1938 Present: Maartensz and Moseley JJ

WIJEYESEKERE v. VAITHIANATHAN.

367-D. C. Colombo, 316.

Servitude-Mortgage of property-Subsequent gift of property with a right of way-Sale of mortgaged property in execution of mortgage decree-Claim by purchaser of right of way-Nature of servitude gifted.

By mortgage bond No. 397 dated July 1, 1930, P. mortgaged with J. and another a denned block of land and the buildings standing thereon. By deed of gift dated March 28, 1931, P. gifted the same premises to V. F. together with a right of way over and along the reservation for a road twenty feet wide, forming the eastern boundary of the premises and belonging to P.

J. and his co-mortgagee put the bond in suit against P. and V. F. and purchased the mortgaged property in execution of the decree in their favour. They transferred the premises to defendant, who claimed a right of way over the road reservation.

The plaintiff, who purchased the road reservation from P., brought this action for a declaration of title to the strip of land and for an order restraining the defendant from using it.

Held, that the right of way created by the deed