PERERA v. PERERA

094-NLR-NLR-V-20-PERERA-v.-PERERA.pdf


( 463 )
Present : Bertram C.J. and Shaw J.
' PEBEBA v. PEBEBA.
172—D. C. Negombo, 12,548.
Fideicommissum—Prohibitionagainstalienationr-:Pidei ^ commissum
residui—Fidei commissum, with power to dispose of the property.
It isnotnecessary that there shouldbea prohibition against
alienationtoconstituteafidei commissum. Afideicommissum
might besoconstitutedastotake effectif the fiduciary died
intestate, orwithouthavingmade anydeposition of theproperty
during his lifetime.
A person by deed gifted his property to three of his children and“ their heirs and assigns, as (sic, such as are) children and grand-children, to be possessed or to be dealt with as they pleased, subjectto thedirection herein mentioned below. ’*The deed provided,
inter alia,that if one or two ofthe doneesdiedwithoutleaving a
descendant, their shares should devolve on the survivor; and thatif all threedonees died without leavinganydescendants, the- pro-perty shouldpass toanotherbranch ofthe family. Therewas no
prohibitionagainst – alienation.The DistrictJudgeheldthat the
deed did not effect a restraint upon alienation, but that it merelydetermined in what manner the property should devolve on thedeath ofhisthree children, if it has notbeenalienated during their
lifetime, or if it has not been disposed of by will before their deaths.
Held, that the deed created a valid fidei commissum, and that itwas not open to the donees to alienate the property.
rJ1HE following is the deed which was construed in this case: —
No. 7,705.—Deed of Gift.
I, , do hereby declare and say:—
That after the Matrimonial Bights and Inheritance Ordinance of1876 cameinto operation ImarriedM,and through her* 'four children
were bomto me, namely,Juliana,Ana, Stephen, andJoseph, which
said four children and my said wife are now living.
That outof the said fourchildren,myeldest daughter,Juliana, is a*
minor, though 6he has attained •“ age. ”
That the said Juliana took to herself, without my consent, a husbandon or about November last, without getting married * according to law,and she is living a life against morals and religion.
As I have sufficient reasons to believe that my wife, the said motherof the saidJuliana, is in favour of thesaidJuliana, and isencouraging her
to lead an immoral life, and as 1 consider that they do not deserve my
1918.
( 464 )
IMS.
Perera e.Pirtra
pleasure and benefits, and if I do not make some arrangements anddirections withregard to the properties nowbelonging to me,that.they
would do away with the said properties in improper ways, and torpreventing myremaining three children fromfalling into vicein future,
I am willing to grant and set over as a gift unto my said three children,Ana, Stephen,and Joseph aforesaid, the fiveportions of landmorefully
described herein b'low, subject to the following directions and arrange-ments, to be owned by them equally after my death, in consideration idthe love and affection that I have and bear unto them.
Now know ye and these presents witness that I have hereby grantedand set over unto the said Ana, Stephen, and Joseph, and their heirs andassigns, as children and grandchildren, thefive portions oflandmore
fully described herein below,to be possessed or to be dealt with
as they please, subject to the direction mentioned herein below, to wit:—
[Lands described.]
The directions and arrangements above referred to:—
1. It is hereby ordained that after my death, or after I becomeincapable of makingarrangementswith regardtomyproperty by
reason of my becoming unsound in mind, or from the date of thehappening of either of the said two things, this deed of gift shall be valid.
8.And if I happento diewithout revoking oralteringthe saiddeed,
and if one or two of thesaidthree doneeshappento diewithouthaving
a descendant after my death, the shares to which the deceased personor persons are entitled Shall devolve on the survivor, but in .thatemergency, theabovenamed,mydaughter,Manamalakankanamalage
Juliana Perera,and her mother,mywifeDona Sfadalena Silva, ortheir
descendants, shall notbe entitledto any partoftheBaid property,
notwithstanding anyprovision tothe contraryinanyOrdinance or
common law now in operation relating to lands.
That if the said threedonees happento die withoutleaving
descendants, the said propertyand the incomethat hasbeenderived
therefrom shalldevolve onthefoursonsof the daughter of my lister,
Juliana Perera, and on theirdescendants, orafter thedeathof the
herein-mentionedthreedonees,Asa,Stephen,and Joseph, without a
descendant or descendants, thesame shall devolve on thesaidJuliana
. Perera’B four sons, the said Don Peter, Don Jokino, Don Bomaldo, andDon Sylvestri.
That if the first donee,Ana, happentoenterinto a marriage after
mydeath', she shouldhavea certificatefrom the saidguardianto the
effect thatthe said marriage .'isasuitable one as regards thecasteand
position inlaw,or hissignaturein themarriage registertothesame
effect, andif hewere notlivingatthe time of her marriage,orif hewere’
notqualified to giveconsent accordingto law,or ifhe withheld his
consent without a reasonablecause, then,on suchoccasion, a certificate
from the thenSessionaryApostolic in charge of this Sfission of theHoly
Boman Catholic religion to the effect thatitis asuitable marriage, and
if she happens to enter into a marriage with her own will and pleasurethat will not suit the casteand positioninlife,the donation made by
this deed willbe totallyvend,andhershare of the said propertyshall
devolve' ontheother twodonee'sand theirdescendants, andatthattime
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if only one of the said two donees ia living, the said share shall whollydevblvd' oh ''the" tforvivOr, and if both of them are not living, oV if 'therehe' ho' descendants of theirs, then, as mentioned herein above, the' said'property shall- devolve oh the said Juliana Perera’s four sons.
'. Bawa, K.C. (with him Samarawickrema and Oroos-Dabrera), forthe appellants.
A. St. V. Jayawardene and M.W. H, de Silva, for the respondents.
Cur. adv. vult.
October 9, 1918. Bertram C.J.—
This is a case in which the Court' is called upon to construe a deedwhich is said to create a fidei cominis sum. There is no actualnecessity for the interpretation of this deed to be decided in thisaction. The action is a suit for the partition of certain lands, andwhatever the intention of the deed may be, whether the lands aresubject to a fidei commissum or not, they can be partitioned now,and the question as to whether there was a fidei commissum might beleft to be determined subsequently. The parties have, however,joined issue on the subject in the Court below. The learned DistrictJudge has considered the question, and has given a decision upon it,and he has embodied a reference to his judgment in the decree. Ithink it better, therefore, that this Court, before whom the questionis brought on appeal, should express an opinion as to the mattercontested in the Court below.
The question arises on a deed of gift. It appears that the donorhad had trouble in his family. One of his daughters, Juliana Perera,was living with a man who was not her husband, and her fatherwas incensed against her on that account, and against his wife forsupporting the erring daughter. He wss also anxious to providesome security against his other daughter being led into a similarcourse, and he, therefore, framed this deed. He declared that theproperties in the deed should go to his daughter and her .two -brothers, and to such of their legal personal representatives asshould be children and grandchildren, that is to say, to their directdescendants only. He gave them full disposition of the propertiesso conferred, subject to certain directions afterwards contained inthe deed. These directions were that if any of the donees died afterhis death without leaving descendants, the shares of those doneesshould pass to the survivor, and that if all died without descendants,their shares should pass to another branch of his family; and hefurther provided that if his daughter married without obtaininga certificate, which is specified in the deed, to the effect that hermarriage was a desirable marriage, the donation made by the deedto her should be totally void.
There are no express words in the deed restraining alienation.But it . appears to be clear in law that express, words of restraint arenot necessary .to constitute a fidei commissum.. The authorities for
1918.
( 466 )
O.J.
Pererav.
Perera
that proposition are not very recent, and there is no express decisionby this Court to that effect. But the principle is referred to in thelate Mr. Justice Walter Pereira’s Laws of Ceylon, page 429, tfhere,after Quoting Van Leeuwen and Van der Linden, he says on page 481:
“ Ordinarily, there need be no prohibition against alienation forthe purpose of constituting a fidei commissum, although in thecreation of fidei commissum in Ceylon such prohibitions are usuallyinserted. If I give my property to A subject to the condition thatit is to become B’s property after the death of A, I create a completeand effectual fidei commissum. ” The passages he has cited fromVan Leeuwen and Van der Linden entirely justifies his statement.Van der Linden says: “ Sometimes a person is appointed heir underthe condition that the property after his death shall pass to another.This is termed a fidei commissumFurther, in Sande on Restraintsupon Alienation, Part III. (1), it is said that ** a prohibition isimplied when it results from an expressed fidei commissum. Forwhenever the testator burdens his heir or a legatee with a fideicommissum, the law deduces from the real intention of the testatorthat an implied prohibition is imposed by the fidei commissumupon the alienation of the property. An example of an impliedrestraint on alienation is given in Voet 36, I, 10, where it is said:
In certain cases the testator, when dying, is considered to havetacitly.constituted a fidei commissum, as, for instance, if the testator,in a case where several persons were appointed his heirs, providedthat the property should devolve from one of his heirs to the others,it would seem, that all the heirs take subject to a reciprocal fideicommissum. ” That, then, is the ordinary legal principle whichgoverns the situation.
The learned District Judge, however, has given a special interpre-tation to this deed in consequence of what seems to him to be themotive of the donor. He says that the motive of the donor is notso much to benefit the three children as to disinherit the particulardaughter, and that his deed was inspired not so much by benevolenceas by resentment. I think the District Judge has taken a somewhattoo limited view of the motive of the donor. His desire was todisinherit his daughter, but it was also his desire to prevent hisother children from being led astray by the example of their sister,and also a natural desire to benefit them as dutiful children. Wemay also presume, such being the natural result of the language,that he had a desire to benefit the grandchildren, whom he expresslymentioned in the deed. However, acting upon this view of themotive of the donor, .the learned District Judge thought himselfjustified in giving to the words of the deed a narrower significationthan would otherwise be imputed to them. He has considered itlight to restrict the operations of the deed within limits which hethinks are sufficient to give effect to what the donor really had inmind,, and he has, therefore, expressed the opinion -that this deed
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does not effect a restraint upon, alienation, that it merely determinesin what manner the property shall devolve on the death of his threechildren if it has not been alienated dining their lifetime, or if it hasnot been disposed of by will before their deaths. He has so declaredin his judgment, and it is against that declaration that the appealis now brought.
Now, there is no local authority for this interpretation which thelearned District Judge has given to the deed. Two caset, indeed,are cited, one the case of Wirasinghe v. Bubeyat Umma,1 and theother the case of Ferdinandus v. Fernando,2. which is referredto in Wirasinghe v. Bubeyat Umma.1 Both these cases, however,deal with a very special class of circumstances. They were bothcases of what is known as fidei commissum reeidui, that is to say,cases in which spouses make a joint will creating a fidei commissumafter the death of both of them. The circumstances of these casesare of a peculiar nature. It is recognized that the survivors of thejoint spouses, who have created such a fidei commissum, have acertain free power of disposition of the joint property during theirlifetime. I do not think that these cases are any authority for suchan interpretation as is put forward by the learned District Judge.There are, however, somewhat stronger authorities for the inter-pretation he has adopted in the Roman-Dutch text books. It isobserved by Burge, vol. IV., new edition, page 761, referring to aform of fidei commissum which prevailed in the local laws of Amster-dam, what was known as a simplex fidei commissum, “ that thoughthis law did not prevail in any other part of Holland, yet a fideicommissum might be so worded that it took effect if the fiduciary diedintestate, or without having made any disposition of the propertycomprised in it during his lifetime. This was, in effect, a limitationof the succession after the death of the fiduciary, if he did not himselfdispose of it during his lifetime. ”
The same class of fidei commissum is referred to in Voet 23, 4, 66,where he says that, if under an ante-nuptial settlement, the spousesmake provision that after their deaths their property shall devolveupon their children in a particular way, as, for instance, if theyprescribe that on the death of one of several brothers his share is togo to the brothers, or that after all the brothers died the propertyshall go to designated individuals, or shall devolve in some otherway, yet, nevertheless, these words did not create a valid fideicommissum, but the children will have free power of disposition ofthe property so given to them both by deed and by last will, and theonly effect of the settlement will be to determine the devolution ofthe property in the event of their dying intestate. Further, inbook 36, 1, 5, Voet declares that it is a mistake to suppose thatthis principle only applies to ante-nuptial settlements and does notapply to wills, and that if appropriate words are used in wills the
1 {1913) 16 N. L. R. 369.* (1902) 6 N. L. R. 328.
1M&
C.J.
Pererav.
Parent
( 468 )
,1918*
a j.
Fcrerav.
Mere
same result will follow, and quotes a case in which he and tlrerardNoodt sat as arbitrators, and in which they held that the words ina certain will which he quotes only had the effect of defining thesuccession ab inteetato, and did not prevent the children of thetestator from disposing of the property by will.
It is clear, therefore, that the law of Holland recognized a fideicommia&um of the nature here found by the District Judge andmaintained by Mr. Jayawardene for the respondents, and if appro-priate words are used for the purpose, I presume that such a fideicommiaaum will be recognised by the law of the Colony. I think,however, that there are very strong reasons against giving thisinterpretation to the bare words used in this case.
In the first place, if we were to do so, we should be introducinginto the Colony, for the first time, a form of tenure of property whichis wholly unfamiliar both here and in England, with whose legalsystem our own is bound up. I venture to say that it would -bethought a contradiction in terms that any person should be conceivedas having a life interest in a property, and at the same time as havinga power to dispose by deed or by will of the whole dominium. Itcertainly would be thought most singular in England that a personcould dispose of by deed or by will the whole , title to property inwhich he had only a life estate. That form of tenure may exist inHolland in certain circumstances. But I think it would requiremuch more definite words than we have in this case to induce iis inany particular case to hold that it was intended in Ceylon.
In the second place, if the whole deed is examined, it shows mostconclusively that the donor intended that his children should onlyhave a limited interest in the property subject to a restraint uponalienation. In the first place, he does not merely give directionsfor the devolution of shares given to his children on their deaths.He indicates specifically in the operative words of the gift that heintends that the property shall descend to the direct descendantsof these children. He does that by limiting the ordinary wordsof conveyancing, “ heirs, executors, administrators, and assigns,to a specific class, namely, children and grandchildren. In thesecond place, he recites the fact that he is taking the measureswhich he talks of in the deed, partly to prevent his erring daughterand her mother from doing away with his property in an improperway, and partly also for preventing his remaining three childrenfrom falling into Vice in the future. He appears to contemplatethat he will preserve them in virtuous courses by giving them onlya limited interest in the property, and by providing that it shalldevolve on their deaths upon their lawful children. His directionswould be rendered nugatory if his children could dispose of formoney the property so left to them.
Finally, the provision he makes with regard to the marriage of hisdaughter seems to me to be conclusive. He declares that unless
she contracts a marriage which is approved of by the authority hementions, the donation to her shall be wholly void. This seems tome quite inconsistent with the idea that his daughter should havea free power of disposing of the share given to her. She could atany time defeat her father's purpose by contracting an impropermarriage, and by ynftlrfng. away with the property before she socontracted a marriage.
Mr. Jayawardene has attempted to meet this point by sayingthat, even if, as he contends, she had a free power of disposing ofthe property, that free power of disposition would be subject tothese words, and that she could only confer a title liable to bedefeated if she contracted a marriage forbidden by the deed. I donot think that this is a possible or the natural construction of thewords. If, as he contends, all the children have a free power of„disposing of their intertests; that must mean an absolutely freepower. The avoidance of the gift upon the daughter entering intoan improper marriage implies to my mind that she must remain inpossession of the property which is the subject of the gift. Atany rate, it is far more consistent with that view. To my mindthis provision clinches the question.
I am of opinion that the appeal should be allowed to this extent,that a declaration should be inserted in the judgment to the effectthat the shares of the persons interested in the deed shall be subjectto the fidei commieeum and the restraint upon alienation created bythe deed. The appellants are entitled to the costs of this contentionin the Court below and of this appeal.
Shaw J.—
I agree. The grantor by bis deed granted to three of his childrenand “ their heirs and assigns, as children and grandchildren," or,as it has otherwise been translated, to “ their inheriting custodians,such as children and grandchildren, descending from them, " theproperty in question. The habendum clause is "to be possessedor to be dealt with as they please subject to the directions mentionedherein below." One of these directions is that, if one or two of thedonees die without leaving a descendant, their shares shall devolveon the survivor. There is another direction, which is, that if allthree donees died without leaving any descendants, the propertyshall devolve on the four sons of a lady who is the daughter of thegrantor's sister.
It appears to me that the provision as to the passing of theproperty in case of the death of either or all of the donees constitutesa fidei commiesum, although there is no express clause in the docu-ment restraining the donees from alienating the property. Thatsuch a clause is unnecessary for the purpose of establishing a fideicommisBum is clear from the authorities which my Lord has cited,and from the definition of a fidei commiseum in Gensura Formaje
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IMS.
ShawJ.
Perera t>.Perera
1, 3, 7%, which is, that a fidei commiaaum is “ a provision of one’slaBt will by which a mandate is given to him to whom somethingis to come, to give the whole or a part of it up to another or togive something else.” The direction in the present deed that theproperty is to be given up at the death of the donee to other peopleestablishes a fidei commiamm in favour of those other persons,although there is no express restriction upon the first donees partingwith the property. The case of Wirasinghe v. Rubeyat Umma1shows that in certain cases, where, for instance, there is a joint willof parties giving a life interest to the surviving spouse in the jointproperty, and where appropriate words are used, it will be construedas a fidei commiaaum reaidui, and will not prevent the survivingspouse alienating the property during his or her lifetime, and inother fidei commiaaa, where appropriate ; words are used for .thepurpose, it is probable that a fidei commisaum reaidui may be estab-lished in this Colony, even although such fidei commiaaa may.besomewhat rare in the present state of things. The provisions inthe document, which were under consideration in the case I havementioned, and in the case reported in 6 New Law Beporte, page 328,referred to in the judgment in that case, are very different to thosecontained in the document now under consideration, and thedocument itself was a very different one and for effectuating a verydifferent purpose. I am unable to take the view adopted by thelearned District Ju<jlge, that the only object of the grantor in thepresent case was to disinherit one of his children. It is clear thathis object was also to benefit the other children, and ultimately, ifthey left no descendants, to benefit certain nephews. The methodby which this was effected was by a fidei commiaaum, which not onlydisinherited the offending daughter, but also benefited those whothe grantor desired should be the subject of his bounty. To readthe deed in the manner suggested by the District Judge and by therespondent in this case, would, in my opinion, largely defeat theadmitted object of the grantor, namely, to prevent the daughter,who had offended him, and the wife of the grantor, who had sup-ported that daughter in her conduct, from becoming possessed ofany of his property, because, if this document is not to be read asconstituting a fidei commiaaum, it would be within the power of theother children benefited by the deed to transfer their share or somepart of their share in the property to the very child of the grantorwho he. was anxious should for ever be debarred from inheritinghis property. The intention of the grantor is, in my opinion, clearlyto establish a fidei commi88um. I would, therefore, make thedeclaration which my Lord has suggested.
Varied.
1 (1913) 16 N. L. R. 369.