( 62 )
Present: De Sampayo J. and Schneider A.J.
PERERA v. MARIANO.320—D. C. Negombo, 12,524.
Fidei commissum—Failure of fidei commissarius—Sale by. fiduciary. .
When fidei eommissairiu* fail, the – last holder’s fiduciary interestis enlarged into full ownership, and any disposition by him by actinter vivos or by last will is operative.
r J^'HE facts appear from the judgment.
Croos-Dabrera, for second defendant, appellant.—Under our lawno prohibition against alienation is necessary to constitute a fideicommissum. If A leaves his property to B, subject to the conditionthat it should go to C after B’s death, a complete fidei commissum
1 (1901) 5 N. L. R. 98.
( 63 )
is created. In such a case a prohibition is a superfluity. But if Agives his property to B, prohibiting him from alienating, and pro-viding that, in the event of alienation, the property is to go to C, then,too, a fidei commissum is created. In the first case, the event on thehappening of which the property is to vest in G, is the death of B.If C predeceases B the fidei commissum lapses, and B becomes vestedwith absolute ownership. In the second case, the event on thehappening of which the property is to vest in G, is alienation by B.Jus tin a was allotted a half share by the interlocutory decree, subjectto a fidei commissum in favour of her descendants. She diedunmarried and issueless. The fidei commissum therefore lapsed.Her half share should go to the appellant, who got it by a deedof gift from her prior to the institution of the partition suit. Theprohibition against alienation not being subject to any condition isinoperative. Counsel cited 1 Maas dorp 169 and 2 Maas dorp33. Even if Justina had no title at the time of the deed of gift,the subsequent acquisition of absolute ownership enured to thebenefit of the donee. [Db Sampayo J.—I do not think it isnecessary to go into this question.]
A. St. V. Jayawardene (with him Abdul Coder), for respondent—The original donees were the respondent Juan Perera and his wifeCatherine. On Catherina’s death her half share devolved on Justina,subject to the fidei commissum. On the death of Justina withoutchildren her half share went back to the original donee, Juan Perera,by operation of the jus accrescendi. If any one of the institutes isliving, then the property goes to him, in order to prevent the fideicommissum lapsing. Justina, therefore, got no title on her death,and the appellant, who claims through her, is not entitled toanything. Counsel cited XJsoof v. Rahimath 1 TiUekeratne v. Silva,2Tillekeratne v. Abeysekere,3 Vansanden v. Mack,* Carry v. Carry,3and Ayamperumal v. Meeyan*
The deed of gift by Justina is bad, and conveyed no title. Sheacquired absolute ownership only at her death. It has been heldthat the interests- of a fidei commissarius cannot be sold during thelifetime of the fiduciarivs (Mohammodo Bhoy v. Lebbe Mariear7).
Croo8-Dabrera, in reply.—A separation of interests had taken place,and therefore the jus accrescendi does not apply (Perera v. Silva,3Carron v. Manuel3). Jus accrescendi raised for first time in appealcould be successfully met by pleas of estoppel and prescription.
Cur. adv. mitt.
*11918) 20 N. L. B. 225.
(1907) 10 N. L. B. 214.3 (1897) 2 N. L. B. 313.
(1895) 1 N. L. B. 311.
3 (1917) 4 C. W. B. 50.
3 (1917) 4 C. W. B. 182.
7 (1912) 15 N. L. B. 465.3 (1913) 16 N. L. B. 474.
– • (1914) 17 N. L. B. 407.
( 64 )
March 26, 1919. Db Sampayo J.—
This is an appeal from the final decree in a partition action, andthe question is whether a certain half share of the land should beallotted to the second defendant-appellant or to the respondentJuan Perera. The land originally belonged to one Lawrenti Fer-nando, and was given by him by deed of gift dated November 30,1874, to his daughter Catherine and Juan Perera, who was herhusband.. It is agreed that the deed created a fidei commissum infavour of the descendants of the two donees. Catherine died leavingone child, Justina, the original first defendant, who died pendingthe action. The second defendant’s claim to the. half share isfounded upon a deed of gift granted by Justina before the institutionof the action, while the respondent Juan Perera claims it as havingcome to him absolutely' on the death of Justina without issue. TheDistrict Judge has allowed the claim of Juan Perera, who wassubstituted as first defendant in the place of the deceased first
defendant Justina. The second defendant has appealed.
It appears to be common ground that the land was held dividedly,and that a fidei commissum was imposed on each half share given toCatherina and Juan Perera respectively, and I do not think we needgo behind the case so put by both parties before the District Judge,who also decided the matter on the same footing, and decreed JuanPerera’s half share to the plaintiff as purchaser of it, but subject tothe fidei commissum. as Juan Perera is still alive, and Justina’s halfshare to Juan Perera himself absolutely as Justina’s heir, as he isdescribed in the judgment. The District Judge’s reason for notgiving effect to Justina’s deed of gift in favour of the second defend-ant is that the deed is invalid in consequence of the fidei commissum.But it is good law that when fidei commissarius fail, the last holder’sfiduciary interest is enlarged into full ownership, and that anydisposition by him by act inter vivos or by last will is operative. Itherefore think that' the half share in question should have beenallotted to the second defendant on the partition. If I had notcome to this conclusion, I would have considered it right to requirefurther proceedings, because in her deed to the second defendant. Justina recites as her source of title not Lawrenti Fernando’soriginal deed of gift, but deed No. 2,527. dated* June 18, 1878,attested by J. C. Samarasinghe, Notary Public, which has not beenproduced.
In the circumstances I would allow the appeal, and order thatthe partition decree -be amended by allotting lot A to the seconddefendant instead of to the substituted first defendant. JuanPerera. The second defendant-appellant is, I think, entitled tothe costs of the day in the Court below and of this appeal.
Schneideb A.J.— I agree.
PERERA v. MRIANO