KEUNEMAN J.—Coder Lebbe and Thenuwarahenaya.
4944Present: Keuneman and Cannon JJ..CADEB LEBBE, Appellant, and THENUWARAHENAYA
et al., Respondents.
210—D‘. C. Kandy, 753.
2Fidei commissum—Deed of gift to descendants or- heirs—From generation togeneration—Valid fidei commissum for four generations.
Where a deed ofgift containedthe following clause:After my
death this property theaforesaidMR.and the said M. R’sdescendants
or her heirs, children, grandchildren, &c., shall possess undisputedlyfor generations and for ever from generation to generation, but (she orthey) shall not alienatethe sametoanoutsider to my familyby way of
transfer, mortgage or security)
Held, that the deedcreated avalidfidei commissum operative for £ou;
A PPEAL from a judgrhent of the District Judge of Handy.
If. V. Perera, K.G. (with him H. W. Thambiah), for defendant,.appeJJant.
N. Nadarajah, K.C. (with him N. E. Weerasooria, K.C., and C. E. S.Perera), for plaintiffs, respondents.
Cur. adv. vult.
November 21, 1944. Keuneman J.—
The plaintiffs brought this action to be declared entitled to the fieldNaran Kumbura. They alleged that the field belonged originally toPusumba Vidane Henaya who by deed No. 931 of March 29, 1873 (PI),gifted the same to Menu Ridee subject to a fidei commissum for generations,Menu Ridee died leaving her son Kuda Henaya, who himself died leavingas his heirs the plaintiffs.
The defendant inter alia denied that P 1 created a fidei commissum,and alleged that Kuda Henaya had by deed 16085 of August 8, 1921(D 1), transferred the field in question to Kiri Ukku Ridee, who by deed1258 of April 4, 1923 (D 2), transferred to the defendant.
As the argument turns mainly on the terms of the deed P 1, I set outthe relevant terms which are as follows: —Pusumba Vidane Henayagranted this land among others “ by way of gift to my granddaughter,Menu Ridee”. Among the conditions imposed was this:“After my
death this property the aforesaid Menu Ridee and the said Menu Ridee'sdescendants or her heirs, children, grandchildren, &c., shall possessundisputedly for generations and for ever from generation to generationbut (she or they) shall not alienate the same to an outsider to my familyby way of transfer, mortgage or security ”. . The grantor added that“ no .one of my descendants ” shall be entitled to raise any disputeswhatsoever.
The principal argument addressed to us by Counsel for the appellantwas that the use of the words “ or her heirs ” brought in a class of
KEt? NEMAN J.—Cadet Leb be and Tlienuw arahenaya.
persons quite distinct from the descendants, and that there was un-certainty as to the persons to be benefited by the fidei commissum.The fidei commigsum. it was argued, accordingly failed.
Counsel for the appellant relied on the ease of Amaratunga v. Alwis.1In this case in one fidei commissum alleged to have been created thebeneficiaries were to be “ the children and heirs descending from herand authorised persons such as executors, administrators and assignsIn the other alleged fidei commissum the beneficiaries were to be “ herheirs and authorised persons such as executors, administrators andassigns Soertsz J. drew attention to the use of the word “ assigns ”and refused to treat that phrase as surplusage or a notarial flourish andto strike out or ignore it. Soertsz J. adopted the language of Innes C.J.in Ex parte Van Eden & others2 that intention must be arrived at “* n®tby considering what we think it would have been a good thing if theydid mean, or what they ought to have meant, but by ascertaining theplain meaning of the words used. If these words are capable of morethan one construction, then of course the Court would lean towards theone most in favour of freedom of alienation ”. Soertsz J. held that nofidei commissum was created.
We have also been referred to the Full Bench ease of de Saram et at.v. Kadijar et als. This related to a complex and badly drafted will,,.and it is not possible in a short space to set out the full terms. It issufficient for the purposes of this case to say that inter alia it was a deviseto certain named “ heirs and heiresses ” with a prohibition againstalienation imposed upon their “ issue or heirs ”—or as an alternativereading, “ heir or heirs ”. Howard C.J. comments on this phrase as wellas other matters and comes to the conclusion that “ there was no cer-tainty with regard to the beneficiaries. The class is too wide for ascertain-ment and too vaguely described Soertsz J. commented on the words-" heirs or heirs ” which included a much wider class than “ childrenwho were also referred to, and added that if the actual words were“ issues or heirs ” confusion is worse confounded, and that there was abewildering uncertainty from the choice that appears to Tiave beengiven, and that even if the word “ or ” was given the force of “ and ”there emerged an indeterminate and almost unlimited group. Hearne J.commented on the phrase “ heir or heirs ” more particularly with regardto the question of the time of vesting of the fidei commissum and drew-attention to the absence of such words as “ from generation to genera-tion ”. He also pointed out that on the language of the will includingthis phrase it could not be confidently pointed out what persons wereintended.
I have only dealt with a particular phrase which had to be interpretedin the Full Bench case, and have not referred to the other difficultiesin the case. For instance, one of the many questions raised there waswhether the testator intended to create a fidei commissum or a trust. Thave not referred to all these matters because they are not immediatelyrelevant to the point to be decided in this case, and I have also referredonly to the opinions of the majority of the judges. I wish with respect to
2 (1905) Transvaal Reports 151.
1 40 N. L. R. 363.
3 45 N. L. R. 265.
KBDNBMAIf J.—Coder Lebbe and Thenuwarahenaya.
adopt the language of Wendt J. in Ibanu v. AbeysekeraL which Howard•C.J. thought of particular interest, viz.—
“ When the intention to substitute another (or fidei commissary)for the first taker (or fiduciary) is expressed or is to be gathered bynecessary implication from the language of the wall, a fidei commissumis constituted. Where these requisites appear, it matters not thatthe language employed is open to criticism, and therefore too muchweight ought not to be attached to decided cases in which the Courts,seeking to ascertain the testator’s intention from variously wordedwills and varying circumstances, have pronounced for or against thefidei commiss:um. ” Wendt J. added that “ Where there is doubt,3 the inclination of the Court is against putting a burden upon theinheritance. ”
I wish also to draw attention to the language of Lord Porter in thePrivy Cotmcil decision of Noordeen v. Badurdeen2:—
“ Difficulty of construction alone would not prevent the creation of afidei commissum. To bring about that result doubt is required, eitheras to whether such a condition has been created or who are the reci-pients of the bounty. ” Lord Porter had also previously stated—“ There is no doubt that under that system (the Homan-Dutch law)the creation of a fidei commissum will not lightly be implied and"requires both exact language and certainty as to the intention of thetestator and as to the persons to be benefited in order to effect itscreation.
I now turn to the language of the present deed. I think Counsel for theappellant has properly drawn attention to the use of the word “ heirsHe argued that this word may be regarded as bringing into the class ofbeneficiaries persons who are distinct from “ descendants ” or “ children,grandchildren, &e.” The word may include for instance the spouse,and in certain circumstances either ascendants or collaterals. I do notthink it is open to us to treat the words as mere surplusage or as a notarialflourish, and in my opinion we are not entitled to disregard the word orstrike it out. There can be no question that the use of the word creates adifficulty, and we have to consider whether it raises a doubt as to thepersons to be benefited.
In this connection I may point out that the word " heirs ” wouldcertainly include “ children ”—although it may also include a widerclass. It is true however that in this deed both the words “ heirs ” and“ children *’ occur, and it may be argued that a distinction was contem-plated. In my opinion the word must be regarded in its context. HereI cannot lose sight of the fact that the word “ heirs ” is flanked on oneside by the word “ descendants ” and on the other Ify the words“ children, grandchildren, &c. ” Nor is this all. We have the furtherphrases “ for generations ” and “ from generation to generation ”. Clearlythese phrases are applicable as much to the word “ heirs ” as to the words“ children, grandchildren, &c.,’, and I think it follows that the word■“ heirs ” will be read, not in its ordinary significance but as heirs “ for* 6 N. i. R. 344.* 45 N. L. R. 203.
KEXTNEMAN J.Coder Lebbe and, Thenuwarahenaya.
generations ” and “ from generation to generation If the matter is-regarded from this point of view, I think the construction of the word“ heirs ” as including the spouse or ascendants or collaterals becomesartificial and unreal. The phrases I have mentioned are of great signi-ficance, and in my opinion the word “ heirs ” should be interpreted asdescending heirs from generation to generation.
In this connection I may refer to the case of Umietty v. Ramaiah1.In this case the beneficiaries were to be " our lawful heirs ” and therewas a prohibition against alienation by “ our said heirs or issues ” and a.provision that the properties should be held and possessed for tengenerations under the restrictions imposed and in the form of fidei com-fn'issum. In this connection de Sampayo J. said—“ Now the word ‘ gene-rations ’ itself is indicative of the fact that he (the testator) contemplatedonly the descendants of the devises as the beneficiaries after them.It is argued however that it only points out the period of time to whiehthe fidei commissum is to extend and is not significant of the class ofpersons who are to take. But I think that the expression is used in thiswill in the natural sense and signifies degrees of kindred -proceeding fromthe devisees in the descending line, though at the same time, being ameasure of succession it also indicates the duration of the fideicommissum.
In the deed we have to construe I think this applies with particular-force, for the words “ for generations ” do not stand alone but areaccompanied by the words “ from generation to generation ”, and theargument that these words are used only to indicate the period of timefor the continuance of the fidei commissum is not applicable. The wordsare, I think, meant to explain and define the preceding words to whichI have referred.
In my opinion the deed in question constituted a valid fidei commissumin favour of the descendants of Menu Ridee for generations and fromgeneration to generation. As the deed was executed before the Entailand Settlement Ordinance of 1876, the fidei comrnissum will be operativefor four generations.
A further point was urged by Counsel for the appellant, namely, thatthe prohibition against alienation only extended to alienation to an” outsider to my family ”, that is, to the grantor’s family. He contendedthat by implication an alienation to a member of the grantor’s familywas permitted, and that Kiri Ukku Ridee, the grantee under the deed D 1,was a member of the family of Pusumba Vidane Henaya, the grantor-on P 1- The basis of fact upon which this argument is grounded is notsupported by the evidence. Kiri Ukku Ridee was a witness, and inexamination-in-chief she stated that her father Rana Henaya was abrother of Menu Ridee, and it will be remembered that in the deed P 1Menu Ridee is described as the granddaughter of Pusumba VidaneHenaya. But in cross-examination she stated—“ My father is relatedto Pusumba Vidane Henaya. They are the children of cousins. Therewas no re-examination. It is not possible to hold that Kiri Ukku Ridee
1 2 C. W. R. 26.
KEU NKMAN J.— Velupillai and de Silva. ,
-was a member of the family of Pusumba Vidane Henaya. It is un-necessary therefore to consider the matter of law raised by Counselfor th‘e appellant.
In the circumstances the appeal is dismissed with costs.
Cannon J.—I agree.
CADER LEBBE Appellant, and THENUWARAHENAYA et al., Respondent