Mrs. Noor Mohideen Et Al V. Hadood Sadoon Et Al

1951 Present: Gunasekara J. and Swan J.

MRS. NOOR MOHIDEEN et al., Appellants, and HADOOD
SADOON et al, Respondents

S. C. 309-D. C. Colombo, 5,706

Fideicommissum-Succeeding generations-Joint and single fideicommissa-Devolution of shares-Time of gift over.

Where a last will operating from 1876 conveyed property to certain fiduciaries, burdened with an obligation in favour of their descendants in succeeding generations-

Held, that the intention of such an instrument must be taken to be that, so long as any of the beneficiaries who are to be substituted in place of the fiduciaries are in existence, the whole property must be considered as burdened with an obligation in their favour. In such a case, the property which a fiduciary holds passes on his death to his children as a joint fideicommissum and not as separate fideicommissa. In the case of a single fideicommissum, if any one line of the descendants is exhausted, the interest of that line shifts to the other lines.

APPEAL from a judgment of the District Court, Colombo.

E. B. Wikramanayake, K. C., with S. A. Marikar and Shamsudeen Mohamed, for the 15th, 16th, 17th and 20th defendants appellants.

H. W. Tambiah, with P. Somatilakam, for 1st to 7th plaintiffs respondents.

M. H. A. Azeez, with M. H. M. Naina Marikar, for the 27th defendant respondent.

Cur. adv. vult.

September 6, 1951. GUNASEKARA J.-

This is an action for a sale of co-owned property under the Partition Ordinance (Cap. 56). The shares to which the co-owners are respectively entitled depend on the construction of a fidei commissum to which the property was subject. The 15th, 16th, 17th and 20th defendants appeal against the construction adopted by the District Judge.

The original owner of the property was Idroos Lebbe Marikar, who died in 1876 leaving a last will dated the 12th December, 1872. In accordance with the terms of this will the estate was distributed among the heirs subject to the following conditions contained in the will:

" I do hereby will and desire my wife Assena Natchia, daughter of Seka Marikar, and my children Mohamado Noordeen, Mohamado Mohideen, Slama Lebbe, Abdul Ryhiman, Mohamado Usboe, Amsa Natchia and Savia Umma, and my father Uduma Lebbe Usboe Lebbe, who are the lawful heirs and heiresses of my estate, shall be entitled to and take their respective shares according to my religion and Shaffe sect to which I belong, but they nor their issues or 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 may 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 expenses for their subsistence and maintenance of their families, the rest shall be placed or deposited in a 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 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

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