DE SILVA, et al., Appellant, and DE SILVA, et al., Respondents

138-NLR-NLR-V-45-DE-SILVA-et-al.-Appellant-and-DE-SILVA-et-al.-Respondents.pdf


de Silva and de Silva.
505
4944Present: Howard. C. J. and de Kretser J.DE SILVA, et al., Appellants, and DE SILVA, et al., Respondents.
90—D. C. Colombo, 2,187.
Last Will—Condition against marriage —Prohibition to marry outside theBuddhist GoigamacommunityoftheSinhalese race—Conditionvoid
for uncertainty.
Where alastwill containedthe followingclause: —Itis mywill and
desire that none of my aforesaid children shall contract a marriagewith 'thosenotbelonging tothe Goigamacommunityof theSinhalese
race* or not professing Buddhism. Such a marriage should furtherbe sanctioned by allor amajorityfromand out * of the followingfive
persons …. Incaseanyofmychildren contract a marriage
contrary totheseinstructions such child orchildren shall forfeitwhatever
rights theymayhave acquiredunder this will and thepropertyleft and
bequeathed by me to such child or children shall enure to the benefit ofthe remaining children ….
Held, that the condition imposed by the will was void for uncertainty.
Held, further, thatwhere onelimb ofa composite condition isvoid
it would be sufficient to defeat the forfeiture.
A
PPEAL from an order of the District Judge of Colombo. The factsappear from the headnote.
N. Nadarajah, K.C. (with him E. G. Wik-remanayake), for the fourth toseventh, ninth and tenth defendants, appellants.—Although conditionsin general restraint of marriage are void as being against public policyconditions in partial restraint of marriage arc valid—Vol. 34 Laws ofEngland (Hailsham), pp. 107-8; Theobald on Wills (8th ed.), p. 705,Steyn’s Law of Wills in S. Africa {1935 ed.), pp. 69-70. Clause 12 of thewill in this case imposes conditions only in partial restraint of marriage.It was not intended that the devisees should remain unmarried. Whatwas prohibited was marriage with any person other than a SinhaleseGoigama Buddhist. Such a prohibition is valid and failure to observeit would result in forfeiture. Hodgson v. Halford-1; Jenner v. Turnerz;and In re Bathe3 are in point, although Sifton v. Sifton4 and In re Blaiberg5express a conflicting view.
The conditions in. clause 12 have, as the trial Judge holds, to be con-sidered seriatim. Even if the terms “ Goigama community ” and “ thosenot professing Buddhism ” are vague and uncertain there can be no doubtwith regard to what was meant by “ of the Sinhalese race ”. This lastcondition has clearly not been complied with, as the plaintiff, havingmarried a Burgher lady, admits. The plaintiff cannot, therefore, claimany share under the will.
H. V. Perera, K.C. (with him M. T. de S. Amerasekere, K.G., and H. W.Jayawardene), for the plaintiff, respondent.—Clause 12 of the will speaksof one composite condition and not of a series of conditions. It is void
’ L. It. {1879) 11 Ch. D. 959.3 L. R. {1925) Ch. 377.
2 L. R. {1880-1) 16 Ch. D. 188.4 L. R. (1938) A. C. 656.
L. R. (1940) Ch. 385.
506
HOWARD C. J.-—De Silva and de Silva.
for uncertainty, and almost amounts to a general restraint of marriage.Clayton v. Ramsden 1 is directly in point. One’s faith is a matter of one’sconscience and cannot be ascertained by a definite test. A conditionsubsequent, to be valid, must be clear and certain and must be such alimitation that at any given moment of time it is ascertainable whetherthe limitation has or has not taken effect—Sifton v. Sifton 2. Theegression “ Goigama community of the Sinhalese race ” too is vague.As regards the condition that each devisee should, before marriage,obtain the consent of the five persons mentioned in the will there is npprovision as to what should happen if some or any of them die or refuse toact.
<»
N. E. Weerasooria, K.C. (with him S. E. J. Fernando), for the firstdefendant, respondent.
E. B. Wikremanayake (with him G. T. Samarawickreme), for the secondand third defendants, respondents.
N. Nadarajah, K.C., in reply.—A condition requiring the consent,before marriage, of certain named persons is valid—In re Whiting’sSettlement 3.
Cur. adv. vult.
October 19, 1944. Howard C.J.—
In this appeal the question for consideration is whether the decisionof the Additional District Judge of Colombo, made in a partition action,with regard to the failure of certain conditions imposed by the will ofone Mudaliyar Richard de Silva is correct. This will is dated March 25,1915, and clause 12 is worded as follows: —
“It is my will and desire that none of my aforesaid children shallcontract a marriage. with those not belonging to the Goigamai com-munity of the Sinhalese race or not professing Buddhism. Such amarriage should further be ^sanctioned by all or a majority from andout of the following five persons to wit, my wife the said LydiaCatherine de Cabraal Wijetunge, my brother Edward de Silva,Mohandiram, Charles Batuwantudawe, Dor. Baron Jayatillake and(torn off) de Silva Abeyeratna, all of Colombo. In case any of mychildren contract a marriage contrary to these instructions hereinset forth such child or children shall forfeit whatsoever rights theymay have acquired under this will and the property left bequeathedand devised by me to such child or children by this will shall enureto the benefit of the remaining children of mine in equal shares subjectto the terms of the specific legacies already enumerated, providedsueh children shall not contract any marriages contrary to the directionsherein set forth. No legatee among my aforesaid children shall be atliberty to lease for a period exceeding five years, mortgage, encumber,sell or in any other way alienate or dispose of the bequests made underthis will until and unless such legatees shall have contracted a marriagein accordance with the directions specified in this clause and any propertyso leased for a period of over five years, mortgaged, encumbered, sold5 (1943) 1 A. E. R. 17.* L. R. (1938) A. C. 656 a 671.
L. R. (1905)1 Ch. 96.
HOWARD C.J.—de Silva and de Silva.
507
or (torn) other way alienated or disposed of shall vest in my remainingchildren who may be surviving at the time of such (torn off) legateethat does not contract a marriage shall have on (torn off) interest ofhis or her share. "
The learned Judge has held that the conditions imposed by clause 12 ofthe will fail and cannot be given effect to for want of certainty. Incoming to this conclusion he has held that—
The will gave each devisee an absolute interest in the property
devised subject to forfeiture in the event of such deviseecontracting a marriage forbidden by the testator;
The restrictions must be taken seriatim and not en bloc;
Although there would be no difficulty with regard to the term
* “ Sinhalese race ”, it was impossible to say what the testatormeant when he said “ those not belonging to the Goigamacommunity Nor would a Court know what criterion toapply in order to distinguish a person “ who professedBuddhism ” from one who did not.
With regard to the further condition imposing on the devisee
the duty of submitting his choice of a spouse for the approvalof five named persons, the learned Judge was doubtful whethera testator had the right to impose such a condition and even ifsuch a right existed a Court could not interpret it in the absenceof terms providing for every possible and conceivable eventuality.
Mr. Nadarajah on behalf of the appellants has contended that the clauseimposed a partial restraint on marriage which was valid. In this connec-tion he referred to Theobald on Wills and the Roman-Dutch law on Willsas set out in Steyn at pages 69-70. The passage is as follows: —
A condition that a beneficiary ‘ shall not marry ’ and that if hedoes the benefit must go to another is void on the grounds of publicpolicy as it operates in general restraint of marriage, but not where thecondition merely forbids the beneficiary from marrying a particularperson, or a person belonging to a. particular family or of a particularfaith. ”
This principle is conceded although Mr. Perera has contended that theforfeiture clause in this case taken as a whole almost amounts to a completerestraint on marriage.
Dealing seriatim, with the findings of the learned Judge, I am of opinionthat (1) is unassailable. With regard to (2), I think the learned Judgewas wrong. Clause 12 of the will is composite, but contains severallimbs. I think it would be sufficient to defeat the forfeiture that any ofthe limbs should be uncertain. In this connection I would refer to thejudgment of Lord Atkin, in Clayton v. Bams den1. In his judgment in thesame case, when marriage with a person not of Jewish parentage and notof the Jewish faith was prohibited, Lord Eomer also held that this was acomposite qualification. If one of the two qualifications required in apermissible husband is expressed in so uncertain terms that it is impossibleto say of any particular individual whether he does or does not possess it,the whole condition is void. If the clause is considered as a whole the
i (1943) 1 A. E. R. 17.
508
HOWARD C.J.—de Silva and de Silva.
case put forward on behalf of the respondents is all the stronger. In factthe clause so considered practically deprives the children of the testatorof all freedom of choice in the matter of marriage.
I agree with the learned Judge’s findings as summarized in (3) and (4).The use of the words “ not professing Buddhism ” would impose on aCourt the difficulty of discovering what degree of adherence to theBuddhist religion, the testator required. These words were, therefore,uncertain. In Clayton v. Ramsden (supra) the House of Lords cited and.followed the rule formulated by Lord Cranworth in Clovering v. Ellison1.This rule was as follows:—<
“ I consider that, from the earliest times, one of the cardinal rules-on the subject has been this: that where a vested estate is^ to bedefeated by a condition on a contingency that is to happen afterwards,that condition must be such that the Court can see from the beginning,precisely and distinctly, upon the happening of what event it wasthat the preceding vested estate was to determine.”
Lord Homer in Clayton v. Rams den (supra), at page 23 of the report ofClayton v. Ramsden, applied this rule in the following passage : —
“ Even if the clause could be read as though it merely provided for aforfeiture in the event of the daughter being married to a man notof the Jewish faith, I am of opinion that it would still be void foruncertainty. Eor how is it to be ascertained whether a man .is of theJewish faith? It will have been observed from what I have alreadysaid that in the Court of Appeal they answered this question by sayingthat whether a man was or was not of the Jewish faith was a merequestion of fact to be determined on evidence and that the assertionby the man that he was of that faith was well nigh conclusive. Ishould agree entirely with the Court of Appeal as to this if only I knewwhat was the meaning of the words ‘‘ of the Jewish faith ”. Until Xknow that, I do not know to what the evidence is to be directed.There are, of course, an enormous number of people who accept everytenet of and observe every rule ' of practice and conduct prescribedby the Jewish religion. As to them there can be no doubt that theyare of the Jewish faith. But there must obviously be others whodo not accept all those tenets and are lax in the observance of some ofthose rules of practice and of conduct, and the extent to which thetenets are accepted and the rules are observed will vary in differentindividuals. Now, I do not doubt that each of these last-mentionedindividuals, if questioned, would say, and say in all honesty, that hewas of the Jewish faith. On the other hand I do not doubt that onewho accepted all the tenets and observed all the rules would assertthat some of the individuals I have mentioned -were certainly not ofthe Jewish faith. It would surely depend on the extent to which theparticular individual accepted the tenets and observed the rules.
My Lords, I cannot avoid the conclusion that the question whethera man is of the Jewish faith is a question of degree. The testator has,however, failed to give any indication what degree of faith in thedaughter’s husband will avoid and what degree will bring about a
1 (1859) 7 H. L. Cases 707.
HOWARD C.J.—de Silva and de Silva.
509
forfeiture of her interest in his estate. In these circumstances thecondition requiring that a husband shall be of the Jewish faith would,even if standing alone, be void for uncertainty.”
The question as to whether a person professes Buddhism would dependon the extent to which the particular individual accepted the tenets o£the Buddhist religion and observed the rules. In his judgment LordRomer cited with approval the judgment of Morton J. In re Blaiberg1where it was held that a condition of forfeiture in the event of marriageto a person not of the Jewish faith was void for uncertainty. LordRussell of Killowen would also appear to have taken the same view ofthe words “ of the Jewish faith ” although he did not consider it necessaryto decide the point. At page 19 he states: —
“ In these circumstances it is unnecessary to express an opinionupon the certainty of the words “ of the Jewish faith but had itbeen necessary I should have felt a difficulty in holding that theirmeaning was clear or certain. It seems to me that (apart from thedifficulty which arises from the existence of the three, varieties ofJudaism referred to by Lord Greene M.R.) the testator has given noindication of the degree of attachment or adherence to the faith whichhe requires on the part of his daughter’s husband. The requirementthat a person shall be of the Jewish faith seems to me too vague toenable it to be said with certainty that a particular individual complieswith the requirement. The decision of Morton J. In re Blaibergthough seemingly based on the difficulty of ascertaining the state of aman’s mind, may well stand on the ground of the uncertainty of thewords there in question.”
Lord Thankerton agreed with Lord Romer and Lord Atkin seems to haveshared the same views. The only member of the Court who was doubtfulas to whether the words “ of the Jewish faith ” were of insufficientclearness and distinctness was Lord Wright. His Lordship, however,held that the uncertainty of the words “ Jewish parentage ” rendered it-unnecessary for him to make a decision on the words “ Jewish faith ”.The only case put forward by Counsel for the appellant in support of hisproposition that the condition imposing forfeiture in the event of marriagewith a person “ not professing the Jewish religion ” was valid, is Hodgson
n.Halford2. The will in this case imposed a forfeiture if “ any son ordaughter of mine shall marry a person who does not profess the Jewish-religion, or shall marry a person not born a Jew or Jewess althoughconverted to Judaism and professing the Jewish religion, or shall forsakethe Jewish religion and adopt the Christian or any other religion ”. Itwas held by Hall V.C. that the elause was single and not void as beingagainst public policy. The question as to its being void for uncertaintywas not raised and hence I do not think it can be regarded as an authorityso far as the present case is concerned. With regard to its authority on amatter of public policy, it must be remembered that it was decided in1879. Lord Atkin’s judgment in Clayton v. Ramsden (supra) would seemto suggest that a different view would be taken now.
(1940) 1 Ch. 38S.
211 Ch. D. 959.
510
The King v. K. W. Jayanharay.
As one limb of the composite condition is void, it follows that so is thewhole condition. X think, however, that I should also consider the twoother conditions.
Again applying the principles laid down by the House of Lords inClayton v. Ramsden (su-pra), I am of opinion that the prohibition ofmarriage “ with those not belonging to the Goigama community of theSinhalese race ” is void for uncertainty. It may be conceded that theexpression “ Sinhalese race ” is well defined and would present nodifficulty to a Court called upon to interpret it. On the other hand the"words “ Goigama community ” introduce uncertainty. Hoes it mean a'person who always or generally associates with other Goigamas or livesin the same locality with other Goigamas ? Hoes it mean a persop who■ .associates himself with the aims of this particular community if it hasany aims ? If it means merely of Goigama descent, what degree of castepurity, if community is a synonymous term for caste, 'is required ? Thelanguage is, in my opinion, ambiguous. To use the words of Lord Wrightin Clayton v. Ramsden (supra) the Court would have to amplify and addto it before it could be held to denote any definite set of facts.
Judged by the same test, the further condition in the will requiringthe devisees to obtain the consent of the majority of five persons prior tomarriage is also, in my opinion, void. There is no provision providingfor the position that would arise if one or other of the referees is dead orrefuses to act.
For the reasons I have given the appeal must be dismissed with costs.
de Kretser J.—I agree.
Appeal dismissed.