MOHAMAD BHAI et al v. SILVA et al

057-NLR-NLR-V-14-MOHAMAD-BHAI-et-al-v.-SILVA-et-al.pdf


( 193 )
[Full Bench.]fa. 24^1911
Present: Hutchinson C.J., Middleton J., and Van Langenberg A.J.
MOHAMAD BHAI et al. v. SILVA et al.
361—A C. Colombo, 29,894.
Fidei commissum by act inter vivos—Fidei commissary donees who diebefore the fiduciary transmit their expectation 'to heirs—The rule,different in the case of last wills—Compensation for improvementsmade by vendor—Meaning of the term “ children ”—Whether itmeans “ issue.”
Per Hutchinson C.J., Middleton J., and Van LangenberoA.J.—In the case of fidei commissum created by last will, if thefidei commissary dies before the fiduciary the latter takes theinheritance. But in the case of a fidei commissum created by actinter vivos, if the fidei commissary dies before the fiduciary, theformer transmits the expectation of the fidei commissum to hisheirs.
Per Hutchinson C.J. and Middleton J.—A purchaser of landstands in the same position as his vendor in regard to any claim forcompensation for improvements made by the vendor.
The question whether the term “ children ” in a deed means“ issue ” or “ descendants ” discussed.
rF,HE facts of this case are fully stated in the judgment of1 Hutchinson CJ. as follows :—
“ This is a partition action; the appeal is by the defendants againsta decree allotting two-sevenths of the land to the plaintiff ; and theappellants also contend that, even if those shares are rightly allottedto the plaintiffs, the first defendant is entitled to compensation forimprovements.
“ The case turns on the meaning of certain words in a deed datedDecember iO, 1863. By that deed the then owner of the landdeclares that in consideration of her love and affection for her sonFrancis Charles Perera, and of services rendered by him to her, shegranted the land ‘ unto the said F. C. Perera, his heirs, &c., as agift absolute and irrevocable and under and subject to the following
conditions and restrictions to have and to hold the
said premisesunto the said F. C. Perera subject to the
following conditions and restrictions : that during my life I shall beat liberty to possess and enjoy the benefit of the said premises, andafter my death it shall devolve on my said son F. C. Perera and hispresent wife Mary Ann Perera, and they shall only possess the sameand maintain their children, but they shall neither sell, mortgage, orhVol. XIV.7
JftA f. N, 93348 (11/49)
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Feb. 24,1911 alienate, or in any way encumber the same, but hold during their livesMohamad under the bond of fidei commission, and neither the rents and profitsof the said premises shall in any way be considered liable to be held,
*** seized, or sold for the debts of the said F. C. Perera or his wife, butafter their death it shall devolve on their children for ever ; and ifshe survive him and contract a second marriage she shall not beentitled to the life interest of the said premises, but devolve the saidpremises on their said children immediately and forthwith,' andthe donor thereby covenanted ‘ with the said F. C. Perera, his heirs,executors, and administrators,’ that she had good title, and wouldwarrant and defend the title of the premises thereby granted * untothe said F. C. Perera, his heirs, and administrators.’ And F. C.Perera thereby accepted the gifts4 for myself, my wife, and children,subject to the above conditions.’
“ The donor and F. C. Perera and his wife are dead. F. C. Pereraand his wife had seven children. Five of them survived theirparents, and their shares are now vested in the first defendant. Theother two died in the lifetime of their parents, leaving children,whose shares, if any, are now vested in the plaintiffs, and the firstquestion is whether the children of those two were entitled to anyshare.”
The learned District Judge (Allan Drieberg, Esq.) upheld theplaintiffs’ contention that the term “ children ” in the deed meant“ issue,” and that the first defendant was not entitled to anycompensation.
The defendant appealed.
The case was first argued before Hutchinson C.J. and Middleton J.,who referred the question whether the plaintiffs are entitled to atwo-sevenths share to a Full Court. The question as to compensationwas not reserved for the consideration of the Full Bench.
Sampayo, K.C., for defendant, appellant.—The words of the deedshould be taken in their natural sense. Unless there is somecircumstance to compel us to do so, the term “ children ” must notbe interpreted to include “grandchildren.” See Voet 36, I, 22 ;Galliers v. KycroftThe words, the property “ shall devolve on thechildren for ever ” only mean that the property shall be the absoluteproperty of the children. Deeds are construed more strictly thanwills ; as wills are informal documents the intention of the testatorshould be given greater effect to than in the case of a grantor of adeed. Deeds should be more strictly construed. Prideaux, vol. /.,
p. 218.
H. A. Jayewardene, for the respondents.—The term “ children ”includes “ grandchildren.” In the present case the fidei commissumwas created by an act inter vivos ; Voet says (36, 1, 67 ; McGregor
’ [1898) 8 Bat. 74, at page 84. ' –
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145) that in such a case the fidei commissory heir would transmit theexpectation of th$ fidei commissum to his heirs, should he predeceasethe fiduciary heir. See also 2 Burge 122. The fidei commissaryheirs need not have accepted the gift; it is enough that the fiduciaryheirs had accepted it. Asiathumma v. Alimanchy.1 The term“ children ” has been used to mean “ heirs ab intestato” See VanLeeuwen, p. 245 (3, 6, 7). Counsel also cited McGregor, p. 48(section 22) ; Galliers v. Ky croft.-
Sampayo, K.C., in reply.—Voel in 36, 1, 67, contemplates the caseof a fidei commissary heir who has been specially named ; in thedeed under consideration a class is designated. Counsel citedJuta's Leading Cases (Wills) 158 ; Williams on Executors, vol. /.,p. 853.
Cur. adv. vult.
February 24, 1911. Hutchinson C.J.—
His Lordship, after stating the facts, continued :—
The original of the deed has not been produced. Both partiesrelied on a copy certified by the Assistant Registrar-General onDecember 7, 1893, to be a true copy from the duplicate filed in theoffice. In the copy the grant is “ unto the said F. C. Perera, hisheirs, executorsbut the word “ executors ” is crossed out in ink.I do not think that for the purpose of this appeal we need require tosee the original or the duplicate ; we must assume that the copy isa true copy, and that the word “ executors ” is similarly written andcrossed out in the original, and that it was so written and crossedout before the deed was executed. The donor was a Sinhalesewoman, the deed is in English, and very bad and slovenly English.It was duly attested by a notary.
The deed created a fidei commissum, and the defendants thereforecontended that only those children could take who survived theirparents, while the plaintiffs contended that the word “ children ”in the deed means "issue” or “descendants” and the learnedDistrict Judge upheld the latter contention. He thought that itwas clear that in the direction that the fiduciarii should with therents and profits “ maintain their children,” the donor could nothave intended to exclude their orphaned grandchildren, and thattherefore she could not have contemplated excluding them from thereversion.
I agree that it is very probable that she had no intention toexclude them. But I also think that she had no intention toinclude them ; she had no formed intention either way, because shenever thought of the possibility of one of the children dying beforethe parents and leaving issue; if she had thought of it or if the drafts-man of the deed had suggested it to her, as he ought to have done,she would have provided for the contingency. She might have
{J90S) J A, C. J?. as.2 (im) 3 Bed. 74, at pa$e 84.
Feb. 24. 1211
MohamadBhai v.
SHim
( 196 )
Feb. 24,1912 thought, as a plain man would think who was not learned in theHutchinson Roman-Dutch law, that all the children would take, whether theyc.J. survived the fiduciarii, or not, but if the possibility to which t haveMohamad just referred had occurred to her, she would not have left the matterBfoww. in doubt. And unfortunately she has only made a gift to “ children.”l va a word which in the mouth of an Englishman, unless he is using itin some such metaphorical sense as “ child of sin ” or “ children ofIsrael,” means sons and daughters, and does not include remotedescendants.
But it has to be noted that this deed is the deed of a Sinhalesewoman, and that it is in a language in which she was probably notvery expert, and the man wbo prepared it. for her was certainly inthe same predicament. And in considering the intention of it wehave to read the whole of it carefully, and to look at all the circum-stances. She was making a provision for her son and his family ;and her intention was expressed for her very clumsily by a man who,if one may judge from this deed, had only a dangerously littleknowledge of law and of the English language. If she had told himthat she wished to entail the property on her son and his wife andtheir descendants in perpetuity, 1 fee! sure that he would not havewritten “ children ” only. And if none of the children had diedbefore the parents, I do not think that it would have been suggestedthat the surviving children took only a life interest. The words“ their children forever ” can I think have only one of two meanings:either 44 their children (/>., their sons and daughters) absolutely,”or 44 their descendants in perpetuity.” 1 cannot help thinking thatthe former is what the donor and the draftsman of the deed meant-tosay, and that that is the meaning of the deed.
But on the re-argument before the Full Court the respondents'counsel contended that the rule that a fidei commissarius has notransmissible interest if he dies before the fiduciarius applies only tofidei commissa created by will, and not to those created by an actinter vivos. Voet 36, 1, 67 says that in such cases the better view isthat, in the event of the fidei commissary successors dying before thefulfilment of the condition, they transmit the expectation of thefidei commissum to their heirs ; since (he says) it is clear that theyto whom something is due under a contract, subject to a condition,are creditors during the pendency of the condition. This is not quitesatisfactory—it is too artificial; the meaning given to the samewords should be the same, whether the donor makes the gift in theform of a will or in that of a deed. But as I think that the rule asstated in the passage just quoted enables us to give effect to whatthe donor intended, I would follow it and hold that the children ofF. C.Perera and his wife took a vested interest the moment thedeed was executed, and that the heirs of any child who died duringthe lifetime of F. C. Perera and his wife became entitled to thatchild’s share.
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It was also argued for the respondents that the conditio si sine Feb- 24,1911liberis decesserint should be implied. The District Judge refers to Hi*Tcmsosthat contention, but does not adopt it, pointing out quite rightly CJ*that that rule applies only in a case of “ substitution,” that is, in a Mohamadcase where a parent has appointed children as heirs and has directedv-
that on their death their shares shall go over to some one else. There Stlvais no such substitution here. The children who take (if “ children ”means children) would take absolutely with no gifts over ontheir death. In the case of Galliers v. Kycroft1 the testatorgave a life interest to his wife for the benefit of herself and herchildren, and directed that after her death the estate should bedivided equally among his children or such of them as might bealive—that is, as the Court said, he instituted the children as heirson the death of their mother and substituted the survivors for suchof the children as might die before their mother. It was therefore acase of substitution, but of direct and not fidei commissary substitu-tion ; the children were not fiduciarii. The Court quoted the ruleas stated by the Supreme Court of Natal, that where a parent hasappointed “ children as heirs and directed that upon their deaththeir share should go over, either to a stranger or to another child,then the going over or substitution is subject to the tacit conditionimplied by law,” that the deceased chi Id had no issue, and it approvedthat statement of the rule if confined to the case of fidei commissarysubstitution, i.e., to the case where a trust is imposed on the childto restore the inheritance to some other person on its death. Andthe Court said : ” The children are not requested to part with theirinheritance after they have once entered on it, and consequentlythose who survived their mother took their inheritance free from anyburthen. Those who died before their mother entered upon noinheritance and possessed nothing to restore.” If William Galliers (achild who died, leaving issue, before the mother) had survived hismother “ his inheritance would have belonged to him absolutely ;having died before her, he acquired nothing in respect of which afidei commissum could be imposed on him.” The Court also held thatthere was nothing in the will to justify them in giving to the word“ children ” the meaning of descendants, and that William havingdied before his mother, his issue took nothing under the will.
In the present case there is n<? such substitution as is required bytile role which is discussed in Galliers v. Kycroft9 that is, no substitu-tion of another person in case the children die, no place in which itwould be possible to insert the words si sine liberis decesserint.
There, is a simple direction that after the parents' death theproperty shall devolve on their children, and to my mind, ifa child predeceasing the parents had no vested interest, theonly possible argument for the respondents is that children meansdescendants.
1 (P. C. 1S99) 3 Bed. 74.
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For the reasons, however, which I have given above, I would holdthat the appeal against that part of the decree which allots two-sevenths of the land to the plaintiff should be dismissed. But therefusal of the first defendant's claim for compensation was wrong.The learned Judge says that the defendants’ vendors had receivedthe value of the improvements. But they had not received it fromthe plaintiffs. The first defendant had paid it to his vendors ; andif they were entitled to it, he was entitled to it. The case musttherefore go back for assessment of the amount of compensation.Each party should pay their own costs of the appeal.
Middleton J.—
. This was a partition action in which the plaintiffs claimed two-sevenths of the property in question by purchase from the childrenof Clement Henry Perera and Marcellina Perera, who predeceasedtheir parents, Francis Charles Perera and Mary Ann Perera, in theyear 1899. The first defendant is the representative in interest ofthe other five children of Francis Charles Perera and his wife. Bydeed bearing date December 16, 1863, one Dona Sanchina donatedthe premises in question to her son Francis Charles Perera and hisheirs as a gift absolute and irrevocable, subject to certain conditionsand restrictions. Dona Sanchina reserved a life interest to herself,but after her death directed that the property should devolve on herson Francis Charles Perera and his present wife Mary Ann Perera, tomaintain their children, without power of alienation or encumbranceunder the bond of fidei commission, but after their death it shoulddevolve on their children for ever. There was also a provision inthe deed that if Mary Ann Perera survived Francis and contracted asecond marriage, she would not be entitled to the life interest of thesaid premises ; that it should devolve immediately and forthwith ontheir children. It is clear on the face of the deed that it creates afidei commissum and imposes a restraint on alienation upon FrancisCharles Perera and his wife, which did not extend to the children.
The question to be decided by the Court is whether the children .of Clement Henry and Marcellina Perera, who predeceased theirparents, had any vested interest in the property which their childrenas tlieir heirs could convey to the plaintiffs.
The District Judge, in disposing of the case, held that the donorintended to benefit by the use of the word “ children,” not only thechildren of Francis and his wife, but also the children of those whopredeceased them, and that therefore the children of Clement Henryand Marcellina became entitled to the shares which would havevested in their parents had they been living, and could thereforelegally transfer such interest to the plaintiffs.
The defendants appealed and for them it was argued onthe authority of the decision of Galliers v. . Ky croft; reported in
Peb. U% Ml
HUTCil INSON
C.J.
MohamadBhai v.Silva
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3 Balasingham, p. 74 ; Strydom v. Slrydom's Trustee ;1 vol. /., Prideaux peb. 24,19uon Conveyancing, p. 218 ; vol. /., Williams on Executors, p. 853 ; and Mt[)~ ^notes to section 67 of bk. 36, tit. 1, of Voet translated by McGregor, * j.BTOS'that the wording of the deed of gift would limit the devolution of uohaimdthe property to those children only of Francis Charles Perera and Bhaiv.Mary Ann who survived them.Siiva
It is a rule of law, in the absence of clear provisions to the contrary,that where a fidei commissary dies before the fiduciary the lattertakes the inheritance (Van Dyk v. Van Dyk’s Executor2).
An exception to this rule is quoted by Voet, bk. 63, tit. 1,section 67, p. 145 (McGregor's translation) in the case of a fideicommissum constituted, not by last will, but by act inter vivos, as inthe case under consideration, on the ground that they to whomsomething is due in terms of a contract subject to a condition arecreditors pending the condition, contrary to the rule obtaining inlegacies, and Voet goes on to say that this is the case with regard todotal pacts if they have been so drawn up as to have the force of acontract, but not where they merely take the place of a last will orintestate succession.
The question appears to be whether, from the terms of the deed,there has been any vesting of the interest of the fidei commissary,and Villiers C.J. in Strydom v. Strydom's Trustee says a fideicommissum may be so purely in the nature of what the English lawterms a trust, as not to interfere with the vesting of the fideicommissary’s legatees’ interest even before the arrival of the timefor the payment of the legacy. I agree with the learned DistrictJ udge that the use of the words “ to Francis Charles Perera his heirs ”signifies an intention to benefit the descendants of Francis Charles
Perera beyond the first degree, and by the use of those words
“ and their children for ever ” I would hold that there was a vestingof interest in all the children of Francis Charles Perera, transmissibleby law of intestate succession to their children. The purposeexpressed for maintaining their children, in my opinion, also fortifiesthe conclusion arrived at by the District Judge.
I would therefore support the judgment in this respect. Asregards the question of compensation for improvements, 1 do notagree that the first defendant’s claim for compensation for thealleged improvements made by the vendors has been met by theirsale to him. He will stand in the same position as they did inregard to any claim for compensation that might have been sustain-able by them as the successor in title of their right, title, and interestin the property. I agree in the order of the Chief Justice.
Van Langenberg A.J.—
This is a partition action, the plaintiffs claiming to be entitled totwo-sevenths share of the property sought to be partitioned. The1 Juki's Leading Cases on Wills 158.1 4 Juta 194.
Feb. 24. 1911VAX
Lan«en-JJKUO A.J.
Mohamad
lihai
tiitvu
( 200 )
defendants deny that the plaintiffs are entitled to any share, andclaim the entirety of the premises. The property in questionbelonged to"one Dona Sanchina, who by deed No. 3,466 datedDecember 10,1863, gifted it to her son Francis Charles Perera subjectto the following conditions :—
“ That during my life, the said Wahalatantirigc Dona Sanchina,I shall be at liberty to possess and enjoy the benefit of the saidpremises, but after my death it shall devolve on my said son FrancisCharles Perera and his present wife Mary Ann Perera and they shallonly possess the same and maintain their children, but they shallneither sell, mortgage, or alienate, or in any way encumber the same,but hold during their lives under the bond of fidei commission, andneither the rents and profits of the said premises shall in any way beconsidered liable to be held, seized, or sold for the debts of the saidFrancis Charles Perera or his wife, but after their death it shalldevolve on their children for ever; and if she survive him and contracta second marriage, she shall not be entitled to the life interest of thesaid premises, but devolve the said premises on their said childrenimmediately and forthwith.”
Francis Perera died on March 12, 1902, and his wife Mary Annon July 29, 1899. They had seven children, two of whom, Clementand Marcellina, predeceased their parents. The plaintiffs derivedtheir title from these two children. The defendant says that thegift to Francis Charles Perera was subject to a fidei commissum infavour of his children, and that the property vested in the fivechildren who were alive at his death. The plaintiffs contend (1)that the donor when using the word “ children ” intended to benefitFrancis Charles Perera's children and their issue, and that, therefore,the word “ children ” must be interpreted to mean descendants ;and (2) that where a fidei commissum is created by an act inter vivosa fidei commissarius dying before the fulfilment of the conditiontransmits the expectation of the fidei commissum to his heirs. Thecase was argued on the footing that if either of these contentions beupheld, the plaintiffs must succeed. On the first point the DistrictJudge held in favour of the plaintiffs.
I am unable to agree with him. According to Voet (bk. 36, tit. 1,section 22) the meaning of the term “ children ” when used in adocument is a question of fact rather than of law. The intention ofthe donor in this case has to be gathered from a reading of the wholedocument. The reference in the deed to the maintenance of thechildren suggests to me that the donor did not contemplate theevent'of any one of the children predeceasing his or her parents.
In my opinion, wc must give to the word 44 children ” its ordinarymeaning. As regards the second point, Mr. Jayewardene referredus to Voet (bk. 36, tit. 1, section. 67). There Voct says
44 But where the fidei commissum has been constituted, not by lastwill, but by act inter vivos, such a pact added to a donation inter vivos
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or by a dotal pact, the belter view is that in the event of the fideicommissary successors designated in the pact dying before the ful-filment of the condition, they transmit the expectation of the fideicommissum to their heirs ; since itis clear that they to whom-somethingis due in terms of a contract (ex contractu) subject to a conditionare creditors during the pendency of the condition—contraryto the rule obtaining in the case of legacies—and that he who made astipulation subject to a condition transmits his expectations under thecontract to his heirs if he die before the fulfilment of the condition.”McGregor's translation, 1902, p. 145.
Mr. de Sampayo argued that Voet contemplated the case of afidei commissary who was alive at the time the fidei commissum wascreated, and was expressly named ; whereas in the deed in questiona class was designated. I was at first inclined to think that he wasright. Burge (1st ed., vol. II., p. 122) citing Voet lays down therules thus :—
“ When the fidei commissum is created, not by will, but by act intervivos, it seems that in the event of the death of the fidei commissarybefore the condition is performed or the event happens, his contingentinterest is transmitted to his heirs, for the effect of the act intervivoswhether it be a donation or marriage contract, is to constitute him acreditor.”
And Nathan (Common Law of South Africa, vol. 3, section 1904,p. 1922) referring to the same passages uses almost the same words.On further consideration, I think 1 must decide this point in favourof the respondents.
The question of compensation was not argued before me.
Sent back.
Feb. 24, HU l
VanLangkn-BBHH A.J.
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