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Present: Mr. Justice Middleton and Mr. Justice Wood Benton.AIOHY KANNU et al. v. NAGAMMA et al.
D. 0., Colombo, 21,870.
Action quia timet—When maintainable—Conveyance of corpus by person entitledonly to a life-interest.1
Where a person who is entitled to the life-interest only of a property,executes a deed conveying the corpus, those in whom the dominium is vestedare entitled to maintain an action to have such conveyance set aside to theextent of their interests.
HE material facts are stated in the following judgment (2ndApril, 1906) of the District Judge (F. R. Dias, Esq.): —
“ The facts material to this action are these. One SarawanaChetty and his wife Nagamma (the first defendant), who weremarried in community of property, made a joint last will in 1862,under which the testator and one Muttu Carpen Chetty wereappointed executors. Their property consisted of several 'housesin New Bazaar, Silversmith Btreet and lane, and Grandpass, andan estate called Hunumullekurunduwatta in the Negombo District.The will made provision for several contingencies, and. inter alia,it provided that if the husband died first the widow should beentitled, by way of an annuity during her natural life, to all.the rents,income, and produce of the houses, lands, and gardens at NewBazaar, but not of any of the other properties. In the event ofboth of them dying without any issue all the properties were to goto the children of the aforesaid Muttu Carpen Chetty as the lawfulheirs of the testator and testatrix. The testator died in 1867without issue, and the will was duly proved in the following year bythe executor Muttu Carpen, who administered the estate till hisdeath in 1896. The widow (first- defendant) accepted benefitsunder the will, and adiated the same,, and is still alive and in theenjoyment of the New Bazaar properties specially allocated to her.The will made no provision for the disposal of the rents and profitsof the other properties between the death of the testator and thedeath of his widow, but the Supreme Court, in interpreting thiswill in Nagamma v. Sathappa Chetty (1), held that we' must regardit as a case of intestacy in respect of those other properties, so thatthe widow would be entitled to take , half the income of all of themduring her natural life. That position is now conceded by theplaintiffs, who were the opponents in the other case, and the widowadmits the rights of the plaintiffs to the other half. Muttu Carpen
(1) (1903) 9 N. L. R. 246.
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Chatty left four children, viz., Toondy Chetty, Kalramma, Weera- ' 1906.thal, and Suppramaniam (the eighth plaintiff). Hie three first-27.
named are all dead now, and the first, third, fourth, fifth, sixth,seventh, and ninth plaintiffs are their children. These are there-fore the parties who in terms of the will would succeed to the wholeestate on the death of the widow.
“ The trouble that has now arisen is this. On the 9th May, 1904,the widow, as sole owner, purported to lease the entirety of Hunu-mullekurunduwatta for five years to the third and fourth defendants,and on the 31st of the same month she, by a deed No. 5,650 (P2),conveyed the whole of that property by way of gift to her nephew,the second defendant, and by another deed assigned her rightsunder the lease also to him.
“ The plaintiffs aver that in February, 1905, they entered intoa verbal agreement with the widow (first defendant), wherebyfor the sake of convenience they were to enjoy the income of theColombo properties detailed in Schedule A during the lifetime ofthe widow, as and for their half-share of the intestacy,.and the widowwas to enjoy during her life the whole of the Negombo estate de-scribed in Schedule B for her half-share. They complain that thefirst defendant and the second defendant, acting in collusion andbad faith, and in contravention of the plaintiff’s rights, executedthe deed P2, and pray that the first and second defendants be com-pelled to execute a deed embodying the terms of the alleged verbalagreement as to possession of the several lands, and that the deedP2 be declared null and void except as regards half the incomeduring the first defendant’s life.
r‘ It Seems to me that the plaintiffs are anticipating things in toogreat a hurry, and that none of the averments in their plaint affordsa ground for the relief they seek. The first prayer is entirely outof the question, as they are seeking to enforce an alleged parolagreement with regard to lands.
“ As for the other part of the case, I fail to see what injury orfraud the first defendant or second defendant has committed toentitle the plaintiffs to have this deed rescinded. It is not pre-tended for a moment that the first defendant was in February,
or at anytime, the absolute owner of the estate in question,and her conveyance m favour of the second defendant could notpossibly pass to him a greater interest than she herself had. It istrue that a layman reading this deed might at the first blush supposethat it was an out and out conveyance by an absolute owner, butthat is no reason why a Court should interfere and set it aside. Thelegal effect of this deed is to convey no more than all the right.
title, end interest (present and future) of the donor to the secondJuly 27. defendant, and it is impossible at the present moment to say what
that interest will be by the time the first defendant dies. As has
been argued by Mr. Walter Pereira, who appeared for' the defen-dants, it was not a mere life estate that was conveyed to the seconddefendant. That was the least extent of it, but it may amountto something more, as it is not an impossibility for the widow to beyet invested with dominium by a failure of the fidei commissariibefore her own death.
" In my opinion the plaint disploses no cause of action againstany of the defendants, and it must be dismissed with costs.”
The plaintiffs appealed.
Sampayo, K.G. (with him Bawd), for the appellants.—Thelearned District Judge’s view, that a dominium in the property inquestion was vested in the surviving testatrix Nagamma subject toa fidei commissum in favour of the appellants, and that thereforeher deed of gift to the second defendant is to that extent valid, iserroneous. Under the joint will the property vested in the ap-pellants on the death of the testator Sarawana Chetty, and all thatwas decided in the previous case, Nagamma v. Sathappa Chetty (1),was that there was an intestacy with regard to rents' and profits untilNagamma’s. death. See the case of Criellaart v. Van Valen, reportedat page 168 of MacGregor’s translation of Voet’s title on Fidei com-mi88a. This being so, her deed of gift, in which she declares herselfto be owner of the property and proposes to transfer it to seconddefendant, is an act prejudicial to the appellants, and constitutes awrong for the prevention of which an action may be brought. Evenif this is in the nature of a quia timet action, the circumstances bringit within the exceptions mentioned in Fernando v. Silva (2). Thetendency of our Courts at present is not to insist on a strict cause ofaction, as in the days of technical pleadings, and the definition of“ cause, of action ” in section 5 of the Civil Procedure Code is wideenough to embrace the relief sought for in this case. See also KadijaTJmma v. Marikar Hadjiar (3). Moreover, the appellants’ rightto possession was actually interfered with, as, but for the arrange-ment as to possession between the parties, the appellants would beentitled to be in possession and take half-share 6'f the rents andprofits. It is submitted that the action was rightly brought.
Walter Pereira, K.C., S.-G., for respondent.—It is submitted thatthis is a quia timet action of the worst type. The bare act of 1
(1) (1903) 9 N. L. R. 246.(2) (1873) 1 S. C. C. 27.
(3) (1901) 1 -Browne 417.
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alienation by the firet defendant is no invasion at all of the rights,whatever they may be, of the plaintiffs. The remarks of Sir JohnBudd Phefjr in Fernando v. Bilva (1) apply. There it was held that aquia timet action could not be supported, unless there was prospectof evidence available at the time of action being lost by delay untila cause of action arose. In the present case there was no suchfear at all, as the whole case depended upon no more than theconstruction of a document. Then it is dear that, under the will,-the plaintiffs were to become entitled to the property after thedeath of both the testator and testatrix. The words used are:
“ In the event of us both dying without issue.” • Until then thecorpus remained in Nagamma and the heirs of her husband. Shehad thus title to at least one-half, which would be absolute and passm her heirs if there were no children of Sarawana Chetty living ather death. So, she had a substantial interest to convey, and thedeed is good to the extent of that interest.
Sampayo, K.C., in reply.
27th July, 1906. Middleton J.—
On the hearing of the appeal in Nagamma v. Sathappa Chetty (2) thequestion to be decided was whether there was an intestacy as to therents and profits of a portion of the corpus of the estate, and theCourt held that there was. The question as to the vesting of thecorpus was not raised or argued.
I do not remember that my attention in that case was called toCriellaart v. Van Valen, 1740 a.d., reported at page 168 of . MacGregor’s translation of Voet 36, 1 and 2. Looking at thatcase and considering the wording of the will I concur in theconclusion arrived at by my brother that .the first defendant takesno property or interest in any part of the corpus of the immovableestate. The first defendant, however, denies the plaintiff’s rightto be deemed the owners of the corpus of the:estate at Negombo,and assumes that title to herself and purports to convey it to thesecond defendant. It is true she has no right to do so, and heraction in doing it may be a mere nullity; at the same time, if it isto be permitted to pass unchallenged by the plaintiffs, it willinevitably lead to costly litigation in the future.
I am of opinion therefore that the plaintiffs should have an opportu-nity of proving that this deed interferes with their present enjoymentof the property which would, I take it, give them a cause ofaction.
(2) (1903) 9 N, L. R. 246.
U) (1878) 1 S. G. C. 27.
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I agree therefore that the judgment should be set aside on thedeclaration of title set out by my brother and that the case shouldbe sent back for trial.
The respondent must pay the costs of the appellants in the Courtbelow, and in this Court up to date.
Wood Renton J.—
The material facts in this case are these:—One Sarawana Chettyand his wife, Nagamma, who is the first defendant-respondent,made a joint will on 2nd July, 1862. The will provided that ifSarawana Chetty should die first, Nagamma should be entitled byway of annuity to the income of certain lands, houses, ‘and gardensin Colombo, “ but not from any other lands, houses, and gardens;"should also retain in the possession all the jewels, furniture andapparels which " she now uses," and should occupy half the .amilyhouse and premises during her life. The joint estate containedalso land situated in the District of Negombo. But as to whetheror not the widow was to have any interest in the rents and profitsof this immovable property the will was silent. It dealt next withthe contingency of Sarawana Chetty surviving his wife. In thatcase he was to be “ the sole and universal heir of all and singularthe movable and immovable properties left behind.” Then followprovisions which must be set out in extenso:—
“ If the said Sarawana Chetty should procreate any child orchildren either by the said Nagamma, or by another marriageaccording to our customs, rites, and ceremonies, then such childor children shall be the sole and universal heirs or heiresses to ourestate. That in the event of us both dying without any issue allour properties shall go to the children of Muttu Caruppen Chettyas our lawful heirs. . But under .any circumstances after our deathour said heirs or issues or their heirs or issues shall not sell, mortgage,or alienate any of the lands or immovable properties belonging toour estate, but they shall be held and possessed for ten generationsunder the said restrictions and in the form of fidei commissum.”
In order to clear the ground at once for a consideration of the realpoint at issue in the present appeal, I may sav that, in my opinion,(i.) it is only issue of Sarawana Chetty by Nagamma or by anothermarriage who are contemplated by the words above cited, “ inthe event of us both dying without issue; " no right of succession isgiven to any issue of Nagamma by a second marriage; (ii.) a fideicommissum is created not only as regards the heirs of Muttu CaruppenChetty, but as regards the issue, if any, of Sarawana Chetty byNagamma or by another wife.
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Sarawana Chetty died in 1867 without leaving any such issue;the joint will was duly proved, and his widow Nagamma adiatedthe interests in the inheritance which it conferred upon her. Aftersome time, however, a question arose as to the position under thewill of the rents and profits of the Negombo land. The SupremeCourt held [D. C., Colombo, No. 13,004 (1)] that, as to these, Sara-wana Chetty had died intestate, and that consequently his widowwas entitled to a moiety of them under the common law of succession.The present appellants are the heirs of Muttu Caruppen Chetty.They alleged that in February, 1904, subsequently to the decisionjust mentioned of the Supreme Court, it was orally agreed betweenthemselves and Nagamma that as a matter of convenience theyshould during her lifetime enjoy the entirety of the rents and pro-fits of the Colombo properties, leaving to her the entirety of therents and profits of the Negombo land. Nagamma denies theexistence of any such agreement. No evidence on the point wastaken in the Court below. It is admitted, however, in the answerthat the appellants did enter on the possession of the Colomboproperties on or about the date of the alleged agreement, and thatNagamma,. on her side was in similar possession of the land in theDistrict of Negombo. On 9th February, 1904, Nagamma purportedto lease the entirety of this land for a period of five years to thethird and fourth defendants-appellants (P3). On the 31st of Mayin the same year, by deed No. 5,650 (P2), she conveyed as ownerand proprietor the whole of the Negombo property to her nephew,the second defendant-respondent, by way of gift. The appellantsnow seek, by proceedings in the nature of a quia timet action, tohave (i.) the alleged oral agreement of February, 1904, specificallyenforced by a decree directing the first and second defendants-respondents to execute a deed embodying. its terms; (ii.) the deedof 31st May, 1904, cancelled, or at least rectified so as to bring, itinto accordance with the provisions of the agreement above-men-tioned; (iii.) the first defendant-respondent restrained by injunctionfrom disposing of the property in question.
At the hearing of the appeal two points were argued, with whichin the view that I take of this case it is not necessary to deal indetail. It w^s argued for the respondents—and the learned Dis-trict Judge has taken the same view—first, that the appellants arein no way prejudiced by the disposition of the property made byNagamma, the first defendant-respondent, and that therefore, onthe principle that quia timet actions should be discouraged, nopresent interference on the part of the Court was'necessary for their
(1) (1903) 9 N. L. R. 246.
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protection, Fernando v. Silva (1); and secondly ^that althoughthe terms of Nagamma’B conveyance to the second defendant-respondent might be too wide in describing her as “ owner andproprietor ’’ of the Negombo land, Bhe had yet, as fiduciarius underthe joint will, a real, though restricted, dominium in the property(Voet, 7, 1, 13), and was entitled to transfer her right, title, andinterest therein for what it was worth. After a careful considerationof the terms of the joint will it appears to me that Nagamma tookno. interest thereunder in any part of the corpus of the property.She gets the specified rents and profits and nothing more; theobject of her husband—an object in which she must be taken tohave acquiesced by subsequent adiation—seems to have been tosecure to her a life-interest only. Even the corpus out of whichthat interest is to be derived is strictly defined. It consists ofspecified “ lands, houses, and gardens, but not of tiny other lands,houses, or gardens.” She is to occupy “only a half part of thehouse and premises in which we now live and reside.” If her hus-band survive her, he is to be the sole and universal heir of the wholeestate. Her children by any other husband take no interest in it.It appears to me that on the death of Sarawana Chatty withoutissue by Nagamma or by any other wife, or, at any rate, imme-diately on her acceptance of the benefit given to her by will [Voet,36, 1 and 2, MacGregor's translation, p. 156; cp. the case of Criel-laart v. Van Valen (1740) ib. p. 168] the entire corpus of the propertyvested in the appellants, subject to the fidei commissum, and thatwhen the fidei commissum is exhausted the heirs of the appellants,and not Nagamma or any one claiming through her, will be itsunfettered owners. I am confirmed in the conclusion by the cir-cumstances mentioned by Wendt J. in his judgment in the previouscase Nagamma v. Sathappa Chetty (2), and before us in this appeal,that Nagamma had only brought to her husband a dowry ofBs. 1,000, and that all the lands forming the estate were purchasedfrom time to time by him. If my view of the construction of thejoint will be sound, I think that the appellants are entitled to main-tain a quia timet action. The remarks of Sir John Phear C.J. inFernando v. Silva (ubi sup.) cannot surely apply to a case like thepresent, where the first defendant-respondent has no title to possessany part of the corpus of the property, except by virtue of an allegedinformal agreement which she repudiates. Whether such an agree-ment was entered into or is capable of being specifically enforced,we cannot in the meanwhile say. Neither of these issues wasinvestigated in the Court below. But if the appellants so desire,
(1) (1878) 1 S. G. C. 27.
(2) (1903) 9 N. L. B. 946, at p. 348.
they are, I think, entitled to have them determined. I would (a)set aside the judgment and decree appealed against; (b) declarethat, in addition to the rights ab intestato secured to her by thedecree in Nagamma v. Sathappa Chetty, (1) the first defendant-respon-dent under the joint will has only the rents and profits, the posses-sion of the jewels, furniture, and movables, and the right to occupyone-half part of the house and premises, thereby severally andspecifically allotted to her, and takes no property or interest in anypart of the corpus of the immovable estate disposed of by the will;and (c) send the case back to the District Court for trial and ad-judication in the light of the above declaration of. title. I wouldgive the appellants the costs of this appeal and of the proceedingsalready had in the Court below.
ATCHY KANNU et al. v. NAGAMMA et al