080-NLR-NLR-V-44-CASSIM-Appellant-and-NATCHIA-Respondent.pdf
WIJEYEWARDENE J.—Cassim and Natchia.
307
3943Present: Wijeyewardene J.
CASSIM, Appellant, and NATCHIA, Respondent.
184—A. C. R. Matara, 21,474.
Agreement to give produce in lieu of interest—Sale of land subject to leave—Ordinance No. 7 of 1840 (.Cap. 57) s. 2.
Where the defendant agreed by an informal writing to deliver to theplaintiff a certain quantity of paddy a year in lieu of the produceobtainable from a property, which was sold by the former to the latterand which was subject to a lease at the time of sale,—'
Held, that the agreement was not obnoxious to the terms of section 2of the Ordinance for the Prevention of Frauds, No. 7 of 1840.
^ PPEAL from a judgment of the Commissioner of Requests, Matara.
H. Wanigatunge (with him C. Gnanapragasam), for plaintiff, appellant.
M.I. M. Haniffa, for defendant, respondent^ *
Cur. adv. vult.
April 12, 1943. Wijeyewardene J.—
This appeal raises the question whether the plaintiff is prevented fromenforcing his claim on the document P 1, as it was not executed in termsof section 2 of Ordinance No. 7 of 1840.
The defendants sold to the plaintiff two parcels of land lots C and E—by deeds P 2 and P 3 of November 30, 1935, for Rs. 500.'- At the time ofthe transfer, lot C and 3/5th shares of lot E were subject to a lease infavour of one Martin up to March, 1938. As the defendants were unableto give quiet possession of the lots to the plaintiff during the period ofthe lease, they undertook to give him 10 amunams of paddy a yearduring that period “ in lieu of interest ” on the sum of Rs. '500 as admittedby the defendants in paragraph 4 of their answer. The document P 1
308WIJEYEWARDENE J.—Cassim dnd Natchia.
was executed by the defendants on December 4, 1935, embodying thatagreement and it states :
“That (the defendants) have agreed to deliver unto (the plaintiff)10 amunams of paddy a year from the date hereof until the 1st day ofMarch, 1938, for and in lieu of the produce obtainable from theproperty . . . . ”
In September, 1936, the plaintiff executed lease P 5 in favour of Martinin respect of the 2/5th shares of lot E which were not subject to a lease' at the. time of the transfers in his favour. That lease was for a periodof four years from March 1, 1937, at a yearly rental of Rs. 35.
The plaintiff filed this action stating that the defendants failed to givehim 20 amunams of paddy for the two years ending December 3, 1937,and thus committed a breach of the agreement P 1. He claimed Rs. 200as the value of that quantity of paddy. Relying on the decision ofCharles v. Baba1 the Commissioner of Requests held that the documentP 1 was of “ no force or avail in law ”, as it had not been duly attestedby. a notary, and dismissed the plaintiff’s action with costs.
The Commissioner erred in regarding Charles v. Baba as anauthority for the proposition of law enunciated by him. The Legislatureenacted section 2 of Ordinance No. 7 of 1840, providing that agreementsaffecting an interest in lands, other than a lease at will or a lease for aperiod not exceeding one month, should be executed before a notary.Thereafter, the view was expressed at one time that the Ordinance didnot govern agreements for the cultivation of lands in anda as it wasthought' that the Legislature could- not have intended to discourageagriculture and cause unnecessary hardship to villagers by requiring themto execute notarial documents in respect of such agreements. (VideElias v. Joronis s) < That view was, however, finally rejected by the FullCourt in Meragalpedigedera Saytoo v. Owitigedera Kalinguwa*, which’ decided that an agreement for the cultivation of land in anda was “ anagreement for establishing an interest affecting land ” within the meaningof section 2 of Ordinance No. 7 of 1840, and required notarial execution.Shortly afterwards, the Legislature met the situation created by thatdecision by passing Ordinance No. 21 of 1871, as it thought—to cite thewords of the preamble—“ expedient to exempt certain contracts forthe .cultivation of paddy fields and chena lands from the operation ofOrdinance No. 7 of 1840”. Section 1 of Ordinance No. 21 of 1871reads,T-
“ The provisions of section 2 of the Ordinance No. 7 of 1840 shallnot be-taken to apply to any contract or agreement for the cultivationof .paddy fields or chena lands for any period not exceeding twelvemonths, if the consideration for such contract or agreement shall bethat the cultivator shall, give to the owner.of such fields or lands anyshare or shares of the crop or produce thereof. ”
That section with certain verbal amendments appears now as section3 (1) of. the Prevention of Frauds Ordinance. Subsequent to the passing
1 22 N. L. R. 189.* 7 S. C. Cir. 71.
3 (1887) 8 S. C. Cir. 77.
WIJEYEWARDENE J.—Cassim and Najxhia.
309
of that Ordinance in 1887, this Court had to consider in some cases theclass of contracts which are thereby saved from the operation of sec-tion 2 of Ordinance No. 7 of 1840. These cases proceeded on the rule ofconstruction that as the later Ordinance was in the nature of an exceptionto the general law laid down in section 2 of Ordinance No. 7 of 1840,the later Ordinance should be given a strict interpretation so as notto extend the class of agreements to which it was intended to apply(Vide de Silva v. Thelenis *). The report of Charles v. Baba (supra) doesnot set out fully the facts of that case, but in view of the reference madein that case to de Silva v. Thelenis I think that Schneider J. dealtthere with the nature of evidence necessary to establish an agreementfor the cultivation of a paddy field where the consideration for the contractwas an undertaking by the cultivator “to deliver 16 bags of paddy ortheir value, Rs. 80 ”.
The facts of the present case are entirely different. This case doesnot involve an agreement for the cultivation of land or affect any interestin land. We have here merely a promise by the defendants to give acertain quantity of paddy by way of interest on the sum of Rs. 500 paidby the plaintiff. I fail to see how the provisions of Ordinance No. 7of 1840 could possibly apply to such a case.
The plaintiff is, therefore, entitled to claim from the defendants thesum of Rs. 200 on P 1 in view of the Commissioner’s findings on facts.The plaintiff should, however, deduct from that amount the sum ofRs. 35 obtained by him under P 5 for the year ending March, 1938, as thedefendants agreed to give him 10 amunams of paddy a year to makegood the loss sustained by the plaintiff’s failure to get possession of theentirety of the lots C and E.
I set aside the decree of the lower Court and direct judgment to beentered for the plaintiff for Rs. 165. The plaintiff is entitled to costshere and in the Court of Requests.
Appeal allowed.. 1
13G. w. R. 130.