Naina Lebbe V. Maraikar Et Al.,

Present : De Sampayo J. and Schneider A.J. 1921

NAINA LEBBE v. MARAIKAR et al.

242-D. C. Jaffna, 14,170.

Gift subject to condition that the several donees shall not alienate their shares except among themselves-Alienation by one donee to another-Re-conveyance of the share to the first donee-Deed of partition by several donees-Mortgage of a divided lot by a donee to a stranger-Safe under mortgage decree-Is mortgage in favour of stranger valid ?-Effect of partition deed and conveyance by one donee to the other.

By a deed of gift some pieces of land were gifted to three brothers, A, B, and C. The deed provided " that if they like to alienate or encumber their share by any deed, such as mortgage, or transfer, they shall do so between themselves, and not with others." In 1910 A mortgaged his share in three lands. In 1912 (July 6) A sold his interest in these lands to his brother B, who on July 20, 1912, re-conveyed the same to A. The share of C was sold in execution against him, and by a series of deeds C's wife obtained title from the purchaser at the Fiscal's sale. In 1913 A, B, C, and C's wife entered into a deed of partition, by which divided portions were allotted to the parties, and the portion in question was allotted to A. On the same day the mortgage bond of 1910 was discharged, and a fresh bond was executed for the divided lot by A. Under the mortgage decree this lot was sold, and was purchased by the plaintiff.

Held, that the mortgage of 1913 was not void, and that the plaintiff had good title.

DE SAMPAYO J.-"The prohibition against alienation is not followed by any words indicative of an intention that in the event of one donee contravening the condition, the others should get his share, nor has the provision in the deed any analogy to the well-known form of fidei commissum which is created by prohibiting alienation out of the family. All that can reasonably be said is that the deed provided that if a donee wished to mortgage or dispose of his share, the other donees should have the preferent right to advance or pay money and accept the mortgage or transfer. But the defendants did not and do not claim such preference."

SCHNEIDER A. J.-" The right conferred by the deed upon each of the donees in regard to the shares of the others was that he might demand the option first of lending money upon a mortgage of the shares of the others or of purchasing them. It is a purely personal right. It placed no burden on the land itself."

SCHNEIDER A.J.-"The intention and effect of the deed of partition was to confer on each of the donees absolute title to the portion allotted to him."

SCHNEIDER A.J.-" I am unable to agree with the contention that the prohibition against alienation to a stranger is void under the Entail and Settlement Ordinance or under the Common law because the persons to be benefited by the prohibition are not named, described, or designated. The direction that any mort gage or sale shall be among the donees sufficiently indicates them by name as the persons for whose benefit the prohibition was made."

When A sold his share to his brother B in 1912, the latter acquired this share free from any burden whatever, and when he (B) re-sold it to A, the latter also acquired absolute title.

THE facts appear from the judgment.

Bawa, K.C. (with him E. W. Jayawardene and Canakeratne), for plaintiff, appellant.

Samarawickreme (with him Croos-Dabrera), for defendants, respondents.

Cur. adv. vult.

April 6, 1921. DE SAMPAYO J.-

The plaintiff has brought this action to establish title to a portion of land called Punkady in extent 9 lachams and 2 3/4 kulies varagu culture. The case turns upon the construction to be placed on a deed of gift bearing No. 2,424 and dated May 14, 1904. The facts of the case are somewhat complicated, but it is necessary to state them for the purpose of deciding the question of title. Meera Saibo and his wife Sult

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