061-NLR-NLR-V-12-WIJEWARDENE-v.-ABDUL-HAMID-et-al.pdf
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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Middleton.
WIJEWARDENE v. ABDUL HAMID et al.
C., Colombo, 26,015.
Fidci commissum—Construction—Devise to a person and his^ descendants—•Sufficiency of designation of substitutes—Roman-Dutch Law.
A last will contained the following clause :—
“ Whereas the title deed of the garden and house lying betweenthe said two gardens has been passed in my name and mortgagedwith the son-in-law.of Mr. Andriesz for 800 rixdollars, I wish thatSella Umma, wife of my brother Cader Saibo, shall pay the debtand get the title deed passed in her name. The gift cannot be sold ormortgaged even for my debt, but I hereby direct that she andher descendants shall enjoy and possess the same.”
Held, that the said clause created a valid fidei commissum infavour of the descendants of Sella Umma.
A
CTIO rei vindioatio. The plaintiff alleged that one SellaUmma was the owner of the property in dispute; that
she by deed No. 2,241 dated December 4,1878, gifted the same toMuttachi Umma, who by deed No. 3,581, dated April 21, 1893,gifted the same to Peera Umma ; that the said Peera Umma diedin January, 1902, and administration was taken out to her estate,and the property sold by the administrator by public auctionand purchased by the plaintiff under deed No. 1,828 dated August28, 1906.
The first defendant denied that Sella Umma was the absoluteowner of the property, and alleged that she held it subject to afidei commissum in favour of her descendants, of whom the firstdefendant was one, and that her deed of gift in favour of MuttachiUmma and the subsequent deeds of gift were invalid and conveyedno title ; the second and third defendants disclaimed title.
The title of Sella Umma to the property was derived under thelast will dated May 10,1838, of one Alpom Pokka Ahamado Pokka,who devised it in the following terms :—“ Whereas the title deedof the garden and house lying between the said two gardens has beenpassed in my name and mortgaged with the son-in-law of Mr.Andriesz for 800 rixdollars, I wish that Sella Umma, wife of mybrother Cader Saibo, shall pay the debt and get the title deedpassed in her name. The gift cannot be sold or mortgaged evenfor my debt, but I hereby direct that she andlier descendantsshall enjoy and possess the same.”
1909.August 6
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1909. The Acting District Judge (F. R. Dias, Esq.) dismissed theAugust 6. plaintiff’s action, holding that Sella Umma took the property
subject to a fidei commissum, and that her deed of gift in favour
of Muttachi Umma and the subsequent deeds of gift were invalidand conveyed no title.
The plaintiff appealed.
Walter Pereira, K.C., S.-G. (E. W. Jayewardene with him), forthe plaintiff, appellant.
Bawa (F. M. de Saram with him), for the first defendant,respondent.
Our. adv. unit.
August 6, 1909. Hutchinson C.J.—
I agree with my brother Middleton that the ruling of the DistrictJudge was right; that the devise in A. P. Ahamado Pokka’s milcontains an absolute prohibition against alienation of the landand a gift of/it to Sella Umma and her descendants, and creates afidei commissum in favour of her descendants.
A day or two after the hearing of the arguments on the appeal,the appellant’s counsel informed us that, the original will is filedin the case No. 5,523, D. C., Colombo (Testamentary), and suggestedthat we should send for it and have it compared with the translationwhich was put in evidence in the present case. In the present casethe probate of the will is in evidence, and it is not suggested thatit is not a correct copy of the original, nor is there any evidencethat the translation which is in evidence contains any mistake.I think, therefore, that the appeal should be decided upon theevidence which we have, and that it should be dismissed.
Middleton J.—
The plaintiff in this action sought to vindicate liis claim tocertain premises, No. 5 and No. 6, Ferry street, Colombo. Theproperty originally belonged to one Sella Umma, who on December 4,1878, conveyed No. 5 to her daughter Muttachi Umma and No. 6to her daughter Peera Umma,- who mortgaged both properties toplaintiff’s husband in 1905. He died, and the Secretary of theCourt being granted administration of his estate sold the housesby auction, and they were bought by the plaintiff. The firstdefendant claims by inheritance as the son of Peera Umma, thesecond and third defendants are lessees and disclaim title.
The first defendant’s case is that the property in question wasdevised to Sella Umma under the last will and testament of AlpomPokka Ahamado Pokka dated May 10, 1838, subject to fidei com-missum. The terms of the will were in reference to this property :“ Whereas the title deed of the gafden and house lying betweenthe said two gardens has been passed in my name and mortgaged
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with the son-in-law of Mr. Andriesz for 800 rixdollars, I wish that 1909.Sella Umma,.wife of my brother Oader Saibo, shall pay the debt August 6.and get the title deed passed in her name. The gift cannot be sold Middletonor mortgaged even for my debt, but I hereby direct that she and J-her descendants shall enjoy and possess the same.”
The District Judge held in favour of the first defendant’scontention, and dismissed the plaintiff’s action against him. Theplaintiff appealed, and it was contended for him, on the authorityof 7 S. C. C. 135 and 2 N. L. R. 233, (1) that the will did not createa fidei commissum, and (2) that if it did, the terms of the grant toSella Umma under the will were inconsistent with Uie testator’sright to impose a fidei commissum.
The definition of a fidei commissum in the Gensura Forensis,
3,7,1, involves a mandate to an institute to whom some propertyis given to give up the whole or part of it or something else to asubstitute. To create it no special form is necessary, but itscreation may be inferred from expressions used in the instrumentcreating it showing the intention of the maker to create it (2 Burge106).
One mode by which it is declared in favour of a family is byprohibiting any alienation of the subject of the fidei commissumout of the family (Burge, Vol. II., 112). If the terms in which theprohibition is expressed admit of any doubt respecting its extent,such construction is to be made as will impose the least burthen onthe heir and the least restraint on the freedom of alienation (Burge,
Vol. //., 113). A prohibition against alienation will not create afidei commissum, but is perfectly nugatory, unless the persons aredesignated in favour of whom the testator declares the prohibition.
It is not sufficient that he- names particular persons to whom heforbids the alienation to be made, unless he also designates someperson to whom the estate shall pass in the event of its beingalienated (Burge, Vol. II., 113).
In my opinion the construction of a grant to a man and his heirsas vesting the property in him absolutely, as Mr. Justice Lawriesays at page 135 of 7 S. 0. G., is coloured by the learned Judge’sknowledge of the Law of Real Property as it prevails in England.
In Ceylon, as a man has also the power of appointing his heirsby will, such a grant would also be an absolute one. Strictlyspeaking, an heir is a person who succeeds by descent to an estateof inheritance, and if the word were construed strictly, the grantto a man and his heirs would restrict alienation to the heirs bydescent, and would, I think, be a sufficient designation to create afidei commissum; but Mr. Justice Lawrie (7 S. G. G. 135) statesthat many writers (he does not name them) on Roman-Dutch Lawsay it does not, I presume, on the ground that there is not a sufficientdesignation of the substitutes (2 Burge 113 ; Voet, 36,1,27 ; Van derLinden, 136 ; Grotius, 153, section 11, quoted by Lawrie J.).
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1909. I should, however, support the decision in 7 S. C. C. 135 on theAugust 6. ground that the word “ administrator ” was introduced into theMiddleton grant there. Is, then, a grant to a man and his descendants a suffi-
J.oient designation of the substitute ? Does it show an intention totie up the properties, as Withers J. says in 2 N. L. R. 234, for threeor more generations ? In that case I agree with that learned Judgethat the terms of the grant did not warrant such an inference.In 9 S. C. C. 33 a Court of three Judges held that a grant of property“to A, her children, and their children in perpetuity, which shallnot be sold, mortgaged, or gifted to any one,” was a good fideicommissum. This is practically the same as a grant to A and herdescendants, and here by the will the gift is not to be sold or mort-gaged even for the testator’s debt. I think 1N. L. R. 311, on whichmy brother Wendt relies in 7 N. L. R. 43, is certainly in favourof the learned District Judge’s finding based in 6 N. L. R. 344.In 3 Balasingham 194 my brother Grenier and I apparently followedthe ruling of Withers J. in 173, C. R., Batticaloa, 1.150.1 In thatcase there was no prohibition against alienation, and we thoughtas Withers J. said (ubi supra) that there were no words of prohibitionindicating that those to whom the gift first came should hand it overto those who came after. Also in 3 Balasingham 194 the propertywas given as dowry with a reservation in the donor of a life interest,which fact made Grenier J. think that it was an absolute gift.In 9 S. G. C. 33 it was held that a gift to U, her children, andtheir children in perpetuity, with an expressed restraint on alien-ation, created a fidei commissum. In Paterson v. De Silva (D. C.,_* Colombo, 88,822) reported just below the above case, Clarence J.expressed some doubt as to the decision in 7 S. G. G. 135 (ubi supra).In the present case there is a distinct prohibition against alienation,and there is an implied institution of fiduciarii and substitutionof fidei commissarii.
The word “ descendants ” is equivalent to children and children’schildren, and to my mind would indicate a devolution to thechildren per capita, and the grandchildren per stirpes at least to thefourth generation, according to the rules of intestate succession.As regards the second point raised by the learned Solicitor-General,the property was a conditional gift, and could only be acceptedsubject to the conditions intended to be imposed.
I would dismiss the appeal with costs.
„Appeal dismissed.
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' S. C. Min., September 26,1898.