JOHN SINNO v. LUVIS APPU

030-NLR-NLR-V-27-JOHN-SINNO-v.-LUVIS-APPU.pdf


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1925.
Present: Branch C.J. and Schneider J.JOHN SINNO v. LUVIS APPU.
96—D. C, Negombo, 16,770.
Fidei commissum—Grant to a person, his Heirs, assigns, and attorneys—Prohibition against alienation—Designation of persons to bebenefited.
Where by a deed of gift executed in 1884 a property was left toM and his heirs, assigns, and attorneys, and it was directed that“ he should enjoy it until the succession of his descendants, withoutselling, mortgaging, or alienating the same.’*
Held, that the prohibition against alienation did not bind thechildren of M and that they took the property free from anyfidei commissum.
'T'HE property in dispute was gifted by deed to one Martbino andthe plaintiff claimed a share through his mother Ambrosia,a daughter of Marthino. The claim was based on a fidei commissumcreated by the said deed. It was contended that Ambrosia wasnot alive at the date of execution of the said deed and that theprohibition was bad under the Entail and Settlement Ordinanceof 1876. The learned District Judge held that it was not provedthat Ambrosia was alive at the time of the execution of the deedand dismissed plaintiffs action. The defendant claimed througha transferee from Ambrosia.
H. V. Per era, for plaintiff, appellant.—The birth and marriagecertificates of Ambrosia show that she was alive at the time ofexecution of the deed. Her sister’s evidence also proves the samefact. The slight difference in name does not matter. The names- of the parents are given and this leaves no room to doubt thatAmbrosia was a child of Marthino.
Croos Da Brera, for defendant, respondent.—On the evidence thefinding of the Judge is correct. There is no evidence to show thatthe person described in the certificates is identical with Ambrosia.The plaintiff has failed to prove her age. Even if Ambrosia wasalive at date of execution of deed it is submitted that the fideicommissum is bad. The deed is contradictory inasmuch as there isan absolute gift to Marthino and a subsequent imposition of acondition. Hormusfee v. Cassim,1 Aysa Umma v. Noordeen,2
J (1896) 2 N. L. R. 190.
1 (1902) 6N. L. R. 173.
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Dassanaike v. Dassanaike.1 There is no designation of persons tobenefit. Even if there is, it is not sufficient to satisfy the require-ments of the Entail Ordinance. The prohibition is therefore nulland void. Certainly the prohibition does not extend to thedecendants of Marthino.
Counsel also cited Boteju v. Fernando2 regarding the constructionto be placed on the deed.
H. V. Perera, in reply.—The word “ descendants ” is a clear indica-tion of the persons to benefit. The intention to create a fideicommissum is clear. The Courts should construe a documentliberally so as to carry out the intention of the donor. Therehave been several cases where words such as those underconsideration were held sufficient to create a fidei commissum.Counsel cited Coudert v. Don Elias,2 Mirando v. Coudert,4Weerasekera v. Carlina,5 Sdembram v. Perumal,6 and Ouyaratne v.Perera.7
September 22, 1925. Branch C.J.—
I have had the advantage of reading the judgment of my brotherSchneider in this case and I agree that the appeal should bedismissed, and with costs. In my view no such prohibition, restric-tion, or condition against alienation is to be found in the deed P 1 aswould prevent Ambrosia, the mother of the plaintiff-appellant,from alienating her interest in the land. It would be possible nodoubt to rewrite the direction in P 1 in accordance with a supposedintention of the donor Don Augustino and create a prohibitionagainst alienation by Ambrosia, but that is not within our provincein this matter.
t
During the course of the argument I understood Mr. H. V. Perera,who appeared for the plaintiff-appellant, and Mr. Croos Da Brera,who appeared for the defendant-respondent, to say that they raisedno objection to a fresh translation of the material portion of P 1being made by Mr. D. B. Jayatilleke. That translation is asfollows:—
“ Further it is directed that the said Marthino Perera, though hebecame entitled to this land, shall enjoy it until thesuccession of his descendants, without selling, mortgaging,(or) alienating the same.”
(1906) 8 A L. R. 361.* (1916) 19 N. L. R. 90.
(1923) 24 N. L. R. 293.5 (1912) 16 N. L. R. 1.
2 (1914) 17 N. L. R. 129.• (1912) 16 N. h. R. 6.
7 (1916) 1 C. W. R. 24.
1925.
John Sinno* v. LtwioAppu
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1925.
Bbanch C.J.
. John Sinnov. LuvisAppu
Subsequently Mr. Perera suggested that another translation mightbe obtained. I have obtained one from the Chief SinhaleseInterpreter of this Court, Mr. C. W. d’Alwis, and his translation isas follows:—
“ It is hereby directed that although the. said land is takenpossession of by the said Marthino Perera (the same)without selling, without mortgaging, without alienatingby him, shall possess until the succession of his owndescendants.”
Mr. d’Alwis describes this as “ the literal translation of the passage.”This translation does not aid the appellant’s case, and it is, in myview, impossible to import into the language used the restriction
contended for by the appellant.
/
Schneider J.—
The decision of this appeal turns solely upon the construction ofa deed of gift in Sinhalese bearing No. 9,851 and executed in 1884.The English translation of it has b6en admitted in evidence withoutobjection and is the document marked P 1. The plaintiff claimedan undivided half share of a divided portion of the land Ambagaha-watta, the whole of which was conveyed by the deed, alleging thathis mother Ambrosia was a daughter of the donee Marthino Pereraand upon his death succeeded to a share of the land donated, subjectto a prohibition against alienation in favour of her children, andthat she being dead, plaintiff as her only child succeeded to thatportion. It would appear, therefore, that his claim depends entirelyupon his mother having succeeded to an interest in the land byvirtue of the deed and upon her being restrained or prohibited fromalienating that interest. It is admitted that if she were not soprohibited or restrained her interest has rightly passed on to thedefendant whose claim cannot legally be resisted by the plaintiff.
The deed having been executed after the proclamation of “ TheEntail and Settlement Ordinance, 1876,” 1 it is governed by theprovisions of the Ordinance. The main issue tried in the DistrictCourt was, “ Does deed No. 9,851 create a fidei commissum in favourof the descendants of the donee.” It is not appropriately worded.But from the arguments and from the decision of the District Judgeit would appear that the issue was rightly regarded as raising thequestion whether the deed contained any valid prohibition orrestriction, or condition against the alienation of the land dealt withby it binding upon Ambrosia, the mother of the plaintiff. Thelearned District Judge held against the plaintiff upon that issue onthe ground that ther£ was no proof'that Ambrosia, the mother of theplaintiff, was a person who was in existence or en ventre sa mere at
1 (Prod-aimed June, 1877—No. 11 of 1876.)
1925.
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the time when the deed in question was executed. It might bethat the proof offered by the plaintiff was insufficient to establishhis case. That is a question of fact which is not free from doubt.But it seems to me that the judgment of the learned District Judgeshould be upheld, for a different reason. His judgment proceededupon the assumption that the deed contained a valid prohibitionagainst alienation whieh was effectual to bind Ambrosia throughwhom the plaintiff claimed, provided she was “ in existence or enventre sa mere at the time ” the deed was exeouted. In my opinionhe was wrong in so assuming as the deed in question does not containa prohibition, restriction, or condition against the alienation of theland by Ambrosia. It becomes necessary therefore to consider thedeed. The relevant portions of it as they appear in P I are thefollowing:—
{a) “ That I have hereby granted and set over as a gift whichcannot be revoked or altered hereafter in any mannerwhatsoever unto Kuranage Marthino Perera of KuranaKatunayaka and his heirs, assigns, and attorneys.”
(6) “ And it is hereby directed that the said Marthino Perera shallpossess the said land from generation to generation withoutselling, mortgaging, or alienating the same.”
(c) “ Therefore the said Marthino Perera and his heirs, assigns,and attorneys have become owners of all the right, title,claim, and interest of me the said Don Augustino in and tothe said land and all deeds, documents, and other writingsrelating thereto.”
The portion (6) is nonsensical, as it is an impossibility for MarthinoPerera to “ possess from generation to generation.” The wordscannot be accepted as meaning that Marthino Perera and hisgeneration shall possess. Mr. Advocate D. B. Jayatilleke verykindly acted as Amicus Curios and translated this portion intoEnglish for the assistance of our Court. His translation was :
“ It is hereby directed that the said Marthino Perera though hebecame entitled to this land shall enjoy it until thesuccession of his descendants without selling, mortgaging,(or) alienating the same.”
Apart from the fact that Mr. Jayatilleke has a reputation as ascholar of the Sinhalese language, I prefer his translation to that inP 1, because his translation gives a sensible meaning to all the wordswhich the other translation does not. I would accept his renderingof this passage of the deed under consideration, and I will decide thequestion arising on this appeal accepting his as the correct rendering.The only question which arises for decision is whether the deedcontains a “ prohibition, restriction, or condition against alienation ”(to use the language of the Ordinance) effectual to prevent Ambrosia
Schneider
J.
John Sinnov. LuvisAppu
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1925,
Schneider
J.
John Sinnot>. LuviaAppu
from alienating. The passages marked (a) and (6) cannot beregarded as operating to convey directly any interest to the heirsof Marthino Perera. There is nothing in either Of those passagesbeyond the words ordinarily used to convey an absolute title to aperson. The only strange word used is “ attorneys/’ which makesno difference to the effect of the grant. The grant is to MarthinoPerera and his heirs and assigns in the passage (6). The passage(c) simply repeats that as a result of that grant Marthino Perera andhis heirs and assigns are “ become owners.” The effect of thosetwo passages of the deed was to vest the title in Marthino Pereraabsolutely. As Lawrie J. said in his judgment in Tina v. Sadris1“ A grant to a man and his heirs has the same legal effect as a grantto a man without mention of heirs.”
What is there in the deed to derogate from the absolute titleconveyed to Marthino Perera ? The only passage which can bepointed to is (6). Mr. Jayatilleke’s translation makes it quite clearthat the prohibition against alienation refers only to MarthinoPerera, and that his “ descendants ” are not included in thatprohibition. The passage says that Marthino Perera shall enjoy,not that he and his descendants shall enjoy. It says that MarthinoPerera shall enjoy without selling, &c., not that he and his descend-ants shall enjoy without selling, &c. If, therefore, the prohibitionis effectual it binds Marthino Perera alone. It is personal to him.It does not extend to his successors in title. There is therefore noprohibition or restriction or even a condition fettering the title ofAmbrosia, either expressly or by implication. She took an absolutetitle by right of intestate succession to Marthino Perera. Thewords “ until the succession of his descendants ” only express thepoint of time when the enjoyment of the land by Marthino Perera isto terminate. He is directed to enjoy the land without selling, &c.,until his descendants succeed him. In the absence in the deed of anyprovision that his descendants are to succeed him upon the happeningof any particular event they can succeed him only upon his death.That they would do, whether those words existed, or not. The wordsare therefore redundant. But take the words as not being entirelyredundant. The utmost extent to which they might be utilizedwould be as a peg to hang the argument that they show by implica-tion that the prohibition against alienation was intended for thebenefit of the “ descendants ” of Marthino Perera, and thereforesave that prohibition from being void, which it would otherwisehave been under section 3 of the Ordinance on the ground that thedeed did not name, describe, or designate the person or persons inwhose favour or for whose benefit the prohibition was provided.
Mr. Perera who appeared for the plaintiff-appellant argued thatwe should read the particular passage as if it ran so that thedirection was that Marthino Perera and his descendants in their1 (1885) 7 S. C. C. 136,
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succession shall enjoy the land without selling, mortgaging, oralienating the same. To do so would not be to construe the deedas it stands worded but to transpose words from the places theyactually occupy in order that it might be said that the deed createsnot only a valid prohibition but a prohibition extending fromgeneration to generation. That is not permissible. A meaning isfound for all the words in the passage under consideration byMr. Jayetilleke’s translation, and there is no good reason for notconstruing the deed giving to the words the plain sense conveyedby them.
Mr. Perera cited several cases decided by this Court; I might say,* all the more important cases. It is needless to mention all of them.I will refer only to two of them, Weerasekera v. Carlina {supra)and Sdembram v. Perumal [supra). I say, I will refer only to thesetwo cases because the language of the instruments construed inthem bear, of all the cases cited, the nearest similarity, if anyat all, to the language used in the deed under consideration, Inboth those cases Lascelles C.J. delivered the principal judgment..In those cases and in another Ibanu Agen v. Abeyesekere1 which iscited and followed by Lascelles C.J., in the former of those cases theinstruments construed were last wills and a codicil. In all threocases the same principle was followed. It was formulated byWendt J. in Ibanu Agen v. Abeyesekere {supra) and was cited withapproval by Lascelles C.J. in Weerasekera v. Carlina {supra). It isthis:
1926*
Schneider
J.
John Sitingv. LuvisAppu
“ In construing a will the paramount question is, what was theintention of the testator ? And if it be clear that theperson to whom the property is in the first place given isnot to have it absolutely, if it is also clear who is to takeafter him, and upon what event, then the Court will giveeffect to the testator’s intention.”
In Ibanu Agen v. Abeyesekere (supra) the words were :
“ It is hereby directed that the said O . . . . down to hisdescendants or posterity shall possess the said property.Except such possession, these lands or any part shall notbe sold, mortgaged, made over in any other manner, norseized for his debts.”
In Weerasekera v. Carlina (supra) the words were :
“ I do hereby direct that the legatees shall for ever possess theimmovable property of my said estate throughout, theirdescending generations without selling or mortgaging.”
In Sdembram v. Perumal (supra) the words were :
The devisees “ shall not sell, mortgage, or alienate* but the sameshall be always held and possessed by them and their heirsin perpetuity under the bond of fidei commissum.”
1 (1903) 6 N. L.R. 344.
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1925,
SCHNBIDBR
J.
-John Sinnot>. LuviaAppu
In all these eases it was held that a fidei commissum was createdby the words used because the intention was clear that the personto whom the property was given in the first place was not to haveit absolutely, and that his descendants were to take after him. Inall three cases the instrument directed in express terms that thedescendants were to possess. It is in that respect the deed beforeus differs from the instruments construed in those cases. In thisdeed there is no direction that Marthino Perera and his descendantsare to possess, but only that Marthino Perera is to possess, and byimplication after his death his descendants are to succeed to theproperty. Unless words are lifted from the place they occupy andput elsewhere in the manner suggested by Mr. Perera, those cases %will not help bis argument that Ambrosia did not take an absolutetitle. They might help his argument that the deed does containwords sufficient to create a valid prohibition against alienation byMarthino Perera. But they will not carry him any further.
The appeal should therefore be dismissed with costs.
Appeal dismissed.