137-NLR-NLR-V-15-WIJETUNGA-et-al.-v.-WIJETUNGA.pdf
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Present: Lascelles C.J. and Pereira J.19t3.
WIJETUNGA et al. v. WIJETUNGA.
237—D. C. Chilaw, 4,570.Fidei commissum—Prohibition against alienation—Grant to A, and after
his death to his heirs, executors, or administrators.
B by a deed gifted hie property to A subject to the provision,inter alia, that A “ shall not sell, lease out, mortgage, " &c., theproperty, and that after A’s death- that A's “heirs, executors, oradministrators shall hold and possess the property or deal with itas {they please.”
Held, that the deed created a fidei commissum; the intention'of the donor had not been defeated by th6 use of the words“ executors or administrators."
Animportant testto beapplied in considering whethera will or
other instrument creates a fidei commissum is whether any provisionor stipulation expressed in it can be regarded as having beeninserted for any purpose other than that of creating a fidei com-missure.. Ifthisquestion cannot be answered in theaffirmative,
thenother provisionsandstipulations in theinstrument, if they
aresusceptible ofaninterpretation thatis notinconsistent
withthe conceptionof a fidei commissum,must begiven that
interpretation. i
i (1874) L. B. 9 Ch. 495; (1876) SI A. C. 881.
* (1884) 87 Ch. D. 891.
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1W2.
Hietungav.
Wijetunga
T
HE facts are sufficiently set out in the judgment of the DistrictJudge (T. B. E. Loftus, Esq.)
1. The Assistant Government Agent,Pattslam,was directed by
Bis Excellency the Governor to acquire a certain block of land for apublio pnrpoge, viz., for tbe construction of a railway to Chilaw.
2. The three defendants appeared before him in response to theusual notice.
Firstdefendantclaimed theentiretyof the undivided halfshare
adversely tosecondand third defendants,whocontend that theshare
in question should be divided equally among the three defendants.
A, The half 6hare in question – belonged originally to WijeyetungeDon Thomie and hie wife Madalena, who gifted the same to their eonDon Alvino by deed No. 1,650, vide M (2).
Secondand third defendantscontendthatM 2 contained avalid
fidei commie sum, and that consequently the half share in question hasdevolved on Don Alvino’s heirs, who are first and second defendantsand the late wife of the third defendant.
The first pointto determineis.Does M 2 contain the word
" assigns "?
First defendanturges that theword “ balakaraya-balayalath
means “ assigns,” and is the word usually used by notaries as anequivalent for the English word “ assign ”.
0.To support thiscontention hecalledthe interpreter of this Court.
This officer has had very short experience as an interpreter. Duringthegreaterpart ofhia officiallife hewasrecordkeeper. He frankly
admite he is no expert, and has only a colloquial knowlr' of tbeSinhalese language, not even being conversant with the gramn»r of thelanguage.
The contention of the first . defendant does violence to the grammar
ofthe passage. Thewords " polmak,”" administradi,” are adjectives
qualifying the noun " balakaraya,” " balayalath ” is a participle.
Thesentencemeans “ excutors andadministratorswhohave'
obtained authority to act as such.”
First defendant's object in trying to import the word “ assign ”was to obtain the benefit of the decision reported -at page 190 inVol. H., N. L. R.
The next question to determine is, Does M 2 contain a validfidei c ommissum t
Second and third defendants contend that the words ” executorsand administrators ” should be viewed as a mere surpulsage, thoughtlesslyinserted by a notary fond of long and sonorous words, the precise meaningand effect of which he was igomant of.
Theypoint tothe prohibition againstalienation, andurgethat
the grantor's intention is sufficiently clear therefrom.
Lastly, they urge that document M 3 shows that the granteedealt with the property as though it had been burdened with- a fideicommission.
First defendant, relying . on the decisions of the Supreme Courtreported in 7 S. C. C. 135, 2 N. h. R. 190, 6 N. L. R. 173, 8 N!. L. R,960, 34 N. L. R. 801-810, contends that M 9 does not create a validfidei commission.
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I think first defendant's contention is sound. The law relating1918.
to executors andadministrators has nowbeenin operationso long y^etunga p>
thateventhe commonest villager knowstheduties and powers ofan rfijetunga *
executor or administrator.
It iaimpossibletoholdthat thosewordsarea mere surplusage,
and the decisions above cited must be followed.
ThatDonAlvino dealtwith theland as though’ it had been
burdened with a fidei commistum is no ground for holding that M 3contains a valid fidei commistum.
Thelastpoint to bedetermined is, Is there estoppelby
conduct ? Itis contendedthatthe factthatfirstdefendant accepted
fromhis father the gift of hi; life' interest(eideM 8)estopshim from
denying that M 2 contains a valid fidei commistum.
Thatslopeis insufficientto bringthiscase under section 115of
the Evidence Ordinance.
Both issuesmust be decided againstsecond andthird defendants.
Firstdefendanthasbyhis father'swill(videC 3) become heir
to all hisproperty.Heis,therefore, entitledtothe whole of the
compensation broughtinto Court by the Assistant Government Agent,
Puttalam.
Let decreebe entered accordingly.Secondandthirddefendants
will pay the costs incurred by the plaintiff and by the first defendant.
Bawa, K.O., for appellants.
.Sampayo, K.G. (with him Cooray), for respondent.
Cur. adv. vult.
November 12, 1912. Pereira J.—
This is a case on a reference to the District Court under “ TheLand Acquisition Ordinance, 1876. ” The contest is one betweenthe first defendant on the one side and the second and thirddefendants on the other as to the apportionment of the amount ofcompensation brought into Court by the Government Agent. Thequestion involved is whether deed M 2 created a fidei commiasum inthe hands of the grantee, Don Alvino, in respect of the propertyconveyed to him thereby. If it did, the three defendants would beentitled to share equally in the amount brought into Court; if itdid not, the first defendant would be entitled to the whole amount.It is difficult to understand the quaint phraseology of the translationof this deed, but its provisions may be summarized thus:—
The donors “ give and grant ” the properly in question to
Alvino.
They provide that Alvino “ shall not sell, alienate, lease out,
mortgage, exchange, or keep as security, or in any othermanner encumber the property; and,that all acts, deeds,and things done contrary to this stipulation shall be nulland void.”
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IMS.
Pereira J.
Wfy'etungav.
Wijetunga
(8) They reserve to themselves the right of " enjoying, posses-sing, and improving the property during their lives.”
They provide that “ after their death the property shall beheld, possessed, and enjoyed by Alvino ”; and
That after his death “ his. heirs, executors, or adminis-trators shall hold and possess the property or deal withit as they please.”
No case has been cited to us, nor am I aware of any in which termsof grant identical with or even closely similar to the above have beenconstrued by this Court; and we have therefore to look at theabove provisions by the light of such general rules and principlesas are usually applied for the purpose of discovering the trueintention underlying. such provisions. For the solution of thequestion as to whether a particular provision in a will or otherinstrument creates a fidei commie sum, an important rule is laiddown by Van Leeuwen in the Censure Forensis: Fro fidei comcommisso accipitur quod non alia ratione videri potest expressum nisicausa fidei commissi inducendi (Cens. For. 1, 3, 7, 7). That is tosay, a provision or stipulation given expression to must be taken asa fidei commissum, which cannot be considered as having beeninserted for any purpose other than that of ” inducing ” a fideicommissum. Now, in the above deed there is a provision thatAlvino shall not alienate,&c., the p^perty conveyed tohim, and
that any alienation shallbe null and void;and thereisalso a
provision as to what is to happen to the property after the deathof Alvino. Can we imagine any purpose for which these provisionshave been inserted in the deed in question except the purpose ofcreating a fidei commissum? I do not think so. The intention tocreate a fidei commissum is, 1 think, manifest, but then the questionhas been raised whether that intention has not been defeated bythe words used. If the intention of a donor or testator to createfidei commissum is clear, and the words 'used by him can begiven an interpretationthat supports thatintention,Ishould
be slow to embark on avoyage of discoveryin searchofpossible
interpretations that defeat that intention. In the words of VanLeeuwen again:In fidei commisis sola testatoris voluntas spectatur,
nee solum verbis expressa, sed el tacita et ex conjecture collecta (Cens.For. 1, 3, 7, 7).
Mr. Bawa has argued with great force that in the above deedthere is a clear indication of the persons to benefit after the deathof Alvino. They ore the heirs of Alvino. What the deed meansis that, alternatively, that is to say, in default of heirs, the propertyis to vest in executors or administrators. In default of heirs,Alvino, as fiduciarius, would, of course, be absolute owner of thesubject of the fidei commissum, and a disposition by him of the sameby will would then have full effect, and thus the use of the words
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“ executors ” and “ administrators ” (the latter implying adminis- 1912.trators cum testamento annexo) could be explained away withoutt
doing violence to the language employed, and in a manner that
gives effect to the obvious intention of the grantor to create a fideicommission.
I would set aside the judgment appealed from, and direct theapportionment of the compensation in equal shares among the threedefendants. The appellants, I think, are entitled to costs in bothCourts.
Lascelles C.J.—I agree.
Set aside.
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