BABEY NONA et al. v. SILVA.

Present: The Hon. Mr. A. G. Lascelles and Mr. Justice
Middleton.

BABEY NONA et al. v. SILVA.

D. C., Negombo, 6,172.

Fidei Commissum property-Partition-Effect of partition decree- Conclusiveness-Fidei commissarii how far bound-Ordinance No. 10 of 1863.

Property burdened with a fidei commissum may be partitioned under the provisions of Ordinance No. 10 of 1868, but such partition has not the effect of destroying the fidei commissum. It only sets apart a specific portion of the common estate to which the rights of the fidei commissarius attach in severalty.

A partition effected between the fiduciarii, whether by judicial decree or by mutual agreement, binds the fidei commissarii, and cannot be reopened by them when their interests accrue.

THIS was an action rei vindicatio.

The plaintiffs alleged that one Maria Silva by deed No. 490 dated 19th August, 1870, donated the land in dispute to her three children, to wit, Diyonis Silva, Manuel Silva, and Bastian Silva, subject to a fidei commissum in favour of their descendants; that the said land was partitioned in case No. 5,104 of the District Court of Negombo and the portion B was allotted to Diyonis Silva, while the portion A was allotted to Manuel Silva (defendant); that lot B was sold under writ against Diyonis Silva and purchased by the defendant; that Diyonis Silva died a few months prior to the action, leaving five children, to wit, the plaintiffs and two others; that on the death of their father lot B came to the plaintiffs under the fidei commissum. The plaintiffs prayed for a declaration of title to three-fifths share of B.

The defendant denied that the deed of gift created a valid fidei commissum; and alleged that, even if it did, the effect of the partition decree was to destroy the fidei commissum and to give absolute title to Diyonis Silva to lot B.

The deed of gift No. 490 contained the following clauses: -

" That I, in consideration of the natural affection which I bear to my three children Migelhewage Diyonis Silva, Pin Manuel Silva, and Pin Bastian Silva of Udayartoppu aforesaid, and in consideration of divers other good reasons, have transferred, assigned, and made over as a gift unto the said three persons or their lineal

descendants from generation to generation, subject to the hereinafter- mentioned conditions and enactments, the following four portions of Lands and houses standing thereon of the value of two hundred and twenty-four pounds and ten shillings of the lawful money of Ceylon, to wit: -

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" The said Diyonis Silva, Manuel Silva, and Bastian Silva shall not sell, mortgage, or alienate or lease the above-mentioned lands or any portion thereof, and shall not sell the said lands for a debt of any one of them. It is ordained that all such acts shall become null and void.

" Therefore the said donors, Diyonis Silva, Manuel Silva, and Bastian Silva, have become owners for ever of the said lands and their appurtenances, so that they and their lineal descendants from generation to generation shall, subject to the aforesaid conditions and enactments, possess the same in equal shares. And I ordain that they shall redeem the mortgage effected by me of the portion of Kosgahawatta and the houses standing thereon first mentioned herein, and the deed for the said land bearing No. 22,095 hypothecated therewith; with the exception of the said mortgage no act has been done whereby any person may hereafter set up any claim to the said lands.

" Promising that I hold myself responsible as against all persons objecting to these presents and to pay compensation, I have hereby transferred, assigned, and set over as a gift in manner aforesaid."

The District Judge (A. de A. Seneviratne, Esq.) dismissed the plaintiffs' action. The plaintiffs appealed.

H. Jayewardene (with him G. Koch), for them.-The deed creates a valid fidei commission. The intention of the donor is quite app

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