KUSMAWATHI et al. v. WEERASINGHE

067-NLR-NLR-V-33-KUSMAWATHI-et-al.-v.-WEERASINGHE.pdf


Kusmawathi t>. Weerasinghe.
265
1992Present; MaodoneU C.J. and Garvin S.P.J.
KUSMAWATHI et al. v. WEERASINGHE.415—D. C. Matara, 5,440.
p*idci commissum—Deed of gift subject to fidei coDunissom—Donof remains
inpossession—Obtainspartition decree—Saletodefendant—Boasfid®
purchaser without notice—Claim by heirs of donee—Incidence of fidei
oommissum.
In 1689 G donated by deed, duly registered, an undivided half share ofa land to her son A “ as a gift inter vivos …. to have and toholdthe said premisessubjectto the followingconditions: —(1)That
this giftshall takeeffect aftermydeath; (2)that the donee shall not
alienate, sell, or encumber the property; (8) the shares of land giftedshould, after the deathof thedonee, descendtohis children ortheir
descendants by representation according to law ”.
G remained in possession and in 1907 obtained title under a partitiondecree toa portioniu severaltyofthe land,representing the undivided
halfinterest which she had dealtwith in 1869,Abeing a party to the
partition action.
Thereafter G sold the land to defendant's predecessor in title, recitingin her conveyance her title under the partition decree.
G died in 1912 and A in-1927.
Held (in an action brought by the heirs of A, claiming under the fidei commissum),that the defendant had the superior title.
T
HIS was an action brought by the plaintiffs as heirs of one DonAndris for declaration of title to land. They based their title on
a deed of October 16, 1889, by which their grandmother Dona Gimaragifted an undivided half share of the land in question to their father.They claimed that the deed of gift created a fidei commieum in theirfavour. It would appear that Dona Gimara remained in possession ofthe land and in 1907 obtained a partition decree in her favour in respectof a portion in severalty of the land, representing her undivided half share.Don Andris was a party-defendant to the partition action. ThereuponDona Gimara sold the property to one Johannes Weerasinghe, fromwhom defendant derived title.
The learned District Judge held that the deed of 1889 was not actedupon and that the partition decree wiped out the fidei commissum. Hedismissed the plaintiff’s action.
N.E. Weerasoona, for plaintiffs, appellants.—The partition proceedingsare on the footing that the deed of gift creates a fidei commissum. Thedonee is stated in the plaint to be a fiduciary and the donor to haye 8life-interest. The’ decree should be read with the pleadings. Evenotherwise the decree does not wipe out the fidei commissum (Ram. (1877)p. 304, Tillekeratne v. Abeyeseke're Abeysun-dere v. Abeysundete 2, Nonav. Silva 3, Marikar p. Marikar 4). A partition decree cannot affect the title
' 2 N.L. R. 313.9 {1906) 9 N. L. Hi 261.
* (1909) 12 N. L. R. 373.* (1920) 22 ff. b. 137.
20$MA.CDONELL C.J.—KusmawaUii v. Wccrasinghe.
of fidei commissarii as they tue not in a position to put forward a claim(2 Burge 678; Voet X-. 2, 14; Voet X., 2, 38). The donation here is to takeeffect after death. It is distinguishable from a pure gift inter vivoeand a donatio mortis causa. On donor's death title automatically passesto donee subject to conditions (Voet XXXIX., 5, 4; XXXIX., 6, 2;
2 Nathan, s. 1020; 4 N. L. R. 288). The right of donee can even be said't-o come under section 3 of Trusts Ordinance, No. 9 of 1917. Then Ma-rikarv. Marikar (supra) will apply.
H. V. Perera, for defendant, respondent.—The donor is not a fiduciary.See (MacGregor’s Voet XXXVI., 1, 1, for definition. A fidei commissum isa trust imposed on a person to whom the property is given (Zeedeburgv. South African Association 1). A fiduciary represents the fidei com-missarii, but here the donor does not represent them. She is astranger so far as the partition proceedings are concerned. The deed isnothing more than a contract. There was no delivery. The rights ofthe donee and fidei commissarii were contractual and not real rights(Voet XVIII., 6, 6; XLL, 1, 2; Lee's Roman-Dutch Law (2nd ed.),p. 338-345). The deed is in effect a testamentary disposition (Vaity v.Jacob =; Theobald on Wills/ pp. 14 and 15; Thorold v. Thorold; 1Philimore's Cases, p. 1. The words are “ give after death See VoetXXXIX., 5, 4. The partition decree was* registered. The defendant’spredecessor was a 6ona fide purchaser without notice. All previous titlesare extinguished. The deed does not create a trust. Even so, equitydoes not assist volunteers. No action for specific performance would lie(see section 93 of Trusts Ordinance, No. 9 of 1917; Fry on SpecificPerformance, p. 56; Fernando v. Peiris3; Silva v. Salo Nona4).Counsel also cited Mudalihamy v. Dingiri Menika *.
Weerasooria, in reply.
March 5, 1932. Macdonell C.J.—
This was an action for declaration of title to certain lands brought bythe three plaintiffs who. claim as fidei commissani. They base their titleon a deed of October 16, 1889, P 4, by which their grandmother DonaGimara dealt with a one-half undivided share of the land in question inthe following terms:—“ Know All Men by these presents that I, . . .
Dona Gimara widow, … in consideration of the love
and affection which I have to my youngest son,Don
Andris, . . . ., do hereby give and grant unto the said, . . lf
Don Andris as a gift inter vivos the hereinafter mentioned premisesentitled to me” (follow the particulars and boundaries of the parcels inquestion) “ To have and to hold the said premises, … unto him
the saidDon Andiris, subject however to the following
conditions: —
That this gift shall take effect after my death;
That the donee cannot alienate, sell, or encumber the property*
gifted, and are not liable to be sold for any debt of his;'
1 6 dearie 214.3 (1976) 19 N. L. R. 281.
12A.C. R. 45.* {1930) 32 N. L. R. 81.
8 28 N. L. R. 412.
MACDONELL QJ .—Kusmawathi t. Weerasinghe.267
That the shares of lands gifted by me should after the death of the
donee descend to his children or their descendants by represen-tation according to law; and
That any lease which the donee may make for his benefit shall end
at the term of his natural life."
This deed was duly registered. It is common cause that the halfundivided share dealt with in this deed was Dona Gimara’s to dispose ofand that the conditions attached created a valid fidei commisaum. DonAndris, the son named in this deed, was the father of the plaintiffs andthey claim under him by virtue of the fidei commissum created by it.In accordance with condition No. 1 of the deed" Dona Gimara remainedin possession but in 1907 as a consequence of two partition- actions,eventually consolidated into one, she obtained a partition decree titleunder Ordinance No. 10 of 1863 to a portion in severalty of the sameland, expressly stated to represent the undivided half interest which shehad dealt with in her deed of 1889. Don Andris, her son, the beneficiary,was joined as a defendant in both these partition suits, as he is entitledto the fiduciary of which his mother, the first defendant, has a lifeinterest ", but he does not seem to have taken any part in the partitionproceedings, still less to have opposed the decree made thereon. DonaGimara acquired then by this partition suit " the good and conclusivetitle" which a partition decree gives, to the land dealt with by her in thedeed of 1889. The partition decree was duly registered. Thereafter DonaGimara mortgaged, and in 1910 sold, the land In question on D 3 to* Johannes Weerasinghe duly reciting in the conveyance her title by parti-tion decree; this conveyance also was duly registered. On the deathof the purchaser, Johannes Weerasinghe, intestate, his immovables weresold in 1919 and purchased by his mother Tochcbo Baba Hamine who in1920 sold to the present defendant, ‘it is not suggested that fEe defen-ant when he purchased or that either of his predecessors in title had •actual notice of the fidei commisaum created in 1889.. Dona Gimara diedin 1912, two years, that is, after she had sold to Johannes Weerasinghe.Her son Andris, beneficiary under the deed of 1889, died in 1927. Hischildren filed plaint on December 21, 1929, claiming the land as thefidei commisaarii under that deed.
They put their claim thus—
" That by the said deed the said Dona Gimara was entitled topossess the said premises until her death and on her death her son DonAndris was entitled to possess the same and op his death the saidpremises were to vest absolutely in the children of Don Andris.
"That the title which the Said Dona Gimara got in the said partitiondecrees was in law subject to the said terms of the said deed andthe said Dona Gimara got and held the said lot A in trust for thebeneficiaries under the said deed No. 16. "
The learned District Judge held that the deed of 1889 had never beenacted on and that the partition decree, and the title vested thereby in
•26ftMACDONELL O.J.—Kuemawathi v. Weeratinghe.
l)ona Gimara, wiped out the fidei commissum. From this decree tfiedefendants appeal,- and it is convenient to set out their chief reason:.—
“ 4.(6) If the deed P 4 created a fidei commissum in favour of the
appellants and had the effect of vesting the property in Andrisat the time of execution as the learned District Judge holds >the partition decrees cannot enlarge the usufructuary rightDona Gimara possessed to absolute dominium as the decreesdo not wipe off a fidei commissum when once such a charge isimpressed on the.land.”
Now of the close and excellent arguments on this appeal many weredirected to the question as to the effect of the deed of 1889; did DonAndris acquire under it dominium leaving Don a Gimara a mere usufructfor her life, or did she retain the dominium during her life, 6uch dominiumnot to be transferred to Don Andris till she was dead? As I understandthis case, it can be determined without pronouncing definitely for eitherof these conclusions.
Take the first view, that Don Andris acquired under it a dominium tothe land, Dona Gimara being usufructuary for her life. Then DonAndris was dominus of the land as well as fiduciarius. He could haveasserted that position when the partition actions were instituted, andwith the greater ease since he was third defendant in each and in theconsolidated action. He could have insisted that the partition decreeshould have adjudged title to him and reserved to Dona Gimara merelya life interest. In fact he did nothing, never asserted any right at all,but allowed Dona Gimara by the partition decree to enlarge her rights asusufructuary into a title ''good and conclusive as against all personswhomsoever”, a full and indefeasible dominium, a title good against all theworld. Her position at the time of obtaining it must be analyzed. Shehad given the land by deed inter vivos to- .Don Andris and had declaredit to be subject to a valid fidei commissum. But she was not herselffiduciarius, that was not and could not be contended. • To do so, itwould be necessary to maintain that the creator of a fidei commissum,whether by act inter vivos or by instrument testamentary, was himselfor herself a fiduciarius although he or she had expressly named a fiduci-arius in the instrument creating the fidei commissum. There would thenbe two fiduciarii to the same fidei commissum, in and with different rights,and with possible conflicting interests, and no authority is known to mefor the possibility of there being two such fiduciarii. I only mentionthese considerations to show how difficult it would have been to contendthat Dona Gimara after creating a fidei commissum by the deed of 1889could be herself a fiduciarius under it, and, as I have said, this was notcontended in argument. But it is important to notice that had she beena fiduciary she would have held the land obtained by her in severaltyunder the partition decree in the capacity of a fiduciary, and not in anyother capacity, in accordance with the rule in Baby Nona v. Silva 1 ;per Lascelles A.C.J. at 256, " By no reasonable construction of theOrdinance can it bp held that the effect of a partition decree is to enlargethe life interest of the fiduciarius into absolute ownership ”, and per
* 9N. L. B. 251.
JMACDONELL C.J.—Ku$maicathi v. Weerasinght.
Middleton J., also at 256, “ A fiduoiarius has, it is true, a real thoughburdened right of ownership which may or may not develop into plenumdominium …. I would prefer to say that the Court has done nomore than to confer on Diyonis *’ (i.e., the owner under the partition deeree)'* the interest of a fiduciarius in a separate portion of the property Theburden of the fidei commissum will continue as against the fiduciary andas against the successors in title (whether ignorance by them of the fideicommissum makes any difference, is a matter that will be discussed later)but no case or dictum known to me suggests that the burden couldcontinue as against the holder of a partition decree title who was not afiduciarius. So to hold would l>c further to impair the “ good and con-clusive title " which'decree under section 9 of'Ordinance No. 10 of 1863confers, and this I must decline to do until required by authority. ThenDona Gimara, being usufructuary of an undivided share in land, acquiredunder partition decree a title which, since she was not a fiduciary, wasunaffected by the fidei commissum created by the deed of 1889 and thistitle, so unaffected by it, enures to the benefit of a purchaser from herand of his successor in title, the defendant in this case. If it be the casethat that deed made Don Andris the dominus and left Dona Gimarausufructuary merely, such a conclusion would not help the plaintiffs, inthis action.
Further, Don Andris if dominus lay by all those years and allowedDona Gimara to deal with the land adversely to his rights under the deedof 1889 and prescription would begin to run against him. I apprehend,from the moment in 1907, when she acquired title by virtue of a partitiondecree, certainly from the moment in 1910 when she sold to JohannesWeerasinghe. If so, the title through which the defendant claims wasperfected by prescription as against Don Andris either in 1917 or 1920,this action having been commenced in 1929.
Then there is the alternative: Dona Gimara retained dominium forher life, Don Andris's rights being in expectancy till her death. Duringthe course of argument the question was asked, no very satisfactoryanswer being given, what then was the nature of Don Andris's rights.If the deed of 1889 was irrevocable, would he become dominus of the landeo instanti Dona Gimara's death, or would some further act on his partbe necessary, such as an instrument from the executor of Dona Gimaraif she left a will or from her administrator if she died intestate? As Ihave said, no satisfactory answer was given to this question, yet to giveDon Andris a real right to the land mentioned in the deed of 1889 it would,be necessary for him to 6how that that land became his eo instanti DonaGimara's death and by virtue of the same. If the deed of 1889 was revo-cable, then clearly Don Andris’s right was not a real right to the land but aconstructual one merely, the deed would be of the nature of a testamentaryinstrument, and after Dona Gimara’s death he would have to obtaindelivery of the land. Further, if the deed was revocable, Dona Gimararevoked it in the most effective manner, namely, by getting an indefeasibletitle to herself and then selling to a third party. But let us put on the•deed of 1889 a construction most favourable to Don Andris’s interests;it was irrevocable and the land passed to him eo instanti Dona Gimara's
270
1UCDOKBLL C.J.—Ku*nuitDathi v. Weerasinghe.
death and without any act by him or anyone else. Then Dona Gimara,domina of the land fdr her life, enlarged that dominium into one for morethan her life, a dominium “ good and conclusive as against all person*whomsoever " by the partition decree of 1907. She then sold to a thirdparty and Don Andris, the person with an expectant dominium (if thephrase can be used) which would become absolute eo instanti her deathlay hy and allowed her to do both these things. Again, it is to be observedthat though domina and though maker of the deed of 1889 she was notfiduciary, so the rule in Baby Nona v. Silva (supra) would not apply and thefidei commissum would not affect her or her successors in title, and she, andthey through her, would take the land clear of it; at the very least, thereis no authority to the contrary.
If I understood it correctly, the argument for plaintiffs was put some-what in this way. Even if no dominium passed to Don Andris at thetime of the execution of the deed of 1889 and if Dona Gimara still retainedher dominium, none the less that dominium was affected by the fideicommissum she had impressed on it and the dominium she obtained byher partition decree title was equally affected by it. On Dona Gimara'sdeath in 1912 the dominium so affected vested in Don Andris instanterwithout the necessity of tradition or of any act by him or on his behalf.On his death in 1927 the rights of plaintiffs under his dominium affectedby the fidei commissum created by the deed of 1889, at once becameeffective and enforceable. There can be no question of prescription foruntil those rights became effective and enforceable by Don Andris *sdeath, until the plaintiffs, his children, " acquired a right of possession to.the property in dispute "/Ordinance No. 22 of 1871, section 3, time wouldnot run against them. Then they, the plaintiffs, can claim the land againstdefendant, the successor in title to the purchaser froni Dona Gimara. Ican only say in reply that to accede to such an argument would be toextend the ruling in Baby Nona v. Silva (supra) to a totally different case,viz., to the case of land held under partition title by a person other than afiduciaries. Baby Nona v. Silva (supra) decides definitely enough that thedominus under a partition decree title being himself a fiduciariust musthold the land acquired by that title for the fidei commissarii, but it doesnot decide that the. dominus under such a title nob being a fiduciariesmust hold it for them, still less that the purchaser from him must do so.
But the above considerations do not dispose of this case, sinceparagraph 4 of the plaint states as follows: —
"4That the title which the said Dona Gimara got in
the said partition decree was in law subject to the said terms of the saiddeed and the said Dona Gimara got and held the said lot A in trust forthe beneficiaries under the said deed No. 16."
The case for the plaintiffs is put no longer as a fidei commissum butas a trust. Then it can be stated thus. By the deed of 1889 DonaGimara had, though using phraseology apt tp create a fidei commissum,yet declared herself a trustee for Don Andris and his descendants; thisis to be implied1 from the words of the deed, the land is to go to DonAndris after her death, and then to his children. Granting that a trustwas thereby created, then the plaintiffs are met by the fact that Johannes
MACDOKELL C.J.—Kusmawalhi v. Weerasinghc.271
Weerasinghe who brought from Dona Gimara was bona fide purchaserfor value without notice, and if Dona Gimara was trustee for Don Andrisand his descendants, this is a complete answer to their claim; if youput it as a trust, you must submit to the rules that govern trusts, youcannot pick and choose from among those rules just that one whichsuits your case, discarding others. As it was put by James L.J. inI’llcher v. Itawlins 1: —
“ A purchaser’s plea of a purchase for valuable consideration withoutnotice is an absolute unqualified, unanswerable defence. .. such a purchaser, when he has once put in that plea
may be interrogated and tested to any extent as to the valuableconsideration which he has given in order to show the bona fidesor mala fides of his purchase, and also the presence or the absenceof notice; but when once he has gone through that ordeal,and has satisfied the terms of the plea of purchase for valuableconsideration without notice, then, according to my judgment,this Court has no jurisdiction whatever to do anything morethan jbo let him depart in possession of that legal estate, thatlegal right, that- legal advantage which he has obtained, what-ever it may be. In such a case a purchaser is entitled to holdthat which, without breach of duty, he has had conveyed to him.”
But it is said that the purchaser here, Johannes Weerasinghe, was notpurchaser without notice, since the deed of 1889 was registered and it washis duty, when buying from Dona Gimara her partition decree title, tosearch the register and as he did not do so, he had constructive notice ofwhat he would have found had he searched, viz., that Dona Gimara wasn trustee by reason of the deed of 1889. No case was cited to us insupport of this argument, and I must respectfully decline to accede tothis attempt to extend the doctrine of constructive notice to purchasersfrom holders under a partition title. The words of section 9 of theOrdinance are clear enough:” The decree for partition or sale given as
hereinbefore provided …. shall be good and sufficient evidenceof such partition and sale and of the titles of the parties to such shares orinterests as have been thereby awarded in severalty ”, and these wordsseem to mean that in purchasing from the holder ot a partition titleyou have to satisfy yourself by inquiry that .the decree was “ given ashereinbefore provided ” and that your vendor holds a title under thatdecree, but not that you have, whether as matter of law or conscience,to make any inquiry behind that title and the decree under which it wasgranted.
I have discussed the case regarded as one of trust, so will now returnto it, regarded as one of fidei eommissum since it was further argued,as I understood, that as fidei commissarii cannot be parties to a partitionaction, they must be protected otherwise, and that this protection is tobe given by making the burden of the fidei eommissum valid as againsta third party, even though he purchased the property affected by thefidei eommissum for value and without notice.- In actual fact, decidedcases go no further than this, that the fidei eommissum is valid as againstthe fidueiarius holding it under a partition decree and as against a purchaser
1 L. R. 7 Ch. App. at p. 268.
21/33
.272
MACDONELL C.J.—Kmmauathi v. Wccrasinglic.
from such fiduciarius, Baby Nona v. Silva {supra). The dictum of LordWatson in Tillekeratne v. Abeyesekere 1 to the effeot that the partitionauthorized by the Ordinances No. 21 of 1844 and No. 10 of 1863, would notnecessarily destroy the fidei commissum attached to one or more of the sharesbefore partition, was unnecessary for the decision of that case and isclearly obiter, and it must be remembered that “ a case is only anauthority for what it actually decides ” per Lord Halsbury inQuinn v. Leathern 2. Assume, however, that the protection extended tothe fidei commissarii goes further, and that the fidei commissumattaches to land' in the hands of any holder of it under a partition titleirrespective of whether that holder is the fiduciarius or not: the crgumentwill then pray in aid the passage from Justinian’s Code, at VI., 43, 3,familiar from its citation in Dr. Lee’s book, which passage expresslystates that the fidei commissarius can claim against any purchaser ormortgagee, and examination of the concluding portions of that passagenot quoted in Dr. Lee’s book makes it clear that he can claim even thoughthe purchaser or mortgagee has no notice of the fidei commissun, Howfar can such a contention prevail against the very clear words of section 0of the Partition Ordinance a “ title good and conclusive against allpersons whomsoever? ” It is said that Baby Nona v. Silva {supra) decidesthat, on a purchase from the fiduciarius who has a partition title, thefidei commissum runs with the land even though .the purchaser has nonotice of the fidei commissum-, and it was argued here, as I understandthat .this rule should be extended to such a case as the present, viz., that.where the holder of'the partition decree title even though not fiduciarius,sells in breach of a fidei commissum which she herself has created, thefidei commissum should be held to continue even ns against .the purchaserwithout notice. Baby Nona v. Silva {supra) has at different times beencited as authority for the proposition that purchase without notice is no barto the fidei commissarius’s rights; 6ee Marikar v. Marikar J, and Mr. Jaye-wardene’s book on Partition, at page 213. But the facts in Baby Nona v.Silva {supra) do not support this proposition. They were these. Awoman, Maria Silva, donoted land to her three sons, Diyonis, Manuel, and' Bastian, subject to a fidei commissum in favour of their descendants. Thisland came to these three sons after her death under her gift and was bythem partitioned under the Ordinance so that lot B was allotted to Diyonisand lot A to Manuel. Diyonis’s lot B was sold against him and waspurchased by his brother Manuel, the .defendant, who like him was- afiduciarius. Shortly afterwards Diyonis died leaving children, some ofwhom were the plaintiffs in that action. They were fidei commissariiwhose rights became vested rights in esse the moment their fatherDiyonis died. They claimed as against Manuel the lot B which he hadpurchased from their father Diyonis who had, been a fiduciarius. NowManuel had come to the land through hjs mother Maria’s deed creatingthe fidei commissum, so had actual knowledge of the same, and he hadobtained a partition title to a portion of that land only because he was ajoint donee under that deed. A -clear case of purchaser with expressnotice could not well be imagined. Then Baby Nona v. Silva {supra) is noauthority for the proposition that a fidei commissum can be enforced
1 2 N. b. B. 313.
8 70 L. J., P. C. il.
22 N. L. B. 139.
MACDONELL C.J.—Kusmawathi v. IVccrasinghe.
273
against a purchaser from a fiduciarius who has a partition title, thatpurchaser having no notice of the fidei commitsum, and I have beenunable to find any other case which does establish that proposition.The point is open for decision. The additional “ protection ” claimed forfidei commissarii would go far beyond the principle of Baby Nona v.Silva (supra), was not supported by authority oited to us, and would bea further weakening of titles under partition deorees. I must thereforerespectfully decline to accede to the argument that such an additional“ protection ” exists.
As the present case is not a case of purchase from a fiduciarius butfrom some one other than a fiduciarius, the question of purchase forvalue without notice does not on the existing authorities really arise indeciding the present case, regarded as a case of fidei commissum. Nonethe less it was one so frequently referred to in argument that perhapsone may venture on some discussion of it—obiter—ih relation to partitiondecree titles.
The words of section 9 of Ordinance No. 10 of 1883 seem cleaij enough" A title good and conclusive against all persons whomsoever ”. It hasbeen decided that to make a good and sufficient title the decree relied onmust have been in accordance with the requirements of the Ordinance,and Mr. Jayawardene in his book on Partition summarizes at page 195the grounds upon which final decree in a partition action has beenvacated and set aside. Is it necessary or desirable to make any furtherinroads on the plain words of the statute? As I understand the decision ofBaby Nona v. Silva (supra) it does not decide, that a fidei commissumattaches to the land sold by a fiduciarius. All it decides is th'at a purchaserfrom such a fiduciarius with knowledge of a fidei commissum cannot hold theland purchased as against a fidei' commissarius. It affirms the principlethat a man cannot hold what in conscience he knows he has no right to.Then it affirms the same principle with regard to fidei commissa asMarikar v. Marikar (supra) does with regard to trusts. If this is so, then thelaw, as I apprehend it, does not impose on land sold by a fiduciariuswho has a partition decree title the burden of fidei commissum, does notsay that a fidei commissum “ runs with the land ” when purchased fromhim. What it does say is something quite different, namely, that if apurchaser buys from a fiduciarius with a partition decree title knowingthat what he buys is subject to a fidei commissum, he cannot hold it as-against the fidei commissarius. Baby Nona v. Silva (supra), and that if hebuys from a person with a partition decree title knowing that what hebuys is subject .to a trust, he cannot hold it as against the cestui qui trust,Marikar v. Marikar (supra). This is an intelligible principle, in each casethe conscience of the purchaser is affected because he has bought withknowledge of the rights of others, and if so there is good reason forpostponing his rights to those of such others. But this is a very differentthing from imposing on land purchased from a fiduciarius with a parti-tion decree .title, the bond of fidei commissum, so that it runs with 'the land in disablement of the good and conclusive title which section9 of the Partition Ordinance purports to create.
In deference to the arguments addressed to the Court in this case,
I have discussed it on several suppositions and from several points of
274
GARVIN S.F.J.—Kusmawalhi r. Wecrasinghc,
view, but its essentials can be put very shortly. The donor of the landcharged by her with a fidei rommissum under which she, the donor, wasnot a fiduciariust thereafter enlarged by virtue of a partition decreethe rights, dominial or usufructuary, remaining to her after her gift,into the full and conclusive ownership that a partition decree title gives,which ownership she not being a fiduciarius, could transmit unburdenedby the fidei commissum to her successors in title.
For the foregoing reasons, I am oE opinion that this appeal should bedismissed with costs.
Garvin S.1J.—
This is a contest ns to title. The plaintiffs trace their title back to oneDona Gimara Harnine; so also does the defendant. Dona Gimara.Hainine was once the owner inter alia of an undivided half share in eachof two contiguous allotments of land called Mahawanigewatta andBogahawatta. She executed a certain deed bearing No. 16 and datedOctober 30, 1889. in respect of these lands in favour of her son Andris•with a fidei commissum in favour of his children. Partition actionsbearing Nos. 3,198 and 3,508 of the District Court of Matara instituted inrespect of these lands were consolidated and on June 13, 1905, inter-locutory decree was entered declaring Dona Gimara entitled to a haltshare. By the final decree which was entered on May 14, 1907, Dona•Gimara was declared, as and for her interest in these two allotments ofland, entitled to the portion marked A in the plan of partition. It isthis lot which is .the subject of this action.
On November 27, 1907, Dona Gimara and her son Andris executed thebond No. 2,660 marked D 2 binding themselves to repay a sum of Rs. 500borrowed and received by them and to secure the repayment of this sumDona Gimara mortgaged and hypothecated the said lot A reciting asher title the decree in the partition action above referred to.
Three years later Dona Gimara for and in consideration of the sum ofRs. 2,000 sold and conveyed the land by deed No. 1,646 (D 3) to the mort-gagee Johannes de Silva AVeerasinghe reciting that she was selling thepremises for the purpose of paying off the costs payable- by her in thetwo partition cases and the debt on the mortgage bond No. 2,660.
The position taken up by .the plaintiffs in the Court below and as setout in their plaint was that upon the execution of the deed No. 16 ofOctober 30, 1889 (P 4), Dona Gimara was left only with the right to thepossession and enjoyment of the lands referred to and that on the death ofher son Andris in 1927 the premises by virtue of the fidei commissumimopsed on him vested in his children, the first and third plaintiffs. Asto the partition decree which in 1907 declared Dona Gimara the ownerin severalty of the lot A it was urged on the supposed analogy* of BabyNona v. Silva1 and Marikar v. Marikar'2 that the fidei commissumimposed on Andris remained operative and unaffected by the decree.
On the plaintiff's own statement of the case, Dona Gimara after .theexecution of P 4 was neither a fiduciary nor a trustee but only an usu-fructuary. It is impossible to apply the. principle of Marikar v. Marikar(supra) and the earlier case on the point except to the case of a person
»(1906 9N.L. R.251.
■ {1920) 22 N. L. R. 137.
GARVIN S.P.J.—Knsmotcathi v. Weerasinghe.
275
who while being vested with the legal title either as fiduciary or trusteehas been declared by a partition decree to be the owner. If as theplaintiffs1 say Dona Gimara was not the legal owner but only a fiduciaryher position is no different to that of a person who in the absence of thetrue owner was declared by a partition decree to be the owner. The effectof the partition decree was to declare Dona Gimara the legal owner andsince she was in fact neither a fiduciary nor a trustee the title she passedto the defendant’s predecessor was absolute and unfettered.
It was urged however in appeal that the deed P 4 was not a deed whichpassed title to Andris with the reservation of a life interest in DonaGimara but was a gift of the premises to Andris “ after her deathCounsel’s submission wns that when a perspn “'gives after his death “the effect of the transaction is such that while the donor remains vestedwith the full dominium the title passes automatically to the donee on thedeath of the donor without further" conveyance and presumably notwith-standing that the donor had in the meantime conveyed the premises toanother.
Donations to take place “ after the death of the donor ” or “ when thedonor shall die” are known to the Koman-Dutch. law. Such donationsare distinguishable from donations morti$ causa; they are irrevocableand are classified as donations inter vivos. In such cases death, it issaid, is mentioned not with the. view of making a donation mortis causabut with the view of indicating at what point of time the donor intendsthe property to be given over (Voel XXXIX., 5, 4). Such donations areonly distinguishable from testamentary dispositions in that they areirrevocable. A donation even a donation inter vivos does not necessarilypass the dominium in the subject of the donation. When the donationis perfected by tradition the dominium passes. Bu.t if the donation hasbeen effected by contract alone the donee must by appropriate actionobtain delivery and clothe himself with the dominium.
In the case of a donation such as it is alleged this is, the donor clearlydoes not intend to part either with the dominium or the possession andconsequently remains clothed with the full dominium though under acontractual liability which his heirs or his legal representative may becompelled to discharge. The donor remains the owner but in a con-tractual relationship which gives the donee a right on the death of thedonor to claim thait the subject of the gift be transferred to him.
What then is the effect of the partition decree in favour of' DonaGimara? It recognizes and confirms her title but at the same timeconverts it from an interest common in the two allotments of land intoa title in severalty to the lot A. It may be—^1 express no opinion on thepoint—that if Dona Gimara died seized and possessed of lot A an actionmay lie against her legal representative for specific performance of thedonation notwithstanding the entry of the partition decree in the interval.But when she sold and conveyed the lot A to which she was declared. the owner in severalty the remedy of specific performance would not beavailable except possibly upon proof that the purchaser took with noticeof the-deed of donation. There is no evidence that the purchaser hadsuch notice. It was suggested however that inasmuch as the deed was
27G
GARVIN S.P.J.—Kusmawathi v. Wcerasinghc.
registered the purchaser must be deemed to have had notice. Theproposition that a person who purchases land must be deemed to havenotice of other registered transactions relating to the land cannot beresorted to for the purpose of fixing a person with notice of all registeredtransactions prior in date to the entry of a partition decree. A partitiondecree, it has been said, is the start of a new title. A purchaser is notconcerned with the state of the title prior to such a decree; he. would nottherefore ordinarily make a general search of the register or take note ofany transactions prior thereto. He cannot reasonably he held to havehad constructive notice of entries in the register prior to the partitiondecree on the faith of which he purchased the premises. This line ofargument does not therefore avail the plaintiffs.
It remains to be considered whether the deed P 4 is a donation of thecharacter referred to. At the commencement of the document we findthe words “ I do hereby give and grant unto the said HewabadgamageDon Andris as a gift inter vivos the hereinafter mentioned premises. A description of certain allotments of land is next set outand is followed by the habendum—;
“ To have and to hold the said premises with their and every of‘their appurtenances unto him the said Hewabadgamage Don Andrissubject however to the following conditions: —
That this gift shall take effect after my death.
That the donee cannot alienate, sell, or encumber the property
gifted and are not liable to be sold for any debt of his.
That the shares of lands gifted by me, should after the death of
the donee descend to his children or their descendants byrepresentation according to law.
The words at the commencement of the deed are words of grant; theyimport a present grant of the interests specified. The habendum againimplies .that there has been a grant but attaches certain conditions to thegrant. Something was granted. If the words of the first condition'* that this gift 6hall take effect after my death ” be given the meaningimplicit in counsel’s contention nothing was granted and this is merely anagreement to give after death. But it is impossible to arrive at such aconclusion by any process of interpretation. There is here a clear andunmistakable grant of certain shares in the lands specified. Thehabendum directs that the donee shall have and hold the said premises.In the second condition of the habendum the donor refers to these landsas the " property gifted " and in the third as “ the shares of lands giftedThe intention of the donor to make an immediate gift of the premises isclearly manifested. It seems to me therefore that the words “ that thisgift shall take effect after my death ” must and can be given an inter-pretation consistent with that grant and the intention of the donormanifested in the language of the deed. The premises having beengranted the condition must in my opinion be interpreted as implyingthat it is only to take effect in possession after the donor's death. Itreserves to the donor a life interest. This is how it was interpreted by
GABVIN S.P.J.—Anamally GUetty v: Sidambaram Chrtty.S77
the parties to the deed at the time of the partition actions as appearsfrom the answer filed and that is how the plaintiffs in this actioninterpreted it when plaint was hied.
Dona Gimara therefore had only a usufructuary interest and mistakenlyor otherwise she was declared to be the owner by a decree which is bindingon all the world. The title she passed thereafter is unimpeachable and-those claiming under the deed of gift P 4 must fail.
The appeal is dismissed with costs.*
Appeal dismissed.
♦