Rettiar v. Wijenaike.
1941Present: Howard C.J. and Soertsz J?
RETTIAR v. WIJENAIKE.39 Inty.—D. C. Kandy, 117.
Fidei commissum—Deed of gift—Donee to possess the land or deal with it at
will and pleasure—Devolution on children after death of donee—Fidei
commissum residui or simplex.
Where a deed of gift by a father to his son, after reciting that inconsideration of the love and affection he bears towards the son and withthe object of receiving assistance and succour from him donates, grantsand conveys certain lands and premises, subject to the followingconditions,—
Firstly, as long as I Ct.e.) the donor and my wife live in this world thesaid …. (donee) shall render all assistance and succour.
Secondly, after the death of both of us, the said donee shall be entitledto hold and possess all the aforesaid lands and premises or to deal withthe same at will and pleasure and after the death of the said donee thesame shall devolve on his children.
And in the event of the said donee dying without issue all the aforesaidlands and premises shall devolve on the surviving brothers and sisters ofthe said donee or on their children.
Held, that the deed created not merely a fidei commissum residui buta fidei commissum simplex.
Dantuwa v. Setuwa (.11 N. L. R. 39) distinguished.
^^PPEAL from a judgment of the District Judge of Kandy.
The only question argued in appeal was whether the deed of gift P 1the material portions of which are given in the headnote, creates a fideicommissum.
L. M. D. de Silva, K.C. (with him N. Nadarajah and M. M. I. Kari-apper), for defendant, appellant.—The only question that arises iswhether the deed of gift P 1, created a valid fidei commissum, or whetherit vested the properties absolutely on Harry Keppitipola Bandara. Thecase for the defendant is that the deed conveyed absolute title. Allfidei commissa must belong to one or other of two classes— 1 2
(1)Simple fidei commissum, .where there is a conveyance from A to B
with express or implied prohibition against alienation and adesignation of the person to be benefited ;
(2)Fidei commissum residui, where authority to alienate is given and
whatever is left passes to certain persons.
This deed does not create a fidei commissum of class (1). It does notcreate a fidei commissum of class (2), as it stipulates the whole of theproperty to pass. There is a profound inconsistency and the fidei com-missum fails for uncertainty. It is impossible that Harry shall “ dealwith ” the properties “ at will and pleasure ” and that the “ same shalldevolve on his children”. This is an absolute gift coupled with a provisoinconsistent with that gift. Therefore effect cannot be given to the
HOWARD C.J.—Reftiar v. Wijenoifce
proviso—Dantuwa v. Setuwa The principle enunciated in Amaratungav. Alwis ’ should be applied here. One cannot ignore or strike out certainwords in this document. One cannot make conjectures to ascertainintention—Ramanathan v. Saleent1'. If there is a doubt one must holddonee unburdened by fidei commissum—Walter Pereira’s Laws of Ceylon,2nd ed., p. 442. The dictum of Garvin J. in Veerapillai v. Kantar' isagainst the above view. That is obiter. It was a border-line case andthe views expressed there are diametrically opposed to the view ofSoertsz J., expressed in Amaratunga v. Alwis (supra), that one cannotignore the words used in ascertaining intention.
H. V. Perera, K.C. (with him N. E. Weerasoqriya, K.C., and T. Nada-rajah), for plaintiff, respondent.—Our case may be put alternatively.Firstly, it is submitted that the deed created a fide commissum simple.One must construe the document as a whole so as not to render nugatoryany operative words. “Deal” does not mean “alienate permanently”.Here there is a clear intention that donee’s children should benefit. Theword “deal” must be so interpreted as to give effect to the operativeparts of the document. Words descriptive of what a grantee may docannot destroy the operative words—Wirasinghe v. Rubeyat Umma3.The only question here is “ is the gift over a residue or the wholeproperty ? In Dantuwa v, Setuwa (suprd) there was no designation of abeneficiary. There was no gift over by the donor. The immediate doneeis asked to make the gift. Where the actual gift over is made in the .document itself there is a fidei commissum. In Amaratunga v. Alwis (supra)there was no designation of a beneficiary or. the designation was confused.Here, reading the document as a whole, it is clear that the gift over is anintegral part of the document. The word “ deal ” must therefore beconsistently interpreted. Alternatively, if the word “ deal ” meansalienate inconsistently with the gift over, what is not alienated must goover. At the worst there is a fidei commissum residui.
< jL. M. D. de Silva, K.C., in reply.—As regards the meaning of the words“ deal with the same at will and pleasure ” the position taken up byplaintiff in appeal is different from that taken up by him in the lowerCourt. There was no dispute as to the meaning of the words. Theywere taken to mean “ could do as he pleased ”. It is tod late to contendthat there fs another meaning. It is not purely a question of interpre-tation. It is one of translation and interpretation. Respondent in thelower Court has accepted that defendant could deal with the propertyabsolutely; any other meaning would cause prejudice to the defendant.
Cur. adv. vult.
August 4, 1941. Howard C.J.—
The only question that arises on this appeal is whether the learnedJudge was right in holding in favour of the plaintiff that the deed of gift—P 1—created a fidei commissum in favour of the children of HarryKeppitipola Bandara, the son of the donor. In P 1 the donor, afterreciting that in consideration of the love and, affection he bears towards
1 (1907) 11 N. L. R. 39.3 (1940) 42 N. L. R. SO.
* (1939) 40 X. L. R. 363.' (1923) 30 N. L. R. 121.
5 (1913) 1C N. L. R. 309.
HOWARD C.J.—Rettiar v. Wijenaike.
Harry and with the object of receiving assistance and succour from him,“ donates, grants and conveys by way of gift the aforedescribed lands andpremises unto the said Harry in manner following; that is to say : —
Firstly, as long as I the said Keppitipola Ratemahatmaya and mywife, Dunuwila Rajakarunadhara Ekanayake Dharmakirti WasalaPandita Mudiyanse Ralahamillahe Keppitipola Kumarihamy live inthis world the said Harry Keppitipola Bandara shall render us allassistance and succour.
Secondly, after the death of both of us, the said Harry KeppitipolaBandara shall be entitled to hold and possess all the aforesaid lands andpremises or to deal with the same at will and pleasure and after thedeath of the said Harry Keppitipola Bandara the same shall devolveon his children. And in the event of the said Harry KeppitipolaBandara dying without issue all the aforesaid lands and premises shalldevolve on the surviving brothers and sisters of the said Harry Keppiti-pola Bandara, or on their children ”.
The learned Judge held that the case could not be distinguished fromWirasinghe v. Rubeyat Umma', and Veerapillai v. Kantar', and foundaccordingly that P 1 created a fidei commissum residui. Mr. de Silva onbehalf of the appellant has contended that P 1 creates an absolute gift towhich a condition has afterwards been attached. That there is no expressor implied prohibition against, alienation. That the words “ or to dealwith the same at will and pleasure ” cannot be ignored or struck out.That an intention to create a fidei commissum. cannot be deduced fromthe deed. If there is any doubt, the fidei commissum fails and the deedmust be construed in favour of the deceased. In this connection Mr. deSilva invited our attention to the following passage from Voet 36:1.1 and 7cited in the 2nd edition of Walter Pereira’s Laws of Ceylon, atpage 442 : —
“ Where there is any OouDt as to whether a substitution in a testamentis direct or fidei commissary, the former is to be presumed to have beenintended. A fidei commissum is to be strictly interpreted, and itsexistence should not be lightly presumed ; and in case of doubt the Courtwill assume that no incumbrance was intended.”
Mr. de Silva also relied on the cases of Dantuwa v. Setuwa3; Amaratungav. Alwis'; and Ramanathan v. Saleems. In Amaratunga y. Alwis (supra),Soertsz J. held that the fidei commissum failed. He came to that decisionwhen, after considering all the terms of the deed, he found it difficult, ifnot impossible, to say that the intention of the donor was to impose afidei commissum. If that was his intention, he had failed to do soinasmuch as the persons to be benefited were not sufficiently designatedunless one strikes out certain words in the deed which the learned Judgeregarded as an utterly unwarranted course to take. The resultingposition, according to Soertsz J., was that the words are capable of more .than one construction and hence the Court would lean towards the one
1 jr, n. L. R. 36S* 30 X. L. R. 121.
* 12 X. L. R. SO
3 11 X. L. R. 39.
* 40 X. L. R. 363.
HOWARD C.J.—Rettiar v. Wijenatfce.
most in favour of freedom of alienation. The following passage from thisjudgment also merits attention : —
“ In Wijetunga v. WijetungaPereira J. said, ‘ if the intention of adonor or a testator to create fidei commissum is clear, and the wordsused by him can be given an interpretation that supports that intention,
I should be slow to embark on a voyage of discovery in search ofpossible interpretations that defeat that intention In regard to thisobservation, I would only say that when, despite an intention to createa fidei commissum to be gathered from such words as * under the bondof fidei commissum’, the testator or donor fails to designate or indicateclearly the parties to be benefited, there does not seem to be anyoccasion to embark on a voyage of discovery in order to construct afidei commissum for the testator or donor by striking out or ignoringwords on the assumption that they are ‘surplusage’ or ‘notarialflourish If a testator or donor clearly imposes a prohibition againstalienation and then goes on to frustrate his intention to create a fideicommissum by employing words which do not designate or indicateclearly the beneficiaries, he must be left just where he placed himself,on the threshold of a fidei commissum.”
In Ramanathan v. Saleem (supra) the judgment of the Court was alsodelivered by Soertsz J. who found difficulty in deciding whether the willto be interpreted created a fidei commissum and his decision was given onthe ground that the gift over was void as it offended the ruleagainst perpetuities. In Dantuwa v. Setuwa ° D “ gave, granted andconveyed by way of gift ” to his wife U and their four children, certainlands subject to the following proviso : —
“ It has been hereby covenanted that my wife Ukku and children,N. S. T and U, all five aforesaid, shall hereafter render to me allassistance and comforts of life, while I continue to live in this world,and that after my demise my said wife and four children shall beentitled to have and to hold all the several high and low grounds andhouses and plantations at their disposal for ever, but my said wife,Ukku, having possessed her share of the said premises, shall at theapproach of her death, grant and convey the same unto my said fourchildren, and shall not make the same over to any outsider.”
It was held that the proviso in the deed of gift being inconsistent withthe previous absolute gift in the same deed could not be given effect toand that under the said deed, U, the wife, was entitled to one-fifth shareand was at liberty to dispose of it as she pleased. It is contended byMr. de Silva that the deed of gift in Dantuwa v. Setuwa (supra) is indistin-guishable from the deed in the present case. I am unable to accept thiscontention. The words “ or to deal with the same at will and pleasure ”which it is maintained indicate an intention to create an absolute gift toHarry are vague and uncertain. In Dantuwa v. Setuwa (supra) even ifthere was a gift over, it is inconsistent with the previous absolute gift.Moreover there is really no gift over but merely an injunction to Ukku at>some uncertain time—namely, at the approach of her death—to grantand convey the property to her four children. Apparently she might> 15 K. L. R. 403.* U N. L- R- 39.
HOWARD C.J.—Rettiar v. Wijenaike.
have disposed of the property by will to anyone she pleased. If the donorintended that Ukku should have merely a life interest with remainder tohis children his intention was not clear. I am unable, therefore, to agreewith Mr. de Silva that the three cases cited by him determine the matterat issue in favour of the defendant.
On the other hand Counsel for the plaintiff, putting the case for thelatter at its very lowest, maintained that having regard to the decisionsin the cases of Wirasinghe v. Rubeyat Ummax ; and Veerapillai v. Kantar',P 1 created a fidei commissum residui. In the former case the joint willof A and his wife B, who were married in community of property,contained the following clauses : —
“ (2) It is directed that all the movable and immovable propertybelonging to us be possessed by us, the above-named, duringthe lifetime of both of us according to our wish; if one shoulddie and the other survive, the person who lives is directed as faras in us lies to possess the property according to his or herpleasure and also to do whatever he or she likes with it.
It is directed that after the death of both of us all the movable andimmovable property belonging to us shall devolve on the children,grandchildren, and such other heirs descending from us.”
It was held that the will created a fidei commissum residui and that thesurvivor was a fiduciary with free power of alienation. In Veerapillai v.Kantar (supra) a last will contained the following clause : —
“ I bequeath to my husband all the immovable and movable propertybelonging to me …. to be possessed and enjoyed by him assole owner thereof with full right of donating, transferring or otherwisealienating the same …. and on the death of my husband theproperties should devolve on my elder brother as sole owner.”
It was held that the devise to the husband was subject to a fidei com-missum residui in favour of the Jrother. In my opinion it is difficult todistinguish the will in these two cases from the deed of gift in the presentcase. In each of them there is an absolute gift coupled with a gift over.It has been argued that inasmuch as the case was decided on othergrounds, the finding of Garvin J. in Veerapillai v. Kantar (supra) is obiterso far as the question of a fidei commissum is concerned.
Even if these two cases are of doubtful authority, the case for theplaintiff may be resolved in his favour on a still higher ground, namely,that the deed creates not only a fidei commissum residui but a fidei com-missum simple. The word “ deal ” used in the deed is indefinite andvague and I do not consider that the expression “ to deal with the sameat will and pleasure” can be held to connote an absolute gift. Anyapparent repugnancy is eliminated when these words are interpreted tomean that the donee is given the right not only to possess the lands butalso the right to deal with them otherwise to the extent of the estatedonated to him (in this case the estate of a fidei commissarius). Unlessa contrary interpretation is given or the words “ and after the death of thesaid Harry Keppitipola Bandara the same shall devolve on his children ”are ignored the deed creates a life interest of the whole property to Harry1 16 K. L. S. 369.2 30 N. L. R. 121.
Siriwardene v. Kitugalla.
and a gift over to his children. It has been contended by Mr. de Silvathat inasmuch as the point was not made in the lower Court it is notopen to the plaintiff to raise it on this appeal. He argues that if thepoint had been taken in the lower Court the defendant would have calledexpert evidence to show that the Sinhalese words which appear in theEnglish translation as “ to deal with the same at will and pleasure ” hada meaning denoting an absolute gift. There'is in my opinion no substancein this contention. Issue (1) was worded as follows : —
“ Whether deed 9479 of 9.6.93 created a valid fidei commissum in* favour of the children of Harry Keppitipola ? ”
On that issue it was open to the plaintiff to have argued that the wordsto deal with the same at will and pleasure ” did not create an absolutegift. The English translation was accepted by both parties withoutreservation. Whilst agreeing on the authority of Wirasinghe v. RubeyatTJmma' that it is open to a party to call expert evidence" in supportof the particular meaning that must attach to Sinhalese words in adocument I do not consider that, after this issue had been settled and theEnglish translation accepted, such evidence could have been called. Norcan I see in what manner the defendant has been prejudiced by the raisingof this point on appeal.
For the reasons I have given the appeal is dismissed with costs.
Soertsz J.—I agree.
PETTIAR v. WIJENAIKE