MAARTENSZ A.J.—Abdul Cadet 9. Uduma Lebbe.
Present: Lyall Grant J. and Maartensz A.J.ABDUL CADEB v. UDUMA LEBBE.
380—D. 0. Kalutara, 14,746.
Fidei commissure—Deed of gift to two brothers—Equal undivided shares—Property tovestintheir lawfulchildren onthedeathof both—Death 'of
one—Rights of heirs.
Wherehusbandandwife gifteda property,subject toa fidei commissum
to theirtwosonsinequal undivided sharesand,wherethe deed of gift
providedthatonthedeath ofboth of them,the property should vest
in their lawful children in undivided shares,—
Held, that on the death of a donee, without issue, his half-share passedto his heirs, subject to the right of the surviving donee .to possess itduring his lifetime.
^ PPEAL from a judgment of the District Judge of Kalutara.
N.E. Weerasooriya (with him Rajapakse), for defendant, appellant.Tisseverasinghe, for plaintiff, respondent.
June 29, 1931. Maartensz A.J.—
This was an action for declaration of title to a land called Delgahawatta.The land admittedly belonged to one S. L. M. Abdul Cader who, withhis wife Patta Muttu Natchia, gifted it to their two sons, the plaintiff and'Abdul Cader Mohammadu Haniffa, by deed No. 1,230 dated October 20,19C6 (PI) subject to certain conditions and reserving a life interest tothe douors. Both donors are dead. Abdul Cader died on November-15, 1918, the date of his wife’s death was not proved.
Mohammadu Haniffa died on June 8, 1919, leaving a widow, who died.on December 9, 1927.
The interest in dispute is the share gifted to Mohammadu Haniffa,The plaintiff claims it under a fidei commissum created by the deed of giftNo. 1,230, the defendants claim it as heirs of Mohammadu Haniffa’s-Widow.
MAARTEN SZ A.J.—Abdul Cadet c. Vduma Lebbe.
The issues decided by the District Judge were—
Ts the deed of gift (PI) void for want of acceptance?
Did the deed create a single fidei commissum in respect of the
These issues were answered in favour of the plaintiff and he was declaredentitled to the entirety of the land in dispute.
The defendants appeal from this decree.
In appeal, appellants’ counsel sought to establish that the deed of gift,the parties to which were Muslims, was void because there was no evidenceof delivery of possession to the donees.
I am of opinion that it is not open to the appellants to raise this questionas it cannot be brought within the purview of any issues tried in theDistrict Court. As observed by the District Judge the fact that- theparties to the deed were Muslims appears to have been overlooked at thetrial. The District Judge discussed the question of possession anddecided in favour of the plaintiff, but it was a question outside the issuestried by him.
The questions for decision in this appeal, therefore, are:
Is the deed of gift (PI) void for want of acceptance?
Did the deed create a valid fidei commissum?
Did the deed create a single fidei commissum?
The deed of gift was accepted on behalf of the donees, who were minors,by their brother-in-law, and I am of opinion that there was a sufficientacceptance of the deed to render the donation valid.
The contention that the deed did not create a valid fidei commissum is,in my opinion, an unarguable one.
The operative clause is expressed as follows:
** Ve the said Siddi Lebbe Marikkar Sehabdul Cader and Uduma LebbeMarikkar Pathumma Natchia of Horetuduwa aforesaid, husbandand wife, respectively, having valued the said premises atRs. 10,000 of Ceylon currency, in consideration of the naturallove and affection which we bear towards our two sons SehabdulCader Mohamadu Aniffa and Sehabdul Cader Mohamadu Majidu,both of Horetuduwa aforesaid, and for diverse other importantcauses us hereunto moving, do hereby convey and transfer thesaid premises t-o our said two sons subject to the followingconditions."
The relevant condition which follows runs thus:—
•• We the said two donors do hereby direct that the said two doneesshall not be entitled to sell, gift, mortgage, lease or in any manneralienate the whole of the premises hereby donated."
MAABTENSZ A J.—Abdul Cadet v. Uduma Lebbe.
The persons in whose favour the prohibition was imposed are designatedin the last clause of the deed which is as follows:
" And the land hereby donated together with all trees, plantations andeverything else belonging thereto shall vest from this date in thesaid donees, namely, Sehabdul Cader Mohamadu Haniffa andBehabdul Cader Mohamadu Majidu in equal undivided shares,and they shall be entitled to peacefully possess the same subjectto the life interest and the conditions above recited, and afterthe demise of both the said donees Sehabdul Cader MohamaduHaniffa and Sehabdul Cader Mohamadu Majidu, everythinghereby donated shall vest in their lawful children in undividedshares, and they (the said children) are hereby granted fullauthority to peacefully possess and to dispose of the sameaccording to their free will.”
There is nothing in the clauses quoted to negative the intention of thedonors to burden the property gifted with a fidei commissum in favourof the children of the donees.
Appellants' counsel contended that the intention was negatived in thefollowing clause:
“ Declaring therefore, that not only we the said two donors have notheretofore done or committed any acts whereby this, donationmay be impeached or encumbered but we shall not raise or cause'to be raised any dispute with regard to this donation we havehereby conveyed all our right, title, and authority in andto the said property hereby donated unto the said twodp/nees and their lawful heirs, executors, administrators, andassigns.”
I am quite unable to agree to this contention. The clause relied on isneither an operative clause nor a habendum. It is, in my opinion, merelya declaration by the donors that they have not done anything wherebythe deed of gift may be impeached and that they will not hereafterdispute it.
The particular words relied on are the words ” we have hereby conveyed…. unto the said two donees and their lawful heirs, executors,
administrators, and assigns ” is merely descriptive of the deed and should,iu my opinion, read ” whereby we have conveyed&c.
I accordingly hold that deed No. 1,230 contained a valid fideicommissum.
The question whether the deed contained one fidei commissum or twois a more difficult question. Little assistance can be gained from thecases in the books for none of the instruments, construed in them are inprecisely the same terms as the deed in question.
It was held in the case of Garlina v. Juanis1 that the intention of thedonor must be determined in e$ch case.
(1924) 26 N. L. R. 129.
MAABTENSZ A.J.—Abdul Coder v. Udttma Lebbe.
In the case of Perera v. Silva1 and Carron v. Manuel,* in which the samewill was construed, the testator and testatrix bad, by their joint will,devised one-half of their property to the sisters of .the husband, namely,Lucia and Maria and the other half to the sisters of the wife Helena andPhillipp? subject to a fidei commiseum in favour of their lawful issue whowere to take without any restriction.
Maria died without issue, and it was held that her share devolved on herhusband. The ratio decidendi was that the testator and the testatrixclearly intended to benefit the lawful issue of each institute as well as theinstitutes themselves and that neither expressly nor by implication didthe will indicate that on the death of one of the institutes the survivorsare to take by substitution.
This decision was followed in the case of Fernando v. Rosaline Jiunna.*The fidei commissa considered in these three cases differed from the fideicommissa created by the instruments construed in Vansanden v. Mack,*Tillekeratne v. Abeysekere5 and Garlinahamy v. Juanis (supra) in this respect.In tbe former cases the fidei commissum terminated with the institutes, inthe latter it extended to the substitutes. The extension largely deter-mined the intention of the donors in the latter cases.
The deed “ PI ” is similar to the instruments considered in the firstgroup of these cases in that the fidei commissum comes to an end with thesubstitutes. To distinguish it from these instruments reliance was'placed on the fact that the children were to succeed after the death ofboth donors and on the words “ shall vest in their children in equalshares”. It was argued that the donors intended to create one fideicommissum because (i) the surviving donee was entitled to possess thewhole till his death and (ii) the children of the donees were to take inequal shares, that is to say, per capita and not by representation whichwould have been the appropriate form of inheritance if the donors intendedto create two fidei commissa.
On the other hand it was contended as regards the first part of theargument that the donors only intended to allow the surviving donee aright of possession until his death and as regards the second that theWords relied on must be read with the preceding passage that the land'.should rest in the donees in equal undivided shares and, that read withthis passage, it was the intention of the donors that the children of therespective donees should inherit equal shares in each undivided halfvested in the respective donors.
1 think the appellants’ contention must prevail. The dominant clausevests each donee with an undivided half share. That being so thechildren of each donee will become entitled to an undivided half whetherthe children of. each donee are equal in number or not and when onedonee died without issue after, apparently the donors, the half share
1 11916) 16 N. L. R. 474s (1925) 27 N. L. R. 503
* (1917) 17 If. L. R. 407.• (1S95) 1 N. L. R. 311.
• (1897) 2 N. L. R. 313.
MAABTENSZ A.J.—Abdul Cadet 9.,Vduma Lebbe.
belonged absolutely to his estate and passed to his heir at law, as regardstitle at once. Possession does not pass till after the death of the survivingdonor.
I accordingly set aside the decree appealed from and declare the plaintiffentitled to an undivided half share of the land and to possession of thewhole wi.th the damages as agreed. I think each party should pay hisown costs here and in the Court below.
Lyall Grant J.—I agree.
ABDUL CARDER v. UDUMA LEBBE