DASSANAIKE v. DASSANAIKE.
D. C., Colombo, 22,190.
Fideicommissum—Operativeclause—“ Gift absolute andirrevocable—
“ Heirs, executors, administrators, and assigns ’’—Habendum
clause—“ Generation "—Warranty of title.
A deed of gift executed by D and his wife contained the following
operative clause:“ Wehave given, granted, assigned, and
transferred, and set over, as we do hereby give, giant, assign,, trans-fer and set over as a gift absolute and irrevocable unto the said Ij,
– ^iis heirs, executors, administrators, and assigns the following. …”
The habendum was as follows:—"To have and to hold the saidpremises with their and every of their appurtenances unto the saidL, his heirs, executors,administrators,and assigns for ever,
subject nevertheless to the following conditions, that is to say, thathe, the said L, and his generation shall possess the said lands forever, but he or his heirs shall not sell, mortgage, or alienate thesame in any manner whatsoever.”
Held, that the deed did not create a valid fidei commissum.
Wendt, J.-—The operative clause having made an unfetteredgrant of the property with express contemplation of alienation inthe mention of assigns, the prohibition of alienation in . the haben-_ dum is void as repugnant to the terms of the grant.
AGE stated by agreement of parties for the opinion of theCourt.
The agreement was as follows: —
" (1) That Don Cornelis Abeyaratne Gunewardene Dassanaike,Mudaliyar, and his wife, Johanna Francina de Saram Lama Ettana,were the owners and proprietors of the following property, to wit: —All those fields called and known as Panwatte Muttetuwa Talgahaalias Maha Muttetuwa and Halgaha Muttetuwa, situated at Rada-wedanne in the Migaha pattu of the Siyane korale in the Districtof Colombo, within the jurisdiction of this Court, of the valueof Rs. 2,000.
“ (2) That by their deed No. 2,187, dated 18th June, 1858, thesaid Don Cornelis Abeyaratne Gunewardene Dassanaike andJohanna Francina de Saram donated the above-named land andother lands to their son Henricus Lucius Dassanaike in the followingterms, to wit: —
‘ We have given, granted, assigned, transferred, and set over, anddo hereby give, grant, transfer, and set over as a gift absolute andirrevocable unto the said Henricus' Lucius Louis Dassanaike, hisheirs, executors, administrators, and assigns the following lands, towit‘
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1906,* To have and to hold the said premises with their and every of
• ary 20. their appurtenances unto the said Henricus Lucius Louis Dassanaike, ^his heirs, executors, administrators, and assigns for ever, subjectnevertheless to the following conditions, that is to say, that the saidHenricus Lucius Louis Dassanaike and his generations shall possessthe said lands for ever, but he or his heirs- shall not sell, mortgage,or1 alienate the same in any manner whatever.*
“ (3) That the said Henricus Lucius Louis Dassanaike dulyaccepted the said donation.
“ (4) That the said Henricus Lucius Louis Dassanaike possessedthe said property as donee under the said deed of gift, and he depart-ed this life leaving a last will and testament, whereof he appointedthe parties of the first part hereto executors, and whereby hedevised and bequeathed all his real or immovable property where-soever situate, whether in possession, reversion, remainder, orexpectancy, nothing excepted, unto his children and grandchildrenin the said will named' in the shares or proportions therein set forth,that is to say," the parties hereto, save and except the said WilliamHenricus Dassanaike and Robert Alexander Dassanaike and thechildren of the said William Henricus Dassanaike and RobertAlexander Dassanaike.
V (5) That the said last will and testament was duly proved in theDistrict Court of Colombo and probate thereof issued to theexecutors named therein, to wit, the parties of the first part in ■testamentary proceedings numbered 1,585.
141 (6) That a. question has arisen between the parties to this agree-ment whether the said property described in above clause passedunder the will of the said Henricus Lucius Louis Dassanaike andbecame' vested in the executors thereof as such, or whether underthe deed of gift aforesaid a valid entail or fidei commissum wasconstituted in respect of the said property, and whether by operationof such entail or fidei commissum the said 'property became vestedip the, descendants of the said Henricus Lucius Louis Dassanaike,.some of whom are the parties to this agreement, and the parties to- this-agreement,- being desirous of submitting the said questiop forthe ..decision of the District Court of Colombo, have entered intothis agreement, and they agree that upon the finding of the- saidCourt on the .said question the said property either be taken posses-sion of by the said executors for administration as-belonging to the: Estate of the Said Henricus Lucius Louis Dassanaike or be allowedto remain in the possession of his descendants on the footing and byoperation of a valid entail or fidei commissum created by the saiddeed of gift.
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And it is hereby further agreed that the said parties hereto' 1906‘shall be at liberty to appeal against the judgment pronounced byFebruary 20‘the Court upon the facts and questions stated in this agreement andsubmitted to the Court for its decision or against any decree framedand passed on the judgment so pronounced.”
The learned District Judge (Mr. J. R. Weinman) delivered thefollowing judgment: —
“ Don Cornelius Dassanaike, Mudaliyar, and his wife, Francina deSaram Lama Ettana, were owners of certain lands situated inRadawadanne. By deed No. 2,187, dated 16th June, 1868, theydonated these lands to Henricus in these terms: 4 We have given,granted, assigned, transferred, and set over, and do hereby give,grant, assign, transfer, and set over as a gift absolute and irrevocableunto the said Henricus, his heirs, executors, administrators, and
assigns the following landsto have and to hold the said
premisesunto the said Henricus, his, heirs, executors,
administrators, and assigns for ever, subject nevertheless to the
following conditions, that is to say, that he, the said Henricus,
and his generations shall possess the said lands for ever, but he orhis heirs shall not sell, mortgage, or alienate the same in any mannerwhatever.'
“ Henricus accepted the donation. He died leaving a last will,whereof he appointed two executors, and whereby he bequeathed‘ all his real and immovable property to his children andgrandchildren ' (excepting two) in certain proportion. Probate ofthe last will of Henricus was issued to the executors named therein.by this Court. The question has now been submitted to the Courtwhether the property passed under the will of Henricus and becamevested in the executors, or whether under the deed of gift a valid fideicommissum was created.
“ But for the judgment of the Supreme Court reported in volumesII. and VI. of the New Law Reports, D. C„ Galle, 6,242 (6 N. L. R.
344), I would hold that a valid fidei commispum was created. Ifwe are to judge by intention, I have no doubt that it was the inten-tion of the donor to impress a fidei eommissum on the property.
The Supreme Court (per Wendt, J., in Ibangu Agen v. Abeyasekera,
D. C/, Galle, 6,242, 6 N. L. R. 344), has laid it down that in construing ^a will the paramount question is, What was the intention of thetestator? The point taken by Mr. Pereira, however, "has beendecided by the Supreme Court,' and I am bound by its decisions.
It is conceded that if it was declared that the property should passover to the, descendants the fidei commissure was a good one. It
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1906. was contended that the words ‘ executors, administrators, andFebruary 20. assigns ’ are meaningless words taken over from English forms bynotaries without the least understanding what they meant. But1 find the same argument was pressed in the Appeal Court m theColombo case above cited and repelled by that Court. Thereis no doubt that some of our deeds, especially those of early date,are a curious jumble of Boman-Dutch and English forms, but theSupreme Court has held that it is impossible to delete or ignorefrom deeds the words ' executors, administrators, and assigns.’
“I hold, therefore, that the gift did not create a valid fidei com-missum.*
“ The costs of the proceedings in this matter will be paid out ofthe estate.”'
Sampayo, K.C., for appellants.
H. A. Jayewardene, for respondents.
■ Walter Pereira, K.C., for plaintiffs.
20th February, 1906. Layard, C.J.—
The only question raised in this appeal is whether the deed ofgift No. 2,817, dated 10th June, 1858, created a fidei commissum.
The donor, in consideration of natural love and affection, trans-ferred certain property situated in the gravets of Colombo, to hisson Henricus Lucius Louis Dassanaike, ” his heirs, executors, ad-ministrators, and assigns ” as a gift absolute and irrevocable. Thehabendum clause which determines the estate or interest grantedby the deed begins by directing that the property is to be held bythe donee, his heirs, executors, administrators, and assigns for ever,thus creating an absolute title in the donee without any reservation.After so doing it adds the .following conditions: the donee “andhis generations ” are to possess the said property “ for ever, buthe or his heirs shall not sell, mortgage, or alienate same in anymanner whatsoever.” After the habendum clause comes covenantsof the donor with ills donee, his “ heirs, executors, administra-tors, and assigns.”
It is this 'almost unintelligible instrument we are asked to construeas creating a valid fidei commissum.
Appellant’s counsel’s argument amounts almost to this: in con-struing the document you must attach no importance to the words" heirs, executors, administrators, and assigns;” you must ignorethem in fact, and you must confine yourselves to. discovering whatwas the intention of tho donor.'
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I do not think we ought to depart from our decision in Ibaiigu 1906.Agen v. Abeyesekara, D. 0., Galle, 6,242 (6 N. L. R. 344). It is there20.
clearly laid down that in construing a will the intention of the tes- Layabd.C.J.tator is of paramount importance. We, however, in unambiguouslanguage point out that this Court will only give effect to the tes-tator's intention and declare a fidei commissum to have been createdby the testator when it is clear that the person to whom the propertyis in the first place given is not to have it absolutely, and if it isalso clear from the terms of the will “ who is to take after him andupon what event.”
jl presume we must apply the same tests to this deed of gift.
There can be no doubt that if the words “ subject nevertheless to thefollowing conditions, that is to say, that the said Henricus LuciusLouis Dassanaike and his generations shall possess the said land •for ever, but he or his heirs shall not sell, mortgage, or alienate thesame in any manner whatsoever ” did not appear in the deed, therewas an absolute grant to the.donee free of any limitation. Say wehold that the prohibition above set out is a sufficient designationof the fidei commissum, can we delete the words “ executors, ad-ministrators, and assigns ” from the deed ? They, occur no lessthan five times in it. Moncreiff, J., appears to have asked himselfa similar question in his judgment in Aysa Umma v: Noordeen(6 N?L. R. 173), confirmed in review 25th September, 1905 (8 N. L. i?.
350), in respect of a deed of gift very similar to the one I am nowtrying to construe; his answer was, " It is impossible to ignore them.”
I agree with that answer, and think it is the only one that can begiven to the question put by me above. Without ignoring thosewords, I feel that I cannot say that it is clear from the deed of gift .that the donee was not to have the property absolutely. I furtherthink that it is impossible for me to say, even if I hold that itwas clear' from the deed of gift that the donee was not to have itabsolutely, that it is also clear who is to take after the donee. It wasargued that the restriction on alienation was in favour of the donee’sheirs by descent; that the words “ generations ” as used in thehabendum clause ought to be interpreted as “ descendants.” It issaid that the word used in Sinhalese to denote generation ” is openalso to the interpretation ” descendant.” We are, however, nowtrying to interpret, an English deed, and not the translation intoEnglish of a Sinhalese deed, and we must look to the Englishlanguage for guidance, and not the Sinhalese.
I really do not know what was intended to be conveyed by thewords “ his generations ” as they appear in the habendum clause.
The word “ generation ” has several meanings: it means a single
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1906. succession or natural descent, as the children of the same parents;February 20. bence it is applied to an age , or period of time between one successionLayabd,O.J. and the next; thus we say the third, the fourth, or the tenthgeneration. It also means the people living at the same time orperiod. It is sometimes used to denote a family or race, and againto denote progeny or offspring. Say we interpret it here to mean" descendants,** then it would limit the word “ heirs ** to, I supposeheirs of the donees only, and the words in the passage that hisheirs shall not sell, mortgage, or alienate the same will have to berestricted to such heirs as are descended from the donee. It may,however, be that his intention was to secure the property to hisown family, and that the words were used in a larger sense andwere intended to include the donee’s heirs, who would have succeeded*to the donee’s estate had he died intestate not necessarily his des-cendants. I cannot say that the deed of gift even clearly discloseswho is to take after the donee, and I do not know how to give effectto the donee’s intention, of which I am absolutely ignorant.
The appeal must be dismissed with costs.
We have to construe ‘the deed of gift dated 18th June, 1858,
whereby Dassanaike Mudaliyar and his wife donated a number of
lands to their son Henricus Lucius Louis Dassanaike. The question
is whether the donee took the absolute unfettered dominium in the
lands (as respondents contend), or whether there was a fidei com-
mie&um created, whereby his children were substituted for him on
his death (as the appellants submit). The deed is in the English
language, and, save for the words in the habendum which create
the difficulty, follows a form commonly employed by notaries in
conveying property absolutely. It witnesses that the donors; for
and in consideration of the natural love and affection which they
have and bear unto their son, the donee, and other good causes and
considerations then thereunto specially moving, have given, granted,
assigned, transferred, and set over, as they do thereby give, grant,
assign, transfer, and set over, as a gift absolute and irrevocable unto
the donee, his heirs, executors, administrators, and assigns the
following lands (which are there named and described), to have and
to hold the said premises with their appurtenances unto the said
donee, his heirs, executors, administrators, and assigns for ever,
subject nevertheless to the following conditions, that is to say, that
he, the said donee, and his generations shall possess the said lands
for ever, but he or his heirs shall not sell, mortgage, or alienate the
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same, in anv manner whatsoever. Then follows a covenant by the 1B00’donors for themselves, their executors and administrators, with the __Zdonee, his heirs, executors, administrators, and assigns that the Layabd,C.J.donors have good title and will further warrant and defend thepremises to the donee, his heirs, executors, administrators, andassigns.
It is admitted that, up to the words in the habendum “ that he thesaid Henricus Lucius Louis Dassanaike and his generations shallpossess the said lands for ever,” the deed conveys an unfettereddominium, but it is argued that those words, taken together withthe later prohibition against alienation by the donee or his heirs,constitute a fidei commissum in favour of the donee’s descendants.
(Jpon a strict construction of the instrument, I am inclined to thinkthat the testatum or operative clause having made an unfetteredgrant of the property with express contemplation of alienation inthe mention of assigns, the prohibition of alienation in the habendumis void as repugnant to the terms of the grant. ■ Furthermore; thedonors after prohibiting alienation once more provide for the caseof a valid alienation, and sanction it by covenanting to warrantand defend the title of the donee’s assigns.
Appellant’s counsel asked us, as the appellant asked in AysaJJmma v. Noordeen (6 N. L. R. 173), to discard altogether the words” executors, administrators, and assigns ” and construe the deed asif they did not exist. This request was based on the assertion thatthose words "were a mere flourish of the notary’s pen, and hadnothing to do with the intentions of the donors.” I think it .isimpossible so to ignore them. It cannot be said that they aremeaningless; on the contrary, they are apt and proper words touse in connection with a grant " absolute and irrevocable,” suchas this professes to be. No doubt the Anal question in all caseslike the present is, What was the intention of the person making thegrant ?(Voet, 36, 1, 72); in the present case the only evidence
before us of that intention is contained in the words of the deed, andin order to gather the donor’s intention every word must, if possible,be given effect to. At the best, the deed must be admitted not tobe consistent throughout; there is first an absolute grant, then aprohibition to alienate, and then again the sanction of alienationinvolved in the covenant to defend the title of assigns. It is-wellsettled that in case of doubt the Court inclines against the restrictionof the dominium. I therefore think our judgment ought to be forthe respondents.
The cases of Hormusjee v. Gassim (2 N. L. R. 190) and Aysa JJmmav. Noordeenin point on the question I have dealt with. The
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1906. latter case, which was affirmed by the Full Court in review onFebruary 20. 25th September, 1905, is a stronger authority than the former,Layabd,C.J. because there was express mention of the children and grandchildrenof the donees, while in Hormu&jee v. Cassim the persons in whosefavour the prohibition against alienation was interposed were notascertained.
DASSANAIKE v. DASSANAIKE