Podimenika v. Anthony Appuhamy
1948Present: Jayetileke and Windbam JJ.
PODIMENIKA et al., Appellants, and ANTHONY APPUHAMY,
S. C. 159—D. C. Chilaw, 12,261.
Fidei commissum—Property donated to children to go over tc grand-children—Powerto children of alienation inter se—Sale of share by one donee to another—Doesshare pass free of fidei commissum ?
One G gifted certain lands to his three children A, C and D subject to thefollowing conditions :—
“ that they shall be entitled to the said property on my death and shallenjoy the same during their lifetime without transferring, mortgaging orleasing the said property for over a period of four years or doing any suchact with outsiders but may do such acts among themselves and on theirdeath the same shall devolve on their lawful children
A and C sold their shares to D. Thereafter D sold her share to A. D and Athen sold the entirety to the defendant.
Held, that the defendant obtained an absolute title to the land. Unless inthese circumstances the language of the deed leads unambiguously to theconclusion that a donee who purchases a share from a co-donee must leave itto his lawful children, the alienee takes that share free from any restrictions.
.A.PPEAL from a judgment of the District Judge, Chilaw.
B. Wihramanayake, for the plaintiffs, appellants.
N. E. Weerasooria, K.C.,respondent.
with B. Seneratne, for the defendant,
Cur. adv. vult.
(1939) 40 N.LJR. 265.
JAYETILEKE J.—Podimenika v. Anthony Appuhamy.
May 11,1948. Jayetileke J.—
This is an action for a declaration of title to an undivided ^ share oftwo lands called Ketakalagahawatte and Ketakalagahamulawatte. Theoriginal owner of the lands was one Guruhamy who, by deed No. 3,800,dated January 5, 1912, (PI), gifted the said lands to his three children,Allis, C&rohamy, and Dingirimenika subject to the following conditions :—
“ that they shall be entitled to the said property on my death andshall enjoy the same during their lifetime without transferring, mort-gaging or leasing the said property for over a period of four yearsor doing any such act with outsiders but may do such acts amongthemselves and on their death the same shall devolve on their lawfulchildren ”.
By deed No. 1794 dated February 1, 1929, attested by T. P. M. F.Goonewardene, Notary Public (Dl), Allis and Carohamy sold their sharesto Dingirimenika. By deed No. 1795 dated February 1, 1928, andattested by T. P. M. F. Goonewardene, Notary Public (D2), Dingirimenikasold her share to Allis. By deed No. 1825 dated February 25, 1929,attested by T. P. M. F. Goonewardene, Notary Public (D3), Dingiri-menika and Allis sold the said lands to the 1st defendant, and the latter,by deed No. 33177 dated June 17, 1944, attested by P. W. Amarasinghe,Notary Public, gifted the same to his minor children the 2nd and 3rddefendants. Allis died in the year 1944 leaving three children, the 1st,2nd and 3rd plaintiffs. The plaintiffs alleged that their father’s purchaseon D2 was subject to the restrictions contained in PI.
The parties went to trial on the following issues :—
Did Deed No. 3800 create a valid fidei commissum ?
Did the transferee on deeds 1794, 1795 and 1825 receive their
rights free from any restraint ?
Are the paintiffs as heirs of Allis Appuhamy bound by the latter’s
warranty of title ?
The learned District Judge answered the 1st and 2nd issues in theaffirmative and dismissed the plaintiff’s action with costs. At tbeargument before us the only point raised by Mr. Wikramanayake wasthat Allis’ purchase on D2 was subject to the restrictions contained inPI. He invited our attention to the following passage in Voet1 :—
“ But when several parties are prohibited from alienating, each one,in a case where there is any doubt is only understood to be prohibitedin respect of the share he has acquired from the testator, not in respectof what he has acquired from a co-heir or one who was restrainedat the same time as he was unless the intention of the testator appearsto have been otherwise. ’ ’
and contended that by providing that the property should pass on thedeath of the donees to their heirs, the donor has sufficiently indicated hisintention that a donee who purchases a share from a co-donee shouldnot have the unfettered right to sell or otherwise deal with that share.
1 Booh XXXVI. Title lt section 27. Mcgregor's translation p. 68.
JAYETrLEKE J.—Podimenika v. Anthony Appuhamy.
Mr. Weerasooria, on the other hand, contended that where no provisionis made as to who is to succeed to the share in the event of a sale by onedonee to another the alienee takes that share free from any restriction.He invited our attention to the following passage in Sande onRestraints1 :—
“ where a testator bequeaths an estate to his fifteen freedmen, andforbids any one of them to alienate or to give away his portion or totransfer it to a stranger by any other means whatever ; and if anythingis done in breach of this prohibition the testator wills that such portion,or the whole estate shall pass to the Tuseulan estate. Now if someof these freedmen sold their portions to others of these freedmen thepurchasers, according to the decision of Scaevola, could rightly leavean outsider as heir to these portions : for this prohibition provides thatno one of the freedmen shall alienate his own portion to an outsiderbut does not prevent him alienating those portions which he has acquiredfrom his fellow freed man. The wishes of the deceased are fulfilledwhen the property has once been alienated within the circle of thesefreedmen, and therefore if it is thereafter transferred to an outsiderthis is not against the wish of the deceased.”
and to the following observations of Schneider J. in Naina Lebbe v.Marikar 2 and Buchanan A. J. in re Estate Volk 3.
Schneider J. said :—
“ But granting that the prohibition is one falling into the class ofpersonal prohibitions, Mr. Samarawickreme’s argument will fail for tworeasons. When Mohamadu sold his share to his brother, the 1stdefendant in 1912, the latter acquired this share free from any burdenwhatsoever, and when he resold it to Mohamadu, the latter also acquiredabsolute title, because the prohibition provides that no one of thedonees shall alienate his share to a stranger, but does not prevent oneof the donees alienating the share which he has acquired from aco-donee ”.
Buchanan A. J. said :—
“ As the testators have placed no limitation on the right of alienationby any legatee who obtained such share by right of purchase a purchaserhas the usual unfettered right of sale or otherwise dealing with what hehas bought ”.
According to these authorities it is fairly clear that, unless the languageof the deed leads unambiguous^ to the conclusion that a donee whopurchases a share from a co-donee must leave it to his lawful children,the alienee takes that share free from any restrictions. I am unable tosay that there is any such provision in PI. It seems to me that the onlyprovision the donee has made in PI is that if the donees die withoutacting upon the power given to them the property shall devolve on theirlawful children. I would accordingly dismiss the appeal with costs.Windham J.—I agree.
1 18.104.22.168. Webber's translation p 177.* (1921) 22 N. L. R. at p. 302.
3 South African Law Reports (1928) C.30.P. 164.