017-SLLR-SLLR-2003-1-IBRAHIM-AND-OTHERS-v.-FAIZER-AND-OTHERS.pdf
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Ibrahim and others v Faizer and others
(Ismail. J.)
133
IBRAHIM AND OTHERS
v.FAIZER AND OTHERS
SUPREME COURTS.N. SILVA, CJ.BANDARANAYAKE J., ANDISMAIL, J.
SC APPEAL No. 93/97CA APPEAL 609/82(F)
DC PUTTALAM No. T/662ND SEPTEMBER 2002
Testamentary Action – Last will – Gift inter vivos or will – Intention of the testa-tor
The deceased Segu Mohideen was the owner and proprietor of a jewellerybusiness known as Mohideen Jewellery. He adopted the appellant as his sonand nominated him.to look after his business and to keep the accounts.
The will of the deceased dated 19.12.1971 (P1) in its first part conveyed to theappellant 1/2 the share of the wealth and income of the aforesaid business.The second part of the will provided that the appellant was to hold such rightafter the. testator’s death.
The District Judge held the Will as proved and issued probate to the appellant.
Held :
Although the first part of the will was in the form of deed of gift, theintention of the second part was that it shall not take effect until afterthe testator’s death. Hence P1 was a valid will
The true criterion in interpreting a will is the intention of the testator. to be gathered from the terms of the will and from surrounding cir-cumstances.
APPEAL from the judgement of the Court of Appeal.
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Cases referred to:
Re Anziani – (1930) 1 Ch, 407.424
Dias v Jansen -(1913) 16 NLR 502
Vaitty v Jaccova – (1907) Appeal Court Reports 45
FanEyre v The Public Trustee – (1944) 46 NLR 59
Seneviratne v Kandappapullai – (1912) 16 NLR 151
R.K.W. Goonesekera with F.C. Perera and M.F. Miskin for appellant.Sanjeewa Jayawardena for 4th respondent.
Cur.adv.vult
January. 23,2003ISMAIL, J.
The petitioner, Hameed Mohamed Salihu, annexing the lastwill dated 19th December 1971 (Pi) of his elder brother HameedSegu Mohideen, applied to the District Court, Puttalam inTestamentary case bearing No. T/66, by a petition dated 9thJanuary 1979, to have it proved and to obtain for himself the grantof letters, of- administration. He averred that half the share of theincome of the business called “Mohideen Jewellery” carried on bythe.deceased at No. 30, Main Street, Puttalam was devised to the1st respondent. He disclosed that, besides himself and his brotherthe 5th respondent, three sisters named as the 2nd, 3rd, and 4threspondents were the intestate heirs to the balance estate of thedeceased, the particulars of which were separately set out in aSchedule. The testator died on 9th October 1978 without revokinghis last will arid as no executor was named therein, the petitioner.claimed to have letters of administration issued to him.
Tfie 16t respondent himself moved to have the will proved asbeing duly executed and for probate to be issued to him in respect
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of half the share devised to him. The 4th and 5th respondentsclaimed in their objections that the said will was a forged documentand that it was neither a will nor an instrument known to law.Subsequently the petitioner, contrary to the averments in his origi-nal application, claimed by an affidavit dated 18th January 1980that his elder brother Hameed Segu Mohideen died without leavinga valid last will and that the document annexed to his earlier appli-cation as the will was not the act and deed of the deceased.
The District Judge by his judgment dated 26.03.1982 accept-ed the evidence given by four of the five witnesses to the last willcalled by the 1st respondent and held that the will was proved. Hemade order absolute issuing probate to the 1st respondent inrespect of the half share which formed the subject matter of the will.
Thereafter, pursuant to a motion filed by all the intestate heirsconsenting to the grant of letters of administration to the petitionerand the 4th respondent, an order was made accordingly on14.5.1982 in respect of the balance half share of the estate. The 4threspondent appealed to the Court of Appeal on 24.5.1982 movingto set aside the judgment of the District Court dated 26.3.1982 andsought a declaration that the last will which was a forged documentwas not the act and deed of the deceased who died intestate.
However, counsel for the 4th respondent submitted for thefirst time to the Court of Appeal as a proposition of law that the pur-ported disposition in the impugned will was an irrevocable gift intervivos taking effect immediately without reference to or being condi-tional upon the death of the testator Segu Mohideen. It is to benoted that as the sole challenge to. the will in the District Court wasthat it was a forgery and in the absence of a specific issue therewas no finding as to whether or not the said instrument of disposi-tion was a valid will.
Admittedly, the deceased Segu Mohideen was the absoluteowner and proprietor of a jewellery business known as MohideenJewellery situated at No. 30, Main Street, Puttalam. Having no chil-dren and being sjck and of old age he adopted the 1st respondentas his son and nominated him to look after his business and tokeep the accounts.
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The will dated 19.12.1971 (P1) signed by five witnesses inthe presence of the testator and in the presence of one anotherwas read over, translated and explained to them. It was provided inthe first part as follows:
“AND WHEREAS in consideration of the affection and love Ihave on him I do hereby assign and convey unto him to hold andenjoy 1/2 the share of wealth income of the Mohideen Jewelleryat No. 30, Main Street, Puttalam.”
The Court of Appeal by its judgment dated 13.3.1997 foundit unnecessary to examine the question as to whether the docu-ment was a forgery or not, and held that the impugned will (P1) isnot a testamentary document. The judgment of the District Courtwas set aside and the case was remitted back "for necessary stepsby way of testamentary proceedings”..
The Court of Appeal upon an examination of the instrumentfound in it “ex facie evidence of a gift inter vivog’, that it wasdesigned to confer an immediate right which the deceased pos-sessed and that “the intention of the donor was to convey an irrev-ocable gift in praesenti rather than to convey his estate conditionedupon his death”.
The Court of Appeal finally held that P1 cannot be construedas a testamentary document as there could be no testamentaryintention when a person had “no perception of death” in the nearfuture and when the 1st respondent was conducting business in thepremises on behalf of the testator in the premises in suit.
The 1st respondent-appellant was granted special leave toappeal on 19.6.97 on the question whether the document P1 is avalid last will.
The Court of Appeal has apparently arrived at its findings byscrutinizing and laying emphasis only on the first half of the will bywhich the testator has assigned and conveyed to the 1 st respon-dent-appellant half the share of the income of the business ofMohideen Jewellery. It has not referred to the further dispositiontherein that upon the death of the testator the appellant has beenassured additionally of an absolute right to half the share of thepremises itself and to occupy the same without fear of eviction. Thesecond part of the will is as follows:
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Ibrahim and others v Faizer and others
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“AND WHEREAS I do assure that after my death the saidShahul Hameed Mohammed Ibrahim alias S.M. Ibrahim shallhold absolute right on the half share of the “Mohideen Jewellery”at No. 30 Main Street, Puttalam including the premises andenjoy, the benefits of same without any eviction or interruptionand the said S.M.Ibrahim shall and will at all times thereafter mydeath enjoy same.”
The second part of the will is clearly distinct from the first asstated in Theobald on Wills p.24 (14th ed). “if a deed is severable andin part clearly testamentary, such part may take effect as a will,though other parts are not testamentary”. The author has in the foot-note referred to Re Anziani (1) in which it was held that a deed ofappointment and assignment which was expressed to be intended tooperate as an assignment as well as a will, could take effect as aconveyance inter vivos of the immovable property of the testatrix.
It has been noted already that upon the death of the testator,the 1 st respondent-appellant was also assured of half the share ofthe premises besides the income. The submission of counsel forthe 4th respondent-appellant that the reference in the will to theassurance of possession even after the death of the testator issuperfluous because the gift took effect immediately, cannot beaccepted because, as was held in Dias v Jansen <2) “no wordsexpressed in a will should be treated as superfluous if they couldbe given a meaning not inconsistent with the avowed intention ofthe testator”. The words in the second part of the will clearlyexpress the intention of the testator to bequeath half the share ofthe specified immovable property to take effect after his death.Wood Renton, J. in Vaitty vJaccova (3), relied on the following pas-sage in Wi/liams on Executors vol. 1 p.82 (10th ed.) in interpretingan instrument, of disposition “It is undoubted law that whatevermay be the form of a duly executed instrument and not withstand-ing that it may be in the form of a settlement or deed of gift, or abond, if the person executing it intends that it shall not take effectuntil after his death, and it is dependent on his death for its vigourand effect, it is testamentary”.
The 1st respondent-appellant called as witnesses in theDistrict Court, Eliathamby, Ismail, Malhamy and Selvaratnam, four
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of the five witnesses to the will. Their evidence which was accept-ed by the District Judge was that they were present together andaffixed their signatures to the document which was understood bythem to be the last will and its contents were explained to them, thetrue intention of the testator is clear from the evidence and the sur-rounding circumstances. In Fan Eyre v The Public. Trustee (4), itwas held that the paramount rule in the interpretation of a will wasto look for the intention of the testator as it is expressed and clear-ly implied in the general terms of the will. When the intention isfound on satisfactory evidence, to that must be sacrificed inconsis-tent clauses and words. As was also held in Seneviratne vKandappapullafi), “It is well settled that the general rules for theinterpretation for wills are unsafe guides and that the only true cri-terion is the intention of the testator to be gathered from the termsof the will and from surrounding circumstances”.
The Court of Appeal has erred in arriving at the finding thatthe document P1 is not a “testamentary document with a testa-mentary intention” without considering the last clause of the willwhich expressly states that the further disposition was to take effectafter the death of the testator. The intention of the testator has beenclearly expressed in the final clause of the will and it is clear to methat the instrument depends “for its vigour and effect” on the deathof the testator.
For these I hold that the document P1 is a valid will. The judg-ment of the Court of Appeal is therefore set aside.
The appeal is allowed with costs fixed at Rs.10,000/-.
SILVA, CJ.-I agree.
BANDARANAYAKE, J.-I agree.
Appeal allowed.