LIVERA et al. v. ABEYESINGHE et al

014-NLR-NLR-V-18-LIVERA-et-al.-v.-ABEYESINGHE-et-al.pdf


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Present: Wood Benton C.J. and Ennis J.LIVERA et ah v. ABEYESINGHE ct ah
181 and 182—D: 0. Qalle, 11,672.
Fidei commits urn — Construction of will — Improvements effected by
purchaser from fidnciarius—Right to compensation.
A husband and wife* by their joint will dated August 25, 1860,devised tho land in question to their three sons, C, F, and G-, subjectto a life interest as to half in favour of the testator's wife, with the -followingprovision:" Whenmythree sons aforesaid become
absolutelyentitled theyand their posterity are at liberty
to possess and enjoy the same for ever, but they and their heirsarerespectively restricted from selling, mortgaging, or otherwise
alienatingthe same,and thesameI hereby entail as a fidei com-
missum." There was also a provision that should any of the sonsdie without issue, their widows should possess the entailed property,with the sanfe restrictions, in proportion to their respective shares,and that after their respective deaths the entailed property was torevert to the children of the testator npon the same restrictions.
Held, that the joint will createda valid fidei commissum for the
full period allowed by law.
* A mala fide possessor is not- entitled to compensation for usefulimprovements.
A purchaser from a fiduciary heir cannot claim compensationfor useful, improvements from the fidei comissarti.
fjl HE facts are fully set out in the judgments.
SamaTawickreme, for second defendant, appellant.
Bawa, K.G. (witfi him f#. IF. Jayewardene), for first defendantrrespondent.
Bawa, K.G. (with him E. W. Jayewardene), for first defendant,appellant.
SamaTawickreme, for second defendant, respondent-.
Cwr. adv. vult.
October 6, T0R. Wood Renton C.J.—
This is an action to partition a land called Orphoowewatfarand situated at Dangedara, in the District of Galle. The facts-material to the issues involved in these appeals are as follows. Theproperty belonged to Petrus Dias Abeyesinghe Siriwardene and his
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1914.
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Rboton CU.
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wile Amoldina Angenete Tennekoon, who dealt with it in theirjoint will dated August 25, 1860. In this mil the testator, aftervarious legacies, proceeds to dispose of the movable and immovableproperty, which he had inherited from his parents, in these terms
IS. I, the testator,give andbequeath tomy secondwife,Amoldina
Angenete Tenneboon, the testatrix, one-half of the houses and premises(in) which I now reside, called Orphoowewatta, surrounded by walk,within whichthe saidpremises stand, one-halfof thegarden Maawate-
watta, the field Stoodurakumbure, and the adjoining field Oodeirewatta,situated at Akroimana, to he possessed by her during her naturallife in trustfor mythree sons hereinbeforenamed,CornellsJacobis.
Frederick, and George, andafter thedeath ofmy said secondwife the
above legacy to revert to them free of all encumbrances.
19. I, the testator,give andbequeaththeotherhalfof mydwelling-
house and garden Orphoowewatta, andtheotherhalfof the garden
Maawatewatta,to mythree sons hereinbeforenamed,to bepossessed
by them as hereinafter mentioned.
SO. I, thetestator,will and desire, whenmy three sonsaforesaid
become absolutely entitled to my dwelling-house and garden Orphoowe-watta, surrounded' by wall,and theirposterityare at libertyto possess
and enjoy the same for ever, but they and their heirs arc respectivelyrestricted from selling, mortgaging; or otherwise alienating the 6ame,and the same I hereby entail as a fidei commission.
21. 1, thetestator,also desire that therest and residueof my
movable and immovable property shall be equally divided between mythree sons aforesaid upona propervaluation, excepting' theright and
interest 1 have in the property of my second wife renounced andbequeathed as above.
23. Shouldanyof mysaid threesons die without issue, 1willand
desire that their widows, who may survive them, shall be at liberty topossess the entailed and all the other landed property which they mayinherit frommyestate,with the restrictions hereinbefore setforth,in
proportion to theirrespectiveshares,andthataftertheirrespective
death? the same to revert to my children in (sic) their legitimate issueupon the like restrictions as hereinbefore entailed.
S3. I, the testator, dohereby restrict my three eons from selling,
mortgaging, or otherwise ' disposing of any ianded ' property which theyshall, inheritfrommy estate, or gireto them by me as a legacy toany
stranger out of any lineage.
The testatordiedin 1881,apparently predeceasedbythe
testatrix. Of the three sons named in the will, Cornelia haddied in 1880, leaving a daughter, Mary de Livers, the mother ofthe plaintiffs, and of a son, Victor, in addition to the plaintiffs;Frederick died about ten years ago, survived by his widow, the firstdefendant, who by virtue of clause 22 of the will has a life interestin a one-third share of the property; while George died unmarriedafter the decease of his two brothers. On August 26, 1908; duringthe lifetime of Frederick and George, Mary gifted her one-third shareto her son Victor, who on the same day transferred it- to the second
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dele xiant, Kad&avaei Chetiy. By a tliird deed of even date Maryand Viator agreed to transfer to the second defendant the remainingtwc thirds share, after tire death of Frederick and George, for thesum of Be. 18,883, the agreement providing for the immediate partpayment by the second defendant of Bs. 3,333 of the consideration.If the conveyance of the outstanding two-thirds share could not beobtained, fills latter sum was to be repaid to the second defendant,together with the value of aft improvements effected by him upou theprojfeiriy. The option raised in appeal No. 181 is whether the jointwill iid not crease a fidei commission, which would have the effect ofprevonfisg Mary from disposing of the property, and from conferringany power of disposition over it to her son, to the prejudiceof file other heirs. The learned District Judge has answered finsquestion in the affirmative, and'I .think that he is right.
The testator was dealing with ancestral property. He expressly■ purports in clause 20 to “ entail it as a fixlei commission **; and hisclear intention, in my opinion, was to do so for file full periodallowed by the common law. The will was anterior in date to. andis not affected by the provisions of, the Entail and SettlementOrdinance, 1876 (No. 11 of 1876). The same construction—although a decision on the point* was unnecessary—was put by theSupreme Court on the clauses of the will with which we are hereconcerned: in 166—D, C Galle, No. 11,673 (see 17 N. L. B. 289)." Here, M said Sir Alfred Lascelles C.J., " we have a complete fideicommission created as regards the house and garden, the intentionbeing that file restraint on alienation should last for the full periodallowed by law, that is, for four generations, the will having bee*made before (he Ordinance No. 11 of 1876. fl Mr. Saniarawickremeto file second defendant, contended, in the first place, that filelanguage of clauses 17-SB of the will was too vague to create a fideicommissum, that there was an inconsistency between the words€< posterity ” and " heirs " in clause 20, and that there was no clearindication of the persons beyond immediate heirs who were to beaffected by the prohibition of alienation; in the second place, thateven if there was a fidei commissum, clause 23 showed that it wasconfined!*) the testator’s three sons; and in the last place, that inany event Mary became entitled, on the deaths of Frederick andGeorge, to the entire land, subject to the life interest of the firstdefendant.
I have already dealt to some extent, by anticipation, with thefirst and second of these arguments. The intention of the testatoris clear. He meant to keep the property in the family for as longa period as file law allowed as the term of a fidei c'ommissum. Suchvariations of expression as we find in file use, in one place of theword '* posterity, ** and in another of the word " heirs, ” arecommonly to be met with in wills of (his kind in this country, andare due to the desire of the draftsman sometimes .to attain a suppor
1914.
Wood
Ksktox C.J.
Livcra v.Abcywngkz
1914.
Wooo
Bkntok C.J.
Vwera v.Abey&inght
( 60 )
literary effect, sometimes to be as comprehensive as possible indefining the scope of the prohibition. The fact that clause 23imposes a prohibition, of alienation on the testator's three sons onlycannot be regarded as confining the fidei commmum to them, inview of its unequivocal extension to their " heirs ” and “ posterity ”by clause 20. The answer to Mr. Samarawickreme's last argumentis that Mary was herself an heir, and on George's death took hisone-third share, as she held that of Cornelia, burdened with thefidei commisaum. Perera v. Silva,1 to which Mr. Samarawickremereferred us, is clearly distinguishable from the present case. InPerera v. Silva1 the property was to devolve on the issue ofthe legatees “ without any restriction whatever. " Neither sideaddressed us on the issue as to estoppel. But the fact that in thelast of the three deeds of August 26, 1908, Mary Victor, and .thefirst defendant expressly recognized that there was an entail infavour of the two surviving sons, and agreed to procure the assentof the heirs to its being broken is, as the District Judge has said,in any event a piece of evidence that weighs heavily against them.
The questions iuvolved in appeal No. 182 are:(1) Whether or not
the first defendant has improved the property, and (2) if so, is heentitled to any, and what, compensation ? The learned DistrictJudge answers both questions in the affirmative, and fixes thecompensation at Bs. 5,456.08. The first defendant, who is therespondent in appeal No. 182, abandoned at the argument a con-tention put forward in his own petition of appeal that the amountawarded to him was insufficient. We cannot, in my opinion, differfrom the carefully worked out conclusion of the learned DistrictJudge, basejd as it is on reliable evidence, as to either the fact or thevalue of the first defendant's improvements. The learned DistrictJudge has. however, held that, the first defendant; was a mala fidepossessor, that none of his improvements were impensm neceaaarim,that he is entitled to no compensation for impema voluptuaria,hut that, in spite of his mala fide®, he has the right either to remove,or to receive compensation for, impensm utiles, the category towhich the improvements in respect of which compensation has beenawarded belong. The decision of .this Court in The General CeylonTea Estates Co.t Ltd., v. Pulle 3 is an express authority binding uponus, that a mala fide possessor is not entitled to compensation for use-ful improvements, and the passage in Mr. Justice Pereira's Laws ofCeylon (p. 452), to which Mr. Samarawickreme referred us, does notshow that a fiduciary heir, still less that a purchaser from such anheir, can claim compensation for such improvements as we have todo with in the present case. It deals only with money spent forthe permanent preservation of buildings, or the restoration of thosewhich have been burnt down or have fallen in.
I agree to the order proposed by my brother Ennis.
1 (1913) 16 N. L. R. 474.* (1907) 9 N. L. R. 98.
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Ennis J.—
This was an action for the partition of a land which passed underthe joint will of one Petrus bias Abeyesinghe Siriwardene and hiswife to their three children, Cornells, Frederick, and George, subjectto a life interest as to half in favour of the testator's wife, with thefollowing provision (clause 20): "When my three sons aforesaid
become absolutely entitled they and their posterity are at
liberty to possess and enjoy the same for ever, but they and theirheirs are respectively restricted from selling, mortgaging, or other-wise alienating the same, and the same I hereby entail as a fideicommissum. ”
There was also a provision that should any of the sons die withoutissue, their widows should possess the entailed property, with thesame restrictions, in proportion to their respective shares, and that-after their respective deaths the entailed property was to revert tothe children of the testator upon the same restrictions.
Cornelia died in 1880, before his father, leaving a daughter Mary.Mary had five children, the four plaintiffs and a son, Victor. In1908 Mary gifted to Victor one-third share of the property, whichVictor the same day transferred to the second defendant. Maryand Victor also entered into a further agreement (P 6) to .transferto ihe second defendant the remaining two-thirds upon the deathof Frederick and George.
The second defendant entered into possession and proceeded touse the property as a building estate, expending considerable sumsof money in so doing.
Frederick died leaving a widow, the first defendant, who granteda lease of her life interest in one-third of the property to the seconddefendant. George died unmarried.
Victor died before, his mother. Mary died in 1912, andher remaining children then brought this action, claiming to beentitled to a life interest in two-thirds of the property and askingfor partition.
The learned District Judge found in favour of the plaintiffs asregards title, and granted the second defendant compensation forimprovements. The second defendant appeals against the findingthat the plaintiffs are entitled to a life interest in two-thirds of theproperty, and the plaintiffs appeal against the award of compensationto the second defendant.
The first question for consideration is whether the joint will ofPetrus and his wife created a valid fidei commiseum for the fullperiod allowed by law. In my opinion it does. The intention ofthe .testator is clearly indicated if one considers all'the terms of thewill."The use of the word " absolutely " in clause 20 must be readin the light of the 18th clause, which gave a life interest in half theproperty to the wife of the testator. The provision of the lifeinterest for the widows of the children who died without issue, the
1914.
Livera v.Abtyedngh*
( 62 )
1914.
Ekbxa J.
lAvera v.Abtytsittghr
provision in the 28rd clause restraining the sons from alienating anyof the landed property to strangers, the restriction on alienation inclause 20 imposed on the testators’ children and their heirs, andthe entail as a fidei commissum in the same clause show a clearintention to create a fidei commissum for the full period allowed bylaw. This view was also held by Lascelles C.J. in No. 166—D. C.Galle, No. 11,678.
As to the question raised in .the plaintiffs’ appeal, Mr. WalterPereira in his book on The Law relating to the Right to Compensa-tion for Improvements {1909) has summarized the law of Ceylonon the subject. A mala fide possessor has no right to compensationfor improvements, unless the owners have expressed their consentto the improvements being effected, or have stood by and allowedthem to be effected without notice (pp. 83-36, 45-47).
The agreement, P 0, between Mary and Victor on the one partand the second defendant on the other mokes it clear thatthe second defendant was fully aware of the position. It recitesthe entail from Petrus. The parties of the first part agreed tosecure the consent of .the heirs of Mary to break the entail, and incase of their failure to obtain that consent, or “ in case of any disputeon the part of the said heirs, who are the only persons eutitled to thesaid premises, ” the parties of the first part agreed to pay compen-sation for all improvements made and all buildings put up by thesecond defendant. The second defendant therefore knew that theerection of the buildings for which he seeks compensation would bean infringement of the rights of the heirs. The possession of thesecond defendant was therefore mala fidet and the rule laid down inthe case of The General Ceylon Tea Estates Company, Ltd., v.Pulle, 1 which is binding on us, precludes the second defendant fromrecovering compensation from the plaintiffs.
I would dismiss the first appeal, and allow the second appealwith costs.
Appeal dismissed.
Appeal allowed.
i (1907) 9 N. h. R. 9S.