CAROLIS et al., Appellants, and ALWIS, Respondent

049-NLR-NLR-V-45-CAROLIS-et-al.-Appellants-and-ALWIS-Respondent.pdf


156
SOBjETSZ J.—Carolis and Alwis.
1044Present: Howard G.J. and Soertsz J.
CAROLIS et al., Appellants, and ALWIS, Respondent.
151—D. C. Colombo, 2,483.
Fidei commissary gift—In favour of children and grandchildren of donee—Or in favour of brothers and sisters of donee—No acceptance on behalfof the fidei commissaries—Revocation by donor.
Where a fidei commissarygift, in favourofthe childrenandgrand-children, by representation, ofthe donee orinanother event infavour
of the brothers and sisters ofthe donee, someofwhom werealiveat the
time and were minors, is notaccepted on behalfof the fideicommissaries,
the donor is entitled to revoke the gift with the concurrence of thedonee.
In such a case acceptance by the immediate donee, who was a daughterof the donor, is not a sufficient acceptance on' behalf of her brothers andsisters.
^/yPPKA:L ^r°ED a 3udSmentdistrict Judge of Colombo.
H. V. Perera, K.C. (with him N. Nadarajah, K.C., and R. C. Fonseka),for plaintiffs, appellants.
N. E. Weerasooria, K.C. (with him E. B. Wikramanayake), fordefendant, respondent.
Cur. adv. vult.
February 29, 1944. Soertsz J.—
This is an extraordinary case. It would be positively Gilbertianbut for the questions of law involved in it. It relates to a next friendwho, having made solemn declaration that the Notary he had employedto draw up a deed of gift had grievously misunderstood his instructionsand had driven him to the necessity of joining with the donee to executean • indenture in order to give proper effect to his real intention, nowcomes into Court to ask that the indenture be ignored as if it had neverbeen written, and judgment given in accordance with the clause in thedeed which the indenture had unequivocally repudiated. The learnedtrial judge could not see his way to grant this preposterous prayer,although he added to the piquancy of the plaintiff’s case by expressingit as his opinion that, by resorting to the indenture, the third plaintiffhad laboriously achieved nothing, for he found that in a correct inter-pretation, both the deed and the indenture yielded exactly the same result.The plaintiff 'now appeals, and for him it is contended that the law enableshim to disown his real intention and to stand by what had neverbeen his intention. This may sound surprising- But it is not entirelyunknown for the law to produce results which may appear incompre-hensible to the uninitiated. Is this such a case?
The relevant matters are few. On October 22, 1937, the third plaintiffpurported to gift the properties with which this case is concerned to hisdaughter Edith Ruth who at the time was the wife of a Dr. Alwis. Themain clauses in that deed were: —
I …. “ donee shall not sell, mortgage, gift, dispose of by
Will or in any other manner alienate or encumber the said premises
SOICETSZ J.—Carolis and Atwis.
157
but shall hold and possess the same .. -during her
natural life and after her death the said premises shall absolutelydevolve on her lawfifl child, children or remoter issue, the child or
children of any deceased child taking by representation ”
“ if the said donee shall die without leaving any issue or if the saiddonee does not live with or deserts her husband …or if
in the event of her …. husband’s death she shall contracta marriage or alliance legal or otherwise with any man who shall notbelong to the community …. then in any or anyone ofsuch cases, the said property shall thereupon go to and devolve onthe lawful child or children or the ‘remoter issue of any of the saidparty of the second part the child or children of any deceased childtaking by representation …. and in the event of there beingno such child, children or remoter issue, then on all my other childrenequal shares ”
It will be observed that the first clause is identical in both documents.By itself, it creates no difficulty. It gives the properties to the doneesubject to a fidei commissum in favour of her children and grandchildrenby representation who were to succeed her on her death. So far as thatclause goes, the donor appears to have contemplated a full, faithful, andfruitful life for his daughter the donee.
Clause 2, however, in both the deed and the indenture shows thedonor in a less optimistic, indeed in a pessimistic mood. He contemplatesthree painful possibilities, in permutation as well as in combination—a childless life, an unfaithful life, a disreputable life. According to boththe deed and the indenture, a childless life, otherwise uncomplicated,was to result in the properties going to her brothers and sisters at herdeath. But, desertion by her of her husband, or a marriage or allianceoutside the donor’s community leads to divergent results. Accordingto the deed, in either event, and whether, at the time she incurs thedisqualification, she is childless or not, her rights, interest, and estatedevolve on her brothers and sisters, whereas according to the indenturein either of those events, if she has issue at the time, they are preferredto the brothers and sisters so far as the rights forfeited by the donee areconcerned.
That, in my judgment, is the correct meaning of the two clauses.I cannot agree with the interpretation the learned trial judge has givenof clause 2 in the deed as meaning that the desertion by the donee of herhusband, or the forbidden marriage or alliance would result in conferringthe donee’s rights on her brothers and sisters only if the donee herselfis childless. In other words, the learned Judge reads into clause 2 of thedeed the condition si sine liberis decesserit. There is no justificationwhatever for doing that in this case. Such a condition is read intotestamentary fidei commissa. in exceptional cases as explained by thePrivy Council in Galliers v. Kycroft1, and that is done “ from a conjectureof dutiful conduct ” and on an assumption that in those cases, if it werepossible to make inquiry, “ it would be found that less had been writtenthan spoken ”. That is the explanation of the great Papinian given in
1 3 Bed. Rep. 74.
15 8
SOERTSZ J.—Carolis and Alwis.
support of a response made by him justifying the introduction, in thatcase, of the condition “ si sine liberis ” recommended by him. Butsuch a condition is never read into a donatio intf-r vivos, (see AhamaduJbebbe v. Sularigamma1) for a donatio in the view of the Roman Butchlaw, is a contract and the contracting parties are deemed to -have writtenno less than was spoken. The provision made in clause 2 of the deed isboth understandable and reasonable. Read with clause 1 it makes thedonee’s children, if any, the fidei commissaries who will take ultimately,on the death of the donee, but makes her brothers 'and sisters thebeneficiaries in the event of her estate terminating before her death.
For these reasons, I reach the conclusion that if clause 2 of the deedstood, the plaintiffs would succeed to the extent of a declaration in theirfavour for the lifetime of the donee.
But there is the indenture to be considered. Clause 2 of that instrumentprovides in clear terms that children of the donee shall be preferred toher brothers and sisters whenever her estate is terminated, whether bydeath or by forfeiture, and if the indenture is valid, the plaintiffs mustfail. This indenture is challenged on the ground that it amounts to arevocation of a completed donation behind the back of the plaintiffswho are contingent beneficiaries. The question, for decision, then, iswhether the deed constituted a donation completed by acceptance or notas far as the 1st and 2nd plaintiffs are concerned, for as it is clear law thata donation, once it has been accepted, cannot be revoked except for afew definite reasons which have no application in this case. It is equallyclear law that till it has been completed by acceptance a donation isrevocable. It is also well settled that in the case of fidei commissarydonations there must be acceptance by the fiduciaries as well as by thefidei commissarii and, as a rule, but for one or, perhaps, two exceptions,the acceptance must be in the lifetime of the donor. (2 Burge 148;
7 N. L. R. 123; 17 N. L. R. 279.)
The only acceptance there was, in this instance, is the acceptance bythe donee, appearing on the face of the deed. That acceptance was inthese terms: —
“ I the said Edith Ruth Alwis (nee Bon Carolis) do hereby gratefullyand thankfully accept the said gift subject to the conditions andrestrictions aforesaid ”.
At that time, the donee’s children, if any had been born, would,obviously, be minors. So were her brother and sister, the first andsecond plaintiffs. The donee was, in no sense, their natural guardian;nor was she their legal guardian; nor had she a mandate to accept forthem. And, indeed, she did not profess to accept for them. And yet,it is contended that when she accepted in the form in which she did -accept the gift, she was doing better than she or the donor knew, for itis claimed, that, when the donor made the gift and the donee accepted itin that form subject to the conditions, the legal effect was the same asif the donor had entrusted the gift to her to be given over to certainpersons, and it is said, that according to Perezius, the result is thatthe obligation is completed on the part of the donor, and is not revoked
» 3 C. W. R. 208.
SOEHTSZ J.—Carolis and Alwis.
159
by his death (8.54.23). This view of Perezius is contrary to whatmust be regarded as the higher authority of Voet and of the Digest.Nathan sums up the law«on the point as follows: —
“ Acceptance of a gift inter vivos must likewise take place in thedonor’s lifetime. If A, intending to donate to 33, gives money to Cto convey to 33, and dies- before the conveyance of the money, the gift,failing acceptance, is invalid. The acceptance of a donation on behalfof an absentee may be made by a notary on his behalf. In de Koch v.Vandenoall’s Executors1, it was said: ‘ one of the necessary ingredientsof a valid donation is acceptance by the donee or someone dulyauthorised on his behalf. According to Voet an unauthorised accept-ance by a notary or other similar official would bind the donor on suchacceptance being ratified by the donee. It is not quite clear whethersuch acceptance could, in Voet’s opinion, be effected after the deathof the donor. In a previous passage of the same section he hadexplained that the acceptance should take place during the lifetimeof the donor. This is clearly laid down in the Digest (30. 5. 2. 6.)where it is said that if a person, with the intention of making a donationto me, gives money to another to bring to me that does not become myproperty because the donation has not been completed.”
Be that as it may in regard to the sufficiency of acceptance after thedeath of the donor, we are in this case considering the question of thecapacity of a living donor to revoke a gift made by him before it has beenaccepted by the beneficiaries concerned. In view of Voet’s opinionand of the passage cited by Nathan from the Digest a stronger caseappears to be made out for a living donor being able to recall his messengerbefore he has reached his destination, in other words, to revoke the gift.Perezius does not deal with such a case, and the view of Perezius evenif it be accepted in preference to that of Voet and of the Digest, in regardto the position resulting on the death of a donor who had offered a giftentrusting it to be delivered, it would be fallacious to deduce from theview the proposition that a living donor may not repent of his offer andwithdraw it before it has been accepted.
The other contention advanced on behalf of the appellants was thatthe donation in this case although given immediately to one person,contemplates her family, that is to say that it is a gift which in the words■of Perezius is:
“ donatio uni facta concemat favorenv familiae in qua vult rem donatamman-ere donator
It is argued that the donation here is of that kind and that theacceptance by the immediate donee is a sufficient acceptance on behalfof the descendants as well. Perezius (8.55.12) is relied upon in support.He says—
“ if the gift made to one person is made in favour of a family ….by no pact can it be revoked in respect of after-comers for it is sufficientin order that it may be considered a perpetual donation that the firstdonee has accepted it so that' there is no need of a subsequentacceptance.
1 9 C- T. R. 500.
160
SOERTSZ T.—Carolis and Alto is.
For the argument put forward on this authority, three decisionsof our Court were called in aid, namely, John Terera v. AvooLebbe Marikar1, Soysa v. Mohideenz, and Aya-no, Perumal v. Meeyan3.Before going on to examine these cases I would point out that althoughthe two earlier eases are referred to in the Reports as decisions givenby a Full Bench, they are not so in fact. The earliest case came upbefore two Judges, and on their not being able to agree, it went up beforetwo other Judges. On that occasion, too, there was disagreement.Clarence J. took one view and Burnside C.J. another. But for somereason which is not clear, Clarence J’s judgment appears to have prevailed.Perhaps on this point it agreed with the opinion of the two Judges whofirst considered the point. The second case of Soysa v. MohifLeen {[supra}is a judgment of a Divisional Bench on a question of Sj|Jppensation,but not on the point that has arisen here. In regard to that question,it is a decision of two judges. So was the third ease, a decision of twoJudges. In the first named case a father conveyed certain property bypost-nuptial settlement to his married daughter subject to the conditionthat she should enjoy the same for her life and that after her death itshould be enjoyed “ by her heirs and descendants in perpetuity.” Thedaughter accepted the gift. Pater, she having as yet no issue, thefather made a Will by which he devised the property to the daughterabsolutely. After his death, a son, who was the plaintiff in that case,was born, and the question of the revocation of the gift arose. Clarence J.following Perezius held that—
“ where a gift is made to somebody in favour of a family in which thegiver wishes the property to remain, the giver is not to be allowed torevoke the limitation to the after-comers.”
It' will be observed at once that the deed in that case was literally, adonation that the donor intended should remain in the family in per-petuity. In the case before us no such intention is expressed or canreasonably be inferred. Incidentally, I would permit myself theobservation that one feels inclined to share Burnside CM’s impatience of" the abstract propositions ” of the “ ponderous Dutch commentatorwhen one is called upon to apply such propositions to cases as they arisein all their Protean shapes and forms. Perezius seeks to justify hisproposition with the argument that—
“ it would be absurd, in order to make a fidei commissum irrevocableto require the acceptance of infants and persons not yet born ”,but that absurdity would apply to all fidei commissary donations, not onlyto those intended to remain in a family, and yet it is clearly establishedby overwhelming authority that, as a rule, acceptance by or on behalfof both fiduciary and fidei commissary donees is essential to completea gift. The donees in esse or in utero must accept, themselves or bycompetent agents. Those entirely in futuro, when the time comes.It would, indeed, be absurd if the unborn are to be bound By the contractsof the living without any choice of their own; if they should be boundeven by gifts that had become onerous with the lapse of time. There are» {1884) S. C. C. 138.* {1914) 17 N. i. R. 279.
{1917) 4 C. W. R. 182.
SOERTSZ J.—Carolis and Aim is.
161
difficulties that would and do arise in connection with this matter ofacceptance but those result from the fact that fidei commissa whichoriginally were testamentary were allowed to be introduced into donationsinter vivos. In the former case, the beneficiaries had the safeguards ofthe right of adiating or not and they were assisted by “ benefit of inven-tory ” and of the “ Saptium deliberandi ”. In the latter case, the onlysafeguard the law could provide was the requirement of acceptance onthe part of each and every party concerned as donee or beneficiary tomake the donatidS complete and binding.
Clarence J’s Judgment in the case just discussed was followed inSoysa v. "Mohideen. The facts of that case were that a donor giftedproperty to four persons, three nephews and a niece subject to thecondition that they should not alienate the property but that, on theirdeaths, it should devolve on their issue and if any of them should diewithout issue his or her share should go to the others and their issue.The donees accepted the gift subject to the condition. Two of thedonees died without issue and the donor cancelled the gift he had madeand regifted the property to the two surviving donees on the first deedabsolutely. Later sons of one of these two donees of the latter absolutegift claimed a half share of the land against those two donees’ lessees.It was held that the revocation of the first deed was invalid, the Court havingtaken the view that it was a gift in favour of the family and that theacceptance by the fiduciary donees enured to the benefit of the plaintiffs.
Lascelles C.J. in the course of his judgment made the following observa-tion : —-
“ As a general rule, in order that a fidei commissum created by giftshould be valid, the donation must be accepted by the fidei commissaryas well as by the fiduciaries (2 Burge 148; de Silva v. Thomas Appu 7N. L. ft. 123). But this rule is not without exception. The guardianmay accept for an infant or if the child is in utero the acceptance maybe made by the person under whose authority he will be placed atbirth (Walter Pereira 606). In the present case it is material thatthe plaintiffs, who now sue as minors cannot have been in esse at thedate of the fidei commissum in their favour”.
The implication of the concluding part of that observation as I under-stand it is that in the case of donees or fidei commissaries in esse or inutero at the date of the deed acceptance by them or by the guardian asthe ease may be, or by the person under whose authority they wouldfall at birth would be necessary to complete the gift, but that noacceptance other than acceptance by a member of the family was necessaryin the case of the plaintiffs because they were not in esse or in uteroat the time of the gift. If that reasoning is sound the view taken byLascelles C.J. is against the plaintiffs before us. They were indubitablyin esse at the time of the gift, and therefore there should have beenacceptance by their guardian to make the gift complete. But the viewindicated by Lascelles C.J. in the passages I have quoted receives nosupport from the references made by him. The authorities cited byWalter Pereira and other authorities lay down that acceptance by the fideicommissary of the donation is necessary, the exception, being in regard
6a. N. A 93349 (11/49)
162
SOEBTSZ J.—Carolis and AUois.
to infants and those in utero for whom some person may accept. Therecan however be no vicarious acceptance on behalf of those neither inesse nor in utexo except in the one case of a donation clearly in favour of afamily. De Sa.mpa.yn J. in coming to the same conclusion dealt with thisquestion in a different way. He said: —
“ There is no doubt that under the Homan Dutch law even a fideicommissum gift may be revoked by the donor before acceptance. Ithink that in the case of a gift to a person subject to a fidei commissumin favour of his descendants, – the Roman Dutch law recognises anexception and regards the acceptance of the immediate donees as asufficient acceptance on behalf of the descendants as well. This wouldundoubtedly be so if the fidei commissaries are minors or in utero.
I think the law is the same in the case of an unborn generation ”.
It is clear that de Sampayo took the view that a gift in favour of thefamily needed no other acceptance than by the donee either on behalf ofthose in esse, in utero or in future. The learned Judge then quotes fromPerezius and continues : —
“ It was urged on behalf of the appellants …. that the excep-tion to the rule of personal acceptance there allowed (i.e., by Perezius)must be confined to the ease of fidei commissum in favour of a familywhich includes other people besides children and descendants. But,no such distinction is drawn and the reasoning applies even morestrongly to. a fidei commissum in favour of a family in the narrowestsense of a man’s own children and descendants. Perezius means tolay down generally that the acceptance by the immediate doneewho is the head of the family is valid acceptance on behalf of all those whofollow him and that then the donation is considered perpetua or atonce complete on behalf of all the succeeding beneficiaries ”.
If I may respectfully say so, it appears to me that Perezius is herereferring to those perpetual fidei commissa so common in HomanDutch law. The old case of John Perera v. Avoo Lebbe Marikar as Ihave observed, dealt with such a fidei commissum—“ after her (thedonee’s) death the property shall be enjoyed by her heirs or descendantsin perpetuity ” and, in my view, the application of the rule laid down in thatcase to the facts in the case of Soysa v. Mohideen where the fidei com-missaries were only the donees children and grandchildren by representa-tion was an unjustifiable extension of the rule. Indeed, Lascelles C.J.appears to have had some misgiving on this point for he said: —
" Whatever room there might have been for doubt, if the matterhad been res Integra, the question is concluded so far as we are con-cerned, by the judgment of the Pull Court in John Perera v. Avoo LebbeMarikar ”.
I have already pointed out that that was not a Full Bench ruling, andthat even if it had been, the two cases dealt with entirely different kindsof fidei commissa.
In regard to de Sampayo J’s view that the passage cited from Perezius(8.55.12) “ applies even more strongly to a fidei commissum in favour of
SOERTSZ J.—Carolis and Alwis.
163
a family in the narrowest sense ”, if it is carried to its logical conclusion,it surely must mean that in fidei commissa in favour of the membersof a family, acceptance by the immediate donee, if he is the head of thefamily, is sufficient once and for all, and that all the elaborate rules oflaw in regard to acceptance on behalf of minors by the natural or legalguardian and on behalf of those in utero by those who will “be in autho-rity ” over them at birth, would be unnecessary except in simple dona-tions. And who is to be reckoned the head of the family? And whatwould be the position if the gift is to a “ family in the narrowest senseand the immediate donee is notthe head ofthe family ?Mr.H. V.
Perera appreciated this difficultyand stroveto eliminatethosewords
from the judgment. It is true that those words “ the head of the familydo not occur in Perezius, but the fact remains that they formed partof the ratio decidendi of de Sampayo J’s judgment.
To sum up, in regard to these two cases of John Perera v. Avoo ~TiebbeMarikar and Mohideen v. Soysa, the position is that even if we wereto regard ourselves bound by them, they are clearly distinguishable fromthe case before us. The earlier case dealt with a “ perpetual ’’ fideicommissum and in the later case, Lascelles C.J. appears to have takenthe view he did because he considered himself bound by the ruling in theearlier case and also drew what, I have respectfully submitted, was anerroneous inference from the requirement of acceptance on behalf ofminors and those in utero, while deSampayo J.based his decision onwhat,
for brevity, may be described as “the head ofthe family ”theory.The
present case is one of a fidei commissum in favour only of the donee'schildren or grandchildren by representation, or, in another event, ofher brothers and sisters some of whom, at least, were alive at the time.The donee was, in no sense, the head of the family either in regard to herbrother and sister, or even in regard to her children, her father and thechildren’s father being alive at the time.
The third case the appellants relied on was the ruling given in the caseof Ay an Perumal v. Meeyan1. That case too is clearly distinguishablein that there was an acceptance by the father of one minor, theimmediate donee, who was also the grandfather of the other twominor beneficiaries and the acceptor was given a mandate to collectrents and after deducting payments incurred on account of the propertiesgifted, to pay the balance to the beneficiaries “ in the proportion inwhich they are, shall, or may be entitled ”. There was evidence thathe did so enter into possession and carry out. the mandate. That wasa wholly different case and has hardly any application to the facts of thiscase.
I would, therefore, hold that the acceptance by Edith Ruth wasan acceptance, both expressly and impliedly, an acceptance for her-self, and had no further force or effect in law; that she and the donorthe only parties in the deed having joined to re-execute it in themanner stated, there was a revocation of the benefit conferred on the 1stand 2nd plaintiffs by clause 2 of the deed; and that that was a revocation
1 4 G. W. R. 182.
164=
HOWARD C.J.—Petris and Seneviratne.
the donor was competent to make with only the donee’s concurrence,inasmuch as there had been no acceptance on behalf of the 1st and 2ndplaintiffs, of the benefit sought to be conferred on (them.
I would dismiss the appeal with costs.
Howard C.J".—I agree.
Appeal dismissed.