112-NLR-NLR-V-51-THINORIS-DE-SILVA-Appellant-and-WEERASIRI-et-al-Respondents.pdf
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WIJEYEWARDENE C.J.—-2'hinari8 de Silva v. Weerasiri
1949Present: Wijeyewardenc C.J. and Basnayake J.
TH1N0RIS DE SILVA, Appellant, and WEERASIKI et al.,Respondents
S. C. 363—D. C. Gaik, 35,919
XViU—Fklei commissura—Testator's devise to tiro sons—“ After tkeir death " theproperty to pass to "their lawful children"—Time nt which the propertydevolved on the Jideiconvnissaries—Distributive interpretation of the word" their
A testator devised u land to his two sons A and P. The will imposed aprohibition against alienation and further provided: (1) “In the event of thedeath of either of my said two sons without lawful issue I do horaby directthat the survivor shall become entitled to the share of tbo one so dying ”, (2)“ After their death their lawful children shall become entitled to the sameabsolutely
A died unmarried and without children. It was contended that on A’e deathP bocaroo entitled not Absolutely bat, under a fidei commiisum, only to a lifointerest in A’a half share.
Held, <i) that on the death of either A or P the half share given to the personso dying would devolve absolutely on his lawful children;
(ii) that as A died without lawful children the half share dovised to himwent to hia brother P absolutely.
Appeal from an order of the District Court, Gallo.
FI. V. Perera, K.C., with U. A. Jayasundera, K.C., and Vernon Wije-tunge, for plaintiff appellant.
N.E. Weerasooria, K.C,, with FI. A. Chandrasena and W. D. China,sekera, for tho intervonionts respondents.
6'ur. adv. vult.
October 11, 1949. Wijbyewardene C.J.—
One Don Frederick Weerasiri was the original owner of a land calledMedawatte. By Last Will PI he devised his property to his two sons,Ariyadasa and Piyatileke, subject to certain conditions. The LastWill was duly proved at his death. Subsequently Ariyadasa diod un-married and without children. By deed P2 of 1936 Piyatileke conveyedto tho plaintiff the half share which, he alleged, devolved on him abso-lutely on the death of Ariyadasa. The intervenients, who are the widowand children of Piyatileke, contested the titlo of the plaintiff to thisland on the ground that, on tho death of Ariyadasa, Piyatileke becameentitled to that share subject to a fidei co;nmissum and that-, therefore,Piyatileke could transfer to the plaintiff only his life interest in that halfshare. The present appeal is from tho judgment of the District Judgeupholding the contention of the intorvenients.
468 WUEYEWAROENE C.J.—Thinoria da Silva v. Wta-anrl
The clauses of PI which have to bo considered are clauses 8, ft, 10 an
12.
By clause 8 the testator devised to Arivadasa and Piyatileke his resiting land Medawatt© and soveral other lands. By clause 12 he providethat the devisees should have the right to enter into possession of fthese proportios and take tho incoino only after the death of his wido’Clause 9.—“ In the event of the death of either of my said two sowithout lawful issue I do hereby diroct that tho survivor sh»become entitled to the share of the one so dying.”
Clause 10.—(a) “ I hereby will and direct that my said two scshall only have the right to enjoy the rents, issues and pro!derived from my residing land Medawatto and all tho buiings thereon devised to thorn by clauso 8 of the Will."
(6) “They shall not soli, gift, mortgage or otherwise alienate;encumber the same or lease the same for any period exceedtwo years at a time and ”
(c) “ After their death their lawful children shall become ontitto the same absolutely."
I have dividod clauso 19 of the Will into paragraphs (a), (b) andfor convenience of reference.
Now under clauses 8 and 12 Ariyadasa and Piyatiloke would hbocomo each, entitled to an undivided half share of Medawatto subto tho life interest of the widow of the testator. Under those claalone thero would have been no right of survivorship (vide sectiontho Wills Ordinance). Then we get clauso 9 which says that ondeath of either Ariyadasa or Piyatileke without lawful issue the survshall become entitled to the share of the one so dying. If this clstood by itself the question would have arisen whether the Lastcreated a fid&i commtssum in favour of tho lawful issue. In other wtif Ariyadasa had lawful issue and Ariyadasa transferred hie shaia third party, could the rights of that third party have boon dofeby the lawful issue of Ariyadasa claiming that half share ae fidoimissaries on the death of Ariyadasa ? This is a matter on whiclviews of Grotius and Byukershook are opposod to the viows of Sand van Leouvon (Censura Forensis) as adopted in SteenkanMarais1. The latter case is however criticised by A. J. McGregvolume 53 of the South African Law Jourual (1936), page 265, aalso in conflict with the view expressed by Loe in his latrofato floman-thitch J aw, fourth edition, page 380. It is clausethe Last Will that puts the matter beyond any doubt in this cas(
I shall now proceed to examine clause 10 in detail. Paragrajshows that Ariyadasa and Piyatileke could only take the incomeMedawatto “ devised by clause 8 of the Will ”, It will be note<the words used in this paragraph are “ devised by clause 8 of thoand not “ devised by clauses 8 and 9 of tho Will This panshows that Ariyadasa and Piyatileke were each given only tho iof the half share devised by clause 8 but tho testator was silent i1 (1006) 26 S C. 438.
WIJEYEWARDENE C.J,—TKinoria da Silva v. Wetraairi 4*5**
sub-paragraph with regard to the extent of the interest in the half sharethat came to the survivor of Ariyadasa and Piyatileke under clause 9.The paragraph (&) prohibited Ariyadasa and Piyatileke from makingcertain alienations again in respect of what has been devised to themby clause 8 of the Will. Those two paragraphs (a) and (h) taken bythemselves would not have boon sufficient to create a jidei commissum(vide section 3 of the Entail and Settlement Ordinance). It is paragraph(c) which indicates the fideicoramissarios clearly. The quostion, how-ever, arises as to the time at which the property devolves on theao fidei-commissaries. When do the lawful children referred to in paragraph(c) become entitled to their interests absolutely ? Suppose Ariyadasadied first leaving “ lawful children ” and Piyatileke died 40 years after,leaving “ lawful children ”. Have the “ lawful children ” of Ariyadasato wait for forty years after the death of their father or do they come inimmediately after the doath of Ariyadasa ? Tho answer to that questionwill depend on tho interpretation of the words “ after their doath ” and“ their lawful children ” in paragraph (c). Do those words moan “ afterthe death of both ” and “ the lawful children of both ” or do they mean“ after the doath of each ” ami “ the lawful children of each ” '{ Of coursethe question whether the word “ their ” is to bo interpreted distributive^depends to a large extent on the context. Considering that we arcdealing hero with a devise in favour of two sons and not in favour ofa husband and wife and taking into consideration tho provisions ofclause 8 I think that the -word “ their ” is used in this Will distributivcly(vide Abayeratne v. Jagaris1).
After a consideration of the various clauses in the Last Will includingthose mentioned by me earlier I have reached the decision
(<z) that tho testator gave a half share of Mcdawatto to each of histwo sons, Ariyadasa and Piyatileko, subjoct to a life interestin favour of his widow;
(6) that the devisees, Ariyadasa and Piyatileke, had aftor the deathof the widow, only a life interest in tho half share so given toeach;
that on the death of either Ariyadasa or Piyatileke the half share
given to tho person so dying would devolve absolutely on hislawful children;
that if Ariyadasa and Piyatileke died without lawful children, the
half share devised to tho porson so dying would go to hissurviving brother absolutely.
I find, therefore, that tho plaintiff is entitled to a half share of theland absolutely by virtue of the transfer P2.
I set aside the order of the District Judge and direct him to entera partition decree in accordance with the above finding.
The mtervonients-respondents will pay the plaintiff-appellant thecosts of appeal and the costs of the proceedings in the District Courton October 8, 1947.
‘IJ924) 26 N.L.R. JSl.
470
Tftt King t>. Sefvanaycigam
After I wrote the above judgmont my attention was drawn by mybrother Basnayake to Rees v. Registrar of Deeds et. al l. and Ex parteBosch2. The reasoning in theso casos appears to support the viewexpressed above.
Basnayake J.—I agreo.
Order set aside.