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SOPINONA v. ABEYWARDENE ET AL.
NLR30V295
Present: Dalton and
Drieberg JJ.
SOPINONA v. ABEYWARDENE et al.
357-D. C. Galle, 23,160.
Fidei Commissum-Prohibition
against alienation to outsider-Seal prohibition-Intention of testator.
Where a testator bequeathed certain property to three brothers, the children of
a deceased grandson, subject to a fidei commissum
in favour of their heirs, and where the last will contained a prohibition
against alienation except among the co-legatees and heirs,-
Held, that the fidei commission was a real one and that it
attached, to a share of the property purchased by one of the legatees from
another.
THIS
was a partition action in which two questions arose for decision, turning upon
the construction of the terms of the last will of one Madalena Hamy. The
relevant clauses were as follows:-
(1) I do hereby grant and bequeath out of £ part of the movable and immovable
property of my estate, 1/5 part to my grandson Andris Wijeyasekere, another 1/2
part to Edward, Henry, and Richard Wijeyasekere, and the other 1/2 part to>
David Perera Wijeyatunge . . . .
I do further direct that the
property bequeathed to the parties named, who are the legatees of this last will
and testament, are hereby authorized to possess among themselves and their
descending heirs, and they are hereby prohibited from selling, mortgaging, or
gifting to others, save and except among themselves and their descending heirs.
The first question was whether the will created a valid fidei commissum, which
was answered in the affirmative. The second question was whether the fidei.
commissum attached to a share purchased by Edward from David or whether Edward
was free to dispose of it outside. The learned District Judge held that Edward's
alienation of that share to the plaintiff's predecessor in title was valid.
H, V. Perera, for appellant.-The intention of the testator was to keep the
property in the family. The language used shows that he intended to benefit the
descendants for four generations. The prohibition against alienation is a real
one as opposed to a personal -prohibition. It is meant to bind the property
rather than the person. The legatees are permitted to alienate the property
among themselves, but alienation to a stranger is specially prohibited. The
provision that the legatees and their descending heirs are to possess indicates
that the prohibition binds the future generation. The decision relied on by the
learned District Judge (Naina Lebbe v. Marikar 1[1 22 N. L. R. 295.])
is only concerned with a case of pre-emption. There was no indication there that
the property was to be preserved intact for the family.
Croos Da Brera, for respondent.-The legatees are permitted to alienate the
property among themselves. This shows that the testator while imposing a fidei
commissum intended to permit an alienation under certain conditions. Such a
fidei commissum is not foreign to the Roman-Dutch law. Once a legatee sells to
another legatee, the latter takes a free& estate and a purchaser from him gets
absolute title. That such was the intention is clear from the absence of a
prohibition against alienation in respect of the legatee who buys. The policy of
the law is in favour of a free and unfettered estate in the absence of a clear
intention to impose an entail. The prohibition is a personal one and binds only
a particular class. The fact that alienation is permitted indicates that there
was no intention to keep the property in the family. The fiduciary is allowed to
alienate and thus defeat the expectations of the fideicommissary. The wishes of
the testator have been fulfilled when once the property has been alienated
within the particular circle
contemplated by him. There is no penalty attached to the prohibition against
alienation to strangers. m
A nude prohibition is worthless.
The share dealt with by the legatee was inherited by him from a co-legatee who
died issueless. The f
