104-NLR-NLR-V-56-M.-M.-NUHMAN-et-al-Appellants-and-ABDUL-NAKEEM-et-al-Respondents.pdf
418
Huhman v. Abdul Nakeetn
1954Present: Gunasekara J. and Fernando A.J.M. M. NUHMAN el al., Appellants, and ABDUL NAKEEM et al.,
Respondents
S. G. 134—D. C: Colombo, 6,094 L
Fideicommissutn—“ Power of appointment
A fideicommissary deod of gift in which the fidcicomntissarii wcic nil thechildren of tho fiduciarius and their descendants, contained the followingProviso :—
“ Provided always that nothing horoin contained shall prevent the saidL .M.S. (the fiduciarius) by Deed or Tostnmontary disposition to give and grantthe said promises or any part thereof to any person or persons whomsoever ln>pleases but tho same must be given and granted strictly under and subjectto all tho restrictions as are hereinbefore expressed ; otherwise such grant shallbo null and void. ”
Held, that the Proviso did not create a “ power of appointment ” within thorecognised meaning of that expression, but only conferred on tho fiduciariusa right of disposition which in certain eventualities would have tho effect morel yof postponing tho enjoyment of the fideicommissary interests.
-AtPPEAL from a judgment of the District Court, Colombo.
H. V. Perera, Q.C., with L. G. Weeramantry and E. R. .S'. R. Coomara-awamy, for the 8th-13th defendants appellants.
11. W. Tambiah, for the plaintiff respondent.
It. IF. Jayewardene, Q.C., with M. L. de Silva and M. S. M. Nazcem,for the lst-7th defendants respondents.
Cur. adv. vult.
FERNANDO A.J.—Nuhman v. Abdul Nakeem410
September 7, 1954. Fernando A.J.—
We are called upon in this appeal to interpret a deed of gift executedin 1866 by one Lebbena Marikar in favour of his son Samsudeen. Setout below are relevant extracts from the provisions of the deed :—
*■ I do hereby give, grant, assign, transfer, and set over unto thesaid Lebbena Marikar Samsudeen his heirs, executors, administratorsand assigns as a gift absolute and irrevocable, but under anti subjectto the terms and conditions hereinafter set forth and described thefollowing premises to wit. … ”
“ To Have and Hold the said premises with all and singular theappurtenances thereunto belonging valued at one thousand five hundredpounds unto him the said Lebbena Marikar Samsudeen his heirs exe-cutors administrators and assigns for ever on the following conditionsto wit : that the said property hereby given and granted or any part orportion thereof shall not be sold, mortgaged or otherwise alienated, bythe said Lebbena Marikar Samsudeen but that the same shall be heldpossessed and enjoyed by the said Lebbena Marikar Samsudeen dimingliis lifetime and that after his death by his children lawfully begottenand their descendants under the bond of Fidei Commissum and shallnever in any manner be alienated. That the rents issues and profitsof the said property shall not be liable to be attached seized or sold forany debt or other liabilities of the said Lebbena Marikar Samsudeen norfor the debts or liabilities of any other person or persons who maysucceed thereto.
Provided always that nothing herein contained shall prevent thesaid Lebbena Marikar Samsudeen by Deed or Testamentary dispositionto give and grant the said premises or any part thereof to any personor persons whomsoever he pleases but the same must be given andgranted strictly under and subject to all the restrictions as are herein-before expressed ; otherwise such grant shall be null and void. ”
Jn purported pursuance of the powers conferred on Samsudeen by theProviso in the deed, he subsequently by deed P2 (No. 1532 of August, 1910)made a gift of a portion of the land to his son Nakeem subject to the con-dition ” that the same shall be held possessed and enjoyed by the saidSamsudeen Hadjiar Mohamed Nakeem during his lifetime and after hisdeath b}' his children lawfully begotten and their descendants under thebond of Fidei Commissum and shall never in any manner be alienatedand that the rents issues and profits of the said property shall not beliable to be attached seized or sold for any debt or other liabilities of thesaid .Samsudeen Hadjiar Mohamad Nakeem nor for the debts or liabilitiesof any other person or persons who may succeed thereto and subject alsoto the said life rent or possessory interest of the said Lebbena MarikarSamsudeen Hadjiar ”.
Samsudeen (the fiduciary) had six sons and five daughters und he appa-rently executed the deed P2 upon the footing thut the Proviso in the deedPI entitled him to nominate any one of his children to hold the propertyand that in that event the Fidei Commissum would continue to attach forthe benefit only of the descendants of the chosen nominee.
420
FERNANDO A.J.—Uuhman v. Abdul Nakeem
Nakeem (the donee on P2) died in 1944.’ ■ The plaintiff and the lst-6thdefendants, all of whom are children of Nakeem seek to partition amongthemselves the portion of land gifted to Nakeem by P2 ; but the 8th- 13thdefendants who are some of the other grandchildren of Samsudeen contendthat despite the execution of the deed P2 all the children of Samsudeenand the descendants of those children bocame entitled to the land on thedeath of Nakeem.
The learned District Judge has held that the deed PI created a validFidei Commissum but that the Proviso enabled Samsudeen “ to selectfrom the olass mentioned therein certain Fidei commissaries whom he•wished to appoint ” and that accordingly the deed P2 by which Samsudeenmade a gift to the chosen son Nakeem subject to a fideicommissum infavour of Nakeem’s descendants was valid. This would mean of coursethat the interests of the other children of Samsudeen and their descendantswere extinguished upon the execution of P2.
Mr. Perera has argued firstly that the deed PI created a valid fideicom-missum in favour of all the children of Samsudeen and their descendants,and that the Proviso cannot be construed in such a manner as to defeatthe conditions imposed in the fideicommissary clause : and secondly thatthe Proviso can be given an interpretation consistent with the intentionof Lebbena Marikar to create an interest in favour of all Samsudeen’schildren and their descendants. There are undoubtedly cases in which adeed creating a fideicommissum does contain a provision under which thefideicommissum can be extinguished or become inoperative, for example,where the donor authorises the fiduciary or some other person to excludeone of the fideicommissary heirs in the event of marriage without consentor abandonment of religion. But Mf. Perera’s contention is that such apower of exclusion to be effective must be clearly and unambiguouslyexpressed, and that the Proviso in the deed under consideration is not soexpressed. Mr. Perera has also relied on the case of Hadjie v. Fernando 1in which this Court dealt with a deed executed by the self-same LebbenaMarikar also in 1866 which was in terms identical with PI. In that casealso one fiduciary made a gift in pursuance of the Proviso, but she thereexpressly declared that the gift would be subject to the conditions imposedby the original deed of 1866 in her favour. In the result in that case, thoeffect of her deed was only to create a temporary interest in the property,and not to exclude permanently any of the designated fideicommissaryhoirs.'''
Mr. H. W. Jaycwardene, who appeared for the lst-7th defendantsrespondents, rightly pointed out that the judgment in the case cited,only incidentally interpreted the effect of the Proviso, for the reason thattho person to whom the fiduciary there transferred the property and thesuccessors in title of that person had in any event acquired prescriptivetitle effective against the single individual who came within the categoryof tho designated fideicommissary heirs. Nevertheless the judgmentof de Sampayo J. in so far as it purported to interpret the conditions inLebbena Marikar’s deed is of great persuasive value.
(1919) 6 O. W. R. 367.
FERNANDO A.J.—.Vuhman v. Abdul Nakeem
421
He Proviso which enabled the fiduciary “ by Deed or Testamentarydisposition to give and grant the premises to any person whomsoever ”,makes it clear that the grant must be “strictly under and subject to all therestrictions as are hereinbefore expressed, otherwise such grant shallbe null and void The view taken by the learned District Judge wasthat the Proviso conferred on the fiduciary a power of appointment andboth he as well as the two counsel who argued the case for the respondentsat the appeal appeared to think that it was a power to select from amongthe designated class of fideicommissary heirs, i.e., the children of Samsu-deen. Professor Nadaraja in his book “ The Roman Dutch Law of Fidei-commissa ” at p. 57 refers to the various forms of the so-called “ Powerof appointment ” in the following terms :—“ The power of appointmentconferred on the fiduciary may be either general, without limitations onhis choice, or special, where the power can only be exercised in favour ofcertain persons or a class. Special powers may be of different kinds.Thus, the testator may designate the fideicommissaries himself leavingthe fiduciary only the power of determining the distribution among thoseindicated, or lie may designate a number of individuals or a class or classesfrom which the fiduciary may choose the actual beneficiaries, or he mayleave to the fiduciary the power not only of choosing the beneficiaries outof those indicated but also of determining the shares of the beneficiariesso chosen. Where the power is general with no express limitations on thefiduciary’s choice of the fideicommissaries, he may nevertheless not appointhimself ".
It seems to me that the Proviso which we have to construe does not fallwithin any of the forms there mentioned ; nor does the Proviso amountto a power of disinherison or revocation which falls to bo regarded as akinto a power of appointment.
De Sampayo J. in the case to which I have already referred was ofopinion that the transfer by the fiduciary in pursuance of the Provisowould have the effect either of enabling the transferee to hold the propertyduring the lifetime of the transferor of (presumably for the reason that theProviso refers to a transfer by testamentary disposition) a right to hold theproperty during the transferee’s lifetime, and that in either evont theproperty would ultimately vest in the children and descendants of thefiduciary, i.e., in the designated fideicommissary heirs. He seemed toprefer the view that the transfer would be effective during the lifetime ofthe transferee and not merely during the lifetime of the transferor. Ihave with great respect come to the same conclusion. The deed PI con-tains language which unambiguously expresses an intention to create afideicommissum and the form in which the fideicommissary clause has beendrawn is almost impeccable. There is a clear gift over, to be effective onthe death of Samsudeen and an equally clear designation of the fideicom-missaries, i.e., the children of Samsudeen lawfully begotten and theirdescendants. There is then a prohibition against alienation and a pro-vision (even though ineffective) that the property is not to be liable toattachment or seizure. Having regard then to the fact that the Provisoiteelf explicitly preserves in force the restrictions previously expressed itcan properly be regarded only as an exception to the prior prohibition
422
Ambalavanar v. Navaratnam
against alienation. Samsudeen was given the right despite the prohibitionagaint alienation to give or grant the property strictly under the roftric-tions, which would, despite a transfer by Samsudeen remain in full forco.Whether the transfer would be effective to postpone the interests ofthe fideicommissary heirs only until Samsudeen’s death or else until the(loath of the chosen transferee, is not material in the present case, for thereason that this action has been filed after the death of Nakeem who wasthe transferee on P2. All the descendants designated in Pi as fideicom-missary heirs had a right to succeed to the property at the latest on thedeath of Nakeem. It is to my mind quite clear that the Proviso createdno “ power of appointment ” within the recognised meaning of thatexpression, but only conferred a right of disposition which in certaineventualities would have the effect merely of postponing the enjoymentof the fideicommissary interests.
For these reasons I am of opinion that the deed P2 was null and" voidin so far as it purported to deprive the designated fideicommissary heirsof their interests in the property. The judgment and decree appealedfrom must be set aside and the case remitted to the District Court in orderthat a decree may be entered, after such further steps as may be necessary,in accordance with tho interpretation given to the deed PI in thisjudgment. The plaintiff must pay to the 8th—13th defendants their costsof appeal and costs of contest in the District Court. Other costs will bein the discretion of the District Court.
Gunasekaka J.—I agree.
Judgment set aside.