1916 Present: Wood Renton C.J. and De Sampayo J.

VYRAVAN CHETTY v. FERNANDO.

466-D. C. Kandy, 22,981.

Legacy to a mistress, subject to the condition that she should not marry again-Is condition void?

A condition in restraint of marriage is against public policy, and; is therefore void. But a condition against a second marriage imposed upon a surviving spouse should be observed, in order to prevent a forfeiture; the condition affects only a widow or widower, and not a mistress.

A deserted his lawful wife and kept M as his mistress. By his last will A devised certain lands to M, subject to the condition that should M " take a husband after my death, or behave in any way disgraceful in the family, she shall thereupon forfeit all right to any share of my estate. . . . . . ."

After A's death M began to live with J, and subsequently married J.

Held, that M did not forfeit her rights to the property bequeathed to her.

THE plaintiff-appellant sued to be declared entitled to certain lands, on the footing that he had bought them at a Fiscal's sale against eighth added defendant, Ukku Menika.

The defendant and the added defendants, who are Ukku Menika's children, claimed the said lands on the footing that the said lands-were bequeathed to Ukku Menika for her use and benefit, till she married, and that Ukku Menika having married she had forfeited her interests thereto.

The property in question was bequeathed to M by her paramour, subject to the following condition:-"It is my further will and desire that should the said Ukku Menika take a husband after my death, or behave in any way disgraceful in the family, she shall thereupon forfeit all right to any share of my estate, and the property hereby bequeathed to her shall sink into my residuary estate,"

The learned District Judge (F. R. Dias, Esq.), in the course of his judgment, said:

Although this clause appears to contain a condition which was to defeat Ukku Menika's vested interest in a certain event. I think the defendant's counsel is correct in contending that it was a clause of conditional limitation only, that is to say, the lands were to be vested in Ukku Menika until she takes a husband or misconducts herself, and then they were to go over to the children.

The testator did not impose an absolute injunction to celibacy on this woman, but left her free to do as she pleased. He only expressed

will that the lands should go over to his children when the woman  did a certain thing. There was nothing reprehensible in that, and a Court, I think, is bound to give full effect to his unambiguous language, and protect the interest of the ultimate beneficiaries. That such limitations are valid is covered by authority. See the cases of v. Rennoldson 1[2 Hare 420.] and Jones v. Jones.2[ 1 Q. B. D. 279.]

The District Judge decided that the plaintiff, who had bought the interests of Ukku Menika after she had forfeited her rights under the will by her misconduct with, and subsequent marriage to, her testator's (paramour's) brother, got no interest in the disputed lands.

The plaintiff appealed.

Bawa, K. C. (with him Arulanandam), for plaintiff.-The will amounts to a general prohibition against marriage, and is therefore illegal and void. Voet, 28, 7, 12 and 13; 2 Burge 154 and 155; Gen. For., Part 1., Book 3, Ch. 5, Note 29; 2 Nathan 552. Ukku Menika is in no sense the widow of the testator. The testator was admittedly living in concubinage with her. It is against public policy to permit a man to tie down a concubine and thereby prevent her from ever becoming an honest woman. The testator lived in the Kandyan Provinces for a long time, and " misconduct " ought to be interpreted in the sense it is understood among the Kandyans. Living with a husband's brother is not misconduct among them.

.4. St. V. Jayewardene, for the defendants, relied upon 2 Johnson and Hemmings 356; L. R. Q. B. D. 279; L. R. 1 Ch. D. 399;