002-NLR-NLR-V-74-MARY-Rev.-Mother-of-Good-Counsel-Appellant-and-Mrs.-A.-A.-KURERA-Respondent.pdf
TENXEKOON, J.—Mary v. Kurera
5
1987 "'Present : T. S. Fernando, J., and Tennekoon, J.
MARY (Rev. Mother of Good Counsel), Appellant, and Mrs. A. A.KURERA, Respondent
S.G. 19-ilGG{F)—D. C. Negombo, 677jL.
Ficlcicommissum—Use of words “heirs executors administrators and assigns'' inapposition to the fiduciary and the f deiconimissarics—Effect—Prohibitionagainst alienation—Meaning of nude prohibition.
Tho words “ heirs executors administrators and assigns ” in apposition to thofiduciary do not dorognto from tho creation of a valid fidcicominissum. Theyservo only to vest tho plena proprictas as a preliminary to croating a fidoi-conimissum. But tho plena proprictas so vested in tho fiduciary must boclearly and unambiguously qualified olsowhcro in the doed by tho prosoneo ofwords disclosing an intention, and proscribing tho olomonts nocossary, to createa valid fidoicommissurn.
Similarly, tho words “ and their heirs oxecutors administrators and assigns’1in apposition to tho fidcicommissarios do not derogato from tho creation of afidcicominissum in favour of tho children of tho fiduciary.
A fidoicommissurn which clearly designates tho fidoicommissarics is not anythe loss valid by reason of tho absoneo of a provision that, in tho ovent of abreach of tho prohibition against alienation, tho property will vest in tho fidoi-eommissarics. “ All that tho law requiros is a prohibition against olionation(oxpresj or implied) and a provision that after a spocifiod time or onfulfilment of somo condition tho proporty should go ovor from tho first takorto a socond bonoficiary, who must of courso bo eloarly designated.”
A.PPEAL from a judgment of the District Court, Negombo.
K. O. de Silva, for the defendant-appellant.
J. W. Subasinghe, for the plaintiff-respondent.
Cur. adv. vult.
August 2, 1967. Tenxekoox, J.—
The question that arises in this case is whether Deed No. S2SO of 24thNovember 1916 (PI) created a valid fideicommissum. The Defendant-Appellant who claims title to the land dealt with in PI on Deed of GiftNo. 1246 of 12th December 1957 from the donee on PI contends that PI
K 1764 (2/71)
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TENNEKO'ON, J.—Mary v. Kurera
does not create a valid fideicommissum, while the Plaintiff-Respondentsupports the contrary view. The Deed PI (according to the translationfrom the original Sinhalese, produced by the plaintiff) stated (inter alia)—
“ We, Martheenu Fiiisa Miral and husband Diago Nikulan Mirando
hereby gave granted donated
"A” conveyed and assigned as an absolute gift which cannot be cancelled
the premises described herein belowunto the said donee
and his heirs executors, administrators and assigns.
Whereas, We the said donors hereby gave full power unto the saiddonee Nikulan Santiago Mirando to hold from today the saidpremises and everything belonging thereto hereby donated, but notto sell, donate, exchange, mortgage or lease out from (for) a period• “B” exceeding three years and sub lease before the expiration of thelease already given or to alienate in any other manner and that thesaid donee can or may possess the same subject to the regulationsunder mentioned, and that after his death his children and theirheirs executors administrators and assigns shall hold and possessuninterruptedly for ever or deal with the same as they desire.”
The two extracts from the deed are marked ” A ” and “ B ” for con-venience of reference. Counsel appearing for the appellant sought tosupport his contention on two grounds. The first was that there is aconflict between paragraph *' A ” (where the property is granted to “ tiresaid donee and his heirs executors and administrators assigns ”) andparagraph “ B ” where the donor having prohibited the donee fromalienating the property goes on to say “ and that after his (donee’s)death his children, and their heirs executors and administrators andassigns shall hold and possess uninterruptedly for ever or deal with thesame as they desire ”. It is contended that the words in paragraph “ A”and paragraph “ B ” are so irreconcilable that it is impossible to say whatthe intention of the donor was as to the persons to be benefited by theprohibition against alienation. Counsel relied on three cases BajapakseEstates Co. Ltd. v. Dulsin *, A maratunga v. Alwis Appuhamy v. JM allies 3.The first of these was the case in which this Court held that the Deedfailed to create a valid fideicommissum as the beneficiaries were notclearly designated. It is unnecessary to examine the actual clauseswhich were considered in that case as they have no similarity at all tothe ones under consideration in this case.
. In Amaralunga's case there was a clear prohibition against alienationbut a failure to designate with clarity the persons to be benefited. Thewords used were “ the children and heirs descending from her (the donee)
1 (10C5) CO N. L. Ii. 2S7.* (1930) 40 N. L. R. 263.* (10-14) 45 N. L. R 259.
TENTSTEKOON, J.—Mary v. Kurerc
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and authorised pei'sons such as executors administrators and assigns ” ;the intended beneficiaries were twice described in these or very similarwords in different parts of the deed.
It will be noticed here that the fideicommissaries are designated as thechildren and heirs executors administrators and assigns of the donee.Since the class of persons so designated was too vague and general,Soertsz J. held that the deed did not create a valid fideicommissum.
In Appuhamy’s case (supra) there were two clauses in the deed, each ofwhich postulated the death of the donees as the event upon which thegift-over was to take place and then went on, in one clause, to designatethe beneficiaries as the children of the donees and in the other to designatethem as the heirs executors administrators and assigns of the donees. Theseare the two provisions which were—if I may say so with respect, quiterightly—held to be irreconcilable and as completely obscuring theintention of the donors as to the persons to be benefited.
The instant case is clearly distinguishable. There is in the first placea gift to N. S. Mirando (the donee). The vesting clause (Para “ A ”) nodoubt used the words “ the donee and his heirs executors administratorsand assigns ”. This is not a clause in which the donor is seeking to desig-nate the beneficiaries ; that is to come later ; as Nagalingam <1. said inJayatunga v. Ramasatny Chettiar i, the use of the words “ heirs executorsadministrators and assigns ” in apposition to the fiduciarius is for thepurpose of vesting the plena proprietas as a preliminary to creating afideicommissum and their use does not derogate from the creation of avalid fideicommissum. With this statement of the law I respectfullyagree, subject to the qualification (which indeed is implied by Naga-lingam J. but not made sufficiently explicit) that the plena proprietas sovested is elsewhere in the deed clearly and unambiguously qualified bythe presence of words disclosing an intention, and prescribing the elementsnecessary, to create a valid fideicommissum. While it is true that fidei-commissa have always been regarded as odious in the e3re of the law andmust be strictly construed, that is no reas'on why the courts should boastute to defeat the intention of the donor or the testator, if that can beclearly ascertained on a reading of the instrument as a whole.
There is then the clause reproduced above in para “ B ”. This clauseclearly—(i) prohibits alienation, (ii) prescribes the condition or theevent upon which the gift-over is to take place, viz, the death of thedonee, and (iii) designates the persons to be benefited as " the children(of the donee) and their heirs executors administrators and assigns”. Theonly question that arises on this clause is whether the fideicommissariesare designated with sufficient clarity. It is not contended by therespondent, nor is the deed open to the construction, that the propertyis to continue to be under the bond of fideicommisum even when the
1 (1950) 52 N. L. R. 171 at 174.
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TENKEKOON', J.—Mary v. Kurera
children of the donee have taken over upon death of the donee. Thereis nothing in the deed to suggest that the donor intended that theprohibition against alienation should also bind the children of the donee;if that were the case it might have been relevant to inquire -whetherfideicommissaries vis a vis the children, as fiduciaries, have been suffi-ciently clearly designated by the -words their (the children’s) heirsexecutors administrators and assigns It is however clear that thebond of fideicommissum was intended by the donor to last only up tothe death of the donee and that the children were to take the propertyfree from that incumbrance. In that context the description of thefideicommissaries as the “ children and their heirs executors adminis-trators and assigns ” is an accurate designation of the children as theonly personsto take over upon the death of the fiduciary. The expression“ and their heirs executors administrators and assigns ” refers to aclass of persons who can take only after, and under or through, thechildren who themselves are not bound by a prohibition against alienation.As Xagalingam J. said in Jayalunycis case referred to above “A similarreasoning would and should apply even in regard to the grouping ofthese words (‘ their heirs executors administrators and assigns ’) in relation
to the ftdeiccmmissariesThe result would have been
the same if the donors had omitted the words ‘their heirs executorsadministrators and assigns ’ from the deed and stated that on the deathof the donee her children should have the right to possess the properties,for under our law a grant to X is a grant to X, his heirs executorsadministrators and assigns”.
Accordingly the first ground on which the appellant contended thatthere was no valid fideicommissum created by PI fails.
Counsel for the appellant next contended that PI docs not create avalid fideicommissum, for the reason that it does not provide that in theevent of a breach of the prohibition against alienation the property willvest in the beneficiaries. Counsel was unable to cite any authoritiesin support of the proposition that every valid fideicommissum mustcontain a provision to the effect that upon breach of the prohibitionagainst alienation the property will vest in the fideicommissaries.Indeed all that the law requires is a prohibition against alienation(expressed or implied) and a provision that after a specified time or onfulfilment of some condition the property should go over from the firsttaker to a second beneficiary, who must of course be clearly designated.Many of the deeds that have come up for consideration in our courtsand been construed as creating valid fideicommissa did not contain anyprovision to the effect that upon breach of the prohibition againstalienation the fideicommissaries were to take the property. In all, ornearly all, of them the provision lias been, as in this case, that thefideicommissaries take over not upon breach of the prohibition againstalienation but upon the death of the fiduciary. Counsel for the appellant
Yoosoof v. Jiajaratnam
9
cited in support in his contention a passage from the judgment of MyLord the Chief Justice (then S.P.J.,) in the case earlier referred to—-Bajapakse Estate Co. Ltd. v. D ids in 1—to the following effect
" I cannot but express dismay at.the fact that the District Judgewithout any reference to authority, formed the opinion that (P3)created a fideicommissum. The prohibition against alienation, whichwas the only feature of the deed which could lead to that opinion, wasnude, and inoperative to create a fideicommissum, unless the personswho were to take in the event of a breach of the prohibition were clearlydesignated
The only issue in that case was whether fideicommissaries weredesignated with sufficient clarity ; there was no controversy as to whetherthe deed failed to create a valid fideicommissum by reason of the absenceof a provision to the effect that in the event of breach of the prohibitionagainst alienation the fideicommissaries were to take over. In thecircumstances I do not think the judgment can be taken as enunciatingsuch a principle of law. What the law requires is that a valid fidei-commissum must contain a provision that after a specified time or thefulfilment of some condition the property should go over to the fidei-commissary ; that requirement is satisfied in this ease.
Accordingly the appellant’s second x^oint also fails and the appeal isdismissed with costs.
T.S. J'ebxando, J.–I agree.
Appeal dismissed.