1944 Present: Keuneman and Cannon JJ.

CADER LEBBE.

Appellant, and THENUWARAHENAYA
et al., Respondents.

210-D. C. Kandy, 753.

Fidei commissum-Deed of gift to descendants .or heirs-From generation to generation-Valid fidei commissum for four generations.

Where a deed of gift contained the following clause: "After my ' death this property the aforesaid M. E. and the said M. It's descendants or her heirs, children, grandchildren, Ac, shall .. possess undisputedly for generations and for ever from generation to generation, but (she or they) shall not alienate the same to an outsider. to my family by way of transfer, mortgage or security."

Held, that the deed created a valid fidei commissum operative for four generations.

APPEAL from a judgment of the District Judge of Kandy.

H. V. Perera, if. C (with him H. W. Thambiah), for defendant, appellant.

N. Nadarajah, K.C. (with him N. E. Weerasooria, K.C., and C. E. S. Perera), for plaintiffs, respondents.

Cur. adv. vult.

November 21, 1944. KEUNEMAN J.-

The plaintiffs brought this action to be declared entitled to the field Naran Kumbura. They alleged that the field belonged originally to Pusumba Vidane Henaya who by deed No. 931 of March 29, 1873 (PI), gifted the same to Menu Ridee subject to a fidei commissum for generations, Menu Ridee died leaving her son Kuda Henaya, who himself died leaving us his heirs the plaintiffs.

The defendant inter alia denied that P 1 created a fidei commissum, and alleged that Kuda Henaya had by deed 16085 of August 8, 1921 (D 1), transferred the field in question to Kiri Ukku Ridee, who by deed 1258 of April 4, 1923 (3 2), transferred to the defendant.

As the argument turns mainly on the terms of the deed P 1, I set out the relevant terms which are as follows:-Pusumba Vidane Henaya granted this land among others " by way of gift to my granddaughter, Menu Ridee ". Among the conditions imposed was this: " After my death this property the aforesaid Menu Ridee and the said Menu Ridee's descendants or her heirs, children, grandchildren, &c, shall possess undisputedly for generations and for ever from generation to generation but (she or they) shall not alienate the same to an outsider to my family by way of transfer, mortgage or security". The grantor added that 14 no one of my descendants " shall be entitled to raise any disputes whatsoever.

The principal argument addressed to us by Counsel for the appellant was that the use of the words " or her heirs " brought in a class of

persons, quite distinct from the descendants, and that there was uncertainty as to the persons to be benefited by the fidei commissum. The fidei commissum.. it was argued, accordingly failed.

Counsel for the appellant relied on the case of Amaratunga v. Alwis.[1 40 N. L. R. 363.] In this case in one fidei commissum alleged to have been created the beneficiaries were to be "the children and heirs descending from her and authorised persons such as executors, administrators and assigns ". In the other alleged fidei commissum the beneficiaries were to be " her heirs and authorised persons such as executors, administrators and assigns ". Soertsz J. drew attention to the use of the word " assigns " and refused to treat that phrase as surplusage or a notarial flourish and to strike out or ignore it, Soertsz J. adopted the language of Innes C.J. in Ex parte Van Eden & others [2 (1906) Transvaal Reports 151.] that intention must be arrived at " not by considering what we think it would have been a good thing if they did mean, or what they ought to have meant, but by ascertaining the plain meaning of the words used. If these words are capable of more than one construction, then of course the Court would lean towards the one most in favour of freedom of alienation ". Soertsz J. held that no fidei commissum was created.

We have also been referred to the Full Bench case of de Saram et al. v. Kadijar et a