134-NLR-NLR-V-18-AMERASEKERA-v.-AMERASEKERA.pdf
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Present: Wood Rentdb C.J. and Pd Sampayo J.
AMERA8EKERA v. AJdERABEKEBA,i82—D. C. Chilaw, 6,103.
• •
rt’Mcnpiugi—Defendant aUoicing plaintifftoeeeupg houseinHsu of
interest—Could agreement ba provedinthe absenceofnotariat
instrument4
A lent B a sum of money in 1807. No interest was paid after1900; bat £. allowed A to occupy aboose of bis (B*s)ata not
which was to be paid by his being setoffin fall againsttheinterest
due on the loan. A brought this action in 1914.•
Held, that the claim was not prescribed, and that * proof of theagreement between A and B as to the house could be proved withouta notarially executed instrument.
Mudianse v. Mudianse 1 commented upon.rpHE facts are set out in the judgment.
Wadsworth, for the plaintiff, appellant.
Chitty, for the defendant, respondent.
December 17, 1915. Wood Bsnton C.J.—
The plaintiff sues the defendant as the administrator of the estateof his brother, Mr. J. C. Ameresekera, Mudjaliyar, for the recoveryof a sum of Rs. 1,250, with interest. The money was received byMudaliyar Ameresekera in 1897 under circumstances which practi-cally invested it with the character of a loan* and the interest payablewas fixed at the rate of 15 per cent. The plaintiff alleges thatthe interest was duly paid until 1900. From that date onwardsadmittedly no payment was made. The present action Wasinstituted on August IB, 1914, and if there were nothing more inthe case, the plaintiff’s claim would, of course, be prescribed, whetherthe debt arose upon a written or upon an unwritten promise. Thecase for the plaintiff, however, is that his cause of action was keptalive by an agreement on the part of his brother .to allow him tooccupy a house and garden belonging to him in Kurunegala, at arefit which was to be paid by' its being set off in full against theinterest due on the loan. The learned District Judge has held thatthe plaintiff has failed to establish the existence of this agreement,and that this action is. therefore, prescribed/ Hence this appeal.
In my opinion the learned District Judge come to a wrongconclusion on tins point. The evidence' of the plaintiff as to theexistence of the alleged agreement is strongly supported by theletter P 7 dated November 26, 1907, and sent by him to hisbrother. In that letter he says: ** You, I am sure, remember whatyou said once when I spoke to you. of the money and the interest I
i am) ft .v. h. n. 86.
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ought to get. that your piyperty here jgives me mote than sjifficffent , IMS.to cover up the interest money I should receive. ”Wood
** BSNTOHjC/^1
The statements contained in ^Biis paragraph passed unchallenged
by Mudaliyar Ameresekera. Had they been untrue, I should have Ameraufteroexpected him to have taken Immediate exception0 jbo them. M8re- Jsntraseksfa.over, tiie evidence shows that the rental of the Mudaliyar's* housecand* garden in Kurunegala was practically the same in amount asthe interest due upon the loan, and au arrangement Between thetwo brothers that the one should be set off against the other wasperfectly natural. The ferae of these observations is, to my mind,in no way weakened by the other passages in the* letter P 7, onwhich the defendant's counsel relied, and in which the plaintiffspeaks of his having “ kept silence so long ft in regard to the propertyand tiie money, and of the Mudaliyarvs great kindness in allowinghim to occupy the house and garden “ free of rent. ” It'is obviousfrom the whole tenor of the letter that he felt considerable delicacyin addressing the plaintiff on the subject at all, and was anxious tomakA its contents as palatable as possible. The defendant’s counselargued in-the first place that there was no evidence of an agreementin writing such as 'would suffice to take the case out of the operationof the Prescription Ordinance, 1871.1 and in the next place that,even if there was suoh an agreement, the period of prescription hadcommenced to run from 1907, or from a later date sufficient to barthe action. I am not prepared to accept the contention that thereis nr evidence for an express agreement in this case. The evidenceor the plaintiff is to the contrary, and, as I have already said, it issupported by the correspondence. But even if the argument withwhich I am dealing were sound on the facts, it would, in my opinion,fail on the law. We have here to do, not with a fresh acknowledg-ment of indebtedness, but with the question whether there was notsuch a payment of interest as would keep the original debt alive.
I see no reason why the existence of an agreement for paymentmay not be established by implication from the circumstances of acasC. There is nothing in the case of Mudianse t>. Mudianse 2 whichcompels us to hold that proof of on agreement of this character isbarred by the absence of a notarially executed instrument. If thematter were fes integra, I confess that I should be disposed to agreewith* the dissenting judgment of Lawrie A.C.J. in Mudianse v.
Mudianse. 8 But the facts in that case were different from thosenow before us. The parol agreement there was one for possessionof’the mortgaged land, of a more or less permanent character, inlieu of .the payment of interest. Here the occupation by theplaintiff of tiie Mudaliyar’s property was to all intents and purposeson tiie basis of a monthly tenancy. I do not think that whathappened in 1907 constituted jmy permanent interruption of theagreement' between the plaintiff and his brother, that the rent and
1 No. 22 of 1871.
2 (289$) 2 N. L. H. $6.
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IMS. *
Wood 1Bejooon C..7.
AmeraAtkera
. v.
Aherasekera
interest fshould extinguish eacl other. Th# plaintiff was in no waybound by the attitude assumed *by his nephew Lionel, who wasadministering “hiv mother’s share of the property *in community.Tftg better V 7 duties that branch of th£ correspondence. In thatlet.tQf the plaintiff sets out and relies upon the agreement, and therejg nothing to show th.it ii was ever repudiated by Lionel, even ifBueh a repudiation would have operated in the Mudaliy&r’s favour.In the lattes correspondence Mr. Munasinghe, who was a relative,endeavoured to act as a mediator, and his intervention could notaffect the plaintiffs strict claim in law. The' last point on whichit is necessary that a word should be said is the argument gi thedefendant's counsel that he should be allowed .to' prove that theplaintiff, by his occupation and perception of the profits of theKurunegala property, has more .than repaid himseU the originaldebt. There is no issue op that point. The. learned District Judgehas dismissed a claim in reconvention set up by the defendant inhis answer based on this very allegation, and .there is no cross appealfrom that portion of the judgment by the defendant*.
On these grounds I would set aside the decree of the DistrictCourt, and direct judgment to be entered in the plaintiff's favour forthe amount claimed in the plaint. The plaintiff is entitled to thecosts of the action and of the appeal.
De Sami>ayo *).—I agree.
Set aside.