PALIPANE v. TALDENA et al

051-NLR-NLR-V-31-PALIPANE-v.-TALDENA-et-al.pdf


( 196 )
1929.
Present: Dalton and Akbar JJ.
PALIPANE v. TALDENA et al.
425—D. G. Kurunegala, 12,562.
Ifidei commission—Prohibition against, alienation to an outsider—Personal prohibition—Alienation by descendant acquiring interestby purchase.
Where a last -will bequeathed property to the children of thetestator and the grandchildren (issue of a deceased child) andprovided as follows: —
"It is my express will and desire that my' said children andgrandchildren shall not sell, mortgage, lease for uu>rethan a year, gift or otherwise make over the said propertyto any outsider, i.e., to any one who is not a descendantof mine.”
" If any of my said heirs, or in failure, their lawful issue, shallcontravene the provisions contained in the clause hereof,such heir, or lawful issue, shall forfeit all claims to anyshare whatsoever in my estate.’’
Held, that the prohibition against alienation was personal tothe immediate devisees and that it did not bind a descendantof the testator, who had acquired an interest by purchase fromone of the devisees.
T
HE plaintiff, as the executor and as a devisee under the lastwill of his father, P. B. L.alipane, sued for a declaration that
the first defendant, his sister had contravened the provisions of thelast will by selling a land called Yakkala estate left to her underthe will. The material parts of the will are set out in the headnote. The three children and the grandchildren mentioned in thewill survived the testator, who died in 1923. It was the plaintiff’scase that the first defendant sold a share of the estate in questionto her two sons, Aelian and Neville. Thereafter Aelian instituteda partition action and the parties got divided shares in the land.The first defendant then conveyed her divided lot to Aelian andNeville, who sold all their interest to the second defendant, who wasan outsider. The learned District Judge dismissed the plaintiffs’action on the ground that the prohibition against alienation wasimposed on the immediate devisees only.
H. V. Perera, for plaintiff, appellant.—Our position is that thefirst defendant has forfeited her rights to her share and thatthis share has devolved on the other heirs, of whom the plaintiffis one.
< 197 )
There is a prohibition against alienation to outsiders and shehas resorted to a devise to get over these conditions by transferring palipane*.to her sons (mere nominees)* who transferred to second defendant. TaldenaWe say deeds in favour of Aelian and Neville were merely deeds toget over the prohibition.
We have a real prohibition, not„ a personal prohibition. It isa recurring prohibition therefore real. The prohibition applies tolawful issue, whether, they inherit or whether they take on purchaseor transfer.
There is a fidei commissum in favour of the family.
357, D. G. Galle, 23,160,December 21, 1928, the intention
to keep the property within his descendants is indicated by thedefinition of “ outsider.*'
R. L. Pereira (with H. H. Bartholomeuez and Ranawake), for seconddefendant, respondent, cited Sande, p. 177, McGregor’s Poet, pp. 71,
72.
Croos Da Brern, for first defendant, respondent, cited Hadjiar v.
Meyappa 1 and Hettiaratchi v. Suriaaratchi et al. 2
H. V. Perera, in reply, cited Robert v. Abeywardane et al.3July 9, 1929. Dalton J.—
The question arising in this case is as to the interpretation ofthe will* of plaintiff's father, P. B. Palipane. The testator leftconsiderable property, and plaintiff who is executor, trustee, andalso a beneficiary under the will, contends that- the first defendant,his sister, Eugene Frances Taldena Kumarihamy, has contravenedthe provisions of the will, selling land called Yalckala estate andfields left to her by the will outside the family. The property,thesubjectofthis action,is someof itin Schedule Aand some
in ScheduleBattached tothe will.Thematerial partsof the will
may shortly be set out as follows: —
I hereby give, devise, and bequeath the property
….describedin ScheduleA ….unto my
trustee, Phillip Bertram Palipane, Proctor, in trust for mychildren, (1) Phillip Clarence Palipane, (2) Eugene FrancesTaldena Kumarihamy, and (3) Phillip Bertram Palipane,
Proctor, share and share alike upon the trust hereinafterprovided.
Ihereby give, devise,andbequeath theproperty,
described hi Schedule B …. to my afore-said trustee in trust for my children and grandchildren (3children and 4 grandchildren named and shares set out) uponthe trust hereinafter provided.
J 23 N. L. R. 333, 464.* 24 A L. R. 140.
3 15 N. L. R. 323.
(. 198 )
1929.
DALTON' J.
Palipcm* v.Taidena
Provided always and it is my express will and. desire thatmy said children and grandchildren shall not sell* mortgage,lease for more than a year, gift or otherwise make over thesaid property in the said schedules to any outsider, f.aM anyone who is not a descendant of mine. ….
8. If any of my said heirs or in failure their lawful issueshall contravene the provisions contained in the clauses hereof…. such heir or lawful issue shall forfeit all claims to
any share whatsoever in my estate, and the shstre which shall beso forfeited shall merge in the inheritance of and be dividedequally among my other heirs, in which case the said propertyshall not be sold, mortgaged, leased or otherwise alienated toany outsider as aforesaid.
The testator died on May 5, 1923.; -His three children and thefour grandchildren mentioned. in -the will'- survived him. He alsoleft other grandchildren not mentioned "ifa-liis will. At the endof 1924 and beginning of 1925 the first defendant conveyed (P2 andP 17) undivided shares in the Yakkala estate and fields inheritedby her under her father's will to her two sons, Aelian and Neville,the consideration behig stated to be Rs. 2,000 and Rs. 6,000respectively. Thereafter Neville brought a partition action in respectof this undivided property and the parties by the decreegot divided blocks. At the instance of the present plaintiff theprovisos and prohibitions contained in the will were embodiedin the partition decree, by which Aelifcn received lot D of Yakkalaestate, and Neville received lot E of the estate and lot A of thefields, whilst their mother received, lot A3 of the fields. She sub-sequently conveyed lot A3 to her two sons (P19 of 20.12.1926).Then Aelian and Neville conveyed lots D and E by deed P18 onDecember 31, 1926, and lots A and A3 by deed P20 on January 1,1927, to the second defendant. The second defendant is an outsiderand no member of the testator's family. Plaintiff in this actionnow claims that owing to this alienation his sister’s interests inthese lands “ and in all other properties devised to her ” vest inthe other named heirs of deceased in equal shares. He is suingalone apparently in his personal capacity as an heir, but he asks tobe declared entitled to “ the said shares. " The trial Judge dismissedhis action holding that the prohibitions contained in the will onlyapplied to those inheriting directly under the will, and not to’descendants of the testator who acquired any interest by purchase.The plaintiff appeals from that decision.
Mr. Da Brera for the first defendant-respondent was prepared toargue that the will created no fidei commissum at all, but it was notnecessary to hear him on that point. Assuming that the will didcreate a Mei commissum I am satisfied that on the question arising
( 100 )
here the trial Judge's interpretation of the will is correct. Sevenpersons are specifically named as heirs, and they alone are prohibitedfrom alienating what they inherit outside the family. This prohibi-tion is personal to them and only attaches to the share acquiredfrom the testator and not to toy share acquired from a co-heir.(Sopi Nona- v. Abeyatvardena, 10 G. L. B. 25.) In conveying toher sons first defendant contravened no provisions of the will.I can find nothing in the will expressing the intention of the testatorto prohibit her sons from dealing with the property as they like,if they should acquire it. Neither of them, be it-noted, is one ofthe grandchildren mentioned in the will.
The plaintiff’s contention that the prohibition is a real and not &personal one, and that he has bound the lawful issue of the namedheirs by the conditions of the will, is based upon the use by thetestator of certain words in clause 8 of the will. Until clause 8 is;reached it will be noted that the will makes no mention at all of theissue or heirs of the seven heirs.named in the will, and there is no-prohibition against alienation by anyone save the seven personsnamed. Clause 8, however, states “ if any of my said heirs or infailure their lawful issue shall contravene .the provisions containedin the clauses hereof,M such heir or lawful issue shall forfeit allclaim to the estate. It is argued for the appellant that the words“or in failure their lawful issue ’* mean that the testator hasimplemented the earlier clauses of the will and has'bound the lawfulissue of the heirs named by those conditions by which the namedheirs are also bound. But supposing any of the. named hen’shad died in the lifetime of the testator it is admitted that no rightswould devolve under the will upon his heir. On the other hand,it is urged for the respondents that the words mean nothing morethan this, namely, that, if one of the seven heirs died before thetestator, the heirs of such deceased heir stepped into his shoes.This latter argument seems to me to be the more plausible onerbut there are difficulties in acceptingit, as wellas the othercon-struction suggested. Thewords areadmittedlydifficult of inter-pretation, but I am quiteunable toread themas expressingany
intention by the testatorto enlargethe number of personswho-
are subject to the prohibition contained in clause 5, or any intentionto create a real prohibition attaching to the property bequeathed.That is the question that we have to decide, and it must, in myopinion, be answered against the appellant. That being so, therebeing no contravention of the provisions of the will by the firstdefendant, the plaintiff must fail in his action.. It might be herenoted that he was given an opportunity of purchasing the propertyhimself for considerably less than the price paid by the seconddefendant.
1929.
Dalton J.
Palipane v.Taldena
( 200 )
With regard to the conditions entered in the partition decreeit is not suggested they go any further than the provisions of thewill. On the above construction of the will the prohibitions arepersonal to the seven heirs named. Anything in the decree there-fore admittedly does not go beyond that. The appeal is dismissedwith costsAkbau J.—
The only question in this appeal is the correct interpretationof certain paragraphs in the last -will of P. B. Palipane, Rate-mahatmava, who died on May 5, 1923, leaving a last will andcodicil dated respectively May 15, 1922, and January 6, 1923, whichwere admitted to probate in D. C.. case No'. 2,395, Kurunegala.
The plaintiff is the son of the testator and also the executorand a devisee under the will; the first defendant is the daughterof the testator and also a devisee under the will. Certain propertieswere given to the plaintiff, the plaintiff's brother, the first defendant,and four grandchildren, the share being J each, and then there isthis proviso “ Provided always and it is my express will and desirethat my said children and grandchildren shall not sell, mortgage,lease for more than a year, gift or otherwise make over the saidproperty in the said schedules to any outsider, t.a., any one who isnot a descendant of mine." By a later clause it was provided asfollows:—" If any of my said heirs or in failure their lawful issueshall contravene the provisions contained in the clauses hereofor shall dispute or raise any objection to this my last will, suchheir or lawful issue shall forfeit all claims to any share whatsoeverin my estate, and the share wl ich shall be so forfeited shall mergein the inheritance of and be divided equally among my otherheirs, in which case the said property shall not be sold, mortgagedleased or otherwise alienated to any outsider as aforesaid.
The first defendant transferred a part of her share to her two sons,Aelian and Neville. Thenthere was a partition case inwhich
all the heirs underthe willwere parties, and theundividedshares
were allotted as divided shares to all the heirs under the will andalso to Aelian and Neville. Subsequently, the first ’defendantconveyed the remaining share belonging to her (being now a dividedshare under the partition case) to her son, Aelian. Neville andAelian conveyed all their interests in the land so conveyed for aconsideration to theseconddefendant who is an “outsider "within
the meaning of theprovisoquoted by me above.The sole question
for consideration which was pressed at the hearing of this appealis whether this sole to the second defendant was in violation of,theterms of the will quoted by me above. It will be seen that the.prohibition of alienation to an outsider in the proviso is restricted,only to the immediate devisees. By the later clause it is only “ If
1020.
Dalton J.
Palipane v.Tal*ten<i
( 201 )
any of my said lieirs or fa failure their lawful issue shall contravenethe provisions contained fa the clauses hereof …. suchheir dr lawful issue shall forfeit all claims to any share whatsoeverin my estate and there is the further condition that the share soforfeited is to be divided equally amongst, the other heirs subjectto the restriction fa the proviso.
It is argued by Mr. H. V. Perera that this will creates a fideicommissum within the family on the authority of the case of Robertv. Abeywanlane et at.1 but on the authority of the later cases, namely,Hadjiar v. Meyappa,2 Amarawickreme v. Jayasinghe et al. ,3 andHettiaratchi v. . Suriaratchi et al.,* I do not think that the decisionin the lo N. L. R. case is any longer an authority. On theconstruction of the proviso and the clause it seems to me that theprohibition is imposed only on the immediate devisees againstalienating all the properties so devised to an outsider. The onlyquestion therefore- which I have to decide is whether accordingto the terms of the will Aelian and Neville are also prohibitedfrom alienating to an outsider. Upon this point the law seemsto be clear that this prohibition is bv the wording of theproviso a personal prohibition and not a real' prohibition(see Naina Lebbe v. Maratkar. et al.5). In McGregor's Voet, p. 71we find the following passages: “ But prohibitions which arenot nude, but binding, appear to fall under one of two generalclasses, to wit, (i) personal, (ii) real prohibitions—
“ A prohibition is personal when a testator interdicts certain
persons, by naipe or as a class from making alienation;for example, if he says, ‘ I prohibit Titus or my heir orlegatee from alienating the land. ’ When a prohibitionis in this way imposed upon a person, it applies only tothe person prohibited, and does not go beyond him.(Sande de Prdh. Al. 3.2.1 and 2; Webber, p. 177.)
A prohibition is real when the testator has conceived theprohibition rather in rem than m personam, and when it
' can be gathered from the words of the will that this washis intention : for instance, if, wishing to provide for thekeeping up of his family, he has said, ‘ I desire that theland shall not pass awajy from my famify. ’ ” (Sande,ubi sup section 8; Webber, p. 180).“ Such prohibition is
a real burden, which passes to all persons whatsoeverto whom the thing prohibited from alienation comes.'{Ibid, section 10, p. 181). ”
1 (1919) IS N. L: R. 323.1 (1923) 23 N. L. R. 462.
* (1923) 23 N. L. R, 333.* (1924) 24 N. L. R. 140.
s (1922) 22 N. L. R. 295.
1»29.
Akbab J.
Palipanev.
Taldena
( 202 )
1929.
AxbabJ.
PaUpane v.Taldena
In my' opinion the words of the will show that the prohibi-tion is imposed only on .the immediate devisees, and thereforeAelian and Neville are not precluded from alienating the sharethat devolved on them from their mother to an outsider. Thereis some difficulty owing to the occurrence of the words ‘ or in failuretheir lawful issue ” in the later clause. As Mr. Perera points out,if a devisee had died before the death of the testator, there wouldbe a lapse of the devise, and therefore the words mentioned byme above can have no meaning. At any rate under the later clauseit is only if there is a contravention of the proviso that a forfeitureensues. A contravention can only occur under the proviso if itis one committed by the immediate devisees and by no one else.In this view I think the decision of the District Judge was right, andI would dismiss the appeal with costs.
Appeal dismissed-