CARLINHAMY v. JUANIS et al.,

• Jurisdiction: Sri Lanka
• Date: 04 August 1924
• Type of Document: New Law Report

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Present: Bertram C.J., Garvin J., and Jayewardene A.J.

CARLINAHAMY v. JUANIS et al.

377-D. C. Matara, 312.

Gift in favour of six children subject to fidei commissum-Death of one child-Jus accrescendi-Partition decree allotting one lot jointly in favour of one family group-Decree assigning rights to deceased persons-Rights of representatives of deceased person under the decree- Decree giving rights to wife of one defendant-Wife dead at the time-The defendant married to another woman-Court not aware of second marriage-Construction of decree-Latent ambiguity- Evidence Ordinance, ss. 94 and 96-Powers of Court in revision.

Per Bertram C.J. and Garvin J. (dissentiente Jayewardene. A. J.): ratne v. Abeysekere [¹ (1897) 2 N. L. R. 313. 5] further considered and defined.

Per Bertram C.J. and Garvin J. (dissentiente Jayewardene A.J.): That principle is not confined to testamentary fidei commissa. but applies equally to fidei commissa created by a deed inter vivos.

By the whole Court: Where a partition decree per incuriam allots interests to persons already dead, it must, unless set aside, be interpreted as allotting those interests to their representatives in interest.

Where a partition decree allots a particular lot to a family group, it is not necessarily to be presumed that they are to hold it in equal shares.

Per Bertram C.J. and Garvin J.: In interpreting a document the state of knowledge of the author of the document at the time it was executed may be taken into account for the purpose of determining whether the circumstances of the case disclose a latent ambiguity.

Sabo and his wife Nonno, who were entitled to a one-fourth share of a land, gifted the same in 1875 to their six children (first to fourth defendants and Babappu and Donsina, wife of Mathes) subject to certain conditions. The material parts of the deed of gift were as follows:-Whereas we do deem it fit and proper to set apart something separate unto our six children for their welfare and advancement, we have gifted unto our six children, in terms of the agreement appearing hereunder, the following property: -

....We shall have the right to possess the above property and do our pleasure therewith, and after the death of us both, our aforesaid six children shall be at liberty to own in equal shares and possess peaceably for ever throughout their generations the property; and the six children and their heirs may by leasing out possess the property and not sell, mortgage, &c.

Donsina, who married Mathes, died in 1888, leaving a child Guruwa, who also died in 1889 issueless. Mathes then married Carlina, and died in 1915, leaving him surviving his widow and two children, fifth and sixth defendants. In 1905 a partition action was instituted, when Nonno and her children were given jointly lot D, in lieu of their undivided one-fourth share. The decree read as follows:-"Lot D is assigned to second to sixth defendants and wife of the seventh defendant. " (The second defendant was Nonno, and third to sixth defendants were her children, and

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Mathes was seventh defendant in that action.) The deed of 1875 was not produced. The fact that Mathes was at the time married to Carlina was not mentioned to Court. Carlina brought this action for partition of lot D.

Held, by the whole Court, that the gift to the six children was subject to a fidei commissum.

Held, further, per Bertram C.J. and Garvin J. (dissentiente Jayewardene. A. J.): -

(1) That on the death of Guruwa his share devolved on his mother's brothers and sisters and not on Mathes.

(2) That the words " wife of the seventh defendant " in the partition decree referred to Donsina, the deceased wife of Mathes, and not to Carlina, who was the wife of Mathes at the time of the- action.

H. J. C. Pereira, K.C.( with him Keuneman and S. J. C. Schokman), for defendants, appellants.

E. J. Samarawickreme (with him Soertsz and A. L. Jayesuriya) for plaintiff, respondent.

August 4, 1924. Bertram C.J.-

This case raises a series of difficult questions which arise out of a certain deed of fidei commissum, and for that reason has been referred to a Court of three Judges. The principal question is that of the application of the rule in the well-known case of Tillekeratne v. Abeyesekere (supra) to the facts of the case. But there are other-incidental questions that have first to be determined.

The land in question was once a part of a larger land, which in 1905 became the subject of a partition suit. The original owners-of the share represented by this land were Sabo and his wife, who-is variously referred to as Nonno and Punchina. On April 19, 1875, Sabo and Nonno executed the deed of fidei commissum which we have to interpret. I will discuss it more fully later, but at this. point it is sufficient to say that it settled the land upon their six children, but reserved a life interest in the parents. The interests of the children were subject to a fidei commissum in favour of their descendants. The document was not accepted by the children, and a question arose whether their acceptance could be inferred from the facts of the case. We came to the conclusion that that acceptance might be legitimately inferred, and this question need not further concern us.

In the year 1905 a partition suit, No. 3,681, was instituted for the whole land by another co-owner. By that time the family group had been reduced in numbers by death. Sabo, the original donor, was dead. Babappu, one of the six children, had died without issue. Donsina, one of the daughters, was also dead. It is from. Donsina that all the controversies in the case originate. She married a man named Mathes, and by him had one child, Guruwa. She died in 1888, and Guruwa died in 1889. But when the partition action was instituted in 1905, her husband Mathes ,was made a party

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to the action, being seventh defendant. As a matter of fact, Mathes had by this time been married again to Carlina, the plaintiff in this action, but this circumstance does not appear to have been Realized. The family group was thus represented by Nonno, her four children (now the first, second, third, and fourth defendants in this action), and Mathes, the husband of the deceased Donsina. Three of the children disputed the rights of Mathes. No one disclosed or set up the deed of fidei commissum of 1875, and the Court consequently knew nothing about this deed. In the final decree dated May 6, 1907, this family group were allotted lot D, but their shares were not divided, although they had, of course, Keen divided in the preliminary decree. In drawing up the decree two singular mistakes were made. Nonno, mother of all the children, had died pending the action. She was, nevertheless, included in the decree as one of the persons entitled to lot D. Further, Donsina, the wife of Mathes, had died nearly twenty years before the decree. Yet she was referred to as one of the persons entitled under the description of " wife of seventh defendant." The decree reads as follows: '' Lot D is assigned to the second to sixth defendants and wife of seventh defendant "-Nonno being the second defendant and Mathes, the seventh defendant.

Mathes died in 1915, leaving as his heirs his wife Carlina and his two minor children, the fifth and sixth defendants in this action.

The first question that we have to decide is whether any effect can be given to this extraordinary decree. It is defective on the face of it, inasmuch as it purports to assign interests to two persons already dead. The answer to this question is that the decree must be considered good until it is set aside, and that the rights assigned to the deceased persons must be considered as having devolved upon those who now in law are their representatives in interest.

Now the whole question in this action is whether the interest of Donsina, who died in 1888, has passed to her four brothers-first, second, third, and fourth defendants-or whether it devolved by inheritance upon her husband's widow Carlina and Carlina's two children. If it devolved by inheritance, the course of the devolution would be as follows: On Donsina's death in 1888 her share would pass half to her child Guruwa and half to her husband Mathes. On Guruwa's death his hall share would also pass to Mathes. On the death of Mathes in 1915, half his share would go to his second wife Carlina and the other half to the fifth and sixth defendants.

It would be well at this point to deal with a contention put forward by Mr. Samarawickreme as disposing of the whole question. We are bound, he contends, by the form of the partition decree of 1907. That decree specifically assigns lot D to the deceased Nonno, to the

first, second, third, and fourth defendants, and to the wife of Mathes. The wife of Mathes at the date of the decree was Carlina. And therefore, although she never appeared in the action (and there Is no sign that she was ever heard of), the decree must be taken as giving her one-seventh of lot D. We are precluded, he contends,

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from showing that the wife of Mathes referred to was his deceased wife Donsina. The language used in the decree being plain in itself and applying accurately to an existing fact, namely, the fact that Carlina was the wife of Mathes, evidence may not be given to show that it was not meant to apply to this fact. See section 94 of the Evidence Ordinance, No. 14 of 1895. Mr. Pereira, on the other hand, contends that the case comes within section 96 of the Evidence Ordinance, and that this is a case in which the facts are such that the word "wife" might have been meant to apply either to Donsina or to Carlina, and that evidence may be given of facts which show that Donsina is meant. I...