Jayawardene v. 'Jayawardene.
[In the Privy Council]
1989Present: Lord Alness, Lord Romer, and Lord Porter
JAYAWARDENE v. JAYAWARDENE et al.
Crown lease—Prohibition against sale, donation, or mortgage without writtenconsent of lessor—Donation by lessee without consent—Avoidance ofdonation—Subsequent devise by last will—Validity of devise—Estoppel.J was the lessee of a certain allotment of land from the Crown under anindenture of lease. The lease was entered into between the Governor ofCeylon as lessor on the one part and by J as lessee (which was stated toinclude his heirs, executors, administrators and permitted assigns), on theother part
The lease contained the following among other covenants:—The lesseeand his aforewritten shall not sublet sell, donate, mortgage or otherwisedispose of or deal with his interest in the lease or any portions thereofwithout 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 theappellant, without the consent of the Crown and then endeavoured,without success, to persuade the Crown to approve of the gift. TheCrown claimed that the gift without such consent was invalid.
Thereafter J by last will devised the property to the appellant, whomhe appointed his ex editor.
Held, that the donation was void and did not operate as a valid assign-ment of «Ts interest in the lease and that J retained his full interest inthe 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 propertythrough the executor to the devisee was no breach of the covenant notto assign.,
Held, also, that no valid estoppel had been created in favour of thedonees by the deed of gift.
Delivered by LORD PORTER—Jayawardene v. Jayawardene.
^^PPEAL from a judgment of the Supreme Court.'
H. I. P. Hallit, K.C. (with him Stephen Chapman), for plaintiff,appellant.
I*. M. D. de Silva, K.C. (with him Kenelm Preedy), for Attorney-Generalof Ceylon.
February 24, 1939. Delivered by Lord Porter—
The appellant in this action, who was also the plaintiff, is one of thesons of the late J. V. G. A. W. Jayawardene, Gate Mudaliyar. The firstthree respondents are also his sons.
The deceased man was apparently a considerable landowner in theIsland of Ceylon, and amongst his other properties was tenant under theCrown by an indenture No. 29, executed on October 29, 1919, and onFebruary 23, 1920, by the respective parties, of a certain allotment ofCrown land called Kajugahaudumulleduwa, Kajugahaudumullelandaand Galagodakele in Maggonbadda, Kalutara totamune and Eladuwavillage, Iddagoda pattu, Pasdun korale west, Kalutara District, WesternProvince.
The lease was entered into by the Governor of Ceylon on behalf of theCrown as lessor on the one part and by the deceased man as lessee (anexpression which was stated to include his heirs, executors, administratorsand permitted assigns) of the other part.
The estate was to be held in perpetuity subject to the covenants andgeneral provisions contained in the lease.
The covenants contained provisions for clearing and planting, payingrent, and the non-erection Of buildings on the land. The tenth covenantmust 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, andevery 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 arrearfor the space of more than one year after the time hereby appointedfor payment thereof, whether the same shall have been lawfullydemanded or not, or if any breach shall be committed by the le’ssee ofany of the covenants herein on the lessee’s part contained, or if thelessee shall abandon or cease to cultivate the said land in mannerprovided in Part IV. of this lease, or if the lessee shall become bankruptor compound.with his creditors or if the said land or the interests of thelessee or his aforewritten be sold in execution of a decree against himor his aforewritten, then, and in any of the said cases, this demise andthe privileges hereby reserved, together with these presents, shallforthwith cease and determine, and the lessor, his agent or agents, maythereupon enter into and upon the said land and premises, or any partthereof in the name of the whole, and the same have, re-possess andenjoy as in his former estate, and the said land and premises shall
1 39 N. L. J*. 135.
Delivered by LORD PORTER—Jayawardene v. Jayawardene. 469
forthwith revert to the Crown, without any claim on the part of thelessee or his aforewritten against the lessor for compensation on accountof any improvements or otherwise howsoever.”
The deceased man took possession under the lease and continued inpossession until his death on January 19, 1930.
Meanwhile, in May, 1927, he was for some reason anxious to make adeed of gift of the whole or at any rate a large portion of his properties tohis four sons in equal shares, and amongst those properties he desired toinclude the Crown lease.
Accordingly he wrote on May 16, 1927, to the Assistant GovernmentAgent asking that permission to assign might be granted. Withoutwaiting for the permission to be obtained, however, he executed fourdeeds of gift between May 27 and 30, 1927, giving one quarter of hisestates to each of his four sons. Each donation was subject to his ownlife estate and to each was attached a fidei commissum. These deedsincluded the Government lease amongst the properties given, and werein identical terms save in one matter. That in favour of the secondrespondent recited that his father had applied for and obtained thewritten consent of the Governor, whereas the other three recited onlythat he had applied for such consent.
The Government Agent did not reply until July 27, 1927, when he askedto be furnished with a draft of the proposed deed and laid down certainconditions upon which alone permission would be granted. He ended bysaying that the donee should understand that the lease. was liable tocancellation for any default. The deceased man did not comply withthe Government requirements but endeavoured without success topersuade the Government authorities that the deed was in order. Whenhe failed in this attempt, he caused four deeds of cancellation to beprepared and apparently a draft copy was sent to the Government AgentFinally on March 8, 1928, the Agent 'returned the draft copy and wrotein the following terms : —
“ Sir,—I have the honour to return the draft deed of cancellationand to inform you that the deed of gift already executed of your ownaccord is invalid by reason of Government consent not having beengiven thereto. If you are legally advised that cancellation is necessaryno question of obtaining Government consent arises.
I am, Sir,
Your obedient servant,(Signed) E.> T. Dyson,Assistant Government Agent.”
The deeds were never in fact cancelled, but at the bottom of this letteris to be found the words, “Deed of Gift invalid. Son heir under (JieWill ”, but there is no evidence as to the hand by which these words werepenned, and their Lordships can derive no assistance from them.
On October 23, however, of the same year, the deceased man made hiswill, leaving all his property, save for a gift of Rs. 3,000 to his grand-daughter, to the appellant, whom he also appointed'his (bcecutor.
After the death of his father the appellant’s name was entered in theRegister of Rents of Government lands leased in perpetuity, as substituted
Delivered by LORD PORTER—Jayawardene v. Jayawardene.
lessee, and he entered into and remained in possession of the property indispute until November, 1932, when the third defendant dispossessedhim. Later on the first defendant entered into possession. Both thethird and first defendants are said by the appellant to have entered intopossession on behalf of the three defendants and not on his behalf. Itappears from the appellant’s evidence that whilst he was in possessionhe paid the Government rent, but that after he was dispossessed he couldnot pay the entire rent and the respondents made certain payments, butthere is no evidence that the Government accepted them as tenants,indeed the payments were credited in the Government books to theaccount of the appellant as substituted lessee.
The respondents did not give evidence. Whether the appellantaccepted the deed of gift or not, is not clear—probably he did, as he saidin cross-examination, “ I got a gift of a one-fourth share of this land. Iwas present when all the gifts were made. I signed as a witness to deedNo. 178”. This last-mentioned deed was that giving a one-fourth shareto one of his brothers.
The plaintiff having been dispossessed in this way brought the presentaction against the first three respondents claiming a declaration of title,that the three respondents be ejected and the appellant quieted in posses-sion, damages, and an injunction. Inasmuch as the premises were heldon a lease from the Crown, he made the fourth respondent a party to theaction, but claimed no relief against him.
His case was that no consent had been given to the disposition of theestate and that purported gift passed no property either to himselfor any of his brothers, because by the terms of clause 10 of the lease anydisposition of the property without the consent of the Crown wasabsolutely void.
In answer the first three respondents pleaded the four gifts which theysaid were subject in each case to a fidei commissum in favour of theirchildren, or, in default, in favour of the lawful heirs of each of the donees ;acknowledged that the appellant was entitled to a one-fourth share;pleaded the covenant in the deeds of gift by the donor that he had fullauthority to donate the estates thereby given and would warrant anddefend the same to the donees; and pleaded that the appellant, as claimingunder the deceased testator, was bound by that covenant and wasestopped thereby fro.m questioning their title.
Alternatively they said that by reason of clause 10 of the lease thetestator had no power to dispose of the property by will.
At the trial of the action both parties agreed to waive damages of allnature (if any) due- to them up to the hearing, leaving the substantialissue whether the. property passed by the deeds of gift or whether at anyrate the appellant was estopped from denying that it had.
The District Judge who heard the case in the first instance gave judg-ment in favour of the appellant, but was,reversed by the Supreme Courtby judgment dated December 4, 1936.
The appellant has appealed against this decree to His Majesty in Council.
The Crown took no part in either of the Courts in Ceylon, but haveattended their Lordships’ Board in order to preserve their rights in case
Delivered by LORD PORTER—Jayawardene v. Jayawardane.
it should be held that the appellant was in the wrong and in order to giveany assistance which they were able.
These being the facts, the first question to be determined is whether thepurported deeds of gift of this land pass any property or not. Theanswer to this question depends upon the terms and effect of clause 10 ofthe lease.
It is hot necessary in construing the clause to determine precisely thelimits of the acts prohibited by each word of the clause. Admittedlythe gifts to the sons were donations. No written consent to a donationwas obtained and donations are prohibited without the written consentof the lessor. Without such consent the clause declares every donationto be absolutely void.
In a series of cases where a lease has been granted upon the terms thatif certain conditions are not fulfilled or are broken it shall be “ void ” or' utterly void ” or “ null and void to all intents and purposes ”, it hasbeen held that upon a failure by the tenant to fulfil the conditions, theleases are not ipso facto void but are only voidable at the option of thelessor. The principle is explained in Davenport v. Reg.', and the casesquoted therein in reference to English law, and a similar principle is to befound in Roman-Dutch law. See Fernando v. Fernando * and Silva v.Mohamadu3 in Ceylon, and Breytenbach v. Frankel' in South Africa.It is to be observed that in those cases it is the lease which is declared tobe void, not, as in the present case, the assignment of the lease, but theirLordships, without expressing any opinion upon the question, will assumethat these decisions are applicable to the latter as to the former class ofcase.
Even if this assumption be made, it is clear that in the present case thelessor never by word or act assented to or acknowledged the donations.On the contrary, as appears by the letter of March 8, 1928, the Govern- -ment claimed that the donations were invalid.
Some misapprehension appears to have arisen in the Supreme Court asto the effect of this letter. That Court seems to have thought that despitethe terms of the communication the Government by their subsequent actsaffirmed the lease. In this they were mistaken. The Governmentaffirmed the lease because of—not in spite of—their refusal to acknowledgethe donations. If the donations were invalid there was no breach 'ofcondition because there had been no dealing with the land contrary to theterms of clause 10. If, on the other hand, the donations had been valid,notwithstanding the lessor’s refusal to give its written consent, then therewould have been a breach of condition such as might entitle the lessor toavoid the lease. Indeed the Government were represented at the hearingbefore their Lordships for the express purpose of contending in case thedonations were held valid, that the right which they claimed to possessof forfeiting the lease was unaffected.
In their Lordships’ view the lessee had validly contracted that anydonation made by hfm was at least voidable by the Crown, the Crownhad avoided the attempted donations, and those donations being void
i (1877) 3 App. Cases 115.* (1616) 19 N. L. R. 42G.
* (191S) 19 N. L. R. 193.* (1913) S. A. L. R. App. Div. 390
Delivered by LORD PORTER—Jayawardene v. Jayawardene.
did not operate as a valid assignment of the tenant’s interest in the leaseand'therefore there has been no forfeiture. See Doe v. Powell1.
If the lease remained in force and the attempted donations of the lesseewere void, the tenant retained his full interest and was capable of disposingof that interest by will to whom he pleased, subject to two questions :—
Did clause 10 prohibit the tenant from disposing of the lease by
Whatever the position between the Crown and the lessee, could the
appellant as executor of his father repudiate his father’s giftswhich had never been cancelled ?
Had the lease been granted to the testator simpliciter, the difficultand doubtful question whether a devise would have been a “ disposal of ”or “ dealing with ” his interest in the lease would have arisen. Even ifthe true view be that a devise is not a breach of a covenant not to assign—see Crusoe d Blencowe v. Bugby ”, it does not follow that it may not be abreach of, a Covenant not to dispose of or deal with the lease. TheirLordships, however, do not find it necessary to express any opinion onthis-matter.
The lease was not granted to the testator alone. It was granted to thelessee, and that expression is defined to include his heirs, executors,administrators,- and permitted assigns. An executor is therefore in termsone of the lessees, and is just as much entitled to hold the lease as is apermitted assign.
The true view,' as their Lordships think, is expressed by Bayley J. inDoe v. Bevan. ” That was a case in which the lease passed to the trusteein bankruptcy of the tenant, and it was contended that though the leasemight pass to the trustee without a breach of the covenant not to assign,yet there was a breach if they in their turn assigned for the benefit of theestate. To this argument Baylay J. replied :—
“ Shall the assignees have capacity to take it and yet not dispose ofit? Shall they take it only for their own benefit, or be obliged toretain it in their hands to the prejudice of the creditors for whose benefitthe law orginally cast it upon them? Undoubtedly that can neverbe.” .
So an executor takes not for himself, but for the devisee under the willwhich appoints him executor, and the passing of the property throughthe executor to the devisee is no breach of coveniant not to assign. If itwere not so the naming of an executor as included in the expression“lessee” would be meaningless, since his function is to transfer the leaseto some devisee even if that devisee be himself.
Their Lordships would further point out that if, as the respondents• contended, “ void ” in clause 10 means “ voidable ”, then even had adevise of the estate been a breach of the condition, the Crown who haveentered the appellant’s name as substituted tenant and accepted rent,and who before their Lordships disclaimed any desire to interfere withhis tenancy, have, if they could, waived the alleged forfeiture.
If, as their Lordships think, the attempted donation was void asagainst or avoided by the Crown, no estate in the land could pass to the
> (1826) 5 E . d C. 308.
2 (1771) 3 1 Vila. K. B 234.
2 (1815) 3 M. ,t ,<?. 353.
Delivered by LORD PORTER—Jay atoaf dene v. Jay atoar dene.
donees. The testator had not at the time of the donation any right todispose of the land as he purported to do. Indeed, permission to do sowas expressly refused. Nor has the appellant now any right to dispose ofit except with the requisite consent. The only rights, if any, which thedonees could claim, would be some right by way of estoppel.
Their Lordships find no evidence in the record on which an estoppelcould be based. Save that the first three respondents apparentlyaccepted the donations, they neither acted upon any representation noraltered their position to their prejudice. Nor, indeed, did their fathermake any representation. All that he did was to purport to make adonation of a lease—a donation which by the terms of that lease he couldnot make, and in making which he recited the lease' itself.
All of the three respondents had express notice from the wording oftheir respective donations that consent to assign had to be obtained andit appeared from two of the donations that it had not yet been obtained.
: The third, namely, No. 175, did contain a recital that consent hadbeen obtained, but the donee Frederick Nicholas Jayawardene was notcalled as a witness and gave no evidence that he had been misled by therecital.
Nor does the fact that a fidei commissum was attached to each of thedeeds of gift affect the result. It is true that a fidei commissum properlyconstituted and accepted cannot be revoked—see Soysa v. Mohideen'—and it is no doubt also true that a solemnly executed and duly registeredinstrument must stand until set aside by a competent Court—see Breyten-bach v. Frankel (ubi supra). It was accordingly contended in the Courtsin Ceylon on behalf of the respondents that the donations being solemnlyexecuted could not be set aside, or at best could only be set aside by anapplication to the Court in an action for vindicatio or'restitutio in integrum—in Ceylon the exact form of action would not matter. See Silva v.Mohamadu (ubi supra) per Ennis J. at p. 428.
So far as any of the property included in the donations was at. thetestator’s disposal the argument may have force, but even if the donationsare valid gifts, the question, so far as this lease is concerned, is not whetherthe donations are valid, but what property passes under them. In theirLordships’ opinion, whatever may be the case as regards the otherproperty, the leasehold estate, the subject-matter of the present action,could not, for the reasons given, pass' to the donees.,
The case differs from those in which a minor purports to. grant a leaseor to sell land during his minority as in Silva v. Mohamadu (ubi supra) andBreytenbach v. Frankel (ubi supra). In the latter, the lease or sale is.notvoid ab initio—it is voidable at tfce option of the minor or perhaps, as Ennis. J. expresses it, it does not bind the minor unless he ratifies it expressly orimpliedly, on attaining his majority. But in such cases the affirmanceor avoidance of the lease or sale depends on the minor’s action after heattains his majority and in such a case he may well be compelled to applyto the Court to have the lease or sale set aside before he can effectivelydispose of his interest in the property to someone else if indeed he retainsany right to deaf with it at all. Where, however, the lease has, as in the
1 (1914) 17 N. L. B. 279..
Dulfa Umma v. Urban District Council, Matale.
present case, been disposed of contrary to the terms contained in it, andthat disposition is void or has been avoided by a landlord, there is, intheir Lordships’ view, no room for the application of such a doctrine, evenin the case of a sale or other disposition for value, much less where thedisposition is a gift.„
In the cases quoted the option to affirm or avoid was the option of theminor himself. Had the right in the present case to avoid or affirm restedwith the appellant or even with his father, this case might have had someanalogy to those. But in this case the option is with the Crown, theappellant has no choice in the matter, and there seems no reason forholding that he must bring an action in order to make the Crown’s electioneffective.
For the same reason the statement by Voet in vol. I., lib. VI., tit 1,section 17, as quoted by the Supreme Court, that “the seller cannothimself vindicate property belonging to another, which has been sold byhim, on the ground that he is not the owner even if he subsequentlybecomes the owner or is heir to the true owner ”, is not applicable to thepresent case.
Even though one accepts the view of the Supreme Court that theprinciple upon which the rule is founded is that no one ought to gainsayhis own act, or (one may add) the act of his predecessor in title, yet theappellant has never gainsaid his father’s act. It was the Crown whogainsaid it, and the appellant cannot hold the lease for those whose titlethe Crown has refused to recognize.
For these reasons their Lordships will humbly advise His Majesty thatthe appeal be allowed, the decree and judgment of the Supreme Courtset aside and the judgment of the District Judge restored. The firstthree respondents must pay the appellant’s costs of the hearing in theSupreme Court and before their Lordships’ Board.