JAYAWARDENE et al. v. JAYAWARDENE

043-NLR-NLR-V-39-JAYAWARDENE–et-al.-v.-JAYAWARDENE.pdf


Jay aw ardene v. Jayawardene.
135
Present: Moseley J. and Fernando A.J.
JAYAWARDENE et al. v. JAYAWARDENE.
238—D. C. Kalutara, 19,043.
Lease—Covenant prohibiting the lessee from alienating, subletting, donating, &c.—Donation by lessee without consent of lessor—Donation voidable and notvoid—Donation binding on donor and his heir—Executor has no right tovindicate the property.
Where the Crown leased property subject to the condition that thelessee shall not sublet, sell, donate, mortgage, or otherwise dispose of ordeal with his interest without the written consent of the' Crown, and thatevery such sublease, sale, donation, &c., without such consent shall beabsolutely void,—
Held, that a donation by the lessee without the written consent of theCrown was voidable at the instance of the Crown and not absolutely void.
Held further, that the executor and residuary legatee under the lastwill of the lessee is bound by the donation and cannot vindicate theproperty from the donees.
39/14
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Jayawardene v. Jayavoardene.
T
HIS was an action brought by the executor o£ the last will of thelate Mudaliyar J-. V. G. Jayawardene to vindicate title to a property
leased in 1910 to the Mudaliyar by the Crown in perpetuity subject tothe condition that the lessee should not sublet, sell, donate, mortgage, &c.,without the written consent of the Crown ; the lease further provided that
every such sub-lease, sale, donation, &c., without such consent shall'beabsolutely void. On May 16, 1927, the Mudaliyar applied for permissionto donate the property to his four sons but before he obtained permissionwhich the Crown was willing to grant on certain conditions, executedfour deeds of gift to his sons. On October 18, 1928, the Mudaliyarexecuted a last will by which he bequeathed all his property movable andimmovable to the plaintiff. The plaintiff brought the present action tovindicate title to the property on the ground that the deeds of gift executedwithout the written consent of the lessor were void. The learnedDistrict Judge held that the deeds of gift were absolutely null and void.
H. V. Perera (with him Colvin R. de Silva and G. E. Chitty), forthe defendants, appellants.—The plaintiff is the privy of his father,the donor, therefore he cannot seek to set aside his own gift.Prohibition against alienation is a limitation on one’s right, and canbe availed of by one of the parties for whose benefit the prohibition isincluded. In the case of a fideicommissary donation, only the personintended to benefit by the condition can bring an action. (See Sande’sRestraints on Alienation, pp. 253, 265, 269). Such prohibitions onalienation do not create a law which binds the whole world ; they onlyput a fetter on the parties to the contract. A contract cannot gobeyond the contracting parties. Plaintiff is in the shoes of MudaliyarJayawardene. Mudaliyar Jayawardene could not repudiate his gift,therefore plaintiff cannot. Plaintiff himself accepted under the giftwhich he now attacks. If Mudaliyar Jayawardene committed a breachof a convenant under the lease, then the property reverts to the Crown,see clause 6, sub-section (2) of lease bond. Therefore there were no rightsto pass under the will. On a construction of the will, even leaving bywill is void. It is only the Crown that can seek to set aside the deedsof gift. If Crown does not seek to set aside the gifts, then the pro-perty reverts to the Crown. The plaintiff, in the place of MudaliyarJayewardene must warrant and defend title.
N. E. Weerasooria (with him J. R. Jayewardene), for plaintiff, respond-ent.—The facts must be looked into. No legal argument can take awaythe effect of the plain English words “ absolutely void ”. contained inthe lease bond. The deeds of gift are nullities. One cannot escapefrom that position. It is not important who applies to Courts to declarethem nullities.
Donations by a minor would be analogous. Such donations are nulland void. (Gunesekere Hamine v. Don Baron1.) See also Silva v.Mohammadu1.) Burge refers to a void act as being void absolutely andrelatively.
Krause’s Voet (39.5.6. p. 16 and 39.5.10. p. 24) mentions the personswho can donate. Mudaliyar Jayawardene could not donate. The Crowndid. not consent to the donations. The Crown further does not wish to* 5 X. L. It. 273.' 19 -V. £. R. 426.
FERNANDO A.J.—Jayawardene t>. Jayawardene.
137
act on the forfeifture, but the letters to Mudaliyar Jayawardene show thatthe Crown considered the gifts void. Whether the prohibition againstalienation is by statute, or common law, or deed, a violation of suchprohibition under the alienation is void.
H. V. Purera, in reply.—The capacity of minors to deal with theirproperty is dependent on the law of the land. A restriction contained,in a satute binds the world. A restriction by deed binds only the parties.The words “null and void” are covenants by covenantor. Only be canrely on them. The party in default cannot rely on these words. This isnot a question of interpretation, but a clause in a contract. The contractcannot go beyond the contracting parties. (Norton on Deeds p. 28.)
*'Cur. adv. vult.
December 4, 1936. Fernando A.J.—
The plaintiff and' first to third defendants are brothers—all four beingsons of the late Mudaliyar J. V. G. Jayawardene. In 1919, lease P 1 wasentered into between the Crown and Mudaliyar Jayawardene, and by thatlease the Crown leased the land referred to therein to the Mudaliyar inperpetuity, subject to various conditions among which was convenantNo. 10 in P 1 to the effect that the lessee shall not sublet, sell, donate,mortgage, or otherwise dispose of or deal with his interest in the lease with-out the written consent of the lessor and that every such sublease, sale,donation, &c., without such consent shall be absolutely void.
On May 16, 1927, the Mudaliyar by letter P 3 applied for permission togift his rights under the lease to his four sons, and certain correspondencefollowed between him and the Assistant Government Agent of Kalutara.On May 30, 1927, the Mudaliyar executed four deeds of gift in'terms similarto P 4 in favour of his four sons giving each a one-fourth share of hisinterest in the leased premises, and on August 15, 1927, by letter P 6, theMudaliyar sent to the Assistant Government Agent a copy of one of thedeeds executed by him. On March 8, 1928, the Assistant GovernmentAgent wrote to the Mudaliyar letter P 12 stating inter alia that the deedsof, gift already executed are invalid by reason of the fact that consent ofGovernment had not been given. Government, however, was willing toconsent to the donation on certain conditions, but the Mudaliyar did notcomply with the requirements set out in the correspondence between himand the Assistant Government Agent. On October 28, 1928, the Mudali-yar executed a last will P 2 by which he devised and bequeathed all hisproperty of whatever kind, movable and immovable nothing excepted tothe plaintiff, but no express mention is made in that document of thelease in question, and the Mudaliyar died on January 19, 1930, leavingthis last will. The plaintiff now brings this action to have it declared thathe as executor of the will and as devisee under it, is entitled to the posses-sion of the land which is the subject of the lease, on the footing that thedeeds of gift in favour of himself and the three defendants were executedwithout the written consent of the lessor, and are therefore void in viewof the condition which has been referred to above. He also asked thatthe defendants be ejected, and claimed certain damages.
The learned District Judge held that the deeds of gift were absolutelynuU and vo’d in view of the clause referred to, that the plaintiff was•entitled to the premises as claimed by him, and he entered judgment in
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FERNANDO AJ.—Jayawardene v. Jayawardene.
his favour accordingly, with damages and costs. The main contentionput forward by Counsel on behalf of the appellants was that the deeds ofgift did not become absolutely void by the operation of covenant No. 10,and that it was necessary for the Crown to ask for a cancellation of thosedeeds before the deeds would cease to be operative. In> other words,Counsel argued that covenant No. 10 in effect merely provided that anydonation without the consent of the lessor would be voidable at thelessor’s instance. He also argued that the plaintiff as executor representsthe deceased Mudaliyar and would be considered his heir under theRoman-Dutch law, and that as such heir he is bound to abide by thedonation and cannot himself impeach it. Counsel for the respondenton the other hand argued that by the operation of covenant No. 10, thedonation would be a nullity.
Wille in Landlord and Tenant (1st ed.), p. 156, states that wherethere has been an express agreement between the landlord and thetenant, that the tenant may not sublet or assign without the consent ofthe landlord in writing, a sublease or assignment made by the tenantwithout having first obtained the written consent of the landlord is of noeffect as against the landlord who will be entitled to cancellation of thealleged sublease or assignment. Such an agreement may however bewaived by the landlord to the extent that his verbal consent will be suffi-cient to render a sublease Or assignment-effectual, and in page 155 hestates that, “ if the tenant purports to sublet or assign, such sublease orassignment is of no force or effect whatever against the landlord, and thelandlord is entitled to cancel the sublease or assignment whether thelease contained a special agreement to that effect or not.” This being thelaw in South Africa it would appear that it is left to the lessor to take ap-propriate action on a breach of the covenant, and that it is open to him to-consider the donation without his consent as of nio effect, but the questionthat arises here is whether the donor himself or his executor can claimthat the donation made by the lessee is inoperative. Sande in his treatiseon Restraints on Alienation at page 269 states that the heir of a person whohas alienated property which he is by will prohibited from alienating isbound to abide by such alienation, and cannot impeach it according to therule, “ the heir must take upon himself all acts of the person whom hesucceeds for he receives his wealth from him,” and the heir is regarded asone and the same person with the deceased, and Counsel argued that agift would come under the same principles. Of course Sande is heredealing with restraints upon alienation of immovable property createdby a will, but there does not seem to be any reason why the same principlesshould not apply in the case of a donation contrary to the provisions of alease for the reason that the proposition of law stated by him is based onthe rule, and the rule itself that the hejr must take upon himself all actsof the person whom he succeeds is expressed in the widest possiblemeaning. Counsel also referred to a passage from Sampson’s Translationof Voet (tit. 6, ch. 1, ss. 17 and IS) to the effect that the seller cannothimself vindicate property belonging to another, but which had been soldby him, on the ground that he is not the owner, even if the seller hadsubsequently become the owner, or is heir of the true owner, and hereagain the rule is that no one ought to gainsay his own act. It must also
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FERNANDO A.J.—Jayawardene v. Jayawardene.
be noted that by clause 2 of the general provisions of the lease, it isprovided that if any breach is committed by the lessee of any of the coven-ants on the lessee’s part (and covenant 10 comes within the lessee’scovenants) then this demise and the privileges thereby reserved shallforthwith cease and determine, and the lessor may thereupon enter intothe said premises, and the said premises shall forthwith revert to theCrown, and this clause was relied on by Counsel for the appellants as show-ing that it was for the Crown to claim that the donations were contrary tothe covenant, and that therefore, the land had reverted to the Crown. Theevidence in this case indicates that the Crown does not propose to claim areversion as a result of the donations by the Mudaliyar, and Counsel thenargues that in the absence of any claim by the Crown, the donations mustbe regarded as good and operative between the 'parties. It may also bementioned here that the Crown has accepted the rent due on the lease insome instances from the plaintiff, and in some instances from the defend-ants, being apparently contented to leave the question to be decided asbetween the parties themselves.
In the case of Perera v. Perera1 this Court dealing with a clause offorfeiture in a lease for non-payment of rent on the due date, stated thatsuch a clause was only intended as security for the due payment of therent, and that both under the English law and the Roman-Dutch law,a lessee was entitled to relief against such forfeiture, and reference wasmade to the earlier case of Perera v. Thaliff *. It-v&s there held, that theCourt would grant a lessee relief against a provision in the lease giving thelessor a right to claim cancellation in the event of a breach of a stipulationby the lessee, in a case where the breach thereof did not involve a notablygrave and damnifying misuse of the property leased, and went on to statechat the nature of the misuse, and the question whether it should bepun isby a cancellation or by condemnation in damages is entirely a
matter that must be left to the discretion of the Court. It is not necessaryto refer to all the cases, but I might refer to the case of Banda v. Fernando *where it Was held that the failure of a party to carry out an express stipula-tion in a lease which provided that such failure shall entitle the lessor tocancellation would ordinarily be looked upon by the Court as the breachof an essential stipulation which would entitle the lessor to an ordercancelling the lease, unless there are equitable grounds for allowing reliefagainst such cancellation. There in fact, this Court in appeal gave reliefto the defendant whose lease had become liable to be set aside subject,however, to certain terms which were laid down by the Court. Consider-ing the principles laid down in these cases, and the authorities cited,I come to the conclusion that the effect of a clause in terms of covenantNo. 10 is not of itself to affect the operation of a deed of gift like the onewe are considering, but merely to provide that in appropriate circum-stances, such a deed may be set aside by a Court of law, and that approp-riate steps to secure such an order from Court must be taken by one of theparties to the lease. The lessor may bring an action to secure a cancella-tion of the lease if he so desires, but till the lease is cancelled, the deed ofgift must remain operative as between the parties. I would also bold
» 8 N. L. R. us
•* 10 N. L. R. 230.
* 6C.W. R. 161.
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ABRAHAMS C.J.—Talaisingham v. Muttiah.
that under our law, a person in the position of the plaintiff who is theexecutor under the will of the Mudaliyar, and the devisee of his residuaryestate, is bound to abide by a donation made by the deceased and cannotvindicate the property from the donee.
With regard to the effect of the covenant in question, I might also referto the judgment of De Sampayo J. in Silva v. Mohamadu.* He refers atlength to the South African case of Braytenback v. Frankil * and observesthat even in the case of void contracts (as distinguished from those thatare merely voidable) the universal practice in Holland was to apply forrestitutio, and as Lord de Villiers observed in the course of the argumentwhat was the universal practice in*Holland must be taken to be law withus.. Thus it appears that the Roman-Dutch law is quite in accordancewith the general principles that a person cannot be judge in his own cause,and that where he wishes to get rid of the effect of his own act, he mustseek the assistance of the Court.
In view of the conclusion at which I have arrived, it is not necessary.to discuss the other questions that were argued before us. The appealof the’ first to third defendants is allowed, the decree of the District Courtis set aside, and plaintiff’s'action is dismissed with costs, here and in theCourt below.
Moseley J.—I agree.
Appeal allowed.