BALKIS v. PERERA et al

054-NLR-NLR-V-29-BALKIS-v.-PERERA-et-al.pdf


( 284 )
1927.
Present; Fisher C.J. and Drieberg J.
BALKIS v. PERERA et al.
117—1). C. (Inty.) Colombo 21,117.
Fidei commissiim—Death of fiduciary—Spes successions—Trans minionof intercst-r-Muslim law.
Where a Muslim donated property to his wife in the followingterms: "For and during the term of her natural life, if she shouldsurvive me and so long as she shall remain my widow and un.married; and after her death or in the event of her second marriagewhichever shall first happen, to my eldest son T for and duringthe / term of his natural life, and after his death to his eldest sonor eldest male heirs absolutely, and in the event of his havingno son or male heir, then to his daughter or daughters absolutely
Held, that, on the death of T before the donee, the fidei rom-vtissum created by the deed did not lapse, and that the spessiiccessionis passed to the heirs of T.
A fidei commissary gift to which Muslims are parties must be(ttnstrucd according to the principles of the Boman-Dutch law.
A
PPEAL from n judgment of the District Judge of Colombo.The facts appear from the judgment of Drieberg J.
Hayley, K.C. (with Tisseveresinghe), for lOfcli defendant, appellant.
H. V. Perera (with Wijewarclene), for 1st and 2nd plaintiff, and 1st,2nd, *drd. 4th, 5th, 6th. 7th, 8th, and 9th defendants, respondents.
James Joseph (with Marikar) for added defendant, respondent..
November 1. 1927. Drieberg J.—
This is an action brought for the partition of certain premiseswhich admittedly were owned by Bakman Tuan who by a deed884/899 of August ;-U), 1880, and February 10, 1881 (P 2). giftedthem to his wife Nona Packir Umma; the gift was subject to afidei commissnm and was in these words: —
“ I …. do hereby give, grant, and assure as a gift absoluteand irrevocable unto her the said Nona Packir Umma.but subject to the conditions and restrictions hereinaftermentioned the following property …. to haveand to hold the said premises, together with, all theappurtenances thereunto appertaining or used or enjoyed
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therewith, unto her said Nona Packir Umnia for andduring the term of her natural life, li.she should surviveme the said Mohamed Saphie Bakman Tuan and so longas she shall remain mv widow and unmarried, and afterher death or in the event of her second marriage, whichevershall first happen, to my eldest son Mohamed Thajoodeen(otherwise called Tuan Kitchill) for and during the termof his natural life and after his death to his eldest son oreldest male heirs absolutely, and in the event of his havingno son or male heir, then to his daughter or daughtersabsolutely, their heirs, executors, administrators, andassigns. ”
Thajoodeen died in 1917 and Packir Umma in 1926. Thajoodeenhad seven children:Sahoordeen who predeceased him leaving
his wife the 9th defendant and the 7th and 8th defendantshis children; Thajoodeen who predeceased him leaving as issue.Brahanudeen who died in 1920, the 1st plaintiff and the 3rdand 5th defendants-respondents.
Thajoodeen's eldest son or male heir at the time of his deah wasBrahanudeen. The added defendant-respondent is a brother ofThajoodeen.
The 10th defendant-appellant purchased the interests of PackirUmma by deed 10D1 of April 17, 1920. He contends that asThajoodeen died before Packir Umma the fidei eommissum lapsedand Packir Umma had full ownership on the death of Thajoodeen.
Mr. Hayley, for the appellant, also claimed that in any case thefidei eommissum was invalid as the parties were Muhammadans and’that- the effect of P 2 was to vest the property absolutely inNona Packir Umma.
Assuming that the fidei commissu?n is binding the appellant mustin any case fail.
The learned District Judge held that the interest of Nona PackirUmma was only usufructuary; if this was so, the case would presentno difficulty because possession only and not the vesting of title inhim would be affected by the death of Nona Packir Umma. Butregarding her interest as a fiduciary one the death of the fidei-commissary Thajoodeen did not result in a failure of the fidei com-missvm but the spes successioms passed to Thajoodeen's heirs whowould succeed, this being the law in the case of a fidei eommissumcreated by a donation unlike one created by will (Mohamad Bhai etal c. Silva et al. (Full Bench).1
Mr. Hayley drew out attention to certain observations ofBertram C.J. in Carlina Hamtj v. Juanis et al*,2 that the rule inVoet, XXXVI.t I, 67 ou which the judgment in Mohamed Bhai et al v.
1 {1911) 14 N. L. R. 193.*{1924) 26 N. L. R. 129.
1927.
Datebkho
J.
Balkis v.Perem
( 286 )
1027.
Drieberg
J.
Bolkis v.pprara
Silva et al. (supra) is based applies to tbe case of tbe death of the lastfideicommissavy and not to a fideicommissary who is also a fiduciaryas Thajoodeen was. This point did not there arise for decision, forGuruwa (whose interest was under consideration in that case) didnot predecease Donsina, and no question arose of his transmitting hisspes successionis to his heirs (Bertram C.J., on page 139). It is notpossible to regard this as qualifying the general rule laid down inM ah anted Bhai et al. v. Silva et aL (supra).
If the reason for the rule is as stated by Yoet, that those to whomproperty is so left by a fideicommissary donation are regarded a.screditors in respect of that debt, and that a man who makes acontract subject to a condition transmits the expectation of what isdue to him to his heirs, if, before the condition comes into effect, heis overtaken by death (Yoet, XXXVI. h 67), it is not easy to seewhy Thajoodeen is not within this rule.
Mr. Bay ley contends that Thajoodeen was not a contracting partyto P 2, as the gift was accepted only by Nona Packir Umma; thisobjection must fail, for when a gift is made in’favour of a familyacceptance by the first donee is sufficient (Joint Pcrcra v. Avoe LehbeMarilar J).
Bub the rule regarding the lapsing of a ficlei commissum is notan inflexible one. Speaking of Wills where the rule is more strict,Lord dc Villiers said: —
“ Although there is a presumption in the case of a fidei commissumthat a testator intended a fideicommissary legatee to haveno transmissible rights unless he survived the fiduciarylegatee, such presumption will have to yield to other clearindications in the will of an intention to the contrary."
{Samamditvahcra v. dc Sinam 2 on page 326.)
In Stnjdom v. Strydom’s Trustee 3 which is quoted in Nathan,1006 ed.t Article 1SSS, pp. 1909 and 1910, de Villiers C.J., after-observing that in such a case the clear intention of the testator mustprevail, said: —
** On tire other hand the fact that the prior interest is in the natureof a fidei commissum is not conclusive proof that thetestator intended to postpone the vesting until the termi-nation of the prior interest. A fidei commissum may beso purely in the nature of what the English law terms atrust as not to interfere with the vesting of the fidei-commissary legatee's interest even before the arrival of thetime for the payment of the legacy.”
1 (1884) 6 S. C. C. 138.2 {1911) 14 X. L. R. 321.
3 4 S. < 28
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The intention of the donor is clear. He desires that the propertyshould remain in his family so as to benefit in the first instance hiswife Nona Packir Umma, then his eldest son Thajoodeen and afterhim, Thajoodeen's eldest son or male heir and on failure of such his(laughters the 1st, 3rd, and oth defendants, and his intention shouldnot be defeated because the death of his wife and of Thajoodeenoccurred in a sequence which he did not anticipate.
Mr. H. V. Pereira in seeking to establish the rights of the 1st, 3rd,and 5th defendants as well as the 7th and 8th, was obliged to adopta view of the donation which is not the simplest possible.
If Nona Packir Umma’s interest was a purely fiduciary one andthe rights of the iideicommissaries did not begin until hers hadended, then the property would have vested at her death in 1926 inthe 1st, 3rd, and 5th defendants. This would exclude the 7th and8th defendants, but the 1st, 3rd, and 5th have agreed to share theproperty with the 7tli and 8tli defendants and this cannot effect theappeal which is only concerned with the question whether NonaPackir Umma passed title to the property by deed 10D1; which-ever view is taken the appellant must fail.
The contention that as a fideicommissavy donation is not knownto and opposed to the principles which govern donations in Muham-madan law, P 2 must be regarded as an unconditional gift to NonaPackir Umma, cannot succeed. While pure donations are regulatedby the Muhammadan law the right of Muhammadans- to createfidei commissa by last will and by deed has been recognized (see1). Colombo, No. 59,378 1 where the question was expressly raisedand decided,) I am not aware of any later case jn which ihis decisionwas questioned except that of Saida v. Samidue that was a case ofa fidei commission created by deed and the objection was taken in theDistrict Court that the restriction on alienation was invalid andthat the document should be treated as a simple deed of gift.Bertram C.J. in his judgment stated that counsel at the hearing ofthe appeal " quite properly admitted that if the intention of the.document* was to create a fidei commismvi it would be governed notby the Muhammadan law but- by the Roman-Dutch law."
There is a long series of cases in which fidei commix so created byMuhammadans by deed of gift and last will have c6me before thisCourt for consideration and which have been construed accordingto the Roman-Dutch law without any question being raised as totheir validity according to Muhammadan law. These cases areAysa Umma v. Noordeen* Kadija Umma v. Meera Lc.bbe* Asiath-ttmma et al. v. Allman achy et a7.,5 Aysa Umma v. Xoonlcen et cl.,6Pooiiratchy et al. v. Marikar et at.* Wijtiwardene r. Abdul Hamid et
1 (1873) 3 Grenier 28.4(f M3) 7 X. L. R. 23,
* (1922) 23 N, L. R. 506.3(1975)1.A.C.R.53.
(1902) 6 N. L. M. 173.4(1905)iX.L.R.350.
' 2 A. C. R. 67.
1927.
Drieberq
J.
Balkis v.Perera

( 288 )
1927- aLfl Marikar et al. v. Marikar et al.2 Sulaikaummah v. AhamaduDbiebero Levvai,3 Naina Marikar v. Amarasooriya* XJsoof v. Raimath*J* Hadjie v. Fernando,6 Nairia Ijebbe v. Marikar et al.,7 Hadjiar v.Bfdieis v. Meyappa,8 Sango Vmma v. Meyappa Chetty9 and John Perera v. AvoePerem Marikar (supra). In Rahiman Lebbe et al. v. Hasson Ussan Ummaand another,10 an ante-nuptial contract with reciprocal promisescontaining a provision that all the present and future property ofthe wife should vest in the husband and after his death it shouldvest in the children on their attaining majority, was considered andheld to be valid. Schneider J. there said—
44 The principles of Muhammadan law as found in treatises havebeen adopted as governing Muhammadans here in thematter of pure donations, because since 1862 there hasbeen evidence that the custom of the Ceylon Muhammadanrecognized those general principles. But in the constructionof deeds, wills, fidei commissa, and in ordinary mattersof contract the principles of the ordinary general lawand not of the Muhammadan law are always applied.’'
The appeal is dismissed with costs.
Appeal dismissed.
» (1909) 12 N. L. R. 241
(1916) 2 C. W. R. 79
(1917) 19 N. L. R. 473
(1918) 5 C. W. R. 60
N. L.R. 225
• (1919) 6 C.W.R . 3677 (1921) 3 C. L. Rec. 61« (1922) 23 N. R. R. 3339 (1922) 4 C. L. Rec. 113"(1916) 3 C. W. R. 88