006-NLR-NLR-V-27-UDALGAMA-v.-MADAWALA.pdf
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Present: De Sampayo and Dalton JJ.
UDALGAMA v. MADAWALA.
294r-D. C. Kandy, 31,031.
Fidei commissum—Gift to wife and two daughters—Joint fidei commis-sion—Jus accrescendi.
Where a person gifted certain property to his wife and his twodaughters “to be held by them from generation to generation,”and where the deed further provided as follows :—
“ That my wife shall improve the said lands and possess thesame during her lifetime, but she shall have no rightwhatever to do anything el§e with the said lands.
“ That after the death of me or after the death of my wife, thesaid lands shall be possessed by my said two daughtersand their heirs and descendants uninterruptedly as aSahendu paraveni property, and deal with the sameaccording to will and pleasure.”
Held, that the deed created a valid fidei commissum in favourof the two daughters and their descendants, the mother havingonly a life-interest in the property.
Held, further, that the whole land was subject to a joint fideicommissum in favour of the daughters, and that on the death ofone daughter before the mother, her interest accrued to the survivingdaughter.
A
PPEAL from a judgment of the District Judge of Kandy.
Action for declaration, of title to a half share of a held calledUdadeniya, the original owner of which was one Punchirala. By deedNo. 896 dated September 17,1868, hegifted it to his wife, KiriMenika,and his two daughters, Muttu Menika and Tikiri Menika. The deedthen proceeded to provide as follows :—
“ That my wife, the said Kiri Menika, shall improve the said landsand possess the same during her lifetime, but she shallhave no right whatever to do anything else with the saidlands.
“ That after the death of me or after the death of the saidKiri Menika, the said lands shall be possessed by mysaid two daughters and their heirs and descendants unin-terruptedly as Sahendu paraveni property, and deal withthe same according to will and pleasure.”
1925.
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1925.
Odalgama
v.
Madawala
H. F. Perera, for defendant, appellant.
Drieberg, if.(7. (with him FetAevenam), for plaintiff, respondent.
/
May 25, 1925. De Sampayo J.—
In this case we have to consider the true construction of a certainold deed and determine whether it creates .a fidei commissum, andwho the beneficiaries are in the events which have taken place.One Punchirala was the owner of the field called Udadeniya. By •deed No. 896 dated September 17, 1858, which, on the face of it, isdescribed as “ deed of paraveni,” he gifted it to his wife, Kiri Menika,and his two daughters, MuttuMenika and Tikiri Menika, “to be heldby them from generation to generation as Sahendu paraveniThe deed then enumerates the lands gifted, and proceeds to provideinter alia as follows :—
“ That my wife, the said Kiri Menika, shall improve the said landsand possess the same during her lifetime, but she shallhave no right whatever to do anything else with the saidlands.
“ That after the death of me or after the death of the said KiriMenika, the said lands shall be possessed by my said twodaughters and their heirs and descendants uninterruptedlyas Sahendu paraveni property, and deal with the sameaccording to will and pleasure.”
The deed is not only of an old date, but is in the Sinhaleselanguage, and I have quoted the above passages from the translationfiled in the record. Jn my opinion the deed should not be construedin the point of view of the strict rules of conveyancing, but accordingto the intention of the grantor to be gathered from its substance.From the fact that the mother and the two daughters are namedtogether in the words of grant, it has been argued that each of themtook a one-third share of the lands. But the other parts of the deedmust be taken into consideration. Not only is the deed called a“ deed of paraveni” but the grantees are to hold the lands “ fromgeneration to generation as Sahendu paraveniThe intention of
The daughter, Tikiri Menika, predeceased Kiri Menika withoutissue, and Kiri Menika, on the footing that the deed gave one-thirdshare to each donee, believed that she inherited Tikiri Menika’s one-third share, and in 1876 gifted two-third shares to her two sons byanother husband, from whom the defendant claimed the saidshares. The plaintiff claimed a half share by purchase from UkkuAmma, the daughter of Muttu Menika. The District Judge gavejudgment for the plaintiff for the half share claimed by him.
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the grantor is that the lands should remain in the family, and beheld and possessed by the descendants of the grantor. Next it isnoticeable that the wife, Kiri Menika, should during her lifetimepossess not a share, but the entirety of the lands, and that the twodaughters and their descendants are to possess the same after KiriMenika. Further, Kiri Menika was prohibited from disposing ofthe lands, which after her death were to pass to the two daughtersand their descendants. To my mind it is clear that the deed createsa valid fidei commissum in favour of the two daughters and theirdescendants, the mother, Kiri Menika, having only a life-interestin the property.
Notwithstanding the probable mistaken view of Kiri Menika asto her rights under the deed, I think that effect should be given tothe plain intention of the grantor, Punchirala. The daughter, TikiriMenika, predeceased Kiri Menika without issue, and Kiri Menika,on the footing that the deed gave one-third share to each donee,considered that she inherited Tikiri Menika’s one-third share bydaru-urume, and in 1876 gifted two-thirds share to Appuhamy andKalu Banda, who were her sons by another husband. On the deathof Appuhamy, Kalu Banda sold to one Peter Silva, and by certainother deeds the defendant claims that interest. As alreadyindicated, Kiri Menika was under a misconception as regards herinterest under the original deed from Punchirala. She inheritedno share from her daughter, Tikiri Menika. The whole land wasthe subject of a fidei commissum in favour of Muttu Menika andTikiri Menika jointly, and on the death of Tikiri Menika it mustaccrue to the survivor, Muttu Menika. There is some doubt as towhether Muttu Menika predeceased her mother, Kiri Menika, or not,but the question is not of material importance, because she left adaughter, Ukku Amina, who would, in any case, take the propertyas fidei commissary under the original settlement. In these circum-stances, thedefendantgot nothing under the donees from Kiri Menika.
But Ukku Amma herself disposed of the land by certain deeds.In 1887 she sold half share to one Dingiri Banda who in his turnsold 1? to the Kalu Banda, already mentioned, so that the defendantmay claim that share from this source of title. In 1922 Ukku Ammasold the remaining half share to the plaintiff. The District Judgeaccordingly gave judgment decreeing a half share to the plaintiffand the other half share to the defendant. In my opinion thisjudgment is right, and not liable to be disturbed. I ought to saythat it was strongly pressed before us in appeal that as theexistence of a fidei commissum was not pleaded, and no issue as toit was stated, the District Judge should not have considered it orbased his decision thereon. I think the District Judge was rightin construing the deed, and as he gave both parties an opportunityto discuss the matter, the proceedings cannot be objected to.
I would dismiss the appeal with costs.
1925.
De SampayoJ.
Udalgama
v,
Madawala
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1025.
Udalgama
v.
Madawala
Dalton J.—
I have some doubt as to whether a Juki commissum is createdby the deed of September 17, 1858, but neither side is now preparedto argue otherwise. They both appear to be satisfied with thetrial Judge’s decision on that point, so I will leave the matterthere.1
On the assumption that the finding on this point was correct,I agree that the appeal must be dismissed. I have only to addthat even if no fidei commissum was created, the position andrights of the parties under the deed would not be such as are setout in the pleadings.
Appeal dismissed.