093-NLR-NLR-V-57-R.-BABEE-et-al-Appellants-and-P.-NAIDA-et-al-Respondent.pdf
^1955Present: Gratiaen, J., and Fernando, J. •
R.BABEE el at., Appellants, and P. NATDA el al.,Respondents
',ST. C. 146—D. C. Kandy, 3,292
Yidcicommissum—“ 1 Varga paramparauro "—Express Jideicommissum—Alienation—permitted between original donees—Effect.
A deed of gift contained the following condition :—
“ This property shall be held and possessed by my sons S—and H—or theirdescending heirs children and grandchildren unto warga paramparawe; theyshall have the right to dispose of same among the brothers only, but shall notoffer ns security mortgage or sell in any manner whatsoever to anyone outside.”
’Held, that the Grst part of the condition constituted a gift over in favour of tho
lineal descendants of the original donees and was sufficient to create an expressJideicommissum ; tho subsequent reference to alienation was merely aqualification of wliat would otherwiso have been an implied total restraint.
j(.PPEAL from a judgment of the District Court, Kandy.
IP. D. Gunaselera, for the plaintiffs appellants.
Ko apjiearancc for the defendants respondents.-
Cur. adv. vult.
June 10, 1955. Febxaxdo, J.—'
This is an appeal against the refusal of the learned District Judge tohold that a. Jideicommissum was created by a deed of gift winch was subjectto the following conditions :—This property shall be held and possessedby my sons Setuwa and Hawadiya the two of them or their descendingheirs children and grandchildren unto warga paramparaua ; they shallhave the right to dispose of same among the brothers only', hut shall notoffer as security mortgage or sell in any manner wharsoever to anyoneoutside
The Judge thought that the restriction against alienation is-partialand not complete and assumed that “ What is not expressly prohibitedIs implicitly allowed ”. It is apparent that the only question to wliichhe sought an answer was whether a tacit Jideicommissum was created byreason of a prohibition against alienation imposed on the beneficiaries."Where that is the only question wliich properly arises, then vagueness orambiguity as to the extent of the restraint or a failure to give a clearindication of the persons in whose interests, it is imposed might eachnegative the intention to create a Jideicommissum ; and such I think wasthe case in Irtishington r. Samarasinghe1 upon which the learned JudgeTelied.-
The real question which arises in the present case however, is whetherthe first" part of the condition is sufficient to create an express fidei-commissum, in which event the subsequent reference to alienation ismerely a qualification of what would otherwise have been ah impliedtotal restraint. The language of the condition is very similar to that■construed in Sopinona v. Abeytcardene -;—“ I do further direct that thei {1S07) 2 X. L. X. 293.1 (192S) 30 X. L. X. 293.
property bequeathed to-the parties named, who are the legatees of thislast will and testament, arc hereby authorised to possess ainong themselves-and their descending heirs, and they are hereby prohibited from selling,mortgaging, or gifting to others, save and except among themselves andtheir descending heirs Neither side there contested the existence ofthe Jideicomin issum, and the oilly point argued for the respondent wasthat-tlie prohibition was personal and not real and had therefore lapsedby reason of a permitted alienation. His counsel rightly conceded that-“ the testator whilst imposing a fideicommissum intended to permit analienation under certain conditions
It is scarcely necessary to point out that no particular formula, andnot even the use of the word fideicommissum, is necessary in order tocreate one, so long as the intention is clear. That intention is manifestedin the deed under consideration by the words “ shall be held and possessedby my sons or their descending heirs children and grandchildren undericarga paramparcnca ”, which constitute a gift-over in favour of the linealdescendants of the original donees. Nothing more would have beennecessary, but for the desire of the donor to permit alienations betweenthe original donees ; and ” where there is an express fideicommissum,the apparent nudity of the express prohibition imposed on the fiduciariesis immaterial to the existence of the fideicommissum ”. (cf. iVadara-jahat p. 107).
I would therefore hold that the deed under consideration created avalid fideicommissum in favour of the plaintiffs in respect of the half-shareof the property donated to their father. T3ie appeal has to be allowedand the decree of dismissal set aside. The case is remitted to the DistrictCourt for decree to be entered declaring the plaintiffs to be entitled tothe half-share and for adjudication upon the issues relating to damagesand the claim for compensation for improvements. The defendantsmust bear the costs of appeal and of the proceedings in the DistrictCourt which preceded the appeal.
Gratzaex, J.—I agree.
Ajypeal allowed. '