BAS1NAYAKE, C-J.—Ekanayake v. Ranaweera
Present: Basnayake, C.J., and Pulle, J.
M. M. MOHAMED, Appellant, and SITTI CADIJA et al., Respondents
8. £7. 292—D. G. Colombo, 7841(L
Fideicommissum created by will—Posthumous child born to testator—Testator's lawfulheirs designated as entitled to take their respective shares accordingto the Shape sect—Testator's children's grandchildren designated as ultimatefideicommissaries-—-Division of properties between testator's widow and childrenincluding posthumous child—Ydlidity of conveyance to posthumous child—Prescription against a fideicommissary-—Burden of proof—PrescriptionOrdinance (Cap. 55), proviso to s. 3.
A fideicommissum by will executed on 12th December 1872 by a testator(a Muslim) who died in 1876 provided as follows :—
“ I do hereby will and desire that my wife—, and my children—(5 sons and2 daughters), and my father—, who are the lawful heirs and heiresses of myestate shall be entitled to and take their respective shares according to myreligion and Shade sect—to which I belong, but they nor their heirs shall notsell, mortgage or alienate any of the lands, houses, estates or gardens belongingto me at present or which I might acquire hereafter, and they shall be held
1 (1935) 37 N. L. R. 57.
Mohamed v. Sitti Cadija
in trust for the grandchildren of my children, and the grandchildren of myheirs and heiresses only that they may receive the rents, income and produceof the said lands, houses, gardens and estates without encumbering them inany way or the same may be liable to be seized attached or taken for anyof their debts or liabilities, and. out of such income, prodnce and rents, afterdefraying expense for their subsistence, and maintenance of their familiesthe rest shn.11 be placed or deposited in a safe place by each of the party, and.out of such surplus lands should be purchased, by them for the benefit anduse of their children and grandchildren as herein before stated, bnt neitherthe executors herein named or any Court of Justice shall require to reoeivethem or ask for accounts at any time or under any circumstances, except attimes of their minority or lunacy.
I further desire and request that after my death the said heirs and heiressesor major part of them shall appoint along with the executors herein namedthree competent and respectable persons of my class and get the movableand immovable properties of my estate divided and apportioned to each of theheirs and heiresses according to their respective shares, and get deeds exe-cuted by the executors at the expense of my estate in the name of each ofthem subject to the aforesaid conditions. ”
A “ posthumous ” child was horn to the testator after the execution of thewill and before hi« death. The testator’s father predeceased the testator.
In the testamentary case following the death of the testator, a division of theproperties of the testator was effected in 1378 by the executor between thewidow and children of the testator, with the sanction of Court. In that divisionthe property, which was the subject matter of the present action, was conveyedto the eighth and posthumous child of the testator on the basis that each of thesix sons (including the posthumous child) was entitled to 2/16th of the estateaccording to the rules of intestate succession under the Muslim law. From 1878onwards the posthumous child and his heirs were in possession of the premisesas owners.
Held, that the conveyance by the executor of a share of the estate to theposthumous child, represented by the property in suit, was not in direct oppo-sition to the terms of the will. Sven assuming that those charged with thedivision of the estate might have been wrong in placing the posthumous childin the same class of beneficiaries as his brothers, it was too late now to impugnthe conveyance effected by the executors in 1878 with the sanction of theCourt.
Held further, that prescriptive possession cannot commence against a fidei-commissary until the date on which full title vests in him. Under the provisoto section 3 of the Prescription Ordinance the burden of proving the date ofvesting of such title is on the fideicommissary.
/APPEAL from a judgment of the District Court, Colombo.
S. V. Perera, Q.C., with B. A. JR. Candappa and Miss Maureen Senevi-ratne. for the plaintiff-appellant.
H. W. Jayewardene, Q.C.. with I). JR. P. Goonetillelce and G. P.Fernando, for the defendants-respondents.
J. B 22X16 (2/60).
Cur. adv. mdt.
PUIXE, J.—Mohamed v. Siiti Cadija
March 4, 1959- Pun,®, J.—
The appellant is the plaintiff who sought a declaration of title to 1 /42share of a property "bearing assessment Nos. 35/37, Queen Street, Fort,which he has valued at Rs. 357,000. He also prayed for judgment againstthe three defendants in a sum of Rs.900 being his share of the znesneprofits from 1st April, 1953, to the date of action and damages at therate of Rs. 25 per month. Admittedly the original owner of the propertywas one Isboe Lebbe Idroos Lebbe Marikar who died cm 8th May, 1876,leaving a last will No. 7130 dated 12th December, 1872, which was dulyproved. This will had given rise to much litigation, the principal contro-versy being whether it created a fideicommissum or not. The questionwas finally resolved by tbe Privy Council in an action affecting the veryproperty wherein it was held that the will did create a fideicommissum.
The plaintiff is a grandchild of one Mohamed Usboe, a son of the testator,and claims to be entitled to a share of the property as one of the ultimatefideicommissaries. The defendants claim under another son of thetestator named Abdul Hameed to whom the entirety of the property insuit was conveyed by deed P2 dated 19th February, 1878, in tbe courseof a division of the properties of the testator between bis widow andchildren. In regard to this deed P2 the position of the plaintiff is thatit was inoperative for the reason that Abdul Hameed was not a beneficiaryunder the will and that those who purported, in the course of the divisionreferred to, to convey any of the testator’s properties to Abdul Hameeddid so in excess of their powers and that, therefore, the property in suitcould not pass to the successors in title of Abdul Hameed. The case forthe plaintiff rests principally on the fact that at the time of the executionof the will in 1872 Abdul Hameed was not bom. He is described as theposthumous child of the testator. It is undisputed that since 1878the property has been in the possession of Abdul Hameed and bis heirs.The learned District Judge held that the defendants had acquired a titleby prescription. He held further as follows :—
“ Moreover the division effected in 1878 has been acted upon by allthe parties up to date and that division should not now be disturbed,(vide 1 N. L. R. 311). That division was with the consent of court andthe acquiescence of all the heirs and heiresses will now be binding on allthe parties and the heirs. ”
The beneficiaries expressly named in the will are the widow of thetestator, his father TJduma Lebbe "Usboe Lebbe and the seven childrenliving at the execution of the will. The portion of the will relevant tothis appeal is as follows :—
“ I do hereby will and desire that my wife Assenia Natehia, daughterof Seka Marikar, and my children Mohamadoe Noordeen, MohamadoeMohideen, Selma Lebbe, Abdul Rahiman, Mohamadoe Usboe, AnsaNatehia, and Savia Umma, and my father Uduma Lebbe Usboe Lebbe,who are the lawful heirs and heiresses of my estate shall he entitled toand take their respective shares according to my religion and Shafie
PULLE, J.—Mohamed v. Sitli Cadija
sect—to which I belong, but they nor their heirs shall not sell, mortgageor alienate any of the lands, houses, estates or gardens belonging tome at present or which I might acquire hereafter, and they shall beheld in trust for the grandchildren of my children and the grand-children of my heirs and heiresses only that they may receive therents, income and produce of the said lands, houses, gardens and estateswithout encumbering them in any way or the same may be liable to be-seized attached or taken for any of their debts or liabilities, and out ofsuch income, produce and rents, after defraying expense for their sub-sistence, and maintenance of their families the rest shall be placed ordeposited in a safe place by each of the party, and out of such surpluslands should he purchased by them for the benefit and use of theirchildren and grandchildren as herein before stated, but neither theexecutors herein named or any Court of Justice shall require to receivethem or ask for account at any time or under any circumstances, exceptat times of their minority or lunacy.
I further desire and request that after my death the said heirs andheiresses or major part of them shall appoint along with the executorsherein named three competent and respectable persons of my classand get the movable and immovable properties of my estate dividedand apportioned to each of the heirs and heiresses according to theirrespective shares, and get deeds executed by the executors at theexpense of my estate in the name of each of them subject to the afore-said conditions. ”
For the present it suffices to state that Abdul Hameed, the eighth andposthumous child, is not named as a beneficiary and that the seven namedchildren and the testator’s wife and father are to be entitled to and taketheir respective shares “ according to my religion and Shafie sect Hadthe testator not made a will both his widow and his father, if surviving,would have been co-heirs with the children according to Muslim law.
The will was admitted to probate on the 19th May, 1876, and the ad-ministration of the estate of the deceased was committed to the solesurviving executor, Mohamed Mohideen, the second son named in thewill—3 1)1. The testator’s father, TJduina Bebbe Usboe Lebbe,predeceased him.
The events leading up to the execution of the conveyance P2 in favourof Abdul Hameed are set out in that deed. Three persons said to becompetent and respectable and of the same station in life as the testatoralong with the surviving executor were commissioned by court on the14th June, 1877, to effect a division of the estate on the basis that thewidow was entitled to 2/16ths, each of his six sons (i.e. including AbdulHameed) to 2/16ths and each of his two daughters to l/16th. By itsorder dated 11th September and 5th October, 1S77, the executor was“ ordered and empowered ” to pass conveyance to the heirs in terms of thescheme of distribution drawn up in pursuance of the commission issuedon 14th June, 1877. The deed P2 while conveying the property to AbdulHameed embodied verbatim the trusts and conditions set out in the will.
PTTLU3, J.—Mofiamed. v. Sitti Gadija.
Wli.etb.er P2 created a fideicommiasum or not arose for decision, in eon*nexion 'with the execution of a mortgage bond executed by Abdul Hameedas security for a loan given by one Peter de Saram. Pursuant to a salein exeuction of the mortgage decree the property was purchased by thelegal representatives of de Saram who had:been substrtuted'in his place.The 1st defendant in the present case and other descendants of AbdulHameed refused to give possession of the property to the purchasers onthe ground that the mortgagor had no more than a fiduciary interest.The case went ultimately to the Privy Council which held, as statedpreviously, that the will created a fideicommiasum. The question whetherAbdul Hameed was a beneficiary under the will was not in questionfor the obvious reason that it was in the interests of Peter de Saram notto challenge the validity of the conveyance P2. The finding of the trialJudge in the preseat case is that Abdul Hameed was not a beneficiaryunder the will. He stated,
“ The defendants’ father Abdul Hameed is not named in the lastwill. He cannot be considered as heir under the Last Will—vide(1876) 3 Chancery Division 300. But whether he was an heir or not hehad been allotted a 2/16 share in the scheme of distribution 3 D2 andhe has been given a deed in his favour in respect of the premises—P.2.Prom 1878 onwards admittedly Hameed and his heirs have been inpossession of the premises as owners. The question arises whether thedefendants can claim the premises in dispute by right of prescription.
On the issue of prescription he reached a finding adverse to the plaintiffon the following basis. Under the will the rights of the grandchildrenof the testator’s children, as fideicommissarii accrued on the death ofthe children of the testator. The grandfather of the plaintiff, MohamedUsboe, died in 1906 and, therefore, prescription began to run against,him from this year and not from the death of his father in 1952. As-the defendants had proved that they had been in possession for 10 yearsbefore the institution of the action, the plaintiff could succeed onlyon proof that his title accrued within this period of 10 years. He reliedon the decision of the Privy Council in Mohamedaly Adamjee v. HadadSadeen.1 This action, D. C. Colombo case No. 5951[L, related to aproperty which had, in the division of the testator’s estate, beenconveyed in 1888 by the executor to Savia Umma, a daughter of thetestator. In D. C. Colombo case No. 5706/L the grandchildren,of Savia Umma obtained a decree for sale under the Partition Ordi-nance, No. 10 of 1863, without making the person in possession, namely,the plaintiff in case No. 5915/L a party. Savia-Umma had mortgagedthe property and in pursuance of a decree to enforce the mortgageit was sold in execution and purchased by one Leonara JTonseka throughwhom the plaintiff in case No. 5915/L claimed title. The plaintiff"in case No. 5915/L then instituted the action to have the decree incase No. 5706/P set aside. In the alternative he claimed damageswhich he estimated at Rs. 100,000. It was found that the decree inthe partition action had been obtained fraudulently and collusivelyand the question which fell ultimately to be determined was the
1 [1957) 58 N. L. B. 217.
PT7LLE, J.—Mohamed v. Sitti Gadija
quantum of damages, which again rested on the question whether theplaintiff in case No. 5915/L had at the institution of the partition actionacquired a title by prescription. There was no evidence as to timeat which the parties to the partition action as fideicommissary heirsof the testator, acquired title. In the absence of such evidence thePrivy Council construing section 3 of the Prescription Ordinancestated (58 N. L. R. at p. 227)—
*' Looking at the matter first as a question of construction theythink that once parties relying upon prescription have brought them-selves within the body of section 3 the onus rests on anyone relyingupon the proviso to establish their claim to an estate in remainderor reversion at some relevant date and they cannot discharge this onusunless they establish that their right fell into possession at some timewithin the period of ten years. ”
The position taken up by the plaintiff in the present case is that hisTights as a fideicommissary accrued to him on the death of his father,Mohamed Munsoor, in 1952. I accept the contention on behalf of theplaintiff that his right under the will fell into possession on the deathof his father and not on the happening of any earlier event. The questionwhether the grandchildren of the testator’s children succeeded as theonly fideicommissaries or as the ultimate fideicommissaries did not arisefor decision in any of the reported cases in which the will had to be in-terpreted. The main dispute was whether the will created a trust whichoffended the rule against perpetuities. Once a trust in favour of thegrandchildren of the testator’s children is ruled out it is difficult to resistthe conclusion that the testator intended his children’s children to bein the position of fiduciaries in relation to their own children. There arevaluable dicta in the reported cases which point to the correctness of thisconclusion. In the Privy Council decision of Sitti Kadija et al. v. DeSaram et al.1 it is stated (p. 176)—
“ Bearing in mind that the Mohamedan law only includes the nearestgeneration when referring to heirs, their Lordships are clearly ofopinion that the words ‘ they nor their heirs ’ in the clause prohibitingalienation cover two generations only, viz., the devisees and theirheirs, and that there is no room for the suggestion that the prohibitionmay be construed as a perpetual one. ”
If there was a prohibition against alienation- imposed on the childrenof the testator’s children, then clearly a fiduciary interest devolved onthe plaintiff’s father on the death in 1906 of Mohamed Usboe.
There are several passages in the dissenting judgment of Keuneman, J.,which together with the judgment of Wijeyewardene, J., was restored
1 (1946) 47 N. L. B. 171.
PUXJLrE, J.—MoJtamed v. Sitti Cadija
by the Privy Council in. £7 N. L. JR. 171 which make it clear that on thedeath of Mohamed TJsboe the plenum dominium devolved on the plaintiff’s,father. At p. 286 of £5 N. L. R. Keuneman, J., states,
" The persons to be benefited are not only the grandchildren but-also the children of the devisees. ” Later,
“ I think the will shows an intention to benefit three classes ofbeneficiaries, the devisees, their children, and their grandchildren. ”
The same is implicit in the judgment of Wijeyewardene, J. He saidin a previous case arising out of the same will, Rinnan Chettiar v. Mohideenand others (41 N. L. R. 225 at 230)—
“ I have no doubt that the testator intended that the propertyshould devolve on the immediate devisees and their children subject*to a fideicomxnissum ultimately in favour of the grandchildren of the-immediate devisees. ”
It, therefore, follows that the relevant date for reckoning the period,of prescriptive possession is torn 1952, the year of the death of plaintiffs-father. I am unable to gather from the judgment of the Privy Councilin 58 N. L. JR. 217 that if the position is that the children of the testator’s,children were not beneficiaries section 3 of the Prescription Ordinancecan. stand in the way of the plaintiff in resisting a claim based on.prescriptive possession.
We come now to the question whether on a consideration of the termsof the will and the distribution of the estate by the conveyance granted,by the executor to the devisees, save the father of the testator who pre-deceased him, and to Abdul Hameed, the deed P2 of 1878 must beregarded as having conveyed good legal title to Abdul Hameed.
In support of the case for the defendants it was submitted to us—
(а)that the devisees named in the will were not entitled to take a larger-
fractional share than upon the basis of an intestate successionaccording to Muslim law as at the date of the death of th&testator.
(б)that the father of the testator as the recipient of a legacy burdened.
with a fideicommissum could transit his interests to his heirs-of whom Abdul Hameed was undoubtedly one.
that the conveyance of the properly in suit being part of a familyarrangement sanctioned by court which has remained unques-tioned for over eighty years should not now be disturbed. I
I thank it must be ruled out-upon any interpretation of the will thaton the death of the testator Abdul Hameed succeeded on a basis of equalitywith his brothers. However, the will is explicit that the devisees “ who-are the lawful heirs and heiresses of my estate shall be entitled to and taketheir respective shares according to my religion and Shafie sect to which Ibelong ..” . If another heir not contemplated by the testator-
PULUS, J.—Mohamad v. Siiti Cadija
was alive at his death, could his existence he ignored in determining thefractional shares to which the named devisees would be entitled accordingto the rules of intestate succession under the Muslim law ? My opinionis that the answer to this question must be in the negative. I do notthink In re Emery's Estate, Jones v. Emery 1 referred to in the judgmentunder appeal, concludes the question in favour of the plaintiff. Eachwill has to be interpreted on its own terms and the wording of the willwe are concerned with points in a reasonably clear way that while thetestator was content that his estate should pass to his heirs in the ordinarycourse as on an intestacy, he was primarily concerned with tying up hislanded property for the ultimate benefit of the grandchildren of hischildren. The naming of his own father as a devisee in my view supportsthis conclusion. It is undoubtedly true that where a person makes awill purporting to dispose of the whole of his estate one ought not lightlyto presume that as to a part thereof an intestacy has resulted. But thewill is in several respects badly drafted and has been the subject ofunfavourable comments in some of the judgments which had to construeit. Having regard to the manifold difficulties it has given rise to it is notsurprising that the result of giving effect to the words that the deviseeswere to become entitled to “ their respective shares ” according to Muslimlaw was to create an intestacy in respect of a part of the estate. On thisbasis it cannot be said that a conveyance by the executor of a share of theestate to Abdul Hameed, represented by the property in suit, was in directopposition to the terms of the will.
In regard to the devise to the testator’s father it was submitted on theauthority of Livera et al. v. G-unaralna2 that although he predeceasedthe testator the fideicommissum did not lapse and that his interests weretransmitted, on the death of the testator, to his heirs of whom undoubtedlyAbdul Hameed was one. In the will the testator’s father is described asone of his lawful heirs, there is a prohibition against alienation by himor his heirs and a trust is created not only for the benefit of the grand-children of his children (by which I am content to assume that the testatormeant the children who were alive at the execution of the will) but alsothe grandchildren of the testator’s father of whom again one would beAbdul Hameed. The testator undoubtedly contemplated that if hepredeceased his father the latter would, under the division directed bythe will, get specific portions of the immovable property. In the viewI take of the terms of the will the devise to the testator’s father did notlapse on his death nor did his share accrue jointly to the benefit of thewidow and the children named in the will.
If Abdul Hameed did not get any right whatsoever to a share of theestate on the death of the testator, the bare fact that on a division ofthe estate with the sanction of court a part of it was conveyed to him bythe executor would not of itself suffice to defeat the title of the grand-children of the testator’s children. In my opinion the position is different.Those charged with the division of the estate might have been wrongin placing Abdul Hameed in the same class of beneficiaries as his brothers
1 (1376) 3 Chancery Division 300.
* (1914) 17 N. L. R. 289.
BASjSTAYAKE, C. J.—Mohamed v. Sitti Gadija
but I a.m unable to Say that the conveyance effected by P2 was necessarilybad. It is too late now to impugn it on the ground that the executorought not in 1878 to have admitted Abdul Hameed, not named in thewall, to a status of equality with, those who _were named. The reasonsfor noi> disturbing the division are compelling and I would dismiss theappeal with costs.
I have had the advantage of reading the judgment prepared by mybrother Pulle. I agree that this appeal should be dismissed with costs.The scheme of distribution of the property left by Isubu Lebbe IdroosDebbe Marikar made in pursuance of the Commission issued to “ threecompetent and respectable persons ” as directed by the will has enduredfar too long to be disturbed. Those to whom the property was distributedand their successors have dealt with the property and all litigation upto now has proceeded on the basis that the distribution was valid inlaw.
Besides, on the material before,me I am not prepared to say thatthe -construction placed on the will by the court which sanctioned thedivision is wrong either according to the rules of interpretation of wills(Jarman on Wills, Vol. 3 p. 1698 8th Edn) or according to the principlesof Roman-Dutch Daw (Voet Bk. I Tit. 5 s. 5; Bk. XXVIII Tit. 2 ; Bk.XX-X-VJLi Tit. 9 s. 1). There being no indication in the will that thetestator intended to disinherit the child who was bom after he madethe will, it appears to have been rightly construed so as to includehim.
A circumstance which is not entirely irrelevant is that the testamentaryproceedings were before Judge Berwick who was noted both for hislegal erudition and for his thoroughness. There is substance in thecontention of learned counsel that the words ** who are the lawful heirsand heiresses of my estate shall he entitled to and take their respectiveshares according to my religion and Shafie sect to which I belong ”negative any intention to disinherit the last child. The learned Judge•calls him a posthumous child ; but it would appear that he is a " quasi-posthumous ” child for such is the description in Roman-Dutch Daw ofa child horn after the execution of a will, but before the death of the•testator.
Even if the view put forward by the appellant were the only and trueview the inconvenience that would he caused by unsettling and disturbingthe title to so many valuable properties both in Colombo and elsewhereafter this lapse of time is so great that I think it would be proper topersevere in the error that has been made originally if error it be.