091-NLR-NLR-V-23-HADJIAR-v.-MEYAPPA.pdf
( 883 )
Present: Ennis and Porter JJ.
TTADJIAR v. MEYAPPA.
324—D C. Colombo, 1,303.
Fidei oommissum—No indication of persona to be benefited.
A last will provided as follows; “ The testator says that hedesires that (a certain boutique) shall be conveyed to his son Nby deed subject to fidei oommissum, i.e., the said N can only takeand enjoy during his lifetime the profit accruing from the said twolands, but. that he or his heirs shall not sell or mortgage them, norcan they donate them as gift to any outsider, and that after thedeath of the said N, the said lands shall rest on his heirs, and thatthese shall have no power to sell or mortgage them, nor to donatethem as gift to any outsider; further he (testator) desires that theexpenses shall be borne by the latter."
Held, that no fidei oommissum was created by the clause.
rj^HE facts are set out in the judgment of the District Judge(H. A. Loos, Esq.):—
This is a partition action. The property sought to be partitionedbelonged to Omer Le wai Sinnetamby who died in 1852, leaving a lastwill No. 443 dated April 19, 1882, whereby he bequeathed the premisesto his son, Sinnetamby Neina Marikar, in the following words:—
" The testator says that he desires that (a certain boutique) shallbe conveyed to his son N by deed subject to fidei oommissum,
e., the said N can only take and enjoy during his lifetime theprofit accruing from the said two lands, but that he or his heirsshall not sell or mortgage them, nor can they donate them osgift to any outsider, and that after the death of the said N, thesaid lands shall rest on his heirs, and that these shall have nopower to sell or mortgage them, nor to donate them as gift toany outsider; further he (testator) desires that the expensesshall be borne by the latter."
There is no allegation by any of the parties to this action that theproperty in question was not conveyed to Neina Marikar by deed, andthe parties are agreed that Neina Marikar was married to Tangamma,that the former died in 1880 and the latter about twenty-five years ago,leaving three children, viz., (1) Pathumma Natchia; (2) Shine LebbeMarikar; and (3) Aise Umma; that Aise TJmma died without issue,and that Pathumma Natchia died leaving three children, viz., theplaintiff and the first and second defendants. The third defendant isthe husband of the second defendant. So far there is no dispute. The.fourth defendant, who is a Chetty, contends that neither the plaintiffnor the first and second defendants are entitled to the property soughtto be partitioned, and that it belongs to himself.
He states that by deed No. 2,828 dated October 8, i891, the heirs ofNeina Marikar, including the plaintiff and the first and second defend-ants conveyed the property in question to A. L. M. Arisi MarikarHadjiar, who by deed No. 12,611, dated September 11,1905, gifted it tohis son, Mohammado Sali, in execution against whom it was sold by the
1982.
Fiscal on September 13,1916, and purchased by him (fourth defendant),and that he has obtained a Fiscal’s transfer, No. 11,338, dated January18,1917.
The first added defendant, whose husband is the second addeddefendant claiming to be the sole surviving child of Sinne X^ebbe M^rii™who was the son of Neina Marikar, andfes such entitled to two-thirdsshare of the property, sought to be partitioned.
The plaintiff contends that by the clauses referred to in the last will,a valid fidei commissum was created, and that Neina Marikar and hisheirs were restrained from selling, mortgaging, or donating the pro-perty to an outsider, so that the transfer by Neina Marikar’s heirs bydeed No. 2,828 dated October 8,1891, being to an “ outsider ” is bad—the intention of the testator having been to keep the property in thefamily.
It was agreed that, in the first instance, the Court should decide thequestion as to whether or not the last will created a valid fidei commissumrestraining the children of Neina Marikar from alienating the property.
The fourth defendants counsel admitted that by the clause referredto, a valid fidei commissum had been created so far as Neina Marikarhimself was concerned, but he contended that it did not do so in thecase of Neina Marikar’s heirs, for there was no sufficient indication asto who was to benefit in the event of the heirs violating the wish of thetestator—that there is no express reference in the clause to the childrenor heirs of Neina Marikar’s heirs, and he .questioned whether such child-ren or heirs of Neina Marikar’s heirs would succeed by implication.
It seems to me that the intention of the testator was clearly to createa fidei commissum to the extent that the law permitted; that hisintention was not only to prevent alienation by Neina MariW himself,but by his heirs also, and to keep the property in his family for so longas the law permitted, for after stating that the property is to be conveyedto his son Neina Marikar subject to fidei commissum, he immediatelyproceeds to provide that neither Neina Marikar or his heirs shall alienatethe property to an “ outsider,9* and that after Neina Marikar’s deathit shall vest on his heirs who shall have no power to alienate it to any“ outsider.99
I do not think that it can be said that those words were inserted inthe clause for any other purpose than that of “ inducing " a fidei com-missum and retaining the property in the family of the testator.
The provision that Neina Marikar’s heirs should not alienate to anoutsider was, I think, a manifest indication that the property shoulddescend to the heirs of Neina Marikar’s heirs, and that the latter werenot intended to get a freq inheritance.
There can be no question that if the testator had said that the pro-perty was to be conveyed to Neina Marikar and his heirs "in perpetuity,"with a restriction against alienation, a valid fidei commissum wouldhave been created for the full period allowed by law in favour of thepersons, who, under the law of intestate succession, would be entitledto succeed Neina Marikar (Selembram et al. vs. Perumal et al).1
These are not the words in the clause of the will in question tanta-mount to a provision in favour of the heirs “ in perpetuity ” of NeinaMarikar ? Although expressed in different language, was not that theintention of the testator f
1 {1914) 19 N. L. B. 6.
( 385 )
I am unable to bee what other intention the testator meant to express 1988.by the words used by him.~
I would hold accordingly that the last will does create a valid fidei Mcyoppaeommiesum in respect of the heirs of Neina Marikar, and that they werenot competent to convey the property by the deed Kb. 2,828 referred toabove, and that the fourth defendant had no valid paper title to theproperty songht to be partitioned.
A. 8t. V. Jayawardene, KXJ. (with him Araoarafnam), for thefourth defendant, appellant.
Samaratoickreme (with him Qarvin), for plaintiff, respondent.
March 30,1922. Ehnis J.—
‘ This was a partition action. At the trial a preliminary issue wasraised as to whether the plaintiff and the first, second, and thirddefendants had any title under the will of Sinnetamby made in 1852.
The plaintiff claimed that Smnetamby*s will created a fidei com-miesum under which they benefited. It was agreed that in the eventof the decision on this point being in favour of the fourth defendant,the plaintiff’s action should fail. The learned judge found infavour of the plaintiff, and the fourth defendant appeals. Thematerial portions of the will in question axe as follows; “ Thetestator says that he desires that (a certain boutique) shall beconveyed to. his son, Sinnatamby Neina Maribar, by deed subject tofidei commissum, i.e., the said Neina Maribar can only take andenjoy during his lifetime the profit accruing from the said two lands,but that he or his heirs shall not sell or mortgage them, nor canthey donate them as gift to any outsider, and that after the deathof the said Neina Marikar the said lands shall vest on his heiro, andthat these shall have no power to sell or mortgage them, nor todonate them as gift to any outsider, further he (testator) desiresthat the expenses shall be borne by the latter.” The learnedJudge held that reading the whole of this together there was anintention by the testator to create a fidei eommissum to the extentthe law permitted, and an intention of keeping the property in hisfamily for that time. The learned Judge appears to have considered.that the prohibition against alienation to an outsider was a manifestindication that the property should descend to the heirs of NeinaMarikars’ heirs, and that the latter was not intended to get a freeinheritance. There have been a series of cases on the interpretationof similar wills, but in every case where & fidei commimm in favourof the family has been found words such as “ permanently,1” or“ entail,” or “ for ever,” or 1t posterity ” are found in the clausecreating the fidei commissum to indicate the person* who are tobenefit. In the present will there axe no such words. In thepresent case the prohibition against alienation to outsiders islimited to the heirs of Neina Marikar without any mention of what
1922*
Ennis J,
Badfiwr
v.Meyappa
( 336 )
is to happen in the event oi an alienation to outsiders. It may bethat the words are equivalent to giving the other heirs a right ofpre-emption, a question which does not arisein the present case, as allthe heirs of Neina Marikar joined in 1891 in a sale by virtue ofwhich the fourth defendant ultimately churned. The counsel forthe respondent based his contention mainly on an argument thatthe will should be construed according to the intention of thetestator. There is, however, nothing in the history of the propertywhich.would leave the Court to think that the testator intended tocreate an entail beyond the persons he has specially mentioned, asthe property appears to have bom acquired by a purchase at anauction sale. Moreover, in order to create a valid fidei eommisstm,not only .must there be a prohibition of alienation, but the personsto benefit must be clearly indicated. No persons are specificallyJUv&eated in the will, and no class of persons can be said by inferenceto have been indicated. In thecase of Livera v. Abeyesinghe1 andLivera v. Gunaratna 2 the will contained an express provision that theproperty was entailed as a fidei cowmisswm, and in the case ofSderribram v. Pervmal3 there was a provision that the propertyshould be held and possessed by the beneficiaries and their heirs inperpetuity. The main case in which it was held that the willcreated a fidei eommisstm in favour of the family is the case ofRobert v. Abeywardane,4 That case has been distinguished manytimes since. It was considered in the case of Peris v. Soysa6 andin the case of Cornells v. Wattuhamy* There are also two un-reported cases where the judgmeqf was delivered by the sameJudge, 265, D. C. Galle, 16,803,7 and 327, D. C. Galle, 17,353 * Inall those cases it was held that there was no dear indication thatthe will under review indicated the persons to benefit by the prohi-bition. In the circumstances I am of opinion that the appellant isentitled to succeed, and that the plaintiff’s case fails, as he can claimno title under Sinnetamby’s will.
I would accordingly allow the appeal, with costs, and dismissplaintiff’s action, with costs.
When the appeal was first presented it occurred to me that thecase was one that should not have been made the subject of apartition action, but inasmuch as the learned Judge has found infavour of the plaintiff in the Court below, it is unnecessary for us toconsider the question of the plaintiff’s bona fides in having the pointdecided in a partition action.
Porter J.—I agree.
Appeal allowed.
1 (1916) 18 N. L. R. 67.t(19l6) 17 N. L. R. 289.5 (1914) 16 N. L. R- 6.
* (1917) 16 N. L. R. 828.
•11921) 21 N. L. R. 448.
(1922) 22 N. L. B. 77.
*7 8.0. Min. of Feb. 24, 1922.
8. G. Min. of Mar. 27,1922.