017-SLLR-SLLR-2006-V-2-SAYORIS-AND-OTHERS-vs.-GITANJALI-AND-OTHERS.pdf

No.9 –
The learned counsel for the contesting defendants submitted that thesaid deed No. 5027 has the effect of a fideicommissum and in terms of thesaid deed points of contest Nos. 9 to 12 had been framed.
The learned counsel for the respondent strongly contended that sinceno issue had been raised at the trial suggesting that the deed No. 5027creates a fideicommissum, the contesting defendants are now precludedfrom arguing that the deed No. 5027 creates a fideicommissum. The learnedcounsel submitted that the Court of Appeal should not decide a matter onwhich no issue has been raised. The learned counsel cited AIRCommentaries on Civil Procedure Code by Chitaley andAnnaji Rao (1944)4th edition, page 1827-88, which reads thus: “the Court should not decidea suit on a matter on which no issue has been raised. If the case goes inappeal it must be dealt with by the Appellate Court on the issues settledfor trial and not on a point on which there is no issue”. The learned counselsubmitted that since no point of contest had been raised at the trial thatthe deed No. 5027 creates a fideicommissum, the contesting defendanthas no right to raise it in the appeal.
However, the question whether the deed in effect creates afideicommissum had been raised in the course of the trial and the learnedDistrict Judge had dealt with this question, in the judgment (vide-page 143of the appeal brief) The learned Judge has stated as follows:

CASayoris and Others vs.117
Gitanjali and Others (Wimatachandra, J.)
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This point had been dealt with by the learned Judge even though thisquestion was not raised in the form of an issue. It appears to me that thismatter had been indirectly brought up in points of contest No. 9 to 12.Moreover this point was raised in the course of the trial. In the circumstances,
I am of the view, a matter which had not been specifically raised as anissue, but where it has been raised in the course of the trial and thelearned Judge has dealt with that point in the judgment and more so, whenthe Court of Appeal has before it all the necessary material to decide thatmatter, it can be raised in appeal, even though no specific issue had beenraised on that point at the trial. It is my further view that this matter doesnot require the ascertainment of new facts at this stage.
In the circumstances, I am of the view that the appellant is entitled toargue in the appeal that deed No. 5027 has created a fideicommissum.
I shall next proceed to consider whether the deed No. 5027 is effectivein law to create a fideicommissum. We have had the benefit of wellconsidered arguments from the learned counsel for the respondent on theissue of fideicommissum.
The learned counsel for the respondent submitted that deed No. 5027never came into existence because Lihinis had no children. Thefideicommissaries contemplated by deed No. 5027 in respect of the 1/2share of Lihinis were the male children of Lihinis. Admittedly Lihinis hadno children. Hence, in the absence of fideicommissaries there is no validfideicommissum. Fideicommissary is the person on whom thefideicommissum was intended to devolve and if there is no fideicommissary,a fideicommissum cannot be created. In this regard, the fideicommissaries,who were contemplated, in respect of the Lihinis Singho’s 1/2 share werethe male children of Lihinis who never came into existence.
Professor T. Nadarajah in his book, “Roman Dutch Law offideicommissa" as regards the modes of determination of fideicommissa,at page 208 states thus:
“Under this same second head of modes of determinationof fideicommissa, Voet also mentions cases where “thereis a failure of the condition, express or implied, on which(the testator) wished the fideicommissum to depend; or
CA
Sayoris and Others vs.
Gitanjali and Others (Wimalachandra, J.)
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where there is any failure of the person on whom hewished the fideicommissum to devolve” One variety ofthe latter class of cases of failure of fideicommissaries-namely, failure by the death of the fideicommissariesbefore the fiduciary is, as we shall see, treated by Voetunder the third head of determination of fideicommissa;but failure of fideicommissaries is no doubt mentionedunder the second head also as being an illustration offailure of fideicommissa by failure of the condition of thefideicommissum, on the view that it is a tacit condition ofall fideicommissa that there should be fideicommissariesin existence and having the capacity and willingness tosucceed at the time of the maturing of thefideicommissum”
Then at page 217, notes to chapter ten, Professor Nadarajah states asfollows:
“for failure of fideicommissaries may occur not only wherefideicommissaries once in existence have subsequentlydied before the fiduciary-this is considered at page 289supra-but also where no fideicommissaries ever cameinto existence (emphasis added)”
In the instant case, before the maturity of the fideicommissum thefiduciary (Lihinis) died. He died without children the (fideicommissaries).As Professor Nadarajah clarified, a fideicommissum will fail where nofideicommissaries ever came into existence. Since Lihinis had died withoutchildren, fideicommissaries never came into existence.
In the circumstances I am inclined to agree with the submissions madeby the learned counsel for the respondent that since Lihinis died withoutchildren the fideicommissum failed for two reasons. That is, it failed becauseof the non existence of fideicommissaries and also due to the failure of thecondition of the fideicommissum that there were no fideicommissarieshaving the capacity and willing to succeed at the time of the death of thesaid Lihinis who was the fiduciary. This principle was explained in thecase of Perera vs. Mariano where de Sampayo, J. held, it is goodlaw that when fideicommissaries fail, the last holder’s fiduciaryinterest is enlarged into full ownership, and that any disposition byhim by act inter vivos or by last will is operative.
In deed No. 5027 it is the male children of Lihinis who would be thefideicommissaries in respect of Lihinis 1/2 share. Lihinis who was thefiduciary died without any children. As he had no children, his fiduciaryinterest extended into full ownership. When Lihinis died, his interest
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according to law passed on to his widow, Rosalin, who became the ownerof 1/4 share of the land. That is upon the death of Lihinis 1/2 of his halfshare of the land, that is 1/4 share devolved on Rosalin. Rosalin on deedNo. 666 dated 12.10.1968, marked “P2” at the trial, had transferred exactly1/4th share to Dimitius who was the original plaintiff.
The learned counsel for the respondent also submitted that the deedNo. 5027 is ineffective to create a fideicommissum because although itprohibits a transfer, a mortgage, or a lease for a period exceeding fiveyears, the deed No. 5027 does not prevent the donees donating or disposingof the property by last will. The learned counsel cited the case of Franciscovs. Swadeshi Industrial Works™ in support of his argument, whereinBasnayake, C. J. held that a donee was prohibited only from selling ormortgaging the property and was therefore, in law, free to donate the propertyor dispose of it by last will. In the circumstances there could be nofideicommissum.
Basnayake, C. J. made the following observation at p. 182 ;
“Moreover when a sale, a donation and a pledge
are prohibited, alienation by last will is considered to bepermitted. The donee Adonis was therefore in law freeto donate the property or dispose of it by last will. Inthose circumstances, there cannot be a fideicommissum.”
When we turn to the deed No. 5027 we find that this deed is subject tothe same infirmity. In this deed too, donees (fiduciary) are prohibited onlyfrom selling, mortgaging or keeping as a security or leasing the propertyfor a period of five years. However, it does not expressly prohibit disposalby last will. In the aforesaid case at 182, Basnayake C. J., stated that aprohibition against alienation is under our Law strictly construed and isnot extended to modes of alienation other than those expressly mentionedin the instrument.
Basnayake, C. J. in Francisco vs. Swadeshi Industrial Workers(supra) also made the following observation at p. 182:
“The deed is subject to a further infirmity. It does notcontain a stipulation restoring the property to a thirdperson in case the property is sold or pledged contrary tothe prohibition therein.”
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Sayoris and Others vs.
Gitanjali and Others (Wlmalachandra, J.)
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It appears that to construe whether a deed has created a fideicommissumit must contain in addition to all forms of express and specific prohibitionsagainst all forms of alienation, a penalty clause restoring or giving theproperty to a third person in the event of alienation. However, deed No.5027 does not have such a condition in the event of alienation. In deed No.5027 a gift or disposal of property by last will is not expressly prohibited.For these reasons I am of the view that the deed No. 5027 is not effectivein law to create a valid fideicommissum.
The next matter to be considered is the submissions made by thelearned counsel for the respondent that no right would pass in terms ofdeed No. 5027 as the said deed was not acted upon as a fideicommissum.It is to be observed that the deed No. 5027 deals with several lands. Theland described in item No. 10 in the schedule to deed No. 5027 isGodaporagahawatte.
The 1 st defendant Sayoris gave evidence on behalf of himself, the 1 st,2A, and 6th defendants at the trial. He admitted that there was a partitioncase No. 30883 in the District Court of Kalutara to partition the land calledGodaporagahawatte which is a land described in the schedule to the deedNo. 5027. In that case Joronis and Rosalin (widow of Lihinis) had filed ajoint statement of claim admitting the correctness of shares given to themin the plaint (maked P6). In paragraph 4 of the plaint in case No. 30883, itwas stated that Babun Singho and Menchihamy gifted the landGodaporagahawatte to Joronis and Lihinis by deed No. 5027 dated11.12.1916 it was further stated that the said Lihinis died without issueleaving his widow Rosalin as his heir, who was the 2nd defendant in thatcase. The said Joronis’s son Sayoris, who is the 1 st defendant-appellantin the instant partition action (No. 995/P), in his answer states that deedNo. 5027 creates a fideicommissum in favour of the children of Joronis andsince Lihinis died without children, Rosalin is not entitled to any rights.However Joronis himself who was the father of Sayoris, filed a jointstatement of claim with Rosalin in case No. 30883, conceding that Lihinis'rights devolved on his widow Rosalin. In their joint statement of claimJoronis and Rosalin admitted the devolution of title shown in the plaint incase No. 30883. In that case the devolution of rights given in the plaintwas that when Lihinis died issueless his rights devolved on his widow,Rosalin.
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Moreover, Joronis in case No. 30883 not only admitted the correctnessof the devolution given in the plaint marked ‘P3’ but also the correctness ofshares shown in the plaint ‘P3 The shares were shown on the basis thatLihinis died without children, and his interests devolved on his widow Rosalinwhich is also the position set out in the plaint in the instant caseNo. 997/P.
Aforesaid Joronis's son Sayoris, the 151 defendant who gave evidenceon behalf of the contesting defendants, the 1st, 2A, and 6th defendants,admitted that Lihinis died in the year 1945 and that Lihinis's widow hadbeen there in the land even in the year 1960, (vide pages 117,118 of theAppeal brief). It is to be noted that Rosalin had sold her rights on 10.02.1968by deed No. 666 marked ‘P2’. In these circumstances it is proved thatRosalin was in possession of the land even after the death of Lihinis in1945. She had been in possession of the land until she sold it by deed No.660 in the year 1968. In the recital of the said deed, it states, “held andpossessed by material inheritance from her late husband SenadheeraLihinis”.
It is to be observed that Joronis in case No. 30883 did not seek thatdeed No. 5027 created a fideicommissum and in fact he had filed a jointstatement of claim along with the widow of Lihinis on the basis that deedNo. 5027 has not created a fideicommissum. Joronis did not deny thatLihinis’ widow, Rosalin was not entitled to inherit the rights of her husband(Lihinis’) upon his death. The 6th defendant-appellant had on deed No.1089 (marked 6 — 1 at the trial) got the rights of Saraneris who is a childof Joranis. Hence, when Joronis had acted on the basis that deed No.5027 had not created a fideicommissum, the 6“' defendant-appellant whopurchased interests from Saraneris, who was a child of Joronis, cannotnow say that deed 5027 creates a fideicommissum.
(3)
It has been held in Mohammadu Cassim vs. Mohammadu Lebbethat a decree operates as res-judicata as between the parties only orthose claiming through them. Gratiaen, J. who delivered the judgment inthis case, at page 3 observed that;
“The general principle that, if parties litigate a questionin a Court of competent jurisdiction, such parties or thoseclaiming through them, cannot afterwards reopen the samequestion in another Court.”
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Sayoris and Others vs.
Gitanjali and Others (Wimatachandra, J.)
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In the circumstances, the decree in case No. 30883 not only bindsJoronis, but also his son Sayoris who is the 1st defendant-appellant in thiscase. The decree in case No. 30883 will bind the 6th defendant-appellantas well, since he bought rights in this land from Saraneris who is a child ofJoronis.
In Banda vs. KarohamNagalingam, J. at 373 said,
“I am inclined to think that the doctrine of res-judicataapplies to all matters which existed at the time of givingthe judgment and the party had an opportunity of bringingbefore Court”.
In the partition action No. 30883, deed No. 5027 was pleaded in theplaint, but Joronis who was the predecessor in title of the appellants inthis case, did not raise that deed No. 5027 created a fideicommissum. Inany event it was the position of Joronis that deed No. 5027 was not actedupon as a fideicommissum. In that case, Joronis and Rosalin, the widowof Lihinis, had acted on the basis that deed No. 5027 is not effective in lawto create a fideicommissum, in favour of the children of Joronis.
I will now come to the final point that has to be considered in thisappeal, which is how the parties have possessed the land. According tothe surveyor's report the old plantation which is found in Lot 2 are possessedin common by the plaintiff and the other defendants. A permanent housewhich is 30-40 years old is also owned in common (house No. 5). Accordingly,it is most probable that the plaintiff who bought the rights of Rosalin, thewidow of Lihinis, is also a co-owner of the land, as the old plantation on theland had been claimed in common by the plaintiff and other defendants, soalso the old house which is more that 30 years old.
In the circumstances, I am unable to agree with the argument of thecounsel for the 6th defendant-appellant that deed No. 5027 creates afideicommissum. In any event as Lihinis had no children, a fideicommissumwas not constituted in respect of the V2 share of Lihinis as the male childrenof Lihinis who were the fideicommissaries contemplated by deed No. 5027never came into existence.
For the reasons I have given I dismiss the appeal with costs.BALAPATABENDI, J. – / agree.
Appeal dismissed.