BASNAYAKE J.—Ibrahim e. Alagammah
1951Present : Basnayake J. and Gonasekara J.IBRAHIM, Appellant, and AEAGAMMAH et al., RespondentsS. G. 351—-D. G. Batticaloa, 515/L
Jus accrescendi—Not applicable to gift—Wills Ordinance, s. 1.
The rule of jus accrescendi has no application to gifts. The jus accrescendi hasno application when the shares of the objects of the liberality have once vestedand there is nothing to suggest* that the donor intended an accrual in respectof these interests.
<^^,PPEAIj from a judgment of the District Court, Batticaloa.
8. Nadesan, for the plaintiff appellant.
P. Navaratnarajah, with S. Sharvananda, for the defendants respondents.
Cur. adv. vult.
April 27, 1951. Basnayake J.—
This is an action under section 247 of the Civil Procedure Code by theassignee of a decree in favour of one Mylvaganam Ponnammah to have •one-third share of a land called Kovil adi Valavu bearing Dot No. 1348at Kommathurai in Eravur Pattu (hereinafter referred to as the land)declared liable to be sold in execution of a decree against the second,third and fourth defendants and one Abdul Majeed Abdul Jaleel.
There are fouF defendants to this action. The first, MarimuttuAlagamma, is the person who objected to the seizure under the decree.The second, third and fourth are the heirs of one Abdul Majeed who theplaintiff asserts was at the time of his death entitled to a third share ofthe land.
The point that arises for decision in this action is whether Abdul Majeedwas at the time of his death entitled to a third share of the land. Thematerial facts shortly are as follows.
The original owner of the land was MjohamaduthambylewalMaraicair Mohideen Abdul Careem Udayar. He gifted the land to hisson Abdul Samath by deed No. 8056 of 19th September, 1929, subjectto certain conditions. Abdul Samath being a minor the gift wasaccepted on his behalf by his mother. Samath died without issue inOctober, 1933, and in terms of the deed the land went to his three brothers,Abdul Majeed, Abdul Salam, and Abdul Hameed. Two of them soldtwo-thirds of the land to Vyramuttu Peter Arumugam' who by deedNo. 10898 of 27th October, 1945, sold that share to the first defendantMarimuttu Alagamma, who also purchased the remaining one-third.In 1940, Abdul Majeed died, and the question that arises for decision iswhether on his death his interests went to the other two brothers • ordevolved on his heirs.
■ The learned District Judge has held that on Abdul Majeed’s death hisinterests went under the deed of gift to his brothers. This appeal is fromthat judgment.
BASNAYAXE J.—Ibrahim e. Alagammah
order to resolve the matter in dispute the meaning and effect ofthe deed of gift No. 8050 has to be ascertained. The material portionof that deed, which is in Tamil, according to the official translationreads:
“ I Mohammaduthambylewai Marikar Muhaiyadeen AbdulcareemUdayar …. in consideration of the love and affection whichI bear unto my son Muhaideen Abdul Careem Udayar Abdul Samathof the same division and place aforesaid do hereby set over and assureunto him the property described in the schedule hereto, which isvalued at Ns. 4,000 so as to possess and enjoy the same asdonation in the manner mentioned below.
" I do hereby declare that the said M. A. U'. Abdul Samath shallwithout encumbering and alienating the said property for any reasonwhatever take only the produce thereof and out of it after spending forkerosene oil to be used for the Meerapalli Mosque at Division I, Kattan-kudy, daily and for the three meals of Musafars daily shall take thebalance for himself, that as the said Abdul Samath is at present aminor, of his brothers Muhaiyadeen Abdulcareem Udayar AbdulMajeed, Muhaiyadeen Abdulcareem Udayar Abdul Salam and Muhaiya-deen Abdulcareem Udayar Abdul Hameed those who are majors shallfor and on his behalf manage and take the produce of the said propertyand out of the produce thereof after spending for the abovesaid twocharitable purposes shall give over the balance to the said AbdulSamath, that should be die issueless the said property shall subjoctto these conditions devolve on the abovesaid three persons who shallperform the abovesaid acts. Thus declaring, and binding them I haveexecuted this deed ”.
The deed in question is clearly a deed of gift. Certain obligations. andrestrictions attach to the gift. The obligations are to carry out thecharitable purposes the donor has in mind. The restrictions are that theland cannot be alienated and that it does not pass to the donee’s heirson his death intestate and without children.
A donor may when making a gift make it subject to conditions *. Thegift is therefore a valid gift. In the prohibition against alienation equallyvalid? A prohibition against alienation is not valid if it is based upon noapparent reason and where there is no one to benefit upon its breach 2.But in the instant case the object of the donor is to benefit the charitymentioned in the deed during the lifetime of his sons. The prohibitionis good and they are therefore not free to alienate the property-. Butas the prohibition does not extend beyond the lifetime of each of .themthe share of each son would pass to his heirs on his death.
In the instant case Majeed’s share would pass to his heirs free of allthe obligations and restrictions and can be sold in execution against them.The learned District Judge is wrong when he applies the rule of jusaccrescendi to this gift. That rule has no application to gifts *. Thejii8 accrescendi or right of accrual is a rule of Roman Law. Under thatlaw if one of several instituted heirs died in the testator'b lifetime, or
1 Burge, Colonial and Foreign Laws, VolrH, p. ISO.
Sands on Restraints, p 168.
Voet, Book XXXIX, Tit. 5, Sec. 14.
'25-N.L. R. Vol.-Liii '
BASNAYAKE J.—Ibrahim v. Alagammah
failed for any reason to become Heir, His share went to his co-heirs. Thisarose from the rule of Homan Law that no one could die partly testateand partly intestate. Under the Roman-Dutch Law that rule – becameobsolete and consequently tbfe right of accretion except where the testatorin his will indicated that the jus accreacendi should apply *.
Van Leeuven observes 2 ‘‘ for since by usage one may die partly testateand partly intestate, that rule as to accrual, which by virtue of law usedto apply in that case has, as we have said, been, abrogated by custom ”.In his commentaries Van Leeuven states the legal position stall moreclearly *:“ But as regards the rule of accretion if any one has bees
instituted heir, without co-heirs in the other shares, the subtlety of theHoman Law has no application among us, and we understand that insuch a case the other portions to which no heir has been appointed, donot accrue to the instituted heir, but remain and devolve ab iniegfatoupon those who are nearest in blood to the testator. ’’
Questions of jus a crescendi can arise only where property is bequeathedjto certain legatees or heirs jointly and one of them dies in the lifetimeof the testator. Once interests under a will vest there is no room for the/us accreacendi *.
I have referred to the Roman-Dutch Law because the learned DistrictJudge has rested his decision on a statement in Wille’s Principles of SouthAfrican Law at page 270 (2nd Edn). That passage applies to a casewhere a legatee or heir under a will dies in the lifetime of the testatorand has no application to. a case such as the one under consideration.
I do not therefore propose to discuss that citation more especially as ourlaw on the subject of accrual is very clearly set out in section 7 of theWills Ordinance. That section reads:
“ And for the avoiding of all doubts and questions as to the respectiverights of persons jointly holding landed property situated withincertain districts of this Island, it is further enacted and declared thatall landed property situated in this Island which shall belong to twoor more persons jointly, whether the same shall have come to themby grant, purchase, descent, or otherwise, is and shall be deemed andtaken to be held by them in common, and upon the decease of anyof such persons the said property so jointly possessed shall not remainor belong to the survivor, but all the right, share, and interest of theperson so dying in and to the property so jointly possessed as aforesaidshall form part of his estate; and the person or persons to whom thesame shall by him be devised or bequeathed, or to whom it shall devolve,shall thereupon become and be co-proprietors with, the survivor in thesaid property, in the proportion and according to the share of suchdeceased person therein, unless the instrument under which the saidproperty is- jointly “held and possessed, or any agreement mutuallyentered into between them, shall expressly provide that the survivor,upon such deceased, shall become entitled to the whole estate.”
The appellant is entitled to succeed. The appeal is allowed with costsboth here and below.
5 Maasdorp's Orotius—•Sehorer'e Notes CLII, CUCIII, CLXXXII.
Censura Forensis, Booh 3. 6. 11.
Book III, Oh. IV, See. 4.
■ * Smuts N. O. v. Smit N. O., 1928 O. P. D 411.
GUNA8EKAHA J.—Ibrahim o. Alagammah
The quotation from Wille’s Principles of South African Law uponwhich the learned Distriot Judge’s decision is based is as follows:
“ In the absence of any indication in the will as to the testator’sintention, jus accrescendi takes place where the beneficiaries have beenappointed jointly or re et verbis but not where they have been appointedto separate shares or verbis tantum.”
It has no application to the present case which ooncerns a deed of giftand not a last will.
Upon the death of Saznath the property vested finally in Majeed, Salamand Hameed, subject only to the condition that they should oontinue topay for the oil used in the mosque and for the musafar’s meals. The jusaccrescendi has no application when the shares of the objects of theliberality have onoe vested (per Bertram C.J. in Usoof v. Bahimath *)and there is nothing to suggest that the donor intended an accrual inrespect of these interests.
I agree that the appeal should be allowed with costs in both Courts.
IBRAHIM, Appellant, and ALAGAMMAH et al., Respondents