022-NLR-NLR-V-31-MEIYA-NONA-v.-DAVITH-VEDARALA.pdf
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1928.
Present : Garvin and Lyall Grant JJ.
MEIYA NONA v. DAV1TH VEDABALA.
2SO—D. 0. Ghilaw, 8,466.
Fidei commissum—Deedof gift to children—Prohibition against
alienation—No designation of persons to be benefited.
A deed of gift contained a grant of land in tbc.se terms: —
"I, in consideration of the love and affection I have and bear tomy children, have granted, conveyed, and set. over unto them byway of gift, subject to the condition and promise that the same shallnot be changed or altered at any time hereafter or in whatevermanner.”
Then followed a prohibition against alienation and, thereafter,a clause which ran as follows: —
“ Therefore full power is hereby granted unto the five doneesand their heirs, executors, administrators, and assigns to own allthe right and power, which I, the donor, and my heirs, executors,administrators, and assigns have and hold in and to the same andto possess the same undisturbedly for ever subject to the aforesaidconditions and stipulations."
Held, that the deed did not create a valid fidei commissum.
PPEAL from a judgment of the District Judge of Chilaw.
H. V. Perera, for defendant, appellant.
Samarakoon, for plaintiff, respondent.
November 16, 1928- Garvin J.—
By a certain deed of gift dated the 16th of July, 1894, and markedPI, one Naide, who was the owner of a half share of the land describedin the plaint, made a gift of the premises to his five children. One ofthese children' has died intestate and unmarried and the case hasproceeded upon the assumption that his share vested in the otherfour. Lethina Manamali, one of the remaining four, was marriedto one Aratchi Naide, and died leaving surviving her husbandAratchi Naide and two children—the plaintiff and another. Underthe ordinary rules of intestate succession, at Lethina's death her6hare of $ vested as to 1/16 in her husband and as to the remaining1/16 iu her two children in the proportion of a half to each. At asale in execution against Aratchi Naide his 1/16 share was seizedand sold and purchased by the defendant. The plaintiff brings thisaction claiming that the whole of Lethina’s shave vested in himand his sister to the exclusion of their father Aratchi Naide, and that
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the defendant has, therefore, acquired nothing of the purchase insale in execution against Aratchi Naide. The foundation of thiscontention is that the deed of gift by Naide. to his five childrenvested the property in those children subject to a fidei commissumin favour of their heirs up to the fourth generation.
The question for determination, therefore, involves a constructionof this deed. After reciting his title to the several allotments ofland, which were the subject of the deed, the donor proceeds asfollows: —
“ I, for and in consideration of the love and affection which Ihave and bear to my children (here follow the names of the fivechildren), and for divers other good causes, have granted, conveyed,and set over the same unto them by way of gift, subject to thecondition and promise that the same shall not be changed or altered■at any time hereafter or in whatsoever manner.”
There is here a simple gift of the premises to the five children anda declaration by the donor that the gift shall be irrevocable. Therefollows in general terms a prohibition of sale, mortgage, gift, exchangeor alienation in any other manner. Then follows a clause whichcontains the words which are relied on as creating a fideicommissum: —
‘‘ Therefore frill power is hereby granted unto the five doneesand their heirs, executors, administrators, and assigns to own allthe right and power, which I, the donor, and my heirs, executors,administrators, and assigns have and hold in and to the same andto possess the same undisturbedly for ever subject to the aforesaidconditions and stipulations; and besides I have bound myself tosettle any disputes which may ari ,e regarding this donation owingto any defect of title of me, the donor.” It must be rememberedthat the deed in question was drawn in the Sinhalese language and thatthe clause as above quoted is taken from a translation filed of recordand accepted by the parties as correct. Now, these words it seemsto me are in the nature of a habendum clause and are intended tovest in the donees, their heirs, executors, administrators and assigns,all rights and powers in regard to this land which at the time of themaking of this gift were vested in the donor. The conditions andstipulations subject to which this grant of the rights of the donoris made clearly refer to the prohibition against alienation earlierreferred to. There is, therefore, here a gift to certain donees subjectto a prohibition against alienation, but there is no indication whothe person or persons in whose interests the prohibition has beenimposed, and to whom the title to these premises is to pass at thedeath of the donees.
It has been urged that the words to which I have just referred,namely, that the 'grant to the five donees, their heirs, executors,administrators, and assigns of all the right and power of the donor
1988.
Gabvtn J.
Meiya Nonav.
Davith
Vedarala
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1928. subject to the aforesaid condition, namely, the prohibition againstGabvxn J alienation, clearly indicates that the prohibition against alienation
is imposed upon the donees and after them on their heirs and in
Meiya Nona default of heirs on the executors, administrators, and assigns of theDa/oith original donees. Reading the document in this way, it is urgedVedarala that there is here a grant to the donees subject to a fidei commissumin favour of their heirs. But that does not carry the case for theplaintiff very far. Aratchi Naide was the heir of Lethina, in thatat her death the property would vest as to her share in him, andconsequently the defendant would be entitled to the share he claims.
It is then sought to interpret the words “ their heirs ” to meanthe heirs of the donees and the heirs of those heirs from generationto generation, and the sole basis upon which it is sought to base thiscontention is the presence of the words “ to possess the sameundisturbedly for ever.”
Now, as I have already indicated, I am quite unable to assentto the interpretation it is sought to place upon these words. It isimpossible to do so without taking the greatest liberty with thelanguage employed by the donor. Moreover, the clause as a wholeis such as one would expect, where it is intended to vest the doneewith full rights of ownership, and the language which has beenemployed is language which would ordinarily be employed for thatpurpose. The words “ to possess the same undisturbedly for ever ”are words which are usually employed to indicate the vesting of thefull rights of ownership, and no more. It seems to me that the plainand ordinary interpretation of the language of this clause is that thepremises were to be vested in the donees, their executors, adminis-trators, and assigns for ever. This is a deed of gift, and whateverthe intention of the donor may have been, the rules of interpretationrequire that one should give to the language which he has used theordinary meaning which would be attached to those words. Inter-preting this deed in the light of that well known rule of interpretation,the utmost that can be said is that there is here a deed of gift infavour of five donees and a prohibition against alienation, but withno indication as to the persons or person or class of persons whowere to take in succession to the donees. In my opinion, theproperty which was the subject of this deed of gift vested in thefive donees absolutely.
In this view, the judgment under appeal must be set aside, andthe plaintiff’s action dismissed with costs both here and in theCourt below.
Lyall Grant J.—I agree.
Appeal allowed.