053-NLR-NLR-V-37-SIRI-KANTHA–et-al.-v.-THIAGARAJAH-et-al.pdf
270
Siri Kantha o. Thiagarajah.
1935Present: Poyser and Koch JJ.
SIRI KANTHA et al. v. THIAGARAJAH et al.
163—D. C. (Inty.) Colombo, 27,716.
Fidei commissum—Property sold under partition decree—Fidei commissumnot disclosed—Proceeds in Court—Application to draw proceeds.
Where property subject to a fidei commissum is sold under a partitiondecree without the existence of the fidei commissum being disclosed andthe proceeds are deposited in Court,—
Held (on an application by the assignee of a party bound by the fideicommissum to draw the proceeds) that the fidei commissum attached tothe proceeds in Court.
^f^PPEAL from an order of the District Judge of Colombo.
The appeal was by the ninth defendant, an assignee of the interests ofthe eighth defendant, one of the fiduciaries under a will creating afidei commissum. The property devolving under the will formed thesubject of a partition action in which the Court ordered a sale but did notrefer to the fidei commissum or give directions as to the manner in whichthe proceeds were to be conserved for the benefit of the fideicommissaries.
The property was sold and the proceeds were brought into Court.
The assignee moved to draw the proceeds deposited in Court and theapplication was opposed on behalf of the eighth defendant.
The learned District Judge ordered that the proceeds should remain inCourt subject to the'fidei commissum.
H. V. Perera, (with him Subramaniam), for appellant.—The will of 1834does not create a fidei commissum. An examination of the words used inthe will reveals that the meaning is not clear. Even if the will creates afidei commissum it does not extend up to the fourth generation. Thewords used clearly show that the prohibition against alienation is bindingonly on the persons named in the will and no further. The will wasproduced at the trial, and the learned trial Judge entered a partitiondecree for sale and made no order reserving the rights of thefideicommissaries. The rights of parties now flow from the decree. Thedecree entered must be taken to be an adjudication regarding the existenceor otherwise of the fidei commissum.
N. Nadarajah (with him S. J. V. Chelvanayagam), for respondent.—Itis too late to contend that the will does not create a fidei commissum.This will was interpreted to contain a fidei commissum in S. C. 163—D. C.Col. 28,982 (vide Min. of S. C. 12.11.1909). The wording of the will is
KOCH J.—Siri Kantha v. Thiagarajah.
271
clear (30 N. L. R. 266). This will was executed before the Entail andSettlement Ordinance of 1871, and therefore the question of the periodduring which the fidei commissum is to last must be decided accordingto the principles of Roman-Dutch law. Ordinarily a fidei commissumextends to four generations. (Pereira’s Laws of Ceylon, p. 436.) Apartition decree does not wipe out a fidei commissum. (Jayawardene onLaw of Partition, p. 205.) The decree entered—this did not refer to thequestion of fidei commissum. No issue was raised by the parties andthere was no adjudication by the Court. A fidei commissum cannot bewiped out by merely mentioning same in the plaint, and obtaining adecree without any reference to same. A partition decree does not wipeout a fidei commissum whether same was disclosed or not. (Baby Nona v.Silva’, Abeysundere v. Abeysundere", Weeraman v. Silva’.)
Cur. adv. vult.
September 11, 1935. Koch J.—
The dispute in appeal mainly centres round the point whether the jointwill of one Supramaniam Chetty Thiagappa Chetty and his wife, Nagamma,creates a fidei commissum, and if so, to what degree of descent does itextend. The learned District Judge after careful consideration of theterms and conditions of this will has decided that it does create a fideicommissum and that the fidei commissum does extend up to and includingthe fourth generation. The will was executed in October, 1834, a littleover a hundred years ago, so that the second matter for consideration willbe governed by the Roman-Dutch law and not by the enactments in thelater Entail and Settlement Ordinance, No. 11 of 1876.
I think I can with confidence assert that the view consistently taken inCeylon based on the Roman-Dutch law is that where a fidei commissumhas been created by an instrument executed before the Ordinance fetteringthe power of alienation of the devisees or the donees, as the case may be,and their descendants, the fetter binds such devisees and donees and thethree generations following; but the generation thereafter will succeedto the property unfettered and absolutely. There are numerous decisionsto this effect. The learned Judge’s view therefore on this point is correct.Is he equally right in his construction of the terms of the will and theconclusion he arrived at? I am of opinion that he is. Considering thatthe document we have to construe is a will, the fullest effect should begiven to the author’s intentions.
In paragraph 5 of this will the testator and his wife devise certainproperty absolutely to the son and daughter of the first marriage and thetwo sons of the second.
In paragraph 6 they proceed to create what the respondent contends isa fidei commissum in respect of the Bankshalls and other landed property.The property concerned in this appeal is Bankshalls.
The testator and testatrix, after providing for a division of theseproperties into shares, direct that these properties should be inherited inthese shares by these four children, and after further providing for themanner of their enjoyment during their lives, enjoin them not to alienatetheir shares, but that after their deaths these shares should devolve on.i 9 N. L. R. 261 at p. 26G.- 12 N. h. R. 373.
a 22 N. L. R. 107.
272
KOCH J.—Siri Kantha v. Thiagarajah.
their descendants “ in the same proportion They also direct that ifany of them “ should die without issue, the share of such person shall beadded to the others Mr. H. V. Perera contends that “ others ” meanthe devisees. I am willing to assume he is right, but this makes nodifference to the intention to create a fidei commissum. I am of opinionthat the necessary requisites of a fidei commissum. are present.
It may be of interest to remark that in a previous case No. 28,982 ofthe District Court of Colombo the interests that passed under this self-same will came to be considered. The disputants in that case concededthat the will contained a fidei commissum, and the presiding DistrictJudge—Mr. Justice Drieberg—dealt with the shares on this footing.
There was an appeal to this Court and the appeal was dismissed. Thisis shown by the order of this Court in S. C. No. 163—D. C. (Inty.)Colombo, No. 28,982 (S. C. Minutes of November 12, 1909). It does notappear definitely that the existence of a fidei commissum was specificallyconsidered by this Court, presumably not, but if so, for the good reasonperhaps that it was always regarded by all persons interested that thiscentury old will did create a fidei commissum.
It is now necessary to state what the actual dispute in this appeal isand how it transpired. Several Bankshalls, i.e., properties in Bankshallstreet, Sea street, and Chekku street, were the subject of a partition inthis case. The plaint recited this will and its terms in allotting sharesto the respective parties. The fact that the will created a fidei com-missum was not specifically recited. Two answers were filed and thisfact again was not referred to in either of them. Evidence was calledand the will marked and read in the proceedings. The learned DistrictJudge thereupon ordered a sale but did not refer to the fidei commissumor give any directions as to the manner in which the proceeds were to beconserved for the benefit of the beneficiaries, except that the decreecontained the following:—“The proceeds to be brought into Court to bedistributed amongst the said parties in the shares as aforesaid.” Theproperties were duly sold and the proceeds brought into Court.
It is contended by Mr. H. V. Perera that the words “ to be distributedamongst ” necessarily meant to be divided up and drawn out I am notquite so sure that one need necessarily go to that length. It is possibleto argue that that order merely meant that as the proceeds represented theland those proceeds were to be divided up accordingly to the shares allottedto the parties respectively, non sequitur that they could be drawn out. Itis true that if nothing prevented the drawing out this might be done, butif it became patent to the Court before the proceeds were drawn out thatthe property sold was subject to a fidei commissum, I feel that the Courtwould be justified in preventing the money being drawn out, thus con-serving it for the protection of the beneficiaries. The purchasers of thelands sold, however, will acquire them absolutely and free of the fideicommissum.
The eighth defendant, one N. Mahadeva, along with the first, second,third, fourth, fifth and seventh defendants, represents the fourth gene-ration. Their interests therefore are subject to the fidei commissum. He(the eighth defendant) is said to be a lunatic and the respondent is the
MAARTENSZ J.—Bandaranayake v. Appusingho.
273
manager of his estate. He, before his adjudication as lunatic, it wouldappear, assigned his interests to Natchiappa Pillai, the ninth defendant(the first appellant) who mortgaged his interests to one VenugopalMudaliyar. The second appellant is the assignee of the interests of theninth defendant.
The respondent on May 25, 1932, moved the Court to direct notice taissue to him before any part of the proceeds was drawn by anyone. On-June 20, 1932, the journal entry reads, “Let notice of Mr. Ramachandra’sapplication (manager’s) dated May 5, 1932, be issued on all partiesreturnable for July 4 ”. This order was complied with. The ninthdefendant (first appellant) moved to draw the eighth defendant’s shareof the proceeds out. This was objected to by the eighth defendant’smanager (respondent). The points I have already dealt with werediscussed. A further point was also argued, and that was whether,assuming there was a fidei commissum and the proceeds were conse-quently subject to its terms, the ninth defendant could be affectedthereby. The learned District Judge was of opinion that the assignee(ninth defendant) could not be in a better position than the assignor(eighth defendant). I think the District Judge was right in this view also.His order that the proceeds of sale should remain in Court subject to thefidei commissum is in the circumstances correct, and the appeal must bedismissed with costs.
This being the result of the appeal, it is hardly necessary to deal withMr. Nadarajah’s (respondent’s counsel's) preliminary objection, viz., thatthe appeal is not in order as other interested parties on the record havenot been made parties to the appeal.
Poyser J.—I agree.
Appeal dismissed.