30/34( 486 )
Bakelmanv. •
Municipality then conveyed the property back to Charles onpayment of all the taxes in arrears subject to the same conditionsas those in the fidei commisaum created by the last will. The questionthat arises for decision is as to the share of the added defendantunder the decree. The learned District Judge allotted a two-fifthshare to him on the ground that nothing vested in Thomas Patrickcould pass to the added defendant.
De Zoysa, K.C. (with Crooa da Brera), for appellant.—The fideicommissum has been created by a deed inter vivos. On the death ofone of the fideicommissaries his interest is transmitted to his heirs.When the property was bought by the Municipal Council the fidei com-miasum created by the last will was extinguished. The subsequenttransfer by the Council created a new fidei commisaum. Counselcited Mohamed Bhai v. Silva1, Nafia Umma v. Abdul Aziz2, Silva v.Silva.*
’ H. V. Perera, for respondents.—The transfer by the Council does-not impose a new fidei commisaum. It merely reimposes the fideicommisaum created by the will, and on the death of one of the fidei-commissaries his interest is transmitted to the others and not to hisheirs. Even if the fidei commisaum be considered to be one createdby a deed inter vivos the persons to be benefited belong to a parti-cular class or group, and so long as one member of this class orgroup is in existence there cannot be a lapse and he takes the wholeof the property. Here the parties to be benefited are the children,and if one child dies the other children step into the shoes of thefideicommissaries as a class. No question of transmission of interestto the heirs arises. Counsel cited TiUekerotne v. Abeysekere*, Carryv. Carry*, Sivacolundu v. Noormaliya®, Carlinahamy v. Juanis'.
De Zoysa, K.C., in reply.
May 12, 1929. Dalton J.—
The plaintiffs brought this action to partition a property at SlaveIsland, Colombo, allotting a one-third share each to themselves andone-third to the defendant. Defendant filed an answer in agree-ment with the plaint. Added defendant, the present appellant,however, intervened, pleading that he had purchased the propertyand asking that plaintiffs’ action be dismissed. He further pleadedthat the Partition Ordinance was being used by the plaintiffs anddefendant to settle a dispute as to title.
The property originally belonged to one Thomas Goulding. Byjoint will dated June 16, 1869, he and his trife left this property totheir son Charles, creating a fidei commisaum in favour of the;
1 (1911) 14N. L. R. 193.* (1897) 2 N. L. R. 314 ;.A..C. 277..
* (1925) 27 N. L. R. 150.*4C.W. R. 55.
3 (1927) 29 N. L. R. 373.• (1921) 22 N. L.R.427.
7 (1924) 26 N. L. R. 129.
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children of Charles. The will set out that Charles should not sellor encumber the property and after his death it should devolve uponhis children and, if there be no children, upon his heirs.
A dispute arose in the case as to who were the children of Charles,but the finding of the trial Judge upon that point is not now ques-tioned. The two plaintiffs and the first defendant are his childrenby his first marriage, whilst Mabel Bose, Thomas Patrick, andGladys. Maud are his children by his second marriage.
Charles died in 1927. During his lifetime the Municipal taxeson the property got into arrears and it was sold for default ofpayment by Charles, the Municipality purchasing the property forthe sum of Rs. 250. A certificate was signed by the Chairmanunder the provisions of section 146 of the Municipal CouncilsOrdinance, 1910, and thereafter the property vested absolutely inthe Council free of all encumbrances. The value of the propertyhas been variously given as from Rs. 7,000 to Rs. 30,000.
In accordance with what we are informed is a common practicein such cases, the Municipality conveyed the property back toCharles on payment of all the taxes in arrears. The legality of thisaction has not been questioned in this case, so it is not necessaryhere to say anything on that point. By deed P 11 of September 5,.1922, the property is conveyed back to Charles for the sum ofRs. 1,586’50. It is however made subject to certain conditions,namely, that Charles could not sell or encumber the property, buton his death it was to devolve upon his children and, “ if there beno children, ” upon his heirs. It is suggested that the Council heresought to put Charles in the same position he occupied prior to thepurchase of the property by the Council. As against that it is urged,however, that whatever limitations are. placed upon Charles afterSeptember 5, 1922, in respect of the property they are created bythe deed P 11, and not by will.
On September 29, 1922, by a further deed A D 1, Charles andthree of his children, Mabel Rose, Thomas Patrick, and Gladys Maudpurported to sell and convey the property to P. S. Subbiah Reddiar,the present added defendant. That deed does not refer to deedP 11 obtained by Charles less than a month before, but recites theterms of the will of Thomas Goulding. It also sets out only thesecond marriage of Charles and is silent about his first marriageand the children of that marriage. Two days before the execution.of this deed Charles swore to an affidavit that he was only marriediOnce and that beside the three children joining him in the deedA D 1 he had no other children.- It is admitted now that that isfalse. Although not seeking to put himself in any better position.than he was under the will, there seems to be ground for the
Damon J.
( 488 )
Dalton J.
conclusion, that he was seeking to benefit the children of his secondmarriage at the expense of the children of his first marriage, and theformer were aware of this.
Charles died in 1927, and this partition action was commencedon February 1, 1928, deliberately ignoring the added defendant.The question arising on the appeal is as to the share to which addeddefendant is entitled on the decree. He has been given a two-fifthshare—the shares, that is, that would have gone to Mabel Rose andGladys Maud. Thomas Patrick died before Charles, and althoughhe was a' party to A D 1, the trial Judge holds that, owing to thedeath of Thomas Patrick before Charles, nothing vested in Thomasthat he could pass on to his vendee. Added defendant wants athree-sixth and not a two-fifth share of the property. As hisreason for his conclusion that nothing had vested in Thomas, thelearned Judge states that this is a case of a will and not a contractmade by way of donation.
In his argument that this decision is wrong, Mr. de Zoysa urgesthat the fidei commissum was created by an act inter vivos, that isthe deed P 11, the former fidei commissum having been wiped out bythe purchase of the property by the Municipal Council. It was urgedthat the fidei commissum did not extend beyond the children ofCharles, of whom Thomas Patrick was one. Relying upon thedecision in Mohamed Ekai v. Silva,1 it is argued that the fidei-commissary Thomas Patrick having died before the fiduciaryCharles, the former transmitted the expectation of the fidei com-missum to his heirs, and inasmuch as here he had conveyed ddringhis lifetime the expectation to the added defendant in deed ADI,the added defendant is entitled in this action to that one-sixthshare, making his total share on the partition three-sixth.
It has been pointed out in a later case (Carlinahamy v. Juanis2)that Mohamed Bhai v. Silva {supra) must be considered as authori-tative of the law of Ceylon. It has however been carefully analyzed, •and the principle it embodies has been carefully examined by theCourt in the later case I cite. Does the case before us come withinthat principle ?
The first matter for consideration on this argument is the effectof the purchase by the Council of the property which is subject tothe fidei commissum created by the will of Thomas Goulding. Whatis the effect of the certificate signed under the provisions of section146 upon that fidei commissum ? It will be noted that if theproperty seized is purchased by the Council the certificate “ shallvest the property sold absolutely in the Council free from allencumbrances. ” On the other hand, if the property had beenpurchased by someone other than the Council, under section 143 acertificate granted under that section “ shall be sufficient to vest' 14 N. L. R. 193.* 26 N. L. R. 129.
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the property in the purchaser free from all encumbrances. ” Thedifference between the two sections is at once apparent, although inboth cases the property vests “ free from all encumbrances. ”
The terms of section 143 have been considered by the Court in the•case of Sivacolundu v. Noormaliya.1 That case seems to> be almoston all fours with the case now before the Co.urt, save that there thefiduciary himself was the purchaser and not the Council. Here theCouncil is the purchaser, but the Council subsequently conveys tothe fiduciary. In both cases the fiduciary had stood by and allowedthe property to be sold for rates for which he (the fiduciary) waspresumably liable. The question raised there was whether by hispurchase and obtaining of a certificate under section 143 thepurchaser could convert his fiduciary interest into an absolute oneand extinguish the rights of the fideicommissaries. Here thequestion is whether by his purchase from the Council, who had acertificate under section 146, the purchaser could rid himself of hischaracter of fiduciary as created by the will of Thomas Gouldingand detrimentally affect the interest of some at any rate of thosewho were the fideicommissaries named in the will creating the fideicommissum.
In reply to the argument that a certificate under section 143vested the property in the purchaser “ free of all encumbrances ”and therefore obliterated any fidei commissum, Bertram C.J. in thecase cited sets out at length his reasons for disagreeing with anysuch interpretation of the section. His opinion is of course obiter,inasmuch as the appeal was allowed on other grounds, but he comesto the conclusion that the word “ encumbrance ” does not includefidei commissum, being satisfied that it is clear there was nointention on the part of the legislature to confiscate the interestof fideicommissaries. He terms the section an extremely violentprovision if that is the meaning of it. With this de Sampayo J.agrees. A similar conclusion, it may be noted, was come to inrespect Of the application of section 9 of the Partition Ordinance,which it has been held does not extinguish a fidei commissum(Weerasekarg, v. Garlina 2, Marikar v. Marikar3); the terms of thatsection are considerably stronger and more explicit than those ofsection 146.
The same words “ free from all encumbrances ” also appear insection 146, and it does not seem possible to argue that the word“ encumbrances ” there has any different meaning to the word asused in section 143. It is clear, however, as has been pointed outin Nafia XJmma v. Abdul Aziz*, the legislature considerably strength-ened the provisions of section 146 as compared with those of section143. In this latter case the Court held that a certificate grantedunder section 146 excluded all evidence setting up another title,
1 22 N. L. R. 427.3 22 N. L. R. 137.
3 16 N. L. R. 1.* 27 N. L. R. 150.
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Dalton J.
either directly or through impugning the certificate on the ground ofa fundamental infirmity. It may well be argued from this that theopinion expressed by the Court as to the effect of a certificate issuedunder section 143 in regard to a fidei commissum is no guide to theinterpretation of the effect of a certificate granted under section 146in a similar case. It is a difficult question, and I should wish to hearfurther argument upon the point before coming to any conclusion.The argument before us was chiefly on other points. It is possible,however, for the purposes of this case, to assume that the fideicommissum created by tha will was terminated by the issue of thecertificate under section 146. The construction of the deed P 11and the effect of the fidei commissum set out therein remains to bedecided. Whatever the effect of the certificate under section 146upon the then existing fidei commissum, there is not the leastdoubt in my mind that by the deed P 11 the Council, who had thetitle vested in th.em, intended to do no more than maintain the statusquo ante, that is, to keep in force the effect of the will of ThomasGoulding. The fideicommissaries referred to in the deed are nomore and no less than the fideicommissaries referred to in the will,namely, the children of Charles, who could only be ascertained onthe death of Charles. This was the evidence of the second defendantin the lower Court to which no objection was taken. This was clearlythe intention also of Charles when he entered into the agreementwith the Council upon which the property was conveyed to him bythe deed. It was not in my opinion open to him under the circum-stances to take up any other position. His intention and positionare quite clear from the recital in his subsequent deed A D 1 to theadded defendant. There the only reference is to the fidei commissumcreated by the will. There is no reference at all in A D 1 to thedeed P 11 or to any fidei commissum created by that deed. Theadded defendant accepted that position, as did the three childrenwho were parties to the deed. In these circumstances there seemsto me to be no room for the argument that the Court must shut itseyes as to what had happened prior to and subsequent to theexecution of the deed P 11 and deal with this document alone.
Further, the question raised in this appeal cannot be answeredby merely ascertaining whether the fidei commissum was createdby deed or by will. It is a question of the construction of the fideicommissum set out in the deed P 11. As pointed out by de Sam-payo J. in Carry v. Carry,1 the decision of the Privy Council inTillekeratne v. Abeysekera? lays down a rule of construction which isapplicable to all fideicommissary dispositions whatever the form ofinstrument may be. With this view Bertram C.J. entirely agrees(sec Carlinahamy v. Juanis3). Applying these authorities to the1 4 C. W. JR. at 55.2 2 N.L. R. 314 ; {1897), A. G. 277.
3 26 N. L. R. at 140.
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case before us I am satisfied that the fidei commissum set out in the /1929.deed P 11 definitely vested no qpes succeasumis in Thomas Patrick Dalton J.and the other children in existence at the time, but it is a case of a g<J~^andeed entered into between Charles and the Council to give continued v.effect to the fidei commissum created by the will of 186fil, the fidei* QwMingcommissaries being a class, namely, the children of Charles, whichwas only definitely ascertainable on his death. This case does notcome therefore within the principle embodied in Mokamed Bbai v.
Silva (supra).
Other grounds urged in support of the judgment appealed fromwere also it seems to me most weighty and authoritative, but it issufficient to say that for the reason I have given the judgment of thetrial Judge must be affirmed.
A small matter respecting costs remains. The District Judgedirected that the added defendant (appellant) pay to the plaintiffshalf their taxed costs of the contest. It is urged for the appellantthat there is no justification for this order. Both parties were inpart successful and in part failed in their claims, but there is nodoubt there was some ground for the argument put forward that .plaintiffs’ action was an abuse of the Partition Ordinance. Thetrial Judge even considered the question of imposing double stampduty. Further, they deliberately ignored the added defendant inbringing their action, whilst they also affect in their plaint to beignorant of their father’s second marriage and of the existence of hissecond family. Under all the circumstances I consider it is onlyjust that each party should pay his own costs of the contest, and Iwould so order.
With this variation in the decree, I would dismiss this appeal.
The appeal having failed save on a minor point, the respondents areentitled to the costs of the appeal.
Driebekg J.—I agree.
Appeal dismissed.