ABEYRATNA v. JAGARIS

029-NLR-NLR-V-26-ABEYRATNA-v.-JAGARIS.pdf


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Present: Bertram C.J. and Jayewardene A.J.1924ABEYRATNA v. JAGARIS.434—D. C. Ckilaw, 7,164.
Fidei commissum—M Heirs, executors, administrators, and assigns "—
Gift to two persons subject to condition that after their death theproperty was to go to their children—" Their death** means " theirdeath respectively."
By a deed S purported “ to give, grant, assign, &c., unto B and O,their heirs, executors, administrators, and assigns as a gift absoluteand irrevocable " . . . .'a property subjectto the condi-tion that the said E and O “ shall not sell, mortgage, or otherwise'* (r
alienate the said premises …. and after their death theN
said premises shall go to, and be possessed by, their children as theirabsolute property. 7
Held, that the deed created a hdei commissum, and that on thedeath of either E or O his interests passed to bis -children.
The words "their death" ought to be construed as though theyread " their death respectively," and the words " their children "as though they read " their respective children."
1 {1375) L. R. 10 0. P. 159,* (1896) 73 L. T. 624.
(i9Jd) 1 A. C. 175 (179).
( 1« )
1084.
Abeyarrtno
«•
Jagaris
T^HE facts are set out in the following judgment of the District*
Judge (N. M. Bbarucha, Esq.): —
©
This is a partition suit. The land in question originally belonged to>one Simon Moraes who by deed No. 4,755 dated February 22, 1895,gifted it to his newphew Elaris Moraes and Patrick Moraes (first defendant)-subject to certain conditions. Ignoring the clause in the deed of giftprohibiting alienation, Elaris Moraes and Patrick Moraes each conveyedhalf share of ■ the land to Venethithan Chetty on deedB No. 47 of 1911(2 D 1; and No. 14 of 1910 (2 D 2). Venethithan Chetty conveyed theinterest which he had acquired on deed (2 D 2) to Gurishamy Arachchi by deedNo. 17of September 15, 1910 (2 D 3). Guruhamysoldthe said
interest back to Venethithan Chetty by deed No. 2,986 of December 20,11910 (2P- 5). VenethithanChetty retransferred it toGuruhamy on
deed No.3,607 of October 21,1911 (2 D 6). VenethithanandGuruhamy
conveyedthe entire land tothe second defendant on deedNo. 5,106
of January 16, 1912 (2 D 4).
2. Elaris Moraes died recently, leaving an only child, viz., the minorplaintiff, /vho claims a half share of the- land in question, alleging thatthe deed of gift No. 4,755 (P 1) created a fidei commissum in favour ofthe children of Elaris Moraes and first defendant Patrick Moraes.
The learned Judge quoted the deed and continued: —
4. It was argued for the second defendant that in view of the opera-tive and warranty clause in the deed of gift, an unfettered grant wasmade to the donees, -and that, therefore, the restriction in the linbendnmclause was null and void. Plaintiff's counsel, on the other hand, sub-mitted that the words "heirs, executors, administrators, and assigns " inthe operative part vested in the fiduciaries the plena praprietas as* apreliminary to imposing the fidei commissum upon the properly. Apartfrom judicial authority, if I were to judge the case in the light .of firstprinciples, I have no doubt that the deed in question created a fidetcommissum. There is a restriction against alienation together with a.clear indication as to the persons who are to be benefited by the saidrestriction. The language used in the deed of gift is similar to that used,in the deed which formed tfhc subject matter of the case reported in1 C. W. R. 25, where it was held that a fidei commissum was created. The-old cases relied on by the second defendant's counsel in support ot hiscontention were cited in the case above referred to. Wood Renton C.J.,in the course of his judgment in that case, states: ' " There is no-doubt an old current of decisions of which tfutca/t* Pcrera v. ChristinaPercra 1 may be taken as the latest. . in favour of the argumentagainst fidei commissum. But the more recent authorities (see 17N. L. R. 129 and 18 N. L. R. 174) laid down by the rule that the w-ords. ‘ heirs, executors, &c.,’ in a deed alleged to create a fidei commissum, maybe nothing more than the means of vesting in the fiduciary the plenaproprietas as a preliminary to imposing a fidei commissum upon theproperty. I think that this principle is a sound one, and that some ofthe earlier decisions went too far ia holding that the use of these word^operated mechanically in favour of freedom of alienation." Withthese remarks, if I may venture to say so, I am in complete accord. Ihold that the deed of gift creates a fidei commissum in favour of thechildren of Elaris Moraes and first defendant Patrick Moraes.
5. It w'as. next submitted by the second defendant's counsel thatthe deed of gift was a joint grant in favour of Elaris and Patrick, and thaton the death of Elaris, his half share accrued to Patrick, the survivor.
1 6 Leader 12,
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'There is no special clause in the deed to justify this view. Nor can■such a condition be implied because of section 20 of Ordinance No. 21of 1844 (see also 84 N. L. A. 138). In my opinion the minor plaintiffbecame the absolute owner of one-half on the death of his fatherElaris.
As absolute owner of one-half, the minor plaintiff has status to
maintain this partition suit. The actionisproperly constituted.
There is no need to make the children of the first defendant parties tothis suit.
There is no evidence to show that this is a maid fide action broughtby the next friend to have a disputed question of title settled.
Enter interlocutory decree declaring plaintiff entitled to halfabsolutely and second defendant to half subject to fidei commissum infavour of the children of the first defendant. The defendant to payplaintiff costs of the trial. First defendant to bear, all his costs* |»er-sonally—all other costs of the action and of partition to be bornepro raid.
The deed in question was as follows:—,
P 1.No. 4,756.
Enow all men by. these presents that I, Simon Moraes of Colpetty inColombo, for and in consideration of the love and affection which I haveand bear unto Elaris Moraes of Colpetty aforesaid (son of my brotherFrancis Moraes) and my adopted son Patrick Joseph Obrain Moraes,and for diverse other good causes and considerations, we hereuntospecially moving do hereby give, grant, assign, transfer, set over,' andassure unto the said Elaris Moraes and Patrick Joseph Obrain Moraes,their heirs, executors, administrators, and assigns as a gift absolute andirrevocable, subject to the conditions and restrictions hereinaftermentioned, all that lot marked C of the value of Bupees One thousand,being one-fourth part of all those two contiguous allotments of theland called Mirishenalanda,situate atPambalaand Walahena in
Munnessaram pattu …. together with all deeds and writingsrelatingthereto,andwith allmy right, title,interest, claim, and
•demand whatsoever in, to^ upon, or out of the. same, which said premiseshave been held and possessed by me under and by virtue of the said•deed:
To have and tohold thesaid premises withall and singular the
appurtenances thereunto belonging or used or enjoyed therewith, orknown as part and parcel thereof, unto the said Elaris Moraes andPatrick Joseph Obrian Moraes, their heirs, executors, administratorsand assigns for ever, subject, however, to the following conditions andrestrictions, to wit: That the rents, profits, issues, and income of the saidland and premiseshereby gifted shall betaken,received, and enjoyed
by my wife Manam Muhandiramge Justina Perera during her lifetime,and after her death the same shall'go to, and be possessed by, the saidElarisMoraesandPatrickObrain Moraesas their property,
provided, however,that thesaid ElarisMoraesand Patrick Joseph
Obrain Moraes shall not sell, mortgage, or otherwise alienate the saidpremises hereby gifted or any part thereof during their lives, and aftertheir death the said premises shall go to, and be possessed by, theirchildren as their absolute property. If the said Elaris Moraes andPatrick Joseph Obrain Moraes shall die without issue, then and in suchcase the said property hereby gifted shall go to, and possessed by, my
1924.
Abeyaratna
v.
Jagaria
( 184 )
1994.
Abeyarafna
Jogarie
heirs as myformer estate.Ami .1 do hereby tormyself,myheirs,
executors,andadministratorscovenant, promise, andagree toand with,
the said Elaris Moraes and Patrick Joseph Obrain Morses, their heirs,executors, administrators, and assigns that the said premises herebygifted and every part thereof are free from any incumbrance, and thatI am my aforewntten shall and will at all times hereafter warrant anddefend the same unto them and their aforewritten against any personor persons whomsoever:
And I,thesaid ManamMuhandiramge JustinaPerera,dohereby
thankfullyaccept the abovegift for and on behalfof thesaidElaris
Moraes and Patrick Joseph Obrian Moraes made to them in the fore-going deed Bubject to the conditions therein expressed.
H. J. C. Pereira, K.C: (with him E. W. Jayewardene, K.C.,Samarawickrame, and D. P. Fernando), for the appellant.
Rodrigo (with him R. C. Fqnseka), for the respondent.
A
July 4, 1924. Bertram C.J.—
This was a case which at first sight seemed to present issues ofsome complication, but as the case developed it was reduced to avery simple question. Mr. Pereira was unable to escape from thenumerous authorities which determine the meaning of thephrase “ their heirs, executors, administrators, and assigns ” indocuments which otherwise have an obvious fidei commiemm.intention. We need not, therefore, discuss that question. Whatwe have to decide is the meaning of the following words:“ After
their death the said premises shall go to; and be possessed by, theirchildren as their Absolute property.”
In the case with which we are dealing there is a fidei commissitmin which certain property is granted to two brothers dining their life-time as fiduciaries, and on their death the property granted to themis to devolve upon their children. It is suggested that when thedonor said: “ after their death,” he meant “ after the death of bothof them,” and that so long as either of them was alive, no interestwould accrue to their children.
This, on the face of it seems a very improbable intention toimpute to the donor. But, as Mr. Samarawickreme truly says,what-we have to look at is the intention he has expressed. Neverthe-less, if there is an alternative interpretation which can justifiablygive effect to what must have been his real intention, that intentionis to be preferred.
In my opinion there is such an alternative interpretation. Whatis more, I consider it the more natural interpretation. The phrase” their death,” in my opinion, ought to be construed as though it read“ their death respectively,” or “ the death of the said Elaris Moraesand Patrick Joseph Obrain Moraes, respectively,” and the phrase” their children ” .should be construed as though it read “ theirrespective children. ”
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Mr. Rodrigo has drawn our attention to the case of Perera v, Silva,1where the same interpretation was given to almost similar collectionof words. Further, there is a South African case cited in the Lawof Wills by Sir Henry Juta at page 143—Mills v. Est. Van Beark/where the expression “ after our death " was held to mean *' afterthe death of each of the two spouses respectively/* and not “ afterthe death of both of them.”
Mr. Saznarawickreme suggests that by such an interpretation weare doing violence to the doctrine of Tillekerdtne v. Abeyesekera*I am unable to see that this is the case. I do not think that it canbe plausibly suggested that the Privy Council in that case intendedthat, where property was left to.fiduciaries, and after their death totheir children, until both fiduciaries ar.e exhausted no interest couldaccrue to successive generations. In this view of the case thejudgment of the learned District Judge should be upheld, and theappeal dismissed, with costs.
Jayewardene A.J.—I agree.
1924.
Bertram
C.J.
Ab&yaratna
v.
Jagaria
Appeal dismissed.