lands in dispute. He is not entitled toejectment of the defendant-respondent or to damages. He must paythe defendant-respondent the costs of this action in both Courts.
FjEBNdXDO, A.J.—I agree.
Appeal allowed.