De Saram V. Kadijar
1944 Present: Howard C.J., Soertsz, Hearne, Keuneman
and Wijeyewardene JJ.

DE SARAM
et al., Appellants, and KADIJAR et al.,
Respondents.
211-D. C. Colombo, 2,025.
Fidei commissum-Last will of Muslim-Devise of property to wife, children And father-Lawful heirs and heiresses-Prohibition against alienation- Failure to indicate the receipients of testator's ' bounty-Time of vesting involved in doubt-No valid fidei commissum-Trust.

Where a last will contained the following clauses: -

1. I do hereby will and desire that my wife .... and my children . . .' . and my father .... who are the lawful heirs and heiresses of my estate shall be entitled to and take their respective shares according to my religion and Shane sect-to which I belong, but they nor their heirs and heiresses shall not sell, mortgage, or alienate any of the lands, houses, estates or gardens belonging to me at present, or which I might acquire hereafter and they shall be held in trust for the grandchildren of my children and the grandchildren of my heirs and heiresses only that they may receive the rents, income, and produce of the said lands, houses, &c, without encumbering them m any way or the game may be liable to be seized, attached or taken for any of their debts or liabilities, and out of such income, produce, and rents after defraying expenses for their subsistence and maintenance of their families, the rest shall be placed or deposited in a safe place by each of the parties and out of such surplus lands should be purchased by them for the benefit And use of their children and grandchildren as hereinbefore stated but neither the executors herein named or any Court of Justice shall require to receive them or ask for accounts at any time or under any circumstances except at times of their minority or lunacy.
2. I further desire and request that after my death the said heirs and heiresses or major part of them shall appoint along with the executors herein named three competent and respectable persons of my class and get the movable and immovable properties of my estate divided and apportioned to each of the heirs and heiresses according to their respective shares, and get deeds executed by the executors at the expense of my estate in the name of each of them subject to the aforesaid conditions.
Held, by HOWARD C.J., SOERTSZ AHD HEARNE ' JJ. (KEUNEMAN AND WIJEYEWARDENE JJ. dissenting) that the will did not create " valid fidei commissum.
Per KEUNEMAN AND WIJEYEWARDENE JJ.-That the will devised the immovable property to the devisees burdened with a fidei commissum in favour of their children and grandchildren in successive generations, and that the testator intended to create not one fidei commissum but separate fidei commissa affecting each of the devisees with the appropriate conditions applicable to each.
CASE referred, to a Bench of five Judges under section 51 of the Courts Ordinance.
The original owner of the property was one Isubu Lebbe Idroos Lebbe Marikar who died in 1876 leaving a last will (P 1) dated December 12, 1872, which was proved in testmentary case No. 3,909 of the District Court of Colombo and probate was issued to the sole surviving executor named in the will. In accordance with the directions given in the will the executor allotted the property in dispute to Abdul Hamid, a son of the testator, and conveyed the same to him by deed (P 2) of February 10. 1878, subject to the terms and conditions in the will. Abdul Hamid mortgaged the property with Peter de Saram by bond (P 3) of May 15, 1931. The bond was put in suit and in execution of the hypothecary decree entered in the action the property was sold and purchased by the plaintiffs-appellants, as executors of the last will of the mortgagee.

The defendants-respondents, who are some of the children of Abdul Hamid, who is dead, disputed the title of the plaintiffs on the ground that the will created a valid fidei commissum and that Abdul Hamid could have mortgaged only his fiduciary interest. The learned District Judge held that the will created a valid fidei commissum and dismissed the plaintiff's action.
H. V. Perera, K.C. (with him E. B. Wikramanayake and H. Wanigatunge), for tie plaintiffs, appellants.-The will (P 1) does not create a fidei commissum. It was merely intended to tie up the properties in question for all time by means of a trust. The trust, however; fails because it offends against the rule against perpetuities. This will was considered in four earlier cases, namely, Sabapathy v. Mohamed Yoosoof et al.[1 (1935) 37 N.L.R. 70 ]; Saleem v. Mutturamen Chettiar [2 (1938) 15 C.L.W.115 ]; Sinnan Chettiar v. Mohideen et al.[3 (1939) 41 N.L.R. 225.]; and Ramanathan v. Saleem. et al. [4 (1940) 42 N.L.R. 80] and on each occasion it was interpreted in a different manner. The language of the document makes it clear that the intention of the testator was to create a trust. The word fidei commissum does not occur at all. On the contrary, the word " trust " is definitely used. The will was made shortly after Ordinance No. 7 of 1871, formally introducing the English law of trusts, was passed. The English law of trusts was part of the law of Ceylon even before that date-Subramaniam et al. v. Erampakurukal et al. [5 (1922) 23 N.L.R. 417.]. The intention of the testator was to create a trust for the benefit of his descendants.
It is impossible to discover who the beneficiaries under the will are and at what point of time any gift over is to take place. The gift over is bad whether the will is regarded as creating a trust or a fidei commissum. There are two conclusive reasons why it cannot be held that there is a fidei commissum:-(1) if the word " they " referred to the immediate devisees there is a clear indication that they are not to have the whole beneficial interest. This separation of legal ownership from the beneficial enjoyment of the bequeathed property is characteristic of a trust and is foreign to fidei commissa. A trust does not include a fidei commissum-section 3 of the Trusts Ordinance (Cap. 72); Estate . Kemp v. Me Donald's Trustee [6 S.A.L.R. (1915) A.D.491.]. (2) In a fidei commissum, the point of time at which the property is to go over to the fidei commissaries has to be indicated with certainty. It cannot be said, in the present case, that the
testator contemplated any particular event or point of time when the property should go over. The condition in the will is too vague and uncertain to be enforced. See Sifton v. Sifton [1 (1938) 3 A.E.R. 435.] ; Crab v. Lokku Appu et al.[2 (1918) 20 N.L.R.449 at 458]; Kirthiratne v. Salgado [3 (1932) 34 N.L.R. 69 at 77].

In Ramanathan v. Saleem et al. (supra) the earlier cases were closely examined, but it was held that the testator's intention in P 1 was to create a trust which, however, was invalid because it was obnoxious to the rule against perpetuities. The rule against perpetuities is explained in London & South Western Rly., Co. v. Gomm [4 L.R.20 Ch. D.562 ]. When we adopted the English law relating to trusts it must be held that we adopted also the rule against perpetuities. Ordinance No. 9 of 1917 (Cap. 72) which defined the law of trusts includes, in section 110, the rule against perpetuities, thus indicating that it was always a part, of our law. In the absence of any trust or fidei commissum the grantees under P 1 would, as admitted at the trial, get absolute title.
N. Nadarajah, K.C. (with him H. W. Thambiah and R. A. Kannangara), for sixth defendant who is second respondent in appeal.-When the meaning of u will is doubtful that construction ought to be given which is in accord with the testator's wishes rather than that which would nullify the same-Steyn on Wills (1935 ed.) pp. 38-35. Xo special words are necessary for the creation of a fidei commissum. The presence of the word " trust " is not, by itself, a bar to construing a document as a fidei commissum Annamal v. Saibo Lebbe [5 (1902) 6 N.L.R.163 ]; Steyn on Wills (1935), p. 205; Lee on Roman-Dutch Laic, p. 373. There are two elements necessary to create a fidei commissum: (1) a gift of property to one person with (2) a gift over to another person. Both these ingredients are present in P 1. The will creates not one. but several fidei commissa. It was executed before the Entail and Settlement Ordinance (Cap. 54) came into operation. The beneficiaries are the devisees, their children, and their grandchildren. It is clear beyond any doubt that the ultimate beneficiaries are the grandchildren of the devisees. Even if there is a gap during which there may be no fiduciaries the ultimate fidei commissaries will succeed to the property when they become qualified. For case in point see Estate Kemp and others v. Me Donald's Trustee [6 S.A.L.R. (1915) A.D. 491]. When no clear condition is attached as to the time of vesting, property passes on death of the fiduciaries. A definite point of time for the vesting of title iii the fidei commissaries is not an essential ingredient. See Abeyratna v. Fernando et al.[ 7 (1911) 14 N.L.R. 307.]; Naina Marikar v. Amarasuriya [ 8 (1918) 5 C.W.R.60.]; Steyn on Wills, p. 167. The dominant intention of the testator in P 1 was that the devisees should not alienate and that the properties should finally go to their grandchildren; all the other provisions in the will should be construed in such a manner as to give effect to that intention. Assuming, without conceding, that there is no English trust in P 1, a Court in Ceylon would construe the document in favour of a valid fidei commissum such as is recognized by the Roman-Dutch law-Weerasekere v. Peiris [9 (1932) 34 N.L.R.281.]; Alia Marikar Abuthahir v. Alia Marikar Mohammed Sally [10 (1942) 43 N.L.R.193 at 204-5].
Whatever may have been the position in regard to resulting and constructive trusts, the English law relating to express trusts was not applicable in Ceylon-Narayanen Chetty v. James Finlay & Co.[1 (1927) 29 W. L. R. 65 at 69-70 ]. Even if the English law of trusts was tacitly accepted, the rule against perpetuities did not form part of the law of Ceylon before 1917. Thai rule is based on the common law of England and not on equity-In re Ashforth [2 L. R. (1905) 1 Ch. 535 at 542 ]; Evered v. Leigh [3 L. R. (1905) 1 Ch. D. 191 at 196 ]. In the circumstances P 1, if it does not create a fidei commissum, can be construed as an instrument of trust.

Cyril E. S. Perera (with him Dodwell Gunawardana and P. Malalgoda), for fifth defendant who is first respondent in appeal.-Mere pious directions would not impose a trust-In re Oldfield [4 L. R. (1904) 1 Ch. 549.]; Re Downing [5 (1889) 60 L. T. (N. S.) 140 at 142.]. Not merely legal title but full dominium was given to the devisees-lie Downing [6 Ibid.]'; Gunawardene v. Visvanathan [7 (1922) 24 N. L. R. 225. ]. P 1 therefore does not create a trust.
A pure gift with a gift over are the only essentials for a fidei commissum, and the employment of the word " trust " does not change the fidei commissary character of the Will-Walter Pereira's Laws of Ceylon (1913 ed.), p. 430; Jobsz v. Jobsz et al. [8 (1907) 3 A. C. R. 139.]. As long as the intention to create a fidei commissum is clear the confused or ambiguous nature of the language of the document does not defeat it-Pinwardene v. Fernando [9 (1919) 21 N. L. R. 65 at 67.]; Craib v. Lokku Appu et al.[10 (1918) 20 N. L.R.449at 455.] Coudert v. Don Elias [11 (1914) 17 N. L. R. 129.]; The Government Agent, Central Province v. Silva et al.[12 (1922) 24 N. L. R. 62.]; Seneviratne v. Candappapulle et al [13 (1912) 16 N. L. R. 150.]; Vansanden et al. v. Mack et al.[14 (1895) 1 N. L. R. 311.]; Higgins et al. v. Dawson et al. [ 15 L. R. (1902) A. Clot 10.]. When the time for vesting of title is not expressly specified, the event on which the fidei commissaries are to take over is the death of the fiduciaries-Fernando v. Fernando [16 (1921) 3 C. L. Rec. 80.]; Jayatileke v. Abraham [ 17 (1914) 4 C. W. R. 31.]; Appuhamy v. Jayasooriya [18 (1922) 24 N. L. R. 449.]; Ismail v. Marikar [19 (1932) 34N.L.R. 198. ]; Pinwardene v. Fernando (supra); Cassim v. Tambi [20 (1896) 1 Mat. 0.119.] Ibanu Agen v. Abeyasekere [21 (1903) 9 N. L. R. 344.]; Jobsz v. Jobsz et ah (supra}; Wijewardene v. Abdul Hamid et al. [22 (1909) 12 N. L. R. 241.]
If. V. Perera, K.C., in reply.-Trusts have been long recognized in Ceylon. See section 62 of Courts Ordinance (Cap. 6). They are very different in character from fidei commissa-Morice on English and Roman. Dutch Law (2nd ed.), p. 309. The use of the expressions "trust ", " accumulation of income ", &c, in P 1 indicates the intention to create a trust. The rule against perpetuities is a substantial part of the law of trusts. It was an invention of the Chancellors and not based on the common law-Vol. 25 Halsbury's Laws of England (2nd ed.) Art. 173, note (n).
If a fidei commissum was intended to be created in P 1 we are left in doubt as to when the grandchildren get the "property and as to the intervening fiduciaries and fidei commissaries. The whole document is
"ague and full of uncertainty from beginning to end. Words which were not used by the testator cannot be read into it-Galliers et al. v. Kycroft [1 (1899) 3 Bal. Rep. 74 at 83 ]. When the words are capable of more than one construction the Court would lean towards the one most in favour of freedom of alienation-Amaratunga v. Alwis [2 (1939) 40 N.L.R.363 at 365-6.].
Cur. adv. vult.
May 26, 1944.