APPUHAMY , et al., Appellant, and HOLLOWAY, Respondent

067-NLR-NLR-V-44-APPUHAMY-et-al.-Appellant-and-HOLLOWAY-Respondent.pdf


276
Appuhamy and Holloway.
1943Present : de Kretser and Wijeyewardene JJ.
APPUHAMY, et al., Appellant, and HOLLOWAY, Respondent.
135—D. C. Kandy, 455.
Kandyan deed of gift—Revocation by donor—Subsequent gift to another—Transfer by original donee’s heirs after revocation—Prior registration oftransfer—Fidei commissary gift—Doctrineof si sine liberis.
■ Where a deed of gift contained the following clause :—And after thedemise of both of us, the said P shall possess the aforesaid lands andpremises as long as possible; and in the event of his having legitimatechildren, bom of a wedded wife of his, that he may convey the premisesunto them; but in the event of his having no legitimate children, thenand in such case, he shall possess the said premises during his lifetimeand thereafter the said lands and premises shall devolve on the daughtersof K., deceased, and their respective descendants, and the said premises' shall not devolve on any other persons,—
Held, that the deed did not create a valid fidei commissum in favourof the children of P.
Appuhamy and Holloway.
277
A Kandyan deed of gift was revoked by the donor on the ground thatthe donee had failed tq give him necessary assistance. Thereupon thedonor gifted the property to A.
Subsequent to the deed of revocation the property was transferred toB by the heirs of the original donee and B registered his transfer prior tothe deed of gift to A.
Held, that B’s transfer did not prevail over the gift to A by reason ofprior registration.
^ PPEAL from a judgment of the District Judge of Kandy.
The facts appear from the headnote and the argument.
N. E. Weerasooria, K.C. (with him C. E. S. Pereira and S. R. Wijaya-tilake), for defendants, appellants.—The deed of gift P 2 was executedby the donor with the object of securing succour and assistance from thedonee. However, as the latter predeceased him, he by 2 D 2 of 1904revoked the gift referred to, the object of the gift being defeated by thedonee’s demise.
[de Kretser J.—Could the donor have revoked P 2 in view of theexpress renunciation that the donors “their heirs, executors, adminis-trators shall not at any time dispute or contest the donation ?]
That clause could not make the deed irrevocable so long as the condi-tions of the grant had not been fulfilled. See Hay ley on Sinhalese Lawsand Customs p. 307 and p. 312 and Dharmalingam, v. Kumarihamy
After the revocation of P 2 by 2 D 2 the donor executed a gift to Punchi-rala subject to a fidei commissum in favour of the second to fifth defend-ants—his legitimate children. P 4 could not have conveyed anyinterest in the share which Mudalihamy gifted to Kirihamy as in 1916when P 4 was executed, the deed of gift P 2 had already been revoked.
The fact that P 4 is registered and the revocation 2 D 2 is not is im-material. Prior to. the Kandyan Law Declaration and AmendingOrdinance of 1938 it was not necessary even to execute a deed of revoca-tion and therefore no question of registration can arise. The effectof Ordinance No. 7 of 1840 in this respect was considered in
C., Kandy, 23,886 * in which case Carr J. held that a notariallyexecuted instrument was necessary, but this decision was not followedin D- C., Kandy, 23,043 1 and dissented from in D. C., Badulla,19J60 * where it was held that resumption of the land by thedonor was sufficient to annul a deed of gift. The only requisitefor a valid revocation is intention and some evidence that the intentionhas been carried out. See Hayley p. 313. So that under the KandyanLaw if a formal revocation was not required the fact that the deed ofrevocation was not registered is irrelevant. Therefore the plaintiffcannot under P 4 claim Mudalihamy’s rights.
A. Rajapakse for plaintiff, respondent.—The competing deeds areplaintiff’s deed P 4 and defendant’s deeds 2 D 2 and 2 D 1. P 4 gets priorityby registration, and 2 D 2 and 2 D 1 are void. In other words if 2 D 2 and2 D 1 were never executed plaintiff would get a declaration of title on hisdeeds. As soon as the defendants produce 2 D 2 land 2 D 1 with a view to
1192a) 27 N. L. R: g.3 (1252) Austin 145.
(1851) Austin 159.* (1874) 3 Grenier 24.
•i/B
Appuhamy and Holloway.
destroying or taking away Kirihamy’s title on P 2, the doctrine of registra-tion steps in and destroys or declares void or gets out of the way theattempted destroyers, viz., 2 D 2 and 2 D 1. Vide de Silva v. Wagapadi-gedera1; James v. Carolis' and. Kobbekaduwa v. General Rubber Co. ‘
[Wijeyewardene J~If the revocation was subsequent to P 4 will the -plaintiff succeed as against the defendants ?]—No in that case thedefendants will succeed as no question of priority -tfill arise then.The result may be anomalous but such anomalies arise as a result ofthe doctrine of registration, e.g., the case of a subsequent transferee froman intestate who may claim priority by registration as against an earliertransferee from an executor or administrator where the probate or letterswere earlier and had not been registered. See per Sampayo J. in Jamesv. Carolis*; [also Fonseka v. Fernando0].
The fact that P 2 was a Kandyan deed of gift which was revocableand that Kirihamy’s title was defeasible does not make any difference.
. The instrument that is declared void need not be a deed conveyingtitle: it may be a deed of release, surrender, annulment or a grant ofadministration or a judgment of a Court. See sections 8 and 6 of Cap. 101.
The idea, underlying registration is the protection of the innocentpurchaser for. value. James v. Carolis {supra). It does not re-vest titleor establish fights to land : it merely declares the earlier unregistereddeed void and in that way affects the devolution of rights. Mohamed Aliv. Weerasqoriya°.
That a gift of immovable property by a deed can be revoked without,another deed is a startling proposition.,
Quite apart from registration, the defendant’s case must fail becausethe deed 2 D 1 does not create a valid fidei commissum in their favour.2 D 1 is subject to two conditions: — (1) if Punchirala has legitimate.children, he may convey the lands to them ; that is, he has a discretionto convey or not, (2) if he, has no legitimate children, upon, his death thelands shall devolve on third parties. There is a valid fidei comrhissumin condition No. (2) only ; but that is a conditional fidei comrhissum.In this case Punchirala, had legitimate children, and persumably usinghis discretion he did not convey to his children, but instead conveyedto the plaintiff.*.
N. E., Weerasooria, K.C. (in reply).—The principle enunciated in thedecisions 'cited by my learned friend does not apply to the facts'of thiscase. The effect of the revocation was to completely destroy the deed ofgift P .2. Here, there is no question of competing deeds as the deed of gift,has been effectively annulled and nothing could have passed. Thegrantor at the time of the execution of P 4 had no title whatsoever toMudalihamy.’s rights.
2 D I' creates a fidei commissum in favour of the legitimate childrenof the, donee. It sets out on whom the property would devolve if thedonee died Without issue, and in the circumstances of this case as thedonee left children the doctrine of si sine liberis would apply and theproperty would .devolve on the legitimate children.
1 30 N. L. B. 317.*17 N. L. B. 76.
’-17 N. L. B. 76.,*1SN. L. R. 491.
• 3 32 if. .£. B. 353.* 4 0. A. O. 30. ’
279
WUEYEWARDENE J.—Appuhamy and Holloway.
March 8, 1943. Wijeyewardene J.—
This is an action for. partition. A dispute has arisen between theplaintiff and the second to fourth defendants regarding the half shareclaimed by the plaintiff.
It is admitted by both the parties that Malhamy Vedarala, the originalowner of the property, gifted it by P 1 of 1867 to his two children, Mudali-hamy and Kaluhamy. Mudalihamy and Kaluhamy gifted the propertyto Kirihamy, the son of Kaluhamy, by P 2 of 1897. On the death ofKirihamy the administratrix of his intestate estate executed a conveyanceP 3 of 1903 in favour of Punchirala and Dingiri Amma, the two childrenof Kirihamy. The plaintiff claims Punchirala’s half share by right ofpurchase under deed P 4 of 1916 executed by Punchir&la and registeredon October 31, 1916. The contesting defendants have proved thatMudalihamy revoked the deed of gift P 2 by 2 D 2 of September 7,1904, afterthe death of Kirihamy so far as his own share of the land was concernedand that Mudalihamy gifted that share by 2 D 1 of September 7, 1904.to Punchirala subject to certain conditions. Punchirala died about1939 leaving as his legitimate children the 2nd, 3rd, and 4th defendants.The various questions that have to be considered in this case are—
(L) Had Mudalihamy the right to revoke the deed P 2 ?
(ii.) What were the rights of the contesting defendants under deed2 D i ?
(iii.) Are the rights of the contesting defendants under 2 D 1 avoidedby the due registration of P 4 and the non-registration of 2 D 1and 2 D 2 ?.
The deed of gift P 1 was executed by Mudalihamy and Kaluhamy“with the object of securing all necessary succour and assistance”for them and Kiri Etana, the wife of Kaluhamy, during their lifetime.Mudalihamy executed deed 2 D 2 revoking his gift as he “ received noassistance or Succour The deed P 1 could, therefore, have been revokedand the declaratory clause in P 1 that the donors or “ their heirs, executors,administrators shall not at any time dispute or contest the donation ”cannot have the effect of making the deed irrevocable so long as theconditions of the gift have not been fulfilled.
It is urged on behalf of the contesting defendants that the deed 2D 1created a fidei commissum in their favour. The relevant clause in thedeed reads as follows : —
“And after the demise of both of Us (namely, Mudalihamy and his_ sister-in-law, Kiri Etana), the said Punchirala shall possess the aforesaidlands and premises as long as possible and in the event of his havinglegitimate children, bom of a wedded wife of his, that he may conveythe said premises unto them ; but in the event of his having no legiti-mate children, then and in such case, he shall possess the said premisesduring his lifetime ; and thereafter the said lands and premises' shalldevolve on Madanwala Vidanalagegedera Ukku Menika and – PunchiMenika, the daughters of Kaluhamy Arachchi, deceased, who was thebrother of mine the said Mudalihamy, and their respective descendants,and the said premises shall not devolve on any other person.”
380WIJEYEWARDENE J.—Appuhamy and Holloway.
That clause does not appear to me to designate with certainty thepersons on whom the'property should devolve on the death of Punchiralaleaving legitimate children. The, donor has, no doubt, stated that,if Punchirala died without legitimate children, the property shouldgo to Ukku Menika and Punch! Menika. Does it therefore follow as anecessary consequence that, if Punchirala had legitimate children, theproperty should devolve on the legitimate children of Punchirala underthe bond of fidei commussum ? I do not think such an inference could bedrawn in this case, as the children of Punchirala were not the descendantsof Mudalihamy and no burden was imposed on them.
The whole doctrine of si sine liberis is discussed by Roman-Dutch Lawjurists in connection with the testamentary fidei commissa only (Aha-rmadu Lebbe v. Sularigamma.1 Even where there is such an expressprovision in a testamentary fidei commissum, the better opinion of thejurists appears to be that a fidei commissum cannot be implied in favourof the children in the absence of special circumstances (see Lee on Roman-Dutch Law, 1915 Edition, p. 317). In his introduction to the Jurispru-dence of Holland (Lee’s Translation, Vol. I, page 153) Grotius expresseshis views thus—
If any one says, “I leave my property to John, and in case Johndies without children I desire that it shall go to Paul ”, in such case it isunderstood that although John dies before the testator, his childrenshall be preferred before Paul; but whether John succeeding as heir isunderstood to be burdened with the duty of letting the property go to hischildren is doubted. However, the generally accepted view is thatthis is not so unless the children were descendants of the testator orunless the children were found to be themselves charged with furthergift over, or unless the last will contained some other indications fromwhich a contrary intention might be inferred; (Grotius 2.205).
The same view is expressed thus by Van Leeuwen in his Commentaries(Kotze’s Translation, Vol. I, page 383):—
“ If children are mentioned under a condition, as if I said . . . . ”I institute John my heir and, if he happen to die without children,Peter shall be my heir in his stead ; it is clearly understood that, on thepredecease of John, his children are preferred to Peter.' But are thesechildren admitted to a fidei commissary inheritance, and is John,having enjoyed the said inheritance, bound at his death to let itdevolve upon his children ? A distinction must be drawn thatunder the testator’s children, grandchildren are so held to be included,if from the circumstances it appears that such was the intention.
But as regards the collateral line, or other strange heirs, this does nottake place, because a condition has of itself no effect, nor can it becalled an actual part of the testator’s intention, but is only an additionsubject to the intention, in which casie the children mentioned traderthe condition are not considered further or otherwise than anythingelse made subject to a condition; as if I said, I appoint John myheir, if at the time of my death he possesses a certain house or horse,it would be absurd to say that the inheritance must follow the house-or horse.”
c. W. R. 208.
WUEYEWARDENE J.—Appuhamy and Holloway.
281
I would, therefore, hold that the contesting defendants did not acquireany fidei commissary rights in the property by virtue of 2 D 1. The deedP 4 was for that reason effectual to convey an absolute right to a halfshare of the property to the plaintiff and the contesting defendants canmake no claim to that share.
The decision I have reached on the question of the rights of Punchiralaand his children under 2 D 2 renders it unnecessary for me to decide thethird point stated by me earlier. But, as it raises an important questionof law and was fully argued before us, I would state my opinion upon it.
The plaintiff’s claim is based on the deed of gift P 2 of 1897 by Mudali-hamy and the deed of transfer P 4 of 1916 by Punchirala registered in1916. The contesting defendants state that Mudalihamy revoked P2 in1904 and have produced the deed of revocation 2D2 as evidence of suchrevocation. They base their claim on that deed and the deed of Gift 2D1of 1904 executed by Mudalihamy. The deeds 2D1 and 2D2 are notregistered.
If the provisions of section 7 of the Registration of Documents Ordinanceapply to the competing deeds, then clearly a claim based on P 4 ought toprevail over an adverse claim based on 2 D 1, even if 2 D 1 created fideicommissary rights in favour of the contesting defendants, in view of theregistration of P4 which is a “subsequent instrument” for “valuableconsideration ”, But do the provisions of section 7 apply in this case ?When Mudalihamy revoked P 2 in 1904, that deed ceased to have anylegal effect That result was brought about by the mere fact of revoca-tion and not by reason of any fact of registration. The position, there-fore, that has to be considered in this case is different from that existingin the cases which usually arise for consideration under section 7 of theRegistration of Documents Ordinance. The cases generally consideredare of the following type—A sells or gifts property to B in 1897 and Bsells the property to C by a registered deed in 1916. The title of C iscontested by X claiming on an unregistered deed executed by A in 1904.In such a case C gets better title (vide James v. Carolis ’). But there isclearly a difference between that case and the present case. In that case,the execution of the deed by A in favour of X in 1904 did not destroy oraffect in any way the title conveyed to B and, in fact, X got no titleunder that deed at the time of its execution. B still had title to the landbut he ran the risk of losing his title if he permitted X to register X’sdeed before him and thus gain priority under section 7. In the presentcase, however, the deeds 2 D 1 and 2 D 2 effectually pushed P 2 out of theirway in 1904 the moment they were executed even if P2 was registeredat the time. The position becomes still clearer if we accept as correctthe law laid down in (1874) 3 Grenier 24 and hold that, before theKandyan Law Declaration and Amendment Ordinance, No. 39 of 1938,a mere resumption of the land* by the donor was sufficient to annul. a deed of gift and it was not necessary to execute a deed of revocation inaccordance with the provisions of Ordinance No. 7 of 1840. In such acase there would not be a deed which could be registered- The positionthat arises as a result of the revocation of a Kandyan deed of gift appearsto be somewhat analogous to the position created by a partition decree
» 17 N. L. B. 76 at 79.
282'
Rajadurai and Fonseka.
and considered in Bernard v. Fernando In that case, a co-owner sold hisundivided rights' after a land had been partitioned under Ordinance No. 10of 1863 and the purchaser having registered his conveyance claimedpriority over all persons basing their rights on the unregistered partitiondecree. This court held that the question of title had to be consideredindependently of the Law of Registration as the entering of the partitiondecree wiped out all previous rights, In the present case when Mudali-haifty executed the deed of revocation 2 D 2 in 1904, the very foundation. of the title of Punchirala based on P 2 was destroyed and Punchirala had,therefore, no right based .on that' deed which he could transmit to avendee and enable such vendee to set up title against those claimingadverse interests under D 2 and 2 D1. I think that the title, if any,•of the contesting defendants is not defeated by the prior, registration of P4.
As I hold that under the deed 2 D 1, no fidei commissary rights devolvedon the contesting defendants, I dismiss the appeal with costs.
de Kretser J.—I agree.
Appeal dismissed.