1951 Present: Basnayake J. and Gunasekara J.

WEST, Appellant, and ABEYAWARDENA et al., Respondents

S. C. 572-D. C. Colombo, 2,680
 

Donation-Fideicommissum in favour of family-Acceptance-Revocability- Exchange of property-Entail and Settlement Ordinance (Cap. 54), ss. 5,8.

A deed of gift in favour of C and J, who were daughters of the donors, contained a clause prohibiting the donees from selling, mortgaging or otherwise alienating the gifted property and proceeded to say that after the death of the donees the property should devolve on their lawful issue, and that, in the event of any one of the donees dying without lawful issue, her rights in the property should devolve on the surviving donee. As the donees were minors, the gift was accepted on their behalf by their brother-in-law and two brothers. There was, however, no acceptance on behalf of the fideicommissaries.

Held, that the deed did not create a fideicommissum for the reasons that there had been no acceptance on behalf of the fideicommissaries and that the deed did not constitute a fideicommissum in favour of a family. It was therefore open to the donors to revoke the gift with the consent of the donees.

Quaere, whether, under section 5 of the Entail and Settlement Ordinance, a donor who has created a fideicommissum reserving a life interest is entitled to make an application for exchange of the fideicommissary property.

APPEAL from a judgment of the District Court, Colombo.

N. K. Choksy, K.C., with Sir Ukwatte Jayasundera, K.C., H. W. Jayewardene and G. T. Samarawickrema, for the defendant-appellant.- The deed P 1B did not create a valid gift because there was no acceptance by Cecilia and Jane. Somebody who stands in loco parentis should accept a gift on behalf of minors. Cooray was only a brother-in-law. He was not a guardian nor was he in some relationship to the minors and having an implied authority to accept-Soysa v. Mohideen 1[(1914) 17 N. L. R. 279.]. There must be an overt act of acceptance or words to the effect that the donee accepts. Acceptance must be signified on the face of the deed itself. Till it has been completed by acceptance a donation is revocable- Carolis v. Alwis 2[(1944) 45 N. L. R. 156.].

Even assuming there has been a valid acceptance on behalf of the donee, there has been no acceptance on behalf of the fideicommissaries. If this is a "perpetual" fideicommissum then acceptance by Cecilia and Jane is sufficient, in order to give effect to the intention of the donor to keep the property in the family. But the present deed does not, on the face of it, purport to be a "perpetual" fideicommissum. "Family" means the " descendants " and acceptance must be by the " head of the family ", as stated by de Sampayo J. in Soysa v. Mohideen (supra) quoted by Soertsz J. in Carolis v. Alwis (supra, at p. 163.)

Even if there was a valid fideicommissum, the fideicommissum ceased to be operative by virtue of the order of the District Judge in the proceedings under the Entail and Settlement Ordinance. That order was

final and conclusive. It contained certain terms and conditions but no reference to a fideicommissum. Plaintiffs were bound by that order and could not set up any other terms and conditions.

The application under section 5 of the Entail and Settlement Ordinance was made by a wrong party. The proper party to make such an application is somebody entitled to possession under the entail. Statutory results follow only if the proper party made the application. Otherwise the Court has no jurisdiction and the order is a nullity. If the order is a nullity section 8 has no effect and there is no fideicommissum automatically attaching to the property taken in exchange. For this reason Abeywardene v. Tyrrel 1[(1938) 39 N. L. R. 505.] has been wrongly decided.

Assuming a valid fideicommissum was created, the purchaser for value without notice is not bound by any alleged fideico