J. D. FRANCIS ASSISI et al , Appellant s, and A. R. TAMPO et al , Respondents

012-NLR-NLR-V-61-J.-D.-FRANCIS-ASSISI-et-al-Appellant-s-and-A.-R.-TAMPO-et-al-Respondents.pdf


SAXSONI, J.—Francis Assisi v. Tarnpoe
73
Present:Sansoni, J., and M. N. G. Fernando, J.
J.D. FRANCIS ASSISI et al., Appellants, and A. R. TAMPOE et cd.,
Respondents
S. G. 466—D. G. GTiilaw, 15.052
Fidsicommissum—Designation of fideicommissaries—Use of word “ or” in a substi-tutional sense—Fidsicommissum in favour of a class of persons after death offiduciary—Effect when a fideicommissary predeceases the fiduciary.
Sale of immovable property—Description of corpus—Variance between body of deedand Schedule—Interpretation.
Certain immovable property was gifted, to X subject to the condition thatX “ shall not sell, transfer, mortgage or in any otherwise alienate or en-cumber the said premises or any part or portion thereof but that she shall enjoyand possess the same during her lifetime and that after her death the same shalldevolve upon her children or lawful heirs
It was contended that the phrase “ children or lawful heirs ” pointed to twopossible sets of beneficiaries and that it was uncertain which of them was tosucceed.
Held, that the phrase “ children or lawful heirs ” meant that the lawful heirsshould inherit only in default of children. In such a context, the word “ or ”is used in a substitutional sense. Therefore, a valid fideicommissum in favourof X’s children was created.
When the fideicommissaries are a class (e.g., the children of the fiduciary),and there is one fideicommissum created in favour of that class, and the propertyis to pass on the death of the fiduciary, the fideicommissaries are to be ascer-tained only at the time of the death of the fiduciary. Accordingly, if one of thefideicommissaries transfers his interests to a stranger and subsequently prede-ceases the fiduciary, the transferee will get nothing on his purchase. Theprinciple which draws a distinction between fideioommissum created by a deedand one created by a last will does not apply in such a case.
Where, in a deed of sale of immovable property, the body of the deedconveyed no more than a £ share of the property but the Schedule mentionedthe generality of the interests of the vendor as the property conveyed—
Held, that the description in the body of the deed prevailed over the descrip-tion in the Schedule.
Appeal from a judgment of the District Court, Chilaw.
N.E. Weerasooria, Q.G., with J. M. Jayamanne and S. D. Jayasun-dere, for the Defendants*Appellants.
H. V. P&rera, Q.O., with G. T. Sameraunckreme, for the Plaintiffs-Respondents.
Our. adv. vult.
June 29, 1959. SAsrsosn:, J.—
Two lots of land were gifted to Charlotte Caroline Tampoe on a deed of1894 subject to the condition that she t( shall not sell, transfer, mortgageor in any otherwise alienate or encumber the said premises or any part or
j_ Tja. i
2J, ST. B 5017—1,995 (10/59).
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SANSONI, J.—Francis Assisi v. Tampoe
portion thereof but that she shall enjoy and possess the same during herlifetime and that after her death the same shall devolve upon her childrenor lawful heirs The two lots were sold with the sanction of Court andthe proceeds of that sale were applied to purchase the land in disputein this aotion in 1904. The conveyance executed in favour of CharlotteCaroline Tampoe contained the same condition as appeared in the deedof gift.
Charlotte Caroline Tampoe had four children : Albert (1st plaintiff),Agnes, Alfred and Hose (2nd plaintiff). The 1st plaintiff and Carolineexecuted a deed 1 D 1 of 1934 in favour of Weerappa Chetty, while the2nd plaintiff and Caroline, and Alfred and Caroline, executed two similardeeds 1 D 2 of 1934 and 1 D 3 of 1937 respectively, in favour of Wee-rappa Chetty. These three deeds are all in the same terms. Each childrenounces his right to his or her J share “ to the intent and purposes thatthe title of the grantee in respect of the J share should become absoluteand perfect ” and each child and Charlotte Caroline also sell, assign andconvey to the gTantee all the right title and interest that they may nowhave or may accrue to them hereafter in respect of the i share of thelands described in the schedule to the deed. In the schedule appears theland “ together with all the right title and interest which the grantorshave and hereafter may be possessed of and also all their right title andinterest claim and demand in and to it
Alfred died in 1940 and Charlotte Caroline died in 1955. The interestswhich passed to Weerappa Chetty on the deeds 1 3D 1, 1 E 2, and 1 E 3have now devolved on the defendants, as also have all Agnes’s interestsin the land.
■The 1st and 2nd plaintiffs brought this partition action claiming to bejointly entitled to an undivided £ share of the land and allotting to thedefendants the remaining ■§ share. The plaintiffs’ case is that becauseAlfred predeceased his mother, the land, upon Charlotte Caroline’s death,devolved on her three surviving children, Agnes, the 1st plaintiff, and the2nd plaintiff, each of whom then became entitled to an undivided £ share.The 1st and 2nd plaintiffs had each transferred £ share to WeerappaChetty so there was still left to each of them a 1 /12 share. The learnedDistrict Judge accepted this position and ordered a partition accordingto the shares set out in the plaint. The defendants have appealed againstthe judgment.
Three points were taken on behalf of the appellants. They were:
that there was no fidei commissum created by the clause containingthe condition in the deeds of 1894 and 1904 which I have already setout; (2) that when Charlotte Caroline died, Alfred’s transfer of J shareto Weerappa Chetty became effective ; and (3) that each of the deedsID1, ID 2 and 1 D 3 conveyed all the right title and interest which eachchild then had and subsequently acquired in the land in dispute, and notmerely J share.
On the first point, the question is whether the phrase “ children orlawful heirs ” is sufficient to designate the beneficiaries who were to takeon Charlotte- Caroline’s death. It was suggested for
SANS ONI, J,—Francis Assisi v. Tampos
7S
the phrase pointed to two possible sets of beneficiaries, and it was tin-certain which of them was to succeed. If one were to interpret thephrase “ children or lawful heirs ” as meaning {C either children or lawfulheirs ”, the argument would prevail. But there is strong authority forthe view that the word “ or ” is generally in such a contest; as this used ina substitutional sense. De Sampayo J. interpreted it in that way in thecase of The Government Agent, Central Province v. Silva 1. The phrasewould then mean that the lawful heirs should inherit only in default ofchildren. The matter has been considered recently by Pulle J. in Silva v.Silva a. As the learned Judge there pointed out the meaning of theword “ or ” is in each case a question of fact. In the present case Ihave no doubt that the word is equivalent to “ whom failing ”, and I wouldhold that a valid fidei commissnm in favour of Charlotte Caroline’schildren was created by the clause in question.
On the second point, reliance was placed on the principle that in thecase ot a fidei commissum created by a deed, if the fidei commissary diesbefore the fiduciary, the former transmits the expectation of the fideicommissum to his heirs or successors. Hence, it was argued, when Alfreddied his interests passed to his transferee Weerappa Chetty. The answerto this is that when the fidei commissaries are a class, and there is onefidei commissum created in favour of that class, and the property is topass on the death of the fiduciary, the fidei commissaries are to be ascer*tained only at the time of the death of the fiduciary. There is only onefidei commissum in the present case. The class consisted of CharlotteCaroline’s children. Since Alfred predeceased his mother and ceasedto be a member of the class, his transferee gob nothing on his purchase,because the members of the olass who were to take must be ascertainedonly when Charlotte Caroline died. The property accordingly passed tothe three surviving children only.
Dalton J. refers to this principle in Bakelman v. Goulding 3. In thatoase, which was one of a will, property was left by the testators to theirson Charles, subject to a fidei commissum in favour of the children ofCharles. The learned Judge pointed out that the question whether, onthe death of one of Charles’ children, the expectation of the fidei com-missum was transmitted to that child’s heirs or transferees cannot beanswered by merely ascertaining whether the fidei commissum was createdby deed or by will. The answer depends on the construction of theparticular instrument, and where the fidei commissaries are a class theycan only be ascertained at the time of the gift-over which in that casewas the death of Charles. The principle which draws a distinctionbetween fidei commissum created by a deed and one created by a lastwill does not apply in such a case.
On the third point it was argued that the schedule in each of the deeds1 D 1 and 1 D 2 was something more than a mere schedule; stress waslaid on the wording, and it was submitted that all interests, both presentand future, of the transferors passed to the transferee. But the body
1 (1922) 24 NJs.B. 62.
3 (1929) SO N. L. B. 490.
8 (1954) 57 N.L.B. 436.
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iSaranajothi Thera v. DharmafOma Thera
of the deed is quite unambiguous. Each child renounces «n<i conveysno more than a J share of all that right title and interest. It is impossibleto ignore the reference to £ share, and that reference controls the generalityof the interests described in the Schedule.
In the result, since the 1st and 2nd plaintiffs each became entitled toshare on the death of their mother, but had each conveyed only shareto Weerappa Chetty, they are now jointly entitled to £ share.
The appeal is dismissed with costs in both Courts.
H. N. G. ITEBJfAJsrDO, J.—I agree.
Appeal dismissed.