076-NLR-NLR-V-02-HORMUSJEE-v.-CASSIM.pdf
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1890.
• October 28.
HORMUSJEE v. CASSIM.D. C., Colombo, 6,600.
Fidei commisaum—-Prohibition against alienation not followed by desig-nation of party to be benefited—Ordinance No. 11 of 1876, s. 3.
By a deed dated the 18th November, 1887, the owner of certainimmovable property gave it “as a gift absolute and irrevocable to“his son M, his.heirs, executors, administrators, and assigns,”subject to the condition that M should “ not be at liberty to sell,“ mortgage, or otherwise alienate the property gifted, but possess“ the same during his life ”—
Held, that the deed did not create a fidei commissum for thebenefit of the family of'M.
Held further, that in consequence of section 3 of Ordinance No. 11of 1876 the words of restriction mentioned above did not evenimpose a condition binding upon the donee.
'J^HE facts of the case appear in the judgment of Bonser, C.J.
Dornhorst, for appellant. <
Layard, A.-G., and Wendt, for respondent.
28th October, 1896. Bonser, C.J.—
The only question in this case is as to the construction of adeed of gift dated the 18th day of November,. 1887.
By that deed the owner of certain immovable property inColombo gave it as a gift absolute and irrevocable to his sonMohamado Cassim Markar, his heirs, executors, administrators, andassigns, subject to two conditions, the first of which was that thedonor reserved to himself the right of possessing the premisesduring his life, and after his death the same were to devolve onhis said son; and then came the words which have been muchdiscussed in argument, “ and he shall not be at liberty to sell, mort-“ gage, or otherwise alienate the same, but possess during his life,”and the deed ended with a declaration by the donee, that “ he thank-“ fully accepted the foregoing gift subject to the above conditions.”It was argued that a fidei commissum was created for the benefitof the family of the donee. But so far as I understand theauthorities a prohibition against alienation, without declaring inwhose favour such prohibition is made, is of no obligatory force
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(Vanderlinden, p. 63). But a nice question might have arisenwhether these words of restriction, though not creating a fideicommissum, did not impose a condition binding upon the donee,were it not for the express words of Ordinance No. 11 of 1876.Section 3 of that Ordinance provides that “ where the will, deed,“ or instrument in which any prohibition, restriction, or condition“ against alienation is contained does not name, describe, or“ designate the person or persons in whose favour, or for whose“ benefit such prohibition, restriction, or condition is provided,“ such prohibition, restriction, or condition shall be absolutely“ void.”
No words can be plainer than these, and the result is that thecondition against alienation is null and void, and must be struckout of the deed.
It was attempted to be argued by Mr. Domhorst that the wordsOf the gift—“ heirs, executors, administrators, and assigns ”—werewords of description or designation of the person in whose favourthe condition was provided. But that argument cannot be sus-tained. The word “ assigns ” means any person in the world towhom the donee may be pleased to assign the property, and itcannot be contended that this condition was intended to benefitthe whole world.
That being so, I am of opinion that the deed of gift to CassimMarkar conveyed an absolute interest in this property, and there-fore the plaintiff who claims under him has a good title!
The appeal will be dismissed with costs.
Lawkte, J.—
I retain the opinion I expressed in D. C., Gaffe, 47,862(7 S. C. C. 135), but this is a stronger case, because here the deedof gift was executed since the passing of the Ordinance No. 11 of1876. The deed in the Galle case was an old deed.
1890.
October 28.Bonbeb,C.J.
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