RAMANATHAN v. SALEEM et al

020-NLR-NLR-V-42-RAMANATHAN-v.-SALEEM-et-al.pdf


so
Ramanathan v. Saleern.
1940Present: Howard C.J. and Soertsz J.
RAMANATHAN v. SALEEM et al.
200—D. C. Colombo, 969.
Fidei commissum—Muslim last will—Attempt to create trust for the benefit ofdescendants—Failure of object—-Words insufficient to create fidei com-missum—Roman-Dutch law.
Where a last will contained the following clauses : — (a) I do herebywill and desire that my wife … ., and my children ….
and my fatherwho are the lawful heirs and heiresses of my
estate, shall be entitled to and take their respective shares according tomy religion and Shafie Sect …. but they nor their issues shallnot sell, mortgage, or alienate any of the lands, houses, estates or gardens,belonging to me at present, or which I might acquire hereafter, and theyshall be held in trust for the grandchildren of my children, or of my heirsand heiresses, only that they receive the rents, income and produce of thesaid lands …. and that out of such income, produce and rents,after defraying expenses for their subsistence and maintenance of theirfamilies, the rest shall be placed or deposited in a safe place by each ofthe party, and out of such surplus, lands should be purchased by them'forthe benefit and use of their children and grandchildren ….
(b) I further desire and request that after my death the said heirs andheiresses or the major part'of them shall appoint, with the executors,three competent and respectable persons of my class and get the movableand immovable properties of my estate divided and appropriated to eachof the heirs and heiresses according to their respective shares and getdeeds executed at the expense of my estate, in the name of each subjectto the aforesaid conditions..)
Held, that the intention of the testator was to create a trust for thebenefit of his descendants and that his object was defeated because itoffended against the rule against perpetuities.'
Quaere whether the will creates a valid fidei commissum.
Sabapathy v. Yusoof (37 N.L.R. 70); Saleern v. Mutturamen Chetty (ISC. L. W. 115; and Sinnan Chettiar v. Mohideen et al. (41 N. L. R. 225)doubted.
rp HIS was an action for declaration of title to premises No. 706,-*K Colpetty which formed part of the property of one I. L,. I. L.Marikar, who made a last will dated December 12, 1872, the relevant
1 ' Ceylon £n»» Journal 237.
Ramanathan v. Saleem.
81
portions of which are stated in the judgment. On the death of thetestator his last will was admitted to probate on May 29, 1876. On■the death of the widow in 1906, the administrator conveyed the propertiesbelonging to her husband’s estate to her children in the proportions oftwo-eighth to the sons and one-eighth to the daughters. On the sameday by P 2 the children effected a partition among themselves so as totake each certain properties in their entirety in lieu of their undividedshares. In consequence of this partition the property in this case fell toAhmsa Natchia. She had three children: Ayesha Umma, Saheed andMagida Umma, the second defendant in the case. By deed P 229 AhmsaNatchia conveyed this property to her son Saheed and she similarly-conveyed other properties that she obtained Cinder the will to AyeshaUmma and Magida.
In 1933, Saheed mortgaged the property with the plaintiff who put thebond in suit and purchased it on October 17. 1936, and obtained aconveyance in his favour.
The first defendant, who is a son of Ayesha Umma, claimed title to theland admitting that the plaintiff was entitled to only one-third share.The learned District Judge held that the will created a valid fidei com-missum and that the plaintiff obtained title to a one-third which wasall that Saheed was entitled to. In appeal two questions were argued,whether the will created a fidei commissum and whether Saheed hadacquired a prescriptive title to the entirety of the premises;
H. V. Perera, K.C. (with him S. J. V. Chelvanayagam and N. Kumara-singham), for plaintiff, appellant.—The questions that have to be decidedin this case are: —
Did the last will of I. L. I. L. Marikar No. 7130 of December 12,
1872. create a valid fidei commissum ?
If it did. what share did Saheed get ?
Has the plaintiff through his predecessor in title acquired prescrip-
tive possession to the entire premises conveyed by P 29 ?
This will has been subjected to judicial interpretation in three cases.Sabapathy v. Yusoof1; Saleem v. Mutturamen Chetty*; and SinnariChettiar v. Mohideqn et al.‘ On each occasion on very important pointsin the will a different interpretation has been placed ; the two laterdecisions accepting as correct the decision in Sabapathy v. Yusoof thatthe will created a valid fidei commissum. This will does not create afidei commissum. The testator may have intended to create a trust, bufhis intention has been defeated by his violating the rule against perpe-tuities. Apart from the prohibition against alienation which also occursin some instruments creating trusts there is nothing in this Will to showthat the testator intended to create a fidei commissum. Mr. JusticeAkbar was of that view. See 37 N. L. R. at page 79. “ Beyond theprohibition of alienation which sometimes occur in fiedei commissa thereare no words in the will to show that the testator intended to create a fidei
> 37 N. L. R. 70.'- .* 15 C. L. W. 115.
a 75 C. L. W. 109.
82
Ramanathan v. Saleem.
commissum. On the contrary the word “ trust ” is used. All that thetestator intended was to preserve the estate in perpetuity for the benefitof his descendants. To ascertain whether the will created a valid fideicommissum the usual tests might be applied. Is there a clear indicationof the beneficiaries? Are the beneficiaries the grandchildren of thedevisees or are they firstly the children and after them the grandchildren ?On this there is already some conflict in the decisions of this Court. Isthere any provision in the will which either expressly or by clear impli-cation shows at what point of time the property is to vest in the fidei-commissary heirs ? There is no such provision. On this again there isconflict between the decision. The whole position is unsatisfactory.This will affects title to property in Colombo worth many lakhs. A fullCourt should set at rest all this uncertainty caused by these recentdecisions.
The plaintiff relies on the prescriptive possession of Saheed and hismother. In 1906 Counsel’s opinion was obtained and parties came to anagreement and certain properties were conveyed absolutely on P 1 andP 2. Since then this property has been in the exclusive and adversepossession first of Assena Natchia and later Saheed who mortgagedthis property to plaintiff-appellant. Similarly, other properties went tothe other heirs. Appellant has established prescriptive title by adverseand exclusive possession for nearly forty years.
N. Nadarajah (with him C. E. S. Perera) , for the first defendant,respondent—The posssession of Saheed and his mother cannot beconsidered adverse to his sisters. They were co-owners and the principleof the decision in Corea v. Iseris Appuhamy' would apply. Theevidence shows that Saheed was not in possession till 1928. Even afterthat he has shared the rent with his sisters. The respondents haveplaced sufficient evidence and the trial Judge has accepted that evidenceand held against the plaintiff.
In Cadija Umma v. Don Manis Appu1 the Privy Council has re-affirmedthe view expressed in Corea v. Jamis Appuhamy. There is no reason whythis Court should disturb the findings of fact by the trial Judge.
The will creates a valid fidei commissum. Every attempt made toquestion the correctness of the decision in Sabapathy v. Yusoof (supra) hasfailed. In three different cases the same interpretation has been placedon the will. Title to property should not be unsettled by conflictingdecisions over the interpretation of the same will.
In Saleem v. Mutturamen Chetty and Sinnan Chettiar v. Mohideen,attempts were made to challenge the correctness of the view expressed byyour Lordship’s Court in Sabapathy v. Yoosuf but without success. Itis submitted that these judgments are binding. Apart from the judg-ments, there can be little doubt that the testator intended to create afidei commissum. The fact that a notary has not chosen the correctformula or set of words to give adequate expression to the intention ofthe testator cannot prevent the intention from being given effect to. VideWijetunga v. Wijetunga.’
1 IS N. L. R. 65.
* 13 C. L. W. 44.
3 15 X. L. R. 403.
SOERTSZ J.—Ramanathan v. Saleem.
83
September 9, 1940. Soertsz J.—
This was an action for declaration of title to premises bearing assessmentNo. 706, Colpetty, which at one time bore No. 130, Colpetty. The plain-tiff's case was that this and many other valuable properties in the city ofColombo, belonged to one I.L.I.L. Marikar, who made a last will datedDecember 12, 1872, in which he declared inter alia as follows : —
“ I do hereby will and desire that my wife …. and mychildren …. and my father ….. who are the lawfulheirs and heiresses of my estate, shall be entitled to and take theirrespective shares according to my religion and Shafie Sect ….
but they nor their issues or heirs shall not sell, mortgage, or alienateany of the lands, houses, estates or gardens belonging to me at present,or which I might acquire hereafter, and they shall be held in trust forthe grandchildren of my children, or of my heirs and heiresses, onlythat they receive the rents, income and produce of the said lands…. without encumbering them in any way be liable (sic) to be
seized, attached or taken for any of their debts and liabilities, and outof such income, produce and rents, after defraying expenses for theirsubsistence and maintenance of their families, the rest shall be placedor deposited in a safe place by each of the party, and out of suchsurplus, lands should be purchased by them for the benefit and use oftheir children and grandchildren as hereinbefore stated, but neitherthe executors herein named, or any Court of Justice shall require toreceive them or ask for accounts at any time or under any circumstances,except at time of their minority or lunacy.
I further desire and request that after my death the said heirsand heiresses or major part of them shall appoint, with the executorsherein named, three competent and respectable persons of my class,and get the movable and immovable properties of my estate dividedand appointed to each of the heirs and heiresses, according to theirrespective shares, and get deeds executed …. at the expenseof my estate, in the name of each of them subject to the aforesaid,conditions ”.
The testator died, and his last will was admitted to probate on May 29,1876, in D. C. Colombo, testamentary case No. 3,209.
Document P 4 shows that, in accordance with the desire expressed bythe testator, there was a division and apportionment of the immovableproperty. Assena Natchia, the widow of the testator, died in 1906, and inthat year, on the 24th of December, her administrator by deed P 1 conveyedthe properties belonging to her estate as derived from her husband, to herchildren in the proportions of two-eights to each of the sons, and one-eighth to each of the daughters. On the same day by'P 2, these childreneffected a partition among themselves so as to take, each, certain propertiesin their entirety, in lieu of their undivided shares of all the properties.In consequence of this partition, the property involved in this case, fellto Ahmsa Natchia. She had three children, Ayesha Umma, Saheed, andMagida Umma, the second defendant in this- case. In her lifetimeAhmsa Natchia conveyed to these children all the properties that cameto her directly under the will from her father’s estate, as well as thosethat came to her through her mother, Assena Natchia.
84
SOERTSZ J.—Ramanathan v. Saleem.
By P 29, she conveyed in 1919, the property in this case to her sonSaheed. Similarly- she had, in 1910, by P 32, and in 1912 by P 31,conveyed other properties to Ayesha Umma and Magida Ummarespectively.
In 1933, on P. 37, Saheed mortgaged this property with the plaintiffwho put his bond in suit, and purchased the land at the sale held onOctober 12, 1936, on the hypothecary decree entered in his favour, andobtained conveyance P 5 dated November 15, 1936. By way of counter-movement, the first defendant, who is a son of Ayesha Umma, obtained adeed ID 1 from his mother, by which she purported to convey to himinter alia all her right, title and interest in these premises. This deed wasexecuted on the 13th of October, 1936, that is, the day after the sale to theplaintiff, on the hypothecary decree.
Armed with this deed, the first defendant resisted the plaintiff, whenupon a writ of possession, he went to take over the premises he had pur-chased. This resistance appears to have been reported to Court, and atthe inquiry held upon that report, the first defendant produced his deedID 1, and claimed "a one-third share, admitting that the plaintiff wasentitled to a one-third. The plaintiff, thereupon, instituted this actionfor declaration of title to the entirety of the premises No. 130, Colpetty,now No. 706, and claimed damages at Rs. 90 a month from the 11th ofNovember, 1936, till he should be placed in possession.
In his answer the first defendant who had admitted plaintiff’s title toa third, changed his position, and asserted that the plaintiff was entitledto a one-twenty-eighth on the footing that the plaintiff’s mortgagorSaheed was one of the twenty-eight grandchildren of Assena Natchia.
His aunt, the second defendant, however, in her answer claimed thatshe was entitled to a one-third on the footing that she, the plaintiff’smortgagor Saheed, and the first defendant’s mother and vendor AyeshaUmma were the three grandchildren of Assena Natchia who becameentitled to this property, to the exclusion of the other grandchildren.
In view of this embarrassing conflict,between his claim and that of hisaunt, the first defendant, in the course of his evidence in this case, revertedto his original statement made in the course of the inquiry into the reportof resistance on the part of the first defendant to the plaintiff’s attempt totake possession of these premises, and admitted that the plaintiff’s sharewas one-third. His answer was amended to that effect.
The principal questions that arose for the determination in this casewere : —
Whether the last will of I.L.I.L. Marikar created a fidei commissum?
"Whether, if it did, Saheed got any more than a third of these
premises either on deed P 29 or by inheritance ?
Whether Ahmsa Umma and/or Saheed had acquired a prescriptive
title to the entire premises conveyed by P 29 ?
The learned trial Judge answered the first question iri the affirmative,the third in the negative, and on the second question he held that theplaintiff had obtained title to a one-third which he found was all thatSaheed was entitled to. He accordingly directed decree to be entereddeclaring plaintiff entitled to one-third of the premises and, by implication,in view of his answer to issue 6, to damages at Rs. 210 per annum. The
SOERTSZ.—Ramanathan v. Scleem-
85
plaintiff was to pay the second defendant costs but the first defendantwas to bear his own costs. In the decree, however, there is no directionin regard to damages. This is probably an oversight and I refer to itonly in passing.j,
On the appeal before us the two questions debated were whether thewill created a fidei commissum, and whether fidei commissum or no, Saheedhad acquired a prescriptive title to the entire premises in dispute in thiscase.
This will of I.L.I.L. Marikar has had a remarkable history. It hasalready come up for consideration by this Court, on three separateoccasions, and on each occasion, it has received a different interpretationon important points arising under it.
There was, first of all, the case of Sabapathy v. Yusoof'. One of thequestions that arose in that case, was whether the will created a fideicommissum, and Akbar S.P.J. and Koch J. rejected the submission madeon behalf of the appellant in that case that the testator had attempted tocreate a trust for the benefit of his descendants, but that the attempt hadfailed because it offended against the rule against perpetuities, and theyheld—
that, in view of the distribution of properties that had taken place,
the will created separate fidei commissa ;
that the grandchildren of Ahmsa Natchia—it was her property that
was involved in that case—were the fideicommissaries ;
that so many of the fideicommissaries as were ascertainable at the
time, became vested with title to the property in that case,when in violation of the prohibition against mortgaging, thesecond defendant in that case, a daughter of Ahmsa Natchia,mortgaged the property to the plaintiff in that case, but that theshares of these ascertainable fideicommissaries “ would bereduced if other grandchildren came into being after suchdate”.
The next case was that of Saleem v. Mutturamen Chetty ’, and the questionwas again raised whether there was a valid fidei commissum. Maartenszand Moseley JJ., who formed the Bench on that occasion, agreed withAkbar S. P. J. and Koch J., and held–
that in the circumstances already indicated by me, the will created
separate fidei commissa;
that the beneficiaries were the grandchildren of Ahmsa Natchia.
But they appear to have differed from the two earlier Judges in regardto the time of the vesting of title in the fideicommissaries, for they held—
that in the absence of an express statement in the will as to “ when
the properties are to devolve on the fideicommissaries ” theproperties “ must be deemed to pass on the'death of the fiduciaryheirs ”. '
I would point out that in the case before Maartensz and Moseley JJ.,too, there had been a mortgage by a' daughter of Ahmsa Natchia inviolation of the prohibition, but they paid no attention to that fact, andthey held that the vesting took place on the death of the fiduciary heirs.
1 {1935) 37 N. L. S. 70.% (1938) 15 C. L. W. 115.
86
SOERTSZ J.—Ramanathan v. Saleem.
The third case was that of Sinnan Chettiar v. Mohideen et al.1 Heretoo the question arose whether the will created a valid fidei commissum,and it came up before Moseley and Wijeyewardene JJ. The circum-stances in which the questions arose in that case appear to be asfollows :—Magida Umma, the third child of Ahmsa Natchia, sold theproperty in question in that case to the first defendant in that case, andto one Suppiah Chetty. The latter conveyed his interest to that firstdefendant. The plaintiff in that case who was a child of Magida Ummasued the . first defendant, contendinig that the will created a fidei com-missum, that the sale by his mother was in violation of the prohibitionagainst alienation, and that on that violation, he became vested with titleto a share of the land and that the first defendant got no title. TheBench held—
that the will created a fidei commissum ;
that the fldeicommissaries were the children of Ahmsa Natchia
and after them, the grandchildren ;
“ that the event on the happening of which the property devolves
on each succeeding set of fideicommissary heirs, is the death ofthe immediate previous fiduciary heirs,” and that, for that reasonthe plaintiff’s action was premature.
It will be observed that Moseley J. appears to have changed the view heheld in the earlier case, namely, that the fideicommissaries were thegrandchildren of Ahmsa Natchia, and to have held that both the childrenand grandchildren were successive fideicommissaries.
In face of this difference of opinion it is, naturally, with great anxiety,that I address myself to the questions raised before us, and after verycareful examination of the will, I regret to say that I find great difficultyin sharing the view that it created a fidei commissum.
This will is not free from ambiguity of language in several parts of it.but it is the function of legal interpretation to unravel the meaning ofthe testator as far as possible, “ on known principles and established rules,not on loose conjectural supposition or by considering what a man may beimagined to do in the testator’s circumstances ”.
There are in the judgment of Akbar S.P.J., Koch and Maartensz JJ.. andof my brother Wijeyewardene J. copious citations from local and SouthAfrican cases and commentaries, to establish what are more or lessaxioms, that do not seem to stand in need of so much commendation, forinstance, that “ there are no particular words necessary for the creationof a fidei commissum “ It matters not what words are used providedthey express the legally valid intention of the testator who desires tocreate a fidei commissum “ In a fidei commissum the only thing thatis taken into account is the intention of the testator, and it is not onlyhis verbally expressed intention that is looked to, but also that intentionwhich is tacit and may be deduced from the words used as a necessaryor manifest consequence Equally copious citations were possible forthe proposition that fidei commissa are “ odious ” and that “ the law isunfriendly to fidei commissa and will not lightly presume in their favour ”,
1 (1939) 41 -V. L. R. 225.
SOERTSZ J.—Ramanathan v. Saleem,
87
Bearing these principles in mind, I have read and re-read this will andthe only conclusion that I am able to reach is that the testator intendedto create what might have been a good English Trust, but for the factthat it violated the rule against perpetuities. He appears to have desiredthat his properties should never go out of the hands of his descendants.
Akbar S.P.J. observes in the course of his judgment that at the date ofhis will, the English Law of Trusts was part of the law of Ceylon. That isso. But I think it must be conceded that fidei commissa as understoodby the Roman-Dutch law were, at that date, much more familiar herethan the English Trust. It was a moot question before our Entail andSettlement Ordinance was passed in 1876, whether a testator could tie upproperty indefinitely by way of fidei commissunt. As pointed out byProfessor Lee on page 384 of the 3rd edition of his Introduction to Roman-Dutch Law, the tendency was to discourage such attempts. He quotesVoet “ now since there has been frequenf mention of a perpetual fideicommissunt in the preceding section ; it should be known that it has beengenerally held that where there is any doubt, such perpetuity onlyextends to the fourth generation”. That, perhaps, was the difficultythat confronted this testator and his notary, and made them eschew afideicommissary disposition, and led them to the less familiar EnglishTrust, unmindful of the rule against perpetuities.
In my opinion, there is much significance in the fact that while we findin this will such a definite expression as “ they shall be held in trust ”,there are not, as pointed out by Akbar S.P.J., “ beyond the prohibitionof alienation which sometimes occurs in fidei commissa ”, any words “ inthe will to show that the testator intended to create a fidei commissum”.But the fact that there is a prohibition against alienation is not incon-. sistent with an intention to create a trust, for such a prohibition is notunknown in the case of trusts. It might have occurred to the testator,in this case, that such a prohibition was necessary or desirable to preventthe devisees from dealing with the properties on the pretext that suchdealing had become necessary for the purpose of their subsistence, or forthe maintenance of their families.
According to my reading of this will, I do not think that the correctinterpretation is that the ultimate beneficiaries the testator had in vieware the grandchildren of his children, and of his heirs and heiresses.He appears to have taken a very long view, and to have contemplated hisremotest descendants, for while he devises his property to his wife, hischildren and his father, and prohibits them from alienating, encumbering,&c., and directs them to hold the properties devised, and such otherproperties as they may acquire out of the surplus income, for the use andbenefit of their grandchildren, he goes on to impose similar injunctionson those grandchildren in turn for the use and benefit of their childrenand grandchildren, and so on. He says, “ they (i.e., the properties) shallbe held in trust for' the grandchildren of my children and the grand-children of my heirs and heiresses ”, not absolutely, but “ only that theymay receive the rents, income and produce It seems quite clear thatthe antecedent of ‘ they ’ is “ the grandchildren of the children and -thegrandchildren of the heires and heiresses”, and not the original deviseesas appears to have been assumed in the three earlier cases. This view is
88
SOERTSZ J.—Ramanathan v. Saleem.
supported by the fact that these grandchildren are, themselves, prohibitedfrom “ encumbering them (i.e., the properties) in any way, or the samemay be liable to be seized, attached or taken for any of their debts andliabilities, and out of such income, produce, and rents, after defrayingexpenses for their subsistence and maintenance of their families, the restshall be placed or deposited in a safe place by each of the party (that is,according to my reading, the original devisees and the grandchildren ofthe children and the grandchildren of the heirs and heiresses) and out ofsuch surplus, lands should be purchased by them (i.e., by each of theseparties) for the benefit and use of their children and grandchildren ashereinbefore stated ”. The meaning I attach to the last three words isthat these remote descendants should, themselves, take “ only that theymay receive the rents, income ”, &c., and so all the generations of descend-ants are enjoined in the same way, in an unending cycle. That is how Iunderstand the will, and according to this interpretation, the testatorhad in contemplation the benefit of such remote descendants that it,probably, led the notary to take the view that the testator’s purposecould be achieved only by means of a trust. But unfortunately, thisrule against perpetuities defeated that intention.
If we examine the language of the will to see if the intentionof the testator to tie up his property can be given effect to onthe footing of a fidei commissum, we encounter many difficulties thatappear to me, insurmountable. There is an unequivocal prohibitionagainst alienation but that is all there is to suggest a fidei commissum.There is no clear indication of the beneficiaries as is shown by the veryfact that Akbar, Koch, and Maartensz JJ. and at one stage Moseley J.took the view that the beneficiaries were the grandchildren of thedevisees, while Wijeyewardene and Moseley JJ. in a later case held thatthe beneficiaries were first, the children of the devisees, and afterthem, the grandchildren. For the reasons I have given, my own viewis that the beneficiaries contemplated are all the generations of thetestator’s descendants. Again, there is no indication by express termsor by necessary or clear implication of the time at which the property isto vest in the different parties referred to in the will. In regard to thismatter too, the Judges have taken different views. Akbar S.P.J. tookthe view “ if the will created one fidei commissum, there is an indicationwhen the title is to vest in the fideicommissaries that is when they canall be ascertained. The date will be the death of the last of the childrenof the devisee, and until then, I take it, the jus accrescendi will applyamong the children of the devisee ”. This view means that a great dealhas to be read into the will and I can see no warrant, at all, for such acourse. But Akbar S.P.J. goes on to say : —
“As I have already stated the_ fidei commissa were all separate owingto the testator’s instructions to divide his estate among the heirs…. I have not, therefore, tried to interpret the will as creating
one fidei commissum. As regards issues 4 and 5 all the grandchildrenof Ahmsa Natchia …. are the fideicommissaries and will beultimately entitled to the property. It appears from the evidence thatAhmsa Natchia died about 16 or 17 years ago and that she had twodaughters and a son. The second defendant is one of the daughters
SOERTSZ J.—Ramanathan v. Saleem.
89
and had no more than a bare life interest in the property, with theliberty of taking only so much of the income as may be necessary forthe maintenance of her family, and by mortgaging the property…. she violated the condition which would, in my opinion
have the effect of vesting the title in the fideicommissaries, or so muchof them as can be ascertained, at the time of the violation of thecondition
In other words the interpretation is that if the will created one fideicommissum there was one time of vesting. If it created separate fideicommissa, there was another time of vesting, or rather several points ofthe time of vesting, for he goes on to add : “ The shares of these grand-children of Ahmsa Natchia who can be ascertairfed, will be reduced ifother grandchildren come into being after such date If I may say so,with the greatest deference, this seems unsatisfactory. It makes theconfusion in the will worse confounded.
On this point Maartensz J. observes as follows : —“ The will does notexpressly state when the properties are to devolve in the fideicommissaries.In the absence of such words it must be deemed to pass on the death of thefiduciary heirs ”. I see no justification for so presuming, but even if oneso presumes, here again the question arises, ‘ was there to be or wasthere not to be, operation of the principle of accrual among the fiduciaryheirs ? ’ Wijeyewardene J. seems to share the view of Maartensz J.although he expresses himself in a somewhat different' manner. He says“ the event on the happening of which the property devolves on eachsucceeding set of fideicommissary heirs is the death of the immediateprevious fiduciary h.eirs who last entered into possession of the propertyIt is not clear whether the death of each of the fiduciary heirs of thegroup or the death of the last of them, is to be the determining factor.Moreover, this view does not take notice of the fact that, according to thelanguage used by the testator it- is possible to infer that he intended thatmembers of different generations who were in existence simultaneouslywere entitled to subsist on, and to be maintained out of the income.
In the case of Sabapathy v. Yusoof (supra) Akbar S.P.J. and Koch J.appear to have relied very much on the South African case of Estate Kemp"et. alv. MacDonald’s Trustee I have examined this case very carefully, butI fail to see that any assistance can be derived from it, on the questionwhether the will in this case created a fidei commissum. What was laiddown in that case, as I understand it, is that in a case arising in SouthAfrica at a time when the English law of Trusts was no part of SouthAfrican jurisprudence, when the testator by his will expressed himself inphraseology appropriate to the settling of a trust as understood in theEnglish law, South African Courts would give effect to the intention of thetestator on the footing of a fidei commissum, if the language of the instru-ment, either expressly or by implication, was sufficient for constitutinga fidei commissum. It must be borne in mind that, in that case, there wasclear indication of the beneficiaries, and of the time at which an interestwas to vest in them, and the question that arose for decision was whether inregard to one of the beneficiaries, there had been such a vesting of theinterest as to make'it transmissible to her heirs. This decision does not
1 (1915) A. D. 491 s. A. L. R.
90
SOERTSZ J.—Ramanathan v. Saleem.
bear on the question we are now considering, namely, whether this willcreated a fidei ■eommissum. Counsel for the appellant in that case,Sabapathy v. Yusoof (supra) appears to have relied on this decision inorder to submit that the different beneficiaries under this will would atbest, have a personal claim against parties violating the directions of thetestator.
For these reasons, to mention only some, I find considerable difficulty inconstruing'a fidei eommissum, and I should have asked My Lord the ChiefJustice to reserve the question for consideration by a Full Bench, if it hadbeen necessary to do so.
But I do not think I shall be justified in taking that course for, in myopinion, the appeal before us is entitled to succeed on the other submissionmade to us, namely, that Saheed, the plaintiff’s predecessor in title, hadacquired a prescriptive title to this property. The evidence of Mr. J. A.Ferera, Proctor, shows that deeds P 1 and P 2 conveyed the propertyabsolutely to the parties concerned. This, he says, was done on theopinion obtained from Counsel on the question whether there was a fideieommissum. It is not material, on this point, whether that opinion wasright or wrong. What matters is that in view of that opinion parties, byarrangement, possessed separate lands as their exclusive property andadversely, to one another. The evidence to establish that fact is over-whelming. Saheed, the plaintiff’s predecessor in title, had to admit inthe face of documents that confronted him, that just as his motherconveyed this property to him, so she had previously conveyed otherproperties to her two other 'children in 1910 and 1912 (P 13 and P 32). Hehad also to admit that the property conveyed by P 31 to his sister Magida,is now the property in the possession of a Chetty, and that “ AyeshaUmma and her husband Yusoof (i.e., the parents of the first defendant)exclusively possessed Myrtle Lodge ”. “ Now Myrtle Lodge is in the posses-sion of the first defendant and his brother and sister ”. He goes on toadmit in examination-in-chief that these gifts by his mother to him and tohis sisters were matters to which they were all parties. “ I did not object.Neither did Ayesha nor Magida object …. All three of us gotequal shares of the property on the occasion of our marriages ….My mother gifted all the properties to the three of us. She has only threechildren. ■ When my mother died she left nothing ”.
There is also the fact that four years after his mother’s death, Saheedhad his name inserted in the Municipal assessment register, as the ownerof the property in this case. (See P 15 to P 27.)
Moreover, in'the year *1925, in an indenture entered into betweenhimself and a neighbouring owner, he describes himself as “ seized andpossessed of or otherwise well and sufficiently entitled to ” the premisesin question in this case. In examination-in-chief, this man Saheed saidthat after his mother’s death, and at the time his name was registered in theMunicipal register, that is to say, somewhere in 1918-1919, the house wasoccupied by a tenant—“ I believe a Municipal Inspector. I gave thehouse on rent to that gentleman ”. All this, in examination-in-chiefwhen he was called by the plaintiff as his witness. It is obvious ..that hissympathies were with the first defendant, his nephew. It is easy to
SOERTSZ J.—Ramanathan v. Saleezn.
91
visualize the witness holding himself in leash during the examination-in-chief restricted as he was to answering questions put to him. But, oncecross-examination begins there is a transparent inclination on his part towhittle down, as much as possible, his evidence-in-chief. Under cross-examination, he admits that from 1918-1928 Ayesha Umma lived in thishouse in Colpetty. He does not say when it was that the MunicipalInspector who was his tenant in 1918-1919 made way for Ayesha Umma.The statement that Ayesha Umma lived in the house from 1918-1928 isopposed to the assertion in P 36, in the year 1925, that he (Saheed) wasin occupation of this house for he describes himself as Saheed of No. 130,Colpetty road, Colombo ”. P 36 contradicts his evidence in cross-examination “ I got into possession only in 1928 ”.
His courage appears to increase as the cross-examination progresses.When the question is put to him :“ When you got into possession in
1928, was any claim made by any of your sisters for any share in this house?"His answer is “ Ayesha lived in the house and gave me a share of theincome. Ayesha said she has a share and gave me a share. She gaveMagida also a share. She was Paid Rs. 15, I was paid Rs. 15 everymonth ”. Neither Ayesha nor her husband nor any representative ofMagida is called on this point. The unreal nature of this evidence isdemonstrated by the fact that the first defendant himself says in thecourse of his evidence “ my mother was in possession of these premises.Saheed collected the rent. Each of us was paid Rs. 25 ”.
If further proof is required of the fact that each of the properties waspossessed exclusively and adversely by Ayesha Umma’s children on thefooting of Ahmsa Natchia’s conveyance to them, that proof emergeseloquently from the fact that the first defendant was in two mindswhether he should claim a one-third or a one-twenty-eighth.
An attempt appears to have been made to support the evidence thatAyesha Umma was in occupation from 1918-1928, by means of document1 D 2 which is the death certificate of Ayesha Umma. It is dated 1914.Saheed was the informant of the Registrar and he is described as “ OdumaLebbe Marikar Mohamadu Saheed, 111, New Moor street ”. From thisdocument the inference is sought to be drawn that Ayesha Umma musthave been in occupation of this Colpetty house from 1918 to 1928. Thisis an obvious non sequitur. It may well be that Saheed’s residence isgiven in 1 D 2 as 111, New Moor street, either because at that time Saheedactually resided at 111, New Moor street, and had a tenant in his Colpettyhouse—in 1918, a Municipal Inspector was his tenant—or that Saheed’sresidence was assumed by the Registrar to be 111, New Moor street,because he came to give information of the death of his mother at thataddress.
For the first defendant much reliance was also placed on the fact thatin P 43 of the year 1920 Ayesha Umma is described as of Colpetty,Colombo. To say the least, this is inconclusive. There were other propertiesof this estate situate in Colpetty, and there is nothing in the document topoint to the fact that at that time, Ayesha Umma was in residence in thisparticular Colpetty property. As against P 43, there is document P 39of the year 1926 in which Ayesha Umma is described as of “ Layard’s
92
SOERTSZ J.—Ramanathan v. Saleem.
Broadway in Colombo, a fact that contradicts Saheed’s and the firstdefendant’s evidence that Ayesha Umma lived in this house in Colpettycontinuously from 1918-1928.
In regard to the deed of renunciation, on which the first defendantrelied to prove that the properties gifted by Ayesha Natchia to her threechildren were not the' exclusive property of the children to whom theywere gifted, the recitals in the deed, make it quite clear that this deedmust have been the result of the insistence by a cautious notary thatthere should be such a deed for the purpose of doubly assuring untoAyesha Umma’s husband Yusoof the title which Magida Umma hadconveyed to him in regard to 34 and 35, Layard’s Broadway. One ofthe recitals is “ whereas by virtue of deed No. 84 dated March 22, 1912,
…. executed by Ahmsa Natchia in favour of Magida Umma, the
said . . . Magida Umma has held and possessed and enjoyedthe said properties as absolute owner thereof …. and whereasfor the confirming of the title of the said …. Yusoof ….it is- deemed expedient that the grantors should execute these presents,”and in the conveyance clause the statement is “ the grantors do andeach of them doth confirm and release unto and renounce in favour ofthe and …. Yusoof . .all their right, title and
interest if any.” It is this document that the learned District Judgethought militated against the plaintiff’s case that Saheed had acquired aprescriptive title. In my.opinion for the reason I have just given whenI quoted the recitals and the clause of conveyance, this document has nosuch effect.
The evidence of Messrs. Jayasuriya and Goonesekere, Saheed’s tenants,supports the fact that Saheed was the sole owner of the property and tookall the rent, and that it was only after the sale in execution, to the plaintiffthat his sister Ayesha and his nephew, the first defendant, collaborated inan attempt to detract as much as possible from the plaintiff’s title. It isabundantly clear, on all the evidence in the case that from 1913 Saheedwas in adverse and exclusive possession of this property and had acquireda prescriptive title to it.
Counsel for the respondent sought to repel this claim to a prescriptivetitle in Saheed, by means of the opinion given by the Privy Council inthe case of Corea v. Iseris Appuhamy But that case does not help himat all. In that case an admitted co-owner, that is to say, a co-heir withliis brothers and sisters, upon an intestacy, who had entered into possessionof a land of the estate, and had been in exclusive possession of it for manyyears, sought to defeat his brothers and sisters. Their Lordships of thePrivy Council delivered their opinion that his claim failed because hispossession was referable to his co-ownership, and that no possession isadverse that can be referred to a lawful title. There was no overt act onhis part from which to date an adverse possession. In a word, there wasno ouster nor was there the equivalent of an ouster.
In the case before us, the position is altogether different. In 1906, thetestator’s children divided the properties among themselves, and there-after they possessed the properties that were given to them,- in lieu oftheir undivided shsires in all the properties. One of them was Ahmsa
‘ 15 N. L. R. 65.
Joseph v. Fernando.
03
Natchia, and she in 1910, 1912 and 1913 conveyed to her three childrenseparate properties, and the evidence is overwhelming, as I have pointedout, that thereafter each child possessed his or her property adverselyto the others. There was, therefore, in consequence of a common agree-ment among them, an ouster on the part of- each child, of the otherchildren in respect of the properties that each received so far back as1910, 1912 and 1913. In regard to the property in this case Saheed’spossession from 1913 has been exclusive and adverse, and the attemptnow made to show that it was a possession for himself and his sisters isthoroughly dishonest.
t
For these reasons, I reach the conclusion that the plaintiff’s predecessorin title, that is Saheed, had a prescriptive title to this property againsthis sisters, and that that title has passed on P 5 to the plaintiff, andprevails against the title set up by the first defendant, on deed 1 D 1 fromhis mother Ayesha, and by the second defendant as a co-heir withSaheed.
I set aside the judgment of the learned District Judge and enter judg-ment for the plaintiff as prayed for with costs here and below. Letdecree be entered accordingly.
Howahd C. J.—I agree.
Appeal allowed.