SENEVIRATNE et al., Appellants, and MENDIS et al., Respondents

036-NLR-NLR-V-65-SENEVIRATNE-et-al.-Appellants-and-MENDIS-et-al.-Respondents.pdf


** Seneviratne v. Mendis
169
1962 Present: Weerasooriya, S.P.J., and H. N. G. Fernando, J.SENEYERATNE et al., Appellants, and MENDIS et al., RespondentsS. C. 188/1959—D. G. (Inty.) Negvmbo, 16592[P
Fideicommissa—Tacit fideicommissum—Elements necessary—Gift of immovable•property—Reference in the vesting clause to the donee's “ children, heirs*executors, administrators and assigns ”—Uncertainty as to the fideicommissaries—Effect.
A tacit fideicommissum cannot be inferred unless there is, firstly, an expressprohibition against alienation imposed on the donee, and secondly, a cleardesignation of the person or persons in whose interest the prohibition is imposed.
A deed of gift of immovable property imposed on the donee a prohibitionagainst alienating the property and further stated that the donee’s “ children,heirs, executors, administrators and assigns etc. may uninterruptedly possessfor ever subject to Government regulations, or they may deal with the sameas they please for which authority is hereby given …. ”
It was common ground that the deed did not create a fideicommissum inexpress terms, and the question was whether a tacit fideicommissum couldreasonably be inferred.
Beld, that although the deed expressly imposed on the donee a prohibitionagainst alienation, the use of the phrase “ donee’s children, heirs, executors,administrators and assigns etc. ”—meaning as it does that the children andheirs of the donee as well as the donee’s executors, administrators and assignsare to take the property on the death of the donee—if given full effect to, wouldresult in uncertainty oe to the fideicommissaries. The deed, therefore, didnot create a fideicommissum. In such a case, the difficulty cannot be solvedby rejecting all the words in the phrase, except the word “ children ”, as merenotarial flourish or surplusage.
William Nonis v. Simon Nonis (I960) 61 C. L. W. 17 not followed.
ApPEAL from a judgment of the District Court, Negombo.
H. W. Jayewcurdene, Q.C., with L. C. Seneviratne, for the 5th and 6thdefendants-appellants.
7. C. David, for the substituted plaintiffs-respondents and the 5threspondent (4th defendant).
8—LXVOur. adv. vuU.
2E 12239—1855 (Q/'QS)
170
W35BRAS O ORIYA, SJP.jr.—Smaviratne v. MmcO*
December 21, 1962, Wbbbasoobtya, S.P J.—
This is an action for the partition of a land called Gor&kag&h&wattedepicted in preliminary plan No. 3101 marked X. At the trial it was
agreed between the parties that only lots A, B, B1 and G in that plancomprise the corpus to be partitioned. The land originally belongedto Wo persons, husband and wife, who by deed PI, dated 7th October,1S87, gifted it to their son Peter Mendis Gunatilake, the 1st defendant(since deceased) subject to certain terms and conditions. One of the pointsof contest at the trial was whether this deed created a fidei commissumin favour of the children of the donee. This point was decided in thenegative by the District Judge after a careful consideration of numerousjudgments of this Court, and at the hearing of the appeal most of thearguments addressed to us by Mr. Jayewardene who appeared for theappellants were directed towards showing that the conclusion arrivedat by the learned Judge on this point is wrong.
The deed PI is in Sinhala. The plaintiff-respondent contended thatthe translations P1A and PlB, which are more or less identical, representthe correct rendering of PI, while the appellants relied on the translation4D9. According to P1A and PlB, the persons to be benefited are “thesaid donee Peter Mendis’s children, heirs, executors, administratorsand assigns etc.,” but according to 4 D 9 they are “ the children-heirs,executors, administrators and trustees ” of the donee. The wordsitalicized denote the main points on which the parties are at variancein regard to what is the correct translation. The trial Judge acceptedP1A as the correct translation in preference to 4 D 9, and althoughMr. Jayewardene pressed on us to reverse this finding, I see no reasonfor doing so, especially as support for the view taken by the Judge isto be found in the judgments of Lascelles, O.J., and de Sampayo, A.J-,in Silva v. Silva 1, a case decided nearly fifty years ago and which, as faras I am aware, has not been dissented from.
The relevant clauses of PI according to the accepted translation areas follows : “…. and the said donee Peter D. Mendis Guna-
tilake Seneviratne Appuhamy …. shall possess the same, but heshall not sell, or mortgage or alienate in any maimer whatsoever, orlease for a period exceeding ten years, and the said donee Peter D.Mendis’s children, heirs, executors, administrators and assigns etc.may uninterruptedly possess for ever subject to Government regulations,or they may deal with the same as they please for which authority ishereby given.
(1914) IS N. L. S. 174.
WEER.ASOORTYA, S.P.J.—Seneviraine v. Mendis
171
And it is hereby directed that if the said donee Peter D. Mendis Guna-tilake Seneviratne Appuhamy were to die without descendants thenthe said land shall devolve on Juwanis Mendis Gunatilake SeneviratneAppuhamy or his children who are heirs.”
It is common ground that these clauses do not create a fidei commissum~~ inexpress terms, and the question is whether, from the language employed,a tacit fidei commissum may reasonably be inferred. An example of atacit fideicommissum would be where there is, firstly, an expressprohibition against alienation imposed on a donee, and, secondly, a cleardesignation of the person or persons in whose interest the prohibitionis imposed. While Pi expressly imposes on the donee a prohibitionagainst alienation, in regard to the second requirement a difficultyarises in this case from the use of the phrase “ the said Peter D. Mendis'schildren, heirs, executors, administrators and assigns etc.” It seems. to me that this phrase—meaning as it does that the children and heirsof the donee as well as the donee’s executors, administrators and assignsare to take the property on the death of the donee—if given fall effectto will result in uncertainty as to the fideicommissaries. In my opinion,the difficulty cannot be solved, as Mr. Jayewardene suggested, by reject-ing all the words in the phrase, except the word “ children ”, as merenotarial flourish or surplusage. Although, as Professor Nadaraja haspointed out in his treatise on the Roman-Dutch Law of Fideicommissa(page 253), " it is especially in the decision of the question how far theuse of such a phrase makes the identification of the fideicommissariesuncertain that judicial differences of opinion have manifested themselves”,the settled law, as far as can be gathered from the more recent decisionsof this Court, does not appear to favour a fideicommissum where thelanguage in a grant is in the terms contained in PI. The correct legalposition according to these deoisions is discussed in the judgment ofNagalingam, J., in Jayatunga et al. v. JRamasamy CheUictr et al.,1 wherethe prohibition against alienation was coupled with a provision thaton the death of the donee her children “ and their heirs, executors,administrators and assigns shall have the right to possess the saidproperties or to do whatever they please with the same ”. hfagalingam, J.,in deciding that the grant created a fideicommissum in favour of thedonee’s children, stressed that no difficulty arose through any designationof the donee's heirs, executors, administrators or assigns as fidei-commissaries. Instead, the persons to be benefited being the childrenof the donee, he expressed the view that the additional words “ their(i.e., the children’s) heirs, executors, administrators and assigns ” couldhe construed as used for the purpose of conferring on the children anabsolute and unfettered right in the property conveyed. In adoptingthis construction he followed earlier decisions (see Dassanayake v. Tilleke-ratne 3 and Qunaratne v. Perera3) where it was held that the furtherreference to the children's heirs, etc., was a recognized means of vestingthe plena proprietas in the persons to be benefited. By way of contrasthe pointed to the language of the grant in JBoteju v. Fernando4 which
1 {1950) 52 N. L. R. 171.»19151 O. W. R. 24.
a (1917) 20 N. L. R. 89.4 (1923) 24 W. L. R. 293.
1-72
WBSRASOOBIYA, S.PJ.—SenevirtUtte v. Mendie
provided that after the donee’s death the land shall be possessed by thedonee’s heirs, executors, administrators and assigns for ever, and he
observed that “ not only the heirs of the donee but also the donee’s
executors, administrators and assigns are indicated as the persons "whoare to take the property on the death of the donee." It will be observedthat the language of the grant in Boleju v. Fernando {supra) which wasregarded as insufficient to create a fidex commissum is not substantiallydifferent from the language in Pi—“ Peter D. Mendis’s children, heirs,executors, administrators and assigns etc." For other decisions to thesame effect see Amaratunge v. Alims1; Appuhamy v. Mathess; andFernando v. Rasheed3. There seems to be little doubt that in Jayatungaet al. v. Ramasamy Chettiar et al. (supra) Nagalingam, J., would not haveupheld a fidei commissum if the reference in the vesting clause had beento the donee's children and the heirs, executors, administrators andassigns of the donee.
A recent case to which we were referred by Mr. Jayewardene assupporting the claim that PI created a fidei commission is WilliamNonis v. Simon Nonis and others*. But, if I may say so with respect,it would seem that the decision in that case was arrived at withoutconsideration of the strong line of authority to the contrary representedby Boteju v. Fernando (supra) and the other cases referred to above,and which I would prefer to follow.
As for the further provision in PI that in the event of the donee PeterD. Mendis dying without descendants the land shall devolve on JuwanisMendis or his children, learned counsel for the appellants did not relyon it, either at the trial or the appeal, as an additional ground for sub-mitting that Pi created a fideicommissum in favour of Peter D. Mendis’schildren. In de Silva v. Rangohamy 5 the claim that such a provision(si sine liberis decesserit), when included in a gift from father to son,manifests an intention, if the son has issue, to create a fideicommissumin favour of such issue, was fully considered and it was held that theprovision by itself is of no assistance in supporting such a claim.
In my opinion the learned District Judge was right in concludingthat Pi did not create a fideicommissum. The only other point whichwas raised by Mr. Jayewardene at the hearing of the appeal was oneof estoppel. It was submitted that in any event the plaintiff is estoppedfrom taking up the position that PI did not create a fideicommissum.The estoppel is said to arise in this way : By P2 of 1921 Peter Mendis
(1939) 49 N. L. S. 963.* (1949) 60 N. L. B. 349.
* (1944) 46 N. L. B. 268.* (1960) 61 O. L. W. 17.
* (1961) 62 N. L. R. 653.
WEERASOORTYA, S.P.J.—Seneviratne v. Mendis173
S
gifted to his daughter, the 7th defendant, a l/9th share of the rents andprofits derived from Gorakagahawatte. P2 recites that the donorwas by virtue of deed No. 3417 (PI) entitled during his life time to therents and profits of the land. By deed P3 of 1926, Peter Mendis andanother daughter, the 3rd defendant, sold to the 7th defendant and herhusband the 8th defendant, an undivided l/9th share of the land. In1947 six of the nine children of Peter Mendis (viz., the plaintiff, the 3rd,4th, 5th, 6th and 7th defendants) along with the 8th defendant, recitingthat they were entitled to Gorakagahawatte, entered into the deed4D3 by which they purported to partition the land and convey to eachother certain divided lots with reference to the plan 4D4. Peter Mendisthough not a party to 4D3 appears to have acquiesced in this partition.The divided portion granted to the 4th defendant on 4D3 was the subjectof a conditional transfer in 1950 in favour of the 2nd defendant on P5,in which Peter Mendis also joined. In 1952 the plaintiff obtained fromthe 7th and 8th defendants an outright transfer, P4, of an undivided2/9th share of the land which the transferors claimed to be entitled to onP2 and P3. Th plaintiff filed the present action on the strength ofP4, allotting to himself the undivided share so transferred. Paragraph9 of the plaint refers to the partition effected by 4D3 and states thatit was based on the erroneous belief that deed No. 3417 created a validfideicommissum, whereas the plaintiff had since been legally advisedto the contrary. In view of P2, P3 and 4D3 Mr. Jayewardene submittedthat from 1921 up to 1952 Peter Mendis and his children treated the deedPI as creating a fideicommissum and acted on that footing, and theplaintiff is therefore estopped from taking up a different position now.This defence was rejected by the learned District Judge, who held thatP2, P3 and 4D3 at the most indicated a doubt in the minds of the partiesthereto whether Pi did create a fideicommissum or not. He also heldthat the ruling in Vansanden et al. v. Mack et al.1 did not, therefore,apply to the present case. I am in agreement with these findings. Iwould also add that even if the deed 4D3, to which the plaintiff was aparty, was entered into on the definite understanding that Pi createda fideicommissum, I fail to see how the rule of estoppel as stated insection 115 of the Evidence Ordinance can be applied against him andfor the benefit of the 4tb, 5*h and 6th defendants (who were also partiesto that deed) since any representation that PI created a fideicommissumwas not that of the plaintiff alone but was mutually made by all theparties.
The appeal is dismissed with costs.
H. N. G. Fernando, J.—I agree.
Appeal dismissed.
1 (1895) 1 N. L. R. 311.
2®R 12239 (9/63)