CASIM et al. v. DINGIHAMY et al

053-NLR-NLR-V-09-CASIM-et-al.-v.-DINGIHAMY-et-al.pdf


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Present : The Hon. Mr. A. G. Lascelles, Acting Chief Justice,Mr. Justice Wendt, and Mr. Justice Middleton.
CASIM et al. v. DINGIHAMY et al.
D. G., Matara, 2,885.
Powers of Executor—Will proved before Charter of 1833—Fidei commissumproperty—SalebyExecutor—Roman-Dutch ■ Law—Thirtyyears'
possession — Fidei eommissarius — “ Disability ” — Prescription —Ordinance fio. 22 of 1871.
Held (by the Fall Court), that the executor under the Roman-Dutch Law was merely an agent of the heir and had not the samepower and authority- as an executor under the English Law.
The powers of an' executor appointed under a. will proved beforethe date of the Charter of 1833 must be regulated by the Roman-Dutch Law and pot by the English Law. 1
(1) L. Rr3 p. C. 726; 8 Moore P. C. (N.8.) 122.
9J. K. B 99412 (8/80)
. 1906.August 24.
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1906*According to the Roman-Dutch Law property burdenecj with a
August 24. fidei commissum cannot be alienated by the executor except for the
payment of ■ the testator's – debts and legacies, and then onl/, if there
is no other property available for the purpose; or with the consent ofall the beneficiaries underthefidei commission; orwhere the property
is perishable;or oncertain specialgrounds withthe leaveof the
Court. Whenfideicommissumpropertyis improperly alienated
the fidei commissariusis entitledtofollowit into*he handsof the
purchaser and to assert bis title by rei vindieatio.
Per Middleton J.—'When an executor deals with propertyburdened witha fideicommissum,itis hisduty toobserve thespecial
rules of the Roman-Dutch Law in substance and in practice, so faras his office is compatible therewith.
Section 14 ofOrdinanceNo.22of 1871, enactsas follows:—
" Provided, nevertheless,that ifatanytimewhen the right of
any person- to sue for the recovery of any immovable property shallhave first accrued, such person shall have been under any of the dis-abilitieshereinaftermentioned—that is tosay, infancy,idiotcy,
unsoundnessofmind,lunacy,or absence beyond the seas—thenand
so longassuchdisability shall continue thepossessionof such
immovable property by any other person shall not be taken as givingsuch person any right or- title -to the saidimmovable property, as
against the person subject to such disability or those claiming underhim, butthe periodof ten years required bythe 3rd sectionof this
Ordinance shallcommencetobereckoned from the death of such
last-named person, or from the ' termination of such disability,whicheverfirst 6hallhappen; but no furthertime shall beallowed
in respectofthedisabilities of aDy other person. Providedalso
that the adverse and undisturbed possession for thirty years ofany immovablepropertybyany person claimingthe same, or by
those under whom he claims, shall be taken as conclusive proof oftitle in manner providedby tbc 3rd section of this Ordinance,
notwithstanding the disability of any adverse claimant."
Held (by the Full Court), that " disability " means incapacity todo legalacts,andthat a fideicommissary whose right topossession
has not accrued cannotbe saidtobeunder" disability " within
the meaning of this section.
Held,also,thatthis sectionand its provisoin no way affect
the provisotosection 3 ofthe Ordinance, which enacts that“ the
said period of ten years shall only begin to run against partiesclaimingestates inremainder orreversion fromthe timewhen the
parties so claiming acquired a right of possession to the property indispute,” andthatthirtyyears' possession does not givepres-
criptive title against parties whose right to possession had notaccrued.
D. C., Matara, 3,236 (1) overruled.
A
CTION rei vindieatio. The plaintiffs alleged that Kunji PackeerMeera Kandu Shroff was the owner of the land called Addara-
ederawatta; that he died on 28th April, 1828, leaving a last will 1
(1) S. C. Min., April 3, 1905.
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and testament dated 17th April, 1826, whereby he devised the saidproperty *to Sheikh Abdul Cader and Adibu Natchiya in equalshares subject to a fidei commisaum in favour of their descendants;that probate of the will was granted to Usoof Lebbe Shroff Maricar,the executor named therein; that Sheikh Abdul Cader died on 23rdJune, 1892, leaving two children, viz., the plaintiffs, who thereuponbecame entitled to a half-share of the property according to theterms of the said last will.
The defendants pleaded that the executor in due course of ad-ministration sold the property by public auction on 10th February,1836, to one Christian, through whom they claimed. They also setup title by prescription under section 14 of Ordinance No. 22 of1871, in that they were in adverse possession of the property forover thirty years.
The District Judge (T. E. E. Loftus, Esq.) gave judgment forthe plaintiffs. He held as follows: —
“ The plaintiffs in this case sue to be declared the owners of theland called Ganga-addaragederawatta. This land formed part ofthe estate of the late Meera Kandu Shroff of Matara, a wealthyMoorish gentleman who left an estate valued at £10,000. MeeraEandu Shroff died in 1826 leaving a last will, two translations ofwhich are filed of record.
“At his death his heirs were his two children—Adibu Natchiya,a daughter, and Segu Abdul Cader. Both children were minors atthe time of the testator’s death. Adibu Natchiya was betrothedof the testator’s nephew, who by the last will was created executorof the estate. By the last will certain properties were set apart forcharitable purposes. The remaining properties were specificallybequeathed to the two minor heirs. One of the properties bequeath-ed to the two minors is the land, the subject-matter of this case.Plaintiffs contend that paragraph 6 of the will created a valid fideicommisaum in their favour, and that they are now the lawful ownersof the land, their father Segu Abdul Cader, the son of the testate',having died in 1892. -The defendants claim the land throughvarious deeds from the executor appointed by the testator. Twelveissues were framed. The facts were all admitted, and the questionsfor the decisioi? of this Court are really points of law. The lawbearing on the case was most ably argued by counsel on both sides.One of the principle issues in the case was * Did the will create avalid fidei commissumf ' Mr. A. St. V. Jayewardene contended thatthe wording of the will was loose. Paragraph 6 of. the will left thereader thereof in doubt as to the testator’s intention, and thereforea free inheritance rather than a fidei commissum was to be presumed.21-
1906.
August 24.
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1906. j am nojj aye |j0 agj.ee with. Mr. Jayewardene that there ^an be anyAugvrtZi- (jeybt as to the wording of the will. When the testator orderedthat on the death of hiB children the property should go vo charities,he could only have contemplated their dying issueless. I cannot,however, but think that if this will came up for construction at thepresent day, it would have been held that no fidei commissum hadbeen created, as the parties to be benefited by the will have beenvery vaguely described. It is not, however, open to me to considerthe point. Lawrie A.C.J. in 1897, in deciding D. C., Matara, 1,396,in which this very point came up for consideration, remarked: ' Itis now too late to discuss the question whether the will created afidei commisaum. That was decided by this Court so long ago as1867 (D. C., Matara, 19,100).’
" In D. G., 1,048, Matara, Bonser C.J. and Withers ,T. did notquestion the ruling of the Supreme Court in 1867 that this will didcreate a valid fidei oommissum. When the case (1,048, D. C.), cameup a second time in appeal Withers J. stated: ‘ So we must, governourselves by the former decision of this Court on this very will.The will was held to create a good fidei commissum.'
" I must adopt the finding of the Supreme Court and hold that avalid fidei commissum was created by paragraph 6 of the will. Thenext important point arising for decision was ‘ Had the executor thepower to alienate, and did such alienation confer an absolute title onthe purchaser? ’
“ There were several issues framed on this point. Several SouthAfrican authorities were referred to, but I think most of the leadingauthorities concur in holding that an executor can alienate only forthe payment of debts or legacies. That the defendants’ counselrecognised that such was the law is borne out by the fact that heattempted to establish that the estate was very largely indebted tothe executor (vide document filed by defendants). I am however ofopinion that, in all instances, leave of Court was necessary before anexecutor could alienate property. This view is supported by apassage in Sir Chas. Marshall’s book, p. 191, which appears to havebeen followed by the Supreme Court in D. C., Matara, 19.100.This point again appears to have been decided by the SupremeCourt, for Withers J. in his judgment in W. C.,° Matara, 1,048,remarks: ' and it was held that- the executor had no right to sellany of the fidei committed property.’
“ Mr. Jayewardene doubted whether the Supreme Court wasaware that the property was sold to satisfy debts due by theestate. But the Supreme Court iD deciding D. C., Matara, 19,100,appears to have, had the testamentary proceedings before it, and I
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am sure that the Judges who decided that ease did not fail-to see the isos,accounts! filed in the case, which, accounts defendants now rely on to August 24.prove the indebtedness of the estate. For my own part I must saythat 1 cannot find any proof that the estate was indebted. I canscarcely believe that the executor was so generous as to forego thehuge debt which the accounts filed show was owing to him. Theaccounts are in my opinion utterly false. It is certainly a pity thatthe Court did not call the executor to account. I therefore hold thatthe executor had no right to alienate this land, and the transfer isvoid as against the heirs to be benefited.
“ The next important issue was that of prescription. This issuedoes not appear to have been seriously discussed in any of the previ-ous actions for the recovery of estate lands. In D. C., 1,048, Matara,
Lawrie A.C.J.writes as follows: ‘ The presoriptio longisaimi
tampons was not pleaded. I desired argument on this point inappeal, but counsel for the appellant would not argue it. ' In thepresent case the defendants made it a point to plead title by prescrip-tion, and their counsel pressed the point on the Court. Mr. Java-wardene urged two points, and these were—
" (1) That the cause of action arose when the executor rightly orwrongly alienated the land.
‘' (2) That in view of the opinion contained in Sande on Restraints,part III, chap. VIH, section 5, sub-sections 52-56, thedefendants could yet claim prescription as, they do notclaim directly from the executor.
“ After a careful perusal of the authorities I am of opinion that thecause of action did not accrue until the plaintiff’s father died in 1892.
In this will there was nothing said about the consequences were theprohibition disregarded. Therefore’ the right of action accrued to theplaintiffs only on the death of their father, for even if it be heldthat their father tacitly consented to the alienation, such consent-only amounted to an alienation of his life-interest in the property. Itherefore hold that the plaintiffs are not estopped by prescription fromclaiming the land, and the defendants have not acquired a title byprescription. It is certainly very hard on the defendants to give upthe land now, but I have to administer the law, however hard it maybe. The othejj issues are of no importance. I have held in favourof the plaintiffs on the principal issues. I give judgment for plain-tiffs for the land claimed by them. I award no damages. Let theimprovements effected on the land be assessed by a commissionerto be agreed upon by the parties; plaintiffs will pay the amount ofcompensation to the defendants.”
The defendants appealed.
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1806.
August 24.
H. J ay awar dene {A. St. V. Jayaiwardene with him), for (the appel-lants.—In'view of the previous decisions of the Supreme Court it isconceded that the will creates a good fidei vommissum. ' But it issubmitted that the executor has power to sell property speciallybequeathed, subject to a fidei commissum or not, for the purposes ofadministration, Fernando v. Muncherjee (1); Juta, vol. I., p. 47,vol. II., pp. 181—184, Morice on English and Roman-Dutch Law,p.. 306. Where an executor sells property, the purchaser is entitledto presume that it is sold in due course of administration, and becannot be called upon to prove the necessity for the sale, Gorserv. Cart-wright (2). The case of Marikar v. Cosy Lebbe (3), which relatedto property dealt with by this very will, was wrongly decided. ItBeems to have been based on an erroneous view of the powers ofan executor under the English Law. As regards prescription, thepoint is covered by the decision in D. C., Matara, 3,236. (4), in whichLayard C.J". and Moncreiff J. held, in connection with a propertysold by this very executor, that thirty years’ possession gave anabsolute title against all persons whatsoever under the latter partof section 14.
Van Langenberg for the plaintiffs, respondents.—The English Lawrelating to the powers of an executor does not apply in this’case, asthe will was before the Charter of 1833, which was considered to haveintroduced the English Law of Executors and Administrators intoCeylon, Staples v. de Saram (5); Gavin v. Hadden (6); the mattermust be decided according to the principles of the Roman-Dutch Law,which are fully set out in Marshall’s Judgments, p. 191. It wasthe Roman-Dutch Law that was applied in Maricar v. Cosy Lebbe(3), and that decision has been followed in all the subsequent casesrelating to properties dealt with by this will. At the time thatMaricar v. Cosy Lebbe (3) was decided it was well known, in conse-quence of the decision in Staples v. de Saram (6) that the Charterof 1833 introduced the English Law of Executors and Administrators;but notwithstanding that decision, the principles of the Roman-DutchLaw were applied. It would work great injustice and hardship, ifother principles are applied now and all the old decisions ignored.Such a course would unsettle several titles. As regards prescriptionit is submitted that D. C., Matara, 3,236, was wrongly decided.Section 14 speaks of " disabilities ” only, and thec disabilities arementioned in the first proviso. “Disability ” means legal incapa-city on the part of a person who is entitled to a thing; it does notmean the non-accrual of a right. Section 14 has no application to
(1883) 5 S. C. C. 141.(4) s. C. Min., April 3, 1905.
L. H, 7 H. L. 743.(5) Ram. (1863-1868) 265.
Ram. (1863-1868) 283.(6) 8 Moore's P. C. Appeals, 117.
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persons yhose rights have not accrued yet, and who are not entitled 1806-to possession, and it in no way alters or modifies the proviso to section24.
3. It has already been held in several cases that prescription doesnot begin to run against a fidei commissary until his right to posses-sion accrues, Anthonisz v. Barton (1); Oeddes v. Vairavy (2).
H. Jayewardene, in reply.
Cur. adv. oult.
24th August, 1906. Lascelles A.C.J.—
This i6 one of the numerous cases which have arisen during the lasthalf century under the will dated 17th April, 1826, of one MeeraKandu Shroff, who died shortly after the execution of his will possessedof property valued at £10,000 sterling.
In view of the previous decisions of this Court counsel did notpress the contention that the will did not create a fidei commission.with regard to the property now in dispute, and it may be assumedfor the purposes of this appeal that the property in question was devisedto the testator’s two children, Adibu Natchiya and Segu Abdul Cadersubject to a fidei commissary trust in favour of their descendants. Theplaintiffs are the sons of Adibu Natchiya, who died on 23rd June,1892, and claim under the fidei commissum in their favour an un-divided half-share in the garden in dispute.
The title of the defendants is derived from a conveyance dated, lt)th February, 1836, by which the executor of the will purportedto convey the garden to one Christian.
The points for determination are whether the conveyance by theexecutor passed a good title to Christian and his successors in title,and whether the latter have acquired a title by prescription. Asfar back as 1867 the validity of a conveyance by this same executorof property subject to the same fidei commissum was the subjectof a decision of this Court, Marikar v. Gasy Lebbe (3). This Courtruled in that case, after examination of the testamentary proceedings,that there waS no necessity for the sale and no order of the DistrictCourt for the sale, and that the sale was consequently illegal. Refer-ence was made in this judgment to a passage in Marshall’s reports(apparently based upon an extract from the Supreme Court letterbook dated 30th May, 1835), which, after specifying certain casesin which the law will allow the alienation of fidei commissum property,
(1) (1903) 7 N. L. R. 43 at p. 51.'(2) (1906) 9 N. L. R. 126:
(3) Ram. (1863—1868) 283.
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1006.
Avgust 24.
LASCKIXZIS
A.C.J.
declares (hat in all oases application should in Ceylon i be madeto the District Courts for authority to dispose of 6uch property.
We are now asked to review the decision of this Court and to holdthat the executor’s conveyance did pass a good title to Christian.The real question is whether the validity of this conveyance shouldbe tested by the principles of the Roman-Dutch Law or by those ofthe English Law, which is now in force in Ceylon with regard toexecutors and administrators. The Roman-Dutch Law with regardto the alienation of fidei commissary property will be found in Voet,.36, 1, 62-64, and is summarized in Burge, vol. II., p. 129, and inMaasdorp, vol. I., p. 163. The fidei commissary property cannotbe alienated except for payment of the testator’s debts and legacies,and then only if there is no other property available for the purpose;or with the consent of all the beneficiaries under the fidei commissum,or where the property is perishable; or on certain special groundswith the leave of the Court. When property is improperly alienatedthe fidei commissarius is entitled to follow it into the hands of thepurchaser and to assert his title by rei vindicatio (Voet, 36,1, 64).
The purchaser as a general rule bought at his own risk, and itwas only in cases where it was impossible for him to have notice ofthe existence of a fidei commissum that an executor has made in hisfavour. Voet (36, 1, 63) gives as an example the case of a testatordevising property to his wife unconditionally, but by a codicil tobe opened after his death imposing a fidei commissary conditionon the property. There it was ruled that the purchaser, having nomeans of knowing that the property was subject to a fidei commissum,was entitled to retain it, and that the wife’s heirs should makegood the amount of the purchase money to the fidei commissaryheir. The executor under Roman-Dutch Law was merely theagent of the heirs and had no special authority analogous to thatof the English executor, Staples v. de Saram (1). In D.C., Galle,22,856 (2) the introduction of the English Law of Executors andAdministrators was fully .discussed. The Charter of 1801 wasunderstood to have introduced the English Law on this subject as toEuropeans other than the Dutch inhabitants of the Fort and Districtof Colombo. The Charter of 1833, though it nowhere does so interms, was taken to have established the English Law of Executorsand Administrators throughout the Island, with the addition thatimmovable property vested in the executor in the same way as achattel real. It is clear from Staples v. de Saram (1) that in 1867it was well settled law that the power of an executor in Ceylon are
(1) Bam. (1863—1868) 275.(2) Vanderstraaten (1870), p. 273.
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the same, as those of an English executor. In Marikar v. CosyLebbe (1)( decided also in 1867, the judgment obviously proceededon the footing that the powers of an executor under a will provedbefore the date of the Charter of 1883 were regulated by the Boman-Dutch Law and not by the English Law.
Unless it is clearly shown, which certainly is not the case, that thedecision in Marikar v. Cosy Lebbe (1) is wrong, I .think that we oughtto decide the present case on the principles laid down in that casewith regard to the. same estate in 1867.
Marikar v. Casy Lebbe (1) has been followed in 9ther cases wheresales similar to that now in question have been impeached, both inthis Court and very frequently in the District Court of M&tara.To go contrary to that decision in the present case would be to shakethe title to many holdings which are based ori the previous rulingsof this Court. But I see no reason to question the soundness of thedecision in Marikar v. Casy Lebbe (1). There is certainly nothing inthe Charter of 1833 to warrant the application of English Law to anexecutor appointed before the date of the Charter, and the decisionis in accordance with the Boman-Dutch Law. We now oome to thequestion of prescription. It is admitted that the defendants are no.tentitled to the benefit of the ordinary term of ten years, whichunder the proviso to section 3.of Ordinance No. 22 of 1871 onlybegan to run when the plaintiffs acquired a right of possession,namely, on 23rd June, 1892. Defendants however claim the benefitof the proviso to section 14. The section runs as follows: —
“ Provided, nevertheless, that if at the time when the right of anyperson to sue for the recovery of any immovable property shall havefirst accrued, such person shall have been under any of the disabili-ties hereinafter mentioned—that is to say, infancy, idiotcy, un-soundness of mind, lunacy, or absence beyond the seas—then and solong as such disability shall continue the possession of such immov-able property by any other person shall not be taken as giving suchperson any right or title to the said immovable property, as againstthe person subject to such disability or those claiming under him,but the period of ten years required by the 3rd section of this Or-dinance shall ^commence to be reckoned from the death of suchlast-named person or from the termination of such disability,whichever first shall happen; but no further time shall be allowedin respect of the disabilities of any other person. Provided alsothat the adverse and undisturbed possession for thirty years ofany immovable property by any person claiming the same, or bythose under whom he claims, shall be taken as conclusive proof of
(1) Ram. (1863-1868) 283.
1906.
August 24.
LABCEIiES
A.O.J.
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1006.
August 24,
Lascei/les
A.C.J.
title in manner provided by the 3rd section of this Ordinance, not-withstanding the disability of any adverse claimant.” {■
/
Defendants contend that in the case of possession for thirty yearsthe worcls " notwithstanding the disability of my adverse claimant ”in the proviso exclude the application of the proviso to section 3 tothe effect that the period of prescription shall only run againstparties claiming in remainder or reversion from the time when theparty so claiming acquired a right in possession. Layard C-J. and.Moncreiff J. in D. C., Matara, 3,236 (1)—a case arising under thesame will—have adopted this construction. With the greatestrespect to these learned Judges, I am unable to concur with theirconstruction of section 14. The word ” disability ” in the proviso tosection 14 must, I think, be taken to refer to the disabilities specifiedin the earlier part of the section, namely, infancy, idiotcv, unsound-ness of mind, lunacy, or absence beyond the seas. The word “ dis-ability ” is used and defined in the earlier part of .the section; and inthe absence of any indication of a contrary intention I think theword when repeated in the proviso must- be taken to have thesame meaning.
Further, a fidei commissary whose expectant estate has not yetfallen into possession cannot in any proper sense of the terms bedescribed as being under disability. The word “ disability ” im-plies incapacity to do legal acts.
The fidei commissary heir, before he comes into possession ofproperty, is under no such incapacity. It is true that he cannottake action to claim the property, and for that reason, prescriptiondoes not run against him. But this is because his interest is merelyin expectancy and not on account of any general incapacity to dolegal acts.
I also think that the words “ in manner provided by the 3rdsection of this Ordinance ” show that it was intended that provisionsof that section with regard to persons claiming estates in remainderor reversion should apply to the peripd of thirty years’ possession.If that were not so, the Legislature would surely have used expresswords to exclude these provisions.
In m>y opinion the period of thirty years begins to ryn in the sameway as that of ten years from the date when the claimant to anestate in expectancy comes into possession. This was the rule of theRoman-Dutch Law both with regard to prescription- longi etlongissimi temporis (Voet 36, 1, 64). For these reasons I am ofopinion that the defendants have not gained prescriptive title andthat the appeal must be dismissed with costs.
(1) S. C. Min., April 3. 1905.
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Wendt J^—
This appeal raises two very important questions, the first effectingthe powers of an executor in disposing of his testator’s lands, andthe second as to the true construction of section 14 of the Pres-cription Ordinance, No. 22 of 1871. The facts upon which thesequestions arise may briefly be stated as follows:—One Meera Kandu,being the owner of a very large estate including the lands now suedfor, died on 28th April, 1826, leaving him surviving his son AbdulOader and daughter Adibo Natchiya, both minors, and leaving alast'will dated 17th April, 1826, whereby he devised a moiety of thatland among others to his son Abdul Cader. There were otherdevises in favour of the daughter. It is admitted by defendant (asin view of the old judicial decisions upon the point, it could notbut be admitted) that the will created a fidei commissum in favour ofthe respective descendants of the devisees. The will declared thatuntil the children attained their age of discretion and “ for themanagement of all and singular movable and immovable propertyas hereinafter specified,” the testator transferred “ all his right,title, and power of all such property ” unto his nephew Usubu Lebbe(husband of his daughter), whom he appointed “ as my executorto comply with the following directions after my demise.” Thiswill was duly proved before the Provincial Court of Galle and Mataraon some date not ascertained.
1906.
August 24.
On the 8th June, 1835, the executor without obtaining any orderof Court for the purposes cause the land in question to be sold bypublic auction, when one Christian became the purchaser, and toliim the executor conveyed it by deed dated 29th July. 1835.Christian in 1848 gifted the land to first defendant, who in 1892gifted one-half to the fifth defendant (reserving the right to possessit for life) and in 1893 sold and conveyed the other half to the thirddefendant and one Jayasuriya, and Jayasuriya in 1899 conveyedhis interest to third defendant. Abdul Cader never had possessionof the land, but died on 23rd June, 1892, intestate, leaving as hisonly heirs his .two sons, the plaintiffs, who are now respectively 49and 47 years of age. They bring this action on 7th April, 1902,claiming the land on the footing that under the fidei commissumtheir right to ptossession accrued on the death of their father.
The defendants rely upon two main defences. The first is, thatthe sale by the. executor conferred a good title upon Christian; andthe second, that by over thirty years’ adverse possession they haveacquired absolute title to the land in terms of section 14 of thePrescription Ordinance. As regards the first defence, it wouldappear to be the case, as contended by appellants, that if the
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190®. English Law pure and simple applied—with, of course, the addition
August 24. that a Ceylon executor had the same powers over real property as.
Wbkdt J. an English executor over personalty—Christian acquired a goodtitle aB against the devisee under the last will. But, in the firstplace, we have recognized in Ceylon a modification of the EnglishLaw as to the executor’s rights in land specifically devised, as thesubject of the present action was [see Cassim v. Marikar (1), andDie Kroes v. Don Johannes (2)]. And in the second place, we haveI think to inquire, not what the present law is in regard to thepowers of executors, but what the law was under which the exe-cutor of Meera Kandu’s will was constituted and under which heacted. And here we have to reckon with the decision of the SupremeCourt pronounced in the year 1867 in the case of Marikar v. CasyLebbe (3), a case not only on – all fours with the present, butarising out of the very same will. It was, in fact, brought by thechildren of Adibu Natchiya, after her death, to recover land speci-fically devised to her in fidei eommissum and claimed by the defen-dants under a sale by the executor. The Supreme Court, reversingthe judgment of the District Court, gave judgment for the plaintiffs.They held that there was a good fidei eommissum created by thewill; that a purchaser from an executor was affected with noticeof the contents of the will; that, although a sale by the executormight have been supported if it had been shown to be necessary,the contrary had been shown by production of thp testamentaryoase; and that the omission to obtain an order of Court authorizingthe sale was very significant. It is clear from the references toVoet and Marshall that this Court applied the Eoman-Dutch Lawto the construction of the will, and in defining the executor’s powersregarded him as standing in the place of the “ heir ” burdened witha fidei eommissum. (Note the reference to page 191 of Marshall,who merely summarizes Voet 36, 1, 62, nnd states that the practicein Ceylon requires an application to the Court for leave to sell fideicommissary property).
This decision in the Supreme Court was pronounced by two ofthe very Judges who, less than four months before, ruled that theEnglish Law of Executors and Administrators had been introducedinto Ceylon in respect of all classes of the inhabitants by the RoyalCharter of 1833. It cannot therefore be assumed that the decisionwe are considering proceeded upon a different construction of thatCharter; but rather upon the footing that the law of the Charterdid not apply to the case in hand. And on the very surface a reason
(1) (1892) 1 S. C. R, 180; 2 G. L. R. 72.(2) (1905) 9 N. L. R. 7.
(3) Ram. (1803-1868) 283.
( 239 )
appears for the distinction, because the will took effect in 1829, andthe same was proved in Court at some date anterior to 1829, whereasthe Charted did not come into operation until 1838. In the case ofStaples v. de Saram (1), the case in which this Court declared theprevalence of the English Law, Creasy C.J. pointed out that anexecutor under the Boman-Dutch Law was “ a very differentfunctionary from the one who bears that name under the Englishsystem. He was little more than the agent of the heir appointedby the will. He could not alienate or sell without the heir’s consent,and if the heir would not accept the inheritance the executorship
became a nullity.” It is impossible to hold that this mere agentof the heir, constituted and appointed under the Boman-Dutchsystem suddenly became vested with the powers of an Englishexecutor when, . several years later, the Charter empowered theCourts to appoint officers with those powers. It seems thereforeclear to me that a definition of the powers of the executor here inquestion cannot be looked for in the English Law. The Charter of1801, under which the will was proved, limited (section 53) theapplication of English Law to British inhabitants and Europeansother than the Dutch, their laws and usages in force at the time ofthe British occupation should be administered. This section 53forms a proviso to section 52, which deals specially with testamen-tary and matrimonial causes, suits, and business. The jurisdictionis conferred over all and singular the inhabitants; then followsthe direction I have quoted as to the Dutch and as to the Britishinhabitants, while as regards natives the only special provisionis (section 54) that the jurisdiction in ■ matrimonial causes shall notextend to them. Nothing is said as to testamentary causes, suits,and business to which they are parties. Section 30, however,which conferred the civil jurisdiction, is followed by the proviso(section 32) that “ in the case of Cingalese or Mussulman nativestheir inheritance and succession to lands, rents, and goods, andall matters of contract and dealing between party and party, shallbe determined, in the case of Cingalese’, by the laws and usages ofthe Cingalese, or in the case of Mussulmans by the laws and usagesof the Mussulmans. ’ ’
There is a question in my mind whether the matter of an exe-cutor’s powers falls within this proviso:it is not a matter of
inheritance and succession, and it does not seem to be a matter ofcontract and dealing between party and party. If my doubt iswell founded, the Boman-Dutch Law, as the common law of thecountry, would govern the case as one not provided for in the
(1) Ram. (1863-1868) 265.
1906.
August 24.Wendt J.
( 270 )
1#08. Charter of 1801. But in Gaasim v. Periatamby (lWah actionAugust 24. jjy ^e present plaintiffs in respect of other land alienated by theWendt J. executor in 1889, and in the 6ame position as the subject of thepresent action—Bonser C.J. and Withers J. held that the rightsof the executor to sell and the right of the testator—being a Mussul-man native—to fetter the land by a fidei commissum fell to bedetermined by the laws and usages of the Mussulmans, and theyaccordingly sent the case back in order that evidence might betaken on that point. They at the same time expressed the decidedopinion that if the will was one eovemed by the Roman-Dutch Law,the executor would not have had the power to sell. The evidencerequired having been recorded, the case came, a second time inappeal, before Lawrie A.C.J. and Withers J. The Acting ChiefJustice considered himself bound by the decision in 1867. Withers J.sard the evidence did not throw much light on the local customarylaw, but the result of it seemed to be that there was Mohammedanlaw which recognized testamentary trusts and prohibited executorsfrom alienating trust property without judicial sanction; thereforehe governed himself by the old decision, in which it had been heldthat the will created a good fidei commissum and that the executor’ssale was ultra vires.
In the present case neither party in the Court below appealed. to the Mohammedan Law, and appellants’ counsel did not sugges'that evidence should be taken as to the provisions of that law.Both sides were content to rely upon either the Roman-Dutch Lawor the English Law, and I see no necessity for our entering uponany discussion of the Mohammedan laws and usages. Both sideswere in pursuance of the evidence taken in the case of Cassim v.Periyaiamby (1), and doubtless governed themselves accordingly.
I therefore consider that it has not been proved that the SupremeCourt were wrong when in 1867 they decided the questions raisedaccording to the Roman-Dutch Law. But, even if they erred inso doing, I consider it too late for this Court now to hold differently.There have been many cases decided since, founded on this will,and instituted by claimants under the fidei commissum againstpersons, making title under alienations by the executor and by the•fiduciary Abdul Cader, and in all of them the law laid down byIhis Court in 1867 has been consistently followed and many titleshave been created and extinguished on that footing. To reverse thatlaw now would be to disturb those titles and create confusion, and Ithink there is very good reason to avoid this. I shall briefly referto a few of these oases, taking them in the order of their institution. 1
(1) (1896) 2 N. L. R. 200.
( 271 y
To D.O., Matara, No. 1,048 Gasim v. Periatamby (1) I have alreadyalluded. J
In D.C.,* Matara, No. 1,396, an action by the present plaintiffs,the sale had been made in 1854 by their father. The District Judgeheld there was no fidei commissum, but his decision was reversedin appeal. Lawrie A.C.J. said: “ It is too late now to discuss thatquestion. That was decided by this Court so long ago as 1867—Ram. (1863-68) 283—and I understand from- the judgment of thelearned District Judge that the judgment was followed in subse-quent cases.” Withers J., after referring to the unsatisfactoryevidence taken in Cassim v. Periyatamby (1) as to the Mohammedanusages, considered that the Boman-Dutch Law, as the commonlaw of the Island, should apply and followed the. case in Rama-nathan.
In D. C., Matara, 2,101, Bonser C.J. ' (Withers J. sitting withhim) had again to construe the will. He said the devise in questionhad already received the same judicial interpretation on two differentoccasions; the first as far' back as 1867, and again in 1897; andadded: “ It seems to me that we sitting here are bound to put thesame construction on the devise as the Court has hitherto, done.
I now come to the second defence pleaded, viz., prescription. Itis admitted, as I understand, that Christian and his successors,down to and including the defendants, have possessed and enjoyedthe land ut domini ever since 1835. Unless, therefore, plaintiffs’contention as to the effect of the fidei commissum be well founded,the defendants are entitled to a decree for prescriptive title. It isclear from Voet, 36, 1, 62-64 (McGregor’s translation, pp. 128, 136)that in the case of alienation by the fiduciary, prescription does not.run against the fidei commissary until the happening of the con-ditions upon which his- right to possession accrues: Agere nonvolenti non currit prescriptio. This is only reasonable, for surelythe foundation of prescription is that one man has the right topossession while another enjoys the possession without right. Ifthe former, having the right to interfere, fails to do so within theperiod limited by law, the latter acquires by prescription the rightto that which he has so long without right enjoyed. But on aquestion of proscription we can no longer appeal to the Boman-Dutch Law, inasmuch as the Ordinance No. 22 of 1871 has beenheld to embrace the whole law of prescription in force in this Island;and defendants seek to bring themselves under section 14 of thatOrdinance. Section 3 of the Ordinance in effect enacts that proofof the undisturbed and uninterrupted possession of land by a party to 1
(1) (1896) 2 N. L. fi ann.
1906:
August 24.Wendt J.
( 272 )
190?. an action, by a title adverse to or independent that of his adversary,August 124. for ten years previous to the bringing of such action, shall entitleWendt J. the person to a decree in his favour, “ provided that the* said periodof ten years shall only begin to run against parties claiming'estatesin remainder or reversion from the time when the parties so claimingacquired a right of possession to the property in dispute.”
Sections 4 to 12 deal with, the limitation of various causes of action,and section 13 with the effect of acknowledgments and payments.Then comes section 14, which is in these words:—
" Provided, nevertheless, that if at the time when the right ofany person, to sue for the recovery of any immovable property6hall have first accrued, such person shall have been under any ofthe disabilities hereinafter mentioned—that is to say, infancy,idiotcy, unsoundness of mind, lunacy, or absence beyond the seas—then and so long as such disability shall continue the possession ofsuch immovable property by any other person shall not be takenas giving such person any right or title to the said immovableproperty, as against the person subject to such disability or thoseclaiming under him, but the period of ten years required by the 3rdsection of this Ordinance shall commence to be reckoned from thedeath of such last-named person, or from the termination of suchdisability, whichever first shall happen; but no further time shallbe allowed in respect of the disabilities of any other person. Pro-vided also that the adverse and undisturbed possession for thirtyyears of any immovable property by any person claiming the same,or by those under whom he claims, shall be taken as conclusiveproof of title in manner provided by the 3rd section of this Ordi-nance, notwithstanding the disability of any adverse claimant.”
The proviso with which the section opens is not a proviso to theenactment immediately preceding, but obviously relates to thesubject-matter of section 3, viz., prescriptive title to the land anddeals with “ disabilities.” A ‘‘ disability,” as the etymology ofthe word implies, is some obstacle- which stands in the way of aperson enforcing by action some right which he possesses, andsuch are the instances mentioned in the section: The proviso thenenacts that so long as the disability shall continue possession byany other person shall not avail to give him a prescriptive right,but the period of ten years required by section 3 shall commenceto be reckoned from the death of the person under disability, or fromthe termination of the disability, whichever first shall happen,but that no further time shall be allowed in respect of the disabili-ties of any other person, meaning that if the successor in title of thedisabled person is himself under disability the prescription now
( 273 )
commenced shall continue to run against him. So far there is nota word which could be construed as derogating from the provisoto section # 3, which enacted that prescription could not begin to runagainst remainder men and reversioners until their right to posses-sion accrued. Then follow the words upon which the defendantsfound their case. They are in the form of a proviso and a provisoto the enactment in the earlier part of the same section. Theyordain that adverse and undisturbed possession for thirty yearsshall be taken as conclusive proof of title in manner provided bysection 3, “ notwithstanding the disability of any adverse claimant.”That means, as I read it, that whereas, according to the first enact-ment in section 14, the disability of the owner postponed thecommencement by prescriptive possession until cesser of the dis-ability—whereby the possessor might have to wait sixty or seventyor more years—now, by the proviso, the possessor would acquire titleby thirty years’ possession, even although the owner was under dis-ability all that time. The words “ in manner provided by the 3rdsection ” merely import the benefit of the proviso to that section.The owner may be under disability, but he must be the owner, thatis, he must have the right to possession. Postponement of theright to possession (as in the case of fidei commissaries, who aredoubtless included in the description of remainder men and rever-sioners) is one thing, disability is another. Section 14 and itsproviso deal with disability only, and construed in the way I haveshown they only embody the Roman-Dutch Law. Their operationwill be seen in a case like this. The owner of land entitled topossession of it is an idiot or lunatic, or is absent in England, at thedate when defendant enters and takes possession. He lives forseventy years after and continues to be an idiot or a lunatic, or toreside in England. According to the early part of section 14defendant’s seventy years’ possession gives him no right whatever,and the idiot or lunatic may reserve the land by a curator, or hemay die and his legal representative recover it within ten years ofhis death, or the owner may come to Ceylon and himself recoverit within ten years of his return. But the proviso steps in andenacts that in these cases thirty years’ possession will give thepossessor a title against the owner.
•
The defendant’s view of section 14 was, however, taken by LayardC.J. (Moncreiff J. concurring) in D. C., Matara, No. 3,236 (1), acase arising on the same last will. . With the greatest deference tothe former head of this Court, I am unable to take the same view.It appears to me that that decision proceeded upon’the footing that a 1
(1) S. C. Min., April 3, 1005.
1009.
August 84.Wendt J.
( 274 )
1900.fidei commissary’a not having the immediate right of possession was
August 24. not " disability ” within the meaning of the Ordinance.' For theWhndt J. reasons I have given, I think it clear that it is not. ,
I think therefore that the appeal should be dismissed withcosts.
Middleton J.—
•1 have had the advantage of reading the judgments of my Lordand my brother Wendt, and it is not necessary for me to set outthe facts of this case.
In the first place, considering this Court ruled in 1867 that thewill created a fidei commissum and that such a construction hasbeen acted on since, we ought not now to disturb that ruling.
On the first point, as. to whether the sale by an executor of aproperty burdened With a fidei commissum is good without the leaveof the Court or proof of special circumstances according to the blendof English and Roman-Dutch Law administered in Ceylon, I amof opinion that it would not be good.
The executor, as an instrument in the administration of the estatesof deceased persons, was imported into the Ceylon system of lawas regards all persons in the opinion of the Judges in Staples v.de Saram (1) by the Charter of 1833.
There appears no reason to doubt the correctness of the opinionof the learned Judges. The common law of Ceylon is the Roman-Dutch Law, and amoDgst its institutions are fidei commissa.
It does not appear to me incongruous that in a polygenous countrywith divers systems of law like Ceylon, and where the law as toVaqfs is practically unknown, a Mussulman should employ thecommon law for the purpose of keeping his property in the handsof his descendants.
The law regulating fidei commissa is laid down by the Dutchjurists and collected by Burge, and it seems that property in fideicommissum can only be sold in cases of proved special circumstancesrendering it necessary {Burge, vol. 11., p. 129), and in Ceylon by theauthority of the Court {Marshall’s judgments, p. 191).
It has not been proved here to the satisfaction of the DistrictJudge that any of these special circumstances existed or that theleave of the Court has been obtained.
The executor who in Ceylon has power to deal with immovableproperty in my opinion would only have a right to act accordingto the law in Ceylon affecting the property with which he wasempowered under the will to deal. 1
(1) Ram (1863-1868) 275.
( 275 )
If that property waf3saddled with a fidei commission, it would bethe executor’s duty in dealing with it to observe the special rulesof the Boifian-Dutch Law which apply to fidei commisso in .substanceand in practice so far as his office is compatible therewith, and byEnglish Law a purchaser from an executor is affected with noticeof the contents of the will. For this reason I would hold that weought to follow the decision of this Court in M. L. Marikar $t al. v.Cosy Lebbe et al. (1), which indeed is a decision between other partiesto the same will.
I think also that we should follow it also on the ground that forupwards of forty years it has been followed and deemed to be goodlaw in this Colony, on the principle laid down by Lord Mansfield inTyril v. Fletcher (2), that certainty is of much more consequencethan which way the point is decided.
On the question of prescription by thirty years’ uninterruptedpossession, relied on by the defendants, my opinion is that the fideicommissarii would not have a right to sue (section 14 of OrdinanceNo. 22 of 1871) until the property vested in them, and this couldnot occur till the plaintiffs’ father died on 23rd June, 1892 (Voet, 36,1, 62, MacGregor’s translation, p. 128), and the action was begunon 7th April, 1902.
The proviso to section 3 specially saves the rights of partiesclaiming estates in a remainder or reversion until they acquire aright to possession, and I think goes to show that the word “ disabi-lity ” , in the proviso to section 14 must refer to the disabilitiesmentioned in the preceding part of the section.
T agree that the appeal should be dismissed with costs.
♦ 1
(1) Ram. (1863-1868) 283.
(2) Goioper, p.-166.
1908.
August 24.
Mrooxasoir. J.
22-