Sri Lanka Lav.' Reports
[I984] j SriL.fi.
FERNANDO AND ANOTHER
SHARVANANDA. J.. WIMALARAI N£. J.. AND ABDUL CADER. J.
S C No. 18/82.- C.A. No. 551/73 (F) – D.C. COLOMBO No. 13153 (L).
OCTOBER 12. 1983 AND FEBRUARY 24. 1984.
Fideicommissum conditionale – Prohibition of alienation by act inter vivos such as sale,donation, mortgage or tease – Does such prohibition extend to alienation by Last Will >
The plaintiff sought to vindicate title to the lands described in Schedules 1 to 10 of theplaint and to have the defendants evicted therefrom. She traced title to one CornellsFernando who by his Last Will PI dated 21.6.1948 and Codicil P2 admitted to probatein D.C. Kalutara 3435/T had devised the lands in Schedules 1 to 6 and 8 to 10 to hisson Lambert Cornis Fernando subject to the conditions that he shall not sell.' donate,mortgage or lease for a period exceeding five years at a time or in any other wayalienate the same till the 31st day of December. 1970. Cornells Fernando by deed ofGift No. 3341 of 24;h October, 194 7 (P3) gifted the land described in schedule 7 alsoto his son Lambert Cornis Fernando subject to the condition that the donee shall not onany date prior to 31st December. 1968 sell, mortgage, donate, or lease for a periodexceeding live years at any time or otherwise alienate the said premises. In the event ofthe conditions m the Will and donation being disobeyed the premises were to pass overto the children of Cornis Fernando.
Cornis Fernando died on 27.4.1968 himself leaving Last Will No. 380 dated 21st April.1968 (P4) by which he devised ihe said lands to the plaintiff. This Las; Will was thesubject-matter of testamentary proceedings where the two defendants claimed that thesaid lands were subject to a fide! commissum created by Last Will PI and deed of giftP3 and that Cornis Fernando had no disposal interest in these lands. The plaintiff theninstituted the present action in the District Court.
The District Judge held that Cornis Fernando was entitled and competent to bequeaththe said lands by Last Will P4. In appeal ihe Court held that alienation by Last Wili wascovered by the prohibitions imposed in Last Will Pi and donation P3 and that the LastWill P4 v/as a contravention of them.
By ihe documents PI and P3 Lambert Cornis Fernando was prohibited from alienatingthe properties for a limited period to anybody whether within or without the family. Theprohibition created a "fideicommissum conditionale.” that is a fideicommissumconditioned to come into existence on .the breach of the prohibition. A prohibitionagainst ahenauon must be strictly interpreted and ought not to extend to modes ofalienation other than those expressly mentioned. The phrase "in any other way alienate"m Pi or "otherwise alienate" in P3 does not cover alienation by Last Will because it isonly when alienation of a thing outside the family is forbidden in general terms that atestamentary disposition is also included in such a prohibition. Alienation outside thefamily is not prohibited by PI and P3 and therefore must be limned to alienation by actmie: vivos.
A will is ambulatory during the lifetime of the testator and coos not operate as adisposing or putting away of any estate until after ihe death oi me person making it. Itrequires the death of the testator for its consummation. The Last Will P4 does notconstitute a breach of the prohibition on alienation and therefore ihe plaintiff is entitledto be declared owner of the properties m suit.
Pedris v. Fernando (Sharvananda. J.)
Cases referred to :
Kanayson v. Rasia'n, (1967) 69 N.L.R. 553 (P.C.).
Doe Stevenson v. Glover. (1845) 14 L.J.C.P. IN.S) 169 : 1 C.B. 448 : 135 E.R.615.
Executor of Last Will of Rambukwella Siddhartha v. Sumona Thero, (1943) 44N.L.R. 365.
Ex parte Van Eeden. (1905) T.S. 151. 153 (Transvaal Law Reports – SupremeCourt)
APPEAL from a judgment of the Court of Appeal.
H. L. de Silva. P.C. with Hthikar Hassim for plaintiff-appeallant.
K. N. Choksy. P.C. with L. C. Seneviratne. H. Soza and Miss. I. R. Rajepakse for thedefendant-respondents.
Cur. adv. vult.
May 17. 1984SHARVANANDA, J.
The plaintiff filed this action for a declaration of title to andejectment of the defendants from the lands described in the schedules1-10 in the plaint. The plaintiff pleaded that one Cornelis Fernandowas entitled to the said lands and that he by his Last Will P 1 dated21.6.1948 and Codicil P 2, which were admitted to probate in D.C.Kaiutara 3435/T. had devised the said lands described in theschedules 1 -6 & 8-10 to his son Lambert Cornis Fernando, subject tothe terms and conditions set out in the said Last Will P 1. The saidCornelis Fernando by deed No. 3341 of 24th October. 1947 (P 3)donated the lands described in schedule 7 of the plaint to the saidLambert Cornis Fernando, subject to the terms and conditions set out•in the said deed. The said Lambert Cornis Fernando who thus becameentitled to the said lands described in schedules 1-10 of the plaint,subject to the terms and conditions set out in P 1 and P 3 died on27th April, 1968, leaving his Last Will No. 380 dated 21st April,1968 (P 4) by which he devised and bequeathed the said lands to theplaintiff.
The said Last Will P 4 was the subject matter in testamentaryproceedings in case No. 24126. D.C.. Colombo. In the said action the1st and 2nd defendants claimed that the said lands were subject tothe fidei commissum created by the Last Will P 1 and deed of gift P 3in favour of the first defendant and that the said Lambert CornisFernando had no disposable interest in the said properties to conveyto the plaintiff, and that the lands had vested on the 1st defendant.Tne plaintiff denied that the said Last Will P 1 and the deed of gift P3created a fidei commissum in favour of the 1 st defendant and pleadedthat the said Lambert Cornis Fernando was legally entitled to andcomp;: unt to devise and bequeath the said properties to the plaintiff.
Sri Lanka Law Reports
(1984) 1 SriL.R.
The plaintiff has instituted the present action for a declaration of titleand ejectment of the defendants from the properties described in iheschedules 1-10 of the plaint on the basis that the said Lambert CornisFernando was legally entitled to and competent to devise andbequeath the same to the plaintiff by his Last Will (P 4). Thedefendants have in their answer disputed the claim of the plaintiff andhave pleaded that under and by virtue of the instruments P 1. P 2 &P 3 ihe said properties were subject to a fidei commissum in favour ofihe 1 st defendant and had devolved on the 1 st defendant on ihedeath of the said Lambert Cornis Fernando, and that the said CornisFernando could not in law have devised and bequeathed the saidproperties to the plaintiff.
The contention of the parties revolve round the question whetherthe said Lambert Cornis Fernando was legally entitled and competentin law to make, bequeath and devise by his Lasi Will (P 4} the saidproperties to ihe plaintiff, in view of the conditions and prohibitionscontained in P 1 and P 3.
The conditions contained in P 1 & P 3 read as follows :
"P 1" I devise and donate unto my beloved son Lambert Cornis thefollowing properties subject to the conditions that he shall not.sell, donate, mortgage or lease Tor a period exceeding fiveyears at a time or in any other way alienate ihe same till the31st day of December, 1970, but shall possess the sameduring the said' period and in the event of his contravening orviolating the aforesaid condition the same shall pass to hischildren as if there was no such sale or alienation. That after the31st day of December, 1970, he shall be able to do whateverhe likes with the said properties as if no such condition orprohibition existed,"
"P 3" That the said donee shall not on any date prior to 31stDecember,. 1968, sell, mortgage, donate, lease for a periodexceeding five years at any time or otherwise alienaie the saidpremises but shall possess the same till the aforesaid date.
In the event of the said Donee in disobedience to the conditionmentioned above were to sell, mortgage, donate, lease orotherwise alienate on any daie prior to 31st December, 1968.the said premises shall not pass to the person or persons inwhose favour such transfer, encumbrances or other alienationshall have been made but shall pass over to ihe lawful children
Pedris v. Fernando (Shan/ananda. J.j
of the said donee in equal shares if there be any and on failureof such children the same shall pass over to my remaining. v children and their descendants in equal shares.
The said Donee shall have full power and authority from and after1st January. 1969. to deal with the said premises as if therewere no such restrictions and prohibitions against alienationwhatsoever."
After trial the District Judge gave judgment for the plaintiff on theground that the prohibitions contained in P 1 and P 3 could not beconstrued to prohibit an alienation by Last Will and that hence LambertCornis Fernando was entitled and competent to bequeath by ..the LastWill (P 4) the properties referred to in the schedules to the plaintiffwho is his sister and that he had not by executing the Last Will (P 4)committed any breach of the conditions imposed by the documentsP 1 and P 3.
On appeal by the defendants the Court of Appeal disagreed with theview ol the District Judge and held that Lambert Cornis Fernando wasnot competent to deal with the properties by his Last Will (P 4) andthat the alienation by Last Will (P 4) contravened the conditions setout in P 1 and P 3 and that such contravention operated to vest thetitle to the properties in question on the 1 st defendant who was theonly child of Lambert Cornis Fernando, the fiduciary on P 1 and P 3.The Court of Appeal therefore set aside the judgment of the DistrictJudge and dismissed the plaintiff's action with costs in both courts.From the said judgment of the Court of Appeal the plaintiff-appellanthas preferred this appeal to this court.
The decision of the appeal turns on the answer to the questionwhether alienation by Last Will within the period specified in the LastWill (P 1) and deed of gift (P 3) constituted a breach of the prohibitionprescribed therein.
Counsel for defendant-respondents submitted that the terms in P 1which provide that Lambert Cornis Fernando, the devisee, shall notsell, donate, mortgage or lease for a period exceeding five years at atime or m any other way alienate the same till 31.12.70. but shallpossess the same, during the said period ; and the terms in P 3 whichprovide "that the said Lambert Cornis Fernando the donee shall notprior to 31.12.68. sell, .mortgage, donate, or lease for a periodexceeding five years at any time or otherwise alienate the saidpremises but shall oossess the same till the aforesaid date." prohibit all■ alienation, including alienation by Last Will till the expiry of the
Sri Lanka Law Reports
1198£] 1 SriL.R.
dates mentioned in P 1 and P 3 and that hence Cornis Fernando whodied on 27th April, 1968, could not have validly bequeathed the saidproperties to the plaintiff by his Last Will dated 21.4.68, prior to thedates referred to in P 1 & P 3. He contended that the Last Will P 4took effect within the prohibited period mentioned in P 1 and P 3 andhence contravened the conditions set out in P 1 and P 3 and that suchcontravention operated in terms of P 1 and P 3, to vest the title to theproperties on the 1st defendant-respondent, the only child of the saidLambert Cornis Fernando, and that the testator on P 4 had nodisposable interest in the properties to convey to theplaintiff-appeallant and that the latter had no title to the saidproperties
It was submitted on the other hand by Counsel for theplaintiff-appellant that the alienation that was prohibited by P 1 & P 3was alienation by act inter vivos, such as sale, donation, mortgage orlease and did not extend to alienation by Last Will. The intention ofCornis Fernando, testator of P 1 and donor on P 3 was that his sonLambert Cornis Fernando should possess the properties withoutalienating them prior to the dates mentioned in P 1 & P 3 and that bythe execution of his Last Will (P 4). Lambert Cornis Fernando did nothimself alienate the properties. His contention was that the bequest byLambert Cornis Fernando was not alienation by an act inter vivos.
The ultimate question is whether the restrictions set out in P 1 andP 3 are wide enough to imply a prohibition against alienation by LastWill. Since there is no such express prohibition, having regard to thelanguage of P 1 and P 3 does the phrase "in any other way alienate" inP 1 or "otherwise alienate" in P 3 catch up the execution of a Last Willwhich comes into effect within the prohibited period set out in P 1 andP 3.
A fidei commissum being essentially the divesting to some extent ofan absolute gift, so as to cut down that absolute gift is regarded withdisfavour by the court. It is a fundamental principle that where there isdoubt whether a fidei commissum has been created, that constructionshould be approved which will pass the properties unburdened. Whenmaking a testamentary disposition a testator is presumed to place asfew burdens as possible upon the affected property, if he institutes anheir he is presumed to have intended the heir to be dominus of all theproperty acquired with the full and unrestricted right of alienating andbequeathing the same and where he makes a bequest it will requireclear words, not equivocal language to diminish the legatee's interest.
Pedris v. Fernando (Sharvananda. J.)
In keeping with this principle a prohibition against alienation must bestrictly interpreted and ought not to extend to modes of alienationother than those expressly mentioned by the testator or donor (Voet36 : 1 : 27). A prohibition against any alienation by act inter vivosmust not be intended to include a testamentary disposition.(McGregor's Voet : page 68) A prohibition must be interpreted toimpose the least possible restraint consistent with the testator'sintention and the-construction is favoured whereunder the burdenedlegatee is left with the free and unfettered possession of the bequestwhich he acquired from the testator or donor.
By the documents PI and P3 though Lambert Cofnis Fernando hadbecome the owner of the properties in question he was prohibited fora limited period from alienating them to anybody, whether within orwithout his family. The prohibition created what is termed "fideicommissum conditionale". That is to say a- fidei commissumconditioned or to come into existence on a breach of the prohibition.
Sande who is the accepted authority on the subject of "Restraintsupon alienation." in Chapter I of his treatise defines "alienation" to be"any course of dealing by which dominium is transferred". Hecatalogues the various species of alienation covered by the term.According to him the following transactions come under the head of'Prohibited Alienation' – 1 11
Barter or Exchange,
A datio in solutum (the immovable property of minors cannotbe so bestowed without an order of court),
The Settlement of a law Suit,
Repudiation, of immovable property, acquired as a legacy, or inany other way by a pupil.
A creation of a servitude.
Granting of a Usufruct,
11.Granting an Emphyteusis (leasing).
Finally under the term-"Prohibited alienation" comes every
course of action from which alienation can follow
When alienation is prohibited, therefore, pledging or anagreement of hypothecation is also prohibited."
Sri Lanka Law Reports
 1 Sri L.R.
Sande enumerates thus twelve ways in which breach of a prohibitedalienation can take place. (Sande 1:3:16- 49). It is significant thatin this exhaustive enumeration of the different kinds of alienation hedoes not include or mention alienation by Last Will. According to theordinary acceptation of the.term “alienation." only transfers by actinter vivos appear to be embraced in that concept.
In Part 3. Chapter 3 of his book Sande. dealing with "When is a thingconsidered to be done in breach of a prohibition and what is includedunder the term prohibition?" states the rules of construction : "Inorder to decide whether anything has been done contrary to aprohibition against alienation, the chief point we should consider iswhether the testator has prohibited only a special kind of alienation orhas prohibited alienation in general. As if only some special form ofalienation has been prohibited the kinds of alienation with theexception of that one special form are allowed. For, he who forbidsonly one thing out of many is considered to countenance theremaining things" (3:3:1).
"Therefore a prohibition to sell does not prohibit the making of adonation, unless a sale is mentioned only as an example of the class ofalienation which is prohibited" (3 : 3 :2 — 3).
"Moreover, when a sale, donation and a pledge are prohibited,alienation by Last Will is considered to be permitted" (3:3: 6).
"Words used as a recommendation are inoperative and do notextend the provisions, nor do they give rise to any right; unless thewords are used to express the moiive, or final reason ; as if thetestator, after he has said 'I forbid the properties to be sold' adds ashis motive and reason; 'Because I desire it to be kept in my family'. Inthis case the said property is considered to be prohibited from beingtransferred to a stranger by Last Will, because the expression of themotive explains and widens the provision" (3:3:7 — 8).
"But if the general term 'alienation' is placed in the midst of specialterms – for instance, if it is said, "I prohibit a sale, a donation, analienation or pledge" – then the general .term .'alienation' is limited bythe special terms by reason of the alternative article "or". If howeverthe general term 'alienation!, is placed-. last- for instance, if thetestator has said. "I prohibit my property to be sold, donated, pledged,alienated" – then the generic term being placed last, includes everyclass of alienation." (3:3:9- 10).
CAHulangamuwa v. Principal, Visakha Vidyalaya (Siva Selliah, J.)'281
to the school etc. as set out in A3 and being satisfied with thegenuineness of the residence of the applicants was by any standards amost exacting and formidable one and that in this anxious scramble fora meagre available number of 70 vacancies by 725 applicants muchfrustration and discontent would be caused in the minds ofunsuccessful paren;s, for. to every parent the admission of his child toone of the best schools is a matter that concerns him very dearly. Thisproblem is compounded by the Principal and Admission Committeehaving to be satisfied with genuineness of the residence of personswho occupied annexes for 18 months prior to the making of theapplication and that they were not mere ad hoc residences for thepurpose of conforming to the proximity of residence qualification setout in A3. The petitioner being outside the category of chiefhouseholder had to reside within 18 chains of the school-(vide para II(j) of the 1st respondent's affidavit) whereas the petitioner in factresided a distance of-22 chains away from the school-(vide his owndeclaration in the application form 1R1. cage 9). Thus initially hisapplication did not have the requisite residence qualification ofproximity to the school. This court will not lightly interfere with the- administration of the Principal of the school and with the determinationof the Admission Committee and Appellate Board unless for verycompelling reason as to do so will disorganize the scheme ofadmission and will be detrimental to the proper administration of theschool. Indeed S. A. de Smith in his treatise on Judicial Review ofAdministrative Action, 4th edition ai p. 163 has stated that—
"The allocation of government contracts and university placesmay cause much hardship to the unsuccessful contender, but it hasnot yet been held in this country that they have any common lawright to go to the courts on the ground that their applications havebeen summarily rejected, even if the rejection has been based on anadverse undisclosed report".
In the instant case the petitioner has been given a hearing and thedocuments produced by him have been considered before hisapplication has been refused. I am of the view that in the context ofthe scramble for admission to 70 vacancies in the Kindergarten ofVisakha Vidyalaya by 725 applicants, a person cannot insist as of rightthat his child must be admitted to that particular school of his choice,however anxious or desirous he may be. Indeed section 8 of theCircular A3 stipulates that the C.E.O. should take action to find placesfor all rejected cases by 30th November and expressly ensures that
Sri Lanka Law Reports
(1986) 1 SriL.R.
every effori will be made to see that every child will be found someschool and not left "languishing at home" as alleged by the petitioner.Manifestly the petitioner's residence being not within 18 chains butbeing 22 chains away from the school as declared by him does notqualify him and the writ cannot lie. The court will also take notice of thefact that the child is now already attending school in Bishop's College,Colombo.
The learned Deputy Solicitor General strongly contended that allthese facts pertaining to residence at Dehiwela proved by 1R5 werewithheld from this court in the petitioner's application for Writ which isthus lacking in uberrima fides and that on this ground too theapplication must fail. I am inclined to agree with this submission. Apetitioner who seeks relief by Writ which is an extraordinary remedymust in "fairness to this court, bare every material fact so that thediscretion of this court is not wrongly invoked or exercised. In theinstant case the fact that the petitioner had a residence at Dehiwela isindeed a material fact which has an important bearing on the questionof the genuineness of the residence of the petitioner at the annexe andon whether this court should exercise its discretion to quash the ordercomplained of as unjust and discriminatory. On this ground too theapplication must be dismissed for lack of uberrima fides.
The application of the petitioner thus having failed on the abovegrounds, it is hardly necessary to consider the alleged ground ofdiscrimination against the petitioner's child on the ground that afterthe refusal of his application some other children with less qualificationhave gained admission. Discrimination and denial of equal rightscannot be agitated in an application for Writ of Certiorari and mustform the subject of an action for fundamental rights which cannot becanvassed in this court. I see no merit in this application for Writ ofCertiorari for the reasons set out and dismiss this application with'costs fixed at Rs. 315.
T. D. G. DE ALWIS, J. – I agree. '
1-PEDRIS v. FERNANDO AND ANOTHER