NOORDEEN et al v. BADOORDEEN et al

101-NLR-NLR-V-42-NOORDEEN-et-al-v.-BADOORDEEN-et-al.pdf


Noordeen v.- Badoordeen
393
1941Present: de Kretser and Wijeyewardene JJ.
NOORDEEN et al. v. BADOORDEEN et al.
42—5—D. C. Colombo, 1,073
Fidei commissum—Last will of Muslim testator—No prohibition against alien-ation—Fidei commissum simplex—Roman-Dutch law.
Where the last will of a Muslim testator contained the followingclause : —
“I bequeath to my daughter P, the premises …. so thatshe may enjoy the income thereof. After her death, these propertieswill go to her children, and if she leaves no children, then the husband’sshare according to religion being set apart, what is left will go to thebenefit of the relatives in the paternal line and entitled to inherit. ”
P died issueless. Her husband predeceased her.
Held, that the will must be construed in accordance with the principlesof the Roman-Dutch law and that the intention of the testator was thatthe property should devolve on P subject to a fidei commissum in favourof her children.
Held, further, that the clause created two separate fidei comissa-,one in respect of a half share in favour of P’s husband and the otherin respect of the half share in favour of the relatives.
The fidei commissum in favour of P’s husband lapsed at the death of Pand therefore a half share became absolutely vested in her at her death.
T
HIS was an action for the partition of a land of which the ownerwas Meera Neina who died in 1892 leaving a last will under which
he devised it to his daughter Pitchammal subject to certain conditionsand limitations. Pitchammal died without issue in September, 1937. Herhusband predeceased her in 1935.
The question was whether the last will, the material words of which aregiven in the headnote, created a valid fidei commissum.
The learned District Judge held that .the last will did not create a validfidei commissum and that the property belonged exclusively to the fourthdefendant.'-
He dismissed the plaintiff’s action.
L. M. D. de Silva, K.C. (with him C. E. S. Perera and A. H. M. Ismail),for plaintiff, appellant in appeal No. 42 and respondent in appeal Nos. 43,44, 45.—The question' for decision is whether a clause in the will of aMuslim residing in Ceylon but a native of Tinnevelly in South Indiacreated a fidei commissum.
394
Noordeen v. Badoordeen
In construing a will the primary consideration is the intention oftestator (Censura Forensis 1.3.7.7.). All the surrounding circumstanmay be looked at for the purpose of ascertaining this.
The word used to designate the beneficiaries in this will is “ Sokkara,
The experts translate this word as “ Agnates on the father’s side entitto inherit property ”. This definition is supported by all the Ta:Dictionaries. Vide Winslow’s Tamil Dictionary. Agnates in Muslim 1are described in Ameer Ali (4th ed.), Vol. IV at pp. 68 and 72. Sectiondeals with agnatic male relations.
Relatives mean an ascertainable class. Burge (4tli ed.), Vol. IVp. 768. Substitution may be in favour of a class. At page 773 sometirthis is equivalent to substitution according to the law of IntestSuccession. Vide Sande’s Frisian Decisions (De Vos Edition) 4.5.2.
In interpreting a document, the document must be looked at aswhole—(Sinnan Chettiar v. Mohideen’). In Amaratunga u. Alu;Soertsz J. says there is no need to go on a “ voyage of. discovery ”ascertain the class to be benefited. But a liberal construction shouldgiven to the words, 3 Nathan, p. 1902 para. 1881.
No words of express prohibition are necessary to create a fidcommissum'. The law does not require an express restraint on alienaticVander Linden 1.9.8. Restraint may be by implication. Walter PereiVol. (II.), p. 431.
Udumalevvai v. Mustapha’ is a parallel and almost indistinguishabcase where the restraint is by implication. See the older ca;Vyramuttu v. Mootatamby'. Here too there are no express words <restraint. The copy of translation of the deed clearly proves this.
In Udumalevvai v. Mustapha (supra) a deed of gift by a Muslim h;the words “ to possess and enjoy as his own from day to day ”, Theiit was held that there was a fidei commissum.
The learned District Judge is clearly wrong when he calls this a simplefidei commissum as distinguished from duplex.
The reference to simplex and duplex fidei commissa is in Voet 36.1.The Simplex fidei commissum was a local law peculiar to the province cAmsterdam. It was never introduced to other parts of Holland. So :cannot be the law in Ceylon. In Perera v. Perera‘ Bertram C.J. statespecifically that it was not introduced to Ceylon.
In Karonchihamy v. Angohamy ’ it was held that the whole of thRoman-Dutch law was never introduced to Ceylon.
In Weerasekera v. Pierisit was held that a Muslim could creata valid fidei commissum. This was followed in Sultan v. Pieris ”.
In a fidei commissum when does vesting take place ?
Is it at the death of the testator or Pitchammal ?
See Voet 36.1.26 ; 3 Nathan 1908; Maasdorp Summary 183.
1 15 G. L. TV. 109, at pp. 112 and 113.* 20 N. L. R. 463.
40 N. L. R. 363.• 8 N. L. R. 1.
3 34 N. L. R. 46.7 34 A7. L. R. 281.
23 N. L. R. 1.‘ 35 N. L. R. 57 at p. 79. ’
Noordeen v. Badoordeen
395
There is here a complete fidei commissum. The intention of thetestator is clear, the property is clearly designated and the beneficiariesare an ascertainable class “ the male agnatic relations entitled toinherit the property
H. V. Perera, K.C. (with him W. S. de Saram, F. A. Tisseverasinghe,
A. Rajapakse, P. Thiagarajah, and B. C. Ahlip), for fourth defendant,respondent.—The intention of a testator cannot be arrived at by conjecture.A conjecture is a guess. It is a matter outside the documet itself. Youcannot interpolate words to give a different meaning. No words shouldbe interpolate into a will—Galliers v. Kycroft1.
Intention must be clear. The Court should not allow the addition orinterpolation of words. (Walker v. Tipping °) .
Testator was a Muslim of Tinnevelly. Muslims are governed by theMuslim law. Conceptions of the Roman-Dutch law should not beincorporated into Muslim wills unless there is a clear indication that thiswas intended.
If such words as “under the bond of fidei commissum" are used then theRoman-Dutch law would apply. You will have to strain the Roman-Dutch law to apply it to Muslims.
There is no reason to resort to other systems of law when Muslim lawsuffices—Abdul Rahiman v. Ussan Umma", Ba.lk.is v. Perera'.
The Privy Council in Weerasekera v. Peiris (supra) did not differ fromthis general principle though it decided in favour of a fidei commissumin the particular case. There is no express prohibition against alienationand when there is a doubt as to whether a substitution in a testamentwas direct or fiduciary the former is presumed to have been intended,Voet 36.1.1.
If words are capable of more than one interpretation, the intention isnot clear. Frisian Decisions (De Vos Edition) p. 57.
A native of Tinnevelly is not likely to know the complicated system ofthe Roman-Dutch law.
In any case the fidei commissum lapses as the class to be benefited,is vague and uncertain. Is it the father’s agnates or daughter’s agnates ?“ Voyage of discovery ” to ascertain a class is unwarranted. Amaratungav. Alwis (supra).
In defining agnates the translators have given their own gloss to theword. The Court will ignore this.
Udumalevvai v. Mustapha (supra) deals with a deed and not a will,hence the principles that apply are different.
The law is in favour of a free disposition of property rather than infettering it and the law should not be strained to effect a fidei commissum.
Though no express words of prohibition are necessary to create a fideicommissum, there must be a clear intention on the part of the testatorto prohibit alienation.
The fidei commissum simplex was introduced into Ceylon, (Perera v.Perera").
Such a fidei commissum contains a pious wish.regarding tying up ofproperty. It is not a fidei commissum at all. in the real sense of the word
1 3 Balasingham Reports 74.1 9 Hare Reports 800.
3 19 N. L. R. 175.
‘ 29 N. L. R. 284.
• 20 N. L. R. 403.
396WIJEYEWARDENE J.—Noordeen v. BadoordeenEven if there was a fidei commissutirr regarding half the property nofidei commissum attaches to the husband’s share. The husband’s shareis at least free from restraint. It is excluded but there is no giving overof such share to any beneficiaries.
M. D. de Silva, K.C., in reply.—Mcgregor’s Translation of VoetCommentaries on fidei commissum p. xi. contains a useful distinction“ doubt must not be confounded with difficulty ”
In Amaratunga v. Alwis1 certain expressions had to be deleted in orderto arrive at the class of beneficiaries. The law does not warrant this.
If the parties are -insufficiently designated the fidei commissum does notfail. The parties can be designated according to the rules of law, videVoet 36.1.32.
Translators are entitled to explain words (Wirasinghe v. RubeyatTJmma ’).
Next of kin mean heirs db intestato, Maasdorp Vol. (1) 216.
Muslim may be governed by the Roman-Dutch law (Weerasekera v.Pieris (supra) and Sultan v. Pieris (supra).
Re Time for vesting in fidei commissum see Voet 36.1.26.
There are no separate fidei commissa. The words “ the balance ”are decisive. Husband gets no share according to Muslim law unless hesurvives the wife. Here husband predeceased wife.
See. Ramanathan v. Saleem*; Udumalevvai v. Mustapha (supra) is anindistinguishable analogy to the present case.
N. E. Weerasooria, K.C. (with him Dodwell Gunawardana), for firstand second respondents in appeals Nos. 42, 44, 45, and appellants in appealNo. 43.
N. Nadarajah (with him M. M. I. Kariapper and H. W. Thambiah), forthird defendant, respondent in appeals Nos. 42, 44, 45, and appellant inNo. 44.
Cur. adv. vult.
May 5, 1941. Wijeyewardene J.—
This is an action instituted under Ordinance No. 10 of 1863 (LegislativeEnactments, Volume II., Chapter 56) in respect of a property in 2nd Crossstreet, Pettah, Colombo.
One Meera Neina was admittedly the original owner of the property.He died about 1892 leaving a last will P 1 which was duly proved. Bythe last will Meera Neina devised the property to his daughter Pitchammalsubject to certain conditions and limitations. Pitchammal died issuelessin September, 1937. Her husband predeceased her in 1935.
The case for the plaintiff and the first, second, third, and fifth defendantsis that Pitchammal acquired the property burdened with a fideicommissum. They state that on Pitchammal’s death the propertydevolved on Abdul Raoof and Abdul Cader by virtue of that fideicommissum. Abdul Cader conveyed his share to the plaintiff and the firstand second defendants by deed P 12 of November 12, 1937. By deedNo.v 391 of November 24, 1937, Abdul Raoof disclaimed any right or titleto the property and Abdul Cader claiming then to have become entitledto that half share Under the joint operation of the last will and the deed ofi 40 X. L. R. 363.'5 16 X. L. R. 369.3 42 X. L. R. 80.
WIJEYEWARDENE J.—Noordeen v. Badoordeen397
disclaimer conveyed it to the third defendant by deed No. 1405 ofDecember 20, 1937. Abdul Raoof was adjudicated an insolvent in 1933,and the fifth defendant, the assignee in insolvency, caused a half shareof the property to be sold by public auction when one Nadarajan Chettiarbecame the purchaser. The present appeals, however, are not concernedwith the legal effect of the deed of disclaimer or the conflicting rights ofthe third and fifth defendants and Nadarajan Chettiar.
According to the fourth defendant, Pitchammal was entitled to theproperty absolutely in 1937 when she gifted it to M. A. Othuman by deed4 D 2 of May 20, 1937. By deed 4 D 3 of October 7, 1937, Othumangifted the property to the fourth defendant.
The District Judge held that the last will, P '1 did not create a fideicommissum and that the property belonged exclusively to the fourthdefendant. He dismissed the plaintiff’s action with costs. These appealshave been preferred against that judgment.
It is also necessary to state a few facts about the relatives of MeeraNeina living at the time of the death of Pitchammal. Meera Neinahad two brothers Mohamadu Alia and Kidar Mohamadu and a sister,Mohideen Pathumma. Mohamadu Alia, his sons and grandsons pre-deceased Pitchammal. Kidar-Mohamadu, his sons and all his grandsonsexcept Abdul Raoof and Abdul Cader predeceased Pitchammal. NeitherMohideen Pathumma nor her descendants were alive in 1937.
The questions of law that arise for decision on this appeal are: —
(i.) Is the last will to be interpreted according to Muslim law or theRoman-Dutch law ?
(ii.) Does the last will create a fidei commissum ?
(iii.) Even if the last will creates a fidei commissum in favour ofPitchammal’s children is there a further fidei commissumcoming into operation on the death of Pitchammal withoutchildren ?
(iv.) If there is such further fidei commissum what is the share, if any,to which Abdul Raoof and Abdul Cader become entitled ?
The last will P 1 is written in colloquial Tamil apparently by the testatorhimself who was a native of South India. The plaintiff called threeexperts to give evidence as to the meaning of the relevant words in thewill and they submitted translations P 2, P 3, and P 4. The fourthdefendant called two experts as witnesses and one of them submitted atranslation 4 D. 4. There is also available a further translation 4 D 1filed in the testamentary case in which the last will was proved.
The words and phrases which have given rise to conflicting legalarguments are : —
Pillaikki
Allathu
(3J Sokkaran
Thakappanai Seratha Sokkaranakku.
I agree with the learned District Judge that in the last will—
“ Pillaikki ” should be translated as “ children ”
“ Allathu ” meant “ if not ” and conveyed the meaning “ if she
had no children ”
“ Sokkaran ” is plural in meaning.
42/33
393
WIJEYEWARDENE J.—Noordeen v. Badoordeen
The District Judge has translated “Sokkaran” as “relatives” andnot ‘^relatives entitled to inherit” as contended for by the plaintiff.The evidence led by the plaintiff shows that the idea of “ being entitledto inherit ” is inherent in the word “ Sokkaran This evidence receivesstrong support from Winslow’s Tamil and English Dictionary which isaccepted as a standard dictionary. That gives the meaning of the wordas “ male heirs to one’s property ”. One of the experts called by thefourth defendant, Mr. Nalliah, who submitted the translation 4 D 4,has himself stated in answer to questions put by the Judge—
“ Sokkaran ” means “ relatives ” or relatives who have the right toget the property. Sokkaran implies the fact that the relativeis one who has a right to get the property. All the relativeson the paternal side cannot be said to have right to theproperty.
I am^not prepared to attach much importance to the evidence of theother expert witness 'called by the fourth defendant. He has notsubmitted a translation and does not appear to have given the subjectmuch thought. His evidence tends unfortunately to create theimpression—as found by the District Judge in, at least, one instancethat he is not disinclined to give “ very fanciful meanings'” to words insupport of the case for the fourth defendant.
I hold that “ Sokkaran ” means “ relatives entitled to inheritThe words “ Thakappanai Seratha Sokkaranakku ” would then mean to“ relatives in the paternal line and entitled to inherit ”.
A phrase to phrase translation of the relevant passage in the last willwould then be : —
En Kannukku- Piraku
En makal Pitchammalukku
Pira Kotte rendam Kurukku them
32 number Kittangiyum
Kompany thiru
70 number veedum
Irandaium
Rupai 11,000
Perumathi poddu
Nankodaiyai -eluthiyum
Varumanam thinkavum
Avalakku piraku
Aval pillaikki
Allathu
Markam pol
Purusannakku panku poka‘ Meetham
Thakappanai shemtha sokkaran-akku
Upayokapadavumakavum
After my deathto my daughter PitchammalPettah, 2nd Cross streetNo. 32 GodownSlave IslandHouse No. 70Both
Rs. 11,000Having valued atGive as a gift in writingto enjoy the incomeAfter herto her childrenif she has no childrenAccording to religionHusband’s share having beenseparatedwhat is left
to relatives in the paternalline and entitled to inheritfor (his or their) benefit
WIJEYEWARDENE J.—Noordeen v. Badoordeen
399
The passage may therefore be translated into English as follows : —
I bequeath to by daughter, Pitchammal, the premises ….so that she may enjoy the income thereof. After her deaththese properties will go to her children ; and if she leaves nochildren then, the husband’s share according to religionbeing set apart, what is left will go to the benefit of the relativesin the paternal line and entitled to inherit.
It was contended by the Counsel for the fourth defendant that theMuslim law governed the last will in question as the testator was aMuslim. I do not think that contention is tenable in view of the longand inveterate practice in our Courts to have recourse to the principlesof Roman-Dutch law in the construction of Muslim wills (see judgmentof Schneider J. in Abdul Rahiman v. Ussan Umma1 and judgment ofDrieberg J. in Balkis v. Per eraa). There have been, no doubt, conflictingdecisions with regard to the law deciding the validity of Muslim deeds ofgift after the ruling of the Privy Council in Weerasekere v. Pieris *. Butin none of these decisions has it been questioned that even in the case ofMuslim deeds of gift the validity of the restrictive clauses shouldbe considered in accordance with the principles derived from the Roman-Dutch law (see Sultan v. Pieris *).
As the last will contained no express prohibition against alienationby Pitchammal, Mr. H. V. Perera argued that there was no fideicommissum and further relied on the well known principle that wherethere was any doubt as to whether a substitution in a testament wasdirect or fidei commissary the former should be presumed to have been. .intended (Voet 36.1.1).
With regard to these general rules it is sufficient to state that there is nouncertainty about them as they are clearly laid down by Voet for theguidance of those charged With the interpretation of documents. It'should, however, be remembered as pointed out in a South African case(vide McGregor’s translation of Voet’s Commentaries on fidei commissap. 11) that "doubt must not be confounded with difficulty”. Moreover,there is the rule overriding all other general rules that “ in fidei commissathe essential thing that is taken into account is the intention of thetestator and it is not only his verbally expressed intention that is lookedto but also that intention which is tacit and may be deduced from thewords used as a necessary or manifest consequence (Censura Forensis
3.7.7.8.1
In this connection it is interesting to note that Voet himself states,after giving the various general rules : —'
“ It is commonly laid down that fidei commissa are odious in respectof the person burdened, and are strictly interpreted and must not beextended from person to person nor from one case to another ; andthis contention must be allowed if circumstances do not point in anotherdirection, as has been made clear in the different cases we have alreadyexamined, specially since the testator’s wishes ought to be regarded
i 19 N. L. R. 175.3 34 JY. L. R. 281.
3 29 N. L. R. 284.'35 N. L. R. 57, at p. 79.
400
WIJEYEWARDENE J.—Noordeen v. Badoordeen '
and observed above everything else and consequently these generalrules about the interpretation of fidei commissa often have a certainuse but often also are fallacious.”
I do not think that the law requires an express restraint on alienationfor the purpose of creating a fidei commissum. The definition of a fideicommissum given by Vander Linden (1.9.8.) negatives such a proposition.Dealing with fidei commissa, Vander Linden says, “Sometimes also aperson is appointed heir under the condition that the property after hisdeath shall pass to another ; this is termed a fidei commissum Thetrue position appears to be that such a restraint need not be in expressterms but may be gathered by implication. Walter Pereira says in hisLaws of Ceylon (194 Edition, Vol. 2, page 431) that a complete andeffectual fidei commissum is created by the words, “ I give my propertyto A subject to the condition that it is to become B’s property after thedeath of A ”. I do not think it makes any difference if the words“ subject to the condition ” given in that illustration are omitted andthe testator says, “ I give my property to A and on his death the propertyshall go to B ”, The words “ subject to the condition ” are, in my opinion,impliedly contained in the latter instance. I do not see any reasonwhy different legal consequences should flow because in one case thewords “ subject to the condition ” occur, while in the other case the ideaconveyed by these words could only be inferred by necessary implication.Moreover, there are local decisions which show that this Court did notattach any special significance to the omission of these words
In Vmma Levvai v. Mustapha1 Drieberg and Akbar JJ. held that aMuslim deed of gift.containing the following words created a valid fideicommissum : —
“I do hereby give by way of donation the properties ….
They shall possess and enjoy the said properties as their own from thisday for ever and in case any one of them happen to die "without issuethe shares will have to go to all my male children. I do hereby giveaway by way of donation the above-named properties to my sons andtheir heirs, executors, administrators and assigns. They shall possessand enjoy the said properties as their own from this day for ever ”.
In an earlier case Vyramuttu v. Mootatamby ~ Schneider J. held that afidei commissum was created by the provision “ the share of A should bepossessed and enjoyed by him during his life time and after him the sameshould go to the children of the other two sisters ”. In view of certainpassages in the judgment which gave rise to some doubt whether thewords “ subject to the condition ” did not occur in the deed considered. in that case, I read carefully a true copy of the translation of that deedproduced at the argument before us and found that, in fact, those wordswere not contained in that deed.
It was next urged by the Counsel for the fourth defendant that if thelast will P 1 created a fidei commissum it was a fidei commissum referredto in Voet (36.1.5.) as a fidei commissum simplex, and that the clause“ after her death these properties will go to her children ” did not
1 34 .V. L. R. 46.
* 23 N. L. R. 1.
WUEYEWARDENE J.—Uoordeen v. Badoordeen
401
constitute a complete fidei commissum or fidei commissum duplex but hadonly the legal effect of prescribing or defining the succession in the absenceof any disposition of the property by Pitchammal. A great deal of whathas been stated earlier in this judgment on the question of fidei commissais relevant to a consideration of this argument. I would add that neitherin Vyramuttu v. Mootatamby (supra) nor in Uduma Levvai v. Mustapha(supra) did the Judges take the view that the fidei commissarii in thosecases had the power to alienate. In Perera v. Perera1 the Court consideredspecifically the law with regard to a fidei commissum simplex.
In that case a person gifted his property to three of his children and“ their heirs and assigns as children and grandchildren, to be possessedor to be dealt with as they pleased subject to the direction hereinmentioned below The deed then provided, inter alia, that if one ortwo of the donees died without leaving a descendant, their shares shoulddevolve on the survivor ; and that if all three donees died without leavingany descendants the property should pass to anothter branch of thefamily. The deed contained no prohibition against alienation. BertramC.J. and Shaw J. set aside the finding of the District Judge that the deedcreated only a fidei commissum simplex. In the course of his judgmentBertram C.J. said :
“ It is clear, therefore, that the law of Holland recognized a fideicommissum of the nature here found by the District Judge and ifappropriate words are used for that purpose, I presume that such afidei commissum will be recognized by the law of the Colony. I think,however, that there are very strong reasons against giving this interpret-ation to the bare words used in this case.
In the first place, if we were to do so, we should be introducing intothe Colony, for the first time, a form of tenure of property which iswholly unfamiliar both here and in England, with which legal systemour own is bound up. I venture to say that it would be thought acontradiction in terms that any person should, be conceived as havinga life interest in a property and at the same time as having the powerto dispose by deed or by will of the whole dominium ..: . That
form of tenure may exist in Holland in certain circumstances. But Ithink it would require much more definite words than we have in thecase to induce us in any particular case to hold that it was intended inCeylon.” .
In an appropriate case it may become necessary to examine moreclosely the exact scope of the law as stated by Voet with regard to afidei commissum simplex. A fidei commissum simplex appears to havebeen a form of fidei commissum recognized in the local laws of Amsterdamand the question will have to be considered carefully whether such afidei commissum prevailed in Ceylon. In this connection I would referto the observation of De Sampayo J. in Karonchihamy v. Ango Hamy1that while it is true as a general proposition that the Roman-Dutch lawprevailed in Ceylon under the Dutch Government “ it is more correctto say that what so prevailed was not the whole body of Dutch laws,including legislation due to the peculiar circumstances of time and place,
1 20 N. L. R. 463.
* 8 N. L. R. 1.
402
WIJEYEWARDENE J.—Noordeen v. Badoordeen
but only what may be called the Common Law of Holland or so muchof it as was suitable to local needs and circumstances ”. For the purposeof this case it is not necessary to go any further than the learned Judgesdid in Perera v. Perera (supra) to hold against the contention of thefourth defendant that the fidei commissum in this case is of the limitednature of a fidei commissum, simplex.
I hold for the reasons given by me that by the last will the testatorhas given legal effect to his intention that the property in the first instanceshould devolve on Pitchammal subject to a fidei commissum in favour ofher children and that Pitchammal should have no power to alienate theproperty.
The question has now to be considered whether the fidei commissumlapsed entirely or partly on the death of Pitchammal without children.In the first place I do not think there is any uncertainty with regard tothe beneficiaries indicated by the word Sokkaran and the connectedqualifying phrases. As I have stated earlier in the judgment thesepersons would be “ the relatives in the paternal line entitled to inherit ”and they would be, in the context in which the word Sokkaran occurs,the relatives of Pitchammal. These persons are therefore clearlydesignated as they are the relatives of Pitchammal in the paternal lineand entitled to inherit from Pitchammal.
What then is the share of the property that devolved on the group of“ Sokkaran ” on the death of Pitchammal without children ?
In considering this question it is necessary not to lose sight of the factthat the last will has been drafted by a layman who had only a colloquialknowledge of the language in which it was written. A literal translationof the document shows that the testator desired a husband’s share to beset apart and the balance given to the Sokkaran. The testator contem-plated the probability of Pitchammal’s husband surviving Pitchammal andwished to provide for him in the event of Pitchammal dying withoutissue. The husband of Pitchammal was not a stranger to the family ofthe testator. He was the son of Mohideen Pathumma the sister of thetestator. Reading the passage as a whole I have come to the conclusionthat the testator has in the latter part of that passage created two separatefidei commissa, one in respect of a half share in favour of Pitchammal’shusband and the other in respect of the remaining half share in favour ofthe group of Sokkaran. The learned Counsel for the plaintiff put forwardhis argument as follows : —The testator wanted “ a husband’s shareaccording to religion to be set apart ”. The husband’s share mustnecessarily mean the share of a surviving husband. As Pitchammal’shusband predeceased' her there was no husband’s share according toreligion. Therefore, what was left, in the special circumstances of thiscase, after a husband’s share was set apart was the entire property andthat entire property went “ to the benefit ” of the Sokkaran. This isundoubtedly a very attractive argument. But on a very careful con-sideration I have reached the decision that the natural meaning of thewords is in favour of the interpretation that the testator intended tocreate and did in fact create two separate fidei commissa as stated by meearlier. The position, then, is that the fidei commissum in favour ofPitchammal’s 'usband had lapsed at the death of Pitchammal and
Haniffa v. (fader
403
therefore a half share pf the property became vested absolutely in herat her death. That half share has now devolved on the fourth defendantby virtue of the two deeds 4 D 2 and 4 D 3 (vide Perera v. Marianol).The remaining half share which was to go “ to the benefit ” of theSokkaran devolved on Abdul Raoof and Abdul Cader in equal shareson the death of Pitchammal.
I set aside the order of the District Judge and remit the case to theDistrict Court with the direction that the rights of the parties to theaction should be ascertained in accordance with the interpretation of thelast will as given by me.
I direct that no party should be entitled to the costs of the proceedingsin the District Court. The plaintiff and the first, second, third, and fifthdefendants will be paid by the fourth defendant their costs of appealin appeal No. 42. There will be no order as to costs of appeal in AppealsNos. 43, 44, and 45. All'future costs will be in the discretion of theDistrict Judge.de Kretser J.—i agree.
Set aside ; case remitted.