Abeywardene v. Tyrell.
Present: Poyser S.PJT. and Maartensz J.
ABEYWARDENE et al. v. TYRELL et al.
205—D. C. Colombo, 404.
Entail and Settlement Ordinance—Property gifted subject to fidei commissum—Application by donors to Court to exchange property for another—Nodirection by Court that the property given in exchange should be subjectto same fidei commissum—Effect of Court’s order—Ordinance No. 11 of1876. s. 8.
By a deed of gift No. 2110, dated October 4, 1883, S. F. and his wifeM. P., gifted to their minor daughters C. and J. a property called “ThePriory”, subject to a life-interest in favour of S. F. and, in case hiswife survived him, a life-interest of half in favour of the wife; and alsosubject to a fidei commissum in favour of the lawful issue of C. and J.
On June 17, 1896, the donors applied to the District Court in caseNo. 116 under the Entail and Settlement Ordinance, No. 11 of 1876, forauthority empowering C. and J.’s guardian ad litem to convey theproperty to themselves free of all conditions and restrictions and, inconsideration thereof, empowering the donors to convey another property,viz., “ Sirinivasa ”, to C. and J. subject to the condition that they shall-not sell or mortgage, or otherwise alienate the same except with theirconsent and subject to a life-interest in their favour.
There was no provision in the prayer of the application for a fideicommissum in favour of the issue of the donees nor was there such aprovision in the order made by the District Judge.
The Court allowed the application and the conveyances were executed.Held, that upon the execution of the conveyance in favour of C. and J. ■the property “Sirinivasa” became subject to the same fidei commissumas that created by the deed of gift No. 21>10, by virtue of section 8 of theEntail and Settlement Ordinance.
HIS was an action for declaration of title to premises known as“ Sirinivasa ”, situated in Edinburgh Crescent, Colombo. The
facts afte given in the headnote. The main questions argued in the casewere (1) whether the Court had power to alter or vary the conditionscontained in the deed of gift and whether the order in D. C. Colombo, 116,was made without; jurisdiction, (2) whether there was a valid acceptanceof the deed of gift No. 2110.
The learned District Judge held that the District Court had no juris-diction to make the order in D. C. Colombo, 116, and dismissed theplaintiff’s action on the ground that the order was a nullity and that thegrantees under the subsequent deed No. 1398 did not hold the propertyconveyed to them subject tq -the. fidei commissum created by deedNo. 2110.
H. V. Perera, K.C. (with him N. E. Weerasooria and D. W. Fernando),for plaintiffs, appellant.—Section 4 and the. subsequent sections ofOrdinance No. 11 of 1876 are relevant. A similar situation arose in.Mirando v. Coudert1. The petition to Court in D. C.. Special Case No. .116sets out that the property should go to the unborn- issue. Condition ofexchange should be distinguished from the condition attaching to theproperty after the exchange. The attaching of the fidei commissum is
Abeywardene v. Tyrell.
automatic once the exchange takes place. Section 9 is complementaryto section 8, and the effect of these sections is that “ Priory ” would be. absolutely unencumbered. Immediately the exchange takes place,there is the automatic operation of section 8.
The District Judge has not appreciated the legal implications of theorder in D. C. Special Case No. 116. One must interpret even a judicialproceeding according to law. What was asked for was an exchange of“ Priory ” for a property which was of even greater value. If the peti-tioners wanted “ Sirinivasa ” to be free from conditions, they would have.stated so. Absence of jurisdiction is different from an erroneous exercise,of jurisdiction. Mirando v. Coudert (supra) is exactly in point and goes-very far indeed. See the judgment of Shaw J. at page 95. The order ofthe District Judge in the exchange proceedings cannot possibly be said tobe a nullity.
[Poyser J.—The effect of the judgment is to destroy the fidei com-missum ?]
Section 8 has been misunderstood by the District Judge. It definitelysays, “shall become”. It can become so, only on the exchange takingplace.
R. L. Pereira, K.C. ("with him E. F. N. Gratiaen and F. C. de Saram),5or defendants .and substituted defendants, respondents.—It is necessaryto have a clear idea of what the application in D. C. Special Case No.' 116was and how it was granted. It may have been assumed that the fideicommissum was invalid for want of proper acceptance. It may have alsobeen assumed that section 8 would not apply as it refers to propertyexchanged ”, i.e., already exchanged. The petition was to exchange(at a future date) the “ Priiory ” for “ Sirinivasa ”. What the Courtallowed was not the application that was actually made. The applicationwas for a “ change ” in the conditions under which the property was held.There is no mention of “ exchange ” which is the word used in so manysections of the Ordinance. Further, even the respondents to the appli-cation consented to the proposed change. The idea of the donors was togive the two daughters two separate properties, whereas previously,according to the deed, the property was to be held “ in common ”, TheCourt itself wanted “ Sirinivasa ” to be transferred in advance inde-pendently. The Ordinance does not in any way authorize a chhnge to beeffected in the terms of the fidei commissum. The Court did not order anexchange at all. The Court’s order was null and void because the Courthad no jurisdiction to make it.
What actually happened was “ Priory ” was reco'nveyed to Ceciliaimmediately- and another property to Jane.
The District Judge was wrong in holding that there was a valid accept-ance of the fideicommissary deed of gift. The brother-in-law is neithera natural nor a legal guardian of the minors. See Silva v. Silva3; AvichchiChetty et'al. v. Fonseka et al.~; Fernando v. WeerakoonFernando et al. v.Cannangara et al. ‘; Wickremesinghe v. Wijetungez; Nonai et al v. Appu-hamy Fernando et al. v. Alwis et al.7 In Abdul Coder v. Uduma Lebbe
1 (1908) 11 N. L. R. 161.5 [1913) 16 N. L. R. 413.
*(1905) 3 A.C.R.4.* (1919) 21N. L. R. 165.
* (1903) 6 N. L. li. 212.7 I103S 37 N. L. R. 201 at 220.
MAARTENSZ J.—Abeywardene v. Tyrell.
however, there is a passage at page 45 that acceptance by a brother-in-lawis valid. Though this is an isolated judgment, it has been followed by theDistrict Judge. The later judgment in Fernanda et al. v. Alwis et al.(supra) at page 221 is a more considered one and is a correct statementof the law.
Was there a ratification because the donees were parties to the appli-cation of 1896 in proceedings No. 116? We have to be guided by theapplication itself. Cecilia really, far from ratifying, condemned the fideicommissum and wanted an absolute interest. See Fernando et al. v. Alwiset al. (supra) at p. 224, where it was held that a deed of renunciation isnot a proof of' acceptance. The application can in no way be construedas an acceptance.
The order in proceedings No. 116 was not an order sanctioning anexchange. There is no order that “ Sirinivasa ” must be transferred.It merely says that on petitioner’s transferring “ Sirinivasa ”, respondentsare authorized to transfer “ Priory
H. V. Perera, K.C., in reply.—The order made in proceedings No. 116was entirely in accordance with the terms of the application. Court hadto protect the interests of fideicommissaries. It had to satisfy itselfabout the worth of the property to be exchanged. Under these circum-stances, Court’s function was to authorize the transfer of fidei commissumproperty provided only that the property given in exchange was ofsufficient worth.
On the question of acceptance, the law favours the acceptance of giftsto minors. Where a gift is accepted by a member of the family on therequest of the donors, there is a valid acceptance. This request can bepresumed from the fact that the application of 1896 was based on thefooting that there had been a perfected gift. Even if such a request wasabsent, there is ample evidence that the acceptance of the gift by thebrother-in-law was ratified'by the donees. Abdul Cader v. Uduma Lebbe(supra) is in appellant’s favour. Fernando et al. v. Alwis et al. (supra)is not irreconcilable, because the donor in this case was the legal guardianand therefore could have got anybody to accept the gift.
*Cur. adv. vult.
February 23, 1938. Maartensz J.—
The plaintiffs in this case appeal from a judgment of the District Judgeof Colombo dismissing their action for declaration of title to a parcel ofland described in the schedule to the plaint as lot No. 2 of the premisescalled and known as “ Sirinivasa ” bearing assessment No. 8, situated inEdinburgh Crescent, Colombo.
The appeal raises certain questions under the Entail and SettlementOrdinance, No. 11 of 1876, which arise in this way : ^
Siman Fernando and his wife Maria Perera by deed No. 2110 dated .October 4, 1883, gifted to their daughters, Cecilia and Jane Fernando, twocontiguous allotments of land (referred to in the deed as lots 4 and 5)forming one property situated in Maradana Ward No. 8 of the MunicipalCouncil, Colombo (hereafter referred to as the “ Priory ”), subject to(a) a life-interest in the entire property in favour of Siman Fernando and
308MAARTENSZ J.—Abeywardene v. Tyrell.
in the event of Maria Perera surviving her husband, subject to a life-interest in her favour in half the property; (b) a fidei commissum infavour of the lawful issues of the donees, and if one of the donees diedwithout issue, in favour of the issue of the surviving donee subject to thesame conditions and restrictions.
The donees were minors and the acceptance of the gift on their behalfis in the following terms :
“And these presents further witness that Mututantrige John JacobCoorey also of Horetuduwa aforesaid doth hereby on behalf of the saidMututantrige Cecilia Fernando and Mututantrige Jane Fernando, whoare •minors jointly with Mututantrige Alfred Thomas Fernando andMututantrige James Fernando, brothers of the said minor donees acceptthe gift and grant of the said premises subject to the respective condi-tions aforesaid
On June 17, 1896, the donors filed in the District Court of Colombo apetition and affidavit entitled “'In the matter of an application under theEntail and Settlement Ordinance, 1876
The donees were made respondents to this petition, and as JaneFernando was still a minor, James Fernando her brother was also made arespondent for the purpose of having him appointed guardian ad litem ofthe minor respondent.
The petitioners set out the terms of the deed of gift No. 2110 in theirpetition and averred that they desired to make better provision for theirunmarried daughters by giving to them the several allotments of land(described in schedule 5 to the petition) and all that house and buildingsbearing No. 8 called and known as “ Sirinivasa ”, situated at EdinburghCrescent, Flower road, and Greenpath, Cinnamon Gardens, •“ in lieu ofand instead of the said premises called the “ Priory ”.
The terms on which the gift was to be made are set out in the body andin the prayer of the petition.
The prayer reads as follows : —
“Wherefore the petitioners pray under the provisions of the Ordi-nance No. 11 of 1876, that this Court may be pleased—
to authorize and empower the first respondent and the third
respondent as guardian ad litem of the second respondent toconvey and assign unto the first petitioner the said premisescalled and known as the “ Priory ” free from all conditionsand restrictions and to authorize and empower the said firstrespondent and the third respondent as guardian as aforesaidter execute the necessary deed of conveyance in favour of the •first petitioner absolutely and free from all conditions andrestrictions.
In consideration thereof to authorize and empower the petitioners
to transfer and assign unto the first and second respondentsthe said allotments of land and the said buildings called“Sirinivasa” (fully described in the said schedule B) subjectto the conditions that they shall not sell, mortgage, or other-wise alienate the same except with the consent of the peti-
MAARTENSZ J.—Abeywardefie V: Tyrell.509
tioners or the survivor of them and subject to a life-interestin favour of the first petitioner and a condition that afterfirst petitioner’s death second petitioner should be entitledto enjoy half of the rents thereof”.
There is no provision in paragraph 2 of the prayer for a fidei commissumin favour of the issue of the donees, nor is there such a provision in theorder made by the District Judge which is as follows : —
“It is hereby adjudged and ordered that James Fernando of Hore-tuduwa be and he is hereby appointed guardian of Jane Fernando(the second respondent) in this matter to represent her in these pro-ceedings.•"
It is hereby further ord'e^ecT" and jdecreed that upon the petitionerstransferring and assigning unto jfce first and second respondents CeciliaFernando and Jane Fernando*!s6ie allotments of land (fully described inschedule B to the said petition of the petitioner) situated at Edinburgh• Crescent, Flower road, and Greenpath, Colombo, and the buildingsthereon called and known as “ Sirinivasa ” bearing assessment No. 8subject to the conditions following, that is to say, viz., that they thefirst and second respondents shall not sell, mortgage, or otherwisealienate the said premises except with -the consent of the petitionersor the survivor of them and that the first petitioner shall during hislifetime be entitled to take, use, enjoy, and appropriate to his own usethe rents, issues, and profits of the said premises and that after his deathand in the event of the second petitioner surviving him she shall duringher lifetime be entitled to take, use, enjoy, and appropriate to her ownuse one just half of the said rents, issues, and profits, the other half thereofbeing taken, used, enjoyed, and appropriated by the first and secondres; dents, that -the said Cecilia Fernando and James Fernando asguardian of the said Jane Fernando do and they are hereby authorizedand empowered to convey and assign unto the said Mututantrige SimanFernando the first petitioner the aforesaid lands and premises calledand known as the “ Priory ” (fully described in schedule A in the saidpetition) absolutely and free from all conditions and restrictionscontained in deed No. 2110, dated October 4, 1883, and that the saidCecilia Fernando and James Fernando as guardian as aforesaid do andthey are hereby empowered and authorized to execute and deliver thenecessary deed of conveyance of the said premises in favour of the saidMututantrige Siman Fernando absolutely and clear of all conditionsand restrictions
In pursuance of this order Siman Fernando and his wife Maria Pereraby deed No. 1398 (P 4) dated June 23, 1896, conveyed “Sirinivasa” toCecilia and Jane Fernando subject to the condition that they shall not sell,mortgage, or -otherwise alienate the premises except with the consent ofSiman Fernando and Maria Perera or the survivor of them and subject toa life-interest in favour of Siman. Fernando in the whole property and inhalf in favour of Maria Perera if she survived her husband.
The deed recites the terms on which the “ Priory ” was gifted to thedonees by deed No. 2110'; the terms of the order made by the DistrictJudge in Special Case No. 116 of the District Court of Colombo ; and the
510MAARTENSZ J.—Abeywardens v- Tyrell.
consideration for the grant is stated th.us : “ Now know ye and thesepresents witness that the said Mututantrige Siman Fernando and ColombaPatabendige Maria Perera in consideration of the premises and in pursu-ance of the said order of Court do and each of them doth hereby grant,convey, assign, set over and assure unto the said Mututantrige CeciliaFernando and Mututantrige Jane Fernando, their heirs, executors,administrators, and assigns by way of gift”
On the same date by deed No. 1399 (P 3) Cecilia and James Fernandoas guardian ad litem of Jane Fernando conveyed the “ Priory ” to SimanFernando and Maria Perera absolutely “ freed and clear from all andevery the restrictions and conditions contained in the said deed of giftNo. 2110 of October 4, 1883 ”. '
The deed contained the same recitals as deed No. 1398 with the additionof the recital that deed No. 1398 had been executed.
The consideration for the conveyance is the deed of conveyanceNo. 1398.
The deed of gift No. 1398 contained no fid,ei commissum for the benefitof the issue of- the grantees, and on the footing that the grantees acquiredabsolute title-to “Sirinivasa” subject to the life-interest reserved to thegrantors and the prohibition against alienation without the consent of thegrantors, Cecilia Fernando by deed No. 1401, also executed on June 23,1896, sold her undivided moiety of “ Sirinivasa ” to Siman Fernando fora sum of Hs. 45,000.
By an indenture No. 2180 (P 6) dated June 13, 1900, Siman Fernandoand Jane Fernando effected a partition of the property by which theeastern portion of the property marked A, B and C in the plan datedJune 20, 1900 (the date must be incorrect) made by Juan de Silva, wasconveyed to Jane by Siman Fernando and the western portion marked Dand E in the same plan was conveyed by Jane Fernando to Siman Fer-nando. By deed No. 3129 (P 7) dated November 30, 1905, Jane conveyedher share of Sirinivasa ” to Siman Fernando with the consent of MariaPerera.
By deed dated December 6, 1907 (P 8) Siman Fernando sold theproperty to his son James Fernando.
James Fernando died on March 17, 1911. His last will and codicilwere proved in case No. 3,927 of the District Court of Colombo and theexecutors transferred by deed No. 1382, dated July 12, 1924, inter alia,the property in question to the Colonial Secretary of Ceylon and Govern-ment Agent of the Western Province as trustees of the Sri ChandrasekereFund. Jane Fernando died on May 6, 1933. The plaintiffs, who are herchildren, claim that by the operation of section 8 of the Entail andSettlement Ordinance, 1876, the premises described in deed No. 1398,became subjectyto the fidei commissum created by deed No. 2110 and thatthe defendants, since the death of Jane Fernando, are in wrongful posses-sion of the land described in the schedule to the plaint. The plaintiffsaccordingly prayed for declaration of title to the said premises and forpossession and damages.
The pleas set up in defence are formulated in the 14 issues upon whichthe parties went to trial. The main contentions arising from these issuesare: (a) that the Court had no power to alter or vary the conditions
MAARTENSZ J.—Abeywardene v. Tyrell.
contained in the deed of gift No. 2110 and that the drder of June 18, 1896,was made without jurisdiction and was therefore a nullity ; -(b) that therewas not a valid acceptance of the deed of gift No. 2110 and the fideicommissum which it purported to create could not attach to the propertyconveyed by deed No. 1398.
The learned District Judge held that the District Court had no juris-diction to make the order made in case No. 116 (Special) as the orderpurported to alter, change or modify the terms upon which a propertysubject to a fidei commissum is to be held and dismissed the plaintiffs’action on the ground that the order was a nullity and the grantees underthe deed No. 1398, did not hold the property conveyed to them by thedeed subject to the fidei commissum created by deed No. 2110.
The appellants contended that the application made in Special CaseNo. 116 to exchange “ The Priory ”, which was subject to a fidei com-missum, for the property referred to as “ Sirinivasa ”, was an applicationwhich the District Court had jurisdiction under the provisions of section 4of the Entail and Settlement Ordinance, 1876, to entertain and giveeffect to if so advised. This jurisdiction, it was argued, was not oustedby reason of the fact that the Court made a mistake in the terms uponwhich the exchange was allowed and it was further argued that the orderauthorizing the conveyance of “ The Priory ” to Siman Fernando andMaria Perera free from all conditions and restrictions was an order whichthe Court had power to make, and the deed No. 1399 (P 3) executed inpursuance of that order by the persons authorized to execute it conferredon the grantees a title free from the fidei commissum created by deedNo. 2110.
In support of these propositions we were referred to the case of Mirandov. Coudert'. The land in dispute in that case was gifted to Isabel Mirandosubject to certain conditions. The donee and her husband after thedeath of the donor applied to the District Court for an order, under theprovisions of the Entail and Settlement Ordinance, declaring the prohibi-tion against alienation contained in the deed of gift to be null and void,and authorizing the sale of the premises and the appropriation by theapplicants of the proceeds of sale to their use and benefit. A decree wasentered in terms of the application and the property was sold by theapplicants to the Archbishop of Colombo, the predecessor in title of thedefendant.
The plaintiff, one of the five children of Isabel Mirando, brought this,action after her death claiming a declaration of title to one-fifth on thefooting that the deed of gift created a fidei commissum in favour of thedescendants of Isabel Mirando and that the sale by her husbandunder the authority of the District Court was invalid as against herchildren.
The Supreme Court held that the deed of gift created a fidei commissum,with regard to the question “ what is the effect of the sale by IsabelMirando and her .husband authorized by the District Court in 1888 ? ”Shaw J. said, “ That there were irregularities in .obtaining the order, and
(1916) 19 iV. L. S. 90.
512MAARTENSZ J.—Abeyinardene v. Tyrell.
that the decree was erroneous and in part unauthorized by the Ordinanceunder which it was made, I feel no doubt. A guardian ad litem shouldhave been appointed to represent the infant children, whose interestswere clearly adverse to their parents, the applicants and the declarationthat the prohibition against alienation contained in the deed of gift wasvoid and inoperative was wrong, and was not authorized by the Ordinance,which is for the purpose of enabling the Court to authorize sales and otheralienations when an entail exists. The order for sale, however, isauthorized by the Ordinance, and, that order having been made, it is, inmy opinion, in the nature of a judgment in rem, and valid as against allthe world until it is set aside ”. Ennis J. inclined to the view that apurchaser at a sale ordered by the Court under the Ordinance “ would notbe bound to look beyond the. order of the Court, or to examine the proceed-ings, or challenge the discretion bf the Court before he could safelypurchase ”. The Ordinance does not appear to authorize an applicationto the Court for a declaration that the conditions attaching to a gift donot create a fidei commissum, and the objection to the jurisdiction hadmore force than in this case.
The respondents contended that the view taken by Ennis J. would notapply in this case as the transferee was himself a party to the applicationand would be affected by all the defects in the proceedings.
It was also argued that what we had to consider was not whether theCourt had jurisdiction to order an exchange of the property but whetherit had jurisdiction to order that the property given in exchange should befree from the bond of fidei commissum. It was contended that as it hadno jurisdiction to make such an order the whole of the order Was bad forwant of jurisdiction.
Another line of argument was that the application made in SpecialCase No. 116 was not an application to exchange the property called“ The Priory ” for the property referred to as “ Sirinivasa ”, but anapplication made with the object of donating property to Jane and CeciliaFernando free from the bond of fidei commissum and of releasing “ThePriory ” from the bond created by the deed No. 2110. It was pointedout that the word “ exchange ” was carefully omitted from the appli-cation. J am unable to accede to this argument. The applicationpurports to be made under the provisions of-the Entail and SettlementOrdinance, and whatever may have been the intentions of the petitionersand respondents, the application is in terms an application to theCourt to authorize the grant of “ Sirinivasa ” in exchange for “ ThePriory
As regards the order made in D. C. Special Case No. 116, I am unableto agree with the District Judge that it is a nullity and of no effect forwant of jurisdiction. There can be no doubt that the District Judge hadjurisdiction to entertain the. application and authorize an exchange of“ The Priory ” for “ Sirinivasa ”. He also had jurisdiction to authorizethe transfer of “ The Priory ” to Siman Fernando and Maria Perera freefrom the fidei commissum created by deed No. 2110 and the transfer bythen* of “ Sirinivasa ” to Cecilia Fernando and Jane Feirnando. The defectin his order, if it is a defect, is that he did not direct that
MAARTENSZ J.—Abeywardene v. Tyrell.
“ Sirinivasa ” should be conveyed to the dcmees subject to nfidei commissum in favour of the lawful issue of the donees. I havesaid “ ‘ if ’ it is a defect ” because there is no direction that“ Sirinivasa ” should vest in the donees free from the fidei commissum whichattached to “ The Priory It need not necessarily be implied from theomission of such a direction in the order.
There might have been some force in the argument that the order wasdefective if the attaching of the fidei commissum to M Sirinivasa ” dependedon the form of the order made by the District Judge ; but that is not thecase. The governing section (section 8) enacts as follows :
“ Any property taken in exchange for any property exchanged under
the provisions of'this Ordinance shall become subject to the same entail,
fidei commissum, or settlement, as 'the property for which it was given
in exchange was subject to at the time of such exchange ”.
In my opinion “ Sirinivasa ”, in terms of this section, became subjectautomatically to the fidei commissum to which ‘‘ The Priory ” was subjectupon the necessary deeds being executed, although the prohibition againstalienation and the fidei commissum for the benefit of the lawful issue of.Cecilia and Jane Fernando were not embodied in the deed No. 1398.
I agree with the District Judge for the reasons stated by him thatsection 8 applies to a first exchange of property subject to a fidei com-missum as well as to any subsequent exchange of property.
As regards the acceptance of the donation .made by the deed of giftNo. 2110 by John J. Coorey, who was a brother-in-law of the donees,'the District Judge relied on a dictum of mine in the case of Abdul Cader v.Uduma Lebbe which reads thus : “ The deed of gift was accepted onbehalf of the donees, who were minors, by their brother-in-law, and I amof opinion that there was a sufficient acceptance of the deed to render thedonation valid ”.
It does not appear from the report whether the question of acceptancewas argued nor is there in my judgment a statement of the circumstancesin which the gift was accepted by the brother-in-law of the donees. Itis possible that the dictum should be restricted to the facts of that case.It is not necessary to decide in this case whether a gift can be acceptedby a brother-in-law of the minor donees, for there is ample evidence thatthe acceptance of the gift by John J. Coorey was ratified by the donees.
I am of opinion accordingly that -the appeal must be allowed andjudgment entered for plaintiffs as prayed for with costs except as todamages. The plaintiffs will be entitled to damages as agreed on, whichwas Rs. 3,000 a year.
The appellants will be entitled to the costs' of appeal.
Poyser S.P J.—I agree.
1U93H33N. L. R. 44.
ABEYWARDENE et al. v. TYRELL et al