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MEIYA NONA v. DAVITH VEDARALA
NLR31V104
1928 Present : Garvin and
Lyall Grant JJ.
MEIYA NONA v. DAVITH VEDARALA.
280- D. C. Chilaw, 8,466.
Fidei commissum-Deed of gift to
children--Prohibition against alienation-No designation of persons to be
benefited.
A deed of gift contained a grant of land in these terms: -
"I, in consideration of the love and affection I have and bear to my children,
have granted, conveyed, and set over unto them by way of gift, subject to the
condition and promise that the same shall not be changed or altered at any time
hereafter or in whatever manner."
Then followed a prohibition against alienation and, thereafter, a clause which
ran as follows: -
" Therefore full power is hereby granted unto the five donees and their heirs,
executors, administrators, and assigns to own all the right and power, which I,
the donor, and my heirs, executors, administrators, and assigns have and hold in
and to the same and to possess the same undisturbedly for ever subject to the
aforesaid conditions and stipulations."
Held, that the deed did not create a valid fidei commissum. APPEAL
from a judgment of the District Judge of Chilaw.
H. V. Perera, for defendant, appellant.
Samarakoon, for plaintiff, respondent.
November 16, 1928- GARVIN J.-
By a certain deed of gift dated the 16th of July, 1894, and marked P1, one
Naide, who was the owner of a half share of the land described in the plaint,
made a gift of the premises to his five children. One of these children has died
intestate and unmarried and the case has proceeded upon the assumption that his
share vested in the other four. Lethina Manamali, one of the remaining four, was
married to one Aratchi Naide, and died leaving surviving her husband Aratchi
Naide and two children-the plaintiff and another. Under the ordinary rules of
intestate succession, at Lethina's death her share of 1/8 vested as to 1/16 in
her husband and as to the remaining 1/16 in her two children in the proportion
of a half to each. At a. sale in execution against Aratchi Naide his 1/16 share
was seized and sold and purchased by the defendant. The plaintiff brings this
action claiming that the whole of Lethina's share vested in him and his sister
to the exclusion of their father Aratchi Naide, and that
the defendant has, therefore, acquired nothing
of the purchase in sale in execution against Aratchi Naide. The foundation of
this contention is that the deed of gift by Naide to his five children vested
the property in those children subject to a fidei commissum in favour of their
heirs up to the fourth generation.
The question for determination, therefore, involves a construction of this deed.
After reciting his title to the several allotments of land, which were the
subject of the deed, the donor proceeds as follows: -
"I, for and in consideration of the love and affection which I have and bear to
my children (here follow the names of the five children), and for divers other
good causes, have granted, conveyed, and set over the same unto them by way of
gift, subject to the condition and promise that the same shall not be changed or
altered at any time hereafter or in whatsoever manner."
There is here a simple gift of the premises to the five children and a
declaration by the donor that the gift shall be irrevocable. There follows in
general terms a prohibition of sale, mortgage, gift, exchange or alienation in
any other manner. Then follows a clause which contains the words which are
relied on as creating a fidei commissum: -
" Therefore full power is hereby granted unto the five donees and their heirs,
executors, administrators, and assigns to own all the right and power, which I,
the donor, and my heirs, executors, administrators, and assigns have and hold in
and to the same and to possess the same undisturbedly for ever subject to the
aforesaid conditions and stipulations; and besides I have bound myself to settle
any disputes which may arise
