H. N. Q. FERNANDO, O.J.—Mohamed v. Mohamed
1972 Present: H. N. G. Fernando, C.J., and Deheragoda, J.M. P. MOHAMED, Appellant, and A. L. M. P. MOHAMED,Respondent
5. C. 67/69 (Inty.)—D. C. Galle, 3213/P
Partition Act (Cap. 69)—Section 48 (J)—“ Charitable trust
Where a deed conveying certain immovable property required the transfereesto provide three alms givings annually—
Held, that the substantial purpose of the deed was not to create a charitabletrust but to convey title to the property subject to the condition thatthe alms givings should be provided as an obligation attached to the ownership.Accordingly, the provisions of the deed could not prevent a partition of theproperty.
Appeal from a judgment of the District Court, Galle.
M. M. I. Kariapper, for the 1st defendant-appellant.
A. Mampitiya, for the plaintiff-respondent.
May 29, 1972. H. N. G. Fernando, C.J.—
Counsel for the appellant has contended that the property which is thesubject of this action, is subject to a religious or charitable trust createdby the deed 1D2 of 1881. He has argued that for this reason the propertycannot properly be subject of a partition.
Asa general answer to this argument, there is the fact that Section 48of the Partition Act expressly provides that property which is partitionedmay be declared ip the decree to be subject to a trust. . -In the presentcase, the trust applies to four properties referred to in the deed of 1881,but only requires the owners to provide three alms givings annually.It cannot be said, therefore, that the substantial purpose of the deedwas to create a charitable trust and not instead to convey title to thefour properties subject to the condition that the alms givings shouldbe provided as an obligation attached to the ownership. We thereforeagree with the learned District Judge that the provisions of the deeddo not prevent a partition of the property.
All that needs to be done to protect the interest of the beneficiariesunder this trust is that the decree should specify that the owners of theshares allotted in the land will be liable proportionately to pay the costsof the alms givings specified in deed No. 9969 of 1881.
Subject to this order, the appeal is dismissed with costs.Deheragoda, J.—I agree.
M. P. MOHAMED, Appellant, and A. L. M. P. MOHAMED, Respondent