The decision in an . action between Abdul and the appellant,that the appellant was entitled by inheritance to a portion of theshares of Ahamad and Mariam did not estop the . children of Abdulfrom denying the appellant's title, as they do not take by inheritancefrom Abdul, but under a . separate title, the deed of 1871.
Bertram A.C.J.—I prefer to reserve my opinion on the question,whether, so far as relates to the jus accrescendi, there is any sub-stantial difference between testamentary . fidei commissum andfidei commissa constituted by instrument inter vivos. The argu-ment ‘ could not in any case .be put higher than this: that in aninstrument of the. latter nature, an intention in favour of an accrual
( 226 )
would not' ‘be presumed merely from the fact of the conjunction ofseveral beneficiaries in the same liberality, though such an intentionin an appropriate case might be inferred.
8haw J.—A right of accrual, may exist in either case, when' the
language of the donor or testator expresses such an intention
In the present case the intention of the donor was to benefit, notmerely the children of Candoo, but the children of such childrenfrom generationto generation,and to establishonesingle fidei
eommissum infavour of Candoo'a descendants, withrights of
accrual,and not fourseparatefidei commissoinfavour of the
Bertram A.C.J.—The jus accrescendi applies only where butfor • itsapplication there wouldbe a lapse. Ithasno application
where the objects of the donor's bounty are not designated indi-viduals,but successiveclassesof persons tobeascertained at
successive stages. In such a case the question is a question ofconstruction only, unencumbered by presumptions.
The words "share and sharealike" in a;, fideieommissum do not
of themselves import that each share is ‘to constitute a separatefidei eommissum.
The distinctionbetween " reconiunctit ” " re etverbisconiuncti
and M verbis ionium coniuncti *’ is an obsolete technicality.
rJ1HE facts are set out in the judgment of Shaw J. as follows: —
By deed dated July 22,. 1871, .one I. L. A. Lebbe Marikar, theowner of the property the subject-matter j of the present suit, giftedit to his daughter, Candoo Umma, as fiduciary, subject to certainconditions and restrictions. These are as follows: “ That the saidCandoo Umma shall not sell, alienate, mortgage, or encumber thesame or any part thereof, or the issues, rents, and profits thereof,but shall possess and enjoy the same during her natural life, andthat after her death the same shall devolve on her children shareand share alike, or if. there, be but one child, on such child, andthereafter on the child or children of such her child or children, andso from generation to generation under the fidei eommissum lawof inheritance.
The deed further provides that in the event of Candoo Ummadying without leaving any issue surviving her, the property shall goto her heirs, and that Candoo Umma, her child or children, or theperson or persons lawfully claiming under the deed, may transferher, his, or their interest in the property by way of gift or dowryto her, his, or their “ lawful heir or heirs ” .under the same conditions.
Candoo Umma died leaving four children: Rahimath Umma, thefirst defendant; Abdul Cader, who has since died leaving threechildren, the plaintiff-and the second and third defendants; andAhamad and Mariam, who have both died intestate and childless.
The plaintiff in the present suit claimed a’sale under the provisionsof the Partition Ordinance, allotting one-sixth each to himself andto the second and third defendants and half to the first defendant.
Usoof v.Rahimath
( 227 )
The second added defendant, who was the husband of CandooUmma and the father of her four children, has intervened in thesuit, and claims to be entitled to the whole property. He claimsone-half of the shares of Ahamad and Mariam under the law of in-heritance, the share of Bahimath Umma under a conveyance fromher dated June 25, 1910, the share of Abdul Cader as sole, heir underthe will of Abdul Cader dated January 10, 1916, and the remaininghalf shares of Ahamad and Mariam, which he says were inheritedby Bahimath Umma and Abdul Cader under the law of inheritance,under the conveyance from Bahimath Umma and the will of AbdulCader above referred to.
The District. Judge had decided against his claim, and has decreedthe shares according to the plaintiffs’ claim, giving to the secondadded defendant Bahimath Umma’s life interest only.
The second added defendant appeals from this decision.
A. St. V. Jayawardene (with him Tygarajah), for the appellant.Bawa, K.C. (with him Canakaratne), for first and second plaintiffs,respondents.
W. Jayawardene (with him J. S. Jayawardene), for third, fourth,and fifth defendants, respondents.
Cur. adv. vult.
June 14, 1918. Bertram A.C.J.—
This case originates out of a fidei commissum created by an instru-ment inter vivos by one A. L. Marikar, who by deed of gift conferredcertain valuable property in Chatham street to his daughter CandooUmma, subject to the condition that she should not sell, alienate,
mortgage, or encumber the same“ but shall possess and
. enjoy the same during her natural life, and that after her death thesame shall devolve on her children share and share alike, or if therebe but one child, on such child, and thereafter on the child or childrenof such or children, and so on from . generation to generationunder the fidei commissum law of inheritance.”
Candoo Umma was married to Mohamadu Usoof, the second addeddefendant. She had four children: Abdul Cader, Bahimath Umma,Ahamad, and Mariam, the last two of whom cfied in her lifetime.
The real question in issue in this action is a claim made byMohamadu Usoof, the husband of Candoo Umma. . That claim, ispart of a persistent and long-continued attempt on the part ofMohamadu Usoof to secure for himself, at the expense of his childrenand grandchildren, the whole benefit of the liberality which A. L.Marikar desired to confer upon those-children and grandchildren as/the descendants of Candoo Umma. In pursuance of this attempt•in 1895, on the death of Candoo Umma, he laid claim to half theproperty, which was the subject of the fidei commissum, as having-devolved upon. him as the natural heir of Ahamad and Mariam,
Usoof v.Bahimath
Veoof v.Rahimath
( 228 )
and as being no longer subject to that in favour of his children andthe children of those children. At that time the law on the subjectof dispositions of this character had not been elucidated. Theclaim was unsuccessfully contested by his son Abdul Cader, and bythe judgment in that case Mohamadu Usoof was declared entitledto the interest which he claimed.
Rahimath Umma next, in 1910 (in pursuance of a family arrange-ment), executed a deed, by which/ without any reference to thefidei commissary rights, of her children, she purported to conveyone undivided fourth of the fidei commissum property to her brother.Abdul Cader, subject to a life interest in Mohamadu Usoof, andon the death of Abdul Cader in 1916 it was found that by his will(possibly in pursuance pf the same or a similar arrangement) he hadleft the whole of his property to his father, Mohamadu Usoof.Mohamadu Usoof now claims that, having already, acquired theshares of Ahamad and Mariam by inheritance, he acquired the sharesof Rahimath Umma and Abdul Cader under Abdul Cader's willdischarged altogether from the fidei commissum. Even assumingthat Abdul Cader by will could displace his own children, it is notexplained on what possible ground the children of Rahimath Ummaare also supposed to be displaced from their rights. If, however,the contentions of Mohamadu Usoof are to be accepted, the wholeinterest in the* property is now vested in him, and the children ofAbdul Cader and Rahimath Umma‘are excluded from the benefit ofA. L. Marikar’s liberality.
The case falls under two heads: —
Upon the deaths of Ahamad and Mariam, did half the property,which ,was subject to the fidei commissum, devolve uponMohamadu Usoof free from any restriction?
Have the judgment recovered against Abdul Cader in 1895,
the agreement with Rahimath Umma in 1910, and the.will ofAbdul Cader in 1916 any effect as against the grandchildren ofCandoo Umma?1
The first of these questions is obviously a question of the construc-tion, of the fidei commissum. It is a question which has beendiscussed in a series of cases referred to in the judgment of mybrother' Shaw, and enumerated at the end of my judgment,1 and
1 Previous cases on the construction of fidei-. ccmmissa :—*
TUlekercUne v. Abeyesekere, (1897) 2 N.L. R. 313.
Jayawardene v. Jayawardene, (1905) 8 N. L. R. 283.
Tillekeratne v. Silva, (1907) 10 N. L. R. 214.
Jobsz v. Jobsz, (1907) 3 A. C. R. 139.
Babahamy v. Marcinahamy, (1908) 11 N. L. R. 232.
Samaradiwakara v. De Saram, (1911) 14 N. L. R, 321.
Wirasekera v. Carlina, (1912) 16 N. L. R. 1.
Seneviratne v. Candapaptdle,.(1912) 1$ N. L. R. 150.
Perera y. Silva, (1913) 16 N. L. R. 474.
Carron v Manuel, (1914) 17 NLR 407Sandenam v. Iyamperumal, (1916) 3 C. W. R. 59.
( 229 )
commencing with the judgment of the Privy Council in the case ofTillekeratne v. Abeyesekere.1 The terms of the various instrumentsconsidered in these cases were very similar in character to those ofthe instruments which form the subject of the present action, andin all these, except two,- which I will discuss presently, and whichboth related to the same will, the same construction was given tothe instruments under consideration. The result of this series ofcases may be summarized as follows: That while in such case thequestion must be a question of the intention of the testator or donor,as the case may be, to be determined by the' construction of theparticular instrument, yet when an instrument' conveys propertyto a fiduciary or fiduciaries, burdened with an obligation in favourof their descendants in succeeding generations, that the intentionof the instrument must be taken to be that, so long as any of thebeneficiaries who are to be substituted in place of the fiduciariesare in existence, the whole property must be considered as burdenedwith an obligation in their favour. As it was put in the case ofTillekeratne v. Abeyesekere 😡 ** No right of succession could arise, onher decease, to the heirs-at-law of Isabella, who were not in thedirect line of descent from the testator, so long as any person wasin existence who could show title either as, an institute or as a*substitute under the provisions of the Will.
Thb question discussed has sometimes been put in this way.Where there are one or more fiduciaries, and the interest of thesefiduciaries is burdened with obligations in favour of children in thenext generation, the question to be considered is, Did the testator(or donor, as the case may be) intend to create a single fidei cow-missum for the benefit of all the objects of his liberality so long asthey continued to exist, or was it his intention that at some stageor other his liberality should be subdivided into separate fideicommitiea, by which the interest of each fiduciary or of each' childor grandchild succeeding to the position of a fiduciary should beburdened witji a specific obligation in favour of his own branch ofthe family to the extent indicated in the instrument ?
It does not seem to me possible, after a consideration of the termsof this instrument, to distinguish it in principle from those consideredin Tillekeratne v. Abeyesekere1 and., the other cases, in which it washeld that the intention of the instrument, was to create a single fideicommisswm in favour of all the objects of the testator's or donor'sbounty indicated in the instrument. On this construction, so longas any of the objects of that bounty continue to exist, ho one canacquire an unrestricted right to any part of the property. Theinterest of Ahamad and Mariam could not devolve upon theirfather, Mohamadu Usoof, "but the rights they had in the propertywere burdened with an obligation in favour of their brother,
* (1897) 2 N. L. R. 213.
( 230 )
Abdul Cader, and their sister, Bahimath Umma, and any childrenthat might have been or might be born to that brother andsister.
Mr. A. St. V. Jayawardene, for the appellant, laid before us anargument, which was elaborated with much force and industry, butwhich was in effect an attempt to restrict the interpretation of theinstrument within arbitrary limits, upon the authority of isolatedpassages. Almost all his propositions have already been over-ruled,either expressly or by implication, in cases already decided eitherby this Court or by the Privy Council; but as he contended thatup to the present the authorities on the subject had not been fullypresented, and as the property involved is of some considerablevalue, I will submit his argument to a detailed examination. Bispropositions may be summarized as follows: —
(i.) The jus accrescendi only obtains in testamentary dispositions.There can be no jus accrescendi in the case of an instrumentinter vivos.
* (ii.) In any case (assuming that ah accrual could arise in the caseof a fidei commisaum inter vivos) there can be no accrual withrespect to interests already vested.
(iii.) An intention in fayour of an accrual ought not to be inferredin the absence of express words, unless the case can be broughtwithin the principles of the jus accrescendi.
(iv.) The expression “ share and share alike ” is fatal to anaccrual.
(v.) Even if an. accrual was intended, in the absence of expresswords we are precluded from giving effect to such an intentionby local statute. . .
(vi.) On the true construction of this particular fidei commisaum,there was nothing to prevent Abdul Cader from disposing ofthe fidei commisaum property by will.
(vii.) The children of Abdul Cader, even though on the constructionof the instrument they would be entitled to its benefits, arebound by the judgment recovered in 1895 by the appellantagainst their father.
The first proposition, namely, that the jus accrescendi has no.application under an instrument inter vivos, is based partly upon thecircumstance that the doctrine of the jus accrescendi between co-heirsin the Boman law originated in the repugnance of that law to apartial intestacy, and partly upon certain passages in Voet.
With regard to the repugnance of the Boman* law to partialintestacy, this was undoubtedly the basis of the original doctrine ofjus accrescendi between co-heirs; but this is a purely historicalcircumstance and need* not concern us. TJie reasoning of the Bomanlaw as to partial intestacy was always discarded by the BomanDutch jurists as a technical subtlety. .With them the jus accrescendi
( 5431 )
was allowed, not as a rule of law (ex juris necessitate), but only whenit was either .the evident, or at least the -probable, intention of thetestator (quotiens vel evidens vel saltern probabili's voluntas testatoriscst. Voet XXIX., 2,40). The doctrine was not in Boman law confinedto co-heirs, but was extended to co-legatees, co-usufructuaries, andco-fidei commissaries. But in all these cases, even in Roman law,the question of partial intestacy never entered. In all these casesthe basis of the right was the intention of the testator. “ Gum hacin paitr' ius accrescendi non in aliqua juris necessitate, uti quidem inheredibus directo institutis, sed tantumin probabilitestatoris voluntatefundamentum habeat.” (Voet XXXVI., 1, 71, and of. also XXX.—XXXII., 61 and 64.) It is clear, therefore, that the question of therepugnance felt against partial intestacy under the Boman law maybe left out of account.-
With regard to the passage cijied from Voet, -it is undoubtedlythe case that there are certain differences between testamentaryfidei commissa and fidei commissa by instruments inter vivos. In thefirst place, the latter are bilateral instruments, and consequently itmay be necessary to consider, not merely the intention of the- authorof the fidei commissum, but that of all the parties. In the secondplace, the instruments being of a more deliberate nature than willsare presumed more completely to express the intention of theirauthors (see per de Sampayo J. in Ahamadu Lebbe v. Sulagamma,1see also the observation of Perez cited in the next paragraph).Thirdly, wills receive a more liberal interpretation than instrumentsinter vivos (" Prcescertim si consideres, favorabiliores esse disposi-tiones ultima-rum voluntatum quam quce inter vivos fiunt. ” VoetXXXVI., 1, 27); so that in the case of a will an intention torestrict the bounty given to a fiduciarius will not be readily inferred.Fourthly, fidei commissary dispositions by a deed inter vivos are,generally speaking, unlike similar dispositions in wills, not subjectto revocation. (Note, however, Voet XXIII., 4, 64, 66.) It isfurther suggested that from the point of view of the jus accrescendi,fidei Commissaries under such an instrument are in a special positionby virtue of its contractual nature.
There are two specific references to this point in Voet. The first(XXXIX., 5, 14) says that the jus ' accrescendi has no applicationto gifts inter vivos, and that consequently, if one of several doneesdies before acceptance, his share does not accrue to the other (cf.Sande, Dec. Fris. V. 1 ?). But this has no relevance here; thereason for this is that no gift is complete till acceptance, and in sucha case the unaccepted share does not descend to the donee’s heirs,but reverts to the donor. Voet, however, adds the following generalobservation: Nec uspiam legitur, in. contractibus aut aliis inter vivosactibus ius accrescendi receptum esse, sed ad solam mortis causadonationem, legatis fere per omnia exequatam, ius accrescendi aperte
XJsooj v.Rahimath
‘ U916) 2.0. W. R. 208.
( 232 )
invenitur a hvstiniano productum ease, (XXXIX,t 5, 14.) A similargeneral observation is made by Perez (VI., 51, 9) ; Nam in itsdumtaxat quce ultima voluntate relinquuntur locum habet, non item incontractibus, qui iudicantur secundum formamt qua sunt initi.
The question is more specifics1 ly referred to in another passageof Voet (XXXVI., 1, 67). Voet there declares that it is the betteropinion (magis est) that when a fidei commissary under a fidei com-mijssum constituted by act. inter .vivos predeceases the fiduciary, thefidei commissum property does not, as in the case of a will, vestabsolutely‘in the fiduciary, but that the fidei commissary is con-sidered as possessing, by virtue of the contractual nature of theinstrument, a spes obligations which, he transmits to his' heirs.This opinion was followed with some hesitation in a local case,Mohamed Bhai v. Silva.1 It will be noted here that Voet saysnothing about the-jus accrescendi. He is considering the questionas between the heirs of the fidei commissary and the fiduciary, not asbetween the heirs of the fidei commissary' and the survivingfider commissaries; but as he notes that Sande. dissents from thisview, and as Sande’s dissent has reference to the jus accrescendi,it is probable that he had it in mind.
Sande’s dissent, however; discloses a fact of great interest, namely,a reported case decided by the IJrisian Supreme Court in a sensecontrary to Voet’s opinion, and with special reference to the jnsaccrescendi. (See Sande, Dec. Fris,. IV., 5, def. 19.) In that case,by a family fidei commissum inter vivos, it was agreed that twoproperties severally vested in each of two brothers should, on theirdeaths, in the absence of male children, devolve upon their daughtersand sisters equally. The sisters all -predeceased the brothers, butone of the sisters left heirs. The Court discussed the extent towhich fidei commissa by instrument inter vivos are permissible,and the supposed difference between testamentary fidei commissaand fidei commissa inter vivos from the point of view of the spessuccessionis, disallowed the claim of the daughters of one of thepredeceasing sisters to the share claimed, and gave effect to the jusaccrescendi. (“ At cum quinque sorores ante fratrem sixtum obierintharum portiones pro rata accrescerent Sixti et Francisci filiabus. ”)The Court, on a final review of the case, treated the expression€* equally -".merely as indicating that the fidei commissaries shouldshare per capita. I quote the following passage: “ Alii tamen hancdiffere,ntiam non admittunt, sed ut in fidei commissis ultima voluntatecon8titutis et’in legatis ita est, ut si legatarius vel fidei commissariusdecedat, antequam conditio existit, is nihil ad heredem transmittat
idem in hoc fidei commisso conventionali obtincre volunti
Ho8 Senatus secutus etiam Catarinae filias a petitione sua
submovit. *f (Dec. Fris. IV., 5, def. 19, ck. 2.)
'(1911) 14 N. L. B. 193.
( 233 )
In view of this case and the local oases in which an accrual hasbeen held to be intended in the case of fidei oommisaa inter vivos(Garry v. Carry,1 Sandenam v. Iyamperumal,2 and Babdhamy v.Maroinahamy,3 which an examination of the record shows to be acase of this nature), I prefer to reserve my opinion on the question,whether, so far as relates to the jus accrescendi, there is anysubstantial difference between testamentary fidei commissa and fideicommissa constituted by instrument inter vivos. The argument, inmy opinion, could not in any case be put higher than this; thatin an instrument of the latter nature' an intentipn in favour of anaccrual would not be presumed merely from the fact of the conjunc-tion of several beneficiaries in the same liberality, though such anintention in an appropriate case might be inferred.6
With regard to Mr. Jayawardene’s second proposition, it is'mdoubtedly the case that, except in the case of co-usufruetuaries(which is governed by special considerations of a technical nature,explained by Yoet in VII., 2, 4), the jus accrescendi has no applica-tion when the shares of the objects of the liberality have once vested(see Voet VII., 2, 1: evanesceret omne accrescende ius, quamprimumcoheredes ao collegatarii agnovissent defunoii indicium, atque itaconcursu partes suas incepissent habere). But the vesting therereferred to is the final vesting of the property. ' The vesting of theproperty in persons as fiduciaries cannot affect such rights of.survivorship as may belong to the fidei commissaries. If theintention of the author of the fidei commissum is that there shouldbe a right of survivorship among the fidei commissaries, that rightcannot be prejudiced by the fact that the fiduciary, through whoma particular fidei commissary traces his title, has previously enteredinto the enjoyment of his own interest as fiduciary. The only^vesting that is material is the vesting in the persons among whomthe question of the jus accrescendi. arises..
This is such an obvious truism that it seems superfluous tostate it. Some confusion, however, appears to have arisen from apassage in the judgment of De Villiers C.J. in Mijiet’s Executor’s v.AvaS The passage is as follows: ‘‘When once, therefore, the fidu-ciary heirs have entered upon their respective shares of inheritancethe separation of interests has taken place, which, differing in thisrespect from the effect of a mere usufruct, prevents the operation ofthe jus accrescendi in favour of the survivor.” Both in the argument
1 (1917) 4 C. W. B. 50.*'(1908) 11 N. L. R. 232.
* (1916) 3 0. W. B. 59.‘ 14 S. C. B. 511,
* It may be noted that the Roman Dutch jurists appear to have consideredthat the status in life of the parties had a bearing, not only on the validity ofthe instrument, but also on the presumed intention, of its author. See Sande,loo. eit.: “ Tale •pactum, inter nobilee prcesertim valare et obligate etiam sueeessores tradunl Doctores.” Vinnius, II., 20, viii,, 18 ; “ Idque ceslimari nonex verbis tantum et rei pretio verum etiam ex conditions et qualiiate turn testatoris,oum'legatariorum.”
( 234 )
Usoof v.Rahimath
in this case and in one of the judgments in Carron v. Manuel1this passage Seems to have been treated as, laying down a generalprinciple with regard to the vesting of fiduciary interests. It seems' to have been overlooked that in Mijiet's Executors v. Ava 2 the onlyinterest in question was a fiduciary interest, and it is solely to thatinterest that the words cited refer. The testator had left his estate,on the death of his wife, to his two children, Ibrahim and Ava,burdened with a fidei commissum in favour of the children on thedeath of both. Ibrahim died. The question was: What was to, happen to his interest until the death of Ava? There was thus noquestion as to the succeeding fidei commissary interests. Thesewere provided for by the will. All that the case decided was thatthe fiduciary interests of Ibrahim and Ava having once vested, therewas no accrual of the iterest of the deceasing fiduciary in favourof the survior. The case has no bearing on the question whetheron the true construction of the document now in question theinterests of Ahamad and Mariam were burdened with a fidei com-missum in favour of their nephews or nieces, nor is it an authorityfor the proposition that, when once the several fiduciaries under afidei commissum enter into the enjoyment of their respective interests,the effect of this* is to convert a single fidei commissum into a bundleof separate fidei commissa.
This brings me to what I have formulated as Mr. Jayawardene’sthird proposition, that an intention in favour of accrual ought notto be inferred in the absence of express words, unless the case canbe brought within the principles of the jus accrescendi. The realanswer to this and to the two previous propositions is that the jusaccrescendi has nothing to do with the case. The jus accrescendiis a special rule invented by the Roman law. It is not. as Mr.Bawa plausibly suggested, a mere expression used for describingwhat happens when rights that were intended to be enjoyed byone of several beneficiaries accrue on his death to the remainder. Onthe contrary, it is an extremely definite rule, and its applicationhas excited the most diffuse and prolonged controversies. Nor isit identical with the jus accrescendi between joint tenants in Englishlaw, which is governed by widely- different considerations. Therule was evolved to deal with one special case only, namely, the casewhere a testator’s wishes fail with respect to part of the inheritance,because one of the persons designated as heirs either cannot orwill not take up his share of the inheritance. In other words, therule was invented to prevent a lapse. The. rule was subsequentlyextended from the case of a universal inheritance to the case of aparticular legacy, but both in the case of an inheritance and inthe case, of a legacy the jus accrescendi only arose where but forthe accrual there would be a lapse. As it is put by MonsieurPlaniol:44 L* accroisement suppose une liberalite caduque.”(Traite
*(1914) 17 N. L. R., on p. 409.
•148..0.R. 511.
( 385 )
de Droit, Civil, vol. 3,8866.) The subject is treated in the <3ode ofJustinian under the heading: “ De Caducie Tollendis.” There isan interesting discussion of the matter in Domat, book III., section8, where he very truly observes that the doctrine was, as a matter of.fact, purely gratuitous, and that no harm would have resulted ifthe law had declared that where part of the testator’s wishes failthrough the decease or refusal of one of their objects, the interestin question should lapse to the heirs ab inteetato, unless the testatorotherwise provided. The rule, in fact, was in its inception anarbitrary rule of construction, invented for the purpose of avertinga purely theoretical catastrophe. Even where as in Boman-Dutch>law, a partial intestacy was no longer regarded as something contraryto the order of nature, the point to which the rule was directed was-the case of a lapse. Apart from oases of a refusal to adiate, it onlycomes into operation where, in the case of a direct bequest, one ofihe designated objects of the testator’s bounty predeceases him,,or, in the case of a fidei commission,' where one of-'the designatedfidei commissaries predeceases either the testator1, or an antecedent,fiduciary. The beneficiary may, of course, be designated either byname or by description, but there must be a designation, and theremust be a predecease of a person designated, otherwise there isno failure of the testator’s gift; and there is no occasion for theapplication of the rule at all. ’There is no such failure. where, asin this case, the objects of the donor’s bounty are not designatedindividuals, but successive classes of persons to be ascertained atsuccessive stages. There can be no such failure, because until anyparticular stage is reached no one can tell who will constitute theclass to be benefited. As it is put in Jarman on Wills, at page 431:“ Where the devise or bequest embraces a fluctuating class of persons,who by the rules of construction are to be ascertained at the deathof the testator or at a subsequent period, the decease of any suchpersons during the testator’s life will occasion no lapse or hiatusin the disposition.”
Mr. Jayawardene, indeed, himself insisted on the fact that thejus gccreacendi only arose, upon a predecease, but from this he drewthe inference that in other cases there could be no accrual at all.But this is not a proper inference. The proper inference is thatwhere there has been no predecease, and consequently no failureof the testator’s or the donor’s bounty, in determining whether ornot an accrual of interest is to take place, we are wholly emancipatedboth from the presumptions and from the limitations of the ruleknown' as the jus accrescendi. Nor is there any foundation, for thesuggestion that an accrual . should only be inferred where it isprovided for by express words. The rules governing the interpreta-tion of instruments know nothing of any limitation to express words.That is a device of the legislator in statutes. In the interpretationof instruments according to the rules of the common law (except
( 286 )
in places where operative words are necessary), the intention maybe inferred both from what is expressed and from what is implied.Nor is there any counter.-presumption that the author of theliberality did not intend an accrual. The jits accrescendi was notan anomaly which the law regarded with horror and restrained byevery measure possible; it was a benevolent device invented forthe purpose of giving effect to an intention of the testator, whichhe was supposed to have forgotten |o express. We are free, there-fore in , cases outside the rule, to consider the question withouttaking into consideration any supposed bias on the part of the -law, either in one direction or the other.
The fourth of the propositions restricting the natural interpreta-tion of the instrument was the contention^ that the’ words “ shareand share alike ” had an artificial force, and precluded us frominterpreting the instrument as directing an accrual. This contentionis based upon an antiquated and technical classification of theRoman law, which has been the subject of voluminous controversiesAts artificial as the classification itself. It has, in my opinion, nobearing on the present case. As, however, it appears to be referredto both in modem text books and modern judgments as thoughit embodied some intelligible principle, and as Mr. Jayawardeneexpressly insists on it, I will proceed to examine it.
The disquisitions upon the subject in the Roman-Dutch juristsare so minute and intricate that it would be useless to attempt tosummarize the whole controversy. 1 Put this may be observed, thatthe Roman-Dutch jurists in such matters as this are not to beconsidered as expositors of legal principles, but rather as commenta-tors upon the compilations of Justinian. What they have to do isto harmonize a number of detached passages divorced from theircontext and embodied in the -Code or Digest. As the authors ofthese passage's are not directing their minds to the same point, andare hot using words in the same sense, it is impossible to harmonizethe passages. The disputants are accordingly compelled toemphasize some and explain others, according- to the view taken inthe controversy. But it should be .borne in mind that the contro-versy is not so much as to the principle which wquld govern thequestion,, as to the meaning to be attached to the passages in' thecompilations.7
Briefly stated, the question is as follows. It is agreed that thejus accrescendi arises only inter coniunctos. *’ TJbi ius coniunctionisest, ibi ius est accrescendi(Vinnius, II., 20, 7.) Now, it appearsfrom a combination of certain passages of the Digest (50, 16, 142;.32, 89) that for this purpose coniuncti are classified under threeheads, according to three supposed types of disposition, namely: —
(a) lie coniuncti—Where the testator in one sentence in his willsays, “ I give my farm to A/’ and- in .another and separateSentence says, “ I give my farm to B."
( 387 )
(b) Re et verbis ewiiiuicti.-^Where thi leftitor says,"’"I—give—my"
farm to A and B.”
(e) Verbis tantumconiuncti.—-Wherethe testator says, " I give
my farm to A and B in equal shares " (“ aquis partibus ”).
It is not altogether easy nowadays for any one to treat thisclassification seriously. In the first place, with regard to (a), itrefers to a thing which never happens. People do not in one partof their wills leave a farm to A, and in another put of the same willleave the same farm to B. Domat’s observation is (booh III., 3, 9) :“ Although this manner of devising may seem to be whimsical tous, and to be very improper to any testator who has any sense, orwho is used to be any ways exact in his affairs, yet the examples ofit are frequent in the Boman law.” In the second place, withregard to (b) and (c), these to the untutored mind mean preciselythe same thing.1 It is not without surprise that one learns thatthe whole controversy turns upon a suggestion that they mean twothings entirely different.
Ueoqf v.Rahimath
The trouble arises from certain passages of the Digest, of whichthe following-two may be cited:—
" Coniunctim heredes institui, aut eoniunetim legari hoc est :Lotam
hereditatem et toto legato singulis data esse, partes autem. con-curse fieri." (Dig. XXXII., 80.)
“ Cut sententiacongruitratioCelsi dicentis totiens ins accrescendi
esse, quotiene in duobus, qui in solidum habuerunt, > concursudivisps est." (Dig. VII., 2, 3.)
From this it is argued that a coniunctio implies that the whole isgiven to each, and that it is only by a concursus that shares arise;that a testator who gives a property to two persons in equal sharescannot intend that each should take the whole; that consequentlypersons who are thus verbis tantum coniuncti are not really coniunctiat all; that, in fact, the addition of the words cequis partibus destroysthe conduction; and that consequently between such persons thereis no jus accrescendi. It is no doubt tedious to explain such artificialreasoning, but as Voet adopts this conclusion, and Mr. Jayawardenerelies upon it, it is well that it should be understood upon what it isbased. It is satisfactory to know, however, that Voet’s view isrepudiated by Van Leeuwen, Sande, Huber, Vinnius, Perez, andBynkershoek. It is combated in language of extraordinary vigourby Dekker in a note to Van Leeuwen's Commentaries, III., 6, 8,
1CJ. Perez., VI., 51, 13 : “ Partes iUoe asquales intellegerentur elsi expressesnon essent.”
Vinnius, II., 20: “ Nec mutat hanc coniunctionem partium oequalmmexpressio, rum, elsi hce partes non exprimunlur, tacite tamen significanlurenumerations personorum.”
where he" says, that if a testator when he leaves a thing to threepersons really intends that each should acquire the whole, he mustbe out of his mind.1
But it is not necessary to pursue further so obviously artificial asubject. It is sufficient to say that the opinion of Yoet is every-where declared to be contrary to the communis sententia; and thatall the. phraseology discussed above ought to be regarded as thetechnicalities of an extinct phase of legal thought, and (to quotewords quoted by Dekker) as belonging “ ad ius romanum merepositivum, quod apud nos receptum hand est, explosa romani iurisscrupulosa subtilitateThere is, of course, a significance in thephrase “ verbis tantum coniuncti” and it is this, that there is no jusaccrescendi between the objects of two separate bequests merelybecause they are joined together in the same sentence of a will,but the example chosen does not really illustrate the proposition.A' bequest of a thing to two people is not really converted into twoseparate bequests because the testator adds that they shall have itin equal shares. It may be taken, therefore, that (to use a favouritephrase of Lord Bowen’s) there is no magic about the words “ acquispartibus ” or any similar expression.
Two further observations may, however, be made. The one is,that a perfectly natural explanation of the words “ share and sharealike " is afforded by the fact that the parties to the instrument areMuhammadans, and that all that they indicate is, therefore, that thefemales are to share equally with the* males, instead of taking onlya half share as under the Muhammadan law. The other is, that asthe case under consideration is not a case of lapse, and consequentlynot a case to which the principles of the jus accrescendi come intoconsideration, the supposed magical efficacy of the words “ acquispartibus ’* has no bearing on the case.
The next attempt to restrict the freedom of the Court in inter-preting the intention of the testator was based upon a local enact-ment, already discussed in several previous cases, namely, OrdinanceNo. 21 of 1844, section 20. As to this, it is sufficient to quote thewords of the judgment of the Privy Council in Tillekeratne v. Abeye-sekere,2 namely: that the enactment appears “ to be limited to cases
1 The jurists I have cited suggest more ways than one of escaping from this purelyverbal complication:—
C f. Sandel Dec. Fris IV., 4, def. 7: “Istce partes non sunt divisce, sed indivisa,nihilo magis rent dzvidentes, quamrt si expresses non essenl.”
Perez, LI., 6, 13<.* “ Nam habent quid&m partes pro tndwiso, non pro diviso, ideoque■ non videntur res diversce legari singulis**
Vinnius (who rejects the above explanation), II, 20, 16: “ Partium in hoc
conitmctione testator meminit quod, cum sezret, si concurrerent ambo, quod
ct fiUurum speravit, singtdos totum habere non posse, istis verbis demonstratevoluerit quid in hunc eventum singtdi habUuri essent.”
Bynkershoek, II., 3: “ Si nempe dicamus, hcec verba, eequis partibus, continereprcecedentium explicationem, qua significatur utrumque legatarium, si ooncurrantscilicet, non habiturum solidum, sed rei legatee quemque partem dimidiam, itaoonsulitur menti simul ac verbis defuncti
*(1897) 2 N.L. R. 313.
( 239 )
in which the persons interested, whetheif 'as joint tenanti or astenants in common, are full owners, and are not burdened with afidei commissum.” It is true that in Perera v. Silva 1 a doubt isexpressed whether the Privy Council in its observations on Ordi-nance No. 21 of 1844 considered section 20, but there seems noreason why section 20 should be construed differently from section7, to which those observations were primarily directed.
The next fetter on our right of free interpretation (Mr. Jayawar-dene’s sixth proposition) was sought in a passage of Sande:—
" His amplius prohibita venditions donations bt oppigneratione,
alienatio per ultimam voluntatem permissa censetur Quin
etsi generals alienandi verbum positum sit inter verba specialia ut«i dictum sit, ‘ Prohibeo vendi, donari, alienari aut oppignerari,’generate Ulud verbum aUenafi restringitura verbis specialibus ob iliumarticulum altemativum. Quando enim plura verba alternativeiunguntur, quorum unum est generate alia vero sunt specialia, generaterestringitur a specialibus. Et quando genus ponitur inter duas species,ab eis semper restringitur.” (Sande, De Prohib. Berum Alien.,ch. 6 and 9.)
In other words, as in our own instrument, which forbids CandooUmma to “ sell, alienate, mortgage, or encumber ” the property,the word “ alienate ’’ (though .it would otherwise include a last will),coming between “ sell ” and “ mortgage,” must be restricted totransactions ejusdem generis as a sale or mortgage, and con-sequently the prohibition against alienation does not exclude adisposition by will. The passage cited is certainly at first sightone of extraordinary aptitude, but there are two answers to thecontention, both of them conclusive. The first is, that if the wholeof the chapter in which this passage occurs is read, it will be seenthat what Sande primarily insists on is that the intention of theauthor of the fidei commissum, as inferred from all the circumstances,must prevail. (See in particular paragraph 8.) It is only when thereis no adequate indication of the intention that the special rule ofinterpretation is supposed to apply. In the case of the instrumentin our own case, the indications of intention are ample. If thecontention were correct, it would have been open, not only to AbdulCader, but to his mother Candoo Umma, to have disposed of theproperty by will, as the formula of prohibition applies both to herand the subsequent fiduciaries; but the instrument expressly goeson to declare “ that after her death the same shall devolve on her
children and thereafter on the child or children of such
child or children, and so on from generation to generation underthe fidei commissum law of inheritance.” A clearer indication ofan intention to prohibit alienation by will throughout the course ofthe fidei commissum could hardly be imagined. But, apart from all
1 {1913) 16 N. L. B., on p. 477.
( 240 )
Ueoof v.Bah/tmath
this, the rule enunciated in the passage from Sande is nothing morethan an arbitrary and technical extension of the rule ejusdemgeneris. There is no modem authority, and, indeed, no otherauthority cited, for such an extension. Modem authority is all theother way, and a useful corrective to the tendency to insist on a strictapplication of the rule ejusdem generis will be found in the case ofAnderson v. Anderson,x where it was clearly laid down that generalwords in collocation with a series of particular words are primdfacie to be constructed as having their natural and larger meaning.
The seventh and last of the suggested obstacles to the free inter-pretation of the instrument was the judgment recovered againstAbdul Gader by Mohamadu Usoof in 1895, in which the interpreta-tion now contended for by the appellant was adopted by the Court;it was argued that this judgment was res judicata as against AbdulCader’s children. But this is clearly untenable. These childrenare not claiming through Abdul Cader, but on the deed. It iscertainly singular that it should be open to successive generationsof persons claiming under the same fidei commissum to litigatequestions already the subject of a judicial decree. But it is clearthat, just as no agreement of Abdul Cader could affect the rights ofhis children, they are equally unaffected by any judgment againsthim to which they were not parties.
I have reserved to the last the consideration of two cases in whichan interpretation of a different tendency to that adopted in Tilleke-ratne v. Abeyesekere 2 was given to a particular testamentary fideicommissum, namely, Perera v. Silva 3 and Carron v. Manuel.4 Bothcases related to the same instrument, and the Court which decidedthe second case, though differently constituted from that whichdecided the first case, came to the same conclusion. Three dictain the judgments of these cases have been referred to. All were inthe fullest sense obiter, and all appear to have been based upon amisapprehension. The first was a suggestion that in Tillekeratne v.Abeyesekere 2 the Privy Council overlooked section 20 of OrdinanceNo. 21 of 1844; the second was a reference to a passage in thejudgment in Mijiet's Executors v, Ava,5 as though it laid down ageneral principle as to the effect of the vesting of the shares offiduciaries; the third was a suggestion that, so far as the facts ofthe case go, Tillekeratne v. Abeyesekere 2 merely establishes thatthere is a right of accrual where one of several conjoint institutes diesbefore the testator. The first two of these dicta have been discussedabove; with regard to the third, a fuller examination of the factsin Tillekeratne v. Abeyesekere 2 discloses that Isabella, the devolutionof whose interest was in dispute, did not predecease either of theauthors of the joint will under consideration, but survived themboth.
1 (1895) 1 Q. B. 749.3 (1913) 16 N. L. B. 474.
* 1697) 2 N. L. B. 313.4 (1914) 17 N. L. B. 407.
«14 S. C. B. 611.
( 241 )
The decisions were not based upon any of these dicta, but uponthe special terms of the will in that case. The will was a joint will,and divided the property between two groups, three sisters of thewife on the one side and two sisters of the husband on the other.The bequest was subject to a restraint on alienation, and providedthat “ after their deaths the said shares shall devolve on their lawfulissue without any restriction whatever.” The Court in both casescame to the conclusion that the expression “ the said shares ”referred, not to the half share above mentioned, but to the respectiveinterests of the several fiduciaries, and held that the intention wasto create separate fidei commissa in respect of each interest, or, inother words, that the interest of each fiduciary was burdened withan obligation in favour of her issue alone, and that consequently onthe death of one fiduciary without issue the interest of that fiduciarywas freed from the fidei commissum and devolved upon her husbandas her heir. I confess that, quite apart from the three points towhich attention has been drawn above, I am unable to follow muchof the reasoning of the judgments in these two cases. In particular,I should have interpreted the words " without any restriction what-ever ” simply as meaning “ without any further restraint uponalienation nor should I myself have interpreted the expression” the said shares ” in the way in which it was interpreted; butquestions of construction are pre-eminently questions on which twoviews may be held. It is obvious, however, that both decisionsturn upon the special force attached to this expression as indicatingan intention to create separate fidei commissa, and the decisionsmust be considered simply as decisions upon the special terms ofa particular will.
For the reasons above explained I am of opinion that the appealshould be dismissed, with costs.
Vsoof v.Rahimath
Shaw J.—
[His Lordship set out the facts, and continued] :—
The first and most important question that arises is whether theshares to which Ahamad and Mariam were entitled in their lifetimeaccrue to the other children and grandchildren of Candoo Umma, orwhether they go to the heirs of Ahamad and Mariam under theordinary law of inheritance.
Numerous extracts from the writers on Boman-Dutch law werecited on behalf of the appellant, with the object of showing that theright, of accretion which arises from a conjunction of persons in adonation was unknown to the Eoman-Dutch law, except in thecase where several people were jointly instituted as heirs in a willand one or more of them predeceased the testator, and it was con-tended that no jus accrescendi can, therefore, arise in the case of afidei commissum constituted by deed inter vivos, such as in thepresent case.
( 242 )
Shaw J.
Usoofv.Rahim ath
I am unable to draw any such inference from the extracts quoted.The writers are referring to the presumption of the intention of atestator that arises from the use of certain words and the conjunctionof persons as heirs in a will where one or more of the persons intendedto be benefited have predeceased the testator, and it may well bethat this presumption may be limited to the case mentioned; butI can find no justification for the contention that a right of accrualcannot exist in cases where a donor or testator has, by the languageused, shown his intention that it shall.
In the course of the argument we were referred to numerous caseswhere a right of accrual has been held to exist in cases other than thatof a beneficiary under a will predeceasing the testator. In Ttlleke-ratne v. Abeyesekere 1 the right of accrual under a fidei commissionestablished by will was given effect to by the Privy Council uponthe death of a beneficiary who died subsequent to the testator, andthe same was done by this Court in the case of Babdhamy v. Marcina-hamyf Jayawardene v. Jayawardene3 also is a decision of themajority of the Full Court to the same effect. In Garry v. Garry *and Ayasuperumal v. Meenan 5 this Court has held the jus accrescendito apply in cases of fidei commissa constituted by gifts inter vivos,on the ground that the language used by the donor showed anintention to that effect. I was a party to the latter decision, andexpressed a doubt whether a similar rule of construction applied inthe case of a donation inter vivos as applied in the case of a will;but I did not, and do not now, doubt that a right of accrual mayexist in either case, when the language of the donor or testatorexpresses such an intention.
In the present case the intention of the donor was, in my opinion,clearly to benefit, not merely the children of Candoo Umma, but thechildren of such children from generation to generation, and, as inthe cases of Tilhkeratne v. Abeyesekere 1 and Tillekeratne v. Silva* toestablish one single fidei eommissum in favour of Candoo Umma’sdescendants with rights of accrual, and not four separate fidei
commissa ini favour .of her children.
The only authorities that seem at first sight to support theappellant’s contention are Carron v. Manuel7 and Mijiet’s Executorsv. Ava, cited in Nathan, vol. 3, s. 1878. In those cases it was heldthat when once the fiduciary heirs have entered upon their respectiveshares of inheritance, a separation of interest has taken place, whichprevents the operation of the jus accrescendi in favour of the survivor.In' the present case, however, the instituted heirs are not merely thechildren of Candoo Umma, but their children from generation togeneration, who on the death of Ahamad and Mariam had not 1
1(1897) 2 N. L. B. 313.* (1917) 4 C. W. B. SO.
3 (1908) 11 N. L. B. 232.8 (1917) 4 C. W. B. 182.
3 (1905) 8 N. L. B. 283.8 (1907) 10 N. L. B. 214.
7 (1914) 17 N. L. B. 407.
entered upon the inheritance, and, unlike in the cases referred to,the intention of the donor was in the present case, not merelyto benefit the first set of the instituted heirs, but the descendantsof Candoo XJmma generally.
The next point t&ken on behalf of the appellant was that therestriction on alienation contained in the deed did not preventAbdul Cader elinnftting by will, because, in the prohibition againstalienation contained in the deed, the word “ alienation ” comesbetween the words “ sell ” and “ mortgage or encumber.”
The opinion of Sande (Restraints on Alienation, part 3, chapter 3,paragraph 9) was cited in support of the contention. He says thatif Idle general term " alienation ” is placed in the midst of specialterms, for instance, if it be said “ I prohibit a sale, a donation, analienation, or a pledge,” then the general term “ alienation ” islimited by the special terms by reason of the alternative “ or,” butthat if the general term “ alienation " is placed last, it inoiudesevery class of alienation.
However, this somewhat subtle and technical rule of constructionmay apply in a case where there is no intention of the testator to beotherwise gathered; it is clear from the preceding paragraph tothose referred to that Sande did not consider the rule would applyif the testator otherwise expressed his intention, for he there saysthat even if a testator has said “ I forbid the property to be sold,”and adds as his motive “ because I desire it to be kept in my family,”in that case the property is considered to be prohibited from beingtransferred to a stranger by last will. In the present case there isample evidence from the words used by the donor, from which hisintention to keep the properly intact for the descendants of CandooUmma can be gathered, and therefore the prohibition againstalienation should be held to apply to a prohibition against alienationby will, in whatever collocation the words occur.
The third point taken on behalf of the appellant was that, so faras the plaintiff and the second and third defendants are concerned,they are estopped from alleging that the appellant is not entitledto inherit the shares of Ahamad and Mariam, because the samepoint was decided against their father Abdul Cader in a previousaction, D. C. Colombo, No. 6,442, between him and the appellant.
This point must also, in my opinion, fail, because these parties arenotT*privies in title with Abdul Cader in regard to the properly;they do not take by inheritance from him, but under a separatatitle under the deed of July 22, 1871.
I am of opinion that the decision of the District Judge is correct,and that the appeal should be dismissed, with costs.
Appeal dismissed.