088-NLR-NLR-V-27-FERNANDO-v.-ROSALINA-KUNNA-et-al.pdf
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Present: Schneider J. and Maartensz A. J.
1925*
FERNANDO v. ROSALINA KUNNA et ah
113—D. C. (.Inty.) Chilaw, 7,595,
Jus accrescendi—Fidei commissum—Failure of children—Deedinter vivos.
Where a deed of gift contained the following clause : “ The saiddonees are interdicted from selling, mortgaging, gifting, exchanging,leasing, or in anywise alienating the said property hereby gifted,and after their death their progeny shall deal with the same asthey may desire, which I do hereby direct ”,—
Held, that on the death of one of the donees without issue hershare devolved on her heirs-at-law, and not on the surviving doneesor their issue.
'HIS was an action for partiton of a land called Talgahawatta.
One Pemiyanu by deed No. 28,639 gifted his three-fourthshare, less 12£ coconut trees, to four persons—Apolonia, Maria,Rosalina and Emerencia. The dispute in the present case is as tothe devolution of Apolonia'sinterests. Apolonia died without issue,leaving as heirs her husband, Tissera, and her parents, Rosa Mariaand Suse Kunna, who by deed No. 3,449 of November 14, 1916,sold this share to Padirikku Fernando,, from whose husband theplaintiff purchased it. Rosalina and Emerencia, the third andfourth defendants, and seventh, eighth, and ninth defendants, theheirs of Maria, claim this share, as against the plaintiff, allegingthat on the death of Apolonia her share devolved on them.
The District Judge held in favour of the defendants, and theplaintiff appealed.
H. V. Perera, for plaintiff, appellant.—Theargument on
behalf of the appellant may be divided into (1) that based onthe existence of the fidei commissum; (2) that there is no fideicommissum.
On the first point it must be urged that there was a separationof interests, as the only reservation is the life interest for twentyyears. So that in the present case the interests were vested, andthe principle of jus accrescendi does not apply to such a case.Perera v. Silva.1 The principle applies where the vesting takesplace only after the death of the donor. Carron v. Manuel. 2The second argument is based on the construction of the wordsof the deed. The deed indicates as heirs the “ respective children.'*This is not a sufficiently clear designation of the beneficiaries,
and hence the fidei commissum fails.
1 {1916) 16 N. L. R. 474.
T
(1914)17 N. L. R. 407.
1925.
Fernando v,RosalinaKunna
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Be Zoysa, for defendants, respondents.—The two questions tobe decided are (1) whether the document P 3 creates a fidei com-missum; {2) if so, whether it is one single fidei commissum ora bundle of fidei commissa.
The case Carlinahamy v. Juanis1 which is on all fours with thepresent one, is in favour of the respondents.
Whether the document creates a fidei commissum or not is to bedecided by gathering the intention of the donor from the tenor of thedeed. The intention is paramount, and the Court ought, wherepossible, to give effect to it. The intention was clearly to createa fidei commissum in favour of the children.
That being so, Apolonia was not the final beneficiary ; and hencehad nothing of a spes to transmit.
So long as there is either a substitute or an institute the fideicommissum doee iiot fail, and the defendants have therefore clearlytitle, as otherwise the intention of the donor to benefit tin childrenof the institutes would be frustrated.
H. 7. Perera (in reply).—Relied strongly on passage at page 138in Carlinahamy v. Juanis (supra). Guruwa’s position is verysimilar to Apolonia, it has been urged. But that is not so, Guruwais a fidei commissary, but Apolonia is a grantee.
Apolonia takes free of any fidei commissum, and hence is free toalienate. Usoof v. Rahimath.2
This is not a family endowment, but is merely to prevent thechildren from alienating.
October 6, 1925. Schneider J.—
I have had the advantage of seeing the judgment of my brotherMaartensz, and agree with him that on the death of Apolonia theinterest she derived from Pemiyanu devolved on her heirs-at-law,and not on the surviving donees or their progeny.
I agree with the order he has made.
Maartensz A.J.—
This is an action to partition a land called Talgahawatta. There *is a dispute regarding the title to three-fourth share, less 12^ coconuttrees, which admittedly belonged to one Pemiyanu. Pemiyanu bydeed of gift No. 28,639 donated this share to four persons,namely, Apolonia Kunna, Maria Kunna, Rosalina Kunna,third defendant, and Emerencia Kunna, fifth defendant, subject tocertain conditions which I shall presently refer to.
Apolonia died without issue, leaving as heirs her husbandGracianu Tissera, and her parents, Rosa Maria and Suse Kunna,who by deed No. 3,449 dated November 14, 1916, sold that shareto Padirikku Fernando. Padirikku Fernando had in 1903 boughtanother share which is not in dispute.
i 26 N. L. R. 135.8 20 N. L. R. 225.
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After Padirikku Fernando’s death her husband sold the shareof Apolonia in dispute and the other share to the plaintiff.
The seventh, eighth, and ninth defendants are the heirs ofMaria Kunna, who died about six years ago.
The third, fourth, seventh, eighth, and ninth defendants contendthat under the terms and conditions of the deed of gift No. 3,449executed by Pemiyanu, Apolonia’s interest on her death devolvedon them, and that Gracianu Tissera, her husband, and her parentsacquired no interest as her intestate heirs. Pemiyanu by this deedreserved a right of possession for twenty years, which has ceased tohave effect, and imposed the following conditions, expressed thus :—
“Besides this, the said donees are interdicted from selling,mortgaging, gifting, exchanging, leasing, or in any wisealienating the said property hereby gifted, and after theirdeath their progeny shall deal with the same as they maydesire, which I do hereby direct.
“ Wherefore that all the right, title, and interest that I, the donor,have had in and to the said immovable property havehereby assigned and set over unto the said four donees,Warnakulasuriya Apolonia Kunna, WarnakulasuriyaMaria Kunna, Warnakulasuriya Rosalina Kunna, andWarnakulasuriya Emerencia Kunna, as that they mayown and possess the same subject to the said twentyyears’ possession and conditions, and after their death,their heirs, executors, and administrators shall deal withthe same as they may desire.”
The learned District Judge held, on the authority of the case ofCarlinahamy v. Juanis (supra), that on the death of Apoloniawithout “ progeny ” her share accrued to the surviving donees.
In appeal it was contended that the deed executed by Pemiyanudid not create a fidei commissum, and that if it did, it created a'bundle of separate fidei commissa, and on the principle laid downin the case relied on by the District Judge, Apolonia’s interest onher death without issue did not accrue to the surviving donees.
The principle laid down by Bertram C.J. and Garvin J.(Jayewardene J. dissenting) regarding the applicability of the jusaccrescendi to deed inter vivos may be shortly stated as follows :—
The jots accrescendi dees not apply to deed inter vivos, unless it canbe gathered from the instrument in question that it was the intentionof the donor to subject the property to one entire fidei commissumin favour of all the children and their descendants.
The corollary to this proposition is that the jus accrescendi doesnot, as a matter of course, apply to the case of donations intervivos if one of the donees dies without ifesue.
The intention of the donor must be determined in each case.
The deed of donation we have under consideration differs fromthe instrument which the divisional Court had to construe in this
1925.
Maabtensz
A.J.
Fernando v.RosalinaKunna
1926.
Maahtensz
A.J.
Fernando v.RosalinaKunna
( 506 )
very important feature, namely, that in the case of Peiniyanu’s deedthe fidei commissvm if any, terminated with the donees, whereasin the latter the prohibition against alienation extended to thesubstitutes.
The importance of this difference is clearly brought out in thecase of Perera v. Silva (supra), where the testators by a. joint willdevi§ed one-half of their property to the sisters of the husband,namely, Lucia and Maria, and the other half to the sisters of the wife,namely, Helena and Philippu, subject to a fidei conmissum in favourof their lawful issue. The issue were to take without anyrestrictions.
Maria died without issue, and it was contended that the shareaccrued to Lucia and Ana. It was held by Ennis J. and WoodRenton A.C.J. that on the death of Maria without issue her sharedevolved on her husband, to whom she had bequeathed it by will.
Sir Alexander Wood Renton said: “ The testator and testatrixclearly intended that the lawful issue of each institute, as well asthe institutes themselves, should be benefited by the will. Neitherexpressly, as in Tillekeratne v. Abeysekera1 nor by necessary impli-cation does the will indicate that on the death of one institute thesurvivors are to take by substitution.” And with regard to theargument that Maria’s share accrued to her sisters observed “ thatsuch an interpretation would compel him either to read the will as ittook account only of the lawful issue of the last surviving institute,or to add to it a clause, which would do equal violence to its languageproviding that on the death of the last surviving institute thelawful issue of all these institutes should succeed.” He concludedas follows :“ I think the language of the will itself excluded the
jus accrescendi•
The will considered in Perera v, Silva (supra) again came up forconsideration in the case of Carron v. Manuel (mpta), and LascellesC. J. and Pereira J. agreed with the view taken by Ennis J. andWood Renton A.C. J.
In the case of Van Sanden v. Mack* Tillekeralna v. Abeysekera(supra), and Carlinahamy v, Juanis (supra) it was inferred from thefact that the prohibition against alienation extended to the substi-tutes that it was the intention of the maker of the instrumentto preserve the property dealt with intact and integrate for thebenefit of coming persons. This inference cannot be drawn in thecase of Pemiyanu’s deed of gift, which limits the fidei commissum tothe institutes, and there are no words from which an inferencecan be drawn that Pemiyanu intended to preserve the propertyintact for the benefit of coming persons.
I am therefore of opinion that the principles laid down in thecase of Perera v. Silva (supra) and Carron v. Manuel (supra) areentirely applicable to the deed of gift, which is the subject of thisi (1897) 2 N. L. R. 313.* (1895) 1 N. L. R. 311.
1986.
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appeal, and venture to think that the learned Dietnot Judge waswrong in applying to it the rule laid down in the case ofCarUnahamy v. Juams (supra). I accordingly hold that on thedeath of Apolonia the interest she derived from Pemiyanu devolvedon her heirs-at-law, and not on the surviving donees or their progeny.
I would allow the appeal, with costs, and allot to the plaintiff,appellant, the share claimed by him from Apolonia.
I find I have made no order regarding the costs of contention.I therefore add to my order that the plaintiff will be entitled to thecosts of contention in the District Court.
The other costs will be borne pro rata My brother Schneideragrees to this addition.
Appeal allowed.
♦
Maabsbhsz
A.J.
Fernanda v.RoadinaKunna