Present: Bertram C. J. and Jayewardene A.J.

FERNANDO et al v. FERNANDO.

106-D. C. Colombo, 10,034.

    Fidei commission-Gift to daughter and son-in-law-After their death to their children-Death of daughter-Rights of children.

Where by a deed of gift property was given to the daughter and the son-in-law of the donors, subject to the following condition :

" That the said C. D. and M. F. or either of them, shall not sell, mortgage, or otherwise alienate or encumber the said premises . . . . but shall possess them and take and enjoy the rents, profits, and income thereof, during their natural life, and upon their death, the said premises shall devolve absolutely on their lawful children."

And where the daughter died, leaving her surviving her husband and a child.

Held, that the child acquired no right to the property, until the death of both her parents.

ACTION by the first plaintiff for the recovery of a sum of Rs. 10,000 being the value of a half-share of the rents and profits of certain lands and premises, which formed the subject matter of a deed of gift No. 2,905 dated December 16, 1889, by which Johanna Fernando and Francis Dias gifted them to their daughter Carlina Dias and her husband, the defendant. The material parts of the deed of gift are as follows :-

" Unto the said Carlina Dias and Martin Fernando their heirs, executors, administrators, and assigns for ever subject to o a life rent or possessing interest in our favour, which we hereby expressly reserve to ourselves, and the survivor of us during the term of our and each of our natural life, and subject also to the following condition, that the said C. D. and M. F. shall not sell, mortgage, or otherwise alienate or encumber the said premises .... but they shall only possess the said premises and take and enjoy the rents, profits, and income thereof, during their natural life, and upon the death, the said premises and every part thereof shall devolve absolutely on their lawful children."

Carlina Dias died on January 18, 1897, leaving her surviving her husband the defendant, and her only child the first plaintiff. The plaintiff claimed that on the death of her mother she became entitled to a half-share of the rents and profits of the lands and premises. The learned District Judge held, that the plaintiff's right to possess did not vest till the death of the defendant.

C. S. Rajaratnam (with him Chas. de Silva), for plaintiff, appellant.

Samarawickreme (with him Tisseverasinghe), for defendant, Fernando respondent.

September 10, 1924. BERTRAM C.J.-

This case discloses a point of importance with regard to the interpretation of deeds of fidei commissum. The facts are very simple. Johanna Fernando and Francis Dias, husband and wife, by a fiduciary deed of gift transferred certain properties, subject to the reservation of a life interest in their favour, to their daughter Carlina Dias and her husband Martin Fernando, subject to a fidei commissum " on their death " in favour of their lawful children. There was thus a present gift to Carlina Dias and her husband subject only to an usufruct. As a matter of fact, Carlina Dias died on January 18, 1897, thus predeceasing her father, so that her interest under the deed never became an interest in possession. This circumstance, however, does not affect the problem we have to consider, because even before her death, she had a vested interest. The question is, what happened on her death ? Did her interest in the property devolve upon her husband, or did it either (a) by virtue of the terms of the deed devolve upon her sole child, the first plaintiff, or (6) did it pass by inheritance to that daughter either alone or in conjunction with her father Martin Fernando ?

The question is a question of the intention of the donors as expressed by the terms of the deed. Did they intend that their daughter Carlina Dias and her husband under the deed should ta