Francisco V. Swadeshi Industrial Works, Ltd.

1951 Present: Basnayake J. and Swan J.

FRANCISCO, appellant, and SWADESHI INDUSTRIAL
WORKS, LTD., Respondent

S. C.305-D. C. Colombo, 3,759/L

Fideicommissum-Deed of gift-Prohibition against sale and mortgage only-Effect of partial prohibition-Effect of failure to designate beneficiary in case of violation of prohibition-Gift to A and his descendants and his heirs, executors, administrators and assigns and authorised persons-" Authorised persons "- Uncertainty of beneficiaries-Translation of a document into English-Not a function of the Court.

A deed of gift contained the following clause :-

" The said donee (A) and his descendants and his heirs, executors, administrators and assigns and authorised persons shall at all times subject to the rules and regulations of the Government be at liberty to transact the same among each of their co-heirs but shall not in any manner sell or mortgage any of the said lands with the intention of alienating the same and such acts are hereby cancelled."

Held, that the deed did not create a fidei commissum for the reasons-

(a) that the donee was prohibited only from selling or mortgaging the property and was, therefore, in law, free to donate the property or dispose of it by last will. In the circumstances there could be no fidei-commissum.

(b) that the deed did not contain a stipulation restoring the property to a third person in case the property was sold or pledged contrary to the prohibition therein.

(c) that the expression " authorised person " was vague and, therefore, there was no clear designation of the beneficiaries.

Held further, that whether a document in a language other than English has been correctly rendered into English is a question of fact. It is wrong for a judge, however well versed he may be in the language in which the document is written, to undertake its translation and adopt a version which neither party has placed before him.

APPEAL from a judgment of the District Court, Colombo.

E. S. Amerasinghe, with J. W. Subasinghe, for the plaintiff appellant.

N. E. Weerasooria, K.C., with W. D. Gunasekera, for the defendant respondent.

Cur. adv. vult.

February 27, 1951. BASNAYAKE J.-

The only question that arises for decision on this appeal is whether deed No. 867 dated May 16, 1856, attested by W. B. Fernando, Notary Public, creates a fidei commissum. By that deed one Jackovis Perera Appuhamy gave a gift of two portions of land called Millagahawatte and a field called Halpankotuwa to his brother Juan Adonis Perera in the following terms :-

" I, Wattege alias Kanugalawattege Jackovis Perera Appuhamy of Ekala in the Ragam Pattu of Alut Kuru Korale in consideration of the love and affection which I have and bear unto my brother Wattege alias Kanugalawattege Juan Agonis Perera Appuhamy of Kandana in the said Pattu with my free will and consent do hereby give grant and assign by way of gift unto the said Juan Agonis Perera Appuhamy, the following lands .... (here follows a description of the lands)

" And I the said Jackovis Perera Appuhamy shall be at liberty to possess the said lands from this date during my lifetime, but shall not sell or mortgage the same. And I do hereby declare that I or my heirs executors administrators and assigns shall not have any right or title hereafter against this gift.

" That after the possession of the said premises by me the said Jackovis Perera Appuhamy and after my death the said donee Juan Agonis Perera Appuhamy and his descendants and his heirs executors administrators and assigns and authorised persons shall at all times subject to the rules and regulations of the Government be at liberty to transact the same among each of their co-heirs but shall not in any manner sell or mortgage any of the said lands with the intention of alienating the same and such acts are hereby cancelled.

" That all the right title and interest which I the said

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