080-NLR-NLR-V-53-KIRI-BANDA-Appellant-and-PUNCHIAPPUHAMY-et-al.-Respondents.pdf
GRATIAEN J.—Kiri Banda o. Punchiappuhamy
881
1901Present: Gratlaen J. and Onnasahan 3.
KIRI BANDA, Appellant, and PUNCHIAPPUHAMY et al..Respondents
8. C. 7—D. C. Kegalle, 5,632*
Fideicommissum—Directum that fiduciary should at death “ make over ” the giftedproperty to the fideicommissary—Failure to carry out such direction—Does notdefeat fideicommissary’s rights.
A deed of gift by which U donated certain lands t$ his daughters T. If. andD. M. contained the following clause: —
" I hereby …. grant and make over as a gift unto ….
my daughters T. M. and D. M(the land is then described) to
be possessed by them during their life time ….
“ Further, the said T. M. and D. M. shall only possess the said lands andpremises allotted to them during their life time and shall not transfer ormortgage the same outside and the said T. M. and D. M. shall at their deathmake over their shares of the lands and premises allotted to them to no otherperson than P or to P's heirs and shall not alienate the same to any other personwhomsoever ' ’.
Held, that the gift created a valid fideicommissum in favour of P or, in theevent of P’s death, of his heirs. No express deed from the fiduciaries wasnecessary to render it effective.
^ PPEAL from a judgment of the District Court, Kegalle.
H. V. Perera, K.O., with C. V. Ranawake, for the plaintiff appellant.
E. B. Wikramanayake, K.C., with Cyril E. S. Perera, for the 9thdefendant respondent.
Cur. adv. vidt.
July 5, 1951. Gkatiaen J.—
Under a deed of gift dated 21st July 1877, a man named Ukkuraladonated certain properties to his son Punchirala ; he also gifted hisinterests in the land which is the subject matter of the present actionto his daughters Tikiri Menika and Dingiri Menika. The only questionwhich arose for our decision in this appeal was whether the gift of theinterests which passed to Tikiri Menika and Dingiri Menikaj created avalid fidei commissum in favour of Punchirala or, in the event of Punchi-rala’s death, of his heirs. It is agreed between the parties that if thisquestion be answered in the affirmative, a decree for partition should beentered allotting shares to the parties on the basis set out in paragraph 14of the amended plaint dated 10th May, 1949. If, on the other hand, thelearned District Judge was right inj holding that Pi did not create avalid fidei commissum, the judgment appealed from must be affirmed.
Admittedly, the gifts under Pi in favour of Ukkurala's son Punchiralawere absolute and unfettered by any conditions. By contrast, thegift in favour of Tikiri Menika and Dingiri Menika is in the followingterms: —
GRATIAEN 3.—Kiri -Banda v. Punehiappuhamy
“ I hereby.. grant, and make over as a gift unto
my daughters Tikiri Menika and Dingiri Menika^ .(the land is then described), to be possessed by them during theirlife time
Further, the said Tikiri Menika and Dingiri Menika shall only possessthe said lands and premises allotted to them during their lifetime and shall not transfer or mortgage the same outside and thesaid Tikiri Menika and Dingiri Menika shall at their deathmake over their shares of the lands and premises allotted to them• to no other person than Punchirala or to Punchirala’s heirs andshall not alienate the same to any other person whomsoever ”.
The view taken by the learned District Judge was that, notwithstandingthe unambiguous prohibition against alienation or disposition to outsidersthe deed did not clearly designate “ who are to get the properties ifDingiri Menika and Tikiri Menika did not execute a deed in favour ofPunchirala or his heirs ”. In that view of the matter he held that PIdid not create a valid fidei commissum. In support of this decision thelearned Judge purported to follow an unreported judgment of thisCourt affirming a previous ruling of the same learned Judge with regardto a conveyance containing terms which do not exactly correspond to thelanguage of the deedof giftPI. (S.C.Minutes of 28.3.50—501 /D. C.
Kegalle, 4,831). It sufficesto stateinthisconnection that the brief
judgment under reference is unhelpful in connection with the present casebecause its ratio decidendi is not very clear.
The point at issue is amply covered by authority. The view had nodoubt been held at one stage that no valid fidei commissum can be createdby a deed of conveyance which merely directs the first institute to conveythe property to thesecondinstituteonthehappening of a specified
event-r-and that in such a case the property would not pass to the secondinstitute unless the direction was, at the appointed time, specificallycarried out by the first institute. Vide Dantuwa v. Setuwa 1 (per Hutchin-son C.J.) where Middleton J. agreed, but for different reasons, on theassumption, long since discarded, that the Boman Dutch Law principlesof fidei commissumare inapplicabletotheconstruction of Kandyan
deeds of gift.
Later decisions of this Court have however rejected the views expressedby Hutchinson C.J. in Dantuwa’s case. In Sethuhamy v. Kiribanda 2,Bertram C.J. and Schneider J. considered the effect of a deed of giftwhere the donee was directed “ on the approach of death to divide theproperty among the three children ” of himself and the donor, who washis wife. Bertram C.J. pointed out that' “ a positive act by the doneei.e., a distribution of the property in specie among the three children—was indicated. Nevertheless, the Court took the view that a valid fidei
(1907) HN.L.R. 37
(1992) 23 N. L. R. 376
GRATIAEN J.—Kiri Banda v. Punchiappuhamy365f
commissum was created so as to pass the property automatically to the'children, without any specific conveyance from their father, 'on the*latter’s death. Dealing with Dantuwa’s case, Bertram C.J- said,'Iventure to think that, if the history of the law of fidei commissum inProfessor'R. W. Lee’s Introduction to Roman Dutch Law had been fullyconsidered, the result of that case might have been different
The law was finally settled by Garvin J. and Lyall Grant J. in' Bibilev. Mahaduraya 1 which held that a valid fidei commissum was created,and that no express deed from the donee was necessary to render it effective,where a conveyance contained “ not a mere request but a direction andan imperative order ’ ’ requiring the first institute to pass the land to thenext set of institutes. With regard to the contention that the fideicommissum did not become effective by reason of the absence of a deedof conveyance by the fiduciary in favour of the fidei commissaries; Garvin
J.declared that “ if a valid fidei commissum has in point of fact beencreated, then the fidei commissary become vested with the propertyimmediately the fidei commissum matured by the happening of thecontingency,* i.e., the death of the donor ”. The ruling in Dantuwa’scase was once again expressly rejected.
Learned Counsel have not referred me to any ease in which doubtsas to the correctness of the decision in Bibilc v. Mahaduraya 2have been raised since 1926. Indeed, the point seems tohave been regarded as so well settled . that in Selvadurai v.Thambiah 3, counsel of great experience did not challenge the propo-sition that a deed of gift by way of dowry directing that “ ifshe, the dowry grantee, has issue she shall cause the properties to reachthem when they come of age ” was sufficient to create a fidei commissumin favour of the grantee’s children notwithstanding the absence of anyexpress indication as to what should happen in the event of the directionsto the donee not being carried out.
The principles of law to which Bertram C.J. and Garvin J. had referredare now very clearly set out at page 143 of Mr. Nadaraja’s Treatise onthe Roman Dutch Law of Fidei Commissum in the following terms: —
“ In the pre Justinian Roman Law, the fideieommissary did notacquire ownership in the property until ‘ restitution ’ of it had beenmade by him to the fiduciary at the time prescribed by the testator.But after Justinian had enacted that there was to be no differencebetween the different kinds of legacies' and between legacies andfideicommissa and that fideicommissaries and legatees equally, shouldhave not merely a personal action but also the real action which hadformerly been open to legatees per vindicationem, ownership (ait anyrate in the case of singular fideicommissa) passed from fiduciary tofideieommissary, even without any express restitution, as soon as thegift-over to the latter was expressed to take effect. In the modemlaw. it would seem that in all cases the transfer of ownership takesplace authomatically at the time prescribed by the testator for thevesting of the fideieommissary’s interest, and the fideieommissary
1 (1926) 28 N. L. B. 253
! £1934) 36 N. L. B. 105.
* ibid
364
DIAS S.P.J.—Arulanantham v. The Attorney-General
is entitled from that time to the use and enjoyment of the propertyand to enforce his claims to the property against the fiduciary, hisrepresentatives, or other possessor ”.
Applying these principles to the present case, I would hold that thereis a very clear indication in the deed PI of an intention on the part of thedonor to impress the respective shares in the property donated to eachof his daughters with a fidei commissum, taking effect on her death, infavour of Punchirala or (should Punchirala pre-decease her) in favourof Punchirala's heirs. The failure of* either daughter to obey the directionthat she should “ make over ” her Bhare to her fidei commissary did nothave the effect of defeating the donor’s intention.
I would set aside the judgment appealed from and direct the learnedDistrict Judge to enter an interlocutory decree for partition, allottingshares to .the parties on the basis that the deed of gift PI operated as avalid fidei commissum. The 9th defendant should pay to the plaintiffthe costs of this appeal and of the contest in the Court below. Thecosts of partition will be borne pro rata.
(tunasekaba J.—I agree.
Judgment set aside.