Siili Kadija v. dc Saram.
[In the Privy Council.]
1946 Present • Viscount Simon, Lord Ttaankerton and Sir John Beaumont.SJTTI KADIJA et al., Appellants, and DE SARAM et al.,Resnondents.Privy Council Appeal No. 39 of 1946.
S. C. 211—D. C. Colombo, 2,025.
Fidei commissum—Last will of Muslim—Difficulty of construction no impedi-ment if fidei commissum was intended—Difference between fidei com-missum and trust.
Where a will left by a Muslim contained the following clauses :—
“ I do 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 then-respective shares according to my religion and Shafie sect—to whichI belong, but they nor their heirs shall not sell, mortgage or alienateany of the lands, houses, estates or gardens belonging to me at presentor which I might acquire hereafter, and they shall be held in trustfor the grandchildren of my children and the grandchildren of myheirs and heiresses only that they may receive the rents income andproduce of the said lands, houses, gardens and estates withoutencumbering them in any way or the same may be liable to be seizedattached or taken for any of their debts or liabilities, and out of suchincome, produce and rents, after defraying expense for their sub-sistence, and maintenance of their families the rest shall be placed ordeposited in a safe place by each of the party, and out of such surpluslands should be purchased by them for the benefit and use of theirchildren and grandchildren as hereinbefore stated, but neither theexecutors herein named or any Court of Justice shall require to receive'them or ask for accounts at any time or under any circumstances,except at times of their minority or lunacy.
I farther desire and request that after my death the said heirs andheiresses or major part of them shall appoint along with the executorsherein named three competent and respectable persons of my classand get the movable and immovable properties of my estate dividedand apportioned to each of the heirs and heiresses according to theirrespective 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 coinmissum and that itsleading clauses were inconsistent with the structure of an Englishtrust.
“ Where there is doubt whether a fidei commissum, has been created,that construction should be preferred which will pass the propertyunburdened, but, if the language of the will is such as to show clearlyan intention to create a fidei commissum, mere difficulty of constructionwill not prevent its being upheld ”.
LORD THANK RRTON—Silti Kadija v. de Saram.
PPEAL from a judgment and decree of the Supreme Court. Thejudgment of the Supreme Court is reported in (1944) 46 N. L. R. 265.
N. Prill, K.C., and Stephen Chapman, for the appellants.
T. Le Quesne and B. K. Handoo, for the respondents.
January 21, 1946. [Delivered by Lokd Thankerton]—
This appeal arises out of an action of ejection by the first tworespondents against the appellants and the other four respondents. Theaction was dismissed by a judgment and decree of the District Court ofColombo, dated March 23, 1942, which were set aside by a judgment anddecree of the Supreme Court of the Island, of Ceylon, dated May 26, 1944,whereby decree of ejection and for damages were granted in fayour of thefirst two respondents, by a majority of three Judges to two.
The question at issue arises on the proper construction of the will,dated December 12, 1872, of one Isboe Lebbe Idroos Marikar, who diedon May 8, 1876, and whose said will was admitted to probate on May 29,1876. The relevant portions of the will are as follows :—
“ I do hereby will and desire that my wife Assenia Natchia, daughterof Seka Marikar, and my children Mohamadoe Noordeen, MohamadoeMohideen, Slema Lebbe, Abdul Ryhjman, Mohamadoe Usboe, AmsaNatchia and Savia Umma, and my father Uduma Lebbe Usboe Lebbe,who are the lawful heirs and heiresses of my estate shall be entitled toand take their respective shares according to my religion and Shafiesect—to which I belong, but they nor their heirs shall not sell, mortgageor alienate any of the lands, houses, estates or gardens belonging to meat present or which I might acquire hereafter, and they shall be heldin trust for the grandchildren of my children and the grandchildren ofmy heirs and heiresses only that they may receive the rents, incomeand produce of the said lands, hoases, gardens and estates withoutencumbering them in any way or the same may be liable to be seizedattached or taken for any of their debts or liabilities, and out of suchincome, produce and rents, after defraying expense for their subsistence,and maintenance of their families the rest shall be placed or depositedin a safe place by each of the party, and out of such surplus landsshould be purchased by them for the benefit and use of their childrenand grandchildren as hereinbefore stated, but neither the executorsherein named or any Court of Justice shall require to receive them orask for accounts at any time or under any circumstances, except attimes of their minority or lunacy.
I further desire and request that after my death the said heirs andheiresses 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 theirrespective shares, and get deeds executed by the executors at theexpense of my estate in the name of each of them subject to the aforesaidconditions.”
LORD T HANKERTON—Sitti Kadija v. de Saram.
The testator was survived by his widow and the seven children namedin the will; his father had predeceased him, but an eighth son, AbdulHa meed, had been bom after the date of the will, and also survived thetestator. The parties are agreed that the case should proceed on thefooting that the will applied to Abdul Hameed, as if he had been namedby the testator along with his other children in the will.
The movable and immovable estates of the testator were dulydivided as directed in the last clause of the will, and by deed datedFebruary 19, 1878, the then surviving executor conveyed to AbdulHameed, subject to the trusts and conditions of the will, which wererepeated verbatim in the deed, the properties which are the subject matterof the present suit, as Abdul Hameed’s share of the immovable propertiesof the testator. Abdul Hameed died on July 20, 1931, and the appellantsare the only two of his children who survive. The third, fourth, fifth,and sixth respondents are grandchildren of Abdul Hameed, children of adeceased sister of the appellants.
On May lo, 1931, Abdul Hameed had executed a mortgage of theproperties now in suit in favour of one Peter de Saram in considerationof a loan of Its. 30,000. Peter de Saram subsequently brought an actionon the mortgage in the District Court of Colombo against the legalrepresentative of Abdul Hameed, and, on Peter de Saram’s death on orabout April 23, 1937, the present first two respondents continued theaction as substituted plaintiffs, and, on November 26, 1937, the Courtentered a hypothecary decree in their favour. At the sale pursuantthereto the property was bought by the first two respondents, and aconveyance was executed in their favour by the Secretary of the DistrictCourt on July 7, 1938. Their right to possession of the property havingbeen disputed by the descendants of Abdul Hameed on the groundthat it was the subject of a fidei commissum under the will of the testator,and that Abdul Hameed had no interest in the property which he wascapable of mortgaging except an interest which terminated on his death,the first two respondents instituted the present action on January 30,1931, for a declaration that they were entitled to the property in suit,for decree of ejection and for damages.
The main question in the appeal is whether under the will a validfidei commissum of the property in suit was created, which disabled AbdulHameed from mortgaging any interest in the property after his death,or whether Abdul Hameed had an absolute interest in the property,which has become vested in the first two respondents by sale. Theappellants maintain that a valid fidei commissum was created by the will,which the first two respondents deny, maintaining (a) that the tetms ofthe will do not suffice to create a valid fidei commissum, (6) that the termsof the will, at best, rather contemplate the creation of a trust, whichwould contravene the rule against perpetuities, than the creation of afidei commissum, and (c) in any event, that uncertainty as to ascertainmentof the beneficiaries and the time of the vesting of their interests renders itimpossible to give effect to any fidei commissum.
This particular will has already been the subject of judicial constructionin four cases, in the first three of which it was held that it created a validfidei commissum ; in the fourth case, though it was decided on a different
1*— J.N. A. 60950 (4/46)
LORD THANKKRTON—Sitli Kadija v. de Sarant.
point, Soertsz J., on a review of the previous decisions, found difficultyin agreeing with them, and, if it had been necessary, would have askedfor reconsideration of them by a full bench. In the present case, theDistrict Judge, though he appears to have favoured a different view,felt bound by the previous decisions to decide in favour of a fideicommies urn. On appeal by the first two respondents, an order was madefor a hearing before five Judges, and on May 26, 1944, the appeal wasallowed by a majority of three Judges (Howard C.J., and Soertsz andHeame JJ.) to two (Keuneman and Wijeyewardene JJ.), and judgmentwas entered for the first two respondents. In view of that diversity ofopinion, their Lordships find unnecessary to refer to the four earlier cases,as Wijeyewardene J. was a party to the decision in the third case, andSoertsz J., as already stated, was the Judge in the fourth case, and alsobecause it appeals that the terms of the will, as they were submitted tothe Court in at least the first three cases, included the words “ issues orheirs ” in the clause prohibiting alienation, and there is no mention ofissue in the will as submitted in the present appeal.
Howard C.J. held (a) that there was a doubt whether there was crwas not a prohibition in perpetuity against alienation, (6) that there wasno certainty with regard to the beneficiaries, the class being too wide forascertainment and too vaguely described, for which reason alone thelearned Judge held that it had not been established that the testatorintended to create a fidei commissum, and (c) that he agreed with theopinion of Soertsz J. that there was a further difficulty with regard tothe time of vesting. Soertsz J. held (a) that there was a failure todesignate or indicate sufficiently the recipients of the testator’s bounty,and that the attempted fidei commissum failed in limine, (b) that the timeof vesting was also wrapped in similar doubt, and (c) that the language ofthe will rather contemplated a perpetual trust, which would fail becauseof the rule 8gainst perpetuities and also because of the uncertaintyas to the beneficiaries and the time of vesting. Hearhe J. arrived at theconclusions (a) that it was impossible to hold from the language of thewill that the testator intended to create a fidei commissum, (6) that, if hedid, he failed to achieve his object, the requisites of a validcommissumnot having been satisfactorily set out, (c) that the wording of the will,and the effect of its provisions strongly suggested an attempt to create atrust, in which attempt, if it was consciously made, the testator failed.
Of the two learned Judges who formed the minority, Keuneman J.held (a) that the intention of the testator to create a fidei commissumhad been expressed with sufficient clearness, (6) that the will showed anintention to benefit three classes of beneficiaries, viz., the devisees, theirchildren and their grandchildren, that the testator devised the immovableproperty to the devisees, burdened with a fidei commissum in favour oftheir children and grandchildren in successive generations ; and that thefidei commissum was to become operative on death in each case, and (c)that the interest given to the devisees more closely resembled the interestof a fiduciary as known to the Roman-Dutch law than the interest of atrustee as known in England, the occurrence of the word “ trust ” in thewill being inconclusive, and that he was not disposed to accept theargument that the will created a trust as known in England. Lastly,
LORD THANKEETON—Sitti Kadija v. de Saram.
Wijeyewardene J. held that by the opening clauses of the will the plenaproprietor was given to the immediate devisees, a prohibition againstalienation being then imposed, such burden being in favour of theirheir or heirs and grandchildren, the grandchildren being the ultimatebeneficiaries, the clause as to the rents, income and produce being merelyexplanatory of the preceding clauses and that by these clauses a validfidei commissum was created, there being nothing in the subsequent clausesto prevent the Court from holding in favour of & fidei commissum—inparticular, the clause as to disposal of the surplus rents, produce andincome not being legally binding on the devisees ; the learned Judgefurther held that the testator should not be taken to have intended tocreate an English trust.
The authorities as to the rules of construction which apply to thepresent question are fully quoted by the learned Judges of the SupremeCourt, and their Lordships do not find it necessary to repeat them,but the following general principles may be derived from them. In thefirst place, where there is doubt whether a fidei commissum has beencreated, that construction should be preferred which will passthe propertyunburdened, but, if the language of the will is such as to show clearlyan intention to create a fidei commissum, mere difficulty of constructionwill not prevent its being upheld. Doubt as to whether a valid fiideicommissum has been created includes such doubt as to the identity of thebeneficiaries as will prevent their ascertainment by a Court of law.However difficult their application may be in a particular case, thesegeneral rules of construction appear to be well established.
In the first place, their Lordships will dispose of the suggestion thatthe will suggests an attempt on the testator’s part to create a trust asknown in England. Their Lordships agree with Wijeyewardene J. thatthe use of the word “ trust ” in the will is quite inconclusive, as it is ascommonly used by writers in relation to fidei commissa, as to the Englishtype of trust. In the opinion of their Lordships the leading clauses ofthis will are typical of a fidei commissum, and are inconsistent with thestructure of an English trust. The main differences between fideicommissa and English trusts are correctly set out, in the opinion oftheir Lordships, in Professor R. W. Lee’s Introduction to Roman-DutchLaw (3rd ed., 1931) at page 372, vizt., “ (1) the distinction between thelegal and the equitable estate is of the essence of the trust; the idea isforeign to the fideicommissum. (2) In the trust, the legal ownershipof the trustee and the equitable ownership of the beneficiary areconcurrent, and often co-extensive; in the fideicommissum the ownershipof the fideicommissary begins when the ownership of the fiduciary ends.
In the trust, the interest of the beneficiary, though described as anequitable ownership, is properly jus neque in re neque"ad rem, againstthe bona fide alienee of the legal estate it is paralysed and ineffectual;in the fideicommissum the fideicommissary, once his interest has vested,has a right which he can make good against all the world, a right whichthe fiduciary cannot destroy or burden by alienation or by charge.”Professor Lee adds a fourth difference, which is not material here.
In the opinion of their Lordships the learned Judges, who formed themajority, have not given sufficient weight to the language of the leading
LORD THANKERTON—Sitti Kadija v. de Saram.
clause, under -which the testator’s heirs and heiresses according to theMohamedan law are to be entitled to and to take their respective sharesunder the law. In the opinion of their Lordships, the terms of theclause, along with the inclusion of the movable estate in the devise,which the devisees take absolutely, point clearly to a devise of the plenumdominium of the immovable estate to the devisees, subject to therestrictions so far as binding under the law of Ceylon, and make clearthat there is not any attempt to constitute a trust as known to the lawof England, but that there is an attempt to constitute fldei commissa,and the last clause which directs the separate ascertainment, after thedeath of the testator, of the shares to which the heirs and heiresses areentitled, points to a separate fidei commissum in the case of each devisee.The present case relates to the share of Abdul Hameed, which was soascertained, and conveyed to him.
In order to ascertain, if possible, who are the fiduciaries and who arethe fideicommissaries, it is convenient to read the next two clausestogether :—“ but they nor their heirs shall not sell, mortgage or alienateany of the lands, houses, estates or gardens belonging to me at present,or which I might acquire, and they shall be held in trust for the grand-children of my children and the grandchildren of my heirs and heiressesonly …. ” One of the learned Judges relates the final word
** only ” to the succeeding clause, but, while their Lordships do nottliink that it matters very much, they take the view that it mare naturallyqualifies the antecedent clause. Bearing in mind that the Mohamedanlaw only includes the nearest generation when referring to heirs, theirLordships are clearly of opinion that the words “ they nor their heirs ”in the clause prohibiting alienation cover two generations only, vizt.,the devisees and their heirs, and that there is no room for the suggestionthat the prohibition may be construed as a perpetual one. In the nextclause, the word “ they ” clearly relates to the immovable property,and the beneficiaries, in the opinion of their Lordships, relate to thethird generation in the case of all the devisees, the testator’s wife, aswell as his children ; the fact that the first words “ grandchildren ofmy children ” might have been satisfied by the words which follow—“ grandchildren of my heirs and heiresses ”— does not materially affectthe construction of the clause as stated by their Lordships. So far,their Lordships find language in the will apt for the constitution of avalid fidei commissum, and a sufficient statement of the beneficiariesand the benefits to be taken by them.
It is suggested that the succeeding clause as to the rents, income andproduce of the immovable property makes it difficult to uphold thecreation of a valid fidei commissum, but their Lordships are of opinionthat it is not legally binding on the fiduciaries, to whom alone it relates,and is therefore of a precatory nature ; in this they agree with the viewsexpressed by Keuneman and Wijeyewardene JJ. As regards theconstruction of the clause, their Lordships are of opinion (a) that itapplies to the devisees and their heirs, who are referred to in the clausewhich prohibits alienation, (6) that it relates only to surplus rents, incomeand produce, and to their incumbrance, and (c) that the purchase of
Amarasekera Appuhamy v. Mary Nona.
the surplus lands “ for the benefit and use of their children and grand-children as hereinbefore stated ”, sufficiently clearly expresses thedesire that the surplus lands should he held on the same terms as theoriginal shares of the testator’s immovable property were to be held.It is clear on the whole terms of the will that each of the fiduciaries wasonly to take an interest in his share during his life. The next clauseas to a demand for accounts, whether effective or not, cannot affect thevalid creation of a fidei commissum.
Finally, their Lordships agree with Wijeyewardene J. that Buchquestions as whether the share held by Abdul Hameed as fiduciarywould pass on his death to his heirs as a joint fidei commissum .or asseparate fidei commissa, are not destructive of the creation of a validfidei commissum by the will, but are questions as to devolution of theproperty which commonly arise for settlement by the Court on theproper construction of the will. Their lordships agree with the reasoningof the learned Judge on this point.
It follows that in the opinion of their lordships Abdul Hameed tookhis share of the immovable property subject to a valid fidei commissum,and that, accordingly, Abdul Hameed could not mortgage any interestin the property after his death, and that the first and second respondents’suit fails and should be dismissed.
Their lordships will therefore humbly advise His Majesty that theappeal should be allowed, that the judgment and decree of the SupremeCourt should be set aside, and that the judgment and decree of theDistrict Court should be restored. The first and second respondentswill pay the appellants’ costs of the appeal and their costs before theSupreme Court.