012-NLR-NLR-V-46-PEDURU-FERNANDO-et-al.-Appellant-and-MARY-FERNANDO-et-al.-Respondent.pdf
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Pedum Fernando and Mary Fernando.
1944Present: de Kretser and Jayetileke JJ.
PEDURU FERNANDO et at., Appellants, and MARY FERNANDO et al..
Respondents.
212—D. C. Negombo, 12.202.
Fidei comraissum—Gift to a person or his heirs, executors and administrators—
And descendants from generation to generation—Perpetual fidei
commisBum—Acceptance of gift.
' Where a deed of gift contained the following clauses:—.
That owing to the affection we had towards our daughter, the
deceased Lucia Fernando …. the wife of Peduru Fernando,wc hereby giftedandset over unto Peduru,the husbandofthe said
Lucia or his heirs, executors and administrators ….
To have and to hold the saidportion of gardenuntothedoneeor
his heirs, executors and administrators for ever …. and, afterour death, the aforesaid portions ofland shall be possessedbythe said
Peduru andhisdescendants without, selling,mortgagingor'alienating
the same or letting on lease for a period exceeding three years fromgeneration to generation and whentheir generationsceasetoexistthe
same shall devolve on the Roman Catholic Church
And IthesaidPeduru Fernando thankfully accepttheforegoing
gift subject to the conditions mentioned.
Held, that the deed created a valid fidei c.ommissum extending to fourgenerations.
Held, further, that acceptance ofthe gift may bepresumedfromthe
statement inthedeedthat Peduru acceptedthe gift, coupledwith the
fact that Peduru dealt with the land as if he was the sole owner.
A PPEAL from a judgment of the District Judge of Negombo.
N. E. Weerasooria, K.C. (with him N. Nadarajah, K.C., and S. R-
Wijayatilaka), for plaintiffs, appellants.
H. V. Perera, K.C. (with him L. A. Rajapakse, K.C-, and J. A. L.
Cooray), for 4th to 9th defendants, respondents.
Cut. adv. vult.
JAYBTTLiEKE J.—Pedum Fernando and Mary Fernando.
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December 18, 1944. Jaybtilekb J.—
This is an action for a partition of the land depicted in plan 2. Theplaintiff alleged that the original owners of the land were Bapiel and hiswife Maria, and that they gifted it to their son-in-law, Peduru, by deedNo. 8,731, dated November 21, 1862 (P 1), subject to a fidei commissumwhich extended to the fourth degree of succession. The 4th to the 9thdefendants alleged in their answer that the original owner was Peduruand that his heirs conveyed the entire land by 4 D 2 and 4 D 3 to theirpredecessor in title, Francisco Fernando. At the trial they did nobseriously contest that the original owners of the land were Rapiel audMaria. The material portions of P 1 are in these terms: —
That owing to the affection we had towards our daughter, thedeceased Dehiwelege Lucia Fernando …. the wife of
' Dombawalage Peduru Fernando …. w'e the aforesaid herebj'gifted and set over …. unto Peduru the husband of the saidLucia Fernando or his heirs, executors, and administrators ….
To have and to hold the said portion of garden …. untothe donee or his heirs, executors and administrators for ever ….and after our death the aforesaid portions of land shall be possessed bvthe said Peduru Fernando and his descendants without selling, mort-gaging or alienating the same or letting on lease for a period exceedingthree years from generation to generation and when their generationscease to exist the same shall devolve on the Roman Catholic Churchbuilt by the Durawa people of Pitipane.
And I the said Peduru Fernando thankfully accept the foregoinggift subject to the conditions mentioned therein.
The learned District Judge dismissed the plaintiff s action holdingthat P 1 had not been accepted and that it did not create a valid fideicommissum.
It is well settled law that no donation is complete and valid unless it isaccepted by the donee. No particular form of acceptance is necessaryand the acceptance may be by letter or messenger. In Hendrick v.Sudritaratne 1 Lascelles C.J. said: —
“ There is I think a natural presumption in all these cases that thedeed is accepted. Every instinct of human nature is in favour of that,presumption, and I think that when a valuable gift has been offeredand it is alleged it has not been accepted, some reason should be shownfor the alleged non-acceptance of the deed ”.
In the present case there is the statement, in the deed that Peduruaccepted the gift. There is also evidence that four years later Pedurudealt with the land on the footing that he was the sole owner.
In Wickremesekera v. Wijetunge2 it was held that acceptance can bepresumed from the sale of the land donated by the donee.
In the absence of any evidence to the contrary it seems to me that theinference is irresistible tbat Peduru accepted the gift'. Mr. H. V. Pererasought to support the judgment on the ground that there was an ambi-guity in P 1 as to the person or persons to whom the land was donated.He contended that a gift to A or his heirs is invalid.
1 3C. A. C. 80.
2 3 C. A. C. 41 i.
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J A YETI IjEKK J.—Pedum Fernando and Mary Fernando.
In interpreting a deed the rule is that effect should be given if possible,to every word contained therein but too much regard must not be hadto the natural and proper signification of words to prevent the simpleintention of the parties from taking effect. (Beal’s Cardinal Rules ofLegal Interpretation; 3rd Edition, pages 60, 165!} There are certainwords in P 1 which seem to me to indicate that the donors intended togift the property to Peduru and not to his heirs. The words I refer toare:
(a) “ Donee or his heirs
(£>) “I the said Peduru Fernando thankfully accept, the foregoinggift ”,
(c) “ After our death the aforesaid portions shall be possessed byPeduru Fernando or his heirs and his descendants ”.
If the intention of the donor was to gift' the property to Peduru or hisheirs the habendum clause should read “ and after our death the aforesaidportions of -land shall be possessed by the said Peduru Fernando or hisheirs and his or their descendants ”. The words “ or his heirs, executorsand administrators ” can in my opinion be explained away withoutdoing violence to the language used and in a manner that gives effect tothe obvious intention of the donors. They are words which are fre-qufently used by Sinhalese Notaries to donate a gift of plena proprietas.The prohibition against alienation indicates that the donors did notintend to invest Peduru with plena proprietas. Having regard to thecontext in which the words “ or their heirs, executors and administra-tors ” appear it seems to me that they can be rejected. (See Norton onDeeds, 2nd Edition, page 330.) Even if these words cannot be treatedns superfluous I fail to see why the gift should be held to be invalid. Thewords “ or his heirs ” are in their plain primary meaning substitutionaryand may have been inserted with a view to guard against the failure of thedeed by lapse.
The only other question is whether the deed creates a valid fidei com-missnin extending to four generations. The restraint, against alienationcoupled with the provision that the property shall be possessed byPeduru and his descendants “ from generation to generation ”, and theprovision that in the event of the failure of descendants the propertyshall devolve on the Church, leave no doubt in my mind that the donorsintended to create a perpetual fidei commissum. In D. C., Negombo.16.035 1 another deed of gift executed by Rapiel and Maria on November21, 1862, came up for consideration. The language in that deed issimilar to that of P 1 except that in the translation that was furnished tothe court the word “ and ” was erroneously substituted for the word” or ”. In the course of the judgment delivered by de Sampayo J.he said—
” The deed of gift is one of the class of deeds which has been recentlyconsidered by the court, namely, where the transfer is in favour of thagrantee, his heirs, executors, administrators and assigns but a conditionagainst alienation is imposed with a designation of the persons whoare to take after t.he grantees it is unnecessary to repeat out reasons for
1 1 S. C. Af. 28. 7. 1915.
JAYETLLEKE J.—Thatubipillai and Kanjdiah.
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-holding in 217 D. C., Colombo, 38,578, Supreme Court Minutes July 16,1915, after an examination of all the authorities that a- transfer in theabove form does not invalidate a fidei commissum which is otherwisewell created. There is not the slightest doubt that, apart from theform of the grant, the present deed creates a good fidei commissum. infavour of the descendants of Maria Salome Fernando and ultimatelyin favour of a certain Church at Pitipane
For the reasons given above I would set aside the judgment of thelearned District Judge and send the case back for a .decree to be enteredin terms of these findings. The District Judge will inquire into anyclaims for improvements and any other matter that may arise incidentallybefore entering the decree. The appellant is entitled to the costs of theappeal and the costs of contest.
de Kretser J.—I agree.
Appeal allowed.