JAYATUNGE et al., Appellants, and RAMASAMY CHETTIAR et al., Respondents

032-NLR-NLR-V-52-JAYATUNGE-et-al.-Appellants-and-RAMASAMY-CHETTIAR-et-al.-Respondents.pdf

1950Present ; Nagalingam J. and Pulle j.
JATATUXGE et al., Appellants, and RAMASAMY CHETTIAR
et al., Respondents
S. C. 223—D. C. Kurunegala, 3,052
Fideicommissum—Effect of words “ <jnci their heirs, executors, administrators andassigns " in relation to the fideiconumissaries—Plena propriefcaa—Partition—Right of fideiaommissary to institute partition action during lifetime of fiduciary.
A dped of gift imposed on the donfce a prohibition against alienation and wenton to say that the donee “ shall only possess the said''properties … and on the
death of her the said donee the children from her and their heirs, executors,administrators and assigns shall have the right to possess the said propertiesor to do whatever they please with the same."
Held, that the persons who were to take the property on the death of thedonee wr re clearly and adequately designated aud, therefore, the propertywas burdened with a fideicommissum.
Held further, that a purchaser from one of the fideicommissaries was notentitled to maintain an action for partition during the lifetime of the fiduciary,although the fiduciary’s life interest had devolved on the existing fidfeicommis-saries.
PPEAIj from a judgment of the District Court, Kurunegala.
H. V. Perera, K.C.. with J. M. Jayam-anne, for the 3rd, 4th, 6th and10th defendants appellants.
37. P. TVeerasooria, If. C., with K. A. Kandiah. and V. Ar'ulambalam,for the plaintiff respondent.
B. TVikramanayake, K.C., with G. G. Rasaratn-am and M. A. M.Hussein, for the 11th defendant respondent.
Cur. adv. vult.
November 15, 1950- Aagalingam J.—
This is an appeal by the 3rd, 4th and 6th to 10th defendants from ajudgment of the learned District Judge of Kurunegala entering a decreefor partition of the land described in the schedule to the plaint.
The facts, so far as they are relevant and in regard to which there is nodispute, are that the land in question was by deed T? 3 of 1907 gifted byone Iseris Appuhamy and his wife Mangohamy to their daughter AlbinaHamy, wife of Don Jusey Jayatunga Appuhamy, subject to certainconditions which will be noticed presently. By deed P 5 of 1930, AlbinaHamy and her husband conveyed to three of their children, the 2nd,3rd and 4th defendants, their life interest. By deed P 6 of 1940, AlbinaHamy, her husband and the 2nd defendant conveyed a -J share of theland to the plaintiff. The plaintiff hy deed P* 9 of 1944 conveyed a halfshare of his interests, namely a 1/16 share to the 5th defendant. Thelife interest in the remaining 7/8 share of the land that remained vestedin the 2nd, 3rd and 4th defendants has devolved by virtue of certainmesne conveyances on all the children of Albina Hamy who are the2nd, 3rd and 4th and 6th to 10th defendants in certain proportionswhich it is unnecessary to ascertain for the purpose of the appeal. Onthe basis of this devolution of title the plaintiff instituted this action forpartition, making Albina Hamy the 1st defendant as the person onwhom the title was vested to the remaining 7/8 share and her children,the 2nd, 3rd, 4th and 6th to 10th defendants as persons entitled to alife-interest during Albina Hamy's term of life in the said 7/8 share.
The appellants contend that deed, P 3 creates a valid fideicommissumanl that no action for partition lies in the present state of the title.The relevant parts of the deed P 3 are as follows: —
The words of grant are:
We…, Iseris Appuhamy and wife…, Mangohamy.
.in consideration of the love and affection we have
and bear unto our daughterAlbina Hamy wife of
Don Jusey Jayatunga Appuhamy do herebygrant
by way of gift absolute and irrevocable unto the said
donee to possess only after the. death of both of us or the
survivor of usthelands described in theschedule
hereto, subject to the conditions hereinafter set forth.
The conditions are: —
(«)Albina Hamyshallonly possess but shallnot sell,
mortgage or exchange or alienate in any other manner theaforesaid properties hereby conveyed.
(b)Albina Hamyshallpossess only the saidproperties
and on the death of her the said donee the children
from her and their heirs, executors, administrators andassigns shall have the right to possess the said propertiesor to do whatever they please with the same.
In the condition (a), that there is a definite prohibition against alienationby the donee is undoubted and that the donee was only to possess theland is made equally clear by the use of the word “ possess ” not onlyin the words of grant but also in both the conditions (a) and (b). Thedonee is also clearly and precisely indicated by reference to the doneespecifically without the addition of any other words such as heirs,executors, administrators and assigns.
It has been contended on behalf of the plaintiff that the persons whoare to take the property on the death of the donee are, however, notclearly and adequately designated and therefore the property is notburdened with a fideicommissum. It is said that if the description hadbeen “ the children descending from her and the heirs, executois andadministrators ” no objection could be taken on the ground of in-sufficiency of description of fideiommissarii, but it is urged that asthe word ‘ ‘ assigns ’ ’ too ‘ has been used in the same collocation theclass of beneficiaries becomes vague and includes an -indeterpninate
class of persons whom it could never have been the intention of thedonors to benefit. This contention is sought to be supported on thestrength of certain cases which I shall proceed to consider seriatim.
The first case relied upon is that of Boteju v. Fernando x. The wordsused to designate fideicommissarii in this ease were, ” after his{donee's) death to be possessed by his heirs, executors, administratorsand assigns for ever.” Xt will be noticed that not only the heirs of thedonee but also the donee’s executors, administrators and assigns areindicated as the persons who are to take the property on the deathof the donee. Had the words, “ executors, administrators and assigns ”been omitted and the fideicommissarii referred to merely as the heirs•of the donee, there can be no question but -that the fideicommissariiare sufficiently designated. By introducing the words “ executors,administrators and assigns ” which refer to executors, administratorsand assigns of the donee the class to be benefited became an unwieldybody of persons inclusive of every person to whom the donee may leavethe property by last will or by sale, gift or transfer. If, for instance,instead of the words, ” his heirs, executors, administrators, and assigns ”the language had been, “ his heirs and their executors, administratorsand assigns,” the effect would not be the same as it would not be opento the donee the fiduciarius to bring into existence at his will any classof persons as beneficiaries and the beneficiaries will be limited to hisheirs ab intestato and the argument that an indeterminate class of personshas been designated as beneficiaries would fail. There was thereforeno difficulty in holding in this case that no fideieommissum was created.
The next case is that of Amaratunga v. Alvis 2 where there was a■conflict in the several parts of the deed in regard to the designation ofthe parties to be benefited- In one part of the deed which may beregarded as directory “ the children and heirs descending from her(the donee) and authorised persons sueh as executors, administratorsand assigns ” were set out as the beneficiaries, while in the words ofgrant the language used was “ and after the death of the donee to herheirs, and authorised persons such as executors, administrators andassigns. ” Mr. Weerasooria argued that the words “ authorised personssuch as executors, administrators and assigns ” referred to the executors,administrators and assigns of the heirs of the donee. The judgmentdoes not indicate that that is so and X have looked at the original deed■considered in the case and I find that ” the executors, administratorsand assigns ” refer to the executors, administrators and assigns of thedonee. Jt will thus be seen that although in the directory part thechildren of the donee were mentioned yet along with them were alsoincluded the executors, administrators and assigns of the donee, whilein the grant no reference to children was made. For the reasons I havealready set out in discussing the case of Boteju v. Fernando (supra)it would be apparent that it cannot be said that the deed creates a validfideieommissum…
The third case is that of Appuhamy v. Mathes 3 where also there wasa conflict between several parts of the deed hi that whereas in the directory
part the fideicommissarii were set out with preeision as the childrenof the donees, in the words of grant the phraseology adopted was “ aftertheir (donees’) deaths their heirs, executors, administrators and assignsas indicative of the class of persons to be benefited. Here, again, it willbe noticed that the heirs, executors, administrators and assignsreferred to are the heirs, executors, administrators and assigns of thedonees, so that though in the directory part only the children werereferred to, in the operative part a different and larger class consistingof heirs, executors, administrators and assigns of the donees werespecified, resulting again in the view that the deed did not create afideicommissum.
<
Fernando v. Rashid 1 was the last ease referred to. There thebeneficiaries were designated by the words, “ their (donees’) heirs,executors, administrators and assigns. ” It will be noticed that thiscase is very similar to the case of Botejn. v. Fernando (stepra).
The principle deducible from all these cases is that where the executors,administrators or assigns of the donee or donees are indicated as thefideicommissarii, an uncertain class of persons are referred to as bene-ficiaries, thereby rendering nugatory any attempt made to create afideicommissum, because the fideicommissarii are not clearly andadequately or sufficiently designated.
In the deed before me, no sueh difficulty arises. The fideicommissariiare referred to as the .children descending from her (the donee) and theirheirs, executors, administrators and assigns. The reference here to■the heirs, executors, administrators and assigns is not to those of thedonee but to those of the children of the donee. The persons to bebenefited are the children of the donee, and the addition of the words“ their heirs, executors, administrators and assigns ” is used for thepurpose of conferring on the children an absolute and unfettered rightin the property conveyed. That the use of the words “ heirs, executors,administrators and assigns ” in apposition to the fiduciarius is for thepurpose of vesting the plena proprietor in the property as a preliminaryto creating a fideicommissum and that their use does not "derogate fromthe creation of a valid fideicommissum has been held in several recentcases which it is unnecessary to recapitulate.
A similar reasoning would and should apply even in regard to thegrouping of these words in relation to the fideieommissarius. I do notthink, as was contended by Mr. Weerasooria, it is possible to say thatthe presence of the word “ assigns ” by itself creates a situation which'is in any way different' from the use of the words ‘ ‘ heirs, executors andadministrators.” If by referring to children and their heirs, executorsand administrators no ambiguity is caused, there can be equally littleambiguity caused by the use of the additional word “ assigns ” inthe same connection. The words, “ their heirs, executors and ad-ministrators ” clearly refer to an indeterminate class of persons whowould come into existence on the death of children, either by intestatesuccession to or under the *iast will of the children-. If the contention.
is allowable that this class does not affect the precise designation of theAdeicommissarii as the children, it is difficult to see how a no moreindeterminate class of persons such as the . assigns of the children couldtend to create ambiguity in regard to the fideicommissarii being thechildren.
There is another approach to this question and that is, construing-the words according to their plain meaning, the grant must first vest inthe children before it could vest either in their assigns oi" in their heirs,executors or administrators; sc^ that the immediate grant is to thechildren and thereafter it is left to them either to let the property passto their heirs by intestate succession or to any person or persons by lastwill, or convey it by sale, gift or transfer to any person they may choose.It cannot in these circumstances be said that 'the donors intended thatany person other than the children of the donee should be benefited.The most that can be said is that it was of no concern to the donorswhat the children of the donee did with the property. The result wouldhave been the same if the donors had omitted the words, “ their heirs,executors, administrators and assigns” from the deed and stated that■on the death of the donee her children should have the right to possessthe said properties, for under our law a grant to X is a grant to X, hisheirs, executors, administrators and assigns, unlike under the commonlaw of England where a grant to X in the ease of a heritable estate wouldnot tend to convey the land held in fee to the heirs of X in re Ford <&Fergusons Contract1; and in order to vest such an estate in heirs underthat system of law, it would have been essential to use the group ofwords “ heirs, executors, administrators and assigns.” The adoptionof these words in our conveyancing practice is due to our having followingEnglish precedents and cannot be regarded as having been used for anyother purpose than to vest an absolute title.
I am therefore of opinion that the fideicommissarii under this deed are"the children of the donee and are clearly and unambiguously designated.
I now pass on to a consideration of the second question. It is admittedthat the fiduciarius, Albina Hamy, and her husband, Don Jusey Jaya-"tunge Appuhamy are both alive. It is true that they have eight childrennow and apparently on the assumption that they would not have morethan eight children the 2nd defendant, who is one of the children, hasconveyed a 1/8 share. Don Jusey Jayatunge Appuhamy in givingevidence gave his age as 72. There is no evidence as to what the agpof the wife is. But be that as it may, Counsel for the plaintiff have notbeen able to show that there is any presumption in law that at or pastany particular age a man or woman is deemed incapable of procreatingehildi'en.
The property would pass to the children only on the death of AlbinaHamy and it is impossible to say at present that the share of -§ conveyedby the 2nd defendant would be operative to its full extent, for shouldAlbina Hamy have one or more other children the share would in such-an event become reduced. The plaintiff* therefore, cannot in these
(1906) 1 L. R. 607.
circumstances be said to be entitled to possess an undivided shareduring the lifetime of Albina Hamy. Besides, the entire dominium isyet vested in Albina Hamy. The present interest, therefore, of theplaintiff is not such as entitles him to maintain an action for partition.Authority for this proposition would be found in the case of Fernando, v.Fernando 1, and Kiri Etana■ v. Ran Etana 2.
The plaintiff’s action therefore fails and is dismissed with costs. Theappellants will also be entitled to the costs of appeal payable by theplaintiff.
Pulle J.—I agree.
Appeal allowed.