058-NLR-NLR-V-34-ISMAIL-v.-MARIKAR.pdf
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DALTON J.—Ismail v. Marikar.
1^32Present: Dalton J. and Jayewardene AJ.
ISMAIL v. MARIKAR.
D. C. Colombo, 23,831.
Fidei commissum—Devise to descendants—Meaning of word “ descendant ”—
Not restricted to children—Joint will.
Where a joint will contained the following clause:“ The testators
further declare that the house and gardens hereinbefore mentioned shallbe possessed by the aforesaid sons and daughters under the bond of fideicommissum, that is to say, that the said properties should not be sold,mortgaged, or alienated, but, if any of them should happen to depart thislife leaving no descendants, that the said bequest or bequests shalldevolve and revert to the testator’s aforesaid surviving sons and daughterssubject to the same restrictions aforesaid
Held, the will created a valid fidei commissum in favour of the descen-dants of the devisees up to the fourth generation.
The word “ descendants ” is not restricted to the children of the■ immediate devisees,
PPEAL from a judgment of the District Judge of Colombo.
H. V'. Perera (with him Peter de Silva), for 3rd defendant-appellant.
N. E. Weerasooria (with him N. Nadarajah and Kariapper), forrespondent.
May 10, 1932. Dalton J.—
The question to be decided on this appeal is whether the District Judgewas correct in holding that the joint will of the testator and his wife (P 3dated September 21, 1845) created a real fidei commissum, or whether, ifone was created at all, it was merely a single one, the prohibition beingpersonal to the devisees and not binding their children.
The will, which is a notarial one, leaves in its various clauses certainproperties each to individual children. We are concerned with the clausein which the property, the subject of this partition action, was devised totheir daughter Margaret, and with a general clause, after the variouslegacies as they are termed have been dealt with, in the following terms :
“ The testators further declare and desire that the house and gardenshereinbefore mentioned shall be possessed by the aforesaidsons and daughters and their descendants under the bond offidei commissum, that is to say, that the said properties should notbe sold, mortgaged, or alienated, but, if any of them shouldhappen to depart this life leaving no descendants, that the saidbequest or bequests shall devolve and revert to the testators’aforesaid surviving sons and daughters subject to the samerestrictions aforesaid ….”
For the appellant it has been urged that the word “ descendants ”refers to the children of the original devisees only and to no other class ofpersons. If it could be clearly inferred from the document that that was
JAYEWAEDENE A.J.—Ismail v. Marikar.
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the intention of the testator and testatrix, I presume this Court wouldgive effect to it, in spite of the fact that one would be interpreting theword in a way different from its usual meaning. The word “ descendants ”may in its narrowest sense be used to denote “ children ” and “ children ”only, but the usual sense in which it is used implies descent in its successivesteps, and I have not the least doubt that is the way in which the notaryused it in this will. The intention was to retain the respective propertiesin the family for so long as the law allowed.. If one examines an ordinaryEnglish dictionary, there is nothing to suggest that the word “ des-cendant ” is usually restricted to a class or person one step or degree froman ancestor. If one looks at the “ Canons of Inheritance ” in Englishlaw, the rules of descent of real property, one finds the term also used withthe meaning I would give it here. In a local decision also (Wijewardenav. Abdul Hamid'), where a matter similar to the one before us was underconsideration, the Court came to the same conclusion. In that caseproperty was left to a devisee, alienation being prohibited, with a furtherdirection that “ she and her descendants shall and possess the sameIt was held that the word “ descendants ” was equivalent to childrenand children’s children at least to the fourth generation.
The language of the clause before us is to my mind much more explicit.The phrase “ under the bond of fidei commissum ” has been used by anotary. The mere use of the word “ fidei commissum ” of course wouldnot be sufficient to carry out the intention of the maker of the will, ifother necessary requirements are absent, but taking the whole clause as itstands, there is no doubt in my mind as to the intention of the parties orthat they have effectively carried out that intention in their will. I amunable to give the clause the narrow construction for which appellantcontends.
The question whether there is one fidei commissum or several fideicommissa in respect of the several properties has, I think, under thecircumstances very little bearing on the question we have to decide. Theproperty, the subject of this action, is subject to a fidei commissum as thedefendants contend, and the judgment of the lower Court is correct. Theappeal must therefore be dismissed with costs.
Jayewakdene A.J.—
The will in question in this case provided that the property dealt with“ shall be possessed by the aforesaid sons and daughters and theirdescendants under the bond of fidei commissum, that is to say, that thesaid property should not be sold, mortgaged, or alienated ”, &c.
Vanaer Linden states the rule as to the creation of fidei commissathus : a mere prohibition of alienation without saying in whose behalf itis prohibited is of no effect ; but it is otherwise when the prohibition isto alienate out of the family Juta’s Trans, p. 61. The mere use of theword fidei commissum creates no burden on the inheritance, a person orclass must be sufficiently indicated by the will in whose favour the fideicommissum was created. Drew v. Drew A nude prohibition is void,there must be a gift over to a person or class (Voet 36.1. 27). Prohibitions* 12 N. L. R. 841.2 {1876) 6 Buck. 203.
200JAYEWARDENE A.J.—Ismail v. Marikar.
which are not nude fall under two general classes, (1) personal and (2)real prohibitions. When a prohibition is imposed upon a person it appliesonly to the person prohibited and does not go beyond him. A prohibitionis real when the testator has conceived the prohibition rather in rem thanin personam and when it can be gathered from the words of the will thatthis was his intention. Such prohibition is a real burden which passes toall persons whatsoever to whom the thing prohibited from alienationcomes. Sande. de Proh. rerum alien 3. 2. 1-10. There is a bequest to afamily when the testator forbids the alienation of a thing out of thefamily or directs that it should not go out of his line of descent or out ofhis blood. Under family was included genus, stirps, linea, parentela,domus and the like. Mcgrego-Fs Voet on Fidei commissa, p. 67.
In the present case the bequest is to the sons and daughters and theirdescendants under the bond of fidei commissum, and it was argued thatthe word “ descendants ” only applies to the children of the originaldevisee^ and no further. According to Van Leeuwen under the term“ descendants ” are included all descendants both male and female andtheir off-spring ad infinitum. “ Descendentium vocabulo in infinitumveniunt omnes tarn masculi, quam feminae, et qui ex his progeniti sunt. ”Censura Forensis 1. 3. 5. 7.
In Wijewarderie v. Abdul Hamid' the will provided that the propertygifted could not be sold or mortgaged even for any debt, but that the doneeand “ her descendants shall enjoy and possess the same ”, and it was heldthat the word “ descendants ” is equivalent to children and children’schildren afid that a fidei commissum was created binding up to the fourthgeneration.
The learned District Judge has arrived at a right conclusion and Iwould dismiss the appeal with costs.
Appeal dismissed.
' 12 N. L. R. 241.