KADER v. MARRIKAR et al

088-NLR-NLR-V-43-KADER-v.-MARRIKAR-et-al.pdf


Kader v. Marrikar.
387
1942Present: Keuneman and Cannon JJ.
KADER v. MARRIKAR et al.
266—-D. C. Matara, 5,304.
Jtes judicata—Action against fiduciary—Binding on fideicommissary—Roman-Dutch Law.
Under the Roman-Dutch Law a fideicommissary is treated as a privyof the fiduciary or a person claiming under him for the purpose of the lawof res judicata.
Usoof v. Rahimath (20 N.^L. -R^225) not followed.
T
HIS was an action for partition in which the dispute related to aone-fourth share of the land which originally belonged to Abdulla
Miskih. According to plaintiff Abdulla Miskin mortgaged this share to
388Rader v. Marrikar.
fiokuhamy by deed P 5 of 1886, and in execution of a mortgage decreeobtained by Lokuhamy it was purchased by the latter in 1890,. from whomthe land devolved on Habeebu Natchiya, who purchased the remainingthree-fourth share. From him the plaintiff claims the land. According tothe respondents, Abdulla had prior to the mortgage gifted the one-fourthshare to his son, Miskin Bawa, and his three children, Isuwa, Cassim, andRahiman, subject to a fidei commissum. When Lokuhamy put the bondin suit in Court of Requests, Matara, among the parties-defendants wereMiskin Bawa, Isuwa, and Cassim, who claimed the property, but judgmentwas entered for the plaintiff. After the sale of the mortgaged propertythe three defendants resisted the claim of Lokuhamy, who brought asecond action for declaration of title (District Court, Matara, 82). TheDistrict Judge held that the defendants were estopped by the decree iriCourt of Requests, Matara, No. 46,791. The main question argued inappeal was whether the decree obtained against the fiduciaries was bindingon the fideicommissaries.
N. E. Weerasooria, K. C. (with him Haniffa), for plaintiff, appellant.—This appeal should succeed on two grounds (a) res judicata,
(b) prescription.
The general principle is that the doctrine of res judicata bindsonly the parties and their privies.
In this case there are two decrees, C. R. Matara, 46,791, and D. C,Matara, 82 (P17), which bind the fiduciaries, Miskin Bawa, Isuwa Ummaand-Cassim. The fideicommissaries are privies of the fiduciaries and theyare bound by these decrees.
The Roman-Dutch Law is clear on the point—Voet 2.15.8 Pandects.Compromises made by fiduciary bind the fideicommissary unless theyare entered into mala fide.
This is more so when a .fidei commissum is left generally and not to acertain person.
Compromises of the fiduciary bind the fideicommissaries—VidePeregrinus de fidei commissis 53.49.„
In Usoof v. Rahimath Bertram C.J. held that the doctrine of resjudicata did not extend to the fideicommissaries. In this case Voet wasnot cited, and this decision is contrary to rulings in Privy Council cases.
Charles v. Nonahamy° is opposed to the ruling in Usoof v. Rahimath.
Voet’s opinion is in accord with the decision of the Privy Council in Indiancases, viz., Katama Natchair v. Rajah of ShivagungaPertabnarian Singh v.Trilokinath Singh *.
Rahiman died without issue, the fidei commissum never came intooperation', the respondents derived title as heirs of Rahiman and havebeen but of. possession for over 30 years.
N. Nadarajah, K.C. (with him Dodwell Gunawardana), for eleventh tosixteenth respondents.—The fideicommissary is not a privy of thefiduciary.
(a) The judgment in Usoof v. Rahimath (supra) is binding. Bertram C.J.,in a considered judgment, stated emphatically that the doctrine of res
1 20 N. L. S. 225. ,3 (1863) 9 Moore’s I.A. 563.
* 25 N. L. R. 233:4 (1884) 11 Cal. 186.
KEUNEMAN J.—Kader v. Marrikar.
389
judicata cannot be extended to the fideicommissaries. Charles v. Nona-hamy1 is not a decision contrary to Usoof v. Rahimath Garvin J. did notadopt the same line of reasoning as Jayawardene J.
The Roman-Dutch Daw is not free from doubt; note caution by Voetregarding compromises.
“ The fiduciary heir will mostly act more prudently in the meantimeand more safely if he abstains from all compromise and allow allcontroversies to be decided by judgment according to the rigors of law.”Voet. 2.15.8.
The Indian cases do not apply, as they deal with widows andreversionary heirs of the husband. Under the Hindu Daw the propertyvests in the widow and she has a right of alienation in certaincircumstances.,
{b) Prescription was a question of fact. The learned District Judge’sfinding on it is correct and should not be disturbed.
O.L. de Kretser (jnr.) for eighth defendant, respondent—Usoof v.Rahimath (supra) is binding on the question whether a fideicommissaryis the privy of the fiduciary.
Jayawardene J’s observations in Charles v. Nonahamy (supra) are obiter.It is fair to assume that the authorities given in Charles v. Nonahamy(supra) were before the Judges who decided Usoof v. Rahimath (supra).-for Justice Jayawardene who was then at the bar appeared for theappellants and claimed to fully present the authorities—vide Usoof v.Rahimath. The Indian cases decided in the Privy Council relate to therights of Hindu widows and have no application to the case of a fideicom-missary who derives title not from the fiduciary but from the deed.
Cur. adv” vult.
May 22, 1942. Keuneman J.—-
This action was brought by the plaintiff to partition the premisesdescribed in the plaint between the plaintiff and the first defendant.There is no dispute as regards a three-fourth share of the premises. Thebalance one-fourth originally belonged to Abdulla Miskin. According tothe plaintiff, Abdulla Miskin mortgaged this share to Dokuhamy by deedP 5 of 1886. The share was subsequently sold under mortgage decree andpurchased by Dokuhamy by Fiscal’s Transfer P 6 of 1890, and sold by. heron P 7 of 1893 to Habeebu Natchiya, who also acquired the balance three-fourth share. From Habeebu Natchiya the premises have devolved onthe plaintiff and the first defendant.
According to the respondents, Abdulla Miskin had, prior to the mortgageP 5, gifted this one-fourth share by deed 8D1 of 1876 to his son, MiskinBawa, and the latter’s children, Isuwa, Cassim, and Rahiman. MiskinBawa died, leaving as his descendants, the eighth defendant, the fifthdefendant and the sixth defendant. The last mentioned defendant died,and his representatives are the eleventh to the sixteenth defendants. -Isuwa and Rahiman died unmarried and without issue, and their sharesare said to have devolved on the eighth defendant. Cassim died, leavinghis son, the eighth defendant. The respondents, claim the one-fourth
share, originally the property of Abdulla Miskin.
1 23 >'. L. R. 233.
120 y.L. R. 223
390KEUNEMAN J.—Kader v. Marrikar
The respondents also asserted that the deed 8D1 created a fideicommissum in favour of the children and grandchildren of the four nameddonees. In the Court below, it was not denied that the effect of the deedwas to create such a fidei commissum, and I think it is clear from thedeed that such a fidiei commissum was in fact created. But the validityof the deed was assailed on the ground that no possession was given to thedonees, and that the deed was only to take effect after the demise of thedonor. In view of the decision in Weerasekera v. Peris', and the five-Judgedecision in Abuthahir v. Mohamed Sally' this objection cannot be sustained.This case has to be decided on the footing that the deed 8D1 is a validdeed creating a fidei commissum. It will be necessary later to considerthe nature of the fidei commissum created.
The principal points which were argued before us were—
whether the respondents were barred by two decrees, which will
be detailed in due course, and
whether prescription has run against the respondents.
As regards the plea of res judicata the facts are as follows. WhenLokuhamy put the mortgage bond P 5 in suit, the mortgagor, AbdullaMiskin, was dead. ■ The action was Court of Requests, Matara, No. 46,791(P 18), and among the parties-defendants in that case were Miskin Bawa,Isuwa and Cassim, three out of the four donees mentioned in the deed 8D1,who were joined as the representatives of Abdulla Miskin. These threedefendants claimed in their answer, that they were entitled to the propertymortgaged upon the deed 8D1 of 1876, but in spite of this defence, judg-ment and decree were entered for the plaintiff Lokuhamy. It is claimedby the plaintiff that not only the three fiduciaries, but also their fidei-commissaries are bound by this decree.
Matters did not remain there. After the sale under the mortgagedecree, the three defendants continued in possession and resisted theclaims of Lokuhamy, who brought a second action for declaration of title(District Court Matara, No. 82) (P 17) against them. In this case alsothese three persons filed answer, pleading title to the one-fourth share ofthe premises on the deed 8D1 of 1876, and denied that they were theheirs and representatives of Abdulla Miskin. After trial, the DistrictJudge held that these three persons weresestopped by the decree in Courtof Requests, Matara, No. 46,791 (P 18), and decree was entered for theplaintiff as prayed for. This decree is also pleaded as res judicata againstthe fideiccmmis'saries.
There can be no doubt that three of the named fiduciaries, viz. :—MiskinBawa, Isuwa Umma, and Cassim—are bound by the two decrees in question.But does the principle of res judicata extend to their fideicommissariesalso ? The question is not free from difficulty. It was raised in the caseof Usoof v. Rahimath (supra) and emphatically answered in the negativeby Bertram C.J. and Shaw J.—
“ These children are not claiming through Abdul Cader (the fiduciary),but on the deed. It is certainly singular that it should be opento successive generations of persons claiming under the samefidei commissum to litigate questions already the subject of a■' 34 A L. R. 281.- 43 N. L. R. 193.
KEUNEMAN J.—Kader v. Marrikar.
391
judicial decree. But it is clear that, just as no agreement ofAbdul Cader could affect the rights of his children, they are equallyunaffected by any judgment against him to which they were notparties ” (per Bertram C.J.).
Unfortunately, in this case, no authority was cited in support of thisexpression of opinion, except the general principle that a res judicata bindsonly parties and their privies. It has been pointed out by Jayawardene A.J.in Charles v. Nonahamy (supra) that this ruling is opposed to what islaid down in the Roman-Dutch Law and appears to be In conflict with theruling in certain Privy Council decisions. The case of Charles v. Nona-hamy (supra) cannot be regarded as a decision contrary to Usoof v. Rahi-math (supra), for the other Judge, Garvin J., has not adopted the particularline of reasoning, but the reasoning of Jayawardene A.J., though it maybe an obiter dictum, is worthy of consideration.
The whole matter has been fully argued by Voet in bk. 2.15.8 of thePandects. It has to he remembered that what Voet, was dealing with wasthe matter of compromises by the fiduciary, and whether such compromiseswill operate against the fideicommissaries. Voet says—
" It seems to accord with the reason of the law that it should be so:provided only that the (remitted) right was clearly doubtful, andprovided that no mala fides appears on the part of the fiduciary-heir, and no remission of a manifest right”.
To reinforce this opinion, Voet adds—
“ In the same way that a lawsuit begun (lis mota) by the fiduciary beforerestitution injures the fideicommissary, not that suit which isonly begun after restitution, …….. nor does this
the less appear from the argument taken from a compromissum(mutual promise), for since the fideicommissary heir is bound to
uphold this when made by the fiduciary,there is no
reason why he should not also make a valid compromise also ”.
Voet adds that while the condition of the fidei commissum is suspended, itis uncertain whether anything will come to the fideicommissary heir, whoin the meantime cherishes only “ a fleeting and uncertain hope of acquiring .the fidei commissumand adds “ and much more does this hold good whena fidei commissum is found left, not to a certain person, but generally ‘ tothose who will be nearest related on the arrival of the suspended day orcondition ’ ”. Finally, Voet sums up his opinion as follows :
“ Lastly, even a sentence passed against a fiduciary will injure the fidei-commissary, unless the condemnation has come by- the fault ofthe fiduciary:whether the lawsuit has been com-
menced, as to a particular thing, or as to the whole inheritance
before restitution; and for this reason, lest otherwise
the ownerships of things should be uncertain, and judicialdecisions should be uncertain, as in more fully shown in Peregrinusde fideicammissis art. 53. num. 49. et seq. If, therefore, afiduciary can injure a fideicommissary both by way of paymentby expenses bona fide incurred, and by a denunciation ” madeto himself, there is no reason why, by a bona fide compromise;
392KEUNEMAN J.—Kader v. Marrikar.
made without grace or disgrace, he cannot also prejudice him ;especially if we remember that a compromise is as much intendedfor settling a law suit as a’ judgment, and that its authority is notless than-that of a judgment
Voet adds later—
“ …. the right of the fideicommissary heirs is clearly the same as
the right of the fiduciary, arid all the advantages and disadvant-ages simply pass from the fiduciary to the fideicommissary,whatever they are ; hence it is commonly disputed whether yousucceed to the burdener or the burdened by fidei commissum :
He adds this caution—
“ The fiduciary heir will mostly act more prudently in the meanwhileand more safely, if he abstains from all compromise, ~and allowsall controversies to be decided by judgment, according to therigor of the law,
(The translations used are from Buchanan’s Voet on Transactions.)
This very high authority of Voet does not appear to have been cited inthe case of Usoof v. Rahimath (supra) and is opposed to the opinionexpressed by the Judges of that case. Voet accepts without question theproposition that a judicial sentence passed against a fiduciary will injurethe fideicommissary, unless the condemnation has come by the “ fault ” ofthe fiduciary, and on the proposition, he argues, that a compromise by thefiduciary will also be binding on the fideicommissary in a like case.Further, the l^ter argument of Voet throws considerable doubt on thefinding in Usoof v. Rahimath (supra) that the fideicommissaries do notclaim through the fiduciary. In fact, no reasons are given in that case, andno authorities are cited.
It has to be remembered that the matter.in controversy in the cases P 18and P 17 was the effect of the deed 8D1, and the question whether 8D1was superior to the mortgage P 5 in effect. The finding in the case wasthat the mortgage P 5 and the Fiscal’s Transfer P 6 was superior andprevailed over the claims of the donees under 8D1. The donees wereaccordingly litigating the very existence of their rights under 8D1, andthe decrees negatived their claim. This is certainly a case where it isundesirable that these judicial decisions should speak with an uncertainvoice, and where the ownership <of the thing which is the subject of liti-gation should remain in uncertainty. Further, the litigation was carriedon with vigour by the three fiduciaries and the decision of the Court wasgiven after full argument and trial. There is nothing to show that “ thecondemnation has come by the fault ” of the fiduciaries.
The opinion of Voet is in accord with certain decisions of the Privy'Council with regard to the position of a Hindu widow in relation to thereversionary heirs of her husband. The rule laid down in KatamaNatchair v. The Rajah of Shivagunga 1 has a significant application to ourlaw.
“The whole estate would for the time be vested in her absolutely forsome purposes, though in some respects for a qualified interest ; 1
1 (1863) 9 Moore's 1. A. 563.
393
KEUNEMAN J.—Kader v. Marrikar.
and till her death it would not be ascertained who would beentitled to succeed. The same principle, which has prevailed inthe Courts in this country as to tenants in tail representing theinheritance, would seem to apply to the case of the Hinduwidow ; and it is obvious that there would be the greatest pos-sible inconvenience in holding that the succeeding heirs werenot bound by a decree fairly and properly obtained against thewidow
This principle was held applicable where a Hindu widow was grantedthe estate under a will which gave her the power to nominate a successorvide Pertabnarain Singh v. Trilokinath Singh'. There are other decisionsin the same direction.
I think the language used by the Privy Council aptly fits the case of afiduciary in relation to fideicommissaries and that a fiduciary can beregarded as “representing the inheritance”. The argument of Voetdeals very fully with this aspect of the case. The words “ fairly andproperly” used in the rule laid down by the Privy Council is in accordwith Voetfs language, that the condemnation should not come by the“ fault ” of the fiduciary.
I think, on all" these authorities, It can be held that under the Roman-Dutch Daw a fideicommissary is treated as a privy of the fiduciary, or aperson claiming under him for the purpose of the law of res judicata, andthat we are not constrained to follow the decision in Usooj v. Rahimath,in view of the fact that no reasons were given for that decision, and thatthe authorities cited to us are in conflict with that decision.
This finding disposes of the'claims of the respondents in respect of theshares vested under the deed 8D1 in Miskin Bawa, Isuwa, and Cassim.There remains the share vested in Rahiman, who was not a party to theaction P 18 and P 17. If Rahiman w.as alive at the time of these actions,it is-strange that he was not made a party, but I do not think it is opento us to assume that Rahiman was dead at the time. In the absence of anyevidence to that effect, Counsel for the appellant argues that, in view of thefact that Rahiman died without issue, the fidei commissum imposed nevercame into operation, and that the respondents derived title not under thefidei commissum but as heirs of Rahiman. Now, it is in evidence, andthis has been accepted by the District Judge, that Habeebu Natchiya, thepredecessor in title of the plaintiffs, and the first defendant have been insole possession of the premises in question since 1893, i.e., for a periodin much excess of 30 years, and under section 13 of the PrescriptionOrdinance ’such a possession is conclusive proof of title,, notwithstandingsuch a disability as minority.
I think the argument of Counsel for the appellant is correct, and itdoes not matter whether the possession of Habeebu Natchiya started inthe lifetime of Rahiman or not. I do not think the respondents can beregarded as persons claiming estates in remainder or reversion, undersection 3, and hold that their rights, if any, have been extinguished byprescription. I may add that with regard to prescription the position ofIshuwa is the same as that of Rahiman, but it is unnecessary to deal withher case, in view of the earlier finding with regard to res judicata.
' 11884) 11 Cal. 186.
394
HOWARD C.J.—Kelaart v. Piyadasa.
The appeal succeeds and is allowed as prayed for with costs, and thejudgment of the District Judge is set aside. The appellant is also entitledto the costs of contest in the Court below.
Cannon J.—I agree.
Appeal allowed.