Gabrial v. Adikaran.
1941Present: Keuneman and Nihill JJ.
GABRIAL v. ADIKARAN.64—D. C. Avissawella, 2,637.
Pactum antichresis—Stipulation attached to pact—No right to redeem beforecertain data—Stipulation void—Roman-Dutch law.
A stipulation attached to a pactum antichresis, that the mortgagorshould not redeem the property or repay the debt before a certain time,is void.
HIS was an action brought to redeem a usufructuary mortgage bonddated 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 bondto that effect. The learned District Judge held that the stipulation wasvoid for want of mutuality and as being vague.
Gilbert Perera, for defendant, appellant.—Plaintiff seeks to cancel theusufructuary mortgage bond PI on the ground that payment wastendered and was not accepted by the defendant. Two issues wereraised at the trial but the learned judge had decided on other issues thathad never been raised and the defendant had been prejudiced thereby.Further, the learned Judge has held that the stipulation, viz., that theobligors undertook “ not to redeem the mortgage as long as the controllasts ”, was not enforceable for “ want of mutuality ” and “ vagueness ”.The doctrine of “ want of mutuality ” is not known to the law of mortgagebut to specific performance which is not applicable to Ceylon. The bondwas entered into in 1936 when the' Rubber Control Ordinance of 1934was in force and that Ordinance was operative for the period endingDecember 31, 1938. Hence the period stipulated is not vague.
KEUNEMAN J.—Gabrial v. Adikaran.
N.Nadarajah, for plaintiff, respondent.—The issues are wide enough totake in the questions adjudicated by the Judge. The period is vaguebecause it is not known how long the Government will continue therubber control.
This bond amounts to a pactum antichresis. In such a pact the stipu-lation 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 onthe fallacy that the pactum antichresis is a usufructuary bond. It is not so.Voet defines it as follows-—“Antichresis, id est, mutuus pignoris usus procredita” Bk XX., tit 1, s. 23. The word used is “ usus” not “usufuctus”.Usvs merely creates a “ naked use ” of property. Institutes of Justinian,(Bk. II., Tit. V.) at para 1 Justinian says (Sandars 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 anythingmore than the right of taking herbs, fruits, flowers …. sufficientfor his daily needs ”.
The Roman-Dutch jurists knew well the technical differences ofthese 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 notwithin reason that a person who has a “ naked use ” should have the rightto prevent the right to redeem. A usufructuary is in a far differentposition.
The law relating to pactum antichresis is a departure from the generallaw and therefore the Court should construe the law strictly so as notto give it a wider scope than was intended by the jurists.
Cur. adv. vult.
January 21. 1941. Keuneman J.—
By usufructuary bond D 1, No. 683 of February 24, .1936, three persons,Kapuranhamy, Gunawardena and Ratranhamy, mortgaged the allotmentof land Mahahena, described in the plaint, to the defendant. The samethree persons transferred the entirety of the premises to the plaintiff,subject to settlement by the plaintiff of the amount due on the bond D 1.In his plaint, dated November 28, 1938, the plaintiff claimed the cancella-tion of the bond, on bringing the money due into Court. The defendantin her answer stated that the mortgagor was not entitled to redeem thebond till December 31, 1938. This defence was biased upon a clauseappearing in D 1 as follows: “ We the said obligors do hereby undertakenot to redeem the said mortgage bond as long as the control lasts ”. “ Thecontrol” clearly refers to “rubber control”, and the defendant pleadedthe Rubber Control Ordinance of 1934 expired on December 31, 1938.
The case proceeded to trial on two issues : —
“ 1. Did the plaintiff tender to defendant the amount due on the bondas stated in the plaint ?
2. Was the plaintiff entitled in law to have the bond redeemed beforeDecember 31, 1938 ?
1 S. A. Law Reports (1914) App. Div. 599 at p. 626
KEUNEMAN J.—Gabriel v. Adikaran.
The learned District Judge decided both issues in favour of the plaintiff.The second issue is in very wide terms, and the District Judge decidedthat the stipulation in question was void on two grounds, namely, forwant of mutuality and also owing to its being too vague.
I do not think it is necessary to decide either of these two points. Afurther legal argument has been addressed to us by Counsel for therespondent which does not involve the examination of any facts notalready recorded, and which falls within the terms of issue 2. Under D 1,the right was given to the mortgagee “ to possess the same in lieu ofinterest and also to take and receive the rubber coupons allotted to thesaid land in lieu of interest”. Counsel argued that this was a pactumantichresis. Counsel cited Wille on “ Mortgage and Pledge in SouthAfrica”, p. 188, where in relation to a pact that the mortgagor shall notredeem the property or repay the debt before a certain date it is stated: —“ This clause is invalid if it is annexed to a pactum antichresis Twoauthorities are cited. Sande, Decis, Fris. (3, 12, 11) is unfortunately notavailable to me, but Burge (Vol. III., p. 198) sets out this proposition asfollows : —“ But if to this contract of antichresis were added a stipulationthat the mortgage should not be paid off for a certain length of time, itwould be void Further, this position has been accepted (thoughperhaps obiter) in McCullough and Whitehead v. Whiteaway & Co.1
Counsel for the appellant argued that under the deed D 1 a usufructand not a use was reserved, and that this did not constitute a pactumantichresis. He depended on Voet (20, 1, 23—wide Berwick’s Voet, p. 299)which states : —“ By the pactum antichresis, which is specially approvedin mortgages, it is agreed that the creditor shall have the use of the thingmortgaged in place of interest until payment of the debt, whether hechooses to enjoy the benefits or take the fruits for himself, inhabiting thehouse or cultivating the farm mortgaged, or prefers to hire it to others”.In my opinion, there is sufficient internal evidence in the passage itself toshow that when Voet employed the word “ usus ” he was not drawing thetechnical distinction between “ usus ” and “ usufructus I think thematter is put beyond doubt by the passage in Kotze’s van Leeuwen (4, 12,15, 2nd ed., Vol. II., p. 87), to wit:—“The stipulations in pledge andmortgage were various, of which, besides the general stipulation, this onealone is in use among us, namely, that the fruits of the property pledgedshall go to the creditor for the interest of the principal sum which is dueto him, if only the debtor retains the power of at all times redeeming hisproperty ”. It is to be noted that Walter Pereira in his Laws of Ceylon(2nd ed., p. 514) uses this passage as an illustration of the pactum anti-chresis. I may add that the last words in the passage cited appear to meto be in accord with the passage quoted from Wille (supra), and theauthorities on which it is based.
On this point alone, the respondent is entitled to succeed, and I accord-ingly dismiss the appeal with costs.
Nihxll J.—I agree.
13. A. Lata Reporta (1914) App. Div. 699 at p. 626.
GABRIAL v. ADIKARAN