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Present; Garvin and Lyall Grant JJ.
PETER APPUHAMY v. MDDALEELAMY.
295—D. C. Regatta, 6,817
Fidei commissuxn—Gift to wife and children—Prohibition against alien-ation to outsider—Possess as paraveni.
Where a person gifted certain lands to his wife, his 6on, and twominor daughters, and the deed, proceeded to provide as follows:“And the said donees shall continue to render unto me allhelp and succour, as they are at present rendering, qo long as 1live, and after my death the four donees or their heirs, executors,administrators, and assigns can possess the same undisputedlyand as paraveni property, and, further, I do ordain that the saidfour donees during their lifetime shall not mortgage, sell, or transferto any outsider except among themselves the said donatedlands**,—
Held, that the deed did not create a valid fidei commissum infavour of the children of the donees. Robert v. Abeyewardene1considered.
DY a deed of gift No 1,886 of July 22, 1896, the donor giftedcertain property to four members of his family; the possessionof the property was to take effeot after his death. The relevantportion of the deed recited as follows: “And the said donees. . . . shall continue to render unto me all help ….so long as 1 live, and after my death the said Davith Siruio . . . .the four donees or their heirs, executors, administrators, and assignscan possess the same undisputedly and as paraveni property… . the said four donees shall not mortgage ….to any outsider except among themselves the said donated lands.”1 (1912) IS N. L. R. 323.
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1926* The donees sold their shares in this land to the plaintiff andGabvxn J. another. In an action brought by the plaintiff in the DistrictPete~A~Court for the land, the learned District Judge held that a valid
homy v, fifa* commisaum had been created by the deed in favour of theMudalih&my children. From this judgment the plaintiff appealed.
H. V. Perera (with him Ranawake), for plaintiff, appellant.—Inthe case of a fidei commisaum two things must be specified, viz.,(1) the event in which the title of the donees is to cease ; (2) whois to get it when such title ceases.
In this case there is no fidei commisaum in favour of the heirs ofthe donees. Even if it can be said that there is a fidei commisaumas between the donees, the plaintiff gets a good title, because boththe donees have joined in the conveyance.
In NainaLebbev. Marailcar,1 a gift to three brothers, A, B, and C,with a condition “ that if they like to alienate or encumber theirshare by any deed such as a mortgage or transfer they shall do sobetween themselves and not with others,” it was held that no fideicommisaum was created in favour of the other donees by a breachof the prohibition by one of them. What was created was only aright of preemption in favour of the donees. Peris v. Soysa? A deedof conveyance to four persons, their heirs, or legal representatives,with a prohibition against alienation, except among the fourgrantees, was construed as not creating a fidei commisaum. Counselalso cited Amardioickreme v. Jayasinghe et al?
Drieberg, K.C. (with him Navaratnam), for intervenients, res-pondents.—A prohibition against alienation out of the family issufficient to create a valid fidei commisaum, especially when thegift is made to one’s children. If the property is to remainpermanently in the family, and the words used are sufficient todisclose the intention of the donor, then a fidei commisaum has beencreated. See Robert v. Abeyewardene (supra).
In th9 case of VyramvUu v. Mootatamby,4 the absence of thewords " their heirs,” rendered a construction in favour of a fideicommisaum impossible. Here mention is made, not only of thedonees, but also of heirs, &c., and, further, they were to hold it asparaveni property. The latter direction clearly shows that it wasthe intention of the donor to keep the property within the family.
Counsel also cited 24 N. L. R- 420, Josef v. Mulder*:, Burge112, and Sande on Restraints 181.
May 10, 1926 Garvin J.—
The point for determination in this case is whether a valid fideicommisaum in favourrof the children of the donees is created by thedeed of gift No. 1,886 of July 22, 1896, and marked 2 D 1. In theopening recital the donor says : “ I thought it fit that a settlement1 22 N. Xf. R. 295.3 23 N. L. R. 462.
8 21 N. L. R. 446.*23 N. L. R. 1.
* (1903) App. Coses 190.
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should be made by me in regard to my lands and the house so that 1926.there may be no dispute about them after my demise.” He then gabvin j.proceeds to make a present gift of the lands and premises to his son *—Davith Sinno, his minor daughters Ban Menika and Podimahatmeya,and his wife Punchi Menika, possession being postponed till after Mudalihamyhis death. The deed then proceeds as follows: “ Henceforthany of my other daughters, children, heirs, or any one whomsoevershall raise no dispute or put forward any claim whatever ” in regardto the subjects of the gift. This is followed by a clause, thelanguage of which is strongly relied upon in support of the contentionthat a fidei commissum has been created, “ And the said donees. . . . shall continue to render unto me all help and succour asthey are at present rendering so long as I live, and after my deaththe said Davith Sinno, and the minors Ban Menika and Podimahat-meya, and my wife Punchi Menika, the four donees or their heirs,executors, administrators, and assigns can possess the same undis-putedly and as paraveni property, and, further, I do ordain that thesaid four donees during their lifetime shall not mortgage, sell, ortransfer to any outsider except among themselves the said donatedlands.” It is urged that these words indicate an intention on thepart of the donor to create a fidei commissum in favour of tinmembers of his family. The case of Robert v. Abeyewardene (supra)is cited as an authority for the proposition that where there is dis-closed a clear intention on the part of the donor that the subject ofthe gift is to remain permanently in the family a fidei commissum isinduced in favour of the members of that family. The case is alsorelied upon as an authority for the proposition that the particularform of words used in this case should be construed as sufficient todisclose an intention to create a fidei commissum. That a validfidei commissum is created where the language of a documentclearly indicates an intention that property shall remain in thefamily for the benefit of the members of the family and shall not bealienated outside the family is not disputed. I might furtherobserve in passing that with the exception of Robert v. Abeyewardene(supra) Counsel has not been able to refer us to any other case inwhich it has been successfully contended that such a fidei commissumis created. Now the words “ I do ordain that the said four doneesduring their life time shall not mortgage, sell, or transfer tp anyoutsider except among themselves the said donated lands ” do notcreate a fidei commissum in favour of the members of a famly.
A very similar form of the words appear in a deed which was thesubject of litigation in the case of Naina Lebbe v. Marailcar (supra).
They are as follows : “ That if they like to alienate or encumber theirshare by any deed such as a mortgage or transfer they shall do spbetween themselves and not with others.” The words appear in adeed of gift in favour of three brothers. It was held that the wordsdid not even constitute a valid fidei commissum conditionals, that
Peter Appu-hamy v.MudaUhamy
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is to say, afidei commissum induced in favour of the other donees bya breach of the prohibition against alienation by any one of them.It is contended, however, that the words which immediately precedethis prohibition, to wit, “ after my death the said Davith Sinno,and the minors Ban Meniha and Podimahatmeya, and my wifeFunchi Monika, the four donees or their heirs, executors, adminsi-trators, and assigns can possess the same undisputedly and asparaveni property,” have an important bearing upon the inter-pretation of the prohibition. It is said that these words contem-plate the successive enjoyment of this property by the donees andtheir heirs, and that the trords “possess as paraveni property ”have the import that the donees and the heirs were to possess thisproperty in succession.
Now these words must not be read out of their context. Thematerial parts of the deed to which I referred earlier indicate, in thefirst place, that the object of the testator was to make a settlementof this property on certain members of his family in view of disputeswhich he anticipated might arise in the event of his death. Togive effect to this object he makes a gift and lays his other daughters,children, heirs, and everybody else under an injunction not todispute or to put forward any claim to the premises. Having doneso, he proceeds to say that after his death possession of the propertyshould pass to the donees, and in contemplation of the case of thepossible death of one or more of the donees, he uses words whichindicate that the heirs, executors, administrators, and assigns ofthe donees shall in that event take their place. The words“ possess the same undisputedly ” clearly refer to the injunctionunder which he has laid “ other daughters, children, and heirs,”and the words “ as paraveni property ” were I think used for thesole purpose of indicating, not only that their possession wasnot to be disputed, but that it should be regarded as if it werepossession by the donees or their heirs, as the case may be, ofproperty which had come to them by inheritance. The languageof the donor is intended to show that the possession of the subjectof the gift should be undisputed and of the fullest possible character.
These words are followed by the words of prohibition. But theprohibition is unaccompanied by any indication that it was madein pursuance of an intention to impose upon the property a fideicommissum in favour of the family of the donor.
. Th9 learned District Judge is wrong, and his judgment must bemodified accordingly.
The appeal is allowed, with costs, and the plaintiff and the fourthdefendant are declared entitled to this land, in the proportion of ahalf share to each.
The plaintiff is entitled to the costs of the contest in the Courtbelow between him and the second and third defendants.
PETER APPUHAMY v. MUDALIHAMY