TIAGARAJA et al. v. TAMBYAH

TIAGARAJA et al. v. TAMBYAH.

D. C., Colombo, 10,759.

Donation-Construction of deed of gift-Intention of grantor.

Where T gifted a land to his son S with full dominium and after him to S's son S T, with reversion to himself should he survive his son and grandson, and where it was provided in the deed of gift that, if S contract a second marriage, his child or children by such marriage shall at S's death become entitled to a share in the said property equally with S T, and where S contracted a second marriage and had several children thereby, held, that the intention of the grantor was to give to the child of the first bed one-half of the property, and to the children of the second bed the remaining half.

IN this action plaintiffs prayed for a declaration that six of them, as the grandchildren of one Tambyah Mudaliyar, deceased, are entitled with the defendant to a one-seventh share of two houses in Colombo. The facts of the case were not disputed, and the only question for consideration was as to the construction of certain words used by the deceased owner in the two deeds relating to the two houses in question.

It appeared that one. Tambyah Mudaliyar executed on the 17th July, 1893, two deeds, by which he granted to his son Suppramanian a life interest in the two houses after the grantor's death. Each of these deeds contained seven conditions and provisos, only one of which was material to the present issue. At the date of these deeds Suppramanian was a widower, and had an only child, viz., S. Thambyah, the defendant. One of the clauses of the deeds made the defendant the reversioner in fee after the death of the grantor and life tenant. The sixth proviso, however, stated that, if Suppramanian should contract ft second or any subsequent marriage, then " his child or children by such " marriage shall at his death become entitled to a share in the " said property equally with the said S. Thambyah " (defendant).

The District Judge held that these words meant that defendant should take one moiety, and all the plaintiffs together the remaining moiety; and that the distribution was to be per stirpes; and he dismissed plaintiffs' action with costs.

Plaintiffs appealed.

Layard, A.-G. (with Wendt), for appellants.

Dornhorst (with him Sampayo), for respondents.

Cur. adv. vult.

4th September, 1800. Withers, J.-

The question in this case is, like many legal questions, easier to ask than to answer. A grandfather donated certain property to his son Suppramanian Mudaliyar for life, and to his grandson Suppramanian Tambyah with full dominium, with reversion to himself should he survive his son and grandson. But the deed contain this proviso: " If the said (son) shall contract a second or any subsequent marriage, his child or children shall at his death become entitled to a share in the said property equally with the said Suppramanian Tambyah, but neither his "second wife nor any subsequent wife, nor his heirs, nor any other person, shall be entitled to any share in such property at any time."

Suppramanian Mudaliyar married a second time leaving issue, and the question is whether the child of the first bed is to take one moiety of the property and the children of the second bed the other moiety, or whether the children of the two beds are to take share and share alike per capita ? The Acting District Judge is not disturbed by any doubt on the matter, and is unable to see that there can be any reason for doubt. He has declared that the donor's intention was to give the grandson Suppramanian Tambyah, who was alive at the date of the donation, half the estate, and to let the children of the second bed, if any, take the other half. The language of the will is certainly capable of bearing the District Judge's construction.

There is very little in the context to assist us. Both parties argued that the proviso following the one quoted favoured their views. This gave the property dire

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