KULARATNE AND ANOTHER V. GUNATILLEKE

026-SLLR-SLLR-1994-V2-KULARATNE-AND-ANOTHER-V.-GUNATILLEKE.pdf


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Sri Lanka Law Reports
[1994} 2 Sri LR.
KULARATNE AND ANOTHER
v.
GUNATILLEKE
SUPREME COURT.
G. P. S. DE SILVA, C.J.,
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. APPEAL 63/92.
C A NO. 589/82.
D.C. GAMPAHA N0.21411/LAUGUST 20TH, 1993.
Fideicommissum – Last Will – Abolition of Fideicommissa and Entails Act, No. 20of 1972 – Devolution at title.
One Don Abraham was married to Podinona Hamine but the couple had nochildren. Don Abraham made a Last Will dated 14.01.64 bequeathing hisproperty to his nephews and nieces. Among the beneficiaries were the twoplaintiffs who were the children of a brother. To the two plaintiffs the testatorbequeathed the land called Gonnagahalanda in equal shares and the twobuildings standing thereon exclusively to the 1st plaintiff. To the 2nd plaintiff thebequest was as follows: the property bequeathed was to vest in the beneficiary'after our deaths’ or ‘after our deaths or after the death of any one of us whosurvives’. It would also appear from the above terms that in the event of PodinonaHamine surviving the testator, the Will gave her an interest in the property. Thetestator died on 08 May 1965. By her Last Will dated 21.06.65 Podinona devisedher estate to Wijepala, the defendant’s husband. Podinona died on 23.02.1979.The dispute was whether Don Abraham's Will created a valid fideicommissum,whether the property passed into the absolute ownership of Podinona Hamine onthe enactment of the Abolition of Fideicommissa and Entails Act, No. 20 of 1972and whether if so the property devolved on Wijepala in terms of PodinonaHamine's Last Will and accordingly whether Wijepala's wife the defendant is inlawful possession and finally whether in any event the defendant was entitled tocompensation.
Held:
On a reasonable construction, the Will gave only a life interest to the testator'swife and did not give her dominium of the property as the first beneficiary. TheWill did not create a fideicommissum.
Accordingly the Last Will of Podinona Hamine did not pass any ownership toWijepala as the Abolition of Fideicommissa and Entails Act, No. 20 of 1972 didnot serve to give her absolute title.
sc
Kularatne and Another v. Gunatilleke (Kulatunga, J.)
259
The plaintiff-appellants were entitled to claim the property on the death ofPodinona Hamine.
The defendant and her husband had been brought to the premises to attendto the testator during his last illness and been permitted to reside there after hisdeath. Hence defendant is not entitled to compensation.
Cases referred to:
Vansanden v. Mark 1 NLR 311.
Ibanu Agen v. Abeysekera 6 NLR 344.
Seneviratne v. Candappapulle 16 NLR 150.
Hendrick v. Fernando9 NLR 77.
APPEAL from judgment of Court of Appeal.
T. B. Dissanayake P.C. with Bimat Rajapakse and T. C. Weerasinghe for plaintiff-appellants.
P.A. D. Samarasekera P.C. with Keerthi Sri Gunawardena for defendant-
respondent.
Cur. adv. vult.
September 14,1993.
KULATUNGA, J.
The question for decision in this appeal is whether the last will ofthe late Don Abraham created a usufruct or a fideicommissum. it iscommon ground that if it is the former the plaintiffs are entitled to theland in dispute and to have the defendant ejected therefrom. If it isthe latter, the defendant is in lawful occupation of the said land.
Abraham had no children and hence nominated his nephews andnieces to be beneficiaries under his will No. 44621 dated 14.01.64(P2). The plaintiffs are two such beneficiaries (being the children ofhis brother Karolis). The testator bequeathed the land calledGonnagahalanda to them in equal shares and two buildings standingthereon exclusively to the 1st plaintiff. The bequest in favour of the2nd plaintiff is in the following terms:
"<pco» ffl (fo
(The reference being to the testator and his wife Podinona
Hamine)fiSse’zric) eQSo ©maocaaf tsd ©a
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In respect of the 1st plaintiff it states;
“$wja & eo®s»ao»s? cc eqstpnoacosi OjE SCa? Czr>
a&jinjzsfeweorf otoi s^s^afScaacrf CjCjeSizrf . . . ScicEr© SdciOatei^cOafznO t?2£e Sswecasi mt5 cdzss tojfi ae^O ^ . . . a®2ri skaStsx5 zse)®."
According to the English version of the co operative words of the will,the testator bequeathed the property to “vest” in the beneficiary "afterour deaths" or "after our deaths or after the death of any one of uswho survives”. It would also appear from the above terms that in theevent of Podinona Hamine surviving the testator, the will gave her aninterest in the property.
On behalf of the plaintiffs it was contended that Podinona Haminehad only a life interest in the property. The defendant's case is thatunder the will Podinona Hamine was the fiduciary owner of theproperty subject to a fideicommissum in favour of the plaintiffs; thatthe testator died on 08.05.65. Thereafter, by her last will No. 176dated 21.05.65 (V3) Podinona Hamine devised her estate toWijepala, the defendant's husband; that in terms of the provisions ofthe Abolition of Fideicommissa and Entails Act. No. 20 of 1972,Podinona Hamine became the absolute owner of the property withthe result that her will became effective; that upon her demise on23.02.79, the said property devolved on Wijepala; and that thedefendant is in lawful occupation thereof as the wife of Wijepala.
The learned District Judge held in favour of the defendant anddismissed the plaintiffs’ action. The plaintiffs appealed to the Court ofAppeal which dismissed the appeal and affirmed the judgment of theDistrict Court. The plaintiffs now appeal to this Court.
Learned President’s Counsel for the plaintiffs-appellants made thefollowing submissions:-
In interpreting the will, the only true criterion is the intention ofthe testator to be gathered from the terms of the will and fromthe surrounding circumstances. Vansanden v. Mark ; IbanuAgen v. Abeysekeratz>; Seneviratne v. Candappapulle <3
In terms of Abraham’s will, the property was vested in theplaintiffs but the fulfilment of the legacy was postponed until
sc
Kularatne and Another v. Gunatilleke (Kuiaturtga, J.)
261
after the death of Podinona Hamine subject to a usufruct in herfavour. Counsel cited Hendrick v. Fernando(4’ where clause 5 ofthe joint will of spouses provided:
“The remaining land of, the Kandy land is to be dividedinto three portions, and after the respective death of both
of us two shares is to go toand 1/6 of the rest of the
land to our adopted sons Elias Fernando and AndirisFernando”.
It was held that the intention of the testators was that the legateesshould take the property, subject to the usufruct of the survivingtestator. In the opinion of the Court, the words of futurity contained inthe will were not inserted for the purpose of postponing the vesting,but for merely deferring the fulfilment of the legacy.
Alternatively, the vesting (in the plaintiffs) was itselfpostponed until Podinona Hamine's death and dominium in theinterval vested in the testator's estate. However, thepresumption in favour of immediate vesting in the reversionerafter a usufruct is a strong one. Fideicommissa, Prof. T.Nadaraja p. 287. On the question whether the will creates ausufruct or a fideicommissum, Nadaraja (p. 288) expresses theopinion that it is preferable in deciding that question to haveregard to the nature of the interest acquired on the testator’sdeath by the first beneficiary rather than the nature of theinterest acquired by the person who is to succeed him in theenjoyment of the property.
Counsel drew our attention to the fact that in the absence ofchildren the testator selected his brother's children as beneficiariesunder his will and made no devise in favour of his wife; and that interms of the will the devise is to the plaintiffs. On these facts hesubmitted that the intention was to devise the property absolutely tothe plaintiffs as heirs (and not as fideicommissaries), subject to a lifeinterest in favour of his wife. In any event, the correct inference to bedrawn from the absence of a devise in favour of Podinona Hamine is,not that she was given ownership of the property but that pendingthe vesting of the legacy in the plaintiffs the dominium vested in thetestator's estate.
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Learned President's Counsel for the defendant-respondent arguedthat according to the plain meaning of the terms of the will, thevesting of the legacy in favour of the plaintiffs was to take place uponthe death of Podinona Hamine and hence, by necessary implication,Podinona Hamine had the ownership during her life time. As such,the will created a fideicommissum and not a usufruct. Counselsubmitted that even if there be doubt, this Court should not interferewith the decision of the District Court unless there is an error.
The following facts are relevant to the construction of the will:—
The fact that the testator selected his nephews to bequeath hisestate. This, however, was without prejudice to the interests ofhis wife in the event of her surviving him. He also named oneof his nephews who was a beneficiary under the will to beexecutor.
The fact that the testator refrained from making a devise infavour of his wife.
The use by the testator of language employed in making jointwills of spouses whereby a usufruct is created in favour of thesurviving spouse.
In effect, the submission of Counsel for the defendant-respondentsis that the will should be construed as though it provided ‘I bequeathmy estate to my wife and upon her death to X and T ’. If the testatorintended to give his wife the dominium in the property as the firstbeneficiary, he might have used more specific language. This hefailed to do; and the facts indicate, that he was not interested innominating fideicommissaries with inchoate rights but heirs to takeover his estate except that the fulfilment of the legacy was deferred inorder to provide for the needs of his wife during her life time. On thisbasis, the reasonable construction is that the will gave only a lifeinterest to the testator’s wife. In fact, both the defendant-respondentand her son who gave evidence said that Podinona Hamine had a lifeinterest in the property. That evidence by itself is not a criterion fordeciding that the will created a usufruct. However, I think that the factthat the parties had so understood it throughout is of some relevance.
sc
Kularatne and Another v, Seeta Gunatilleke (Kulatunga, J)
263
For the foregoing reasons, I hold that the last will P2 gave only alife interest to Podinona Hamine and that she was therefore notcompetent to bequeath the ownership of the property by her last willV3. Consequently, the plaintiffs-appellants were entitled to claim theproperty upon her death and the defendant-respondent had no rightto remain in occupation thereof.
Both the Courts below have assumed that the words of futuritycontained in the will were inserted for the purpose of postponing thevesting and thereby failed to consider the will as a whole, in the lightof the surrounding circumstances. I therefore, allow the appeal, setaside the judgments of the Court of Appeal and the District Court. Ienter judgment for the plaintiffs-appellants as prayed for except thatthey will not be entitled to damages. In their answer the defendant-respondent claimed compensation for improvements to the property.The defendant-respondent and her husband Wijepala had beenbrought there to attend to the testator during his last illness. Theyappear to have been permitted to reside there, after the testator’sdeath. In all the circumstances, the defendant-respondent is notentitled to compensation.
The plaintiffs-appellants will be entitled to the costs of this appealand the costs in both Courts beiow. I direct that the writ of ejectmentshould not issue till 31st March, 1994.
G. P. S. DE SILVA, C.J. -1 agree.RAMANATHAN, J. – I agree.
Appeal allowed.