( 168 )
ANNAMAL v. SAIBO LEBBE.
D. C., Batticaloa, 1,935.
Last willAction by fideicommiasarii—Power offiduciaryto alienate trust
property—Sanction oftheCourt—Procedureunder "The Entailand
Settlement Ordinance, 1876. "
Where a person made his last 'will and provided as follows:—
“I direct that all my immovable property he managed and possessedupon trust by my said executors and trustees, and that from the nettproduce thereof such of my sons as shall act as my executors and trustees•hall enjoy *”0 shares, and my other sobs and daughters and their mothershall enjoy one share each for and during the term of their respectivenatural lives, providedthatneither my saidwife norany of mysaid
children shall be at libertyto encumber, sell,or in any other waysand
means to alienate or dispose of my said immovable property, &c. Andfurther, that the same shall be not liable for the debt already contractedby my said children or hereafter to be contracted by them or by theirsaid mother, and provided also that neither the male nor female child orchildren of any of 'my said sons, nor the son or sons, of any of my saiddaughters, shall be entitled to any share or shares, portion or portions,of the produce of the said immovable property or .to the property
itself and the several and respective heirs female of the body and
bodies of my said daughters shall at the death of their respective mothersbe entitled to, and I hereby appoint them sole and absolute heirs of, allmy said immovable property,” &c.,—
and some of the daughters of the testator mortgaged, with the approvalof the District Court, one of the lands of the testator for the purposeof paying out of the loan the taxes due by the estate and the chargesnecessary for maintaining and improving the immovable property of theestate,—
Held, that the Will created a fidei commissure; that the daughterscould not mortgage any property even to p.ay taxes, without obtainingthe sanction of the Court in the special manner provided by sections i.6, and 9 of " The Entail and Settlement Ordinance, J.876 that the saleof the mortgaged property in execution was invalid; and that theplaintiffs, as fidei commiesarii, were entitled to their share of the propertyin question.
HE plaint alleged that one Bobert Kungiliyapodi Vanniya,who died in September, 1858, leaving hiin surviving his
widow, four sons, and five daughters, made a last will bequeathinghis movable property to his widow and children, and settling hisimmovable property cm certain trustees for the benefit. of hiswidow and children, upon certain terms and conditions; that theimmovable properties devised in trust were, after the death of thetestator, in possession of one of the executors and trustees namedRadiramapodi till his death in 1871; that thereafter his brotherAlvapodi held the estate in trust till 1879; that upon his renounc-ing the trusteeship the four daughters of the testator undertook
July '18 and
( 1«4 )
the trusteeship; that thefirst and second plaintiffs werethe
July 18 and daughters of Valliammai,who was the second daughter ofthe
testator; that upon the death of "Valliammai in 1896 the firstand
January 87 8econ<j plaintiffs became, in terms of the last will of the testator,
the lawful owners of anundivided one-fourth share of allthe
immovable property devised in trust; and that the defendant hadbeen in unlawful possession from March, 1896, of one-fourthshareofa certainhouse and ground situatedinPuliantivu.
The plaintiffs prayed that they be- declared lawful owners of thesaid one-fourth share.
The defendant pleaded that he was justified in possessing thesaidshare of the house and ground in questionbyvirtue of a
chainoftitle restingon the following documents:(1)a mortgage
executed in favour of one Meidin Lebbe by the plaintiff's motherValliammai and. certain of her other daughters in 1879; (2) adeedofconveyancegranted to the said MeidinLebbe in 1882
by the Fiscal, who had seized and sold the said property upon awrit of execution issued by the District Court of Batticaloa in anaction brought by Meidin Lebbe against Valliammai and the othergrantors of the bond; (8) a deed of sale from Meidin Lebbe toAhamadu Lebbe; and (4) a deed of donation from AhamaduLebbe to defendant.
The clauses of the last will upon which the plaintiffs reliedas showing that a fidei commissum had been created in theirfavour as the testator’s grand-daughters, and that Valliammai hadno right to mortgage anything more than her life interest, wereas follows:—
“ I direct that all my immovable property be managed andpossessed upon trust by my said executors and trustees, and. thatfrom the nett produce thereof such of my sons as shall act as myexecutors and trustees shall enjoy two shares, and my other sonsand daughters and their mother shall enjoy one share each for andduring the term of their respective natural lives, provided thatneither my 6aid wife nor any of my said children shall be atliberty to encumber, sell, or in any other ways and means toalienate or dispose of my said immovable property, &c. Andfurther, that the same, shall be not liable for the debt already con-tracted by my said children or hereafter to be contracted by themor by their said mother, and provided also that neither the malenor female child or children of any of my said sons, nor the son orsons of any of my said daughters, shall be entitled to any share orshares, portion or portions of the produce of the said- immovableproperty or to the property itself………and the several and respec-tive heirs female of the body and bodies of my said daughters
( 165 )
shall at the death of their respective mothers be entitled to, and 1908.
I hereby appoint them sole and absolute heirs of, all my saidimmovable property, ” &c.January 27.
The District Judge uphold the contention of the plaintiffs, and
entered judgment as prayed.
The defendant appealed.
The case came on for argument on the 23rd November, 1901,before Moncreiff, J., and Browne, A.J., who, after bearing thearguments of counsel, directed the case to be set down forre-hearing before three Judges.
It was re-heard on 18th July, 1902.
Domhorst (with him Wadsworth), for appellant.
Walter Pereira (with him Vanderwall), for respondent.
The arguments of counsel appear in the judgment ofMiddleton, J.
Cur. adv. vrilt.
. 27th January, 1903. Moncbeiff, J.—
This case appears to me to be singularly free from doubt.Robert Vanniya died in 1858. By his will he directed that hiswidow and his sons and daughters should receive shares of hisimmovable property and certain cattle from his executors andtrustees, who were to manage and possess the property on trust.It is unnecessary to refer to all the provisions of the will. It issufficient for this case to say that the testator, having given theenjoyment of his property for life to certain persons, substitutedas heirs the female heirs of his daughters, directing that “ thefemale heirs of the body and bodies of my said daughters shall atthe death of their respective mothers be entitled to, and I herebyappoint them sole and absolute heirs of, all my property.”
One of the testator’s daughters was named Valliammai. Shedied in 1896 leaving two daughters, the first and second plaintiffs;and the third plaintiff is the husband of the second. These twodaughters upon the death of their mother became entitled, assubstituted heirs, to one-fourth of the testator’s property, becausethe testator had created a fidei commissum, in every respect valid,by which they were entitled to their share of property upon thedeath of their mother. They found, however, that their one-fourthshare was in the hands of the defendant.
It appeared that in the year 1876 Daniel, one of the sons of thetestator, borrowed sums of money from one Packeer MeidinLebbe for the purpose of maintaining the estate. In 1879 Daniel
( 166 )
retired from the management, and the mother and sisters, indeedJuly 18. and all those immediately interested, executed, with the approval of
the Judge an agreement by which they took over the managementJanuary 27. 0f ^ property, and undertook to pay to Packeer Meidin LebbeMoncreijt, the amount for which he had recovered judgment against Daniel.
As security they mortgaged to Packeer Meidin Lebbe the propertyin question, which was ultimately sold at a Fiscals’ sale in 1882,and in 1890 transferred to the defendant. Now, it is observablethat, even if the mortgagors had any right to mortgage theproperty, they had no more than a life interest to dispose of ; andthat, although Valliammai, the mother of the two plaintiffs, joinedin the mortgage, she is now dead, and any interest in the landwhich she could transfer is at an end.
The will itself forbade the alienation or the encumbrance of theproperty, and, even although it isv'true that a fiduoiarius mayencumber property for the purpose of maintaining it, by theterms of Ordinance No. 11 of 1876, section 4, in order to do sohe requires the leave of the Court. The provision in question wassimply an enactment of the existing law. The leave of the Courtwas not obtained, because, although the Judge sanctioned theagreement by which the mother and sisters of Daniel undertookto pay his debt, he did nothing to sanction the payment of thedebt by means of an encumbrance on the property.
The defendant is in possession of land acquired from personswho had no authority whatever to dispose of it. In my opinionthe District Judge was right. The plaintiffs are entitled to anundivided one-fourth of the property. I think the appeal shouldbe dismissed with costs.
This was an action by two persons who alleged themselves to befidei commi88arii under the will of their grandfather KungiliyapodiVanniya, and the husband of one of them, against the defendant,who claimed by donation and upward through a chain of legaltransfers to one Packeer Meidin Lebbe to one-fourth of a houseat Batticaloa.
The facts were practically admitted, and they were that theVanniya, by his will in 1858, purported to settle this, amongstcertain other property, in fidei commisso upon the daughters of hisdaughters, appointing his four sons in succession as fiducianiwithout power to encumber, sell, alienate, or dispose of.
It seems' that in 1876 Alvapodi, the second son of the Vanniya,got into debt on a bond to Packeer Meidin Lebbe for money,
( 107 )
which, it was alleged, was spent in payment of taxes on, and in 1902*the management and improvement of, the trust property. Subse-and
quently Packeer obtained a judgment against Alvapodi, and the January 27%
document marked X was executed purporting to be an agreement
to mortgage the property in question with certain other properties Mu)D“rojf,to Packeer by Valliammai, the mother of the first two plaintiffs,and seven others interested in the property. This was on the3rd February, 1879. Judgment was afterwards recovered uponan action on this mortgage, and the property in question sold andconveyed by a Fiscals transfer to Packeer on the 26th June;thence it has devolved on the defendant. From an extract of arecord in the District Court of Battioaloa (marked Y in theseproceedings) it would seem that a document (marked Z), signedby Alvapodi was, in the presence of the other six signatories to X,placed before the Court, and a note was made “ Ordered accordinglyand cose struck off.”
The first two plaintiffs are the only daughters of Valliammai, whodied in March, 1896, and who was one of the five daughters of thetestator. The first question raised before us was whether thewill of the testator created a fidei commission,; and, secondly, if so,whether the Court would read into ,the will an implied power ofalienation. As I read that part of the will of the testator whichis in question, it appears to be a bequest to his sons to hold intrust, without any power of alienation, the immovable propertyand buffaloes; the son actually managing the property to take adouble share, the wife, other sons, and daughters to have one share ,each of the produce for life, excluding both children of sons anddaughters’ sons, with remainder to the daughters, of his daughters,who on the death of their mother are to take per stirpes of theproduce during the lives of their remaining aunts and uncles, andeventually as heirs per stirpes of the corpus.
This appears .to be a mortis causa disposition by which thetestator leaves his property to certain persons for life with anobligation to transfer it to certain other definite persons, and thisI understand to be what is known as a fidei commissum or trust,it was not, however, very seriously contended that this was not afidei commissum, but the point mainly relied on by counsel for theappellants was that the fiduciarii were entitled to alienate thetrust property for the payment of taxes, and that the alienation inquestion had been carried out on this ground, as disclosed bydocument marked X, which is dated 1879; and .we were referredto Voet, lib. 36, tit. 1, p. 63, which appears to recognize that thefiduciarii may mortgage the property for money borrowed by themfor the purpose of discharging some public tax.
July IS and
( 168 )
It seems to me, however, that Ordinance No. 11 of 1876 waspassed with a view exactly to meet such a case as this, and thatthe Ordinandb was in force at the time the mortgage of 1879 wasgranted. By that Ordinance fiduciarii may apply to the Court forleave to alienate trust property, the alienation of which is pro-hibited or in any way restricted. It is true that some sort ofapplication to the Court was made, but certainly not within theterms of the Ordinance. This Ordinance must, Jr. think, have beena specific enactment of what was deemed to be the Roman-DutchLaw, i.e., that the consent of the Court was necessary to the aliena-tion of property the alienation of which was forbidden by theinstrument creating the fidei commissum in connection with it.Burge, vol. II., p. 189, has it that “ property the subject of a fidei“ commiesum cannot be alienated, except where it is permitted“by the author or by the law or by the parties interested in it. ”In my view also the words “ by authority of the Court ” impliedlygovern all the powers of alienation alluded to in Voet, lib. 1,tit. 36, p. 63, including the power to alienate for the paymentof public taxes (Burge, vol. II., p. 189).
I think therefore that the fiduciarii could not be deemed to bemortgaging more than the life interest for which they, wereentitled, and that this and no more was what vested in thepurchaser, inasmuch as without the leave of the Court no aliena-tion of the corpus could take place under the Ordinance.
The right of action to the plaintiffs would only accrue to themon the death of their mother, which took place some four or five
v years ago, so that the possession of the defendants would be of no
avail against them.
I think, therefore, that the judgment of the District Judge wasright, and should be. affirmed and this appeal dismissed with costs.
It is clear to my mind that a valid fidei commissuvi was createdby the will of 1858, by which, on the death of the testator’sdaughters, who were in the position of fiduciarii, the estatepassed to their respective female issue per stirpes. It follows thatthe fiduciarii could not alienate more than the limited interestthey had, unless by proper proceedings they broke the fetters ofthe fidei commissum altogether. Now “ The Entail and SettlementOrdinance, 1876, ” was in operation at the date of the mortgage ofFebruary, 1879, and it applied to all existing fidei commissa.Sections 4 to 9 prescribed the procedure to be followed, andsection 6 .expressly refers to notice to all persons interested in thefidei commissum. Certainly daughters already born of the testa-tor’s daughters were persons so interested, and they ought to havebeen made parties to and heard upon the application to the Court.
It does not appear that they were, and it is therefore impossibleto agree that they were bound by the order of the Court, if orderthere was. The mortgagee and his successor in interest, thedefendant, have themselves to blame for not having the proceed-ings duly instituted and the Court’s order properly drawn up.They certainly had notice of the will, and knew they were dealingwith persons having only a qualified interest in the property.
The appeal should be dismissed.
January 17.Wendt, J.
ANNAMAL v. SAIBO LEBBE