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JAYAWARDENE et al. v. JAYAWARDENE
NLR39V135
1936 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 not
void-Donation binding on donor and his heir-Executor has no right to vindicate
the property.
Where the Crown leased property subject to the condition that the lessee shall
not sublet, sell, donate, mortgage, or otherwise dispose of or deal with his
interest without the written consent of the Crown, and that every such sublease,
sale, donation, &c., without such consent shall be absolutely void,-
Held, that a donation by the lessee without the written consent of the Crown was voidable at the instance of the Crown and not absolutely void.
Held further, that the executor and residuary legatee under the last will of the
lessee is bound by the donation and cannot vindicate the property from the donees.
THIS was an action brought by the executor of the last will of the late Mudaliyar
J. V. G. Jayawardene to vindicate title to a property leased in 1910 to the
Mudaliyar by the Crown in perpetuity subject to the 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 be absolutely void. On May 16, 1927,
the Mudaliyar applied for permission to donate the property to his four sons but
before he obtained permission which the Crown was willing to grant on certain
conditions, executed four deeds of gift to his sons. On October 18, 1928, the
Mudaliyar executed a last will by which he bequeathed all his property movable
and immovable to the plaintiff. The plaintiff brought the present action to
vindicate title to the property on the ground that the deeds of gift executed
without the written consent of the lessor were void. The learned District 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), for the 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 can be availed of by one of the parties for whose
benefit the prohibition is included. In the case of a fideicommissary donation,
only the person intended to benefit by the condition can bring an action. (See
Sande's Restraints on Alienation, pp. 253, 265, 269). Such prohibitions on
alienation do not create a law which binds the whole world; they only put a
fetter on the parties to the contract. A contract cannot go beyond the
contracting parties. Plaintiff is in the shoes of Mudaliyar Jayawardene.
Mudaliyar Jayawardene could not repudiate his gift, therefore plaintiff cannot.
Plaintiff himself accepted under the gift which he now attacks. If Mudaliyar
Jayawardene committed a breach of 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 rights to pass under the will. On a construction of the will, even
leaving by will is void. It is only the Crown that can seek to set aside the
deeds of gift. If Crown does not seek to set aside the gifts, then the property
reverts to the Crown. The plaintiff, in the place of Mudaliyar Jayewardene 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 away the effect of the
plain English words " absolutely void". contained in the lease bond. The deeds
of gift are nullities. One cannot escape from that position. It is not important
who applies to Courts to declare them nullities.
Donations by a minor would be analogous. Such donations are null
an
