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Petitioner: LLEWELLYN PERERA ABEYAWARDENE VS Respondent: CARMEN SYLVENE WEST
P L D 1957 Privy Council 134
P L D 1957 Privy Council 134
Present: Earl Jovitt, Lords Oaksey, MacDermott, Cohen and
Keith of Avonholm
LLEWELLYN PERERA ABEYAWARDENE-Appellant
Versus
CARMEN SYLVENE WEST-Respondent
Privy Council Appeal No. 37 of 1952, decided on 14th January 1957, from the Supreme Court of Ceylon.
(a) Gift-----Acceptance by nearest male relatives on behalf of minor daughters (donees) whose father and mother were the donors Sufficient-Transfer of Property Act (IV of 1882), S. 122.
Held, that acceptance of a gift of immovable property by three nearest male relatives of minor donees, the gift being from the parents to their daughters, was sufficient. The relatives who bad accepted the gift on behalf of the minors were two brothers and a brother-in-law of the minors.
Francesco v. Costa and others (1889) 48 S C C 189 and Lewishamy v. De Silva (1906) 3 Balasingham 43 ref.
(b) Jurists------Older writers Weight of authority - Whether binding in conditions of modern life (Ceylon case: Early Dutch Jurists.)
In considering the authority of the early Dutch jurists, their Lordships of the Privy Council accepted, as a correct approach, the following passage from Professor Lee's Intro duction to Roman-Dutch Law, (4th Edition, p. 15):
"The works of the older writers, on the contrary, have a weight comparable to that of the decisions of the Courts, or of the limited number of `books of authority' in English Law. They are authentic statements of the law itself, and, as such hold their ground until shown to be wrong. Of course the opinions of these writers are often at variance amongst themselves or bear an archaic stamp. In such event the Courts will adopt the view which is best supported by authority or most consonant with reason or will decline to follow any, if all the competing doctrines seem to be out of harmoney with the conditions of modern life; or, again, will take a rule of the old law, and explain or modify it in the sense demanded by convenience."
(c) Gift----Subject to a fidei-commissum -Acceptance by first donee is acceptance by donee's heirs-Gift irrevocable Property taken in exchange of gifted property, held subject to the fidei-commissum to which property gifted was subject - Entail and Settlement Ordinance, 1876, S. 8-(Transfer of Property Act (IV of 1882), S. 122)-(Ceylon case).
A gift made of property P in favour of the donor's minor daughters was subject to the fidei commissum that the donor was to enjoy the property in his lifetime; after his death the property was to be enjoyed by the donees who were declared' not to be entitled to sell, etc., the property, and the property after the death of the donees was to devolve upon the lawful issues of the donees subject to the same conditions and restrictions.
Held: (1) that acceptance by the donees was acceptance also for their heirs.
(2) that the fidei commissum attaching to property P attached by virtue of S. 8, Entail and Settlement Ordinance, 1876; to any property taken in exchange for P.
(3) that the fidei commissum prevailed against any bona fide purchaser for value.
[Older texts and case law referred to.]
D. N. Print Q. C., J. Stephenson and L. Kadirjamal for Appellant.
Solicitors: Parley Cumberland & Co.
Frank Gahan Q. C., R. D. Wilberforce Q. C. and S. N. Bernstern for Respondent.
Solicitors: Lee & Pemberlais.
Date of hearing: 7th November 1956.
JUDGMENT
LORD KEITH OF AVONHOLM.----The appellant is plaintiff for himself and as substituted for other two plaintiffs, his brothers, both now deceased, in an action brought in the District Court of Colombo for declarator that the original plaintiff's were entitled to a parcel of land in Colombo known as "Sirinivasa" and for other relief. The respondent is defendant in the action. She holds the land under gift from her father, who bought the land in dispute (on a title traceable back to the some source from which the appellants' claim is traced), and thereafter gifted it to the respondent subject to a fidei-commissum, The District Judge granted the declarator sought subject to certain conditions that it is not material here to notice. The respondent appealed to the Supreme Court which allowed the appeal with costs both there and below. From that judgment appeal has been taken, with leave of the Supreme Court, to their Lordships' Board.
The dispute turns upon the effect of a gift of land made in 1883 subject to a fidei-commissum and subsequent transactions. The material portions of the deed of gift, Deed No. 2110, are in the following term:
"Know all men by these Presents that we, Mututantrige Siman Fernando and Colombapatabendige Maria Perera, husband and wife residing at Horetuduwa in Panadura being desirous of making some provision for our children and in consideration of the love and affection we bear to our daughters. Mututantrige Cecilia Fernando and Mututantrige Jane Fernando and for divers other good causes and considerations us hereunto moving do hereby give, grant, assign, set over and assure by way of gift subject to the coi4ditions hereinafter stated, unto the said Mututantrige Cecilia Fernando and Mututrantrige Jane Fernando (hereinafter called the donees) the following property, to wit;
(description of property)
To have and to hold the said premises with the easements, rights and appurtenances thereunto belonging or used or enjoyed therewith or known as part and parcel thereof unto them the said Mututantrige Cecilia Fernando and Mututantrige Jane Fernando, their heirs, executors and administrators in equal undivided shares forever subject however to the conditions following that is to say that the said Mututantrige Siman Fernando shall during his life time be entitled to take use and appropriate to his own use the issues, rents and profits of the said premises and that after his death and in the event of his wife Colomba Patabendige Maria Perera surviving him she shall during her lifetime be entitled to take use and appropriate to her own use a just half of the said issues, rents and profits the other half being taken used and appropriated by the donees to wit, the said Mututantrige Cecilia Fernando and Mututantrige Jane Fernando and subject also to the conditions that the said donee Mututantrige Cecilia Fernando and Mututantrige Jane Fernando shall not nor shall either of them be entitled to sell, mortgage, lease for a longer term than four years at a time or otherwise alienate or encumber the said pre mises nor shall the same or the rents and profits thereof be liable to be sold in execution for their debts or for the debts of any or either of them and the said premises shall after their death devolve on their lawful issues respectively and in the event of anyone of the said donees dying without lawful issue her share, right and interest in the said premises shall devolve on and revert to the surviving donee subject however to the conditions and restrictions aforesaid.
And these presents further witness that Mututantrige John Jacob Cooray also of Horetuduwa aforesaid doth hereby on behalf of the said Mututantrige Cecilia Fernando and Mutu tantrige Jane Fernando, who are minors jointly with Mututantrige Alfred Thomas Fernando and Mututantrige James Fernando, brothers of the said minor donees accept the gift and grant of the said premises subject to the respective conditions aforesaid.
In witness whereof we the said Mututantrige Siman Fernando and Colomba Patabendige Maria Perera and we the said Mututantrige John Jacob Cooray, Mututantrige Alford Thomas Fernando and Mututantrige James Fernando do set our respective hands to three of the same tenor as these presents at Horetuduwa aforesaid, this Fourth day of October, in the year One thousand eight hundred and eighty-three.
Signed, sealed and delivered in the presence of us:
Sgd. (Illegibly). (In Sinhalese). John J. Cooray. A. J. Fernando. James Fernando. N. M. Fernando. L. Fernando.
Sgd. C. de A. Gunaratne. N.P.
There is appended to this deed the notary's docquet attesting that it had been read over and explained to the parties and that they and the subscribing witnesses were all known to him, the notary.
It is not disputed that this deed was effectual to consti tute a valid fidei-commissum, subject to a question at issue between the parties as to its revocability. The plaintiff and his two brothers, now deceased, were the children of Jane and so indicated as fidei-commissum under the deed, though not born at its date. The parcel of land thus gifted was known as "The Priory".
By application under Ordinance No. 11 of 1876 in the District Court of Colombo, made on the 17th June 1896 in which Siman and Maria were petitioners and Cecilia and Jane and James Fernando were respondents, the petitioners asked the Court to appoint James as guardian ad litem of Jane, who was then 192 years of age, to authorise Cecilia and James as such guardian to convey "The Priory" to Siman free from all conditions and restrictions in consideration of the petitioners transferring to Cecilia and Jane another property called "Sirinivasa" subject to certain conditions which need not be here set out as they are incorporated in the order of the Court next to be noticed. All parties con sented to the application. The professed reason for the exchange was that it was not desirable or beneficial for Cecilia and Jane to hold in common "The Priory" and that Siman was anxious to make better provision for these two daughters. "The Priory" was valued at Rs. 45,000 and "Sirinivasa" at Rs. 90,000.
On the following day, the 18th June, the District Judge pronounced the following order:-
"It is hereby adjudged and ordered that James Fernando of Horetuduwa be and he is hereby appointed guardian of Jane Fernando (the second respondent) in this matter to represent her in these proceedings.
It is further ordered and decreed that upon the peti tioners transferring and assigning unto the first and second respondents Cecilia Fernando and Jane Fernando the allotments of land (fully described in Schedule B to the said petition of the petitioner) situated at Edinburgh Cresent, Flower Road and Green Path, Colombo, and the buildings thereon called and known as "Sirinivasa" bearing assessment No. 8 subject to the conditions following, that is to say, viz., that they the 1st and 2nd respondents shall not sell, mortgage or otherwise alienate the said premises except with the consent of the petitioners or the survivor of them and that the first petitioner shall during his lifetime be entitled to make, use, enjoy and appropriate to his own use the rents, issues and profits of the said premises and that after his death and in the event of the second petitioner surviving him she shall during her life time be entitled to take, use, enjoy and appropriate to her own use one just hall' of the said rents, issues and profits the other half thereof being taken, used, enjoyed and ap propriated by the 1st and 2nd respondents that the said Cecilia Fernanda and James Fernando as guardian of the said Jane Fernando, do and they are hereby authorised and empowered to convey and assign unto the said Mututantridge Siman Fernando, the 1st petitioner, the aforesaid lands and premises called and known as "The Priory" (fully described in Schedule A in the said petition) absolutely and free from all conditions and restrictions contained in Deed No. 2110, dated the 4th day of October, 1883, and that the said Cecilia Ferhando and James Fernando as guardian as aforesaid do and they are hereby empowered and authorised to execute and deliver the necessary Deed of Conveyance of the said premises in favour of the said Mututantridge Siman Fernando absolutely and Free and clear of all conditions and restrictions.
Following on this Order and exchange of lands was made by a conveyance by Cecilia and James, as guardian of Jane, of "The Priory" to Siman "freed and clear from all and every restrictions and conditions" in the Deed of Gift of 1883 and a conveyance by Siman and Maria "by way of gift" to Cecilia and Jane of "Sirinivasa" subject to the conditions, set out verbatim, contained in the said Order of Court. The respective conveyances are each dated 23rd June, 1896 On the same date by another conveyance Cecilia conveyed to Siman her one undivided moiety of Sirinivasa", which she had just received from her father, in consideration of the sum of Rs. 45,000. By a fourth conveyance of the same date Siman conveyed to Cecilia "as a gift absolute and irrevocable" "The Priory" which had just been conveyed to him by Cecilia and Jane.
So far as "Sirinivasa" was concerned Siman and Jane held this now in undivided moieties. On 30th June, 1900. they having agreed on a partition, Siman by , Deed of Inden ture conveyed his undivided share in the eastern portion of "Sirinivasa" as delimited in the deed to Jane and Jane con veyed to Siman her undivided share in the western portion as delimited.
On 30th November, 1905, by Deed of Indenture, Jane, who was now married, with consent of her husband and of her mother, Maria, conveyed her divided share of "Sirinivasa" to Siman in consideration of the sum of Rs. 75,000 Siman thereafter by Indenture dated 6th December, 1907, conveyed y the whole of "Sirinivasa" to his son James Fernando, in con sideration of the sum of Rs. 1,75,000. Under Jame's will the land passed to trustees for charitable purposes and was divided by them into separate lots. The respondent's father became purchaser, inter alia, of two of these lots. These are the subject matter of this action and as already indicated, were gifted to the respondent by her father subject to a fides-commissum in favour of her issue, failing whom, her brother and his issue.
On these facts a number of difficult and important questions have been argued before the Board. No question of registration arises in the case. The appellant's case is based on the acceptance by Jane, his mother, of the gift of 1883, which acceptance he says enured to the benefit of himself and his deceased brothers as fides-commissaries under the deed of gift. Both Jane and Cecilia were minors in 1883 and acceptance was made on their behalf by Cooray and their brothers Alfred and James. Cooray, as appears from the evidence in the case, was Jane's brother-in-law, married to her sister Isabella. The deed was executed before a notary who attested that he knew all the parties. Their Lordships see no reason to think that this was not a valid acceptance on behalf of Cecilia and Jane. Their natural guardians, their father and their mother, could not accept 'for them, because they were the donors. In similar circum stances acceptance on behalf of a minor donee by his grand mother (who was the other donee was held good in Francesco v. Costa and others ((1889) 48 S C C 189) as was also acceptance by a brother on behalf of his minor brother in Lewishamy v. De Silva ((1906) 3 Balasingham 43). One of the grounds of judgment in these cases was that the donors had allowed such acceptances to be made on behalf of their minor children. Forms to be found in the Appendix to Raj Chandra's book on fides-commissa disclose similar acceptances. The Supreme Court and the District Judge held that, in any event, the daughters had ratified the accep tance on their behalf by their subsequent conduct. Their Lordships do not feel called on to consider this point. In the circumstances of this case they consider that acceptance on their behalf by three of their nearest male relatives, other than their father, was sufficient acceptance of the gift to them.
There remains, however, the question whether the accept ance by Jane and Cecilia (the fiduciaries) was an acceptance for their children the fides-cammisaries. This is one of the major issues between the parties. If there was no acceptance for the fides-commisaries the gift to them was revocable in the life-time of the donors at any time before their acceptance and there is no doubt that the conduct of the donors and the fiduciaries in the various transactions already mentioned would amount to such revocation. The District Judge held on earlier authority in Ceylon that acceptance by Jane was acceptance for her issue. The Supreme Court on a review largely of passages from commentators on Roman-Dutch law held that there was no acceptance for the fidei-commissaries.
Their Lordships would observe that the learned jurists of the 16th and 17th centuries were far from united in their opinions on various points arising with reference to donation and fides-cammissa and this left much scope for the consolidation of debatable points by legal decision. Their Lordships also accept as a correct approach in considering the authority of the early Dutch Jurists the following passage from Professor Lee's Introduction to Roman-Dutch Law, (4th Edn., p. 15):
"The works of the older writers, on the contrary, have a weight comparable to that of the decisions of the Courts or of the limited number of books of authority' in English law. They are authentic statements of the law itself, and, as such, hold their ground until shown to be wrong. Of course the opinions of these writers are often at variance amongst themselves or bear an archaic stamp. In such event the Courts will adopt the view which is best supported by authority or most consonant with reason; or will decline to follow any, if all the competing doctrines seem to be out of harmony with the conditions of modern life; or, again, will take a rule of the old law, and explain or modify it in the sense demanded by convenience."
On the question of acceptance for or by a fidei-commissary reference was made in the Supreme Court and before their Lordships to Perezius's Praelectiones (1653) Bk. VIII Tit. LV 7 to 12. This learned commentator opens paragraph 7 thus:---
"The greater dispute is whether a donor who has gifted property to another with this pact and limitation that after a certain time he should restore it to some third person can in the meantime revoke this pact."
He proceeds to point out that there was a divergence of opinion on whether the third party needed to accept to prevent revocation by the donor, the majority view being that no acceptance was necessary. In subsequent paragraphs he considers special cases of events happening before the date of restoration, viz., acceptance by a notary for the third party, death of the donee, delivery by the donee of the subject of gift to the third party, death of the donor, confirmation of the gift by the donor's oath. He then comes to another case which he deals with in paragraph 12. The following is a translation of the relevant portion of this paragraph.
"Lastly the former opinion [by which Perezius means the opinion of the majority stated in paragraph 7] would be the more correct if the gift made to one person is made in favour of a family in which the donor wishes the property gifted to remain; for by no pact can it be revoked in respect of after-comers; for it is sufficient in order that it may be considered a perpetual donation that the first donee has accepted it so that there is no need of a sub sequent acceptance where the burden imposed on a first donee results in an action available to all as Molina says (de Hisp. primog. L. 4 c.2 n. 75) because it would be absurd, in order to make a fidei-commissum irrevocable, to require the acceptance of infants and persons not yet born; so that as the gift cannot be revoked in respect of these it follows that the same thing must be said with regard to those who precede them lest property left to the family should go to more remote relations to the exclusion of closer ones. See Anton Gomez in L.40 Tauri n.34; also Molina (d.loco) who say that it has thus been decided at the present day by the laws of the King of Spain, especially L.44 Tauri where delivery, alone made to the one first called to the succession of the Majorate has the effect of making the Majorate itself absolutely irrevocable both in respect of himself and also of after-comers."
Of this passage their Lordships would observe that the writer speaks of a "perpetual donation" not of a perpetual fidei-commissum. Satis anim est ut censeatur donatio perpetua quod primus eam acceptaverit, ulteriore acceptatione opus non sit." In its context their Lordships think it clear that per petual donation here means an irrevocable donation.
Their Lordships have not had their attention directed to any other commentary of the early writers which deals with this matter as fully as Perezius has done. Mr. Justice Basanyake in the Supreme Court quotes certain passages from Van Leeuwen's Censura Forensis (1662) and Pothier's Law of Obligations (1761). Van Leeuwen does not appear however, to be dealing with fidei-commissa, but with dona tions generally and indeed would seem to exclude fidei -commissa as appears from the following passage (iv.12.18). "But there is a doubt whether a gift can be conferred on anyone through an intermediate person, as it verges on a fidei-commissum, which cannot be created by gift or other dispositition inter vivos, nor can it hold good." This view that a fidei-commissum cannot be created by gift inter vivos, if at one time doubtful, does not now prevail in Roman Dutch law. But the passage would seem to exclude Van Leeuwen as an authority on the problem with which their Lordships are concerned. Pothier was not of course an authority on Roman-Dutch law. He did not accept the doctrine of jus quaesitum tertio but he did recognise gifts made sub conditione or sub modo. In this connection he poses the question (Law of Obligations, Evans Translation, Vol. I, p. 39):
"Hence arises another question, whether after giving you anything with the charge of restoring it to a third person in a certain time, or of giving him some other thing, I can release you from the charge without the intervention of such person, who was no party to the act, and who has not accepted the liberality which I exercised in his favour."
Here again, as did Perezius, he sets out the two con flicting views of learned writers on this question without arriving at any conclusion. Their Lordships are then left in the position that, so far as has been shown, there is nothing in the older writers more definite than the passage quoted from Perezius.
In connection with this passage from Perezius there was canvassed before this Board-a matter which entered into the ratio of the judgment of the Supreme Court whether the gift in the present case is a gift made in favour of the family, " si donatio concernat favorem familiae". The view of the Supreme Court was that it was not a gift in favour of the family because it came to an end with the first generation of fidei-commissaries, that is with Jane's children who were free to dispose of the property as they wished. What the Court required was a fidei-commissum enduring indefinitely from generation to generation, in other words a perpetual fidei-commissum. Reliance for this view was placed particularly on certain passages in Sande's Treatise on Restraints on Alienation (1633) (Webber's translation). Their Lordships are unable to draw the same conclusion from the passages in question when taken in their context with other passages. The material passages are to be found in Part III, Chapter V of the treatise and their Lordships will quote more fully from this chapter than was done in the Supreme Court. Chapter V is headed "What fidei-commissum is induced from this prohibition upon aliena tion". The writer first considers two types of fidei-commissum which he calls conditional and simple or absolute. Broadly the distinction is between a prohibition of alienation outside the family (conditional) and a direct bequest such as "I leave my landed property to the family" coupled with a pro hibition against alienation (simple and absolute). It is to be observed that the written is speaking of testamentary disposi tions and not of gifts inter vivos but that would not appear to be material. The importance of the distinction was in the results that mights follow and Sande discusses these very fully. Sande clearly favours restricting restraints on aliena tion as much as possible. In paragraph 10 he says:
"And in case of doubt a testator should not be con sidered to burden his descendants with the perpetual and indefinite fidei-commissum, by a prohibition restraining the heir from alienating. And a substitution made in favour of a family, of descendants, or of several persons under a collective name, takes place in the highest grade which survives at the time when the condition arises, and it is not extended to the lower grades unless the testator has expressly so willed."
He returns to this point in paragraph 11:
"But the point we are discussing is not in what order succession to a fidei-commissum to a family takes place, but whether a testator, by a simple prohibition against alienation outside the family, wishes to induce a…
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