090-NLR-NLR-V-12-ABEYESUNDERE-v.-ABEYESUNDERE.pdf
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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Grenier.
ABEYESUNDERE «. ABEYESUNDERE.D. C., GaOe, 8,707.
Partition—Land subject to fidei commission.
A land which is subject to a fidei commissum may be partitionedor sold under the Partition Ordinance.
Obiter: Hutchinson C. J. — Where it is not practicable topartition the land and a sale is ordered under the PartitionOrdinance, it might be right to have a petition presented underOrdinance No. 11 of 1876 and to make the order under both theOrdinances, so that the purchase money may be dealt with in oneof the ways directed by the latter Ordinance.
A
PPEAL from a judgment of the District Judge of Galle. Thiswas an action to partition a land alleged to be subject to a fidei
commissum. The will by which the fidei commissum was createdcontained a direction that the management of the estate should.beleft entirely in the hands of the first defendant, and that he beallowed a salary as superintendent, independent of his own one-third share. The District Judge ordered a partition as prayed for,subject to the fidei commissum ; the decree further directed thateach divided one-third should be liable to pay to the first defendantRs. 100 monthly by way of salary for the management.
Tlie first defendant appealed.
Bauxt (with him H. A. Jayewardene), for the appellant.—The FullCourt has held that a fidei commissum property cannot be partitionedor sold under the Partition Ordinance (Ramanathan, 1877, 304).
1909.
November 17.
29-
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1909. The Ordinance No. 11 of 1876 was in operation at the time of theNovember 11. decision of that case. That decision is binding. The first case toindicate the opinion that fidei commissum property may be parti-tioned is Sathienader v. Mathes PuUe.1 That case converted a partitionaction into an application under Ordinance No. 11 of 1876. BabyNona v. Silva■ * could not have the effect of over-ruling Full Courtcase reported in Ramanathan, 1877. In Baby Nona v. Silva.i 2 Voetappears to have been misunderstood. The Privy Council liasexpressly held in Tillekeratne v. Abeyselcera3 that the PartitionOrdinance is “limited to cases in which the persons interested,whether as joint tenants or tenants in common, are full owners,and are not burdened with a fidei commissum.” Section 18 ofOrdinance No. 10 of 1863 refers to property “ held in common.”This land is not held in common, there is a right of survivorshipcreated by the instrument. Counsel also cited De Saram v. Perera,42 Burge 677, 678, and 1 Nathan 391.
Walter Pereira, K.C., S.-G., for the respondent (plaintiff).—Thecase reported in Ramanathan, 1877, was instituted before OrdinanceNo. 11 of 1876 was proclaimed (see 3 N. L. R. 200). Section 18 ofthe Partition Ordinance has no application. Baby Nona v. Silva■2has reviewed all previous authorities, and is a binding decision.Voet has been wrongly printed in the report of Baby Nona v. Silva,2but the original passage in Voet bears the construction put upon itby Lascelles A.C.J.
Bairn, in reply.
Cur. adv. vult.
November 17, 1909. Hutchinson C.J.—
The question which has been argued on this appeal is whether theland, to the possession of which the plaintiff and the defendants areentitled, subject to a fidei commissum in favour of their issue, can bepartitioned under the Partition Ordinance, No. 10 of 1863.
The District Judge having held that, under the will under whichthe parties claim, each of them is entitled to one-third of the land,subject to a fidei commissum in favour of their children and grand-children, allotted the land and ordered partition accordingly. Thewill also contains a direction that the management of the estateshould be left entirely in the hands of the first defendant Bennett,and that he be allowed a salary as superintendent, independent ofhis one-third share; and the decree directs that each divided one-third shall be liable to pay to the first defendant Rs. 100 monthly
i {1897) 3 N. L. R. 200.
* {1906) 9 N. L. R. 251.
3 (1897) 2 N. L. R. 313.* (1899) 3 Br. 188.
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from the date of partition, his salary having been agreed upon atRs. 300 a month.
The first defendant appeals, and contends that there is no juris-diction to order a partition of land which is thus subject to a fideicommissum. His counsel also urged that there would be greatpractical difficulty about the management if the land is partitioned,because he has a right to manage the whole of the land, and a parti-tion would necessitate his keeping three sets of books. I do not,however, see how effect can be given to the latter objection, for ifthere is jurisdiction to order partition or sale, the plaintiff has aright to compel it. But the objection that there is no jurisdictionis not so easy to dispose of.
The Ordinance enactB that “ when any landed property shallbelong in common to two or more owners,” one or more of suchowners may compel a partition or sale of it. The plaint is to state
“ the names and residence of all the co-ownersand the extent
of their respective shares or interests.”
Apart from authority, I should have said that the Legislature inthis enactment was thinking only of cases where all the persons whowere together entitled to the entire dominium of the whole of theland were in existence, and capable of being cited to appear, and ofreceiving their shares of the land, if it were partitioned, or of thepurchase money of it, if it were sold. It did not provide for the casewhere there is a fidei commissum in favour of persons not yet ascer-tained or not yet in existence, because it did not think of it; if it hadthought of such cases, it would have either expressly excluded them,or expressly provided for them by directing, for example, how thepurchase money of land sold should be disposed of in such cases, andby explaining whether persons who are only entitled in remainderand not in possession can institute proceedings under the Ordinance.
It may be, however, that the Legislature has enacted a law whoseterms are wide enough to cover a case which was not contemplated.And the words which I have quoted, “ when any landed propertyshall belong in common to two or more owners,” are wide enoughto cover fidei commissa. Where A and B are entitled to a land forlife, with remainder to 0 and D, it belongs to those four persons incommon, although their interests are not equal. That is so if w,etake the ordinary meaning of the words “belong” and “owner,”
. although the Ordinance makes no provision for the case of fideicommissa such as would have been natural if it had thought ofthem.
In a case which is very shortly reported in Bamanathm, 1877, 304,a Full Court held that land which is subject to a -fidei commissumcould not be partitioned or sold under the Ordinance. In Sathia-nader v. M. Pulle,1 Lawrie A.C.J. and Browne A.J. said that the
i (1897) 3 N. L. R. 200.
1909.
November 17-
Hutchinson
C.J.
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1909. difficulty felt by the Court in the case in Ramanathan had beenNovember 17. removed by Ordinance No. 11 of 1876, and they held that landHcTOHTNaoN wWch was subject to a fidei commissum could be sold under theCJ. Partition Ordinance. In Z)e Saram v. Perera,1 Bonser C.J. andLawrie J. affirmed a decree dismissing a claim for partition—thereport does not show upon what grounds—and Lawrie J. remarkedthat he would not say that property subject to a fidei commissummay not be sold or partitioned. In Appuhamy v. Hudu Banda,*Middleton J. held, although this was not the main question in thecase, that a life owner was not entitled to partition under the Parti-tion Ordinance. He does not refer to any of the authorities, butmerely says : “ In my opinion he is not entitled, as the land does notbelong to him in common with other owners, according to section 2.”Baby -Nona v. Silva3 was an action claiming title to land and torecover possession. The Court, Lascelles A.C.J. and Middleton J.;held that the land was subject to a fidei commissum. . There hadbeen a partition decree in a former action, by which the land hadbeen partitioned amongst the several limited owners, and it wasargued that this decree had destroyed the fidei commissum. TheChief Justice reviewed the authorities, and held that propertywhich is subject to a fidei commissum may be partitioned, andthat the partition decree did not destroy the fidei commissum. AndMiddleton J. appears to think that in such a case; there was powerto order partition.
In this state of the authorities, I feel bound to hold that landwhich is subject to a fidei commissum may be partitioned or soldunder the Partition Ordinance. The power is very useful where it ispracticable to partition the land ; where that is not practicable, anda sale is ordered under the Partition Ordinance, it might be right—this is only a suggestion, for the question does not arise in this case —to have a petition presented under Ordinance No. 11 of 1876 andto make the order under both the Ordinances, so that the purchasemoney may he dealt with in one of the ways directed by the latterOrdinance.
So far I have dealt with the case on the assumption that theDistrict Court was right in deciding that this will creates a fideicommissum. But it does not seem to me to be quite clear that thereis any fidei commissum. The material words of the will are asfollows: “ We give and devise to our three sons, Frederick, Bennett,and Samuel, all that tea, coconut, and citronella estate now
known as Freds Ruhe,share and share alike ;in the
event of our minor son Samuel dying without issue, his one-thirdshare of the estate should devolve in equal shares on our two sons,and the children and other descendants of our two sons if our sonsbe dead at the time: subject, however, to the conditions that they
» (1899) 3 Br. 188.* (1903) 7 N. L. R. 242.
3 (1906) 9 N. L. R. 251.
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or their issue shall not sell, mortgage, or otherwise alienate theabove-named estate, but shall possess the same during their lives.”So that with regard to the shares of Frederick and Bennett, there isan absolute gift to them, and no gift to their issue, but only a condi-tion that “ they or their issue ” shall not alienate, but shall possessduring their lives. The will does not say what is to become of theirshares if they die without having had issue, or any issue who survivethem ; in that case the absolute gift to them would probably remain,and the prohibition against alienation, which is inconsistent with it,would be disregarded. With regard to Samuel, if he dies “ withoutissue,” the devolution of his share is provided for, if his two brothersor perhaps any of their issue survive him; but if “he should leaveany issue surviving him, or perhaps if he should ever have a child,or if his brothers should both die childless before him, there is anabsolute gift to Samuel (with a condition against alienation, if theword “ they” in the last sentence above quoted inoludes him aswell as his brother).
I think that the best way to deal with the shares allotted to eachof the three brothers is not to attempt to define now, in the absenceof persons who may possibly hereafter become entitled to any of theshares under the will, what is the precise effect of the fidei commissum,if any, but to declare that each one-third is to be held by the partyto whom it is allotted, subject to the fidei commissvm, if any, createdby the will. The decree should be amended accordingly. And Ithink that the order that the first defendant should pay the plaintiff’scosts of contention should be struck out, but that the appellantshould pay the plaintiff’s costs of this appeal.
Grenhsr J.—
The testator had three sons, Frederick Emmanuel, BennettJoseph, and Samuel John Christopher. The last-named was aminor at the date of the execution of the will, and the first two werepresumably of full age. The testator seems to have contemplated,for what reason it is difficult to say, the death of Samuel JohnChristopher, and he made the following disposition, in case such anevent happened, in regard to the estate in question. He desiredand directed by his will that Samuel John Christopher’s one-thirdshare should go to his two brothers. If the two brothers were deadat the time of Samuel John Christopher’s death, and he died withoutleaving issue, his one-third share was to go to his two brothers andtheir children and “ other descendants,”—meaning I suppose de-scendants ad infinitum,—subject to the condition, that neither thetwo surviving brothers during their lifetime, nor their children and“other descendants” after their death, should sell, mortgage, oralienate the estate left jointly to the three brothers. The testator,
1909.
Novemberl7.
Hctchtkbon
C.J.
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1909- as fax as I can gather his intention from the rather obscure languageNovember 17. employed in the will, made a special disposition in regard to Samuelj. John Christopher’s share in case of his death, directing how it shoulddevolve, in the first instance, on his two brothers, and if they weredead, on their children and “ other descendants ”; and then he pro-ceeded to tie up indefinitely the whole of the property, whatevermight happen, by enjoining a prohibition against alienation indis-criminately on his two sons, Frederick Emmanuel and BennettJoseph, and their children and “ other descendants,” Samuel JohnChristopher being apparently left out of account altogether. Itis difficult to say who were to be the fiduciaries and who the fideicommissaries.
I humbly think that, whatever may have been the intention of thetestator, the words of the will are not sufficiently clear and preciseto impose a valid fidei commissum under the Roman-Dutch Law onthe property in question, and the presumption in favour of a freeestate must therefore prevail.
The case was, however, presented to this Court on the footingthat the property was subject to a valid fidei commissum, and thechief question argued was whether it could be partitioned or soldunder the provisions of the Partition Ordinance. The weight of theauthorities referred to by my Lord is in favour of the affirmativeproposition. I agree to the order amending the decree, as also tothe order as to costs.
Appeal dismissed ; decree amended.
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