GUNAWARDENE v. VISVANATHAN

072-NLR-NLR-V-24-GUNAWARDENE-v.-VISVANATHAN.pdf


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Present: Porter and Schneider JJ.
GUNAWABDENE v. VISVANATHAN.102—D. C. Galls, 19,023.
Fidei com mis sura—Usufruct—Property left to wife subject to conditionthat she shall not sell, &c.t but only hold and possess the same—Civil procedure Code, s. 218—Seizure of interest of fidei com-missarius.
The words of a last will were as follows: *’ I give and devise allmy immovable property unto my wife, subject, however, to thecondition that she shall not sell, mortgage, or encumber, or in anywise alienate the same,’ but that she shall only hold and posses*the same during her lifetime, and after her death the same shalldevolve in equal shares on my two children, H and S.
Held, that the will created a fidei commissum, and not a mereusufruct in favour of the testator’s wife, and that during her life-time the interests of H cannot be seized in execution.
T HIS was. an action tittdfer section 247 of the Civil ProcedureCode for a declaration that a half share of the house inquestion was not liable to; be-sold under the writ of execution issuedin D. C., Colombo, 687/1920; at the instance of the defendant againstthe plaintiff’s son, Paulus Hector.
The house belonged to the plaintiff’s late husband, K. Sinno Appu,and Be dealt With it by his last will (see below).
The plaintiff's case was that by the last will the house was given,to her subject to a fidei commissum in favour of Paulus Hector and ,his brother. The defendant’s case was that the last will did notcreate a fidei commissum, but that the plaintiff obtained on it onlya usufruct. The District .Judge dismissed plaintiff’s case.
r
The last will was as follows : —
A. *P 1).No. 883.
This is the' last will and testament . of Kiri Kankanange SingboApjJU dd Silva of Patabendimulla in Ambahragoda in the Wellabodap&ttu of Galle District.
I do hereby revoke, cancel, and annul all laat wills and testaments-Snd writings of testamentary nature, if any, heretofore made by me.
I give and devise all my immovable property of what kind or naturesoever wherever found or situate in possession or expectancy inremainder or reversion unto my lawful wife, Andrawas Fatabendi.Tosie de Vas Gunawardene Haminey, subject, however, to the conditionthat she shall not sell, mortgage, encumber, or in any wise alienate thesame, but that' she shall only hold and possess the same during herlifetime, and after her death the same shall devolve in equal shareson toy tvft)' children, Paulus Hector Lionel de Silva and Lionel Sheltonde Silva.
1922.
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1822.
Gunawardene
v,
i'ten ana than
I bequeath all my money and all other movable property unto mywife, the said Andrawas Pat abend i Josie de Vas Gunawardene Haminey,for her absolute use and benefit.
I do hereby nominate, constitute, and appoint my wife, the saidAndrawas Patabendi Josie de Vas Gunawardene Hatnincy, as theexecutor of this last will and testament.
In witness whereof, I, the said Kiri Kanlcanange Singho Appu de Silva,have set my hand to two of the same tenor and date as these presentsat Patsbendiinulla in Ambalangoda on this Twelfth day of February,One thousand Nine hundred and Sixteen.
Witnesses; Signed and attested.
Samarawiclreme (with liim M. W. H. de Silva), for appellant.
E. W. Jaycnvardene (with him H. V. Perera), for respondent.
November 7, 1922. Porter J.—•
This was an action under section 247 of the Civil Procedure Codefor a declaration that a half share of a house is not liable to be soldunder the writ of execution issued in D. C., Colombo, 687/1920, atthe instance of the defendant against the plaintiff’s son, PaulusHector. The house belonged to the late husband of the plaintiff,who dealt with it by his will. The plaintiff’s case was that by herhusband’s last will the house was given to her, subject to a fideicommi88um in favour of Paulus Hector and his broker. Thedefendant’s case was that the last will did not create a fidei com-miaaum, but that by it the plaintiff obtained only a usufruct. Thelearned Judge has dismissed the plaintiff’s action with costs.
The words of the will are as follows: —
** I give and devise all my immovable property of what kind ornature soever wherever found or situate in possessionor expectancy in remainder or reversion unto my lawfulwife. Andrawas- Patabendi Josie de Vas GunawardeneHaminey, subject, however, to the condition that she shallnot sell, mortgage, or encumber, or in any wise alienatethe same, but that she shall only hold and possess the sameduring her lifetime, and after her death the same shalldevolve in equal shares on my two children, Paulus HectorLionel de Silva and Lionel Shelton de Silva.”
These words, in my opinion, create a valid fidei commissum in theclearest words. Mr. Jayawardene, for the respondent, has referredus to the following cases:—Mendis v. Fernando 1 ; Sortnaradiwaharav. De Saram 8 (a Privy Council Appeal); We erasing he v. Gunatilahe .3
The words of this will, the subject-matter of this action, I thinkclearly vest the dominium of the house in question in the plaintiff.There is a presumption that where property is bequeathed to a
1 (1906) 9 N. L. R. 77.* (1911) 14 N. L. R. 321.
» (1910) 14 N. L. R. 36.
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person with a prohibition against alienation, the intention is pre- 1988.sinned to be to confer on him full ownership. As there can be no pnnTgnquestion of a person who is not the owner of property alienating it, —-the presumption according to Voet is that where a testator prohibits ^unai^r^enea legatee from alienating property bequeathed, the intention is to Vievanathanmake him owner. It has been argued by Mr. Jayawardene for therespondent that this is only a presumption which may be rebuttedif there are other indications of a different intention on the testator’spart, and he argues that the words " only hold and possess duringher lifetime ” show such contrary intention on the part of thetestator. The words differ in the several cases cited to us, butin no one of them have the words "hold and possess” been heldto convey only a usufruct.
I am therefore of the opinion, as I have already said, that thewill in dispute creates a fidei commistum.
It has been further argued that even if the will creates a fideico minis sum the interest of Paulus Hector was liable to seizure.
I cannot agree with the contention, as by section 218 (ft) of the CivilProcedure Code the interest of Paulus Hector is merely a contingent,and not a vested, interest, and so not liable to Seizure. I wouldallow this appeal and set aside the decree, and enter judgment forthe plaintiff, with costs both here and in the Court below.
Schneider J.—
This appeal was argued at very great length for the defendant,respondent, but the point involved was the construction of a simplelast will expressed in very appropriate legal language. The factsare these:The plaintiff’s deceased husband made the will in
question in February, 1916. It was drawn and attested by a notarypublic. The part of the will which has to be construed is thefollowing: " I give and devise all my immovable property of whatkind or nature soever wherever found or situate in possession orexpectancy in remainder or reversion unto my lawful wife, AndrawasPatabendi Josie de Vas Gunawardene Haminey, subject, however,to the condition that she shall not sell, mortgage, encumber, or inany wise alienate the same, but that she shall only hold and possessthe same during her lifetime, and after her death the same shalldevolve in equal, shares on my two children, Paulus Hector Lionelde Silva and Lionel Shelton de Silva.” But I will quote the verynext clause also " I bequeath all my money and all other movableproperty unto my wife, the said Andrawas Patabendi Josie de VasGunawardene Haminey, for her absolute use and benefit.”
One of the lands devised was seized by the defendant in executionof a writ against Paulus Hector. The plaintiff claimed the samebut her claim was disallowed. She then instituted this actionunder the provisions Of section 247 of the Civil Procedure Code tohave it declared that the land was not liable to be sold in execution.
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1933. The parties agreed that there was but one issue, viz. : Did the willSchneider create a fidei commissum, or is the plaintiff’s interest only a bareusufruct. The learned District Judge held against her, and pheGitnawardene has appealed. I find no difficulty whatever in construing theVxsvanathan wil1 to mean that the testator devised his immovable property tohis widow, subject to a fidei comniissum in favour of his two sonswho were to take upon her death. A legacy of land to A subjectto the condition that upon his death the land shall devolve uponB is the simplest form of fidei commissum known to our law. Thedominium and possession both vest in A subject to the devolutionof title upon his death. I said the will in question was not onlysimple, but seemed to. me to be expressed in appropriate legallanguage.
The notary appreciated and followed the well-recognized distinc-tion in conveyancing that “ devise ” is the appropriate verb for alegacy of immovable property and “ bequeath ” for that of movables.These terms our conveyancers have borrowed from the Englishlaw, which is well summed up in the Encyclopedia of the Laws ofEngland (Vol. XIV., pp. 714 and 715).“ It is still true that ‘ devise '
and ' bequeath ' may be used promiscuously, and that if a testator‘ devise ’ goods they will pass, and so he may ‘ bequeath ’ lands orhouses ; that is to say, where the property dealt with is clear, theintention will not be defeated because the wrong verb is used(F. Whicker v. Hume, 1 Gyett v. Williams, 2 Barrington v. Liddell 3).But when the subject of the gift is expressed ambiguously, themeaning will be aided by the verb. Thus, where a testator ‘ gave,devised, and bequeathed ’ everything to A for life, and after herdeath ' gave, devised, and bequeathed, ’ the whole of his effects whichmight be then remaining to B, it was held that the realty passed{Phillips v. Beal, 4 * Hall v. Hall, B Sv. Gamfield v. Gilbert 6). And, onthe other hand, where the testator ‘ gave, bequeathed, and disposedof ’ all his residuary estate, effects, and property—words largeenough to comprise realty—yet there it was held that the realtydid not pass, and in arriving at that conclusion the Court {inter alia)strongly relied on the absence of the word * devise ’ from theoperative words (Coard v. Holdemess 7). ”
It cannot be denied that the words “ I give and devise all my im-movable property ” operate to pass every interest in that property—dominium as well as possession, unless there are other words in thewill limiting or restricting the interest so passed. I can find nosuch words. The learned District Judge appears to be of opinion
1 {1852) 14 Beav. 618 ; 51 E. R.
881 ; 1 De G., M <b G 506 ; 42
E. R. 649 ; 21 L. J. Ch. 406.
(1862) 2 John <b H. 436 ; 70
E. R. 1,126.
2 De G., M dt G 500 ; 42
E. R. 958,
4 (1858) 25 Beav. 25.
(1892) 1 Ch. 361 ; 61 L. J. Ch. 289.
(1893) 3 East, 516 ; 7 R. R. 892.
T (1855) 24 L. J. Ch. 388 ; 20 Beav.147 ; 52 E. R. 559 ; V. v. Jarm.692n.
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that the language used by the testator would have been clearer ifhe intended to create a fidei commissum. I am unable to conceiveany other language in which that intention could have beenexpressed more clearly than it has been in this, will. He thinks that“ all the testator wanted was that his wife should possess duringher lifetime and his children thereafter." Surely such a conclusionis not only not justified by the language in which the intentionof the testator is disclosed, but is in direct opposition to the plainmeaning of that language. He says that reading the will as a lay-man, the intention was that the widow should have *' only a lifeinterest." There is no doubt that even a lawyer would admit thatthe widow's interest was intended to be a " life interest." Butwhat is meant by that term? It is a " life interest " in that theduration of the interest is the span of her life—but the question iswhat is the nature of that life interest—is it a usufruct so thatthe possession alone passed to her while the dominium had passedto the testator’s children, or did dominium and possession bothpass to her, subject to a reversion in favour of those children.He thought the word " only " was of importance in the con-struction of documents of the nature of this will. But how doesthe use of that word in this will operate to indicate that thecreation of a fidei commissum was not intended. The words ofdevise " I give and devise " having operated to pass thedominium and possession, the testator proceeds to place a limita-tion by prohibiting alienation and indicating the duration of herinterest, and he names beneficiaries in whose favour that prohibitionis created. We have, therefore, all the essential elements of afidei commissum. A transfer of the dominium and possession—and a direction that the property shall pass over to named bene-ficiaries upon the happening of a future event. The words " onlyhold and possess ” cannot be regarded as in any manner limitingthe devise of the property subject to the prohibition against aliena-tion. They mean that she is to “ hold," that is, have the dominiumand possession " during her lifetime." Even if the word " hold "had been omitted, I would still have held that the will created afidei commissum t but the use of that word puts the matter beyondany doubt, and to my mind any argument whatever. Take thewords which follow these words immediately " and after her deaththe same." Logically and grammatically ** the same " means theimmovable property—not its possession. The two children,therefore, are to acquire their title only after " her death." Tillthat event happens the language unmistakably indicates that thewidow is vested with both the dominium and the possession of theproperty.
It appears to have been argued in the low*er Court, and it is verystrenuously pressed on appeal that the language of this will isidentical with or very similar to the language of the will 'construed
1828.
SomnaiDKa
J.
Ounawordene
v.
Viavanathan

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1822. |jy fjjg Privy Council in the case of Samaradiwakara et al. v. DeScbhsxder Saram et al. as reported in 14 N. L. R. 321. This argument is based** upon a misconception of facts. The provisions of that will areGunatoardene to be found more fully, as that case is reported in 13 N. L. R. 333Viaoanaihan an^ *n ^ C'104 ‘ There is qo similarity in the two documents.
Here we have a direct devise to the widow. In that there was nosuch devise. There, under the head of “ Provisions for the widow,”it was said she was to stand ” vested ” with certain property untila distribution as provided in the will took place upon her death.Jn the same clause she declared that she would have a “ life interest ”in those properties. The whole of the argument that the widowin that case acquired title to the properties subject to a fidei com-missum was based upon the use of the word ” vested.” The PrivyCouncil in its judgment concedes that there would be much forcein this argument if the word had been used in its strictly technicalsense, but that in their opinion the word had been employed in aloose sense as indicating the time when the enjoyment of the pro-perty was to commence (dies venit). I am therefore of opinonthat there is nothing common in the language of two wills.
In support of the same contention Mr. Jayawardene cited thefollowing cases:—Mendis v. Fernando (supra), Fonseka v. Babu Nona,1and Weerasinghe v. Qunatilake (supra). None of these cases help him.Their language is widely different to the language employed in thewill under consideration. The word ” possess ” was employed in allthese cases to indicate the interest conveyed. Fonseka v. BabuNona (supra) was decided by Wendt J. He gives as his reason forholding that only a usufruct passed the fact that there are no wordsof the devise of the dominium, but only words expressly limitingthe interest to a bare right of possession.
Mr. .Jayawardene raised the contention that assuming the interestof Paulus Hector to be that of a fidei commissarius, it was an interestwhich may even at this date be seised and sold. He argued thatit was a ” spes ” and could be the subject-matter of a sale. Thisargument is not sound. It is the provisions of section 218 of theCivil Procedure C.'ode which must be considered. Under '"thoseprovisions ” a merely contingent interest ” is not liable to seizureand sale. That the interest is a merely contingent one is apparentfrom the reasons to be found in Mohammed Bhey v. Lebbe Maricar.2
I agree with the order directed by my brother.
Set aside.
1 (1908) 2 S. C. D. 27.
* (1912) IS N. L. R. 466.