( 449 )
Present : Bertram C.J., Ennis and De Sampayo JJ.
CRAEB v. LOKU APPU et al.✓
146—146 a—D. 0. Eegalla, 4,593
Fidei commissain—Interpretationofdeed—Gift to,seven children—
" Heirs, executors, administrators, andassigns'*—11 Aftertheir
deaths, or after the death of the last survivor of them, the saidlands shall devolve on theirchildren*'— Timeof vesting — Jus
H gifted all his property to his seven children: to each of hisfive daughters he gave separate lands, and to the two sons he gavethe remaining lands jointly. The deed contained the followingclauses:
" Andfurther,byreason of thenatural love and affection which
I bear towards my five daughters and my male children of tenderage, and in consideration of other good reasons, I do hereby, inthe manner above specified, grant unto, settle upon, and dividedlygive unto the said seven persons and their heirs, executors, adminis-trators, and assigns, or any survivor of them, or any heir, executor,administrator, or assign of him or them, the said lands and allrights and privilegesappertaining theretoasan irrevocable, regular,
and complete gift.**
" The said donees,or any •survivorofthem, shall be at liberty to
possessthe produce,rents, and profits derivable from the said lands,
subject to the bond of fidei commissum, i.e., the said donees, or anyone of them, shallnot beentitledtosell,mortgage, or encumber
in any other way, or alienate the said lands, or any one of them, orany 6hare. thereof."
" And further, itis herebyordained that, althoughtheafore-
mentioned stipulations, prohibitions, limitations, and restrictionsare herein imposed for the benefit ofthe said donees, yet,aftertheir
deaths, or after the deathof the lastsurvivor of them, thesaidlands
shall devolve ontheir children,their descendants,andtheir issues,
who, and their heirs,executors,administrators, and assigns;are
hereby empoweredto for everhold' and possessanddo whatever
they like therewithwithoutbeingsubjectedto the afore-mentioned
prohibitions, limitations, and restrictions.**
One of the sons, J, sold a half share ofthe land in question to
the plaintiff,who brought thisaction for partition, and allotted
to theotherson,L, the otherhalf. J died issueless pending
Held, per Bertram C. J. and Ennis J. (De Sampayo J. dissentiente),that plaintiff hadabsolute titleto one-half share,andwas entitled
to a partition decree on that footing.
( 450 )
On the question whether the deed created a fidei eommiesum, andif so, whether the fideieommiesumwas ajoint one with the benefit
of survivorship,ora separatefidei commie sum, the' Judges held
Bertram C.J. held that the deed created seven separate fideicommieaa, andthatthere wasno jointfidei eommiesum with the
benefit of survivorship, even as to the lands given to the sons.
Ennis J. heldthatthe deedcreatedno fidei eommiesum, as it
was not dear who was to benefit, and when.
Pa Sampaio J. • held that thedeed created aseparate and
distinct fidei eommiesum in regard to each daughter in favour ofher children and descendants, and a single fidei eommiesum in thecase of the two sons, with the benefit of survivorship and in favourof their children and descendants.
nnHE facts are set out in’the judgment of De Sampayo J. The-I- deed referred to in the judgment was as follows: —
Know all persons by these presents that I, Mangalagama ' Galladda-lage Handu Appu,ofMangalagama,in Deyaladahamuna pattu in
Kinigoda korale in the Four Korales, in the Western Province of theIsland of Ceylon,beingupon theherewith delivered deedof paraveni
No. 897, dated May 4, 1859, attested by Bon Poloris Jayasekera, NotaryPublic,ofUtuwankanda, and' upon the herewith delivered deed of
paraveni No. 896,datedMay 4,1859, attested by thesaidNotary
Public, and upon the herewith delivered deed of. sale No. 757, datedSeptember 5,1872,attested by GabrielPereraWijeyaratne, Notary
Public, ofBambukkana, entitled to and ever since long time past up
to the presenttimeindisputably and inparavenithe following lands,
situated at Mangalagama, in the said korale and pattu, viz. :■—
1. The fieldcalledDunumadalawa, inextenttwo amunams of
5. The fieldPaldeniyakumbura,in extentthree pelasofpaddy,
bounded on theeast by the ditch, on thesouth bythe fence of Dunu-
madalawekumbura,on the west by the itouraof PaligalaaliasGallena-
watta, and on thenorth by thefence of Matotagewatta,ofthevalue of
Out of the said lands,which are of the valueof Bs.2,760, the following
lands I do hereby vest in, settle upon, donate, and deliver unto my eldest'daughter, Mangalagama Galladdalage Bubarahamy, viz
Excepting theafore-mentioned shares of lands out ofthelands
mentioned in thisdeed, ^rhichI have in theforegoingmannerseparately
donated unto andsettled uponmy five femalechildren,alltheremaining
high and low landsI do hereby vestin, settle upon, donate,anddeliver
unto my begottensonsof, tenderage, namely, GalladdalageLoku
Appu and ditto Jeewathamy, both of Mangalagama aforesaid..
And further, by reason of the natural love and affection which I beartowards my fivedaughters and mytwo malechildren oftender age,
and. in consideration of other goodreasons, Ido hereby, inthemanner
above- specified, grant unto, settle upon,and dividedlygive unto the
said seven persons and their heirs, Ac., or any survivor of them, or any
( 461 )
heir, executor, administrator, or assign of him or them, the said lands,and all tights and privileges appertaining thereto, as an irrevocable,regular, and complete gift.
And further, the said lands are thus donated on condition that thesaid donees shall submit themselves to the under-mentioned prohibitions,IMitations, and restrictions, viz.:—
The said donees, oranysurvivor of them,shall be atlibertyto possess
the produce, rents, and profits derivable from the said lands, subject tothe bond of fidei commissum, i.e., the said donees, or any one of them,shall not be entitled to sell, mortgage, or encumber in any other way,or sign (elienate) the said lands, or any one of them, or any sharethereof.
It is further hereby ordained that the said lands, or any one of them,or anyshare thereof, or any produce,rents,andprofitstherefrom, shall
not beliableto be seizedor sold under orbyvirtue ofany.writ of
executionwhich maybeissued or takenagainst thedoneeshereof, or
any one of them, or any survivor of than.
And farther, itis herebyordained that,although the afore-mentioned
stipulations,prohibitions,limitations,and – restrictionsareherein
imposed for the benefit of the said donees, yet, after their deaths, or afterthe deathof the lastsurvivor of them, thesaid lands,&c., shall devolve
on theirchildren, theirdescendants, andtheir issues,who,and their
heirs and executors, Ac., are hereby empowered to for ever hold andpossessanddo whateverthey liketherewith,withoutbeingsubject
to the afore-mentioned prohibitions, limitations, and restrictions.
It is further hereby ordained that so long as I, Handu Appu, the donor,any my brother, bom of the same womb, Mangalagama GalladdalageTiMri Appu,andmy wife, Wadudeniye KamategederaPunchiMenika,
presently residing at my house in Mangalagama, live in this world, thesaid donees, my seven children, shall render unto us' all assistance andsuccour; andafterour deathsbury our deadbodies ina decentmanner
according tocustom, and forthe welfare ofour futureexistenceperform
the requisite religious rites according to custom.
It is also hereby ordained ■ that for the welfare of my seven children,the donees, in the next world, shall keep in good repair the twoambalams, the dagoba, and the vihare built by me.
Signed, witnessed, and attested on January 30, 1888.
Hayley, for plaintiff, appellant.—The deed did not create anyfidei commissum. Even if the deed created a fidei commiaaum,as Jeewathamy, vendor to the plaintiff, died issueless, the fideicommissum is at an end, and the plaintiff is absolute owner of anundivided half. The words “ heirs, executors, administrators, andassigns ” are inconsistent with a fidei commiaaum. If the donordoes not use proper language to convey his intention, the Courtscannot supply the deficiency. There is a presumption against afidei commiaaum. It is not quite clear who the beneficiaries are.Nor is it clear when they are to succeed. . The words “ after theirdeaths, or after the death of the last survivor of them,” make itdifficult to say when the beneficiaries are to succeed. The wordsseem to contemplate different times in the alternative.
Oraib v. –
( 452 )
[De Sampayo J.—The word “ survivor” may have been appliedwith reference to the gift to the sons.] There were only two sons,and the words “last survivpr ” are not appropriate if they weremeant to refer to the sons.
As both the beneficiaries and the time when they are to succeedare not clear, the deed cannot be said to create a- fidei commissum.Aysa Umma v. Noordeen 1 was decided by the Full Court, and isstill a binding authority. See also Tena v. Sadris,2 Aysa Umma v.Noordeen 3 Dassanaike v. Dassanaike *, Silva v. Silva 5. In Coudertv. Don Elias 3 and in Mirando v. Coudert 7 it was perfectly dear whothe beneficiaries were, and the intention to create a fidei commissumwas expressed in unequivocal language.
Section 20 of Ordinance No. 21 of 1844 enacts that there shallbe no right of survivorship as to property held in common, unlessthere is an express provision to that effect; so that, even if therewas a joint fidei commissum in the case of the gift to the two sons,on the death of Jeewathamy there was no accrual of his share tohis brother. Jeewathamy having died issueless, in any case,therefore, his share went absolutely to the plaintiff, who boughthis interest. Privy Council did not consider the effect of section 20in Tillekeratne v. Abeyesekere *.
J. W. de Silva, for the defendant, respondent.—The deed createsa fidei commissum. All the later decisions are in favour of givingeffect to the intention of the deed, and not to allow notarial flourishesto defeat the clear intention of the donor. See Coudert v. Don Elias 6,Mirando v. Coudert 7, Dassanayake v. Tillekeratne 9. The merepresence of words like “ assigns ” and ‘‘ survivors ” cannot defeatthe intention to create a fidei commissum. The intention is clearfrom the very words “ fidei commissum ” used in the deed.
There is one fidei commissum with respect to all the children, andthe word ‘‘ survivor ” is intelligible on that hypothesis. At anyevent there is one fidei commissum in respect of the lands given tothe two sons. There is a right of survivorship between the sons.Ordinance No. 21 of 1844, section 20, was considered by the PrivyCouncil, as it was referred to in the judgment of the Supreme Court.See 3 S. C. R. 77.
Hayley, in reply.
Cur. adv. vult.
September 4, 1918. De Sampayo J.—
The land which is the subject of this partition action.1 belonged inMangalagama Galladdalage Handu Appu, who had five daughters,Rubarahamy (eighth added party), Ran Etana (ninth added party).
1 (1905) 8 N. L. R. 350.* (1914) 18 N. L. R. 174.
(1885) 7 S. O. C. 136.‘ (1914) 17 N. L. R. 129.
1902) 6 N. L. R. 173.7 (1916) 19 N. L. R. 90.
(1906) 8 N. L. R. 361.• (1897) 2 N. L. R. 313.
• (1917) 20 N. L. R. 89.
( 458 )
Dingiri Etana (tenth added party), Subarat Etana, and Ran Menika,and two minor sons named Loku Appu (defendant) and Jeewathamy.By deed of gift dated January 80, 1888, Handu Appu made a giftof all his landed property to his seven children. To each of thefive daughters he gave separate^ lands, and to the two sons he gavethe remaining lands jointly. The land sought to be partitioned inthis action is one of the lands donated to the two sons. By deeddated July 11, 1917, Jeewathamy purported to sell to the plaintiffan undivided half share of the land, on the footing that under thedeed of gift he was absolutely entitled to such half share, and theplaintiff brought this action to partition the lands, assigning to LokuAppu, the defendant, the other half share- The defendant pleadedthat under the deed of gift the lands donated, to him and his brotherJeewathamy were subject to, a fidei commissum, in favour of theirchildren and descendants, and that the transfer by Jeewathamy gaveplaintiff only his life interest in a half share of land. The defendantalso raised the objection that the land being subject to a fideicommissum, the plaintiff could not maintain this action for partition.The defendant has several children, and they have been added asparties, and, as above indicated, three of the daughters of the donor,Handu Appu, have also been so added. On the issues thus arising,the District Judge held that the deed of gift created a fidei commissumover the whole estate of the donor with the benefit of survivorshipamong all the donees, and that the last survivor of them was entitledto possess all the lands according to the rule of jus accrescendi, andthat upon his death the property would devolve on the children ofall the donees and their descendants per stirpes free from the burdenof fidei commissum. He accordingly decreed a partition of the landbetween the plaintiff and the defendant, declaring them entitled eachto a half share of the land subject to the fidei commissum, whichhe found to be- created by the deed to the above effect. Boththe plaintiff and the defendant have appealed. The appeal of theplaintiff raises the question whether the deed created a validfidei commissum at all, and the appeal of the defendant isconcerned with the objection that the land being subject to a fideicommissum the plaintiff is not entitled to maintain an action forpartition. It appears that Jeewathamy died pending this appeal,without leaving any issue. Mr. Hayley, for the plaintiff, agrees thatif this Court decides in favour of the existence of a fidei commissumtthe interest acquired by the plaintiff from Jeewathamy has ome to anend, and this action must necessary fail. In these circumstances,the question for determination is as to whether the deed of giftcreated a valid fidei commissum.
The deed of gift is in Sinhalese, and the construction of it is notrendered easier by the fact that the notary has employed technicalphraseology, the significance of which apparently he himself did
( 464 )
not quite know. The translation filed in the ease is fairly accurate,and may be adopted for the purposes of this appeal. The deedfirst of all enumerates all the lands the grantor was possessed of,and conveys out of them certain specified lands to each of the fivedaughters, and the remaining lands jointly to the two sons, and itthen proceeds to provide as follows:11 And further, by reason of
the natural love and affection which I bear towards my five daughtersand my two male children of tender age, and in consideration ofother good reasons, I do hereby, in the manner above specified, grantunto, settle upon, and dividedly give unto the said seven persons,and their heirs, executors, administrators, and assigns, or anysurvivor of them, or any heir, executor, administrator, or assignof him or them, the said lands and all rights and privilegesappertaining 'thereto as an irrevocable, regular, and completegift."
Here it may be noted that as the deed already contained operativewords of grant, this further clause of conveyance was superfluousand unnecessary. It may be that the notary had some dim ideaof the habendum in an English form of conveyance, and attemptedto put in something of the same kind. This would have beenharmless but for his use of the formula “ heirs, executors, adminis-trators, and assigns, ” and for the expression “ survivor of them. ”which, in view of the subsequent limitations and restrictions, havecreated some difficulty. These limitations and restrictions are thefollowing:—
“ The said donees, or any survivor of them, shall be at libertyto possess the produce, rents, and profits derivable from thesaid lands subject to the bond of fidei commissum, i.e., thesaid donees or any one of them shall not be entitled to sell,mortgage, or encumber in any other way,, or alienate the saidlands, or any one of them, or any share thereof.
“ It is further hereby ordained that the said lands, or any one ofthem, or any share thereof, or any produce, rents, or producetherefrom, shall not be liable to be seized or sold under orby virtue of any writ of execution whici may be issued ortaken against the donees hereof, or any one of them, or anysurvivor of them.
“ And further, it is hereby ordained that, although the afore-mentioned stipulations, prohibitions, limitations, and restric-tions are herein imposed for the benefit of the said donees,yet, after their deaths, or after the death of the last survivorof them, the said lands shall devolve on their children, theirdescendants, and their issues, who, and their heirs, executors',administrators, and assigns, are hereby empowered to/for everhold and possess and do whatever they like therewith, withoutbeing subjected to the afore-mentioned prohibitions, limitations,and restrictions.’'
( 455 )
Mr. Hayley, in the first plane, argued that by reason of the expres-sion “ heirs, executors, administrators, and assigns ” occurring inthe passages above quoted no fidei oommissum pan b& regarded asbeing created by the deed, and he cited the well-known decisionson that subject. Those decisions are reviewed and discussed in thelater cases, Ooudert v. Don Elias,1 Mirando v. Ooudert,3 and Dossa-nayake v. Tillekeratne 3, the effect of which is to lay down that theuse of such words as the above will not necessarily defeat a fideioommissum which is otherwise well created by the instrument. Xmay say that I entirely agree with this view, and expressed myselfto that effect in Silva v. Silva *. It is therefore necessary to considerwhether the clauses in the deed which I. have oited at length, apartfrom the use of the above conveyancing formula, do or do notcreate a valid fidei oommissum. There is undoubtedly a clearintention to create a fidei oommissum, and, indeed, it is expresslyprovided that the lands are to be possessed “ subject to the bondof fidei oommissum.” I think this intention is carried out by theuse of appropriate language, for by the first of the above clausesthe immediate donees are given the right of possession only, andand are prohibited from selling, mortgaging, or otherwise alienatingthe property, and the children and descendants of the donees are bythe last clause designated as the persons who are to take after themConsequently it seems to me that the essential elements of a fideioommissum are present. It is, however, suggested that the words“ survivor,” and especially the expression in the last olause “ aftertheir deaths, or after the death of the last surviver of them,” makeit uncertain on what event the fidei oommissum is to take effect,and whether there is one fidei oommissum in favour of the childrenand descendants of all the donees, or several fidei eommissa in favourof the children and descendants of each of the donees respectively.These words and expressions do not present to my mind anyinsuperable obstacle. I think it is not wrong to bear in mind thatthe draftsman of the deed is a Sinhalese notary, who was manifestlyendeavouring to imitate conveyancing phraseology without dulyconsidering its relevancy to the matter in hand, and I am inclined toattribute any apparent incoherency to the notary’s want of carerather than to any uncertainty of intention on the part of the donor.It seems to me also that the notary’s difficulty has arisen put ofhis endeavour to include in the same clauses entirely the fideicommissary provisions affecting the several donees, without takingdue note of the fact that the donor gave the lands to thedonees separately, or, as the deed puts it, “ dividedly,” that is to say,specified lands to each of the five daughters separately, and theremaining lands to the two sons jointly. The' construction of the' deed should be such as to carry out the obvious intention of the
Oraib v.Lohu Appu
*(1H4) 17 N. L. R. 129.* [1916) 19 N. L. B. 90.
* (1917) 20 N. L. R. 89.
(1914) 18 N. L. R. 174.
( 456 )
OraSb v.Lobu Appu
donor, and not to defeat it. The prohibition against alienationmust, in the first place, be given a reasonable application. The fivedaughters being given separate lands, there is no sense in pro-hibiting one daughter from alienating the lands given to the others,nor in providing that the land given to one should not be liableto be seized and sold in execution against the others. It is obviousthat what was intended was to prohibit each daughter fromalienating the lands given to her, and to provide that on her deathher children and descendants should succeed her. In this connec-tion the expression *' after their death ” must be read as meaning“ after the death of each of them." The same reasoning showsthat in the case of the daughters the word " survivor ” is inapplicableand meaningless, except, perhaps, so far as the notary thereby wishedunnecessarily to emphasize the fact that the death of one daughterwas not to affect the prohibitions and restrictions as regards thesurvivors. Moreover, the reference to “ survivor " appears to meto be partly accounted for by the fact that the same passages inthe deed were made to apply to the two sons, with regard to whomsurvivorship had some meaning. For in their case there was butone fidei commissum, and it was, I think, intended that on thedeath of one, the other should have possession of the entirety, ofthe lands jointly gifted to them, and that on the death of thesurvivor, the fidei commissum should take effect. This view of thedeed, it is true, involves a certain disregard of some of its language,or its grammatical construction, but this is inevitable when theCourt wishes, as it is bound, to give effect to the clear intention ofthe donor to create a fidei commissum in favour of the childrenand descendants of the donor. Wijetunga v. Wijetunga 1 enunciatesthe principle that if the intention of a donor or testator to createa fidei commissum is clear, and the words used by him can begiven an interpretation that supports that intention, any apparentdifficulty arising out of the use of particular words and expressionsmay be explained away in a manner that may give effect to thatintention. In Mirando v. Coudert (supra) Shaw J. observed : “Inconsidering whether a fidei commissum is created, one has to lookat the document as a whole, and if the intention to create a fideicommissum is clear, effect should be given to it, even though thedonor or testator may have used in the document expressions thatare inconsistent with a fidei commissum.” This is all the more soif, as in this case, the instrument is the work of an inexpert notary,and the language comes through the medium of a translation.
I have come to the conclusion that the deed of gift created aseparate and distinct fidei commissum in regard to each daughterin favour of her children and descendants, and a single fidei com-missum in the case of the two sons, with the benefit of survivorshipand in favour of their children and descendants. In the latter case
IS N. L. Jfc 493.
( 457 )
the principle of jtis accrescendi applies. TillekeTatne v. Abeyesekere l,Usoof v. Bahimath 2. Consequently, Jeewathamy, the vendor to theplaintiff, having died without any issue, the defendant has becomeentitled to the property donated to them subject to a fidei commissumin favour of his children and descendants. This finding puts theplaintiff wholly out of Court.
I would set aside the decree under appeal, and dismiss the plaintiff'saction, with costs, in both Courts.
Db Sampayo .T.
Craib v.Loku Appu
This was a partition action, and there are two appeals. I dealfirst with the appeal No. 146a. The question for determinationin this appeal turns on the construction of the deed of giftP 1. We have to decide whether the deed creates a fidei commissum,or several fidei commissa, or none at all.
The operative clause of the deed is: " I do hereby, in the mannerabove specified, grant unto, settle upon, and dividedly give unto thesaid seven children and their heirs, executors administrators, andassigns, or any survivor of them, or any heir, executor, adminis-trator, or assigns of him or them, the said landsas an
irrevocable, regular, and complete gift. And further, the saidlands are thus donated on condition that the said donees shallsubmit themselves to the under-mentioned prohibitions, limitations,and restrictions. "
“ The manner above specified " was a graot of distinct lands toeach of the five daughters separately, and a grant of the remaininglands to two minor sons, Loku Appu and Jeewathamy.
" The land in dispute is one of these remaining lands in respect ofwhich Jeewathamy conveyed his share to the plaintiff appellant,(jeewathamy has died since the date of the decisions appealedfrom.) Loku Appu is the first defendant, and the second to seventhdefendants are his children; the eighth, ninth, and tenth defendantsare the survivors of the five daughters mentioned in the deed.
After the clause I have set out above, the deed declares that “ thedonees, or any survivor of them," were to possess subject to thebond of fidei commissum, which was explained as meaning that theywere prohibited from alienating the property, and the next clauseprovided that the lands should not be liable to be seized in executionon a writ taken out “ against the donee hereof, or any one of them,or any survivor of them."
Next comes the clause which is most difficult of interpretation:
And it is further hereby ordained that, although the afore-mentioned stipulations, prohibitions, limitations, pnd restrictions areherein imposed for the benefit of the said donees, yet, after theirdeaths, or the death of the last survivor of them, the said lands,Ac., shall devolve on their children, their descendants, and their
* (1897) 2 N. L. B. 313.
* (1918) 20 N. L. R. 225.
( 458 )
issues, who, and their heirs, executors, administrators, and assigns,are hereby empowered to for ever hold and possess and do whateverthey like therewith, without being subject to the aforesaidprohibitions, limitations, and restrictions.’*
Counsel for the plaintifE-appellant contended that this documentwas an absolute conveyance to each of the five daughters of separateparcels of land, and a conveyance to the two sons to hold in commonas provided by section 20 of Ordinance No. 21 of 1844. For therespondents, it was argued that the document created one fideicommission of all the lands to the seven donees, with a gift over to*the children with benefit of survivorship, or, in the alternative,that there are six fidei commissa, one each in respect of the parcels-to the five daughters, and one in respect of the parcel to the two-sons, and that on the death of Jeewathamy the property went bysurvivorship to Loku Appu. To hold that a fidei commissum is-Created, it must clearly appear—
That the gift is not absolute to the donees;
Who are the persons to be benefited; and
When they are to benefit.
In a series of cases it was held that the word “ assigns ” in theoperative clause was inconsistent with anything but an absolutegift, but in later cases an explanation was suggested which wouldnot necessarily be inconsistent with a qualified gift, and thisexplanation has been accepted and acted upon in the later cases.Wijetunga v. Wijetunga 1t Coudert v. Don Elias2 Mirando v.Ooudert *. The principles oi the earlier- cases, however, remainedunaffected, and two principles stand out;—
That the document is to be construed so as to be least
burdensome to the donees, and in case of doubt* there is apresumption against incumbrance. Voet 36, 1, 7.
That it is not possible to disregard any word in the document.
Aysa TJmma v. NoordeenDassanaike v. Dassanatke.*
Applying these principles to the present document, it seems to meimpossible to say what the donor meant to do. We are not onlyconfronted with the word “ assigns,” but also with the word“ survivor.” The word “ survivor ” in the operative clause cannotapply to “ assigns,” but it might apply to “ heirs,” words whichappear among those immediately preceding the use of “ survivor.”Further, the word- is difficult of application to the donees, who wereall alive at the date of the gift. The word “ survivor ” in the nexttwo clauses comes after “ donees,” and here, if it is to be given anymeaning, it must relate to some later date, but what date?
*(1912) 15 N. L. R. 493.* (191$) *19 N. L. jR. 90.
*(1914)17 N. L.R. 129.4 (1902) 6 N. L. R. 173.I
*(1906) 8 N. L. R. 361.
The words in the next clause do not help. “After their (thedonees)* deaths, or after the death of the last survivor of them,'7is wholly unintelligible, as it gives different times in the alternative.If the property is . to pass absolutely to the heirs of each of thedonees at their respective deaths, there is no meaning in the alter-native that it is only to pass on the death of the lastsurvivor.
In my opinion any question of a fidei commissum fails, in that it isnot clear who is to benefit, and when. If the document does notmake this clear, it is not open to the Court to supply the deficiency,and the deed must be construed as an absolute gift to each of thedonees. ' That being so, the two minors would take undivided sharesabsolutely, and the conveyance to the plaintiff would be good. Iwould accordingly allow .the, appeal, with costs, and consequentlydismiss the other appeal (No. 146), with costs.
This case was originally argued before myself and my BrotherEnnis. In view of the obscurity of the deed, which was the subjectof the action, we thought it desirable to have the assistance of ourBrother de Sampayo before deciding the case. I have now hadthe advantage of reading the judgment of my Brother de Sampayo,and by the help of that judgment I feel able, in part at any rate,to accept the interpretation of the deed which he has suggested,and which may be considered as removing the obscurity in whichthe intention of its maker was involved.
The difficulty arose from the fact that the notary who draftedthe deed thought it necessary throughout the deed to introducecertain technical conveyancing phraseology, of the significance ofwhich hfe was probably ignorant. Throughout the deed he intro-duces references to the survivors of the donees,. and the heirs,executors, administrators, and assigns of such survivors. As the deedpurports to make a complete gift of the various lands it comprisesto the donees themselves, their heirs, executors, administrators,and assigns (subject to a fidei commissary obligation), andmakes no express provision for any right of survivorship, thesereferences to a right of survivorship seem to import an intentioninconsistent with the terms of the gift. The passage which givesthe greatest difficulty with regard to the interpretation of thisreference to survivorship is the passage which expresses the termsof the fidei commissary obligation. If we were forced to come tothe conclusion that the presence of these words made the conditionsof the fidei commissary obligation obscure, and that, consequently,
' it was not possible to ascertain, the real intention of the testator, asto the persons in whose favour the obligation was imposed, theextent to which they were to be benefited by them, and the time
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when their rights were to accrue, we should be compelled tosay that, owing 'to the uncertainty of this obligation, it was notpossible to enforce it.
,A series of decisions of this Court has dealt with cases in whichobscurity was thought to be introduced into a deed by the uncon-sidered use of another conveyancing. formula (vide Tena v. Sadris,lAysa TJmma v. Noordeen,2 and Dassanaike v. Dassanaike 3). In thosecases it was emphatically laid down that such a technical formulaintroduced into a fidei commissary obligation cannot be disregarded,and if it cannot be explained, the fidei commissary obligation mustbe ignored. A subsequent series of cases, however, has evolved ameans of giving an interpretation to the formula in question notinconsistent with a definite fidei commissary intention, and the Courtshave thus been able to give effect to what they believe to be thereal intention of the testator or donor (vide Goudert v. Don Elias, 4Wijetunga v. Wijetunga, 5 Mirando v. Goudert, 6 and Dassanayahev. Tillekeratne 7). The former series of authorities, nevertheless,is still binding, so far as the general principle which it enunciatesis concerned.
De Sampayo J. has in this case suggested a similar means ofsolving the difficulty created by the conveyancing formula underconsideration in this case. That suggestion, as I understand it,has two branches. In the first place, it is suggested that the notarymerely wished to emphasize the fact that the death of one childwas not to affect the prohibitions and restrictions as regards thesurvivors; and that when he said “ the said donees, or.any survivorof them, shall be at liberty to possess subject to the bond of fideicommissum,M he merely meant that ali the said donees, from thedate of the operation of the deed, should have this right, and thatas they successively died, the survivors should continue to Have thissame right with regard to the lands conferred upon them; and that,similarly, .when he said “ after their deaths, or after the death of thelast survivor of them,” he was merely making a reference to a succes-sion of events which must necessarily occur, and intimating thatthe deed was to continue to operate in accordance with the intentionalready expressed throughout this succession.
I am prepared to adopt this view of the deed. I do notfind myself, however, in accord with the second branch of the sugges-tion, namely, that the references may be partly accounted for bythe fact that the same passages in the deed were meant to havea special application to the two sons, with regard to whomsurvivorship might have some meaning. It appears to me that allthe references to survivorship apply equally to the sons and to the
1 (7855) 7S. C. C.130%4 (1914) 17 N. L. R. 129.
1 (1902) 6 N. L. R. 173.8 (1912) IS A L. R. 493.
(1900) 8 N. L. R; 301.4 (1910) 19 N. L. R. 90.
'(1917) 20 N. L. R. 89.
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daughters,, and I should not feel justified in giving to them aninterpretation with regard to the sons which did not apply to thedaughters*
Considering the deed on this basis, what we have now to determineis the nature of the fidei commissum which it sets up. There is noquestion as' regards the daughters; it creates separate fidei commiesawith regard to the lands conferred upon each. The question onlyarises with regard to the sons. Here the lands gifted were giftedto them in common, so that each son had an undivided half of eachland comprised in the gift. Was it intended''to create a separatefidei commissum with respect to the lands given to each son, or wasthere to be a joint fidei eommi$8um of the whole with benefit ofsurvivorship? I have given in Usoof v. Rahimath1 my reasonsfor thinking that the principles of the jus aecreecendi only applyin cases where but for their application there would be a lapse;and that where this is not the case (as in the present instance), theonly question before the Court is a question of construction, to beconsidered without any presumption as regards an accrual eitherin one direction or the other.
The construction of every deed must depend upon its own terms.In this case I do not feel able to infer any intention on the part ofthe donor to create a joint fidei commissum with respect to the landsconferred upon the two sons. The predominant note of the deedis the assignment of a definite gift to each of his children, with a •fidei commissum in favour of their issue. He speaks emphaticallyof giving these lands “ dividedly." I cannot feel that he hadin his mind any idea of making a distinction between his sons and hisdaughters. I conceive that in endowing his sons with undividedmoieties of the lands not gifted to his daughters, he considered him-self as giving separate gifts to each. 1 see no reason why in hismind he should constitute a composite group of the joint descendantsof the two sons, while he was in respect of the daughters thinkingonly of the independent groups of their respective issue. In myopinion, therefore, the interest given to each son was the subjectof a separate fidei commissum, and each son had the power todispose of his interest subject to any right that might accrue to anychild upon the birth of such child. In this case Jeewathamy havingsold to the plaintiff the whole of his interest; and Jeewathamy havingsince died without issue, the purchaser, the plaintiff in this case,has acquired an unrestricted title to the lands conveyed to him, andis entitled to judgment.
In the course of the argument we were pressed with the contentionthat section 20 of Ordinance No. 21 of 1844 necessarily entailed thisconclusion, and we were asked—as this Court has been frequentlyasked—to say that the judgment of Tillekeratne v. Abeyesekere 9and L. R (1897) A. 0. J277 in the Privy Council should be disregarded
,» (1918) 20 N. L. B. 225.* (1897) 2 N. L. B. 313.
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in so far as it suggests a contrary view. The argument is that thejudgment of the Privy Council says nothing about section 20 of thisOrdinance; that that section could not have been brought to itsattention; and that nothing, therefore, that appears in the judgmentof the Privy Council should be regarded as militating against whatis contended to be the effect of that section. There is undoubtedlysome confusion in the judgment of the Privy Council with regardto section 20. There can be no question, however, that it wasbrought to the notice of the Lords who heard the case. Thejudgment of Mr. Justice Withers in this Court on review wasexpressly grounded upon section 20. See (1899) 3 S. C. 76. Theargument in the Law Reports (page 280) shows that section 20 wasspecifically discussed.. It could not, therefore, have been overlooked.Further, the opinion of Withers J. as to the effect of OrdinanceNo. 21 of 1844 was expressly referred to in the judgment. Section20, in all the compilations of our legislative enactments in ordinaryuse at the date when the cade was argued, follows immediately uponsection 6. Apparently for this reason, in the drawing up of thejudgment, it was-confused with section 7; and section 7 was there-fore cited and discussed instead of section 20. Section 7 had,however, been long ago repealed, so early as 1852. Indeed, theLords of the Privy Council must have been at some trouble to getaccess to section 7, as the only compilation in which it appears isthat of 1852, which is a rare volume, and could hardly have beenused in the argument in Court. Even in this edition sections 7 to19 are-printed in special type as being repealed.
Reference in the judgment is, however, expressly made to section7 alone. It is permissible to suggest that before the judgment wasdrawn up the Lords of the Privy Council had come to the conclusionthat section 20 of Ordinance No. 21 of 1844 and section 2 of Ordi-nance No. 10 of 1863 were “ limited to cases in which the personsinterested, whether as joint tenants or as tenants in common, arefull owners, and are not burdened with a fidei commissum ”; butthat for some reason, which it is not easy exactly to define, section7 was cited per in curiam instead of section 20. In any case myown opinion is that section 20 of Ordinance No. 21 of 1844 onlyapplies to property held in full ownership, and I do not think ithas any bearing on the question under discussion in this case.
I am therefore in accord with the conclusion, though not withthe reasoning, *of my Brother Ennis, and I would allow the appealof the plaintiff, with costs, and dismiss, with costs, the other appeal.
Plaintiff’s appeal allowed.
CRAIB v. LOKU APPU et al