055-NLR-NLR-V-41-SINNAN-CHETTIAR-v.-MOHIDEEN-et-al.pdf
1939
Sinnan Chettiar v. Mohideen.
225
Present: Moseley A.C.J. and Wijeyewardene J.
SINNAN CHETTIAR v. MOHIDEEN et al.
116—D. C. Colombo, 549.
Fidei commissum—Intention of testator expressed or implied—Fidei commissaand trusts-—Vesting of property in fideicommissary-^Death of fiduciary—Right of fideicommissary to sue.
Where a last will contained the following clauses: —
I hereby will and desire that my wife …. children
…. and my father …. who are the lawful heirs and
heiresses of myl estate shall be entitled to and take their respectiveshares according to my religion and Shafie sect to which I belongbut they nor their issues or heirs shall not sell, mortgage or alienateany of the lands, houses, estates or gardens …. and they shallbe held in trust for the grandchildren of my children and the grand-children of my heirs and heiresses only that they may receive the rents,income of the said lands, &c., without encumbering them in any wayor the same may be liable to be seized, attached or taken for any, of theirdebts or liabilities; and out of such income, produce, and rents, afterdefraying expenses for their subsistence and maintenance of theirfamilies the rest shall be placed or deposited in a safe place by eachof the party and, out of such surplus, lands should be purchased forthe benefit and use of their children and grandchildren as hereinbeforestated.
I further desire and request that after my death the said heirsand heiresses or major part of them shall appoint along with theexecutors herein named three competent and respectable personsof my class and get tbe movables and immovables of my estatedivided and apportioned to each of the heirs and heiresses according totheir respective shares, and get deeds executed by the executors at theexpense of my estate in the name of each of them subject to theaforesaid conditions.
Held, that the will created a valid fidei commissum and that the testatorintended that the property should devolve on the immediate devisees andtheir children subject to a fidei commissum in favour of the grand-children of the immediate devisees.
The event on the happening of which the property devolves on eachsucceeding set of fideicommissary heirs is the death of the immediateprevious fiduciary who last entered into the possession of the property.
The prohibition against alienation contained in the will does notoperate to make the alienation of the property," in spite of such prohibi-tion. the event which determines the vesting of the nronertv. Ill
IllJ. K. B 17627(5/52)
226
Sinnan Chettiar v. Mohideen.
T
HE plain tiff-respondent claimed to be the owner of certain premisesand sought for a declaration of title to them and for damages.
The premises originally belonged to one Isubu Lebbe Idroos LebbeMarikar, who by his last will P 1 devised the premises and several otherpremises to his father, to his wife, and to his children.
The last will was admitted to probate (P 2) after the testator’s de%thon May 8, 1876. The executors in terms of the last will by deed P 3 of1878 conveyed the property in question to the testator’s daughter,Amsa Natchia, who by deed P 4 of 1912 gifted the same to her daughterMajida at her marriage. Majida and her husband by deed P 5 of 1925sold and transferred the prenjises to the first defendant-appellant and toone Suppiah Che tty. Suppiah Che tty by deed 1 D 1 of 1932 transferredhis interests to the first defendant-appellant. The plain tiff-respondentand the second, third, and the fourth defendants-respondents are thechildren of Majida.
The plaintiff-respondent claimed that P 5 executed by Majida was inviolation of the terms of the last will P 1 and that upon the execution ofP 5 the property vested in the plaintiff-respondent and his sisters, thesecond, third, and fourth defendants-respondents. He further askedfor damages for the wrongful possession of the first defendant-appellantfrom 1925 up to the time the plaintiff-respondent was himself put inpossession.
The District Judge held that P 1 created a fidei commissurn bindingfor four generations, that P 5 was in violation of the terms of P 1 and thaton the execution of P 5 the property vested in the plaintiff, respondentand his three sisters.
Thiagalingam (with him T. H. Curtis), for the first defendant,appellant.—The last will created no fidei commissurn. The will wasintended to create and did create a “ trust ”. Under our system bothfidei commissa and trusts Were recognized at all times. The trust createdhere, however, is bad as it offends the rule against perpetuities. The caseof Sabapathy v. Yusooj1 was wrongly decided.
The fidei commissurn, if any, was created by the executor’s conveyanceand not by the last will. The last will gave directions to the executorswhereby executor’s conveyances were to be made out subject to thefidei commissurn indicated in the last will. The document of title is notthe last will but the executor’s conveyance. The executor’s conveyancewas executed in 1878 after the Entail and Settlement Ordinance, No. 11 of1876, came into operation. In the result, the fidei commissurn, if any,created by the executor’s conveyance cannot bind anyone who was notin existence or en ventre sa mere at the same time such conveyance wasexecuted. Thus Majida got absolute title to the property free fromall burdens.
In construing a last will one is concerned with giving effect to theintention of the testator. The testator desired to benefit each successivegroup of his descendants. The property is given to the immediatedevisees and their heirs and issues. The prohibition against alienationis the usual notarial adjunct found in Ceylon deeds creating a fidei corn-mis sum. Nothing is to happen on a breach of this prohibition. In the
* 37 if. L. p. so.
Sinnan Chettiar v. Mohideen.
227
absence of express words indicating when the fideicommissaries are totake the inheritance the dominium must be deemed to pass on the deathof the fiduciary heirs.
See Saidu v. Samidu ', Sitty Naina v. Gany Bawa *, Rodrigo v. Perera *,and Voet 36.1.62.
The claim is for damages consequent on wrongful possession. Thisfalls under section 9 of the Prescription Ordinance, No. 22 of 1871.Minority does not suspend the running of prescription against a personwho is entitled to sue for damages. (See sections 13 and 14.) Thereforethe plaintiff-respondent cannot sue for damages for more than two yearsprior to the date of institution of the action. (.1871 Vander Straaten 212.)
N. Nadarajah (with him M. M. I. Kariapper), for the plaintiff, respond-ent.—A valid fidei commissum was created by the last will P 1 and by theexecutor’s conveyance P 3. The Supreme Court has decided this byconstruing the same will in two earlier cases. See 37 N. L. R. 80. (Saba-pathy v. Yusoof.)
The fidei commissum is created by the last will P 1 and not by theexecutor’s conveyance P 3. P 3 is merely the formal conveyance by theexecutors. The testator died in May, 1876, before the Entail and Settle-ment Ordinance came into operation. Therefore Majida took the propertysubject to a fidei commissum in favour of her children, the plaintiff-respondent and his three sisters.
When a fiduciary alienates property in violation of the terms of theinstrument under which he took, the fideicommissaries are called to the -inheritance immediately, even though there is no express stipulation tothat effect. Therefore the first defendant-appellant is not entitled toMajida’s life-interest in the property. See Sande on Restraints, p. 224;Voet 36.1.4; Walter Pereira, p. 431.
In a case of wrongful possession the claim is one for mesne profits orrent and not one for damages. The claim will not fall under section 9 ofthe Prescription Ordinance, No. 22 of 1871. The case reported in 1871Vander Straaten 212 was decided before the introduction of Ordinance22 of 1871.
Thiagalingam, in reply.—The view taken in Sabapathy v. Yusoof(supra) as to when the fideicommissary heirs are called to the inheritanceis wrong. The determination of the questions raised in that case didnot involve a finding on this point. In a later case, however—D. C.Colombo, 50,221—S.C.293 (F) — (where again the point was not specificallyraised) a different view was taken.
There is a difference of opinion among Roman-Dutch jurists as to theeffect of a breach, by a fiduciary, of a prohibition against alienation.McGregor in his note to Voet 36.1.4 says that the South African courtshave in no instance followed what seems to be Voet’s or Sande’s view.Walter Pereira, however, quotes Sande with reference to the case of afidei commissum conditioned to take effect on the breach of a prohibitionagainst alienation. Here we have the case of an ordinary fidei commissumin favour of a family with no indication as to what is to happen on theact of alienation by the fiduciary.
1 23 N. L. R. 506.'’ 32 N. L. R 155.
* 24 N. L R. 420 at p. 424.
228
WIJEYEWARDENE J.—Sinn an Chettiar v. Mohideen.
The fact that 1871 Vander Straaten 212 was decided before OrdinanceNo. 22 of 1876 and under the old Prescription Ordinance in no waywhittles down the effect of that decision. The difference drawn there wasbetween^ mesne profits and damages. The difference still exists. Asbetween landlord and tenant one speaks of rent, as between co-owner andco-owner one speaks of mesne profits, as between trespasser and trueowner one speaks of damages. A claim for damages as distinguishedfrom a claim for rent or mesne profits is barred in two years.
Cyril E. S. Perera (with him Dodwell Gunewardana), for the secondto fifth defendants, respondents.
Cur. adv. vult.
October 16, 1939. Wijeyewahdene J.—
The questions that arise for determination on this appeal depend onthe construction of the last will of Isubu Lebbe Idroos Lebbe Marikardated December 12, 1872.
The relevant provisions of the last will P 1, are as follows: —
“ (a) I hereby will and desire that my wife …. and mychildren …. and my father …. who are the lawfulheirs and heiresses of my estate shall be entitled to and take theirrespective shares according to my religion and Shafie sect to whichI belong, but they nor their issues or heirs shall not sell, mortgage oralienate any of the lands, houses, estates or gardens …. andthey shall be held in trust for the grandchildren of my children and thegrandchildren of my heirs and heiresses, only that they may receivethe rents, income and produce of the said lands, houses, gardens, andestates without encumbering them in any way or the same may beliable to be seized, attached or taken for any of their debts or liabilitiesand out of such income, produce, and rents after defraying expenses fortheir subsistence and maintenance of their families the rest shall beplaced or deposited in a safe place by each of the party, and out of suchsurplus, lands should be purchased by them for the benefit and use oftheir children and grandchildren as hereinbefore stated ….
“ (b) I further desire and request that after my death the said heirsand heiresses or major part of them shall appoint along with the executorsherein named three competent and respectable persons of my class andget the movable and immovable properties of my estate divided andapportioned to each of the heirs and heiresses according to their respectiveshares, and get deeds executed by the executors at the expense of myestate in the name of each of them subject to the aforesaid conditions. ”The last will P 1 was duly proved in Testamentary Case No. 3,909of the District Court of Colombo and probate P 2 was issued to thesurviving executor on May 29, 1876. Acting in terms of the provisionsof clause (b) of the last will P 1, the executor conveyed the property formingthe subject-matter of the present action to the testator’s daughter AmsaNatchia by deed P 3 of February 19, 1878, subject to the terms andconditions contained in the last will. By deed P 4 of November 22,1912, Amsa Natchia purported to gift the property to her daughterMajida Umma who by deed P 5 of January 3, 1925, conveyed her interests
WIJEYEWARDENE J.—Sinnan Chettiar v. Mohideen.229
under P 4 to the first defendant and one Suppiah Chetty. By deed 1 D 1of June 3, 1932, Suppiah Chetty conveyed his interests to the firstdefendant.
Amsa Natchia died leaving three children, one of whom is MajidaUmma who is still alive. The plaintiff and the second, third, and fourthdefendants are the children of Majida Umma.
The plaintiff ^contends that the last will P 1 created a' fidei commissumand that the "first defendant is not, therefore, entitled to the propertyas against him.
The District Judge held that the last will P 1 created a fidei commissumand entered judgment in favour of the plaintiff for an undivided share ofthe property and for damages from January 3, 1925, and costs. Thepresent appeal is preferred by the first0 defendant against that judgment.
The appellant’s contention is that the last will created a trust and nota fidei commissum, that the trust so created is void as it offends the ruleagainst perpetuities and that, therefore, he became entitled to the propertyunder deeds P 5 and 1 D 1.
The last will P 1 was executed before the Entail and SettlementOrdinance 1876 (Legislative Enactments, Volume 2,. Chapter 54), cameinto operation on June 15, 1877. The question whether a fidei commissumis created by the last will has therefore to be determined according to theprinciples of Roman-Dutch law.
There are no particular words necessary for the creation of a fideiccrmmissum (vander Linden 1.9.8). It matters not what words are usedprovided they express the legally valid intention of the testator whodesires to create a fidei commissum. In a fidei commissum the only thingthat is taken into account is the intention of the testator and it is not onlyhis verbally expressed intention that is looked to but also that intentionwhich is tacit and may be deduced from the words used as a necessary ormanifest consequence (Censura Forensis 1.3.7.7.8). Our Courts haveadopted the principle that the document should be looked at as a wholein order to ascertain whether a fidei commissum was created and that,where the intention to create a fidei commissum was clear, effect shouldbe given to such intention though the document might contain expressionsinconsistent with a fidei commissum [vide Wijetunge v. Wijethnge1and Mirando v. Coudert *]. This principle should be followed all the morereadily when the document which has to be construed is a last will.
Now clause (a) of the last will set out by me earlier in the judgmentshows that the testator intended that his estate- should in the firstinstance devolve on his heirs according to the Muslim law to which hewas subject but that such heirs should not get the estate absolutely.This limitation of the rights of the immediate devisees is evidenced bythe provision that they shall not sell, mortgage or alienate the propertiesand could only receive the rents, income, and produce of the propertiesfor their maintenance. The last will further indicates the persons who,according to the testator, should succeed the immediate devisees in theenjoyment of the property. The persons prohibited from alienatingthe property are not only the immediate devisees but “ their issues orheirs ” and in the penultimate paragraph of clause (a) the position is made1 (1922) 15 -V. L. R. 49::.1 {1916) 19 N. L. R. 90.
230
WIJEYEWARDENE J.—Sinnan Chettiar v. Mohideen.
all the clearer when the testatpr provides that out of the surplus incomederived from his estate the immediate devisees should buy lands for thebenefit of “ their children and grandchildren as hereinbefore statedThe last will, moreover, indicates in unambiguous language that the grand-children of the immediate devisees should be regarded as the ultimatebeneficiaries. I have no doubt that the testator intended that the propertyshould devolve on the immediate devisees and their children subject toa fidei commissum ultimately in favour of the grandchildren of the imme-diate devisees. The children of the immediate devisees would not, ofcourse, be regarded as being called to the inheritance along with theimmediate devisees but would succeed them in the same order as observedin intestate succession (Censura Forensis 1.3.7.17). I think the last willsets out the position with sufficient clearness, though perhaps the intentionof the Muslim testator was expressed rather clumsily by the Sinhalesenotary in a language that was foreign to both of them. It was pointedout by de Sampayo J. in Craib v. Loku Appu 1 that in construing docu-ments of this nature it was necessary to bear in mind that the draftsmanwas a Sinhalese notary who was endeavouring to imitate conveyancingphraseology without duly considering its relevancy to the matter inhand and that it would not be wrong to attribute any apparentincoherence to the notary’s want of care and skill rather than to anyuncertainty on the part of the person executing the instrument.
1 am not prepared to attach any importance to the use of the words“ shall be held in trust ” and regard the words as indicative of an intentionon the part of the testator to create a trust as known to the Englishlaw. In Henry’s translation of vander Linden among the differentkinds of fidei commissa are mentioned (a) a reciprocal trust when twopersons are each mutually effected with a trust for the other, and (b) atrust of the residue as when the heir is charged, in case he died withoutissue, to suffer the residue of the property at his death, to pass to a thirdperson. Again in discussing the difference between a fidei commissumand a usufruct we find the following passage in Walter Pereira’s Lawsof Ceylon (1904 ed.), vol. II., p. 340
“ An heir affected with a trust has a real though burdened right ofproperty and thus differs from him who has a mere usufruct in thesubject of which the naked right of property is in the meantime leftto another.”
Our local reports themselves contain decisions of this Court wherethe Judges have used the terms “fidei commissa” and trusts as inter-changeable terms.
It is no doubt true that in the ordinary course of development of ourlaw to meet the requirements of modern life the English Law of Trustswas received into the law of the country, but it is equally true to saythat the people of this country showed little or no inclination to haverecourse to the system of trusts as known to the English law when theyproceeded to execute instruments, which were generally of a testamentarynature, to regulate the devolution of their estates. It would be takingan unreal view of the circumstances under which P 1 was executedif we were to assume on the slender ground furnished by the use of some
1 (1918) 20 N. L. R. 449.
231
WUEYEWARDENE J.—Simian Chettiar v. Mohideen.
terms in the last will, that the notary vjho was perfiaps less ignorantof the law of Fidei Commissa than of the Law of Trusts brought his mindto bear on the special significance of the terms of conveyancing he used anddeliberately selected the word " trust ” with the idea of creating a trustas defined in our Trust Ordinance, No. 9 of 1917, in order to give legaleffect to the instructions given to him by the testator. Moreover, ifthere is a need to justify the use of the term “ trust ”, it is perhaps notdifficult to discover a reason in the fact that the immediate deviseesunder the last will and their chidren were required by the testator toaccumulate the surplus income from the lands and invest such surplusin the purchase of property to be held on the terms and conditions setout in the last will.
The last will P'l has been construed by this Court in two earlier cases(Sabapatky v. Mohamed Yusooj et al.' and in 293. D. C. ColomboNo. 50,221 (Supreme Court Minutes, June 29, 1938) and, if I may sayso, I respectfully agree with the learned Judges who expressed the viewin these cases that the last will P 1 created a valid fidei commissum.
There remain however further questions to be considered. Has thefirst defendant obtained no interest whatever in the property by virtueof P 5 and 1 D 1 even though the last will created a fidei commissum asdecided by me ? Has the plaintiff any such interest in the propertyas will enable him to maintain the present action ? The answers to thesequestions involve the determination of the question as to the time whenthe fideicommissary interest created by the joint operation of the lastwill P 1 and the executor’s conveyance P 3 would devolve on the plaintiff.
The last will P 1 as I have already stated operates to give the pro-perties first to the immediate devisees, then their children and ultimatelythe grandchildren who would get the properties absolutely. In termsof the last will, deed P 3 was executed giving the particular property inquestion to Amsa Natchia subject to the terms and conditions set outin the last will. Therefore Amsa Natchia and her daughter MajidaUmma would, during different periods, be the fiduciaries while the plaintiffand others claiming on the same footing as himself would be the ultimatebeneficiaries of the property. Now the last will provides that AmsaNatchia and her issues and heirs shall not alienate the property but thatout of the income she and her issues or heirs shall “ defray expenses fortheir subsistence and maintenance of their families ” and the propertyshall be held in trust for the grandchildren of Amsa Natchia. The eventon the happening of which the property devolves on each succeeding set offideicommissary heirs is the death of the immediate previous fiduciarywho last entered into the possession of the property. The prohibitionagainst alienation contained in the last will does not operate to makethe alienation of the property in spite of such prohibition, the eventwhich determines the time of vesting of the property. If the alienationof the property was the event on which the fidei commissum was to takeeffect, then if in fact there was no alienation the property would not havevested on the ultimate beneficiaries but would have formed a part of theestate of the fiduciary on the death of the fiduciary. The plaintiff
1 (1935) 37 N. L. R. 70.
232
WIJEYEWARDENE J.—Sinnan Chettiar v. Mohideen.
himself would not say that such a result flows from the absence of anyalienation by the fiduciary in the present case. The position is clearlyset out in the following passage from Walter Pereira’s Laws of Ceylon(1904 ed.), vol. II. pp. 320, 321
“ When anything is alienated against the express prohibition of thetestator, those persons in whose interest the prohibition has been madeare immediately called to the fidei commissum (Sande de Proh. al3.6.1).
“ This proposition is liable to be misunderstood. The fidei com-missum here referred to is a fidei commissum induced by a prohibitionagainst alienation coupled with an indication of a person to benefitin the event of such prohibition being disregarded. Ordinarily thereneed be no prohibition against alienation for the purpose of constitutinga fidei commissum, although in the creation of a fidei commissum inCeylon such prohibitions are usually inserted. I give my propertyto A subject to the condition that it is become B’s property after thedeath of A, I create a complete and effectual fidei commissum. In sucha case a prohibition against alienation is a mere superfluity, becauseA cannot interfere with B’s right, and he cannot therefore alienate theproperty. All that he can alienate is his own interests in it whichterminates at his death. In such a case if A executes a deed purportingto alienate the property, B may recover it from the purchaser as soonas his right accrues, that is, after the death of A whatever length oftime may elapse since the alienation, no prescription beginning to runagainst him until the accrual of such right (Voet 36. 1. 64 : Marsh 192.See proviso to section 3 of Ordinance No. 22 of 1871). If however I givemy property to A prohibiting him from alienating it, and providing thatin the event of alienation the property is to go to B, here too a fideicommissum will be created, but the event on the happening of whichthe property is to vest in B is not the death of A but the alienation of theproperty by A. If A does no act in contravention of the prohibitionagainst alienation, the property wiU never vest in B. It will go to A’sheirs after his death; but the moment A does such an act, B wouldipso facto become the owner of the property. The reference in thepassage cited above from Sande’s to such a fidei commissum ”.
Though therefore the deeds P 5 and 1 D 1 have been executed in vio-lation of the condition which prohibited the alienation of the property, yetthe first defendant is entitled to possess the property during the lifetimeof Majida Ununa and no right to the property vests in the plaintiff untilthe death of Majida Umma. The plaintiff therefore cannot maintainthe action.
I would therefore allow the appeal, dismiss the plaintiff’s action, andorder the plaintiff to pay the first defendant the costs of the appeal andthe costs of the proceedings in the District Court.
Moseley A.C.J.—I agree.
Appeal allowed.