081-NLR-NLR-V-06-IBANU-AGEN-v.-ABEYASEKARA.pdf
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1803.
May SO and
June 10.
Fidei commisBum—Requirements of—Construction of last «otU—Parampar&wa.
In construing a will, the intention of the testator is of paramountimportance.
Where the intention to substitute for the fiduciary a fidei commissaryis expressed, or may be gathered by necessary implication from thelanguage of the will, a fidei commissum is constituted. No particularform of words is necessary to create it.
In cases of doubt the inclination of the Court is not to put anyburden upon the inheritance.
If a fiduciary is prohibited from alienating the property devised, with-out it being made apparent what person or class of persons was to bebenefited after the death of the fiduciary, the prohibition would be ofno effect, and he would take the property absolutely.
Where A made a last will containing the words following:—
“ I hereby direct that O and his posterity ' {parampar&wa) shallpossess the following lands, .Ac. Except such possession, these lands orany part thereof shall not be sold', mortgaged, or made over in anyother manner, or seized for his debt. ’’
Held, that these words created a fidei commissum, and that parampardioameant lineal descendants of the testator.
T
HE plaintiff, as the executor of the last will and testament ofMohamad Baay Ibanu Agen, alleged that a land called Patti-
galawatta was sold by one Daniel W. Obayasekara to the deceasedtestator in 1879 ; that the plaintiff in pursuance of a verbal leaseput the sixth defendant in possession of the said land ; that the sixthdefendant paid rent till 1898 ; that in 1899 the first, second, fourth,and fifth defendants claiming title to it leased it to the thirddefendant; and that the third and the sixth defendants in collusionwere in unlawful possession of it. He prayed for ejectment anddamages.
It was argued at the trial that, of the several issues raised, thepreliminary issue, whether by clause 4 of the codicil of the lastwill of Daniel Obayasekara a valid fidei commissum was createdin favour of the children and grandchildren, should be triedfirst.
That clause was translated as follows by the Interpreter of theDistrict Court:—“ I hereby direct that the said Mr. Obayasekara,Proctor, and his posterity shall possess the following lands, viz.,
five-eighths parts of, &c…Except such possession, these lands
or any part thereof shall not be sold, mortgaged, or made over inany other manner, or seized for his debt ”.
IBANU AGEN v. ABEYASEKARA.D.C., Galle, 6,248.
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It was argued for the plaintiff that these words amounted to 1903.only a prohibition against alienation, and that there was no dearindication as to whom the devisee was to pass the properly.
The Anting District Judge (Mr. James Peiris) held as follows:—
“ The Sinhalese words are somewhat obscure. Literally the wordsmay be read thus:‘ It is hereby directed that the said Mr. Obaya-
eekara, Proctor, and down to his descendants (or posterity), shallpossess the said property.’ Taking the clause as a whole, I thinkit is clear that the intention of the testatrix, who was the paternalaunt of Daniel, was that the property should, be preserved in thefamily. It was argued by plaintiff’s counsel that the said wordswere equivalent to the expression from “ generation to generation,”and 9 8. C. G. 33 was relied upon as showing that such wordswere not distinct enough to indicate that dass of persons in whosefavour the trust is created. In view of the decision in Vanaan-den v. Mack (1 N. L. R. 311) and other recent cases in which thatcase has been followed, I doubt whether the Supreme Court willnow take the same view as Burnside, C.J., took in SantiagoPillai v. Chenna Pillai. In the case reported at the foot of thesame page of the 8. G. G. the words which were held to .constitutea good fidei commissum were not so strong as the words used inthe codicil in this case. It may, however, be contended that, onaccount of the use of the words ‘ his debts,’ the prohibitionagainst alienation only applies to Daniel, but I do not think thatwas the intention of the testatrix; even if it were, as the plaintiffclaims under a purchase from Daniel himself, his title is a bad one.
It could only enure during the lifetime of Daniel, who is nowdead. I therefore find the first issue in favour of the defendants.
Under the circumstances it is unnecessary to fix the case for thetrial of the other issues. I dismiss plaintiff’s case with costs.*'
The plaintiff appealed. The case was argued on 29th May,
1905.
Bawa, for plaintiff, appellant.
Sampayo, E.C., and Walter Pereira, for defendant, respondent.
10th June, 1903. Wendt, J.—
The plaintiff, as the executor of one Mohamed Baay Ibanu Agen, •who acquired the land in question by purchase from one DanielObayasekara on a deed of conveyance dated 8th July, 1879, seeks tovindicate it from the defendants. The first, second, and fourth de-fendants, who are three of the six children who survived the death oftheir father Daniel Obayasekara in August. 1890, claim to be entitledto an undivided half of the property, which they have leased to thethird defendant. They say that Obayasekara held the land subject
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***** to a fidei commieaum created by the codicil of his aunt Dona ClaraObayasekara, and could not therefore alienate the same, but that on■ i!. his death his children succeeded to the property by substitution.
Wendt, J. ^jie sole question argued before us was whether the learnedActing District Judge was right in holding that the codicil createda valid fidei commissum.
By her last will, dated Oth November, 1864, Dona Clara devisedthe land in question with others to Daniel Obayasekara (who was aproctor) and his brother Lambertus “ to their absolute use andbenefit in equal shares.” This will was in the English language.The codicil, dated 6th July, 1872, was however in Sinhalese. Byit the testatrix made several important alterations of the formerwill. By clause 1 she revoked the devise to her twti' nephews, andiby clauses 3 and 4 she devised certain lands in severally toLambertus and Daniel respectively. The two clauses are couchedin identical terms. Of the 4th clause, which is now in question,each party has presented its own translation. The followingrepresents that made by the District Court Interpreter, as correctedby the Acting District Judge, himself a Sinhalese gentlemanperfectly conversant with the language:—
" [I give] to the above-mentioned proctor [here follow the namesof the lands]. It is hereby directed that the said Mr. Obayasekara,proctor, and down to his descendants (Perak adorn mdhatmayatasaha ema paramparawa dakwa) or posterity shall possess thesaid property. Except such possession, these lands or any partshall not be sold, mortgaged, made over in any other manner, norseized for his debts.”
In construing a will the paramount question is, what was theintention of the testator? And if it is clear that the person towhom the property is in the first place given is not to have itabsolutely; if it is also clear who is to take after him, and uponwhat event, then the Court will give effect to the testator’s inten-tion. No particular form of words is necessary to create a fideicommissum (Voei, 36, 1, 10; Van Leeuwen, Censura Forensis, pt. /.,lib. 3, chap. 7, section 7). Where the intention to substitute another(or fidei commissary) for the first taker (or fiduciary) is expressedor is to be gathered by necessary implication from the languageof the will, a fidei commissum is constituted. Where theserequisites appear, it matters not that the language employed isopen to criticism, and therefore too much weight ought not to beattached to decided cases in which the Courts, seeking to ascertainthe testator’s intention from variously worded wills and vary-ing circumstances, have pronounced for Or against the fideicommissum. One principle of construction, however, is generally
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recognized, and that is that, where there is doubt, the inclination ofthe Court is against putting any burden upon the inheritance.(Tina v. Badris, 7 8.C.G. 135, per Fleming, A.G.J., citing VanL&euwen’s Commentary, lib. 3, 8, 4: Kotee’s Translation, vol. 1.,p. 376).
Looking, then, at the language of the will before us, it is plainthat Daniel was not to take absolutely; he is to possess, andbesides possessing he is not to sell, mortgage, or otherwise transferthe property—this is a prohibition of voluntary alienation byhim—-neither is the properly to be attached for his debts,which is a prohibition against alienation in invitum. It is, how-ever, settled that merely to prohibit a person to whom you havegiven property from alienating it would be of none effect, and hewould take the property absolutely, unless the reason for theprohibition were apparent: that is to say, unless it appeared thatyour object was to preserve the property, so that on that person’sdeath, or on the happening of any other condition which has beenimposed, it shall pass to another person or class of persons whomyou wished to benefit (Voet, 36, 1, 27; Juta's Vanderlinden,Second Edition, p. 63). In my opinion such a class is distinctly in-dicated in the direction that Daniel’s descendants shall possess theproperty. The testatrix was the sister of Daniel’s father, and herintention seems to have been to keep the property in theObavasekara family. I understand that the term paramparawain the connection in which it is used clearly conveys the idea oflineal descendants.
As to the cases cited at the argument, I doubt whether theinterpretation in Tina v. Badris would be accepted now in viewof later decisions, and especially of Vansanden v. Mack (2 N.L. R. 311) and Dias, J., dissented from the opinion of themajority of the Judges. In Hormusjee v. Cassim (2 N. L. R. 190)the donor expressly contemplated alienation, for he gave theproperty to his own son and his “ assigns,” and the deed was oneto which the Ordinance No. 11 of 1876 applied. In Dias v.Kaithan (2 N. L. R. 233) there was no restraint whatever onalienation.
For the. reasons I have given I think the appeal should bedismissed.
Layabd, C.J.—
I agree. The will appears to me to indicate to whom theproperty shall pass on Daniel’s death, viz., to Daniel’s descendants.It further, contains an express provision against alienationeither voluntary or in invitum. It is clearly laid down in the26-
1808.
May 29, amiJune JO.
Whnst, 3.
ma.
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Roman-Dutch Law. and in the later decisions of this Court that
MJuneWd 1X0 8Pee^ words are necessary to create a fidei commiasum, but
' effect is given to a fidei commissum if it can be collected from
Ijavabd.c.j. any expressions in the will that it was the testator’s intentionoreate it. The language used in the will leaves little doubt
my mind that it was the intention of the testatrix here to impressa fidei commisaum on the property in the interests of Daniel andhis descendants.
The appeal therefore will be dismissed with costs.
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