The Court affirmed the last will created a valid fidei commissum, emphasizing intent over terminology, while ruling that property rights vest upon fiduciary death, not alienation.

WIJEYEWARDENE J.-

The questions that arise for determination on this appeal depend on the construction of the last will of Isubu Lebbe Idroos Lebbe Marikar dated December 12, 1872.

The relevant provisions of the last will P 1, are as follows: -

" (a) I hereby will and desire that my wife . and my children . and my father . who are the lawful heirs and heiresses of my estate shall be entitled to and take their respective shares according to my religion and Shafie sect to which I belong, but they nor their issues or heirs shall not sell, mortgage or alienate any of the lands, houses, estates or gardens . and they shall be held in trust for the grandchildren of my children and the grandchildren of my heirs and heiresses, only that they may receive the rents, income and produce of the said lands, houses, gardens, and estates without encumbering them in any way or the same may be liable to be seized, attached or taken for any of their debts or liabilities and out of such income, produce, and rents after defraying expenses for their subsistence and maintenance of their families the rest shall be placed or deposited in a safe place by each of the party, and out of such surplus, lands should be purchased by them for the benefit and use of their children and grandchildren as hereinbefore stated .

" (b) I further desire and request that after my death the said heirs and heiresses or major part of them shall appoint along with the executors herein named three competent and respectable persons of my class and get the movable and immovable properties of my estate divided and apportioned to each of the heirs and heiresses according to their respective shares, and get deeds executed by the executors at the expense of my estate in the name of each of them subject to the aforesaid conditions. " The last will P 1 was duly proved in Testamentary Case No. 3,909 of the District Court of Colombo and probate P 2 was issued to the surviving executor on May 29, 1876. Acting in terms of the provisions of clause (b) of the last will P 1, the executor conveyed the property forming the subject-matter of the present action to the testator's daughter Amsa Natchia by deed P 3 of February 19, 1878, subject to the terms and conditions contained in the last will. By deed P 4 of November 22, 1912, Amsa Natchia purported to gift the property to her daughter Majida Umma who by deed P 5 of January 3, 1925, conveyed her interests under P 4 to the first defendant and one Suppiah Chetty. By deed 1 D 1 of June 3, 1932, Suppiah Chetty conveyed his interests to the first defendant. 

Amsa Natchia died leaving three children, one of whom is Majida Umma who is still alive. The plaintiff and the second, third, and fourth defendants are the children of Majida Umma.

The plaintiff contends that the last will P 1 created a fidei commissum and that the first defendant is not, therefore, entitled to the property as against him.

The District Judge held that the last will P 1 created a fidei commissum and entered judgment in favour of the plaintiff for an undivided share of the property and for damages from January 3, 1925, and costs. The present appeal is preferred by the first defendant against that judgment.

The appellant's contention is that the last will created a trust and not a fidei commissum, that the trust so created is void as it offends the rule against perpetuities and that, therefore, he became entitled to the property under deeds P 5 and 1 D 1.

The last will P 1 was executed before the Entail and Settlement Ordinance 1876 (Legislative Enactments, Volume 2, Chapter 54), came into operation on June 15, 1877. The question whether a fidei commissum, is created by the last will has therefore to be determined according to the principles of Roman-Dutch law.

There are no particular words necessary for the creation of a fidei commissum (vander Linden 1.9.8). It matters not what words are used provided they express the legally valid intention of the testator who desires to create a fidei