068-NLR-NLR-V-08-AYSA-UMMA-v.-NOORDEEN-et-al.pdf
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[In Review.]
AYS A UMMA v. NOORDEEN et al.
D. G., Colombo, 13,476.
commissum—" Giftabsolute and irrevocable "—" Heirs,' executors.
administrators, and assigns "—Persona to be benefited.
AML executed a deed of gift' dated 4th January, 1873, con-taining the following clause:“I, A M L, for and in consideration
of the natural love and affection which I have unto my grand-sons C L M and A L havegiven, granted, assigned,
transferred, and set overt unto them,their heirs, executors, ad-ministrators, and assigns, as a gift absolute and irrevocable*
to have and to hold the said premises .with all and singular theappurtenances thereuntobelonging,and valued atBs. 4,000,
unto- thesaidCLM' and AL, their heirs,executors,ad-
ministrators, and assigns, subject to the following conditions,viz., that the said C L M and A L, or their heirs, executors,administrators, and assigns, and their children and grandchildren,and thechildrenandgrandchildrenof the heirs andassigns,shall
not sell, mortgage, or encumber the said premises at any time,but holdandpossessthe same;and the rents,produce,and
incomethereofshall not beheldliable to beattached, seized,
or soldfor anyof their debts;buttheyshall beable to give and
grant the said premises or any part thereof in dowry for theirfemalechildren, also subjecttotheaforesaidconditions and
restrictions. "
Held(confirming the judgmentoftheSupremeCourt in – appeal),
that the above clause did not create a valid fidei commissum.
Hormusjee v. Cassim (2 N. L. R. 190) followed.
D. C., Colombo, 59,578 {Grenier (1878), 28), referred to.
T
HE judgment of the Supreme Court in appeal reported in6 N. L. R. 173 was heard in review preparatory to appeal to
His Majesty in Council,
Domhoret, K.C., and Sampayo, K.G., for the appellants.
Bawa, for the respondents.
1905.
September 25.
Fidei
Our. adv. vuLt.
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26th September, 1906. Wendt, J.—igos;
September 25.
We have to consider in review, preparatory to appeal to the Privy —Council, the judgment of this Court, dated 22nd December, 1902,dismissing the plaintiff’s appeal against the judgment of the DistrictCourt, dated 20th November, 1900. The sole question submittedto. this Court, both upon the original appeal and at the presenthearing in review, is whether the deed No. 7,161, dated the 4thJanuary, 1873, whereby one Ahammadu Lebbe Ossen MeeraLebbe conveyed certain landed property in gift to his two grahd-nephews, Casy Lebbe Marikar and Ahamadu Lebbe, createda fidei commisautru, the appellants admitting that, if that question bedecided in the negative, .they must fail. The donees are bothdead, and the first plaintiff (wife of the second plaintiff) is the solesurviving child of Casy Lebbe Marikar. As such she claims to beentitled to an undivided half of the property subject to what iscalled the “ condition ” against alienation. The- defendants, theexecutors of the last will of Ahammado Lebbe, were said to bein possession of the entirety of the premises to the exclusion ofplaintiffs. The defendants pleaded that upon the true construc-tion of the deed of gift it conveyed an absolute title to the donees,that Casy Lebbe Marikar’s moiety devolved ab intestato on hiswidow, two daughters, and brother, and that first plaintiff’s presentinterest was only 28-96ths. One Neina Marikar (defendants averred)was. in occupation of the property in question since November,
1894, when defendants had closed their testator’s estate, and hev;as made an added defendant in the action. The District Judgeheld that there was' no fidei commissum, that the deed took effecta^ an unfettered transfer of the dominium to the donees, andthat (as appears to have been agreed upon in the event of the Court. So finding) first plaintiff was entitled to 28-96ths only of the property.
The deed in question is in the English language and follows, inoutline, an English form of conveyance. The material parts areset out in the judgments of Moncreiff and Middleton, JJ. Thewords out of which the contention between the parties arises are tobe found in the habendum. Up to that point’there is only a “ giftabsolute and irrevocable ” to the donees, “ their heirs, executors,administrators, and assigns.” The mention of assigns expressly,contemplates what would have been implied in the absolute gift, thatthe donees could transfer the properly by assignment to any onesthey please. Then comes the habendum to the donees, ” their heirs,executors, administrators, and assigns ” subject to the followingcondition, viz., “ that the said Cader Cando Casy Lebbe Marikar andCader Cando Ahamado Lebbe or their heirs, executors, administrators,
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1906. and assigns, and the children and grandchildren of. their heirs andSeptember25. assigns shall not sell, mortgage, or encumber the said premises atWendt, J. any time, but hold and possess the same; and the rents, produce,and income thereof shall not be held liable to be attached, seized,or sold for any of their' debts, but they shall be able to give andgrant the said premises or any parit thereof in dowry for theirfemale children, also subject to the aforesaid conditions and res-trictions. ” Having, in the first instance, contemplated and sanc-tioned the assignment of the property by the donees, this conditionforbids sale, mortgage, or encumbrance, but in the very prohi-bition again recognizes the validity of any assignment imposingthe same restraint on the assigns.
If the donees were merely fiduciaries their “ estate, ” if such itcould be called, would terminate with their Uve's. What interestthen could their executors and administrators take in the land?Yet these are also comprehended in the prohibition. Then, whoare the persons or class whom the fidei commiasum was intended tobenefit, and whose interests the prohibition against alienation wasdesigned to protect ? Were they children and grandchildren adinfinitum, or were they " heirs ?’’ The difference is importantbecause under the Mohammedan Law of Succession, which appliesto these parties, the heirs of a descendant might include not onlyhis children, but also his widow, his parents, and his brothers ‘andsisters. Finally, the restriction on dealing with the propertyapplies as well to assigns (who may be utter strangers to the donorand to the immediate objects of his bounty), and could it be arguedthat the intention was to secure the succession to the “ heirs ” or" children and grandchildren ” of these strangers ? The argumentthat the term " assigns ” is referable to the power of setting theproperty in dowry is not admissible, because that power is reservednot only to the immediate donees, but to their assigns as well,who are comprehended in the pronoun " they.
So far as our own decisions go, no authority in favour of appellant'sconstruction of the deed has been produced, while the case ofHormusjee v. Cassim• (2 AT. L. R. 19t>) is as nearly as possible adirect authority the other way. In D. C., Colombo, 59,578,(Chenier (1873),- 28), the parties appear to have been agreed that, ifthe Roman-Dutch Law applied, there was a good fidei commissum,and it was, therefore, unnecessary fpr the Court to consider thequestion.
For these reasons, I think no valid fidei commissum was createdby the deed in question, and therefore I would confirm the judgmentof thi6 Court under review, with costs.
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Gbekxeb, J.—
1005.
September 25.
This case hag been brought before us in review preparatory toan appeal to His Majesty in Council* The judgment of this Courtwhich was pronounced by Moncreiff and Middleton, JJ., clearlysets out the grounds on which the appeal was originally dismissed.The simple question in the case is whether deed No. 7,161* datedthe 15th January, * 1863, created a valid fidei commissum. Thedeed is very inartistically worded, and I cannot gather from it anyintention on the part of the grantor to impress -a fidei commissumon the property in question. Whatever may have been the in-structions that the grantor gave the notary who drew up and attestedthe deed, it is plain, to my mind, that the words employed bythfi notary do not indicate any intention on the part of the grantorto create a valid fidei commissum.
Mr. Justice Middleton has rightly pointed out that the case ofHormusjee v. Gassim (2 N. L. R. 190) seems to be almost on all fourswith the present case. Chief Justice Bonser, one of the Judgesbefore whom that case was argued, pointed out that the words** heirs, executors, and assigns ” were not mere words of descriptionor designation, and that the words “ assigns '* meant any personIn the world to whom the grantee may be pleased to assign theproperty., These words occur in the present deed, and I am there-fore of opinion that the grantor has failed to impress any validfidei commissum on the property in question.
Mr. Domhorst referred us to a case reported in Grenier (1873),part 3, p. 28, in which the following clause occurred in a deedinter vivos, whereby the grantor transferred certain landed propertyto his brother /'as a gift absolute and irrevocable unto the saidIdroos Lebbe, his heirs, executors, and administrators/* Thehabendum clause ran as'follows:—“To have and hold unto thesaid Idroos Lebbe, hfe heirs, executors, administrators, and assignsfor ever, subject, however, to the conditions and restrictions follow-ing: that is to say, that the said Idroos Lebbe shall not sell, mort-gage, or otherwise alienate the said premises .hereby conveyed tohim, car any portion thereof, but that the same shall be held undpossessed by him during his natural life, and after his death thesame Shall devolve on his heirs in perpetuity, who shall likewisehold theisame under the like restrictions as aforesaid/*
It was argued by Mr. Domhorst that the words I have just quoteddiffer very little in substance from the words of the deed in questionin this case, and that no point was made either in the Court belowor in appeal that the deed of gift did not create a valid fidei com-missum, but that it appears to have been assumed that it did.
12J. W. B 6920 (4/61)
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1905.1 hardly think that in these circumstances we can consider our-
September 25, selves bound by the judgment of this Court which proceeded onfliMBWTmi, j. other grounds to the extent of holding that the deed now in questiondid create a valid fidei commie sum.
For the reasons I have given, I would confirm the judgmentof this Court.*•
Layard,, C.J.—I see no reason to interfere with the judgmentof this Court, which has been brought before us in review.