015-NLR-NLR-V-37-SABAPATHY-v.-MOHAMED-YOOSOOF-et-al.pdf
70
Sabapathy v. Yoosoof.
1935Present: Akbar S.P.J. and Koch J.
SABAPATHY v. MOHAMED YOOSOOF et al.
291—D. C. Colombo, 50,490.
Mortgage action—Necessary parties—Section 6 (1) of Morgage Ordinance,No. 21 of 1927, not exhaustive—Person claiming adversely to mortgagormay be joined—Fidei commissum under Roman-Dutch law—Directionsto executor to convey property to heirs—Use of the expression “ trust "—English law of trusts not necessarily applicable—Development of thelaw of fidei commissum.
Section 6 (1) of the Mortgage Ordinance does not preclude the mort-gagee from joining any other person as defendant in a hypothecaryaction, who could have been made a party under the Roman-Dutch lawso as to secure a binding decree against him.
A person in possession claiming adversely to the mortgagor may be sojoined.
By last will dated December 12, 1872, a testator bequeathed hisproperties to three sets of heirs, his father, his wife, and his childrensubject to the condition that his heirs were to take their shares accordingto the Muslim law but that neither they nor their issues or heirs were tosell or mortgage or alienate the property but to hold them in trustfor the grandchildren of his children and the grandchildren of his heirsand heiress.
> 1 C. W. R. 13G.* 1 C. IK. li. 170.
*24 N. Li R. 15.*24 N. L. R. 17.
Sabavathy v. Yoosoof.
71
The will further provided that they may receive the rents, income,and produce of the lands without encumbering them in any way and,after defraying the expenses for their maintenance, out of the surplusfunds, lands should be purchased for the benefit and use of their childrenand grandchildren.
The will also provided for a division of the property after the deathof the testator and the execution of deeds by the executor in favour ofeach heir containing the same conditions as are found in the will.
By deed dated February 18, 1878, the executor conveyed the propertyin dispute to one of the daughters of the testator, A. N., subject to theconditions of the will. The second defendant, the mortgagor, is thedaughter of A. N., and the respondents are the grandchildren of A. N.
Held, that the will created a valid fidei commissum under the Roman-Dutch law.
Held, further (per Akbar S.P.J.) that the violation of the conditionby the second defendsuit would have the effect of vesting the propertyin the fideicommissaries.
T
HE plaintiff sued the first and second defendants for the recovery ofRs. 15,000 and interest on two mortgage bonds.
The tenth to sixteenth respondents were joined in the action, as theyclaimed a beneficial interest in the mortgaged property, for the purpose ofobtaining an effectual hypothecary decree binding on them. They claimedsuch interest by virtue of the last will of one Idroos Lebbe Marikar datedDecember 12, 1872, the terms of which are set out in the head-note.
The learned District Judge held that the tenth to sixteenth respond-ents were not necessary parties and dismissed the action as againstthem.
V. Perera (with him D. W. Fernando and Chelvanayagam), forplaintiff, appellant.—Two points arise for decision in this case. Firstly,are the tenth to sixteenth defendants properly made parties to thismortgage action, and secondly, are they owners of the property mortgagedby virtue of the last will No. 7,130 of December 12, 1872 ?
Section 6 (1) of the Mortgage Ordinance, No. 21 of 1927, does notexhaust the class of persons that may be sued in a hypothecary action.The expression “ necessary parties ” means that the parties enumeratedthereunder cannot be left out in a properly constituted hypothecary action.It follows therefore that there may be others who may properly be madeparties to a hypothecary action. The Ordinance itself is entitled “ AnOrdinance to amend and consolidate certain laws relating to mortgages ”,we must therefore look to the Roman-Dutch law to ascertain who maybe sued in a hypothecary action. Under the Roman-Dutch law amortgagee could bring two actions: one against the mortgagor for thepayment of the debt, and the other the hypothecary action or actio servianato have the land mortgaged sold. (Voet XX. 4, 1.) The latter actionmay be prosecuted not only against the mortgagor but also against anythird party in possession whether he is a bona fide or mala fide possessor.(Voet XX. 4, 2.) The expression “ any third party in possession whetherhe is a bona fide or mala fide possessor ” is wide enough to include anythird party in possession whether he claims- through the mortgagor oradversely against him. The tenth to sixteenth defendants, respondentsin this case, are admittedly in possession of the land mortgaged and are
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Sabapathy v. Yoosoof.
therefore properly made parties to this action even though they claimadversely to the mortagors. It was held in Fonseka v. Pieris1 that athird party in possession claiming adversely to the mortgagor may bemade a party to a hypothecary action. See also Marikar v. Louis’ andMarimultu v. De Soysa’.
The English law of trusts was part of the law of Ceylon before thepassing of the Trust Ordinance of 1917. The Trust Ordinance itself isentitled “ An Ordinance to amend and consolidate the law relating toTrusts ”. There were Ordinances prior to the Ordinance of 1917,providing for the appointment of Trustees, &c. The view that theEnglish law of trusts formed a part of our law is taken in a number ofdecisions of this Court. (Ibrahim v. Oriental Banking Corporation * andSuppramaniam v. Erampakurukal’”. Therefore if a document purportedto create a trust before 1917, it must be interpreted according to theprinciples of the English law of trusts. In South Africa where theEnglish law of trusts formed no portion of the legal system, there theCourts have interpreted documents purporting to create trusts accordingto the principles of the Roman-Dutch law of fidei commissa. (Estateoj Kemp and others v. McDonald’s Trustee ”.) In Ceylon it is notnecessary to resort to the Roman-Dutch law of fidei commissa tointerpret a document purporting to create a trust. We have here asystem of law where the English law of trusts and the Roman-Dutch lawof fidei commissa exist side by side. The document before us creates inunmistakable language a trust in favour of the grandchildren of thechildren, heirs, and heiresses of the testator. There are two trusts: one inrespect of the corpus and the other a trust to accumulate the surplusincome. In this case Amsa Natchia is the trustee of both trusts andher grandchildren are the beneficiaries. Both trust offend the ruleagainst perpetuities and are therefore void (Mussoorie Bank Ltd. v.Raynor Underhill on Trust, 7th ed., p. 74). Amsa Natchia thereforetakes the property absolutely, and the plaintiff in this case is entitled toa hypothecary decree binding on the tenth to sixteenth defendants.
N. E. Weercsooria (with him Keuneman and Nadarajah), for tenth tosixteenth, defendants, respondents.—Section 6 (1) of the Mortgage Ordi-nance deals with the necessary parties to a hypothecary action. Beyondthepersonsenumeratedthereinnootherpersoncan be madea party.
A necessaryparty isonewhoclaimsan interestinthe mortgageproperty
to which the mortgage in suit has priority. A necessary party thereforemust always be one who is claiming through the mortgagor. Section 6
is not in conflict with the law as stated by Voet.
In Book XX. 4, 2, after stating that the action may be prosecutedagainst any third party in possession whether he is a bona fide or malafide possessor Voet goes on to say, “ For, as the jus pignoris: is notannexed to the person but to the thing, the debtor cannot deprive thecreditors of it by gift, bequest, sale, barter or any other kind of alienation.”This clearly shows that when Vote spoke of a third party in possession he
> 7 N. L.It. 202.5 23 N. L. R.417.
*3 S. C.C. 99.« (1913) A. D.491.
*8 S. C. G. 121.'» (1882) 7 .1. 0. 321.
* 3 N. L. R. 148.
Sabapathy v. Yoosoof.
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had in mind only a party in possession who claimed through the mortgagor.This is the interpretation given by Pereira J. in Silva v. Fernando1 toVoets’ statement of the law in Book XX. 4, 2. The case reported in
N. L. R. 262 has been wrongly decided. The cases in 3 S. C. C. 99 and
S. C. C. 121 are not in point on the question whether the mortgagee cansue a person in possession claiming adversely to the mortgagor, see 2 S. C.C. 20. A mortgagee’s right to have the property sold on the failure of themortgagor to pay the debt is a right arising on the bond, a merely con-tractual right. The mortgagee can therefore only sue the parties to thecontract and their privies in the mortgage action and not any third partyin possession claiming adversely to the mortgagor.
This action should have been dismissed as against the tenth to sixteenthdefendants on the first issue. On the averments in plaint the plaintiff isnot entitled to proceed against these defendants. They have been madeparties because they claimed a beneficial interest. The expression bene-ficial interest is far too vague and the averment that they claim a beneficialinterest cannot be interpreted as an averment that they are in possession.Issue 1 should have been decided by reference to the plaint and the actiondismissed as against these defendants.
H. V. Perera, in reply on the first point.—Voet does undoubtedly saythat the debtor cannot deprive the creditor of the property mortgagedby gift, bequest, &c. (Voet XX. 4, 2), but this is in no way a limitationof his previous statement that the mortgagee can sue any third partywhether bona fide or mala fide in possession. This statement by Voetmay be due to the fact that the doctrine that a successor in titlecould claim no better title than the person through whom he claims,was not so clear then as it is now. Voet’s meaning becomes clear whenthe whole of section 2 is read. He says that a mortgagee could even sueby a hypothecary action a person who has successfully litigated with thedebtor in an action rei vindicatio respecting the proprietorship of a thingpledged provided of course the mortgage was anterior to the law suitbetween the debtor and the person litigating. See also the translator’snote (Berwick’s Voet, p. 377). Voet further says (Book XX. 4, 7), “Forif he sues a third party, he is bound to prove that the thing was in theestate of the debtor at the time of the hypothec ”. If as argued by re-spondents’ counsel the third party to be sued is one claiming through themortgagor then there is no necessity for this statement of the law by Voet.A hypothec is defined as a factum whereby a jus in re is created in securityof the debt due to the creditor, but in which the possession is nottransferred to the creditor (Voet bk. XX. 1, 1). Maasdorp in vol. II.,chapter El., classifies mortgages or hypothecs under jura in rem, a jus in rembeing defined as a right to deal with a thing in any way whatsoever. Thatthe jus in rem of the mortgagee, namely, his right to sell the property fornonpayment of his debt, may be exercised against whomsoever in possessionis clear from other commentators besides Voet. See Perezius on Justi-ninan’s Code, bk. IV., tit 10, para 12, and Noodfs Commentary on Pactsand Transactions, chapter XIII. Fonseka v. Peiris2 is directly in point.It is a considered judgment of this Court on' Voet XX. 4, 2. The case
1 17 N. L. R. 15.
3 7 N. L. R. 262.
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Sabapathy v. Yoosoof.
reported in 17 N. L. R. 15 refers to the rights of the possessor accruing tohim through the mortgagor and therefore the remarks of Pereira J. in thatcase cannot be construed as being an opinion adverse to Fonseka v. Peiris.
The expression claim a beneficial interest is wide enough to include“ possession However this point has not been taken in the Courtbelow and respondents’ counsel cannot now in appeal raise it for the firsttime. If it was raised in the Lower Court the plaintiff would have had anopportunity of amending his plaint.
[Akbar J.—As the decision of the first point goes to the root of thematter we will reserve it for our consideration. If we agree withappellants’ by counsel that tenth to sixteenth defendants are rightly madeparties we will give the respondents’ counsel an opportunity to arguethe second point.
The further argument was as follows: —
N. E. Weerasooria, for respondents.—The last will No. 7,130 creates afidei commissum. The intention of the testator must be given effect to.The intention of the testator was to create a fidei commissum. in favour ofthe grandchildren of Amsa Natchia and not a trust as argued by thecounsel for the appellant. The English trust was not so familiar to thenotary of 1872 as it is to-day. Although the word trust is used in thedocument it is clear that the testator intended to create a fidei commissumand not a trust. The devisees, their issues, and heirs are prohibited fromalienating, and a prohibition against alienation is more appropriate to afidei commissum than to a trust. The prohibition against alienation is nota nude prohibition. The persons in whose favour the prohibition isimposed are clearly designated, namely, the grandchildren of AmsaNatchia. The last will therefore creates a fidei commissum in favour ofthe tenth to sixteenth defendants and the plaintiff in this case cannot geta hypothecary decree binding as against them.
H. V. Perera, for appellants (in reply).—The fidei commissum was wellknow to the notaries of that period and if the testators’ intention was tocreate a fidei commissum, the word fidei commissum would have been used.Not only is there an absence of the word fidei commissum in the documentbut words like “ trust ” and “ for the use and benefit of ” which are peculiarto the English law of trust are used. The intention of the testator wasclearly to create a trust and not a fidei commissum. Prohibition againstalienation is not repugnant to a trust. A trustee has a limited power ofsale and mortgage and a testator who desires to keep the property intactcan and must impose on him a prohibition against alienation. OurCourts have interpreted a prohibition against alienation where the personsfor whose benefit the prohibition is imposed are clearly designated asbeing sufficient to create a fidei commissum but where the word trust hasoccurred it has never been interpreted to mean a fidei commissum. Further,from the very beginning there is a separation of the legal from the bene-ficial estate. Amsa Natchia had merely a legal estate with a limitedright to take so much of the income as would be sufficient for the mainte-nance of herself and her family. This decision of the legal estate from thebeneficial is inconsistent with a fidei commissum. Clearly the last willcreated a trust in favour of Amsa Natchia’s grandchildren and this trust
AKBAR SJ’J.—Sabapathy v. Yoosoof.
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as already stated offends the rule against perpetuities and is thereforevoid. The tenth to sixteenth defendants have no interest in this propertyunder that will.
July 18, 1935. Akbab S.P.J.—
The plaintiff-appellant sues in this mortgage action on two mortgagebonds for the recovery of Rs. 15,000 and interest from the first and seconddefendants, the mortgagors. The third to the ninth defendants werejoined as they were secondary mortgagees, transferees, lessees, or personswho had entered into agreements to purchase from the mortgagors, and didnot take any part in this appeal. The tenth to the sixteenth respondentswho were represented by counsel at the hearing of this appeal were joined(as stated in the amended plaint) because they claimed “ a beneficialinterest in the mortgaged property ” for the purpose of obtaining aneffectual hypothecary decree binding on them ”.
Five issues were framed in this case which are as follows: —
Do the averments set out in the several paragraphs of the plaint dis-
close a cause of action against the tenth to sixteenth defendants ?
Do the bonds sued upon have priority to the interest of the tenth
to the sixteenth defendants ?
If not, if issues 1 and 2 are answered in the negative, are defendants
10 to 16 entitled to be discharged from the action withoutprejudice to their rights in the land sought to be bound in thisaction ?
If issue 2 is answered in the affirmative, are 10 to 16 defendants
owners of the said premises sought to be bound by virtue of lastwill No. 7,130 of December 12, 1872, and deed No. 241 of Feb-ruary 19, 1878 ?
If so, can plaintiff ask for a hypothecary decree over the said
premises ?
Mr. Weerasooria who appeared for the respondents argued that he wasentitled to a dismissal of plaintiff’s action so far as the tenth to sixteenthdefendants were concerned, because the plaint did not aver that they werein possession of the mortgaged property but only that they claimed abeneficial interest in it and because the District Judge had answered issue(1) in the negative. I cannot accept his contention for several reasons.The expression “ claim a beneficial interest is wide enough to cover“ possession ” of the mortgaged property. If it did not, the respondents’counsel at the trial should have asked for a dismissal of the plaintiff’saction. In such an event the trial Judge would under our procedure haveallowed the plaintiff an opportunity to amend his plaint upon terms. Butinstead of respondents’ counsel adopting this course, immediately aftersuggesting issue (1) he cited section 6, sub-section (1), of the MortgageOrdinance of 1927, and framed the other issues 2 to 5, clearly indicatingto Court that he based his case on two other grounds of law which havebeen argued at great length before us, viz., the point covered by issues (2)and (3) that the respondents were not necessary-parties within the meaningof section 6 (1) of the Mortgage Ordinance and that they must be dis-charged from the action ; and the point covered by issues (4) and (5)
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AKBAR S.P.J.—Sabapathy v. Yoosoof.
that if section 6 (1) of the Mortgage Ordinance did not apply, the respond-ent claimed adversely .to the mortgagors and not under them and there-fore the plaintiff was not entitled to ask for a hypothecary decree asagainst them. The judgment shows that the District Judge has under-stood the issues more or less in this sense. After suggesting these issuesrespondents’ counsel called the witness Haniffa and the eleventh defendantwho on cross-examination admitted that he and his brothers and sisters(i.e., 10th to 16th defendants-respondents) were in possession of the propertyan<3 had been taking the rents from 1931. The reply of respondents’counsel as recorded also shows that he based his case not on issue (1) buton the other issues. In tftese circumstances, I do not think the respondents’counsel can at this appeal ask for a dismissal of plaintiff’s action on issue(1) alone, as the necessary evidence has been elicited in cross-examinationin the form of an admission from the respondents themselves indicatingthat the expression “ beneficial interest ” was meant to convey themeaning of possession.
I now pass on to the real issues of law which are of great importance tothe legal profession which arise in this appeal and which have been fullydiscussed before us. The first question to be decided is, what is the exactmeaning of the expression “ necessary party ” in section 6 (1) of OrdinanceNo. 21 of 1927 ? Does the expression mean that the persons enumeratedare the only parties who can be sued in a hypothecary action or does itmean that they are the persons who cannot be left out in such an actionand that others who could have been joined in a hypothecary actionbefore the Ordinance was passed may still be joined in a hypothecaryaction brought after November 24, 1927 ? The Ordinance is entitled“ An Ordinance to amend and consolidate certain laws relating to mort-gages It will, therefore, be necessary to ascertain what the Roman-Dutch law was on the points arising in this case. Voet defines a hypothecas a pactum whereby a jus in re is created in security of the debt due tothe creditor, but in which the possession is not transferred to the creditor(Book XX. 1, 1). Maasdorp in vol. II., chapter II., classifies mortgagesor hypothecs under jura in rem, a jus in rem being defined as a right todeal with a thing in any way whatsoever. In the case of a mortgage thejus in rem vested in the mortgagee is the right to sell the property mort-gaged for non-payment of his debt.
Under the Roman-Dutch law the mortgagee could bring two actions :a personal action against the mortgagor for payment of his debt, and theactio auasi serviana or the hypothecary action to have the land sold(Voet XX. 4, 1).
In XX. 4,2, Voet says as follows :—
“This action may be prosecuted not only against the debtor himself,and against a. person who has mortgaged his property on behalf of adebtor, but also against any third party in possession, whether he is abona fide or mala fide possessor ; and also against one who has fraudu-lently ceased to possess. For, as the jus pignoris is not annexed to theperson but to the thing, the debtor cannot deprive the creditor of it bygift, bequest, sale, barter or any other kind of alienation.”
It is argued for the appellant that under the first portion of the abovequotation a hypothecary action could be brought against a'party in
AKBAR S.P.J.—Sabapathy v. Yoosoof.
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possession even though he may claim adversely against the mortgagoras was done by the counsel for the respondent, in Fonseka v. Peiris Counsel for the respondent in this case argues on the contrary that thesecond portion of the above quotation showed that Voet was referring toa party in possession who claimed through the mortgagor. I cannotagree with this latter interpretation, for the reference to a bona fidepossessor is wide enough to include a person in possession claimingadversely to the mortgagor. But the matter is settled beyond doubtwhen the whole of section 2 is read. For Voet then goes on to say thatthe mortgagee could even sue by a hypothecary action a person who hadsuccessfully litigated with the debtor in an action rei vindicatio respectingthe proprietorship of a thing pledged, provided of course the mortgagewas anterior to the law suit between the debtor and the person litigating.The translator in a note (Berwick’s Voet, p. 377), says as follows :—“Asput in the Digest ”—“ If a debtor has lost a suit in which he claimed thething because he failed to prove that it was his the mortgage-creditor isnevertheless entitled to the benefit of the actio serviana (the “ hypothecaryaction ”) on proving that the thing was “ in bonis (debitoris) ” at the timeof the mortgage (XX. 1, 3) ”. This passage makes it clear that Voet wasreferring not only to a person in possession who may claim adversely tothe mortgagor, but even to a person who had successfully vindicated hisalleged title against the debtor in an action. Before, of course, a mort-gagee can succeed in his hypothecary action against such a person, he hadto move the title of his mortgagor to the property mortgaged at the timeof the mortgage, and this he was allowed to do even though his ownmortgagor had lost his title as against the person in possession in an actionbetween them to which the mortgagee was not a party. The same idea isto be found in section 7 when Voet says “For if he sues a third party, heis bound to prove that the thing was in the estate of the debtor at thetime of the hypothec ”. The reason why Voet added the second portionto the passage quoted by me above from the beginning of section 2 may bedue, as Mr. Perera argues, to the fact that the doctrine that a successor intitle could claim no better title than the person through whom he claims,was not so clear then as it is now, because under the Roman-Dutch systemof law a mortgagor was still left with the title and possession of theproperty mortgaged. Mr. Perera has quoted two authorities fromPerezius on Justinian’s Code (bk. IV., tit. 10, para 12) and Noodt’sCommentary on Pacts and Transactions, chapter XIII. The followingare translations very kindly provided- by Mr. Wickremanayake, Advocate :
“ A double action is available to me. One against the person of thecontractor, the other a hypothecary action which is available against himwho is in possession of the property or any body whomsoever who iskeeping it back”. “Just as, therefore, when a pledge is given whetherby cession or mancipatio the creditor can by the civil law recover it, asthough he were owner, from anybody in possession ; so if the property isbound by a nude pact whether there has or has not been any delivery thecreditor seems to have by the authority of the Edict, not indeed thedominium but a jus in re and the power of recovering the property pledgedto him, by the actio serviana or the actio quasi serviana from anyone37/9 •11 N. h. R. 262.
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AKBAR SP.J.—Sab apathy v. Yoosoof.
whomsoever in possession. But since this action is available to the creditoragainst any sort of person in possession whether the creditor was put inpossession or not, there appears, as far as this matter is concerned, nodifference between a pledge and a hypothec except in the name, althoughin other respects there is a very great difference between the two asMarcianus has correctly stated
This was the law in force in Ceylon till the Civil Procedure Code effecteda change. By chapter" XLVI. the mortgagee had to join ail parties inpossession with the mortgagor in one action (see Punchi Kira v. Sangu) That chapter also provided for notices to be issued by the mortgagee in ahypothecary, action on all grantees, mortgagees, lessees, and other incum-brancers whose deeds shall be of date subsequent to that of the mortgage .on which the action is brought. All such puisne incumbrancers couldapply to be joined as defendants on the hypothecary action. If they didnot apply to be so joined they were to be bound by the hypothecarydecree.
The chapter further provided that these consequences were onlyto ensue if the deeds and addresses for service had been duly registered.Chapter XLVI. was in exact conformity with section 34 of the CivilProcedure Code for that section enacted that an obligation and a collateralsecurity were to be deemed to be one cause of action. (See Palaniappa v.SaminathanJ.) The change made by the Civil Procedure Code in no wayaffected the Roman-Dutch law on the competency of the mortgagee tojoin any person in possession whether claiming adversely to the mortgagoror through him in the hypothecary action so as to get an effectual hypothe-cary decree to enforce the payment of his debt. If anything, the CivilProcedure Code made it clear that a hypothecary action was, what italways was and is now (see section 2 of Ordinance No. 21 of 1927), anaction to enforce payment of a mortgage by a judicial sale of the mortgagedproperty. It is not as Mr. Weerasooria contended the combination of anaction on a contract with an action in tort. It is a right to vindicate ajus in rem arising by contract. The case of Fonseka v. Peiris (ubi supra)is an authority directly in point.
The cases of Ahamadu Lebbe Marikkar v. Luis 5 and Marimuttu v. deSoysa* may not be in point (see 2 S. C. C., page 20), on the question whetherthe mortgagee can sue a person in possession claiming adversely to themortgagor, but the case of Fonseka v. Peiris {supra) is directly applicablehere, and' the remarks of Pereira J. in Silva v. Fernando° cannot beconstrued as being an opinion adverse to Fonseka v. Peiris (supra) as theformer case referred to the rights of the possessor accruing to him throughthe mortgagor.
Ordinance No. 21 of 1927, in my opinion, created no change inthe Roman-Dutch law on this point. It repealed the procedure inChapter XLVI. indicated by me above and substituted a similar procedurewith slight differences. By section 16 for instance in spite of section 34 aclaim to all or any of the remedies of a mortgagee to enforce payment ofthe mortgage money may be joined to a claim in a hypothecary action ora separate action may be brought in respect of each remedy, subject to thedeprivation of costs.Butsection 6 (1) didnotrestrict thehypothecary
» 4 N. L. ft. 42.J3 S. C. C. 99.5 17 N.L. it. 15.
* 17 N. L. B. 56.48 S. C. C. 121.
AKBAR S.PJ.—Sabapathy v■ Yoosoof.
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action only to the defendants mentioned in the sub-section. The expres-sion “ necessary party ” was used to show the persons who (though “ notnecessary parties ” to such an action) were nevertheless bound by thedecree in such an action as if they had been parties to the action. Theirrights were further defined in sub-sections (3) and (4). The use of theexpression “ necessary party ” in section 6 (1) does not in my opinionpreclude the mortgagee from joining any other person whom a mortgageecould join before the Ordinance was passed so as to get an effectual decreein the type of cases defined in section 2 as hypothecary actions. Myopinion is strengthened by the words used in section 10 (2) (a). Underthat sub-section the effect of a sale carried out in pursuance of a hypothe-cary decree is to pass title to the purchaser freed from the interests,mortgages, and rights of every party to the action ; the sub-section doesnot use the expression “ necessary party ”. The fact that in section10 (2) (b) the draftsman mentions section 6 (2) and the terms in whichsection 7 has been drafted are further intrinsic corroboration of myinterpretation. This being so the answers to issues (2) and (3) are in thenegative.
The last questions to be decided are issues (4) and (5). By will datedDecember 12, 1872 (1D1) Idroos Lebbe Marikar bequeathed his propertiesto three sets of heirs, viz., his father, his wife, and his children, 5 sons and2 daughters subject to certain conditions. The heirs are to take theirshares according to the Muslim law, but they nor their issues or heirs areto sell, mortgage or alienate the properties but are to hold them in trustfor the grandchildren of his children and the grandchildren of his heirsand heiresses. Then the will goes on to say as follows s—“ Only that theymay receive the rents, income, and produce of the said lands, &c., withoutencumbering them in any way or the same may be liable to be seized,attached, &c., and out of such income, &c., after defraying expense fortheir subsistence, and maintenance of their families, the rest shall beplaced in a safe place by each of the party, and out of such surplus landsshould be purchased by them for the benefit and use of their children andgrandchildren as hereinbefore stated, &c. ” The next clause in the willprovided for a division of the properties after the death of the testator bya board of four arbitrators and the execution of deeds by the executor infavour of each heir containing the same conditions as in the will. Thedocument is a will and in interpreting this will one must give full effect tothe intention of the testator. Beyond the prohibition of alienation whichsometimes occurs in fidei commissa there are no words in the will to showthat the testator intended to create a fidei commissum. On the contrarythe word “ trust ” is used. The English law of trusts was part of the lawof Ceylon in. 1872 (see Ibrahim v. Oriental Banking Corporation1 andSuppramaniam t>. Erampakurukal'). If the will created a trust theintention was that each heir was to hold the property in trust for hisgrandchildren, but the trustee was allowed to take so much of the profits,rents, &c., of the property without mortgaging or alienating it as may benecessary for the maintenance of his family and the surplus was to beaccumulated to buy land “ for the benefit and use of their children andgrandchildren as hereinbefore stated ”. Each heir’s share was to be1 3 N. L. R. 148.2 23 N. L. R. 417.
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AKBAR SJP.J.—Sabapathy v. Yoosoof.
separated out and the conditions were to apply to each such share withreference to the particular heir to whom the share was allotted; thisseems to be the intention of the testator, when one reads the clausereferring to the division of the estate. This was done and by 1D2 datedFebruary 19, 1878, the executor conveyed the property in dispute to oneof the daughters Amsa Natchia subject to the conditions of the will.This deed recites the fact that the testator’s father predeceased thetestator. The second defendant, the mortgagor, is the daughter of AmsaNatchia and the respondents are the grandchildren of Amsa Natchia.If the will is regarded as creating a trust of each share, then the law isclear that Amsa Natchia was a trustee with a right to take part of therents and profits for her maintenance (see definition of “ trust ” in section3 of Ordinance No. 9 of 1917), and the beneficiaries were her grandchildren.The injunction to accumulate the surplus income and buy land wouldappear to be void for uncertainty for the reasons given in MussoorieBank Ltd. v. Raynor1. Anyhow we are not concerned here with theincome but with the corpus. But if the beneficiaries are Amsa Natchia’sgrandchildren, the trust in favour of the grandchildren would be voidas it offends the rule against perpetuities (see Underhill on Trusts7th ed., p. 74).
It was pressed on us by counsel for the respondents that the intentionof the testator was clearly to create a fidei commissum in favour of thegrandchildren of Amsa Natchia. As I have said there are no directwords referring to a fidei commissum but the prohibition against alienationis more appropriate to a fidei commissum than to a trust, and it is significantthat not only are the direct devisees prevented from alienating but alsotheir issues and heirs. As expressed by the Supreme Court of SouthAfrica in the case of Estate Kemp et al. v. McDonald’s Trustee3, it isthe clearly expressed intention which has to be given effect to. In thatcase the will was drawn up in words appropriate to a trust and in spite ofthe fact that the English law of trusts formed no portion of the legalsystem of South Africa the words referring to the trusts were interpretedaccording to the Roman-Dutch law principles governing fidei commissa,with the object of giving effect to the clear intention of the testator.Innes C.J. quoted with approval the words of Burge (vol. II., p. 166),“ Under the Civil Law and the law of Holland there are scarcely any dis-positions of property, which even the caprice of its owner could suggestwhich might not be affected by substitutions fidei comissa andconditions
In the same case Innes C.J. approved of the remarks of De Villiers C.J.in Strydom’s case (11 S. C., p. 430), that “a fidei commissum may be sopurely in the nature of what the English law terms a trust, as not tointerfere with the vesting of the fideicommissary legatee’s interest, evenbefore the arrival of the time for the payment of the legacy ”. TheChief Justice after reviewing the Roman-Dutch authorities came to theconclusion that “it was quite possible under the Roman-Dutch law, toseparate the legal ownership of property from the right to its beneficialenjoyment. And a testator could so formulate a fideicommissary bequestas to confer upon the remainderman vested rights transmissible to hisi (1882) 1 A. C. 321.1 11915) A. D. 491.
AKBAR S.P.J.—Sabapathy v. Yoosoof.
81
heirs. The exact nature of such rights it is not necessary, for the purposesof this case, accurately to define. But where the dominium of the subjectmatter of the bequest is in the fiduciary, it would seem to follow that they,could only be personal rights against the latter to enforce the discharge ofthe testamentary trust. But, even so, being vested rights they wouldpass to the heirs of the fideicommissary or could be claimed by his trusteein insolvency after his death. Before passing from this aspect of thematter, I would remark that where the mere legal ownership has been leftto a fiduciary, and the right to the beneficial enjoyment of the bequest isheld in abeyance by the interposition of a condition personal to the fidei-commissary, then upon the happening of the condition, the bequest ispurged, and the interest of the latter becomes as fully vested as if thefidei commissum had been originally ‘ pure ’. This is best illustrated byan example. A testator leaves his estate to A for the sole use and benefitof his son B, the assets to be converted into money and interest thereon to-be paid to B until he attains the age of 25, and then the capital to betransferred to him. That would be a fidei commissum purum; and Bwould have vested rights immediately on the death of the testator. Butsuppose the bequest had been to A for the use and benefit of B, if and incase the latter attained majority, in which case he to receive interest untilthe age of 25, and thereafter the capital; and in the event of B’s deathduring minority the capital to go to another son C. Such a fidei commissumwould not be ‘ pure but conditional ; and pending the majority of B,the right to use and enjoyment would be suspended ; for it would vestneither in B nor in C. The pure legal ownership would be in A, butthere might be expressions in the will which deprived him of any righteven to the interim profits. He would be a mere trustee for administra-tion. But upon B attaining majority, the fidei commissum would bepurged of its condition, his right to the enjoyment of the bequest wouldvest, and his legal position between the ages of 21 hnd 25 would beindistinguishable from that created by the first will ”.
Keeping these principles in mind let me examine the terms of the will.The testator when he gave his instructions to the notary could only haveexpressed his intention to create certain rights. The choice of the wordsused in the will is the notary’s and the notary must have used words togive expression to the testator’s intention. It is this intention which hasto be determined. To my mind the intention seems to be clear. Takingeach devisee separately the testator forbids him and his heirs and issuesfrom alienating the property and the property is to be held in trust forthe grandchildren of the devisee. The prohibition against alienationshows that the dominium vested first in the devisee and then in his issuesor heirs. The devisee and his heirs and issues are not only clothed withthe bare dominium for administrative purposes as in the South Africancase, but they are given certain beneficial interests in the property devised,namely, the right to take so much of the income as may be necessary forthe maintenance of their families. Then they are to accumulate thesurplus (as in the South African case) and to buy land “ for the benefit anduse of the children and grandchildren ” of the devisee. The word
82
AKBAR S.P.J.—Sabapathy v. Yoosoof.
*• children ” occurring here and the prohibition of the “ issues and heirs ”of the devisee earlier from alienating show that after the devisee’s death,the property was to pass to his heirs and issues subject to the samecondition as in the devisee’s case, namely, the appropriation of so much ofthe rents as may be necessary for their maintenance. The heirs andissues are to hold the property till all the grandchildren of the devisee canbe ascertained, when the property would vest in them.
This seems to me to be the clear intention of the testator and if effectcan be given to it by applying the principles of the law of fidei commissawhich is the law in Ceylon, I do not see any reason why a Court should notadopt that course in preference to the course of interpreting the will interms of the English law of trusts, which though it is a part of the law ofCeylon, will have the effect of defeating the testator’s intention. Whenthe South African Court interpreted words appropriate to a trust in a willaccording to the Roman-Dutch law principles for the purpose of givingeffect to the intention of the testator when the law of trusts formed nopart of the South African jurisprudence, I can see nothing wrong inadopting a similar course here where both laws are in force.
Effect can be given to the intention of the testator here, for the lawagainst perpetuities was not so drastic in the Roman-Dutch law as in theEnglish law. Something similar to the English law was introduced in1877 by Ordinance No. 11 of 1876, but in 1872 when the will was madeit was the Roman-Dutch law which was applicable. (See Lee’s Roman-Dutch law, pp. 323 and 324.) The Roman-Dutch law allowed a testator theright to tie up property for ever if he pleases or at any rate to the fourthgeneration. It will be noticed here that he only tied it up to the thirdgeneration. I cannot agree with Mr. Perera that the will created a trustand not a fidei commissum. In my opinion it created a fidei commissum.According to the South African case a fiduciary may only be given the legaltitle with no beneficial interest at all for administrative purposes. Herethe fiduciary is given certain benefits, and what is more he is requiredto do certain acts, and that may be the reason why the word “ trust ”was used. If the will created one fidei commissum, there is an indicationwhen the title is to vest in the fideicommissaries, i.e., when they can allbe ascertained. This date will be the death of the last of the children ofthe devisee, and until then I take it the jus accrescendi will apply amongthe children of the devisee.
But as I have already stated the fidei commissa were all separate owing tothe testator’s instructions to divide his estate among the heirs. The deedID2 mentions the fact that the commission to divide the property wasappointed by Order of Court on June 14, 1872. When the will has beeninterpreted in this sense by the heirs and given effect to by order of Court,this must be accepted as the correct solution by family arrangement andupheld. (See Vansanden v. Mack ) I have not therefore tried to interpretthe will as creating one fidei commissum. As regards issues (4) and (5) allthe grandchildren of Amsa Natchia including the respondents are the fidei-commissaries and will be ultimately entitled to the property. It appears
11 N. L. R. 311.
KOCH J.—Sabapathy v. Yoosoof.
83
from the evidence recorded that Amsa Natchia died about 16 or 17 yearsago and that she had two daughters and a son. The second defendant isone of the daughters and had no more than a bare life-interest in theproperty with the liberty of taking only so much of the income as may benecessary for the maintenance of her family and by mortgaging theproperty to the plaintiff she violated the condition, that she was not todo so, by the will. This violation of the condition would in my opinionhave the effect of vesting the title in the fidei commissaries or so muchof them as can be ascertained at the time of the violation of the condition.(See Lee’s Roman-Dutch Law, 1st ed., p. 315 ; Voet XXXVI. 1, 27.) Theshares of these grandchildren of Amsa Natchia who can be then ascer-tained will be reduced if other grandchildren came, into being after suchdate. Whether all the grandchildren can be ascertained now, cannot bedecided as there is no evidence on the point. A complete answer cannottherefore be given to issue (4), but an answer can be given to issue (5).As the mortgage by the second defendant was in direct violation of theprohibition against alienation in the will, the second defendant had notitle to mortgage to the plaintiff and therefore plaintiff cannot ask for ahypothecary decree in this case. It is not as if the prohibition againstalienation was a nude or bare precept of the testator which has no bindingforce. The persons in whose favour or for whose advantage the prohi-bition was imposed are clearly designated, namely, the grandchildren ofAmsa Natchia.
The appeal will therefore be dismissed with costs.
Koch J.—
The facts are fully set out in my brother’s judgment. The two pointsthat arise in this appeal are (1) whether the tenth to sixteenth defendants(respondents) have been rightly joined in this action, and if so, (2) whetherthe terms of the will No. 7,150 of December 12, 1872, executed by onelsboe Lebbe Aydroos Lebbe Marikar created a fidei commissum where-under legal rights have since passed to the tenth to sixteenth defendants(respondents).
I shall deal with the first point first. A decision on this issue willnecessarily have to be based on the Roman-Dutch law, except in so far asit has been altered or modified by our new 'Mortgage Ordinance, No. 21Df 1927.
For the purposes of this decision we have to accept as a fact what hasbeen established at the trial, namely, that these defendants are in posses-sion of the mortgaged property independent of a derivative title fromthe mortgagors. It has been argued with much force by appellant’scounsel that it is not necessary that the party in possession mustnecessarily be exercising that possession under a title derived from themortgagors.
Voet, in Book XX. 1, 1, defines what a hypothec is. He says it is acontract whereby a jus in re is created in security of the debt due to thecreditor but in which the possession is not transferred to him.
34
KOCH J.—Saba.pa.thy v. Yoosoaf.
Jn Book XX. 4, 1, he refers to the precise nature of the action whichit gives rise to. He calls it the actio hypothecaria alias quasi serviana.He describes it as an'action in rem and defines the purpose, which is theright the creditor has “to follow up the hypothec bound to him whensatisfaction is not made by the debtor or by those who are in possessionof the subject mortgaged”. He does not say by those who are in posses-sion under the debtor or use words to that effect.
In Book XX. 4, 1, he says that this action may be prosecuted againstany third party in possession whether he be a bona fide or a mala fidepossessor and gives his reason that the right of hypothec is not annexed tothe person but to the thing. He also says that the debtor cannot deprivethe creditor of this right by gift, bequest, sale, or barter.
Mr.'Weerasooria laid great stress on these last words and strenuouslyargued that the right to follow up was confined to the exercise of it asagainst persons only who were found to be in possession under a titlederived from the mortgagor. This is a plausible argument but, in myopinion, unsound, for a careful study of the sections that follow will beconvincing enough to indicate that the party in possession contemplatedis any party whatsoever whether under a title derivative or independentof the mortgagor or on no title whatsoever.
Further down in this section (viz., 2), Voet observes that a party who hassuccessfully litigated with the debtor in respect of the “ res ” hypothecatednay be joined, provided that litigation took place subsequent to the dateof the hypothec, and this whether this litigation was known or not to thecreditor. Now, for the third party referred to to succeed in such litigationit must be appreciated that the title of the third party was adverse to thatof the debtor.
Section 5 throws a deal of light on the point. Voet there refers to acession of action in favour of the party in possession who pays the debt ofthe debtor. He makes it abundantly clear that the party paying may be“ any possessor whatever ” and these words to attract attention are initalics. He then proceeds to justify why it should be any possessorwhatever, for, says he, “ if you ask with Sandius how a person who ispossessing without any right can presume to ask the benefit of cessionwhich is a thing of right, I reply by the same titles as that by which a malafide possessor of a thing when the owner vindicates its possession canrecover from its true owner any necessary expenditure made by him onit during his possession ”. He further seeks to strengthen this justifica-tion by saying that. “ although an unjust possessor acts with turpitude intaking possession without title or right and with the consciousness that it isanother’s property, there is not any turpitude in paying to the creditor thedebt for which the property is bound ”. This supports my previousfconclusion that the party in possession contemplated may be therewithout any title whatsoever.
This being the Roman-Dutch law, I should wish, before I deal with thechanges, if any, that have been introduced by our new Mortgage Ordinance,No. 21 of 1927, to make a passing remark or two as to the effect the CivilProcedure Code had on the situation.
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KOCH J.—Sabapathy v. Yoosoof.
Under section 34 of the Civil Procedure Code the personal and hypothe-cary claims had to be joined in one action or else the remedy omittedcould not afterwards be sued for. Chapter XLVI. also made it necessarythat the mortgagee entitled to bring the action should, on the issue ofsummons against the debtor-defendant, issue notice in writing to allgrantees, mortgagees, lessees, and other incumbrancers whose deeds weresubsequent in date to that of the bond sued on. This chapter furtherunder certain conditions provided for the judgment being final. Besideslaying down this procedure it did not in any way alter the Roman-Dutchlaw as it stood in regard to other parties in possession.
We now come to the Mortgage Ordinance, No. 21 of 1927. By section16 (1) separate actions were permitted to be brought in respect of thepersonal and hypothecary claims, and in this respect section 34 of theCivil Procedure Code, so far as it applied to mortgages, was affected.Sections 640 to 649 of the Civil Procedure Code were repealed and pro-vision was made in the new Ordinance to regulate the bringing of hypothe-cary actions. The all important section is No. 6, a section which by nomeans is easy to construe.
Sub-section (1) lays down that every person who has any mortgage on orinterest in the mortgage property to which the mortgage in suit haspriority, is a necessary party. Then follows a proviso that narrows thisgroup by reason of the persons forming that group not having dulyregistered their documents of title. This proviso, carefully read inconjunction with sub-section (1), may rightly impute to the words “ interestin ” something more than the mere chance possession that a party mayhappen to have of the property mortgaged at the date of the hypothecaryaction. Applying therefore the entire section to the case of a party inpossession under some title actual or imaginary underived from themortgagor, I am of opinion that his case would fall outside.
What then would be his position? My opinion is that section 6 (1)was not meant to be exhaustive. It only concerned itself with a type ofparties in possession and called them necessary parties. It left open theposition of parties that did not conform to that type. When the case ofsuch a party came to be considered, the common law would have to beinvoked as this Ordinance was only intended “ to amend and consolidatecertain laws relating to mortgages ”. If under that law (common law)such a party was necessary, he had to be joined, and if joined only, wouldhe be bound by the hypothecary decree. It is my view that such a party,as are the tenth to sixteenth defendants in this case, has to be joined inorder to obtain an effectual decree against him, and I have come to thisconclusion without the aid of the decision of Fonseka v. Peiris *, whichI am glad to find supports my opinion.
The next point that arises is whether the terms and conditions of thelast will and testament of Isboe Lebbe Aydroos Lebbe Marikar created afidei commissum, and if so, whether legal rights thereunder have passedto the tenth to sixteenth defendants so as to prevent a decree beingentered in favour of the plaintiff declaring that the premises mortgagedto the plaintiff are bound and executable under that decree against thesedefendants.
1 7 N. L. R. 262.
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KOCH J.—Rabapathy v. Yoosoof.
Now, the date of this will is December 12, 1872, prior to the year whenour Ordinance No. 11 of 1876 dealing with the law regulating the entailand settlement of immovable property came into operation. It would besufficient- therefore to consider whether under the Roman-Dutch law thewill was such that under its terms the intention of the testator wasto create a fidei commissum and whether under that law a fidei commissumhad been created. It would be right to give effect to the intention of thetestator, as the document we are asked to construe is a will and not a deed.
We listened with great interest to the learned arguments of counselfor the appellant on the law of trusts, so far as these were relevant to theconsideration of this point, but it is not necessary for me to deal with theniceties of those arguments—particularly as they have been given specificconsideration by my brother in his judgment—if in my opinion there issufficient justification for holding that the language and terms of the willin question did either expressly or impliedly under the Roman-Dutch lawcreate a fidei commissum.
This principle has been enunciated in Vansanden v. Mack Bonser C.J.there stated that no special words are necessary to create a fidei commissum,but effect is given to it if it can be collected from any expression in the,instrument that it was the testator’s intention to create. General rules,he observed, for the interpretation of wills are often unsafe guides. Theonly true criterion is the intention of the testator.
Wendt J. in lbanu Agen v. Abe-ysekara said, “ In construing a willthe paramount- question is what was the intention of the testator. Theintention may be gathered by necessary implication from the language ofthe will ”.
Lascelles C.J. in Seneviratne v. Candappapulle 3 laid down that “ it waswell settled that the general rules for the interpretation of wills are unsafeguides and the only true criterion is the intention of the testator ”.
Now, under the terms of this will the testator appointed as his devisees(1) his wife Assena Natchia, (2) his children Noordeen, Mohammadoe,Mohideen, Slema Lebbe, Abdul Rhyiman, Mohamipadoe Usboo, AmsaNatchia, and Savia Umma, and (3) his father Uduma Lebbe Usboo Lebbe.It will be seen that this group comes under the category of three gene-rations. He next provides that these were to take respectively accordingto shares that they would be entitled to according to the religion of theSafie Sect, to which he belonged.
He thereafter restricted their rights by laying down that neither theynor their issues nor heirs could sell, mortgage, or alienate any of thelands, &c.v belonging to him at the time or which he may later acquire,but that such lands shall be held in trust for the grandchildren of hischildren and the grandchildren of his heirs and heiresses. This wouldmean that the beneficiaries would comprise members of the third gene-ration, members of the first generation, and members of the secondgeneration, respectively.
He next proceeds to state what he means by the expression “ shallbe held in trust ”, viz., that the devisees or their issues or heirs should
1 1 N. L. R. 311.2 6 N. L. R. 344.
2 16 N. L. R. 150.
KOCH J.—Sabapathy v. Yoosoof.
87
only receive the rents, income, and produce of the lands, &c., withoutin any way encumbering them or making them liable to be attached fortheir private debts, and that out of their shares of the collections afterdeducting sufficient for their subsistence and maintenance and that oftheir families the balance was to be funded and when opportunitiesarose other lands were to be purchased with these funds for the benefit,and use of “ their children and grandchildren
Now, here appears to creep in a slight error in describing the partiesto be benefited thereby. Had the word “ children ” been left out andthis group confined to the word “ grandchildren ”, consistency wouldhave prevailed, but I do not attach importance to this slight mis-description as by the additional words “ as hereinbefore stated ” thetestator meant to refer to the group previously referred to, which wasdescribed as “ grandchildren of my children and grandchildren of myheirs and heiresses
The will further provided that after the death of the testator the heirsand heiresses, whom I have previously referred to as devisees, shouldwith the assistance of the executor and three competent persons dividethe movable and immovable properties of the estate, and that the deviseesshould be allotted separate and distinct properties according to theirshares under the Safie law as the result of that division.. I think it canbe safely inferred that it was the intention of the testator that when thiswas done, the directions he had set out were to apply to each of theproperties so dealt with in the division with reference to the particularheir or heiress to whom that property was allotted. This division didduly take place and the executor by deed No. 241 of February 19, 1878,conveyed the premises mortgaged to Amsa Natchia, a daughter of thetestator.
It remains therefore to consider whether the mortgaged premiseswere affected under the terms of the will by a fidei commissum as the resultof which legal rights passed to the tenth to sixteenth defendants.
It will be noted that there do not appear to be express words defining thedate or the event which would determine the tenure of the deviseesor their issues or heirs, nor are there to be found words which expresslyvest the property at some time or other in “ the grandchildren of hischildren and the grandchildren of his heirs and heiresses On theother hand there are words that the lands shall be “ held in trust ” forthese grandchildren by the devisees and their issues and heirs. It isthis that has created the difficulty.
It is argued by Mr. Perera that the effect of these later words takenwith the context is to create a trust whereby the legal title created inthe devisees and their issues or heirs has not been arranged to pass toothers. I do not attach the special significance to the words “ held intrust ” which Mr. Perera so ably argued we should do. At the time thiswill was executed (1872) very little of an English trust, so far as it wasintended to affect the devolution of rights in lands of inhabitants of thisIsland, was known. What was very widely, on -the other hand, knownto them and often resorted to was “ fidei commissa ”, and. when one ofthem intending to create a fidei commissum gave instructions to a notary,
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KOCH J.—Sab apathy v. Yoosoof.
he would express such intention in words which contained mere condi-tions and terms to which he intended the fidei commissum to be subjectand would leave it to the notary to employ the necessary language.The notary without a keen appreciation of the incidents of an Englishtrust would, when he did employ the word “ trust, ” use it rather laxlyto denote the qualified rights of a fiduciary.
We find Withers J. in Tillekeratne v. Abeyesekere ' who had considerableexperience as a practising lawyer before that date, using the word“ trust ” to mean a fiduciary’s interest.
In 1902 in the case of Jobsz v. Jobsz ‘ the terms of a will were con-sidered with a view to ascertaining whether four different fidei commissawere created or one. The will itself, after seating that the half share ofa property should be separated from the rest and divided into fourequal portions among four children, went on to say that these fourportions should be held by them “ in trust ” for their lawful childrenrespectively and after their respective deaths should devolve on theirlawful descendants. It was held that a fidei commissum was created,and rightly too. I am aware that there are special words of devolutionin this case to support the finding, but I refer to it to point out that thewords “ in trust ” were viewed by this Court as referring to a definitionif the fiduciary rights. Grenier J., one of the Judges who himself hadlong practised at the bar, joined Middleton J. in holding that therewere created not four fidei commissa “ but only one trust ”, meaningone fidei commissum.
It will therefore be seen that in years prior to our Trusts Ordinance;No. 9 of 1917, the words “ trust ” and “ fidei commissum ” were treatedas interchangeable terms.
In this state of things what I do consider as decisive of the point isthe express forbidding by the testator that his heirs and heiresses (de-visees) and their issues and heirs should sell, mortgage or alienate any ofhis lands, and this prohibition against alienation in conjunction with thesurrounding injunctions would appear to vest the bare dominium in thedevisees and their issues and heirs for merely administrative purposes,as pointed out in the South African case of Estate Kemp et al. v. MeDonald’s Trustees.*
We have therefore, to my mind, the dear intention on the part of thetestator—although that intention may not have been in expresswords—to create a fidei commissum in favour of the grandchildren ofAmsa Natchia, so far as this property is concerned, and these grand-children being the members of the third generation in relation to thetestator rule against perpetuities will not apply as under the Roman-Dutch law restrictions against alienations can extend up to the fourthgeneration.
The mortgaged property cannot therefore be deemed to be boundand executable against these defendants, and the plaintiff’s action mustbe accordingly dismissed so far as these defendants are concerned.
It will follow that this appeal should be dismissed with costs.
Appeal dismissed.
» (1894) 3 S. C. R. 70. at p. 80.2 6 N. L. li. 163.
* (1915) A. C., South African Laic Reps. 491.