Kanagalingam v. Kamalawathie.
1948Present: Gratiaen J.
KANAGALINGAM, Appellant, and KAMALAWATHIE et al.r
S. C. 3—C. R. Jaffna, 16,689.
Servitude—Right to draw water from well—Created by grant—Personal orpraedial—Can it be assigned ?
A personal servitude created by grant, unless it is expressly stated to beassignable, terminates on the death of the individual in whose favour it wascreated.
^^PPEAL from a judgment of the Commissioner of Requests, Jaflna.
H. W. Tambiah, with S. Sharvananda, for the added-defendant,appellant.
C. CheUappah, for the plaintiffs, respondents.
Cur. adv. vult.
(1931) 145 L. T. 20.
(1932) 2 K. B. 247.
GKATIAEN J.—Kanagalingam v. Kamalawathie.
•May 18, 1948. Gkatiaen J.—
. By deed No: 6905 dated June 30, 1943, the co-owners of a property'including' a woman named Ratnam gifted the property to Pooranam on the.occasion of her marriage to Eliatamby Panchadcharam. The gift wasabsolute except in one respect, namely, that Ratnam reserved to herself
the rijght to use the well (on the gifted property) until the granteefills the same This somewhat cryptic reference to the filling of theWell is explained in the evidence. Pooranam had apparently intendedto erect a house on the property which would have involved the wellin question being'filled up so as to comply with certain housing regulations.The proposed building operation did not materialise, and the well is stillin existence.
The appeal turns on the interpretation of this clause in the deed ofgift, in terms of which Ratnam reserved to herself certain rights in respectof this well. It is common ground that Ratnam, who owned the adjoiningpremises in her own right, continued to use the well until she died inApril, 1945. The plaintiffs, who are her heirs, claim that. Ratnam’sright in respect of the well in question was a praedial servitude and assuch transmissible to them on their mother’s death. The defendants* contend on. the other hand that the right was at best a personal servitudewhich terminated on the death of Ratnam.
I do not think that the language of the deed justifies the constructionthat it created a praedial servitude attaching to Ratnam’s adjoining landas the dominant tenement. If this was the intention of the parties—and their intention must be gathered from the language of the document—nothing would have been easier than to say so in precise words. Thereis nothing in the deed, either expressly or by implication, from which itcan be gathered that a servitude in favour of Ratnam’s adjoining landwas intended to be created. It is not suggested that such a servitudepreviously existed and was intended to be preserved beyond the dateof the grant. “ Servitudes are onerous in thier nature, and clear evidenceis required, either of grant ” (as is alleged in the present case) “or ofsome other mode in which they are created before a Court will allow anysuch right over another’s property.” .(Maasdorp’s Institutes, Vol. 2 (5thEd.,} p. 168). In cases of doubt, freedom from a servitude must bepresumed. (Schorer’s Note 206.) Another principle of construction alsooperates against the contention of the plaintiffs. In the deed underconsideration the grantor Ratnam had reserved a right for her ownbenefit. “ Where there is a grant and an exception out of it, the excep-tion is to be construed as far as the language permits in favour of thegrantee.” SaviUe Bros. v. Bothell1. For these reasons I am of the opinionthat the deed conferred on Ratnam a personal servitude only—and nota praedial servitude which is more onerous.
Unless a personal servitude conferred by grant is expressly stated to beassignable, it generally terminates on the death of the individual in Whosefavour it is created. (Maasdorp (ibid) p. 169—Voet 7. 1. 1.). “ Fromthe very nature of a personal servitude, ” says Innes J. in the SouthAfrican case of Willoughby v. CopthaZl2 “ the right which it confers is
1 (1902) 6 L. J. Ch. 652 C. A. at 657.* S.A.L.R. (1913) AJ>. 267 at page 282.
GRATIAEN J.—Chtnawardene v. The Attorney-General
inseparably attached to the beneficiary. He cannot transmit it to hisheirs nor can he alienate it; when he dies it perishes with him.” Thereare indications in Hall and KeUaway's Treatise on Servitudes (p. 148) thatthis principle may possibly not apply in respect of the servitude ofusufruct, but it does not appear to have ever been challenged in regard toa personal servitude which merely confers a personal right to draw waterfrom a well.
In the result, I would hold that Ratnam’s rights which were reservedto her by the deed under consideration did not pass to her heirs on herdeath. The appeal must be allowed, and the plaintiffs’ action dismissedwith costs in both courts.
KANAGALINGAM, Appellant, and KAMALAWATHIE et al., Respondents