030-NLR-NLR-V-45-JAYARATNE-et-al.-Appellants-and-GUNARATANA-THERO-Respondent.pdf
Jayaraine and Gunaratana Thera.
97
1944Present: Soertsz, Hearne, and Jayetllake JJ.JAYABATNE et al., Appellants, and GUNABATANA THEEO,
Bespondent.
104—D. C. Kurunegala, 18,780.
Servicetenure—Commuteddues—Paravenipanguwa ofnindagama—In-divisible obligation—Service Tenures Ordinance (Cap. 323), ss. P, 10,14
and 16.
The obligation to pay dues attached to the paraveni panguwa of anindagama is indivisible and is exigible from any of the nilakarayassubject to his or their right to claim contribution..
T
FTIS case was referred to a Bench of three Judges. The facts appearfrom the argument.
E. B. Wikremanaydke (H. V. Perera, K.C., with him and H. Waniga-tunge), for the substituted-defendants, appellants.—The main questionfor consideration is whether the obligation of -paraveni nilakarayas to paycommuted dues is divisible or indivisible, i.e., whether one or moreout of several nilakarayas are liable to pay the entire commuted duesfixed under section 15 of the Service Tenures Ordinance (Cap. 323).There are conflicting decisions on this point. The cases which have abearing on this question are 1877 Ram. 131; 1877 Ram. 395; Asmadaleet al. v. Weerasuria 1; Appuhamy et al. v. Menike et al.2; Banda v. AmirHamby 3; Martin et al. v. Hatana et al.*. The correct view would bethat when the primary obligation to render services is converted into asecondary obligation to pay commuted dues the debtors would be boundeach for his part only. Pothier 2, 4, 3, 1 which is referred to in WalterPereira’s Raws of Ceylon (1913 ed.) p. 590 is not considered in the reportedcases. .None of the sections in the Service Tenures Ordinance gives thenature of the obligation. The general rule is that, unless otherwiseexpressly agreed upon, the liability of co-obligors is joint merely and notjoint and several, and each co-obligor is only liable for his share of thecontract and not for the whole contract in solidum—Gunasekere v.Gunasekere5.
N. Nadarajah, K.C. (N. E. Weerasooria, K.C., with him, Ivor Missoand S. R. Wijayatilake), for the plaintiff, respondent.—The unit which isliable is the pangu and not the individual nilakaraya. The questionwas considered recently in Bandara et al. v. Dingiri Mentka et al.6. Forpurposes of service the panguwa, whatever the number of the co-heirsmay be, is indivisible and the co-heirs are jointly and severally liable forthe service—H. W. Codrington’s Ancient hand Tenure in Ceylon, p. 3.If the services Eire commuted the character of the liability is not altered.Sections 10, 15, 24 and 25 make the position clear. When there iscommutation what takes place is a substitution of the primary obligation;it is not a conversion of a primary obligation into a secondary obligation.
(1905) 3 Bed. Bep. 51.*(1913) 16 N. L. R. 92.
» (1917) 19 N. L. R. 361.*(1941) 43 N. It. R. 73 at75.
* (1914) 3 BaZ. N. C. 24.•(1943) 44 N. L. R. 393.
4 /.*. A 93349(11/49)
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SOEBTSZ J.—Jayaratne ■ and Gunaratana Thero.
Compare, for example, the obligation of the co-heirs of a mortgagorwhen the latter dies—Wille’s Mortgage and Pledge in S. Africa {1920)p. 267; Vnguhamy v. Hendrick1; Asmadale et al. v. Weerasooria {supra),Martin et al. v. Hatana et al. {supra) and Appuhamy et al. v. Meriike et al.{supra) are applicable in the present case. The proprietor can proceedagainst any one of the nilakarayas; the latter would have the right ofcontribution against the other nilakarayas.
E. B. Wikremanayake in reply.—The correct test is, if an obligationis capable of being divided into parts the liability will be pro rata—Ramalingam v. James 2 ; Fanis Appuhamy v. Selenchi Appu et al.3.
If the unit which is liable is the pangu, all the nilakarayas of the fourpangus in the present case ought to have been joined as parties.
Cur. adv. vult.
January 19, 1944. Soertsz J.—
The plaintiff who is the Viharadhipathi and Trustee of MaraluwaVihare is seeking to recover from the defendants who are the presentowners of the land known as Maraluwa -estate, the entire commuted duesfixed under the Service Tenures Ordinance as payable in respect of fourpangus of a Nindagama of which Maraluwa Vihare is the overlord, theplaintiff’s case being that some of the lands of those pangus are includedin Maraluwa estate.
In view of the admissions made at the trial and of the Judge’s findingit is clear that some of the lands of the four pangus are within Maraluwaestate. But the defendants’ case, as presented to us, is that even so,the plaintiff must fail, firstly, because his action is barred by section 24of the Service Tenures Ordinance, the defendants and their predecessorsnpt having paid any commuted dues for over ten years, or, secondly,because, if they are liable their liability is no greater than to pay in theproportion that the lands of these pangus which they hold bear to all thelands of those pangus and that, therefore, the plaintiff’s proper coursewas to sue all the nilakarayas.
These contentions raise, once more, questions which have been con-sidered by this Court on several previous occasions but, unfortunately,with divergent results. This conflict of views is, however, hardlysurprising for, although the land tenures with which we are here con-cerned appear to have fitted naturally into the social and legal systemswhich called them into being, they are strange to the Roman-Dutch lawand the attempts made in some of the earlier cases to solve these, questionson the analogy of Roman-Dutch law principles have proved unsatis-factory. They are attempts to put new wine into old bottles.For
instance, in the earliest of the cases cited to us, 1877 Ram. p. 131, theargument of Counsel for the successful appellants was based on theRoman-Dutch law principle that if solidity of obligation is intended itshould be expressly provided for, and that if it is not, the general ruleapplies that each of the persons bound is liable pro rata. Although thejudgment of the Court in that case does not expressly enunciate thisproposition, it seems clear that the Court took that to be the law when
1 {1930) 11 C. Law Rec. 54.1 (1939) 40 N L. R. 480.
* (1903) 7 N. L. R. 16.
SOEBTSZ JJayaratne and Gunaratana Thcro.
99
it said that “ it was not aware of any law or custom in whioh one ofseveral Nilakarayas of a panguwa is liable to render services for thewhole panguwa that isi to say for himself as well as for his eo-tenants ”,and thereby implied that in the absence of any law or custom relating tothese tenures to the contrary, the Roman-Dutch law applied. Thisruling was followed by one of the Judges who took part in that case,in the later case reported at page 395 of the same volume. But when thequestion came up again, many years later, in the case of Asmadale v.Weeraaooria1 Pereira J. took a very different view. He held that“ the liability of the tenants of a panguwa is a joint liability. At the sametime, the ' services in their nature were indivisible and therefore theobligation to pay the commuted dues must be regarded as an indivisibleobligation ”. This ruling was followed by Lascelles C. J. in Martin et al. v.Hattana et al.3 and by Ennis J. in Appuhamy v. Menike3. If I maysay so with respect this view, that the obligation to pay the commuteddues is an indivisible obligation, appears to me to be the correct viewin the light of the provision of the Service Tenures Ordinance itself, andnot for the reason given by Pereira J. that the services being indivisible,it necessarily followed that the alternative or secondary obligation wasindivisible. Logicallythatreasoningseems to meto involvea non
gequitur and as a generalpropositionof law, it isopposed toseveral-
instances- to the contrary adduced by Pothier.
But as I have observed the Service Tenures Ordinance makes it'-sufficiently clear that the services as well as the dues are attached to thepanguwa and are indivisible and owed jointly and severally by the-nilakarayas and are exigible from any of them subject to his or theirright to claim contribution. Sections 9 and 10 of the Ordinance providefor the ascertainmentand registrationof the natureand extentof the
services in relation toeachpangu. Sections 14 and15 make itclearer
still that the unit is the pangu and not the Nilakaraya for section 14requires the application for commutation in the case of a pangu withseveral or many Nilakarayas to be made or acquiesced in by a majorityof those above sixteen years of age, and section 15 requires the Com-missioner to ascertain as far as practicable whether all the Nilakarayasabove 16 years of age desire the commutation. Both these requirementswould surely be out of place, if it were intended to leave it open to one ormore of the Nilakarayas to commute his or their services for a pro rata pay-ment of dues. Section 15 goes on to say that once commutation, has .beendetermined and fixed ” the Nilakarayas shall be liable to pay theproprietors …. the annual amount of money payment due forand in respect ofthe services; and such commuted dues
shall thenceforth be decided to be a head rent due for and in respect of thepangu ”. That, as I understand it, makes the pangu “ the head ” orthe unit. This view is supported by the terms of section 25 whichprovides the remedy of a proprietor when there is default of paymentof the commuted dues. It enacts that if the dues be not paid, theyshall be recovered by “ seizure and sale of the crop or fruits on thepangu or failing these by the personal property of the Nilakaraya or
M1905) 3 Bal. Rep. 51.• (1912) 16 A*. L. R. p. 92.
* (1917) 19 N. L,. R. p. 3(11.
100
Silva and Fernando.
failing both by a sale of the pangu The crop and fruits on the wholepangu, and ultimately the whole pangu itself being- made liable it followsthat the proprietors may seize and sell any part ef the crop and fruitsor any part of the pangu.
The question then is whether in a ease such as this where the pro-prietor elects to go against a particular nilakaraya and, by so doing,to limit his remedy to part of the fruits and erops on the pangu or to thepersonal property of that nilakaraya, and to the lands of the panguin his possession, he must nevertheless join all the nilakarayas as co-owners. In regard to that question, I do not think we need embarrassourselves with it in this case for, on the evidence accepted by the trialJudge, it seems clear that the defendants and their predecessors haveacquired a prescriptive title to those lands of these pangus which liewithin Maraluwa estate as against the original nilakarayas and theirsuccessors.
I am therefore of opinion that the plaintiff was entitled to sue thedefendants to recover the entire dues and to sue them in this instancewithout joining the other nilakarayas or their successors.
The other question is that arising from the plea of prescription set upby the defendants as against the overlord. That plea must fail inas-much as, on the finding of the trial -Judge, some part of the dues has beenrecovered by the overlord by action or otherwise in respeet of lands ofthese pangus within the last ten years and therefore the condition onwhich a successful plea of prescription against the overlord is madedependent, is not satisfied.
I would dismiss the appeal with costs.
Hearne J.—I agree.
Jayatileke J.—I agree.
Appeal dismissed.