101-NLR-NLR-V-43-PIYASENA-v.-UKKUWA.pdf
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JAYETILEKE A.J.—Piyasena v. Ukkuwa.
1942Present: Jayetileke A.J.
PIYASENA p. UKKUWA.
67—C. R. Gampola, 5,416.
Agreement to pay money—Possession of land in lieu of interest—Agreementnon-notarial—Action to recover money—Proof of agreement—Prescrip-tion.
In an action to recover money lent, an agreement by the borrower topay the money and to allow the lender to possess a land in lieu ofinterest may be proved in order to prevent the running of prescription,although the agreement is non-notarial.
Nagamulhu v. Sittambarampillai (33 N. L. R. 151), followed.
£^ PPEAL from a judgment of the Commissioner of Requests, Gampola.
E. B. Wickremanayake (with him M. M. Kumarakulasingham), forplaintiff, appellant.
No appearance for defendant, respondent.
Cur. adv. vult.
July 7, 1942. Jayetileke A.J.—
The plaintiff has brought this action to recover from the defendanta sum of Rs. 30, which he alleges he lent to the defendant on a documentP 1, together with a sum of Rs. 5 as interest. The document which is inthe Sinhalese language.has been translated as follows: —
“ The purport of the promissory note written. and granted on this7th day of June, 1925, is as follows: I, the under-signed, Udage Ukkuwaof Deluntalamada in Rambode korale, being in need of money haveborrowed and received without deficiency the sum of rupees thirty oflawful money of Ceylon from G. M. Piyasena of the said korale and inlieu of interest of .the said sum it is agreed that the income and produceof the western one pela paddy sowing extent of the field called Bittera-pola belonging to me, the said Ukkuwa, shall be taken by him. If I donot pay the said sum and get this note redeemed I do hereby agree to bebound by the law.
To this effect.On a six cent stamp.
30.
Ukkuwa.
Signed. K. U. G. Gunaratne Vidane1925.7.
Signed. W. P. Hinni Appuhamy.”
Though the body of the document is prefaced by the expression“ promissory note ”, the plaintiff has treated the document not as apromissory note but as an agreement in writing to pay money. He mayhave done so because it does not contain an absolute promise to paymoney. In the concluding part of the document, the defendant hasagreed to be bound by the law if he failed to pay and redeem the note.There is, it seems to me, necessarily implicit in that agreement a promiseby the defendant to pay-the amount that is due.
The defendant, among other defences, pleaded that the documenton which the action was brought was obnoxious to the provisions ofsection 2 of the Prevention of Frauds Ordinance (Cap.57) and that noaction could be maintained on it.
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*430JAYETILEKE A.J.—Piyasena v. Ukkuvia.
The plaintiff,. thereupon, amended his plaint and claimed in thealternative the said sum of Rs. 30 as money lent and advanced by himto the defendant. That claim was based on the lenders’ right to maintainan action to recover the amount lent by him independently of any writinghe may have obtained from the borrower.
At the trial the defendant suggested the following issues : —
Can the plaintiff maintain this action on the document in question,
dated 7. 6. 25 ?
Does the document in question contravene the provisions of Ordi-
nance No. 7 of 1840 ?
Is the document properly stamped ?
Can the document be tendered in evidence in this case-?
Is the claim in the document prescribed ?
The Commissioner adopted the said issues and made the following r.oiein the record : —
“ At this stage the proctors agree to drop Issue No. 5. They also
agree that the case proceed to trial on Issues 1 and 4 and then judgment
entered either way ”.
The Commissioner and the plaintiff’s proctor have apparently lost sightof the issue that arose on the alternative cause of action.
After hearing argument the Commissioner held against the plaintiffon issues 1 and 2 and dismissed his action with costs. He was of opinionthat as P I was not notarially executed no action could be maintainedon it. He thought it unnecessary to consider the other two issues thatwere framed.
It seems to me that the Commissioner has taken an erroneous view ofthe meaning of section 2 of the Prevention of Frauds Ordinance. That,section renders a non-notarial contract or agreement for establishing anyinterest affecting land or other immovable property unenforceable. If theplaintiff had sought to enforce the agreement contained in P I, that in lieuof interest on the loan he should be given the right to take the produce ofthe field, section 2 of the Prevention of Frauds Ordinance would havestood in his way. The plaintiff sued in this action to recover the moneylent by him to the defendant and relied on P I to prove the loan and thepromise to repay it.
In my opinion, P I is admissible for that purpose. It has been heldin the case of Nachchia v. Nachchia that a kadutham reciting a gift ofproperty, although a non-notarial instrument, and therefore inadmissibleas. a document of title under Ordinance No. 7 of 1840, may be receivedin evidence to prove an overt act and a change in the character of posses-sion on which to base a title by prescription. • .
In order to take the case out of prescription the plaintiff sought toestablish by oral evidence that up to the year 1940 he took the income ofthe field in lieu of interest. That he was entitled to do (see Nagamuthuv. Sittambarampillai'). I would set aside the judgment appealed fromand send the case back to the Court below for adjudication on Issues 3and 4. The plaintiff is entitled to the costs of January 9, 1942, and ofthe appeal.
<Appeal allotwed.
1 1 Curr. Law Rep. p. 77.* 33 77. L. If. lot.