CANEKERATNE J.—Babun Nona v. Starrex'
1948Present: Canekeratne and Nagalingam JJ.BABUN NONA el al., Appellants, and STARREX, RespondentS. C. 83—D. G. Kandy 2,415
PrescriptionContract to pay money on the happening of an event—When
prescription begins to run.
In the ease of a contract to pay a sum of money upon the happeningof a certain event, prescription does not begin to rim until the eventhas occurred.
.A.PPEAL from a judgment of the District Judge, Kandy.
E. B. Wikramanayake,K.C., with M.Markhani, for plaintiffs, appellants.
Cyril E. 3. Perera, with M. A. M. Hussein, for defendant, respondent.
October 6, 1948. Canekeratne J.—
This is a question relating to compensation for clearing and plantinga land, against the defendant. The defendant took up several defences,as the learned Judge states, in his answer, some of which were that theagreement was unenforceable as it was non-notarial, that the land wasnot planted by the plaintiffs, and that the action was prescribed. Thelearned Judge has found that the land had been planted in terms of theagreement and that the defendant had the benefit of the plantation andof the work done by the planters. He, however, held in favour of thedefendant on the question of prescription and dismissed the actiongiving no costs to the defendant. The action was instituted on September16, 1946.
The agreement was entered into on October 4, 1937, and “ the lease ”was for a period of five years. The persons who agreed to plant theland undertook after receiving payment for the trees planted to giveover the land to the defendant; the rate of compensation was to bedetermined according to the height of the trees, at the time of delivery.To assess the sum payable it was thus necessary to count the numberof trees and ascertain their height. The evidence of the plaintiffs’conductor shows that the land was planted and handed to one DingiriBanda in 1943, or according to one of the plaintiffs at the end of 1942.The defendant’s evidence was that he took possession of the land atthe end of 1944 after he obtained a report from Kapuwatte (Dl) ;he denied that Dingiri Banda took charge of the land from the plaintiffs.It can hardly be contended that Dingiri Banda had authority from thedefendant to agree on the amount of compensation for an examinationof the plantation and an assessment had to be made previously. DingiriBanda in taking charge of the land may have acted in an independentcharacter or in a derivative character. If he took charge of the landintending to do so on behalf of the defendant, it would be competentfor the defendant to accept this act or to repudiate it. The properinference to be drawn from his evidence and the other circumstancesis that he refused to accept the act of Dingiri Banda. The latter then
CANEKS/RATNE J.—Tiabun Nona v. Starred
would be holding the land in an independent character or by permissionof the plaintiffs. The contract being to pay a sum of money upon thehappening of a certain event, where the amount payable had to bedetermined in a certain way by the defendant with the assent of theplanters, the statute of prescriptions would be inoperative until theparticular event has occurred. A reasonable time must elapse after thehanding over of the land to Dingiri Banda even if he had impliedauthority to take charge of the land. The defendant did not visit theland for at least eighteen months after the middle of 1942. The learnedJudge comes to the conclusion that the defendant did not send a letterto the heirs of James Silva and that anticipating a claim for compensationhe requisitioned the services of Kapuwatte. All these circumstanceslead one to conclude that the action was filed within the period requiredby the statute.
Judgment will be entered in favour of the plaintiffs as prayed for withcosts in both Courts.
Nagalwgam J.—I agree.
BABUN NOONA et al., Appellants, and STARREX, Respondent