DE SARAM et al., Appellants and KADIJAR et al., Respondents

069-NLR-NLR-V-45-DE-SARAM-et-al.-Appellants-and-KADIJAR-et-al.-Respondents.pdf


de Saram and Kadijar.
265
1944Present: Howard C.J., Soertsz, Hearne, Keunemanand Wijeyewardene JJ.DE SAJtAM et al., Appellants, and KADT.TATt et al., Respondents.211—D. O. Colombo, 2,025.
Jftdei commissum-—-Last will of Muslim—Devise of property to vnfe, childrenand fathei—Lawful heirsand heiresses—Prohibition against alienation—
Failure to indicate the reeeipients of testator’s bounty—Time of vestinginvolved in doubt—No valid fidei commissum—Trust.
Wherea lastwillcontainedthe following clauses: —
Idoherebywill and desire thatmywife…. and my
children …. and my father …. who are the lawfulheirs and heiresses of my estate shall he entitled to and take their respect-ive sharesaccordingto myreligionand Shafiesect—to which Ibelong,
bnttheynor their heirs and heiresses shallnotsell,mortgage, or alienate
any ofthelands,houses, estatesor gardensbelongingto me at present,
or which I might acquire hereafter and they shall be held in trust for thegrandchildren ofmychildrenand thegrandchildren ofmy_heirs and
heiresses only that they may receive the rents, income, and produce of thesaidlands,houses, &c., withoutencumberingthem in anyway or the
same may be liable to be seized, attached or taken for any of their debtsor liabilities, and out of such income, produce, and rents after defrayingexpenses for their subsistence and maintenance of their families, the restshall beplaced ordeposited in asafe placebyeachof the parties and
outof such surplus lands should be purchasedbythem for the benefit
and nseof theirchildren andgrandchildren as hereinbefore stated
bntneitherthe executors hereinnamed orany Court ofJustice shall
require toreceive them or ask foraccounts atanytime ortinder any
circumstances except at times of their minority ' or lnnacy.
Ifurtherdesire and request that after my deaththe saidheirsand
heiressesormajorpart of themshall appointalongwith the executors
hereinnamedthree competent and respectable personsof myclassand
getthemovable and immovable properties' ofmyestate divided and
apportionedto each ofthe heirs and heiressesaccordingto their
respectivesharesandget deedsexecutedbji the executorsatthe expense
of my estate in the name of each of them subject to the aforesaidconditions.
Held,by Howard C.J.,Soertszand HearneJJ.(Keuneman
and Wljeybwardknb JJ.dissenting)that thewilldid notcreate a
valid fidei commissum..
PerKeuneman and Wxjetewardenb JJ.-—That thewilldevisedthe
immovableproperty to the deviseesburdenedwitha fideicommissum
in favour of their children and grandchildren in successive generations,and thatthe testator intended to createnotonefidei commissum but
separate fideicommissa affecting each of thedeviseeswiththe
appropriate conditions applicable to each.
C
ASE referred to a Bench of five Judges under section 51 of theCourts Ordinance.
266
de Saram and Kadi jar.
The original owner of the property was one Isubu Lebbe Idroos LebbeMarikar who died in 1876 leaving a last will (P 1) dated December 12,1872, which was .proved in testmentary case No. 3,909 of the DistrictCourt of Colombo and probate was issued to the sole surviving executornamed in the will. In accordance with the directions given in the willthe executor allotted the property in dispute to Abdul Hamid, a son ofthe testator, and conveyed the same to him by deed (P 2) of February 19,1878, subject to the terms and conditions in the will. Abdul Hamidmortgaged the property with Peter de Saram by bond (P 3) of May 15,1931. The bond was put in suit and in execution of the hypothecarydecree entered in the action the property was sold and purchased by theplaintiffs-appellants, as executors of the last will of the mortgagee.
The defendants-respondents, who are some of the children of AbdulHamid, who is dead, disputed the title of the plaintiffs on the groundthat the will created a valid fidei commissum and that Abdul Hamidcould have mortgaged only his fiduciary interest. The learned DistrictJudge held that the will created a valid fidei commissum and dismissedthe plaintiff’s action.
H. V. Perera, K.C. (with him E. B. Wikramanayake and H. Wamiga-tunge), for the plaintiffs, appellants.—-The will (P 1) does not create afidei commissum. It was merely intended to tie up the properties inquestion for all time by means of a trust. The trust, however, failsbecause it offends against the rule against perpetuities. This will wasconsidered in four earlier cases, namely, Sabapathy v. Mohamad Yoosoof,et al.1; Saleem v. Mutturamen Chettiar2 ; Sinnan Chettiar v. MoMdeenet al.3; and Ramanathan v. Saleem et al.* and on each occasion it wasinterpreted in a different manner. The language of the document makesit clear that the intention of the testator was to create a trust. The wordfidei commissum does not occur at all. On the contrary, the word“ trust ” is definitely used. The will was made shortly after OrdinanceNo. 7 of 1871, formally introducing the English law of trusts, was passed.The English law of trusts was part of the law of Ceylon even before thatdate—Supramaniam et al. v. Erampakurukal et al.5. The intention ofthe testator was to create a trust for the benefit of his descendants.
It is impossible to discover who the beneficiaries under the will areand at what point of time any gift over is to take place. The giftover is bad whether the will is regarded as creating a trust or a fideicommissum. There are two conclusive reasons why it cannot be heldthat there is a fidei commissum:—(1) if the word “ they ” referred to theimmediate devisees there is a clear indication that they are not to havethe whole beneficial interest. This separation of legal ownership fromthe beneficial enjoyment of the bequeathed property is characteristicof a trust and is foreign to fidei commissa. A trust does not include afidei commissum—section 3 of the Trusts Ordinance (Cap. 72); EstateKemp v. Me Donald’s Trustee ®.(2) In a fidei commissum, the point of
time at which the property is to go over to the fidei commissaries has to beindicated with certainty. It cannot be said, in the present case, that the
(1935) 37 N. L. R. 70-* (1940) 42 N. L. R. 80.
a (1938) 15 C. L. W. 115.6 (1922) 23 N. L. R. 417.
3 (1939) 41 N. L. R. 225.* S. A. L. R. (1915) A. D.491.
de Saram and Kadijor.
54t57
testator contemplated any particular event or point of time when theproperty should go over. The condition in the will is too vague anduncertain to be enforced. See Sifton v. Sifton 1; Craib v. Lokku Appuet al.z; Kirthiratne v. Salgado 3.
In Ramanathan v. Saleem et al. (supra) the earlier cases were closelyexamined, but it was held that the testator’s intention in P 1 was tocreate a trust which, however, was invalid because it was obnoxiousto the rule against perpetuities. The rule against perpetuities is explainedin London & South Western Rly., Go. v. Gomm*. When we adopted theEnglish law relating to trusts it must be held that we adopted also therule against perpetuities. Ordinance No. 9 of 1917 (Cap. 72) whichdefined the law of trusts includes, in section 110, the rule against per-petuities, thus indicating that it was always a part of our law. In theabsence of any trust or fidei commissum the grantees under P 1 would,as admitted at the trial, get absolute title.
N. Nadarajah, K.C. (with him H. W. Thambiah and R. A. Kannangara),for sixth defendant who is second respondent in appeal.—When themeaning of a will is doubtful that construction ought to be given which isin accord with the testator’s wishes rather than that which would nullifythe same-—Sieyn on Wills (1935 ed.), pp. 32-35. No special words arenecessary for the creation of a fidei commissum. The presence of theword “ trust ” is not, by itself, a bar to construing a document as a fideicommissum,—Annamal v. Saibo Lebbe5; Steyn on Wills (193-5), p. 205;Lee on Roman-Dutch Law, p. 372. There are two elements necessary tocreate a fidei commissum: (1) a gift of property to one person with (2) agift over to another person. Both these ingredients are present in P 1. Thewill creates not one. but several fidei commissa. It was executed beforethe Entail and Settlement Ordinance (Cap. 54) came into operation. Thebeneficiaries are the devisees, their children, and their grandchildren.It is clear beyond any doubt that the ultimate beneficiaries are thegrandchildren of the devisees. Even if there is a gap during which theremay be no fiduciaries the ultimate fidei commissaries will succeed to theproperty when they become qualified. For case in point see Estate Kempand others v. Me Donald’s Trustee6. When no clear condition is attachedas to the time of vesting, property passes on death of the fiduciaries. Adefinite point of time for the vesting of title in the fidei commissaries isnot an essential ingredient. See Abeyratna v. Femwndo et al.7; NainaMarikar v. Amarasuriya 8; Steyn on Wills, p. 167. The dominantintention of the testator in P 1 was that the devisees should not alienateand that the properties should finally go to their grandchildren; all theother provisions ih the will should be construed in such a manner as togive effect to that intention. Assuming, without conceding, that thereis no English trust in P 1, a Court in Ceylon would construe the documentin favour of a valid fidei commissum such as is recognized by the Soman-Dutch law—Weerasekere v. Peiris9; Alia Marikar Abuthahir v. AliaMarikar Mohammed Sally10.
(1938) 3 A. E. R. 435.8 S. A. L. R. (1915) A. D. 491.
3 (1918) 20 N. L. R. 449at458.7 (1911) 14 N. L. R. 307
3 (1932) 34 N. L. R. 69 at 77.8(1918)5 C. W. R. 60.
* L. R. 20 Ch. D. 562.9(1932)34 N. L. R. 281.
5 (1902) 6 N. L. R. 163.10(1942)43 N. L. R. 193 at 204r-5.
208
de Saram and Kadijar.
Whatever may have been the position in regard to resulting andconstructive trusts, the English law relating to express trusts was notapplicable in Ceylon—Narayanen Chetty v. James Finlay & Co.1. Evenif the English law of trusts was tacitly accepted, the rule againstperpetuities did not form part of the law of Ceylon before 1917. Thatrule is based on the common law of England and not on equity—In reAshforth 2 ; Evered v. Leigh *. In the circumstances P 1, if it does notcreate a fidei commissum, can be construed as an instrument of trust.
Cyril E. S. Perera (with him Dodwell Gunawardana and P. Malalgoda),for fifth defendant who is first respondent in appeal.—-Mere pious direc-tions would not impose a trust—In re Oldfield 4 ; Re Downi'.ig s. Notmerely legal title but full dominium was given to the devisees—ReDowning e; Gunawardene v. Visvanathan 7. P 1 therefore does notcreate a trust.
A pure gift with a gift over are the only essentials for a fidei commissum,and the employment of the word “ trust ” does not change the fideicommissary character of the Will—Walter Pereira’s Laws of Ceylon{1913 ed.), p. 430; Jobsz v. Jobss et al.3. As long as the intention tocreate a fidei com-missum is clear the confused or ambiguous nature of thelanguage of the document does not defeat it—Pbvwardene v. Fernando*;Craib v. Lokku Appu et al.10; Coudert v. Don Elias 11; The GovernmentAgent, Central Province v. Silva et al.13-, Seneviratne v. Candappapulleet al.13; Vansanden et al. v. Mack et dl.14; Higgins et al. v. Dawson et al13.When the time for vesting of title is not expressly specified, the eventon which the fidei commissaries are to take over is the death of thefiduciaries—Fernando v. Fernando13; Jayatileke v. Abraham17; Appuhamyv. Jayasooriya 1S; Ismail v. Marikar 19; Pinwardene v. Fernando {supra);Cassim v. Tambi20; Ibanu Agen v. Abeyasekere21; Jobsz v. Jobsz et al.(supra); Wijewardene v. Abdul Hamid et al.22
H. V. Perera, K.G., in reply.—Trusts have been long recognized inCeylon. See section 62 of Courts Ordinance (Cap. 6). They are verydifferent in character from fidei commissa—Morice on English and Roman-Dutch Law (2nd ed.), p. 309. The use of the expressions “ trust ”,“ accumulation of income ”, &c., in P 1 indicates the intention to createa trust. The rule against perpetuities is a substantial part of the law oftrusts. It was an invention of the Chancellors and not based on thecommon law—Vol. 25 Halsbury’s Laws of England (2nd ed.) Art. 173,note (n).
If a fidei commissum was intended to be created in P 1 we are left indoubt as to when the grandchildren get the property and as to theintervening fiduciaries and fidei commissaries. The whole document is
(1927) 29 N. L. R. 65 at 69-70.
L. R. (1905) 1 Ch. 535 at 542.
L. R. (1905) 1 Ch. D. 191 at 196.
L. R. (1904) 1 Ch. 549.
(1889) 60 L. T. (N. S.) 140 at 142.« Ibid.
(1922) 24 N. L. R. 225.
(1907) 3 A. C. R. 139.
(1919) 21 N. L. R. 65 at 67.
19 (1918) 20 N. L. R. 449 at 455.
11 (1914) 17 N.L. R. 129.
(1922) 24 N. L. R. 62.
(1912) 16 N. L. R. 150.
(1895) 1 N. L. R. 311.
48 L. R. l902) A.C. 1 at 10.
(1921) 3 C. L. Rec. 80.
(1914) 4 C. W. R. 31.
13 (1922) 24 N. I/. R. 449.
(1932) 34 N. L. JJ. .198.
(1896) 1 Mat. C. 119.
(1903) 6 N. L. R. 344.
(1909) 12 N. L. R. 241.
HOWARD C.J.—de Saram- and Kadijar.
269
vague and full of uncertainty from beginning to end. Words which werenot used by the testator cannot be read into it—Gdlliers et al. v. Kycroft 1(When the words are capable of more than one construction the Courtwould lean towards the one most in favour of freedom of alienation——Amaratunya v. Alwis 2.
Cur. adv. vult.
May 26, 1944. Howard C.J.—
This appeal relates to the interpretation to be given to the last willand testament of one I. L. I. D. Marikar. This will is dated December 12,1872, and its provisions have been considered by the Court of Appealon four previous occasions. In Sabapathy v. Yoosoof3, in SaleemMutturamen Chettiar 4 and in Sin-nan. Chettiar v. Mohideen 5 this courtheld that the testator had created a valid fidei cornmissum. The fourthcase was that of Ramanathan v. Saleem6 in which it was held thal therights of those who claimed by virtue of a fidei cornmissum were oustedby prescription. In this case, however, doubts were expressed bythe Court as to the correctness of the three previous decisions and theJudges who constituted it were unable to find in favour of a fidei com-missum. In spite of these doubts the learned District Judge consideredhimself bound by those three decisions and has held that ‘' on the deathof Abdul Hameed the fiduciary heirs would be his children and thereforethe 5th and 6th defendants have the right to be in possessionof the property, and that until the death of the children of Abdul Hameedhis grandchildren have no right to the property ”. He, accordinglydismissed the plaintiff’s action with costs. In view of the disparity .of views expressed in the three cases that found in -favour of a fideicornmissum as to the character of that fidei cornmissum and the directconflict between the Judges in those three cases and those who heard theappeal in Ramanathan v. Saleem (supra), the question of the interpretationof the will comes up for consideration under section 51 of the CourtsOrdinance before a court constituted by five Judges.
We are deeply indebted to Counsel on both sides for the able and lueiqlargument that has been put before the court. The fact that we areunable to reach agreement is an indication of the complexity of the-,problem which confronted us in the interpretation of the will of thetestator. The clause in the will and the circumstances in which theproblem of its interpretation arises are set out in the judgments of mybrothers Soertsz and Wijeyewardene J.J. There is, therefore, no necessityfor me to recapitulate those facts. The questions we have to decideare whether the will created a fidei cornmissum and if so, in whose favoursuch fidei cornmissum operates. The first point that attracts attentionis that the words “ fidei cornmissum ” do not appear in the will, whereasthe word “ trust ” is employed. The omission to use the .words “ fideicornmissum ” is not, however, in itself fatal to the creation of a fideicornmissum if such creation can be inferred from the document that suchwas the testator’s intention. On page 136 of Van Der Linden’s Insti-tutes of the Raws of Holland, the author states that no peculiar words
(1899) 3 Bed. Rep. 74 at 83.*ISC.L.W.115.
(1939) 40 N. L. R. 363 at 365-6.’41N.L.R.225.
37 N. L. R. 70.•42N.L.R.80.
270
HOWAED C.J.—de Saram and Kadijar.
are neeessary to the creation of a fidei commissum provided the personto whom the property is to go over is clear. On the other hand theprinciple is formulated in Voet (Mo Gregor's Translation, bk. XXXVI.,tit. T) that where there is any doubt it is presumed that the directsubstitution is intended. In a South African case, Cruse v. Pretoriua'Eocecutors1 Sir Henry de Villiers C.J. stated as follows: —
“ Where it is matter of doubt whether a fidei commissum has beenimposed or not, that construction should rather be adopted which willgive the legatee or heir the property unburdened.”
Again in another South African case, .Esc -parte Van Eeden, BadenhorstN. O., and Bombard, N. O. ( (1905) S. C. Transvaal 151) Innes C.J".stated at page 153 as follows: —
“ In this case, as in the majority of cases which arise with regardto the construction of wills, what the court has to do is to endeavourto arrive at the intention of the testators; and to arrive at thatintention not by considering what we think it would have been a goodthing if they did mean, or what they ought to have meant, but byascertaining the plain meaning of the words used. If those wordsin a case like the present are capable of more than one construction,then of course the court would lean towards the one most in favourof freedom of alienation. But if the testators’ language admits ofonly one construction then we must give effect to it, regardless of theconsequences. ’ ’
. Doubt, however, must not be confounded with difficulty. In this con-nection see the following dictum of Lord Porter in the Privy CouncilAppeal No. 2 of 1942, Noordeen v. Badurdeen and others:—
“ Difficulty of construction alone would not prevent the creationof a fidei commissum. To bring about that result doubt is required,either as to whether such a condition has been created or who are therecipients of the bounty.”
The principles to which reference is made by text-book writers have beenfollowed by our Courts. In Ibanu Agen v. AbeyaseJcere z the followingpassage at p. 346-347 from the judgment of Wendt J. is of particularinterest: —
“ In construing a will the paramount question is, what was theintention of the testator. And if it is clear that the person to whomthe property is in the first place given is not to have it absolutely;if it is also clear who is to take after him, and upon what event, thenthe Court will give effect to the testator’s intention. No particular -formof words is necessary to create a fidei commissum (Voet, XXXVI. 1, 10;Van Leeuwen, Censura Forensis, pt. 1, lib. 3, cap. 7, sec. 7). Wherethe intention to substitute another (or fidei commissary) for the firsttaker (or fiduciary) is expressed or is to be gathered by necessaryimplication from the language of the will, a fidei commissum is con-stituted. Where these requisites appear, it matters not that thelanguage employed is open to criticism, and therefore too much weightought not' to be attached to decided eases in which the courts, seekingto ascertain the testator’s intention from variously worded wills and 2
* 9 B. 124.
2 6 N. L. R. 344.
HOWARD C.J.—de Saram and Kadijar.
271
"varying circumstances, have pronounced for or against the fideicommissum. One principle of construction, however," is generallyrecognized, and that is that, where there is doubt, the inclinationof the Court is against putting any burden upon the inheritance—Tina *. Sadris 7 S. G. C. 135, per Fleming A.G.J., citingVan JLeeu'wen’s Commentary, lib. 3, 8, 4: Kotze’s Trans. Vol 1,p. 376.
In Wijetunga v. Wijetunga1 it was held as follows: —
“ An important test to be applied in considering whether a will orother iristrument creates a fidei commissum is whether any provisionor stipulation expressed in it can be regarded as having been insertedfor any purpose other than that of creating a fidei commissum. If thisquestion cannot be answered in the affirmative, then other provisionsand stipulations in the instrument, if they are susceptible of an inter-pretation that is not inconsistant with the conception of a fideicommissum, must be given that interpretation.”
In his judgment at page 496 Pereira J. stated as follows: —
‘‘ If the intention of a donor or testator to create fidei commissumis clear, and the words used by him can be given an interpretationthat supports that intention, I should be slow to embark on a voyageof discovery in search of possible interpretations that defeat thatintention. In the words of Van Leeuwen again:In fidei commissis
sola testat.oris voluntas spectatur, nec solum. verbis expressa, sed et tacitaet ex conjectura collecta (Cens. Por. 1, 3, 7, 7).”
The opinion of Pereira J. in Wijetunga v. Wijetunga was cited withapproval by Shaw J. in Mirando v. Coudert 2.
Can it be said that the will of the testator indicated an intention tocreate a fidei commissum? If so, is it clear to whom the property is togo over? Is it apparent what person or class of persons are to be benefitedafter the death of the fiduciary ? A further point arises as to whether,even conceding that the testator desired to create something in thenature of a fidei commissum, the will expressed anything further than awish on the part of the testator that his descendants should not alienatethe property without imposing on them any legal obligation. It hasbeen argued on behalf of the appellants that the use of the words “ shallbe held in trust ” in paragraph (c) of clause 1 of the will indicated anintention to create something which in English law is known as a trustrather than a fidei commissum. Perusal of the text-books on Eoman-Dutch law and local decisions indicates that the word “ trust ” has beenemployed in connection with the creation of fidei commissa and doesnot in itself indicate an intention to create an English trust rather thana fidei commissum. On the other hand, I do not think it is open to thisCourt to speculate as to whether a notary in 1872 when asked to giveeffect in a testamentary disposition to the intentions of the testatorwas more likely to have in mind the provisions relating to the Englishlaw of trusts or those relative to the Roman-Dutch law of fidei. commissa.
J 15 N. L. R. 493.
* 19 N. L. R. 90.
272
HOWARD C.J.—de Saram and Kadijar.
•In this connection I would cite what was said by Sir Henry de Villiers inGalliers v. Kycroft 1: —
“ To read into a will words which the testator has not. used, topresume an intention which the testator has not expressed, can onlybe justified by a positive rule of construction having the force of law.”
Innes C.J. in Estate Kemp v. Me Donald’s Trustee 2 stated as follows :—*
“ The truth is that a decision upon the meaning of one will is oftenof no assistance in ascertaining the meaning of another, in spite ofsurface similarities between the two. Each document must, be read asa whole and must stand upon its own language.”
• There is no doubt that the testator in making his testamentary dispositionwas inspired by a desire that there should bG no alienation by his des-cendants or at any rate by the two generations that succeeded him ofwhat I will describe as the family immovable property. Eirst of allthe “ lawful heirs and heiresses ” of his estate and their ” issue or heirs ”are prohibited from alienating any of the lands, houses, estates or gardensbelonging to him or which he might acquire hereafter. Then follows atrust in favour of the “ grandchildren ” of the testator’s children and” the grandchildren of his hens and heiresses ”, they, meaning either thelawful heirs and heiresses and their issue and heirs, or giving a moregrammatical interpretation to “ they ” meaning grandchildren of hischildren and the grandchildren of his hen's and heiresses, receivingonly a proportion of the rents and income of the property sufficient fortheir subsistence, the surplus being devoted to the purchase of landsfor the benefit and use of the children and grandchildren of the lawfulheirs as hereinbefore stated. Then follows a clause that seemsto oust the jurisdiction of the Courts except “ at times of their minorityor lunacy ”. I need hardly say that the material clause is exceedinglydifficult to construe. The grammar is atrocious. This in itself is nota sufficient reason for not finding a fidei commissum if the intention isplain. As Ihave already pointed out,thetestator first of all evinces
an intentionto prohibit alienationbythetwo succeeding generations
or in perpetuity. This is followed by the creation of a trust of surplusfunds to be devoted for the purchase of lands for the" benefit of thechildren andgrandchildren of thelawful heirs. It cannot, owing to
the ambiguity of the phraseology, be said with certainty whether thesepersons are also restrained from alienating. In fact it is a matter ofdoubt whether or not there is a prohibition in perpetuity against aliena-tion. Are the fidei commissarii the children or the grandchildren of thetestator’s lawful heirs? Can it be said that there are any ultimate bene-ficiaries? Itis impossible to say.Intherecent Privy Council Case,
.No. 2 of 1942, cited above, in the judgment of their Lordships LordPorter said: —
“ As they have indicated their Lordships do not think that there: is any doubt that the testator intended to create a fidei commissum.‘It is true that as a general rule a class too wide for ascertainment1 3 Bat. Rep. 74 at p. 83.a (1915) S. A. Law Rep. A. D. at p. 505.
SOEBTSZ J.—de Saram and Kadijar.
273
as in Dias v. Kaithan 1 or too vaguely described as in Amaratungav. Alzois 2 would prevent a fidei commissum from attaching and itmay well be that in the present case such 3 result would have followedif the translation adopted by the learned District Judge were correct.But if the translation which was approved by the Supreme Court befollowed, there is a definite and easily ascertained class and indeedone whose limits are more clearly drawn than were those of therecipients in Perera v. Per era {supra).”
There is no certainty with regard to the beneficiaries. The class is toowide for ascertainment and too vaguely described. Hence for thisreason alone I am of opinion that it has not been established that thetestator intended to create a fidei commissum.
Having regard to the use of the words “ will and desire ” and theousting of the jurisdiction of the Courts, I have come to the conclusionchat the testator has not done more than express a desire that his des-cendants should not alienate the family property but has not imposedon them any obligation binding in law not to do so. In these circum-stances the dictum of de Villiers C.J. in Cruse v. Pretorius’ Eaecutors3is applicable and as it is a matter of doubt if a fidei commissum hasbeen imposed, the will must be construed as giving the heir theproperty unburdened.
I have had the advantage of reading the judgment of Soertsz J.and agree with him that, apart from the impossible task of discoveringwho the testator intended to benefit, there is a further difficulty withregard to the time of vesting. Can it be said that the testator has createda binding trust? If so, it offends the rule against perpetuities and is,therefore, void.
For the reasons I have given I am of opinion that the appeal must beallowed and decree entered as prayed by the plaintiffs against all thedefendants and with costs in both this Court and the Court below againstthe 5th and 6th defendants.
Soertsz J.—
The last will and testament with which we are concerned inthis case, like the Witches’ cauldron, appears to hold “ a charm ofpowerful trouble ”. Three different Benches of this Court have alreadyextracted three substantially different fidei commissa from it. It nowcomes before us, on a reference made under section 51 of the CourtsOrdinance, for us to consider whether it created a fidei commissum atall, and if it did, for us to find what precisely that fidei commissum is—theone defined in the case of Sabapathy v. Yoosoof 4; or that in Saleem v.Mutturamen Chettiar s, or that in Sinnan Chettiar v. Mohideen- s, or someyet undiscovered fidei commissum.
The clause in the will which has caused all this controversy and provokedthis embarrassing variety of views is in these terms:—“ I do herehywill and desire that my wife Assena Natchia …. and mychildren Mohamadoe Noordeen, Mohamadoe Mohideen, Slema Lebbe,1 2 N. B. R. 233.4 37 N. R. 70.
* (1939) 40 N. L. R. 363.3 9 B. 124.
5 IS C. L. W. 115.• 41 N. L. R. 225.
274
SOERTSZ J.—de Saram and Kadvjar.
Abdul Ryhiman, Mohamadoe Usubu, Amsa Natehia and Savia Umma,and my father Uduma Uebbe Usubu Lebbe who are the lawful heirs andheiresses of my estate shall be entitled to and' take their respectiveshares according to my religion and Shafie sect—to which I belong, butthey nor their heir or heiresses (according to the copy of the will filed inthis case) or, issues or heirs (according to the copies in all the othercases) (the record of proceedings in which the original will is said tohave been filed, is lost) shall not sell, mortgage, or alienate any of thelands, houses, estates or gardens belonging to me at present, or which Imight acquire hereafter and they shall be held in trust for the grand-children of my children and the grandchildren of my heirs and heiressesonly that they may receive the rents, income and produce of the saidlands, houses, gardens and estates without encumbering them in anyway or the same may be liable to be seized attached or taken for anyof their debts or liabilities, and out of such income, produce and rents,after defraying expenses for their subsistence and maintenance of theirfamilies the rest shall be placed or deposited in a safe place by each of theparty, and out of such surplus lands should be purchased by them for thebenefit and use of their children and grandchildren as hereinbeforestated, but neither the executors herein named or any Court of Justiceshall require to receive them or ask for accounts at any time or under anycircumstances, except at times of their minority or lunacy.”
Stated in a few words, the circumstances in which this clause arises forinterpretation in the case we are dealing with are these: —At the dateof the death of the testator, on May 8, 1876, his father whom he hadnamed in the will as an heir was dead, and another child, a son, AbdulHamid, had been born. No question appears to have arisen—andthere is no question now—in regard to this child’s right to take a share,for the surviving executor acting in compliance with a request containedin another clause in the will, executed deed No. 247 dated February 19,1878, transferring to him the house and premises in litigation here " tohave and to hold the said premises …. subject to the trusts andconditions in the said last -will and testament contained, that is to saythat he or his issues or heirs shall' not sell, mortgage or alienate the saidpremises but the same shall be held in trust for “ the grandchildren ofmy children and the grandchildren of my heirs and heiresses only thatthey may receive the rents, income and produce …. except attimes of their minority or lunacy ”(as in the will).
In 1931, Abdul Hamid mortgaged this property with Peter de Saram.His executors, the plaintiffs before us, sued on the bond and havingobtained a hypothecary decree, purchased the property at the sale heldin execution of the decree. They now seek to be declared entitled to theproperty as against the defendants who, they allege, are in wrongfulpossession. The first to the fourth defendants who are the children of adeceased daughter of Abdul Hamid disclaimed title in the course of theproceedings in the Court below. They were added as parties respondentsto this appeal and were given notice of the appeal, but they have takenno part in it. The fifth and sixth defendants, however, who are theother children of Abdul Hamid, dispute the plaintiffs’ claim, the fifthdefendant, on the ground that his father held the property “ subject to a
SOEKTSZ J.—de Saram and Kadijar.
276
fidei commissum in favour of the grandchildren of the said Abdul Hamidand subject to the other conditions and restrictions … and
this defendant, fifth and the sixth defendants, who are the children of thesaid AbSul Hamid, are in lawful possession of the said premises,” thesixth defendant going further to state that “ this defendant (sixth) and thefifth defendant who are the fawful children of the said Abdul Hamidare fiduciaries under the last will and as such are in the lawful possessionof the premises.”
From these answers to the plaintiffs’ claim it would appear that thefifth and sixth defendants took each a different view of the effect of thedevise, the sixth defendant asserting that he and his brother werefidei commissaries while the fifth defendant made no such assertion.
The learned trial Judge, bound as he declared himself to be by earlierdecisions of this Court given in interpretation of this will, upheld theposition taken by the sixth defendant, for he found, that " on the death ofAbdul Hamid, the fiduciary heirs would be his children and, thereforethe fifth and sixth defendants have the right to be inpossession of the property, and that until the death of the children ofAbdul Hamid, his grandchildren (i.e. inter alia first to fourth defendants)have no right to the property.” He accordingly dismissed the plaintiffs’action with costs.
Before going on to consider the relevant clause for ourselves, it would beconvenient to examine the views taken in the three earlier cases. In thefirst of these cases Akbar and Koch JJ. held that there was a fideicommissum in favour of the grandchildren of the testator’s daughterAmsa- Natehia—it was her property that was involved in that case—and that as many of those grandchildren as were ascertainable, at thetime the prohibition against mortgaging was violated by one of AmsaNatehia’s daughters, succeeded to that daughter’s share, but that thosegrandchildren would have to suffer a reduction in those shares, if andwhen other grandchildren came into existence.
The next case was that of Saleem v. Mutturamen Chettiar 1 in whichMaartensz and Moseley JJ. agreed with the view taken in the first casethat the will created a fidei commissum and that the fidei commissarieswere the grandchildren of Amsa Natehia—her property being theproperty again involved—but they differed from the earlier Bench inregard to the time of vesting and, on that point, they held that, in theabsence of an express statement in the will “as to when the propertiesare to devolve, they must be deemed to pass on the death of the fiduciaryheirs —meaning, in the context, the devisees expressly named in thewill.
In the third ease—Sinnan Chettiar v. Mohideen a—another inter-pretation was given in regard to both matters. The fidei commissarieswere found to be not the grandchildren of Amsa Natehia—her propertybeing once more involved—hut her children, and after them the grand-children. As to the time of vesting, it was held that “the event on thehappening of which the property devolves on each succeeding set offidei commissary heirs is the death of the immediate previous fiduciarywho last entered into the possession of the property.” Incidentally,1 ISC. L. W. 115.2 41 N. h. R. 225.
276
SOEB.TSZ J.—de Saram and Kadi jar.
it is worthy of observation that the two different interpretations of thedevise indicated in the answers filed by the fifth and by the sixthdefendant in regard to the fidei commissaries recur in these judgments.
The finding in Sinnan Chettiar v. 'Mohideen that Amsa Natchia’schildren constituted the first set of fidei commissaries is said to be deducedfrom the prohibition imposed on them against selling, mortgaging, or alien-ating the properties of the estate, but that infeience overlooks the full con-notation of the words used by the testator—“ heir or heirs ” or “ issuesor heirs ”—for those words, assuming a fidei commissum to have beenintended, contemplate a much wider class than “ children If thewords actually used are “ heir or heirs ” then under the Muslim lawaccording to which the testator directed that shares should be taken,those words indicate a large group including wives, father, mother,brothers, sisters, and even the poor (see sections 52, 54. 56 of the Moha-medan Law Ordinance). If, however, the actual words be taken to be“ issues or heirs ”, confusion is worse confounded- If “ or ” in ” issues orheirs ” is given its ordinary meaning, there is the bewildering uncertaintyresulting from the choice that appears to be given. But, if “or” isgiven the force of “ and ”, there emerges an indeterminate and almostunlimited group. In either event, there is a failure to designate orindicate sufficiently ‘ ‘ the recipients of the testator’s bounty ” and theattempted fidei commissum fails in limine.
In regard to the assumption that a prohibition against alienationpresupposes the conveyance of a title with a view to a fidei commissumI would only observe that such a prohibition is not inconsistent with theidea of a trust. The other view that the grandchildren of the deviseeswere the only fidei commissaries appears to be simpler and more consistentwith the express words of the testator, assuming, of course, that heintended to create a fidei commissum. But then, the question arises,who, upon that view, are the grandchildren that the testator can besaid to have had in mind as fidei commissaries. For instance, this beinga ease of separate fidei commissa, would the property that, on distribution,went to a particular child he held by him for his own grandchildrenonly, or for the grandchildren of his brothers and sisters as well ?According to the plain meaning of the words used by the testator inthe will and repeated, word for word, by the executor in the deed toAbdul Hamid, the property was to be held in trust “ for the grand-children of my (the testator’s) children”. In the earlier cases, it appearsto have been assumed that each child would hold for his own grand-children only. But the testator has not said so, nor has his executor.In fact, their words tend in the contrary direction.
It is not only the question of the fidei commissaries that is wrapped indoubt, but also that of the time of vesting. The view in the first casethat the violation of the prohibition against mortgaging, &e., resultedin the fidei commissaries being called upon to take at once, was dissentedfrom in the two later cases. No attempt was made before us to reinstatethat view. Indeed it is quite untenable. What then is the time orcondition of the gift over ? Surely not the death of the “ fiduciaryheir ”, that is to say of the relevant devisee, as Maartensz J. thought itmust be deemed to be. The words of the testator do npt say that at
SOEBTSZ J.—de Saram and. Kadijar.
277
all, nor can that be inferred by necessary or even by reasonable implicationas one may infer, for instance, in a case where the designated fidei com-missaries are successive classes—* ‘ descendants from generation togeneration ”, ” children, grandchildren, great grandchildrenIf from
the words ” in trust for the grandchildren of my children, &c.”, it ispermissible to infer that the death of the devisee is the event determiningsuccession it would be equally reasonable to infer some other event to bethe determining factor, such as the birth of the first grandchild, or of allthe grandchildren on their attaining majority and so on and so forth tillconjecture and ingenuity are exhausted. In these circumstances it isincredible that if the testator had set out to create a fidei commissum., hecould or would have left both the fidei commissaries and the time ofvesting involved in such doubt and uncertainty.
As I ventured to observe in the case of Ramanathan v. Saleem *, assumingan intention to create a fidei commissum, it can scarcely be contended thatthe ultimate beneficiaries the testator contemplated were the “ grand-children of his children and of his heirs and heiresses ” for that contentionignores the immediately following words ” only that they may receivethe rents, income and produce of the said lands, houses and gardenswithout encumbering them in any way as the same may be liable to beseized, attached or taken for any of their debts and liabilities ”, wordswhich, according to their grammatical arrangement and according to theirplain meaning, must be understood as defining and limiting the interestthose ‘ ‘ grandchildren of my children and of my heirs and heiresses ” wereto take. It would do violence to the structure of the sentence to read theadverb ” only ” as modifying the phrase ” grandchildren of my childrenand of my heirs and heiresses ” and not as modifying the subsequentwords ‘' that they may receive ”. Similarly, it would be ungrammaticalto treat the antecedent of “ they ” in the phrase “only that they mayreceive ” as the original devisees and not the immediately preceding“ grandchildren of my children and of my heirs and heiresses ”. Thewhole sentence, properly construed, seems to mean that the testator desiredthat the devisees should hold the properties in trust for the ” grand-children, &c. ” only that those grandchildren might take the rents andprofits, subsist on them, and devote the surplus to the acquisition ofother property for the benefit of their own children and grandchildren whoin turn are placed under a similar obligation by the use of the words“ as hereinbefore stated ”. This interpretation that the grandchildrenof the children of the heirs and heiresses ” were not given an absolutetitle appears to be supported by the fact that in regard to them too thereis a prohibition against alienation similar to that imposed at the beginningof the clause. I cannot regard the second prohibition as no more than arepetition of the prohibition imposed on the first group and affecting themand not the 11 grandchildren, &c. ”
In short, the testator does not appear to have contemplated fideicommissaries because he was not thinking in terms of a fidei commissum.He, more probably, contemplated a perpetual trust in a sense muchwider than the trust that the law of England regards as obnoxious to theperpetuity rme of which he was, most probably, not aware. But for this
1 42 N. L. R. SO.
278
SO'EliTSZ J-—de Saram and Kadijar.
perpetuity rule, there are, as Akbar J. observed in his judgment inSabapathy v. Yoosoof, indications' that the testator was thinking of atrust. The will says,–in so many words, that the lands, &e., of the estateshall be held “ in trust ” for the grandchildren, &c. Now, the view hasbeen inveterate in our Courts that the English Law of Trusts was longago received into the law of this country—(Ibrahim v. Oriental BankingCorporation *; Suppramaniam v. Erampakunikal 2) and as for fideicommis'sa, they have been part of the law of the land from the time ofthe Dutch. In an endeavour to ascertain as far as possible, what thistestator had in mind, one may, therefore, I think, regard it as a point ofsome importance that he used the words “ in trust ” rather^ than thewords "under the bond of fidei commissum” or "subject to fideicommissum ", at least equally familiar phrases as our Law Reports show.It must, however, be conceded that there are instances in which thephrase “ in trust for ” occurs when, by every other token, the creationof a fidei commissum is indicated. But, in this instance, there is additionalsignificance in the use of the phrase "in trust for” for the reason that thewill was executed on December 13, 1872, less than two years after thepassing of the Ordinance entitled " An Ordinance to amend the law ofProperty and to relieve Trustees ”, and we find, on the one hand, thisOrdinance providing, inter alia, that—
" any person, having first obtained permission from the Court, mayfile a petition in the name of any lunatic or infant interested in anytrust fund,"
and for an inquiry to be held thereupon; and, on the other hand, wefind a provision in this will, that the beneficiaries shall not be calledupon to account " except at the time of their minority or lunacy ”.This is either pure coincidence, or the testator and the notary had theOrdinance in front of them, or at any rate vividly in mind. Both thesefacts tend to show that the testator’s and the notary's minds wereoccupied with the idea of a trust. Above and beyond these facts theseparation of the legal and equitable estates that results from theinterpretation suggested that the antecedent of the word “ they " in thephrase " only that they may receive ”, is " the lawful heirs and heiressesof, my estate ”, an interpretation according to which the character ofthose heirs and heiresses would be that of trustees with a certain interestin the equitable estate too, namely the right to subsistence and main-tenance, and the definite provision for the accumulation of the surplus.income suggest that the testator contemplated something more in thenature of a trust than of a fidei commissum but the rule against per-petuities and the uncertainty in which he left the question of the bene-ficiaries and of the time at which they were to call in the legal estatefrustrated the contemplated trust.
For my part, I have already stated my reasons for not being satisfiedthat the antecedent of “ they ” is that suggested and I have pointed outthat, at least as strong a contention is possible in support of the view thatthe proper antecedent of " they ” is the “ grandchildren of my children,&c. ” and I have dealt with the real doubt that exists in regard to the1 3 N. L. R. 148.* 23 N. L. R. 417.
HEAHNE J.—de Saram and Kadijar
279
fidei commissaries and to the time of vesting even if the original devisesare treated not as trustees but as fiduciary heirs. There was somequestion, during the argument, as to whether the English rule againstperpetuities is part of our law of trusts, but in my view, there can be nodoubt on that point for the rule against perpetuities is an integral partof the English Law of Trusts itself, quite apart from its place in commonlaw.
This is not a case in which by reasonable adaptation of the wordsused by the testator or his notary or by correction of grammatical errors,the meaning of the clause in question can be ascertained with a feelingof comfortable assurance, but rather a case in which the more that clauseis examined the deeper the sense of enigma, and "although it is probablynever done to mix sonnets with fidei commtssa or with trusts, the lineskeep recurring with an insistence that cannot be resisted :
“ We ask and ask. Thou smilest and art still,
Out-topping knowledge.”
It was submitted to us that where indications exist that the testatorintended to tie up his property for the benefit of his descendants, weshould endeavour to give effect to that intention. That, of course,almost goes without saying, but always subject to the limitation thatsolicitude for the descendants of a testator, should not be permitted toprejudice creditors by urging us to resort to adventurous thought in anattempt to grope along a conjectural way to a fidei commissum. AsTheir Lordships observed in the Privy Council in the course of theopinion delivered by Sir Hemy de Villiers in the case of Galliers v.Kycroft1, “ To read into a will words which the testator has not used, topresume an intention which the testator has not expressed, can only bejustified by a positive rule of construction having the force of law ”, andagain, in the words of Innes C.J. in the South African ease of Ex parteVan Eden and others (1903) Transvaal Repts. 151 “ WJiat the Courthas to do is to endeavour to arrive at the intention of the testatorsnot by considering what we think it would have been a good thing if theydid mean, or what they ought to have meant, but by ascertaining theplain meaning of the words used. If those words are capable of morethan one construction, then of course, the Court would lean towards theone most in favour of freedom of alienation.”
On the view taken by the District Judge, judgment should have beenentered for the plaintiffs for a one-third share of the premises in questioninasmuch as the 1st to 4th defendants who are the • grandchildren of AbdulHamid, the children of a deceased daughter, declared that they did notcontest the plaintiffs’ claim, but for the reasons I have given, I wouldallow the appeal and enter judgment for the plaintiffs in terms of theirprayer with costs of both Courts to be paid by the 5th and 6th defendants-respondents.
Hearste J.—
This appeal concerns the interpretation that is to be placed on a willin so far as it relates to immovable property. The will deals with
i (1889) 3 Bed. Rep. p. 74.
280
HE ARNE J.—de Saram and Kadijar
immovable property which belonged to the estate of the testator at deathand also purports to deal with immovable property which, if his directionswere followed, would have been purchased after death.
With the latter we are not concerned.' The property involved in thisappeal was not purchased after the testator’s death. It formed partof his estate at death and the provisions of the will which relate to suchproperty are these : —
“ I will and desire that my wife, my children and my father (they arenamed in the will and will hereafter be referred to as the devisees) ….shall be entitled to take their shares …. but they or their heirs
or heirs shall not sell, &c(on the contrary) they (the
devisees or their heir or heirs) may only receive the rents, &c., and afterdefraying their expenses lands should be purchased by them . . .
1 have so far quoted the provisions of the will in regard to the dutiescast upon the devisees to collect the rents, &c., and to disjjose of them in aspecified way. In regard to the corpus of the estate, “ the lands, housesand gardens ” belonging to the testator at death “ they shall be held intrust for the grandchildren of my children and the grandchildren of myheirs and heiresses ”
It has been argued that the intention of the testator was to create afidei commissum. That may be so, but the question to be answered isnot so much what he intended as what is the meaning pf the words heused. For his intention must be sought in his words and not be foundedupon speculation.
What then is the meaning of the will ? -Does it create a fidei com-missum ? Was there a devise of property to fiduciary heirs for thebenefit of fidei commissarii ? Was there provision made in the willin regard to the time when the property was to vest absolutely in fideicommissarii ? Are they designated in the will ?
It would appear at once that, although there is a devise to certainnamed persons (the wife, the children and the father of the testator)of property for the ultimate benefit of certain other persons (“ the grand-children of my children and the. grandchildren of my heirs and heiresses”),the former were not given the status under Roman-Dutch law of fiduciaryheirs. They were not entitled to the beneficial interest in the propertydevised to them. On thecontrarythey were required to invest the
rents and profits in immovable property, not for their own benefit,but for the benefit of “ their children and grandchildren as herein-before stated ”, and in return they were allowed to retain only so muchof the rents and profits as was necessary for the maintenance of them-selves and their families. In other words, their status was that pftrustees witha limited interest inthe income fromthe property. I
do not intend it to be understood that, in my opinion, the testator createda valid trust. Far from it. Even if all the elements of a trust could begathered from the terms of the will, it would infringe the rule againstperpetuities. But it does appear that the intention of the testator,so far as it can be ascertained from his language, was to confer on thedevisees not the character of fiduciary heirs but of trustees.
Under theRoman-Dutchlaw thedominium as wellas the beneficial
interest wereunited in thefiduciaryand passed usuallyat death, to the
HE ABN E J.—de Sorom and Kadijar
281
fidei commissarii. The interests of the fiduciary, legal and beneficial,and those of the fidei commissarii were successive. The idea of theseparation of the legal and beneficial interests, the legal from the equitableestate—as in English law where the former is in the trustee and thelatter is in the cestuigue trust—had not been evolved.
It was, to my mind, precisely in conformity with this idea and not inconformity with the Roman-Dutch law conception of the position of afiduciary that the will was drafted The devisees were to “ takethe property, collect the rents, &c., and invest them; in return they wereentitled to their living expenses. They were given the dominium but notthe beneficial interest.
The concluding portion of the will is as follows:—“ But neither theexecutors herein named or any Court of Justice shall require to receivethem or ask for accounts at any time or under any circumstances . . .
If the devisees were fiduciary heirs with the legal right to all the incomefrom the property devised to them, the executors could not ask for anaccounting. Is it not clear that while the testator hoped there would beno litigation over his will, he was placing the devisees on their honour,not as fiduciary heirs entitled to the whole of the income derived fromimmovable property in which they had a beneficial interest, but as trusteesthe terms of whose trust he had laid down- It appears to me that whenthe testator said that the devisees were to hold their “ shares ” in trust,he meant exactly what he said, namely, as trustees.
This view of the matter has been met by the suggestion—it is, I say,with respect, a very drastic suggestion—that that portion of the willwhich deprived the devisees of their enjoyment of the “ fruits of posses-sion ” should be disregarded as being of no effect in law.
There is no doubt that if a fidei commissum is assumed, then the onlyway of dealing with a clause which deprives the fiduciary heirs of theirbeneficial interest, which is repugnant to the Roman-Dutch law con-ception of the position and rights of a fiduciary, would be to ignore it.But, by doing this, one would not be construing the will of the testator.One would be constructing a will for him out of a part and not out of thewhole of what he said. Surely the will must be examined in its entirety,not in disregard of a most important provision, but in the light of it.
The assumption that the testator intended to create a fidei com-missumis based mainly upon the prohibition against alienation. But this isfar from being conclusive. A prohibition may be imposed in a will whena trust is contemplated. It is true that it is unnecessary to do so, butit is equally unnecessary in the case of a fidei commissum.
But even if the assumption is made, are all the elements oi a fideicommissum, set out in the will ? As we are dealing with the “ share ”of immovable property “ taken ” by Abdul Hamid, one of the childrenof the testator, I would confine myself to his case. Who are the fideicommissarii who, according to the intention of, the testator, were tosucceed ultimately to the " share ” taken by him ? Are they “ thegrandchildren of my children ”, that is to say. all the great grandchildrenof the testator, or only the great grandchildren of the testator who arethe grandchildren of Abdul Hamid ? The answer to this question,it is argued, would depend upon whether the testator intended to create
TECBAKNE J.—de Sararn and Kadijar
a fi.dei commissum in respeet of all the shares of property takenby all the children or a separate fidei commissum in respect of each'■ share taken ” by each child. But is there any indication in the will ofwhat the testator intended ?
When was the “ share '* of Abdul Hamid to devolve on the fidei com-missarii whoever they might be ? It is argued that it would take placewhen his “ heir or heirs ” died. But this again is merely an assumption.There are no words, such as for instance “from, generation to generation”on which such a conclusion could be based. One could as easily, Or justas arbitrarily, assume that the attainment of majority by the fidei com-missaiii was the time the testator had in mind.
Finally who are Abdul Hamid’s heirs ? If the testator intended tocreate several fidei commissa, that is to say a separate fidei commissumin respect of each “ share ” taken by each of his children, the heirs ofAbdul Hamid would be his children and his heirs other than his children,e g., his wife. His heirs would not include his brothers and sisters. If,on the other hand, the testator intended to create a joint fidei commissumin respect of all the property taken by all his children, the fiduciary heirsor the heirs of Abdul Hamid in respect of the “ share ” taken bv himwould include his brothers and sisters. Can it confidently be said whathe intended ?
In previous appeals in which the same will has been construed(37 N. L. R. 70, 15 C. L. W. 115, 41 N. L. R. 395) the words correspond-ing to “ they or their heir or heirs ” are “ they or their issue or heirsI am told that the testamentary case in which the original will wasincluded is missing. If the word “ heir ” should be “ issue ”, as isprobably the case, a further difficulty must be faced. I shall illustratewhat I have in mind by reference to a previous judgment of this Court.
In 37 N. L. R. 70 Akbar J. deduced from the prohibition that “ thedominium vested (he took the case of a single devisee) in the devisee andthen in his issue or heirs But in another passage he held that “ afterthe devisee’s death the propertywas to pass tohis issue andheirs
Can it be said what the testatorintended ?Didhe intend, asAkbar J.
put it, that the dominium in respect of the shares, “taken” by hischildren, should pass to his children and in the event of his childrenhaving no issue to their heirs, in other words to issue or heirs; or did heintend that the dominium should pass from his children to his children’sissue and their heirs ? Whether the testator intended, if he intended tocreate fidei commissa at all, that the second set of fiduciaries should be“ issue or heirs ” or ‘' issue and heirs ”, he would make provision fornon-alienation by heirs. It doesnot followfromthe prohibitionthat the
testator intended (a) that the heirs shouldsharethe dominiumwith the
issue or alternatively (b) that the heirs should take the dominium onlyin the absence of issue. Hither is possible, but neither has been providedfor expressly or by necessary implication.
The conclusions at which I have arrived are—
It is impossible to hold from the language of the will that the
testator intended to create a fidei commissum.
If he did, he failed to achieve his object. The requisites of a valid
fidei commissum have not been satisfactorily set out.
KEUNEMAN J.—de Saram and Kadi jar.
283
The wording of the will, and the effect of its provisions, strongly
suggest an attempt to create a trust.
In this attempt, if it was consciously made, the testator failed.
Applying these conclusions to the facts of the case Abdul Hamidtook his share absolutely. That share has legally passed to the plaintiffsand they are, therefore, entitled to the decree for which they prayed. Iwould allow the appeal. The plaintiffs’ costs in the trial Court and hereare payable by agreement by the 5th and 6th defendants only.
Keuneman J.—
I do not think it is necessary to set out the facts of the case, which arefully set out in other judgments. I am also of opinion that we must acton the footing that Abdul Hameed, the son of the testator, though notspecifically named in the will, was bound by the terms of the will P 1.Not only was this the agreed basis at the argument before us, but furtherit is clear that deed P 2, by which Abdul Hamid derived title, specificallyimposed on him the terms of the will.
The principal matter we have to decide is the interpretation of the termsof the will. There have been considerable differences in previous deci-sions as to the meaning of its language. It must be admitted that thedraftsman of the will had a very imperfect mastery of the F.nglishlanguage, and in several instances disregarded the rules of grammar.In fact, when I first read the will, it reminded me very strongly of ajigsaw puzzle, with the pieces confused and disarranged, but as I examinedthe pieces and began to arrange them a distinct pattern emerged, whichI think indicated with sufficient clearness the intention of the testator.I can best show how I arrived at this intention, by examining the varioussections of the will separately, and by considering how they fitted in tothe picture I arrived at finally. The italics in each section into whichI have divided the terms of the will are my own.
The first material section of the will rims as follows: —
A.—“ I do hereby will and desire that my wife …. (named)and my children …. (named) and my father ….(named) who are the lawful heirs and heiresses of my estate,shall be entitled to and taTce their respective shares according tomy religion and Shafei sect to which I belong – . . .”. 1
(1)I think this section is of considerable importance. When weexamine section H later, we shall see that the testator was dealing withboth “movable and immovable properties In view of the fact thatthe conditions in the will are only imposed in respect of the immovableproperty, it is clear that the testator was giving to his “ heirs andheiresses ” absolute dominium in respect of the movable property.This throws a strong light on the intention of the testator with regard tothe immovable property also. In that case also I am inclined to thinkthat the testator granted to the “ heirs and heiresses ” plenum dominium.which however was subject to the conditions later set out.
284
KEUNEMAN J.—d'e Saram and Kadijar.
It may be noted that as the testator was a Muslim, his wile and hisfather as well as his children would be among his * ‘ heirs and heiresses ’ .
-—. .“ but they nor their heir or heirs shall not sell,
mortgage or alienate any of the lands, houses, estates or gardens» »
The word “ they ” in this context clearly refers to the “ heirsand heiresses ” of the testator: for the purposes of convenience I shallhereafter refer to them as the devisees.
It is clear that the prohibition against alienation only applies tothe immovable property, and that the movable property is not affectedby the prohibition.
There is no indication in the whole will that the transfer of dominiummust take place in the case of an alienation. This particular clause maytherefore be regarded as nugatory, in the sense that there was to be notransfer of dominium, on alienation.
The reference to the “ heir or heirs ” of the devisees is of importance.
I think this indicates that the “heir or heirs” of the devisees were expectedby the testator to have an interest in the land. If the devisees, as Ithink, were to have plenum dominium, their “ heir or heirs ” were alsointended to have the same.
Ir> the will P 1 the phrase used is “ heir or heirs In AbdulHamid’s deed P 2 the words used are “ issues or heirs ”. I shall showlater that section F throws some light on what is meant by the term“ heir or heirs ”.
The clause prohibiting alienation is very commonly found inCeylon in the case where a fidei commisaum is created, but it need notnecessarily be restricted to a fidei commissum.
— . . . . “ and they shall be held in trust for the grandchildren
of my children and the grandchildren of my heirs and heiresses ”.
The word “they” in this context clearly refers to the immovableproperty.
I think this section indicates a paramount intention to benefit thegrandchildren of the devisees, but in itself it is not sufficiently clearas to when and how they are to be benefited.
At first sight the use of the word “trust” may appear to indicatea trust as understood in England, but on the contrary I think it has beenmade abundantly clear that the word “ trust ” is frequently used todescribe what the Roman-Dutch law regards as a fidei commissum.I do not think we are entitled to draw any inference from the mere useof the word “ trust ”.
—“ . . . . . only that they may receive the rents, income and
produce of the lands …. without encumbering themin any way or the same may be liable to be seized, attached ortaken for any of their debts or liabilities . – .
(!) There has been a notable difference of judicial opinion as to themeaning of the word “ they ”. After considering the clause itself in itscontext, and the previous opinions expressed, I have come to the con-clusion that the word “ they ” means the devisees. It is to be notedthat the word “they” has occurred twice previously. In section B
KEtJNEMAN J.—de Saram and Kadijar.
285
“they” relates to persons and clearly means the devisees. In section C- “they” relates to things and means the immovable property. In thissection “they” again refers to persons and I think it is used in the samesense as in section 33. Of course if the word “they” is to be given astrict grammatical construction, it would refer back to the immediately ■antecedent phrases “ grandchildren of my children ” and “ grandehildron of my heirs or heiresses ”, but I think that without any excessiveviolence to grammar it may be referred back, not to the word “ grand-children ”, but to the words “children” and “heirs and heiresses” i.e.,to the devisees themselves, or even referred further back to section Awhich sets* out the devisees.
(2) I think this construction is the most reasonable, because otherwise(see section E) the condition with regard to accumulations would notapply to the devisees or their children, but would only become operativein tne third generation, i.e., in the case of the grandchildren of thedevisees. I think the interpretation I have given of the word “ they ”is the most reasonable.
(8) In fact all Counsel, including appallants' Counsel eventually, gavethis interpretation to the word “ they ”.
I incline to the opinion that this section is a mere amplification ofthe conditions including the prohibition against alienation, imposed onthe devisees.
This amplification does not apply to the “ heir or heirs ” of thedevisees but only to the devisees themselves.
I may emphasize the fact that the devisees are entitled to receivethe rents, income and produce of the lands. I think this is a furtherargument in favour of the view that the devisees were to have plenumdominium.
—“.and out of such income …. after de-
fraying expenses for their subsistence and maintenance of theirfamilies, the rest shall be placed or deposited in a safe place byeach of the party ”.
Clearly a wish as to accumulation is superimposed on the devisees.Such a wish, as far as I know, has not been connected with a fidei commissum in Ceylon, and is very reminiscent of English law, but
At the same time we have already seen that the devisees were to “beentitled to and take” their shares (see section A) and to receive the income{see section D). Under the present section they were entitled to take fortheir own use out of the income sufficient for their “subsistence” andfor the “maintenance of their families ”. Certainly the devisees werenot to be bare trustees. I think that on a construction of the wholewill, the devisees were given plenum dominium, subject to a wish expressedas to a restriction on the use of the income and as to the accumulationof the balance or surplus.
The use of the words “subsistence” and “maintenance of families”appears to suggest that the interest of the devisees is restricted to theirlives. I think there is some indication here that the interest of the
-devisees was to continue only during their lives.
286
KEONEMAN J.—de ,Saram and Kadijar.
"F-—. . . and out of such surplus lands should be purchasedfor the benefit and use of their children and grandchildren anhereinbefore stated ….
I think the key to this section is the phrase “ as hereinbeforestated . . . .This is a clear reference back to the earliersections (see A. B. C.). The persons to be benefited are not only thegrandchildren but also the children of the devisees. This is the firstspecific reference to the children of the devisees, and I think this throwsa light on the words “ heir or heirs ” in section B. I am of opinionthat by the phrase " heir or heirs ” of the devisees was meant .that specialclass of heirs, viz., the children of the devisees.
T think the will shows an intention to benefit three classes of bene-ficiaries, the devisees, their children, and their grandchildren. There is asufficient indication in the will that each class should hold their interestfor life, and that successive interests should arise on death.
G.—“…. but neither the executors herein named or any
Court of Justice shall require to receive them or ask for accountsat any time or under any circumstance, except at times oftheir minority or lunacy ….”.
The testator appointed as his executors his younger brother andone of his sons.
The words “ receive them ” are not very clear. I think in thecontext they probably mean “receive the income ”.
The word “ their ’’ 1 think refers to the devisees.
The testator’s wish as to accumulation and purchase of newproperties was only imposed on the honour of the devisees. Neitherthe executors nor any Court could call them to account or claim thesurplus income. This perhaps fortifies the view that plenum dominiumwas vested in the devisees.
The only special cage contemplated by the testator was theminority or lunacy of any of the devisees. In that case the executorsor the court could claim the income and apply it according to the wishesof the testator. This seems to be a reasonable exception.
H.—“…. I further desire and request that after my death
the heirs or heiresses or the major part of them shall appointalong with the executors …. three competent andrespectablepersons …. and get themovableand
immovable property of my estate divided and apportioned toeach of the heirs and heiresses …. and get deeds exe-cutedin the name of each of them subject- to the
aforesaid conditions ”.
It is clear, as already pointed out under A, that the testator wasdealing with movable as well as immovable property.
It js clear that the testator intended to create not one fidei com-missum but a number of fidei commissa affecting each of the devisees withthe appropriate conditions made applicable to each.
In substance then I hold that the testator devised the immovableproperty to the devisees, burdened with a fidei commissum in favour of
KECTNEMAN J.—de Saram and Kadijar.
287
their children and grandchildren in successive generations. The fideicommissum was to become operative on death in each ease. The deviseeswere requested to apply the surplus, after they had provided for " theirsubsistence ” and “ maintenance of their families ”, to the purchase ofimmovable property subject to similar conditions, but this wish was notenforceable by any person or in any Court, except where the devisees wereminors or lunatics. As the will was executed before the Entail andSettlement Ordinance of 1876, the fidei commissum is operative to the fullextent to which it has been imposed.
1 have endeavoured in this analysis to ascertain the intention of thetestator, so far as it can be obtained from the will. I am well awareof the difficulties which arise as to the construction of the will, but inmy opinion the intention of the testator to create a fidei commissumhas been expressed with sufficient clearness. On this point I may citea dictum from a recent judgment of the Privy Council (Noordeen v.Badtirdeen and Others, Privy Council Appeal No. 2 of 1942)—
Difficulty of construction alone would not prevent the creationof a fidei commissum. To bring about that result doubt is required,either as to whether such a condition has been created or who arethe recipients of the bounty. ’ ’
In the present case, 1 do not have a doubt as to these two points.But even if my conclusion, in construing the will, that the children of thedevisees were to be beneficiaries, is inaccurate, there can, I think, be nodoubt that the grandchildren of the devisees were to be the recipientsof the bounty. I have set out my reasons for holding that the deviseesthemselves were only to be fiduciaries, and that the property in theestate was to pass over to the beneficiaries on the death of the devisees.
I love considered the alternative suggestion that what was intendedwas a trust as known in England. I think it has been made clear in thecourse of the argument that at the date of this will (December, 1872)the law of trusts had been recognized in this Colony, and accepted aspart of our law, though the extent of this acceptance may remain amatter for inquiry. The term " trust ” is actually mentioned in thewill, as well as the words “ for the benefit and use ”. But as I havepointed out, this phraseology is inconclusive.
I have shown earlier that the interest given to the devisees moreclosely resembled the interest of a fiduciary as known to the Roman-Dutchlaw than the interest of a trustee as known in England. I have alsobeen satisfied, on the language of the will, that the interests were suc-cessive rather than concurrent. There is the further point that thisinterpretation that the will created a trust is put forward merely todefeat the intention of the testator, because it is urged that the willoffends against the rule against perpetuities, and it is argued that theride against perpetuities has also been introduced into Ceylon. In theresult I am not disposed to accept the argument that the will created atrust, as known in England.
The effect of my finding is that the interest of Abdul Eameed ceasedon his death, .and that the plaintiffs who are purchasers from AbdulHamid had no title to the premises at the date of their plaint.
The appeal is dismissed with costs.
266
WiJEYEWABDBNB J.—de Saram and Kadijar.
WlJEYEWARDBNB J.
One Isubu Lebbe Idroos Xiebbe Marikkar, who was the original owner ofthe property in dispute and several other properties* died in 1876, leavinga last will 3? 1 dated December 12, 1872. That last will was dulyproved in Testamentary Case No. 3,909 of the District Court of Colomboand probate was issued to the sole surviving executor named in the will.
3n accordance with the directions given in that last will, the executorallotted the property in dispute to Abdul Hamid, a son of the testator,and by deed P 2 of February 19, 1878. conveyed the same to him subjectto the* terms and conditions set out in the last will. Abdul Hamidmortgaged the property with Peter de Saram by bond P 3 of" May 15,1931. That bond was put in suit and the property was sold in satisfactionof the hypothecary decree entered in the mortgage action and waspurchased by the plaintiffs-appellants, as executors of the last will of themortgagee. The conveyance issued in favour of the plaintiffs is P 7of July 7, 1938.
The defendants-respondents, who are some of the children of AbdulHamid, who is now dead, dispute the title of the plaintiffs-appellants,on the ground that P 1 created a fidei eommissum and that Abdul Hamidcould have mortgaged only his fiduciary interest by bond P 3.
The plaintiffs-appellants have preferred the present appeal from thejudgment of the District Judge dismissing their action.
The contention for the appellants was that the testator intended tocreate by P 1 and did in fact create, a trust, as known to the Englishlaw, in favour of the grandchildren of his children and grandchildrenof his “ heirs and heiresses ” and remoter descendants, but that the trustwas void, as it offended the rule against perpetuities. Briefly, the Counselfor the appellants adopted the view expressed in Ramanathan v. Saleem 1.The respondents contended, on the other hand, that the last will createda fidei eommissum.
I give below the relevant clauses in the copy of the last will produced •in the case. (I have divided the first clause into a number of paragraphsin ordet to facilitate reference to them in the course of my judgment.)
Clause 1.
T. do hereby will and desire that my wife Assena Natehia. daughter
of Seka Marikar, and my children Mohamadoe Noordeen, Moha-madoe Mohideen, Slema Lebbe, Abdul Tty him an, MohamadoeUsubu, Amsa Natehia and Savia Umma, and my father UdumaLebbe Usubu Lebbe who are the lawful heirs and heiresses ofmy estate shall be entitled to and take their respective sharesaccording to my religion and Shafie sect—to which I belong,
but they nor their heir or heirs shall not sell, mortgage or alienate
any of the lands, houses, estates or gardens belonging to me atpresent or which I might acquire hereafter,
and they shall be held in trust for the grandchildren of my children
and the grandchildren of my heirs and heiresses only.
1 (1940) 42 N. L. R. 80.
WUETBWAEDENE J.—de Saram and Kadijar.
(.7) that they may receive the rents, income and produce of the saidlands, houses, gardens and estates without encumbering themin any way or the same may be liable to be seized, attached ortaken for any of their debts or liabilities,
and out of such income, produce and rents after defraying expense
for their subsistence, and maintenance of their families the restshall be placed or deposited in a safe place by each of the party,
and out of such surplus lands should be purchased by them for
the benefit and use of their children and grandchildren ashereinbefore stated,
(a) but neither the executors herein named or any Court of Justiceshall require to receive them or ask for accounts at any time orunder any circumstances, except at times of their minorityor lunacy.
Clause 2.
I further desire and request that after my death the said heirs andheiresses or major part of them shall appoint along with theExecutors herein named three competent and respectablepersons of my class and get the movable and immovable pro-perties of my estate divided and apportioned to each of the heirsand heiresses according to their respective shares, and get deedsexecuted by the executors at the expense of my estate in thename of each of them subject to the aforesaid conditions.
I may add that, in the copies of the last will produced in the earliercases where the same will has been construed, the words “ issue or heirsoecur in place of “ heir or heirs ” in paragraph (b) of clause 1. Thesame words “ issue or heirs ” occur in the executor’s conveyance P 2..
Tt is also desirable to observe at this stage that Abdul Hamid in whosefavour P 2 was executed was not a child of the testator mentionedin the last will P 1. It was stated at the argument before us thatAbdul Hamid was a child of the testator born after the execution ofP 1, and it was agreed by the appellants and the respondents that theargument before us should proceed on the footing that the last willapplied to Abdul Hamid as if he were, in fact, on of the children of thetestator named in the will.
As the last will P 1 was executed before the Entail and SettlementOrdinance, 1876 (Legislative Enactments Vol. 2, Chap. 54), cameinto operation, the question whether P 1 created a fidei commissumhas to be determined according to the principles of Eoman-Duteh lawand independently of the provisions of that Ordinance.
According to the Roman-Hutch law authorities, no particular wordsare necessary for the creation of a fidei commissum, if it can be collectedfrom any expressions in the instrument that it was the testator’s intentionto create it. (1838) 2 Burge 106. It is not, therefore, of much signi-ficance that the word fidei commissum is not mentioned in the lastwill P. 1. In a fidei commissum the only thing that is taken into aeoountis the intention of the testator and it is not only his verbally expressedintention that is looked to, but also that intention which is tacit and
10-
J. ST. A. 93349 (11/49)
290
WTJE YEWAJtDENE J.—de Saram and Kadijar.
may be deduced from the words used as a necessary or manifest conse-quence (Censura Forensis 1,3,7,7,8.). On the other hand, there is thewell known rule that in case of doubt the presumption is in favour of directrather than of fidei commissary substitution (Voet 36.1.1.). It should,however, be remembered as pointed out in a South African ease (referredto at page 11 of Me Gregor’s translation of Voet’s Commentaries on FideiCommissa) that 11 doubt must not be confounded with difficulty ”. Withregard to the proposition that fidei commissa are “ odious ”, Voet states.
“ It is commonly laid down that fidei commissa are odious in respectof the person burdened, and are strictly interpreted and must not beextended from person to person nor from one case to ariother:and
this contention must be allowed if circumstances do not point inanother direction, as has been made clear in the different cases wehave already examined, especially since the testator’s wishes oughtto be regarded and observed above everything else, and consequentlythose general rules about the interpretation of fidei commissa oftenhave a certain use but often are fallacious.” (Voet 36.1.72.)
Discussing these principles Wendt J. said in Ibanu Agen v. Abeyasekera1.
“ Where the intention to substitute another (or fidei commissary)for the first taker (or fiduciary) is expressed or is to be gathered bynecessary implication from the language of the will, a fidei commissumis constituted. Where these requisites appear it matters not thatthe language employed is open to criticism.”
This view was adopted and acted upon in Wijetunga v. Wijetunga2 andMirando v. Coudert 3. In the latter case of Mirando v. Coudert Shaw J.said—
‘‘ I agree with the opinion expressed by Pereira J. in Wijetungav. Wijetunga (supra) that if the intention of a donor or testator tocreate a fidei commissum is clear, as it appears to me to be in thepresent case, and the words used by the donor or testator can begiven an interpretation that supports that intention, one should notembark on a voyage of discovery in search of a possible interpretationthat defeats that intention.”
The principles set out in these cases should be followed more readily inconstruing a last will.
Keeping these principles in view I proceed to consider clause 1 of thewill in detail.
Paragraph (a) indicates that the testator devised his movable andimmovable property to his father, wife and children whom he calledhis “ lawful heirs and heiresses ”. I would refer to them in my judg-ment as immediate devisees. Paragraph (b) shows that those imme-diate devisees or their “ heir or heirs ” do not have the right of aliena-tion in respect of the immovable property, and that, therefore, theydo not get the immovable property absolutely. Paragraph (c) indi-cates that the ultimate beneficiaries under the will are the grand-children of his immediate devisees. Paragraph (d) states that ‘‘ they(namely, the immediate devisees) may enjoy the income of the property.i {1903) 6 N. L. R. 344.2 (1912) 15 N. L. R. 493.
(1916) 19 N. L. R. 90.
V U li. Jl i** VV AK.Uii.-N it J.—ae tSaram and Kadijar.291
This clause does not provide for the “ heir or heirs ” of the immediatedevisees enjoying the income. This is probably due to a clericalerror, but “ the bequest with respect to a fidei commissum remains offorce notwithstanding' a clerical error and although the fidei com-missary clause be inadequately worded ”. (De Bruyn’s Opinionsof Grotius page 284 Section 1.) Apart from that, paragraph (d) is nota necessary paragraph. The property is given absolutely by paragraph(a) and the immediate devisees and their “ heir or heirs ” are prohi-bited by paragraph (b) from alienating the property. It must followas a necessary consequence from paragraphs (a) and (b) that theimmediate devisees and their “ heir or heirs ” would have the rightof enjoying the income. The omission, therefore, to mention uie“ heir or heirs ” of the immediate devisees in paragraph (d) does notcreate any difficulty with regard to the interpretation of the will.Paragraph (e) along with paragraphs (f) and (g) refer to the fundwhich the testator wanted to be established by the immediate deviseesfor the purchase of the properties by them.
Paragraph (f) shows that the properties to be purchased with theaid of the fund were to be held for the benefit of “ the children andgrandchildren as hereinbefore stated ”, i.e., the children and grand-children of the immediate devisees. This indicates—as has beenmade clear bv paragraphs (b) and (c)—that between the “ imme-diate devisees ” mentioned in paragraph (a) and the ultimate benefi-ciaries—the grandchildren mentioned in clause (c), there was anintervening group. Even if there is no such intervening group thatwtuld not invalidate the fidei commissum.
Paragraph (g) refers to the minority or lunacy of the immediatedevisees.
It will thus be seen that the last will gives the plena proprietas to theimmediate devisees by paragraph (a), then prohibits them from alienatingthe properties by paragraph (b) and imposes a burden by paragraphs, (b)and (f) in favour of their “ heir or heirs ” and grandchildren, the grand-children being the ultimate beneficiaries. Paragraph (d) is merely expla-natory of the joint effect of the earlier paragraphs. Those paragraphs(a), (b), (c) and (d) create a valid fidei commissum. There is nothing■da the paragraphs (u), (f) and (g) to prevent a Court from holding infavour of a fidei commissum. It was argued for the appellants thatthese paragraphs deprived the immediate devisees of a part of theirbeneficial interests by directing them to form a fund out of a portion oftheir income. I do not think that any legal effect can be given to theseparagraphs. as the immediate devisees cannot be asked to account for thesurplus which, it was desired, they should contribute to that fund.Moreover, even if the immediate devisees are deprived of a part of thebeneficial interest, I do not see how that fact invalidates the fideicommissum created by the earlier paragraphs.
It was argued in favour of the appellants that the words “ shall be heldin trust ” in paragraph (c) of clause 1, indicated an intention on the partof the testator to create a trust. But-there are many instances in thetext hooks on Boman-Dutch law and in the decisions of this Court where
292
WIJEYEWAJRDBNE T.—de Saram and Kadijar.
the words “ trust ” and “ fidei commissa ” have been used as interchange-able terms. (Henry’s Translation of Vander Linden p. 113; WalterPereira's Laws of Ceylon, 1913 Edition, page 451; Tillekeratne v. Abeye-sehere 1 and Jobsz v. Jobss 2).
There is no doubt whatever that the testator, a Muslim, who engageda Sinhalese Notary to prepare this will in English, did not intend to givethe property absolutely to the immediate devisees but subject to certainlimitations. I do not think there is anything in the language used in thewill which compels us to say that the testator has failed to express thisintention with sufficient clearness. According to my reading of thelast will, the testator has imposed a burden on the property and hasindicated the persons in whose favour the buiden was imposed. I donot think that the testator or the Notary intended to create a trust.It is no doubt true that there are old decisions of this Court which havebeen decided according to the principles applicable under the English'.Law of Trusts. I believe, however, that most of the decisions dealtwith implied or resulting trusts. We have to consider here an expresstrust and even at the present day most Notaries and their Ceyloneseclients are, I believe, more conversant with the notions of a fidei com-missum than of a trust in spite of the introduction of the law of trusts byOrdinance No. 9 of 1917. In these circumstances, I do not think Ishould lightly impute to the testator an intention to create an EnglishTrust and not a fidei commissum and then proceed to defeat his clear anddefinite intention to give a limited right to his immediate devisees byhaving recourse to the rule against perpetuities.
It has also been argued that conflicting views have been taken as tothe nature and the incidence of the fidei commissum in the earlier decisionsof this Court when this last will came up for consideration and thoseconflicting views indicated' the uncertainty of the language used in thewill and, therefore, the Court should decide in favour of an unburdeneddisposition. I shall now consider the earlier decisions briefly.
Sabapathy v. Mohamed Yoosoof 3 was the earliest decision. In that casethe plaintiff brought a mortgage action on a bond executed by a daughterof Amsa Natchia—one of the immediate devisees—after the death ofAmsa Natchia in respect of a property that came to Amsa Natchia underthe last will and a deed given by the executor. The plaintiff madethe tenth to sixteenth defendants parties to the action and sought toobtain a hypothecary decree binding on them. Those defendants whowere the grandchildren of Amsa Natchia pleaded that they should be-discharged from the action and -that no hypothecary decree should beentered against them. All that the Court had to decide in that casewas whether those defendants had an interest in the property by virtueof a fidei commissum created by the last will. Both the judges in thatcase held that there was a fidei commissum in favour of the grandchildrenof Amsa Natchia. I do not think that this justifies the suggestion thatthey meant to hold that the “ issue or heirs ” of Amsa Natchia were notentitled to the property under the fidei commissum. They were concernedonly with the rights of the tenth to the sixteenth defendants who were the1 (1894) 3 Supreme Court Reports 76 at p. 80.2 (1907) 3 Appeal Courts Reports 139.
3 (1935) 37 N. L. R. 70.
WTJEYEWAKDENE J.—de Saram, and Kadijar.
293
grandchildren of Amsa Natchia and they held and, if I may say so.held rightly that the fidei commissum was in favour of the grandchildren,who, according to my reading of the will, would be, in fact, the ultimatefidei commissaries.
The further question as to the event, on the happening of which theproperty would pass from a fiduciary heir to a fidei commissary heir,•need not have been considered in that case and that does not appearto have been argued, if one may judge from the reported arguments, ofCounsel. One of the judges did not refer to this matter in his judgment.The other judge dealt with this matter and stated in one part of hisjudgment .that “ after the devisee’s death the property was to pass to hisheirs ” and again that; the vesting will take place " on the death of thelast of the children of the devisee. ” He then proceeded to consider thequestion of separate fidei commissa and made a statement which I finddifficult to reconcile with his previous statement He said that the.violation of the condition against alienation “ would have the effect ofvesting the title in the fidei commissaries .” (See pages 81, 82, 83.)
The next ease Saleem v. Muthuramen 1 appears to have been an actionby a grandchild of Amsa Natchia against a purchaser of a propertygoverned by the terms of the last will and sold in satisfaction of a mort-gage decree entered against Aysha Umma, a daughter of Amsa Natchia.It was held in that case that the last will created a fidei commissum andthat the property devolved on the fidei commissary heirs on the death ofthe fiduciary heir. I do not think that the judges in that case werecalled upon to consider the rights of the “ issue or heirs ” of Amsa Natchiain respect of the property. If Aysha Umma was dead at the date of theaction, it was not necessary for the Court to consider those rights, as,in that case, the defendant would have had no title under his purchasewhether or no Aysha Umma acquired an interest in the property as an“ issue or heir ” of Amsa Natchia.
In Sinnan Chettiar v. Mohideen and others2 a child of Majida Umma,a daughter of Amsa Natchia, claimed a property which had devolvedon Amsa Natchia under the last will, as against a purchaser from MajidaUmma. It was held in that case that there was a fidei commissum, thatMajida Umma acquired an interest in the property on the death ofAmsa Natchia and that that interest would devolve at her death on her•children including the plaintiff.
I am unable to agree that the different views expressed in these decisionsall of which agreed in holding in favour of a fidei commissum shouldcompel us to a conclusion against the existence of a fidei commissumon the ground that the language of the last will leaves us in doubt whethera fidei commissum has been created. It has to be admitted that the willpresents some difficulties, but I do not think these difficulties afford•sufficient ground for saying that the language employed in the last willis so involved in doubt that a Court is compelled to hold that the testator■has failed to create a valid fidei commissum.
Now I shall deal more specifically with the title to the property con-veyed to Abdul Hamid by P 2. By the execution of P 2 in pursuance1 (1938) IS C. L. W. 115.2 (1939) 41 N. L. R. ZZS.
294
WIXE YE WAUDENE J.—de Saram and Kadijar.
of clause 2 of the last will, a separate fidei commissum was created inrespect of that property. (See also Vansanden v. Mach1 with regardto the effect of family arrangements.) In fact, both the appellants andthe respondents presented the case on the footing that there was aseparate disposition of property in favour of Abdul Hamid. Accordingto the copy of the last will produced in this case, Abdul Hamid got hisproperty subject to the condition that he and his “ heirs ” should notalienate the property, but hold it in trust for the grandchildren of AbdulHamid. The fact that the “ heirs ” of Abdul Hamid have been prohi-bited from alienating the property show that these “ heirs ” were toget the property after Abdul Hamid, as there would be no sense inprohibiting an alienation by people who were to get no interest in theproperty. These “ heirs ” would be the children of Abdul Hamid.Though in a number of cases (c.g., Samaradiwakara v. de Saram2) it has.been held that the word “ heirs ” in the wills construed in those casesmeant the heirs ab intestato, I think that the clauses of the last will underdiscussion indicate that the testator had used the word to refer to childrenonly. The property would pass from Abdul Hamid to those “ heirs "at his death, for, where a testator creates a fidei commissum in favourof his sons and their heirs, the heirs are not to be regarded as beingcalled to the inheritance along with the sons, but they will succeed inthe same order as is observed in intestate succession. (Censura Forehsisl, 3, 7, 19, and Raymond v. Sanmugam3). The grandchildren of AbdulHamid for whom the property is “to be held in trust’’ are the ultimatefidei commissaries. The question whether these ultimate fidci com-missaries will have to wait till the death of all the “ heirs ’’ of AbdulHamid oi will become entitled to the share of that “ heir ’’ through whomthey claim on the death of such heir depends on the question whetherthe property went to the “heirs” as a joint fidei commissum or as separatefidei commissa. This is a question that arises iti most cases where thedevolution of property burdened with a fidei commissum has to be con-sidered. The fact that such a question arises and has to be considereddoes not throw any doubt on the existence of a valid fidei commissum asthe appellants’ Counsel attempted to argue. Suppose a testator says“ 1 devise my immovable property to my two sons A and 33 under thebond of fidei commissum subject to the condition that on their deaththe property should go to the sons of A and 33.” There can be no doubtwhatever in such a case that a valid fidei commissum has been createdand yet a question may be raised when A and 33 enter upon the inheritanceon the death of the testator and then A dies leaving a son C. Does C succeedto the half share of A on his death or does that half share go by accrualto 33 and has C to wait till the death of B? Such questions have beenraised and decided in our Courts and by the Privy Council in cases where avalid fidei commissum has been admittedly created. (See Tilleheratnev. Abeyesekere4 and Perera v. de Silva5. I am of opinion that, in the presentease, the property was held as separate fidei commi-ssa by the “ heirsof Abdul Hamid, each heir getting the share to which he was entitledunder the rules of the Muslim Law of intestate succession. Any difference
1 (1895) 1 N. L. R. 311.3 (1894) 3 Supreme Court Reports 52.
» (1911) 14 N. L. R. 321.1 (1897) 2 N. L. R. 313.
(1913) 3 Court of Appeal Cases 1.'
HOWARD C.J.—The King v. V. M. Kandnmanam.
29o
of opinion on this question as to the right of accrual cannot involve indouht the intention of the testator to create a valid fidei commissum.There is one other matter which was referred to in the course of the argu-ment before us. Even if it be the correct view that, according to the lastwill, the property would go from Abdul Hamid to the grandchildrenwithout passing through the hands of Abdul Hamid’s “ heirs ”—andthis was said to be the view taken in Saleem v. Muthuramen Chettiar(supra)—that does not invalidate the fidei commissum. In that case,it Abdul Hamid died without leaving grandchildren, the fidei commissumwould have lapsed and the property would have become part of the estateof Abdul ‘Hamid, but such a contingency has no bearing on the considera-tion of the question whether a valid fidei commissum was, in fact,created.
1 may add that I do not agree with the view expressed by one of thejudges'in Sabapathy v. Mohamed Yoosoof (supra) that the event on thehappening of which the property vested in the fidei commissaries was thealienation of the property by the fiduciary heirs contrary to the terms ofthe will (see Walter Pereira’s Laws of Ceylon, 1913 Edition, pages 431, 432).
I am of opinion, therefore, that the plaintiffs, appellants, have no titleto the property, as Abdul Hamid is dead and has left children, and thattheir action must fail.
T would dismiss the appeal with costs.
Appeal allowed.