Jayawardene V. Jayawardene Et Al.,

[IN THE PRIVY COUNCIL]

1989 Present: Lord Alness, Lord Romer, and Lord Porter

JAYAWARDENE v. JAYAWARDENE et al.

Crown lease-Prohibition against sale, donation, or mortgage without written consent of lessor-Donation by lessee without consent-Avoidance of donation-Subsequent devise by last will-Validity of devise-Estoppel.

J was the lessee of a certain allotment of land from the Crown under an indenture of lease. The lease was entered into between the Governor of Ceylon as lessor on the one part and by J as lessee (which was stated to include his heirs, executors, administrators and permitted assigns), on the other part.

The lease contained the following among other covenants:-The lessee and his aforewritten shall not sublet, sell, donate, mortgage or otherwise dispose of or deal with his interest in the lease or any portions thereof without the written consent of the lessor, and every such sublease, sale, donation, or mortgage, without such consent shall be absolutely void.

J gifted the property to his four sons, the three respondents and the appellant, without the consent of the Crown and then endeavored, without success, to persuade the Crown to approve of the gift. The Crown claimed that the gift without such consent was invalid.

Thereafter J by last will devised the property to the appellant, whom he appointed his executor.

Held, that the donation was void and did not operate as a valid assignment of J's interest in the lease and that J retained his full interest in the lease which he was capable of disposing of by will.

Held, further, as the lease was granted to the lessee, his executors, administrators and permitted assigns, the executor takes not for himself, but for the devisee under the will; and that the passing of the property through the executor to the devisee was no breach of the covenant not to assign.
 
Held, also, that no valid estoppel had been created in favour of the donees by the deed of gift.

APPEAL from a judgment of the Supreme Court. [39 N.L.R. 135.]

H. I. P. Hallit, K. C. (with him Stephen Chapman), for plaintiff, appellant.

L. M. D. de Silva, K. C. (with him Kenelm Preedy), for Attorney-General of Ceylon.

February 24, 1939. Delivered by LORD PORTER-

The appellant in this action, who was also the plaintiff, is one of the sons of the late J. V. G. A. W. Jayawardene, Gate Mudaliyar. The first three respondents are also his sons.

The deceased man was apparently a considerable landowner in the Island of Ceylon, and amongst his other properties was tenant under the Crown by an indenture No. 29, executed on October 29, 1919, and on February 23, 1920, by the respective parties, of a certain allotment of Crown land called Kajugahaudumulleduwa, Kajugahaudumullelanda and Galagodakele in Maggonbadda, Kalutara totamune and Eladuwa village, Iddagoda pattu, Pasdun korale west, Kalutara District, Western Province.

The lease was entered into by the Governor of Ceylon on behalf of the Crown as lessor on the one part and by the deceased man as lessee (an expression which was stated to include his heirs, executors, administrators and permitted assigns) of the other part.

The estate was to be held in perpetuity subject to the covenants and general provisions contained in the lease.
 
The covenants contained provisions for clearing and planting, paying rent, and the non-erection of buildings on the land. The tenth covenant must be set out in full. I read : -

"The lessee and his aforewritten shall not sublet, sell, donate, mortgage, or otherwise dispose of or deal with his interest in this lease, or any portion thereof, without the written consent of the lessor, and every such sublease, sale, donation, or mortgage, without such consent, shall be absolutely void.?

The second general provision was also important, and is as follows : -

?That if any rent hereby reserved shall remain unpaid and in arrear for the space

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