H. N. G. FERNANDO, J.—Sudharman Silva v. Senahamy
1963 Present: H. N. G. Fernando, J., and T. S. Fernando, J.
T. SUDHARMAN SILVA and another, Appellants, and D. SENAHAMY
and 4 others, Respondents
8. C. 10011961—D. C. Negombo, 171 jL
Fideicommissa—Meaning and effect of Sinhala word “ bharakaraya ” in a deed of gift.
The words “unto the said donees and after their lifetime, their heirs executors. -administrators and their custodian or trustee” in a deed of gift are insufficient to• create a fideicornmissum. The Sinhala word bharakaraya in such context is theequivalent of “assigns”.
William Nonis v. Simeon Nonis (1960) 61 G. L W. 17 not followed.
Appeal from a judgment of the District Court, Negcmbo.
H. W. Jayewardene, Q.C., with L. G. Seneviratne, for the Defendants-Appellants.
S. G. E. Rodrigo, for the Plain tifFs-Respondents.
Cur. adv. vvZt.
October 30, 1963. H. N. G. FEbnando, J.—
It is common ground in this case that one Thamis Nona and her husbandAbaran became entitled to certain shares in land under deed No. 16450 of1896 (P3), and that those two persons together with others were by deedof Partition of 1904 (D2) allotted in respect of their rights lot ‘C’, whichis the subject of the present action. The Plaintiffs who are the childrenof Thamis Nona and Abaran claim that the deed P3 of 1896 created aFideicommissum and on this basis instituted this action to be declaredentitled to a 17/20 share of the land in dispute. The Defendants claimthat same share by virtue of a deed of 12th March 1904, by which ThamisNorfa and Abaran Silva purport to have conveyed the 17/20 share to thepredecessor in title of the Defendants. The claim that P3 created aFideicommissum has been decided by the learned District Judge in theaffirmative and in favour of the Plaintiffs.
The translation of the relevant clause of the deed P3 of 1896 is asfollows:—
“ Therefore, we the said Donors hereby gave full power unto the saidDonees Kalinga Thamis Nona and Dinayadura Abaran Silva to holdand possess subject to the aforesaid regulations the said undividedportion of land and all the rights title interest and privileges of usthe said Donors in and to the same, and after their lifetime their heirsexecutors administrators and assigns to hold and possess subject to theGovernment regulations the same uninterruptedly for ever or to dealwith the same as please.”
H. N. G-. i’BB2tANDO, J.—<SttMamum diivav. SanaAat}*#
It is unnecessary for me to refer to the numerous decisions of this Courtholding that language of this description, that is to say, “ Unto the saiddonees and after their lifetime, their heirs, executors, administrators,assigns is insqfScient to create a fideicommissum ; for those decisions arementioned in the recent judgment of Weerasooriya J. in Seneviraine v.Mendis 1. If those deoisions are to be followed the plaintiffs’ presentaction must clearly fail.
The learned District Judge, however, has provided his own translationof the Sinhalese original in which in lieu of the phrase “their herraexecutors administrators and assigns there occurs instead the phrase“their heirs executors administrators and their custodian or trustee”.In accepting this translation the learned Judge has followed the samecourse as did Basnayake C. J. in the of William Nonis v. Simon Nonis andothers 2 where the learned Chief Justice gave to the Sinhalese word“ (aodisiod ” the meaning “ Trustee, bailee, consignee, custodian, warden”.Weerasooriya J. in the recent judgment mentioned above, took the viewthat the judgment of Basnayake C.J. should not be followed and itmight be helpful for me to state my own reasons for concurring in thatview.
The same point as to the true meaning of the Sinhalese word “ coadsaad ”was considered in 1914 by De Sampayo J. in Silva v. Silva 3, where thelearned Judge made the following observations :—
“ There was some question raised at the argument of the appeal asto the correctness of the translation of the Sinhalese word bharakayaas meaning ‘ assign!. The Sinhalese word no doubt literally meanscustodian or person in charge, as the District Judge says, but in thepresent context I think it is intended to be the equivalent of ‘assign ’.I may say that notaries, in reproducing in Sinhalese the Englishconveyancing formula ‘heirs, executors, administrators, and assigns’,generally use the phrase ‘uxumakkara polnaakh athmistrasi bhara-karadin ’.”
Erom these observations, it is apparent:—
(o) that some fifty years ago a District Judge had held, and this Courtaccepted, the literal meaning of the Sinhala word to be“ custodian or person in charge ”;
that, nevertheless, de Sampayo, J., presumably acting upon know-
ledge and experience acquired professionally, pointed out thatnotaries used the word as an equivalent for the English word“ assigns ”, and
that this Court in the judgment recognized not the literal meaning
of the word, but rather the meaning attaching to it accordingto previous notarial practice.
1 (1962) 65 N. L. R. 169.* (1960) 61 O. L. W. 17.
«(1914) 18 N. L. R.174.
Lohu Banda v. The Assistant Commissioner of Agrarian Services, Kandy 401
Prior to the recent decision of my Lord the Chief Justice, there hasbeen no case in which this Court has disagreed with the observationsof de Sampayo J., and it is proper to presume on the contrary that thoseobservations have guided notaries and Judges in advising and decidingupon questions of title arising upon deeds in which the same Sinhala wordoccurs. Since a judgment of this Court pronouncing upon the construc-tion of particular language in a document has stood unquestioned for solong a period, there is no doubt that transactions must have taken place onthe faith of the correctness of the judgment. The acceptance at thepresent day of a different construction would result in the condemnationof titles long regarded as valid and settled. Moreover, the opinion ofde Sampayo J. related to a notarial practice which to his knowledge prevailedduring a period prior to 1914, and there is not, nor is there likely to be,available material on which we can now hold that the learned judge formedan incorrect opinion upon on what was for him a past or a contemporarypractice of notaries. It is significant also that the opinion was expressedwith full knowledge of the correct meaning of the Sinhala word.
For the reasons stated I would hold that the deed P3 did not create aFideicommissum. The appeal is allowed and the Plaintiffs3 action is dis-missed with costs in both Courts.
T. S. Febnattdo, J.—I agree.
Y. SUDHARMAN SILVA and another, Appellants, D. SENAHAMY and 4 others, Respondent