MUDALIYAR WIJETUNGA, Appellant, and DUWALAGE ROSSIE et al , Respondents

127-NLR-NLR-V-47-MUDALIYAR-WIJETUNGA-Appellant-and-DUWALAGE-ROSSIE-et-al-Respondents.pdf


Mudaliyar Wijetunga v. DuuxUage Rossxe.
361
1946Present: Wljeyewardene S.P.J. and JayetUeke J.
MUDAI/TYAR WIJETUNGA, Appellant, and DTJWALAGEROSSIE el al., Respondents.
274—D. C. Kalutara, 23,236.
Fidei commisaum in favour of a family—Entail and Settlement Ordinance(Cap.), 64, ee. 2, 3—Donatio inter vivoa—Acceptance by the fiduciarydonee—Absence of acceptance on behalf of children not yet in esse-—BevocabiUty—Sight of fiduciary to claim compensation for improvementsfrom fideiccrmmiss aries.
A deed of gift in favour of C contained a clause prohibiting C fromselling, mortgaging or otherwise alienating the gifted property andproceeded to say that upon C’s death the property should devolve upon“ all her (C’s) children being' heirs descending from her and those whohave obtained authority as her executor or administrator There wasan acceptance by C of the gift to her subject to the conditions andrestrictions set out in the deed.
Held, that the deed created a valid fidei cormniasum and that thefidei commiasarii were “ the children of C being heirs descending fromher
Such a fideicommi8sary donation, which “ involves the benefit. of thefamily ”, is irrevocable even in the absence of acceptance on behalf ofchildren not yet in esse.
Held, further, that a fiduciary is entitled, as against fideicommissaries,to the same rights of compensation for improvements as any otherbona fide possessor and to the retention of the fidei commisaum propertyuntil compensation is paid, and that a purchaser from the fiduciaryis in the same position as the fiduciary.
A PPEAL from a judgment of the District Judge of Kalutara.
Two persons, Nandiris and Siyaneris, were entitled to a land in equalshares. By deed P 3 of 1906, Nandiris gifted his half share toCarlina, onthe eveof her marriage, subject to certain conditions (videhead-note). BydeedP 2 of 1911, Siyaneris sold his half share to Nandiris. By deed D 3 ofFebruary 8, 1919, Nandiris sold the entire land to E. G. de Fonseka.By deed D 1 of March 22, 1918, Nandiris purported to cancel the condi-tions subject to which the gift P 3 was made and to gift the half shamabsolutely to Carlina. Carlina, by deed D 6 of March 24, 1918, conveyedthe half share to Nandiris. In satisfaction of a hypothecary decreeentered against E. C. de Fonseka in 1935 the entire land was sold to thedefendant under deed D 4 of 1941. Carlina died in 1923 leaving as herchildren the four plaintiffs, the eldest of whom was born in 1910. Theplaintiffs sued the defendant for declaration of title in respect of ahalf share of the land and the District Judge entered judgment in favourof the plaintiffs declaring them entitled as fidei commiasarii under thedeed of gift P 3.
The questions of law which were considered in appeal were : (1) whetherthe reference to the fideicommissaries in P 3 made it impossible to saywith certainty who the fideicommissaries were; (z) whether P 3, if itcreated a valid fidei commisaum, was revoked effectively by D 1;
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302
Mudaliyar Wijefunga v. Duwcdage Rossie.
(3)whether the defendant was entitled to claim compensation for improve-ments admittedly effected by E. C. de Fonseka ; (4) whether thedefendant was entitled to a right of retention until such compensationwas paid to him.
H. V. Perera, K.C. (with him N. E. Weerasooria, K.C., and H. W.Jayewardene), for the defendant, appellant.—It is submitted that theterms of the deed are insufficient to create a valid fidei commissum.Even assuming there is a valid fidei commissum it has been revokedbefore its acceptance by the fideicommissaries. A fidei commissumcannot be revoked, firstly, if it is a perpetual fidei commissum, and,secondly, where there is a vested right. There could be acceptanceby the fideicommissary or someone authorised to accept on his behalf.
[Jaybttleke J.—Why can’t the fiduciary be authorised to accept?]
Yes, even the fiduciary can be authorised, but Carlina’s acceptance ison her own behalf. That acceptance cannot be regarded as acceptanceon behalf of persons who were not even in contemplation at the time.Even where there is an acceptance on behalf of one not in esse, it has tobe ratified later by that person after he comes into existence. Suchan acceptance is devoid of legal effect at the moment of acceptance.Ratification after coming into existence is the minimum requirementfor giving it legal effect. The mother or some one else on behalf ofthe children must accept after they come into existence ; there must bea new act of acceptance.
In Soysa etal. v. Mohideen1 de Sampayo J. gave a very broad interpreta-tion to fideicommissary gifts to a family and applied it to a two-generationfidei commissum. Under Roman-Dutch law a fidei commissum in favourof a family need not be accepted. In Carolis v. Alwis2 Soertsz J.disagreed with Sampayo J. on this point. What Perezuis says is thatin a donation in favour of a family there is no need of a subsequentacceptance by the others ; he does not say that such an acceptance bythe immediate donee is sufficient acceptance for all those who may comeinto existence in the future, viz., the fideicommissaries. Every perpetualfidei commissum is not a fidei commissum in favour of a family, but everyfidei commissum in favour of a family is a perpetual fidei commissum.A fidei commissum in favour of a family is one in which the propertycannot go outside the family ; a family fidei commissum can go tocollaterals. In a fidei commissum in favour of a family one does notrequire acceptance except acceptance by the original donee.
[Jayettleke J.—What is a fidei commissum in favour of a family ?]Perezius’ words are “ in favour of the family in which the property is toremain”. Under the term “family” are included sons-in-law anddaughters-in-law to supply the place of those who have died, adoptedchildren and even freedmen. There is a bequest to a family when thetestator directs that it should not go out of his line of descent or out ofhis “ blood ”—See Me. Gregor’s Voet, Bk XXXVI title 1, Sec. 27 atp. 67.At p. 163 of 45 N. L. It. Soertsz J. is referring to a fidei commissum infavour only of the donee’s children or grandchildren by representation.The head of the family is either the father or the grandfather.
* (1914) 17 N. L. R. 279.* (1944) 45 N. L. R. 156 at p. 158-160.
Mudaliyar Wijetunga v. Duwtdage Rossie.
368
Lascelles C.J. says that in the case of fideicommissaries “ in utero ”or esse, either they themselves or some one authorised on their behalfmust accept for them. Then he says that fideicommissaries not in esseat the time of execution need not accept irrespective of the fidei commissumbeing one in favour of the family or a perpetual fidei commissum. It issubmitted that this latter view is incorrect. Sampayo J.’s view is thatwhere the donee is the head of a family of which the fideicommissariesare present or future members acceptance by the donee is sufficientacceptance for them whether they are “ in esse ” or not. Soertsz J.says that the necessary condition is that there should be a perpetualfidei commissum. My own submission is that Pere^ius is contemplatinga donation granted in favour of the donor’s family. A fidei commissumin favour of a family is a perpetual fidei commissum but not vice versa ;and both cannot be treated in the same way.
The word “ assigns ” is used in the translations of the deed. Whenthe word “ assigns ” is used in the sense that after the donee’s deathit is to go to the donee’s assigns, then indefiniteness arises and thereis no fidei commissum. It would be treated as a mere notarial flourishonly when “ assigns ” is used earlier in the text in the grant made to thefiduciary—Amaratunga v. Altvis1, followed in Appuhamy v. Mathes a.In Salonchi v. Jayatu 3 where the words “ descending heirs and authorizedpersons ” were used it was held the deed did not create a valid fideicommissum. In Silva v. Silva 4 de Sampayo A.J. interpreted “ bhara-karaya” as “ assigns
[ WiJEYEWAfiDENVE S.P.J. drew attention to the words a&](3<2}8
Sce&ctsi&zsf which means “ such as thosewho obtained authority as her executor or administrator.”]
If the meaning is administrators and executors, then one has to seewhether it refers to Caroline’s administrators and executors or to thedonor’s executors. One cannot say that it should go to the descendingheirs and in the same breath to one’s estate. It is therefore submittedthat there is no clear designation of beneficiaries.
In Robert v. Abeywardena5 de Sampayo A.J. discusses what is sufficientto constitute a, fidei commissum in favour of a family.
[Wueyewaedeke S.P.J.—In view of the provisions in the Entail andSettlement Ordinance, a fidei commissum multiplex in favour of a familymay be inoperative.]
Yes, it would be inoperative, but the rules, and especially the ruleregarding acceptance, which were applicable to such fidei commissumwill remain. It is submitted that the doctrine regarding acceptanceof a fidei commissum to a family cannot be extended to acceptance byunborn fideicommissaries' in a simple fidei commissum. The case ofPerera v. Marikar6 is a perpetual fidei commissum case and can bedistinguished from the present case.
In any event the trial Judge has held that the appellant has made theplantations ; he is a bona fide possessor and is entitled to compensation
and to a jus retentionis.
1 11939) 40 N. L. R. 363.*
(1944) 45 N. L. R. 259 at 261 to 262.6
(1926) 27 N. L. S. 366.*
(1914) 18 N. L. R. 174 at 177.(1912) 15 N. L. R. 323.
(1884) 6 S. O. O. 138.
364
Mudaliyar Wijeiunga v. Zhncalage Rosaie.
L. A. Rajapakse, K.C. (with him A. C. Ghmaraine, J. M. Jayamanneand T. B. Dissanayake), for the plaintiffs, respondents.—The case in 6S.C.C. 138 already cited governs the present case. In 45 N. L. B. 166Soertsz J. disagreed with the view expressed in this case. A judgment ofa Divisional Bench remains a DivisionalBench decision although one Judgedissents—Vide § 61 (1) of the Courts Ordinance and Appu Sinno v.Oirigoria1. The case of Jane Nona v. Leo2 discusses fully the force ofFull Court and Divisional Bench decisions. 6 S. C. C. 138 was athree-Judge decision. At that time a complement of three Judges consti-tuted a Full Court. Perezius’ and Voet’s views have beeneonsidered in thiscase; and Perezius’ view has been consistently followed by our Courtssince then. In Soysa v. Mohideen 3 de Sampayo J. took the view that afiduciary could accept on behalf of the fideicommissaries—Vide alsoAyamperumal v. Meeyan*. Soertsz J. refers to both these cases in the46 N. L. Br. case. The 45 N. L. R. case is distinguishable from the presentcase : the fideicommissaries who claimed were “in esse ” in that case ; thatis not so in the present case. It is submitted that the view taken bySoertsz J. at the bottom of page 160 of 46 N. L. R. that fideicommissariesinfvlv.ro have to accept after they come into being is incorrect.
The ordinary fidei commissum should be accepted by the fiduciaryas well as fideicommissaries ; the exceptions to this rule are :—
perpetual fidei commissa, (2) gifts to a family already referred to,and (3) acceptance by Notary on behalf of absentee donee—Vide 2 Burge 149.
In these cases acceptance by the fiduciary donee is sufficient acceptancefor the fideicommissaries. “ Agen pawatha ena daru ummakkara ”are the words used in the deed and these words are sufficient to showthe donor’s intention to constitute a donation in favour of the family,since it is a reference to her uterines—Pinnvxirdene v. Pemando6.
Acceptance may be by any mode; there is no special mode of acceptance.The revocation was in 1918 and at that time all five children were in esseand, furthermore, the mother is in possession of the property, and suchpossession should be construed to be possession subject not only to theconditions but also to the benefits conferred by the gift. Adoptedchildren and foster children are included in the term “ familia ”—SeeSande on Restraints Part III., Chapter 6, paragraphs 3 to 6 {page 225).
As regards jus retentionis and compensation, conceding that theplantation was made by the appellant, a bona fide possessor should havethe possessio civilis, i.e., any possessio which starts with justa causa ; butin the present case it is not so ; the appellant has shut his eyes to factsand claims to be a bona fide possessor. The case of De Liverav. Abeysinghe*is in point. The decision in Dassanayake v. Tillekeratne 7 is not correct.A mala fide possessor cannot claim compensation for useful improve-ments—Livera v. Abeyesinghe8. The appellant cannot have a jusretentionis as against the fideicommissaries—See JSfendis v. Dawood9.
1 {1914) 3 Bed. Notes 20.» (1919) 21 N. L. R. 65.
(1923) 25 N. Jj. R. 241.• (1917) 19 N. L. R. 492 (Pr. Council).
(1914) 17 N. L. R. 279.7 (1917) 20 N. L. R. 89.
(1917) 4 O. W. R. 182.• (1914) 18 N. L. R. 57 at page 60.
• (1920) 22 N. L. R. 115.
WIJEYEWABDEN E S.P.J.—Mudaliyar Wijelunga v. Duwalage Rossie.
365
27. V. Perera, K.C., in reply .—Perezius’ view is correct, but it is notproper to extend those p inoiples further. The term “ family ” neednot be used in the donation. One should consider what a family is incommon parlance. The 6 S.C.C. case refers to a perpetual^idei commissum.Although a fidei commissum in favour of a family is a perpetual fideicommissum all jk -petual fidei commissa are not fidei commissa in favourof families.
Where a man, believing that it is his own, improves a land which issome one else’s then he is a bona fide possessor. A constructive knowledgecannot be imputed to such a possessor merely because he did not makeinquiries, which he should have made.—Wille’s Principles of SouthAfrican Law at page 353. A fiduciary or his estate can claim compensa-tion as against the fideicommissaries for beneficial expenditure uponproperty, the subject of the fidei commissum—Lee’s Introduction toRoman—Dutch Law (3rd Edition), Appendix J at foot of page 443 andDu Plessis v. Est. Meyer *. This is supported by the view in Dassanayakev. Tillekeratne a. A usufructuary’s position is the same as that of afiduciary and compensation could be recovered—Jasohamy v. Podihamy 1 * 3and Brunsden’s Estate v. Bruns den’s Estate and others 4.
Cur. adv. vult.
August 12, 1946. WlJEYEWAEDENE S.P.J.
This is an action for declaration of title brought by the plaintiffs againstthe defendant in respect of a half share of a land called PandithaUdumukelle.
Two persons, Nandiris and Siyaneris, were entitled to the entire landin equal shares. By deed, P 3 of 1906, Nandiris gifted his half share toCarlina subject to certain conditions. By deed, P 2 of 1911, Siyanerissold his half share to Nandiris. By deed, D 3 of February 8, 1919,Nandiris sold the entire land to E. C. de Fonseka. By deed, D 1 of March22, 1918, Nandiris purported to cancel the conditions subject to whichthe gift P 3 was made and to gift the half share absolutely to Carlina whoby deed, D 6 of March 24, 1918, conveyed the half share to Nandiris.In satisfaction of a hypothecary decree entered against E. C. de Fonsekain 1935 the entire land was sold, and at the sale the defendant becamethe purchaser and obtained in his favour the deed, D 4 of 1941. Carlinadied in 1923 leaving as her children the four plaintiffs, the eldest of whomwas bom in 1910. I may observe at this stage that no issue was framedat the trial with regard to the prescriptive rights of parties.
The present appeal is by the defendant against the decree entered bythe District Judge declaring the plaintiffs entitled to a half share of theland as fidei commissarii under the deed of gift, P 3.
The questions of law that have to be considered on this appeal are—
Did P 3 create a valid fidei commissum ?
If P 3 created a fidei commissum, was such fidei commissum
revoked effectually by D 1 ?
1 S. A. L. R. {1913) C. P. D. 1006 at page 1018.
3 (1917) 20 N. L. R. 89.
3 (1943) 44 N. L. R. 385.
• S. A. L. R. (1920) C. P. D. 159 at page 171.
1*J.N. AC3105 (9/16)
366 WIJEYEWARDENE S.P.J.—Mudaliyar Wije'.unga v. Duwalage Rosaie.
Is the defendant entitled to claim compensation for improvements
admittedly effected by E. C. de Eonseka ?
Is the defendant entitled to a right of retention until such compen-
sation is paid to him 1
The deed, P 3, is written in Sinhalese. It is a gift to Carlina on the eveof her marriage. It contains a clause prohibiting Carlina from selling,mortgaging or otherwise alienating the gifted property. It then proceedsto say that upon her death the property should devolve upon certainpersons who were designated as “ all her (Carlina’s) children being heirsdescending from her and those who have obtained authority as herexecutor or administrator ”. The Sinhalese words are—tpi.S'cnai a
<3<*i®as}zs>3dipsfiljarfHjjSsaadoifg)Soo^cidStsf.
I am unable to uphold the contention of the appellant’s Counsel thatthe reference to “ those who have obtained authority as her executorand administrator ” in P 3 makes it impossible to say with certaintywho the fidei commissarii are. The answer to that argument is foundin the following passage from the judgment of Pereira J. in Wijetunga et al.v. Wijetunga 1 :—
“ What the deed means is that, alternatively, that is to say, indefault of heirs the property is to vest in executors or administrators.In default of heirs, Alvino, as fidttciarius, would, of course, be absoluteowner of the subject of the fidei commissum, and a disposition by himof the same by will would then have full effect, and thus the use of thewords, ‘ executors ’ and ‘ administrators ’ (the latter implying adminis-trators cum testamento annexo) could be explained away without doingviolence to the language employed, and in a manner that gives effectto the obvious intention of the grantor to create a fidei commissum ”.
I hold that P 3 created a valid fidei commissum and that the fidei com-missarii are “ the children of Carlina being heirs descending from her. ’’I shall consider now the question whether Nandiris could have revokedthe gift to the fidei commissarii created by P 3.
The deed, P 3, shows that Carlina accepted the “ said gift.” under thedeed. That is clearly an acceptance by Carlina of the gift to her subjectto the conditions and restrictions set out in the deed. It is, however,argued on behalf of the appellant that Carlina’s acceptance was only anacceptance on her behalf and that, in the absence of an acceptanceby the fidei commissarii, the donor was entitled to revoke the gift to thefidei commissarii. The appellant’s Counsel relied on the followingpassage from Voet 39.5.43 (de Sampayo’s Translation) :—
“ Undoubtedly, in the absence of acceptance by the fideieommissaryor in his name by a notary or other person in conformity with our law,the better opinion is that the donor may change his mind in legardto the fidei commissum just as a change of mind is admissible in regardto the donation itself, as explained in above number 13, before thedonee has accepted it ”.
1 (1912) 15 N. L. R. 493.
WUEVEWARDENE S.P.J.—Mudaliyar Wijetunga v. Duwalage liossie. 367
But this general rule as laid down by Voet is not accepted withoutqualification by Perezius :—
“ The greater dispute is whether a donor who has gifted property toanother with this pact and limitation that after a certain time he shouldrestore it to some third person can, in the meantime, revoke this paet.The majority hold the view that the donor is not permitted to revokethe pact even if there has been no acceptance by him in whose favourit was made. This they prove from d. 1.3.h.t. which gives an im-mediate actio utilis to the third party on whom the benefit of theliberality is bestowed so that, since he has acquired a right—for thisapparently cannot be denied if he is entitled to the actio—the donorwill not be permitted to revoke the pact and limitation because by sodoing he would be taking away from another without his consent aright which he has acquired which the law does not allow. They provealso the same opinion from 1. 1. ff. Qui sine, manumiss. where Paul ussays if a slave has been put up for sale on these terms that after acertain time he should be manumitted, even if the vendor changes hismind he can yet seek his liberty because what was once his wishought not later to displease him nor should a pact annexed to a giftto the advantage of another be revoked without his consent. Gomez(d.loco n.30) ; Rod. Suarez (ad 1. quondam in priorib. decl. legis Regni,octavo quaeritur) ; Fachinaeus (lib. 8. contr. cap. 38)
“The former opinion (i.e., the opinion that the gift cannot be revoked)would be the more correct if the gift made to one person is made in favourof a family in which the donor wishes the property gifted to remain ;for by no pact can it be revoked in respect of after-comers ; for it issufficient in order that it may be considered a perpetual donationthat the first donee ha3 accepted it so that there is no need of a subse-quent acceptance (1.69. Sec. 3ff. de leg.2) where the burden imposedon the first donee results in an action available to all as Molina says(de Hisp.primog. 1.4.0. 2n. 75) because it would be absurd, in order tomake a fidei commissum irrevocable, to require the acceptance of infants•and persons not yet born ”, (Perozius Bk. 8, Tit. 55, Sec. 7 and 12 ;Wikramanayake’s Translation).
Pothier who discusses the conflicting views of the jurists on thisquestion sets out as follows the reasons for the view of those belonging tothe school of Perezius :—
“ The clause of the act of donation which contains the charge imposedupon the donatary, includes a second donation, or a fideicommissarydonation by the donor to the third person. This second donation,without the intervention of the person in whose favour it is madereceives its full perfection by the first donatary accepting the donationsubject to the charge, since by that acceptance he contracts, in favourof the third person without the intervention of the latter in the act,an engagement to accomplish the charge. From this engagementarises a right, which is acquired by the third person, to demand thatthe charge shall be accomplished ; this right is irrevocable, and it shallbe not in the power of the donor to discharge the first donatary in.prejudice of the right acquired by the third person ; for the clausewhich includes the second or fideicommissary donation, making part of
368 WIJEYEWARDENE S.P.J.—Mudaliyar Wijetunga v. Duwalaga Roasie.
an act of donation inter vivos, tbe fideicommissary donation includedtherein is of the same nature, and consequently is a donatio inter vivos,and consequently irrevocable. It ought then to be no longerin the power of the donor to revoke it, by discharging the first donataryfrom the charge imposed upon him, and from the engagement which hehas contracted in favour of the second. With regard to the rules of lawrelied upon in support of the opposite opinion, Quaeque eodem mododissolvuntur quo colligata sunt. Quae consensu contrahuntur consensudissolvuntur ; these rules only apply as between the contracting parties ;and not in prejudice of any right acquired by a third person. Thisresults from the last law ff. de pact, which decides that the surety whohas acquired a legal exception (un droit de fin de non recevoir) by anagreement between the creditor and the principal debtor, cannot bedeprived of that right by an opposite agreement of the same parties ”.(Pothier on Obligations Part I., Chapter I., Article 5, Section 73 ;Evans’ Translation).
At this stage it is desirable to consider what kind of a gift is indicatedby Perezius when he speaks of “ a gift made to one person which is madein favour of a family in which the donor wishes the property to remain”.
While dealing with testamentary fidei commissa left to a family Voet(36.1.27) discusses the definition of “ family ” according to JuBtinian.He then proceeds to consider two kinds of such a fidei commissum—fidei commissum unicum and fidei commissum multiplex—and says :—
“ The bequest may be of such a kind that the fidei commissum isa single one, and where it has operated once, or where there has beenone restitution to the family, the fideicommissary obligation is deter-mined, nor is the person who by virtue of such la restitution to thefamily has acquired the property or the inheritance obliged after hisdeath to restore it to another member of the same family, but he isable to transfer it to a stranger by act inter vivos.or by last will.
But, on the other hand, it may be a recurring (multiplex) fidei com-missum, circulating as it were throughout the family, with the resultthat the person to whom, in the first instance, restitution has beenmade as being one of the family, is bound to restore the inheritance toanother member of the family and he again to a third member, andso on, so long as there are members of the same family surviving.
The first kind of bequest, where the terms of the fidei commissumare completely satisfied by a single act of restitution and the fidei-commissary is not obliged to make a further and repeated restitution,seems to take place when the testator, in unqualified terms, by meansof words which have special reference to the person (concep is inpersonam) of the heir, has prohibited the appointed heir from alienatingthe property or inheritance out of the family, without any furtherdirections, or has ordered him to leave the estate to the family ”(Voet 36.1.28. Me Gregor’s Translation.)
On the above passage in Voet and in view of Sections 2 and 3 of theEntail and Settlement Ordinance, I hold that the gift to be consideredin this case is a fideicommissary donation which “ involves the benefitof the family ” as mentioned by Perezius.
WUETEWABDENE S.P.J.—Mudaiiyar Wijelunga v. Duwalage Beane. 389
The view favoured by Perezius that such a donation is irrevocable evenin the absence of an acceptance on behalf of children not yet in esseappears to me 'to be the more reasonable view.
An identically similar question was decided in Ex parte Orlandiniand two others (South African Law Reports (1931) Orange Free StatesProvincial Division, page 141). In that case Mrs. Orlandini gifted aproperty in equal shares to Daniel Brink and Stephenus Brink with thecondition that at the death of each of them his share shall “ devolveon his children bora or still to be born of his now existing marriageAt that time Daniel Brink had two minor sons and £tephanus Brinkone minor son. Mrs. Orlandini and Daniel Brink and Stephanus Brinkpresented a petition to Court for the revocation of” the fidei commissumabout three years after the execution of the deed of gift. The Courtconsisting of Sir J. E. R. de Villiers, Judge-President, and Mr. JusticeFischer disallowed the application and in the course of his judgment deVilliers J.P. said—
“ Now it seems to me that the argument of Perezius is unanswerable 4for, if acceptance by minors and unborn persons were necessary tolend binding force to a fidei comm’ssum in favorem familiae, it wouldfollow that such a fidei commissum could not, in practice, be consti-tuted by act inter vivos …. The only question which remainsis whether the donatio made to Daniel and Stephafius Biink falls withinthe principle stated by Perezius. The reference by him (in the passagequoted) is to a case where a donation made to an individual * involvesthe benefit of the family, the donor wishing that the property shouldremain in the family ’. It seems to me that in the present case thetransfer of the land to Daniel and Stephanus Brink, on conditionthat they may not dispose of it but that on the death of each it is to goto his children born or to be bom of his existing marriage, falls withinthe description of a ‘ donatio involving the benefit of a family, withinwhich the donor wishes it to remain ’. The reasoning of Perezius alsoapplies, for here too we have minors, and unborn issue of Daniel andStephanus' existing marriages. It must therefore be held, in accordancewith the passage quoted from Perezius, that upon the acceptance ofthe donatio by the first two donees (Daniel and Stephanus) the fideicommissum became effective and binding as a whole. It can thereforenot be revoked without the consent of the fideicommissaries ”
There are certain local decisions on this point and the conflicting viewsexpressed by various Judges create some difficulty. The earliest caseis Weerakkodage John Perera v. Avoo Lebbe Marikar x. In that case theproperty was granted by Juan to his daughter Anna subject to thecondition that she should not alienate or encumber it and that after herdeath it should be enjoyed “ by her heirs and descendants in perpetuityunder the bond of fidei commissum ”. Anna accepted the gift. Some-time afterwards, but before any children were bom to her, Juan devisedthe property absolutely to Anna by a last will. Anna conveyed theproperty to the defendant whose title was disputed in that case by the
1 (1884) 6 Supreme Court Circular 138.
370 WIJEYEWARDENK S.P.J.—Mudaliyar Wijetunga v. Du-walage Rossie.
plaintiff, a son of Anna bom after Juan’s death. It was held that theplaintiff was entitled to succeed and Clarence J. who accepted and actedupon the opinion of Perezius said—
“ I find, therefore, the Roman-Dutch jurists, so far as their hypo-thetical reasoning or imaginary cases go, favouring what seems to methe commonsense view, that where a voluntary family settlement ismade, by which somebody benefits immediately and other classescontingently on their being bom and living to inherit, the settlementtakes effect in favour of these future classes immediately on its takingeffect, qua the immediate participator.”
The Counsel for the appellant questioned the soundness of this decisionon the ground that it would be “ intolerable ” for the unborn to bebound by the contracts of the living. That no doubt is a principle whichwould readily be accepted in case of contracts where there is even apossibility of the contract being prejudicial to the interests of the unborn.But I fail to see how under our law a gift could ever be burdensome tochildren not in esse and why in the case of such a contingency—if sucha contingency could arise—the fideicommissary donees could not freethemselves from that burden. It was then contended that the case ofWeerakkodage John Perera v. Avoo Lebbe Marikar {supra) could bedistinguished as the fidei commissum in that case was a perpetual fideicommissum. I am unable to accept that contention based on the use ofthe words “ in perpetuity Professor Lee dealing with Perpetualfidei oommissa at page 384 of his Introduction to Roman-Dutch Law(Third Edition) says—
‘ The testator, then, may tie up the property for ever if he pleases.But the mere use of the word “ perpetual ”, or the like, is not sufficientto produce this result ’.
‘ Thus, if he says—“ I will that my goods after the death of myfirst heir shall descend to my next of kin then in being, and that theyshall always go from one to the other of my blood relations, and shallnot at anytime pass outside my family”, these words will not besufficient to tie up the property beyond the fourth generation inclusive,unless he goes on to add that: “ the fidei commissum shall not at anytime or in any event whatsoever come to an end ”, or other words oflike import ’.
Moreover as stated earlier by me we have the authority of Voet that afidei commissum in favour of a family may be a, fidei commissum multiplexor a fidei commissum unicum and there is also the additional fact thatat present, even if a donee uses language sufficient to create a perpetualfidei commissum, the Entail and Settlement Ordinance will rendernugatory any restraint on alienation for a longer period than “ the livesof persons who are in existence or en ventre sa mere at the time when suchdeed …. is executed and are named ….in such …. deed …. and the life of the survivor ofsuch persons. ”
It was also submitted that the decision had not the binding authorityof a Pull Court decision. As the appellant’s Counsel appeared to question
WIJEYEWARDENE S.P.J.—Mudaliyar Wijelunga v. Duwalage Rossie. 371
the correctness of the statement of the Editor of the Law Reports thatit was the judgment of Clarence J. and Dias J. that was delivered byClarence J., I examined the original judgments kept at the SupremeCourt Registry and found that the statement in the Law Reports wascorrect as the judgment delivered by Clarence J. had been signed bothby Clarence J. and Dias J. while a separate dissenting judgment wasgiven by Burnside C. J. In 1884 the Supreme Court consisted of a ChiefJustice and two Puisne Justices, and, therefore, the decision in Weerak-Jcodage John Perera v. Avoo Lebbe Marilcar (supra) would he a full Courtdecision binding on us (vide Jane Nona v. Leo 1 and Appu Sinno v.Girigoris 2).
Soysaet al. v. Mohideen 3 was a decision of a Bench-of two Judges on thequestion of the revocability of a fideicommissary donation where thefidei commissarii were not in esse at the date of the execution of the deed.In that case the Supreme Court followed with approval the decision ofClarence J. and Dias J. in the earlier case which was regarded as abinding authority.
Carolis et. al. v. Alwis 4 is again a decision of a Bench of two Judgesand the Court had to consider there a similar question. The plaintiffsin that case who claimed as fidei commissarii were minors at the time ofthe execution of the deed of gift (vide page 161). This Court expressedin that case a view that even where the fidei commissarii were not inesse the fidei committens could revoke the deed if there was no acceptanceon behalf of the fidei commissarii.
There is, as mentioned earlier by me, a conflict of views among theRoman-Dutch Jurists on the necessity of an acceptance on behalf offidei commissarii not in esse to make a fideicommissary donation irrevoc-able. But as pointed out by Professor Lee (vide An Introduction toRoman-Dutch Law, Third Edition, page 16) where the opinions of theJurists are at variance, or bear an archaic stamp the Courts adopt theview supported by authority or most consonant with reason.
For the reasons given by me I hold that the question now underconsideration must be answered in the negative.
I agree with my brother Jayetileke—(a) that the defendant is entitledto claim compensation at Rs. 250 an acre in respect of improvementsand (b) that the defendant has the right to retain possession of theproperty until his claim is satisfied.
The District Judge has given the plaintiffs damages at Rs. 20 per monthfrom November 4, 1941, till they are restored to possession. In viewof our decisions on the questions of compensation and jus retentionis theplaintiffs would have a right to claim damages at Rs. 20 a month onlyfrom the date when the defendant’s claim to compensation is satisfied.
I affirm the decree of the District Court subject to the modificationsindicated by me in the two preceding paragraphs.
The appellant will pay the respondents the costs of this appeal.
1 (1923) 25 N. L. 11. 241.
* (1914) 3 Balasirujham's Notes of Cases 20.
(1914) 17 N. L. R. 279.
(1944) 45 N. L. R. 156.
372
XA.YETILEKE J.—Mudaliyar Wijetunga v. Duwalage Roasie.
Jayetileke J.—
I have had the advantage of reading the judgment prepared by mybrother. I entirely agree with that judgment and do not find it necessaryto add any words of my own.
There remains only the question whether the defendant is entitled toset up any claim for compensation for improvements against the plaintiffswho are the fideicommissaries. It is admitted that the land was plantedwith budded rubber by E. C. de Fonseka after he purchased- it iromNandiris onD 3. There are no grounds for holding that E. C. de Fonsekadid not believe that he had good title to the land when he planted it.He had a deed in his favour which purported to give him title from thefideicommissaries and the probability is that he planted the land in thebona fide belief that he was the owner.
The authorities indicate that a fiduciary is entitled to compensationfor useful improvements effected by him from the fideicommissaries.In Livera v. Abeyainghe1 it was held that a purchaser from a fiduciarycould not claim compensation for useful improvements effected by himfrom the fideicommissaries. There was an appeal in -that case to thePrivy Council and the judgment of the Privy Council is reported in19. N. L. R. at page 492. The Privy Council did not decide the questionwhether a fiduciary could claim compensation for useful improvementseffected by him from the fideicommissary, but it held, on the facts, thatthe appellant was a trespasser and that he could not, therefore, beregarded as a bona fide improver. In Daesanayake v. TiUekaratne 2 it washeld that a fiduciary is entitled to the same rights of compensation forimprovements as any other bona fide possessor and to the retention of theproperty until compensation is paid, and that a purchaser from a fiduciaryis in the same position as the fiduciary. In Du Plesaia v. Estate Meyerand others 3 Searle J. said—
“ No case has been quoted in which the Court has laid down theprinciple that a fiduciary or his estate can claim as against fidei com-missaries for the beneficial expenditure on the property, the subjectof the fideicommissum. But the Roman-Dutch Law authorities arecertainly in favour of the view that he can do so ”.
In Brunsden's Estate v. Brunsden’s Estate and others 4, Kotze J. said—“ It was generally conceded that a fiduciary was entitled to compen-sation for improvements effected by him and Voet 36.1.6., andDu Plessis v. Meyer were referred to in support of it. We may take itthat a fiduciary is entitled to have expenses and improvements which abona fide possessor is entitled to claim”.
I would, accordingly, hold that the defendant is entitled to compensationfor the improvements effected by his predecessor and to retain possessionof the land till he is paid the compensation. The trial' Judge has notassessed the compensation, but Counsel suggested that thea mount shouldbe fixed by us. On the question of assessment the general rule is that the
3 1913 Case Supreme Court Reports1006 at page 1018.
* 1920 Case Supreme-Court Reportspage 159 at page 171.
1 18 N. L. R. 57.* 20 N. L. R. 89.
SOERTSZ A.C.J.—-The King e. Banaiinghe.
373
improver is entitled to the cost of the improvement or the present valueof it whichever is less. Having regard to the price of land planted withrubber at the time of the institution of the action I think it would beadvantageous to the plaintiffs to pay the cost of the improvement which Iwould fix at Rs. 260 per acre. I agree with the order made by my brother.
Decree varied.