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Present: De Sampavo A.J.
ELIYAS v. SAVUNHAMY.
178—C. R. Tangalla, 7,387.
Agreement'to cultivate laud and share the produce—Fructus industriales—
Must agreement be notariat ?
The plaintiff and defendant entered into a mutual agreement tocultivate the defendant's land,wherebythe plaintiffwasto receive
3-Sths share oftheproduceand the defendant.5-8tbs share . of
the produce which may be derived therefrom by their joint labourand industry. The plaintiff alleged that plaintiff and defendantjointly cultivatedtheland intermsof the agreementsince 1907
with citronella, pineapple,' &c., and that they took their respectiveshares till January, 1911, when defendant unlawfully appropriatedthe whole crop.
Held, that the agreement created an interest in land, and thatthe action wasnotmaintainable inthe absenceofa notarial
De Jong, for plaintiff, appellant.
Samarawickreme, for defendant, respondent.
Cur. adv. vult.
-June 24, 1914. De Sampavo A.J.—
The question for consideration is whether the agreement on whichthe plaintiff sues involves an interest in land so as to require anotarial instrument under Ordinance No. 7 of 1840. The plaintstates that “ in 1907 the plaintiff and the defendant entered intoa mutual agreement to cultivate the defendant’s land Bukattana-gahahena whereby the plaintiff was to receive 3-8ths share
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of the produce and the defendant 5-8ths share of the producewhich may be derived therefrom by their joint labour and industry.”It is further stated that under the agreement the plaintiff anddefendant jointly cultivated the land with citronella, pineapple,6weet potatoes, xnyokka, and arrowroot, and proceeded to allegeas a cause of action that the plaintiff and defendant took theirrespective shares and continued in the enjoyment of the land untilJanuary, 1914, when the defendant unlawfully appropriated thewhole of the crop and refused to give the plaintiff his share ofthe same.
The defendant took the objection that the 'agreement not beingembodied in a notarial instrument was not enforceable at law, andthe Commissioner decided the issue stated on this point against theplaintiff and dismissed the action.
Counsel for the plaintiff-appellant submitted that an agreementrelating to fructus industriales, such as those mentioned in the plaint,did not require to be in writing notarially executed, and citedDe Silva v. Wasanahami1 and Perera v. Ponnatcki. 2 In the first ofthese cases it appears that the party was in actual possession of achena which the Crown claimed, and the Court decided .that thegrowing fructus industriales were presumably the property of thepossessor who had raised them, and that the sale of the land by theCrown did not pass to the purchaser the right to the standing crops.The second case related to the sale of a single tobacco crop, whichit was held might be effected without a notarial writing- I do notthink that either of these decisions applies to the circumstances ofthe present case. As a matter of fact, the agreement between theplaintiff and the defendant was constituted by a non-notarialwriting, which was produced by the plaintiff for the purposes ofthe argument in the Court below; and it is clear from the avermentsin the plaint as well as the document that the agreement betweenthe parties did not relate merely to a single growing crop or even asingle season, but extended to an indefinite period of future culti-vation, and that it established in effect a kind of partnership inland. The plaint even shows that this partnership, as a matterof fact, continued for seven years previous to this action. In myopinion !the agreement created an interest in land and requirednotarial execution. In Perera v* Mudalihamy 3 it was even heldthat the sale of coffee growing on trees required' a notarial writing,and an agreement to cultivate a paddy field in anda was similarlyregarded in Saytto v. Kalinguwa 4 which led to the enactment of theamending Ordinance, No. 21 of 1887.
The judgment appealed from is right, and I dismiss the appealwith costs.
(188(3) 3 8. C. C. 80.3 3 Lor. 12.
(1897) 3 N. L. R. 66.* (1887) 83 8. C. C. 67.
ELIYAS v. SAVUNHAMY