Fernando Et Al V. Alwis Et Al

1935   Present  :  Macdonell CJ. and Maartensz J.

FERNANDO et al. v. ALWIS et al.

 137-D. C. Colombo, 51,422.

Fidei commissum residui-Joint will-Survivor's interest-Power of survivor to alienate-Donation by survivor-Prejudice to heirs-Gift to minors-  Validity of acceptance-Renunciation of gift.

Where a joint will contained the following clause: " All our movable and immovable property, held by us both, after the death of one of us, the survivor shall possess doing whatever he (or she) pleases and thereafter anything that is left, after the death of both of us shall be divided by the children of us both equally.",-

Held, that the clause created a fidei commissum residui and that the survivor had the right to alienate the property of the estate subject to the rights of the fideicommissary heirs in the residue.

A donation of such property by the survivor is not ipso facto void but it may be avoided on the ground that it has prejudiced the heirs.

Where a deed of gift in favour of five brothers, four of whom were minors, was accepted by the major brother (J. F.) and another person (H. S.) in the following terms : " We the undersigned J. F. and H. S. for and on behalf of . . . . (i.e., the minor donees) do thankfully accept the above gift",-

Held, (1) that the gift was not accepted by J. F. on behalf of his brothers ; (2) that H. S. not being a person entitled to accept the gift on behalf of the minors the gift to the minor donees was invalid for want of a valid acceptance.

Acceptance of a deed of gift may not be presumed merely because subsequent to the gift the donees renounced their rights under the gift.

THE plaintiffs sued for declaration of title to an undivided half share of an allotment of land with the buildings bearing Nos. 1-12, Gasworks street, and 135-149, Dam street, Colombo.

The premises originally belonged to Manuel Fernando, who with his wife Adriana Suwaris executed a joint will No. 2,051 (P 1) dated December 31, 1860, whereby, according to the plaintiffs, all their movable and immovable property were devised and bequeathed to the survivor with power to deal with it as he or she pleased.

Adriana, who survived her husband, duly proved the will, and by deed No. 232 dated November 4, 1871, donated the premises to her five sons-(a) Johanes, (b) Theodoris, (c) John Henry, (d) Marthinus, (e) James-to the exclusion of all females. Theodoris died in 1874 a minor. John Henry and Johannes left no male issue. James died on July 28, 1931, leaving two sons, the plaintiffs. Marthinus, who has three sons, is not a party to the action. The case of the plaintiffs was that James and Marthinus each became entitled to a half share and that they succeeded to the share of their father on his death.

It would appear that Adriana by deed No. 619 dated January 21, 1884, revoked the deed of gift No. 232 and that the donees, four of whom were surviving, renounced their rights under it.

Adriana, however, gifted again three-fourths of the premises to John Henry, Marthinus, and James by deed No. 1,792 dated October 8, 1894, reserving to herself the life interest. Adriana on the same day by will

No. 1,793 bequeathed the remaining one-fourth to Johannes subject to certain conditions. In accordance with this deed of gift the brothers and their descendants possessed the property. The defendants, who claim from the female heirs of John Henry, dispute the title of the plaintiff on the following among other grounds :-

(a) They deny that Adriana had a disposing power under the joint will in pursuance of which she executed the deed of gift No. 232.

(b) They challenge the validity of the deed of gift on the ground that it was not duly accepted by the minors.

The learned District Judge held that Adriana had only a usufruct under the joint will and that she had no power of alienation.

H. V. Perera (with him N. K. Choksy), for plaintiffs, appellants.-The fir

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