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TIAGARAJA et al. v. TAMBYAH.
D. C., Colombo, 10,759.
Donation—Construction of deed of gift—Intention of grantor.
Where T gifted a land to his son S with full dominium and after himto S’s son S T, with reversion to himself should he survive his son andgrandson, and where it was provided in the deed of gift that, if Scontract a Second marriage, his child or children by such marriage shallat S’s death become entitled to a sham in the said property equally withS T, and where S contracted a second marriage and had several childrenthereby, held, that the intention of the grantor was to give to the childof the first bed one-half of the property, and to the children of f.hesecond bed the remaining half.
N this action plaintiffs prayed for a declaration that Bix ofthem, as the grandchildren of one Tambyah Mudaliyar,
deceased, are entitled with the defendant to a one-seventh shareof two houses in Colombo. The facts of the case were notdisputed, and the only question for consideration was as to theconstruction of certain words used by the deceased owner in thetwo deeds relating to the two houses in question.
It appeared that one. Tambyah Mudaliyar executed on the 17thJuly, 1893, two deeds, by which he granted to his son Suppra-manian a life interest in the two houses after the grantor’s death.Each of these deeds contained seven conditions and provisos,only one of which was material to the present issue. At the dateof these deeds Si ppramanian was a widower, and had an onlychild, viz., S. Thambyah, the defendant. One of the clauses ofthe deeds made the defendant the reversioner in fee after thedeath of the grantor and life tenant. The sixth proviso, however.,stated that, if Suppramanian should contract a second or anysubsequent marriage, then “ his child or .children by such“ marriage shall at his death become entitled to a share in the“ said property equally with the said S. Thambyah ” (defendant).
The District Judge held that these words meant that defendantshould take one moiety, and all the plaintiffs together the remain-ing moiety; and that the distribution was to be per stirpes; andhe dismissed plaintiffs’ action with costs.
Layanl, A.-O. (with Wendt), for appellants.
Dornhorst (with him Sampaijo), for respondents.
Cur. adv. wit.
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4th September, 1899. 'Wmusns, J.—
The question in this ease is, like many legal questions, easier toask than to answer. A grandfather donated certain property tohis son Suppramanian Mudnliyar for life, and to his grandsonSuppraraanian Tambyah with full dominium, with reversion tohimself should he survive his son and grandson. But the deed
contain this proviso: “ Tf the said (son) shall contract
“ a second or any subsequent marriage, his child or children shall“ at his death become entitled to a share in the said property“ equally with the said Suppramanian Tambyah, but neither 'his“ second wife nor any subsequent wife, nor his heirs, nor any“ other person, shall be entitled to any share in such property“ at any time.”
Suppramanian Mudaliyar married a second time leaving issue,and the question is whether the child of the first bed is to takeone moiety of the property and the children of the second bedthe other moiety, or whether .the children of the two beds are totake share and share alike per capita ? The Acting DistrictJudge is not disturbed by any doubt on the matter, and is unableto see that there can be any reason for doubt. He has declaredthat the donor’s intention was to give the grandson SuppramanianTambyah, who was alive at the date of the donation, half theestate, and to let the children of the second bed, if any, take theother half. The language of the will is certainly capable ofbearing the District Judge’s construction.
There is very little in the context to assist us. Both partiesargued that the proviso following the one quoted favoured theirviews. This gave the property directly to any issue of a secondmarriage, if such issue was alive and the son and grandson weredead at the date of the donor’s death. But when we regard thestate of things existing when he signed this bequest, I think weshall be able to perceive his intention better. At that time therewere living the old man, his son Suppramaniam Mudaliyar, andhis son’s son Suppramanian Tambyah. It is clear, he hoped, thatthere would be descendants to take this property, but in casethere were no descendants he directed that the property shouldrevert to himself. He clearly intended that his grandsonSuppramanian Tambyah should take the whole of his propertyif the then boy’s father did not marry again. And then heprovided, as we have seen, that if his son should marry againthen his child or children by such marriage should at his deathbecome entitled to a share in the said property equally with thesaid Suppramanian Tambyah. He was so anxious that no oneelse, save his descendants, should have this property, that he
Aug tut 29and
September 4.Withers, J.
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excluded any wife by a subsequent marriage with his son . fromany interest in the property.
As the Acting District Judge observes, the words “a share" areused, and not shares in the instrument, indicating an intention tocut the property in two and give the child of the first bed one-half and the children of the other bed the other half. Thatintention conforms to the stirped division' by our Common Lawbetween children of different beds of property on intestacy. Ithink the District Judge’s judgment- is right, and ought to beaffirmed.
English cases were cited by both sides to support their respec-tive contentions, but the words of the instrument were not thesame, and, after all, the principle common to all these cases ishow to get at the testator’s intention. Perhaps the nearest is theEnglish case Alher v. Burton, 12 L. J. Cli. 16. Thomas Bartonbequeathed £800 to his executors upon trust to pay the yearlyinterest and produce thereof to his daughter Margaret during herlife for her separate use, and the testator disposed of the corpusthus: “ and immediately after her death I give the said sum of" £800 equally among her children and their representatives“ share and share alike.” Margaret had seven children, of whomonly one was then living with the petitioner. Of the six who diedin Margaret’s lifetime, five died without issue. The sixth childAnn had four children, of whom three were then living, and twoof them had issue. The fourth child of Ann was dead and hadleft children, who were living. The petitioner asked for a moietyof the fund. It was contended on the other side that the fundought to be divided into equal parts between the petitioner Ann’schildren and the grandchildren. But the Master of the Rollsordered that half the fund should go to the petitioner. Thatseems a still stronger case than the present, but I prefer to restmy judgment on other support.
The question is whether we should follow the strict wordingof the bequest, “ shall become entitled to a share equally with’’ S. J.,’’ or reud it ns meaning “ shall become entitled to shareequally,” &c. I had thought possible that might have been bysonic clerical or other error prefixed to “ share,” but- neither doesthe original deed, which was exhibited to us, warrant this sugges-tion, and the words " any share ” in the latter portion of thebequest indicate to me that “ share ” in (he clause is a substantiveand not a verb.
The proviso (7) I construe as a devise in the event of the deathof botli the son and grandson in the lifetime of the testator, andto be truly a provision to condition No. 5. It was not made ns aproviso against section '20 of Ordinance No. 21 of 1840, but toprovide against any intestacy as to the grandson’s moiety shouldhe predecease the testator.
With these remarks I adopt entirely my brother’s views, and seeno reason to disturb the decision.
TIAGARAJA et al. v. TAMBYAH