HOWARD C.J.—Appuhamy and Mathes.
1944Present: Howard C.J. and de Kretser J.APPUHAMY, Appellant, and MATHES, Respondent.
86—D. C. Negombo, 11,886.
Fidei commissum—Reservation of life-interest—Prohibition against alienation—Words of grant—Doubt as to intention—Free inheritance.
Where a deed of gift contained the following clauses: —
And it is hereby; directed that the said three donees shall not sell,
mortgage, gift, exchange,leasefora period exceeding 15years
at atime oralienate inany manner whatsoeverthesaid
properties and on their deaths their children are entitledto deal with them as they please.
Thereforeall theright, title,claim and interest ofthesaid
donors in and to the said properties hereby gifted shall vest inthe said three donees and they may possess the same subjectto the said life-interest and to the said condition and aftertheir deaths their heirs, executors, administrators, andassigns maydealwiththemaa.they please for whichfull
authority is hereby given,-—
Held, that the deed did not create a valid fidei commissum.
A PPEAB from a judgment of the District Judge of Negombo.
H.V.Perera, K.C.(withhimCyril E. S. Perera), for the second
N.E.Weerasooria,K.C.(with him E.B. Wikremanayakeand
H. Wanigatunge), for the plaintiff, respondent.
Gut. adv. vult.
May 26. 1944. Howard C.J.—
This is an appeal by the second defendant from a judgment of theDistrict Judge, Negombo, allocating to the plaintiff and the first defendantin a partition action each an undivided one-third share of the old house,one-third share of the land and the plantations and one-third share of thewell. The second defendant, the appellant, was awarded one-thirdshare of the land, one-third share of the plantation and one-third shareof the old house, all being subject to. the fiduciary rights of his mother,the first defendant. The plaintiff was awarded his costg ofcontest.
The original owners of the land—Ana Silva and Theodora Silva—by a deed of gift dated September 12, 1909 (P 1) donated the land indisqute to the three minor children of one of the donees Theodora,namely, Eugina Silva, the first defendant, Isabella Silva and Miguel Silva.After the death of Miguel, the first defendant, Isabella and Theodora,one of the original donors, by deed P 2 of January 26, 1918, sold theone-third share they had inherited on the death of Miguel to Peter Singhoand Manuel Singho. By deed P -3 of February 6, 1920, Manuel Singhosold his one-sixth share to Peter Singho. This one-third share was sold
HOWABD C.J.—Appuhamy and Mathes.
in execution in case No. 8,969 D. C. Negombo, and the plaintiff, whohad been the mortgagee of the property and pat his bond in suit, becamethe purchaser. On this title the plaintiff brought this action forpartition.
0 be- case for the second defendant was based on the deed of gift P 1,and it was contended on his behalf that this deed created a fidei com-missum in his favour. That being so, the share of Miguel on the latter’sdeath devolved on the remaining donees under P 1, namely, his sisters,the first defendant and Isabella, and subsequently, on Isabella’s death,Unmarried and issueless, her interests passed to the first defendant. The. first defendant being the fiduciary heir her interests are subject to thefidei commissum in favour of the second defendant who wdl be entitledto the property on the death of the first defendant.
The learned Judge has held in favour of the second defendant so far‘as'the creation of a fidei commissum in her favour is concerned. In hisjudgment he says that in his opinion P 1 creates a valid fidei commissumas there is a clear restraint on alienation by the donees and a clear indica-tion of the persons to be benefited. The next passage in the judgmentis as follows : —
But as the fiduciaries had entered upon their respective sharesof inheritance a separation of interests had taken place which preventsthe operation of “ Jus accrescendi ” in favour of the survivors whenthe fiduciary Miguel died. Therefore the vendors on P 2 had theright to dispose of the J share they inherited from Miguel free fromany entail and the purchasers on that deed—P 2—got absolute titleto Then the plaintiff is entitled to £ share of the land and of thebuildings that stood on it when Miguel died.”
It is contended by Mr. Perera on behalf of the appellant that thepassage I have cited from the judgment is not a correct exposition of thelaw and that whatever title the plaintiff obtained is subject to the fideicommissum in favour of the second defendant. The most that the plaintiffcan claim is an undivided one-third of the land during the lifetime of the.first defendant. On behalf of the plaintiff it has been contended that thelearned District Judge was wrong in holding that P 1 created a fideicommissum'. The passage in P 1 oil which reliance is placed by theappellant occurs after the reservation of a life interest in favour of thedonees and is as follows : —
“ And it is hereby directed that the said three donees—-JayasingheArachehy Eugina Silva Hamine, Jayasinghe Arachehige Isabela SilvaHamine and Jayasinghe Arachehige Migel Silva Appuhamy shall not sell,mortgage, gift, exchange, lease for a period exceeding fifteen years at atime, lease before the expiry of an existing lease or alienate in anymanner whatsoever the said properties and on their deaths their• children are entitled to deal with the same as they please.”
The next clause in P 1 is worded as follows: —
” Therefore all the right, title, claim and interest of the said donorsin and to the said properties, hereby gifted shall vest in the said three
HOWARD C.J.—Appuhamy and Mathes.
donees Jayasinghe Arachchy Bugina Silva BE amine, JayasingheArachchige Isabela Silva Hamine and Jayasinghe Arachehige MigelSilva Appuhamy and they may possess the same subject to the saidlife-interest and to the said condition and after their deaths their heirs,
. executors, administrators and assigns may deal with the same as theyplease for which the full authority is hereby given.”
In support of his contention that P I creates a valid fidei commtssumMr. Perera has maintained as a principle of English law that if there betwo clauses or parts of a deed repugnant one to the other, the first partshall be received and the latter rejected. In support of this principlehe has referred us to the Second Edition of Norton ou Deeds, P 89, andHalsbury’s Laws of England, vol. 10, p. 280, para. 348. It is true thatauthority for this proposition is to be found in these text-books. On theother hand it is also stated with reference to this principle that is a matterof doubt whether there is much authority for the rule and at any rateit is one only applied in the last resort if a Judge can find nothing else toassist him in determining the question- Numerous cases are cited inNorton to demonstrate that the rule has been followed. But the authorstates that in most of the eases the true reason for rejecting the latterwords was that they were inconsistent with the general scope of thedeed. The rule is also subordinate to the general principle that theintention must be ascertained from the entire contents of the deed.In this connection I cannot do better than cite the remarks of Wilde C.J.,in Walker v. Giles1 when he said—
*' As the different parts of the deed are inconsistent with each other,the question is, to which part effect ought to be given. There is nodoubt that, applying the approved rules of construction to this instru-ment, effect ought to be given to that part which is calculated tocarry into effect the real intention, and that part which would defeatit should be rejected; and so construing the deed, the Court is ofopinion that the latter part, importing a demise cannot have thateffect, without defeating the intention of the parties.”
Is it possible to derive from the entire contents of P 1 the intention of thedonors ? The words of grant indicate that the donors intended that thedonees could do anything they liked with the property. The use of thewords “ their heirs, executors, administrators and assigns ” clearlyindicates this intention. But the donors have made this grant subjectto the ‘‘said condition ”. It is not absolutely clear whether the “ saidcondition ” refers to the direction against alienation contained in theprevious clause. Whether it does so or not, the words of grant arequite inconsistent with the words in the ” direction ”. It is, therefore,difficult to discover what the intention of the donors or the notary werein using these words. The question is, what was in the mind of thedonors at the time they executed the deed. Had they any clear anddefinite ideas as to what they were doing ? It is impossible to treat thewords, ‘‘ heirs, executors, administrators and assigns ” as mere surplusageor notarial flourish. These words must be given the effect they wereintended to have. In this connection I would invite attention to the
1 IS L. J. C. P. 323.
HOWARD C.J.—Appuhamy and Mathes.
judgment of Soertsz J., in Ama.Tatu.nga v. Alwis ’. It seems to me clear,as in P. Swaris Parera v. D. Christina Fernando and others 2, that thewords of grant and the direction are so irreconcilable that it is impossibleto say what the intention of the donors was. Are we, in these circum-stances, to apply the principle for which Mr. Perera has contended ?
I think not, because this principle is only to be employed as a last resort.
I -find that I have at my command another principle to assist me indetermining the question. It is a principle of Roman-Dutch law thatwhere there is any doubt it is presumed that the direct substitution isintended—vide McGregor’s translation of Voet, Book XXJCVT, titles
and U., p 9. This doctrine has received frequent illustration in theSouth African Courts. ‘: Where it is matter of doubt whether a fideicommissum has been imposed or not, that construction should ratherbe adopted which will give the legatee or heir the property unburdened ”,per ie Villiers C.J., in Cruse v. Pretorius' Executors, 9b, 124. In myopinion the learned Judge was wrong in holding there was a valid fideicom missum.
Mr. Perera has also contended that the respondent is precluded fromraising on appeal a question of the validity of the fidei commissum on-theground that no objections with regard to this part of the Judge’s findinghave been served on the appellant. This contention is without substance.Section 772 (1) of the Civil Procedure Code is worded as follows: —
“ Any respondent, though he may not have appealed against anypart of the decree, may, upon the hearing, not only support the decreeon any of the grounds decided against him in the Court below, buttake any objection to the decree which he could have taken by way ofappeal, provided he has given to the appellant or his proctor sevendays' notice in writing of such objection.”
It is obvious that the plaintiff can support the decree of the learnedJudge, on the ground that P 1 does not create o fidei commissum—aground decided against him in the District Court—without filing anobjection in the form prescribed in section 758 (e).
For the reasons I have given the appeal is dismissed with costs. Theplaintiff must be paid by the second defendant the costs of contestin the District Court and the costs of appeal. Other costs will be bornepro rata. The order made by the District Judge with regard to partitionis nor in order. It is set aside and it is directed that the property shouldbe partitioned in the following shares: —
Plaintiff to J of land, plantations, old house and compensation forhalf of 11 buildings;
First defendant to ■§ of land, plantations, old house and compensationfor half of 11 buildings.
be Kretser J.—I agree.
» 40 N. L. R. 363.
% 6 Leader Law Rep. 12.
APPUHAMY, Appellant , and MATHES, Respondent