037-NLR-NLR-V-06-AYSA-UMMA-v.-NOORDEEN.pdf
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AYSA TJMMA v. NOOBDEEN.
D. C., Colombo, 13,476.
Fidei commissum—Intention of grantor—Construction of deed—Grant to Aand B and their hem, executors, administrators, and assigns—Insufficientdesignation of parties intended to he benefited.
AML made a deed of gift which contained the following danse:—" I, Assen Meera Lebbe, for and in consideration of the natural loreand affection which I have unto my grandsons Casi Lebbe Marikar
and Ahamadu Lebbe have given, granted, assigned, transferred,
and set over unto them, their heirs, executors, administrators, and assigns,as a gift absolute and irrevocable, all that portion of a house, tee.
■ to have and hold the said premises onto the said Casi Lebbe
Marikar and Ahamadu Lebbe, their heire, executors, administrators, andassigns, and their children and grandchildren, and the children and grand-children of their heirs and assigns shall not sell, mortgage, or encumberthe said premises at any time but hold and possess the same, and therents, produce, and income thereof shall not be held liable to beattached, seized, or sold for any of their debts, but they shall be able togive and grant the said premises or any part thereof in dowry for theirfemale children, also subject to the aforesaid conditions and restrictions.”
Held, that the deed did not create a valid fidei commissum.
It is essential to the creation of a fidei commissum that the personsintended to be benefited should be sufficiently designated.
When the persons in whose interest the prohibition is made are" assigns, " they may be anybody in the world.
mHE plaintiffs (wife and husband) prayed for a declarationX of title in favour of the first plaintiff for an undivided halfof the shop No. 41, Main street, as she was the sole survivingchild of Casi Lebbe Marikar, to whom and to one Ah ana ado Lebbethe original owner of the property, in question, viz., Assen MeeraLebbe, had gifted it by deed No. 7,161 dated 4th January, 1873.
The issues settled were (1) whether or not this deed created avalid fidei commissum in favour of Casi Lebbe Marikar and.Ahamado Lebbe and their descendants; (2) if so, to what shareof the house was the first plaintiff entitled; (3) have the 'defen-dants been in possession of the first plaintiff’s share since- _l§tOctober, 1899; and (4) what is tile reasonable monthly value ofthe house.
The gift ran as follows:—
“ I, Assen Meera Lebbe, for and in consideration of the naturallove and affection which I have unto my grandsons Casi Lebbe
Marikar and Ahamadu Lebbehave given, granted, assigned,
transferred, and set over unto them, their heirs, executors,,administrators, and assigns, as a gift absolute and irrevocable
1902.
December 17,19, and 22.
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1902.
December 17,19, awl. 22.
all that portion of a house, &cto have and hold the said
premisesunto the said Casi Lebbe Marikar and Ahamadu
Lebbe, their heirs, executors, administrators, and assigns, andtheir children and grandchildren, and the children and grand-children of their heirs and assigns shall not sell, mortgage, orencumber the said premises at any time but hold and possess thesame, and the rents, produce, and income thereof shall not beheld liable to be attached, seized, or sold for any of their debts,but they shall be able to give and grant the said premises or anypart thereof in dowry for their female children, also subject tothe aforesaid conditions and restrictions.”
The Additional District Judge (Mr. F. E. Dias) held that nofidei commissum was created by these terms; that the deed was a
gift absolute; that the first plaintiff was entitled to ^ths of thehouse, and that the second and third should restore possession ofthe house to the first plaintiff and pay her damages at a certainrate.
The plaintiffs appealed against that part of the decree which
declared the first plaintiff entitled to only jjjjth share, instead of
2d
half as claimed, and to only ggths of the rent.
The argument took place on the 17th and 19th December,1902.
Dornhorst (with him Sampayo), for appellants.—The deedmanifests a clear intention on the part of the donor to create afidei commissum in favour of the children and descendants of thedonees. The words “ executors and administrators ” appearing inthe deed are ignorant additions of the notary who drafted thedeed. They may be deleted or ignored. The word “ assigns ”may mean the female descendants to whom the down' deeds arepermitted by the deed. No particular words are necessary to createa fidei commissum. The intention of the donor must be gatheredfrom the whole instrument (Vansanden v. Mack, 1 N. L. R. 311;Tillekeratne v. Abeyesekera, 2"M. L. R. 313).
Bawa, for respondent.—A prohibition against alienation is ofno force if the deed does not declare clearly in whose favour suchprohibition is made (Vanderlinden’s Institutes, p. 63; OrdinanceNo. 11 of 1876, section 3; Hormusjee v. Cassim, 2 N. L. R. 190;Lushington v. Samarasinha, 2 N. L. R. 295; Tina v. Silva,7 S. C. G. 135). The words “ executors, administrators, andassigns ” are not mere notarial flourish, because those wordsimpart specific meanings as to the manner in which the properlygifted may be disposed of.
Cut. adv. vult.
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22nd December, 1902. Monobeiff, J.—
The sole question is whether deed No. 7,161, dated the 15thJanuary, 1873, created a fidei commissum. The plaintiff, whoappeals, urges that if it did create a fidei commissum he is entitledto judgment; but admits that if it did not, the judgmentappealed from must stand.
The donor, in consideration of natural love and affection, trans-ferred certain immovable property situated in Colombo to histwo grandsons, Casi Lebbe Marikar and Ahamado Lebbe, “ theirheirs, executors, administrators, and assigns as a gift absolute andirrevocable.” These words do not countenance a fidei commissum.
The transfer was subject to conditions imposed upon the donees,their heirs, executors, administrators, and assigns, and their childrenand grandchildren, and the children and grandchildren of theirheirs and assigns. The conditions were that the persons designated“ shall not sell, mortgage, or encumber the said premises at anytime, but hold and possess the same; and the rents, produce, andincome thereof shall not be held liable to be attached, seized, orsold for any their debts; but they shall be able to give and grantthe said premises or any part thereof in dowry for their femalechildren, also subject to the aforesaid conditions and restrictions.”
Again, in the following clause, the donor covenants with hisdonees, ” their heirs, executors, administrators, and assigns.”What did the donor mean?
There is a prohibition of alienation, but it is imposed uponexecutors, administrators, and assigns, as well as upon .heirs.Even if we hold that a prohibition in favour of heirs is a sufficientdesignation of fidei commissarii, can we delete the words" executors, administrators, and assigns ” from the deed? It isimpossible to ignote the words. They are persistently used,throughout the deed, and appear to have been intentionally used.The intention is the more clear from the care with which theconditions are imposed upon the children and grandchildren ofthe heirs and assigns. In Hnrmusjee v. Cassini (2 N. L. R. 190)it was decided in this Court that, where immovable property wastransferred ‘‘as a gift absolute and irrevocable” to the donor’sson, ‘‘ his heirs, executors, administrators., and assigns, ” subject tothe condition that he should not be at liberty to sell, mortgage, orotherwise alienate the property gifted, but possess the same duringhis life, there was no fidei commissum. When the persons inwhose interest the prohibition is made are assigns^ they may beanybody in the world. There is then no designation of personssuch as is essential to the creation of a fidei commissum. Theappeal should be dismissed with costs.
190?.
December IT,19, and 22..
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1002. Middleton, J.—-
December 22.
The question in this ease was whether in a deed of gift dated 4th
January, 1873, and registered on the 15th January, 1873, certainwords used therein constituted a valid fidei commissum. The giftwas of a house and ground in Colombo to Casi Lebbe Marikar andAhamado Lebbe, “ their heirs, executors, administrators, and
assigns, as a gift absolute and irrevocable.to have and to hold
the said premises with all and singular the appurtenances there-unto belonging, and valued at Bs. 4,000, unto .the said Casi LebbeMarikar and Ahamado Lebbe, thheir heirs, executors, administrators,and assigns, subject to the following conditions, viz., .that the saidCasi Lebbe Marikar and Ahamado Lebbe, or their heirs, executors,administrators, and assigns, and their children and grandchildren,and the children and grandchildren of the heirs and assigns, shallnot sell, mortgage, or encumber the said premises at any time, buthold and possess the same; and the rents, produce, and incomethereof shall not be held liable .to be attached, seized, or sold forany of their debts; but they shall be able .to give and grant t.hesaid premises or any part thereof in dowry for .their femalechildren also subject to the aforesaid conditions and restric-tions. ”
In order to bring the case within the authorities quoted, thelearned counsel for appellant invited us to construe the deed asif the words “ executors, administrators, and assigns ” were merenotarial flourish and nonsense and surplusage to the proper wordingof the deed, which should be eliminated. On the other hand, itis argued that, if it is possible to give a meaning to the deed (andit is so here) without cutting put these words, we ought not todo so.
I think that the wording of the deed shows some intention ofcreating a fidei commussum on the part of .the donor, but that theprohibition against alienation Is not followed by a sufficient desig-nation of .the parties .to be benefited to constitute a valid fideicommisevm (7 S. G.. C. 135; 2 Burge, 113; Van Leeuwen, Kotze’sTranslation, vol. /., p. 376). Amongst other cases quoted bycounsel on both sides we were referred by Mr. Bawa to the caseof Hormusjee v. Cassim {2 N. L. B. 190), which seems to bealmost on all fours with this case. In that case it was argued thatthe words now objected to were words of description or desig-nation, but Chief Justice Bonser pointed out what the word“ assigns” implies, and that it could.not be contended that thecondition was intended to benefit the whole world.
I would therefore uphold the decision of the District Judgeand, this being the only point raised, dismiss the appeal with costs.