Sellifah Pillai it. Rupasinghe.
1934Present: Dalton and Akbar JJ.
SELLIAH PILLAI v. RUPASINGHE.
157—D. C. Colombo, 36,280.
Trust—Property devised to trustees under last will—To take charge of andimprove—Property to devolve on sons after the happening of certainevents—Sale by son before the event—Right of legatees to ask for title.
Where a person, by last will, appointed four of his sons as executors,to hold in trust all his moveable and immovable property, to take chargeof and improve the same, and out of the income to support the wife andminor children in the manner therein directed; and where, by clause 5,it was further provided as follows : “ that after my said two daughtersare given in marriage and my said son Charles Albert attained his age ofmajority, my said executors shall divide all the remaining property,movable and immovable, into five equal shares and each of such sharesshall devolve on the five sons ”,—
Held, that, after the events mentioned in clause 5 had taken place, theremaining property vested in the executors for the purpose of divi-sion among the five sons and that each of them became entitled to askthat a one-fifth share of the remaining estate be conveyed to him.
Held, further, that until the events had taken place none of the sons hadany beneficial interest in any part of the estate.
A PPEAL from a judgment of the District Judge of Colombo.
H. V. Perera (with him N. E. Weerasooria and D. W. Fernando), fordefendant, appellant.
A. E. Keuneman (with him Nadesan), for plaintiff, respondent.
Cur. adv. tntlt.
itatLTON J.—Selliah Pillai to. SLuvasinghe.
August 20, 1934. -.DaLton J.—
This appeal (No. '157) arises in a partition action relating to two landscalled Pelawatta and Kongahawatta and together also called by the lattername. For convenience I will refer to them by that latter name. Theplaintiff claims to be entitled to an undivided 1/5 share, allotting theremaining undivided 4/5 to the defendant, Edward Peter Rupesinghe.
A second appeal (No. 156) in the action D. C. Colombo, No. 36,279,between the same plaintiff and other defendants, relating to a land calledKetakellagahawatta, was before us to be heard at the same time, and thesame questions arising for decision in this second appeal, it was agreedthat the conclusions of the court in appeal No. 157 should be accepted asdeciding the appeal in No. 156 also. The defendants in D. C. Colombo.No. 36,279, are (1) Richard Jacob Rupesinghe, (2) Charles Albert Rupe-singhe, (3) Nancy Catherine Rupesinghe, and (4) Lloyd Daniels, a mort-gagee of the first defendant. In that action also plaintiff claimed to beentitled to an undivided 1/5 share of the land, the subject of the action.
The ground upon which plaintiff’s claim in D. C. Colombo, No. 36,280, toan undivided 1/5 share of Kongahawatta was based, was that this interestwhich he claimed was the 1/5 share of one Alfred Martin Rupesinghe.The plaint set out that one Simon Rupesinghe had been the owner of thewhole land. He died on December 11, 1919, leaving a last will which wasduly proved. It is pleaded that, amongst other provisions, by his will hedevised this property to his five sons, Richard Jacob, Alfred Martin, JohnWilliam, Charles Albert, and Edward Peter the defendant, in equal shares.This is repeated in the abstract of title attached to the plaint.
On April 9, 1927, Alfred Martin mortgaged a 1/5 share of the land, thesubject of this partition action, together with a similar share in otherproperties, by deed No. 348 of that date, to one Don Walter Walpola.The latter on October 6, 1927, put the bond in suit and obtained a decreethereon on November 25, 1927. At the sale held in execution of thedecree the 1/5 share was purchased by the plaintiff, and he obtained atransfer from the Court, dated December 21, 1928, for all the estate, right,title, and interest of Alfred Martin Rupesinghe in the said property.
The defendant pleads that at the time of the execution of the mortgagebond no part of, or share in, the land had vested in Alfred Martin personallyas an heir of his father or devisee under the will, and that by his deedplaintiff obtained no title to the share he claims. Defendant furtherpleaded that this 1/5 share had come to him, but his counsel before usstated it was very doubtful if defendant could maintain that part of hisplea in view of the provisions of section 50 of the Trusts Ordinance, 1917.He urged, however, that plaintiff could not succeed in his action andstated he would be satisfied if his action was dismissed.
The case turns upon the construction of the will of Simon Rupesinghe,about which there seems to have been a considerable amount of confusion.The will seems to be plain enough, so far as the question arising in thiscase is concerned. How the trustees were to carry out the trust withregard to the widow and invalid daughter, when the division of the estateprovided for in clause 5 of the will was to take place, is another matter.
DALTON J.—Selliah Pillai v. Rupasinghe.
Simon Rupesinghe died on December 11, 1919, leaving property worthRs. 70,000 (exhibit P 12), almost all immovable property. By his will(exhibit P 1 and probate P 2 produced by plaintiff) he appointed hisfour sons, Richard Jacob, Alfred Martin, John William, and Edward Peteras his executors. Clause 2 was as follows:—
" I, the said testator, will and desire that after my death the whole of myproperty both movable and immovable whatsoever and where-soever situate shall take charge of and be held by my saidexecutors in trust and improve the same, and out -of the income,rents, profits, and issues thereof they shall support and maintainmy wife and my minor children as hereinafter mentioned anddirected.”
The original will is in English, but the slight errors in expression in thisclause have given no difficulty; the words “ shall take charge of ” weredoubtless meant-to be “shall be taken charge of by”; “and improve”was meant to be “ to improve ” or “ and to improve
By clause 2 (a) the executors were directed to take care of the testator'swidow and provide her with necessaries during her life. By clause 2 (b)they were directed to take care of and maintain the two minor daughters,Jose Charlotte and Emelia Grace, and provide a sufficient dowry for eachat the time of their marriage out of the movable and immovable propertyof the estate. Claus 2 (c) directed them to provide for the maintenance,support, and keeping of Catherine, another daughter, who was an invalidand not expected to marry, during her lifetime, whilst by clause 2 (d) theywere directed to maintain, support, and educate the minor son, CharlesAlbert, out of the income of the estate until he attains the age ofmajority.
The testator further stated that he left nothing to his daughter, CeciliaMary, as he had otherwise provided for her on her marriage, but he left asmall cash legacy to a niece for services and assistance she had renderedto the family.
By clause 5 the testator then went on to provide as follows: —
“ It is my will and desire that after my said two daughters are given inmarriage as hereinbefore stated, and my said son Don CharlesAlbert Rupesinghe attained his age of majority, my said execu-tors shall divide all the remaining property, movable andimmovable, into five equal shares and each of such shares to bedevolved and taken by each of the said five sons, Richard JacobRupesinghe, Alfred Martin Rupesinghe, John William Rupe-singhe, Edward Peter Rupesinghe, and Don Charles AlbertRupesinghe, in shares and shares alike.”
Clause 6 directed that the executors should not sell, mortgage, or in anyother way alienate or encumber the landed property until they havedivided and taken their share as provided. This provision would ofcourse be subject to the direction to provide dowries for his daughters outof the movable and immovable property. There was some suggestion inthe course of the argument before us that the provisions of this clausewere of no force or effect, since, applying the law applicable to ftdei com-missa, there was here merely a bare prohibition without it being indicated
DALTON J.—Selliah PiUai v. Rupasinghe.
for whose benefit the prohibition was imposed in the clause. No otherground was advanced, however, to show that in the case of a trust, atrustee may not be bound by such conditions as have been imposed bythe testator in this clause, and I am not satisfied that there is anyfoundation for the suggestion made.
It is material to note that at the time of the making of the will, of thefour executors and trustees three were professional men and presumablymaking a living for themselves. Richard Jacob was a notary public,John William was a municipal inspector, and Alfred Martin was a proctor.The fourth executor, Edward Peter, the defendant in this case, is also aproctor and notary, but there is no evidence to show when he was admitted.This probably explains why the testator devised the whole estate to themas executors and trustees and gave them no interest in any other capacityuntil the happening of the events mentioned in clause 5, when the principalprovisions of the trust had been carried into effect, although they wereauthorized as trustees to spend the income on the improvement of theproperties.
The minor son, Charles Albert, is stated to have come of age in the year1920 or 1921. The daughter, Jose Charlotte, was married in 1924, and, itis conceded, obtained a dowry of immovable property as provided in thewill out of the estate. The dowry deed is not produced, but it is notsuggested it was not a conveyance by the four executors and trusteesunder the will. Emelia Grace was married on August 4, 1927, and sheand her future husband received a dowry consisting of immovable pro-perty from the four executors and trustees, the dowry deed being exhibitD 1 dated June 30, 1927. The deed recites that the marriage had beenarranged and was to take place shortly, but the deed was to take effectafter the solemnization of the marriage. The executors are sometimesdescribed in the deed as executors and at other times as donors, and theyconvey the whole of the property dealt with, and not only an undividedshare.
From these facts it will appear that the earliest date for the division,provided for in clause 5 of the will of the property then remaining belong-ing to the estate of the testator, was August 4, 1927. The executors wereresponsible, however, even after that date, for carrying out the terms .ofthe trust, so far as they were required to provide for the care and main-tenance of the widow and invalid daughter of the testator, who were stillliving at the time of the trial in the lower Court and are, so far as we areaware, alive to-day. The evidence does disclose some attempt amongstthe sons of the testator to arrive at a division of the-remaining propertyafter August 4, and the whole ~of the remaining property, with the excep-tion of some small shares, is stated to have been dealt with. The evidenceon this point is not, however, very satisfactory, for there never seems tohave been any statement drawn up setting out what movable and immov-able property actually remained at that date, nor do the four executorsseem fully to have understood either the conditions of the trust or theirposition under the will, in spite of the fact that at least two of them wereproctors.
On October 12, 1927, three of the executors, John William, AlfredMartin, and Edward Peter, after reciting the will of their father but not-
212DALTON J.—Selliah Pillai v. Rupasinghe.
always correctly, executed the deed D 2 in favour of Charles Albert andhis sister Catherine, -the invalid. Why Robert Jacob did not join is notstated. The deed sets out that the conditions set forth in the will havebeen fulfilled and performed. This probably refers to the happening ofthe events provided for in clause 5. The three transferors, callingthemselves donors, then state they are desirous of conveying a 3/5share in the immovable property, the subject of the deed, to CharlesAlbert and his sister. Of this 3/5 share, 2/10 is declared to be the share ofCharles Albert and 4/10 the share of Catherine. There is no definiteexplanation in the evidence as to why only 3/5 of the property in questionwas dealt with in this deed, but the explanation can, I think, be gatheredfrom the position that seems to have been taken up at any rate at onepoint of time by the executors, to be as follows. They seem to haveregarded themselves and the fifth son Charles Albert as being entitledafter August 4, 1927, each to a 1/5 share in his estate. They did notdeem any conveyance by the executors was necessary to give effect to thatposition. Since Richard Jacob did not join in the deed D 2, .his supposed1/5 share in this piece of property is not dealt with. Charles Alberthimself, on this supposition, was entitled to a 1/5 share under the will,hence it would not be necessary to convey it to him in the deed. Theinclusion of Catherine in the deed is not explained, for it is no part ofplaintiff’s case that she had any vested interest in the property under thewill. It is suggested to us, however, that the conveyance of a sharein this property to her is an attempt by the executors to carry outthe trust imposed on them in the will, so far as she is concerned, by givingher an interest in the land, whence she could be maintained duringher life.
A second transaction, which is also stated to be an attempt by theexecutors to give effect to the division they are said to have-made afterthe happening of the events referred to in clause 5 of the will, is the con-veyance to the present defendant, upon which he relies in this case. Bythe deed D 3 of January 12, 1928, three of the executors, namely, RichardJacob, John William, and Alfred Martin, and the other son Charles Albert,purported to convey 4/5 of the land Kongahawatta, the land in disputein this action, to Edward Peter. Charles Albert was not one of theexecutors, and hence it cannot be said he appeared in the deed in thatcapacity. It is noteworthy to observe in this connection that prior toAugust 4, 1927, the four executors, and they alone, had joined as trans-ferors in the deeds that had been executed. Clause 5 of the will statesthe division is to be by the executors. In the recital to D 3, however,after reference to the will, it is stated that the testator bequeathed anddevised all his property, movable and immovable, to the four transferorsto D 3 (called therein donors) and to Edward Peter, subject to the con-ditions set out in the will. Sometimes they seem to have taken up theposition that each of the five sons named had a vested interest under thewill on the death of the father, at other times they take up the positionthat this interest vested in them on the happening of the events mentionedin clause 5. Even in this action when giving evidence, Edward Peter, thedefendant, states that by this deed his four brothers conveyed to him theirinterests in the land, and being himself entitled to the remaining 1/5 share,
DALTON J.—Selliah Pillai v. Rupasinghe.
apparently under the will or by virtue of the provisions of clause 5, he wasentitled to the whole land. His claim to the whole is put upon that basis,although that position is not now maintained.
I will now turn to the transaction by Alfred Martin Hupesinghe, as aresult of which the plaintiff came to purchase the interest in the land whichhe now claims.
Alfred Martin was in financial difficulties, having borrowed money fromDon Walter Walpola, also a proctor of this court, in the sum of Rs. 7,000or Rs. 8,000. To secure this amount borrowed prior to the execution ofthe deed he mortgaged an undivided 1/5 share of Kongahawatta alongwith other lands on April 9, 1927. He consulted none of his brothers inrespect of this transaction; in fact he seems to have intentionally keptthem ignorant of it at the time, although they came to know of it later,after the action on the bond was filed by the mortgagee. His evidence is.not very straightforward. He tried to make out, for instance, that thedowry deed D 1 was for a 4/5 share in «the land dealt with, which wasuntrue. His explanation that he kept his brothers ignorant of his mort-gage was because ha had hoped to be able to pay it off. That certainlytends to show he had some idea that he had no right to mortgage anyproperty at all. That the five brothers were, however, under the impres-sion that the remaining estate vested in the five of them, each for anundivided 1/5, after the happening of the events provided for in clause 5,seems clear. These events had not, however, happened on April 9, 1927;hence probably the conduct of Alfred Martin in keeping his act from theothers. There is evidence also to show that the mortgagee was quallysecretive, although Edward Peter states that they had implicit confidencein him. Being himself a proctor in practice, he must of course haveexamined the alleged title of his mortgagor, and he was doubtless aware .of the terms of the will, but he was not called to give evidence, althoughhe was on the plaintiff’s list of witnesses.
It is also somewhat remarkable that the mortgage was executed justbefore the marriage of the second daughter, although the loans had beenmade at earlier dates. It is probable that in April, 1927, negotiations hadalready commenced for giving the remaining marriageable daughter,Rmelia Grace, in marriage. These negotiations, as a rule, take some littletime, and they were concluded by June when the dowry deed D 1 wasexecuted. The four executors seem to have at least appreciated theirposition at that date, for the four of them effected the conveyance asexecutors. The land was, however, one of those that had already beenmortgaged on April 9, so far as an undivided 1/5 share was concerned, byAlfred Martin. He states in his evidence that the dowry deed was subjectto the mortgage, although he admits it is not mentioned in the deed.There is, I think, no reason at all to doubt that the other exequtors wereat that time ignorant of the mortgage by their brother.
After the execution of the mortgage to Don Walter Walpola, withinsix months the latter instituted an action on the bond. The plaint wasfiled on October 6, 1927, and summons ordered for November 25. Onthat latter date summons was reported served, the mortgagor consentingto judgment as prayed for with costs, and decree was issued in terms ofthe plaint. Defendant stipulated in his consent that writ of execution
DALTON J.—Selliah PiUai v. Rupasinghe.
should not issue for two months from the date of judgment, and to thisth mortgagee agreed. On February 2, 1928, he applied for execution ofhis decree by the sale of the mortgaged properties, which was allowed,and the property was eventually sold on October 31, 1928, to the presentplaintiff. He obtained transfer from the secretary of the Court (exhibitP 14) dated December 21, 1928, for all the right, title, and interest of4&*2 Martin in the property sold. Upon the strength of that deedplaintiff claims in this action to be entitled to an undivided 1/5 share of theland he seeks to partition.
The plaintiff’s case, as stated in the judgment of the lower Court, is thatat the date of the mortgage, April 9, 1927, and fact at the date of thetestator’s death, each of the five sons of the deceased was entitled to anundivided 1/5 share of the estate, that interest having vested in eachof the five sons. The trial Judge seems to have accepted this constructionof the will, for he states that at the time of the mortgage in favour ofWalpola, Alfred Martin was “vested with the legal title as one of theexecutors, and he had a beneficial interest in one-fifth of the property asone of the sons, subject to the right of the executory to provide out of itthe dowry of Emily Grace ”. He does not, however, decide the questionof plaintiff’s rights on this basis, as it seems he might have done on hisview of the will, but he holds that the defendant is estopped from denyingAlfred Martin’s title. The reasons he gives for that conclusion are asfollows. After the marriages of Jose Charlotte and Emilia Grace three ofthe five sons, including Alfred Martin and Edward Peter, as donors by thedeed D 2 of October 12, 1927, and four of them as donors by the deed D 3of January 12, 1928, purported to convey their rights as devisees underthe will. As a result he holds that Alfred Martin and his donees underthe two deeds (in D. C. Colombo, No. 36,280, the donee is Edward Peter,the defendant) are estopped from denying Alfred Martin’s title at thedate of the mortgage. I understood that counsel for plaintiff on theappeal did not support this latter conclusion, although of course hesupported the judgment on other grounds.
I regret I am unable to agree with the trial Judge either upon hisconclusion upon the question of estoppel, or his construction of the will.
By the first clause the whole of the estate of the deceased vested in thefour executors, as trustees for the improvement of the property and tocarry out the terms of the will. The legal ownership vested in them, andthey were to hold it on the trusts set out. By clause 5 they were directed,on the happening of certain events, the last of which happened on August4, 1927, to divide all the remaining property, movable and immovable,into five equal parts, an equal share to be taken by each of the five sonsnamed. The vesting of a beneficial interest in the five sons is thereprovided for at a later date, and at that date they acquired the right ofcompelling, if pecessary, the trustees to carry out in their favour theconditions of the trust. One reason for this doubtless was that until thatdate arrived, it was impossible to know what property remained fordivision amongst the five sons. The will is not clear, in the event of thedivision taking place, how the trustees were still to carry out the trustwith regard to their widowed mother and invalid sister. This is a matteron which they might well have obtained the directions of the Court.
DALTON J.—Selliah PiUai v. Rupasinghe.
However that may be, even after the happening of the events mentionedin clause 5, and until the division did take place, the whole of the remainingestate v^as vested in the four trustees, who, subject to what I haVe saidabout the trust in favour of the widow and invalid daughter, held theremaining estate for the purpose of division amongst the five sons, andeach of them became entitled to ask that a 1/5 share of the remainingestate be conveyed to him. Until these events at any iffie had happened,it was impossible to say what property remained to be^divided; and as1 construfe the will, none of the sons had any beneficia^rBterest in anypart of the estate of their father.
In the result, then, Alfred Martin, except as executor and trustee, hadno interest at any time in the land now sought &^be partitioned, and hehad no interest in the land to mortgage. Even on the division of theestate amongst the five brothers of which he speaks, he makes it plain,1 think, that he obtained only cash and no interest in any immovableproperty. 'Reconveyance upon which plaintiff relies therefore conveyedno interest in this land to him, and therefore plaintiff has failed to establishhis title upon which his action is based.*
There was an alternative claim urged before us on behalf of the plaintiff,on the footing that since the grant of probate to the executors of thedeceased had not been registered, the estate must be dealt with as on anintestacy, in which event Alfred Martin's share to the estate would vestin him at the date of the death of his father.
This question was not raised in the lower Court, until at the end of thetrial, when counsel were addressing the Court, defendant's counsel forsome reason or other suggested that the probate had not been registered.One infers from the judgment that it was then argued on behalf of theplaintiff that if that suggestion was correct, an intestacy would result.There is, however, no evidence on the point. An extract of encumbrances(exhibit P 3) was produced for the purpose of showing that the mortgageof April 9, 1927, was registered. That extract does not show any regis-tration of probate, but it is not conclusive on the point, for it was notproduced for this purpose. There is further no evidence to show howmany children the deceased left, although he certainly left more than five,whilst plaintiff's claim, as made and fought in the lower Court, wasthat Alfred Martin obtained a 1/5 share under an alleged devise in hisfather's will, which 1/5 share he mortgaged to Walpola. There is noevidence before us to enable us to deal with this alternative claim, and1 do not see that plaintiff has made out any case to enable him to havean opportunity to call evidence on this point now, assuming thatit is available. There is nothing before us, however, to show it isavailable.
For these reasons the appeal must be allowed, and plaintiff’s actionmust be dismissed with costs in both Courts.
Akbab J.—I agree.
SELLIAH PILLAI v. RUPASINGHE