002-NLR-NLR-V-71-R.-A.-JAYASINGHE-and-another-Appellants-and-S.-D.-RANSO-NONA-Respondent.pdf
.Jaynningho v. Ttonso Nona
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Present: Tam blah, J., and Alles, J.R.A. JAYASINGHE and another, Appellants,and S. D. R.ANSO NONA, Respondent
S.C. 103J62 {Inty.)—D. C. Qampaha, 6011
■faa accrescendi—Inapplicability to a gift inter vivos.
The principle of jus accrescendi does not apply to deeds of gifts. But if,by the term jus accrescendi is loosely meant the right of accrual, and the termsof a deed clearly indicate that there should be such an accrual, then the Courtswould give effect to it. But in doing so they do not apply the principle ofjus accrescendi with its presumptions but are merely construing the termsof the deed.
A person gifted a land to his five sons. The relevant portion of the deedof gift was as follows:—
“ Wherefore we the said Donors have hereby gifted donated conveyedand sot over unto the said Donees all our rights title and interest to the saidpremises to be held and possessed by them in any manner they like andduring their lifetime and the said five donees shall not alienate the saidpremises in any manner whatsoever; and after their deaths their lawfulchildren and grandchildren shall do anything they like with the said premises.’'
Held, that the principle of jus accrescendi did not apply to the deed of gift.On a consideration of the express terms of the deed, there was nothing toindicate that if one of the Bons of the donor died issue less and intestate, hisshare should accrue to his other brothers. The intention to benefit Ota grand*children excluded such a vie-v.
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TAMBIAH, J.—Jayasinghe v. Hanso Nona
A PPEAL from an order of the District Court, Gampaha.
W. Jayewardene, Q.C., with E. S. Amerasinghe, W. D. Gunasekeraand I. S. de Silva for the 15th defendant-appellant.
S. Sharvananda, for the plaintiff-respondent.
Cur. adv. vuU.
March 4, 1965. Tambiah, J.—
The plaintiff instituted thi3 action for the partition of a land calledDelgahawatta, depicted as Lots A to M in Plan X filed of record. It iscommon ground that one Samel, the original owner of this land, giftedthis property to his sons Hendrick, Paulis, Welun, Singhappu and Jamis,by deed of gift No. 9046 of 31.5.1886 marked PI. Welun and Singhappudied issueless and intestate. Jamis, the 25th defendant, who adoptedAmaradasa, the 15th defendant, as his child, by deed of gift No. 12926of 1950 marked 15D1, transferred his interest to the 15th defendant.
It is the plaintiff’s case that the deed of gift PI created a fideicommissumand, by the doctrine of jus accrescendi, the share of Jamis lapsed andHendrick and Paulis got title to the whole land and their interests.
The 15th defendant also led evidence to show that by an amicablepartition, in lieu of his l/3rd share of the land, Jamis and he possessedLot G in the said plan. The learned District Judge has held that thedeed PI created one joint fideicommissum, and applying the principleof jus accrescendi Jamis’s share lapsed and Hendrick and Paulis becameentitled to the whole land. On this footing he has given shares to theother defendants.
Counsel for the appellant contends that the deed PI does not createa fideicommissum and in the alternative the principle of jus accrescendidoes not apply to deeds of gifts and, consequently, the title to l/3rdshare to which Jamis was entitled to, passed by deed of transfer 15D1of 1950 to the 15th defendant. The Counsel for the appellant did notpress the point that Jamis and the 15th defendant exclusively possessedlot G in lieu of l/3rd share of this land. It is sufficient to consider theshort point whether the principle of jus accrescendi applies to the deedof gift PI of 1886.
The relevant portion of Pi is as follows :—
“ Wherefore we the said Donors have hereby gifted donatedi conveyedand set over unto the said Donees all our rights title and interestto the said premises to be held and possessed by them in any mannerthey like and during their lifetime and the said five donees shall notalienate the said premises in any manner whatsoever; and after theirdeath their lawful children and grandchildren shall do anything theylike with the said premises.”
TAMBIAH, J.—Jayaaingha v. Santo Nona
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PI is a certified copy issued by the Registrar-General. It is significantthat in PI there are many omissions probably due to some of the wordsin the original being illegible. It was contended that the plaintiff whorelied on this deed should place before Court the fall terms of the deedand cannot rely on a copy with omissions which are material. Be thatas it may, assuming that the omitted words were immaterial, the questionarises whether the principle of jus accrescendi could be applied to deedsof gifts.
The jus accrescendi was a rule of Roman Law which was applied amongco-owners in testamentary succession or among legatees by which ifone of them cannot or will not take his portion it accrued to theco-legatees to the exclusion of the heirs ab intestalo.
This rule was evolved in deference to the principle of Roman Lawthat a person cannot die partly testate and partly intestate. Althoughthis rule was applicable only among co-legatecs, Justinian extendedit to cover donations mortis causa. The Roman Dutch writers appliedthis doctrine only to testamentary gifts and donatio mortis causa anddid not apply it to gifts inter vivos, which were considered to be in thenature of contracts. But if the words of a deed expressly state thatthere should be such accrual, then effect should be given to the provisionsof the deed and the right of accrual should be recognised. In suohcases the words should be clear before one could say that there is aright of accrual but the doctrine of jus accrescendi with the various‘ presumptions attached to it have no application.
Voot, one of the greatest of the Roman Dutch writers, states as follows(vide Voet XXXIX. 5.14 of Gane’s Translation Vol. VI p. 101):— .
“ If a single thing or if all goods are donated to more persons thanone at the same time, and one of them does not accept what is donated,his share by no means accrues to the rest. Nay rather does it stayoutside the cause of donation. That is because, such a donee is neitheran heir, nor a legatee nor in the place of a legatee; nor do we readanywhere that the right of accrual has been adopted in contracts orother acts inter vivos. Nay it is clearly found that tho right of accrualwas extended by Justinian in the passage cited below only to a donationmortis causa which is almost everything put on the same footing aslegacies." .
In applying the role of jus accrescendi, the Roman Dutch writers tookthe view that such a rule was in accordance with the wish of the testatorand his affection for the legatoes (vide Voet VII. 2.9). Dekker in hisnotes to Chapter 30 of Van Leouwen’s Commentaries on Roman DutchLaw, which deals with donations and gifts, seta out tho. differencesbetween donation inter vivos and donation mortis causa, as follows (videVan Leeuwen’s Roman Dutch Law by Kotze, 2nd Edition, page 232):—
** Whence, it follows per se that the juo accrescendi and the Uxfalddia must likewise be observed as regards, donation mortiscausa.’*
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TAATT5TAH, J.—Jayrrsiti'/hc v. Ranso Nonu
Perez is also of the same opinion (vide Perez VI. 51.0). Both writersapply the principle of jus accrescendi only in connection with wills andby extension to donatio mortis causa. The modern writers on HomanDutch Law also adopt the same view (vide Burge Vof. II p. 144 ; MaasdorpVoi. Ill, 4th Edition, p. 100 : Nathan, Vol. II section 10S7). Nathanemphatically states that the right of accrual, jus accrescendi does notapply where several persons are dunces.
Jayowardene., A.J., in a very – vhausfive judgment, has shown beyondall doubt that the Homan Dutch writers did not apply the principleof jus arrrr.srcHfli to deeds of gift (vide the dissenting judgmentof Javcwurdeno A.-J, in Cnrlinahnmy v. Juan is1). In the same caseBertram C.J. observed as follows (vide ibid, at 141):—
“ I agree that it must be taken that the jus accrescent!i in the propersense of the term does not apply in instruments inter vivos, that is tosay, that in the ease of an instrument inter vivos, the law will notpresume merely from the conjunction of two or more persons in the sameliberality, that, in the event of one of these predeceasing the vestingof the liberality, his share was intended to accrue to the others. Inthe case of such an instrument, stich a result can only arise fromoperative words, which either expressly or by implication have thiseffect."
In the ease cited above, the majority view proceeded on the footingthat by construing the terms of the deed which was before the court,the right of accrual was intended. However, the hcadnote erroneouslystates that the principle of jus accrescendi is not confined to testamentaryfideiconimissum but it applies equally to fideieommissum created bydeed inter vivos.
In Fernando v. Fernando2 it was held that the principle of jus accrescendidocs not apply to fideicommissary deeds of gift. In dealing with thisaspect, Bertram C.J. emphatically stated as follows (vide ibid, at 322):
“ In the second place, I think it must now be taken as settled thatthe jus accroscendi docs not apply in the case of fidei commissary deedsof gift. We have, therefore, to interpret the deed of gift, withoutthe aid of this legal presumption.”
This principle has been adopted in subsequent cases (vide Ibrahim v.Alagatnmah 3).
The Counsel for the respondent relied on the ruling of the Privy Councilin Nagalingam v. Thanabalasingham4 for the proposition that the ruleof jus accrescendi applies to deeds of gift as well. In that case the mainquestion for decision was whether acceptance of a deed of gift on behalfof a minor by his maternal uncle, without appointment by lawful
» (1961) 63 N. L. R. 302.
•(1962) 64 N. L. R. 121.
1 (1924) 26 N. L. R. 146.• (1924) 27 N. L. R. 321.
TAMBIAH. J.—Jciyasinghe v. Rnnso Xoiut
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authority, was va'id or invalid. Sir Lionel Leach, who delivered theopinion of the Hoard, in dealing with this question, did not express theview thnl the principle of jus accrescendi applies to deeds of gift as well.The works of the 1 Ionian Dutch writers on this matter were neither citednor considered hv the Privy Council in dealing with this aspect of theease. In interpreting the deed the Board took the view that one fidei-commissum was created nml not several fideicommissa. Jn construing
the deed of gift it was held hv their Lordships that “The
is not out; of a disposition of one share of the whole to each of the threebrothers, but a gift of the whole to tho three brothers jointly with benefitof survivorship ”,
The Counsel for tho respondent also cited Upasakappu v. Bias1for the proposition that the principle of jm accrescendi applies to deedsof gift. In t hat. case Soert-z J., referring to the doctrine of jus accrescendi, stated as* lbllows.:—______________
“ When this question again arose in our Courts twenty years laterin connection with a fidcicommissum created by a deed inter vivos.Bertram C.J. declared that he reserved his opinion “ whether so faras relates to the jus accrescendi—that is how he expressed himself—thereis any substantial difference between testamentary fideicommissa andfideieommissa constituted by instrument inter vivos ” and Shaw J.who sat with him said, “ In Carry v. Carry 2 N. L. R. 313 and Ayam-perumal v. Meeyan 4 C. W. R. 182, this Court held the jus accrescendito apply to eases of fideicommissa constituted by gifts inter vivoson the ground that the language used by the donor showed an intentionto that effect. I was a party to the latter decision and expressed adoubt whether a similar rule of construction applied in the case ofdonntion inter vivos as applied in the case of a will; but I did not,and do not now, doubt that a right of accrual may exist in either case,when the language of the donor or testator expresses such an intention.”
I .should prefer not to express myself quite in that manner. It is notreally a question of the jus accrescendi applying in these cases, but asimilar result being achieved by an express declaration on the partof the testator or donor, or by an intention clearly to be inferred,that he desired the property to devolve in that manner. The jusaccrescendi was a rule of the Roman Law by which among co-heirs intesta mentary succession or among co-legatees there is a right of accretionso that if one of them cannot or will not take his portion, it falls toother heirs to the exclusion of heirs at law. His rule was evolvedin deference to the Roman horror of dying partly testate and partlyintestate, but the Roman Dutch Law adopted that rule to the extentof saying that in no case had it automatic operation, but it wouldbe accepted or rejected as would best give effect to the testator’sintention.”
* (J9V9) 41 N. L. R. 91.
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Theivendrarajah v. Sanooti
It was not decided in that ease that the doctrine of jus accrescendiapplies to deeds of gift. But as Soertsz J. observed, if the terms of adeed clearly indicate that there should be a right of accrual, then effectshould be given to it.
In view of the clear enunciation that the principle of jus accrescendidoes not apply to deeds of gift both by the Roman Dutch authoritiesand by our Courts, it is settled law that such a principle with itapresumptions cannot be applied to deeds of gift. But, if by the termjus accrescendi is loosely meant the right of accrual, and the terms of adeed clearly indicate that there should be such an accrual, then Courtswould give effect to it. But in doing so they do not apply the principleof jus accrescendi with its presumptions but are merely, construing theterms of the deed.
Therefore I hold that the principle of jus accrescendi doe9 not applyto the deed of gift PI. On a consideration of the express terms ofdeed PI there is nothing to indicate that if one of the sons of Sameldies issueless and intestate, his share should accrue to his other brothers.The intention to benefit the grandchildren excludes such a view. Forthese reasons, Jamis’s share did not accrue to Hendrick and Paulis andhis interest passed on deed 15D1 to the 15th defendant. In view ofthis conclusion, it is not necessary to decide whether the deed createda fideicommissum or not. Therefore the 15th defendant has title toI/3rd share of the land which is the subject matter of this partitionaction. I set aside the order of the learned District Judge and send thecase back with the direction to allot l/3rd share of the land which isthe subject matter of this action to the 15th defendant and to allot theremaining 2/3rd according to the persons in the plaintiff’s pedigreewhose titles were proved.
The appellant is entitled to costs of appeal and the costs of contestin the District Court.
Alles, J.—I agree.
Order set aside.