WEST, Appellant, and ABEYAWARDENA et al., Respondents

043-NLR-NLR-V-53-WEST-Appellant-and-ABEYAWARDENA-et-al.-Respondents.pdf


West v. Abeyateardena
21?
1951Present ; Basnayabe J. and Gunasefeara J.WEST, Appellant, and ABEYAWARDENA et al., RespondentsS. C: 572—D. C. Colombo, 2,680
Donation—Fideicommissum in favour offamily—Acceptance—Revoeability—
Exchange of property—Entail and Settlement Ordinance (Cap. 54), 8*. 5, 9.
A deed of gift in favour of C and J, who were daughtere of the donors,,contained a clause prohibiting the donees from selling, mortgaging or other-wise alienating the gifted property and proceeded to say that after the deathof the donees the property should devolve on their lawful issue, and that,in the event of any one of the donees dying without lawful issue, her rights inthe property should devolve on the surviving donee. As the donees wereminors, the gift was accepted on their behalf by their brother-in-law and twobrothers. There was, however, no acceptance on behalf of the fidei-commissaries.
Held, that the – deed did not create a fideicommissum for the reasonsthat there had been no acceptance on behalf of the fideicommissaries and that thedeed did not constitute a fideicommissum in favour of a family. It wastherefore open to the donors to revoke the gift with the consent of the donees.
Quaere, whether, under section 5 of the Entail and Settlement Ordinance,a donor who has created a fideicommissum reserving a life interest is entitled,to make an application for exchange of the fideicommisBary property.
A PPEAL from a judgment of the District Court, Colombo.
N. K. Choksy, K.C., with Sir Ukwatte Jayasundera, K.C., H. W.Jayewardene and tf. T. Samarawickrema, for the defendant-appellant.—The deed P 1b did not create a valid gift because there was no acceptanceby Cecilia and Jane. Somebody who stands in loco parentis should accepta gift on behalf of minors. Cooray was only a brother-in-law. Hewas not a guardian nor was he in some relationship to the minors andhaving an implied authority to accept—Soysa v. Mohideen 1. Theremust be an overt act of acceptance or words to the effect that the doneeaccepts. Acceptance must be signified on the face of the deed itself.Till it has been completed by acceptance a donation is revocable—Carolis v. Alwia 2.
Even assuming there has been a valid acceptance on behalf of thedonee, there has been no acceptance on behalf of the fideicommissaries.If this is a “ perpetual " fideicommissum then acceptance by Cecilia andJane is sufficient, in order to give effect to the intention of the donor tokeep the property in the family. But the present deed does not, on theface of it, purport to be a “ perpetual ” fideicommissum. “ Family ’’means the “ .descendants ” and acceptance must be by the “ bead ofthe family ”, as stated by de Sampayo J. in Soysa v. Mohideen (supra)quoted by Soertsz J. in Carolis v. Alwis (supra, at p. 163.)
Even if there was a valid fideicommissum, the fideicommissum ceasedto be operative by virtue of the order of the District Judge in the pro-ceedings under the Entail and Settlement Ordinance. That coder was
1 (1914) 17 H. L. JR. 279.• {1944) 45 N. L. JR. 155.
218
West v. Abeyawardena
final and conclusive. It contained certain terms and conditions butno reference to a fideieommissum. Plaintiffs were bound by that order• -and could not set up any other terms and conditions.
The application under section 5 of the Entail and Settlement Ordinancewas made by a wrong party. The proper party to make such an appli-cation is somebody entitled to possession under the entail. Statutoryresults follow only if the proper party made the application. Otherwise■the Court has no jurisdiction and the order is a nullity. If the orderi's a nullity section 8 has no effect and there is no fideieommissum auto-matically attaching to the property taken in exchange. For this reasonAbeywardene v. Tyrrel 1 has been wrongly decided.
Assuming a valid fideieommissum was created, the purchaser forvalue without notice is not bound by any alleged fideieommissum—Anees.v. Bank of Chettinad 2. Looking at the Order of Court the purchaser.had no notice of a fideieommissum attaching to “ Siriniwasa ”. Noticemust be notice of facts, not of a legal position. The facts by themselvesdo not show the existence of a fideieommissum. See Soysa v. Miskin *.The purchaser need not look beyond the Order of Court—Miranda v.Coudert *.
The heirs of Jane cannot repudiate the title of their predecessor.Jane could not have claimed absolute title to half share of “ Siriniwasa ”.Jane had a life interest and Sim an was the purchaser of a life interest.There was therefore no valid and effectual partition binding on thefideieommissaries. [Counsel cited McGregor’s Voet, pp. 136,137 and
Sande on Restraints, p. 269].
On the question of compensation for improvements and jus retentionisthe District Judge has held in favour of the appellant.
N. E. WeerasooTia, K.C., with Vernon Wijetunge, for the plaintiffs-respondents.—The persons who accepted the gift were persons com-petent to accept on behalf of a minor—Leivishamy v. Silva *; Franciscov. Costa ®. Acceptance can even be by conduct subsequently, wherethere is no acceptance on the face of the deed itself—The GovernmentAgent, Southern Province v. Karolis 7 ; Lokuhamy v. Juan 8. The wholebasis of the application under the Entail and Settlement Ordinancewas on the—basis that the deed P IB created a valid gift. Clearly thatwas subsequent conduct confirming acceptance by the gift.
With regard to the question whether acceptance by the fiduciary isvalid- acceptance by the- fideieommissaries the authorities are clear thatwhen the fideieommissaries are “ descendants ” acceptance by a fiduciaryis sufficient—Wijetunge v. Duwalge Rossie *. The observations ofSoertsz J. in Carolis v. Alwis (supra) are obiter, because the persons tobe benefited in that case were not “ descendants ” but brother and sister.The donor need not use the identical expression—“ in favour of a family ”.If the persons to be benefited came within that description it would be 1
1 (1938) 39 N. L. R. BOS.• (1906) 3 Bed. Rep. 43.
(1941) 42 N. L. R. 436.• (1888) 8 S. C. O. 190.
» (1945) 46 N. L. R. 385 at p. 390.7 (1896) 2 N. L. R. 72.
(1916) 19 N. L. R. 90.• (1875-76) Ram. 215.
• C1946) 47 N. L. R. 361 at p. 366.
West v. Abeyawardena
219
sufficient—Ex parte Orlandini *; Ex parte Isted 3'i Ex parte KleynhauaIn re Allen Trust * ; Weerdkkodage John Perera v. Avoo Lebbe Marikar • ;Soysa v. Mohideen 8 ; Abeyeainghe v. Perera 7 ; Ayaniperumdl v. MeeyanFernando v. Allots * ; Wijetunge v. Dvwalge Rossie (supra); Vallipuram v.Gasperson 10. See also Voet (McGregor's trans.) 36-1-27, 28 PereeiuaBk. S, title 55, section 10 (Wikramanayake’s trans., p. 29); Pothier onObligations (Evans’ trans.) Pt. I., Chap. I, Art 5, section 73; 2 Burge 148.
The application under the Entail and Settlement Ordinance wasintended to be, and was, in fact, a perfectly genuine transaction althoughit may have proceeded on a mistaken view of the law. With regard tothe Entail and Settlement Ordinance the view adopted in Abeywardene v.Tyrrel (supra) was accepted as correct in Perera v. de Fonseka “.“ Exchange ” in section 8 means substitution of one property for another.It cannot be said that the wrong party made the application. Simanand Maria, who made the application, were then entitled to rents andprofits. The statute clearly says that “ any person entitled to possession,&c.” may make application, not “ any person beneficially entitled ”.Therefore the Court properly made the Order and according to the termsof the statute the fideioommissum attached to the property—Abey-wardene v. Tyrrel (supra.)
With regard to the suggestion that the division of ‘‘Siriniwasa ” wasbad, the law is clear that where there is a bona fide division of propertyamong fiduciaries it is binding on the fideicommissaries—Abdul Coder v.Habibu Umma 12 ; Dassenaike v. TiUekeratne 1S. Whether there was apartition by Jane and Siman is a question of fact, admitted in the lowerCourt and not put in issue or raised in the petition of appeal.
In regard to the contention that, assuming a valid fideioommissumattached to “Siriniwasa ”, the defendant was in the position of a bonafide purchaser for value without notice, it is submitted that the doctrineof a purchaser for value without notice does not apply to the facts of thepresent case. The defendant herself is a volunteer, tha.t is, a donee of apurchaser, and the purchaser had notice of the conditions attaching to theproperty. With regard to the application of the doctrine stated inAnees v. Bank of Chettinad (supra) several points of distinction haveto be noted. The basis on which that case was decided was section 9of the Partition Ordinance. No one can say by looking at the partitionproceedings that there is a fideicommissum. In the proceedings underthe Entail and Settlement Ordinance the conditions were on the face ofthe proceedings, and the purchaser had notice of facts which created afideicommissum. The purchaser was put upon inquiry. In the presentcase one is not confronted with the wiping out of the earlier title undersection 9 of the Partition Ordinance. Here, section 8 of the Entail andSettlement Ordinance makes it clear that on exchange a fideicommissum 2
2(1931) O. F. S. (P. D. ) 141.7(1915)~18 N. L. R.222.
» (1948) S. A. L. R., Vol. II, p. 11.'»(1917) 4 C. W. R.182.
11948) S. A. L.R., Vol. II, p. 85.» (1935) 37 N. L. R. 226.
(1941) N. P. D. 147.20(1950) 52 N. L. R.169.
(1884) 6 S. C. C. 138.“(1949) 51 N. L. R.97.
(1914) 11 N. L. R. 279.“ (1926) 28 N. L. R. 92. at p. 96.
18 (1917) 4 O. W. R. 334.
BASNAYAKE J.—West v. Abeywardena,
220
is impressed on the property taken in exchange. Even if a Court makesan Order contrary to statute, the statute must prevail. Further, thefideicommissaries do not claim through the fiduciary but on the deed—-Soysa v. Mohideen {supra, at p. 284). Therefore, the Order of Courtdoes not bind the plaintiSs. In Tilleheratne v. de Silva 1 a fideicom-missum was expressly mentioned in the interlocutory decree of a partitionaction but it was omitted in the final decree. It was held that a fidei-commissum attached, and the Court questioned whether the doctrine ofpurchaser for value without notice can be applied to a fideicommissum.The question came up in another form in Sitti Kadija v. de Saram *before the Privy Council. See the remarks of Lord Thankerton at p. 175where the differences between trusts and fideicommissa, as set out byProf. R. W. Lee in his “ Introduction to Roman-Dutch Law ”, areapproved.
N. K. Choksy, K.C., in reply.—Unless there is acceptance there is novalid donation—Kanapathipillai v. Kasinather *. Acceptance must beduring the lifetime of donor. Acceptance can be by one under whosepote8tas one is. If it is not a fideicommissum in favour of a family therecan be no acceptance on behalf of persons not in esse. A member ofa family is not the same as a “ family ” in the context of the Roman-Dutch Law writers. There must be acceptance by the fiduciary forhimself and on behalf of the fideicommissaries. Jane and Cecilia dealtwith the property as absolute owners. Hence it cannot be said that•Jane’s children could by conduct accept the deed.
There is no authority for stating that a purchaser from one fiduciarycould partition with another fiduciary. A purchaser does not stand on•the footing of a fiduciary. Fideicommissaries are privies of fiduciariesand would be bound by partition among fiduciaries. This does notapply where partition is between a purchaser and a fiduciary—Charlesv. Nonohamy * ; Dassanaike v. Tillekeratne s. A purchaser from afiduciary is not a privy of a fiduciary—Rader v. Marrikar *. Aneea v.Bank of Chettinad (supra) followed McDonell C.J.’s judgment inKusumawathie v. Weerasinghe 7.Section 9 of the Partition Ordinance
is not the decisive factor of these cases.
Cut. adv. vult.
October 10, 1951. Basnayake J.—
This i3 an action for declaration of title to a portion of land in extentabout 2 roods and 25 perches. The plaintiffs claim that they are entitledto the land as the heirs of one Mututantrige Jane Fernando. Theircase is that one Siman Fernando was .the original owner of the. land. Bydeed No. 2110 of 4th October, 1883 (hereinafter referred to as P 1b), Simanaud his wife Maria gifted to their daughters Cecilia and Jane both ofwhom were minors at that date, one being 9 years and the other fij years. 1
1 (1947) 49 N. L. R. 25.* (1928) 25. N. L. R. 233 at p. 23S.
• (1946) 47 N. L. R. 171 at p. 175.• (1917) 4 C. W. R. 334.
(1937) 10 C. L. W. 34.• (1942) 43 N. L. R. 387.
7 (1932) 33 N. L. R. 423.
BASNAYAKE J.—West t>. Abeytoardena
m.
in equal undivided shares, an allotment of land in ‘extent 3 acres 2 roodsand 38.24 perches, known as “ The Priory The gift was subject tothe following conditions : —
that Siman during his lifetime be entitled to take the rents and
profits of the premises.
that after his death his wife should be entitled to take one half
of the rents and profits, the other half going to the donees.
that the donees shall not be entitled to sell, mortgage, lease, or
otherwise alienate or encumber the land for a term longer thanfour years at a time.
that the rents and profits shall not be liable to be sold in execution
for their debts.
{«) that after the death of the donees the land shall devolve on theirlawful issue, and that in the event of any one of the doneesdying without lawful issue, her rights in the land should devolveon the surviving donee.
The gift was accepted by one Jacob Cooray and two brothers of the'donees, Alfred Thomas Fernando and James Fernando.
In 1896, 13 years afterwards, the donors Siman and Maria made anapplication under the Entail and Settlement Ordinance to which thedonees were made respondents. Jane who was a minor aged 19-J yearswas represented by her brother James as guardian ad litem. In thatapplication the donors sought the authority of Court to exchange “ ThePriory ” for another property known as ** Siriniwasa ”. The relevantparagraphs of that application are as follows: —
“ . . . move- that under the provisions of the OrdinanceNo. 11 of 1876, this Court may be pleased to authorise and empowerthe first respondent Cecilia Fernando and the third respondent asguardian ad litem of the second respondent Jane Fernando to conveyand assign unto the first petitioner the premises called and known as■** The Priory ” (described in Schedule A in the said petition) free fromall conditions and restrictions and to order and decree accordingly.
“ In consideration thereof to authorise and empower the petitionersto transfer and assign unto the first and second respondents theallotments of lands and the buildings thereon called “ Siriniwasa(fully described in Schedule B to the said petition) subject to theconditions that they shall not sell mortgage or otherwise alienate thesame except with the consent of the petitioners or the survivor of themand to the further condition that the first petitioner shall, during hislifetime be entitled to take use enjoy and appropriate to his own usethe rents issues and profits of the said premises and after his deathand in the event of the second petitioner surviving him she shallduring her lifetime be entitled to take use enjoy and appropriate toher own use one just half of the said rents issues and profits the otherhalf thereof being taken used enjoyed and appropriated by the firstand second respondents.”
That application was granted.
222
BASNAYAKE J.—West t>. Abeywardena
The Order of Court was carried out by Deed No. 1399 of 23rd June,.1896 (P 8). The relevant portion of that deed reads as follows: —
“ …. Mututantrige Siman Fernando and Colombapata-
bendige Maria Perera to transfer and assign unto the said MututantrigeCecilia Fernando and Mututantrige Jane Fernando all those the saidallotments of the land and buildings called and known as “ Siriniwasa ”subject to the condition that they shall not sell mortgage or otherwisealienate the same except with the consent of the said MututantrigeSiman Fernando and Colombapatabendige Maria Perera or thesurvivor of them and to the further condition that the said Mutu-tajitrige Siman Fernando shall during his lifetime be entitled to takeuse enjoy and appropriate to his own use the rents issues and profitsof the said premises and that after his death and in the event of hiswife the said Colombapatabendige Maria Perera surviving him she shallduring her lifetime be entitled to take use and enjoy and appropriate-to her own use one just half of the said rents issues and profits theother half being taken used enjoyed and appropriated by the saidMututantrige Cecilia Fernando and Mututantrige Jane Fernando.”
On the very same day, by deed No. 1401, Cecilia transferred to Simanfor a sum of Rs. 45,000 her “ one undivided moiety ” in “ Siriniwasa ”,By deed No. 2180 of 30th June, 1900, Jane and Siman who were now theco-owners of " Siriniwasa ” effected a partition of the land by whichJane took lots A, B, C of the eastern portion and Siman took lots D andE of the western portion. By deed No. 3129 of 30th November, 1905,Jane who was married at that date with the concurrence of her husbandtransferred to Siman her divided eastern portion of “ Siriniwasa ” forRs. 75,000. By deed No. 4218 of 6th December, 1907, Siman transferred“ Siriniwasa ” and “ Anandagiri ” to his son James for Rs. 75,000 subjectto a mortgage of Rs. 100,000. By virtue of the last will of James,44 Siriniwasa ” amongst other properties came to the trustees of the SriChandrasekera Trust. They conveyed the northern portion of " Siri-niwasa ” in extent one acre one rood and one-tenth of a perch to thedefendant’s predecessor in title, Richard Lionel Pereira, by deed No. 290(P 8) of 20th December, 1924. By deed No. 340 of 20th April, 1935, RichardLionel Pereira gifted the land in question to Carmen Sylvene Pereira, hisdaughter.
The learned District Judge has held that deed P 1b created a fidei-commissum in respect of “ The Priory ” and that by virtue of the pro-ceedings under the Entail and Settlement Ordinance that fidei commissumattached to ** Siriniwasa ” and that Jane was not entitled to transferher share of “ Siriniwasa ” to her father Siman and that therefore Jamesobtained no title to the land by the conveyance of “ Siriniwasa ” to himby Siman. Therefore, he held that the trustees of the Sri ChandrasekeraFund had no title to convey to the defendant’s predecessor in title, andthat on the death of Jane in 1933, her share devolved on the plaintiffs.He also holds that the defendant is a bona fide possessor and is thereforeentitled to compensation for improvements, which he assessed atRs. 59,857.37. This appeal is from that decision.
BASNAYAKJS J.—West c. Abeywardena
223
learned counsel for the appellant contends—
that deed P 1b did not bring into existence a fideicommissum
because there was no acceptance on behalf of (1) the donees, and
the fideicommissaries.
that even if deed P 1b brought into existence a fideicommissum
that fideicommissum has been “ destroyed ” by the proceedingsunder the Entail and Settlement Ordinance, wherein the Courtauthorised a transfer of “ Siriniwasa ” without the burden of afideicommissum.
that the application under the Entail and Settlement Ordinance
has not been made by the proper party and the order madeon that application is null and void.
that in any case the defendant is a bona fide purchaser for value
without notice of the fideicommissum.
On the question of compensation for improvements and jus retentionisthere is no dispute. The appellant does not canvass the findings of thelearned District Judge.
Now, on his first submission that a fideicommissum is' not broughtinto existence by deed P 1b, learned counsel for the appellant relies on thefollowing paragraph of the deed: —
“ And these presents further witness that Mututantrige John JacobCooray also of Horatuduwa aforesaid doth hereby on behalf of thesaid Mututantrige Cecilia Fernando and Mututantrige Jane Fernandowho are minors jointly with Mututantrige Alfred Thomas Fernandoand Mututantrige James Fernando brothers of the • said minor doneesaccept the gift and grant of the said premises subject to the respectiveconditions aforesaid.”
He contends that Jacob Cooray, the brother-in-law of donees, had noauthority in law to accept the gift nor had their brothers any legalauthority to do so. He goes further and says that even if the acceptanceby the brother-in-law and the brothers is sufficient there is no acceptanceat all on behalf of the fideicommissaries. Without such acceptance hesubmits that it is open to the donor and donee to revoke' or alter theterms of the gift.
The question whether there was acceptance by the immediate donees,the fiduciaries, is only of academic interest as they have by their subse-quent conduct ratified the acceptance of the gift on their behalf by theirbrother-in-law and brothers. The question that remains for decision iswhether the acceptance of the fiduciaries amounts to acceptance inrespect of the fideicommissaries..,
Now on this point the authorities are divided. In the case of Caroliset al. v. Ahois *, Soertsz J. held that acceptance by the immediate doneeis not sufficient acceptance on behalf of the fideicommissaries. He saysthat it is also well settled that in the case of fideicommissary donations 1
20-N.L.R. Vol.-Uii
1 (1944) 45 N. L. B. 156.
BASNATAKE J.—West e. Abeywardena
TEA
there must be acceptance by the fiduciaries as well as by the fideicom–miasarii and, as a rule, but for one or, perhaps, two exceptions, theacceptance must be in the lifetime of the donor. He relies on Perezius•from whom he has quoted at length.
In the case of Wijetunge v. Rossie et al l, Wijeyewardene S.P.J. dissentsfrom the view taken by Soertsz, J. He takes the view that a donationis irrevocable even in the absence of an acceptance on behalf of childrennot yet in esse.
Pothier 3 in his treatise on Obligations sums up the views of the juristson the question of acceptance of gifts. He poses the question thus: —
“ Hence arises another question, whether after giving you anythingwith the charge of restoring it to a third person in a certain time, or-of giving him some other thing, I can release you from the chargewithout the intervention of such person, who was' no party to the act,and who has not accepted the liberality which I exercised in his favour ? ”'
Wijeyewardene J. has preferred the view- of those jurists who hold theopinion that a fideicommissary donation though not accepted by thefideicommissaries cannot be revoked by the mutual consent of thedonor and the fiduciaries.
I find myself unable to accept the view of those jurists. The other •school of thought appeals to me as its view seems to be more inkeeping with the underlying principles of our law of donations. Their -view is thus explained by Pothier *: —
" The reason upon which they ground their opinion is, that, thethird person not having intervened in the donation, – the engagementwhich the donatory contracts in his favour is contracted by a concurrenceof intention in the donor and donatory only; and consequently may bedissolved by an opposite consent of the same parties, according to theprinciple that nihil tarn naturale est, quaeque eodem modo dissolvi quocolligata sunt. The right acquired to the third person is then, accordingto these authors, not irrevocable, because being formed by the soleconsent of the donor and donatory without the intervention of the thirdperson it is subject to be destroyed by the destruction of this consent,,produced by an opposite consent of the same parties.”
It will be useful to consider what Van Leeuwen 3 has to say on the-same topic.
** A gift is perfected as soon as the donor has expressed his intention,,whether in writing or'verbally, even by bare agreement, and for thisreason a gift at the present day gives rise to an action. But at onetime it did not arise except by stipulation and by delivery. Butthis was changed by Justinian. With this limitation, however, thatit it not considered perfected before acceptance on the part of the-donee has followed, contrary to Anton, Fab., and Joann, del CostilloSoto Major, who were of opinion that it was enacted by Justinian,
* (1946) 47 N. L. R. 361.
* Pothier—A Treatise on the Law of Obligations or Contracts, Vol. J, Evans' trans-lation, pp. 43-44.
8 Censura Porensis, Part 1,- Book IV, Chapter 12, paragraph 16, Barber's trans-lation, p.90.
BASNAYAKE J.—West o. Abeyawardena
226
that by a mere gift apart from acceptance even a person ignorant,of bis rights may acquire, to prove which they adduce, cum in arbitrio-verb, hoc facere quod instituit. For though the Emperor enacted therethat a gift should be perfected without stipulation and delivery by asimple and bare declaration of intention, still this must be understoodof such a bare intention as after acceptance and acknowledgment cangive rise to an obligation and action. Since', otherwise, no one isbound to himself so as to have to persist in his bare intention, by whichhe is bound to the other only after consent and acceptance by the latter;and when this has not followed, the donor is perfectly free to changehis bare intention.”
The views of Burge 1 on this point are stated .thus: —
‘‘It has been considered by some Jurists, that it was competent tothe public notary to accept the donation for the fideicommissary,but this opinion has been controverted, and is opposed to the rule ofJaw, alteri stipulari nemp potest and such a mode of acceptance wasadmitted only when the fideicommissary had subsequently ratified it.Unless, therefore the fideicommissary had, by himself or anotheraccepted the donation, it was, jn many cases, subject to revocation bythe donor.” ‘
Burge goes on thereafter to state the cases in which the donor is not freeto revoke his gift.
Learned counsel for the respondent laid great emphasis on the pointthat acceptance on behalf of the fideicommissaries was not necessary inthe case of a “ fideicommissum in favorem familiae ”. He submitted thatin this instance the fideicommissum was “ in favorem familiae Herelied strongly on the case of Ex parte Orlandini and two others 2. Inthat case De Villiers J.P. adopted the view of Perezius in preference tothose of Grotius and other jurists cited by Pothier. De Villiers J.P.founds his decision on an argument of Perezius the force of which, withthe greatest respect to that eminent jurist, I am unable to see. Hesays:—
“ Now it seems to me that the argument of Perezius is unanswerable,for, if acceptance by minors and unborn persons were necessary tolend binding force to a fideicommissum in favorem familiae, it wouldfollow that such a fideicommissum could not, in practice, be constitutedby act inter vivos.”
Now, what is a ” fideicommissum in favorem familiae ”? Voet 3 'rays:—
“ A fideicommissum can also be left to the family; and Justinianhas laid down that in such a case under the term family are includednot only parents and children and all relatives, but also the son-in-lawand daughter-in-law to supply the place of those who have died, wherethe marriage has been dissolved by – the death of sen or daughter.But-' Sande points out at some length that by civil law adopted childrenalumni and freed men were included under the term familia when
’ Colonial and Foreign Laws, Vol. 2, p. 149.
3 South African Law Reports, 1931, O. F. S., P. £>., p. 141.
3 Book XXXVI, Title I, Section 27.
8J. W. B. 89182 (10/67)
226BASXAYAKE ,T.— West v. AOeyaicardcna
there is any question of some fideicommissum being left to the familyand in that connection he puts the question whether women or theirjssue are included in the family. In section 12 he has collected theauthorities who have laid down at greater length what is includedunder “ family ”, genus, stirps, linea, parentela, domvs, cippus, and thelike. Now there is also a bequest to the family when the testatorforbids the alienation of a thing out of the family or directs that itshould not go out of his line of descent or out of his ‘ blood ”.
From the foregoing it would appear that a fideicommissum such asthat created by deed P 1b is not a fideicommissum in favorem familiae,for it is a gift to the immediate donees with a prohibition againstalienation and after their death to their children who are left free to dealor dispose of the property in any manner they like. This is the kind offideicommissum known as unicum. It is binding on only one person.He who follows first after the burdened heir or legatee can with impunity-transfer the prohibited property to a stranger *.
Of the Roman Dutch Law commentators only Sande discusses atlength the nature and effect of a fideicommissum in favordm familiae.His authority is so high that even Voet quotes him when discussing thequestion. I shall therefore take the liberty of citing more than onepassage from his treatise on Restraints.
Sande 2 states : —
“ But the fideicommissum is simplex and pure, if the testator hashimself bequeathed the property to the family, as if he says in clearterms, * I leave my landed property to the family.’ This form ofwords, added to a prohibition upon alienation, has this effect, that theprohibited person cannot change the order of succession, which thelaw interprets as being laid down by the testator and therefore he cannotpass by a nearer and leave the property to a more remote member ofthe family.”
“ This is so except where it can be gathered from the words of thewill itself that the intention of the testator was otherwise; for example,if wishing to provide for the preservation of his family, he says ” I will,or I order, that the landed property be retained, remain, and be left inthe family ”. For from these words would be induced a real, multiplex,and perpetual fideicommissum, which would last as long as anyoneof the family survived.”
Thus when a thing is prohibited from alienation outside the familyor from going out of the name of the deceased, if this thing is alienatedcontrary to the will of the testator, a right of action is given to thosewho are members of the family and the name of the deceased.” Nomcnand familia are taken as synonymous. In the case of fideicommissumin favour of a family the donor or testator must use1 the expression” family ” or words to that effect in order to indicate his clear intentionto benefit his family.
»
t Sande, Webber’s translation, p. 211 et seq.
Treatise on Restraints, Webber’s translation, p. 214, etc.
BASNAYAKE J.—West v. Abeyawardena227
It is clear to my mind from what has been said above that P 1b doesnot ereate a fideicommissum in favoretn familiae. As the fideicommissumis not one in favour of the family and the gift has not been acceptedby or on behalf of the fideieommissaiies it is revocable by the mutualcor sent of the donor and donee.
Now. in the instant case, what Siman and the two children Ceciliaand Jane did was to revoke the deed of gift of “ The Priory ” and receivein exchange another gift of “ Siriniwasa ” subject to a new condition,namely, not to alienate the land without the consent of the donor or hiswife should she survive him. In that view of the matter the proceedingsunder the Entail and Settlement Ordinance, were not necessary, butperhaps it was thought that the safer course would be to obtain thepermission of Court under that Ordinance. The fact that action wastaken under that Ordinance on the footing that there was a valid fidei-commissum. which could not be revoked does not alter the true natureof the gift and its revocability. The Entail and Settlement Ordinanceprovides the machinery for carrying out what under the Roman-Dutch3.,aw was permitted with the authority of the Courts.
Yoet 1 observes: —
“ In addition to this, the Commentators have mostly held that theremaining assets which can be kept without deterioration may beexchanged by the fiduciary for other assets which are better and moreuseful, especially if it does not seem to be probable that the fldei-cominissary heir has any affection for the goods belonging to theinheritance; since the person in whose favour the prohibition againstalienation was constituted would appear not to be deprived of anyadvantages, nor does an exchange of goods by which the fideicom-missary heir is not prejudiced, but is benefited, appear to be contraryto the testator’s desire. For though one is forbidden _ to alienategoods belonging to the Church or included in a dowry, yet one isallowed by law to exchange even these for others which are moreuseful. Hence the fiduciary is not to be prevented from acquiringservitudes for the benefit of the fideieommissary property, or fromliberating it from servitudes which have been imposed on it^Moreover, the alienation of houses which are held subject to a fidei-commissum, and are falling in from age, is permitted with us on anorder of Court, subject to the proviso that the money obtained there-from should be expended in the purchase of other property or someother kind of investment, and that what is so acquired, should takethe place of what has been alienated, and become fideieommissaryproperty.”
It would appear therefore that under the common law it is thefiduciary who is qualified to make the application for sale of fidei-commissary property, and not any one else. That seems reasonable—for what interest can the donors have in the property once they havegiven it away? It is the fiduciaries who should decide what is in their
1 Book XXXVI, Title I, Section 63, Macgregor's translation.
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BASNAYAKE J.—West v. Abeyawardena
interests. The Ordinance contains no indication that it meant to alterthe common law by authorising persons other than the fiduciary tomake applications for sale or exchange of fideicommissary property.
Section 5 enacts as follows:“ Any person entitled to the possession
or to the receipt of the rents and profits of any immovable propertynow or which may hereafter become subject to such entail, fideicom-missum, or settlement as aforesaid, or of any share thereof, may applyto the District Court by petition in a summary way to exercise the powersconferred by this Ordinance.”
The question is whether the donor on deed P 1b who had a life interestcomes within the ambit of the section. Is he ‘‘a person entitled to thepossession or to the receipt of the rents and profits of the land ”? Ina sense he is such a person as he was in physical possession of the landand by virtue of the life interest reserved for himself he was entitled tothe rents and profits. But is that the interest and possession contem-plated in the section or is it the possession and interest of the fiduciary?Having regard to the common law on the subject and to the fact thatthe Ordinance is not designed to alter that law I am of opinion thata donor who has created a fideicommissum reserving a life interest is notentitled to make an application under the section. The rule of construc-tion of statutes—sometimes called the golden rule—is, that the words ofthe statute must prima facie be given their ordinary meaning. But thatrule has its exceptions. One of those exceptions is that where the plainwords fail to achieve the manifest purpose of the enactment the ordinarymeaning must yield to what is the real meaning of the words accordingto the intent and purpose of the legislature. In this view of the enact-ment there was no proper application before the Court and the orderpassed thereon was not an order under the enactment. Hence theorder and the action taken thereon do not attract the consequencesprescribed in the statute.
One of the consequences is that provided in section 8 that any propertytaken in exchange for any property exchanged under the Ordinanceshall become subject to the same entail or fideicommissum as the propertyfor which it was given in exchange was subject to at the time of theexchange.
While on this point I wish to say that I hold the view that where aproper application and order thereon is made under section 5 and anexchange is effected in consequence the property taken in exchangebecomes the subject to fideicommissum by operation of section 8 withoutmore and the parties effecting the exchange cannot escape thatconsequence by executing the deeds in such a way as to avoid a fidei-commissum in respect of the land taken in exchange.
For the above reasons the appellant is entitled to succeed as thereis no fideicommissum binding on “ Siriniwasa ”, which has been giftedsubject to one condition, and the donees have not committed a breachof that condition. The original donor therefore obtained the entirerights of “ Siriniwasa ” from his two daughters Cecilia and Jane andrightly alienated it to his son who gifted it to the trustees from whomthe present defendant derives her title.
Gunasekera c. Municipal Riccnue Inspector
229
In my view, therefore, this appeal should be allowed with costsboth here and below.
OlWASEKARA J.
I agree that deed No. 2110 of 4th October 1883 (P 1b) did not createa fideicommiasum, for the reasons that there has been no acceptanceon behalf of the fideicommissaries andf that it was not the intention ofthe donor to create a fideicommisaum in favour of a family. I thereforeconcur in the order proposed by my brother.
Appeal allowed.