001-NLR-NLR-V-23-VYRAMUTTU-v.-MOOTATAMBY-et-al.pdf
THE
NEW LAW REPORTS OF CEYLONVOLUME XXIII.
Present: Schneider A. J.
VYRAMUTTU MOOTATAMBY et al332—C. R. Kalmunai, 10,102.
Fidei commissum—Donees to possess for ever according to the custo-m of
Mukkuwas as their ancestral property and as property of nephews—
Prohibition against alienation not necessary to create fidei cora-
roissum.
Tinder & deed of 1&57, executed by & Mnkkowa of Batticaloa.the donees were “ F and his brothers, being the children of onesister” ; ** K and brothers, bong the children o£#anpther sister”;and A, being the grandson of a third sister^'r^e portion hegranted to P and his brothers and to A, and the jifg£$£8£ier to Kwithout mention of brothers.-
—The donees were “ to possess and enjoy for evesr&ccording tojjgustom of the Mukkuwas as their ancestral property and as pro-perty of nephews.”
—He also directed that the share of A should be possessedand enjoyed by him during his lifetime1, and that after him thesame should go to the children of the other two sisters.
Held (a), that the words in paragraph I. were not sufficient to
indicate the beneficiaries. If the words had been “ these children
$
and their heirs according to the Mukkuwa custom may possessand enjoy, the beneficiaries would have been indicated.”
(b) The share given to A was subject to a fidsi commissum infavour of the children of the other two sisters.
a
As fidei commi8sarii Should be in existence when they .*•*re calledto the succession, this share of A would have devolved i-tpon suchof thOSOfChildren as were alive at the death of A The raccessionnot be limited to'females, as the deed itself describes the
benef^aries as being the “ children.”
6 a-m.
1921.
Ldr-22/463
( 2 )
1921.
Vyramuttu
.v.
Mootatamby
“ I would, therefore, hold that no fidei commiseum attached tothe shades given to P or K, and that once the share of A devolvedupon the children of the other two sisters of the donor, thosechildren also derived absolute title.11
An express prohibition against alienation is not necessary, to
create a fidei comrrmsum*
f | ’'HE faots are set out in the judgment of Schneidef AJ. The~ following is the judgment of the Commissioner of Requests(E. Rodrigo, Esq.):—
This is an action brought by the plaintiff to have himself entitled tocertain shares of land as against the defendants. Both the plaintiffand the defendants claim title through a deed of gift PI. The oaseturns on the construction of this deed. The portion of the deed materialto the point at issue in this case is as follows:—-
“ These children of three mothers Shall possess and enjoy the land ofthe sowing extent of two amunama, twenty-six manikkas, and twomeasures of paddy for ever according to the Mukkuwa custom and'co-ancestral property and as property of nephews.**
The relevant portion of the evidence led was intended to show whatthe “ Mukkuwa custom ” was. and what the expression “ property ofnephews'* means.
After carefully considering the evidence I r.m convinced thataccording to ancient custom amongst the Mukkuwa community ofBatticaloa District, . . . • . intestate succession to immovableproperty was limited to the female .line, th<;t although the customceased to be legally enforceable long ago, it survives to a limitedextent …» I am also convinced th? o “ property of nephews,”or the Tamil word, which has been thus translated, means lands whichare inherited by females only according to the Mukkuwa custom as-explained above.
Therefore, I have not the slightest doubt that the intention of thedonor, in this instance, was that in the event of intestacy this propertyshould descend in the female linf..* But there is no prohibition ofalienation and no unmistakable ir dication of the beneficiaries. There-fore the deed creates no fidei commissum. The effect of the deed—I mean the intended effect—is to make an absolute gift in favour Of thedonees with unrestricted pow'jr of alienation by deed inter vivps 8i bywill, but with a limitation of intestate succession. The donor in effectsays: “ The ordinary law*, of intestate succession should not applyto the land which I donat The question is, whether such a clause iseffective or should bo ig nored.
On the first date of trial theparties led a great deal of evidence, both
material and immatorial, but on the main point they failed to quote to
me any ruling or principle of law. On the second date Mr. Nagapper,
for the defendant, quoted the judgment of the Supreme Court in case
No. 2,987 of this Court, and Mr. Dharmalingam, for the* plaintiffs,
quoted Supreme Court judgment in case No. 4,015 also of this Court.
✓
In the former case the Court definitely held that a direction in a deedlike the present is inoperative.'s'
*In caSA.No. 4,015 the question which the Supreme Court hadto answe._was whether a provision in a certain-deed created a validfidei comrmssum, and the Court held that it* did not. Such a decision {gnot material to this case.
( 3 •)
I therefore answer the issue in the negative, and enter judgmentdiamigning plaintiffs action, with costs. But this does not mean thatplaintiff is entitled to no share in this land. He is entitled to succeedto whatever interest his vendors had in this land, and he can vindicatehis title to such interest if he is so advised. In this action I have notthe material before me to say exactly what share he is entitled to.
Samamwickreme, for plaintiff, appellant.
Weeresinghe, for first, second, and third defendants, respondents.
July 13, 1921. Schneider A.J.—
The plaintiff-appellant olaimed certain undivided shares in a fieldby. right of purchase. The first, second,* and third defendantsclaimed shares also by purchase. It was common ground that thefield belonged originally to one Sinnavappodiyar, who by deedNo. 1,510 dated November 2, 1857 (P 1), had donated it. Themain question at issue between the parties was whether the deed inquestion limited the devolution of the property to the. female line inperpetuity. This was formulated into an issue and was tried.From the pleadings it is obvious that other matters were also inissue. There is nothing on record to show that the parties agreedthat the one issue which was tried should determine this action.The learned. Commissioner dismissed the plaintiff's, action holdingthat the deed operated to pass unfettered title to the donees.He recognized the fact that even upon that holding the plaintiffwould be entitled to some shares, but he states that h^ is unableto determine what they are upon the material before him. .Hisobvious duty in those circumstances was to call upon the-plaintiffto produce evidence. He should have fixed the case for trial uponthe other issues which arose as the result of his holding. Hisdismissal of the plaintiff's action might operate as res judicata.His jcwier should be set aside, for the one reason that he was notjustified in dismissing the plaintiff's action altogether, but there areother reasons, too, why it should not be allowed to stand. I do not'entirely agree with this construction of the deed. It is in Tamil,but as the translation submitted in the lower Court was not satis-factory, I have had a fresh translation made by the Tafnil Iriter-preter Mudaliyar of this Court. I have marked it “ S,” and alsoinitialled and dated it. I will adopt this translation for the purposes,of this judgment. .The donor sets out his intention as being todonate the field to the issite of his three sisters. The donees are“ Panikkippoddi and his brothers,” being the children of one sister ;•" Kanthappoddi and his brothers,” being the children of anothersister; and Aliyappoddi, being the grandson of a third sister. Thefield is described as of 12 avanams.in extent. Of this extent, 9avanams and a fraction he “ granted ” to “ Panikkippoddi and hisbrothers ” -and to Aliyappoddi, and the remainder to Kanthappoddi
1921.
Vyrvmvttu
v.
Mootatamby
( 4 )
jfliBe, without mention oi “ brothers.” Ther|jpmt is Allowed imme-Sc^aijDBBthe wordsthat the donees “ may possess dpenjoy forever
A. j;according to the custom of the Mukkuwas as their ancestral property
r—and as ‘property of nephews. * ” He also directed that “ the share
v. . of Aliyappoddi should be possessed and enjoyed by him during hisMiouuatnby lifetime, and that after him the same should go to the children ofthe other two sisters.”
The parties are Mukkuwas. Upon the evidence called as to thecustomary succession to immovable property in case of Intestacy .among those people, the Commissioner came to the conclusion thatthe succession is limited to the female line, and that the words“ property of nephews ” mean lands which are inherited by femalesaccording to custom. He holds, it seems to me rightly, that theintention of the donor was that the property should descend in thefemale line. But he thought that this* intention was frustrated bythe omission of any prohibition against alienation and of an unmis-takable indication of the beneficiaries. He followed the decisionof this Court in action No. 2,987 of the District Court of Batticaloa.I agree with the Commissioner, but not wholly or with all hisreasons. It is’ well-settled law that an express prohibition againstalienation is not necessary to create a fidei commissum. To takea simple example. A grant1 of land to A, subject to the conditionthat upon his death it shall, devolve upon B and C, creates a validfidei commissum in favour of B and C, although there is.no expressprohibition. The condition implies the prohibition, for if the landwere alienated, the condition would be defeated. I am unable toagree entirely with the decision cited by the learned Commissioner.
. If the meaning of that decision be that where land is granted to A,subject to the condition that upon his dying intestate it shalldevolve upon B, no fidei commissum is created; the decision is,I think, not correct. This point has been considered and decidedin the case of Perera v. Perera}
The deed in question in the present action contains two distinctconditions: (1) As regards the share of Aliyappoddi, there is acondition that upon his death it shall devolve upon “ the childrenof the other two sisters.” This is undoubtedly, a valid fidei com-missum in favour of these children. It is the rule that the fideicommissarii should be in existence when they are called to thesuccession. This share, therefore, Would have devolved upon suchof those children as were alive at the death of Aliyappoddi. Thissuccession will not be limited to females, for the deed itself describesthe beneficiaries as bein^ “the children.” Therefore, as regardsthis share, title will have to bo adjusted upon that footing.
The second condition is that contained in the words “-thosechildren may possess and enjoy for ever according to the Mukkuwacustom as their ancestral property.” I agree with the Commissioner
1 (1918) 20 R. 463.
( 5 )
that those words are hot sufficient to indicate the beneficiaries.If the words i&'d been “ these ohildren and their heirs'according tothe Mukkuwa custom may possess and enjoy/- the beneficiarieswould have been indicated as pointed out in the case of Perera v.Perera1 already referred to. I would, therefore, hold that no fideicorrm%8mm attached to the shares given to Panikkippoddi or Kan-thappoddi, and that once the share of Aliyappoddi devolved uponthe children of the other two sisters of the donor, those childrenalso derived absolute title.
A.J.
Vyramutiu
v.
Mootatamby
I would, accordingly, set aside the order dismissing the plaintiff’saction, with costs, and remit the record for the shares of the con-testants to be determined upon the footing of the interpretation givenby me to the deed of donation. On appeal success has been divided,therefore each party will bear his own costs.
Set aside.
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