1944 Present: Howard C.J. and Soertsz J.

CAROLIS
et al., Appellants, and ALWIS, Respondent.

151-D. C. Colombo, 2,423.

Fidei commissary gift-In favour of children and grandchildren of donee- Or in favour of brothers and sisters of donee-No acceptance on behalf of the fide- commissaries-Revocation by donor..

Where a fidei commissary gift, in favour of the children and grandchildren, by representation, of the donee or in another event in favour of the brothers and sisters of the donee, some of whom were alive at the time and were minors, is not accepted on behalf of the fidei commissaries, the donor is entitled to revoke the gift with the concurrence of the donee.

In such a case acceptance by the immediate donee, who was a daughter of the donor, is not a sufficient acceptance on behalf of her brothers and sisters.

APPEAL from a judgment of the District Judge of Colombo.

H. V. Perera, K.C. (with him N. Nadarajah, K.C., and R. C. Fonseka), for plaintiffs, appellants.

N. E. Weerasooria, K.C. (with him E. B. Wikramanayake), for defendant, respondent. . "

Cur. adv. vult.

February 29, 1944. SOERTSZ J.-

This is an extraordinary case. It would be positively Gilbertian but for the questions of law involved in it. It relates to a next friend who, having made solemn declaration that the Notary he had employed to draw up a deed of gift had grievously misunderstood his instructions and had driven him to the necessity of joining with the donee to execute an indenture in order to give proper effect to his real intention, now comes into Court to ask that the indenture be ignored as if it had never been written, and judgment given in accordance with the clause in the deed which the indenture had unequivocally repudiated. The learned trial judge could not see his way to grant this preposterous prayer, although he added to the piquancy of the plaintiff's case by expressing it as his opinion that, by resorting to the indenture, the third plaintiff had laboriously achieved nothing, for he found that in a correct interpretation, both the deed and the indenture yielded exactly the same result. The plaintiff now appeals, and for him it is contended that the law enables him to disown his real intention and to stand by what had never been his intention. This may sound surprising. But it is not entirely unknown for the law to produce results which may appear incomprehensible to the uninitiated. Is this such a case?

The relevant matters are few. On October 22, 1937, the third plaintiff purported to gift the properties with which this case is concerned to his daughter Edith Ruth who at the time was the wife of a Dr. Alwis. The main clauses in that deed were: -

I . ..." donee shall not sell, mortgage, gift, dispose of by Will or in any other manner alienate or encumber the said premises

... but shall hold and possess the same . . . .during her natural life and after her death the said promises shall absolutely devolve on her lawful child, children or remoter issue, the child or children of any deceased child taking by representation "

'' if the said donee shall die without leaving any issue or if the said donee does not live with or deserts her husband .... or if in the event of her .... husband's death she shall contract a marriage or alliance legal or otherwise with any man who shall not belong to the community .... then in any or anyone of such cases, the said property shall thereupon go to and devolve on the lawful child or children or the remoter issue of any of the said party of the second part the child or children of any deceased child taking by representation .... and in the event of there being no such child, children or remoter issue, then on all my other children equal shares"

It will be observed that the first clause is identical in both documents. By itself, it creates no difficulty. It gives the properties to the donee subject to a fidei commissum in favour of her ch