112-NLR-NLR-V-43-ABEYSIRIGOONEWARDENE-v.-ABEYSIRIGOONEWARDENE.pdf
Abeysirigoonevoardene v. Abeysirigoonevoardene.
469
1942Present : Jayetileke J.
ABEYSIRIGOONEWARDENE v. ABEYSIRIGOONEWARDENE.
154—C. R. Galle, 22,634.
s
Prescription—Agreement to pay money to another—Failure to carry out the
agreement—Cause of action—Time of accrual.
On January 31, 1935, plaintiff, who was the administrator of anestate, paid to A.A.G. a sum of Rs. 550, which was due to the defendantand his brother and sisters as heirs of the deceased. The money waspaid to A.A.G. as guardian of defendant -and a receipt obtained. A.A.G.died without having paid the amount to defendant and the plaintiffwas compelled by Court on citation issued against him to pay thedefendant Rs. 110.
Plaintiff instituted the present action against the defendant as heir inpossession of A.A.G.’s estate for the recovery of the said sum.
Held, that the breach of the agreement to pay the money to theminors occurred about January, 1935, and that the cause of action torecover the money from A.A.G. accrued to the plaintiff about thattime.
Seneviratne v. Siriwardene (16 N. L. R. 376) followed.
Ismail v. Ismail (22 N. L. R. 476) distinguished.
PPEAL from a judgment of the Commissioner of Requests, Galle.
A. Rajapakse, for defendant, appellant.
N. E. Weerasooria, K.C. (with him E. B,. Wickremenayake' andH. A. Chandrasena), for plaintiff, respondent.
Cwr. adv. vult.
470 JAYETILEKE J(.— Abeysirigoonewardene v. Abeysirigoonevoardene.
August 27, L942. Jayetileke J.—
This appeal raises a very short point. The plaintiff was the adminis-trator of the estate of one Dissanayake, which was administered intestamentary proceedings No. 7,356 of the District Court of Gaile.The. defendant, who was one of the heirs of the deceased, was representedby his father, A. A. Goonewardene, the tenth respondent, as he was aminor. The defendant’s minor brother and sisters, who were theseventh, eighth and ninth respondents, were also represented by thetenth respondent.
On January 31, 1935, the plaintiff paid to A. A. Goonewardene a sumof Rs. 550, which was due to the defendant and his brother and sisters asheirs of the deceased, and obtained from him a receipt PI. That receiptis in the following terms: —“ The purport of a hand writing caused to be
drawn and granted on this 31st day of January, 1935 I, the
undersigned, Albert Arnolis Abeyesiri Goonewardene, presently ofKurunegala, who is appointed guardian of minor children under testa-mentary case No. 7,356, D. C. Gaile, of the estate of Mr. A. P. Dissa-nayake, late of Regalam estate in Kurunegala, do hereby admit andacknowledge to have received a sum of Rs. 550 from R. D. A. Goone-wardene of Agaliya, the administrator of the said estate, for and on behalfof the said minors, the heirs of the said estate, at Agaliya, in my capacityas guardian of the said minors.
Signed on a stamp of five cents.
A. A. Goonewardene. 31.1.35. ”
A. A. Goonewardene died on April 15, 1939, without having paid theamount to his children. On May 8, 1940, the defendant and his brothermoved under section 720 of the Civil Procedure Code for a citation on theplaintiff to show cause why a decree should not be entered, directing,him to pay each of them Rs. 110.
On March 29, 1941, the District Judge, after inquiry, held that thepayment made by the plaintiff to A. A. Goonewardene did not dischargehim and ordered him to pay the defendant Rs. 110.
On May 8, 1941, the plaintiff instituted this action against the defendantas heir in possession of A. A. Gaonewardene’s estate for the recovery ofthe sum of Rs. 110, which he was decreed to pay the defendant. Thelearned Commissioner of Requests entered judgment in plaintiff’s favourand the defendant has appealed.
The question which I have to determine is whether the plaintiff’sclaim is prescribed. The answer to the question depends on the datewhen the cause of action to recover the sum of Rs. 550 from A. A. Goone-wardene accrued to the plaintiff.
The position taken up by the plaintiff at the trial was that the moneywas paid to A. A. Goonewardene to be paid to his minor children. Thelanguage of PI, which is simple and straightforward, supports that view.I think it is a fair inference from the words used in PI that whenA. A. Goonewardene accepted the money from the plaintiff h^ agreedto^ay it to his minor children.
..TAYETILEKE J.—Abeysirigoonewardene v. Abeysirigoonewardene. 471
The law as laid down by the Roman-Dutch Law writers is that a contractmust be performed at the time stipulated, or if no particular time ismentioned, then within a reasonable time. What is meant by reasonabletime must be gathered from all the circumstances of the case, such as thenature of the transaction, the intention of the parties, the distance,et cetera.
Voet says that in the case of unconditional obligations, that is, to whicha particular day or a condition has not been added," the liability begins toexist and performance can be demanded at once, so that what has beenpromised is owing here and now and can be demanded for at once. Thismust, however, be accepted with some moderation of the time for per-formance. (Bk. 45, Ch. l,Sec. 13.)
Grotius says that when anything is promised to be performed but nodate is fixed for performance, it is understood that the1 obligation may beperformed at once unless the fulfilment as, for instance, the delivery of ahouse, necessarily requires some time. (Bfc. 3, Ch. 3, Sec. 51.)
In Mackay v. Naylor it was held that the general rule is that obligationsfor the performance of which no definite time is specified are enforceableforthwith, subject to the qualification that performance, cannot bedemanded unreasonably so as to defeat the objects of the contract or toallow an insufficient time for compliance. The Court, in determiningwhether the period is reasonable, must have regard to all the circum-stances of the case.
A. A. Goonewardene could and should have paid the money into Courtimmediately after he received it. The breach of the agreement to paythe money to the minors, therefore, occurred about January 31, 1935, andthe cause of action to recover the money from A. A. Goonewardeneaccrued to the plaintiff about that time.
The plaintiff’s action must, therefore, fail as it was not instituted withinthree years from the accrual of the cause of action. The case of Seneviratnev. Sirhcardsne' appears to be indistinguishable from the present case.In that case, the vendor of a land requested the vendee to pay the purchaseprice to a person to whom he owed money. The vendee agreed to do sobut failed to pay. It was held that the cause of action to recover themoney from the vendee accrued on the date of the agreement by thevendee to pay.
Mr. Weerasooria, for the respondent, contended that as no demandhad been made by the plaintiff during the lifetime of A. A. Goonewardene,the cause of action arose on the latter’s death. He relied very stronglyon the case of Ismail v. Ismail ’, in which Bertram C.J. said : —
•‘For every period of prescription there must be a definite startingpoint. Sometimes a definite date is fixed upon it for the purpose ofan obligation; sometimes it is not. In the latter case, it is sometimessaid that there must be a performance within a reasonable time, butthe expiration of such a reasonable time would clearly be altogether tooindefinite a point as a starting point for prescription. As we haveno definite authority on the point, the case is one of first impression,and on careful consideration I would suggest that the following
•- (1917) T. P. D. 537.s 1G X. L. If. 37G
* 22 .V. L. If. 47G.
472JAYETILEKE J.—Zacharian v. Fernando.
principles may be applied to the question. When • the time for theperformance of an .obligation is fixed, so that there can be a definitestarting point for the running of the period of prescription, the breachmay well, in ordinary circumstances, be considered as occurring whenthe performance does not take place within the time so fixed. Butwhen there is no fixed date for the performance, but there is only anobligation to do any act within a reasonable interval after a givendate, there cannot be said to be a breach, unless there has been arefusal, either on demand or otherwise, to perform the obligation, orunless the person liable has in some way disabled himself fromperforming the contract. ”
There are two reasons why I cannot treat the observations of Bertram C.J.as binding upon me. Firstly, the facts of that case were entirelydifferent from those in the present case and the point which I have toconsider did not arise. Secondly, the judgment was one delivered withoutany citation of authority and with the greatest respect for the learnedChief Justice I wish to say that his observations seem to me to be wrongin principle.
I would, therefore, set aside the judgment appealed from and dismissthe plaintiff’s action with costs here and in the Court below.
Appeal allowed.