SALONCHI et al. v. JAYATU

067-NLR-NLR-V-27-SALONCHI-et-al.-v.-JAYATU.pdf


( 366 )
1926.
Present: Branch C.J., Dalton J., and Maartensz A.-J.
SALONCHI et ah v. JAYATU.
155—D. C. Negombo, 16,544.Fidei commissnm—Deed of gift—Descending heirs and authorizedpersons—Designation of persons to be benefited—Ordinance No. 11of 1876, s. 3.
Where a deed of gift was expressed in the following terms“ This land is hereby granted as a gift to, and is put in possessionof, Setu, a daughter of mine …. Therefore the aforesaidgifted land is hereby put in possession and proprietorship of,and is given over with power only to be possessed undisturbed,subject to the regulations of Government, without selling,mortgaging, or otherwise alienating, or leasing the same for aperiod of exceeding five years by the said Setu and all herdescending heirs and authorized persons.”
Held, that the deed did not create a valid fidei commissnm asthere was no clear designation of the persons in whose favourthe prohibition against alienation was made.
'lASE reserved for argument before a Bench of three Judges.The land in dispute was gifted by the owner Simia to hisdaughter Setu by deed No. 2,787 dated August 7,1882, the materialportions of which are given in the headnote. Setu. by deed
1 (2575) 2?om. (1872-1876) 130. 2 {1005) Modders Kandyan Law, p. 603.
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No. 19.668 dated December 23, 1911, leased the land to the firstdefendant and one Udias Appu for a period of twenty-five years.In 1919 on a writ issued against .Setu the land was sold andpurchased by the first defendant and Udias Appu.
The plaintiffs, who are the children and grandchildren of Setu,alleged that the deed of gift No. 2,787 created a fidei commissumand that the first defendant’s right to possession under the leaseand by virtue of the sale in execution terminated on the death ofSetu. The learned District Judge held that the deed created avalid fidei commissum.
The defendant appealed.
Garvin, for defendant, appellant.—The first portion of the deedby its words created an absolute gift. If it was only Setu and herdescending heirs, then they are named, described, or designatedas required by section 3 of Ordinance No. 11 of 1876, and the deedwill be a vaild fidei commissum. To Setu, her descending heirs andauthorized persons enlarge the class, and there is no definitedesignation of the persons to benefit. Thus in Tina v. Sadiris 1 Aand the heirs and administrators, it was held that a grant to aman and his heirs was a grant to the man ; Hormusjee v. Cassim-=“ assigns." taken to be anybody in the world. In the case ofWijetunga v. Wijeiunga3 where after A!s death, A’s heirs, executors,and administrators were to benefit, the deed was held to createvalid fidei commissum. This case was considered in Silva et al. v.Silva et al* and the Court was unwilling to construe in favour ofa fidei commissum.
The later judgments have not considered the effect of section 3of Ordinance No. 11 of 1876.5 If there is doubt the constructionis in favour of free inheritance. Counsel also cited Burges ColonialJjdir. Vol. II.. p. 113 ; Van der Linden's Trans, p. 133.
I)e Zoysa, for plaintiffs, respondent.—Pinnwardene v. Fernando 6is the case nearest this. Children, grandchildren, their heirs andrepresentatives descending from them were the words, andrepresentatives were held to mean heirs repeated again. Thelanguage need not be considered strictly so long as thereis sufficient language in the document to show the intentionof the donor. The trend of the recent decisions is to giveeffect to the intention of the donor, if that can be gathered.Thus in Dassanayake v. Tillekeratne 7 bequest to'children, their heirsand assigns was held to be a fidei commissum in favour of the
1 (1SS5) 7 S. C. C. 135.*(1914) IS X. L. R. 174.
4 (ISOS) 2 N. L. R. 190.3Van Leeuwen It. D. L. 376.
(1912) 15 A. L. R. 493.•(1919) 21 X. L. R. 65.
' (1917) 20 X. L. It. S9.
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Salonchi v.Jai/atu
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Salonchi v.
Jayatu.
surviving children of testator. It is enough if the first class ofdonees is sufficiently designated even if the second is not ascertain-able, vide The Government Agent, Central Province v. Silva.1
Counsel cited Coudert v. Don-Elias,2 Weerasekere v. Carlina?
Garvin, in reply.—In Government Agent, Central Province v. Silva(supra) the fidei commissum is an alternate fidei- commission.Intention is immaterial if the language in which it is expressed isnot clear. The deed must be looked at from the point of view ofa possible purchaser who may pay a large price.
Counsel also cited MacGregor's Voetp. 11.
March 10, 1926. Branch C.J.—
This eaise was reserved under.section 41 of the Courts Ordinance.1889, for argument before three Judges. The learned DistrictJudge held that the deed Pi hereinafter referred to. created avalid fidei commissum in favour of the heirs of Setu, and the appealis from that decision. Simia, the grantor, his wifePulingi. theirdaughter Setu, and her husband Kckula are all dead. The plaintiffs-respondents are the children and grandchildren of Setu. If theirclaim that Pi creates a valid fidei commissum fails then it is agreedthat they are only entitled to an undivided moiety of the landin dispute, and to possession of that moiety on the expiration ofthe lease, being document No. 19,658 dated December 23. 1911,Dl, given by Setu and her husband. The defendant -appellantwould in the circumstances be entitled to the other undividedmoiety and to possession of the whole land under the lease referredto, subject always to the rights of Jayasinghe Aratchigc UdiasAppuhamy, who is not a party to this appeal, but is a person namedin the said lease and in Fiscal's Transfer No. 7,782 of March 24.1919.
The deed PI was executed on August 7,1882. It is in Sinhalese,and the material parts are as follows :—
fi …. this land …. is hereby granted as agift to, and is put in possession of. Horatalpedigc Setu ofAssanawatta, a daughter of mine, owing to the affection,love, and regard that I bear towards her. and owing todiverse other duties which draw my heart unto her.Then I, Singhalapedige Kckula, the husband of tlic saidSetu, accept this gift, with thanks, by signing this.Therefore the aforesaid gifted land is hereby put inpossession and proprietorship of, and is given over withpower only to be possessed undisturbed, subject to thoregulations of Government, without selling, mortgaging.
– or otherwise alienating or leasing the same for a period of
1 (1922) 24 N. L. B. 02.2 (1914) 17 -V. L. H. m.
8 (1912) ION. L. B. 1.
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exceeding five years by the said_Setu and all her descendingheirs and authorized persons. Further I, the grantor,bind myself on my own behalf and on behalf of my heirsand others to the effect that it shall not be possible eitherfor me or for anybody whomsoever, such as heirs descendingfrom me or authorized persons to assert any title orraise any dispute, beyond possessing (the property)during the lives of myself, the grantor,, and of (my)wife.”, ,
In the lower Court the word “ balakara ” now translated as“ authorized persons ” was taken to mean representatives.“ Authorized persons ” is now accepted as the correct translation,and the argument on appeal has been confined to the questionwhether the words “ and authorized persons ” after the words“ alienating or leasing the same for a period of exceeding five yearsby the said Setu and all her descending heirs ” bring the casewithin the meaning of the latter part of section 3 of OrdinanceNo. 11 of 1876. In other words, whether the prohibition againstalienation is null and void on the ground that it does not name,describe, or designate the person or persons in whose favour or forwhose benefit the prohibition is provided. Section 3 is as follows:—
“ Any such prohibition, restriction, or condition againstalienation as aforesaid shall be null and void so far asit prohibits or restricts alienation, for a longer periodthan that limited in the preceding section. • But wherethe will, deed, or instrument in which any prohibition,restriction, or condition against alienation is containeddoes not name, describe, or designate the person or personsin whose favour or for whose benefit such prohibition,restriction, or condition is provided, such prohibition,restriction, or condition shall be absolutely null andvoid.”
The preceding section runs as follows :—
“No prohibition, restriction, or condition against the alienationof any immovable property declared by or contained inany will, deed, or other instrument, which shall beexecuted after the proclamation of this Ordinance, shallbe effectual to prevent the alienation of such propertyfor a longer period than the lives of persons who are inexistence or in ventre, sa mere at the time when such will,deed, or instrument is executed, and are named, described,or designated in such will, deed, or instrument, and thelife of the survivor of such persons.”
Counsel for the appellant argues that while “ descending heirs ”only would be reasonably clear and would, he concedes, establish avalid fidei commissum, the addition of the words “ and authorized
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Salonchi v.Jayatu
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Satonchi v.Jayatu
persons ” renders it impossible to say that there has been a clearindication of the persons in whose favour the prohibition is providedand that as free inheritance is favoured, and there is a presumptionagainst restriction and no speculation as to the meaning of“ authorized persons ” is permissible, no valid fidei commissumcan be said to be created. Counsel for the respondent arguesthat the strictness of the old rule has gradually abated and thatthe local cases subsequent to 1912 are, generally speaking, muchmore liberal in their interpretation of the description or designationsufficient to satisfy the requirements of section 3 of OrdinanceNo. 11 of 1876. He suggests that “authorized persons ” means“ those who get authority as descending heirs ” or “ representativesof descending heirs ” and that failing the adoption of one or otherof those meanings the words should be treated as meaningless oras synonymous with “ descending heirs.” The intention to createa fidei commissum is, he contends, clear, and that being so theparticularity of the words “ descending heirs ” as distinct from“ collateral heirs ” should not be destroyed by the addition of thewords “ and authorized persons.”
A number of Ceylon cases were cited on either side, but theyall proceed on different wording, and I derive little assistancefrom them in the application of the principles involved. In Finn-wardens v. Fernando (supra), for instance, which Counsel for therespondents thinks is nearest to the present case, the constructionof a will was involved and the decision proceeded it would appearvery largely on the principle that a very benevolent view indeed insupport of the supposed intention of the testator is permissiblewhen the creation of a fidei commissum is in question. My viewwould be that even if fidei commissa created by acts inter vivosare more strictly construed than fidei commissa created by testament(see Holl. Cons., Vol., III., Pt. II., No. 3), yet this does not permita Court to relax its vigilance in the construction of words introducinga fidei commissum in wills. If those words admit of doubt, they*should be construed as excluding rather than including the fideicommissum. : In other respects, however, Pinnwardene v. Fernando(supra) is distinguishable, and no useful purpose would, I think, beserved by examining the words there used.
As regards South African cases, see Cruse v. Executors ofPretorius1where De Yilliers C.J. said: “ Where it is a matter of doubtwhether a fidei commissum has been imposed or not, that con-struction should rather be adopted, which will give the legatee orheir the property unburdened.” Cloete J., in Du Plessis v.Smaliberger2 said: “ We are bound to give the most narrow andstrict interpretation to words introducing such fidei commissa.That these by our laws are held to be odious ; and whereverthe words admit of the slightest doubt they are to be construed1 {1879) Buck, at p. 124.2 3 Searle 385.
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pro herede, so as to leave him the free and unfettered possession ofthe inheritance he acquires from his parents.” In Drew v. Drew'sExecutors1 the testator bequeathed the property to the children” entailed and burdened with fidei commissum " and it was heldthat as no person or class was sufficiently pointed out by the willin whose favour the fidei commissum was created, the children wereentitled to their inheritance absolutely and unencumbered. InVan dor Linden Institutes of Holland at page 63, the followingocours:—
“ It is immaterial in what terms the fidei commissum is created,provided that the person to whom the property is to goover is clearly pointed out. A simple restraint onalienation without declaring in whose favour it is madehas no obligatory force ; but a restraint, for example,on the alienation of the property out of the family isvalid.”
Burge, Vol. III., page 113, puts the position thus :
“ A prohibition against alienation will not create & fidei commissumbut is perfectly nugatory, unless the persons are designatedin favour of whom the testator declares the prohibition.(Sande de Prohib.. Alien. 3 (i). 3 and 4; Van LeeuwenGens For. 3. 7. 10; Voet lib. 36 tit. 1 n. 27. It is notsufficient that he names particular persons to whomhe prohibits the alienation to be made unless he alsodesignates some person to whom the estate shall pass inthe event of its being alienated.”
Doubt must not in a case like the present be confused withdifficulty, but I find it impossible to say with any certainty whatthe donor meant when in the deed before us he used the words“ descending heirs and authorized persons.” It may be that intelling the notary of his wishes he mentioned Setu and her descend-ing heirs only, and that the notary thought “ balakara,” a usefuladdition, without having any very clear idea himself as to whatthe word would mean. The difficulties of the case are not decreasedby the second use of the words “ and authorized persons.”
The prohibition in PI is, in my view, null and void for want of aproper description or designation of the persons in whose favouror for whose benefit the prohibition is provided.
There are certain other aspects of the case which have not beenargued and with which it is unnecessary to deal in view of theconclusion above arrived at. I desire to guard myself too by-saying that I am not expressing any opinion as to whether PIwould have created a valid fidei commissum it the words “ andauthorized persons ” had not appeared therein and, if necessary,I should have wanted to hear argument as to whether in other
» (1876) Buch. 203.
1926.
Braxch C. J.
Satonchi v.J ayatu
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Salonchi v.Jayatn
respects a valid fidei commissum can be said to have been created.The safest and best course is to make no attempt to declare the law -;at large, and to abstain from comment on cases which are usefulonly as regards the application of a principle to their particularfacts. Any attempt to deal otherwise with this case would involvea treatise being written on a subject, with respect to which OrdinanceNo. 11 of 1876 appears to have raised more doubts in certaindirections than it has solved, and such a treatise would be entirelywithout authority, as unnecessary for the purposes of this case
Apparently the primary object of sections 2 and 3 of OrdinanceNo. 11 of 1876 was to prevent property being rendered inalienableby will or deed for the four generations allowed by the Roman-Dutch law. The restrictions on alienation so allowed were foundto be prejudicial both tb individuals and the community, and thelaw in Ceylon was brought in this respect into conformity withEnglish ideas on -the subject. The legislation of 1876 does notend there, however, and I reserve for discussion in a proper casethe question whether the latter part of section 3 of the Ordinanceis merely declaratory of existing Roman-Dutch law or formulates asomewhat different rule. See Hormusjee v. Cassim (supra) andcompare with it such cases as Silva v. Silva (supra) and Naina Lebbev. Marikkar.1 It is unnecessary to enter into this discussion hereas I have no doubt that the prohibition now in question is nulland void.
The appeal should, I think, be allowed, and the resulting ordermade in the terms set out at the commencement of this judgment.The appellant to have the costs of this appeal, and his costs in theCourt below.
Dalton J.—
This matter was reserved for argument before a Bench of threeJudges. The issue in the action out of which this appeal ariseswas in the following terms—
“ Does deed No, 2,787 of August 7, 1882, create a valid fideicommissum in favour of the heirs of Setu ? ”
By that deed (the material parts of which I set out later)Horatalpedige Simia, sqbject to certain conditions, purportedto donate a property named Kahatagahawatta 'to his daughterSetu. Setu was married to her husband Kekula in communityof property, and in 1911 she, by deed No. 19,658, leased to th.6defendant the land in dispute for a period of twenty-five years.Further, in 1919, the defendant obtained a transfer of a moiety ofthe property from the Fiscal, it having been sold by the latterunder a writ of execution in an action against Setu, and purchasedby defendant and another. Setu, it is agreed, died about 1923,
(2021) 22 N.L. B. 205.
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.leaving eight children. These children or their heirs are theplaintiffs in the action. It is to be gathered from what was statedin the District Court that Kekula is dead, but when he died does notappear. On the appeal it was agreed by Counsel that the answerto the issue I have set out would decide the case. The learnedtrial Judge answered it in the affirmative, and it is from thatdecision that defendant appeals.
The deed in question, although drawn by a notary, is a peculiarone. It is in Sinhalese, and there has been considerable difficultyin obtaining a translation, which both sides will agree is correct,but after at least five translations had been made the matterwas finally settled. The material parts of the finally acceptedtranslation are as I set them out.
After detailing the boundaries and description of the landthe deed states—
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Dalton J.
Salonohi v.Jayatu
“ This land …. is hereby granted as a gift to, and isput in possession of, Horatalpedige Setu of Assanawatta,a daughter of mine, owing to the affection, love, andregard that I bear towards her, and owing to diverseother duties which draw my heart unto her. Then I,Sinhalapedige Kekula, the husband of' the said Setu,accept this gift, with thanks, by signing this.”
The deed continues—
” Therefore, the aforesaid gifted land is hereby put in possessionand proprietorship of, and is given over with poweronly to be possessed undisturbed, subject to the regulationsof Government, without selling, mortgaging, or otherwisealienating or leasing the same for a period of exceedingfive years by the said Setu, and all her descending heirsand authorized persons.”
The grantor retains on behalf of himself and his wife a lifeinterest in the property, but binds himself—
On my own behalf and on behalf of my heirs and others to theeffect that it shall not be possible either for me' or foranybody whomsoever, such as heirs descending from meor authorized persons to assert any title or raise anydispute.”
In the course of the arguments addressed to this Court numerouslocal decisions have been referred to, but in none of them havethe terms made use of here been used. It was hardly to be expected.There is no dispute as to the law which is to be applied, but there issome suggestion on behalf of the respondents that in the laterlocal decisions the Courts have tended towards what I. think iscalled a more benevolent or liberal view than was previouslyadopted against the heir, if it can possibly be supported by any
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reference t<^ the presumed intention of the donor or testator.This argument was not confined to cases arising out of wills, butit would seem to be an attempt to qualify the rule of law thatwhere there is any doubt as to the intention of the testator theconstruction must be adopted, which will give the property to theheir, legatee, or donee, as the case may be, free from, fidei commissum.
In this case the document is a deed. As in Roman-Dutch lawfidei commissa were, created by will being usually termed testa-mentary trusts, hence the numerous references in the authoritiesto the intention of the testator and the application of the rule,
“ in testaments the wish of the testator is the governing factor/'(GaiD, cited in Estate Kemp and others v. McDonald's Trustee.1)But whether they could be created by donation inter vivos ismost doubtful. (Burge, Vol. IV., Pi. I., p. 763.) However thatmay be, there is no doubt as to the law in Ceylon on the pointto-day. In Saibo and others v. The Oriental Bank Corporation2Berwick D. J. says, in the course of the judgment which was affirmedby the Full Bench—
“ It cannot be denied that in the ordinary course of developmentof our Colonial law to overtake the circumstances ofmodem life, what Warnkoenig calls the ‘ amplificationof these rationae vitae/ express trusts inter vivos are nowas much part of the legal system of Ceylon as of England,though unknown in the practice of the old Civillaw ….”
Further development, it is of interest to note, has taken placein South Africa, as is shown by the learned judgments of the Courtof Appeal in Estate Kemp and others v. McDonald's Trustee (supra)to which I have already referred, although it has been enacted inCeylon (Trusts Ordinance, 1917) that a trust under that Ordinancedoes not include a fidei commissum.
In interpreting this deed, therefore, it seems to me that especiallyin view of that development of the law, one must bear in mindthat any special rules of construction that are applicable to willsalone cannot be brought in ; indeed, it might appear questionableif there is any room for the application of such rules as somethingadditional to the rules in force for determining the existence of afidei commissum as laid down by Voet and other Roman-Dutchauthorities, although it is pointed out in Lee's Introduction toRoman Dutch Law, p. 341, citing Hollandsche Consultation,Vol. III., Ft. II., No. 3, that according to the law in Hollandfidei commissa created by act inter vivos were even more strictlyconstrued than fidei commissa created by testament.- On thatpoint alone there is ground for the argument that some of thelocal cases cited can be differentiated. There is further also thedifference in the words used in all the cases cited.
1 (1915) A. D. at p. 500.1 3 N.L. R. 148.
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This case, as it has been presented to this Court, depends on theapplication oi the rule that “ -where there is a prohibition -againstalienation a person or persons must be designated as those whoshall take where the prohibition is wrongfully disregarded and theproperty is sought to be alienated in opposition to the terms ofsuch prohibition.” In the first part of the deed it is set out thatthe gift is to Setu aimpliciter, and it is accepted on her behalf byher husband, but I think the reasonable construction of the nextsentence is that the land was put in possession and proprietorship of,and was given over with power only to be possessed by Setu andall her descending heirs and authorized persons, subject to therestriction on alienation. In other words it does not seem possibleto me to read the words as purporting to make a donation to Setualone, to be possessed by her undisturbed, and then adding arestriction against alienation by others.
On that construction, and taking the words as used in the deed,can it be said that the person or persons are designated as thosewho shall take if the prohibition is disregarded ?
“ The designation need not be by name specially providedthe person to whom the property is to go over is clear.”(Pereira, Laws of Ceylon, p. 433.)
The prohibition however is nugatory unless the persons aredesignated in favour of whom the prohibition is declared. (Burge,Vol. IV., Pt. I., p. 770.) This is enacted in the law of the Colony insection 3, Ordinance No. 11 of 1876. By section 2 of that Ordinanceit is provided that no prohibition against the alienation of immovableproperty shall be effectual to prevent or restrict the alienationof such property for a longer period than the lives of persons whoare in existence or en ventre sa mere at the time the prohibitionis made “ and are named, described, or designated ” in the will ordeed.
Section 3 is as follows :—
“ Any such prohibition, restriction, or condition against thealienation as aforesaid shall be null and void so far as itprohibits or restricts alienation for a longer period thanthat limited in the preceding section. But where thewill, deed, or instrument in which any prohibition,restriction, or condition against alienation is containeddoes not name, describe, or designate the person or personsin whose favour or for whose benefit such prohibition,restriction, or condition is provided, such prohibition,restriction, or condition shall be absolutely null and void.”
As Bonser C. J. points out in Hormusjee v. Cassim (supra) no wordscan be plainer than these. The first part of the section providesthat the prohibition is null and void beyond a fixed limit, butit goes on to enact that it is absolutely null and void unless the
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person or persons, in whose favour it is provided are named,described, or designated. If that is not done the words must bestruck out of the deed.
At first reading it seems to me that the words “ all her descendingheirs and authorised persons,” who, it is argued are the personsin whose favour the prohibition against alienation by Setu isprovided, are most vague and indefinite, and that impression wasforced upon me not by reference to the words alone, but to thewhole document. What persons can be said to be named, described,or designated in the term “ authorized persons ”? May collateralheirs be included, or any such class of persons coming withinthe terms executors, administrators, representatives, or assigns ?I take these terms because most of them at any rate have beenused in the cases "cited to us. The argument on behalf of therespondents is that they merely repeat the words e< descendingheirs ” and so are mere surplusage, or otherwise they mean“persons authorized by the heirs,” for example, by power ofattorney. That some such interpretation must be placed uponthe words, it is argued, necessarily follows from the intention of thedonor to be gathered from the whole document to tie.up the propertyin his family. That intention, however, from the words used,I am unable to galther. In support of this argument Mr. De Zoysalays stress upon the decision in Pinnwardene v. Fernando (supra.)That case arose out of the construction of a will. The personspurported to be designated there were “ the children, grandchildren,heirs, and representatives descending from them.” It was arguedthat the presence of the words “ heirs and representatives ” in theclause indicating the beneficiaries was obnoxious to the validityof the fidei commissum. A question arose as to the correctinterpretation of the will which was a Sinhalese document,and De Sampayo J., after examining the language came to theconclusion that the expression used should be interpreted “ thechildren, grandchildren, heirs, and representatives descending fromthem.” The word “ representative ” on this interpretation he held,may be taken as a mere extension of the idea of succession conveyedby the previous words with which it is associated. If that cannotbe done he would hold that it may be disregarded as meaningless.It is quite clear, however, that special stress was laid by the learnedJudge upon the maxim in testamentis benignia interpr&atio faciendaest, while assistance was also found in the principles respectingthe construction of deed as laid down by Courts of Equity inEngland. Even if the latter principles may be properly applied,here or in such a case as this, I am quite satisfied this case may beclearly distinguished on the facts.
Another case which has been relied upon is Wijetunga, i Wijetunga(supra) the case of a deed where property was gifted to A subject tothe provision inter alia that A shall not sell, lease, or mortgage the
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property, and that after A’s death A’s “ heirs, executors, andadministrators shall hold and possess the property or deal with itas they please.” It was held that the deed created a fideicommission, the intention of the donor not having been defeatedby the use of the words “ executors and administrators.” Theargument which appears to have been approved of by the Courtis set out in the judgment as follows :—
‘‘ What the deed means is that, alternatively, that is to, say,in default of heirs the property is to vest in executorsor administrators. In default of heirs A, as fiduciarius,would, of course, be absolute owner of the subject of tbefidei commission., and a disposition by him of the sameby will would then have full effect, and thus the use ofthe words ‘ executors ’ and ‘ administrators ’ (the latterimplying administrators cum testamento annexe) couldbe explained away without doing violence to the languageemployed, and in a manner that gives effect to the obviousintention of the grantor to create a fidei commissum.”
I must admit, although possibly with some hesitation in viewof the authority attaching to the name of the learned Judge whodelivered the judgment, I should have some difficulty in followingthis decision, were the facts in this case now before us on all fours.It is of interest also to note that Lascelles C. J. who agreed with tbedecision of Pereira J. in Wijetunga v. Wijetunga (supra), on a lateroccasion appears to me to have somewhat qualified bis agreementwith the correctness of the judgment. In Silva et al. v. Silvaet al. (supra) he refers to the earlier cases of Hormusjee v.Cassim (supra) and Tina v. Sadiris (supra) with approval, andcontinues:—
“ From these authorities it is clear that the Courts haveconsistently insisted on the requirement of the Roman-Dutch law, that the persons for whose benefit the fideicommissum is created should be plainly designated,and that instruments which do not comply with thisrequirement are not effective to create fidei commissa,even when the intention of the donor or testator to createa fidei commissum may be gathered from the document.Wijetunga v. Wijetunga (supra) is the case in which theCourt has gone the furthest in collecting from an ambiguousexpression the donor’s intention as to the persons to beultimately benefited. Here we are to take a distinctstep further in that direction. This I ain not disposedto do. The rule of the Roman Dutch law is a salutaryone, and in cases of doubt the presumption is against afidei commissum.”
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• And, if I may amplify this, it seema to me that not only is theexistence of this presumption a salutary one, but the law is clear.
I am unable to see that any case arises for the Court to embarkupon a voyage of discovery in search of possible interpretations ofwords used to defeat an ambiguously expressed intention. Whetherthe document to be construed be a deed or a will, I do not thinkthe duty of the Court can be better expressed than by adoptingthe words of Innes C. J. in ex parte Van Eeden and others} in whichthe Court had to decide whether the testators had by their languagecreated a fidei commissum :—
“ In this case as in the majority of cases which arise in theconstruction of wills, what the Court has to do is toendeavour to arrive at the intention of the testator ; andto arrive at that intention not by considering what wethink it would have been a good thing if they did mean,or what they ought to have meant, but by ascertainingthe plain meaning of the words used. If those wordsin a case like the present are capable of more than oneconstruction, then of course the Court would lean towardsthe one most in favour of freedom of alienation. Butif the testator’s language admits of only one construction,then we must give effect to it regardless of the conse-quences.”
And he points out that decisions of Courts in other cases withregard to other documents containing other language can hardlybe of much assistance although principles laid down therein areuseful and should be applied.
Later cases have laid stress upon the necessity of the intentionto create a fidei commissum being carried out by the use ofappropriate language. Even the use of the very term fideicommissum may however be inconclusive. In Craib v. LokuAppu,2 a Full Court decision in which all three Judges differedthe words in the deed provided that the land in question was to bepossessed “subject to the bond of fidei commissumEnis J.held that, in that it was not clear who was to benefit by therestriction or alienation and when, it was not open to the Courtto supply the deficiency, and the deed must therefore be construedas an absolute gift to the donees. In the same way in Breda v.Master, Supreme Court3 the testator himself applied the termfidei commissum in an imperfect sense, the disposition beingin essence a usufructuary and not a fidei-commissary one.
After giving my best attention to the argument addressed to us by^Mr. De Zoysa, and having considered the cases cited by him, andnumerous other decisions also, I am unable to say that the language
» (1905) T. S. (Transvaal Law Report, 151.)2 {1918) 20 N. L. R. 449.
3 7 S. C. Juta's Reports, 363.
( 379 )
used in the deed admits of the construction which he seeks to placeupon it. Even if it were a possible construction it is clearly to mymind not the only construction. I can find in the words used noclear and precise indication, no naming or designation of the personsor class in whose favour or for whose benefit the prohibition isprovided. On that finding this Court must apply the rule of law thatthat construction is to be adopted which will impose the leastburden on the heir or donee, and the least restraint on the freedomof alienation.
I would, therefore, hold that the deed of August 7, 1882, does notcreate a fidei commissum, answering the issue in the negative.The finding of the learned District Judge should therefore be setaside, and judgment entered as set out in the judgment of HisLordship the Chief Justice. Defendant is entitled to the costsof this appeal.
Maartensz A.J.—
The land in dispute in this case was gifted by the owner Simia,to his daughter Setu, by deecf No. 2,787 dated August 7, 1882.
Setu by deed No. 19,658 dated December 23, 1911, leased theland to the first defendant and one Udias Appuhamy for a term oftwenty-five years from the date of execution.
In 1919 on a writ issued against Setu the land was sold andpurchased by the first defendant and Udias Appuhamy. It wasconceded that the purchasers could not claim more than halfthe land, as Setu was married in community of property and herhusband had died prior to the sale in execution.
The plaintiffs, who are the children and grandchildren of Setu,allege that the deed of gift No. 2,787 created a fidei commissum,and that the first defendant’s right to possession under the leaseand by virtue of the sale in execution terminated on the death ofSetu.
The first defendant appeals from the finding of the learnedDistrict Judge that the deed of gift created a fidei commissum.
The deed of gift is in Sinhalese in which the donor after settingout his title and the boundaries of the land continues as follows :—
“ This land, within these four boundaries, 3 acres 2 roods and30 perches in extent, together with all the plantations, &c.,belonging thereto, and valued at Rs. 200 of the currencyof Ceylon, is hereby granted as a gift to, and is put inpossession of, Horatalpedige Setu of Assanawatta, adaughter of mine, owing to the affection, love, and regardthat I bear towards her, and owing to diverse other dutieswhich drew my heart unto her. Then I, SinhalapedigeKekula, the husband of the said Setu, accept this gift,with thanks, by signing this. Therefore the aforesaid
1926.
Dalton J.
Salonchi v.Jayatu
( 380 )
. 1926.MaabtbnszAX
Saloncki v.Jayatu
gifted land is hereby put in possession and proprietorshipof, and is given over with power only to be possessedundisturbed, subject to the regulations of Government,without selling, mortgaging, or otherwise alienating orleasing the same for a period of exceeding five yearsby the said Setu and all her descending heirs andauthorized persons.”
The issue to be decided is whether the deed of gift executedby Simla created a fidei commissum.
The operative clause conveying the land to Setu contains nowords of limitation, but it has been held that even the use of thewords heirs, executors, administrators, and assigns, coupled withthe name of the fiduciary heir, may be nothing more than a means ofvesting in the fiduciary heirs the plena proprietas ad a preliminaryto imposing a fidei commissum in the property, Guneratne v.Guneratne,1 and that they do not prevent a construction in favourof a fidei commissum if it can be gathered from the language of thedocument in question. Wijetunga v. Wijetunga (supra), Coudert v.Don Elias,2 and Miranda v. Coudert.3
This principle would apply more strongly to the deed of giftexecuted by Simia as the name of the fiduciary is not coupled withthe words which had been previously held as negativing a con-struction favourable to a fidei commissum.
The operative clause, therefore, does not, in my opinion, affectthe question whether a fidei commissum was created.
The passage on which the respondents rely is contained in whatmay be called the habendum clause. The passage runs thus :
“ Therefore, the aforesaid gifted land is hereby put in possessionand proprietorship of, and is given over with power onlyto be possessed undisturbed, subject to the regulations ofGovernment, without selling, mortgaging, or otherwisealienating or leasing the same by the said Setu and all herdescending heirs and authorized persons.”
There can be no doubt that the donor has prohibited thealienation of the lands gifted by Setu and her descending heirsand authorized persons.
The appellant’s contention is that under the proviso to section 3of the Entail and Settlement Ordinance, 1876, the prohibitionagainst alienation is rendered nugatory by reason of the donor’sfailure to designate the person or persons in whose favour of forwhose benefit the prohibition was provided.
1 (1915) 1 G. W. S. 24.* (1914) 17 N. L.7?. 129.
M 19l$)19N.L.B.90.
( 381 )
The proviso runs as follows:—
“ But where the will, deed, or instrument in which any prohibition,restriction, or condition against alienation is contained,does not name, describe, or designate the person orpersons in whose favour or for whose benefit such prohi-bition, restriction, or condition is provided, such prohi-bition, restriction, or condition shall be absolutely nulland void.”
The respondents contend that the persons are designated andthat they are the descending heirs and that the words “ andauthorized persons ” are mere surplusage.
They further contend that there was no necessity to embarkon an inquiry as to who were meant by “authorized persons”as long as there were descending heirs in existence.
A number of authorities were cited commencing with Tina v.Sadiris (supra), all of which I have examined.
In Tina v. Sadiris (supra) Fleming A.C.J. laid down theprinciple that a gift to A, his heirs and administrators, coupledwith a prohibition against alienation by A, bis heirs and adminis-trators did not create a fidei commissum, as the persons in whosefavour the prohibition was imposed were not designated.
This principle was adopted in the case of Hormusjee v. Gassim(supra), Ayso TJmma v. Noordeen,1 Nugara v, Gonsah'2 In this casethe gift was to B, his heirs, executors, and administrators, coupledwith a prohibition against alienation (Perera v. Fernando et at.3Siiva et ah v. Silva et ah (supra) Silva v. Kekulawala4).
: In the group of cases cited by the respondent the documentwhich this Court had to construe contained a gift over after the.death of the donees.
I In Wijetunga v. Wijetu7iga (supra), the donee A was prohibitedfrom alienating, and after her death the property was to bepossessed by A’s heirs, executors, oF; administrators absolutely.In Miranda v. Goudert (supra), the deed provided that the propertyshould pass to the Roman Catholic Church on failure of heirs.
In Dassenayake v. Tillekeratne (supra), the testator left theproperty to his wife for life, and after her death to the testator’schildren and their heirs and assigns.
In the case of The Government Agent, Central Province v. Silva(supra), there was a gift over to the children and grandchildrenof the donees or their lawful heirs.
In the deed of gift under consideration there is no such gift over.The words “ authorized persons ” are very comprehensive and maycomprise executors, administrators, and assigns. If the latterwords are substituted for the words “ authorized persons,” the
} (1002) 6 N. X. R. 173.3 0 Leader Law Reports 12.
2 (1911) 14 N. X. R. SOI:* (1925) 26 N. X. R. 489.
1926.
Maabtjksz
A.J.
SaUmchi v.Jayatu
( 382 )
1926.
Maarteksz
A.J.
Salonchi v.Jayatu
deed would run : “ by . the Baid Setu and all her descending heirs,executors, administrators, and assigns,” and would be very similarthe deed oi gift construed in the case of Silva et at, v. Silva et al (supra).
In this case the donors donated the property to their sevenchildren, subject to the following condition:—
“.and when one of us dies a half out of the said
rights should devolve on our said seven children, andwhen both of us are dead all the aforesaid rights should beentitled to the aforesaid children and their heirs, executors,administrators, and assigns, and they can only possessthe same, but they cannot mortgage, sell, gift over, orlease over for a period of over five years, or alienatein any other manner, and our said children may get therights partitioned.”
De Sampayo J. observed :
“ For it is argued that the fidei commissarii are the ‘ heirs ’ whoare mentioned in that context, it appears to me impossibleto disconnect the words * heirs ’ from the rest of thecontext, and so I think that is a case in which there hasbeen no designation of the person in whose favour or forwhose benefit the prohibition against alienation is provided.
But for the case of Pinmvardene v. Fernando, (supra), I should haveno difficulty in holding on the authority of the first group of casesthat the deed executed by Simia did not create a fidei commissum.
By the will construed in the case the testators devised theirproperty to their seven children and -three others, subject to thefollowing condition :—
“..;. in this manner, after our death, they shall take
charge of their said respective properties, as we haveordained, and they, their children, grandchildren, heirs,and representatives descending from them shall possessthe same; but they shall not sell or alienate the saidproperties in any manner, or cause the same to be subjectto any mortgage or security. Should such an act becommitted, the right of the person who sells or alienatethe lands or land …. shall cease, and it isordained that the same shall go over to the Crown.”
and it was held that the will created a valid fidei commissum infavour of the children, grandchildren, and remoter descendantsof the devisees.
The Sinhalese expression for representatives in the will is“ balayalath ayavolu.” The Court held that this expression meant_ representatives descending from them and may be disregardedas meaningless or be taken as a mere extension of the idea ofsuccession conveyed.
( 383 )
I am unable to adopt the course taken in the case of Pinnwardenev. Fernando {supra), to give effect to the fide* commissum whichthe testator possibly intended to oreate.
That course might have been taken in the cases of Tina v.Sadiris {supra), Hormusjee v. Cassim {supra), Silva el al. v. Silva et al.{supra), and the contention that there was a fide* commissum upheldby ignoring the heirs and administrators, or executors, adminis-trators and assigns, as the case may be.
I am, therefore, of opinion that the deed of gift executed by Sinaiadoes not create a fide* commissum, and I would allow the appealwith costs, in both Courts. I would declare the plaintiff entitledto a moiety of the land in dispute, and to possession of that moietyon the expiry of the term of the lease granted by Setu, No. 12,658,marked Dl.
Appeal allowed.
1926.
Maartensz
A.J.
SaloncfU v.Jayatu