021-SLLR-SLLR-2002-V-2-MADAWALA-v.-RATNAYAKE.pdf
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Madawala v. Ratnayake
133
MADAWALA
v.RATNAYAKE
COURT OF APPEALWIGNESWARAN, J„ ANDTILAKAWARDANE, J.
CA NO. 39/97 FDC KURUNEGALA NO. 3563/LFEBRUARY 14, 2000MARCH 30, 2000 ANDMAY 31, 2000
Abolition of Fideicommissa and Entails Act, No. 20 of 1972 – S. 4, 6 and 7 -Effect of Act on ownership of property.
One M who was the original owner of the premises in suit by his Last Willgave the said property to his only son B subject to a fidei commissum infavour of B's children bom in lawful wedlock. M died in 1937. B the fiduciaryon 21. 05. 1962 transferred his life interest to his two sons.
On 26. 06. 1979 B transferred the property to the plaintiff and one S, whotransferred her rights to the plaintiff.
The two sons of B amicably partitioned the land in 1962 and one son sold4 1/2 acres to one W. who later sold same to K.
In 1972 the abolition of Fidei Commissa and Entails Act, No. 20 of 1972 passed.
The defendant-respondent contended that the property vested absolutelyon K who had in 1989 sold the property to him.
The plaintiff-appellant contended that with the coming into effect of Act No. 20of 1972, B became the absolute owner despite the transfer in 1962 of his lifeinterest.
Held:
(1) On the passing of Act No. 20 of 1972, once B was the living fiduciaryhe would have normally received the property but he had on 21. 05. 1962transferred his life interest to his two sons on 21. 05. 1962.
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There was no dominium rights left in B when Act No. 20 of 1972 cameinto operation.
With the execution of the Deed on 21. 05. 1962 B had ceased to beentitled to be vested with any interest or title in the property, suchentitlement had passed onto third parties.
The effect of Act No. 20 of 1972 was to vest title in the ultimatetransferors of life interest by B on the effective date – 12. 05. 1972.
Although section 7 proviso gave the original fiduciary interest holdera right to get back the property sold or donated within 6 months from12. 05. 1972, this was not done.
APPEAL from the District Court of Kurunegala.
R. Y. D. Jayasekera for plaintiff-appellant.
Bimal Rajapakse for defendant-respondent.
Cur. adv. vult.
November 14, 2000WIGNESWARAN, J.
The plaintiff-appellant filed this action on 05. 12. 1989 for declaration 1of title, ejectment of the defendant-respondent from the land andpremises referred to in the schedule to the plaint, for damages andcosts. The Additional District Judge of Kurunegala by his judgmentdated 11. 12. 1996 dismissed the plaintiff-appellant's action withcosts.
The learned Counsel for the plaintiff-appellant has submitted inappeal as follows:
Godfrey Ernest Madawala who was the original owner of thepremises in suit wrote Last Will No. 169 dated 24. 09. 1932 in favour 10of his only son Bibsie alias Godfrey Ernest Madawala (hereinafterreferred to as Bibsie) subject to a fidei commissum in favour of the
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latter's children born in lawful wedlock. On his death the Estate ofGodfrey Ernest Madawala was administered in DC Kurunegalacase No. 4104/ Testamentary around 1937 and probate was obtainedby Flora Evangeline Udalagama Kumarihamy nee Madawala.
By deed No. 4203 dated 21. 05. 1962, Bibsie, the fiduciary,transferred his life interest to his sons Gamini Edward Madawala andNihal Madawala.
It was the contention of the learned Counsel for the plaintiff- 20appellant that with the coming into effect of the Abolition ofFideicommissa and Entails Act, No. 20 of 1972, Bibsie becamethe absolute owner of the premises in suit despite the transferin 1962 of his life interest.
On 26. 06. 1979 by deed of transfer No. 15014 the said Bibsietransferred the property to Ratnayake Mudiyanselage SomadasaMadawala (the plaintiff) and Shanthi Madawala. The said ShanthiMadawala by deed of transfer No. 9963 dated 20. 07. 1989 transferredher 1/2 share to the abovesaid Ratnayake Mudiyanselage SomadasaMadawala, the plaintiff abovenamed.30
It was the contention of the learned Counsel for the plaintiff-appellant that in or about September, 1989, the defendant had forciblyentered the premises in suit.
The defendant-respondent disputed this devolution of title as wellas possession by plaintiff-appellant at any time. The learned Counselfor the defendant-respondent submitted that once Bibsie, the fiduciary,transferred his life interest to his sons Gamini and Nihal and handedover possession, there were no rights left in him. On the coming intooperation of Act No. 20 of 1972 the property in question vested inhis sons Gamini and Nihal.40
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Gamini and Nihal amicably partitioned the property in question onplan No. 682 dated 10. 03. 1965 made by J. H. R. Perinpanayagam,Licensed Surveyor. By Deed No. 22346 dated 04. 06. 1965 NihalMadawala sold out of his portion a piece of land in extent 4 1/2 acresto one D. M. Wimaladasa who was placed in possession thereof(viz lots 3C, 4, 5, 5B in Plan No. 682).
Thereafter, the said property was transferred by Wimaladasa onDeed No. 293 dated 16. 06. 1969 to E. D. M. Karunaratne. Possessionwas handed over to the said Karunaratne.
In 1972 the Abolition of Fideicommissa and Entails Act, No. 20 50of 1972 came into operation. According to the learned Counsel forthe defendant-respondent the property then vested absolutely onKarunaratne who by Deed No. 11547 dated 01. 01. 1989 sold thesaid property to the defendant-respondent in this case. The defendant-respondent therefore claimed the property absolutely free from anyencumbrances. It was pointed out that no steps were taken by Bibsiewithin 6 months of Act No. 20 of 1972 coming into effect, to act underthe proviso to section 7 of the said Act to have the property repurchased.
Thus, the question that arises for determination by this Court isthe effect the passing of Act No. 20 of 1972 had on the ownership 60of the property in question.
Section 4 of the Abolition of Fideicommissa and Entails Act,No. 20 of 1972 reads as follows:
"4. Where under the terms of any will, deed or other instrument,executed prior to the commencement of this Act, any fideicommissum,entail, settlement, restraint on alienation, limit or curtailment exists,the property in question shall from the commencement of this Actbe and for all purposes be deemed to be vested absolutely, free
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of any fideicommissum, entail, settlement, restraint on alienation,limit or curtailment, in the person in whom the title to such property ?ois at the commencement of this Act vested subject to suchfideicommissum, entail, settlement, restraint on alienation, limit orcurtailment and no other successor, whether named or describedtherein or not, shall be deemed to have any right or title to suchproperty under the terms of such disposition."
What this section sought to bring into effect was that a Fiduciarywas to hold a property that was subject to entail or fideicommissumfree of such encumbrances on the passing of the said Act No. 20of 1972.
Last Will No. 169 created a fideicommisum in favour of the children soof Bibsie while gifting the property to the latter. Therefore, on thepassing of Act No. 20 of 1972 since Bibsie was the living Fiduciaryhe would have normally received the property absolutely. But, on21. 05. 1962 he had executed Deed No. 4203 whereby he transferredhis life interest to his sons Gamini and Nihal.
Dominium or ownership is the relation protected by law in whicha man stands to a thing which he may (1) possess (2) use and enjoyand (3) alienate (vide Holland – Jurisprudence – 13th edition, page210 and R. W. Lee – An Introduction to Roman Dutch Law – 5thedition, page 125). Where all these rights are vested in one person soto the exclusion of others, he is sole owner. (vide Grotius 2:3: 10).Clearly, Bibsie abovenamed did not have the right of alienation overthe property in terms of the Last Will. He had the right of possessionand the right to use and enjoy the property during his lifetime.Possession and the right to use and enjoy during his lifetime passedfrom Bibsie to his sons on the execution of Deed No. 4203. Therewas, therefore, no dominium rights left in him when Act No. 20 of1972 came into operation. Under section 6 of the Act it is only where
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the title to any property or any interest in property is or is deemedto be vested in any person by virtue of the operation of the said Act >oothat such person shall have absolute power to dispose of such propertyor interest. With the execution of Deed No. 4203 Bibsie had ceasedto be entitled to be vested with any interest or title in the property.Such entitlement had passed onto third parties.
This is brought out by the provisions of section 7 of the Act whichreads as follows:
"7.(1) Where a fiduciary interest in property which was subject
to fideicommissum has been transferred in pursuance of a saleor a donation prior to the commencement of this Act, the propertyin question shall, from the commencement of this Act, be and for noall purposes be deemed to be vested absolutely, free of thefideicommissum, in the transferee of such fiduciary interest or inany person deriving title from him to such fiduciary interest:
Provided, however, that the person who but for such transferwould have been entitled to such fiduciary interest under the termsof the fideicommissum shall have –
where the transfer was in pursuance of a sale, the right torepurchase, and obtain an execution of the conveyance of theproperty from the person in possession of it, upon paying tothe possessor the price paid by such possessor for such 120interest and the cost of any necessary or useful improvementseffected by such possessor; or,
where the transfer was in pursuance of a donation, the rightto revoke the donation and recover the property from theperson in possession upon paying to the possessor the costof any necessary or useful improvements effected by him,
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such right of repurchase or of revocation being exercisable withinsix months of the commencement of this Act.
The provisions of subsection (1) shall not apply where theperson in possession of the property at the time of 130commencement of this Act, derives title to any property whichmay have been subject to fideicommissum by a title adverseto and independent of any fiduciary under such fideicommissum,or is himself a bona fide possessor of such property withoutnotice of the fideicommissum, or derives title from such apossessor."
The abovesaid section recognised the transfer of fiduciary interestsprior to 12. 05. 1972 (the date on which Act No. 20 of 1972 cameinto operation). It approved the vesting of such interests absolutelyin a transferee. The proviso nevertheless gave the original fiduciary- 140interest-holder a right to get back the property sold or donated within6 months from 12. 05. 1972. If the law considered the transfer orgift of fiduciary interests prior to the coming into operation of ActNo. 20 of 1972 illegal or ineffective, it would have so stated in thesaid Act and the proviso to section 7 (1) would not have been includedin the Statute in that event. Despite transfer of fiduciary interests tothird parties if the mere fact of having been a Fiduciary before suchtransfer, had given rights of absolute ownership to such Fiduciary,then again proviso to section 7 (1) would have been unnecessarybecause the Fiduciary would have become absolute owner despite 150transfer of his fiduciary interests prior to 12. 05. 1972. We must,therefore, conclude that Act No. 20 of 1972 recognised the transferof fiduciary interests (in this instance referred to as life interest) priorto 12. 05. 1972 and also allowed title to be vested absolutely in suchtransferees. No such retransfer took place within 6 months from12. 05. 1972. Only on 05. 12. 1989 was the plaint in this case filed,
17 years later. Meanwhile, possession and title had passed overfrom Bibsie to others.
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The effect of Act No. 20 of 1972 in the instant case was to vesttitle to the property in the ultimate transferees of life interest by 160Bibsie, on the effective date (12. 05. 1972).
Decision in DC Kurunegala case No. 4317/L filed with the writtensubmissions was not before parties in the original Court during trialin this case. If available the defendant-respondent may have adequatelyresponded to it. We, therefore, disregard the said decision.
We see no reason to interfere with the judgment of the learnedAdditional District Judge dated 11. 12. 1996. We dismiss the appealwith taxed costs payable by the plaintiff-appellant to defendant-respondent.
TILAKAWARDANE, J. – I agree.
Appeal dismissed.