SOERTSZ A.C.J.—Upasakappu v. Dias.
Present: Soertsz A. C. J. and Keuneman J.
UPASAKAPPU v. DIAS et al.
290—D. C. Galle, 36,634
Jus accrescendi—Gift inter vivos to six persons—Single fidei commissum.
A deed of gift contained the following clause :—As I have adopted thelate Daniel James Dias from his infancy as a beloved child of mine, I dohereby gift of my free will and pleasure unto …. his sixchildren by his married wife …. to have and hold in equalrights (ekka hateeata) and to inherit by their descendants, children,grandchildren for ever according to law, enacting that the said (i.e.,Daniel’s wife) do live there during her life-time and that the said interestsshall not be mortgaged, alienated or transferred to any outsider.
Held, that the terms of the deed indicated an intention on the part ofthe donor to create one fidei commissum and that on the death of a childwithout issue his or her share accrued to the others.
^ PPEAL from a judgment of the District Judge of Galle.
H. V. Perera, K.C. (with him E. B. Wikramanay ake and H. A.
Chandrasena), for the second and third defendants, appellants.
N. Nadarajah, for the plaintiff, respondent.
Cur. adv. vult.
July 20, 1939. Soebtsz A.C.J.—
In the year 1877, Angenetta Tenekoon made a deed of gift in whichshe declared as follows:—“As I have adopted the late Daniel JamesDias …. from his infancy as a beloved child of mine, I do herebygift of my free will and pleasure unto the girl called Alice, the boy calledRichard, the boy called Stewart, the girl called Ellen, the boy calledArthur, the boy called Victor, his six children by his married wife ….to have and to hold in equal rights (ekka hateeata) and toinherit by their descendants, children, and grandchildren (ohoongengpevataenne Dharoo munupuroo aahdeenta) for ever according to law,
SOERTSZ A.C.J.—Upasakappu v. Dias.
enacting that the said ….(i.e., Daniel’s wife) do live there
during her life time, and that the said interests shall not be mortgaged,alienated or transferred to any outsider.” It is not disputed that thisdeed created a fidei commissum inter vivos. The only question is whetherfour of the six childern having died without marriage or issue, and theirrights having accrued to the surviving children, Ellen and Stewart, aconveyance by Ellen who died childless, to the plaintiff her husbandwas a conveyance that passed title to him that endured to him after herdeath, or whether on her death, Stewart, who survived her, succeededto her interests and passed them to his childern the second and thirddefendants, when he himself died a short time after Ellen. The answerto that question depends on whether the deed of gift created six differentfidei commissi, or only one, for in the former case, there being no childrenbom to Ellen, her share was unaffected by any substitution, while in thelatter case, on her death, her share passed to the other donees and theirchildren, grandchildren, &c., in whose favour there was substitution.
In the case of Tillekeratne v. Abeyesekere ', the Privy Council examineda testamentary bequest couched in similar terms and Lord Watson whodelivered the opinion of the Council said “ the conflicting claims dependnot upon any disputed principle of the Roman-Dutch law (he wasreferring to the jus accrescendi), but upon the construction of that partof the will which regulates the destination ” of the property. “ If thewill constitutes three fidei commissa ”, one result will follow; if “ on theother hand, the entire moiety was the subject of one fidei commissum ”.the result would be different. Their Lordships came to the conclusionthat the case before them was the case of one single fidei commissumbecause “ the bequest is not in the form of a disposition of one-thirdshare of the whole to each of the institutes, but of a gift of the whole to thethree institutes jointly with benefit of survivorship, and with substitutionof their descendants.”
When this question again arose in our Courts twenty years later inconnection with a fidei commissum created by a deed inter vivos, BertramC.J. declared that he reserved his opinion “ whether so far as relates tothe jus accrescendi—that is how he expressed himself—there is anysubstantial difference between testamentary fidei commissa and fideicommissa constituted by instrument inter vivos ”, and Shaw J. who satwith him said “In Carry v. Carry – and Ayamperumal v. Meeyan’ thisCourt held the jus accrescendi to apply in cases of fidei commissa consti-tuted by gifts inter vivos on the ground that the language used by thedonor showed an intention to that effect. I was a party to the latterdecision and expressed a doubt whether a similar rule of constructionapplied in the case of a donation inter vivos as applied in the case of a will,but I did not, and do not now, doubt that a right of accrual may exist Ineither case, when the language of the donor or testator expresses such anintention ”. I should prefer not to express myself quite in that manner. Itis not really a question of the jus accrescendi applying in these cases, but asimilar result being achieved by an express declaration on the part of the
:i t c. ir. R. 1* ’.
* 2 N. L. R. sir,.
-40. W. R. 50.
SOERTSZ A.C.J.—Upasakappu v. Dias.
testator or donor, or by an intention clearly to be inferred, that he desiredthe property to devolve in that manner. The jus accrescendi was a ruleof the Roman law by which among co-heirs in testamentary succession oramong co-legatees there is a right of accretion, so that if one of themcannot or will not take his portion, it falls to other heirs to the exclusionof heirs at law. This rule was evolved in deference to the Roman horror ofdying partly testate and partly intestate, but the Roman-Dutch lawadopted that rule to the extent of saying that in no case had it automaticoperation, but that it would be accepted or rejected as would best giveeffect to the testator’s intention. The point, however, is that iri that caseBertram C.J. and Shaw J. inclined to the view that either a testator ora donor could provide for such a result.
Finally in the case of Carlinahamy v. Juanisthe majority of aDivisional Bench held that the principle enunciated in Tillekeratne v.Abeyesekere (supra) was not confined to testamentary fidei commissa butapplied equally to fidei commisa created by a deed inter vivos. Bertram C. J.added that “ it is undoubtedly the case that a stricter rule of constructionapplies to instruments inter vivos than to will’ ”. He applied thatrule to the deed before him and came to the conclusion that althoughthe instrument was a deed of gift the intention of the donor was clearlyto bring it within the scope of the principle of Tillekeratne v. Abeyesekereand that there was accretion. Garvin J. agreed with him. The materialparts of the deed in that case were as follows. “ Whereas we do deemit fit and proper to set apart something separate unto our six childrenfor their welfare and advancement, we have gifted unto our six children
We shall have the right to possess the above property and do
our pleasure therewith, and after the death of us both, our aforesaid sixchildren shall be at liberty to own in equal shares, and possess peaceablyfor ever throughout their generations the property, and the six childrenand their heirs may by leasing out possess the property and not sell,mortgage, &c.
In my view, the terms of the deed of gift in the case before us indicatemore strongly the intention of the donor to create one fidei commissumby which the property was to devolve on the donees and their children,grandchildren, &c., so long as there were any such in existence. It isquite a different matter that a local law stands in the way and curtailsthe line of such a devolution. Just as in the Divisional Bench case,so in this case, it was contended that the words by which the propertywas given “ in equal shares ” negatived an intention on the part of thedonor to create one fidei commissum. That contention was rejected inthe earlier case and I have no less hesitation in rejecting it in this.Indeed, in my view it can be urged with great force in this case that thewords ekka hateeata are more consistent with an intention to create onefidei commissum than the words ekkakara in Tillekeratne v. Silva3 andekkakara kotos wasseng, in Carlinahamy v. Juanis (supra).
We were also pressed to hold that the fact that the deed allowed amortgage, alienation or transfer to one who was not an outsider indicatedby necessary implication, a contemplation by the donor of the possibility* 26 N. L. R. 129.2 10 N. h. R. 214.
SOERTSZ "A.C.J.—Upasakappu v. Dias.
of the property passing out of the family, for the result, it was said, of amortgage to one within the family, might well be that an outsiderpurchased the property at an execution sale. But, in my opinion,the answer to that is the answer suggested by Mr. H. V. Perera duringthe argument, that at such an execution sale nothing more than theinterest of the mortgaging donee could pass to the purchasing outsider,namely, his life interest, and that on his death, if he died without issue,his share would accrue to the surviving donees and their children, &c.In other words, that the permission given to the donees to deal with theproperty in certain circumstances, operated only within the scope of theprohibition and could not transcend it. The result is that, in my viewthe rules in Tillekeratne v. Abeyesekere (Supra) and Carlinahamy v. Juanis(supra) apply in this case, and that, therefore, nothing passed to theplaintiff or to the first defendant.
i I set aside the judgment of the District Judge and dismiss theplaintiff’s action with costs in both Courts.
Keuneman J.-—I agree.
UPASAKAPPU v. DIAS et al