Soysa Et Al. V. Miskin Et Al.,

1945  Present: Wijeyewardene and Rose  J.J.

SOYSA et al, Appellants, and MISKIN et al., Respondents.

222-D. C. Kalutara, 83,585.

Fidei commissum-Partition-Fiduciarius allotted defined lot under partition decree-Transfer by fiduciarius to purchaser who buys without notice of the fidei commissum-Fidei commissarii have no rights against such purchase-Deed of gift to two donees " in equal undivided shares " with reservation of life interest-Parties Muslims-Separate fidei commissa.

The applicability of the doctrine established in Babey Nona et al. v Silva 1[(1906) 9 N. L. R. 251] should be limited to the following case: -Where a fidei commissum property is partitioned and a defined lot is allotted under the decree either to a fiduciarius or a person deriving title from a fiduciarius by way of gift, sale, &c, the fidei commissarii could in a subsequent action set up their claims against (a) such fiduciarius or such person to whom the lot was decreed or (b) any one deriving title from either of them after the decree provided that neither he nor his predecessors in title, if any, is a purchaser for value without notice of the fidei commissum.

A deed was executed by N reserving a life interest in her favour and gifting a property to two donees, H and 0 (husband and wife), " in equal undivided shares" . subject to the condition that they should not sell, mortgage or otherwise alienate the property and that the property should " after their death devolve on their lawful issues ". O died leaving a daughter. His widow H, married again and left three children by her second marriage: -

Held, that, though the parties to the deed were Muslims, it was a valid gift and that it created separate fidei commissa, one in favour of the lawful issue of H and the other in favour of the lawful issue of 0. The first fidei commissum was to take effect on the death of H and the other, on the death of 0.

APPEAL from a judgment of the District Judge of Kalutara. The questions involved were (1) whether the deed referred to in the head-note created one fidei commissum in favour of the issue of H by 0 or two separate fidei commissa in favour of the issue of H and the issue of O. (2) whether a partition decree allotting a defined portion to a fiduciarius destroys a fidei commissum when the fiduciarius subsequently sells the defined portion to a purchaser who buys it without notice of the fidei commissum.

H. V. Perera, K.C. (with him Kingsley Herat and Dodwell Gunewardene), for the defendants, appellants.-The plaintiffs as fidei commissarii under deed P2, brought this action for declaration of title to lots A and B of a land which originally belonged to Uduman Lebbe Marikar. Marikar gifted the northern half of the land to Natchia. By deed P2 of 1887 Natchia reserved a life interest in her favour and gifted the northern half to her adopted daughter, Hadjie Umma, and Omer on the occasion

of their marriage, subject to the condition that they shall not sell, mortgage or otherwise alienate the property and that the property shall " after their death devolve another lawful issues ". Omer died in 1902 leaving a daughter Hamidu Umma. Hadji Umma then married Amala Marikar and died in 1933, leaving by this second marriage three children, the first and the second plaintiffs and a daughter who died without issue. Hamidu Umma married Rahiman and died in 1913, leaving a son Abdeen, the third plaintiff. Hadjie Umma, Amala Marikar and Rahiman mortgaged 79/128 shares of the northern half in 1913. These shares were sold in satisfaction of a mortgage decree and purchased by Peiris who conveyed the interests to Fonseka. In 1918 Fonseka filed a partition . action in respect of the entire land. In that action the District Judge held that Fonseka's title based on P2 failed as P2 was void in consequence of the reservation of the life-interest in what purported to be a Muslim deed of gift. This

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