DALTON S.P.J.—Pate v. Perera.
1933Present: Dalton A.C.J. and Drieberg J;
PATE v. PERERA ct al.
180—D. C. Colombo, 2,464.
Fidei commissum—Gift to a person with restriction against alienation—Fideicommissum in favour of children—Whether restriction is binding onchildren.
Where a • deed of gift contained the following clause : —“ It is herebydirected that, after the death of the said J. S. (wife of the donor to whoma life-interest had been reserved) the said M. P., i.e., the donee, shall beat liberty to possess the said land during his lifetime, but that he shallnot sell, mortgage, gift or otherwise alienate the said land. If, however,he gets married and children are born from that union, these childrenand their descendants shall be at liberty to remain in undisturbedpossession of the said land and to do whatever they like with it ”,—Held, that the deed created a valid fidei commissum binding upon M. F.,but that the restriction against alienation did not bind his childrenwho acquired a free inheritance.
^^PPEAL from a judgment of the District Judge of Colombo.
H. V. Perera, for applicant, appellant.
Choksy, for third, fourth, and fifth respondents.
M. T. de S. Amarasekera, for sixth, seventh, eighth, and ninthrespondents.
April 7, 1933. Daltox S.P.J.—
The appeal concerns the construction of a deed of gift. In 1872 oneDon B. Ferdinando donated an allotment of land called Meeripennewattato his nephew, Marthinu Perera, whom he was helping and bringing up.The third clause of the deed was in the following terms:—r
“ It is hereby directed that after the death of the said Justina Silva(wife of donor to whom a life-interest had been reserved) thesaid Marthinu Perera shall be at liberty to possess the said landduring his lifetime, but that he shall not sell, mortgage, gift orotherwise alienate the said land or anything appertainingthereto. If, however, he gets married and children are bornfrom that union, these children and their descendants shall beat liberty to remain in undisturbed possession of the said landand to do whatever they like with it”.
In the event of Marthinu dying without issue the property is to vestin the children of a sister of the donor, and in the event of their becomingso entitled “ they can undisputedly possess the same …. anddo whatever they please therewith ”. A similar provision is made inrespect of children of the donor, should any be born to him after the dateof the deed.
DALTON S.PJT.—Pate v. Perera.
Marthinu, who died on July 23, 1929, at the age of 85, hgd'twd children,Appolonia and Thecla, who were both living at his death, hi March,1912, Marthinu and Appolonia mortagaged an* undivided half of the landin question, which bond was subsequently put in suit. Decree for salefollowed, and the interest was purchased by one Romanis Peiris, to whomit was conveyed in April, 1914. Ten days later Romanis Peiris sold andconveyed this interest to J. G. Fernando (deed A 3 of April 25, 1914).Five days later by deed A 1 of April 30, 1914, Marthinu and his otherchild Thecla conveyed the remaining undivided half of the land to J. G.Fernando. In December, 1914 (A 4) J. G. Fernando donated the wholeland to his wife, and on June 8, 1916, they mortgaged it to the presentappellant. That bond was put in suit, and on August 19, 1921, a decreewas entered in favour of appellant for the sum of Rs. 40,000 and interest,and declaring various allotments of land including the land in questionhere executable under the decree. That decree is still unsatisfied.
During this time the Crown acquired a portion of the land and depositedin Court the amount of compensation to be paid. That sum remainedin Court during Marthinu’s lifetime, the learned District Judge holdingin 1917 there was fidei commissum in favour of his children. Theappellant has, however, now applied that the sum be paid out to him.It is resisted by Appolonia, Thecla, and their children. The questionfor decision now is whether Appolonia and Thecla got absolute title onthe death of Marthinu, or whether the deed of 1872 created a fidei com-missum not only binding on Marthinu but also upon his children and theirdescendants for four generations.
The deed is a Sinhalese one, and there has been some argument as towhat is the correct interpretation of the latter part of clause 3. Thetranslation before the lower Court in D 1 is in the words “ that generationof children and grandchildren can undisputedly possess the same . .. . and do whatever they please therewith ”. With this translationthe learned trial Judge does not appear to have been satisfied. Con-struing it himself, he says the deed provides that in the event of Marthinucontracting a marriage and having issue thereby, the land shall be pos-sessed without dispute by his children and grandchildren from generationto generation, and they may do whatever they please. Under thesecircumstances a translation of the clause was obtained from the SinhaleseInterpreter Mudaliyar of this Court, which I have set out above. It isagreed by counsel before us that the word there interpreted as “ descend-ants ” means “ grandchildren ”, but Mr. Amarasekera argues from theway the words are used there is to be implied the idea of grandchildrenand successive generations. Mr. Perera, on the other hand, argues thatthe deed mentions only the children of Marthinu and his grandchildren,the immediate descendants of the children. Under the circumstanceshere it seems to me to be immaterial which construction be adopted,for reading this clause as a whole, I am unable to find there anyintention to create a fidei commissum binding on any person other thanMarthinu.
The learned trial Judge has on his construction held that the donorintended to provide for a perpetual fidei commissum binding on Marthinu,his children, his grandchildren and their descendants. He points out
DALTON S.P.J.—Pate v. Perera.
that therp is no express restraint on alienation by the children and grand-children, but he adds that no express provision against alienation isnecessary, “ as in this case the intention to create a fidei commissum isclear". I regret I am unable to agree with the learned Judge. Thatthere is a clear intention expressed to create a fidei commissum binding onMarthinu I agree; he is in very definite terms restrained from alienatingthe land, and if he has children, it is to go to them. So far from thisrestraint being extended to his children, the donor expressly says they cando whatever they please with the land. They have in fact in this casedisposed of it, as the donor gave them power to do. It seems to me thelearned Judge, in construing the clause as expressing a wish or desirethat the property shall go down in the family from generation to gene-ration, has read into the words “ children and grandchildren ” or “ grand-children and their descendants ” more than is expressed in them, puttingupon them a construction which here they will not bear, and has alsofailed to consider the effect of the last words of the clause, which to mymind, clearly express his intention to place no restraint or limitation onMarthinu’s children in respect of their complete ownership of theproperty.^
The learned Judge would appear to have based his conclusion, as to theintention of the donor, on the use of the word “grandchildren” or“descendants”, following the Word “children”. He states that if itwas the intention of the donor to give an absolute title to Marthinu’schildren, there is no need for the mention of any subsequent generation.As Mr. Perera had pointed out, however, the fidei commissaries beinghere a class, they are only ascertainable at Marthinu’s death. If thenany of his children had died before him, and the donor had wished tobenefit the children of . such deceased children of Marthinu, he would doso, as has been done here, by adding to the class to be benefited thosegrandchildren, or on Mr. Amarasekera’s construction of the words, eventhe children of any deceased grandchildren. Could he have expressedthis intention in any more appropriate words than have been used here?I think not. I am unable to find in the words used in clause 3 or in anyother part of the deed any intention to keep the property in the familyfrom generation to generation. It is conceded that the subsequentclauses Nos. 6 and 4, which provide for the devolution of the property,in the event of the donor himself having children or in the event ofMarthinu dying without issue and the children of the donor’s sister thensucceeding, show no such intention at all, for in both cases those childrenwill take absolutely. The suggestion that the word “ they ” in the lastline of clause 3 applies to “grandchildren” or “descendants” and notto children was tentatively put forward in the argument before us, buthas very little to support it.
Of the cases cited to us, Mr. Amarasekera specially relies on Udalgamav. Madawela'. I had some doubt whether a fidei commissum such aswas contended was created there, but on the appeal neither side wasprepared to argue otherwise on that point. The language of the deed in
» 27 N. It. 27.
Weerasekere v. Peiris.
that case, however, described as a “deed of paraveni”, is to be distin-guished from that used in the deed before us, and the property is to beheld by the donees “ from generation to generation as Sahendu paraveniThe description of the deed as a deed of paraveni implies, I understand,that the land the subject of the deed had been long possessed by thedonor’s family, and the donees are to hold it as “Sahendu paraveni”from generation to generation. Whether the donees who took after thedeath of the donor's wife having regard to the language used, wereprohibited from disposing of the property as they wished was a questionthat was not argued, for it appears to have been conceded by counsel onboth sides that they were so prohibited.
A case somewhat similar to the one before us is Babahami and others v.Wickremesinha* The words used there after reference to the doneeswere “ unto them, their heirs and successors for ever The prohibitionagainst alienation, was, however, confined to the immediate donees.
The answer to the question for decision here should, in my opinion,be that Appolonia and Thecla obtained title to the property in questionof the death of Marthinu, and the deed D 1 created no fidei commissumbinding on them. Their rights having been disposed of, as set out above,it is not contested that appellant is entitled to draw the sum in Court.The appeal must be allowed, and the application of the appellant,opposed by the respondents, must therefore be allowed, with costs inboth Courts.
Drieberg J.—I agree.
PATE v. PERERAet al