1927 Present: Fisher C.J. and Drieberg J.

SILVA v. SILVA.

299-D. C. Negombo, 1,354.

Fidei commissum-Mortgage by fiduciary and fideicommissary-Renunciation-Sale in execution-Civil Procedure Code, s. 218 (k).

A land, which was gifted to A subject to a fidei commissum in favour of B, was mortgaged by A and B. In execution of a decree on the mortgage bond the land was sold and bought by C.

In an action brought by the heirs of B to vindicate title to the land,-

Held, that C had good title, as the act of B in joining in the mortgage bond amounted to a renunciation of the rights of herself and her heirs under the fidei commissum.

Held, further, that the interest of B was an assured and certain interest, by which she was entitled to succeed to the property on the death of A, and was not of the nature described in section 218 (k) of the Civil Procedure Code.

ACTION for declaration of title to a land which was gifted by Francina Fernando by deed No. 17,076 of March 6, 1862, to her daughter Lucyhamy and Lenohamy the only child of Lucyhamy. The gift was subject to the condition that the donee was entitled to possess the land " without selling, mortgaging, or alienating the same in any manner whatsoever and that it should devolve on their children to hold and possess the same and to do whatever they pleased with it."

Lenohamy died on July 31, 1903, leaving as her heirs her children, the respondents, and Lucyhamy died on July 8, 1922. By bond of December 26, 1900, Lucyhamy and Lenohamy mortgaged the land with two Chetties, who assigned the mortgage to the appellant. The bond was put in suit, and in execution the property was bought by the appellant under Fiscal's transfer of December 30, 1905. The learned District Judge held that the interest of Lenohamy could not be sold in execution during the lifetime of Lucyhamy and gave judgment for the respondents.

Croos Da Brera (with Rajapakse), for defendant, appellant.- Lucyhamy, the fiduciary donee, and Lenohamy, the fideicommissary donee, both joined in the bond. The defendant is the purchaser on the sale held on the decree entered on the bond. All Leno Amy's interests passed on the bond. She was not bound by any prohibition. There was nothing left by her. The plaintiffs inherited nothing. Lenohamy had a vested interest and not

merely a hope of succession. A fidei commission created by a donation differs from one created by last will hi this respect (Mohamad Bhai v. Silva1). A vested interest in remainder can be alienated or renounced. Such an alienation or renunciation is not contrary to the policy of the law nor is it ineffectual to pass the rights of the fideicommissary heir (Gunetilleke v. Fernando2). The plaintiffs are the heirs of Lenohamy. They were parties to the mortgage action and are now estopped from questioning defendant's title.

H. V. Perera (with Weerasooriya), for plaintiffs, respondents.- The deed of gift was executed prior to 1876 and creates a fidei commission which is good for four generations. Lenohamy too was bound by the prohibition against alienation. Her interest was only an expectancy, which was to accrue only after the death of Lucyhamy. At the time of the mortified Lenohamy had no vested interest. Her interest, if any, was a contingent one and was not liable to be sold in execution under section 218 (k) of the Civil Procedure Code (Mohammed Bhoy v. Lebbe Marikar 3), the subsequent acquisition of the title cannot benefit a mortgagee (Alwis v. Fernando 4.) The plaintiffs were merely parties us legal representatives.

Croos Da Brera, in reply.-Section 218 (It) is not applicable to mortgage sales.

The following further authorities were cited:-Gunetilleke v. Jayasekere 5; Mohammad Lebbe v. Umma Natchia 6; Baba Singho Vedarala v. Loku Banda7; 3 Nathan, S. 1904; Voet, XXXVI. 1, 35; XXXVI. 1, 67; XXXIX. 5, 43.

December 21, 1927. DRIEBERG J.-

The rights of the parties to this appeal depend on th