027-SLLR-SLLR-1981-1-ASYLIN-PERERA-v.-NICHOLAS-PERERA-AND-OTHERS.pdf
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Asylin Perera v. Nicholas Perera and Others
321
ASYLIN PERERA
v.NICHOLAS PERERA AND OTHERS
SUPREME COURTSAMARAWICKREMA, J.
WEERARATNE J AND WANASUNDERA J.S. C. NO. 14/80D. C. CHI LAW NO. 18563/FJANUARY 20, 1981.
Evidence — Expert evidence — Conflicting translations of deed — Interpretation —Construction of deed — Fideicommissum.
In the construction of deeds and documents, ordinary words should be given theirplain and ordinary meaning. What matters is the sense in which the words are generallyunderstood, which prime facie would -be the meaning intended by the parties. OftenIt may be unnecessary to go by the etymological or strict dictionary sense.
In interpreting the prohibition clause in a deed purporting to create a fideicommis-sum in order to ascertain if the beneficiaries were designated, with certainty the trialcourt rightly preferred the construction giving the words their commonly understoodmeaning rather than a strictly grammatical construction.
Cases referred to:—
Jayatunga v. Ramasamy Chettiar 52 NLP 171
Mary v. Kurera 74 NLP 5
APPEAL from judgment of Court of Appeal.
Waiter Jayewardene Q.C. with M.S.M. Nazeem for plaintiff-respondent.
T. B. Dissanayake with Bimal Pajepakse for defendant-respondents.
April 7, 1981
WANASUNDERA, J.
The question for decision in this case is whether or not thewording in deed No. 15738 dated 23rd November 1907 isadequate to create a fidei commission. By this deed, Mariya Pererahad gifted the land, which is now the subject-matter of thispartition action, to her six grand-children in equal shares, namely, .Hugo, Theresia, Eugine, Ana, Silvestry and Mariya. It is unneces-sary for the purpose of this judgment to set out the furtherdevolution of title except to state that Silvestry, during his life-time, purported to transfer all his interests to the 6th and 7thdefendants. This transfer has been challenged on the ground that,since deed No. 15738 constituted a fidei commissum and prohibi-ted alienation, Silvestry was incapable of transferring title to the6th and 7th defendants.
322
Sri Lanka Law Reports
(1981) 1 S. L. R.
The deed which is in Sinhala imposes a prohibition againstalienation on the donee fiduciaries and contains the followingstatement, which is the subject of controversy before us —
"C3tt> ®gsf©C02Sf £31023 0251 £,<5lSzfc3jc5 ®Ol(3fSS
E>ld23ldl^ £fC30(30 gjofilS 2251-t S25110C3S3* 23(5 IS)i^ZQ 00251“ EOlCcaSzsf©S32sf 2f)ca©2»d efSrSzad S3z3d es^rosic; £“3:9 3©C 0(323<31©?}.”
These words and language are common and have, been used inmany such documents. Similar words have come to the courts forinterpretation in numerous cases. Since these decisions turned onthe particular words used in the deeds concerned, both parties inthe case have sought to place expert opinion as to the exact trans-lation of the above passage. Mr. U. A. S. Perera, a practitioner inthese courts and a well-known scholar of Sinhala, was called onbehalf of the plaintiff. He graduated with honours from theLondon University in Pali and Sanskrit and also holds a Master'sdegree. Although his opinion was not accepted, the. Court ofAppeal was constrained to say that "this witness is learned notonly in the law, but also in the Sinhala language."
The expert called by the defendants is Mr Newton PintoMoragoda. He is also qualified as a lawyer, but at present holdsthe office of Superintendent of Translation in Law in the Depart-ment of Educational Publications. He has graduated in Sinhala,Pali and History. As the trial Judge remarked, Mr. Pinto Moragodadid not have the experience of Mr. Perera and he had given hisevidence "with some degree of diffidence." Nevertheless, hisopinion has been accepted both by the trial Judge and the Courtof Appeal.
According to Mr. Perera, the words “©gzrfeoos-f o{023 0251”(descending from them) qualify the word (children) and theword "cdi©zsfe»d" is an adjectival phrase. He translates thematerial words as "that their children descending from themwho are their heirs and their executors, administrators andassigns can deal with it in any way whatsoever as they please."Mr. Pinto Moragoda on the other hand stated that the words
"s:g25f©©25f oi02s 02si" qualify all the words. "$61 eoOeO."
According to Mr. Pinto Moragoda, the excerpt means "theirchildren, heirs, executors, administrators and assigns." One reasonhe gave for this translation is that the expression c<5i©s?z33<5" aretwo words and mean children and heirs as against Mr. Perera's viewthat it was an adjectival compound meaning "heirs who are children."In regard to the functionaries referred to Mr. Perera has said that
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Asylin Perera v. Nicholas Perera and Others
323
they cannot be said to descend from the donor or donee. Mr.Pinto Moragoda has however stated that this collocation of wordsis incomplete since they are stems and the wordsupplies
the necessary case ending. That is why he is of the view that thisstatement refers to four classes of persons as beneficiaries.
The learned trial Judge has accepted Mr. Pinto Moragoda'sopinion and held that the words mean "that after the six grand-children mentioned in the deed, the beneficiaries are children,heirs, ’executors, administrators and assigns of the six donees."This the learned trial Judge states has created an uncertainty asregards the beneficiaries, meaning the fidei commissarii. The trialJudge purported to apply the decision of Nagalingam, J., inJayatunga v. Ramasamy Chettiar (52 N.L.R. 171) in coming tothis conclusion. In Jayatunga's case, the language in the relevantdeed reads as follows- —
. "Albina Hamyshall possess only the said properties
and on the death of her the said donee the children
from her and their heirs, executors, administrators and assignsshall have the right to possess the said properties or to do what-ever they please with the same."
Justice Nagalingam held that the fidei-commissaries were clearlyand adequately designated and that the words "heirs, executors,administrators and assigns" used in apposition to the fiduciaryor fidei commissari can be considered as a mere intention to vestthe plena proprietas in the property in such heirs and cannot causeuncertainty about the beneficiaries. He accordingly held that theuse of such words does not’derogate from the valid creation of afidei commissum. On the other hand he accepted the principlethat where the executors, administrators or assigns of the doneeare indicated as the fidei commissaries, an uncertain class ofpersons are referred to as beneficiaries and due to this uncertaintythe effect to create a fidei commissum would be rendered nuga-tory.
Mr. Jayewardene has referred us to certain authorities contai-ning the main principles governing the construction of deeds anddocuments of this nature. Generally, in the construction of deedsand documents, ordinary words should be given their plain andordinary' meaning. What matters is the sense in which the wordsare generally understood, whichprima facie would be the meaningintended by the parties. Often it may be unnecessary to go by theetymological or strict dictionary sense. He also referred to instan-ces where our courts, even when Sinhala was not the language ofthe courts, had examined the document concerned and arrived atits true meaning.
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Sri Lanka Law Reports
(1981) 1 S. L R.
The words in dispute are commonly used in documents of thisnature and upon a consideration of the document as a whole, theirordinary meaning appears to me to approximate to the meaningMr. U. A. S. Perera has assigned to them rather than to the onesuggested by Mr. Pinto Moragoda. As the learned trial Judge him-self states in the judgment, Mr. Perera admitted that he was see-king to give these words their commonly understood meaningrather than give them a strictly grammatical construction. Mr.Pinto Moragoda on .the other hand chose to do the latter and themeaning he has given to these words seems too technical and gram-matical. It is unlikely that in the context of a legal document likethe deed P2, the words"<S9®$ &syrf> Oj0zs> eW'or ''descending fromthem" would be used with reference to executors, administratorsand assigns. It is also improbable that the donor who has, in thepart of the provision immediately prior, clearly stated that thedonees would not be at liberty to sell or to alienate their lifeinterest or to alienate in any manner, would, in this part of theprovision which follows immediately after, refer to assigns of thedonees. In this view of the matter there is a considerable doubtabout the correctness of Mr. Pinto Moragoda's translation. If weaccept Mr. U. A. S. Perera's translation as the correct one, then onthe basis of the reasoning in Jayatunge v. Ramasamy Chettiar(supra) which has been followed by Tennekoon, J., in Mary v.Kurera (74 N.L.R. 5), the objection that the fidei-commissarieshave not been designated with sufficient clarity fails.
I would therefore set aside the judgment of the Court of Appealand send the case back for further proceedings on this basis.The plaintiff will be entitled to costs both here and in.the Courtof Appeal. The plaintiff will also be entitled to payment ofRs. 210/- from the 6th and 7th defendants jointly as costs of con-test in the trial court.
SAMARAWICKREME, J. – I agree
WEERARATNE, J – I agree
Appeal allowed