088-NLR-NLR-V-65-MOHIDEEN-HADJIR-Appellant-and-GANESHAN-et-al.-Respondents.pdf
Mohideen Hadjiar v. Ganeshan
421
1S&3 Present: Weerasooriya, S.P.J., and T. S. Fernandos J.
MOHIDEEN HADJIAR, Appellant, and GANESHAN etal., RespondentsS. C. 422/60—1). C. Jaffna, 910/L
Donation—Minor—Capacity to accept a gift—Fideicommissum—Absence of confer-ment of rights on the fiduciarius to take income for himself— Validity of thefideicommissum—Fideicommissum in favour of a family—Construction—J affnaMatrimonial Rights and Inheritance Ordinance (Cap. 58), s. 15.
A minor who has sufficient understanding has the capacity to accept agift.
A father donated certain lands to his son, who was a minor, and, two or threeweeks later, handed over the deed of gift to the donee and told him to keep it.There was also evidence that after the death of the donor, whioh took placewithin six months of the execution of the donation, the donee, along -with theexecutor appointed under the last will of the deceased, entered into possessionof the lands dealt with in the deed of gift.
Held, that the donee, though a minor, had sufficient understanding toaccept the donation and that the evidence was sufficient to establish acceptanceby him of the donation.
A fideicommissum may be valid even though, under the deed creatingit, the fiduciarius is not given any right to take the income for himself from thefideicommissary property, he merely holding the property and allowing theincome to be taken by a third person.
An express prohibition against alienation out of the family of a legateeor donee is itself sufficient to create a fideicommissum in favour of the membersof the family. In such a case the persons to whom alienation is not prohi-bited (i.e., the members of the family) are to be regarded as impliedly designatedby the testator or donor as beneficiaries of the prohibition.
A deed of gift executed by a father in favour of his two sons contained thefollowing clause :—
“ I do hereby declare and enjoin that the donees shall not within a periodof twenty-five years from the date of my death alienate the said lands byway of transfer, donation, dowry or by any other document, that they shouldallow the said lands to devolve on their children by way of mudusom andmay only give the said lands to their children by way of donation or dowry,that they shall have no power to encumber the said lands by way of mort-gage, otty or security or by any other document and that the said landsshall not be liable to be executable for any debts incurred by them.”
Held, that the clause created a valid fideicommissum in favour of a family.Not only did it contain an express prohibition against alienation except to thechildren of the donees in the manner specified (by donation or dowry), but italso sufficiently indicated that the persons to be benefited by the prohibitionwere the same children. It contemplated that the children were to succeedto the property on the death of the donees within the period of twenty-fiveyears specified in the clause.
432
WEERASOORTYA, S.P.J.—Mohidaen Hadjiar v. (Jonathan
Appeal from a judgment of the District Court, Jaffna.
C. Thiagalingam, Q.C., with J. N. David, for defendant-appellant.S. Sharvananda. with if. Shanmugalingam, for plaintiffs-respondents.
Our. adv. vult.
August 27,1963. Wekrasooriya. S.P.J.—
The 2nd and 4th plaintiffs-respondents are the daughters of one Kathira.velupillai, son of Murugesupillai. They have filed this action against thedefendant-appellant for declaration of title to a half-share of the easternhalf of certain premises situated in Main Street, Jaffna, for possessionthereof, damages and costs.
The original owner of the premises was Murugesupillai, who by deedNo. 21891 of the 3rd March, 1921, donated several properties includingthe premises in suit to Kathirvelupillai and his other son Kumaravelu-pillai. The deed is in Tamil. Ex facie there is no acceptance of thedonation by the donees. Two English translations of the deed, markedPI and Dl, have been put in by the plaintiffs and the defendant respec-tively. D1 was produced as 1D19 in D. C. Jaffna No. L915 where thesame questions of construction of deed No. 21891 arose as in the presentcase. Evidence of experts was led in that case as to the correct renderingof the deed, and was by agreement of parties adopted as evidence in thepresent case. After considering such, evidence the trial Judge (who alsoheard case No. L915) held that as between PI and Dl, the former was thebetter translation. This finding was not canvassed at the hearing of theappeal before us.
The following clauses in PI are material for the purposes of the appeal,and are marked A and B for easy reference :
“ I do hereby declare and enjoin that the donees shall notwithin a period of twenty-five years from the date of my death alienatethe said lands by way of transfer, donation, dowry or by any otherdocument, that they should allow the said lands to devolve on theirchildren by way of mudusom and may only give the said lands to theirchildren by way of donation or dowry, that they shall have no powerto encumber the said lands by way of mortgage, otty or security orby any other document and that the said lands shall not be liable tobe executable for any debts incurred by them. **
“I do hereby nominate and appoint their grandfather Hlantha-laivasingha Irunathamudaliyar ThilTainather of Yannarponnai Eastand Saravanamuttu Ambalavanar of Vaddukkodai East after me andgive them power to jointly and severally look after and manage thesaid properties and to utilise the produce and income thereof for thefood, clothing and education of the said Kathiravelupillai and Kumara-velupilli and for their wives and children during the said period. **
WEERASOORIYA, S.P.J.—Mohideen Hadjiar v. Qaneekan
423
After deed No. 21891 was executed, Kumaravelupillai, one of the twodonees, died unmarried and without issue, leaving as his heir Mb fatherMurugesupillai in respect of a half-share of the lands dealt with in thatdeed. Murugesupillai died a few months later on the 27th August, 1921,having made a last will which was duly admitted to probate and underwhich the said half-share devolved on Kathiravelupillai. By deed D2of 1931 Kathiravelupillai sold an undivided half-share out of the easternhalf of the premises figuring in the present action to one VisuvanatbarPonnudurai. The devolution of the other half-share of the eastern halfis as follows : Kathiravelupillai (who died in 1940) sold it in 1934 toSinnathambv Vinasithamby on P5. Vinasithamby died leaving a lastwill under which his widow TMyalmuttu was appointed executrix.Thiyalmuttu having obtained probate thereof sold that half-share ondeed D3 of 1935 to Visuvanathar Ponnudurai, the transferee on D2of the other half-share. Ponnudurai, by deed D4 of 1942, sold theentirety of the eastern half to the defendant. This action concerns onlythe half-share of the eastern half which the defendant claims on the chainof title represented by deeds No. 21891 and P5, D3 and D4.
The case went to trial on seven issues. The trial Judge found in favourof the 2nd and 4th plaintiffs on all of them and he entered judgment asprayed for with costs except in regard to damages, which were as agreedupon at the trial. From this judgment the defendant has filed the presentappeal. The only findings of the trial Judge which Mr. Thiagalingamwho appeared for the defendant, canvassed at the hearing of the appealwere on the issues whether deed No. 21891 created a fidei commissum(Issues Nos. 1 and 4) and whether the deed was invalid for want ofacceptance (Issue No. 7).
The evidence of the plaintiffs’ witness Suppiah is that Kathiravelupillaiand Kumaravelupillai were minors when deed No. 21891 was executedand that two or three weeks after its execution Murugesupillai, who wassuffering from a carbuncle, obtained the deed from the notary and, havingsummoned Kathirvelupillai before him, requested Suppiah to hand thedeed to Kathirvelupillai and after the deed was handed over, Murugesu-pillai told Kathirvelupillai to keep it. The evidence of Suppiah wasaccepted by the trial Judge. While not disputing the sufficiency of thisevidence to establish acceptance of the donation by Kathiravelupillai,had he been of full age, Mr. Thiagalingam contended that as a matter oflaw Kathiravelupillai was not competent to accept the donation becausehe was a minor at the time. For this proposition Mr. Thiagalingam reliedon the case of WeUappu v. Mudalihamy A different view of the lawrelating to acceptance of a donation by a minor was, however, takenin Nagalingam v. Thandbalasinghama; where Canakeratne, J., stated inhis judgment (with wMch Dias, J., agreed) that for the purpose of accep-tance minors may be divided into two classes, viz., those who are o
1 {1903) <i N. L. R. 233.
a (1943) 50 N. L. R. 97.
424WEBRASOORIYA, S.P.J.—Mohidten Hadjiar v. Oantshan
tender years, who may be termed children, and those who liave sufficientintelligence. He then went on to make the following observations:“ One who may be said to be a child is taken to lack all mental capacityor power to form a decision and so can enter into no transaction whatso-ever, his guardian, whether natural or appointed, acts for him withoutconsulting him, and with complete authority. Such a child can hardlyaccept a gift. One of the second class is deemed capable of thinking forhimself, has inteUectus, but since he is yet inexperienced and likely toact rashly, the necessary auctoritas of his guardian must generally beinterposed to make the transaction absolutely binding. Such a minor,however, can take the benefit of a contract and thus he can himself accepta gift”. An appeal filed to Her Majesty in Council in that case wasallowed, but on other grounds, and the question whether a minor canhimself accept a gift was left undecided by the Privy Council1.
Mr. Thiagalingam also relied on a sentence in the j udgment of Withers, J.,in Fernando et al. v. Cannangarct ei al. * where, in considering whether agift by a father in favour of his minor children could have been validlyaccepted by a nephew of the donor, the learned Judge said: “ Thesechildren were one and all incompetent to accept the gift But, as thechildren themselves had not purported to accept the gift, this observationwould appear to be at the most an obiter dictum,. At any rate, it is doubt-ful whether Withers, J., intended to lay down, as an unqualified rule, thatno minor, whatever his age, has the capacity to accept a gift.
Another case in which it was held that a minor who has sufficientunderstanding may himself accept a gift is Babaihamy v. Marcinahamyet al. 3. With respect, I would follow that case as well as the case ofNagalingam v. Thanabcdasingham (supra).
In the present case, although Kathiravelupillai is said to have been aminor at the time of the execution of deed Ho. 21891, his father Murugesu-pillai evidently considered that he was old enough to be entrusted withthe deed. There is also evidence that after the death of Murugesupillai,which took place within six months of the execution of the deed, Kathira-velupillai along with the executor appointed under the last will of thedeceased, entered into possession of the lands dealt with in that deed.It would seem, therefore, that Kathiravelupillai had sufficient understand-ing to accept the donation. Apart from this, it is to be noted that anessential link in the defendant’s chain of title to the half-share in disputeis P5, executed on the footing that deed No. 21891 was a valid donation.Can the defendant, while taking advantage of deed No. 21891 tor thepurpose of her claim that she has title to that half-share, turn roundand say that the same deed is invalid for want of acceptance when theclaim of the 2nd and 4th plaintiffe is being considered ? The equitabledoctrine that a person cannot approbate and reprobate would appearto preclude the defendant from taking up such a position. As explainedby Lord Eldon in Ker v. Wauchope * the meaning of this doctrine is that
i (1952) 64 N. L. R. 721.■ (1908) 11 N. L. R. 232.
* (1897) 3 N. L. B.6.* 1 Bligh 1, at 21.
WEERASOORIYA, S.P.J.—Mohideen Hadjiar v,. Ganeshan
425
no person can accept and reject the same instrument. See also theobservations of Viscount Maugham in his speech in the House of Lordsin Lissenden v. Bosch Ltd.1 I see no reason, therefore, to interfere withthe finding of the trial Judge that deed No. 21891 is not invalid for wantof acceptance.
There remains the question whether deed No. 21891 created a fidei-commissum. The interpretation of this deed was considered as farback as 1949 in S. C. No. 257/D. C. Jaffna Case No. 3233 2, when a benchof two Judges of this Court (Canekeratne and Gunasekara, JJ.) answeredthe question in the affirmative. No significant difference between Pi andthe translation of deed No. 21891 filed in that case was brought to ournotice by counsel for the appellant as a ground for taking a contraryview in regard to the same question in the present case. The followingpassage from the judgment of Canekeratne, J., in that case seems to meetthe argument of Mr. Thiagalingam that clause B in PI (which I havequoted earlier) is inconsistent with a fidei commissum : “ But one pointwhich has been emphasised is the fact that the management of theproperty is given for a number of years to another person. Usually afidei commissum of the Roman Dutch Law vests the property in thefiduciary and on the happening of a certain event it is to devolve on athird person, the fiduciary having the legal right to take the income forhimself. But it is also the law that a fidei commissum may be createdin any way. It is only a question of the interpretation of the deed orwill as the case may be. A fidei commissum may be created in such away as to make the fiduciary something like an administrator’s peg, ora mere holder of the title without having any right to the income, hemerely holding the property and allowing the income to be taken by athird person ”. In Sinnepillaipody v. Muhamaduthamby3 it was held thatthere can be a fideicommissum without any conferment of rights on thefiduciarius to enjoy the fruits and profits of the fideicommissary property.In view of these authorities I do not think that the provisions of clauseB in PI can be regarded as inconsistent with a fideicommissum.
Clause A contains, inter alia, an express prohibition against alienationby an act inter vivos or by last will except to the children of the donees.Mr. Thiagalingam strenuously contended that inasmuch as there is nodesignation of the beneficiaries the prohibition is “ nude ” and thereforeineffective. But according to Voet 36-1-27 (Gane’s Translation)“ Forbidding alienation out of family is fideicommissum ”, and he givesas an instance where a testator provides that the property ” shall notgo away from his line and from his blood ”. In Invent et al. v. Guna-raina4 a clause in a last will, which was in the following terms“I …. do hereby restrict my three sons from selling, mortgaging
or otherwise disposing of my landed property which they shall inheritfrom my estate …. to any stranger or out of my lineage ”, washeld by a bench of two Judges of this Court (Lascelles, C.J., and Walter
1 (1940) A. C. 412 at 417.0 (1957) 58 N. L. R. 494.
– Supreme Court Minutes of 15th September, 1949.4 (1914) 17 N. L. R. 289.
426
WEERASOOKIYA, S-P.J-—Mohidetm. Hadjiar v. Gtaneahan
Pereira, J.) to create a fidei commissum in favour of the “ lineage ”of the testator. There is also the case oi Robert v. Abeyewardane etal.1where de Sampayo, J., sitting alone, stated that a prohibition againstalienation out of the family of a legatee or donee is itself sufficient tocreate a fideicommissum in favour of members of the family. ButProfessor Nadaraja in his book on the Roman Dutch Law ofBideicommissa refers to several later cases which he seems to thinkare in conflict with the above mentioned two decisions. The latercases referred to by him are collected at page 129 of his book.They are decisions of two Judges of this Court. In some of themthe judgments were delivered by de Sampayo, J., himself. In NainaLebbe v. Maraikar et al.2 a gift by husband and wife to their threesons was subject to the condition that “if they like, to alienate orencumber their share by any deed, such as mortgage or transfer, theyshall do so between themselves and not with others”. De Sampayo, J.,thought that this condition had “ no analogy to the well known form offideicommissum which is created by prohibiting alienation out of thefamily”. In Comelis et al. v. Waituhamy3 the Court had to construe thefollowing clause in a joint will in favour of the children of the testators :
“if the aforesaid parties mortgage, lease out, transfer, gift out
or give over in any way any lands of this estate to anyone other than anheir of this estate such grant shall be null and void and the propertyshall belong to the estate.” Regarding this clause de Sampayo, J.,stated : “ (It) hardly creates a fideicommissum. I cannot quite see whoare the persons who are to get the property in the event of alienation inbreach of the condition. All that I can find is that the property shouldbelong to the estate”. In Amarawickremev. Jayasingheet al. 4 a bequestby husband and wife to their children provided that if the latter requiredto sell the immovable property which they shall become entitled to fromour estate, they shall sell the same to an heir of this estate for the thenvalue but it is prohibited to sell the same to any one else De Sampayo,
J.. stated that the case was clearly distinguishable from Robert v. Abeye-tvardene et al. (supra) and that the clause in question contained a bareprohibition which had no legal effect except, perhaps, to give the nomi-nated heirs a right of pre-emption if any of them should wish to sell hisshare. It will be seen, therefore, that these three decisions were notconsidered by de Sampayo, J., as departing from the principle stated byhim in Robert v. Abeyezoardane et al. (supra).
In Peiris v. Soysa et al. 5 a grant of property was made absolutelyin favour of four children of the donor’s sister, with a direction that if itbecame necessary to sell or mortgage the property it should be done amongthe grantees and that it should not be Bold or mortgaged to any “ out-sider Ennis, J., who delivered the judgment in that case (withwhich Loos, A.J., agreed) expressed the view that it was not on ailfours with the case of Robert v. Abeyewardane et al. (supra), in regard to
1 {1920) 22 N. L. B. 323.• (1920) 22 N. L. R. 77.
* (1922) 23 N. L. B. 295.* (1 22) 23 N. L. R. 462.
• (1920) 21 N. L. B. 446.
<• WEERASOORIYA, S.P.J.—Mohideen Eadjiar v. Oaneshan
427
which, however, he said that he found “some difficulty”. The sameJudge, in Hadjiar v. Meyappa1, held (Porter, J., agreeing) that no fideicommissum was created by a provision in a last will giving to the testator’sson, N, certain lands “subject to a fidei commissum, i.e., the said N canonly take and enjoy during his lifetime the profit accruing from the saidtwo lands, but that he or his heirs shall not sell or mortgage them, norcan the.) donate them as gift to any outsider, and that after the deathof the said IT the lands shall rest on his heirs and that these shall haveno power to sell or mortgage them nor to donate them as gift to anyoutsider
In Kifhiratne v. Salgado 2 A, the donor, had gifted by deed a definedhalf share of a land to his daughter and two nephews and the other halfshare to B. It was provided that if B “ required ” to sell, mortgage, ordispose of in any way her share she should do so only to any one or moreof the other three donees and not do any act whatsoever to enable anoutsider to acquire “ any proprietorship ” over it and, further, that if Bdied without any such transfer of ownership her share was to be inheritedby her adopted daughter, C, and if B and C were to die without anydescendants the share was to devolve on the donor’s daughter aforesaid.Macdonell, C.J., and Dalton, J., held in separate judgments, but not forquite the same reasons, that the deed did not create a fideicommissum inrespect of the half share donated to B.
In so far as these cases would appear to be in conflict with the earliercases of Livera et al. v. Gunaratna and Robert v. Abeyewardane (supra),Professor Nadaraja expresses the opinion (at page 128) that the correctlegal position is (as stated by de Sampayo, J., in Robert v. Abeyewardaneet al.) that a prohibition against alienation out of the family of a legateeor donee is itself sufficient to create a fideicommissum in favour of themembers of the family. Such, it would seem, was also the view of thePrivy Council in the South African case of Josef and Others v. Mulderand Others 8, where husband and wife married in community transferredby deed to their son certain immovable property for valuable considera-tion, stipulating that the same “ shall never be sold or parted with infavour of a stranger but shall permanently remain among legal heirs ”.The decision that the deed created a fidei commissum implies that thePrivy Council considered that the legal heirs were sufficiently indicated(though not expressly) as the persons to be benefited by the prohibition.
The question whether clause A in Pi creates a fidei commissum or notis largely a matter of construction of the document. The principlesapplicable are not in doubt. A tacit fidei commissum, which is what we1 (1922) 23 N. L. R. 333.*- (1932) 31 N. L. R. 69.
3 (1903) A. C. 190.
428
WEERASOORIYA, S-P.J.—Mokideen Hadjiar v. Qaneshan
are concerned with in the present case, arises where there is an expressprohibition against alienation, coupled with a sufficient indication as tothe person or persons to be benefited by the prohibition and as to thetime at which their rights are to vest. In my opinion, where there is anexpress prohibition against alienation out of the family, the persons towhom alienation is not prohibited (i.e. the members of the family) are to beregarded as impliedly designated by the testator or donor as beneficiariesof the prohibition.
Not only does clause A in PI contain an express prohibition againstalienation except to the children of the donees in the manner specified(by donation or dowry), but it also sufficiently indicates that the personsto be benefited by the prohibition are the same children. Mr. Thiaga-lingam argued on the authority of Pabilinci v. Kcirunaratne et al.1 (adecision of three Judges) that, even so, there has been a failure of theintended fidei commissum as clause A is not clear as to when the childrenof the doBees are to succeed to the property. The prohibition againstalienation in that case was in the following terms : “We hereby covenantwith the said …. that the said three donees or each of them canneither sell, mortgage nor alienate the portion of land and that theirchildren can do whatever they please therewith Canekeratne, J.,in a judgment with which Howard, C-J., and Windham, J., agreed, heldthat it was not clear whether the words used meant that the children wereto succeed to the property if the donees acted contrary to the prohibitionagainst alienation or in some other event. In the present case, however,the language used is far more specific, for clause A requires the donees toallow the lands to devolve on their children by way of mudusam (i.e. ifthe same had not already been given to them by way of donation crdowry). According to section 15 of the Jaffna Matrimonial Bights andInheritance Ordinance (Cap. 5S) property devolving on a person bydescent at the death of his or her parent or of any other ancestor in theascending line is called mudusam or patrimonial inheritance. I thinkthat clause A contemplated that the children were to succeed to theproperty on the death of the donees within the period of twenty-fiveyears specified in that clause.
For the foregoing reasons I would dismiss the appeal with costs:
T. S. FEBNAjtno, J.—I agree.
Appeal dismissed.
1 (1948) SO N. L. B. 189.