Hawke v. Sabapathy.
Present: Keuneman and Wijeyewardene JJ.
HAWKE et al. v. SABAPATHY et al.
202—D. C. Kandy, 45,395.
Fidei commissum—Gift to mistress and children—Prohibition against aliena-tion—No designation of persons benefited—Prohibition void—Parti-tion of land—Not of a permanent character—Partition not-expedient.By a deed of gift H donated an undivided one-fourth share to hismistress R and the remaining three undivided shares to the childrenbegotten by her_and, also, the children to be borne by .her to him, to beheld by them for ever and for their own use and benefit absolutely. Thegift was made subject to the following among other conditions: —
“ (1) That in c&se of the death of all the said children their shares shalldevolve to me.
“ (2) That the said donees or any of them shall not under any pretenceswhatsoever sell, mortgage, or alienate the said estate or anyportion thereof or any of their right, title, or interest therein andthereto during my lifetime without my consent thereto first hadand obtained. ”
One of the children sold her interests in the land to the plaintiff withoutthe consent of H.
» 13 N. L. B. 284.- 2 (1817) 1 Bam. A Aid. 29.
Hawke v. Sabapathy.
Held, that the prohibition against alienation contained in clause 2 wasvoid and that the share vested in the plaintiff subject to a fidei commissumin favour of H or his estate.
' Held, further, that, on the death of any of the children, his or her sharedid not accrue to the surviving children.
Where, in view of the manner in which the undivided shares are heldby the parties, a partition effected would not be of a permanent characterbut might have to be superseded by a consolidation of the divided lotsand by a fresh subdivision, it is not desirable or expedient to order apartition. In such a case the Court may order a sale.
Fernando v. Fernando (1 C. W-. R. 46) followed.
nr HIS was a partition action for the partition of a land called Kurugalaalias Maryland. One J. T. Hawke was the original owner of theland, who by deed of gift P 2 donated the land to Rakoo, his mistress,and his children begotten by her and also to be borne by her. Thegift was subject to the conditions set out in the head-note.
By deed P 3 one of the said children conveyed her interests to SuppiahPulle, who sold them to the plaintiff. By deed D 3 another child conveyedher interests to the first defendant. Neither P 3 nor D 3 were executedwith the consent of J. T. Hawke.
The interests of Rakoo and some of the other children were sold inexecution against them and have devolved on the defendants and theadded-defendahts.
Three questions were argued in appeal on these facts : —
Whether aii'y interest vested in plaintiff by virtue of deed P 3 ?
Whether on the death of any child of Hawke the share or shares
of such child would devolve on the heirs of such child or accrueto the surviving children to be held by them subject to thefidei commissum in favour of Hawke’s estate ?
Whether the action for partition was maintainable as the partition
effected would not be of a permanent character ?
H. V. Perera, K.C. (with him°S. 'W. Jayasuriya), for the appellants (6th-17th added-defendants). Two questions have to be considered, viz: —(1) Whether the plaintiff has any right at all, (2) even if he has anyright, whether he has such an interest as to entitle him to bring a partitionaction ?
In the deed of gift P 2, we have a class of beneficiaries definitelydescribed and when they all die the property is to go back to the donor.They take it jointly, and the property is owned jointly till they all die.A deed like P 2 creates a gift to a class—Kingsbury v. Walter Theclass or group is an entity by itself although the individuals who con-stitute it may change from time to time. Where' there is a gift to aclass with a prohibition against alienation, the prohibition is good andmust be regarded as for the benefit of that class—Robert v. Abeywardene *.The deed of transfer to plaintiff, therefore, conveyed no title. Further,where there is a gift to a class, the principle of jus accrescendi will operate.The provisions of Ordinance No. 11 of 1876 will not apply-in this case;it is the general Roman-Dutch law which is applicable. Vide Sande on
1 (1901) A. C. 1ST at 192.* (1912) 15 N. L. R. 323.
Hawke v. Sabapathy.
Restraints, Art. 20 at p. 308 (1892 ed.) and Part 3, Ch. 6, Art. 14 at p. 229;Perezius on Donations, tit. 55, Arts. 1-5.
To come to the second question, the plaintiff is not entitled to bringa partition action even if it can be regarded that he has some title underthe deed in his favour. The plaintiff has co-ownership for only a limitedtime; it is not co-ownership in the strict sense. If the plaintiff in apartition suit has an interest in the property not of a permanent character,he is not a co-owner within the meaning of the Ordinance, and cannotbring an action—Fernando v. Fernando *; Carry v. Carry *.
N. Nadarajah, tor the plaintiff, respondent.—Whatever the Roman-Dutch law may be on the subject, the law relating to prohibition ofalienations is now confined within definite limits by sections 2 and 3 ofOrdinance 11 of 1876—Hormusjee v. Cassim *. Prohibition againstalienation is ineffective in the absence of an express penalty—Saidu v.Samidu Sitta Naima v. Gary BawaThe plaintiff, therefore, hassecured valid title.'
Fidei commissum properties can be partitioned at the instance offiduciaries—Jayawardene on Partition pp, 38-46. There is a reportedcase where the facts- were similar to those of the present case—Dasse-naika v. Tillekeratne ’. Fernando v. Fernando (supra) is not applicable asthere was only one fiduciary in that case and he had split .up his life-interest.
The provisions of the Entail and Settlement Ordinance 11 of 1876 andof the Partition Ordinance have been jointly considered in variouscases and, except for the principle of jus accrescendi, there is no differencebetween joint and single fideicommjssa—Sathianaden v. Matthes Pulleet al1; Baby Nona et al. v. Silva"; Abeyesundere v. Abeyesundere";Marikar v. Marikar Usoof v. Rahimath et al.11; De Livera et al. v.Amarasekere “.
A gift to a class does not necessarily involve jus accrescendi—Usoof v.Rahimath et al. (supra). There is no question of lapse of fidei commissumin the present case. P 2 is a deed inter vivos, and fight of accrual should notbe lightly presumed—Carlinahamy v. Juanis et al. ” ; Winstanley et al v.Barrow et al.u
E. F. N. Gratiaen, for second to eighth respondents (the defendantsand first to fifth added-defendants).
H. V. Perera, K.C., in reply.—Jus accrescendi is not the same as accrual;the latter term has a larger meaning than the former—Carlinahamy v.Juanis et al.,c; Usoof v. Rahimath et al.,n
It is a fallacy to separate interests gifted to a class. Distinctionshould be drawn between a gift to a class and a gift to individuals—Winstanley et al. v. Barrow et al. (supra). In a gift to a class, no part of
1 (1915) I G. W. R. 46.
(1917) 4 C. TV. R. SO.
(1896) 2 N. L. R. 190.‘ (1922) 23 N. L. R. 506.» (1930) 32 N. L. R. 155.
(1917) 4 C. TV. R. 334.i (1897) 3 N. L. R. 200.
« (1906) 9 K. L. R. 251.
* (1909) 12 N. L. 11. 373.
'» (1920) 22 N. h. R. 137.
'' (1918) 20 N. L. R. 225.
'* (1938) 3 G. L. J, R. 98.
'» (1924) 26 N. L. R. 129.
'* (1937) A-. D. 75'«* (1924) 26 N. L. R. 129, at 141.“ (1918) 20 N. L. R. 226, at 234.
490WIJEYEWARDENE J.—Hawke v. Sabapaihy.
the fitlei comrpissum fails as long as there are in existence any members ofthat class. The intention of the donor in P 2 was that the propertyshould'go as a whole to a class and to revert as a whole to the donor.Vide Tillekeratne v. Silva et al. *; Vansanden et al. v. Mack et al. *
The Partition Ordinance cannot be used as a temporary expedient.Fernando v. Fernando (supra.) is exactly in point. The ratio decidendiof that case is discussed in Carry v. Carry (supra).
Cur. adv. vuIt.
March 25, 1939. Wijeyewardene J.—
This is an action for the partition of a land called Kurugala aliasMaryland. One James Thomas Hawke was admittedly the originalowner of the land. By deed of gift P 2 of 1893 Hawke donated “ anundivided £ part or share” to his mistress Rakoo and the remaining“ three undivided parts or shares to the children begotten by her andalso the children to be borne by her to him, to be held by them forever and for their own use and benefit absolutely”. The gift was madesubject to certain conditions and limitations which are set but in the.deed as follows : —
That in case of the death of all the said children their said shares
shall devolve to me the said James Thomas Hawke.
' That the said donees or any of them shall not under any pretences
whatsoever sell, mortgage or alienate the said estate and premisesor any portion thereof or their or any of their right, title, andinterest therein and thereto during my lifetime without myconsent thereto first had and obtained.
That the said donees or any of them shall be allowed to take
possession of the said estate and premises or any of theirrespective shares at any time, that I the said James ThomasHawke may be minded or desirous of giving over possession ofthe same to them in writing.
That on no account shall the right, title and interest of the said
donees or any of them be liable or subject to any debt or debtsincurred by the said donees or any of them or to be liable tobe seized, sequestered oresold in execution for the debt, defaultor miscarriage of the said donees- or any of them during mylifetime.
J.T. Hawke had eight children by Rakoo, namely, Agnes, Eleanor(6th added-defendant), Arthur (7th added-defendant), Alice, Beatrice,Mary Cecilia, Emily (8th added-defendant) and Winifred (12th added-defendant). Four of these children—Agnes, Alice, Beatrice and MaryCecilia—predeceased J. T. Hawke, who died in 1933. Rakoo died in1935. The 9th added-defendant is the husband and the 10th, 15th,16th and 17th added-defendants are the children of Mary Cecilia. RobertMacdonald married Alice and, on her death without children, marriedBeatrice and had by the latter one' child, the 11th added-defendant.Robert Macdonald has not been made a party to this action. The13th and 14th added-defendants are the children of Agnes.
» (1907) 10 N. L. R. 214.
* (1895) 1 N. L. R. 311.
WIJEYEWARDENE J.—Hawke v. Sabapathy.
The interests of Rakoo, Agnes, Eleanor, Arthur, Beatrice and MaryCecilia were sold against them at Fiscal's sales and these interestshave now devolved on the first and second defendants and the 1st, 2nd,3rd, 4th and 5th added-defendants. By a deed D 3 executed in 1926,Emily conveyed her interests to the 1st defendant. A certain portionof the interests of Alice is al|x> claimed by the first and second defendantsunder deed D 6 of 1927. By deed P 3 of 1927, Mary Winifred conveyedher interests to Suppiah Pulle who in turn conveyed these interests tothe plaintiff. There is no evidence to show .that either the deed D 3 orthe deed P 3 has been executed with the consent of J. T. Hawke asrequired by the deed of gift P 2. In fact, the evidence shows that J. T.Hawke never visited Ceylon after he left for New Zealand in 1910.
On the facts as stated by me, the Counsel for the appellants argued—
That no interest in the property vested in the plaintiff by virtue
of deeds P 3 and P 4.
That the present action for a partition of the land is not maintain-
able, as any partition that may be ordered will not be of apermanent character.
That on the death of any child of J. T. Hawke the share of such
child does not devolve on the heirs of such child but accruesto the surviving children of J. T. Hawke to be held by themsubject to the fidei commissum in favour of the estate of J. T.Hawke.
In support of his first argument, Mr. H. V. Perera stated that thealienation by Emily was invalid as the deed of gift P 2 contained aprohibition against alienation by Emily without the consent of thedonor, and he contended that the prohibition had been imposed for thebenefit of a class, to wit, the children of J. T. Hawke by Rakoo. Itwas argued by him that the deed P 2 contained a gift to a class of personscomposed of the children of the donor and that it was the intention of thedonor that the three-fourths shares given to his children should remainvested in that class to the exclusion of the heirs and assigns of thechildren until the death of the last survivor of the donees when thethree-fourths shares were to vest in the estate of the donor. On thesearguments, Mr. Perera put forward the proposition that the deed ofgift created a fidei commissum in favour of the group of children of the -donor and that, in spite of an alienation by one of the children, theproperty would continue to vest in the group including the alienor andthat the alienee would get no interest. If this proposition is given itsfull effect, it follows that, if all the children of J. T. Hawke convey theirundivided § shares to a third party, they will still continue to own theshares in spite of the alienation by them, until the death of the lastsurvivor of them.
This proposition has to he considered, no doubt, according to theprinciples of the Roman-Dutch Law, but it should not be forgottenthat these principles have been modified considerably by the provisionsof the Entail and Settlement Ordinance, 1876. There are also severallocal decisions in which our Courts have considered whether a transferexecuted by a grantee under a Crown Grant in violation of a prohibition
WIJEYEWARDENE J.—Hawke v. Sabapathy.
against alienation contained in the Crown Grant operates to pass goodtitle. These decisions however are not applicable to the present case,as, in these cases, the rights of the parties had to be determined in-dependently of the provisions of the Entail and Settlement Ordinance,1876, which were not binding on the Crown.
Segtion 3 of the Entail and Settlement Ordinance, 1876, enacts that,if a deed executed after the proclamation of the Ordinance contains aprohibition against alienation but does not name, describe, or designatethe person or persons in whose favour or for whose benefit the prohibitionis provided, then such prohibition shall be absolutely null and void.It is, therefore, necessary to examine the language of the deed P 2 toascertain whether the prohibition contained in it is valid. The deedstates first that the shares have been given by the donor to his children“ absolutely ” and “ for ever ”. It then proceeds to create a fidei com-missum in favour of J. T. Hawke on the death of all the donees. Thecreation of this fidei commissum has hardly any bearing on the presentquestion. The deed then prohibits any alienation by the donees withoutthe consent of the donor. The prohibition contained in the deed P 2does not differ from the prohibition in a simple deed of gift *by which thedonor gifts a property to a single donee and burdens the gift with aprohibition against alienation without mentioning the person for whosebenefit or in whose favour such a prohibition has been made. There isno clause in the deed P 2 which names, describes or designates, the personsfor whose benefit the prohibition has been provided. It is very probablethat the donor inserted the clause containing the prohibition in anendeavour to. protect this group of children against the consequences oftheir own improvidence. But such a prohibition is of no.effect in ourlaw. (Vide Saidu v. Samidu1 and Boteju v. Fernando.*) In his Lawsof Ceylon (1904 ed., vol. 11., p. 320) Walter Pereira sets out theposition with • regard to prohibitions against alienation as follows: —“When anything is alienated against the express prohibition ofthe testator, those persons in whose interest the prohibition has beenmade are immediately called to the fidei commissum (Sande de Proh.AL. 3.6.1). This proposition is liable to be misunderstood. The fideicommissum here referred to is a fidei commissum induced by a prohi-bition against alienation coupled with an indication of a person tobenefit in the event of such prohibition being disregarded. Ordinarilythere need be no prohibition against alienation for the purpose ofconstituting a fidei commissum although in the creation of fidei com-missa in Ceylon such prohibitions are usually inserted. If I give myproperty to A subject to the condition that it is to become B’s propertyafter the death of A, I create a complete and effectual fidei commissum.In such a case a prohibition against alienation is a mere superfluity,because A cannot interfere with B’s rights and he cannot thereforealienate the property. All that he can alienate is his own interestin it which terminates at his death. In such a case if A executes adeed purporting to alienate the property, B may recover it from thepurchaser as soon as his right accrues, that is after the death of A. ”
i (1922) 23 N. L. R. 506.5 (1923) 24 N. L. R. 293.
WIJEYEWARDENE J.—Hawke v. Sabapathy.493
I hold that the prohibition against alienation contained in the deedP 2 is void and that Emily’s share is now vested in the plaintiff, subject,however, to the fidei commissum created in favour of J. T. ThomasHawke or his estate.
In support of his second argument, Mr. Perera contends that' thepartition effected under a decree in the present action will have to besuperseded when on the death of all the children these undivided three-fourths shares will vest in the estate of J. T. Hawke. In order to appre-ciate the force of this argument, it is best to consider in detail the natureof the undivided shares of each party to the present action. For con-venience of reference I shall describe the undivided £ share which wasgiven to Rakoo as “Rakoo’s share” and the. remaining f shares as“ children’s share ”. The parties to this action will be entitled, more orless, to the following shares : —
Plaintiff—24/192 of “ children’s share ”.
First defendant—35/192 of “ children’s share ” plus 8/24 of “ Rakoo’sshare ”.-
Second defendant—46/192 of “ children’s share ’’ plus 8/24 of “ Rakoo’sshare ”.
First added-defendant—20/192 of “ children’s share ” plus 4/24 of“ Rakoo’s share ”.
Second, third, fourth, fifth added-defendants each 5/192 of “ children’sshare ” plus 1/24 of “ Rakoo’s share
Unallotted—12/192 of “ children's share ”.
It will thus be seen that each of the 7 divided lots given to the first andsecond defendants and first, second, third, fourth and fifth added-defendants will be allotted in lieu of certain parts of “ Rakoo’s share ”and certain parts of “ children’s share ”. Moreover, the parts of “ Rakoo’sshare ” will not bear the same proportion to the parts of “ children’sshare ” in each of these 7 divided lots. On the death of the four remainingchildren of Hawke, the “ children’s share ” will have' to be separated offfrom “ Rakoo’s share ” and given to the estate of Hawke. This wouldnecessitate the consolidation of all the lots into one lot and a freshdivision of the entirety into a number of lots—at least 7 lots representing“ Rakoo’s share ” to be given to the first defendant, the second defendantand the first, second, third, fourth and fifth added-defendants and anumber of separate lots representing the “ children’s share ” to be given'to the several beneficiaries who may become entitled to claim the“ children’s share ” under the deed of gift- P 2, on the happening of thecontingency referred to in that deed. It will thus "be seen that any"partition ordered in the present action ceases to be of any benefit onthe death of the last surviving child of Hawke. Such a partition willmoreover cause serious inconvenience to those becoming entitled topossess shares in the land as the beneficiaries of Hawke’s estate, and itwill become absolutely necessary to ignore the partition and consolidatethe various lots and subdivide them according, to a fresh scheme ofpartition.
I feel that the reasons against the entering of a decree for partition inthe present action are even more cogent than in Fernando v. Fernando
1 (1915) 1 C. W. R. 46.
WIJEYEWARDENE J.—Hawke v. Sabapathy.
where the Supreme Court refused to allow a decree for partition, on theground that any partition decreed will not be of a permanent character.The racus of that case may be briefly summarized as follows:—A land wasgifted in 1862 to one Maria subject to a fidei commissum in favour of herdescendants and ultimately in favour of a certain church. In 1865 Mariagifted a three-fourth share of the land to her brother and two sisters. Theremaining one-fourth share was sold against her in execution andpurchased by the plaintiff in 1914. The plaintiff filed an action forpartition making those claiming interests under the brother and twosister^ of Maria parties to the action. De Sampayo J., with whomWood Renton A.C.J. agreed, stated in the course of his judgment,—“Moreover, and this to my mind is the greatest objection—any partitionof the land at the present time will not be of a permanent character, foron the death of Maria the division would come to an end and those takingafter her would be entitled to and possess the property in its entirety asan undivided land. I cannot think that such a case was contemplatedby the Ordinance ”.
It is no doubt well settled law that a property subject to a fidei com-missum may be partitioned under Ordinance No. 10 of 1863. The subjectmatter of the cases, however, in which our Courts have allowed a partitionof fidei commissum property has been generally a land owned by severalfiduciarii, each with a separate .set of fidei commissarU. In such cases,a partition was not only practicable but beneficial. On the terminationof the fidei commissum the lot allotted to each fiduciarius would devolveon a separate set of fidei commissarU who could then possess such lot incommon or divide it among themselves. In such cases, no necessityarises for consolidating all or some of the divided lots and then effectinga fresh subdivision. Jn fact, the partition of fidei commission propertyhas been permitted by our Courts on the basis that the decree for partitionentered in an action to which the fiduciarii were parties would be bindingon the fidei commissarU, even if they were not parties to the action. Butany insistence on the binding nature of the decree entered in the presentaction bn the ultimate beneficiaries of Hawke’s estate will be so detri-mental to their interests as to amount almost to a denial of their rights.In view of the terms of the deed of gift P 2 and the manner in which theundivided shares are now held by the various parties, any partition thatmay be ordered in the present action will have to be superseded as soonas the fidei commissum in favour of the estate of J. T. Hawke takeseffect.
The view I have expressed as to the inexpediency of the property beingpartitioned does not involve a finding by me that the plaintiff is notentitled to maintain an action under Ordinance No. 10 of 1863 for the saleof the land. I wish to add that no argument was addressed to this Courtby any Counsel in favour of a sale of the property. Such a sale and adeposit in Court of the proceeds of sale of the three-fourths shares donatedto the children, to be retained subject to the terms of the fidei commissumin favour of the estate of J. T. Hawke, will not give rise to the difficultiesindicated by me as likely to arise in the case of a decree for partition.Sections 2 and 4 of the Ordinance show clearly that a Court could enter adecree for sale if it appears to such Court that “ on account of the number
Don Simon Peter v. James Fernando.
ox poverty of the owners, the nature, .extent, or value of the land andother causes ” a partition is impossible or inexpedient. It is open to theplaintiff in this case, if he is so advised, to apply for the sale of theproperty.
I am unable to accept the third proposition put forward by the Counselfor the appellant. I think that, on the death of each of the children ofJ. T. Hawke referred to in the deed of gift P 2, his or her share devolvedon his or her heirs and did not accrue to the surviving children mentionedin the deed of gift. To hold otherwise would be to ignore the provisionsof section 20 of Ordinance 21 of 1844. The heirs of a deceased child or atransferee obtaining title from a child of J. T. Hawke and Hakoo willhold such share subject to the fidei commissum in favour of the estate ofJ. T. Hawke.
I set aside pro forma the judgment of the learned District Judge. On adate to be fixed by the Judge after notice to the parties, the District Judgewill inquire into the question whether a decree for sale should be enteredin respect of the property, if the plaintiff makes an application for such adecree within a reasonable time to be allowed by the Court. If theplaintiff fails to make such an application or the District Judge decides onsuch application that a decree for sale should not be entered, then theplaintiff’s action will stand dismissed. If the District Judge decides onsuch inquiry to enter a decree for sale, the necessary orders will be madeby him to give effect to the decree. Any party dissatisfied with anysuch decree or order will, of course, have the usual right of appeal tothis Court.
The plaintiff respondent will pay the costs of this appeal to the appel-lants. All other costs incurred up to date in respect of the proceedingsin the District Court will be in the discretion of the District Judge.
Keuneman J.—I agree.
Set aside; case remitted.
HAWKE et al. v. SABAPATHY et al