010-NLR-NLR-V-07-KADIJA-UMMA-v.-MEERA-LEBBE.pdf
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KADIJA UMMA v. MEEEA LEBBE.1903.
May S and
C., Colombo, 14,396.June 5.
Deed inter vivos—Grant of property subject to fidei commission—Power tofiduciary totransfer his interest by way ofgift ordowryto his-heiror
heirs undercertain restrictions—Transfer byfiduciary by last will tohis
sons, excluding his daughter—Bequest todaughterof ashareinthe
residuary estate—Her right to approbate or reprobate the will—Conse-quences of her acceptance cf the share—Loss of her claim to the fideicom&issum land.
A L by deed inter vivos in 1872 gifted to I L certain lands subject to afidei commissum, viz,, that I L should 'possess it during his lifetime, andthat after his death the same shall devolve on his ‘children in equalshares, 'with liberty however to I L to transfen his right by way of giftor dowry to his heirs or heirs, “but-under the' sjme conditions as afore-said.”.»
1 L possessed the lands, and by his last will dated 29th July, 1893,bequeathed one of them* to three of his sons, and the residue of themovable andimmovable property to hiswidow,threesonsand»
daughter.’
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1003.
May S andJune 6 .
Ret vindicatio in respect of an undivided one-fourth share ofcertain lands and for rents and profits.
The first plaintiff Kadija Umma and the three defendants werethe children of one Ibrahim Lebbe, who died in January, 1893,leaving a last will. After his death the three defendants enteredinto possession of the lands and buildings mentioned in the plaintto the exclusion of the first plaintiff, who now came, into Courtpraying for a declaration of title as to her one-fourth share. Herclaim to that share was founded on one of the provisions of adeed dated 17th July, 1872, by which Ibrahim Lebbe held theproperty from his father, Ahamado Lebbe.
The words of that provision were that Ibrahim Lebbe “ shall notsell, alienate, mortgage, or encumber the same or any part thereof,or the issues, rents, and profits thereof, but shall possess and enjoythe same during his natural life, and after his death the same shalldevolve on his children share and share alike, or if there be butone child on such child, and thereafter on the lawful issues ofsuch children or child, and so from generation to generation
under the fidei commisaum law of inheritanceprovided,
however, that the said Ibrahim Lebbe, his child or children, or theperson or persons so lawfully claiming as aforesaid, may, transferhis or their interest in the said premises by way of gift or dowry tohis or, their lawful heir or he?rs, but under the same conditions asaforesaid.” ,
C*
* It was contended oh behalf of the defendants that this provisogave Ibrahim Lebbk the (power by last will to divert the devolu-tion of the fidei commissum property in< the direction of some ofhis children to the exclusion of the others; and that as IbrahimLebbe declared in his«last will that his shop No. 90 should “ go ”
After IL’sdeath the legatees, by deedofpartition dated 17th
November, 1893, dividedamong themselves theresiduary estate.
8everal years afterwards the daughter, jointly with her husband, sued,her threebrothers for an undivided one-fourthoftheland whichshe
alleged was bequeathed to them by the last will of I L in violation ofthe powers given him by A L’s deed of 187is.
Held, that asthe plaintiff had recognized inthedeedof partitionthe
provisionsof 1L’s last will, and acknowledgedtohave received infull
satisfaction of – her claim under the will, and as she had acquiesced forseveral years in the exclusive possession and enjoyment of the defendantsof the land she now claimed, she could not now reprobate what shehad approbated, even if I L’s last will contravened the limitationscontained in A L’s deed of gift to him.
Her duty is to elect whether she will approbate I L's will as a whole,taking the residue and relinquishing her interest in the fidei eommissumland, or will approbate it as a whole, retaining this land and toregoingthe benefit of the devise to her.
to' his sons,. the three defendants, they hod the right to exclude 11their sister, the first plaintiff, from the benefits of her grand-father’s original deed of 1872.—
The Additional District Judge, Mr. Felix Dias, gave judgmentfor plaintiff as prayed.
The defendants appealed. The case was argued on 5th May,
1903.
Domhorst, K.C., Sampayo, K.C., and W. Pereira, for defend-ants, appellants.
Bawa, for plaintiffs, respondents.
Cur. adv. vult.
5th June, 1903. Layabd, C.J.—
In this case it appears to me the District Judge was right inhis construction of the will of Ibrahim Lebbe.
I agree with him that where the will speaks of “ his interest ”in conferring on Ibrahim Lebbe a power to transfer it by way ofgift or dowry, it means his life interest, because that is expresslyall that the will gives him—a right to possess and enjoy the sameduring his natural life, and after his. death to devolve on hischildren " share and share alike.”
Accordingly, he could not dispose of any interest of any childof his which would vest upon his (Ibrahim’s) death. Theconstruction contended for by the appellants takes no notice ofthe important words, “ but under the same conditions and restric-tions as aforesaid.” This must mean, if anything, that neitherIbrahim nor his heirs can alter the disposition of the property toIbrahim for life, and on his death to his “ children share andshare alike. ’ ’
If Ibrahim could by gift or dowry give an absolute interest toany one child, it would be a contravention of the provision ofthose clauses prescribing that such .gift or dowry must conformto the ” conditions and restrictions as aforesaid.”
Even if this construction »makes this clause mere surplusage, asthe District Judge appears to think, that is no reason for rejectingit, as surplusage is not uncommon in ill-drawn documents.
But even if such- a disposition could be made1 ^y gift or dowryso as to,defeat a child’s claim to his dr her equal share, there jsnothing to authorize the exercise by will of ta similar power; anexpress power of appointment by deed is not either by English orKoman-Dutch Law exercisable by will.
With regard to the Question of eldbtion, the Civil Law, whichthe Boman-Dutch Law follow^, differs i*n principle from the-
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1903. English Law in not recognizing the principle of compensation
May 5 and which is the fundamental part of the English doctrine.
«/un6 o.
LayZbd" J.rU*e *s exPresse^ *n 4 Burge’s Colonial Laws, pp. 712
’ ' " to 716, and it only admits of approbation and reprobation; and,following the maxim quod approbo non reprobo, it appears to methat Kadija in this case, by her joining in the partition deedNo. 2,067 approved the dispositions made by Ibrahim’s will,though they contravened the limitations contained in Ahammado’sdonation, and she cannot now reprobate them.
It is clear that the question of the relative value does not affect.election under the Roman-Dutch Law.
Even if the benefit taken under the instrument be less thanthat to which the party put to his election is entitled outside theterms of the instrument, it appears that he will be bound by hiselection once made to take the benefits the instrument gives him.(Dig. lib. 30 to 32, No. 26.)
Accordingly here, Kadija having with her husband’s advice.elected to “ approbate ” Ibrahim’s will, and by deed No. 2,067 totake certain property as her share thereunder, cannot go back.upon that decision, and I would accordingly allow the appeal onthe ground that Kadija is bound by the election contained in deedNo. 2,067 to approbate Ibrahim’s will.
As pointed out by – my brother in his judgment, the parties donot appear to be agreed as to whether the whole of the fideicommissum land was devised to the defendants. I agree, there-fore, to the order proposed by him. I concur in the opinion he.expresses, that the election of Kadija cannot prejudice thesuccession of the persons entitled to take after her death underthe fidei commissum.
Wendt, J.—
This is an action to ' vindicate an undivided one-fourth shareof certain land and the buildings standing thereon, situated inthe Pettah, Colombo, and bearing the assessment Nos. 88, 89, 90,91, and 92, Main street. This property was admittedly- subjectto a fidei commissum, and the first plaintiff, who is the wife of thesecond plaintiff, claims in the'character of a fidei commissary heir.The fidei commissum is created by a notarial deed inter vivos,ITo. 263, dated 17th July, 1872, whereby the then owner of theproperty, Ibrahim Lebbe Ahamadu Lebbe Marikar, in considera-tion of his love and affection for his son, Ahamadu Lebbe MarikarIbrahim Lebbe (hereinafter referred tos as Ibrahim Lebbe),conveyed the property0to him, his heirs, executors, administrators,and assigns by way of gift absolute and irrevocable, “ subject,
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however, to the following conditions and restrictions, to wit,1908.
that the said IbrahimLebbe shall not sell,alienate, mortgage, or May 5 and
incumber the same orany part thereof,orthe issues, rents, and '
profits thereof or of any part thereof, but shall possess and enjoy Wkubt, J.the same' during his natural life, and after his death the sameshall devolve on his children, share and share alike, or if therebe but one child on such child, and thereafter on the lawfulissues of such children or child and so from generation togeneration under the fidei commissum law of inheritance; andfurther, that the saidpremises or theissues, rents, and profits
thereof or of any partthereof shall notbeliable for any debt or
default of the said Ahamadu Lebbe Marikar Ibrahim Lebbe, orof any person or persons lawfully claiming by, from, or underhim, and that in the event of his dying without leaving anychildren or their lawful issues surviving him, the same shalldevolve on his heirs under the same conditions and restrictionsaccording to the Mohammedan Law of Inheritance.
“ Provided, however, that the said Ibrahim Lebbe, his child orchildren, or the person or persons so lawfully claiming as afore-said, may transfer his or their interest in the said premises byway of gift or dowry to his or their lawful heir or heirs, butunder the same conditions and restrictions as aforesaid.”
Ibrahim Lebbe duly accepted the gift and possessed the pro-perty thereunder until his death, which occurred on 31st July, 1893.
Two days before his death he executed a last will, the materialparts of which were as follows: —
“ (2) The whole of the shop No. 90, situate at Main street, inwhich I am now carrying on business, with the goods therein, togo to my cons, Ibrahim Lebbe Marikar Mohamadu Meera LebbeMarikar, Ibrahim Lebbe Marikar Meera Lebbe Marikar, andIbrahim Lebbe Marikar Avoe Lebbe Marikar, to these three-persons thus declared.
" (3) Also declared to give over the house No. 47, situate inNew Moor street, to Agammadu Lebbe Marikar Sesma LebbeHadjiar.'
“ (4) This testator statesthe residue of the movable' and
immovable properties and cash and all to be received by my wifePattu Muttu, sons Mohamadu Meera* Lebbe Marikar, Meera LebbeMarikar, Avoe Lebbe Marikar, and ^daughter ,Kadija Lfnmaaccording to our religion.”,,
.»
The testator was survived by his widow Pattu- Muttu and fourchildren, viz, three sons, Mohammado Meera Lebbe Marikar, MeeraLebbe Marikar, Avoe L'ebbe Marikar, »and one daughter, the first-plaintiff, Kadija TJmma.
6-
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1903. The first plaintiff, as one of four children of the fiduciary IbrahimMay 6 and Lebbe, would, in the ordinary course, have taken on his death one-
fourth of the' pjoperty, but it is contended by her brothers, the
RVbndt, J. defendants, that the devise to them contained in the last will ofIbrahim was an exercise by him of the power to transfer by giftor dowry, and that this power included the right to select some ofhis children to receive the property to the exclusion of others.The plaintiffs reply that the power could only have been exercisedby act inter vivos, and if exercised at all must have been exercisedin favour of all the donees’ “ heirs. ” In the view I take it isunnecessary to decide the latter point or the question as to themeaning of the transferor’s “ interest.”
I am of opinion that the devise of the property by IbrahimLebbe’s last will was not a transfer by way of gift or dowry. Itis true that a prohibition against alienation being a burden on thedominium is strictly construed, but the words here leave no doubtthat every form of disposition was forbidden. The donee is notto sell, alienate, mortgage, or encumber the land or any part thereof,or the issues, rents, and profits thereof or any part thereof, but heis to possess and enjoy during his natural life, and after his deaththe property is to devolve on his children share and share alike.The provision for the devolution of the property after * thefiduciary’s death leaves no room for any testamentary dispositionby him. The passage in 2 Burge, p. 114, which says that aprohibition to sell or burthen the property does not prevent theheir from disposing of it by will refers (as the text of Voet, uponwhich it is founded, viz., Lib. 36, 1, 27 show's) to cases where thereis not a fully defined fidei commissum, w'ith- express indicationof the persons who are to take after the heir, but merely a simpleprohibition against alienation. In such a case, says Voet, “ aprohibition against alienation by act inter vivos must not be■extended to testamentary dispositions,” but he recognizes theprinciple that “ under the general prohibition of alienation, evenialienation by last will is forbidden.”
The words which we have to construe, however, do not occur inthe prohibitory clause, but by way of exception thereto; and thequestion is, whether the testator, having in that clause distinctlytakeij away the power to devise by last will, has restored it in thewords of the exception. (I think certainly not. The words areAppropriate to transactibns inter vivos. (It must be borne in mindthat the instrument under consideration was drawn up in theEnglish language, and therefore eliminates the fruitfut cause ofuncertainty which is produced by translations from the nativetongues)“ Transfer ” is defined in Wharton’s Lexicon as meaning
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" to convey, to make over from one to another,’’ ari'd the term Lbcommonly used in legal phraseology to describe transactions intervivos. A " gift ” is in almost every case a present passing ofproperly from one living person to another, although there is acertain small and rare class of transactions which are classedlas gifts under the name of donationes mortis causa, but whichpartake more largely of the nature of testamentary dispositions.A "dowry,” again, is essentially a matter inter vivos, the considera-tion being a marriage very shortly to take place. There is reasonto infer from the instrument that the power given to transfer tothe heir or heirs contemplated the necessity arising for advancinga son in life or for giving a marriage portion to a daughter, anecessity which would, in the ordinary course of things, have tobe met by an immediate disposition of property inter vivos, andcould not well be postponed till after the disponor’s death.
For these reasons, I think that the devolution of the propertyto plaintiff, in equal shares with the defendants under the fideicommissum, was in no way interfered with by the last will of thefiduciary, Ibrahim Lebbe.
The next question is, whether first plaintiff, to whom IbrahimLebbe has devised a share in his residuary estate, can be put toher election between that interest and her right to the fideicommissum property. And here it is to be regretted that theDistrict Judge did not frame proper issues at the trial, as requiredby section 146 of the Civil Procedure Code. Parties merely putin the instruments relied upon on either side, and counsel werethen heard. No facts outside the documents were agreed upon.It appears, however, that wrhat was devised to the defendants bythe will was “the whole of the shop No. 90, situate in Mainstreet, in which I am now carrying on business.” The plaintiffscontended that this description covered only part of the fideicommissum land. What the defendants’ contention was is hotrecorded. If first plaintiff is to be forced to elect, the Court must-first determine the extent of the devise to the defendants.
It is manifest that the testator did not- intend his daughter, thefirst plaintiff, to have both the share of residue and the fideicommissum property, for he expressly devised the latter to otherpersons. The first plaintiff must therefore elect .whether ghe ^willapprobate, the will as a whole, taking the residue *and relinquish-ing her interest in the fidei commissum land, or will reprobate it»as a whole, retaining this land and foregoing* the benefit of thedevise to her.•
By the Roman Law a* testator could 'devise to a third person theproperty of his heir, and the heij, if he aecfepted the inheritance.
1903.
May 5 ami
June 6
Wendt, J»
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1903. was bound to deliver the subject devised to the devisee. It madeno difference if the testator was under the belief that the subjectbelonged to himself (Institutes, lib. 2, 20, 4; Dig. lib 31, 2, 77, 8)rand Voet shows that this principle was fully accepted by theRoman-Dutch Law. The heir had to deliver his property sodevised, in specie, and could not offer its value as compensation(Ad Pand. lib 30-32, num. 26; 4 Burge, 713). So far as concernsthe matter in hand, the first plaintiff, being a residuary devisee,must be regarded as In the position of an heir.
In England, however, Courts of Equity, assuming thereby to-carry out the wishes of the testator, have engrafted two newprinciples upon the Civil Law, viz., first, that where the election isagainst the will they will hot suffer the benefit intended for therefractory devisee to lapse into the residue by reason of his refusal,but will sequester it in order thereout to compensate thosewhom his election disappoints; and, further, they permit therefractory devisee to retain both benefits upon condition of hismaking good to the disappointed devisee the value of the propertyintended by the testator for him (Story’s Equity Jurisprudence,sections 1,083-85). The question is whether these developmentsin English equitable doctrines have ever been recognized orapplied in Ceylon. They have no place at the Cape, where alsothe Roman-Dutch Law prevails; and a legatee electing against awill there forfeits all benefit under it (see Luces v. Hoole, Buc.(1879) 132; Juta’s Leading Cases (Wills), 2nd Edition, p. 153).
In Ceylon i have found the following cases only which touchthe subject (I cite them in order of date):—Baba v. Sinibera, 3Lor. 302 (1859); District Court Trincomalee, No. 19,559, Ram.(1864) 103, Vanderstr, 34, note (wrongly cited in 2 Thompson, 241,as decided in 1861); Strachan v. Brown. Leg. Misc. (1866), p.' 59;-District Court, Colombo, 51,428, Vand. 9 (1869); District Court,.Colombo, 3,233, Vand. 34 (1869); District Court, Kalutara, 23.882;Vand. 96 (1870); Ponniah v. Coomaraswamy, 5 S.C.C. 81 (1882).All these cases, but the last w.ere cases of a widow’s rights asagainst her husband’s will, and of'- election in favour of theinstrument.. In none of them was the Court called upon to settlethe rights of parties upon a devisee electing, against the will,though »-in the earliest case the judgment of this Court .statesthat upon the devisee ‘electing' against the will “ equity will‘sequester the property devised to. him for the purpose of makingsatisfaction out of it to the person whom he has disappointed bythe assertion of those rights;” and for' this statement 1 Powellon Devises, p. 433, is cited. Thompson? whose Institutes werepublished in 1866, iherely quotes the English equity rules from
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Shnith's Manual of Equity, and cites the first two of the local casesI have mentioned. In the absence of anything more direct and-precise holding that these rules obtain in Ceylon, and applyingthem to actual cases -that have arisen, I do not. think we canregard the principles of English equity as in force in this Island.We ought only to apply the Roman-Dutch Law, under which alegatee must either stand by the will as a whole, or repudiate it asa whole. In the last of the cases above-mentioned a child of thetestator’s first bed elected against his will and recovered judgmentfor a moiety of the common estate. Subsequently she sued torecover the land specially devised to her under the will,hut her action was dismissed on the ground that she hadelected to repudiate the will, and could, therefore, take nothingunder it-
1903.
May 5 and
June 5.
Wrndt, J.
The defendants argued that the first plaintiff has, in fact,already elected in favour of the will, and cannot now go back.They relied strongly on a deed, No. 2,067, dated the i7th November,1S93, and executed by Ibrahim Lebbe’s widow, the three defendants,and the first plaintiff, assisted by her husband the second plaintiff.Ey this deed the parties divided amongst themselves the iandaforming the testator’s residuary estate in the proportion ofone-eighth to the widow, one-eighth to the first plaintifE, andtwo-eighths to each of the defendants, those being their respectiveshares under the Mohammedan Law as to intestate succession.This deed recognized the provisions of the will, for it recited thatthe testator had made certain specific bequests, and described theresidue as comprising the scheduled houses and lands, whichit proceeded to apportion among the parties, giving to each ofthem one or more lands and houses in severalty. And eachof .the parties acknowledged to have received his portion in fullsatisfaction of his claim under the will. There might have beensome opening for the argument that the execution of this deed bythe plaintiffs was consistent with an intention on their part toclaim the fidei convmissum property also, as wrongly includedin the will, were it not for* the fact that plaintiffs had for sevenyears after its execution acquiesced in defendants’ exclusivepossession and enjoyment of that property before they broughtthe present action. 'This fact completes the proof of thein electionto take under the will, and the action m*ust fail so* far as concernsthat extent of the fidei commissum land which the will devises fdthe defendants. To ascertain what this extent is the case must goback to the District Court. If the Court finds that part only wasdevised, the first plaint® will be entitled to have possession of theremainder, with ‘ mesne profits fqr such period as the Prescription
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190S. Ordinance may allow of her recovering. If the whole of the land
May Sand was devised, the action will fail altogether.
June 5.
—It may be useful to add that, in my opinion, the election of first
Wsunv, J. p]aintjff wju not prejudice the succession of the persons entitledto take after her death under the fidei commissum.
The appellants will have their costs of the appeal. The costs inthe District Court will abide the final result.