Jayatunge Et Al. V. Ramasamy Chettiar

1950 Present : Nagalingam J. and Pulle J.

JAYATUNGE et al., Appellants, and RAMASAMY CHETTIAR

et al., Respondents

S. C. 223-D. C. Kurunegala, 3,052

Fideicommissum-Effect of words "and their heirs, executors, administrators and assigns " in relation to the fideicommissaries-Plena proprietas-Partition- Eight of fideicommissary to institute partition action during lifetime of fiduciary.

A deed of gift imposed on the donee a prohibition against alienation and went on to say that the donee " shall only possess the said' properties . and on the death of her the said donee the children from her and their , heirs, executors, administrators and assigns shall have the right to possess the said properties or to do whatever they please with the same."

Held, that the persons who were to take the property on the death of the donee were clearly and adequately designated and therefore,' the property was burdened with a fideicommissum.

Held further, that a purchaser from one of the fideicommissaries was not entitled to maintain an action for partition during the lifetime of the fiduciary, although the fiduciary's life interest had devolved on the existing fideicommissaries.

APPEAL from a judgment of the District Court, Kurunegala.

H. V. Per era, K.C., with J. M. Jayamanne, for the 3rd, 4th, 6th and 10th defendants appellants.

N. E. Weerasooria, K.C. with K. A. Kandiah and V. Arulambalam.. for the plaintiff respondent.

E. B. Wikramanayake, K.C., with C. C. Rasaratnam and M. A. M. Hussein, for the 11th defendant respondent.

Cur. adv. vult.

November 15, 1950. NAGALINGAM J.-

This is an appeal by the 3rd, 4th and 6th to 10th defendants from a judgment of the learned District Judge of Kurunegala entering a decree for partition of the land described in the schedule to the plaint.

 The facts, so far as they are relevant and in regard to which there is no dispute, are that the land in question was by deed P 3 of 1907 gifted by one Iseris Appuhamy and his wife Mangohamy to their daughter Albina Harny, wife of Don Jusey Jayatunga Appuhamy, subject to certain conditions which will be noticed presently. By deed P 5 of 1930, Albina Hamy and her husband conveyed to three of their children, the 2nd, 3rd and 4th defendants, their life interest. By deed P 6 of 1940, Albina Hamy, her husband and the 2nd defendant conveyed a 1/8 share of the land to the plaintiff. The plaintiff by deed P 9 of 1944 conveyed a half share of his interests, namely a 1/16 share to the 5th defendant. The

life interest in the remaining 7/8 share of the land that remained vested in the 2nd, 3rd and 4th defendants has devolved by virtue of certain mesne conveyances on all the children of Albina Hamy who are the 2nd, 3rd and 4th and 6th to 10th defendants in certain proportions which it is unnecessary to ascertain for the purpose of the appeal. On the basis of this devolution of title the plaintiff instituted this action for partition, making Albina Hamy the 1st defendant as the person on whom the title was vested to the remaining 7/8 share and her children, the 2nd, 3rd, 4th and 6th to 10th defendants as persons entitled to a life-interest during Albina Hamy's term of life in the said 7/8 share.

The appellants contend that deed P 3 creates a valid fideicommissum anl that no action for partition lies in the present state of the title. The relevant parts of the deed P 3 are as follows: -

(1) The words of grant are:

We..., Iseris Appuhamy and wife..., Mangohamy  in consideration of the love and affection we have and bear unto our daughter Albina Hamy wife of Don Jusey Jayatunga Appuhamy do hereby grant by way of gift absolute and irrevocable unto the said donee to possess only after the death of both of us or the survivor of us the lands described in the schedule hereto, subject to the conditions hereinafter set forth. The conditions are: -

(2) (a) Albina Hamy shall only possess bu

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