SIMON CHRISTOPHER JAYAWARDENE Vs. ALFRED CHRISTY JAYAWARDENE

JUDGEMENT

(1.) The appellant in this action, who was also the plaintiff, is one of the sons of the late J.V.G.A.W. Jayawardene, Gate Mudaliyar. The first three respondents are also his sons. The deceased man was apparently a considerable landowner in the Island of Ceylon, and amongst his other properties was tenant under the Crown by an indenture No. 29 executed on 29th October 1919, and on 23 February 1920, by the respective parties, of a certain allotment of Crown land called Kajugahaudumulleduwa, Kajugahaudumullelanda and Galagodakele in Maggon Badda, Kalutara Totamune and Eladuwa Village, Iddagoda Pattu, Pasdun Korale West, Kalutara District, Western Province. The lease was entered into by the Governor of Ceylon on behalf of the Crown as lessor on the one part and by the deceased man as lessee (an expression which was stated to include his heirs, executors, administrators and permitted assigns) of the other part. The estate was to be held in perpetuity subject to the covenants and general provisions contained in the lease. The covenants contained provisions for clearing and planting, paying rent, and the non-erection of buildings on the land. The tenth covenant must be set out in full. It read:

(2.) 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, and every such sub-lease, 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 arrear for the space of more that one year after the time hereby appointed for payment thereof, whether the same shall have been lawfully demanded or not, or if any breach shall be committed by the lessee of any of the covenants herein on the lessee's part contained, or if the lessee shall abandon or cease to cultivate the said land in manner provided in part IV of this lease, or if the lessee shall become bankrupt or compound with his creditors or if the said land or the interests of the lessee or his aforewritten be sold in execution of a decree against him or his afore- written, then, and in any of the said cases, this demise and the privileges hereby reserved, together with these presents, shall forthwith cease and determine, and the lessor, his agent or agents, may thereupon enter into and upon the said land and premises, or any part thereof in the name of the whole, and the same have, re- possess and enjoy as in his former estate, and the said land and premises shall forthwith revert to the Crown without any claim on the part of the lessee or his aforewritten against the lessor for compensation on account of any improvements or otherwise howsoever.

(3.) The deceased man took possession under the lease and continued in possession until his death on 19 January 1930. Meanwhile, in May 1927, he was for some reason anxious to make a deed of gift of the whole or at any rate a largo portion of his properties to his four sons in equal shares, and amongst those properties he desired to include the Crown lease. Accordingly, he wrote on 16 May 1927 to the Assistant Government Agent asking that permission to assign might be granted. Without waiting for the permission to be obtained, however he executed four deeds of gift between 27 and 30 May 1927, giving one quarter of his estates to each of his four sons. Each donation was subject to his own life-estate and to each was attached a fidei commissum. These deeds included the Government lease amongst the properties given and were in identical terms save in one matter. That in favour of respondent 2 recited that his father had applied for and obtained the written consent of the Governor, whereas the other three recited only that he had applied for such consent. The Government Agent did not reply until 27 July 1927, when he asked to be furnished with a draft of the proposed deed and laid down certain conditions upon which alone permission would be granted. He ended by saying that the donee should understand that the lease was liable to cancellation for any default. The deceased man did not comply with the Government requirements but endeavoured without success to persuade the Government authorities that the deed was in order. When he failed in this attempt, he caused four deeds of cancellation to be prepared and apparently a draft copy was sent to the Government Agent. Finally on 8th March 1928 the Agent returned the draft copy and wrote in the following terms : Sir, I have the honour to return the draft deed of cancellation and to inform you that the deed of gift already executed of your own accord is invalid by reason of Government consent not having been given thereto. If you are legally advised that cancellation is necessary, no question of obtaining Government consent arises. I am, Sir, Your obedient Servant, (Signed) E.T. DYSON, Assistant Government Agent.