001-NLR-NLR-V-12-SENANAYEKE-et-al.-v.-DISSANAYEKE-et-al.pdf
THE
NEW LAW REPORTS OF CEYLONVOLUME XII.
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice, 1908.
and Mr. Justice Grenier.November m.
SENANAYEKE et al. v. DISSANAYEKE et al.
D. C., Kandy, 18,482.
Fidei commissum—Deed of gift—Acceptance—Prescription.
Where a person by deed of gift donated a property to his twochildren on condition that “ they and their children and grand-children from generation to generation can from this day henceforth .possess only the said land, but they cannot sell or mortgage thesame ”
Held, that the deed of gift created a valid fidei commissum.
Held, also, that it is not essential that the acceptance of a deedof gift should appear on the face of it, but that such acceptancemay be inferred from circumstances.
Possession by the donee of the property donated leads go theinevitable inference that the deed of donation was accepted.
A
PPEAL from a judgment of the District Judge of Kandy(F. R. Dias, Esq.) dismissing the plaintiff’s action. The facts
fully appear in the judgment.
H. Jayewardene, for the plaintiffs, appellants.
A. Drieherg, for the defendants, respondents.
Cur. adv. wit.
November 10, 1908. Hutchinson C.J.—
The plaintiffs asked for a declaration of their title to an undividedhalf of. a house and premises in Kandy, and for possession, and fordamages for being deprived of possession- The title on which theyrelied was under a deed of May 31, 1862, by which DavidJayetilleke “ made over ” the property to his two children, Leisaand Kaohchi, “ in the manner hereinafter mentioned, that is toBVol. XII.1
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1908. say ; ft is determined that the said two children, Leisa andNovember 10. Kaohchi, their children arid grandchildren, from generation toHutchinson generation, can from this day henceforth possess only the said land,Cl J>but they cannot sell or mortgage the same; and that D. Ukku
Menika, the mother of the said two children, can during her lifetimepossess the said land.” That is the only material part of the deed ;it is in Sinhalese, and the translation above given is not questioned,except that the words translated “ I have made over ” the DistrictJudge says would be more correctly translated “ I hereby makethem owners of.”
There is no evidence as to the date of Ukku Menika’s death.Kachchi died on July 5, 1901. The plaintiffs are the children ofKachchi; and their case is that the deed created a fidei commissum intheir favour. Under a writ of execution against Kachchi and herhusband the interest of Kachchi in the property was sold in 1874; andby deed dated March 18,1874, the Fiscal conveyed to the purchaser“ all the right, title, and interest ” of the husband and wife in and tothe property. The purchaser entered into possession in 1874, andremained in possession until his death, when the property was soldby his administrator to the first defendant, who afterwards conveyedit to the second defendant, who is his wife. Since the sale in 1874the defendants and their predecessors in title under that sale havebeen continuously in possession. The defendants allege that thedeed of 1862 created no fidei commissum, and that the interest ofKachchi which they acquired was the absolute ownership of orie-halfof the property.
The only issues settled which are now material were :—
(1) Did the deed of 1862 create a fidei commissum in favour ofthe children and descendants of Kachchi ?
(5) Is the deed void for non-acceptance ?
David Jayatilleke deposed to his execution of the deed in favourof Ukku Menika and their two children ; he said that Ukku Menikawas not his wife that the children were illegitimate ; and that he“ dropped her after providing for her and the two children.”
The District Judge held that there was no fidei commissum. Hethought that there was an absolute gift to Leisa and Kachchi, witha proviso against alienation by them, which must be treated assurplusage; and that the words referring to possession by theirdescendants only indicate how the property is to devolve, if theparties die without alienating their shares. In my opinion the deedgives only a life interest to Leisa and Kachchi, with a fidei commis-sum in favour of their children and grandchildren. There is noabsolute gift to them, but only a gift to them “ in the mannerhereinafter mentioned,” thrt'i? to say, that, subject to the lifeinterest of Ukku Menika, they and their children and grandchildrenfrom generation to generation are to possess it.
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The District Judge also thought that there had been no acceptance 1908*of the gift. The deed does not state that the gift was accepted ‘November 10.but that is not essential. It is an inevitable inference from the Hutchinsonfacts which are above stated that Kachohi was in possession, with C J-the consent of the grantor, at the date of the sale of her interest;and thereafter the purchaser of her interest possessed it during therest of her life. It is the natural conclusion from the evidence thatUkku Menika, with the consent of the grantor, accepted the gift forherself and her children. The District Court finding that there wasno fidei commissum, and that, even if there was a fidei commissunt,there was no acceptance of the gift on behalf of Kachchi’s children,dismissed the action. I think that both findings were wrong.
The only other point argued was that the defendants had acquireda prescriptive title. But, as the District Judge rightly said, if theplaintiffs’ rights did not accrue until the death of their mother in 1901,no prescriptive title was acquired against them by possession sincethat date.
In my opinion, therefore, the decree of the District Court shouldbe set aside and judgment entered for the plaintiffs, declaring themto an undivided half of the property, and for possession of that half,and for Rs. 270 damages, which is the amount agreed on by counselon both sides, and Rs. 7'50 further damages from the date of actionto the date of restoration of possession, and for the costs of the actionand of the appeal.
Grenier A.J.—Agreed.
♦
.Appeal allowed.