083-NLR-NLR-V-72-P.-ABEYSINGHE-Appellant-and-P.-L.-BAUDHASARA-and-10-others-Respondents.pdf
H. N• G. FEBXAXDO, C.J.— Abeysinghe v. Daudhasara
3Si>
1967Present: H. N. C. Fernando, C.J., and Sirimane, J.
P.ABEYSINGHE, Appellant, and P. L. BAUDHASARA and 10 others,
Respondents
S. C. 2S5 (63(F)—D. C. Colombo, S930JP
Adoption oj Children Ordinance (Coy). Cl)—Scclioti 6 (3)—Deed oj fideicommissum—Designation of lauful children or lawful heirs of donee as fdcicommissarics—Adoption of child by donee subsequently—Death of donee without issue—•Whether adopted child acquires any rights under the fideicommissum.
A condition in a deed of gift of 3rd February 1930 burdened the donatedproporty with a fideicommissum in favour of the lawful children of the doneeM or, failing such children, in favour of the lawful heirs of M. M diedunmarried and without issue. But shortly before hia death, M adopted a childunder tho Adoption of Children Ordinance.
Tho question to bo decided in tho present action was whether the adoptedchild becamo entitled to tho property or any interest in it.
Held, that tho proviso to section C (3) of tho Adoption of Children Ordinanceprevented the adopted child from acquiring any right, title or interest in theproperty whether as M’s lawful child or as M’s lawful hoir.
^IPPEAL from a judgment of the District Court, Colombo.
Ranganatkan, Q.C., with N. S. A. Goonetilleke, D. C. Amerasingheand D. 3. Wijewardene, for the substituted plaintiff-appellant.
H. IF. Jayeioardene, Q.C., with C. D. 3. Siriutardene and B. Bodinagoda,for the 21st defendant-respondent.
Cur. adv. vult.
September 1, 1967. H. N. G. Febxaxdo/C.J.—
This appeal involves an interesting and somewhat difficult question asto the property rights acquired h}' persons adopted under the Adoptionof Children Ordinance (Cap. 61). It arises in an action for the partitionof valuable residential property situated in the city of Colombo.
It is common ground that the property formerly belonged to oneAranolis Appuhamy, who by the deed P5 of 3rd February 1930 donatedthe property to his son Manis, subject to the following condition :—
" that the said donee shall not be entitled to sell, mortgage or leasefor more than six months at a time or otherwise alienate the 6aidpremises during his life time and that after his death the said premisesshall devolve on his lawful children. In the event of his dying withoutissue the said premises shall devolve on his lawful heirs. ”lxxct—17
1*—J 11642—2,255—(2/70)
386
H. X. G. FERXANDO, C.J.— Abeysinghe v. ISaitdhasara
It is not disputed that the condition had the effect of burdening theproperty with a Fideicommissum in favour of the lawful children ofManis or, failing such children, of the lawful heirs of Manis. Manis diedunmarried and without issue. But shortly before his death, Manisadopted a child Tharika under the Adoption of Children Ordinance,the relevant Order (marked 21D3) having been made by the competentCourt, the Court of Requests of Colombo. On 21st January 1959,Manis made a Last Will appointing Tharika his sole heiress to all hisproperty.
The main dispute in this ease was whether the corpus of this actionpassed on the death of Manis to his surviving three sisters (the 1st, 2ndand 3rd defendants), and to the 4th to 10th defendants and the plaintiff(all of whom are the children of a deceased sister of Manis), or else whetherit passed under the Last Will or otherwise to Tharika the adopted childof Manis.
The learned trial Judge has held that Manis had no right in the propertyof which he could dispose by will. This finding has not been challengedat the hearing of the appeal, and I hold that it is correct. The questionto be decided is whether Tharika, qua the adopted child of Manis, becameentitled to the property or any interest in it.
Section 6 (3) of the Adoption of Children Ordinance provides asfollows:— '
** Upon an adoption order being made, the adopted child shall forall purposes whatsoever be deemed in law to be the child born inlawful wedlock of the adopter :
Provided, however, that unless the contrary intention clearly appearsfrom any instrument (whether such instrument takes effect inter vivosnr mortis causa), such adopted child shall not by such adoption—
(a) acquire any right, title or interest in any property—
(i) devolving on any child of the adopter by virtue of anyinstrument executed prior to the date of the adoptionorder;
(ii) burdened with a fideicommissum in favour of the descendantsof the adopter ; or
(Hi) devolving on the heirs ab intestato of any child born inlawful wedlock of the adopter;
becomes entitled to any succession (whether by will or ab intestato)jure representations the adopter.
The first sentence of the sub-section (read without the Proviso) hasthe clear effect that for the purposes of any instrument an adoptedchild must be regarded as a child born in wedlock to the adopter. Ifthat sentence had stood alone, therefore, Tharika, being deemed inlaw to be the sole “ lawful child ” of Manis, would have become entitled
H. X- G. FERXAXDO, C.J.— Abeysinghe v. Bavdhnsara
387
to this property as a designated fideicommissary heir under P5. ButTharika becomes excluded by two of the clauses of Proviso (a), becameshe is prevented from acquiring any right title or interest in anyproperty—
(i) devolving on any child of the adopter by virtue of P5, which wasexecuted prior to her adoption ; or
(ii) which was by P5 burdened with a Fideicommissum in favour ofthe descendants of Manis.
Thus far, the opinion of the learned District Judge accords with mine,and I need add nothing to the reasons which he has stated fortheopinionthat the devise of the property by P5 to the lawful children of Manis wasineffective to pass the property to an adopted child. But the learnedtrial Judge nevertheless reached the conclusion that since an adopted childis by virtue of the first sentence in sub-section (3) of Section 6 of theOrdinance a lawfuljchild of the adopter, he is therefore the laicful heir ofManis and thus the person entitled to succeed under the clause in P5providing “ in the event of his (Manis) dj'ing without issue the premisesshall devolve on his lawful heirs In reaching this conclusion, thelearned trial Judge considers that the Proviso to s.G{3) excludes anadopted child only to the extent that he is not to be regarded as a lawfulchild or a descendant of the adopter for the purposes of any devise in aninstrument in favour of lawful childien or descendants. The final clausein the condition in P5, being a devise to lawful heirs, is not in his opiniona devise the benefit of which is denied to an adopted child by theProviso.
With respect, and with some hesitation in a case of first instance, Imust disagree with this opinion. Let me consider first the intention ofthe Legislature evidenced in the Proviso, in its reference to instrumentsexecuted prior to an adoption, and. to properties burdened with aFideicommissum in favour of descendants of an adopter. The Legislatureappears to have taken into account the contemplation of a personexecuting such an instrument or so burdening property ; in this context,that children will be born in wedlock to the devisee. The adoption ofchildren of a devisee would not ordinarily or naturally be within thecontemplation of an executant. This aspect of the matter is emphasisedin the clause (ii) of the Proviso, if, even after the adoption of a child by X,someone makes a devise to X, burdened with a Fideieommissum infavour of X’s descendants, the Proviso excludes the adopted child fromthe devise, unless a contrary intention clearly appears from the termsof the devise. This clause of the Proviso confirms the impression thatits purpose is to make effective the true intention of the executant, theintention to exclude being presumed unless the contrary is expressed.
In my opinion therefore, a Court must, even if there be doubt, leantowards the construction that the Legislature had no intention that aninstrument like P5 should benefit adopted children. The existence ofany «ucb intention in the mind of the donor in this esse U complete}?
3SSH. N. G. FERNANDO, C.J.— Abeysinghe v. Baudhasara
negatived by the fact that Po was executed at a time (1930) when anadoption by Manis could not have in law passed any rights to an adoptedchild even in property owned absolutely by Manis.
Secondly, the learned Judge appears to have misunderstood the termsof the Proviso to sub-section (3) when he formed the opinion that itspurpose is only to exclude an adopted child in a “conflict” with a lawfulchild or other descendant of the adopter. Clause (i) of the Proviso deniesrights to an adopted child vnder an instrument executed prior to hisadoption ; and clause (ii) denies to him rights to any property burdenedwith a fideicommissum in favour of descendants of the adopter. TheLegislature has thus laid stress on the character of an instrument or ofprojierty, in its declarations that an adopted child cannot acquire aninterest under such an instrument or in such property. The questionwhether Manis had or had not lawful children is therefore not relevantin construing or applying the Proviso.
The instrument in this case (Po) is, by reason of the time of its execution,clearly within clause (i) of the Proviso. The conclusion that Tharikatakes under P5 conflicts with clause (i). The property in this, case isbrought within clause (ii), because it is burdened in the manner specifiedin that clause. The fact that it is subject to an additional burden doesnot in my opinion take it outside the scope of that clause.
The conclusion of the trial Judge in this case permits the adopted childTharika to acquire title to the property on the ground that she is a lawfulheir of Manis. But she is a lawful heir only because, by the first sentenceof sub-section (3), she is the deemed lawful child of Manis, and such achild is denied rights in the present case by the first two clauses of theProviso.
I must hold that the property which is the subject of this litigationis property in which the adopted child Tharika is prevented by the Provisoto s. 6 from acquiring any right title or interest, and also that theinstrument Po is one under which she, is prevented from acquiring anyright title or interest.
The learned District Judge has entered decree dismissing the plaintiff’saction with costs paj-able to the 2.1st defendant. He has found that the12th defendant is entitled to a sum of Bs. 9000/- for compensation forimprovements to the property and for a iiis retentionis until compensated,and this finding was not challenged before us.
I set aside the decree of dismissal and for costs, and I hold that theminor represented bjr the 21st defendant has no interest in the property insuit. I affirm the findings in favour of the 12th defendant, who will beentitled also to his costs of contest in the District Court.
The case is now remitted to the District Court for decree of partitionto be entered in favour of the plaintiff and the 1st to 10th defendants interms of the shares proved at the trial, and declaring the rights of the
SiHscna v. The Queen
3S9
12th defendant in terras of the judgment of the District Judge. Ifthe parties desire a decree for sale, such a decree may be granted in thediscretion of the Court. In the circumstances, the 21st defendant willnot be liable for costs in either Court.
StRiMASE, J.—I agree.
Appeal allowed.