Abeygunawardena v. Deoni* Silva
Present: Sansoni, J., and L. W. de Silva, A. J.
G. ABEYGUNAWARDENA et al., Appellants, and K. DEONIS SILVA
et al., Respondents
S. C. 315—D. 0. Tangalla, 5,990
Pideicommissum—Will—Devise to two sons—Prohibition against alienation except to
specified persons—Indication of fideicommissaries—Effect of alienation between
the specified persona.
Construction of Deeds—Two deeds executed contemporaneously—One single transaction.
Muslim Law—Inheritance—R'esiduaries—Sisters and paternal unde of deceased—
Their rights to claim as residuaria.
By his last will a Muslim testator devised certain property to two of his sons inequal shares. He permitted alienation by the devisees between his sons, butall other alienations were forbidden. Ho further provided that if a prohibitedalienation took place, the lands so alienated should devolve on. the children ofthe respective devisees.
Held, (i) that the will created a valid fidoieommissum. The prohibitionagainst alienation did not stand by itself, for the beneficiaries to whom thelands should pass in the event of a breach of it woro clearly indicated.
(ii) that if one devisee transferred his share to his brother, the transfereewould not be bound, in respect of that share, by the prohibition iviainstalienation— unless the transferee was used by the transferor as a tool in orderthat the transferee might contemporaneously execute a transfer to a strangerand thus evade the condition imposed by the will.
One of the devisees died leaving a widow and three daughters, and had notalienated any of the lands devised to him.
Held, (i) that the devolution of the devisee’s share was governed by Mm termsof the will and not by the Muslim law of inheritance. Accordingly, the propertydevolved on the three daughters in equal shares. But the Muslim law of inheri-tance would apply to the devolution of the share of any of the three daughterswhen she died.
(ii) that, under the Muslim law of intestate succession, a full sistor of a de-ceased woman would be entitled to inherit as a residuary only if there is also abrother or if there is a female descendant of the deceased. In tho absence offull sisters who can Claim to inherit as residuaries, the paternal undo of thedeceased is a residuary.
Appeal from a judgment of the District Court, Tangalla.
L. Jayasuriya, with A. M. Ameen and 8. H. Mohamed, for theplaintiff and 2nd and 3rd defendants-appellants.
W. Jayewardene, Q. 0., with T. P. P. Goonetilleke and D. B. P.Gometilleke, for the 4th, 5th and 6th defendants-respondents.
Cur. adv. vult.
SANSONI, J.-—Abeygunawardena v. Demis Silva
June 27, 1957. Sansoni, J.—
It is common ground between the parties to this action that one AsanaMarikkar was the owner of a | share of the land called Vederalage Mee-gahawatte, the entirety of a land called Polgaswelawatte, and 2/3share of a land called Kopiwatte at the time of his death.
By his last will (P 4) of 1922 Asana Marikkar devised his interests inthese three lands to two of his sons Hashim and Samadu (2nd defendant)in equal shares. He also devised certain other lands to another son namedSadakathula. These devises were subject to the condition that they(the devisees) “ shall not be at liberty to lease the said premises for aperiod exceeding 4 years, and they shall not be at liberty to sell, mortgageor gift the said premises or alienate the same to any outsider except thesaid brothers, and if any such alienation, mortgage, or lease exceeding 4years became necessary, the same shall be done to and with the saidbrother, or brothers, and on the contrary all the alienations, mortgagesand leases exceeding 4 years done to and with any outsider shall becometotally null and void and the said premises shall become entitled to hisor their lawful child or children who shall be at liberty to do whatevertherewith ”.
When Asana Marikkar died he left surviving him by his first wife thosetwo sons Hashim and Samadu (2nd defendant) and two daughters,namely, Ayesha and Pathumma. He also left his son Sadakathula and ada ughter Eknieth Umma who were born to him by his second wife.
The first question which arises for decision is the effect of the conditionin the last will which I have already set out. It contains a prohibitionagainst alienation except to certain specified persons, and it also provideswhat is to happen in the event of the breach of that condition. Itseems to me that while the testator permitted alienation by the deviseesamongst themselves, all other alienations were forbidden. He furtherprovided that if a prohibited alienation took place, the lands so alienatedshould devolve on the children of the respective devisees. The prohibi-tion against alienation therefore does not stand by itself, for the bene-ficiaries to whom the lands should pass in the event of a breach of it havebeen clearly indicated. Obviously it was the testator’s intention that thelands, other than those which had been validly alienated, should ulti-mately pass to the children of the respective devisees, I am thereforeof the opinion that the clause containing the condition in question wassufficient to create a valid fidei commissum. In this respect the will isdifferent from those considered in Kirthiratne v. Salgado,1 Narina Lebbe v.Marikkar 2 and other cases where there was only a bare prohibition withouta designation of any person to whom the property should pass if therewas an alienation in breach of the prohibition.
1 (1932) 34 N. L. R. 69.
(1921) 22 N. L. R. 295.
■ SANS ONI, J.—Abeygunawardena v. Deanis Silva
The devisee Hashim died leaving a widow ,Amina Umma and threedaughters, namely, the 4th and 6th defendants and one MahakumathUmma, surviving him. Hashim did not alienate any of the lands devisedto him and I would hold that his share of those lands devolved, under theterms of the last will, on his three daughters in equal shares. I am unableto agree with the view put forward for the appellants that the devolutionof Hashim’s share is governed by the Muslim law of inheritance, for thewill showed clearly what the testator’s intention regarding that share was.But that law would apply to the devolution of Mahakumath Umma’sshare when she died leaving her mother and two sisters (4th and 6thdefendants) and her paternal unde Samadu. It is not disputed that hermother inherited a ^ share and her two sisters a £ share each of Maha-kumath Umma’s estate as sharers.
Another question which wqs argued before us was as to who inheritedthe remaining £ share of that estate. The appellants contend that itdevolved on the 2nd defendant Samadu exclusively as sole residuary;the respondents contend that it devolved on the two sisters exclusivelyas joint residuaries. I have no difficulty in holding that the appellants’contention is right. Residuaries are divided into three classes, viz. (1)Residuaries in their own right, who are all males “ in whose line of relationto the deceased no female enters ” ; (2) residuaries in &e right of anotherwho only take as such in company with a male; and (3) residuaries withothers, who only take as residuaries with daughters or sons’ daughters.A Ml sister, such as the 4th and 6th defendants are, can therefore onlybe a residuary if there is also a brother or if there is a female descendantof the deceased.
Authority for this view will be found in Tyabji’s Principles of Muham-'medan Law (2nd edition) page 873 and Wilson’s Anglo-MuhammedanLaw (6th edition) pages. 270 and 277. The paternal uncle in this caseis a residuary in the absence of full sisters who oan claim to inherit asresiduaries. The rule that preference is given to propinquity to thediseased, on which the respondents rely, only applies “ when a persondies leaving behind him several relations who may be classed as residuariesof the different kinds mentioned ”, in which event “ the residuary withanother when nearer to the deceased than the residuary in himself, wouldcome first”. See Syed Ameer Ali’s Muhammedan Law (6th edition)Vol. 2 page 55. But the person claiming to inherit must first satisfycertain, essential conditions before he can even claim to be classed as aresiduary, and the 4th and 6th defendants fail in this respect. Thereforethat -J share out of Mahakumath Umma’s J share out of Hashim’s shareof Asana Marikkar’s interests in the three lands in question devolved,on Mahakumath Umma’s death, on her unde Samadu (2nd defendant).The interests which thus devolved on the 2nd defendant were not subjectto any restrictions as regards alienation, and he was free to deal withthem as he pleased, Those interests were transferred by him to hisbrother Sadakathula who in turn transferred them to the 3rd defendant,who is now entitled to them.
SANSONT, J.—Abeygunawardena v. Deonis Silva -43
Samadu (2nd defendant) also purported to transfer the interests whichhe obtained under his father’s last will by those same deeds to his brotherSadakathula. He was entitled to do so under the will, but the matterdoes not end there. The interests which Sadakathula obtained m thatway in Vederalage Meegahawatte and Polgaswelawatte were transferredby him by a contemporaneous deed to the 3rd defendant. Sadakathulahas given evidence which clearly shows that he was being used by the 2nddefendant and the 3rd defendant as a tool in order that the conditionimposed by the will might be evaded. It is difficult to see any otherpurpose for which these two lands were transferred by the 2nd defendantto Sadakathula and immediately thereafter by the latter to the 3rddefendant. Under these circumstances the two deeds in question (P 14and P 15) have the same effect as if they were one deed—see DingiriNaide v. Kirimenike1.
In effect, then, the second defendant contravened the condition of thelast will as regards alienation to an outsider. Whether his interest^ inthose two lands which he derived under the will did, or did not, pass to the3rd defendant, can only be decided after it has been ascertained whetherSamadu has any children. On this point the parties have failed to leadany evidence, and apart from evidence that Samadu is married the ques-tion remains at large.
With regard to the interests which the 2nd defendant derived underthe will in Kopiwatte, different considerations apply. He transferredthose by deed P 20 in 1941 to his brother Sadakathula as he was entitledto do under the will. Title passed to Sadakathula who was entitled todo what he pleased with those interests, since there is nothing in the willrestricting his power to alienate those interests once he has acquiredthem—see Kirthiratne v. Salgado 2. The 3rd defendant chums to havepurchased those interests from Sadakathula by deed P 21 of 1952, butthe title recited therein is not deed P 20 but another deed which is saidto have been executed on the same day as deed P 21. That deed has notbeen produced in evidence. It is therefore not possible to hold that the3rd defendant became the owner of the 2nd defendant’s interests in Kopi-watte derived under the last will. We are unable to say on the materialbefore us who owns those interests. But the transfers by the 2nd defen-dant in favour of Sadakathula, and by the latter in favour of the 3rddefendant, are sufficient to vest title in the 3rd defendant so far as theinterests which the 2nd defendant inherited horn his niece MahakumathUmma are concerned.
It has been proved that the remaining $ share of Kopiwatte alsoformerly belonged to Asana Marikkar. He by deed P 17 of 1914 soldthat share to Kadija Umma, who by deed P 18 of 1946 leased that £ shareto the 3rd defendant for 7 years commencing from 1st January 1945.
The plaintiffs came into court in this case claiming that the 2nd and3rd defendants by deeds of lease P 13 and P 16 of 1949 leased certainspecified shares of the 3 lands inquestion to the 2nd plaintiff for 5 years
1 (1956) 67 N. L. B. 669. >(/932) 34 N. L. B. 69.
SANSOOT, J.—Abeygimawardena, v. Deonis Silva
commencing from 1st March, 1949, and that the 2nd plaintiff by deedP 22 of 1949 assigned those leasehold rights to the 1st plaintiff. Theaction was brought against the 1st defendant who claimed on a deed oflease 1 D 1 of 1945 executed in his favour by the 4th, 5th, and 6th defen-dants leasing J of Kopiwatte, of Polgaswelawatte, and 1/12 of Vederala-padinchivasitiyawatte (which is another name for Vedera’.age Meegaha-watte) for 8 years commencing from 25th December 1945. He 4th,5th and 6th defendants were added as parties to this action after they hadbeen noticed to warrant and defend as lessors, and they pleaded that thedeeds of lease relied on by the plaintiffs were invalid, and that the4th and 6th defendants, and nobody else, were the heirs of MahakumathUmma. They asked that the plaintiff’s action be dismissed with costs.
When this case came up for trial, issues were framed at the instanceof the lawyers appearing for the respective parties (2nd and 3rd defen-dants had also been added as parties by then) and those issues requiredth§ court to determine exactly what rights the parties had in these lands.
have answered the questions as far as is possible on the material beforeus. But we have no evidence as regards Samadu’s children, nor asregards the state of the title in regard to the interests of Samadu in Kopi-watte which he derived under the will: it is not possible, therefore, tosay what the correct shares of the parties in all three lands are, even tothe extent of the interests which Asana Marikkar formerly owned.
The learned District Judge declared the plaintiffs entitled to possessthe leasehold interests of certain shares of the three lands respectively,and ordered the 1st defendant to pay the plaintiffs damages. The 1stdefendant has not appealed, but the plaintiffs were dissatisfied with thejudgment and filed this appeal, claiming that they were entitled to possesslarger shares of the three lands than the judgment gave them. The 4th,5th, and 6th defendants have filed a cross appeal complaining that thedevolution of title as found by the learned Judge was incorrect. It wasalso submitted on their behalf that this action must fail in any eventbecause all the co-owners of the land have not been joined. We do notagree with this submission. The issues framed show that all the partiesat the trial invited the trial judge to make such a decision. But they havenot given him the assistance he was entitled to expect.
The shares of the respective parties, except with regard to certaininterests already mentioned, can be arrived at on the basis of the findingsin this judgment. The plaintiffs fail in their appeal because they havenot shown that their, lessors owned larger shares than the judge hasawarded them. The 4th, 5th and 6th defendants have failed in part andsucceeded in part in their cross appeal. I would therefore dismiss theappeal with costs and make no order as to the costs of the cross appeal.
L. W. de SiLVA, A. J.—I agree.
G. ABEYGUNAWARDENA et al., Appellants, and K. DEONIS SILVA et al., Respondents