128-NLR-NLR-V-21-PERIS-v.-SOYSA,-et-al.pdf
( 446 )
1920.
Present: Ennis J. and Loos A.J.
PERIS v. SOTSA, et al.
103—D. C. Kalutara, 8,233.
Fidei commissum—Sale to jour persons with direction that land shall not be soldto outsiders.
By a deed of conveyance executed in consideration of a sum of money S.conveyed a land to four children of his sister, their heirs, or legal representa-tives, with a direction that if it became necessary to sell or mortgage, itshould be done among the fouT grantees, ” and shall not be sold or mortgagedto any outsider. ”
Held, that the deed did not create a fidei commissum.
‘TP HIS was an action brought by the plaintiff for a partition of* a defined portion of land called Godaporagahawatta, situatedat Kaludewala, within the jurisdiction of this Court. The plaintiffclaimed title to an undivided 62/396 shares of the land, allegingthat the same originally belonged to one Hennedige Selestina Soysaupon deed of conveyance No. 18,184 dated January 23, 1886.Selestina Soysa sold the said 62/396 shares to one MudalidewageCharles Peiris, her intended husband, upon deed No. 13,845 datedJune 25, 1895, who in turn sold the said 62/396 shares to this plain-tiff upon deed No. 4,912 dated July 27, 1917. The defendants 1, 2,3, 4, 5, 6, 7, 8, 10, and 11 filed answer denying the plaintiff’s rightto the shares claimed by him, alleging that the deed No. 18,184dated January 28, 1886, contained a prohibition against alienation,except amongst the four persons mentioned in the deed.
The District Judge made the following order:—
Simon Silva, by bis deed 18,184 of1886, giftedcertainproperty to
fourof bis sister’s children, via.,HendrickSalman£, Francina
f, and Selestina. f Selestina conveyed her $■ by deed No. 18,846of 1896 to Charles Peiris, who by deed No. 4,912 of 1917 conveyedto plaintiff.
The objection is raised by defendants that the deed of gift of 1886created a valid fidei commismm, and that, therefore, plaintiff’s titleis bad.
Theprohibition in the deedis thatthe donees’shallnot sell or
mortgage the property to any other but themselves. In 16 N. L. B. 828it was heldthat a prohibitionagainstalienationont of the family
of a legatee or donee is itself sufficient to create a fidei oommiasum infavour of the members of the family. The donees got a right of owner-ship,subject to the right ofpresumption on thepart of the other
shareholders, and plaintiff’s title is therefore bad. The action isdismissed, with costs.
R. L. Pereira, for plaintiff, appellant.
March 5, 1920. Ennis J.—
This was an action for partition, in which the plaintiff claimed62/396 shares. His claim wasdisallowed. Itappears thatone
Simon Silva in 1886 executed the document No. 18,184 infavour of Hendrick Soysa, Salmon Soysa, Francina Soysa, andSelestina Soysa, conveying one-half of the land, excluding one-thirty-third.Selestina was totakeone-thirdof this, andthe
plaintiff’s claim is for this one-third of a half, minus the one-thirty-third, which share Selestina sold to Charles Peiris in 1895,who sold to the plaintiff. It further appears that Selestina, afterthe execution of her deed in favour of Charles Peiris, marriedCharles Peiris. The document No. 18,184 is headed a deed ofconveyance.Then there is anotethat theconsiderationwas
Bs. 200. It is to be observed that the original document has notbeen filed in the case, but a certified copy and translation has beenproduced to us on appeal. The document then proceeded to grantthe lands to the four persons named, who are said to be the childrenof Simon Silva’s sister. Later on in the deed they are referred to aspurchasers, and the grant is made to them, their heirs, or legalrepresentatives absolutely, with a direction that if it became neces-sary to sell or mortgage, it should be done among the four grantees,“ and shall not be sold or mortgaged to any outsider.” The learnedJudge has held that this direction has created a – fidei commimum,and he relied on the case of Robert v. Abey war dene. 1 I confess thatI find some difficulty in that case, but the document in the presentcase is not on all fours with the document in that case. In .that casethere was an express condition that nobody outside a certain circle
M1912) IS N. L. B. 323.
Gould obtain any right. The present document relates only to saleor mortgage to an outsider, and does not refer to any other right.The document does not specify what is to happen in the event of asale or mortgage to an outsider. The document, it is to be observed,is not a sale, but a conveyance, and whether by way of gift or on saleit is impossible to say. It must, therefore, be read strictly, and theRoman-Dutch rule of law in connection with such claims is thatthere is no fidei commie sum, unless1 the persons to be benefited areclearly designated. Juta, in his Law of Wills in South Africa (p. 106),says that if a testator prohibits his heirs from alienating propertyleft, and says nothing more, such a prohibition is termed nudum,and is of no force or effect, and the case of In re Lourenz 1 supportsthe principle laid down by Juta. In our own reports there is the caseof Nugara v. Oonsal, 2 where it was held that the words in a willthat the children should not be at liberty to mortgage, sell, orencumber the property during their lifetime did not create a fideioommieeum. I find myself unable to agree with the learned Judgethat the document in question in this case creates a fidei oommieeum.The persons to be benefited are not clearly designated.
I would accordingly set aside the decree, and send the case backfor further proceedings. The first to the eighth and the tenth andeleventh defendants should pay the costs of the appeal.
Loos A.J.—I agree
Set aside.
1S. A. Law Reports, Oops Div., L. 1912, p. 643.
2 (1912) 14 N. L. R. 301.