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ANNAMAL v. SAIBO LEBBE
NLR6V163
ANNAMAL v. SAIBO LEBBE.
D. C, Batticaloa, 1,935.
Last will-Action by fidei commissarii-Power of fiduciary to alienate trust property-Sanction of the Court-Procedure under " The Entail and Settlement Ordinance, 1876. "
Where a person made his last will and provided as follows: -
"I direct that all my immovable property be managed and possessed upon trust by my said executors and trustees, and that from the nett produce thereof such of my sons as shall act as my executors and trustees shall enjoy two shares, and my other sobs and daughters and their mother shall enjoy one share each for and during the term of their respective natural lives, provided that neither my said wife nor any of my said children shall be at liberty to encumber, sell, or in any other ways and means to alienate or dispose of my said immovable property, &c. And further, that the same shall be not liable for the debt already contracted by my said children or hereafter to be contracted by them or by their said mother, and provided also that neither the male nor female child or children of any of my said sons, nor the son or sons of any of my said daughters, shall be entitled to any share or shares, portion or portions, of the produce of the said immovable property or to the property itself and the several and respective heirs female of the body and bodies of my said daughters shall at the death of their respective mothers be entitled to, and I hereby appoint them sole and absolute heirs of, all my said immovable property," &c.,- and some of the daughters of the testator mortgaged, with the approval of the District Court, one of the lands of the testator for the purpose of paying out of the loan the taxes due by the estate and the charges necessary for maintaining and improving the immovable property of the estate,-
Held, that the will created a fidei commissum; that the daughters could not mortgage any property even to pay taxes, without obtaining the sanction of the Court in the special manner provided by sections 4, 6, and 9 of " The Entail and Settlement Ordinance,. 1876 "; that the sale of the mortgaged property in execution was invalid; and that the plaintiffs, as fidei commissarii, were entitled to their share of the property in question.
THE plaint alleged that one Robert Kungiliyapodi Vanniya, who died in September, 1858, leaving him surviving his widow, four sons, and five daughters, made a last will bequeathing his movable property to his widow and children, and settling his immovable property on certain trustees for the benefit of his widow and children, upon certain terms and conditions; that the immovable properties devised in trust were, after the death of the testator, in possession of one of the executors and trustees named Kadiramapodi till his death in 1871; that thereafter his brother Alvapodi held the estate in trust till 1879; that upon his renouncing the trusteeship the four daughters of the testator undertook
the trusteeship; that the first and second plaintiffs were the daughters of Valliammai, who was the second daughter of the testator; that upon the death of Valliammai in 1896 the first and second plaintiffs became, in terms of the last will of the testator, the lawful owners of an undivided one-fourth share of all the immovable property devised in trust; and that the defendant had been in unlawful possession from March, 1896, of one-fourth share of a certain house and ground situated in Puliantivu. The plaintiffs prayed that they be declared lawful owners of the said one-fourth share.
The defendant pleaded that he was justified in possessing the said share of the house and ground in question by virtue of a chain of title resting on the following documents: (1) a mortgage executed in favour of one Meidin Lebbe by the plaintiff's mother Valliammai and certain of her other daughters in 1879; (2) a deed of conveyance granted to the said Meidin Lebbe in 1882 by the Fiscal, who ha
