064-NLR-NLR-V-18-ASERAPPA-et-al.-v.-JULIHAMY-et-al.pdf
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Present : Pereira J. and De Sampayo A.J.
ASEBAPPA et al. v. JUUHAM7 et ah26—D. 0. Negombo, 10,028.
Deed of gift—Interpretation—Property gifted to a person subject to thecondition that if the donee should die without descendants his shareshould be added to the estate of donor-Death of donee's childwithout issue—Are donor's heirs entitled to property f
By a deed of gift the donor donated certain property to his threedaughters,A, B,andC. He thendeclared asfollows:"If Any
of them (t.e., the donees) shall depart this life without descendant#.,his or her share, or part of the said premises, shall be added to myestateforthebenefit of myheirs;andIdo herebydeclare and
desirethatthe above-namedthreepersonsand theirdescendants
may possess and enjoy the produce of the said premises, subject,however,underthesame express restrictionbeforementioned,*
without disposing, mortgaging, or alienating the same, only possessingand enjoyingtheproducethereof."Aftdr the donor’s death
A died leaving child (D), and D died leaving no descendants.
Held, that on the death of A the property that she had receivedunder the deed of gift vested in D, and that on D*s death it revertedto the estate of the donor.
T
HE facts are set out by the District Judge (H. E. Beven, Esq.)as follows: —
-The propertyinclaim belongedto oneP.P.Aserappa.By deed of
gift 1,562of July19, 1841, he gifted ittooneLenohamy,wife of L.
Mathes, subject to a fidei commissum in favour of her descendants, andsubjectalso totheexpressprovision that if Lenohamy died without
descendants the said land " shall be added to my estate for the benefitof my heirs." The donor died in 1851. His son and only heir, Johnde Melho Aserappa,diedon March29, 1891,leaving theplaintiffs as his
heirs. They now – claim the premises donated to Lenohamy on theground of the failure in her line of descendants. Lenohamy and herhusband died thirty or forty years ago, leaving as their heir one child,Madalena Silva, who herself married and had one child, who, however,predeceased her, so that at her death, which took place on May 21, 1912,Madalena left no issue.
Descendants thus being wanting, plaintiffs claim that the conditionon which the reversion of the premises to the estate of the donor dependshas been fulfilled!x
The defendants, who are the heirs of Salman, the husband of Mada-lena Silva, ondieotherhand, contend that-when Lenohamydisd
leavinga child,thecondition on which alone theproperty was torevert
to the original dznor effectually came to an mid, and the succession ’to thepropertywasfinallysecured for Madalena Silva and herheirs,
subject only to this bond of fidei commissum.
1M.
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U
lft &
—A.
.ASttWpjK tf.
rijie District Judge, after discussing the points raised, held asfellows:—
I bold that the property vested in Madalena Silva, and on her mother’sdeath subject • onlyto the entail created "Infavour of Lenohamy’e
descendant#. It isawell-recognized principle in Roman-Dutch law
that* if the fidei commUsum fails, as, for instance, by the death of thefidei fcmwufitfdritw beforethe fiduciary, the latter reaps the benefit,
end becomes the absolute owner of the property.
When Madalena Silva’s child predeceased her the entail came toon end, and the .ordinary rule of succession came into operation, sothat defendants as heirs of Madalena’s husband. got good title.
The plaintiffs appealed.
The material portions of the deed P 1, on which the parties relied,are as follows:—-
Andwhereas by a subsequent instrumentexecuted by me,thesaid
PedrosFeries Aserappa Pulle, before thesaid, notary ofjSUgombc
above named, also appended to the said title deed, and bearing of thesame date of the afore-mentioned instrument, wherein is mentionedthat my ‘said godson, Ellegay Christian Perera, should only and 3olelvpossessthe said premises after the death ofhis parents underthebond
■ox fidei commissum ss an entailed property:And whereas I,thesaid
Pcdroc Pories Aserappa Pulle, being desirous of cancelling the same:Now thereforeknow Yethat I,thesaid Pcdroe Peries Aserappa Pulle,
for divers good causes and considerations moving unto me, do herebydeclare to have cancelled the paragraph which is mentioned by thesaid instrument. 14 that my saidgodchild,Ellegay Christian Perera,
should only and solely possess the said premises after the death of hisparents/' andin lieuthereofI do hereby substitute the following
proviso, that isto say, that the •aforesaid premisesshouldbe divided
into three eqttal parts; the first part, wherein I have constructed uhouse, to bebestowedto mysaidgodson/ Ellegay Christian Perera;
the next cno or the middle part thereof is to be given 1 to his youngestsister Justina Perera, wife of Arobrasso Wyndrog; and the last orthird part ofthe aforementionedpremises, whichis borderingthe
lane leading toKundenwclle, tobegiven to his sister Linohamy, wife
of uiyenegayMatheesStefve,Andthat the said premises called
Eosgahawafcta. so divided to bepossessedand enjoyed theproduce
thereof by tbe above-said three persons. Bnt -if any of them shalldepart this lifewithout descendants,that his or hershare,or thepart
of the said premises, shall be added to my estate for the benefit of myheirs; and I do hereby further declare and desire that the above-mentioned threepersons and theirdescendants maypossessandenjoy
the produce of the aforesaid premises, subject, however under • thesame express restriction before mentioned, without disposing mortgag-ing. or alienating the same, only possessing and enjoying .the producethereof.
A. St. V. Jay&tvardene and Aserappa, for plaintiffs, appellants.—The words in this deed are similar .to those in .the will construedby the Supreme Court in Francisco Pulls v. Wanni&ppa PvUe. 1
* (1656) 1 Lor. m.
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The Supreme Court held in 'mot case that there was a fideiconm <n created fay the will, and that on the failure of thedear nd?r>-is it revert. 1 to tho ?.iginal grantor's estate.
1. I. Pereira 'With fair. Canekarainc), for the defendants,respondents.—The intention -A the donor is dear from the words ofthe deed: if Lenohamy die*?'without any children her share was torevert to the estate- of Aser ,ppa. Lenol *imy died leaving a daughter;therefore the contingency on which her share was to revert to thedon- r’s estate did not happen. Lenohaxny’s title was perfect. Ifappellant*' contention 1. sound, even at the lapse of a hundredyears the land may revert to Aaerappa’s estate—a very extraordinaryproposition. Aserappa died about fifty years ago*, leaving a son,who himself died in 1890. The donee’s title will, if the appellant’sconstruction is upheld, never become perfect.
A. Si. V. Jayewardene, in reply.
Cur. adv. vuli.
March 2, 1915. Pbketba J.—
The only question argued in appeal in this case is whether on thedeath- of Ifaa woman Lenohamy the property in claim devolvedabsolutely on hor child Madalena. I am quite at one with theDistrict Judge in the conclusion that he has arrived at on theportion of deed P 1 that he has dealt with in his judgment, but theappellants reply upon a further portion of the deed in support oftheir contention. The portion dealt with by the District Judgeis as follows: ' ‘ But. if any of them (that is, the donees) shall departtills life without descendants, his or her share, or part of the saidpremises, shall be added to my estate for the benefit of my heirs."It is quite true that in view of this disposition, by reason of Lena-hamy's death leaving a descendant, condition under which theproperty was to revert to the estate of the donor was defeated, thatis to say, if only the portion of the deed relied on by the DistrictJudge was taken into consideration. But, as observed already,the appellants rely on a further provision in the deed, namely, thatwhich immediately follows the portion relied on by the DistrictJudge, which is as follows: " And I do hereby declare and desirethat the above-mentioned three persons and their descendantsmay possess and enjoy the produce of the said premises, subject,however, under Hie same express restriction before mentioned, with-out disposing, mortgaging, or alienating the same, only possessingand enjoying the produce thereof." These last words, standingby themselves are valueless to create a fidei commiesum, becausea prohibition against alienation is not absolutely necessary for thecreation of a fidei commiaum, but they, taken together with whatimmediately precedes them, sufficiently indicate an intention onthe psnt of the donor to attach a fidei commix sum on to the propertyin she hands of the descendant of Lenohamy. The prohibition
1916.
Aserappa v.Julibamy
1815.
Pkhkiba
Aserappa 1Juiihamy
against alienation allows that the intention was to vest in them,y not merely the income of the property, hut the corpus as well. The* position then is that the descendants of Lenohamy were to holdthe property under the same express restriction before mentioned.What is that restriction? The only express restriction appearingon the deed is that if the person holding the property depart tinslife without descendants it shall be added to the donor’s estate.In the proper line of devolution the property became vested inMadalana, and she – having died without descendants the propertyreverted to the estate of the donor.
Having thus decided the question argued, 1 would do no morethan set aside, the judgment appealed from and remit the case tothe District Court for further proceedings in due course.
I think that the appellant should be allowed his costs of thisappeal in this Court, and that the costs in the District Court shouldbe left to the discretion of the District Judge’ when making thefinal order.
De Sampayo A.J.—I agree.
Set aside.