Kirthiratne v. Salgado.
accrue. In the present case the transfer to Aponsu was in breach ofthe prohibition and therefore passed no title. The subsequent transfertwo one of the permitted transferees under the deed passed title and hecould claim the property as soon as his rights accrued.
XMacdonell C.J.^Are you not barred by prescription?]
No. This is not a mere prohibition against alienation to anyoneexcept the co-grantees. The documents creates a valid fidei commissum.The fidei commissaries consist of the three grantees and Baby but not allof them., A choice is given to the fiduciary. Either she gives to oneof the three grantees or if not it goes to Baby. Such a -fidei commissumis not uncommon under the Koman-Dutch law. If she breaks thecondition there is no immediate forfeiture. There is no divesting oftitle immediately in favour of a third party. The transferee gets aninterest limited in time till the beneficiary’s rights accrue. All thatthe Roman-Dutch law requires for a valid fidei commissum is that thereshould- be some person or class of persons for whose benefit the prohibi-tion is imposed. * There is no limit to the point of time at which thefideicommissary’s rights accrue. When they, accrue he can immediatelyclaim his rights from the person holding on the unauthorized transfer.
[Macdonel C.J.—The gift is to Punchi Ukku, her heirs, executorsadministrators and assigns “ so that. they could do anything they likewith it”.]
The use of the word “ assigns ” does not negative a fidei commissumwhich ;is 'otherwise created by appropriate words (20 N. L. R. 449; 26N. L. R. 181). For a fidei commissum there must be a valid grant withfull power, to the grantee, thereafter a trust is imposed. A fiduciary' interest is the interest of a true owner—not a limited interest. Thewords “ so that they could do anything they like with it ” merely givefull dominium which is necessary in all fideicommissary grants. If theother elements of a fidei commissum are present the wideness of thelanguage used in giving dominium to the fiduciary do not in any wayretract from a fidei commissum which is otherwise validly created (Coudertv. Don Elias ’).
Navaratnam, for defendant, respondent.—The argument is of merelyacademic interest and does not apply to the facts of this case. Theplaint says nothing about the original deed creating fideicommissaryrights. The effect of D 2 is to wipe out even the usufruct reserved by D 1.D 1 conveys complete dominium. The word “ assigns ” in the casescited were used in the operative clause. Later there was express prohibi-tion against alienation and clear designation of the persons in whoseinterest that prohibition was made. See Tina v. Sadris5; Hormusjee v.Cassim*; Aysa Umma v. Noordeen *; Nugara . v. Gonsals; Silvav. Silvac. In these cases the word “ assigns ” has been used andTina v. Sadris (supra) has been consistently followed. Wordscannot be lightly brushed aside. They must be given some meaningand must be considered. The words prohibiting alienation recognize
1 17 K. L. It. 129 al 132.* 8 N. L. R. 330.
* ? S. C. C. 133.5 U N. L. R. 301
■'2 N. I.. 11. 190.6 28' N. L. R. 171
MACDONELL C.J.—Kirthiratne v. Salgado.71
the right of Punchi Ukku to sell the property. The words give to thefirst three donees a right of pre-emption and nothing more. They wouldif they get any right get it purely on a deed of sale by virtue of a contract.They do not on. the happening of a certain event become ipso facto fidei-commissary heirs. The prohibition is only the expression of a wish.In the event of a breach of the prohibition we are not told what is tohappen or who is to benefit. Therefore by reason of the Entail andSettlement Ordinance the prohibition is bad and a transfer in breachof the prohibition gives good title. The three donees will have a personalaction against Punchi Ukku for a breach of the condition. In anyevent where there is a breach of a prohibition against alienation therights of the fideicommissary accrue immediately and this action isbarred by prescription (Sande, Part III., chapter IV., section II).Counsel also cited Robert v. AbeywardeneJ; Naina Lebbe v. MarikarBoteju v. Fernando3; Salonchi v. Jayatu Burge 769 (new ed.); Juta’sLaw of Wills 113).
Wikramanayake, in reply.—A distinction must be drawn betweencases in which the prohibition creates the fidei commissum and thosein which the prohibition is merely incidental to a fidei commissum other-wise validly created. In the latter case the fideicommissary’s rightsdo not vest in him on a breach of the prohibition. He must wait untilthe happening of the condition which under the instrument will givehim his rights (Sande, Part III., chapter IV., section 12). In this caseno rights accrue till some definite act by Punchi Ukku whereby sheselects the fideicommissary. She could either transfer to the permitteddonees or refrain from doing so and at her death leave it to Baby. Shemade her choice when she transferred to one of the donees and his rightsvested in him only at that moment.. No prescription can run againsta fideicommissary until the accrual of his rights (Abdul Cader v. HalibaUmma'").
September 5, 1932. Macdonell C.J.—
This was an appeal from the District Court, Kegalla, by the plaintiff-appellant against a decision of that Court to the effect that a certaindeed of gift (No. 1,579 of April 27, 1907) did not create a fidei commissumand that the defendant-respondents had prescribed against the plaintiff-appellant.
The document was a deed of gift of certain lands to (1) donor’s daughterSalleha Umma, (2) his nephew Ibrahim Lebbe, and (3) his nephew CadersaLebbe, of the southern half of certain land, and also of gift of the northernhalf of the same land to the woman Punchi Ukku. The deed in disputeruns as follows:—“Therefore the said four donees, Sinne Lebbe MarikarSalleha Umma, Ibrahim Lebbe Mohammedu Lebbe, Cadersa LebbeMohammedu Sameem, and Hewapedige Punchi Ukku, their heirs andthe heirs’ executors, administrators, and assigns of each of them shall,subject to my life-interest, possess and own the same with all the right,
' 15 N. f.. n. 323.2 2 .V L. li. 235.
*28 X. L. li. '02.
;t 24 N. 1,. ft. 203.
* 27 N. L. R. 385.
MACDONELL. C.J.—Kirthiratne v. Salgado.
title, and interest therein and thereto belonging to me and can do any-thing they like therewith. Nevertheless, I hereby ordain that if thesaid Hewapedige Punchi Ukku required to sell, mortgage, or to disposeof the said property in any manner she shall do so only to the said threepersons or to any of them or to several of them, but she shall not doany act whatsoever to enable any outsider to acquire any proprietorshipover the said property and further, if the said Punchi Ukku died with-out any such transference of ownership the same shall be inherited byBaby whom she has adopted and if the said Punchi Ukku and Babywere to die without any descendants the said property shall devolveon my said daughter Sinne Lebbe Marikar Salleha Umma or her heirs.”The donor subsequently by deed No. 671 of September 28, 1910, releasedto Punchi Ukku the life interest he had reserved to himself by the deedNo. 1,579.
The facts in connection with this document are as follows. PunchiUkku on April 26, 1911, by deed No. 16,031 transferred her northernhalf share to one Aponsu under whom the defendant-respondentsclaim, and thereafter the same Punchi Ukku transferred her samenorthern half share on May 23, 1922, by deed No. 6,471, to IbrahimLebbe, donee No. 2ron the deed of gift No. 1,579, who transferred toCadersa Lebbe, donee No. 3 on deed No. 1,579, who retransferred toIbrahim Lebbe, donee No. 2, who sold in 1926 to the present plaintiff-appellant. The learned District Judge held that the deed of gift No. 1,579.did not create a fidei commission, and on the one issue raised before himby the parties at the trial, namely, prescription, held that defendants,successors in title of Aponsu who obtained the land from Punchi Ukkuin 1911, had prescribed against plaintiff, successor in title to IbrahimLebbe, donee No. 2 on deed No. 1,579, who only obtained the land in 1922.
It is necessary to analyse the portion of the deed No. 1,579 whichhas been quoted in extenso above. It is an absolute gift to donees No. 1,2, and 3 of the southern half of the land and, subject to the words thatfollow, an absolute gift to Punchi Ukku of the northern half of the land.(It may be taken that before the events in this case the donor had diedand that therefore his life interest does not come in question.) Theimportant words are these:—“ Nevertheless I hereby ordain that if thesaid Hewapedige Punchi Ukku required to sell, mortgage, or to disposeof the said property in any manner she shall do so only to the said threepersons or to any of them or to several of them, but she shall not do anyact whatsoever to enable any outsider to acquire any proprietorshipover the said property.” The effect of these words is this. If PunchiUkku wishes to alienate the land she must do so only to one or moreof the three donees. But the three donees are not any one of themfettered in any way as to what they may do with Punchi Ukku’s shareonce Punchi Ukku has transferred it to one or more of them. Nothingis said restricting in the slightest degree their power to alienate to othersthan themselves Punchi Ukku’s share once they or any one or moreof them have acquired it. It is therefore a personal restraint, a singleone, and not a real prohibition, not one, that is, affecting the land sinceit does not recur, is not what is called multiplex. See per Schneider J.
MACDONELL C.J.—Kirthiratne v. Salgado.
in Naina Lebbe v. Marikar Nothing is said as to what is to happensupposing Punchi Ukku in contravention of the prohibition sells to an“ outsider ”, i.e., to someone other than the three donees. In the absenceof any such words, and repeating that the three donees are at perfectliberty to alienate to whom they please Punchi Ukku’s share when onceit has been transferred to them or one or two of them, I do not thinkthat on the authorities this disposition can be said to create a fideicommissum but that it simply gives to the three donees the right of pre-emption. See Pelvis v. Soysa' and Naina Lebbe v. Marikar (supra).See also Burge TVPart I., p. 770, 1914 edition. “ A prohibitionagainst alienation will not create a fidei commissum but is perfectlynugatory unless the persons are designated in favour of whom the testatordeclares the prohibition …. It is not sufficient that he namesparticular persons to whom he prohibits the alienation to be made ”—in this case persons “ outside ” the three donees—“ unless he also desig-nates some person to whom the estate shall pass in the event of its beingalienated ”, but this deed No. 1,579 omits to do so.
If this be simply a right of pre-emption given to the three donees,then the facts are that they have lain by for 11 years after Punchi Ukkutransferred to Aponsu, defendants’ predecessor in title, and their claimis prescribed as the learned Judge holds.
Let us, however, suppose that this disposition does create a fideicommissum. The fidei commissarii then would be the three donees.It was argued to us that this was a case of fidei commissum with a discre-tion left to Punchi Ukku which of the three fideicommissary heirs to *select, one or more, and that no rights vested in these three fidei com-missary heirs or in any one of them until Punchi Ukku makes a deed ofgift in favour of one or more of these three, or dies. Punchi Ukku*it may be stated, is still alive, so the further disposition purporting tosay what is to happen to the property after her death, does not arise.Now this argument that no rights accrue to any one of the three doneesuntil Punchi Ukku has executed a conveyance in favour of one or moreof them and that consequently time did not begin to run against them in1911, the date that Punchi Ukku transferred to Aponsu, seems to becontrary to the passage in Sande on Restraints upon Alienation, Part III.,chapter IV., which was cited to us in argument. The important sectionsin that chapter are 11 and 12 and it seems to me clear that if this disposi-tion is capable of being construed as a fidei commissum it has to begoverned by section 11 quoted below, and that the right of the threedonees as fidei commissarii, would accrue the moment Punchi Ukkutransferred to Aponsu in 1911.
“ Section 11.—The third effect follows from those already mentioned,and is that from an alienation made contrary to the testator’s prohibi-tion, an implied fidei commissum is induced in favour of those in whoseinterests the prohibition was made; so that they can bring an actionand sue on the fidei commissum during the lifetime of the person whoso alienates without waiting for his death.
i 22 N. L. R. 302.
2 21 N. L. R. 44*.
MACDONELL C.J.—Kirthiratne v. Salgado.
“ Section 12.—And in this respect a fidei commissum arising froman express prohibition against alienation differs from an express fideicommissum which is conditional and postponed to a certain time (fromwhich an implied prohibition results), in that the property subject tothis fidei commissum cannot meanwhile be alienated, nor is an actionon the fidei commissum given before the condition is fulfilled or thetime arrives; for then at last the alienation is rescinded, and isconsidered as not having been made. ”
It was argued to us however that the case is really governed by section12, but I do not see how that can be. Granting that this is an expressfidei commissum, I cannot see that it is “ postponed to a certain time ”,the only “ time ” that the rights of the fidei commissarii can be said to bepostponed to is the “ time ” when Punchi Ukku transfers to someoneother than the three donees. And how can there be question of an“ implied prohibition ” here? The prohibition is quite express, as far asit goes. The words are, “ she shall not do any act whatsoever to enableany outsider to acquire any proprietorship over the said property”; but ifshe does, surely the persons damnified by her act, the three donees, musthave the power then and there to come forward and claim the propertywhich she has attempted to alienate to. Aponsu—assuming of course thatthey are fidei commissarii. I am afraid I cannot agree with the argumentthat the rights of these three donees did not accrue until Punchi Ukkuconveyed to one of them in 1922. Their rights, if they are fidei com-missary rights, accrued, it seems to me, when in 1911 Punchi Ukku inderogation of those rights purported to convey to Aponsu, defendants’predecessor in title.
This question has been considered on the assumption that the wordsunder consideration create a fidei commissum in favour of one or more ofthe three donees. But on the authorities I am quite satisfied that thesewords do not create a fidei commissum but at most give a right of pre-emption to the three donees. They did not exercise that right, theystood by and did nothing when Punchi Ukku conveyed to Aponsu, andany right that they may have had is now prescribed.
The further disposition in this deed of gift No. 1,579, namely, what is tohappen to the property if Punchi Ukku dies without having transferred it,hardly arises for consideration, but I would wish to point out this. Thecontingency of Punchi Ukku and Baby both dying without descendantsis provided for. But what if Baby dies without descendants, and PunchiUkku dies leaving descendants? This contingency is not provided forand apparently in such a case Punchi Ukku’s representatives, testament-ary or intestate, would take the land unfettered to the exclusion of- Salleha Umma, donee No. 1. Where you get a deed of gift so looselydrawn you would, I apprehend, need clear evidence of an intention tocreate a fidei commissum before you could conclude that, a fidei com-missum had in fact been created.*
For the foregoing reasons I am of opinion that this appeal must bedismissed with costs.
DALTON J.—Kirthiratne v. Salgado.
Dalton J.—
The facts are fully set out in the judgment of the lower Court. Thecase depends upon the construction to be given to the deed of gift (D 1)of April 27, 1907. The learned trial Judge has held that the deed createsno valid fidei commissum in respect of the land set out in the plaint.From that decision the plaintiff appeals.
By the deed the donor R. M. Sinna Lebbe donated the southern half ofthe land Bolagamayagewatta to three persons, his daughter SallehaUmma, his sister’s son Mohammadu Lebbe, and his brother’s son Moham-madu Sameem, and the northern half to Punchi Ukku who, according tothe deed, was staying in his house and working there. The deed thencontinues—
“ Therefore the said four donees …. their heirs, and theheirs’ executors, administrators, and assigns of each of them shall,subject to my life interest, possess and own the same with all the right,title, and interest therein and theretq belonging to me, and can doanything they like therewith; nevertheless I hereby ordain that,if the said Hewapedige Punchi Ukku required to sell, mortgage, or todispose of the said property in any manner, she shall do so only to thesaid three persons or to any of them or to several of them but she shallnot do any act whatsoever to enable any outsider to acquire anyproprietorship over the said property, and further if the said PunchiUkku died without any such transference of ownership the same shallbe inherited by Baby whom she has adopted, and if the said PunchiUkku and Baby were to dies without any descendants the said propertyshall devolve on my said daughter S. L. M. Salleha Umma or her heirs. ”In a subsequent conveyance of 1919 (D2) the donor conveyed his lifeinterest that he had reserved over the whole land to Punchi Ukku, togetherwith other properties.
It is contended for the appellant that the deed created a valid /idelcommissum in respect of the portion donated to Punchi Ukku in favour ofthe other three donees, that she had conveyed the property in questionin 1911 to Aponsu, the predecessor in title of the substituted defend-ants, respondents, in breach of the conditions laid down, and that asagainst the subsequent grantee Mohammadu Lebbe and his successorsin title. Aponsu obtained no rights of any kind. It was contended forappellant that the conveyance to Aponsu was void and passed no title,the dominium thereafter being still vested in Punchi Ukku. As againsther alone was it open to Aponsu by pleading estoppel to resist any actiontaken in respect of the property, if she contested his claim.
The deed in most clear and explicit terms in its first portion donates therespective portions mentioned to the four donees absolutely. This ismade still clearer in the first half of the second portion of the deed, whichI have set out above in full. They, their heirs, executors, administrators,and assigns are to own and possess the same with every right thereinbelonging to the donor, subject to his life interest, and they can do every-thing they like with it. Up to this point there is not the least doubt orambiguity in the deed. .
76DALTON J.—Kirthiratne v. Salgado.
The donor then states that if Punchi Ukku wishes to sell, mortgage, ordispose of the property, she shall do so only to the other three donees.The object is stated to be to prevent any outsider acquiring the property,but to whom the word “ outsider ” can apply is very far from plain. Itcannot show any intention to keep the property in the donor’s family,since neither Punchi Ukku ror her adopted daughter Baby is a memberof the family. They are both Sinhalese, whilst the donor and the otherthree donees are Muslims. What is to happen in the event of PunchiUkku failing to observe this alleged condition against alienation to any-one but the other three donees is not stated, but the deed continues thatif she dies without “ any such transference of ownership ”, the propertyis to be inherited by Baby. It then goes on to provide that If PunchiUkku and Baby die without any descendants, the property is to. devolveon Salleha Umma or her heirs. There is no definite provision that theproperty is ever to go the descendants of Punchi Ukku, although theyare mentioned in the last proviso, but this matter is immaterial hereexcept to further accentuate the unsatisfactory nature of the wording ofthe deed and the difficulty of ascertaining the intentions of the donorfrom the deed itself. The principles that should guide the Court inascertaining the intention of the donor in such a case as this are succinctlyset out by Sbhneider, J. in Boteju v. Fernando3 to which case I again referlater. If that intention is not clear, the presumption is against a fideicommissum. That rule of Roman-Dutch law has been consistentlyapplied by our Courts, and the reason for it is clearly set out byBranch C.J. in Salonchi v. Jayatu.
There cannot be the least doubt or ambiguity respecting the firstportion of the deed, as I have already pointed out. It vests the fulldominium in the two portions in the respective donees in explicit termsand without any restriction, save for the donor’s life interest. Onthe use of the words “ heirs, executors, administrators, and assigns ” insuch cases as these Mr. Perera has referred us to several decided casesfor the purpose of showing that too much emphasis should not be laidupon the particular form of words used, if the intention of the grantor ortestator be otherwise clearly expressed. He urges that the use of the wordin the first instance vesting absolute dominium in the fiduciary is by nomeans repugnant to the creation of a -fidei commissum. The terms of thedeed in the case of Coudert v. Don Elias', upon which he specially relies,are different from those in the case before us, but the law as laid downthere is applicable here. Applying that law to the deed before us, canone say here that the first portion of the deed vesting absolute title inthe four donees is merely a preliminary to burdening half of the propertywith a fidei commissum? (Gunaratne v. Perera.*) On this aspect of thecase, taking the deed as a whole and applying the question put to himselfby Pereira J. in Coudert v. Don Elias (supra), whether the words usedsufficiently indicate a clear intention to burden the plena proprietas, theanswer, it seems to me, must be in the negative.
1 24 N. L. R. 293.= 27 N. L. R. 366.
a 17 N. L. R. 129.* 1 C. W. R. 24.
DALTON J.—Kirthiratne v. Salgado.
There is in my opinion another aspect of the case, which precludes theappellant from establishing that a fidei commissum is created by thisdeed. It is essential that the will or deed must clearly provide for orpoint out the person or class to whom the property is to go over.Assuming for the purpose of argument, on this aspect of the case, thatthere is here shown an intention to create a fidei commissum by imposinga restriction on alienation, to whom is the property to go in the event of abreach of that provision; who are the fideicommissaries designated?The deed, it seems to me, is silent on this point,. It was urged for theappellant that in the event contemplated the other three donees were thefideicommissaries, but I can find no support for that argument in thedeed itself. What is to happen on a breach of this restriction, or inwhose favour this condition of the fidei commissum it is sought to establishis made, the deed does not state, nor can, so far as I see, any clearintention on the part of the donor be inferred from the language used.
The "law on this matter is clear. A mere prohibition of alienationdoes not create a fidei commissum, unless the deed aesignates the personsin whose favour the prohibition is declared and to whom the estate shallpass in the event of its being alienated (Tina v. Sadris’). The deed wouldseem to provide (although even this is not absolutely clear) that on thedeath of Punchi Ukku without disposing of the property to any of theother three donees the property goes to Baby her adopted daughter;this, however, will not help the plaintiff whose claim is made throughMohammadu Lebbe, for in such an event the other three donees could noton any construction of the deed be the fideicommissaries.
It has been suggested that the interpretation of the particular deedwith which the Court had to deal in Tina v. Sadris (supra) has not beenaccepted in later decisions (Ibanu Agen v. Abeyasekerdr), but I donot think it has ever been suggested that the law which is in effectincorporated in section 3 of the Entail and Settlement Ordinance, 1876,was in any way questioned. Later decisions to which I refer make thatquite clear. Even on the terms of the particular deed, Wood Renton J.in Nugara v. GonsaV held that Tina v. Sadris (supra) should be followed.In Silva v. Silva1 Lascelles C.J. referred to Tina v. Sjadris (supra) asbeing a leading case on the subject and pointed to the undesirability ofseeking to collect from any ambiguous expressions in the document thedonor’s intention as to the persons to be ultimately benefited. InSalonchi v. Jayathu (ubi supra) the law is again set out, referencebeing made to Tina v. Sadris (supra) and also to the authorities uponwhich that decision is based set out in Burge Vol. II., p. 113.
In Craib v. Loku Appu5 Ennis J. held that to hold that a fidei com-missum is created it must clearly appear—
that the gift is not absolute to the donees;
who are the persons to be benefitted; and
when they are to benefit.
7 S. c. C. 135.
6 N. L. R. 344.
o '
s 20 N. L. U. 442.
* 14 N. L. R. 301.418 N. L. R. 174.
DALTON J.—Kirthiratne v. Salgado.
He re-states the principle that the document is to be construed so asto be least burdensome to the donees, in case of doubt there is a presump-tion against incumbrance, and that it is not possible to disregard any wordin the document. If the document does not make it clear who is to benefitand when, it is not open to the Court to supply the deficiency, andthe deed must be construed as an absolute gift to each of the donees.
In Peris v. Soysa1 there was a prohibition in the deed that the doneesshould not sell or mortgage the property to any other but themselves.The deed did not specify what was to happen in the event of a sale ormortgage to an outsider. No persons who were to be benefitted wereclearly designated, and the prohibition was held to be a naked prohibi-tion and of no force or e#ffect. In Hettiaratchi v. Suriaratchi" a testatorgave the residue of his estate to his six children, and in the last clause(which the learned Judge pointed out was not an integral part of thebequest) provided that it should not be alienated except among the heirs.The heirs were the six children themselves. There was nothing to showthere was any intention apart from this to keep the property in thefamily, and De Sampayo J. held the provision to be a nudum praeceptum,the further direction not to alienate to outsiders not altering the natureof the unconditional gift.
In Boteju v. Fernando3 the deed was a deed of gift to F. with the usualprohibition against alienation, save to one of his brothers. It then wenton to provide, subject to a life interest of the donors, that after F’s deaththe property be possessed by his heirs, executors, administrators, andassigns for ever, or to do whatever else they liked with it. The Court(Schneider and Garvin JJ.) held the deed did not create a valid fideicommissum, and there was nothing in the language used which indicatedany desire on the part of the donors'by the prohibition against alienationto benefit any person unless it be the donee himself, or any class of persons.In Rodrigo v. Perera‘ the same two learned Judges had a deed of giftin almost similar terms before them. They held no fidei commissum wascreated by the clause in the deed which spoke of possession by thedonees, their executors, administrators or assigns, nor was there any■fidei commissum conditional, as was urged, created by the conditionwhich prohibited the sale by the donees except among themselves.
Applying the law followed in those cases, in the absence of any cleardesignation of the persons in whose favour the prohibition is declaredand to whom the estate shall pass in the event of alienation contrary tothe restriction, the plaintiff must fail.
A further matter was argued before the Court, respondents urgingthat if, in fact, there was here a valid fidei commissum, and Punchi Ukkuwas a fiduciary, her interest in the fidei commissum terminated immedi-ately on the breach of her of the condition against alienation outside theother three donees, and therefore her subsequent deed in 1922, throughwhich plaintiff traced his claim, was valueless and conveyed nothing.In view of my previous conclusions, it is not necessary for me to go into
21 N. R. 446.3 24 N. L. R. 293.
24 y. L. R. 140.4 '24 N. L. R. 420.
this question, or the further question whether or not the right of the threeother donees were merely rights of pre-emption.
For the reasons given the appeal must fail, and must be dismissedwith costs.
Appeal dismissed.