Siri Kantha Et Al V. Thiagarajah

1935   Present: Poyser and Koch JJ.

SIRI KANTHA et al. v. THIAGARAJAH et al.

 163-D. C. (Inty.) Colombo, 27,716.

Fidei commission-Property sold under partition decree-Fidei commissum not disclosed-Proceeds in Court-Application to draw proceeds.

Where property subject to a fidei commissum is sold under a partition decree without the existence of the fidei commissum being disclosed and the proceeds are deposited in Court,-

Held (on an application by the assignee of a party bound by the fidei commissum to draw the proceeds) that the fidei commissum attached to the proceeds in Court.

APPEAL from an order of the District Judge of Colombo.

The appeal was by the ninth defendant, an assignee of the interests of the eighth defendant, one of the fiduciaries under a will creating a fidei commissum. The property devolving under the will formed the subject of a partition action in which the Court ordered a sale but did not refer to the fidei commissum or give directions as to the manner in which the proceeds were to be conserved for the benefit of the fideicommissaries.

The property was sold and the proceeds were brought into Court.

The assignee moved to draw the proceeds deposited in Court and the application was opposed on behalf of the eighth defendant.

The learned District Judge ordered that the proceeds should remain in Court subject to the fidei commissum.

H. V. Perera, (with him Subramaniam), for appellant.-The will of 1834 does not create a fidei commissum. An examination of the words used in the will reveals that the meaning is not clear. Even if the will creates a fidei commissum it does not extend up to the fourth generation. The words used clearly show that the prohibition against alienation is binding only on the persons named in the will and no further. The will was produced at the trial, and the learned trial Judge entered a partition decree for sale and made no order reserving the rights of the fideicommissaries. The rights of parties now flow from the decree. The decree entered must be taken to be an adjudication regarding the existence or otherwise of the fidei commissum.

N. Nadarajah (with him S. J. V. Chelvanayagam), for respondent-It is too late to contend that the will does not create a fidei commissum. This will was interpreted to contain a fidei commissum in S. C. 163-D. C. Cal. 28,982 (vide Min. of S. C. 12.11.1909). The wording of the will is

clear (30 N. L. R. 266). This will was executed before the Entail and Settlement Ordinance of 1871, and therefore the question of the period during which the fidei commissum is to last must be decided according to the principles of Roman-Dutch law. Ordinarily a fidei commissum extends to four generations. (Pereira's Laws of Ceylon, p. 436.) A partition decree does not wipe out a fidei commissum. (Jayawardene on Law of Partition, p. 205.) The decree entered-this did not refer to the question of fidei commissum. No issue was raised by the parties and there was no adjudication by the Court. A fidei commissum cannot be wiped out by merely mentioning same in the plaint, and obtaining a decree without any reference to same. A partition decree does not wipe out a fidei commissum whether same was disclosed or not. (Baby Nona v. Silva[19 N. L. R. 251 at p. 256.] Abeysundere v. Abeysundere[212 N. L. R. 373.], Weeraman v. Silva[322 N. L. R. 107.] .)

Cur. adv. vult.

September 11, 1935. KOCH J.-

The dispute in appeal mainly centres round the point whether the joint will of one Supramaniam Chetty Thiagappa Chetty and his wife, Nagamma, creates a fidei commissum, and if so, to what degree of descent does it extend. The learned District Judge after careful consideration of the terms and conditions of this will has decided that it does create a fidei commissum and that the fidei commissum does extend up to and including the fourth generation. The will was executed in October, 1834, a little over a

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