DANTUWA v. SETUWA et al.

 

Present; The Hon. Sir Joseph T. Hutchinson, Chief Justice,

and Mr. Justice Middleton.

 

DANTUWA v. SETUWA et al.

 

D. C., Kandy, 18,125.

 

Deed of gift-Construction-Life interest-Absolute title-Proviso inconsistent with absolute gift.
 

D by deed of gift " gave, granted, and conveyed by way of gift " to his wife U. and their four children, certain lands subject to the following proviso: " It has been hereby covenanted that my wife Ukku and children, N, S, T, and U, all five aforesaid, shall hereafter render to me all assistance and comforts of life, while I continue to live in this world, and that after my demise my said wife and four children shall be entitled to have and to hold all the said several high and low grounds and houses and plantations at their disposal for ever, but that my said wife, Ukku, having possessed her share of the said several premises, shall, at the approach of her death, grant and convey the same unto my said four children, and   shall   not   make   the   same   over   to   any   outsider."

    Held, that, under the said deed, U, the wife, was absolutely entitled to one-fifth share, and was at liberty to dispose of it as she pleased.
   
    Held, also, that the proviso in the deed of gift being inconsistent with the previous absolute gift in the same deed could not be given effect   to.

 

APPEAL by the plaintiff from a judgment of the District Judge of Kandy. The facts sufficiently appear in the judgment of the Chief Justice.

 

B. L. Pereira, for the plaintiff, appellant.

 

Van Langenberg, for the defendants, respondents.

Cur. adv. vult.

 

December 24, 1907. HUTCHINSON C.J.-

 

            This is a partition action, and the question now for decision is, how to construe a proviso in a deed of gift dated June 30, 1871. By that deed P. Dantuwa " gave, granted, and conveyed by way of gift " to his wife Ukku and their four children certain lands; and then comes the proviso: " It has been hereby covenanted that my wife Ukku and children, Nanduwa, Setuwa, Tikira, and Ungu, all five aforesaid, shall hereafter render to me all assistance and comforts of life while I continue to live in this world, and that after my demise my said wife and four children shall be entitled to have and to hold all the said several high and low grounds and houses and plantations at their disposal for ever, but that my said wife Ukku, having possessed her share of the said several premises, shall, at the approach of her death, grant and convey the same unto my said four children, and shall not make the same over to any outsider."
 

Two of the children died in Ukku's lifetime, and she, after their death, by deed dated September 30, 1899, conveyed to one of the two survivors (who are the defendants) her one-fifth share.

        The plaintiff, claiming to be an heir of one of the deceased children, says that Ukku had no power to convey her share to one of the children; that her share was burdened with a trust in favour of all the four children. The first issue tried was, Did Ukku under the deed of gift get the fee simple or only a life interest?

    The District Judge held that she got the fee simple; and he construed the latter words of the proviso as being merely a " request " by the donor. The plaintiff appeals against that ruling.
 

The meaning and intention of a deed of gift have to be ascertained by first seeing what were the circumstances with which the donor had to deal, who the parties are, and what the subject-matter of the gift is, all of which in this case clearly appear in the deed; and then giving to the words their plain and natural meaning, or, if there are technicalities employed in it, giving them their technical meaning, unless a contrary intention is apparent. Applying this test here we find that the donor gives to Ukku one-fifth of the property to be at her disposal for ever, but then adds a proviso th

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