096-NLR-NLR-V-16-WIRASINGHE-et-al-v.-RUBEYAR-UMMA-et-al.pdf
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Present: Pereira J. and Ennis J.
WIRASINGHE et td. v. BUBEYAT IJMMA et al.
222—'Dm Cm Mfltffrfl1, 5,65^.
Fidei commissum residui—Usufruct—Joint will—Expert.
The joint -will of A and his wife B, who were married in com-munity of property, contained the following clauses :—
“ (2) It is directed that all the movable and immovable propertybelonging to us be possessed by us, the above-named,during the lifetime of both of us according to our wish;if one should die and the other survive, the person wholives is directed as far as in us lies to possess the propertyaccording to his or her pleasure, and also to do whateverhe or she likes with it.
“ (3) It is directed that after the death of both of us all themovable and immovable property belonging to us shalldevolve on the children, grandchildren, and such otherheirs descending from us.”
Held, that the will created a fidei commissum residui, and thatthe survivor Was a fiduciary with free power of alienation.
Pereira J.—In the case of a fidei commissum residui, the fidu-ciary ehould, generally speaking, allow at least a fourth share of theinheritance to go down to the fidei commissaries, but this is notusually insisted on in the case of such a fidei commissum constitutedby the joint will of spouses whereby one is made heir to the other*
Pbbeira J.—As a rule, the opinions of experts are not receivableupon questions of construction of documents, but it "is otherwisein the case of local, provincial, foreign, or technical terms andexpressions. It is the province of the expert to say what is commonlyintended by the use of a given expression.
T | ^HE facts appear from the judgment.
H. J. Cm Pereira (with him Batuwantudawe)t for the* defendants,appellants.—It is dear from the translation and evidence of Muda-liyar Gunasekera that the will in question creates a fidei commissum.
1913*
29-
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1918.The decision in Weerasinghe v. Gunatilleke 1 was based on a wrong
Wirasinghitranslation. Expert evidence was admissible to find out the
9* Unmawaning of the will, and-the District Judge was wrong in ignoringthe evidence of the expert. The will gives the survivor power todeal with the property.
Counsel cited Rabat v. Neina Marikar; 2 Nathan's Common Lawof South Africa, vol. III., sec. 1898.
A. Jayewardene (with him A. St. V. Jayewardene), for theplaintiffs, respondents.—The will was interpreted in Weerasinghe v,Gunatilleke1 by a bench of two Judges, and it was held that thesurvivor had only a usufruct. It is a binding authority. It is notcompetent to this Court to over-rule that decision.
The surviving spouse did not obtain probate at the time he trans-ferred the land. He had only a right to transfer his share; he couldnot have transferred his wife's share without obtaining probate.
Counsel cited Buultjens v. Wickremeratne,3 Mohideen Hadijar v.Pitchey* Charles Homy v. Jane Nona.5
H. J. C. Pereirat in reply.—The heirs can dispose of a propertybefore grant of probate (Silva v. Silva 6). Counsel also referred to
Ferdinandus v. Fernando,T
Cur. adv. vult.
August 5, 1913. Pereira J.—
The substantive question for decision in this case is as to theextent of the interest in the common property of the testator andtestatrix left to the survivor by the last will and testament of DavidEkanaike and his wife Nancy Felicia. . But for the decision in thecase of Weerasinghe v. Gunatilleke,1 1 should find no difficultywhatever in answering this question. In the case cited the samequestion was before this Court, and it was held that the interest inthe common property left to the survivor by the joint will was onlya usufruct. That decision, of course, turned entirely upon thetranslations of the will that were then before the Court. Wheresuch a decision is given with reference to words or expressions in anEnglish document, I should have no hesitation in following it as anauthority, but here what the true meaning to be assigned to theSinhalese words used in the will was a preliminary question of fact,and that circumstance divests the decision of the force of a bindingauthority in law. The translation that was before the Court of thematerial words was as follows: “ In the event of one of us pre-deceasing the other, the above-named property (meaning themovable and immovable property of the common estate) shall bepossessed according to the wish, and dealt with according to the
(1894) 3 8. C. R. 105.
(1913) 15 N. L. R. 481.
« (1907) 10 N. L. R. 245.
* (1903) 6 N. L. R. 828.
i (2920) 14 N. L. R. 88.a (2923) 26 N. L. R. 99.* (2920) 5 S. C. D. 13.
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pleasure, of the survivor.” I do not think that the true sense of theexpressions used in the will is conveyed by these words. I amquite in agreement with Mudaliyar Gunasekara, a Sinhalese scholarof repute, when he says that the correct translation is: "If oneshould die and the other survive, the person who lives is directedas far as in us lies to possess the property according to his or herpleasure, and to do whatever he or she likes with it. ” I would go alittle further, and say that the force of the conjunction " saha ” is" and also ” rather than " and.” I also agree with this witness inthinking that the words quoted constitute a " regular Sinhalesephrase or sentence used to convey the fullest and most absoluterights over property.” The District Judge takes exception to thisexpression of opinion by the witness. He thinks that when thewitness had given the bare meaning of the words used, it was forthe Court to say what was intended or meant. I am not preparedto agree with the District Judge here. There are numerous phrasesand other expressions in the Sinhalese language, as, indeed, thereare in other languages, which are tantamount to stock phrases andexpressions to convey certain ideas. A mere translation of some ofthese may amount to a senseless concatenation of words. It is theprovince of the expert to say what is commonly intended by theuse of a given expression. As a rule, the opinions of experts arenot receivable upon questions of construction of documents, but it isotherwise in the case of local, provincial, foreign, or technical termsand expressions, and I think that it is quite permissible in the presentcase to take into consideration Mudaliyar Gunasekara’s opinion as tothe sense in which the particular expression referred to by him -isused by the Sinhalese. The words used in the will in the presentcase go further, in the direction of conferring absolute ownership,than those (held by this Court to have that effect) in the will con-sidered in the case of Ferdinandus v. Fernando,1 although it must benoted that the words used in that will to describe the interest of thefidei commissarii possibly influenced the Court In interpreting thewords used to describe the interest of the instituted heir. Clearly,the intention of the testator and testatrix in the present case wasto create what is well known to the Roman-Dutch law as a fideicommissum residui, that is to say, a fidei commissum with full powerto the fiduciary of free alienation. Yah Leeuwen says (Gens. For.I, 3, 7, IS): " Just as power of alienation is forbidden with a viewto the creation of a fidei commissum, so, too, in some cases, in thefidei commissum itself, free power of alienation is granted, as forinstance, if any one be instituted heir on condition of giving up asmuch as remains after his death of the inheritance in question, as isfrequently done in the case of a husband and wife, who usually notonly leave reciprocally to one another the usufruct of all theirproperty, but also give each other complete power of alienating and
i (1903) 6 N. L. R. $28.
IMS.
Perbbla J.
Wirasingh*9. RubeyatUmmc
1918.
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Pbmtba J.
Wirasinghee. RubeyatUrnma
making away with it at any time." Voet speaks very much to thesame effect in 36, 2, 54 and 56. It was argued that in the presentcase the survivor was not appointed “ heir," and reference was madeto the note at page 122 of the McGregor’s translation of Titles 1 and 2of Book 86 of Voet’s Commentaries; but thtf present case is notsimilar to the case there referred to, and if it were necessary that thesurvivor Bhould be appointed heir, it is clear that in the present casethe survivor was in effect appointed heir. In the oase of Weera-singhe v. Gunatilleke 1 cited already, it was held, as observed above,that the survivor took only a usufruct in the property devised bythe will. The question of a probable intention to create a fideicommiseum residui does not appear to have been considered in thatcase. The respondents’ counsel is stated to have said that it didnot matter whether the survivor was a fiduciarius or usufructwmus,but it is manifest that there is a great difference between the rightsof a fiduciary in the case of a fidei commissum reaidui and a mereusufructuary. In my view the fact that not only immovableproperty but movable property is dealt with by the provision inquestion of the will renders it highly improbable that the intentionwas that the survivor should have no"more than , a mere usufruct inthe property devised. It has been argued that the fact that by thethird clause of the will it iB provided that all the property should afterthe death of both the testator and the testatrix devolve on theirchildren is an indication that it was intended that the survivorshould have only a usufruct, but this clause has to be read subjectto the second, and as meaning no more than that it indicates the fideiaommissarii on the fidfii commissum created as shown above. In thecase of a fidei commissum residui the fiduciary should, generallyspeaking, allow at least a- fourth share of the inheritance to go downto the fidei commissaries, but this is not usually insisted on in thecase of such a fidei commissum constituted by the joint will ofspouses whereby one is made heir to the other (see Voet 36, 2, 56).Anyway, in the present case, the question as to whether the sur-viving testator has allowed any share of the property in claim to godown to the substituted heirs does not appear to have been raised,and, moreover, the requirement would apply, if at all, to a fourthshare of the whole inheritance and not of any particular property,and it is a question whether this requirement is not impliedlyabrogated by section 1 of Ordinance No. 21 of 1844. The DistrictJudge’s ruling that- the appellants would not be entitled to compensa-tion for improvements in the event of their being obliged to give upa half share of the land in claim is clearly erroneous.
For the reasons given above I would set aside the judgment .appealed from, and dismiss the plaintiffs' claim with costs.
Ennis J.—I agree.
Set aside.
i (1910) 14 N. L. R. 88.