DIAS v. KAITHAN et al

DIAS v. KAITHAN et al

D. C., Colombo, 7, 223.

 

Fidei commissum-Gift to children not yet born.

A gift in the following terms: -" The above properties, movable " and immovable, I gift to K and his sister P, the children of my " sister, chiefly to be possessed by them from this date, and that in " future neither I nor my heirs could at any time revoke or alter " this deed, nor do we can (sic) dispute it; but the children of my " said sister chiefly can possess, and their children and grand-" children in generations, "-held, not to create a fidei commissum, but that the gift was one to a class composed of the named donees and their uterine brothers and sisters then in being, and those who might come into being, each to have his or her share, free to dispose of the moment that it vested, the share vesting on the child on its coming into existence.

Quaere, however, whether the law allows a gift to children en ventre or not en ventre and unborn.

THE facts of the case sufficiently appear in the judgment.

Wendt and Pereira, for appellant.

Sampayo, for respondents.

18th August, 1896. Withers, J. -

It seems to me difficult to construe this deed of gift without knowing the circumstances existing at the date of the donation, and the events which have happened since. It is a gift in presenti for good cause of certain movable and immovable properties (described in the documents) " to one J. M. Don Kaitan Appuhami and his " sister J. M. Dona Prolentinahamine, the children of my sister " before referred to, " chiefly to be possessed by them and their uterine "brothers and sisters by making a correct division of shares, or to " do anything they please with them; and I, the said donor, have " empowered all the children of my said sister to be possessed by " them from this date, and that in future neither I nor my heirs " could at any time revoke or alter this deed, nor do we can (sic) " dispute it, but the children of my said sister chiefly can possess, " and their children and grandchildren in generations. " The ordinary meaning of uterine is born of the same mother but by a different father, but this may be an incorrect translation, and uterine may mean here born of the same womb by the father of the two named children and no other father. Were there any children in existence begotten by a former father of the named donees' mother ? Was any child era ventre of the parents of the donees at the time of the deed of gift ? If " uterine " here means children of the same womb by the same father, was the next child conceived after the date of

the gift ? What children has the mother borne since, and who have had possession of the movables and immovables?

Is this a gift to an existing class, i. e., to two living donees and a child en ventre, or is it a gift to the named donees and any brother or sister who may be conceived and born alter the date of the gift, and then as each member of the class comes into being, is he immediately vested under this instrument with his share of the donated properties ?

Again, can there be a gift to a child en ventre or not en venire ? Or again, is this a gift by way of fidei commissum to the named donee8 and other children who may be born during the marriage of the named donees' parents, or who may be born of the same mother by a subsequent marriage or marriages ? As regards the question of fidei commissum, the District Judge has held that it is not necessary that there should be restrictive or prohibitive words against alienation in order to constitute a fidei commissum.

He compares the terms of this instrument with the terms of an instrument declared by this Court to constitute a fidei commissum -the words there were, " shall and may not sell or alienate, but " be possessed by her children and their descendants "-and says that the language of the present instrument is much more strong and clear than the language just recited.

I take th

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