NEW LAW REPORTSOF CEYLONVOLUME LXXV
Present; H. N. G. Fernando, C.J., and Tennekoon, J.
K.M. A. MUDIYANSE, Appellant, and 1MIHAMILLAGE APPUHAMYand 9 others, Respondents
C. 83/68 (F)—D. C. Ralnapura. 6240
Fideicommissa—Donation—Creation of an outright gift in the operative clause—Provision for gift over in the habendum—-Effect of such inconsistency— Whetherflddeommissum can be inferred—-Effect of absence of prohibition againstalienation.
Tho operative clause of a deed of gift executed by the donor in favour ofhis wife effected an outright gift and did not contain any prohibition againstalienation by the donee. At the same time the habendum, although itcommenced with, the declaration that “ the donee or her heirs, administratorsor assigns shall and may quietly possess ” the gifted property, contained thewords that, on the donee’s death, the donor's “ Children then living shall becomeentitled to the aforesaid properties ”,
Held, that tho deed did not create a fideicommissum. The declaration in thehabeiulvm that the donee or her heirs, executors, administrators or assignsshall and may quietly possess ” was a confirmation of the apparent intentionef the operative clause that the heirs or assigns of the donGe could possoss thelands. Nor was there any restriction stated as to the duration of suchpossession, i.e., by any such language us “ during the life-time of the doneeThe provision for a gift over in the habendum was merely inconsistent with theearlier part of tho deed and did not negative with certainty the earlier conveyanceof the full dominium to the donee and the earlier reference to the rights of herheirs and assigns.
Appeal from a judgment of the District Court, Ratnapura.
W. Jayewardene, Q.C., with G. 8. Marapana and G. M. 8.Sameraweera, for the 1st defendant-appellant.
Rodrigo, with Asoka Abeyainghe, for the plaintiffs-respondents.
Cur. adv. wit.
May 10, 1970. H. N. G. Fernando, C.J.—
The plaintiffs’ claim against the 1st defendant-appellant in this casedepended solely on the question whether the deed PI of 1897 by oneMudalihamy, by which he donated a 2/12 share of a land to his wife
H. N. G. FERNANDO, C.J.—Mudiyarise v. Imihamillage A ppt thorny
Kirimenika, created a valid fidei com miss um in favour of the childrenof the donor to be operative upon the death of the original donee.
The operative clause in PI was the following :—
“ Know all Men by these presents that I, Kalu AratchillagcMudalihamy of Kandangoda in Uda Pattu of Kuruwita Korale forand in consideration of the love and affection, in order to get helpand favours in future and for other various good reasons do herebydonate as a gift unto ray beloved wife Eratne Paranagamage Kirimenikeof Kandangoda aforesaid so that she will become entitled to theproperties hereto, of the value of Rupees Five Hundred (Rs. 500)of lawful currency of Ceylon after my death. ”
This clause was followed by a description of the lands which were thesubject of the donation. Thereafter there was the habendum :—
“ Therefore, in respect of the aforesaid properties hereby donatedno person whoever can make any dispute whatsoever on my deathand thereafter on my death, Eratne Paranagamage Kirimenika, thedonee aforesaid or her heirs, executors, administrators or assignsshall and may hold and quietly possess same and on her death mychildren then living shall become entitled to the aforesaid properties. ”
The grounds on which the learned trial Judge decided that the deedcreated a fideiepmmissum are stated in his judgment thus :—
“ The|dfed PI clearly provides that after the death of the donee,the d^por’s children then living shall become entitled to the properties.It iePcfear that^the gift was not absolute to the donee. It is significantithat the deed provides that the donee shall and may hold and quietlypossess the properties. There is no power of disposal or alienationgiven to the donee indicating that the donor’s intention was that theproperties shall be possessed by the donee during her life-time andshall devolve on the surviving children of the donor after the donee’sdeath. ”
The judgment takes no account of two important matters : firstthat the operative clause effects an outright gift to Kirimenike andcontains no hint of any intention to impose a condition or restrictionfettering the donee who (it is declared) “ will become entitled to theproperties ” ; second that the habendum commences with the declarationthat “ the donee or her heirs, executors, administrators or assigns shalland may quietly possess ” the lands. There is here confirmation of theapparent intention of the operative clause that the heirs or assigns ofKirimenike can possess the lands. Nor is there any restriction statedas to the duration of such possession, i.e., by any such language as “duringthe life-time of the donee ”. Thus the deed prima facie conveys to thedonee the plena proprietor. No doubt the habendum continues tostate that on the donee’s death “ my children shall become entitledto the properties ”. But at best this provision is merely inconsistent
H. N. G. FERNANDO, C-T.—Mudiyanse v. Imihamillage Appuhamy
rith the earlier part of the deed ; it does not negative with eertainty thearlier conveyance of the full dominium to the donee, and the earliereference to the rights of her heirs and assigns. I cannot agree with theearned trial Judge that “ it is clear that the gift was not absolute
Counsel appearing for the plaintiffs in appeal referred to decisions ofhis Court holding that conveyances to a “donee, his heirs, executorsadministrators or assigns ’’ should not necessarily be construed as beingabsolute if other provisions make it clear that the property will pass toither designated persons on the death of the donee. In many of theselases *, however, the decisions depended on the existence of an express>rohibition against alienation by the donee. They are of no assistancen the construction of the deed PI which does not contain any such>rohibition.
Counsel relied also on Perera v. Perera8 (20 N.L.R. 463) which heldhat “ express words of restraint (against alienation) are not necessaryo create a ffdeicommissum ”. But in that case that Court was able tolecide without difficulty that the donor intended that his children shouldinly have a limited interest subject to a restraint against alienation,[his conclusion was reached for reasons thus stated in the judgment oflertram C.J.
“In the first place, he does not merely give directions for thedevolution of shares given to his children on their deaths. He indicatesspecifically in the operative words of the gift that he intends that theproperty shall descend to the direct descendants of these children.He does that by limiting the ordinary words of conveyancing, “ heirs,executors, administrators, and assigns ”, to a specific class, namely,children and grandchildren. In the second place, he recites the factthat he is taking the measures which he talks of in the deed, partly toprevent his erring daughter and her mother from doing away withhis property in an improper way, and partly also for preventing hisremaining three children from falling into vice in the future. Heappears to contemplate that he will preserve them in virtuous coursesby giving them only a limited interest in the property, and by providing' that it shall devolve on their deaths upon their lawful children. Hisdirections would be rendered , nugatory, if his children could dispose offor money the property so left to them.
Finally, the provision he makes with regard to the marriage of hisdaughter seems to me to be conclusive. He declares that unless shecontracts a marriage which is approved of by the authority he mentions,the donation to her shall be wholly void. This seems to me quiteinconsistent with the idea that his daughter should have a freepowerof disposing of the share given to her. ”
» (1924)26 N. L. R. 181 ; (1914) 17 N. L: R. 129 ; (1932) 34 N. L. R. 46 ;
(1914) 18 N. L. R. 174.
■ (1918) 20 N. L. R. 463.
H. N. O. FERNANDO, C-J.—Mudiyanae v. ImihamiUoga Appvhamy
Indeed it appears that the donor’s purpose in executing the deed ofgift was to avert the possibility that his children might otherwise be theheirs upon his death intestate.
I do not find in the deed PI which we have here to construe any of theindications of a restraint against alienation which were present in thedeed construed in Perera v. Perera. Moreover, in that case even thereference to “ heirs and assigns ” was immediately qualified by thelimitation “ as children and grandchildren ”, whereas in PI the donorhas in fact used what Bertram C. J. called “ the ordinary words ofconveyancing
The last of the cases to which I need refer is that of Udumalcwai v.Musta/pha1 (34 N. L. R. 46). The ground principally argued was thatconceptions of the Roman Dutch Law cannot be incorporated intoMuslim deeds, and this ground was rejected by the Court. On thequestion whether the deed created a fidei commissum, the Court followedPerera v. Perera in holding that an express prohibition against alienationis not necessary. In holding that " the clear intention was that eachson’s share if he died issueless was to vest in his brothers”, the Courtdid not consider it necessary to refer in detail to the relevant provisionsof the deed. The restraint against alienat ion was easily implied from theexpressed intention to benefit the issue of the donees, or failing issue thesurviving donees, which intention was stated in the operative clause ofthe deed. Akbar J. held that this clear intention was not affected bythe word “ assigns ” appearing at the end of the deed. In the instantcase, however, the reference to the passing of the property on the deathof the donee occurs only at the end of the deed PI, which has earlierconveyed title to “ the donee her heirs executors administrators andassigns *’ without limitation.
I hold for these reasons that the deed PI did not create afidei commissum.. The judgment and decree under appeal are set aside.Decree will be entered in the terms set out in paragraphs (1) and (2) ofthe judgment of the District Judge (at p. 39), and in addition for thepayment by the plaintiffs to the 1st defendant of the oosts of thisappeal.
Tknjtekoon, J.—I agree.
Judgment and decree eel aside,
1 (1932) 3* N. L. R. Id.
K. M. A. MUDYANSE, Appellant, and IMIHAMILAGE APPUHAMY and 9 others, Respondents