DE KRETSER J.—Sheriff v. Pathumuttu.
Present: Soertsz A.C.J. and de Kretser J.
SHERIFF v. PATHUMUTTU et al.
11—D. C. (Inty.) Colombo, 2,810
Deed—Conveyance of land to mosque—Reservation of share of usufruct todonor and his descendants—Prohibition against alienation—Effect ofdeed—Lease by heirs.
Where a person granted a one-fourth share of certain premisestogether with the buildings to the officiating priests and their successorsof a mosque as a place of worship for Muhammadans subject to thefollowing conditions : —
“ I, during my lifetime, and, after my death, my descendants, duringtheir respective lives, shall have the right (which is hereby speciallyreserved to me and to them; freely to enter upon the said premisesand to enjoy* my three-fourths of the rents and income of all the buildingsnow constructed and hereafter may be constructed thereon (exceptingthe said mosque) and three-fourths shares of the fruits and produce ofthe trees growing and such three-fourths of the rent, income and produceor any part thereof shall not be mortgaged or sold by my descendantsor any of them nor shall the same be liable to be seized or sold inexecution for any debt or debts of my descendants ; the other one-fourthshare of the rent, income and produce to be taken and appropriated forthe benefit and upkeep of the Mosque
Held, that the deed conveyed a bare dominium of the land to thetrustees of the mosque with a right of usufruct to a one-fourth share.
Held, further, that as there was no grant to the children or anacceptance of the gift by them they would inherit as on an intestacyand a lease by them would be binding on their heirs.
^ PPEAL from a judgment of the District Judge of Colombo.
V. Perera, K.C. (with him Peter de Silva and J. A. L. Cooray), forfourteenth defendant, appellant.
E. B. Wikremanayake (with him S. J. V. Chelvanayagam), for sixteenthand eighteenth to twenty-fourth defendants, respondents.
M. I. M. Haniffa, for thirty-fourth defendant, respondent.
Cur. adv. vult.
May 18, 1939. de Kretser J.—
The decision of this case depends on the interpretation of the deed 6 D2.By that deed one Mohideen Lebbe Omeru Lebbe purported to convey anundivided one-fourth of certain premises. He says, “ whereas I amdesirous of granting the said one-fourth part of the premises so dividedand separated as aforesaid together with the buildings -thereon known as“ Moheyedeen Mosque ” and other appurtenances thereunto belongingsubject to the conditions hereinafter contained for the use of my co-religionists as a place of worship ”.
This preamble is important, for it indicates the motive and the objectof the conveyance.
The grantor then proceeds to convey the property to the officiatingpriest and his successors in office and to the trustee or trustees for the time
DE KKETSER J.—‘Sheriff v. Pathumuttu.
being upon trust “ for the special use of the Muhammadans as a place ofworship Then come the conditions expressed as follows: —
“ Subject to the following conditions that is to say that I during mylifetime and after my death my descendants during their respectivelives shall have the right (which is hereby specially reserved to me andto them) freely to enter upon the said premises and to enjoy my three-fourths of the rents and income of all the buildings now constructedand hereafter may be constructed thereon (excepting the said mosque)and three-fourth shares of the fruits and produce of the trees growing>and to be grown on the said premises and such three-fourth shares ofthe rents, income and produce of the said buildings and trees or anypart thereof shall not be mortgaged or sold by .my descendants or anyof them nor the same shall be liable to be seized or sold in executionfor any debt or debts of any of my descendants; the other one-fourthshare of the rents, income and produce of the said buildings and treesto be taken, appropriated and used for the benefit and upkeep of thesaid mosque
Omeru Lebbe died leaving seven sons and daughters, and two of thesons leased their rights to the appellants. Thereafter a portion of theland was acquired by the Crown after the two sons had died, and thequestion now is whether the lessees are entitled to any compensation.The learned District Judge held they were not, going on the footing thatthe interests of the sons were limited to their lives, and that therefore therights of the lessees ended with the deaths of the lessors.
For the appellants it has been contended that the deed 6 D2 purportedto create a trust, and that its terms offended the rule against perpetuitiesand were therefore void, with the result that the lessors had absoluterights and not rights limited to their lives. Section 110 of our TrustsOrdinance, No. 9 of 1917, claims to embody the rule against perpetuities,and it is this section that must apply, if at all. But before proceeding toconsider this question, one must see whether it has any application,. andin the first place the terms of the deed must be construed.
Now, what did Omeru Lebbe intend to. do and what did he do? Thedeed sets out his object clearly, and that was to endow the mosque;there is no indication that he had intended by that very document tomake provision for his descendants.
He created a trust with regard to the mosque. In describing theextent of his endowment he used an abundance of language where simplerand more concise language would have sufficed, and in fact it is thisvery abundance of language which has created the difficulty of this case.
Clearly what the mosque was to get and did get was the bare dominiumof the land itself and one-fourth of the usufruct.
But the conveyancer used a cumbersome form in which to say this.He transferred the whole corpus subject to conditions and the conditionswere that Omeru Lebbe and his descendants were to have the right toen'er the land and to take three-fourths of the income derived from thebuildings and trees.
The point I wish to emphasize is that the grant is to the mosque: thereis no grant to any one else. In fact the grantor makes this clearer when
DE KRETSER J.—Sheriff v. Pathumuttu.
he says that he reserves a right to himself and his descendants. Healmost says that he reserves the right to construct buildings and planttrees on the premises. It would not be possible to urge a further trustif the alleged prohibition against alienation had not come in,—and thewords may have been not a prohibition imposed on himself and hisdescendants, but a promise to the mosque that he would take steps tosee that none but he and his family came upon the premises. While,therefore, he expressed an intention to safeguard the interests of themosque or prohibit alienation, there is nothing to indicate that he carriedout this intention.
In this deed he refers to a transfer made by himself of the other three-fourths of the land, and he states that this also was subject to certainreservations. In that case it was a reservation. The indications arethat he did exactly the same thing here. I do not think one can read atrust into these terms : something much clearer is needed.
In this view of the matter certain rights devolved at his death on hissons, the lessors, and the lease by them would ordinarily be binding ontheir heirs.,
Mr. Wikremanayake argued that the rights reserved were personal tohimself and to his descendants. Something may be said for this pointof view, but there was no grant to Omeru Lebbe’s children nor anyacceptance of the gift by them. They therefore inherited as on anintestacy.
In the result the appellant succeeds. The case must go back for hisclaim to be investigated. It may be noted that Counsel for the appellantstated that he made no claim on account of repairs.
The appellant is entitled to costs in both Courts.
Soertsz A.C.J.—I agree.
SHERIFF v. PATHUMUTTU et al