CAJJEKERATNE J.—Pabilina u. Karunaratne
1948 Present: Howard C.J., Canekeratne and Windham JJ.
PABILINA, Appellant, and KLARTJNARATNE et al.u RespondentsS. C. 210—D. C. Colombo, 3,389
Fidei commissum—Requisites for validity—Doubt as to ascertainment of eventor condition of gift over—Absolute title to donee.
A deed of gift contained .the following clause “ We hereby grant thesame by way of gift unto William, Hendrick, and Luvina to be vestedin them share and share alike after our death and after we shall havepossessed the issues and profits during our life time. We authorize thesaid three donees, their descending heirs, executors, administrators andassigns to own and undisputably possess the same for ever after ourdeath. We hereby covenant with the said William, Hendrick andLuvina and their heirs, executors, administrators and assigns that thesaid three donees or each of them can. neither sell, mortgage, gift noralienate the portion of land and that their children can do whateverthey please therewith ”.
Held, that the deed did not create a fidei commissum as it was not clearwhen the children of the donees, if beneficiaries, were to succeed.
_^.PPEAL from a judgment of the District Judge, Colombo.
V. Perera, K.C., with W. D. GunaseTcere, for defendant, appellant.
H. W. Jayewardene, for plaintiffs, respondents.
Cur. adv. vult.
December 14, 1948. Canekeratne J.—•
This is an appeal by the defendant from a judgment ordering herremoval from lot A 2, in plan No. 1,841 dated June 29, 1916, which hasbeen declared the property of the plaintiffs. They are the grand-childrenof one Juana Fonseka, who was the owner of a land called Kapitan Moru-parangiyawatta alias Galpottewatta. By deed No. 3,841, dated July 27,1907, the latter assisted by her husband, T. S. Fernando, donated anundivided three-fourth share towards the west of the portion marked Ain a plan dated July 16, 1907, to her three children, William, Hendrick,and Louisa. By a later deed she transferred the eastern fourth shareand it ultimately passed to one R. M. Hendrick Perera. In October,1913, Hendrick sold his undivided one-third share to one K. Don Hendrick.On January 23, 1914, Louisa and her husband instituted an action forpartitioning this land against William, Hendrick and R. M. H. Perera,allotting this portion, inter alios to the second defendant. K. D. Hendrickintervened in this action about March 2, 1914, and pleaded that the sharethat passed to Hendrick Fernando on deed 3,481 should be allotted tohim. An interlocutory decree was entered after trial on February 15,1915, whereby the first plaintiff, first defendant and the added defendant,KL. Don Hendrick, were each allotted an undivided third share of the.western portion and the third defendant an undivided fourth share onthe east. The land was divided into separate lots and by the final decree,
1J. N. A 86024-1,044 (1/4.9)
170CANETCERAT3STE j.—Lab Hina v. Karunaratne
dated November J2, 1917, lot A 2 was allotted to Louisa. She by deed(D 2) dated February 5, 1920, sold this lot to K. Don Paules, who sold thesame to the defendant by deed (D 3), dated February 28, 1944. Thedefendant also succeeded to the interests of her father K. Don Hendrickin lot (A 1). Louisa died on December 21, 1935, and her children, thetwo plaintiffs, instituted this action on May 16, 1944.
Two points were argued before us in support of the appeal. In thefirst place, that deed No. 3,841 did not create a valid fidei commissum andthat therefore the powers of Louisa under it were unfettered, and in thesecond place that the plaintiffs were precluded from disputing the validityof the transfer by their mother to Don Paulis, and of the transfer for valueby Don Paulis to the appellant. The interlocutory decree in the partitionaction was entered by a member of the Bar, then officiating as DistrictJudge, who was noted for the care with which he handled every matterbefore him ; he had the deed of gift before him and had to considerwhether the share given to Hendrick by his mother passed to his vendee,both Hendrick and the vendee being parties to the action. The enquirywas held about a year after the decision in Coudert v. Elias 1, whichstemmed the current of authority and the Judge would have been awareof that decision.
A solution is to be reached rather from an examination of the contextthan from a comparison with other decisions. Interpreters have to dealwith the written expression of a donor’s intention. They have toascertain that intention from the language used really by the draftsmanemployed by him. It is now settled, that the presence of the word“ assigns ” is not inappropriate for the purpose of conveying thedominium in the property to a fiduciary ; it would not necessarily makeinvalid a fidei commissum which is otherwise well created. For thecreation of a fidei commissum the language used must clearly show,(1) that the gift is not absolute to the donees ; (2) —ho are the persons tobe benefited, and (3) when are they to benefit2. The person to whom aproperty is given is enjoined after a certain time, or after his death,to hand over the property or allow it to pass, either in whole or in part,to another. Where a real doubt arises on any of these points, a courtwould rather be inclined to adopt the view that the person, the donee orlegatee, holds the property free of any burden. Doubt as to whethera valid fidei commissum has been created includes such doubt as to theevent or condition as will prevent its ascertainment by a court of law.It was not disputed by Counsel for the respondents that the third partwas as essential as the others.
The deed is in Sinhalese, and two translations have been filed in thecase (PI) by the plaintiffs and (D 5) by the defendant ; the learnedJudge seems to have followed (D 5). The operative part of the deedruns thus : We …. hereby grant the same by way of gift untothe said William Fernando, Hendrick Fernando and Luvisa Fernando,to be vested in .them share and share alike after our death and afterwe shall have possessed the issues and profits during our lifetime,1 (1914) 18 N. L. R. p. 175.
* Van der Linden, Institutes (Henry's translation p. 137, 139.)
Grotius, Introduction 2—20—2
Van Leeuwen, Roman Dutch Law, 3—8—1.
CAXEKERATXE J.—Pabilina v. Karunaratne
to wit the western three-fourth share”. The next clause authorises“ the said, three donees, their descending heirs, executors, administratorsand assigns to own and undisputably possess the same for ever afterour death The translation on (P 1) has the words “ their heirs,”instead of ” their descending heirs It was not disputed that theSinhalese words mean “ the executors, administrators and assigns ”of the donees. The words referred to above are used as words oflimitation in respect of the estate conveyed to the donees, and thus anunfettered title is conveyed to them in the first instance. The donorsprovided that the full proprietary right in the share should prima faciebe vested in a donee, and unless there is anything in the rest of the deedto modify this, the right of a donee would be absolute.
The deed proceeds as follows, “ We hereby covenant with the said-William …. and their heirs, executors, administrators andassigns that the said three donees or each of them can neither sell,mortgage, gift, nor alienate the portion of land and that their childrencan do whatever they please therewith”. It is not clear when thechildren are to benefit. Do the words used mean, that the children areto succeed to the property, if the donees act contrary to the prohibitoryclause, or is it on some other event ? Mr. Perera contends that thedevolution depended on the donees making no alienation in their life-time nor any disposition of it by will. It is important to note that thewords used are not “ their heirs ”, but “ their children ”. It was arguedfor the respondents, that the words, “ possess for ever ” in the earlierclause mean, “ possess during their lifetime,” for a person, it is said,can only possess while he is alive and that the language used in the deeddoes not make the event on which the substitution is to take effectuncertain, i.e., it takes place on the death of the donee. As the drafts-man of the deed is a Sinhalese Notary any apparent incoherency should,it is argued, be attributed to the notary's want of care rather than to anyuncertainty on the part of the donors. The duty of interpreters is todeclare the meaning of what was written in the instrument, not of whatwas intended to have been written. The document must be read as awhole. It is, generally, not possible to disregard any part of a document.It may, however, be permissible sometimes to ignore words inserted care-lessly in one part of a document, especially where the rest of it makescertain what was intended. One would act arbitrarily in striking outthe words “ executors, administrators and assigns ” from the context.It would he impossible to disconnect the words, <c for ever,” from the restof the expression used in the deed.
It may possibly be that this view is not in aecord with the real intentionof the donors, but that is a matter of conjecture. If Juana entertainedthe intention that her grand-children should be substituted for herdaughter as regards the share the latter got, she or her draftsman hasfailed to use language to express it. This is essentially a case where acourt should take the view that the language used by the donors has failedto disclose an intention to give a share of the property to Louisa’s childrenon her death.
Wijesekere v. Jayawardene
It is unnecessary to consider the second point. Mr. Jayewardenecontends that the observations of the learned Judge in Soysa v. Mishin 1,were obiter and refers to the views of the Privy Council as regards bonafide alienee, in Sitti Kadija v. De Sararn 2. It may be a point for con-sideration in a future case how far these varying views can be reconciled.When that occasion arrives a court may also refer to the observationsmade by Lord Phillimore in Gunatilleke v. Fernando 3, and consider thespecial case mentioned by the institutional writers that the propertyshould remain with the purchaser where the fiduciary and the vendeewere both ignorant that the property was the subject of the fideicommissum, and the ignorance could be attributed to no fault on theirpart, but wholly to the conduct of the testator 4.
The judgment of the District Court is set aside and the respondentswill pay the costs of the trial and of the appeal to the appellant.
How Ann C.J.—I agree.
VV ends am J.—I agree.
PABILINA, Appellant, and KARUNARATNE et al., Respondents