032-NLR-NLR-V-65-M.-ELIATAMBY-and-Wife-Appellants-and-S.-KUMARASEGARAM-PILLAI-and-others-Respo.pdf
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KHakmby v. Kvmara&garatnpiUa*
1963 Present: H. N. G. Fernando, J., and L. B. de Silva, J.
M. ELIATAMBY and Wife, Appellants, and S. KUMABASEGARAM-PILLAI and others, Respondents
8. C. 143160—.D, C. Point Pedro, 5,928
Quia timet action—Declaratory action filed by MeioommisBaxius io prevent fiduciariusfrom building on fidcicommiaaary property—Maintainability.
A person, alleging that he is fldeicornmiiteariue under a deed, ianot entitled tofiJ e action for a declaration that the deed created a fideicommieeum and to preventtha fiduciariua, or the transferee of the interests of the fiduoioriue, from effectinguseful improvements on the fldetootnmissary property.
L. B. BE SELVA, J.-—Eliaiamby v. Kumarasegarampillai
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jAlPPEAL from a judgment of the District Court, Point Pedro.
E. V. Perera, Q.C., with. C. RanganatJmn and E. Gooneratne, forDefendants-Appellants.
H. W. Jayewardene, Q.C., with S. Sharvananda and S. S. Bamayake,ToFPlaintiffs-Itespondents.
Cur. adv. vult.
February 8, 1963. L. B. de Silva, J.—
Vairamuttu Kandiah and his wife Nagamuttu conveyed their interestsin a land called t: Kalanad ” described in the plaint to their son Rajarat-nam upon deed No. 4,248 dated 15th May, 1921. The 2nd and 3rdPlaintiffs are the two children of Rajaratnam. They claim in this actionthat the deed No. 4,248 created a fidei commissum in favour of thechildren of Rajaratnam after his death.
Rajaratnam was also entitled to certain other interests in this propertyupon deed No. 3,482 dated 10th March, 1919. In partition actionNo. 24,217 D. C. Jaffna, Rajaratnam was allotted lot 5 in the partitionplan in lieu of his undivided interests on both deeds. There was noreference in the partition decree that his interests derived under deedNo. 4,248 of 15th May, 1921 were subject to a fidei commissum.
The rights of Rajaratnam in the said lot 5 were sold in execution in thepartition action for non-payment of costs and were purchased by Aru-mugam Murugesu. Murugesu’s rights have now devolved on the defend-ants-appellants. The defendants commenced to erect a building on thesaid lot in spite of the protests of the plaintiffs. The plaintiffs thereuponfiled this action for a declaration that deed No. 4,248 aforesaid, created afidei commissum in favour of the 2nd and 3rd plaintiffs and to prevent thedefendants from erecting any buildings on the said property. Rajaratnamis still alive.
For the purpose of deciding this Appeal, it is sufficient to consider if aoause of action has now accrued to the plaintiffs as set out in their plaint.Whether the deed in question created a fidei commissum or not and if itdid create a fidei commissum, whether the defendants are entitled to claimcompensation for improvements as bona fide possessors or not when therights of the 2nd and 3rd plaintiffs as fidei commissarii mature, there isno doubt that the defendants are entitled to erect buildings and otherwiseimprove this property for the full enjoyment of their rights even if theironly right to this property was that of fiduciaries. They are doing nowrong to the plaintiffs nor committing any misohief to the property byerecting buildings. It ie not suggested that this is not a buildableproperty.
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I*. B. D£ SILVA, y.—Mtitstomby v, Rtmoras^faramp^ai
Ixk"Heioaviihama v. Chandrawaihie1 Gratia®!, X stated, ** As at presentadvised, I see no reason why relief in a quia timet action should neces-sarily be denied to a person who, though possessing only a contiogeotinterest in Hand, in placed by the oondnot of some third party in such asituation that there exists at present a substantial and imminent risk of theloss or impairment of his interests when the time eventually arrives for itsenlargement into a vested right.
The principles applicable under our common law are in conformitywith this view. So long as proof is forthcoming of some threatened‘ ooncrete invasion of a party’s rights’ he oan claim the protection of adeclaratory decree in his favour
In this case there is no such risk of loss or impairment of the rights of the2nd and 3rd plaintiffs when their rights become vested, even if the deedin question created a valid fidei oomxuisaum. It would indeed creategreat hardship on fiduciaries if they are prevented from effecting usefulimprovements on fidei commissary property with a view to obtaining thefull benefit of the property while they are entitled to possession thereof.
We accordingly allow the appeal, set aside the judgment and decreeof the District Court and dismiss the action of the plaintiffs with costson the ground that their claim is premature. The defendants-appellanteare entitled to the costs of this appeal.
H. N. G. Tebnando, J.—I agree.
Appeal allowed.
1 (1951) 53 N. L. R. at p. 174.