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[Pbivy Counoil. ],1910.
Present : Lord MacNaghten, Lord Shaw, Lord Mersey, andLord Robson.
FERNANDO v. GUNATILLEKE.G. Colombo, 29,620 .
Gift subject to condition that donee should not settlor mortgage—Sale by
donor and donee to third party—Mortgage by donee without consent
oj donor—Life-interest—Fidei commissum.
Byadeedof 1889Maria giftedher land toPalis, bis heirs, Ac.,
subject to the following conditions:—
The said Maria shall have the right *of. possessing and
enjoying the rents, income, &c., until Palis shall havearrived at the age of twenty-five years.
After the said Palis shall have arrived at the age of twenty-
fiveyears, ifI, the saidMaria, shallbe living, then Pahs
shall not be at liberty to sell, mortgage, or alienate thesaid lands and. premises during my ’ lifetime, but shallonlypossessand enjoythe rents,income, and produce
Palis attained the age of twenty-five years' in 1891, and diedwithout issue in 1896.
Palis, with the consent of Maria, sold the' premises to plaintiff bya deed 1 dated December b, 1893, to which both Palis and Mariawere parties.
OnOctober23,1893, Palis mortgaged hisinterest to W. The
defendant claimed the property by virtue of a Fiscal's sale, heldin execution of a mortgage decree obtained against Palis.
Iii a possessory action by plaintiff against defendant—
Held, that plaintiff was entitled to succeed.
" It does not appear to be a reasonable view that' a deed in theterms of that of 1882 did not fully reserve, in the circumstancesstated, the life-interest of Maria, nor do they entertain any doubtthat the consent, concurrence, and ratification of that lady by thedeed of December 5,1893, was completely given and is effective
in law.” .
The deed of October 23, 1893, was granted in excess and violationof the rights of Palis.
HE facts are set out in the following judgment of the SupremeCourt: —
July 12, 1910. Wood Renton J.— .
The plaintiff-appellant sues the defendant-respondent. in * thisaction for a declaration that he is entitled to the possession of1 See' judgment of Privy Council for terms of the deed.
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1910i premises Nos. 240 and 240a in Kollupitiya, Colombo. It is admittedWood that the property originally belonged to one Maria Felsinger, andBenton J. that she, by deed No. 860 dated September 23, 1882, gifted it to herFernandov. son, Palis Swaris, subject to the following terms and conditions: —Qunatilleke
That the said donor, Maria Felsinger, shall have the right of possess-ing and enjoyingthe rents, income,produce,andissuesof the said lands
and premises until the said Swarisge Palis Swaris shall have arrived(sic) the age of twenty-five years, and that after the said Swarisge PalisSwarisshall havearrived the saidage oftwenty-fiveyears, if the said
donor shall be then living, then the said Swarisge Palis Swaris shall notbe atliberty tosell, mortgage, oralienatethesaidlands and premises
duringhis lifetime, but shall onlypossessandenjoythe rents, income,
and produce thereof; but if she, the said Maria Felsinger, shall die beforethe said Swarisge Palis Swaris shall have arrived to the. said age oftwenty-five years, then he, the said Swarisge Palis Swaris, shall onlypossess and enjoy the rents, produce, and income of the said lands andpremises, but shall not be at liberty to sell, mortgage, or alienate thesame until he shall have arrived the said age of twenty-five years, andthat if the said Swarisge Palis Swaris should die without lawful issues,then the said lands and premises shall devolve and go to his two brothers.Swarisge Stephen Swaris and Swarisge Nicholas 'Swaris, or to – theirlawful issue.
. The appellant alleges that Palis Swaris and Maria Felsinger, bydeed No. 8,841 dated December 6, 1893, conveyed all their interestin the premises which formed the ^subject of this action to him.Palis attained majority in 1891, and died intestate and withoutissue in 1896. The defendant-respondent claims the premises byvirtue of a Fiscal’s sale, held in execution of a mortgage decreeobtained against Palis in District Court, Colombo, No. 7,260. Atthis sale, he says, the premises were purchased by his testator, whoobtained a Fiscal’s transfer on July 24, 1903. The case went totrial on the following issues: —
Was Palis Swaris, after attaining the a,ge of twenty-five
years, and his mother being then alive, entitled ’to alife-interest only in the property, or was he entitled torights of ownership which were capable of alienation?
Was the interest of the plaintiff in the, premises acquired
by the defendant as stated in the 8th paragraph of theanswer?
Did the plaintiff by deed No. 884 acquire a right to possess
the premises during the life of Maria?
If so, is the plaintiff estopped by the sale under the decree in
C. Colombo, 7,260, from questioning the defendant’sclairn to complete title to the premises?
What is the value of the possession of the premises since
July, 1908 (the date at which the respondent allegesthat his testator was ousted by the appellant)?
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The learned District Judge held that Maria Felsinger did no.t, bythe deed of December 5, 1893, .transfer her rights, whatever theywere, .to the appellant. He helc^ however, that when Falis attainedthe age of twenty-five years he acquired the power to pass title to thepremises, free from any rights of possession or ownership acquiredafter his death; .that the deed of gift did not create a valid fideicommi88umrt and did not give Maria a life-interest on the death ofFalis without issue. On these findings, he held that the appellantgot nothing more by his deed of December 5, 1893. than whathad already passed to the defendant's testator under hi6 Fiscal’sconveyance. On the 2nd and 4th issues, however, he held that theappellant’s interest had not been sold under the mortgage decree,and that he could not be estopped by .the sale under the decree in
C. Colombo, 7,260, from questioning the respondent’s title asregards anything but the subject of the sale; that is to say, Falis'sinterest at the date of the mortgage. He left the question of theassessment of the value of .the possession of the premises undeter-mined as rendered unnecessary by his decision, and dismissed theappellant’s action with costs.
The mortgage bond on which decree was passed in D. C. Colombo,7.260, was dated October 23, 1893, and was prior, therefore, in pointof time .to the alleged transfer by Maria Felsinger, of her interest,whatever it. was, under the appellant’s deed.
E am unable to agree with the learned District Judge that thedeed of December 5, 1893, did not effect the transfer of MariaFelsinger’s interest to the appellant. It is true that the deedcontains no direct words of conveyance on the part of Maria Felsinger.and that it is Palis himself who sells and conveys. But Maria wasmade a party to the deed. She herself covenants '* in considerationof the premises aforesaid,” that is to 6&y, of Falis’s agreement to sell,and of the payment of the price .to him by the appellant, .that sheconsents and approves of the sale, and gives and grants power andlicense to her son to dispose of the property absolutely, and “ do.thratify and confirm the same, freed and discharged from all her claimswhatsoever therein and thereto, and from all restrictions, conditions,and reservations, whatsoever, anything in the deed No. 860 datedSeptember 23, 1882, to the contrary notwithstanding.”
After careful consideration, I am unable to construe this deed inany other sense than as a transfer, for her part, by Maria Felsinger infavour of the appellant of all her interest, whatever it might be, lit.the property sold.
On the question as to the interest taken by Maria Felsinger in theproperty, I adopt the view* of Mr. Justice Wendt in .the connectedease of 163—D. C. Colombo, No. 20,345, which does not seem to havebeen brought under the notice of the learned District Judge. In thepresent case, I think that the deed No. 860 of September 23, 1882.reserved a life-interest to Maria Felsinger on the death of Palis
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Swaris without issue. I agree with the learned District Judgethat the appellant is not estopped by his having been made a partyto the action in D.C. Colombo, 7,260, or by the decree in that action,from questioning the respondent’s title as regards anything, exceptwhat formed the subject of the actual sale, namely, Palis’6 interestat the date of the mortgage. Hie mortgage was prior to the transferby Maria Felsinger and Palis .to .the appellant. I do not. think thatthe language-of the decree itself or the terms of the Fiscal's con-veyance can affect the plaintiff’s legal position on that point. 1would set aside the decree of the District Court, dismissing theappellant’s action, and direct judgment to be entered for the plaintiff-appellant, declaring him entitled to the possession of the premisesdescribed in .the plaint during the lifetime of Maria Felsinger, and,if necessary, the ejectment of the respondent therefrom, and therestoration of the appellant forthwith thereto.
The appellant is entitled .to the costs of the action and the appeal..
The crucial question in this case was, as suggested by appellant’scounsel, whether Maria Felsinger’s interests in the property inquestion passed under the deed executed by herself and her sonPalis Swaris in favour of the plaintiff dated December 6, 1893. Lwas first inclined to think that as there were no express words of'conveyance in it those interests were not conveyed, but, • as theargument proceeded, it appeared dear to my mind, .that after theexecution of the- deed Maria Felsinger had no further iriterestswhich could be made the subject of transfer or conveyance. It isdifficult ,to construe the terms and conditions of the deed of giftNo. 860 dated September 23, 1882, as the language employed issomewhat obscure and involved, but the intention, as far as I cangather it from the whole deed, was to reserve a life-interest to MariaFelsinger in the event of Palis Swaris dying issueless. It seems torue that the notary himself was doubtful as to what Maria Felsinger’sinterests were at .the date of the execution of the deed in favour of .plaintiff, whether she had a life-interest in active operation at thetime, or- contingent at the death of -Palis Swaris without issue.He apparently decided that it was the latter; and as Palis Swaris'had undoubtedly, the dominium, and was entitled .to deal with theproperty, the notary refrained from using words of conveyancewhich would imply the former, and made use of. language ratifyingand confirming .the' absolute disposal of the property by her son,and “ freeing and discharging it from all her claims, and from allrestrictions, conditions, and reservations, anything in .the deedNo. 860 dated September 23, 1882, to the contrary notwithstanding.”I understand these words to mean that Maria Felsinger' abandonedand surrendered in favour of her son P&lis all her interests, whatever
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they may be, in*the property, and that the plaintiff took under thedeed, not only the dominium, but Maria Felsinger’s life-interest Grenier J.present ■ and future. Clearly Maria Felsinger cannot claim anylife-interest now; and if that interest is not vested in plaintiff; I do QunatfUekenot know in whom it can possibly be.
I agree entirely with the judgment of my brother on all the pointsdiscussed in it. I would set aside the decree of the District Courtas proposed by him.
The defendant appealed to the Privy Council.
Domhorst, K.G., and Sproule, for the appellant..
Atherley-Jones, K.C., and Horace Miller, for the respondent.
February 21, 1912. Delivered by Lord Shaw—
This is an appeal from a decision of the Supreme Court of theIsland of Ceylon dated July 12, 1910. This decision, pronouncedby Wood Kenton and Grenier JJ., reverses a judgment of theActing Judge ot the District Court of Colombo' dated December 20,
In their Lordships* opinion some difficulty was created' in thecourse of the case by failure to observe what is the true nature of thesuit. It is a possessory suit for a declaration that the plaintiff isentitled to the possession of certain premises in. Kollupitiya, within themunicipal boundary of Colombo. What follows in the prayer of theplaint is consequent upon this possessory declaration, namely, thatthe defendants claim to these premises should be declared ground-less, and that, if the defendant be in possession, he should be ejected.
Their Lordships think that the true view of the nature of the actionwas, ‘ however, kept fully before the Supreme Court, and that theconclusions thereupon, and of the rights of parties with referencethereto, have been correctly reached in the judgment appealed from.
The plaintiff (respondent) claims possession by virtue of a deeddated December 7, 1893, executed in his favour by Swarisge Palis* Swans of the first part and Maria Felsinger, mother of Palis, andnow wife of the plaintiff, of the third part.
The question in this case is whether the plaintiff (respondent) bythat deed acquired .a title to possession of the premises sufficient toexclude the title set up by the appellant. This question depends uponanother,* namely, what is the scope and effect of the title underwhich the premises were held by Palis and his mother alt the date ofthe conveyance granted to the plaintiff by them in December, 1893?
That title is a deed of gift dated September 23, 1882, being tlje deedunder which the said property was held at the date of the subsequenttransactions. By that deed^ of gift Maria Felsinger bore to “ give,grant, assign, transfer, and 6et over unto the said Swarisge PalisSwaris, his heirs, executors, administrators, and assigns,'as a giftabsolute and irreVbcable, under* and subject to the conditions and
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reservations hereinafter mentioned,” the property. These condi-tions and reservations, however, were of a radical character, namely,
“ to have and to hold… subject,however, to the following
conditions and reservations, that I, the said Maria Felsinger, shallhave the right of possessing and enjoying the rents, income, &c.,until the said Swarisge. Palis Swaris shall have arrived at theage of twenty-five years.” This event happened. The conditionsthen proceed: “ and that, after the said Swarisge Palis Swaris shallhave arrived at the age of twenty-five years, if I, the said MariaFelsinger, shall be living, then the said Swarisge Palis Swaris shallnot be at liberty to sell, mortgage, or alienate the said lands andpremises during my lifetime, but shall only possess and enjoy therents, income, and produce thereof.” The event here contemplatedalso happened! and, so far as possessory rights are concerned, theseclauses quoted appear to cover the facts which have emerged. Noulterior rights are brought into this case, and the sole question is thepossession of the property in 1893, the title standing, as it did,under the deed of 1882. Has there been a sufficient transfer of thatright of possession by the later deed? In their Lordships’ opinion,agreeing with that of the Court of Appeal, there has.
It may be explained that Palis attained the age of twenty-fiveyears in 1891. He died unmarried and without issue in 1896. In1893 accordingly the position plainly was that that clause of the deedabove cited applied, which declares that Palis was entitled to alife-rent- and enjoyment of the premises, but should not be at libertyto sell, mortgage, or alienate them. Under the deed of December 5,1893, which was registered on the 7th of that month, it is narratedthat “ whereas the said Swarisge Palis Swaris attained his age oftwenty-five years in the year 1891, and since then he is in possessionof the said premises, taking the rents, profits, and income thereof;and whereas he hath agreed and concluded, with the consent andapproval of his donor, the said Maria Felsinger, testified by her beinga party hereto and joining in executing these presents, to. sell and•convey the said premises unto ” the respondent. A conveyancefollows:“ And the deed further witnesseth that the said Maria
Felsinger, for and in consideration of the premises aforesaid, dothhereby consent and approve and give and grant liberty, power, andlicense unto her son, the said Swarisge Palis Swaris, to sell, convey,assign, and assure unto the said Daniel John Fernando and hisaforewritten absolutely the premises aforesaid and every partthereof, and both ratify and confirm the same, freed and dischargedfrom all her claims whatsoever therein and thereto, and from allrestrictions, conditions, and reservations whatsoever, anything in thesaid deed ” of 1882 to the contrary “ notwithstanding.”
The learned Judges of the Supreme Court, adopting the view ofMr. Justice Wendt in a connected case, held that Maria Felsinger’sinterest in the property passed under this deed. Mr. Justice Wood
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Benton observes: “After careful consideration, I am unable toconstrue this deed in any other sense than as a transfer for her partby- Maria Felsinger in favour of the appellant (the respondent in thisappeal, Mr. Fernando) of all her interest, whatever it might be, inthe property sold.*’ Their Lordships are of the same opinion. Itdoes not appear to them to be a reasonable view that a deed in theterms of that of 1882 did not fully reserve in the circumstances statedthe life-interest of Maria Felsinger, nor do they entertain any doubtthat the consent, concurrence, and ratification of that lady by the'deed of December 5, 1893, was competently given and is effective inlaw. This being so, the case made by the appellant on the pointappears to fail.
The appellant, however founds upon a deed da-feed about sixweeks prior to that of December, 1893, namely, the deed of October23 of that year. By the deed of October 23, Palis bound himselfwithin twelve calendar months to sell, in respect of an arrangement,for loan, to one Francis Perera Wanigaratne, “ free from all encum-brance whatsoever, the aforesaid premises/’ Wanigaratne bound'himself within the same twelve months to purchase and take the' convevance, and Palis bound himself before execution to “ releasethe said premises from all present and now existing encumbrancesand alienations/’ As already explained, at the date of this deedPalis had reached the age of twenty-five, and he was expresslyprecluded by the only deed under which he had any rights in theproperty, namely, that of 1882, from being “ at liberty to sell;mortgage, or alienate the said lands ” during the lifetime of MariaFelsinger. The deed of October 23 was accordingly granted inexcess and violation of his rights. Their Lordships think that it*accordingly, or anything had or done under it, cannot stand in theway of the rights effectively granted to the respondent under thedeed of December 15, 1893. They will humbly advise His Majestythat the appeal should be dismissed with costs
Judgment of the Supreme Court affirmed
FERNANDO v. GUNATILLEKE