Meera Saibo Ahamado Nordeen V. Meera Saibo Mohamed Badurdeen

[IN THE PRIVY COUNCIL.]

1944 Present : Lord Atkin, Lord Porter and Sir George Rankin.

MEERA SAIBO AHAMADO NORDEEN, Appellant, and
MEERA SAIBO MOHAMED BADURDEEN et al., Respondents.

Fidei commissum - Muslim's gift to daughter-Reservation of income to donee-On failure of issue property to devolve on paternal relatives entitled to inherit - Intension of testator Husband's share set apart - Death of husband before donee-One entire fidei commissum.

Where the last will of Muslim, in disposing of certain properties, contained words to the following effect: - After my death to my daughter Pitchammal [the property stated] (I) give as a gift in writing to enjoy the income; after her child or children, but if she have no children, according to religion the husband's share having been removed, the balance to relatives in the paternal line or agnates, who are entitled to inherit,-

Held, that the will created a valid fidei commissum and that on the death of Pitchammal without issue, her husband having predeceased her, the entire property devolved on the relatives in the paternal line.

[DELIVERED BY LORD PORTER]

January 27, 1944

The three appeals consolidated in this case are brought from a judgment and decree of the Supreme Court [* 42 N.L.R.393] of the Island of Ceylon in a pa3rtition action in which the plaintiff is the appellant in the first appeal and the five defendants are respondents. In the second appeal the fourth defendant and the plaintiff-appellant and the remaining four defendants are respondents. In the third appeal the fifth defendant is appellant and the plaintiff-appellant and the remaining defendants are respondents.

The question at issue turn upon the true construction and effect of the will made by one Meera Saibo Meera Neina dated January 7, 1981. By that document the testator disposed of certain other properties in addition to those now in issue but the particular right in dispute is the title to lands and buildings formerly bearing assessment No. and now

Bearing municipal assessment Nos. 94, 96 and 98, situate at Second Cross street, Pettah, Colombo. These premises were disposed of by the will and are claimed both by the appellant and by the fourth respondent and in part also by the fifth respondent.

The testator died on January 22, 1891, leaving one child only, a daughter, by name Pitchammal, who died on September 20, 1937, leaving no issue, he was one of a family originally consisted of himself, two brothers and a sister. At the time of the making of the will and of his death both brothers were dead, each leaving male issue - the sister was still alive and had two sons and a daughter; the elder son married Pitchammal but predeceased her, dying on June 9, 1935. On the testator's death the property admittedly passed to his daughter, but the rights in it thereafter are in dispute, the main contention being as to whether Pitchammal was or was not the absolute owner or at least entitled to dispose of it.

Mrs. Othman, the fourth respondent to the first appeal and appellant in the second, succeeds to the property if and only if Pitchammal was either absolute owner or entitled to dispose of the property. Her claim was based upon two deeds, the first dated May 20, 1937, by which Pitchammal purported to give the property in dispute to Mrs. Othman's husband, and the second dated October 7, 1937, by which Pitchammal purported to transfer his rights to his wife. She claimed that the effect of the will was to devise the right to dispose of the property to Pitchammal absolutely and that there was no fidei commissum attached to it or that, at any rate, if there had ever been a fidei commissum it had failed, with the result the Pitchammal became absolute owner. The appellant and all the other parties contended that the will gave Pitchammal a life interest only with a fidei commissum in favour of her children (I

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