037-NLR-NLR-V-53-FRANCISCO-Appellant-and-SWADESHI-INDUSTRIAL-WORKS-LTD.-Respondent.pdf
BA8NAYAKE J.—Francisco v. Swadeshi Industrial Works, Ltd.. ’179
-1981Present .- Basnayake J. and Swan J.FRANCISCO, Appellant, and SWADESHI INDUSTRIALWORKS, LTD., RespondentS. C. 305—D. C. Colombo, 3,759/L
Fideicommissum—Deed of gift—Prohibition against sale and mortgage only—Effect- of partial prohibition—effect of failure to designate beneficiary in case ofviolation of prohibition—Gift to A and his descendants and his heirs, executors,administrators and assigns and authorised persons—“ Authorised persons ”—Uncertainty of beneficiaries—Translation of a document into English—Not afunction of the Court.
A deed ol gift contained the following clause:—•
“ The said donee (A) and his descendants and his heirs, executors, adminis-trators and assigns and authorised persons shall at all times subject to the rulesand regulations of the Government be at liberty to transact the same amongeach of their co-heirs but shall not in any manner sell or mortgage any of thesaid lands with the intention of alinating the same and such acts are herebycancelled.”
Held, that the deed did not create a fidei commissum for the reasons—
that the donee was prohibited only from selling or mortgaging the propertyand was, therefore, in law, free to donate the property or dispose of it by lastwill. In the circumstances there could be no fidei-commissum.
that the deed did not contain a stipulation restoring the property toa third person in case the property was sold or pledged contrary to the prohibi-tion therein.
that the expression “ authorised person ” was vague and, therefore,there was no clear designation of the beneficiaries.
Held further, that whether a document in a language other than English hasbeen correctly rendered into English is a question of fact. It is wrong .for ajudge, however well versed he may be in the language in which the documentis written, to undertake its translation and adopt a version which neither partyhas placed before him.
.^^PPEAL from a judgment of the District Court, Colombo.
E. S. Amerasinghe, with J. W. Subasinghe, for the plaintiff appellant.
N.E. Weerasooria, K.G., with W. D. Gunasekera, for the defendantrespondent.
Cur. adv. vult.
February 27, 1951. Basnayake J.—
The only question that arises for decision on this appeal is whetherdeed No. 867 dated May 16, 1856, attested by W. B. Fernando, NotaryPublic, creates a fidei commissum^ By that deed one Jaekovis PereraAppuhamy gave a gift of two portions of land called Millagahawatte anda field called Ualpankotuwa to his brother Juan Adonis Perera in thefollowing terms: —
“ I, Wattege alias Kanugalawattege Jaekovis Perera Appuhamy ofEkala in the Ragam Pattu of Alut Kuru Ko’rale in consideration of thelove and affection which I have and bear, unto my brother Wattegealias Kanugalawattege Juan Agonis Perera Appuhamy of Kandanain the said Pattu with my free will and consent do hereby give grantand assign by way of gift unto the said Juan Agonis Perera Appuhamy,the following lands .. (here follows a description of the lands)
160' BASNAYAKE J.—Francisco c. Swadeshi Industrial Works, Ltd.
“ And I the said Jaokovis Perera Appuhamy shall be at liberty topossess the said lands from this date during my lifetime, but shall notsell or mortgage the same. And I do hereby declare that I or myheirs executors administrators and assigns shall not have any right ortitle hereafter against this gift.
“ That after the possessions of the said premises by me the said.Jaokovis Perera Appuhamy and after my death the said donee JuanAgonis Perera Appuhamy and his descendants stud his heirs executors,administrators and assigns and authorised persons shall at all timessubject to the rules and regulations of the Government be at libertyto transact the same among each of their eo-heirs but shall not in anymanner sell or mortgage any of the said lands with the intention • ofalienating the same and such acts ara hereby cancelled.
“ That all the right title and interest which I the said Jackovis-Perera Appuhamy have held in and to the said premises shall after mydeath devolve on the said Juwan Agonis Perera Appuhamy under andby virtue of this deed of gift.”.
The deed is in Sinhalese, and I have quoted from the translationproduced by the appellant. The defendant also produced a translation,but ihere is no material difference between the two.
Learned counsel invited us very earnestly to read the original Sinhalesedeed which the learned trial judge appears to have examined. Hesubmitted that the word " pradanakota ” therein had not been properlyrendered in either translation. We refused to accede to learned counsel'sinvitation as we were of opinion that it was not our proper function toattempt to translate the Sinhalese document. English is the languageof our Courts1. Whether a document in a language other than Englishhas been correctly rendered into English is a question of fact. Where theparties are not agreed as to the true rendering into English of a documentwhich is in a language other than English they should produce evidencethrough the testimony of experts versed in the language in which thedocument is written so that the Court may decide the dispute on theevidence before it. It is wrong for the judge however well versed hemay be in the language in which the document is written to undertake itstranslation and adopt a version which neither party has placed before him *.The danger of such a course has been pointed out more than once by thePrivy Council. ‘ It will be sufficient here to refer to two of its most reoentdecisions. In the case of Sellamani Ammal v. Thillai Ammal 2 the HighCourt formed the opinion that the official translation was incorrect withoutthe aid of expert testimony and having corrected it based its findingsof fact thereon. Lord.. Simonds delivering the judgment of the PrivyCouncil observed in that case:“ Their Lordships would once more
express the view that it is not legitimate for the Court to depart from theofficial translation except upon expert evidence which the parties shouldhave an opportunity of testing ”.
In the later case of Rai Harendra Lai Roy Bahadur Estates, Ltd. v.
.Hem Chandra Naskar and another *, -Sir John Beaumont stated: “ Their
1 Comelis v. Ulwwitike, (1S9S) 1 N. L. R. 248.
(1946) A. 1. R. Privy Council 185 at 187.
(1949) A. l.S. Privy Council 179.
BASNAYAKE J.—Francisco «s. Swadeshi Industrial Works, Ltd.
181
Lordships have laid it down in several cases that 'it is the duty of Courtsin India to act upon the official translation of documents unless there isexpert evidence which justifies the rejection of such translation. Itmay no doubt often happen that a Judge in India knows the vernacularin which a document is written, and he may be as well qualified as theofficial translator, or even better qualified, to render a correct translationof the document into English. The trouble, however, is that the Judgeis not a witness, and the parties are not in a position to test the translationwhich he makes; whilst if the matter is taken in. appeal to the PrivyCoitncil, the Board have no material upon which they can estimate thelinguistic qualifications of the Judge ”.
I shall now proceed to consider the submission of learned counsel thattne deed in question constitutes a fidei commissum. Etymologically theexpression fidei commissum signifies something entrusted to one’s good,faith, because originally the heir or executor was free either to complywith the testator’s request or not as he thought fit. Afterwards theheirs or executors were compelled by law to execute such fiduciarybequests. According to Van Leeuwen 1 a fidei commissum, or inheritanceover the hdhd (ervenis over de hand), otherwise; entailed or fastened in-heritance, occurs where in the reliction of inheritance the heir’ is enjoinedalter a certain time, or after his death, to hand over the inheritance, eitherin whole or in part, to another. Fidei commissa can be imposed notonly by will but also by an act inter vivos 2. In the title on Donations,Voet 3 observes:“It has been said in the title ad Senatusconsultum
Trobellianum (Voet 36.1.9) that donees can be burdened by the donorwith a fidei commissum, and that the fidei commissary has an equitableaction in personam, not in rem, and that in this respect fidei commissaattached to a donation differ from those bequeathed by last will Inthe earlier title 2 Voet says: “ There is no doubt that fidei commissacan be imposed not only by will but also by an act inter vivos, if only astipulation be attached to the donation providing for the restitutionof the gift to a third party, so much so that the party to whom restitutionhas to be made has the -utilis actio personalis (equitable action in personam)founded on equity, for the recovery of the object so held in trust. But noreal action would lie; and in this respect fidei commissa constituted byact inter vivos differ in Roman Law from those constituted hy last will.With us also it has become the accepted practice that fidei commissa canunquestionably be made by act inter vivos, especially in ante-nuptialcontracts,’ and in. such wise as to constitute a real charge on the property,provided the fidei commissa b'e duly registered ”.
No particular words are necessary to create a fidei commissum. Thelanguage used must clearly express the intention of the testator or donorthat the gift is not absolute to’ the donees and there must .be an un-ambiguous indication of the persons to be benefited and when they areto benefit 4.
Where there i$ a doubt as to whether a fidei commissum has beenconstituted the construction should be preferred which will give the
1 Van Leeuwen'a Roman Dutch Law, Kotze'a translation. Book III, Chap. VIII;Section I.
Voet, Book XXX VI, Title 1, Section 9, MacGregor's translation.
Voet, Book XXXIX, Title 5, Section 43, Krause'a translation.
' * (1926) 27 N. L. R. 366, Salonchi v. Jayatu. Van Leeuwen'a Censura Forensie,Book III, Chap. VII, Section 7.
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BASNAYAKE J.—Francisco v. Swadeshi Industrial Works, Ltd.
legatee, heir or donee the property unburdened l. Doubt as to whethera valid fidei commiasum has been created includes such a doubt as to theidentity of the beneficiaries as will prevent their ascertainment by acourt of law 2.
Now when we turn to the deed we find that the donee and those takingAfter him are prohibited only from selling or mortgaging the property. Aprohibition against alienation is under our law strictly construed and isnot extended to modes of alienation other than those expressly mentionedin the instrument3. Voet says: "But in those oases where a simpleprohibition against alienation is valid, according to what we have juststated, and has to be carried out, the prohibition is strictly interpreted,and not extended to modes of alienation other than those expresslymentioned by the testator. And so, although it be true that under thegeneral prohibition of alienation even alienation by last will is forbidden,yet, if any one by last will should forbid the heir to sell or encumber theproperty left him, no fidei commiasum. ia constituted by such a disposition,nor is the heir considered to be restrained from disposing of such propertyby last will, more especially if you bear in mind that disposition by lastwill are more favoured than those which come about throvfgh an act.inter vivos. So that a prohibition contained in a will against any alienationby act inter vivos must not be extended to testamentary dispositions
On this same topic Sande 4 says: “ And, therefore, we should construeneither contracts, nor last wills, nor enactments, nor statutes, in such amanner as, when a sale is prohibited, to say that every other form of.alienation is also prohibited; unless it is perfectly clear that a sale- ismentioned with regard not so much to the special mode of alienation, butrather to the transfer of dominium, an object which we have in view just-:as much in other forms of alienation as in a sale, for then the mention•of a sale is considered to be made only for the sake of supplying an example. Moreover, when a sale, a donation, and a pledge are prohibited,Alienation by last will is considered to be permitted ”.
The donee Adonis was therefore in law free to donate the property•or dispose of it by last will. In those circumstances there can be nofidei com mis sum.
The deed is subject to a further infirmity. It does not contain astipulation restoring the property to a third person in case the propertyis sold or pledged contrary to the prohibition therein B. The deed speaks■of descendants, heirs, executors, administrators, assigns and authorisedpersons. What was to happen if Adonis himself violated the prohibition?To whom was the property to go? Was it to his descendants or heirs•or his assigns or authorised persons? The instrument provides noanswer to these questions.
There is a further difficulty in the way of the appellant. The instru-ment mentions "authorised persons ” among the class of persons to bebenefited but contains no clue as to its meaning. It is not an expression
1 Omse v. Executors of Pretorius, (1879) 9 Buchanan 124.
Sitti Kadija etalv.de Saram et al. (1946) 47 N. L. R. 171.
Voet-, Book XXXVI, Title 1, Section 27.
Sande on Restraints—Webber's translation, pp. 184-185 and 187. Burge—Colonialand Foreign Laws, Vol. II, p. 114.
Burge—Colonial and Foreign Laws, Vol. II, p. 113.
Perera c. Dias
183
the meaning of which is established, nor am I able to ascertain what classof persons the donor had in mind when he used it. He must thereforefail for the further reason that the donor has not designated clearly thepersons whom he seeks to benefit, for, a prohibition against alienation willnut create a fidei commission, but is perfectly nugatory, unless the personsare designated in favour of whom the testator or donor declares theprohibition *..
If the donor meant to constitute a fidei commissum I am afraid thenotary has effectively thwarted his intention. The instrument being adonation it must be construed according to the written word a. Theintentions of donors and testators have been defeated by notaries not onlytoday but also in times past, for Van Leeuwen says3: “ Notaries fre-quently through long established custom make use of improper expressionsand do not always use the right terms and words, and their want of skillfurnishes a harvest to advocates, especially in respect of last wills, inwhich they insert very frequently, on account of their ignorance of Law,clauses taken from old fashioned forms of theirs, which they themselvesdo rot understand, and which are clearly superfluous, and sometimesinconsistent with the intention of the testator ”. Van Leeuwen evengoes to the extent of quoting the disparaging observations of Carpovius,who says: “ Notaries for the most part are like singers who by practiceleum to sing well, but do not know the meaning of their song, like parrotswhich stand in the palaces of their owners and do not know what theyare saying, and they wish to heal all diseases with one medicine.
the brothers of ignorance, amongst whom for every onelearned and skilful man to be found there are twenty-five unlearnedones, who have no knowledge of law
Clearly., the deed does not constitute a fidei commissum.
The appeal is dismissed with costs.
Swan J.—I agree.
Appeal dismissed.