Present: Basnayake, C. J., and de Silva, J.RAJAKARUNA, Appellant, and GUN A WARDEN A and others,
S.G. 179—D. G. Gampaha, 2853/P
Fideicom-missum by will—Share acquired from a co-hcir by survival—Is prohibitionagainst alienation applicable to it f
Where a husband and his wife devised by a joint will certain immovableproperty to their children share and share alike and subject to a fideicommissumwith a condition that on failure of any lawful issue being born to any of tkbchildren the property should devolve on the surviving children and the issue ofsuch of them as may be dead—
Held, that the prohibition against alienation imposed on the children did notapply to shares devolving on the survivors on the death of one of them.
“If a number of persons have been forbidden to alienate, each one is onlyunderstood in doubt to have been forbidden as regards that share which hehimself has from the testator, and not as regards the share which he has from aco-heir or conjoined person who was forbidden at the same time, unless adifferent wish on the part of the testator is clear. ”—Voet 36.1.27.
Appeal from a judgment of the District Court, Gampaha.
V. Perera, Q.G., with K. Herat and S. D. Jayasundera, for 40thDefendant-Appellant.
W. Jayewardene, Q.G., with F* IF. Obeyesekere and P. Hanasinghe,for Plaintiff-Respondent.
Gur. adv. vult-.
1Li XI i
2J. N. B 24544—1,005 (6/60)
BASNAYAKE, C.J.—Rajakaruna, it. Gvnawardcna
March 27, 1958. Basnayakje, C.J.—
The question for decision on this appeal is whether the prohibitionagainst alienation imposed on their children by the testator and testatrixin their joint will PI applies even to the shares devolving on the survivorson the death of one of them.
Shortly the facts are as follows : Conrad Peter Dias Bandaranayake,Maha Mudaliyar, and Eliza Dias Bandaranayake, husband and wife,made a joint will on 11th August 1888. The material clause of that willprovides as follows :—
“ Subject to the payment of the above income to me the Testatrixwe give and devise the said Podopille Mookalane Estate at Podopilleand Bandarawatte Estate at Heneratgoda or any lands that may behereafter purchased adjoining these properties or added thereto to allour children share and share alike and we direct that the above men-tioned two properties or any portion thereof respectively shall not besold or mortgaged or otherwise alienated or encumbered by any of ourchildren but shall devolve on their lawful issue and in failure of anylawful issue being born to any of them the said two properties shalldevolve on our surviving children and the issue of such of them as maybe dead. And we direct that upon the death of either of us all debtsthat are due by us shall be paid from the income derived from the twoproperties by the survivor of us and after the death of both of us if anydebts are still due the same shall be paid from the said income by ourchildren. And we further direct that after the debts are fully paidand if I the Testatrix be the survivor the whole of the income derivedfrom these two properties shall be enjoyed by me until my death andafter the death of me the Testatrix should I be the survivor the incomefrom these two properties shall be equally divided amongst our childrenand the issue of such of them as may be dead the child or children of thelatter taking what his her or their parent or parents would.have beenentitled to if living but these two properties shall not be sold or mort-gaged or otherwise alienated or encumbered as stated above so long asany one of our children is living, and for the upkeep of these two pro-perties a sufficient portion shall be applied of the income thereof theamount whereof shall be decided according to the majority of thevotes of tho devisees being thero of age who shall in like manner decidewhether the properties should be leased out or managed by Superin-tendents. **
In 1917 the land was partitioned among tho eight children and eachchild was allotted a divided lot. Lot F, in extent 19 acres and 33 perches,,which is the subject-matter of the present suit, was allotted to Ceciliawho died without issue. Her share devolved on her brothers and sistersand one of them Johannes sold the share he derived from Cecilia. Thepresent contest is between the 40th defendant who is the successor intitle of the purchaser of that share from Johannes and, the children of
BASJJ'AYAKE, C.J.—Rajakaruna v. Gunawardena
Johannes who contend that the fidei-commissum attaches to the shareJohannesjeceived on Cecilia’s death. An examination of PI shows thatits authors intended—
(«) that the two properties the3* gave their children or any portionthereof shall not be sold or mortgaged or otherwise alienatedor encumbered by any of their children.
(6) that the two properties shall devolve on theiawful issue of theirchildren, and
that in failure of any lawful issue being born to any of their childrenthe two properties shall devolve on their surviving children andthe issue of such of them as may be dead.
The question is eminently one that has to be decided according to theprinciples of Roman-Dutch Law. In Book XXXVI, Title I, Section 27,Voet states the rule that applies in a case such as this. (I quote theLatin also because there is a difference between McGregor’s translationand Gane’s translation of this passage.)
“ Sed ds si plures alienare prohibiti si?it, quisque tantum prohibitusin. dubio intelligitur ratione partis ill ins, quam ipse habet a testatore, non,quam habet a coherede vel conjujicto simul prohibito, nisi alia appareatvoluntas testatoris. ”
McGregor translates this passage thus (p. 68) :—
*' But where several persons are prohibited from alienating, eachone, in a case where there is an3r doubt, is onl3r understood to be prohi-bited in respect of the share he has acquired from the testator,not in respect of what ho has acquired from a co-heir, or one who wasrestrained at the same time as lie was, unless the intention of the Jfce-s-tator appear to have been otherwise. ”
Gane translates it as follows (Vol. 5, p. 372) :—
“ Then again if a number of persons have been forbidden to alienate,each one is only understood in doubt to have been forbidden as regardsthat share which he himself has from the testator, and not as_ regardsthe share which he has from a coheir or conjoined person who wasforbidden at the same time, unless a different wish on the part of thetestator is clear. ”
According to Gane the testator’s contrary intention must be clear,according to McGregor it is sufficient if the “ intention of the testatorappear to have been otherwise ”. With the greatest respect to the twoerudite and eminent scholars both of whom have held high judicial office,
wish to say that I agree with Gane’s translation for tw*o reasons. Firstlybecause it would appear from his introduction to-the translation of BookXXXVI that he considered McGregor’s translation when he translatedthis Book and that any material departure from McGregor’s renderingof the Latin must have been deliberate. Secondly because on referenceto Lewis & Short’s Latin Dictionar3r I find that it supports the view thatin a context such as this the true meaning of apparel is “ evident, clear,manifest, ceitain I do not think that it is out of place to state here
BASNAlf AKE, O. j.—Rajakaruna v. Chinatoardena
that Gane’s own view of McGregor’s translation is that it is “ somewhatperiphrastic in method ”, I am not insensible to the fact that Gane’stranslation itself has been the subject of discussion in South Africa. Inthis connexion it is noteworthy that Voet’s view finds support in theDigest 32.38.6-—
“ A certain testatrix left a small tract of land, together with a shop,to fifteen of her freedmen, whom she mentioned by name, and added thefollowing :—‘I wish my freedmen to hold this land under the conditionthat none of them will sell or give away his share, or do anything elsewhich will cause it to become the property of a stranger. If anythingis done, contrary to this provision, 1 desire their shares, together withthe land with the shop, to belong to the people of Tusculum ’. Some ofher freedmen sold their shares to two of their fellow' freedmen, who wereincluded in their number, and the purchasers having died, appointedas their heir Gaius Seius, a stranger. The question arose whether theshares which were sold would belong to Gaius Seius, or to their sur-viving fellow-freedmen who had not disposed of theirs. The answerwas that, according to the facts stated, they belonged to Gaius Seius.
“ It was also asked whether the shares which were sold would belongto the people of Tusculum. I answered that they would not.Claudius: Decause the person of the actual possessor, who is a stranger,is not to be considered but those of the purchasers, who, in accordanceWith the will of the deceased, were of the number of those to whom shehad permitted the property to be sold, the condition Tinder which theland was granted to the people of Tusculum by the terms of the Trusthas not been fulfilled. ”
7oet*s view also finds support in Burge (Vol. 2, p. 113) wherein he says
“ If the terms in which the prohibition is expressed admit of anydoubt respecting its extent, such construction is to be made as willimpose the least burthen on the heir and the least restraint on thefreedom of alienation. ”
Having regard to the opinion of the Roman and Roman-Dutch JuristsI have quoted above and to the fact that fidei-commissa and prohibitionsagainst alienation are not favoured in Roman-Dutch Law where the ruleis “ In dubio regulariter pronuntiandum est contra fidei-cmnmissum ”(the presumption where there is any doubt is against a fidei-commissum)I am of opinion that the prohibition against alienation imposed by PIdoes not extend to the shares that passed to her heirs on Cecilia’s death.The appellant is therefore entitled to succeed. Johannes w'as free toalienate the share he derived from Cecilia and 40D1 (Deed No. 7354attested by M. T. Basnayake, Notary Public, on 16th July 1949) is a validconveyance. I therefore set aside the order of the learned DistrictJudge that no rights pass on that deed.
The appellant is entitled to the costs of this appeal.de Silva, J.—I agree.
Appeal allowed.