037-NLR-NLR-V-22-KUMARIHAMY-et-al.-v.-KUMARIHAMY-et-al.pdf
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Present: Bertram C.J. and Schneider A.J.
KUMARIHAMY et at. v. KUMAR ITT AMY et al.
65—D. C. (Inty.) Ratnapura, 3,379.
Fidei Commissum—Application for sale under the Entail and Settlement
Ordinance—Policy of the law.
“ It is the policy of the law that whore land, which is subject to afidei commissum cannot properly be developed for'the advantageof the fidei commissarii,it should be freed from the fidei commissumby sale, and the purchase money deposited in Court for the benefitof those interested.”
r j MTF facts appear from the judgment.
A. St. V. Jayavpardene, for the appellants.
August 5,1920. Bertram C.J.—
This appeal relates to an application under the Entail and Settle-ment Ordinance, 1876. The land in question is land subject .to afidei commissum, and subject to that fidei commissum it is vestedin the two surviving daughters of the testator and the daughterand son-in-law of a third daughter. ' The land has been the subjectof certain proceedings under the Waste Lands Ordinance, and, as aresult of those proceedings, 265 acres and 22 perches have beendeclared private property. As to the remainder, the Crown hasoffered to settle some 322 acres upon the persons claiming underthe will upon favourable terms. The land is jungle land in aninaccessible situation. It appears not to be worth the while of anyof the persons interested to take advantage of the offer of the Crownas long as it remains upon its present tenure. The second andthird petitioners, who, as I have said, are the daughter and
1920.
1920.
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son-in-la^ of one of the testator’s daughter, and are supported bythe fu»t petitioner, who is another of those three daughters, asked theCourt to allow the land, which the Crown proposes to settle, to be
—1-1sold to them at a price to be fixed by the Court* It is assumed that
^Kumo^ *^e momy roa^ze<* by the sale will be subject to the fidei commissum,
V homy and it is proposed that this sum should be paid into Court to beheld subject to the fidei commissum. I presume that it is intendedthat part of the sum thus paid into Court shall be devoted to pro-curing from the Crown the settlement which the Crown has offeredto make. With regard to the land declared to be private under theWaste Lands Ordinance, the second and third petitioners proposeto pay the value of their third share, and so to free that third sharefrom the fidei commissum, the purchase price being deposited inCourt subject to the fidei commissum. „
The matter came before the District Court, and it there appearedthat Mr. Dharmaratne, who is presumably a proctor appearingfor some of the parties interested, raised an objection. No proxyappears to be filed defining his position, and we do not know forwhom he purported to appear. The objection he raised was not to'the merits of the proposal. He declined to assent unless the appli-cants admitted the exclusive right of his client or clients to someother block not more particularly specified.
The learned District Judge on this objection declined to grantthe application, saying that he could not do so unless all partiesconsented. It appears that unless some arrangement of this sort-is carried through, it will be impossible for the person interestedin the fidei commissum to take advantage of the offer of the Crownto settle upon them the 322 acres. It also appears to be the casethat no steps can at present be taken to develop the 265 acreswhich are admitted by the Crown to be private.
It is in accordance with the policy of the law that where land,which is subject to a fidei commissum, cannot properly be developedfor the advantage of the fidei commissarii, it should be freed fromthe fidei commissum by sale, and the purchase money deposited inthe Court for the benefit of those interested. I do not think that,where a good case has been made out for a relief of this nature, theCourt should refuse to grant it, simply because some one appearingfor some party interested wishes to extort as a price of his consentsome concession from those applying for the relief in relation tosome other piece of .land not before the Court.
I would, therefore, allow the appeal, and grant the application ofthe petitioners. The price fixed in accordance with the first para-graph of their petition should, I think, be Rs. 80 per acre, namely,the amount of the valuation of the Ratemahatmaya. I wouldmake no order as to costs.
Schneider A. J.—I agree.