Siti kadija Et Al V. De Saram Et Al

[ IN THE PRIVY COUNCIL ]

1946 Present: Viscount Simon, Lord Thankerton and Sir John Beaumont.

SITTI KADIJA et al., Appellants, and DE SARAM et al.,
Respondents.

PRIVY COUNCIL APPEAL NO. 39 OF 1945.

S.C. 211- D.C. Colombo, 2,025

Fidei commissum ? Last will of Muslim- Difficulty of construction no impediment id fidei commissum was intended- Difference between fidei commissum and trust.

Where a will left by a Muslim contained the following clauses: -
   
? I do 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 sec.? to which I belong, but they nor their heirs shall not sell, mortgage or alienate  any of the lands, houses, estates or gardens belonging to me at present or which I might acquire hereafter, 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 way 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 expense for their subsistence, and maintenance of their families the rest shall be placed or deposited in 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, but neither the executors herein named or any Court of Justice shall require to receive them or ask for accounts at any time or under any circumstances, except at times of their minority or lunacy.
   
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.?
   
Held, that the will created a valid fidei commission and that its leading clauses were inconsistent with the structure of an English trust.
   
?where there is doubt whether a fidei commission has been created, that construction should be preferred which will pass the property unburdened, but, if the language of the will is such as to show clearly an intention to create a fidei commissum, mere difficulty of construction will not prevent its being upheld?.

     APPEAL from a judgement and decree of the Supreme Court. The judgement of the Supreme Court is reported in (1944) 45 N.L.R. 265.

              D. N. Prill, K.C., and Stephen Chapman, for the appellants.

             C. T. Le Quesne and R. K. Handoo, for the respondents.

January 21, 1946. [Delivered by LORD THANKERTON]-
   
This appeal arises out of an action of ejection by the first two respondents against the appellants and the other four respondents. The action was dismissed by a judgement and decree of the District Court of Colombo, dated March 23, 1942, which were set aside by a judgement and decree of the Supreme Court of the Island of Ceylon, dated May 26, 1944, whereby decree of ejection and for damages were granted in favour of the first two respondents, by a majority of three Judges to two.
   
The question at issue arises on the proper construction of the will, dated December 12, 1872, of one Isboe Lebbe Idross Marikar, who died on May 8, 1876, and who said will was admitted to probate on MAY 29, 1876. The relevant portion of the will are as follows:-
   
?I do hereby will and desire that my wife Assenia Natch

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