095-NLR-NLR-V-24-BOTEJU-et-al.-v.-FERNANDO-et-al.pdf
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Present ; Schneider and Garvin JJ.BOTEJU et al. v_. FERNANDO et dl.
227—D. C. Negombo, 15,153.
Fideicommissum—Gift—Prohibitionagainstalienation—Afterdeath
of donee land to pass to donee's heirs, executors, administrators,and assigns—Class to be benefited.
A deed of gift provided as follows:—
“It is hereby ordained that when F takes possession of the saidshare, he shall not sell, mortgage, donate, Ac., and if he does anysuch act, the same shall be void. Nevertheless, if it is foundnecessary for him to sell only the said share of the house, we dohereby give him the light to sell the same to one of his brothers
“ The right, title, and interest of us-, the said donors, shall vestin the donee F to be possessed by him, subject to the life interestof us, the two donors, and after his death to be possessed by hisheirB, executors, administrators, and assigns for ever, or to do what-ever else they like, for which full authority is hereby assigned. ’*
Held, that the deed did not create a fidei commissum.
“ Where the language used indicates as clearly as it does in thiscase that it was a matter of no importance or concern to the donorto whom the property passed on the demise of F it is not possibleto ascribe to him an intention to benefit a particular daBS byreading into the language used by him words which he has notused and which he probably never intended to use. ”
m
1988.
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E. W. Jayawardene, for appellants.
Boteju v.
Fernando Samara-wickreme, lor respondents.
February 12, 1923, Garvin J.—
The plaintiffs claim a half share of the land in dispute as the heirsof one Fidelia Boteju. They contend that by deed No. 22,720,dated April 6, 1896, the parents of Fidelis Boteju gifted this halfshare to him, subject to a fidei commissiim in favour of his heirs.The District Judge held that the deed did not create such a fideicommission, and from that decision the plaintiffs appeal.
The donors have gifted to Fidelis Boteju the southern half share ofthe land Gorakagahawatta and “ the southern one-third share ofthe tiled house standing on the remaining northern half share, ”reserving to themselves a life interest.
The deed proceeds as follows : —
** …. it is hereby ordained that when the said FidelisBoteju Appuhamy takes possession of the said share ofland and share of house, he shall not sell, mortgage, donate,exchange, or lease at a time for a period exceeding threeyears, or alienate the same in any other manner whatsoever,and if he does any such act regarding the said premises,the same shall be absolutely void. Nevertheless, if itis found necessary for him to sell only the said share ofthe house, we do hereby give him the right to sell the sameto one of his brothers, Velantantrige Stephen BotejuAppuhamy of Kimbulapitiya aforesaid, or to one of hisdescendants.
“ Therefore, the southern half share of the land within the saidboundaries and the southern one-third share of the tiledhouse standing on the remaining northern half sharegifted in manner aforesaid, together with all the right,title, and interest of us, the said donors, shall vest in thedonee, Fiedelis Boteju Appuhamy, to be possessed by him,subject to the life interest of us, the two donors, and afterhis death to be possessed by his heirs, executors, adminis-trators, and assigns for ever,-or to do whatever else theylike, for which full authority is hereby assigned.
It was strongly urged that these words disclosed a clear intentionon the part of the donors to create a fidei commissum in favour ofthe descendants. On the other hand, it was contended for therespondents that even assuming that the deed disclosed an intentionon the part of the donors to prohibit alienation by Fidelis Boteju,there was nothing to indicate a desire on the part of the donorsby such prohibition to benefit any person or any definite class ofpersons.
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As regards tbe one-third share of the house the donors contemplatethe possibility of its being found necessary to sell it, and expresslyconfer on him the right to do so to his brother or one of his descend-ants. They do not say that in the event of the contraventions ofthe prohibition, the share of the house is to vest in the brothers orany other disignated person. The words material to the determi-nation of the question at issue are contained in the second ofthe two paragraphs quoted above. v If plaintiffs' contention is toprevail, there must be found in this paragraph a clear indication ofa definite person or class of persons to whom the property is to passon the death of Fidelis Boteju, coupled with a prohibition againstalienation by him during his life.
The words which must be relied on as indicative and descriptiveof the ultimate beneficiaries are the words “ his heirs, executors,administrators, and assigns, ” for the deed provided that after thedeath of Fidelis Boteju, the property is to be possessed by “ hisheirs, executors, administrators, and assigns.
Now, these words form a group well known in conveyancing andregularly used for the purpose of including -every person and everyclass of person to whom property may pass by operation of law orby act of the person to whom the property belonged. As used inthis clause, the words include every person to whom this propertymay pass on the death of Fidelis Boteju ab intestato, every personto whom he may leave it by last will, or to whom he may assign itby any other act inter vivos.
It is quite impossible to say whom the donor intended to benefit,or that he intended to benefit any particular class of person. It maywell be as suggested by learned counsel for the respondent that- thedonor’s principal object—in fact his only object—was to prohibitalienation by Fidelis in the endeavour to protect Fidelis from conse-quences which may follow the alienation of the property giftedto him, and that it was wholly immaterial to whom the propertypassed, so long as its enjoyment was secured to Fidelis during hislifetime.
On the supposed authority of Wijetunga v. Wijetunga,1 we havebeen invited to read this passage as if it ran as follows : —
After his death to be possessed by his heirs, and in default of heirsby his executors, administrators, or assigns.
The circumstances of the two cases are not exactly parallel, sothat there is no need to consider whether or not the decision inWijetunga v. Wijetunga (supra) should be reconsidered. I may,however, observe that in the case of Silva v. Silva,2. Sir AlfredLascelles C.J., one of the two Judges who constituted the Courtbefore which Wijetunga v. Wijetunga (supra) was argued, remarked,with reference to that case, that it “is a case in which the Court
> (1912) 19 N. L. R. 493.* (1914) 18 N. L. R. 174
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Gabon J.
Boteju p.Fernando
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• 1928. has gone the -furthest in collecting from an ambiguous expressionQa" j, the donor's intention as to the persons to be ultimately benefited. "——-In Ponusamy v. Kaithie 1 De Sampayo J. says: “ In Wijetunga v.
jfaMrnJo Wijetunga (supra) this Court went as far as it is ever possible in thebroad construction of the deed.
With these views I am in complete accord.
Assuming that these are cases in which it is-possible to read intoa clause in a deed words so pregnant with meaning, as the words“ and in default of heirs, " this is not such a case. The words“ heirs, executors, administrators, and assigns " are, as I haveobserved, an expression which has a clear and definite meaning ofits own. It is possible to give these words this usual meaning withcontext in which they occur, and gather from the whole .passagean intention on the part of the donor to prohibit alienation, not forthe benefit of reversionary heirs, but in the interests of the, donee.The question whether, or not he has given or is able to give legaleffect to that intention is immaterial.
It is impossible to presume an intention to create a fidei commis-sum, unless it can fairly be gathered from the language used thatthe donor intended that Fidelis Boteju should only-have a-life estatein the property which, on his death, was to pass to a person or classof persons clearly designated.
Where the language used indicates as clearly as it does in thiscase that it was a matter of no importance or concern to the donorto whom the property passed on the demise of Fidelia, it is. notpossible to ascribe to him an intention to benefit a particular classby reading into the language used by him words.which he has notused and which he probably never intended to use.
Under these circumstances there can be no justification inembarking upon a voyage of discovery to search for an intentionwhich has not been expresseda and which cannot be gathered fromthe language used.
In my opinion the deed does not create a valid fidei commissum.The appeal is accordingly dismissed, with costs.
Schneider J.—
I entirely agree with the judgment' of my brother. As appositeto the argument that we should read, in words which are not to befound in the deed so as to express what would appear to have beenthe intention of the parties to the deed, I would cite the followingfrom Halsbury’s Lanas of Englandvol. X.f section 769, p. 434 :** But the intention must be gathered from the written instrument
. The function of the Court is to ascertain what the partiesmeant by the words they have used (f); tp declare the meaning ofwhat is written in the instrument, not of what was intended to have
1 1 C. W. R. 91.
( )been written {g) ; to give effect to the intention as expressed {/*) ;19M.
. the expressed meaning being, for the purpose of interpretation, Garvin * jr.equivalent to the intention (*). It is not permissible to guess at the .intention of the parties and substitute the presumed for the expressed Ftn&ndointention (k). And the ordinary rules of construction, must beapplied, although by so doing the real intention of the parties mayin some instances be defeated. Such, a course tends to establish a* greater degree of certainty in the administration of the law (l). Itis not necessary, however, for the intention to be stated in expresswords; if the intention is dear on the whole instrument, effect willbe given to it even without such express statement (m)."
Appeal dismissed.