018-NLR-NLR-V-24-THE-GOVERNMENT-AGENT-,-CENTRAL-PROVINCE,-v.-SILVA-et-al.pdf
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*922.Present : De Sampayo and Potter JJ.
THE GOVERNMENT AGENT,' CENTRAL PROVINCE,
v. SILVA et al.
1,9—D. C. (Intif.) Kandy, 300.
Fidcicommissum—Deedofgift—Prohibitionagainstalienation—
Property to go after death of donees to their children, grandchildren,-'or their laioful heirs—Right of toidotc of a donee to claim benefit underthe deed.
A deed of gift after prohibiting the immediate donees (his threechildren) from alienating the property provided that after theirdeath it should devolve oA their children, grandchildren, or theirlawful heirs.
Held, that the deed created a – fidei commission, and that „theaddition – of the words “ or their lawful heirs ” did not make the
4 v* « ' –
class of .'persons to be benefited obscure. The first object of thedonor’s munificence were the childrenandgrandchildren. A
widow of. one of the donees was held not to be1'a beneficiary as longas there were descendants.
T
HE Government Agent, Central Province, in terms of the LandAcquisition Ordinance, acquired a portion of land called
Naranwitakumbura and brought a sum of Rs. 2,789.47 into Courtas compensation. The third, defendant-appellant claimed a one-sixth share of the said sum by right of inheritance as widow ofJames de Silva, deceased^ who with two others, the first and seconddefendants, became entitled to the said land by virtue of deed No.9,161 of July 9, 1910. James de Silva left one child, the fourthdefendant.
The deed in question was as follows: —
No. 9,161.
Know all men by these presents:I. the undersigned, Hettihewage
Francis de Silvu. alias Hcttihewage I'unchiappu, hereinafter calledFrancis de Silva of Gampola, in Udapalata, in consideration of the loveand affection t bear towards iny children Hettihewage James de Silvaalias Siigathapala de Silva, Hettihewage Charles de Silva, and Hetti-hewuge Samuel de Silva, all of Gampola, and for various other impor-tant reasons do hereby gift, subject to the under-mentioned conditionsand stipulations, the lands mentioned .in the under-mentioned schedulesmarked A and B. together with the unpaid balances due upon deedsNos. 266 and 5,*267 dated August 13, -1903, attested by F. C. Loos.Notary Public, deed No. *27 dated May 30, 1907, attested by A. V. vanLangeitberg, Notary Publif, and deed No. 4,542 dated August 18, 1909,attested by R. F, de Sanaa, Notary Public, of the value-of Rs. 50,000.
N.
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Therefor** it is hereby stipulated-that the said Hettihewage James deSilva alias Sugathapala de Silva, Hettihewage Charles de Silva, andHettihewage Samuel <le Silva shall, in future, only possess the landseverything appearing in schedule A herein, but shall not subject thesame to any sale, security, mortgage, or lease, nor do any act calculatedixi vary or alter their title or rights, and (bat after their deaths the saidproperty shall devolve on their children, grandchildren, or their lawfulheirs.r
Further, that until the debts due on the mortgage bonds Nos. 5.266,5,267 . 27. and 4,542 shall hive been fnlly paid and discharged, thedonees shall not appropriate ter their own use the income or any portionof the income of the other lands, except the held called Naranwita-ktrmbura mentioned in schedule A, and the creditors shall he allowedto receive such income or profits in payment and discharge of the dehts.
Attested by M. Kotalawala.
Dated July 9. 1910.Notary Public.
Somarawickreme (with him Ooonesekera), for the appellant.
June 1, 1922. De Sampayo J.—
This is a contest to a fund in Court, being the amount of com-pensation paid by the Crown for the acquisition of a portion of land.The land would appear to have belonged to a man named FrancisSilva. He, bv deed of gift dated July 9, 1910, gifted the land to histhree sons James, the first defendant, and the second defendant.The gift was subject to a certain condition which is the subject ofdispute in this case. James died leaving his widow, the thirddefendant. The third defendant appears to have made an appli-cation to the Court to draw one-sixth of the fund in Court, on theground that she was entitled, after tfye death of her husbandJames, to the share claimed under the deed of gift of Francis Silva.The District Judge decided that she was not entitled under thedeed of gift, and dismissed her claim. The condition in the deed ofgift, which is in the Sinhalese language, is as follows: After pro-hibiting the immediate donees from alienating or otherwise disposingof the property, it provided that after their death “ the said propertyshall devolve on their children, grandchildren,, or their lawful heirs."The third defendant-appellant strongly relies on the last words ofthe passage just quoted, and contends that as the widow of James-,as they were married since the Ordinance of 1876, she is an heir ofJames and is one of the beneficiaries under the deed of gift. Butwe must give effect to the whole condition, and have in view' thefact that the first objects of the donor’s munificence were thechildren and grandchildren. .. If • the contention of the appellantis right, she would be practically^ ignoring the children and grand-children nominated under the gift.
1922.
7V«t Qovern-■ntp,nt AgentjCentral *Provnce,v. Silva
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1982.
De SampavoJ.
The Govern-ment Agent,CentralProvince,
O. Silva
Mr. Samarawickreme. for the appellant, however,^ contends^ thatat all events the expression “ or their lawful 'heirs ” makes it veryuncertain and doubtful as to what class q| people the donor intendedto benefit, and that, therefore, the title is .absolute, and "the rightsof the parties should be determined as though there were no fideicotnmissum created by the gift. But I do not regard the provisionin this gift as being so uncertain and obscure as contended. Thereis a clear intention on the part of the donor to benefit his descendants.There is no doubt that the Sinhalese notary who attested the deedadded these words, probably without appreciating, the possibledifficulty he wag creating. But after all the word ** heirs ” is veryoften* used, especially in deeds attested by Sinhalese and T&xnilnotaries, to mean *‘ descendants," and in the context I am inclinedto think that the expression conveys • the meaning that the childrenand grandchildren and other lawful descendants of the donees arethe beneficiaries. Moreover, even if the word " heirs " is not to betaken in the natural sense, but in the strictly legal sense, it is possibleto hold, that the donor provided that in default of children and grand-children, the heirs generally of .the donees should get the property.In either point of view' the' present appellant would appear not to beentitled to any share of the proceeds. The case of Cornells v.Wdttuhamy ' which was cited to the District Judge has no bearingon the present question,, as the District Judge himself rightlyremarked. I am indebted to counsel at the Bar for a reference toanother case, namely, Umiatty • v. Ramiah,2 in which the word“ heirs " used in a'.last will was constructed in the. same way as Ihave above suggested., and a widow of a certain legatee was held notto come under, that designation and to be entitled to the propertyshe claimed. I think the decision of the District Judge was right,and I would dismiss the appeal.
Porter J.—I agree.
Appeal dismissed.
1 {1991) 22 N. L. II. 77.
* C. W. R. 26.