1929. Present: Dalton and Akbar JJ.

PALIPANE v. TALDENA et al.

425-D. C. Kurunegala, 12,562.

Fidei commissum-Prohibition against alienation to an outsider- Personal prohibition-Alienation by descendant acquiring interest by purchase.

Where a last will bequeathed property to the children of the testator and the grandchildren (issue of a deceased child) and
provided as follows : -

" It is my express will and desire that my said children and grandchildren shall not sell, mortgage, lease for more than a year, gift or otherwise make over the said property to any outsider, i.e., to any one who is not a descendant of mine."

"If any of my said heirs, or in failure, their lawful issue, shall contravene the provisions contained in the clause hereof, such heir, or lawful issue, shall forfeit all claims to any share whatsoever in my estate,"

Held, that the prohibition against alienation was persona! to the immediate devisees and that it did not bind a descendant of the testator, who had acquired an interest by purchase from one of the devisees.

THE plaintiff, as the executor and as a devisee under the last will of his father, P. B. Palipane, sued for a declaration that the first defendant, his sister had contravened the provisions of the last will by selling a land called Yakkala estate left to her under the will. The material parts of the will are set out in the head note. The three children and the grandchildren mentioned in the will .survived the testator, who died in 1928. It was the plaintiff's case that the first defendant sold a share of the estate in question to her two sons, Aelian and Neville. Thereafter Aelian instituted a partition action and the parties got divided shares in the land. The first defendant then conveyed her divided lot to Aelian and Neville, who sold all their interest to the second defendant, who was an outsider. The learned District Judge dismissed the plaintiffs' action on the ground that the prohibition against alienation was imposed on the immediate devisees only.

H. V. Perera, for plaintiff, appellant.-Our position is that the first defendant has forfeited her rights to her share and that this share has devolved on the other heirs, of whom the plaintiff is one.

There is a prohibition against alienation to outsiders and she 1929. has resorted to a devise to get over these conditions by transferring to her sons (mere nominees), who transferred to second defendant. We say deeds in favour of Aelian and Neville were merely deeds to get over the prohibition.

We have a real prohibition, not a personal prohibition. It is a recurring prohibition therefore real. The prohibition applies to lawful issue, whether, they inherit or whether they take on purchase or transfer.

There is a fidei commissum in favour of the family.

357, D. C. Galle, 23,160, 8.CM., December 21, 1928, the intention . to keep the property within his descendants is indicated by the definition of " outsider."

R. L. Pereira (with H. H. Bartholomeusz and Ranawake), for second defendant, respondent, cited Sande, p. 177, McGregor's Voet, pp. 71, 72.

Croos Da Brera, for first defendant, respondent, cited Hadjiar v. Meyappa [1 23 N. L. R. 333, 464.] and Hettiaratchi v. Suriaaratchi et al.  [2  24 N L. R. 140.]

H. V. Perera, in reply, cited Robert v. Abeywardane et al. [3 15 N. L. R. 323.]

July 9, 1929. DALTON J.-

The question arising in this case is as to the interpretation of the will of plaintiff's father, P. B. Palipane. The testator left considerable property, and plaintiff who is executor, trustee, and also a beneficiary under the will, contends that the first defendant, his sister, Eugene Frances Taldena Kumarihamy, has contravened the provisions of the will, selling land called Yakkala estate and fields left to her by the will outside the family. The property, the subject of this action, is some of it in Schedule A and some in Schedule B attached to the will