Wijeyesekere V. Vaithianathan

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 of gift was granted to V. F. personally and did not become an accessory of the property mortgaged.

Held, further, that the defendant was not entitled to exercise the right of way unless he was a successor in title of V. F. or unless the latter accepted the gift on behalf of the mortgagees.

THIS was an action brought by the plaintiff for a declaration of title to a strip of land called a road reservation and for an order restraining the defendant from using the said road. The facts are stated in the head-note. The learned District Judge gave judgment for the plaintiff.

H. V. Perera, K. C. (with him N. Nadarajah and E. B. Wikramanayake). for defendant, appellant. -The strip of land in dispute was reserved as a right of way for the benefit of the property purchased by the defendant. The deed of gift in favour of Virginia Fernando created a praedial servitude and this servitude attached to the property and passed with it as an accessory. At a mortgage sale the land passes as it then stands, with all improvements if it has been enriched in any way even by a third person. Buildings erected and plantations made even by a stranger, subsequent to the mortgage, accrue to the land and pass with it. Not only things expressly mentioned, but also all accessions and accretions become bound and pass with the property. Berwick's Voet XX. 1,2; XX. 1, 4. Therefore the right of way passed with the property sold. It is a real servitude and cannot have an existence independent of the dominant tenement. Real servitudes cannot exist apart from immovable property since they are accidents and conditions attaching to immovable property. 1 Nathan 445 (art. 686). The right of way was not personal to Virginia. It accrued to the land and not to the owner, and it runs with the land. The dominant tenement was the person which acquired the servitude, so that it was transferred to every person possessing that tenement. The property drags along with it, at every sale, everything that has become accessory to it even subsequent to the mortgage. When the property is transferred the servitude cannot be excluded. A praedial servitude is an accession. It becomes a quality or characteristic of the dominant tenement, such as healthfulness or fertility. Voet VIII. 1,2; Buckland & McNair's Roman Law and Common Law 102. It cannot be dealt with apart from the property itself.

The purchasers at the sale in execution were the successors in title of Virginia. The property was purchased by them with all easements, servitudes and appurtenances. What was sold was not the right, title and interest of the mortgagor, but the property itself with everything that accrued to it. The right of way accrued to the land and passed with it unless it was extinguished in some

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