021-NLR-NLR-V-14-SAMARAWEERA-et-al-v.-FERDINANDIS-et-al.pdf
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Dec. 20t 1910Present: Hutchinson CJ. and Grenier J.
SAMARAWEERA ct al v. FERDINANDIS et at.
D. C. Matara, 4,932.
Donation—Prohibition ((■gainst alienation—Fiscal's sale—Breach *>Jcondition.
A deed of gift contained the following clause : “ That theproperty gifted shall not be leased at a time for a period more t hanseven years, and whenever it is needful to sell or mortgage theland gifted, if any of the donors be willing to buy for the realvalue, it shpuld be given to him only, and not.sell or mortgage touny outsider. That in case of a breach of the said conditions itis directed that we, the said donors, or our lioirs, &c., shall bedeclared entitled to the land back again.”
Under a writ against the donee the land was sold by the Fiscal.In an action by the donors rtgainst tho purchaser at the Fiscal’ssale for declaration of their title—
Held, that the purchaser at the Fiscal’s sale had acquired goodtitle ; a forced sale by the Fiscal could not be said to be a voluntaryalienation, and could not be said to be a breach of the conditioncontained in the grunt.
rJpHE facts are fully set out in the judgment of Hutchinson C.J.
Vernon Grenier, for the first defendant, appellant, relied .onWijemanne v. Schokmand
Bawa, for tho plaintiffs, respondents.
Cur. adv. vult.
December 20, 1910. Hutchinson C.J.—
The plaintiffs sue for a declaration of their title to an undividedshare of a piece of land. They say that the land formerly belongedto the four plaintiffs and to the second and third and fourth defend-ants and the predecessors in title of the other defendants (exceptthe first), all of whom, by deed dated June 12, 1897, joined ingranting it by way of gift to S. B. Dingihamy, on condition that itwas not to be leased for more than seven years and was not to besold or mortgaged to any one by the donors, and that in the event ofa breach of the said condition the land should revert to the donors ;that Dingihamy accepted the gift and entered into possession, butfraudulently entered into a scheme to defeat the condition, andaccordingly leased to the first defendant more than the portion towhich she was entitled ; that the lessee was resisted and brought an1 (1910) 13 N. L. R. 301.
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action, when he was declared entitled to this land only ; and hethen brought another action (presumably against Dingihamy) fordamages by reason of the failure of the lessors to make good thewhole of their lease to him, and obtained decree, and in executionthereof had this land sold and bought it himself. The plaintiffsdenied that he obtained any right to the land by his purchase, andthey now sue him for declaration of their title to their share (four-ninths) of the land and to recover possession from him. The firstdefendant denies that any conditions exist in the deed of gift toDingihamy which justify the plaintiffs in seeking to set it aside, orthat there was any breach of the conditions, or that he was partyto any fraud; he claimed the land under his Fiscal’s transfer, andsaid that neither the plaintiffs nor the other defendants ever offeredor expressed a wish to buy the land.
The condition in the deed of gift as translated in P I filed in therecord is as follows : “ That the property gifted shall not be leasedat a time for a period more than seven years, and whenever it isneedful to sell or mortgage the land gifted, if any of the donors bewilling to buy for the real value, it should be given to him only, andnot sell or mortgage to any outsider. That in case of a breach ofthe said conditions it is directed that we, the said donors, or ourheirs, &c., shall be declared entitled to the land back again.”
The issues settled were :—
Was the Fiscal’s sale a breach of the condition in the deed
of gift, and if so, are the donors entitled to the property ?
Was there a scheme on the part of the donee to defeat the
deed ?
Was there any valid restriction on alienation ?
The District Judge said that the purchaser at a Fiscal’s sale is inthe position of any other purchaser, and therefore the defendant (/.?.,the first defendant) has no title. He said that there was no directevidence on the second issue, and he did not answer it, but of courseit ought to have been answered in the negative. And he held thatthere was a valid prohibition of alienation, and he declared theplaintiffs entitled to four-ninths of the land.
In Wijemanne v. Schokman1 there was a grant to HendrickPerera subject to the following condition : “ The said H. P., hisheirs, executors, administrators, assigns, shall not alienate or assignthe land or any part thereof without the consent of Government inwriting for that purpose*9 ; under a writ against the heir of HendrickPerera the land was sold by the Fiscal ; and the Court held that the^sale was not a breach of the condition. We are bound to follow thatdecision. The terms of the condition in our deed are not quite thesame as in that case ; the condition is that whenever it is needful tosell the land—and that can, I think, only mean whenever the donee
1 {1910) 13 N. L. R. 301.
n
Dec. 20,1910
Hutchinson
C.J.
Samciraweera
v.
Ferdinand!*
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Dec. 20,1910
Hutchinson
C.J.
Sawaraweera
v.
Fer'dinandis
or her heirs or assigns find it needful to sell—the donors shall havethe first option to buy it. And a sale by the Fiscal is not a sale bythe donee or her heirs or assigns, and is not a breach of the condition.In the same way it has always been held in England that a sale bythe trustee in bankruptcy of the grantee is not a breach of a similarprohibition against alienation by the grantee.
The appeal must be allowed, and the action be dismissed with costsin both Courts.
Grenier J.—
I agree to allow this appeal. A forced sale by the Fiscal cannotbe said to be a voluntary alienation, and therefore there was nobreach of the_condition contained in the grant in question. Thesecurity afforded by purchase at a public sale by the Fiscal would beseriously endangered if the conveyance by the Fiscal is liable to beset aside by reason of such a prohibition against alienation as thedeed of gift P 1 contains. The District Judge thought that apurchaser at a Fiscal’s sale was in the same position as any other. purchaser, and therefore the first defendant had no title under hisconveyance. In certain circumstances, no doubt, the title that isconveyed by the Fiscal is as liable to be defeated as a title which ispassed by a private conveyance. This would be so, especially incases where the execution-debtor had no title, and the property of aperson who had the title was the subject of sale. But that is notthe same thing as saying that where in a private grant or convey-ance the grantee is prohibited from voluntarily alienating theproperty conveyed, that the Fiscal can be asked not to lay his handon the property by reason of such an injunction, or that his transferin case the property is sold passed no title to the purchaser.
The distinction between a forced sale by the Fiscal and a voluntaryalienation is a very appreciable one, and has always been recognizedin our law. In the present case there seems to me every reason forgiving effect to this distinction in favour of the first defendant.
Appeal allowed.
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