Gunawardene V. Visvanathan

Present : Porter and Schneider JJ. 1922.

GUNAWARDENE v. VISVANATHAN,

102-D. C. Galle, 19,083.

Fidei commissum-Usufruct-Property left to wife subject to condition that she shall not sell, &c, but only hold and possess the same- Civil procedure Code, s. 218-Seizure of interest of fidei commissarius.

The words of a last will were as follows: " I give and devise all my immovable property unto ray wife, subject, however, to the condition that she shall not sell, mortgage, or encumber, or in any wise alienate the same, but that she shall only hold and possess the same during her lifetime, and after her death the same shall. devolve in equal shares on my two children, H and S.

Held, that the will created a fidei commissum, and not a mere usufruct in favour of the testator's wife, and that during her lifetime the interests of H cannot be seized in execution,

THIS was an action under section 247 of the Civil Procedure Code for a declaration that a half share of the house in question was not liable to :be sold under the writ of execution issued in D. C, Colombo, 687/1920, at the instance of the defendant against the plaintiff's son, Paulus Hector.

The house belonged to the plaintiff's late husband, K. Sinno Appu, and he dealt with it by his last will (see below).

The plaintiff's case was that by the last will the house was given to her subject to a fidei commissum in favour of Paulus Hector and his brother. The defendant's case was that the last will did not Create a fidei commissum, but that the plaintiff obtained on it only a usufruct. The District Judge dismissed plaintiff's case.

The last will was as follows :-

A.( P 1).

No. 353.

This is the last will and testament of Kiri Kankanange Singho Appu de Silva of Patabendimulla in Arabalangoda in the Wellaboda pattu of Galle District.

I do hereby revoke, cancel, and annul all last wills and testaments and writings of testamentary nature, if any, heretofore made by me.

I give and devise all my immovable property of what kind or nature-soever wherever found or situate in possession or expectancy in remainder or reversion unto my lawful wife, Andrawas Patabendi .Josie de Vas Gunawardene Haminey, subject, however, to the condition that she shall not sell, mortgage, encumber, or in any wise alienate the same, but that she shall only hold and possess the same during her lifetime, and after her death the same shall devolve in equal shares, on my two children, Paulus Hector Lionel de Silva and Lionel Shelton de Silva.

I bequeath all my money and all other movable property unto my wife, the said Andrawas Patabendi Josie de Vas Gunawardene Haminey, for her absolute use and benefit.

I do hereby nominate, constitute, and appoint my wife, the said Andrawas Patabendi Josie de Vas Gunawardene Haminey, as the executor of this last will and testament.

In witness whereof, I, the said Kiri Kankanange Singho Appu de Silva, have set my hand to two of the same tenor and date as these presents at Patabendimulla in Ambalangoda on this Twelfth day of February, One thousand Nine hundred and Sixteen.

Witnesses: Signed and attested.

Samarawickreme (with him M. W. H. de Silva), for appellant.

E. W. Jayawardene (with him H. V. Perera), for respondent.

November 7, 1922. PORTER J.-

This was an action under section 247 of the Civil Procedure Code for a declaration that a half share of a house is not liable to be sold under the writ of execution issued in D. C, Colombo, 687/1920, at the instance of the defendant against the plaintiff's son, Paulus Hector. The house belonged to the late husband of the plaintiff, who dealt with it by his will. The plaintiff's case was that by her husband's last will the house was given to her,- subject to a fidei commissum in favour of Paulus Hector and his brother. The defendant's case was that the last will did not create a fidei commissum, but that by it the plaintiff obtained only a

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