Assistant Government Agent Kandy V. Kalu Banda Et Al

1921 Present: De Sampayo J.

ASSISTANT GOVERNMENT AGENT, KANDY, v.
 KALU BANDA et al.

187-C.R.Teldniya, 4,833.

Kandyan law-Gifts in the nature of fidei commissum not contrary to Kandyan law.

Gifts in the nature of fidei commissa are not contrary to the spirit of the Kandyan law. There is no principle of Kandyan law which prevents a Kandyan from giving a limited interest to one person, and providing that at the termination of that interest the property should vest in another person.

THE facts appear from the judgment.

Samarawickreme (with him Croos-Dabrera), for ninth, tenth, and eleventh defendants, appellants.

M. W. H. de Silva, for sixth, seventh, and eighth defendants, -respondents.

Cur. adv. vult.

September 30, 1921. DE SAMPAYO, J.-

The point for consideration is the construction of a Kandyan deed of gift. The donor by the above deed gifted certain lands to his two nephews, Kalu Banda and Ukku Banda. As the donees were minors, power was given to their parents to take care of and possess the lands daring their lifetime, and it was provided that " even when both of the said Kalu Banda and Ukku Banda reach

their full age, they could only enjoy the produce without giving them (the lands) to mortgage security or transfer, and after the  death of the said Kalu Banda and Ukku Banda, their children, grandchildren, and up to the existence of their generation to inherit and possess the said premises uninterruptedly for ever." As some stress was laid on the word " inherit " at the argument Agent, of the appeal, I have looked into the original, of which the above is a translation. There is no word corresponding to " inherit." The sentence should read more properly as " possess in paraveni," which has the signification of possessing "in full ownership." The translation, though not perfect, substantially reproduces the sense of the deed. There is no doubt that the deed creates a fidei commissum ; that is to say, it grants the property to Kalu Banda and Ukku Banda for life and thereafter to their children and other descendants absolutely. But it is contended that the deed should not be construed on the principles of the Roman-Dutch law, to which fidei commissa are peculiar, that fidei commissa are unknown to the Kandyan law, and that, therefore, the conditions in the deed should be ignored and the immediate donees should be taken to have acquired absolute title to the property. It is true that the ordinary text books on Kandyan law do not specifically treat of fidei commissa or gifts subject to similar conditions. But it should be remembered that these text books are not institutes of the Kandyan law, and do not profess to deal with the whole law as a system. Nor is there anything in these text books or anywhere to show that gifts in the nature of fidei commissa are contrary to the spirit of the Kandyan law. In this case, as I ventured to remark in the course of the argument, it is not a question of applying any particular rules of the Roman-Dutch law to the construction of this deed of gift. It is rather a question of the right of an owner of property to dispose of it according to his pleasure. I am not aware of any principle of the Kandyan law which prevents a Kandyan from, giving a limited interest to one person, and providing that at the termination of chat interest the property should vest in another person. Such a disposition would, of course, be called in the Roman-Dutch law a fidei commissum. It may not be a proper expression to describe a similar disposition by a Kandyan. It is, however, a convenient expression, and if the thing itself may be done among the Kandyans, the Court will not hesitate to give effect to it, simply because the disposition may also amount to a fidei commissum. During a century or more of administration of the law applicable to Kandyans there must have been numerous cases in which deeds of gift of this description formed the bas

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