TILLAKARATNA et al. Appellants. and DE SILVA et al. Respondents

008-NLR-NLR-V-49-TILLAKARATNA-et-al.-Appellants.-and-DE-SILVA-et-al.-Respondents.pdf


TUlakaratna v. de Silva.
25
1947Present: Soertsz S.P.J. and Canekeratne J.
TILLAKARATNA et al., Appellants, and DE SILVA et al., Respondents.S. C. 19—D. G. Matara, 16,229.
Partition action—Land subject to fidei commissum—Fractional shares in interlocutory 'decree declared subject to entail—Omitted in final decree—Sale of divided block—Fights of fidei commissaries—Bona fide purchaser without notice.
Where in the interlocutory decree in a partition action there is an expressreservation of a fidei commissum which however is omitted in the final decree,the fidei comn.issum still attaches to the property and the purchaser of adivided block takes it subject to the fidei commissum. In such a case the questionof notice does not arise.
Quaere, whether the equitable principle of the English law of a purchaserfor value without notice can be applied to the case of property which is subjectto a fidei commissum for the reason that a fidei commissary in Roman andRoman-Dutch Law was invested with a real right and could follow his propertywherever he might find it.
Obiter : The Legislature contemplated only one decree in a partition action,namely, that provided expressly as a decree in section 4.
^^PPEAL from a judgment of the District Judge of Matara.
H- V. Perera, K.C. (with him R. N. lUangakoon), for the plaintiffs,appellants.—In Tillekeralne v. Abeyesekera1 Lord Watson observed thatfidei commissa are not necessarily extinguished by a Partition. Section9 of the Partition Ordinance has the effect of making “ conclusive ”as against every other title that may be asserted the title that is actuallyput forward and recognised by the Court. If a fiduciary or a non-fiduciary asserts the fidei commissum title and the Court recognisesthat title, then that title is made conclusive as against all other titleswhether or not the fidei commissum is mentioned in the decree or not.If, however, a fiduciary or a non-fiduciary puts forward a non -fideicommissum title, as for example, a title by prescription, and the Courtrecognises that title, then that title is made conclusive and thefidei commissum will be of no effect. But, in the latter case, where afiduciary is allotted a portion in severalty, the principles of the TrustsOrdinance will produce a result similar to that in the former type ofcase because he will have to hold the property on a constructive trustfor the benefit of the fidei commissaries.
In the present case the title put forward by the parties and foundto be established by Court was the fidei commissum title—vide the plaintin the partition action and the interlocutory decree. Through inadvertenceon the part of the Court it is not mentioned in the final decree. The“ final judgment ” under section 6 is really a mere confirmation by Courtof the scheme of partition proposed by the Commissioner on the basisof the rights of the parties declared in the interlocutory decree.
Under the Roman and Roman-Dutch Law fidei commissa in theirultimate form had attained the status of rights in rem. When theLegislature wanted to set out a method of extinguishing fidei commissa itwent to the length of enacting a special Ordinance—The Entail and Settle-ments Ordinance—and an elaborate procedure for achieving that object.
1 (1897) 2 N. L. B. 313.
8 – N.L.R. Vol – xlix
26
TiUakaratna v. de Silva.
In Babey Nona v. Silva1 one fiduciary purchased the portion allottedto another fiduciary under a partition decree and was held to hold theproperty subject to the fidei commissum. The basis of the decision■was that the title investigated and recognised in the partition actionwas the fidei commissum title and was not that, being a fiduciary himself,he was a purchaser with notice of the fidei commissum.
Macdonell C.J. in Kusumawathie v. Weerasinghe2 expressed an opinionthat the fiduciary in Babey Nona v. Silva was a purchaser with notice.That opinion has had a certain effect on later cases.
The doctrine of a purchaser without notice, however, applies only inthe case of rights in personam such as trusts but not in the case of rightsin rem such as fideicommissa—vide Lee’s Introduction to Roman-DutchLaw, 3rd Edition, pages 372-373.
The view contended for is not inconsistent with the later judgments.Assuming that the doctrine of purchasers without notice applies therespondents’ predecessor in title had notice of the facts of this.case.
There was no issue to justify the trial Judge’s finding that the deedsfrom the fiduciary prevailed over the unregistered partition decree. Inany event, the necessity for registration does not apply in the same way toa partition decree as to instruments inter partes since the decree prevailsby its own inherent power—vide Bernard v. Fernando3. The respondentsthemselves claim under the partition decree and they cannot be heardto contend that it is good only for a certain purpose. The respondentsrelied on the non-registration of the partition decree only on the questionof whether their predecessors had notice.
Crossette TKambyah (with him Vernon Wijetunge), for the defendants,respondents.—The final decree entered in the partition action conferredon Walter Clement an absolute title free of the fidei commissum—Theconclusive effect given by section 9 of the Partition Ordinance relatesto the final decree entered under section 6 of that Ordinance. Thishas been laid down in a number of cases. See, for example, Peris v.Per era* and Catherinahami v. Babahamy5.
The preliminary decree under section 4 of the Partition Ordinancemay be varied or modified. In so far as the final decree in express termsconfers an absolute title on the parties and in variation of the title subjectto a fidei commissum referred to in the preliminary decree, this changemust be deemed to have been deliberate. It should be noted thatneither the last will nor the probate were produced in evidence andfiled of record. The Judge who entered the final decree had no materialplaced before him on which he could have held that a fidei commissumattached to the land and therefore decreed an absolute title.
The fidei commissum not having been reserved in the final decree andwhich alone an intending purchaser is expected and likely to examinehe is entitled to the protection afforded to a bona fide purchaser withoutnotice. The District Judge has found that the defendants are bonafide purchasers without notice. As pointed out by Macdonell C.J.in Kusumawathie v. Perera 6 a fidei commissum does not rim with the land
(1906) 9 N. L. R. 251.
(1932) 33 N. L. R. 265.(1913) 16 N. L. R. at p. 439.
(1896) 1 N. L. R. 362.(1908) 11 N. L. R. 20.(1932) 33 N. L. R. 273.
SOERTSZ S.P.J.—Tilldkaratna v. de Silva.
27
so as to bind a purchaser for value without notice. This_ view was.followed in the case of Anees v. Bank of Chettinad1.
On the question of registration, the partition decree, on which the*appellants base their title, not being registered, the purchasers fromWalter Clement are entitled to the benefit of the priority conferred bythe Registration Ordinance to the extent of the adverse interest createdby the transfer deeds in favour of the defendant-purchasers. Theadverse interest in conflict is the interest claimed by the fidei commissaries.See Mohamad Ali v. Weerasooriya *.
The decree not being registered purchaser’s absolute title must prevail.The non-registration of tho partition decree does not render it absolutelyvoid—but void quoad the adverse interest claimed by the defendantpurchaser, i.e., the right to hold the land free of the fidei commissum—Fonseka v. Fernando 3.
V. Perera, K.C., replied.
Cur. adv. vult.
November 28, 1947. Soertsz S.P.J.—
The appellants sued the respondents for declaration of title to a certainblock of land which, according to their case, had been allotted by decreeentered in a partition suit, to one Walter Clement Tillekeratne whosefidei commissary heirs they claimed to be. Their cause of action was thatthe defendants-respondents were in unlawful possession of this land,setting up title to it on the ground that Walter Clement had, by virtueof that partition decree, become absolute owner of the land and, as such,had conveyed it by two d°eds of sale to one Adirian through whom,they asserted, the land had, by transfer, devolved on them. WalterClement’s title prior to the partition decree was, avowedly, the titlehe derived under the Last Will and Testament of his parents who devisedthis land and other lands to their children with a fidei commissum infavour of “ their children and grand-children unto generationsThe parties are agreed that the will created a valid fidei commissumbut they are at issue in regard to the effect of the decree entered in thepartition case on the fidei commissum. The appellants contend thatthe title which Walter Clement derived from that decree continuedsubject to the fidei commissum while the respondents maintain that,inasmuch as the “ final decree ” entered in the partition case made noreference to the fidei commissum, Walter Clement’s title became anabsolute title ; as a second line of defence, they plead that Adirian, thepurchaser of Walter Clement’s title, was a purchaser for value withoutnotice of the fidei commissum, and was, therefore, unaffected by it.The questions that arise from these contentions have to be considered,and answered in the light of a long series of decisions which have settledthe law to be that property subject to a fidei commissum may be parti-tioned either by agreement or by judicial decree among the co-owners,co-owners being interpreted to include fiduciaries. Partition by agree-ment of parties can hardly create any difficulty, for the resulting titlecan be no better or no worse than the pre-existent title. But partition
1 (1941) 42 N. L. R. 436.* (1914) 17 N. L. R. 417.
(1912) 15 N. L. R. 491.
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SOERTSZ S.P.J.—Tillakaralna v. de Silva.
by judicial decree, generally speaking, in virtue of the wide terms ofsection 9 extinguishes all pre-existing titles and creates a new title.The question is whether it extinguishes fidei cotntnissa as well or leavesthem unaffected.
Now, when we say that land subject to a fidei commissum may bepartitioned, we must, of course, be understood to mean land that isbrought for partition as land admitted or, at any rate, claimed to besubject to a, fidei commissum, and not land brought up in a suit for parti-tion with either studied or inadvertent omission to mention the fideicommission. I venture to think that Lord Watson had this in mindwhen, in the course of delivering his opinion in the Privy Council in thecase of TillekercUne v. Abeysekera1, he observed that “ a partition doesnot necessarily destroy a. fidei commissum ”. When a land is partitionedon the footing that it is land subject to a fidei commission, generallyspeaking, the divided lots continue to be subject to the fidei commissutn ;but where a'land, in reality, subject to a fidei commissutn is, for somereason or other, partitioned without disclosure of the fidei commissum,tho fidei commissutn must be deemed to have been destroyed by the forceof section 9. Logically, this may not be very satisfactory but, now thatit is too well settled that land subject to a fidei commissutn may be parti-tioned, it is the most reasonable form of compromise between the widerange of section 9 of the Partition Ordinance, and the Roman and Roman-Dutch Law concept of a fidei commissutn as investing the persons con-cerned with a real right to the land. In Bobey Nona et al. v. Silva2Lascelles A.C.J. and Middleton J. held that where a land subject toa fidei cotntnissum is partitioned, the fidei commissutn attaches to theportions allotted to the parties to the suit, whether or not the fideicommissutn is reserved in the decree. The Acting Chief Justice said :■—“ By no reasonable construction of the Ordinance can it be held that theeffect of a partition decree is to enlarge the life interest of the fiduciariesinto absolute ownership ”. This view has been questioned from timeto time but, in this case, it is not necessary to examine it because, inthe view I have formed in the light of the facts of this case, there wasan express reservation of the fidei commissutn in the decree entered inconformity with section 4 of the Ordinance. That decree declared thefractional shares to which the parties were proved to be entitled “ subjectto the entail laid down in the last will No. 15,140 of January 26, 1867,and filed in Testamentary Case No. 645 of this Court ”. The nextstep taken in the case was the appointment of a Commissioner for thepurpose of dividing the land into separate blocks. The Commissionercarried out his Commission and made his report to the Court and, there-upon, what is named as a “ Final decree ” was entered by a Judgeother than the Judge who had entered the Preliminary decree. In that“ decree ” (see P 4) there is no reference to or no reservation of thefidei commissum. The fifth defendant’s portion is made subject to alease and the other portions are given to the other parties “ as absoluteowners It is upon this ro-called “ final decree ” that the respondentstake their stand to maintain that the effect of it was to wipe out thefidei commissum from their title. The implication of that contention1 (1897) 2 N. L. R. 313.2 (1906) 9 N. L. R. 256.
SOERTSZ S.P.J.—Tillakaratna o. de Silva.
29
is that once the “ final decree ” is entered, the preliminary decree isof as little avail as if it had not been written. I am quite unable tosubscribe to that proposition. My interpretation of the Ordinance isthat the Legislature contemplated only one decree, namely , that providedexpressly as a “decree” in section 4. Section 6 provides for a “finaljudgment ” confirming the partition proposed by the Commissionerand section 9 makes not the “ final judgment ” but the “ decree forpartition or sale ” the conclusive evidence of partition or sale and title.The expression “ final decree ” has now become inveterate and, probably,resulted from the practice which came into vogue in 1896, after the caseof Perie.i v. Perera1, of admitting interventions by parties not before theCourt at the time the decree under section 4 was entered, and in thatview of tho matter, Bonser C.J. held that the decree referred to insection 9 is the final judgment given under section 6. The difficultiesthat have arisen from this view might well have been avoided by thenecessary modifications resulting from interventions being given effectto by amending the decree entered under section 4 and treating theorder under section 6 as the final judgment giving the Court’s approvalto the Commissioner’s scheme of partition. But, inasmuch as the viewadopted by Bonser C.J. in the case referred to appears to have gainedground the reasonable course to follow when we are considering theeffect of a partition decree is to examine both the decree under section 4and the final judgment under section 6, for, if once final judgment isgiven, in the way Bonser C.J. appears to have contemplated it, we arenot permitted to look at the decree given under section 4, we should,in many cases, be paying servile homage to the form of the thing andneglecting the substance of it. Tn this ease itself, wo should not be ableto say, without looking at the decree under section 4, who the partieswere to whom the lots were" allotted. Their names do not appear inthe judgment given under section 6. Nor should we know the liabilityof the different parties in regard to costs. The next question is as towhat happens when looking at the decree given under section 4 and thefinal judgment under section 6, we find a contradiction. The answerto that must depend on the particular circumstances of each case. Itis sufficient to say that in this case, it is impossible to hold that thereservation of the fidei commissum in the preliminary decree -was deli-berately omitted in what is called the final decree for there was no in–quiry held in the interval in regard to the fidei commissum or any othermatter and the Court had, consequently, not the power to go behindthe decree for partition already entered. In those circumstances theomission to reserve the fidei commissum in the “final dectee” mustbe taken to be inadvertent—actus curiae neminem gravabit. Tor thesereasons, I hold -that the portion of land allotted to Walter Clementremained subject to the fidei commissum in view of the express reser-vation of it in the decree entered under section 4. That burden ranwith the land and Adirian acquired, in virtue of his deed, no more thanWalter Clement’s fiduciary interest. In no case, so far as I am aware,has it been held that in a case in which the fidei commissum is reservedin the decree, any question of a bona fide purchaser without notice can
1 {1896) 1 N. h. R. 362.
30
SOERTSZ S.P.J.—Tillalcaratna v. de Silva.
arise. Indeed, as I have already indicated, in the view of the Roman:and Roman-Dutch Law, a fideicommissary, invested as he was with areal right, could -follow his property wherever he might find it. But,in an attempt—no moTe happy than such attempts have been foundto be—to put new wine in old bottles, South Africa and Ceylon, in recent-times, have sought to engraft on that view the equitable principle ofthe English Law of a purchaser for value without notice. Voet in36. 1. 63 adduces an exceptional case in which this principle would beadmitted in the Roman-Dutch Law but the South African and Ceylonoases appear to be travelling much beyond these limits. (See Cassirn v.Dingihamy1; Knsumaivatbie v. Weerasinghe 2 ; Ane.es v. Bank oj Ghettinad 3;Mare, v. Grobl.er4).
In the case before us, I should wish to add that if it had becomenecessary to consider whether Adirian and the respondents werepurchasers without notice, I should have been able to find on theevidence that they were not.
Another question submitted by the respondents was that of priorityby registration and I would say a few words about it for it is upon hisfinding in regard to registration that the trial Judge held in favourof the respondents. The priority claimed, as I have already observed,was claimed on the footing that the Last Will and the deeds in favourof Adirian were in competition but, on this ground, the judge held againstthe respondents and, if I may say so, rightly so held. But, he went onto consider a question of registration not raised by the parties at alland found that “ D1 and D2 create adverse interests to the devolutionunder the partition decree. D1 and D2 are entitled to the benefit ofregistration and the partition decree should be considered void as againstD1 and D2 ”. I am not quite clear as to what the learned Judge meantby this, but it is sufficient to say (a) that this question was not raised ;and (b) that even if we were to consider the question although it wasnot raised, the title vested in D1 and D2 is Walter Clement’s title underthe partition decree and if the partition decree is held to be void, D1 andD2 collapse with it. Ex hypothesi, all Walter Clement’s pre-partitionrights had been wiped out by the decree.
I would, therefore, set aside the judgment of the trial Judge andenter judgment for the plaintiffs declaring them entitled to Lot A and,in view of the agreement reached at the framing of the issues, theplaintiffs are entitled to damages at Rs. 100 per annum from December,.1943, till they are placed in possession of the said lot.
There remains the question of compensation for improvements. Thatquestion has been specially reserved “ for future decision ” and I would,therefore, remit the case on this ground either for settlement or forconsideration and decision. The appellants are entitled to costs in bothCourts in respect of the trial that has already taken place. Costs inregard to the point remitted will be for the trial Judge to make directions-upon unless, of course, the parties come to some settlement.
KLanerkratne J.— I agree.
Appeal allowed.
1 (1906) 9 N. L. It. at p. 264.3 (1941) 42 N. L. R. 436.
* (1932) 33 N. L. R. 273.1S. A. L. R. 1930 T. R. D. 632.