157-NLR-NLR-V-48-SAMARANAYAKE-Appellant-and-SENEVIRATNE-Respondent.pdf
505
HOWARD C.J.—Samaranayake v. Seneviratne.
1S47Present: Howard C.J. and Windham J.
SAMARANAYAKE, Appellant, and SENEVIRATNE,Respondent.
S. C. 49—D. C. Negombo, 3,394.
Fidei commissum—Deed of gift—Designation of beneficiaries—Heirs, executors,administrators and assigns—Sufficiency of designation.
A deed of gift contained the following clause : —
“ It is directed that I and my wife are entitled to do whatever itpleased us with the said lands during our lifetime and in the event ofthe death of either of us. the survivor is entitled to possess a half shareof the income of the said lands and also in the event of the death ofeither of us the survivor shall not alienate or deal with the same inany other manner and in the event of the death of either of us ahalf share of the income of the said lands shall be possessed by oursaid two children and that after the death of both of us our said twochildren and their children and grandchildren, heirs, executors, ad-ministrators and assigns are entitled to possess separately as mentionedhereinbelow the lands not alienated or dealt with at our pleasure byus during our lifetime but they shall not sell, mortgage or alienate inany manner the said lands and when their descending heirs are extinctthe said lands devolve on the Government
Held, that the fidei commissum did not extend beyond the grand-children of the donor as their successors were not clearly designated,nor was there any designation of those for whom the benefit againstalienation was provided.
PPEAL from a judgment of the District Judge, Negombo.
H. W. Jayewardene (with him C. S. Randunu), for the 1st respondent,appellant.
H. V. Perera, K.C. (with him Kingsley Herat), for the petitioner,respondent.
Cur. adv. vult.
September 11. 1947. Howard C.J.—
This is an appeal by the 1st respondent-appellant against an order ofthe District Judge of Negombo granting the petitioner, as the sole heirof the deceased, Domingo Perera Wijesundera Seneviratne, his son,letters of administration to his estate. In coming to this decisionthe District Judge held that deed 2335 of August 11,1857
(PI), did not create a fidei commissum. The only question that arises iswhether this decision was correct in law. The relevant portion of (P 1) onwhich the appellant relies is worded as follows : —
“ It is directed that I and my wife Dona Francina Hamine areentitled to do whatever it pleased us with the said lands during ourlifetime and in the event of the death of either of us, the survivor isentitled to possess a half-share of the income of the said lands and alsoin the event of the death, of either of us the survivor shall not alienateor deal with the same in any other manner and in the event of the deathof either of us a half share of the income of the said lands shall be
506
HOWARD C.J.—Samararuiyake v. Seneviratne.
possessed by our said two children and that after the death of both of usour said two children and their children and grandchildren, heirs,executors, administrators and assigns are entitled to possess separatelyas mentioned hereinbelow subject to Government regulations the landsnot alienated or dealt with at our pleasure by us during our lifetimebut they shall not sell, mortgage or alienate in any manner the saidlands and when their descending heirs are extinct the said lands devolveon the Government and that if any dispute were to arise to the landsgiven to Dona Catherine Perera Wijesundera Seneviratne Hamine,Louis Perera Amarasinghe Appuhamy who is married to her is herebyempowered to settle such disputes through Government, but he(the said Appuhamy) shall not by virtue of his marriage be entitled tomortgage or alienate the said lands
Mr. Jayewardene, on behalf of the appellant, has referred us to anumber of authorities which he maintains support his case. Mr. H. V.Perera, on behalf of the respondent, has also referred us to other authori-ties. It is never easy to reconcile to one’s complete satisfaction thevarious authorities on this'subject. It has been in the past a prolific andunending source of litigation. Perusal of the case law on the subjectindicates that a generation ago there was a tendency to find in favour ofa fidei commissum wherever possible, whereas the tendency in morerecent years is in the other direction and Courts have attempted to giveeffect to the principle of Roman-Dutch Law in favour of a presumptionthat a donor would not fetter a property bequeathed by will or grantedby deed. In this connection I would invite attention to the judgment ofLascelles C.J. in Silva v. Silva'. Mr. Jayawardene has relied mainlyon the following cases. In Wijetunga v. Wijetunga3 B by deed gifted hisproperty to A subject to the provision inter alia that A “ shall not sell,lease out, mortgage, &c., the property, and that after A’s death that A’sheirs, executors or administrators shall hold and possess the property ordeal with it as they please ”. It was held that the deed created a fideicommissum; the intention of the donor had not been defeated by theuse of the words “ executors or administrators ”. The words had not beeninserted except for the purpose of a fidei commissum. Mr. Perera con-tends that the present case is distinguishable from Wijetunga v. Wijetungaas the word “ assigns ” does not appear in the latter case. In Silva v.Silva * a deed of gift contained the following clauses : —
“ After the demise of both of us all the aforesaid properties to beentitled to the said seven children in equal shares …. andwhen one of us dies a half of the said rights should devolve on our. saidseven children, and when both of us are dead all the aforesaid rightsshould be entitled to the aforesaid children and their heirs, executors,administrators and assigns, and they can only possess the same,but they cannot mortgage, sell, gift over, or lease over for a period ofover five years, or alienate in any other manner, and our said childrenmay get the rights partitioned.”
It was held that the deed did not create a fidei commissum.
1 (1914) 18 N. L. R. at p. 171.• (1918) 15 N. L. R.493.
3 (1914) 18 N. L.R. 174.
HOWARD C.J.—Samaranayake v. Seneviratne.
507
In regard to this case Mr. Perera places particular reliance on thefollowing words from the judgment of De Sampayo J. at p. 178 : —
“But where the instrument to be construed is such that there is noclear designation of the persons who are to take after the immediatedonee, then I think that the use of such words as * executors, adminis-trators and assigns ’ as part of the same formula with the word * heirs ’is of material importance. The present case is in that situation. Forit is argued that the fidei commissarii are the * heirs ’ who are mentionedin that context. It appears to me impossible to disconnect the word* heirs' from the rest of the context, and so I think that this is a casein which there has been no designation of the persons in whose favouror for whose benefit the prohibition against alienation is provided ”.
Mr. Perera contends that there is in the present case no clear, designa-tion of the persons who are to take after the children and grandchildrenof the donee.
Mr. Jayewardene also cited Mirando v. Coudert *. But in spite of theuse of the word “ assigns ” the intention of the donor was clearly tobenefit the descendants of one Isabel Mirando and to create a fideicommissum in their favour. In this case there was a clear designation ofthe person or persons ultimately to be benefited. Again in Coudert v.Don Elias2 there was no uncertainty in the secondary heirs. In thatcase it was held that the word “ assigns ” as used has no more force inrepelling an intention to create a fidei commissum than either of the words“ executors ” and “ administrators ”. All these words are used as a meansof vesting in the fiduciary the plena proprietas as a preliminary to burdeningthe property with a fidei commissum. The words “ in perpetuity under thebond of fidei commissum ” permit of no construction being placed on thedeed other than one indicative of an intention to create a fidei commissum.
Mr. Perera also relies on the cases of Amaratunga v. Alwis ’ and Appu-hamy v. Motives'. In both these cases it was held that the deeds inquestion did not create valid fidei commissa. In regard to these twocases Mr. Jayewardene has stressed the point that the words “ assignsmay deal with them as they please ” appear in the deeds and negative anintention on the part of the donor to create a fidei commissum.
In my opinion we have in this case to apply the principle formulatedby De Sampayo A.J. in Silva v. Silva. Can it be said that there has beena clear designation of the persons to be benefited ? The donors wereDomingo Perera Wijesundera Seneviratne and his wife, Dona FrancinaHamine. There is a gift after their deaths to their two children and theirchildren and grandchildren, heirs, executors, administrators andassigns …. but they shall not sell, mortgage or alienate in anymanner the said lands and when the descending heirs are extinct thesaid lands shall devolve on the Government. The donor died leavingtwo children, John Simon and Catherine Perera. Under the deed theyinherited separate properties. John Simon died leaving two children,Martinus Perera and Rsimus Perera. Reimus Perera married thepetitioner and they had a son Domingo Perera, the deceased, who diedunmarried. The 1st respondent is one of the three children of Martinus.
> (19/6) 19 X. L. R. 90.* (1939) 40 X. L. R. 363.
* (1914) 17 X. L. R. 129.* (1944) 45 .V. L. R. >39.
508
HOWARD C.J.—Kalenderlewai v. Awummdh.
The deed no doubt creates a fidei commissum in favour of the children ofthe donor and their children and grandchildren. The deceased DomingoPerera is a great-grandson of the donor and I am of opinion that there isno valid fidei commissum created after his death as his successors are notclearly indicated nor is there any designation of those for whomthe benefit against alienation is provided. Moreover there are not in thedeed as in Coudert v. Don Elias any words similar to “ in perpetuity underthe bond of fidei commissum
For the reasons I have given the appeal is dismissed with costs.Windham J.—I agree.
Appeal dismissed.