130-NLR-NLR-V-22-THYAGARAJA-v.-THYAGARAJA-et-al.pdf
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Present: Ennis A.C.J. and Shaw J.THYAGARAJA v. THYAGARAJA el al.196 j5—D. C. Colombo, 159.
Fidei commissum—Deed inter vivos— Gift subject to condition- that ifdonee died issueless, property to go to another person or his heirs,dhc.—Is widow entitled {o a share ?—“ Heirs, executors, andadministrators," .
By a deed inter vivos N gifted the land in dispute to his daughterK, her heirs, executors, and administrators, subject to the conditionthat she shall not sell or mortgage or otherwise alienate the saidproperties, and that in case K died issueless, the property wasto devolve on N and his wife, and in case they had predeceased her,then in that case the property was to vest in T or his heirs, executors,&c., under the like conditions. N and his wife'and T predeceasedK, who died issueless.
Held, that T had a contingent interest, and on his death his heirssucceeded to his contingent rights, and that- as T’s widow was anheir of T she was entitled to a share of the property.
33
1921.
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1921.
Thyagaraja
v.
Thyagaraja
* I TELE facts are set out in the judgment of the District Judge(L. M, Maartensz, Esq.), which waft as follows :—
The premises forming the subject of this action, No. 4, Main street,and another property, were gifted by the admitted owner SivakurunadaMudaliyar Namasivayam Mudaliyar to his daughter Kamalamba, herheirs, executors, and administrators, by deed No. 2,637, dated September6, 1889, subject to the following conditions, namely :—
“ That she shall not sell, mortgage, or otherwise alienate the saidproperties, nor can her life interest therein be sold-or alienated for herdebt or that of her husband, but she shall enjoy the rents and profits ofthe said properties …. " (here follows a clause providing
that;the donor may purchase other properties and transfer them to thedonee, in lieu of the properties in question, and that the donee shouldre-transfer these properties to the donor, which is not relevant to theaction), “and in case the said Namasivayam Mudaliyar Kamalamba wereto die issueless then , either the said two properties or the property thatshallbe purchased and given to her shall devolve on me, the said (donor)*and my wife Sinnachi Amma, and in case weboth predecease her, in thatcase the said property shall vest in our son Namasivayam MudaliyarTyagarajah, or his heirs, executors, administrators, under the like condi-tions and restrictions, and in case he were to depart this life issueless,then the same shall vest in our daughters Swarnachi and Tangamma, ortheir heirs, under like conditions and restrictions.’* The rest of theclauses are not material to the issues.
The provision for transferring other property to tne donor were notgiven effect to, and need not be considered.
The donee has died, without issue, leaving her husband surviving her.has so far not asserted a claim to share in the property. The donorand his wife predeceased her. The substituted heir, Tyagarajah, hasalso died leaving a widow, the plaintiff, and the first, second, third, fifth,and sixth defendants, his children, by the plaintiff.
The plaintiff claims half the premises as an heir of her husband: Theclaim is denied by all -the children, on the ground that her right tosucceed to a share of the property, as heir of her husband, is excluded bythe terms of the deed of gift. The first issue formulates the question tobe decided, and is as follows :—
“ Did plaintiff on death of Kamalamba become entitled to any shareof the property in dispute under deed 2,637 of September 6, 1889.”Tyagarajah should be substituted for Kamalamba.
Plaintiff’s counsel conceded that plaintiff would not have beenentitled to share in the property if Tyagarajah had died issueless, as in. that case the clause substituting his sister’s heirs would have takeneffect. He contended, however,that plaintiff was entitled to share withthe issue by virtue of the words-“ of his heirs, executors,and adminis-trators,” following the name of Tyagarajah in the clause substitutinghim as heir.
The argument in support of this contention was that effect must begiven to these words under th6 rule that effect should be given to all theprovisions of a gift or will, if possible, and that if plaintiff was excludedfrom a share there would be a distinct contravention of the terms of thiseclause.
There was, lie submitted, no inconsistency in the use of these;wordsthe intention of the donor being that if there'was no issue the property
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should pass to the substitutes, but if there were issues, the mother ofsuch issues should share with the children.
This argument did not consider the possibility of Tyagarajah beingtwice married-and leaving a widow who was not the mother of thechildren.
The reply to this argument was that the donor intended to providefor the children of the successive donees and intended to exclude allother heirs.
I do not see how any other construction can be placed on the deed ofgift. It was executed in 1889, long before that time when the use of thewords “heirs, executors, or administrators” became the subjeot ofcontroversy in these Courts.
Bonser C.J. gave effect to such words in the case of Hormu&jee v.Casaim,1 because the donor who intended to create a fidei com-missurn had not designated the persons for whose benefit it was created.In later cases this proposition was given a more extended effect. Pererav. Fernando.2
I have no doubt that these words “heirs, executors, and administra-tors ” were a mechanical addition by the draughtsman. A notary or hisclerk, habitually draughting deeds of conveyance, would addsuch wordsunconsciously.
The more recent cases Wijetunga v. Wvjetunga3 adopted the principlethat the proper way of constructing an instrument was to give effectto the intention of the testator so.far as it could be clearly ascertainedfrom the terms of the instrument and treat words inconsistent with thisintention as unnecessary.
I am of opinion that the intention of the donor can be clearly ascer-tained from the terms of the deed of gift in question, and that hisintention was to create a fidei commissum for the benefit of the issue ofKamalamba, and, failing issue, he substituted Tyagarajah as heir underthe same conditions for the benefit of Tyagarajah’s children.
I am of opinion that the words “ or heirs, executors, or administra- .tors ’ ’ are clearly inconsistent with the intention, and should not be giveneffect to.
I accordingly answer the issue in the negative, and dismiss plaintiff’saction with costs.
The deed of gift was as follows :—
! tto. 2,637.
Whereas I, Sivakurunada Mudaliyar Namasivayam Mudaliyar ofColombo, at the treaty for the marriage of my daughter NamasivayamMudaliyar Kamalamba with Tambyya Mudaliyar Sanmugam Mudaliyarof Marandhan, Colombo, agreed to give her as a dowry landed propertyto the value of Rupees Twenty thousand (Rs. 20,000), which agreementwas hitherto unfulfilled:
And whereas I am now desirous of fulfilling the said agreement:
Now know all men by these presents' that I, the said SivakurunadaMudaliyar Namasivayam Mudaliyar, in consideration of the marriageof the said, Namasivayam Mudaliyar Kamalamba with the said Tam-byya Mudaliyar Sanmugam Mudaliyar, and for other causes and con-siderations, me hereunto specially moving, have given, granted, assigned,transferred,and set over, as T doherebygive,grant, assign,transfer,and1 {1896) 2 N. L. R. 190.* 6 Leader 12.
* 1912) 15 N. L R. 493.
1921.
Thyagaraja
v.
Thyagaraja
{ 430 )
1921.
tyhyagaraja
v.
Thyagaraja
set over onto the said Namasivayam Mudaliyar Kamalamba, her heirs,executors, and administrators, as a dowry or gift, as agreed to at thetreaty of the said marriage, the following properties, to wit:—
To have and to hold the said premises with all and singular theappurtenances thereof or thereunto in any wise belonging to the valueof Rupees Twenty thousand (Rs. 20,000) unto the said NamasivayamMudaliyar Kamalamba and her aforewritten forever, subject, howeverto the condition that she shall not sell, mortgage, or otherwise alienatethe said properties, nor can her lileinterest therein be sold or alienatedfor her debt or that of her husband, but she shall enjoy the rents andprofits of the said properties until another property worth Rs. 20,000shall be purchased and given to her on the same conditions and re-strictions by me, the said Sivakurunada Mudaliyar NamasivayamMudaliyar, or my heirs, executors, or administrators, when the aforesaidtwo properties shall vest in • me, the said Sivakurunada MudaliyarNamasivayam Mudaliyar and my wife Sinnachchi Amina, or my heirs,executors, administrators, or assigns; and the said NamasivayamMudaliyar Kamalamba, or her heirs, executors, or administrators, shallexecute a valid and marketable deed of transfer in favour of me, thesaid Sivakurunada Mudaliyar Namasivayam Mudaliyar, or my heirs,executors, or administrators, free from all encumbrances, and in case thesaid Namasivayam Mudaliyar Kamalamba were to die issueless, theneither the said two properties or the property that shall be purchasedand given to her shall devolve on me, the said Sivakurunada MudaliyarNamasivayam Mudaliyar and my wife Sinnachi Amina; and in casewe both predecease her, then in that case the said property shall vest inour son Namasivayam Mudaliyar Tyagarajah, or his heirs, executors,or administrators, under the like conditions and restrictions, and in casehe were ti> depart his life issueless, then the same shall vest in ourdaughters Swarnachi and Tangamma, or their heirs, under like con-ditions and restrictions; and in case there are no heirs to succeed to theirrights, then the same shall vest in Nadarajah Wala SupramaniaSwami Kovil in Ana Kotte in Jaffna for the maintenance of the chatramand daily pusha under the like conditions and restrictions.
And further, the said Namasivayam Mudaliyar Kamalamba, or herheirs, executors, or administrators, shall not be entitled to any furthershare from my estate or the estate of my wife.
And I, the said Sivakurunada Mudaliyar Namasivayam Mudaliyar,do hereby covenant, promise, and agree to, and with the said Namasiva-yam Mudaliyar Kamalamba, her heirs, executors, and administrators,that the said premises are freefom encumbrances, and that I and myaforewritten shell and will always warrant and defend the same untoher and them against any person or persons whomsoever.
And I, the said Namasivayam Mudaliyar Kamalamba, do herebythankfully accept the above dowry or gift, subject to the aforesaidconditions.
H. J. C. Pereira, K.G., and Drieberg, K.C. (with them Samara-toickrema and Canakeratne), for appellant.—Tyagarajah becamethe absolute owner on the death of Kamalamba without issue.
The deed created a fidei commismm conditionale. (MaeChegor.)OnTyagara jah’sdeath, his heirs became entitled to the property.The appellant, who is a widow, is entitled 16 one-half.
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Bawa, K.O. (with him E. W. Jayawardene and Croos-Dabrera),for respondent.—By the deed the property was given to Kamalambasubject to a fidei commissum in favour of the donor and his family.On the death of Tyagarajah (the donor’s son) the property devolvedon his children. “ Heirs ” means those descended from the donor.2 0. W. B. 26; 3 C. W. B. 58; 20 N. L. B. 89.
Tyagarajah died before Kamalamba. On the death of a fideicommissary before the fiduciary, the fidei commissum lapses.
Sctmarawickreme, in reply.—This is a deed of gift and not a will,and Tyagarajah had an expectancy of succession, and on his deaththat expectancy passed to his heirs.1
Cur. adv. vult.
March 2, 1921. Ennis A.C.J.—
The facts in this case are as follows. In 1889 one NamasivayamMudaliyar executed a deed of gift to liis daughter Kamalamba ofcertain property by way of dowry. The parts of the deed materialfor the consideration of this case are:—■
“ I do hereby give …. unto …. Kamalamba,her heirs, executors, and administrators, as a dowry or gift, as agreedatthetreatyofthesaidmarriage,thefollowing properties ….To have and to hold …. unto the said ….Kamalamba and her aforewritten for ever, subject, however, to thecondition that she shall not sell, mortgage, or- otherwise alienatethe said properties, nor can her life interest therein be sold oralienated …. In case the said …. Kamalambawere to die issueless …. the property …..shall devolve on me .. . . and my wife . ..
and in case we both predecease her, then in that case theproperty shall vest in our son …. Tyagarajah, or hisheirs, executors, and administrators, under the like conditionsand restrictions, and in case he were to depart this life i'ssueless,then the same shall vest in our daughters Swamachi and Tangamma,or their heirs, under like conditions and restrictions; and in casethere are no heirs to succeed to their rights, then the same shallvest in . .. . . Kovil ….. under the like conditions andrestrictions.”-'
The donor and his wife and their son. Tyagarajah predeceasedKamalamba, who died issueless. Tyagarajah left a widow, theplaintiff in the case, and children, the defendants in the case.
The learned Judge held that the words “heirs, executors,'andadministrators ” were a mechanical addition by the; draughtsman,and should not be given effect to. He held that it was the intentionof the donor to create a fidei commissum for .the benefit of theheirs of Kamalamba, and he dismissed the plaintiff’s action withcosts. The plaintiff appeals.
1 (1911) 14 N. L. R. 193. 2 Burge.
1921.
Thyagaraja
v.
Thyagaraja
f 438 >
1921.
Ennis
A.C.J.
Thyagaraja«.1
Thyagaraja
The learned Judge has dealt with the case as if the documentwere a will, and not a conveyance inter vivos. It is a question ofgiving effect to the terms of an agreement between the parties, andnot as in the case of a will of giving effect to the intention of thedonor. The terms of an agreement must be strictly construed.As a conveyance inter vivos the plena proprietas vested immediatelyin Kamalamba as fiduciary. Tyagarajah had a contingent interest,and on his death his heirs succeeded to his contingent rightsMohamed Bhai v. Silva.1
The plaintiff is one of the heirs of Tyagarajah, and is thereforeentitled to succeed on the appeal. I would allow the appeal, withcosts, and give judgment for the plaintiff with damages as agreed,and with costs.'
Shaw J.—I agree.
Appeal allowed.