Amaratutiga v. Aluris.
Present: Soertsz and Nihill JJ.
AMARATUNGA v. ALWIS.
147—D. C. Colombo, 407.
Fidei commissum—Prohibition against alienation—Beneficiaries designated aschildren, heirs and authorized persons as executors, administrators, andassigns—Not a sufficient designation.
Where a deed of gift was expressed in the following terms : “ It ishereby directed by the two of us the said donors that the said C. F.shall have no right to sell, donate, mortgage …. or alienatein any other manner the said lands except to possess only the leaseduring her lifetime, and that the children and heirs, descending from herand authorized persons such as executors, administrators, and assigns,shall have the right to sell .. . or to do whatever they • please
with the same . . . . ”
“ We do hereby give the right to the said Christina to possess indispu-tably after our death …. and after the death of the said Christinato her heirs and authorized persons- such as executors, administrators,and assigns to possess the said properties and to do whatever they likewith them ”.—
Held, that the deed did not create a valid fidei commissum.i 110 English Rep. 1007.
SOERTSZ -J.—Amaratunga v. Alvois.
N this action the only question argued in appeal-*was whether thedeed P 8 of 1895 created a fidei commissum.
The relevant portions of the deed are set out 3ft the headnote. Thelearned District Judge who tried the case held^tiiat £he deed created avalid fidei commissum.
The first defendant, appellant, who contended that it did not create afidei commissum, appealed against the finding of thd learned Judge.
N. E. Weerasooria, K.C. (with him E. B. Wikramanayake andH. Wanigatunga), for the first defendant, appellant:—The deed gifted theproperty to “ her heirs and authorized persons such as executors,administrators, and assigns”. It was held in Salonchi et al. v. Jayatu'that a prohibition against alienation was null and void unless there was aproper description or designation of the persons in whose favour or forwhose benefit the prohibition was provided. In that case, too, thedescription, “ authorized persons ” was used. The beneficiaries werenamed in Tillekeratne v. Abeysekera et al.! Hence the deed did notcreate a valid fidei commissum.
Further the first defendant appellant was in possession of theproperty.
J. E. M. Obeyesekere, for plaintiff, respondent.—Salonchi et al. v.Jayatu (supra) can be distinguished. In that case there was no indication‘ of the “ authorized persons ”. In the case under review the persons whowould be benefited can be gathered. In Agostina and three others v.John Chrisis Silva3 His Lordship, Mr. Justice Wijeyewardene, said thattoo great emphasis should not be placed on words so as to defeat the clearintention of the donor. In that case Mr. Justice Heame disagreed withthe reasons of Mr. Justice Wijeyewardene, though they agreed withregard to the decision in the ease.' The word “ assigns ” has no moreforce than the words executors ” and “ administrators ” as held inCoudert v. Don Elias'. Miranda v. Coudert'. The question of devolutionof property where the fideicommissary donees die before the fiduciary isdiscussed in Mohamad Bhai et al. v. Silva et al.*
N. E. Weerasooria. K.C., in reply, cited Usoof v. Rahimath
Cur. adv. vult.
February 20, 1939. 'Soertsz J.—
One question that arises in this case is whether the deed P 8 of 1895created a valid fidei commissum. That deed according to the translation'accepted by the learned trial Judge, stated inter alia that (A) “ it ishereby, declared or directed by the two. of us the said donors that thesaid Christina Fernando shall have no right to sell, donate, mortgage,give as security, exchange for other lands, or alienate in any other mannerthe said lands, except to possess only the lease during her lifetime,and that the children and heirs descending from her and authorized personssuch as executors, administrators, and assigns, shall have the right to sell…. or to do whatever they please with the same ….
> (1926) S7 N L. R. 366 oi p: 371.«(191i)17N.I.. R. ISO.
2 (1897) 2 N. L. R. 313.••(1916)19N.L. R. 90.
3 (1938) 13 C. L. W. 31 at p. 33.c(1911)liN.L. R. 193.
r (1918) 20 N. L. R. 223.
SOERTSZ J.—Amaratunga v. Alvois.
(B) It is hereby directed by the two of us . . . that when the timecomes for the chit&ten of the said Christina to become entitled to these lands,her children by the'^Qpond marriage shall be entitled to the portion of theland called Millegahdtttttfta …. and her children of the first andsecond marfltwes shall divide in like manner the remaining lands. (C)“ We the said chmoto hereby give the right to the said Christina to possessindisputably after qjir death …. and after the death of thesaid Christina to her heirs and authorized persons such as executors,administrators, and assigns to possess the said properties and to do whateverthey liked with them”.
A consideration of these terms in the deed enables me to reachwithout difficulty the conclusion that no valid fidei commissum wascreated. One condition for the creation of a good fidei commissum issatisfied. There is a clear prohibition against alienation. But theother necessary condition fails in that there is no clear designation orindication of the parties to be -benefited. The words “ the heirsdescending from her, and authorized persons such as executors,administrators, and assigns ” are both too vague and too general.
As Bonser C.J. observed in Hormusjee v. Cassim% “the word assignsmeans any person in the world to whom the donee may be pleased to assignthe property, and it cannot be contended that this condition was meantto benefit the whole world ”. Since that date there has been a welter ofdecisions on fidei commissa, some of which have gone the length of sayingthat once an intention to create a fidei commissum is apparent, wordslike assigns, executors and administrators should be treated as “sur-plusage ” or notarial flourish and struck out or ignored. I can see nojustification for taking such liberties with words chosen by parties or theiragents. There are other decisions which say that even if parties indicatetheir intention to create a fidei commissum by employing such words as“under the bond of fidei commissum, those words are of no avail if theparties to be benefited are hot clearly designated or indicated. I sharethat view. In Wijetunga v. Wijetunga2 Pereira J. said “ if the intentionof a donor or a testator to create fidei commissum is clear, and the wordsused by him can be given an interpretation that supports that intention,I should be slow to embark on a voyage of discovery in search of possibleinterpretations that defeat that intention”. In regard to this observa-tion, I would only say that when, despite an intention to create a fideicommissum to be gathered from such words as “ under the bond of fideicommissum, the testator or donor fails to designate or indicate clearlythe parties to be benefited, there does not seem to be any occasion toembark on a voyage of discovery in order to construct a-fidei commissumfor the testator or donor by striking out or ignoring words on the assump-tion that they are “ surplusage ” or “ notarial flourish ”. If a testatoror donor clearly imposes a prohibition against alienation and then goeson to frustrate his intention to create a fidei commissum by employingwords which do not designate or indicate clearly the beneficiaries, hemust be left just where he placed himself, on the threshold of a fideicommissum. It may well be that he has deliberately placed himselfin that position. In the words of Innes C.J. in’ ex parte Van Eden and>.v. L: R. 190.'2 15 N. L. R. 493.
SOERTSZ J.—Amaratunga v. Alwis.
others (1905, Transvaal Reports, 151) “what the Court has to do is toendeavour to arrive at. the intention of the testator” or I would add,donor—and to arrive at that intention not “ by considering what we think' it would have been a good thing if they did mean, or what they oughtto have meant, but by ascertaining the plain meaning of the words used.
If these words are capable of more than one construction, then of course,the Court would lean towards the one most in favour of freedom ofalienation
Roman-Dutch law writers say that fidei commissa are odious inthe eye of the law, and must be strictly construed. Now, in thecase before us, the trial Judge says that on the authority of the caseof Salonehi v. Jayatu' he would have held that “ the presence of thewords heirs and authorized persons …. refers to an indetermi-nate class of persons to be benefited and that, therefore, no valid fideicommissum has been created. ” But, he goes on to say that in the secondpassage cited from the deed the persons to be benefited are sufficientlydesignated, namely, the children of the donor and that, for that reason,he holds that there is a fidei commissum. I regret I am unable to acceptthis reasoning- In my view, the resulting position is—to use the wordsof Innes C.J. from the passage I have quoted—that, at best, “ the wordsare capable of more than one construction, and that therefore “ theCourt would lean towards the one most in favour of freedom of aliena-tion ”. To uphold the view taken by the Judge, one has to strike outthe words in passages (A) and (C) cited above, “ the children and heirsdescending and authorized persons such as executors, administrators,and assigns ”. In my view that is an utterly unwarranted course to take.All the terms of the deed must be considered and when this is doneI find it difficult, if not impossible, to say that the intention of the donorwas to impose a fidei commissum. At any rate, even if that was theirintention, they have failed to give' effect to it.
Counsel for the respondent relied upon the judgment of my brotherWijeyewardene in an unreported case appearing in the S. C. Minutesof September 21, 1938, in regard to case No. S. C. 34—D. C. Colombo,666. In that case a deed in very similar terms to these so far as the;first and third passages cited by me from the deed are concerned, wasconstrued by him as creating a fidei commissum. He took the view thattoo much emphasis should not be placed on such words as “ heirs descend-ing from them and their authorized persons such as executors,administrators and assigns ”, because a clear intention on the part ofthe donor to create a fidei commissum could be gathered from the wholedocument. I have already made my comment on this view. I wouldadd that this view was expressed obiter. The case was decided on anotherpoint. My brother Hear'ne disagreed with this obiter dictum and I findmyself in agreement with the view taken by him. I am, therefore, ofopinion that the deed in question did not create a fidei commissum.
In that view of the matter, it is not necessary to consider the otherquestions discussed during the argument of this appeal. The appeal isallowed and the plaintiff’s action is dismissed with costs in both Courts.Nihili, J.—I agree.Appeal allowed.
> 27 N. L. n. 3GC.
AMARATUNGA v. ALWIS