018-NLR-NLR-V-51-LEWIS-APPUAppellant-and-PERERA-Respondent.pdf
1*4*
Pretext:
LEWI* AVPU, Appcftant. and PEKfiRA, ftfsp—bwt
C. 453—D. CL CUw*>, *,7«
Filet wwmaont—iVt»aagm syeintf soft or a>art»a/» »:«!y—
Effect *f pmrtiM pn/ubUicm Op * 2> Ml ktr lytMlnf cMfitti,fol dfciMrm,eiwwftri, Wiiiiiifrirfiri «il iiwtjwi—Ccrtmmtjf
cf bmrJMcri**- Time *f wcc&rnf.
Bfr <Mrf||pftFI Mrtaia property was gifted to D in the Mining
“Al of which (the promises) 1 t-ho mil H in cooddoraUoa of thehelp that it befog readerod to me do hereby give end great by way ofgiib to 1>. And theraTaro 1 do hereby deeUto that I hero given nod«raniol unto the said D and her children end graod-AiMren who amiter descendants* hens, executors, admmiAtrUors nod wsigns, the fullpower to yiiweem nod oajoy «ho ask) promise* subject cn the paymonts,if any, to «he Government. And I also doctors that the said propertyshall only be pnssomerf and eajoved m aforesaid but the same shallnet be sold nr mortgaged-"
Held, that the doed did nob create a juLiicoTAJfttceum for the reasons—
that Um prohibition against alienation Was only partial and theinference wan that the acts which were not prohibited were permitted.
that there ww no dear designation of the beneficiaries nor thetimo of vesting-
£-KAGAT.-INOAM J.«—f.eivu App't **. Ptrera
^.PPEAL from a judgment of tho District Judge, Colombo.
H. Wikra-manayabt, K.C., with FI. A. KoatUgoda, for seconddefendant- appellant.
C. IL Jaycicardent, for plaintiff respondent.
Our. adv. wit.
March 29,1949. Nagaungam J.—
This is an action for the partition of an allotment of land calledMiliugnhawatta depicted in the plan filed of record. Admittedly tholand belonged to one Christina flamy who by deed PI of 1849 gifted toone iJotehihsmy subject to certain conditions which, according to thosecond defendant appellant and tho plaint,ilf respondent, created avalid Jkleirownimitt! while, according to the thud defendant respondent,thoy were inoperative to subject- the bind to All" such burden.
On appeal the third defendant respondent w-»s not represented. Thepoint of contest between t ins second defendant appellant and tho plaintiffrespondent centres round tho question uhet.Uec rhe word* children andgrand-children ” in the clause sshl In designate the jtdeicontMi&xtriiinclude an illegitimate child or grand-chi'd. It is tomrnon ground thatDotehihamy boil an only child, Davirh Appu who had (wo children,Mangohamy »nd Mohottuippu. AI:»:igol;.*imy had a child, tScctiappu,who according to tho second defendant appellant was an illegitimateeliilil but- according to the plaintiff respondent v*s not-. The learnedJudge has taken the view that S’c«:ti.*pj>ii was r.o bh^itlniate child andon the facts established it is difficult to say that the finding on thispoint is orvuvwvrs. Scet-iappu married the first defendant by whomhe had a daughter, Carolino, who was married to tho plaintiff. It isconceded that Caroline’s interests haw, in the events that- have happened,vested in tlte plaintiff'. .M'ohottiappu had ah only child, bonis, tho seconddefendant. The third di.'iV.idmit is the purchaser of iin’tnin interest®from t ho find defendant.
Before the ooutoet raised by Che plaudiiV and the second respondentcan be considered, it must first be ascertained whether in fact tho deedPI creates ajUkicotuminsvm, for if it does not, tho problem raised by theplaintiff and tho second defundaiit will not- arise. Tho learned DistrictJudge has lickl that tho deed mates a valid fdcifo.wnisxutH extendingto four generations.
The first question. therefore, that arb><s for condderatton is whetherthe deed PI ereites a valid fideicomntisfiun. fiofoto a j^t'commiMHmcan bo said to have effectual ojxwation, it nnot be shown, firstly, thattho donee or legatee has not been empowered or permitted to make Anyvalid (Ii–position of the property, secondly, that some event or condition
NAGALINGAM J.—Latvia Appu v. Pcreru
93
is indicated or provided on the happenin'.' or performance of which ihoproperty is to vest in the fideieommissarii and thirdly, a clear indicationof the jideicommissarii. It is usual to state the first requirement set outabove in a slightly different forn by formulating that the propertymust be shown to havo boon vested not absolutely in tho donee or legatee.For the purposes of tho present ease and having regard to tho term? ofthe deed PI, J have deemed it necessary to state the proposition in thoway I have dono in order to emphasise the point that although thoproperty may not have vested absolutely for all purposes in the doneeor legatee, nevertheless, the title conveyed to tho donee or legatee maybe such that within the limitations imposed it would bo permissible forthe donee or legatee to deal lawfully with the proj>erty, and to clisnosoof it, by a valid conveyance which cannot bo said to have boon in anyway discountenanced by the conditions subject to which the gift wasmade.
The material parts of the deed Pi are—
-Ah of which (the premises preccdeiitiy described) I the said
Nahallage Dona Jacobi Christina Haminc in considerationof tho help that is being rendered to me do hereby give andgrant by way of gift unto Nahaliage Dochihatuy of Mrdiaraaforesaid.
And therefore I do hereby declare that I have given ami granted
unto the said Nahaliage Dochihamy and her children andgiund-i’-hildren who arc her descendants, heirs, executors,administrators and assigns the full power to posses? and enjoytho Baid portion of Millagahuviitta within tho boundariesaforesaid subject to the payments if any to the Oovwnniont.
And I also declare that the said property shall only bo possessedand enjoyed as aforesaid but the same shall not he sold ormortgaged.
Passago C set out above, it will bo noticed, prohibits only a sale ormortgage but does not prevent certainly a gift or a doviss by Last Will,and it is doubtful whether nn exchange falls within the prohibition. Agift or doviso, therefore, by tho donoo, Dotchilmmy, would appear Lo bovalid, and in suoh an eventuality tho fid&icMtmnissum intended to bocreated would bo completely frustrated. But it may be said that thorofcrenco not- only' in tho passago C but also in passago B sot out aboveto not only the donee but her children and grand.children possessing andenjoying the premises must necessarily imply that every form ofalionation was intended to be prohibited, for otherwise, tho childrenwould never acquire the right to possess and onjoy tho land, bn l thiswould be a method of approaching tho construction of a clause byreference to the result and would have the effect of incorporating into thoclause words not to be found therein. But this is not tho case of a LastWill where such liberties may sometimes Iks taken with the languageof a testator. This is a deed of gift inter vivos and it is not permissibleto enlarge the scope of the words used in order to arrive at tho intention.A deed must be strictly construed and where tho donor has taken pains
£i'NAGAJ.INGAMAppu v. Percra
to j.inhibit only a sale or mortgage it would bo doing violence to theordinary rules of interpretation of a deed to hold that tho donor ;n‘:;;id<dto prohibit a gift or devise. A little reflection will, howe.vv, show thattbcr« may lu-vo I iron very good reasons which actuated her for notprohibiting a gift. Particularly in this country whoro dowries arcprovided for daughter, a donor may have thought it not merely uu-objectionable but definitely advantageous that the donee should havethe right to gift the land to one or more of hoc daughters. It is thereforenot possible to uphold the contention that ; .oioly because the donuoand the intended fidciccmr.jbisarti arc merely enjoined to possess andenjoy t he land, thorefurc a gift or devise is also prohibited.
It is, however, true to nay that a prohibition against alienation is notnecessary to create a valid ftdw.ommvtaum provided, however, thebeneficiaries are designated with certainty and the condition, upon whichthe beneficiaries aro to take is also clearly indicated or where tho fitUi-comniwvm is in favour of the family of the donor or testator. In tinscase, had tho clause constituting the prohibition not boon enacted thisprinciple may have been given effect to, bub where there is a partialprohibition the effect of that partial prohibition is sufficient to repelany cor. font-ion tbr-t may otherwise tightly bo based upon the totalabs-erice of a restrictive clause and leaiis f.o the inevitable infereiico thatsuch acts as arc not prohibited were permitted. As the douce, therefore,has not been prevented, from gifting the property to anyone she choose:*to or deviating tho property to a legatee, a valid Jfcfeicommissitxtt cannotbe rm&ted and the donee must bo held to have taken the |>rojicrtyabsolutely and that tho devolution on her death was according toordinary rules of succession 06 inleMaio.
It is also a matter of very great doubt .ui to who the fidcicommiM-rriiare whom the donor had in mind wltcn she intended to create a Jidzi-cemrnuunon, of which intention, however, thoro can be little doubt.Can passage B be regarded as the clause which designates the personsto be benefited, for there is no other clause from which assistance can bederived ? I rather think that passage B was intended to amplify andhas the effect of performing the same funct ion as passage A and that is tovest the title in the donee with a view to burdeuing the property with afidcicommiMuin. Passage 0, according to the translation made by thelearned District Judge, runs as follows:—
“ Therefore 1 declare t hat subject to the dues payable to tin Govern-ment in respect of the said portion of Miitagahawatta bouiulcd ashereinbefore mentioned I have hereby assigned the right to possessthe said land to Kahallagc Dotchi Hamy and her descending children,grandchildren, heirs, executors, a<loiinistrators and assigns, &c."
This passage cannot be said to have as its objective the indication ofarty persons to bo benefited, for evoii as translated by the District Judgethe passage merely says that tho donor bus assigned the right to possessthe property to Dotehihnir.v, her children, grand-children, heirs, executors,administrators and assigns- There is no indication here that apart fromconveying the right to possess to certain speoified persons any idea ofbenefiting anyone of them at the expense of any other of them can be
NAGALINGAM J.~r.c<u;V A'PJM V. Perem8.*
gathered. But even assuming for the purpose oi argument that thispassage £ indicates the fahicommistiaHi, it is not possihlo to tuko theview that- the fdeicotninissurii are designated with sufficient clarity, forthe beneficiaries must bo deemed to be not only tho clrildrcn and grand-children of Dotchihainy but also her hc»r«, executors, administrators andassigns.
It may be 6aid that- the jideiconmissvm was intended to bo created infavour of the members of the family of the donor, by reason of tho expressreference to hor “ descending children and grandchildren.” But thecollocation of the -words " heirs, executors, Administrators, and assigns ”with tho words “ children and grandchildren ” in the clause designatingthe fideicoviinissarii, completely negatives this conlcnVkm. See Silvav.Sika1.
Nor is there anything in tho passage which assists one in determiningthe point- of time at which any class of beneficiaries is to be benefited.Had words such as “ in perpetuity ” or “ under the bond of jideievm•mitttvm ” or “ from generation io generation ” been used, then it mayhave been possibly to contend Vast the death of the persons in eachclass commencing will) ri-o death ul' the donoo was the even*; eouto:r«-pjafed by the instrument-. But lic.x- there is an absence of reference toany event or condition upon which the property is to vest in any of theclasses of beneficiaries. Assuming that the children are to »>c the firstJldeir.fimmis.9ani when is the property to vest in them ? Is it on thodeath of tho donee ? No words such as “ after toe death of the doneethe children are to possess or are to bo vested with tho property ” are tobe found in the document. Or, arc the children to become vested withthe property in the event of the done© selling or mortgaging tho propertycontrary to the conditions imposed ! It seems to me, therefore, from aconsideration of those various matters to be tolerably dear that tho deedFI cannot lie said to have created a yeMdfidcic&mmissum.
This disposes of the question raised on tho appeal. But oven assumingthat there was a valid Jidc.icommissuni, it is difficult to sec that thefiAcicommi8sv.ni extended to four generations. The only inference from areeding of the passago B is that the persons, if any, in whose favour thefideicommisfium, if at all, was intended to bo created were (1) Dotchi-hamy’s children, and (2) her grand-children. But there is no indicationwhatsoever that the property was to be fettered in the hands of tho• grand-children, for tho benefit of anyone else. 800 Ramaranzynke v.Sencvimtnc2. Tho grand-children, Afangohamvand ASoltottihamy, there-fore, took the property absolutely. CM Mangoimtuy’s death fcetiapputhough illegitimate would have been entitled to succeed to hor share asthe mother makes no bastard. In either view, whether it be consideredthat there was a valid fideAcommUmnt or not, on Seetiappu’s death hiswidow became entitled to half his interests and Caroline to the remaininghalf. Tito deed #D2, therefore, from the first defendant would beoperative to convey the interests of the first defendant. Caroline’sinterests have vested in the plaintiff. It is needless to oltserve that thosecond defendant became entitled to his half share absolutely.
» {JOU) IS N. L. n. 174.* (VJ47) 4S N. L. R. 605.
8*JWIJEYToVARDE'N’E C.J.—Mohamtd v. Snhul Hnmmd
Docreo wl!! therefore be entered allotting to each of the plaintiff andthe third defendant a £ share of the land aud to the sooond defendant ai share. The order of the District Judge vith regard to improvement* andplantation will stand, subject to the modification that the third defendantwill be allotted the building marked No. 1 on Lot A, and the orderdirecting tho third defend:] nt to remove the said building;; will he deiotod.
18eo no reason to interfere with the order for costa made by the loamodDistrict Judge. Tho second defendant appellant will pay tlw cost* ofappeal to tho plaintiff* respondent.
Windham J.—i agree.
A ppe.nl dismissed.