Present : Mr. Justice Middleton and Mr. Justice
Wood Renton.

WIJEMANNE v. SCHOKMAN et al.

34 and 35, D. C., Kalutara, 3,687.

Grown grant with a prohibition against alienation without written consent of Government - Restriction does not apply to Fiscal's sale - Purchaser at Fiscal's sale takes land subject to the condition as to inalienability-Estoppel.

X obtained a Crown grant for the land in dispute in 1835, subject-to the following conditions:-

(1) That if at any time hereafter it shall happen and be made-apparent, according to the opinion of a majority of nine competent persons to be assembled by the Government Agent for the purpose- of inspecting the same, that the said land has been for one year neglected and uncultivated, then, and in such case, this grant shall be utterly void and of none effect.

(2) That X, or his heirs, executors, &c, shall not alienate ox assign the said land without the consent of the Government in writing for that purpose, until the whole shall have been brought into a competent state of cultivation.

Under a writ issued against X the land was purchased by in-1881; Y sold it to Z in 1890.

In 1898 an assembly of nine persons summoned by the Government Agent declared the land had been neglected and left uncultivated for one year, and the Crown considered the grant forfeited,. and offered the land for sale. Y acknowledged the title of the Crown to the land.

In 1900, A, a grandson of X, paid the Crown the value of the land and entered into possession of it, and obtained a certificate of quiet possession in 1903.

In an action for declaration of title by against A, it was held -

(a) That the alienation prohibited by the condition in clause 2 was restricted to voluntary alienations, and not to necessary alienation adversely to X at a Fiscal's Bale.

(b) That although the purchase by Y at the Fiscal's sale was not invalid, yet Y bought the land subject to the condition of inalienability imposed by clause (2), and that the private sale by. Y to Z conferred no title on Z.

(c) That the recognition of the title of the Crown by Y relieved the Crown from the necessity which would otherwise be imposed upon it of enforcing the verdict of the jury by a regular judicial decree.

THE facts of this case are set out in the judgment of Wood - Renton J. as follows: -

The material facts in these cases admit of being stated quite briefly. The plaintiff-appellant in No. 34, who is the respondent in No. 35, sues for a declaration of title to an undivided two-thirds share of a land called Batepottehena, which is described in his plaint. He derives his claim through a conveyance, No. 424 of December 6, 1906, to him of the share in question by one Don Cornelis Appuhamy. The land in which the share here in question is included originally belonged to one Hendrick Perera on a Crown grant, dated October 12, 1835. On two writs issued against his son Philippu Perera, in one case as heir in possession of his father's estate, and in the other for a debt of his own, it was sold to one Don Simon Appuhamy on Fiscal's conveyances of June 27, 1881, and September 20, 1897. On November 13, 1890, Don Simon Appuhamy sold the two-thirds share here in disqute to his brother Don Cornelis Appuhamy, and, as I have already mentioned, on December 6, 1906, he conveyed the property to the plaintiff-appellant. Don Simon Appuhamy is the second defendant-respondent to the appeal in No. 34; the third to eighth defendants-respondents to that appeal are the representatives of his six children. For the purposes of the appeal in No. 34 they associate themselves with the plaintiff-appellant, and make common cause with him against the first and the ninth defendants, who are the respondents in both appeals. It may be convenient to point out at this stage the manner in which the first and the ninth defendants-respondents meet the joint cases presented against them by the plaint