023-NLR-NLR-V-36-SELVADURAI-v.-TAMBIAH-et-al.pdf
Selvadurat v. Tambiah.
105
1934
Present; Dalton J. and Maartensz A.J.
SELVADURAI v. TAMBIAH et al.
143—D. C. Jaffna, 1,283.
Fideicommissary gift—Dowry gift subject to condition—Children to be givenshares when they come of age—Intention of donors.
Where, by a deed of gift, property was donated to S as dowry subjectto the condition that, “ if she, the dowry grantee, has issue she shall causethe properties to reach them when they come of age ”,—
Held, that the intention of the grantors, as expressed in the deed,was that the share of each child shall vest in that child on his or herattainment of majority.
HIS was an action for declaration of title to land. By deed dated
November 21, 1871, three persons, the grand parents and themother of one Seethevipillai, granted certain lands to her subject to thecondition that the mother was to enjoy one-fourth share of the produceof the lands. It then provided that if Seethevipillai had issue “ she shallcause the properties to reach them when they come of age ”. The questionwas whether under the latter provision a share passed to each child ofSeethevipillai on that child attaining majority or only on the youngestchild reaching that age.
The learned District Judge dismissed the plaintiff’s action, holding thatthe property did not pass from Seethevipillai until all her children hadattained majority.
H. V. Perera (with him E. B. Wikramanayake and Aluvihare), forplaintiff, appellant—The point of vesting is when each child comes ofage, not when the last child comes of age. The word “ come ” clearlyindicates that The childhen do not all come of age together. Eachchild comes of age when it attains the age of twenty-one. There areas many fidei commissa as there are children. The words of the deed
106
DALTON J.—Selvadurai v. Tambiah,
must be given effect to. It is not for the Judge to disregard that intentionbecause of imaginary practical difficulties. Such practical difficultiesare possible but rare. They are provided for by Voet when he deals withfidei commissa in favour of a class. {Voet 36, 1, 32—Macgregor’s trans-lation, p. 88.) Those who take the property at the time the conditionis fulfilled take it subject to the condition that part should be restoredto those who may be subsequently bom.
Weerasooria (with him Subramaniam), for defendants, respondents.—The deed must be given the meaning it bears. The words “ when theycome of age ” mean when they all come of age. It does not say “ whenthey respectively come of age ”. The intention of the donors was togive their daughter a number of lands to be regarded as one estate to begiven to their grandchildren as a whole not piecemeal. The income ofthe property would be necessary for the mother to bring up the otherchildren. When all the children come of age then the property is to bedivided. If their intention had been otherwise the direction would havebeen that the share should be given and not the property. (Macgregor157—Voet 36, 2, 21.) Even if, on the appellants' interpretation, theadjustments could be made, the dominium would be in suspense.
Cur. adv. vult.
June 8, 1934. Dalton J.—
The question arising on this appeal is as to the construction of the deedD 1. By this deed, dated November 21, 1871, three persons, the grand-father, grandmother, and mother of the grantee, purported to grantcertain lands to Seethevipillai as dowry, subject to certain conditions.During her lifetime the mother of Seethevipillai was to take and enjoyone-fourth share of the produce of the lands. It was then provided that“ if she, the dowry grantee, has issue, she shall cause the properties toreach them when they come of age ”.
The principal question for decision is whether by this latter provisiona share passed to each child of Seethevipillai on that child attainingmajority, or only on the last and youngest child reaching that age.
The evidence shows that Seethevipillai had five children, who wereall living when she died in 1927. The youngest of these five children isthe fourth defendant, who is married to the third defendant, her husband.It is conceded that she was born in 1900. It is further admitted thatall the other children attained their majority ten years prior to 1930.Plaintiffs and their predecessors in title have been in uninterrupted andundisturbed possession of the land in dispute since the year 1888, untilthey were ousted by defendants in October, 1930. This action wasinstituted on September 19, 1931.
The first, second, and fourth defendants are three of the children ofSeethevipillai. If they acquired rights under the deed D 1 at the timeeach came of age, then, so far as the first and second defendants' areconcerned, the plaintiffs have prescribed against them. The fourthdefendant having come of age in 1921, plaintiffs concede they cannotsucceed against her, and give her a one-fifth share in the land describedin the plaint.
DALTON J.—Selvadurai v. Tambiah.
107
The learned trial Judge has dismissed plaintiffs’ action, holding thatthe property dealt with in deed D 1 was not to pass from Seethevipillaiuntil all her children had attained majority. Mr. Weerasooria for thedefendants (respondents to the appeal) supports this conclusion, althoughhe concedes he does not adopt the reasoning by which the trial Judgehas reached it. I regret I am unable to agree with the conclusion.
The meaning of the clause 1 have set out above that impressed itselfupon me on the first reading of the deed was that each child was to haveits share on that child attaining his or her majority. Subsequent readingsof the deed have only strengthened the first impression formed, andnothing 1 have heard in argument has weakened it.
The learned trial Judge has approached the question in another way.He has not, it seems to me, tried to ascertain the intention of the partiesto the deed from the language used, but he looks for what he calls arational and practical interpretation that will give rise to the least numberof difficulties. He has rather approached the matter as if the grantorsin 1871 were in possession of the knowledge of the facts of which thelearned Judge was in possession over sixty years later. As a matter offact none of the difficulties visualized by the learned trial Judge arosein this family, but even if they had, and had children been bom toSeethevipillai after her first child attained his or her majority, Mr.Weerasooria, I think, conceded that the law was adequate to providefor necessary adjustments to be made so that the provisions of the deedshould be carried into effect. (See Voet XXXVI., tit. 1, 32.) Nodifficulty arises from the fact that this is a fidei commissum created bydeed and not by will.
•
I have come to the conclusion then that the learned Judge’s con-struction of the deed is wrong. The words *' when they come of age ”as used here mean when each one of them comes of age. In that eventthe plaintiffs have prescribed as against the first and second defendants,who attained majority more than ten years before the ouster of the plain-tiffs. Adverse possession by the plaintiffs and their predecessors intitle for a period of ten years prior to the date of ouster is admitted.
I can find nothing of any real substance in the deed to support theargument that, if each child was entitled to a share on attaining majority,Seethevipillai had to execute a deed or go through some formality for thepurpose of vesting that share in each child. This argument was raisedsomewhat tentatively at the close of the appeal, in the event of it beingfound that the trial Judge’s construction of the deed was wrong. Theintention of the grantors as expressed in the deed, so it seems to me, isthat the share of each child shall vest in that child on his or her attainmentof twenty-one years.
The appeal must therefore be allowed, and the plaintiffs are entitledto the order asked for in respect of 4/5 of the land described in the plaint.No issue was framed, although evidence was led, as to damages. Nothingwas said to us on this subject in the argument on appeal, and I gatheredthat the plaintiffs would be satisfied with a declaration in respect of 4/5of the land only. They will also be entitled to an order that the first and
108 AKBAR J.—Associated Newspapers of Ceylon, Limited v. Kadirgamer.
second defendants be ejected frpm the land, and to their costs againstthese two defendants, in the lower Court and in this Court. As betweenthe third and fourth defendants and the plaintiffs, the order made by thetrial Judge in respect of costs in the lower Court will stand. In thisCourt they are entitled to their costs of appeal as against the appellants(plaintiffs).
Maartensz A.J.—I agree.
Appeal allowed.