104-NLR-NLR-V-23-SETHUHAMY-et-al.-v.-KIRIBANDA-et-al.pdf
( 376 )
1022.
Present: Bertram 0. J. and Schneider J.
SET HUH AMY et al. v. KTRIBANDA et at.
406—.D. C. Kegalla, 6,542.
Gift by wife to husband and three children—Husband to take care of pro-perty during minority of children and possess jointly till death, anddivide the property among children at death—Fidei commissum—Interpretation of deed,
A "wife gifted a property to her husband and three children.The deed provided that during the minority of the children thehusband should take care of the property, and on their attainingmajority that he should possess the. property with the threechildren, and on the approach of death should divide the propertyamong the children.
Held, “ It may be said that the words do contemplate that theproperty shall not be alienated during the lifetime of the husband.To that extent, perhaps, we ought to construe tb.e words as consti-tuting a prohibition against alienation during the lifetime of thehusband …. Until the death of the husband the pro-perties were to be held in undivided shares, but that at his deathhe must distribute the property in specie among the three children…. It is also contemplated that that distribution shall
include the one-fourth share already vested in the husband by theoperative words of the deed. If this is the view to be taken, thenthe deed would appear to constitute a fidei commissum of theone-fourth, the fidei cdhimissarii being the three children.”
Dantuwa v, Setuwa1 commented upon. Berth am C.J.—“Iventure to think that if the history of the law of fidei commissumas set out in Professor Lee's Introduction to Roman-Dutch Law,passage 318, had been fully considered, the result of that casemight have been different.”
r|pHE facts appear from the judgment.
The deed in question was as follows:—
The purport of the deed of gift written and granted at Kalugallaon December 1, 1862, is as follows, to wit:—
That though I, the hereunder signed, Halawatrallage Dingiri Menikaof Kalugalla in Deyala Dahamunu pattu of Kinigoda korale, belongingto .the Four Korales, being now only 25 years old, and though I am atpre§0nt ijxmy good and sound mind, yefcT do not think.myself that Ishall liye^ong in this- world, as I am suffering with a serious sickness,r^amely*, dysentery, and as my husband Dodonwelagedera Ukku Bandaof Hukwatta in Me da pattu of Tatinuwara is rendering me every assist-ance and help necessary for this said sickness, dysentery, through hjs
1 L1909) UN.L.R. 39,
1922,
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will and consent, and with the object of obtaining kindly from him infuture all and every kind of help as long as I live in this world, and
having thought it proper to make a transfer, whatever it may be, of Sethuhamya.the herein below-mentioned property (to which there is no better heir Ktri&andathan myself), thinking that disputes will be made for the same after mydemise, and to prevent such disputes that arise during my lifetime, andas my said husband TJkku Banda and son Kiri Banda were of greatassistance and help to me during the different kinds of sickness withwhich I was subjected to on various occasions, I do hereby transferover unto herein named my three children and my husband TJkku Bandathe following paraveni property which are uninterruptedly possessedby me, the said Dingin' Menika, for a period of six years up to date havingbeen entitled to me, through my deceased father Halawatbandararallagealias W attekorallage Banda Korala making them, the said husbandTJkku Banda and the three children bom to me, named Halawat-bandararallage Kiri Banda, Panchi Banda, and Bandara Menika, toinherit the said property, as they have no other landed property besidesthese to inherit, namely ….
Therefore, all the herein named high and low lands, gardens, andhouses, together with all the fruit trees standing thereon, including allother lands which are not mentioned here and which are of the valueof fifty pounds of the lawful money of Ceylon, have been gifted andtransferred over unto my said husband, Kiri Banda, Punohi Banda, andBandara Menika, together with all the power, right, title to and interestwhich I, the said Dingiri Menika, had over them having thus gifted andtransferred. It is hereby agreed that my husband, the said TJkkuBanda, should, until my said three children attain age, take care of thesaid property, and do the heedful in cases that wifi, be taken regardingthem, and my said husband may five on them and possess them, till hisdeath with my said three children, and at the deathbed of the husband- he should divide and give the said landed property among my threechildren. Therefore, with regard to this grant, neither I, nor any of myheirs or descendants or anybody else, could make any dispute whateverfrom this day, and that the said husband and three children—KiriBanda, Panchi Banda, and Bandara Menika—and their descendants,heirs, &c., of their estate, should do whatever they please with the saidlands, and possess them for ever as uninterrupted property.
Having thus empowered, this deed of gift was caused to be
written, &c.
Signed, witnessed, and attested.
Keuneman, for the appellants.
E. W. Jayawardenei for the respondents.
March 29,1922. Bertram C.J.—
This is a case which turns on the construction of a somewhatpeculiarly drafted deed. The deed purported to.be a deed of giftby one„ Dingiri Menika in favour of her husband Ukku Banda andher three children, Kiri Banda, Punchi Banda, and Bandara Menika.The plaintiffs ixtrthis case claim under a person said to BeTah heir ofthe three children. The defendants claim through the husband,
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1932*
C.J.
Setkuh'stny v.Kir^banda
Ukku Banda. The case has been decided without oral evidence,but on a reference to previous proceedings and admissions of theparties. There is a preliminary question of fact which has to bedealt with before we consider the construction of the deed. Thatquestion is whether one Bisso Menika, the predecessor in title of theplaintiffs, was, in fact, the daughter of Bandara Menika, and, there-fore, an heir of Bandara Menika and her two brothers. Tins is aquestion on which two views might be taken. But the learnedJudge, having sifted the previous evidence above referred to, finds,as a fact, that Bisso Menika was the heir of Bandara Menika and herbrothers, and I see no reason why we should disturb that finding offact. I will proceed, therefore, on the supposition that that findingof fact is correct.
We have now to deal with the construction of the deed. Thedeed disposed of some twenty-eight properties. After variousrecitals, it says: “ I do hereby transfer over unto herein named mythree children and my husband, Ukku Banda, the following paraveniproperty,9* and the grantor expresses her intention that her husbandand the three children should inherit the property. At & later stagein the deed she says: “ All the herein named high and low landshave been gifted and transferred over unto my said husband, KiriBanda, Punchi Banda, and Bandara Menika, together with all thepower, right, title to and interest which I, the said Dingiri Menika,had over them." .It is impossible to imagine clearer and morepositive words for the purpose of transferring the title to the pro-perties referred to in undivided shares of one-fourth each. Wemust take it, therefore, that that was the intention of the deed.
The words that cause trouble are to be found in a subsequent,clause, and the question is whether these words in any way limit theprevious operative words, and whether they either vest the husbandwith only a usufructuary right, or whether, on another interpre-tation, they create a fidei commissum. The clause contemplatesthree stages. The first is the minority of the children. The deedis executed presumably by husband and wife, and it is said to beagreed that Ukku Banda, the husband, should, until the threechildren attain age, take care of the property, and do what wasnecessary in the event of certain apprehended litigation. That wasthe first stage.
The second stage is from the time of the attainment of majorityof the three children to the death of Ukku Banda. During thatstage it is said that the husband shall live on the lands and possessthem till his death with the said three children.
Then comes the final stage. At the deathbed of the husbandhe is to divide and give the said landed property among the threechildren, and the question is what is the effect of this provisionupon the previous operative words. The first stage is unimportant.It merely directs the husband to look after the property during the
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minority of the children. With regard to the second stage, after 1922.the attainment of majority, it contemplates that the properties are n„Z!Zl– to be possessed in common until the death of the husband.o.J.
Mr. E. W. Jayawardene, for the plaintiffs, by a process of reason-(
ing which I cannot understand, wishes us to construe these words as Kiribandalimiting the husband’s right to a life interest in the whole property.
I cannot see how that interpretation could possibly be maintained.
It may, however, be said that the words do contemplate that theproperty shall not be alienated during the lifetime of the husband.
To that extent, perhaps, we ought to construe the words as consti-tuting a prohibition against alienation during the lifetime of theyhusband.
Now we come to the final words. It is said that at the deathbedthe. husband is to divide and give the landed property to the threechildren. What is the meaning of these words ? My brother hassuggested, and I think that the suggestion seems to throw somelight on the meaning of the deed, that the intention was that, untilthe. death of the husband, the properties were to be held in un-divided shares, but that at his death he must distribute the propertyin specie among the three children. A positive act is contemplated,and the most reasonable explanation of what is meant by thatpositive act seems to me to be a distribution in specie. But it isalso contemplated that that distribution shall include the one-fourth already vested in the husband by the operative words of thedeed. If this is the view to be taken, then the deed would appearto constitute a fidei commissum of that one-fourth, the fidei com-mi8Sarii being the three children.
Now, if that is the interpretation to the deed, what is the effect ofit ? AO three children predeceased their father. The one-fourthshare, therefore, vested in the father, ceased to be burdened by thefidei commissum, and he retained an absolute right in that one-fourth undivided share. The remaining three-fourths originallyvested in the three children passed to their heir. The result,therefore, is that the legal title was as regards the one-fourth inIJkku Banda, the husband; as regards three-fourths in Bisso Menika,the. heir of the three children.
But the plaintiffs made an admission which seems to me, in thisview of the deed, to dispose of their case. They admitted that forover forty years the property in question has been in the possessionof the defendants and their predecessors in title. Mr. Jayawardeneseeks to escape from the effect of that admission by saying that they,no doubt, may have been possessed, but that they possessed asco-owners, and consequently no prescription arises, -unless adversepossession is proved or presumed. But in this case there is thestrongest evidence of adverse possession. Ukku Banda for manyyears maintained a position entirely hostile to the claimants orthose claiming through the children. It is quite true that the basis
( 380 )
1922.
Bbbe&ak
CUP.
Seihuhamy
Kiribanda
on which he maintained this position is unfounded. He claimedto he in possession of the lands comprised in the deed by virtueof dam urwma, alleging that Bisso Menika was not a daughter ofBandara Menika. That claim, as I have said, is unfounded. Buthis possession was none the less adverse. Tt seems to me, therefore,that that admission, taken in conjunction with the attitude ofUkku Banda, establishes a case of prescription. It is quite truethat Ukku Banda parted with this particular property many yearsago in 1883. But the attitude of hostility I have referred to wastaken up with regard to the other property mentioned in the deed, .and I think that those who claim through Ukku Banda in regard tothis property are entitled to take advantage of that attitude for thepurpose of establishing their claim by prescription.'
I should mention a case brought to our notice by Mr. Jayawardene,and that is the case of DarUmoa v. Setuwa.1 There the words of thedeed were very similar to those which we are considering. Theproperty was conveyed to the wife and children in equal shares, andit was directed that the wife having possessed her share of theseveral premises should, at the approach of her death, grant andconvey the same unto the four children. It was held in that casethat this direction to the wife was inconsistent with the originalgift, and that the wife took an absolute interest in her share.
If that case were followed here, the result would be the same,that is to say, the husband, as co-owner, having an absolute right toa one-fourth by himself, and those claiming under, him by prescrip-tion would have enlarged that one-fourth to a right to the whole.I venture to think, however, that if the history of the law of fideicommissnm, as set out in Professor R. TT. Lee's Introduction toRoman-Dvick Law, passage 318, had been fully considered, theresult of that case might have been different. In any case, thedecision is only a decision of the words on the particular document.I prefer to deal with the case on the lines I have indicated. Thedefendants, therefore, having in my view established a title byprescription, I would allow the appeal, with costs, here and below.
Schneider J.—I agree.
Appeal allowed.
1 (1909) 11N. L. R. 39.