019-NLR-NLR-V-19-VYRAVAN-CHETTY–v.-FERNANDO.pdf

Held, that M did not forfeit her rights to the property bequeathedto her.
T
HE plaintiff-appellant sued to be declared entitled to certainlands, on the footing that he had bought them at a Fiscal’s
sale against eighth added defendant, Ukku Menika.
The defendant and the added defendants, who are Ukku. Menika’schildren, claimed the said lands on the footing that the said lands-were bequeathed to Ukku Menika for her use and benefit, till shemarried, and that Ukku Menika having married she had forfeitedher interests thereto.
The property in question was bequeathed to M by her paramour,subject to the following condition:—“It is my further will auddesire that should the said Ukku Menika take a husband after raydeath, or behave in any way disgraceful in the family, she shallthereupon forfeit all right to any share of my estate, and the propertyhereby bequeathed to her shall sink into my residuary estate,”
The learned District Judge (F. R. Dias, Esq.), in the course of hisjudgment, said:
Although this clause appears to contain a condition which was todefeat Ukku Menika’s vested interest in a certain event. I think thedefendant’s counsel is correct in contending that it was a clausg ofconditional limitation only, that is to say, the lands were to be vestedin Ukku Menika until she takes a husband or misconducts herself, andthen they were to go over to the children.
The testator did not impose an absolute injunction to celibacy onthis woman, but left her free to do as she pleased. He only expressed
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file will that the lands should go over to his children when the womandid a certain thing. There was nothing reprehensible in that, and aCourt, I think, is bound to give full effect to his unambiguous language,and protect theinterestoftheultimate beneficiaries. That- such
limitations are valid is covered by authority. See the cases of Morley©. RennoldscmX and Jones t>. Jones.2
VyravanChetty v.Fernando,
The District Judge decided that the plaintiff, who had' /bought the interests of Ukku Menika after she had forfeited herrights under the will by her misconduct with, and subsequentmarriage to, her testator's (paramour’s) brother, got no interest in.the disputed lands.
The plaintiff appealed.
Bawa, K. C. (with him Anti a nan dam), for plaintiff.—The willamounts to a general prohibition against marriage, and istherefore illegal and void. Voet, 28, 7, 12 and 13; 2 Burge 154 and155; Can. For., Part 1., Book 3, Ch. 5, Note 29; 2 Nathan 552. Ukku^fenika is in no sense the widow of the testator. The testator wasadmittedly living in concubinage with her. It is against publicpolicy to permit a man to tie down a concubine and thereby preventher from ever becoming an honest woman. The testator lived inthe Kandyan Provinces for a long time, and “ misconduct oughtto be interpreted in the sense it is understood among the Kandyans.Diving with a husband’s brother is not misconduct among them.
A. St. V. Jayewardene, for the defendants, relied upon 2 Johnsonand Hammings 356; L. R.' 1 Q. B. D. 279; Li. R. 1 Ch. D. 399;Voet, 28, 7, 13; South African L. R. (1914) Natal 257; Jarman onWills 1541.
Bawa, K.C., in reply.
Cut. adv. vult.
.February 28, 1916. De Sampayo J.—
The plaintiff claims title to certain lands, which he purchased inexecution against the eighth added defendant, Walimuni Mudivan-selage Ukku Menika, in November, 1913. The defendant and thefirst to the seventh added defendants are the children of the said.Ukku Menika by one Arnolis Fernando, and they claim the lands.adversely to the plaintiff under the will of Arnolis Fernando. Thequestion involved in this case turns upon the legal effect of certainconditions attached to the devise of the said lands in favour ofUkku Menika.
Arnolis Fernando, who was a low-country Sinhalese man of Galle,was lawfully married to a woman who is still alive, and there aresome children of that marriage. He appears to have deserted hislawful wife some twenty years before his death, and to have settledin Kandy, where he acquired considerable property.’ During his•residence in' Kandy he kept Ukku Menika as his mistress, and hei 2 Hare 420.2 1 Q- B. D. 279.
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D« SamfayoJ.
V y remanC'hetty v.Feriianrlo.
died in 3905, having made a last will dated December 7, 1904.Some time alter his death Ukku Menika began to live with hisbrother, James Fernando, by whom some children have also beenborn to her, and she has now married James Fernando. Theylived, and still continue to live, in James Fernando’s house. Thedefendant and the added defendants have also lived with them oncordial terms, and up to this action there has been no questionas to Ukku Menika having forfeited her right to these lands inconsequence of her association or marriage with James Fernando.
By the will, Arnolis Fernando, in the first place, gave certainpecuniary legacies to his legitimate daughter Engeltina, to his foursisters, and to his brother, the said James Fernando. He nextdevised to Ukku Menika all the lands situate at Dumbaia, amongwhich are included the lands now in question. He then disposedof the residue by giving a one-eighth share to his brother BastianFernando, and the remaining seven-eighths share to his children,the defendant and the added defendant, subject to the conditionthat should any of the children die before attaining majority his orher share should go to the remaining children, and tha should theyall die before that age one-half of the bequest to them should go tohis said brother Bastian Fernando, and the other half to his daughterEngeltina. This is followed by the following provision:—“ It ismy further will and desire that should the said Walimuni Mudiyanse-lage Ukku Menika take a husband after my death, or behave iu any ..way disgraceful in the family, she shall thereupon forfeit all right toany share of my estate, and the property hereby beqeathed to hershall sink into mv residuary estate.”
The District Judge lias held that under the circumstances abovestated Ukku Menika violated the condition of the legacy andforfeited her right to the lands. It. is not, however, clear whetherin his view the forfeiture was due to the association with JamesFernando or her subsequent marriage with him. But counsel forthe defendants felt himself unable seriously to contend that herassociation with James Fernando constituted ‘‘ disgraceful behaviourin the family ” within the meaning of a testator, who, though amarried man, had himself kept her as his mistress, and I need onlysav that under all the circumstances of the case counsel acted
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rightly in not pressing that point. The forfeiture, if any, musttherefore be confined to the condition which prohibits Ukku. Menikafrom taking a husband.
The law applicable to the subject, I take it, is the .Roman-Dutchlaw. Bvrge, vol. 2, p. 155, states it as a general proposition that ”• acondition which, either in terms or in its effect, operates directly orindirectly as an absolute or general prohibition of any marriagewould be void.” There is no doubt that the condition in the presentcase is of that description. It is, however, necessary to considerthe application of the authorities which have been referred to at the
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argument further. The old Roman law entirely reprobated any
provision in a husband’s will by which the wife was prohibited from Dk s^payo* contracting a second marriage as the condition of her taking a legacy, ——but the leas Julia Miscella introduced a modification, by providing chew^v.that the widow might have the legacy within a year upon taking an Fernando-oath that she would not marry again nisi liberorum procreandorum, i'au8a, or after a year upon giving security not to marry. Justinian'first considered these restrictions to be oppressive and undesirable,and allowed the widow to take the legacy absolutely, without any—oath or security (Code 6, 40, 2), but later, by Novell 22, cc. 43 and 44,lie repealed his previous legislation, and reciting various reasonsfor the change, hie enacted , that if a husband' or wife should leavea legacy to the other on condition that she or he should notmarry again, the legatee should elect either to marry andrenounce the legacy or to take the legacy and abstain fromcontracting a marriage. He further provided that in the latter casethe legacy should be taken only upon security being given for therestoration of the property in the event of a marriage. I have thusbriefly stated the Roman law, in order to make clear the opinions ofthe Roman-Dutch jurists on the subject. PecTtins, de test, conjug, 1,
24, 1 and 0, controverts the reasons given by Justinian for his latestlegislation, and states the law in Holland to be that the condition inrestraint of marriage imposed upon a widow or widower need notbe observed, while he allows as good and equitable a provisionfor the surviving spouse during widowhood or celibacy. He thusrecognizes the distinction between a condition annexed to the legacyand a limitation. Van Leeuwen, Cen. For., 1, 3, 5, 29, lays downbroadly:“ Conditio viduitatis, sive mari sive- femince imposita;
quasi non adjecta remittiturand he specially points .out thatJustinian’s Novell 22 made an alteration only in regard to secondmarriage of spouses, and not to other marriages. He repeats thatho die ((.«?., under the Roman-Dutch law) viduitatis conditionemreiitsi aut remitti constat: eascepto quod superstiti corijugi ad tempus■tecundarum- nuptianim aliquid testamento relinqui possit. ” Theexcepted case here, as in Peckins, is that of a provision duriugwidowhood or celibacy, which therefore is no restraint on marriage.
. Groencwegen, De Leg, Abrog., ad cod. 6, 40, 2, is to the same effect.
On the other hand, Voet, 28, 7, 12 and 13, differs from Van Leeuwenand Groenewegen in their’ comments on Justinian’s Novell 22, andis of opinion that a condition against the second marriage imposedupon a surviving spouse should be observed ■ in order to prevent a_forfeiture; though he is at one with all the jurists as to the generalrule that a condition in restraint of marriage is against public policy,
/and therefore inadmissible. The controversy,: however, need not•concern us in this case, for taking the above passage in Voet as themore. correct exposition of the Roman-Dutch law, the party to beaffected by the condition must be a widow or widower who is
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De SampayoJ.
VyravanC’hetly v.Fernando.
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prohibited from entering upon a second marriage. Ukku was notin that position, and I think that under the Boman-Dutch Law thecondition was in her case void and inoperative.
The English law does not appear to – compel us to a differentconclusion. There, too, conditions in terrorem are consideredcontrary to public policy, and as such void. In Newton v.Marsden 1 Vice-Chancellor • Page-Wood stated that “ the lawmust be taken to be settled as to males and unmarriedfemales, that you cannot impose on them a condition in restrainto! marriage,” and he proceeded to consider, with referenceto both English and Civil law authorities, and to decide ih thenegative, the question whether the law should be extended to arestraint on the marriage of a widow. There is also a distinction inthe English law, in the application of the rule, between a legacy ofpersonal estate and a devise of real estate; but for the presentpurpose it is not necessary to notice it further than to say that, a&there is no distinction with us in regard to such questions betweenpersonal and real property, the English rule of law which in respectof a gift of personal estate regards restraints as in terrorem and void,derived as it is from the principles of the civil law, appears to me to-be. more relevant on the present question. Jones v. Jones,2 whichwas cited to us, is no real authority on behalf of the respondents.Eor what the Court decided there was that on the construction-ofthe particular will the intention on the part of the testator was notto restrain any marriage, but to provide for the devisee while she-was unmarried. In Allen v. Jackson3 it was held that a conditionin restraint of the second marriage, whether of a man or a woman,was not void, and the Court extended the principle to the case of alegatee other than in the testator’s wife or husband. It will thus beseen that in the English law, as much as in the Boman-Dutch law,there are two settled principles:(1) that a general restraint., of
marriage is against public policy and void, but a provision inrestraint of marriage, not as a condition annexed to the gift, but aspointing out the limit -of the legatee’s interest, is good; and (2)that the doctrine does, not apply to a restraint on the secondmarriage of the legatee. It is clear in this case that the willcontained not a mere limitation, but a condition in general restraintof marriage. It was contended, however, that the provisionagainst marriage was in the interests of the testator’s children byUkku Menika, and was not a condition in terrorem; but that argu-ment can hardly be maintained, in view of the fact that the residuaryestate, into which the lands devised to Ukku Menika were to fall.inthe event of her taking a husband, was devised and bequeathed notonly to those children, but also to the testator’s brother BastianFernando, and (on a certain contingency) to his legitimate daughter
1 (1862) 2 J. & H., at page 366.'2 (1876) 1 Q. B. D. 279.
3 (1875) 1 Ch. D. 399.
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jkngeltina. Further, TJkku Menika never having been married, the 1916.law which allows restraints on second marriages is not applicable dk Samvayoto her.
For these reasons I think the judgment appealed against is Vyravanerroneous, and I would allow the appeal. There is no proof of.damages, and I would therefore give judgment for the plaintiff forthe lands and for possession, with costs in both Courts, but without'damages..
Wood Rexton C.J.—I agree.
Appeal allowed.