099-NLR-NLR-V-65-RASAMMAH-widow-of-S.-Nagalingam-Appellant-and-GOVINDAR-MANAR-and-wife-Respo.pdf
Sasammah v. Qovindar Manar
487
1963Present: Herat, 3., and Abeyesxaaders, 3.
RASAMMAH (widow of S. Nagalingam), Appellant, andGOVESTDAE, MANAR and wife, Respondents
S.C. 407 of 1960—D. C. Point Pedro, 6267j L
Fideicommissa—Donation by an ascendant to a descendant—Condition therein thatif donee dies iesueless the gifted property should pass over to a third party—Is a fideicommissum in favour of donee's children implied?—“Impliedfideicommis8um
The mere fact that A, an ascendant, donates property to a descendant B uponcondition that if B dies issueless the property is to vest in 0 does not imply afideicommissum in favour of B’s issue in the event of B dying leaving issue.In such a case, if B dies after transferring the property to a third party, neitherB’s issue nor C would be entitled to the property.
A condition precedent to the creation of a fideicommissum is that the giftover to the fideicommissaries should take place irrespective of the will or fancyof the fiduciary. An expression of a wish or desire of the donor, leaving' it to thegood sense of the donee to give the property to the donee’s children, is not suffi-cient to indicate a condition that the property should go to them. Evenan implied fideicommissum is merely one where the intention of the grantor isconstrued out of the language used and from the circumstances of the case.
Appeal from a judgment of the District Court, Point Pedro.
S. W. Jayewardene, Q.G., with 8. Sharvananda and L. G. Seneviratns,for defendant-appellant.
Banganaihan, for plaintifis-respoodents.
HERAT, J.—Ra6<m»nah v. <6ovin&ar Manor
July 4,1963, Hebat, J.—
By deed of gift FI of 1915 Muthalithamby donated the land in disputeto hie daughter Thaxutniammah who was married to one Nadaxajah.Tharumiammah and Nadarajah executed D1 of 1915 by which they con-veyed the land in queetion in exchange for another land to omTSaddi^nathar. Saddanathar by deed D2 of 1915 transferred the land in suit toThambiah who by D4 of 1919 transferred the land in question to Nadarajahthe husband of Tharumiammah. The land was sold in execution of mort-gage decree against Nadaraj&h and was purchased by Supramaniam whohad deed B5 of 1920 executed conveying title to the land in his favour.Supramaniam by D6 of 1933 gifted the land to CheJlammah and she by D7of 1938 transferred the land to Nagalingam who by D8 of 1938 gifted theland to his wife R&sammah the defendant-appellant. Tharumiammahdied on 31.12.1949 leaving a child the second plaintiff-respondent whosehusband is the first plaintiff-respondent. The deed of gift PI among otherterms contains the following provisions :—
“ That if she (Tharumiammah) happens to die issueless leavingbehind these properties, the same shall devolve on her husband, thesaid Suppar Nadarajah and his brothers Suppar Saddanathar andSuppar Thambiah in equal shares. ”
The plaintiffs-respondents’ case is that the terms of the deed PI createda fidei commissmn binding Tharumiammah in. respect of the said propertyin favour of her children and that therefore upon Tharumiammah’s deathin 1949 the property devolved under the said fidei commissum on thesecond plaintiff-respondent who was the only child of Tharumiammah.The plaintiffs brought this action for declaration of title and ejectment ofthe defendant-appellant and obtained a decree in their favour and fromthat decree the defendant has now appealed.
The sole question which in our opinion we have to decide is whetherPI creates a fidei commissum in favour of Tharumiammah’s children.The question has long been discussed in the Roman Butch Law whetherunder the following circumstances a fidei commissum is deemed by thelaw to exist. Those circumstances are these : A, an ancestor, by last willor by deed inter vivos conveys property to a descendant Band states that ifB dies without issue that property is to pass over to C. Now if B diesleaving issue, then certainly the property wiU not go over to C. But thequestion is posed, what is then to happen to the property ? Boes B diethe absolute owner of the property and does it pass, if he dies intestate, tohis intestate heirs, or if he dies testate, to his testamentary heirs ? Onthe other hand, does the law imply or read into the language of the instru-ment an intention on the part of the testator A or donor A to create afidei commissum in favour of B’e children ? In other words the effect ofB dying leaving issue is, not only to prevent C getting the property butalso to vest tbe property in B’s issue as fidei commissaries under a fideicommissum binding upon B in favour of B's issue. The writers on the
HERAT, J.—Rasammah v. Gomndar Manor
469
Homan Dutch. Law took different views on this question. Sometimeseven the same writer took different views in different works of his. Butso far as we are concerned, we need only look to the trend of decided, autho-rity both in South Africa as well as in Ceylon. So far as South Africa isconcerned, the matter was set at rest in the case of Steenkamp v. Marais1,where it was held that the mere fact that an ascendant by his instrument(we use the neutral word instrument to include both last wills and deedsinter vivos) conveys property to a descendant B upon condition that ifB dies issueless the property is to vest in C does not imply a fidei com-missum in favour of B’s issue in the event of B dying leaving issue.The judgment of C.G.Maasdorp, J. who delivered the judgment in thatcase shows that if the instrument contains other provisions indicatingsome intention that it was resolute and an absolute condition laid downby the grantor that the property should ultimately go to the issue of•the immediate devisee or donee a different construction may be arrivedat. This judgment in Steenkamp v. Marais has been consistently followedin South Africa both with regard to testamentary instruments as wellas documents inter vivos although eminent scholars like Professor E. W.Lee and Mr. A. J. McGregor, a retired Judge of the Orange Free State,Provincial Division, have taken views contrary to the views taken in•that line of cases.
As regards Ceylon we have the case of de Silva v. Rangohamy2,which is a case of a last will no doubt but it is a case of a document wherethe grantor is an ancestor devising property to a descendant and layingdown the conditions that on the descendant’s death issueless the propertyis to devolve on a third party. This Court after considering the authori-ties in South Africa and the earlier decided cases in Ceylon as well as•the views of the writers we have referred to above, decided tofollow the view taken in Steenkamp v. Marais which held that no fideicommissum could be inferred in favour of the issue. Mr. Adv. Ranga-nathan for the plaintiffs-respondents has argued that there are indica-tions iD PI showing intention on the part of the donor to benefit thechildren of Tharumiammah. He points out to the fact that Tharumi-ammah was prohibited from alienating by deed but permitted to giftby way of donation or dowry deed the property in question to her children.He says that these two elements can be construed as showing thatthe provision that on Tharumiammah’s death issueless the pro-perty was to go over to the three persons indicated, indicates an inten-tion to benefit the children. There are two answers to this argument.First is that pointed out by my brother Mr. Justice Abeyesundere. Hepoints out that the prohibition against alienation is only by deed. PIbeing a deed inter vivos must be strictly construed. Accordingly there wasno prohibition upon Tharumiammah conveying the property by herlast will to whomsover she chose. If this too had been prohibited, weagree there would have been much for saying that there was evidence ofintention on the part of the donor to lay down that the property was
1 25 S. O. 483.
8 (1981) 62 N. L. R. 553.
The Queen v. Ibralebhe
<smultimately to devolve on Tharumiammah’s issue. Th&tbeingnot the case,,one oarrnot come to the conclusion contended for by Mr. Hanganathan.The other answer to Mr. Ranganathan’s argument is that the provisionsproviding far Tharumiammah being able to gift the property sea donation.
or dowry to her children on her part shows that it was the wish, or evenone may say , desire of the donor that the children of Tharumiaromah shouldbenefit. One cannot say that the language employed by the donor is suffi-cient to indicate the condition laid down by the donor that the propertyshould go to the issue. On the other hand at most, the language expressesa wish or desire on the donor’s part leaving it to the good Bense of the doneeto gift the property or donate the property to the issue in question. Thusthe vital element of a fidei commissum is lacking, namely, that the goingover or gift over is irrespective of the will or fancy of the fiduciary.This is so even in what is called an implied fidei commissum. For animplied fidei commissum is merely one where the intention of the grantoriis construed out of the language used and from the circumstances ofihe case.
We therefore come to the conclusion that PI does not create any fideiiommissum and that the title has validly passed to the defendant-ippellant. We therefore allow the defendant-appellant’s appeal and set.side the decree of the Court of first instance, and we dismiss the>laintiffs-respondents’ action. The defendant-appellant will be entitledo costs in the Court of first instance and also the costs of the appeal.
lbeyesundebi!, J.—I agree.
Appeal allowed~