071-NLR-NLR-V-13-WIJEMANNE-v.-SCHOKMAN-et-al.pdf
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Present: Mr. Justice Middleton and Mr. Justice Wood lienton.WIJEMANNE v. SCHOKMAN ot al.
34 and 35, D. C., Kalutara, 3,687.
Crown grant with a prohibition against alienation without written consent
of Government — Restriction does not apply to Fiscal's sale —
Purchaser at Fiscal's sale takes land subject 'to the condition as to
inalienability—Estoppel.
X obtained a Crown grant for the land in dispute in 1885, subjectto tbe following conditions:—
(1) That if at any time hereafter it shall happen and be madeapparent, according to the opinion of a majority of nine competentpersons to be assembled by the Government Agent for the purposeof inspecting the same, that the said land has been for one yearneglected and uncultivated, then, and in such case, this grant shallbe utterly void and of none effect.
(3) That X, or his heirs, executors, &c., shall not alienate or assignthe said land without the consent of the Government inwriting
for that purpose, until the whole shall have been brought into acompetent state of cultivation.
Under a writ issued against X the land was purchased by Y in1881; Y sold it to Z in 1890.
In 1898 an assembly of nine persons summoned by the Govern-ment Agent declared the land had been neglected and left unculti-vated for one year, and the Crown considered the grant forfeited,andofferedthe land forsale.Yacknowledgedthe titleof the
Crown to the land.
In1900,A, a grandsonofX,paidthe Crownthe valueof the
land and entered into possession of it, and obtained a certificateof quiet possession in 1903.
In an action for declaration of title by Z against A, it was held—
Thatthe alienation prohibited bytheconditioninclause 9
was restrictedtovoluntary alienations, andnot to necessary
alienation adversely to X at a Fiscal’s sale.
Thatalthough the purchase byY atthe Fiscal’ssale was
not invalid, yet Y bought the landsubject to thecondition of
inalienability imposed by danse (2), and that the private sale byY to Z conferred no title on Z.
That the recognitionofthetitleof the Crown by Yrelieved
the Crownfrom the necessity whichwouldotherwise beimposed
uponit ofenforcing theverdictof the jury bya regularjudicial
decree.
July 27, mo
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Jvly 27,1910 npHE facts of this case are set out in the judgment of Wood
Wijemanne -*• Benton J. as follows*:—v. Sehokman
The inatenal facts in these cases admit of being stated quitebriefly. The plaintiff-appellant in No. 34, who is the respondent inNo. 35, sues for a declaration of title to an undivided two-thirdsshare of a land called Batepottehena, which is described in hisplaint. He derives his claim through a conveyance, No. 424 ofDecember 6, 1006, to him of the share in question by one DonComelis Appuhamy. The land in which the share here in questionis inoluded originally belonged to one Hendrick Perera on a Crowngrant, dated October 12, 1835. Oh two writs issued against hisson Philippu Perera, in one case as heir in possession of his father’sestate, and in the other for a debt of his own, it was sold to oneDon Simon Appuhamy on Fiscal’s conveyances of June 27, 1881,and September 20, 1897. On November IS, 1390, Don Simon Appu-hamy sold the two-thirds share here in disqute to his brother DonCornelia Appuhamy, and, as T have already mentioned, on Decem-ber 6, 1906, he conveyed the property to the plaintiff-appellant.Don Simon Appuhamy is the second defendant-respondent tothe appeal in No. 34; the third to eighth defendants-respondentsto that appeal are the representatives of his six children. Forthe purposes of the appeal in No. 34 they associate themselveswith the plaintiff-appellant, and make common cause with himagainst the first and the ninth defendants, who are the respondentsin both appeals. It may be convenient to point out at this stagethe manner in which the first and the ninth defendants-respondentsmeet the joint cases presented against Jhem by the plaintiff-appellantand the second to eighth defendants-respondents. The firstdefendant-respondent is the son of the ninth; he disclaims all titlein himself to the property in question, and sets up title in hismother, the ninth defendant-respondent, who denies the plaintiff-appellant’s title, alleges that Hendrick Perera’s interest in theproperty was avoided by reason of his failure to comply with acondition in the Crown grant, to which I will presently refer, andsays that it thereafter, namely, in or about the month of July, 1900,.passed to one J. R. Jayesinghe, a grandson of Hendrick Perera,who on October 3, 1901, sold and transferred it to Don SamelisAppuhamy, who in turn, by deed No. 2,076 dated August 3, 1906,conveyed it to the ninth defendant-respondent herself. I may addthat a certificate of quiet possession, under section 7 of OrdinanceNo. 12 of 1840, for the land was granted to Jayesinghe in 1903,and that on January 19, 1909, after the institution of the presentaction, he obtained a formal Crown grant for it. In appeal No. 35the .second to eighth defendants-appellants, who, as I have said,are respondents to the appeal No. 34, set up title as against theplaintiff-respondent, who is the appellant in No. 34. Their claim,with which, in the view that I take of both these cases, it is not
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necessary to deal in detail, may be statedthus.Theysay thatJ'dy27,19l0
Hendrick Perera had a daughter Katherina;thaton February 14,wijmanm
1878, she and her son Uraneris conveyed the land in suit to Don *• SchokmanSimon Appuhamy; that he gifted if in 1907 to bis six children, inwhose shoes they stand, and claim a declaration of title in themselvesas against both the plaintiff-respondent and .the ninth defendant-respondent. Hendrick Perera’s grant from the Crown in 1835contained the following conditions:—'
“ That the said Heftigey Hendrick Perera, hiB heirs, executors,administrators, and assigns, shall from andafterAugust1, 1888,
pay or cause to be duly paid to the use ofHisMajestyone full
tenth part, and no more, of the produce thereof as the Governmentshare of rent thereof, subject, nevertheless, to such generalregulations as Government shall hereafter publish.
“ That if the said Hettigey Hendrick Perera, his heirs, executors,
&c., shall not within three years from the date of this grant welland truly bring the said piece of ground into full and fair cultivation,according to the opinion of a majority of nine competent personsto be assembled by the Government Agent, for the purpose ofinspecting the same at the expiration of the said period, the saidHettigey Hendrick Perera, his heirs, or administrators, or assigns,shall pay and make good on the estimate and appraisement of a .majority of the same persons the full value, of one-tenth .share ofproduce to which Government would have been entitled, if theland had been duly cultivated for each year from the date of thisgrant, and the said grant shall be utterly void and of none effect.
*’ That if at any time hereafter it shall happen and be madeapparent, according to the opinion of a majority of nine competentpersons to be assembled in .the manner described, that .the said land .has been for one year neglected and uncultivated, then, and in suchcase, tbiis grant shall be utterly void and of none effect.
" That the said Hettigey Hendrick Perera, his heirs, executors,administrators, and assigns, shall not alienate or assign the saidland or any part thereof without the consent of Government inwriting for .that purpose until .the whole shall have been broughtinto a competent, state of cultivation.”
A. St. V. Jayewardene, for the plaintiff-appellant in No. 34 andplaintiff-respondent in No. 35.
The prohibition against alienation in the Crown grant doesnot affect Fiscals’ sales. The principle enunciated in Perera v.
Perera 1 applies to the present case. See also Stroud’s JudicialDictionary, p. 65; Sande’s “ Restraints upon Alienation,” part 3,ch. 3, sec. 44; part 3, ch. 8, sec. 13. 1
1 (1906) 9 N. L. R. 217.
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July 27,1910(2> The clause of forfeiture in the Crown grant cannot be enforced
Wijemanne except by judicial proceedings. Perera v. Samaranayake; 1 Perera v.v. Sehokman Perera;* {1871) Vanderstraaten’a Reports 279; Attorney-General v.
Kudatchy;3 Abeyasekera v. Seneviratna; * Woodfall, 15th ed., p. 700.
The Crown never attempted to resume possession of theproperty on the ground that the condition of the grant had beenviolated- The Crown has waived iu this case the right to enforce,forfeiture by its conduct by not enforcing the clause in the case ofprevious breaches of the second condition. Goodright v. David.s
The ninth defendant could not plead the Crown grant of 1909,because the Crown grant bears a date later than .the date of theaction. See Silva v. Nona Hamine,# Ponnamma v. Weerasuriya,7Silva v. Hendric Appu.*
H. A. Jayawardene (with him Prins), for the second to eighthdefendants-respondents in No. 84, and appellants in No. 85.—Thebreach of the second condition of,the Crown grant has been going.on for very many years; the Crown has by its.conduct waived itsright, to enforce the clause as .to forfeiture.
Bawa (with him Illahgakoon), for the first and ninth defendants-respondents in Nos. 34 and 35.—Conditional grants similar tothe present one were recognized by the Boman-Dntch Law. See3 Maasdorp 138; {1871) Vanderstraaten 250. The condition in thisgrant is like a “ covenant running with the land.” See Voet 18,1, 15.Title to property could not pass to any one without the consent ofthe Crown. Even a Fiscal's sale would be obnoxious .to the conditionin tire Crown grant.. In any event the purchaser at the Fiscal’s salecould not pass title to any one without .the consent of the Crown.The Fiscal's sale is void; there is no necessity for a judicial decreedeclaring the Fiscal’s conveyance void; the Fiscal's conveyance isas void as a deed by a fiduciaryis in breach of the fidei commission.The deed is void, and the fidei commissarius need not get a judicialdecree to have the deed declared void. ' [Wood Benton J.—Is itpossible for the Crown to tie up property in such a way as .to preventthird parties from realizing their debts by a Fiscal’s sale ?] The.Crown can attach a condition .to its grant, which is in the nature ofa covenant running with the land.
Counsel cited Voet 18, 3, 24.'
The cases cited do not support .the contention that the Crowngrant in favour of the ninth defendant could not be pleaded by himin this action. In the cases referred to by appellant, the plaintiffswho were unsuccessful claimants came into Court without havingany title at. .the date .of action.
1 (2872) Bom. 58.
* (1907) 10 N. L. B. 230.. 3 (1903) 7. N. L. B. 233..* (1830) 7 S. C. C. 171.
(1778) 2 Cowper 803.
(1906) 10 N. L. R. 44, 49.7 (1908) 11 N. L. R. 217.
(1893) 1 N. L. R. 13.
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H. A. Jayeioardtne, in reply.—The purchaser at the Fiscal's sale July 27,1910did not buy .the land subject to the conditions of the grant- The tvijemannepurchaser is not a privy to the judgment-debtor.v. Schokman
The non-cultivation of the land merely gave the Crown a cause ofaction. The Crown did not take proper steps to have the grantforfeited.
A. St. V. Jayewardene, in reply, cited Woodfall, Landlord andTenant, p. 703; Voet 12, 2, 5; Ramanathan, 1820-33, p. 62.
Our. adv. vult.
July 27, 1910. Middleton J.—
His Lordship set out. the facts, and continued: —
On the issue as .to alienation the District Judge held on theauthority of D. C.} Colombo, No. 55,394,1 that the alienation byHendrick without the written consent of the Government, was void,and that plaintiff bad no title, and dismissed his action with costs.
I am not sure what the learned Judge means by the alienation ofHendrick, as the alienation to Don Simon was a forced sale undera writ of execution, and was not by Hendrick. If, however, hemeans the involuntary sale by the Fiscal in virtue of a writ, I think,following the principle upheld in the Full Court case of Perera v.
Petera,2 that the sale by the Fiscal to Don Simon was not a breachof the condition in .the Crown grant. Under the Crown grant, Ithink that the purchaser a,t the Fiscal's sale. Don Simon, wouldtake Hendrick's interest subject to the conditions of the grant.
The sale, however, by Don Simon to Don Comelis was a voluntarysale, and clearly without the consent of the Government, and on theauthority of the case in Vanderstraaten, ubi supra, relied on by theDistrict Judge, the alienation by Don Simon to Don Comelis mustBe held to be void, and the plaintiff’s title to two-thirds throughDon Comelis barred.
In my opinion the positive ultimate prohibition against alienationin the grant applies only to voluntary alienation, and its repugnancyto the sense of the habeedum clause, where the word “ assigns ” isused, clearly over-rides that sense unless the 6ense is applicable toan involuntary assignment.
The right of the Government to issue conditional grants of thiskind seems to me to be unquestionable, and it was clearly done inthe interests of the community as promoting the cultivation ofthe soil and the ob.taimnent of revenue. Up to this point, then, thetitle is in Don Simon, second defendant, and the question arisesas to his rights to the land as against the ninth defendant.
In Perera v. Samaranayake 5 this very grant was construed, andit was held by a Court of three Judges, presided over by Creasy C.J.,that- the right of the Crown with regard to non-cultivation for one
1 (1871) Vanderstraaten1s Reports 250.8 (1906) 9 N. L. R. 217.
8 (1872) Ram. 58.
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July 27,1910 year had not been waived by omitting to enforce it for a long time,Mxddckcok *nd that ijb might be enforced by the inquisition provided for inJ* the grant.
Wijemanne I think it is clear on the evidence that the second defendant hadv* Schokman no^oe Qf the inquisition here, and that he acquiesced in and acceptedthe decision of the jury of nine, and further, that he agreed andoffered to pay the sum demanded by the Government, and soughtfor and obtained time to do so. It is impossible to say that he didnot accept and assent to the decision obtained by the Crown that hehad incurred a forfeiture of his rights.
In my opinion, therefore, as he acquiesced in the finding of thejury involving a forfeiture declared upon the inquisition, and offeredto pay the money demanded by the Crown which could have noother object than to enable his reinstatement, he intentionallycaused the Crown to believe that he assented to such forfeiture,without requiring legal proceedings .to be taken and to act uponsuch belief, and I think he is now estopped from asserting that suchlegal proceedings were necessary.
In my opinion, therefore, .the plaintiff's title is barred by theclause against alienation in the grant, and Don Simon is estoppedfrom asserting his rights. With Don Simon’s title must pass alsothe alleged title of the third to eighth defendants. This disposesof the appeal under both numbers, which, in my opinion, must bedismissed with costs.
Wood Benton J.—
i
His Lordship set out .the facts, and continued: —
Ij> is found by the learned District Judge, and the evidencesupports his finding, that the Crown did in the year 1898 takethe steps prescribed in the grant by the assembly of a jury of ninepersons .to have it. declared .that the land had been neglected andleft uncultivated, for one year in breach of the second conditionabove quoted; that the jury so assembled returned a verdict tothat effect; and that Don Simon Appuhamy thereafter recognizedthe title of the Crown. The District Judge points out, however,and I agree with him, that this recognition by Don Simon Appuhamyof the title of the Crown, while it might relieve the Crown, fromthe necessity which would otherwise be imposed upon it ofenforcing the verdict of the jury by a regular judicial decree (seeAbeysekera v. Seneviratne;1 D. C., Colombo, No. 55,522; 2 and Bexv. Vanderstraaten3) cannot bind the plaintiff-appellant, inasmuchas, long prior to the inquiry by the jury, Don Simon Appuhamy hadtransferred the land to Don Comelis Appuhamy, through whomthe plaintiff-appellant claims. The District Judge holds, however,
1 (1886) 1 S. C. 0. 171.* (J$7f) Vanderstraaten's Reports 279.
* (1823) Ram. 1820-23, 62.
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that the "alienation by Hendrick without the written consent of July27,1910Government was void, ” and that, therefore, the plaintiff-appellant woodhas no title; he has, therefore, dismissed the plaintiff-appellant’s RentonJ.action, and has left undecided the issue of title as between the wijemanneplaintiff-appellant and the ninth defendant-respondent on the one »• Sehohmanhand, and the second to eighth defendants-respondents in No. 85on the other- It was practically conceded at the argument thatthe only alienation by Hendrick Perera, on which the ninthdefendant-respondent can rely here,- is to be found in the Fiscal’ssales against his estate and against his son Philippu, and theargument was conducted before us on that basis. -I am clearly ofopinion that the alienation prohibited by the third above-citedcondition in the Crown grant must be restricted to voluntaryalienation, and would not include necessary alienation, adversely tothe grantee, at a Fiscal’s sale (see Perera v. Perera *), and that DonSimon Appuhamy cannot be regarded as an " assign " of HendrickPerera within the meaning of the prohibition that we have here tointerpret. On the other hand, all that Don Simon Appuhamycould take at the Fiscal’s sale was the right, title, and interest of hisjudgment-debtor. In the present case that right, title, and interestwas subject to the condition of inalienability imposed by theCrown in the grant of 1835. Even if we assume, therefore, that theproperty passed into the hands of Don Simon Appuhamy adverselyto the judgment-debtor and by operation of law, he could takenothing but what the judgment-debtor had to give that is tosay, property to which a conditional prohibition of alienation—a.prohibition which in the present case had been brought into forceby a breach of the condition—had been attached. He had,therefore, no right to dispose of the property to Don CorneliaAppuhamy, and Don Cornelis in turn could give no right to it tothe plaintiff-appellant.
I think, therefore, although on grounds different from thoseadpoted by the learned District Judge, that the present action hasbeen rightly dismissed. As regards the position of the second tothe eighth defendants-respondents in No- 34, I entirely agree, as Ihave already said, with the finding of the District Judge on theevidence, that Don Simon Appuhamy did in fact acknowledge thetitle of the. Crown to the property in suit subsequent to the inqui-sition of 1898. A clear ground of forfeiture had been established;an inquiry within the meaning of the Crown grant had been held.
The result was notified to Don Simon. The land was offered tohim by the Crown at the appraised value of Bs. 30 an acre; hepetitioned the Governor, asking for a month’s. time to pay at therate of Bs. 20 an acre. It was clearly intimated to him by theGovernment that, in the event of default, oilier claimants wouldbe allowed to pay for the land. Taking all these circumstances
1 (1906) 9 N. L. It. 217.
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July$1,1910 together—the inquisition, the offer of the land to Don SimonAppuhamy, his own attitude to that offer, the intimation to himRbmoN j. that if he made default the land would be sold to some one else,II'ijemanne aQd the subsequent sale in fact to Jayasinghe—-I have no hesitation». Schokman in holding that they clearly show both the intention of the Crownthroughout these proceedings to treat the breach of condition as aforfeiture of the grant, and Don Simon Appuhamy’s full knowledgeof and acquiescence in these facts. I think that Mr. Hector Jaye-wardene’s argument that these proceedings disclose a waiver of theforfeiture on the part of the Crown, or at the worst a mere claim onDon Simon Appuhamy for damages, is untenable. No authoritywas cited to us, and I am aware of none, which imposes upon theCrown the duty of taking formal legal proceedings on the groundof forfeiture against a grantee, who himself acknowledges by hisconduct that a forfeiture has been committed, and proceeds to treatwith the Crown on a basis entirely different from that on whichthe original grant rests. I should, perhaps, add that it clearlyresults from the case of Perera v. Samamnayake 1—a case turningon the construction of the very grant with which we are hereconcerned—that the right of the Crown to avail itself of a forfeitureon breach of the second condition is enforceable at any time by theprocedure provided by the grant, continuing non-cultivation beingti continuing cause of forfeiture.
On the whole, I would hold, first, that the plaintiff-appellant couldderive no title through Don Comelis Appuhamy and Don SimonAppuhamy, in view of the condition of inalienability and the clearevidence that all the circumstances necessary to bring that conditioninto operation were present; and in the second place, that DonSimon Appuhamy and all the other defendants-respondents whoclaim under him are estopped from denying the title of the Crownto grant the land to Jaye&inghe, of Jayesinghe in turn to disposeof it to Samelis Appuhamy, and of the latter to transfer it tothe ninth defendant-respondent. In these circumstances, there isno need to consider the other questions raised in appeal No. 35-I would dismiss both appeals with costs.
Appeals dismissed.
» {1872) Ram. 58.