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Present: The Hon. Mr. A. G. Lasoelles and Mr. JusticeMiddleton.
BABEY NONA et al. v. SILVA.
D. 0., Negombo, .6,172.
Fidei Commissionproperty—Partition—Effectof partitiondecree—
Conclusiveness—Fidei commisssrii how far bound—OrdinanceNo. 10 of 1863.
Property burdened with a fidei commissum may be partitionedunder . the provisions of OrdinanceNo. 10 of 1863, bnt such
partition has not the effect of destroying the fidei commissum. Itonly sets apart a specific portion of the common estate to whichthe rights of the fidei commissarius attach in severalty.
A partition effectedbetween thefiduciarii,whether by judicial
decree or by mutual agreement, binds the fidei commissarii, andcannot be reopened by them when tbeir interests accrue.
HIS was an action ret vindicatio.
The plaintiffs alleged that one Maria Silva by deed No. 490dated 19th August, 1870, donated the land in dispute to her three-children, to wit, Diyonis Silva, Manuel Silva, and Bastian Silva,subject to a fidei commissum in favour of their descendants; thatthe said land was partitioned in case No. 5,104 of the DistrictCourt of Negombo and the portion B was allotted to Diyonis Silva,while the portion A wa6 allotted to Manuel Silva (defendant); thatlot B was sold under writ against Diyonis Silva and purchased bythe defendant; that. Diyonis Silva died a few months prior to theaction, leaving five children, to wit, the plaintiffs and two others;that on the death of their father lot B came to the plaintiffs underthe fidei commissum. The plaintiffs prayed for a declaration of titleto three-fifths share of B.
The defendant denied that the deed of gift created a valid fideicommissum; and alleged that, even if it did, the effect of thepartition decree was to destroy the fidei commissum and to give abso-lute title to Diyonis Silva to lot B.
The deed of gift No. 490 contained the following clauses:—
“ That I, in consideration of the natural affection which I bearto my three children Migelhewage Diyonis Silva, Pin Manuel Silva,and Pin Bastian Silva of Udayartoppu aforesaid, and in consider-ation of divers other good reasons, have transferred, assigned, andmade over as a gift unto the said three persons or their lineal
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1906. descendants from generation to generation, subjeot to the hereinafter-jLttguat 13. mentioned conditions and enactments, the following four portionsof lends and houses standing thereon of the value of two hundredand twenty-four pounds and ten shillings of the lawful money ofCeylon, to wit: —
The said Diyonis Silva, Manuel Silva, and Bastian Silva shallnot sell, mortgage, or alienate or lease the above-mentioned landsor any portion thereof, and shall not sell the said lands for a debtof any one of them. It is ordained that all such acts shall becomenull and void.
“ Therefore the said donors, Diyonis Silva, Manuel Silva, and.Bastian Silva, have become owners for ever of the said lands andtheir appurtenances, so that they and their lineal descendantsfrom generation to generation shall, subject to the aforesaid con-ditions and enaotments, possess the same in equal shares. And Iordain that they shall redeem the mortgage effected by me of theportion of Kosgahawatta and the houses standing thereon firstmentioned herein, and the deed for the said land bearing No. 22,095.hypothecated therewith; with the exception of the said mortgageno act has been done whereby any person may hereafter set up anyclaim to the said lands.
“ Promising that I hold myself responsible as against allpersons objecting to these presents and to pay compensation, I.have hereby transferred, assigned, and set over as a gift in manneraforesaid.”
The District Judge (A. de A. Seneviratne, Esq.) dismissed theplaintiffs’ action. The plaintiffs appealed.
H. Jayewardene (with him G. Koch), for them.—The deed creates. a valid fidei commissum. The intention of the donor is quite.apparent. Property burdened with a fidei commissum cannot bepartitioned under Ordinance No. 10 of 1863—D. C., Colombo,
• 69,169 (1), Saram v. Perera (2), Tillekeratne v. Abeyesekere (3)^-butmay be partitioned under the common law, and such partition willonly affect the possessory rights of the parties entitled to possessionat the time, Parkin v. Parkin (4); such partition*- will not bindthe successors in the line of the fidei commissum (Maas dorp, vol I.,p. 34). The fiduciarius cannot enter into any compromise which.'has the effect of an alienation—De Montmort v. Broers (5);—and apartition amounts to an alienation (Jayewardene on Partition,
Ram. (1877) 304.(3) 2- N. L. R. 313.
3 Browne 188.(4) Buchanan (1869) 136.
(5) 57 L. J. P. C. 47.
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p. iv.). The case of Sathianaden v. Mathes PuUe (1) was wronglydecided. There the Supreme Court seems to have converted apartition action into a proceeding under Ordinance No. 11 of 1876.
Even if fidei oommissum property be partitioned under OrdinanceNo. 10 of 1863, suoh partition does not extinguish the fidei commis-sum, TiUekeratne v. Abeyesekere (2). The plaintiffs do not repudiatethe partition; they are willing to abide by it, but subject to thefidei oommissum.
Van Langenberg (with him F. de Soyza), for the defendant, res-pondent.—The deed does not create a fidei commiseum, the giftbeing in the alternative. It is bad for uncertainty. The mostrecent judgment of the Supreme Court on the question whetherfidei oommissum property could be partitioned is Sathianaden v.Mathes PuUe (3), which was adhered to by Lawrie J. in Saram v.Perera (4). (See also judgment of Baumgartner, D.J., inD. C., Galle, 6,673 cited in Jayewardene on Partition, p. 14.)
The effect of a partition decree under section 9 of the Ordinanceis to give the parties absolute title to the several shares, and if anyparty has been prejudiced his only remedy is an action for damages,Fernando v. Fernando (5). The decree is conclusive and givesabsolute title. For the appellant to succeed, the decree ought tohave expressed that the shares in severalty would be subject tothe fidei comrhissum as suggested by Lawrie J. in Saram v. Perera (4).
H. Jayewardene in reply.—The Court acted without jurisdictionin partitioning fidei oommissum property under Ordinance No. 10 of1863, and its decree amounts to a nullity, Nussirwanjee v. MeerMynoodeen (6).
Cur. adv. vult.
13th August, 1906. Lascelles A.C.J.—
The facts which have given rise to this appeal are simple, andmay be stated as follows. One Maria Silva, being the owner of aland called Kosgahawatta, by deed dated 19th August, 1870, don-ated this and another land to her three children, Diyonis, Manuel(the' defendant)* and Bastian. This deed is said to create a fideioommissum in favour of the descendants of the donees. By decreeof the District Court of Negombo the land was partitioned, and lotB was allotted to Diyonis. The share of Diyonis was seized andsold in execution and . bought by the defendant. Diyonis died
3 N.L.R.200.(4).3Browne 188.
2 N.L.R.313.(5)9N. L. R. 241.
<3) 3 N.L.R.200.(6)6M. I. A. 134 (155).
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shortly before the institution of this ease. The first, third, andfourth plaintiffs are three of the five children of Diyonis. Theplaintiffs contend that- the deed of gift created a fidei commissum intheir favour, so that the defendant, when he purchased the shareof Diyonis, took only the life interest of Diyonis. The first questionwhich arises is whether the deed of donation creates a fidei com-missum. In construing the deed the paramount question is, Whatwas the intention of the grantor? If the intention is clear to sub-stitute another fidei commissarius for the first taker or fiduciary,then a fidei eommi88um is established, Ibangu Agen v. Abeyesekere (1).
The deed begins with a transfer “ unto the said three persons ortheir lineal descendants from generation to generation subject tothe hereinafter-mentioned condition and enactments.” Thenfollows the usual prohibition of alienation. If the deed had stoppedhere, the alternative gift ” to these three persons or their linealdescendants ” might have given rise to doubt as to the grantor’sintention. But the concluding clause of the deed throws light on the
real intention. ” Therefore the saidhave become owners
for ever of the Baid lands and their appurtenances, so that they andtheir lineal descendants from generation to generation, shall, subject tbthe aforesaid conditions and enactments, possess the same in equalshare s.”
Heading the deed as a whole, I am satisfied that it does create afidei commissum in favour of the lineal descendants of the donees.
What, then, is the effect of the partition decree? The appellant
has contended that the Partition Ordinance has no application tolands which are subject to a fidei commissum, and that the partitiondecree in- this case must be treated as a nullity; he has also urgedthat, even if the land was properly the subject of partition, the parti-tion decree could not enlarge the life interest of Diyonis into plenumdominium. The respondent, on the other hand, contends that thepartition decree has conclusively established the defendant’s title-as absolute owner to the portion allotted to him.
The question whether the existence of a fidei commissum is a bar topartition has been the subject of much judicial difference of opinion.The authorities bearing on this question have been carefully collectedby Mr. Baumgartner in his judgment in District Court, Galle, No.6,678, which is reproduced iu Mr. A. St. 'V. Jayewardene’s work onPartition. There is abundant authority that the Boman-DutchLaw allowed the partition of property subject to fidei commissum.It will be enough to cite one passage from Voet (10, 2, 38), which 1
(1) 6 ,V. L. R. 344.
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clearly lays down that partitions between fiduciarii, whether .effectedby decree or by mutual agreement, are binding upon the fidei com-missarii, ’and cannot be reopened when their interests fall intopossession:—
“ Quod si fiduciariu8 heres, pendente fidei commissii conditionf,cum ceteris cohereditibus ad divisionem processerit, non potest fideicommissarius post conditionis eventum novam petere divisionem,infirmata priore; sed in, quce per fiduciarium bona fide factum estsiandum erit, sive in judicio sive extra judicium mutua coheredumpactione patrimonium defuncti distributum sit, cum hoc in parte lexnon distinguat."
The law in Cape Colony appears to be the same. Parkin v. Par-kin (1).
By English Law a partition decree can be obtained by a person
having only a limited interest as tenant for life, OasheU v. OasheU(2); by a tenant for life determinable on marriage, Hobson v.Sherwood (3); or by a tenant for a term, Baring v. Nash (4); andwhere there are remaindermen who may come into esse and beentitled they will be bound by a decree made against the tenant forlife, Wills v. Slade (5).
The partition of property subject to fidei commission is thusallowed by the common law of the Colony, and is in accordancewith the principles of English Law. I would add that any argumentbased on considerations of convenience appears to tell in favourof the liability of such properties to partition.
It is true that the language of the Partition Ordiuance appearsat first sight to limit the scope of the Ordinance to land which isheld in common by two or more persons as absolute owners.Section 2, for example, deals with the case of landed property belong-ing in common to two or more owners, and authorizes one or moreof such owners to compel partition.
This difficulty is largely reduced, if it is not altogether removed,when it is remembered' that by the Roman-Dutch Law the fiduci-arius was a true owner; he had a real though a burdened right ofownership. It is also material that in David v. Samelis Appu (6)this Court held that a trustee under the Buddhist TemporalitiesOrdinance was an owner for the purposes of the Partition Ordinance.In my opinion the balance of reason and authority is in favour ofthe view that property subject to fidei commissum may be the sub-ject of partition, and I hold, in the case under consideration, that
Buchanan (1869)136.(4)1Vesey andBeams551.
6 Sim. 643.(5)6Vos. 498.
4 Beat. 184.(6)7-V. L. B.163.
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the property in dispute, though subject to fideir commissum, waslawfully partitioned.^
But the partition decree in no way extinguishes the reversionaryinterest of the fidei commissarius. It merely sets apart a specificportion of the common estate to which the rights of the fidei com-missarius attach in severalty.
By no reasonable construction of the Ordinance can it be heldthat the effect of a partition decree is to enlarge the life interest ofthe fiduciarius into absolute ownership. In the words of Lord
Watson in Tillekeratne v. Abeysekere (1): “the partition
would not necessarily destroy a fidei commissum attaching to oneor more of the shares before partition.”
In the present case, if the deed of gift created a fidei commissumin favour of the plaintiffs, as I hold it did, the partition decreeoperated subject to the conditions of the fidei commissum, and in noway prejudicially affected the rights of the plaintiffs as fidei com-missaries under the deed.
In my opinion the judgment of the District Court should be setaside and judgment entered for the plaintiffs in conformity withtheir plaint.
The first and most important question to be considered in thiscase was whether the deed of gift on the part of Maria Silva, dated19th August, 1870, impressed a fidei commissum in favour of theirchildren on the property which he thereby donated to Manuel,Diyonis, and Bastian.
At the argument I was inclined to think that the persons to bebenefited were not designated, but having carefully considered theterms of the habendum of the deed, it is plain, I think, that theintention of the donor was to substitute the lineal descendants ofhis three donees as his heirs, and the restraint on alienation is clear.
If, then, this land is impressed with a fidei commissum, what is theeffect of partitioning it ?
At the time of the partition and allotment of B to Diyonis he hadbut the fractional interest of a fiduciary in the whole land par-titioned. How, then, can it be argued that the effect of partitionis to give him plenum dominium in a separate portion ?
A fiduciarius has, it is true, a real though burdened right of owner-ship which may' or may not develop into plenum dominium. Assum-ing that property subject to a fidei commissum cannot be partitioned,in the present case it has, rightly or wrongly, been partitioned by a
fl) 2 N. L. ft. 313.
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Court with jurisdiction to order partition, and I do not think thisCourt can say that the act of partition was a nullity on the groundthat the V)onrt had no power to order the partition of property infidei commissum any more than it could say that a decree orderinga testator’s property to be sold for the personal debt of the exe-cutors, after the property had been sold, was a nullity: Oavin v.Hadden (1).
I would prefer to say that in partitioning the Court has doneno more than to confer on Diyonis the interest of a fidueiarius in aseparate portion of the property.
Upon the writ -issued on the 15th July, 1904, in the case againstDiyonis aH that was sold was the right, title, and interest of Diyonis.
This interest would expire upon his death soon after, and theproperty in B would devolve in the terms of the fidei oommiesumupon his heirs.
I agree, therefore, that the judgment of the District Court shouldbe set aside, and judgment entered for the plaintiffs in terms of theprayer in their plaint with costs in this Court and in the Court below.
BABEY NONA et al. v. SILVA