Gabrial V. Adikaran
1941 Present: Keuneman and Nihill JJ.
GABRIAL v. ADIKARAN.
64-D. C. Avissawella, 2,637.
Pactum antichresis-Stipulation attached to pact-No right to redeem before certain data-Stipulation void-Roman-Dutch law.
A stipulation attached to a pactum antichresis, that the mortgagor should not redeem the property or repay the debt before a certain time, is void.
THIS was an action brought to redeem a usufructuary mortgage bond dated February 24, 1936. The defendant pleaded that the mortgagor was not entitled to redeem the bond so long as " the control" lasts, i.e., till December 31, 1938-a defence based on a clause in the bond to that effect. The learned District Judge held that the stipulation was void for want of mutuality and as being vague.
Gilbert Perera, for defendant, appellant.-Plaintiff seeks to cancel the usufructuary mortgage bond P1 on the ground that payment was tendered and was not accepted by the defendant. Two issues were raised at the trial but the learned judge had decided on other issues that had never been raised and the defendant had been prejudiced thereby. Further, the learned Judge has held that the stipulation, viz., that the obligors undertook " not to redeem the mortgage as long as the control lasts ", was not enforceable for " want of mutuality " and " vagueness ". The doctrine of " want of mutuality " is not known to the law of mortgage but to specific performance which is not applicable to Ceylon. The bond was entered into in 1936 when the Rubber Control Ordinance of 1934 was in force and that Ordinance was operative for the period ending December 31, 1938. Hence the period stipulated is not vague.
N. Nadarajah, for plaintiff, respondent.-The issues are wide enough to take in the questions adjudicated by the Judge. The period is vague because it is not known how long the Government will continue the rubber control.
This bond amounts to a pactum antichresis. In such a pact the stipu­lation limiting the right to redeem is void. Wille on Mortgage p. 172; Burge, vol. III., p. 198; McCullough and Whitehead v. Whiteaway & Co.
Gilbert Perera, in reply.-The argument for the respondent is based on the fallacy that the pactum antichresis is a usufructuary bond. It is not so. Voet defines it as follows-" Antichresis, id est, mutuus pignoris usus pro credita " Bk XX., tit 1, s. 23. The word used is " usus " not " usufuctus ". Usus merely creates a " naked use " of property. Institutes of Justinian, (Bk. II., Tit. V.) at para 1 Justinian says (Sanders Translation) " But, of course, the right of use is less extensive than that of the usufruct; for he who has the naked use of lands, is not understood to have anything more than the right of taking herbs, fruits, flowers .... sufficient for his daily needs ".
The Roman-Dutch jurists knew well the technical differences of these terms and would not have used " usus" where " usufructurs" should have been used.
The law relating to pactum antichresis is quite intelligible as it is not within reason that a person who has a " naked use " should have the right to prevent the right to redeem. A usufructuary is in a far different position.
The law relating to pactum antichresis is a departure from the general law and therefore the Court should construe the law strictly so as not to give it a wider scope than was intended by the jurists.
Cur. adv. vult
January 21. 1941.