NAINA LEBBE v. MARAIKAR et al

084-NLR-NLR-V-22-NAINA-LEBBE-v.-MARAIKAR-et-al.pdf


( 595 )
Present: De Sampayo J. and Schneider A. J.
NAINA LEBBE v. MARAIKAR et al.
242—D. C. Jaffna, 14,170.
Gift subject to-condition that the several donees shall not alienate theirshares except among themselves—Alienation by one donee toanother—Re-conveyance of the share to the first.donee—Deed ofpartition by several donees—Mortgage of a divided lot by a doneeto a stranger—Sale under mortgage decree—Is mortgage in favourof stranger valid f—Effect of partition deed and conveyance by onedonee to the other.
By a deed of gift some pieces of land were gifted to three brothers,A, B, and C. The deed provided “ that if they like to alienate orencumber their share Jpy any deed, suoh as mortgage, or transfer,they shall do so between themselves, and not with others.” In1910 A mortgaged his share in three lands. In 1912 (July 6) Asold his interest in these lands to his brother B, who on July 20,1912, re-conveyed the same to A. The share of C was sold inexecution against him, and by a series of deeds C’s wife obtainedtitle from the purchaser at the Fisoal’s sale. In 1913 A, B,.C, andC's wife entered into a deed of partition, by which divided portionswere allotted to the parties, and theportion in question was allottedto A On the same day the mortgage bond of 1910 was discharged,and a fresh bond was executed for the divided lot by A. Underthe mortgage decree this lot was sold, and was purchased by theplaintiff.
Held, that the mortgage of 1913 was not. void, and that theplaintiff had good title.
De Sampayo J.—“The prohibition against alienation is notfollowed by any words indicative of cm intention that in the eventof one donee contravening the condition, the others should gethis share, nor has the provision in the deed any analogy to thewell-known form of fide*' commissum which is created by pro-hibiting alienation out of the family. All that can reasonablybe said is that the deed provided that if a donee wished to mortgageor dispose of his share, the other donees sh<|i|ld–hay^ the preferentright to advance or pay money and accept themortgageor transfer.But the defendants did not and do not claim such preference.”Schneider A.J.—“ The right conferred by,the deed upon eachof the doneas in regard to the shares of the others was thathe might demand the optionfirst of 1 ending money upon a mortgageof the shares of the others or of purchasing them. It is a purelypersonal right. It placed no burden on the land itself.”
Schneider AJ.—“The intention and effect of the deed ofpartition was to confer on each of the (jlonees absolute title to theportion allotted to him.”
1921.
1021.
. ftatnaLtbb*
v. A(araihor
( 296 )
Bohns id bb AJJI am unable to agree with the contention
that the prohibition agaihsb alienation to a stranger is void underthe Entail and Se^tlemeint Ordinance or under the Common law.because the persons to/be benefited by the prohibition are notnamed, desoribed, or designated. The direction that any mort-gage or sale shall be among the donees sufficiently indicates themby name as the persons for whose benefit the prohibition wasmade.’*j •*
When A sold his share to his brother B in 1912, the latter acquiredthis share free from any burdbn whatever, and when he (B) re-soldit to A, the latter also aoquired absolute title.
i
^ | ^HE faots appear from the judgment.
Bawat K.G. (with him IS. W. Jayawardene and Oanakeratne), forplaintiff, appellant. !
..i
Samarawickreme (With him Oroos-Dabrera), for defendants,respondents.j'
Our. adv. vulL
April 6, mi. D® Sampayo J.—
The plaintiff has brought this action to establish title to a por-tion of land called/Punkady in extent 9 lachams and 2| kuliesvaragu culture. The case turns upon the construction to be placedon a deed of gift bearing No. 2,424 and dated May 14, 1904. The *facts oi the case aife somewhat complicated, but it is necessary tostate them for the ^propose of deciding the question of title. MeeraSaibo and his wife Sultan Mohideen Natchia were entitled to someadjacent pieoes oij lancj, of which the portion in question is a part,and by the said deed No. 2,424 they gifted the same to their threesons, Nayna Mohamado, Assena Marikar (first defendant), andMohideen Saibo /(sgpond defendant), subject to a condition whichran as follows: “As we. reserve life interest to us jointly andseverally, we declare that they (the donees) shall after our lifetimepossess the said* properties in equal shares …. that if theylike to alienat^ or encumber their share by any deed, such asmortgage or transfer, they shall do so between themselves, andnot with others.”
By bond No. 5,996 dated June 11, 1910, Nayna Mohamado• mortgaged with one Pitche Kurukkal and Somanuna his one-thirdshare in three of the said pieces of land as security for the repaymentof Bs. 1,000 and interest. Subject to this mortgage, NaynaMohamado by deed No. 6,966 dated July 6,1912, sold his interestto his brother Assena Marikar, who on July 20, 1912, re-conveyedthe same to Nayna Mohamado.. These deeds on the face of themrepresent real transactions, and no question is Raised as to their bondfide*. In the meantime the share of the remaining donee, MohideenSaibo; was sold in execution against him, alnd it is now vested inhis wife on mesne conveyances from the purchaser at the Fiscal's
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sale. Then all the original donees and the second defendant’s yifeentered into the deed of partition No. 7,004 dated September 19,1913, by which the various pieces of land were consolidated, anddivided portions were allotted to the parties, the portion in questionin this case being allotted to Nayna Mohamado. On the sameday the mortgaged bond of 1910 appears to have been discharged,and by a fresh bond No. 7,605 Nayna Mohamado mortgagedthis divided portion to Fitche Kurahkal and Somamma as securityfor the payment of Re. 2,000, which included the old debt or part ofit and a further sum of Rs. 880 then borrowed. This bond was putin suit in D. C. Jaffna, No. 13,450, in whioh a decree for a certainsum of money and an order under section 201 of the Civil Procedure.Code for the specific sale of the property mortgaged were entered.For the purpose of carrying out the sale, the Court on June 19,1919,issued a commission to K. Kantiah, Mudaliyar. Tho property wasduly sold by the Commissioner on August 2,1919, and was purchasedby the plaintiff in this action. The same was confirmed by theCourt, and a conveyance was issued to the plaintiff on September11, 1919.
The question is, whether the mortgage, of September 19, 1913,violated the condition in the original deed of gift and was void, andwhether, therefore, the purchase by the plaintiff at the sale inexecution of the mortgage decree in action No. 13,450 conferredany title on the plaintiff. It js contended that .the deed of giftcreated a fidei cmnmiamm conditionale, that is to say, that if anyone of the donees acted in contravention of the prohibition containedin the deed, he would forfeit his share, and the same would vestin the remaining donees, and that, therefore, in consequence of amortgage effected by Nayna Mohamado in favour of “ strangers,”he forfeited his interest in favour of his co-donees, the first andsecond defendants, and the plaintiff got nothing by bis purchaseat the execution sale against Nayna Mohamado. I, however,think that, whatever might have been the intention of the donors,the language employed was insufficient to create such a fidei cotn-mismm. • The prohibition against alienation is not followed by anywords indicative of an intention that in the event of one doneecontravening the. condition, the others should got his share, nor hasthe provision in.the deed any analogy to the well-known form offidei commi$8um which is created by prohibiting alienation out of thefamily. The prohibition is a bare prohibition, and is substantiallysimilar to the one dealt with in Peris v. Soysa,1 which is therefore anauthority in this case. All that can reasonably be said is that thedeed provided that if a donee wished to mortgage or dispose of hisshare, the other donees should have the preferent right to advanceor pay money and accent the mortgage or transfer. But the firstand second defendants did not and do not claim such preference.
1 (1620) 21 N. L. R. 446.
1921.
Os 8m»oJ.
• —
Naina Letbe
v. Maraihor
10*
( 298 )
1921.
Db SampayoJ.
Naina Lebbev. Maraikar
On the contrary, they appear to have been content, that NaynaMohamado should deal with his share ]$x the way he did. For, inthe, conveyance to the first defendant by Nayna Mohamado, themortgage of 1910 was recited, and the first defendant undertook thepayment of it, and, similarly, when he re-conveyed the share toNayna Mohamado, the consideration was adjusted by referenceto the amount still due on the mortgage., In this connection it isrelevant tonote that not only did the donees effect a partition amongthemselves, but each of them was allotted a divided portion abso-lutely. Moreover, the effect of the transfer to the first defendantmust itself be taken into account. That act of alienation was infavour of one of Nayna Mohamado’s co-donees, and was, there-fore, within the liberty provided for in the deed of gift. Theresult in law was that the share so alienated was freed from anyfurther burden and vested absolutely in the first defendant,, andwhen it was re-conveyed by him the title acquired by NaynaMohamado was likewise absolute. For the prohibition waspersonal only, and did not extend beyond the nominated donees,and so the condition was fulfilled when the ^property was oncealienated to* one of the donees, and Nayna Mohamado was notprevented thereafter from making any disposition of the propertyhe pleased. See Sande on Bestraints, part I//., ch, 2, paragraph 3.Consequently, the mortgage effected by Nayna Mohamado afterthe re-conveyance to him by the first defendant was good and valid,and the plaintiff acquired good title when he purchased at the saleheld.in execution of the mortgage decree.
For these reasons, I also think that this appeal is entitled tosucceed, and I agree to the order as to damages and costs suggestedby my brother Schneider.
Schneider A.J.—
There is no dispute as to the facts. Two spouses transfeired in1904 by a deed of donation (D 1) five allotments of land to theirthree sons, Mohamado, Marikar (first defendant), andSaibo (seconddefendant). The deed is in Tamil. The relevant portions of thedeed read accordingly to the translation in the record as follows :“ We have donated the above five lands subject to the binding(restriction ?) shown below. As we reserve life interest to us jointlyand severally, we declare that they shall after our own lifetimepossess the said properties in equal shares; that if they like(desire ?) to alienate or encumber the share, by way of mortgageor transfer, they shall do so between themselves, bat not withothers.”
Of the events which happened after the death of the donors, thefollowing should be noticed. In 1910 Mohamado mortgaged hisundivided one-third share of the lands to one Pitche Kurakkal and
( 299 )
his wife Sornamma (D 2). In 1912, on July 6, he sold and trans- 1921.ferred this share to bis brother the first defendant. In this deed(D 5) he expressly recited that the share was subjeot to the mortgageA.J.
in favour of Kurukkal and his wife, and that he therefore permittedhis brother to retain out of the consideration a sum sufficient to pay v, Maraikarthe principal due on the bond. On the 20th of that month the firstdefendant sold and transferred this share back to his brother Moha- 1mado (D6). In this deed the mortgage is recited as still in existence;and that a deductionfor its satisfaction had been made from the con-sideration. This transfer and re-transfer within a few days suggestto my mind that a lawyer had been consulted, and that these trans-actions were intended to break down the restraint on alienationcontained in the deed of donation. The one-third share of thesecond defendant was sold in execution by the Fiscal in 1910. In1912 the purchaser of that interest sold it to the second defendant’swife (D 11).
In 1913, on September 19, there took place before the same notarythree transactions closely connected with one another and havingan important bearing on the question of title. The three original/donees, together with the wife of the second defendant, appeared/to have agreed among themselves to treat four of the lands cohveyed by the deed of donation', which were contiguous to one another, asone block of land, and to partition it among the three shareholders.
To do this effectively it was necessary to clear the mortgage oreatedby Mohamado in favour of Pitohe Kurukkal and his wife over hisshare. The latter appeared to have agreed to accept in lieu a mort-gage over the defined portion which would be allotted to Mohamado.Accordingly, Kurukkal and his wife discharged the old bondby their receipt No. 7,603. By deed No. 7,604 the partition waseffected, and by bond No. 7,605 a fresh mortgage was oreated byMohamado over the defined portion allotted, to him. It should benoticed that thepartiesto the deed of partition are the three originaldonees and the wife of one of them (second defendant) who hadacquired his one-tbird share, and that to each of the shareholdersa defined portion was conveyed “ absolutely.”
In 1919 the mortgagees sued upon the bond No. 7,605, and atthe sale in execution the plaintiff became the purchaser of the landallotted to Mohamado. The first and second defendants resistedhis claim of title on the ground that the deed of donation created afidei commissum in favour of the intestate heirs of each of the donees,and that they, as the heirs of Mohamado, who died before the saleto the plaintiff, were entitled to the land. The plaintiff accordinglybrought this action claiming a declaration of title in his favour anddamages at the rate,of Rs. 40 per mensem. Thisllaim for damagesis not referred to in the answer of the defendants, nor was any issueraised regarding it. The learned District Judge dismissed theplaintiff’s action with costs, holding in favour of the defendants’
( 300 )
1921.
SCHNBIDBR
A.J.
Ntnna Lebbe«. Idaraikar
contention that the deed of donation created a fidei commissum assubmitted by them, and that the deed of partition was subject tothis fidei commissum. He has omitted to consider the effeot of thesale in execution by the Fiscal of the interest of the seconddefendant. The plaintiff has appealed.
Mr. Bawa, for the plaintiff, argued: (1) That the prohibitionagainst alienation- to an outsider was absolutely void, inasmuchas the persons to be benefited were not named, described, ordesignated as required by section 3 of the Entail and SettlementOrdinance, 1876 (No. 11 of 1.876), and void also under the Commonlaw as it was nude for the same reason; (2) that the prohibitionif olothed was purely personal, and in the events which hadhappened had ceased to exist—its force having been exhausted,'so to speak.
Mr. Samarawickreme, for the defendants, wisely refrained fromany endeavour to support the contention submitted in the lowerCourt that the deed created a fidei commissum in favour of theheirs of the donee. That contention is clearly unsustainable.He took up the only position he could with any show of lawendeavour to maintain. He argued that a breach of the prohibitioninduced a fidei commissum conditionale, so that upon the mort-gage by Mohamado the land in dispute vested in the other twodonees.
Taking the facts to be those which I have mentioned, I wifi nowproceed to consider the deed of donation. The words of grant being“ We have donated,” the deed operated to vest the dominium in thethree donees in presenli and absolutely, unless the direction thatthey shall mortgage or sell among themselves but not to a strangercreated a burden on the title. The words “ that they shall sell ormortgage among themselves ” gives each of the-donees a right toinsist that before any other of the donees mortgages or sells to astranger, he shall be given the option of taking the mortgage ofmaking the purchase. They do no more. The prohibition followsthe words directing that the dealing with the shares shall be amongthe donees. It is intended to give effect to that part of the directionthat the mortgaging and selling shall be among the donees. Itdoes not enlarge the right conferred by the words which precede it.It is not an absolute prohibition. The deed does not say that in nocircumstances is the land or any share of it to bo sold to a stranger.It does not place any penalty upon a mortgage or sale in contra-vention of the prohibition. It does not -provide that a forfeitureof the share sold to the benefit of the unoffending donees would bethe result of a' sale in contravention. There are no words in thedeed from'which An inference can be drawn that the donors intendedthat the share sold in contravention should vest in the unoffendingdonee or donees. If that had been the intention, the donors shouldhave made express provision to that effect. There is nothing in
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tiie deed from which the inference can be drawn that the donorsintended that in the event of a mortgage or sale, or in any otherevent, the share conveyed to any one of the donees should pass to theother donees without payment of some consideration. There is nojustification in the language of the deed for concluding that thedonors intended that the land shall be preserved within the circleof the donees. It seems to me, therefore, that the right conferredby the deed upon each of the donees in regard to the shares of theothers was that he might demand the option first of lending moneyupon a mortgage of the shares of the others or of purchasing them.It is a purely personal right, that is, one which oould be asserted byone donee against another. It placed no burden on the land itself.A breach of the right gave rise to an action for damages only, notto pursue the land in the hands of strangers. The right might be de-scribedas a right of pre-emption (for, after all, the right of mortgageresolves itself into one of purchase) enforceable, not for specificperformance, but for damages against the offending donee. If,therefore, any one of the donees had offered to sell his Share to theother donees and they had refused to purchase, he would be justifiedin selling it to a stranger; or if all three donees had joined in sellingall their shares, the purchaser would acquire an absolute title freeof any restraint whatever. Accordingly, if the facts of this case hadbeen other than they are, I would have given judgment for theplaintiff on this ground alone. But the actual facts give rise to astronger ground. The direction about the mortgage and sale isintended for the benefit of the donees to enable any of them if sominded to purchase before others any share which might be sold.It is competent, therefore, for each of them to waive his right so asto release the share of each from any restraint in favour of the others.This it was competent for them to do whether the right be regardedas purely personal or as attaching to the land. The donees accord-ingly could lawfully have entered into the deed of partition. Bythat deed they allotted—eachto theother of them—a definite portionof the land in lieu of the undivided share in all the four lands.Each conveyed title to the other to a defined portion “ absolutely.”The conclusion is irresistible that the intention and effect of thedeed of partition was to confer on each of the donees absolute titleto he portion allotted to him. Mohamado, therefore, derived anabsolute title to the portion in dispute by virtue of the deed ofpartition. Neither his mortgage nor the sale in execution of thedecree founded upon that mortgage was therefore a mortgage orsale in contravention of the deed of donation. The plaintiff istherefore entitled to the land in dispute for this reason.
As there has been a long argument on other aspects of the case,
I would refer shortly to some of the arguments submitted on appeal.
I am unable to agree with the contention that the prohibition against-alienation to a stranger is void under the Entail and Settlement
1921. ,
Bohneideb
A.J.
Naina Lebbev. Maraibar
( 302 )
1921.
SoKNIBXDBB
A.J.
Naina Lebbev. Moraikar
Ordinanoe or under the Oommon law, because the persons to bebenefited by the prohibition are not named, described, or designated.The direction that any mortgage or sale shall be among the doneessufficiently indicates them by name as the persons for. whose benefitthe prohibition was made.
There remains the question whether the restraint upon alienationin this instance belongs to that class of prohibition which are calledpersonal prohibitions in the Roman-Dutch law, and if so, whether .the mortgage by Mohamado was in oontravention of the prohibition.The division of prohibitions which are not nude into personal andreal is well recognized in the Roman-Dutch law, which is applicableto this Colony. The division is founded upon the nature of the fideicommissum created by the prohibition. If that fidei corwmasmn is asingle one (unicum), the prohibition is personal. If it is a" recurring ”{to adopt the translation of the term by MacGregor) fidei commissum(multiplex), the prohibition is called real. In the former case,where it has operated once, the fidei commissum is at an end, whilein the latter the operation recurs from grade to grade of fidei com-mi8$arii1 and is perpetual. The clearest description of the distinc-tion between personal and real prohibitions and their effect is to befound in 8ande ? The distinction is also pointed out by Voet.1But from all that these writers say it is obvious that whether the pro-hibition be personal or realit mustcreate an interest in the thing pro-hibited to bealienatedso that the right can,be asserted inrem. If theright created by thedeed of donation was suchastocreateaninterestrunning with the land, the prohibition against alienation would havefallen into the class of personal prohibitions. I have already givenexpression to my view that the deed of donation fails to create ahinterest in the lands. But granting that the prohibition is onefalling into the class of personal prohibitions, Mr. Samarawickreme’sargument would still failfor two reasons. When Mohamado sold hisone-third share to his brother, the first defendant, in 1912, the latteracquired this share free from any burden whatever, and when here-sold it to Mohamado, the latter also acquiredabsolute title, becausethe prohibition provides that no one of the donees shall alienate hisshare to a stranger, but does not prevent one of the donees alienatingthe share which he has acquired from a co-donee.3 For this reasonMohamado was entitled to deal with his one-third share as he pleasedwithout any restraint. The second reason is that Mohamado acquiredan absolute title to the land in dispute by virtue of the deed ofpartition, and his mortgage thereafter was hot in contravention ofthe prohibition against a mortgage to a stranger, and hence nofidei commissum conditionals was brought into existence by hismortgage.
'
1 Voet 36, 1, 28.
8 Sande, Restraints upon Alienations, Weber's Translation, pp, 176*182,
8 Sande {ib,)t p. 177 (part III., oh. 11, s. 3) ; Voet 36,^1^28~
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I would, therefore, allow the appeal, with cpsts, and direct judg-ment to be entered in favour of theplaintifi assayed for, with costs,but damages to be reckoned at Rs. 15 per mensem. Although theclaim for damages was not contested in the/answer or by an issueor by any evidence, I feel that the sum claimed is excessive.
1921.
ScmrauDXs
A.J.
Naina Lebbev. Maraikar
Appeal (Mowed.
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