031-NLR-NLR-V-52-VALLIPURAM-et-al.-Appellants-and-GASPERSON-et-al.-Respondent.pdf
1950Present: Jayetileke C.J. and Swan J.VALLIPURAM et al., Appellants, and GASPERSON et al., RespondentsS. C. 164—D. C. Point Pedro, 2,850
Fideicommissum in favour of family—Gift inter vivos—Acceptance by fiduciaryalone—Enures to benefit of fideiconvmissaries—Fideicommissum residni.
A husband gifted by deed certain lands to his wife R subject to the conditions(a) that after R’s death the lands should devolve on his three children, (b) thatR should pay the principal and interest due on two mortgage bonds executedby him.
The deed of gift was accepted by R on her own behalf but it was not acceptedby or on behalf of the children.'
Held, (i) that the fideicommissary gift involved a benefit to a family and;therefore, the fiduciary’s acceptance of it was sufficient acceptance on behalf ofthe fideicommissaries.
(ii) that R did not have the power, under the deed, to alienate the propertiesin order to pay the mortgage debts. The payment of the debts was a personalobligation which R should discharge- out of her own money.
A PPEAL from a judgment of tlie District Court, Point Pedro.
H. V. Perera, K.G., with. C. Chellappah, for the plaintiff appellant.
H. W. Tambiah, with E. R. S. R. Coomarasivamy, for the 2nd defendantrespondent (substituted in place of the 1st defendant).
Cur. adv. wait.
September 29, 1950. Jayatileke C.J.—
This is an action for a declaration of title to two lands called Aravara-vayal and Anaivilunthan. One Thambipillai was the original owner ofthe said lands. By deed PI of 1930 he donated the said lands and sixteenother lands belonging to him to his wife Rasathangam. PI provided
That- Rasathangam should pay the balance interest and the princi-
pal due on two mortgage bonds executed by him in favour ofN. G. C. Solomon and K. Sellappa.
That Rasathangam should have the right to possess and enjoy
the lands donated by him and after her death the said landsshould devolve on his three children Tangatchi, Anamuttu (3rdplaintiff) and Pethipillai in equal shares.
The gift was accepted by Rasathangam on her own behalf but it was notaccepted by or on behalf of the children…
By deed 1D2 of 1932 Rasathangam transfer-red Aravaravayal and AnaLvilunthan to the 1st and 2nd defendants who by an indenture of lease1D7 of 1945 leased the same to the 3i-d defendant. There is a recitalin 1D2 that a sum of Rs. 475 out of the consideration was paid to .one
G. C. Solomon Selladurai in part payment of a mortgage bon'dNo. 8810 dated June 1, 1925, by which the land Anaivilunthan had beenmortgaged..
Pethipillai died before 1939 unmarried and issueless. Rasathangamdied in tbe year 1939. By P2 of 1946 Tangatchipillai transferred ahalf share of the said lands to the 1st plaintiff. The 1st and 3rd plaintiffsclaimed' to be entitled to the said lands on the footing that PI created a■valid fideicommissum. The 1st and 2nd defendants filed answer alleging■that PI was not accepted on behalf of Tangatchi and the 3rd plaintiffand therefore no title passed to them on the death of Rasathangam andfurther that Rasathangam was entitled to sell the lands donated to her todischarge the mortgage bonds in favoua- of Solomon and Sellappa.
The District Judge held that PI created a valid fideicommissum residuiand that Rasathangam had the right to alienate the lands donated to her.
Mr. Tambiah did not contest tha°t PI created a valid fideicommissumbut he urged that the donation was not accepted on behalf of the fidei-commissaries and therefore no rights passed to them. He urged furtherthat Rasathangam was given the implied power by PI to alienate theproperties donated to her to pay off the mortgage debts due to Solomonand Sellappa, and that, in any event, the 1st and 2nd defendants wereentitled- to claim the amounts paid out of the consideration on 1D2 to themortgagees on the bonds executed by Thambipillai.
The questions that arise for our consideration are (1) whether the accep-tance of the gift by Rasathangam enured to the benefit of Tangatchiand the 3rd plaintiff, and (2) whether Rasathangam had the power toalienate the properties donated to her to pay the mortgage debts due toSolomon and Sellappa.
As a general rule acceptance of the gift by or on behalf of the fidei-commissary is necessary under our law to render it valid in his favour.The only exception to the rule is where the fideicommissarv gift involvesa benefit to the family in which case acceptance by the fiduciary enuresto-the benefit of the fideicommissaries.
In Mudaliyar Wijetunge v. Dmvalage Rossie 1 where all the earlier deci-sions were reviewed, it was held that a gift to A for life and on his deathto his children involves a benefit to a family. I would hold that PIinvolves, a benefit to the family and that Rasathangam’s acceptance ofit is sufficient acceptance on behalf of her children.
PI does not give Rasathangam the right to alienate the propertiesexpressly or by implication. It does not say that on her death whateveris left should go to the children. All that it says is that she should paythe debts due to Solomon and Sellappa. That, in my opinion, is apersonal obligation which she should discharge out of her own money.
It is not possible for us to consider the claim for compensation put'forward by 'Mr. Tambiah at the argument before us as no such claim wasmade in the Court below. But we think that, in all the circumstancesof the case, the right should be reserved to the defendants to institute anaction for the recovery of any compensation that may be due to them, ifso advised, and we would order accordingly.
We would set aside the decree entered in this case and allow the plain-tiff’s appeal with costs here and in the Court below.
Swan J.—I agree.
Appeal allowed.