047-NLR-NLR-V-11-APPUHAMY-et-al.-v.-MOHAMMADO-LEBBE-et-al.pdf
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1907.
December 16.
Present : The Mon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wendt.
APPUHAMY et al. v. MOHAMMADO LEBBE et al.
D. C., Kegalla, 1,918.
Vihare, lands belongingto—Non-performanceofservices—Prescription—
Grant of land—Reservationofright ofrevocation—Validity—
PrescriptionOrdinance, No.4 of 1870, s. 94, and Ordinance
No. 92 of 1871, s. 6.
Where no services have been rendered by the Nilakarayas of aNindagama, and no commuteddueshavebeenpaid forten years,
the right to claim services or commuted dues ia lost for ever.
Queers.—Whether a clause givingthedonorabsolutepower to
revoke a gift at any time forany purposeis valid?
A
PPEAL by the plaintiffs from a judgment of the District Judgeof Kegalla. The facts sufficiently appear in the judgment of
the Chief Justice.
A. St. V. Jayewardene, for the plaintiffs, appellants.
Sampayo, K.C., for the defendants, respondents.
Gut. adv. vult.
December 16, 1907. Hutchinson C.J.—
The first plaintiff sues as trustee, and the second sues as the incum-bent of the Dippitiye Vihare, alleging that the laud described in theplaint is the property of the vihare; that the defendants are tenantsof the land, and have failed to offer to the vihare the customarydues; and that the terms of the tenancy render them liable, on thenon-performance of the services agreed on, to yield up to the viharethe occupation of the land on payment to them of Bs. 60, and theyclaim a declaration that the land is the property of the vihare, anddamages; and that on payment to the defendants by the plaintiffs ofBs. 60, the defendants be ordered to give up possession of the land.
The defendants denied that the land is the property of the vihare,or that they ever performed rajakariya, or that they are tenants ofthe vihare. They set up a title through Andris Naide, who, theysaid, was entitled to the land. They , also set up title by prescrip-tion; and further said that the plaintiffs’ claim to rajakariya isbarred by section 24 of Ordinance No. 4 of 1870 ?.nd section 6 of Ordi-nance No. 22 of 1871, as the defendants performed no rajakariyafor ten years and upwards. They also said that the plaintiffscannot maintain the action because of non-compliance with theProclamation of September 18. 1819.
Banda Lekam-mahatmaya, who was admitted by both parties tobe the owner of the land, by deed of August 26, 1867, granted it toAndris Naide, to be held by him on performance of rajakariyaservices to the vihare; and it was thereby agreed (1) that AndrisNaide and his heirs should possess the land, performing the serviceof giving yearly two pingos of pots and pans to the incumbent of the
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vihare, and other usual rajakariya services; (2) that if A. Naide or his 1907.
iieiis should fail to render the services, Banda or the incumbent “ shall
only recover the services in due course of law from him or his heirs Hutchinson■and agreement shall never be cancelled or the land changed;” (8)that as Andris has spent £6 on the vihare and has improved it and has^performed rajakariya for a long time and possessed the land withoutdispute, the agreement shall not be cancelled; and (4) that “ if I, thesaid Banda Lekam-mahatmaya, or my heirs, or the incumbent ofthe vihare, require to cancel this agreement for the non-performanceof rajakariya services as agreed to before by the said Andris Naide -or his heirs, or for any other purposes, 1, the said Banda Lekam-mahatmaya, or the incumbent, shall pay to the said Andris Naideor his heirs the £6 spent on account of the vihare and for othertrouble, and thereafter this agreement can be cancelled and theland taken over, otherwise it shall not be cancelled.”
Andris Naide, by deed of January 6, 1887, -reciting that heis owner under the above-mentioned deed, rendering rajakariyaservices, sold and transferred the land to Sego Madar Udayar,subject to the delivery of the two pingos of pots and pans. And bysubsequent deeds Sego Madar’s title became vested in the defendants.
The purchaser from Andris Naide and his successors in title wereall Moslems; and the defendants denied that any of them had everrendered any services to the vihare. The District Judge found—and the correctness of the finding is not really disputed—that noservices were rendered in respect of the land after the sale by AndrisNaide in 1887. And he held that by section 24 of the Service TenuresOrdinance, No. 4 of 1870, the right to the services was lost for ever,because no services had been rendered for more than ten years.
The appellants contend that that ruling is wrong, because thedefendants are no.t paraveny tenants, and therefore section 24 doesnot apply. They contend that under the deed of 1867 the defend-ants are only tenants-at-will.
The clauses which I have numbered (2) and (3) in the deed of1867 seem to be inconsistent with clause (4), at least so far as wecan judge from the .translation. But, doubtless, they did not appearto the parties to the deed to be inconsistent. The District Judge,who is a Sinhalese, says: “ I read the original to mean that cancel-lation is possible only when the recovery of the services by the courseof law is impossible, ” and that “ so long as the tenant continues ableand willing to perform services the tenancy cannot be determined,i.e., it is not a tenancy at will. Whatever may be the true explana-tion of clause (4), I think that clauses (1), (2), and (3) establish thatthe tenant was not a tenant-at-will, and that under this deed he wasa paraveny tenant, holding in perpetuity, although his tenancy waspossibly liable to- be determined under the ambiguous provisions ofclause (4). In my opinion, therefore, the right to claim the serviceswas lost by reason of their not having been rendered for ten years.
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im.
December 10.
Hutchinson
C.J.
The appellants then contend that clause (4) gives them a right tore-take possession at any time on payment oi £6. The Chief Inter-preter to this Court, Mr. de Silva, has compared for me the originalwith the two translations filed with the record. He says that hefinds the two translations to be substantially correct, and that theclauses are contradictory; that the earlier clauses say that the agree-ment shall not be cancelled for non-performance of the services, butclause (4) says that, if the non-performance of the services or anyother cause necessitates the cancellation, it shall be effected only onpayment of £6, or Bs. 60, to the grantee as compensation.
The District Judge held that the defendants had acquired a titleby prescription, having been in possession of the land without per-formance of the services or any acknowledgment of the plaintiffs'title since 1887. He does not refer to clause (4) of the deed of 1867,although one of the issues agreed upon was—“ Are the defendantsliable to be ejected on payment to them of Bs. 60 ? ”
If clause (4) was intended to give an absolute power of revocationat any time “ for any purpose,” the question must be answered:What is the effect of such a proviso? Can such a limitation beattached to a grant of land in perpetuity? Is there no limit to thetime within which the grant can be revoked? We were not referredto any authority on this question, and T have not been able to findany directly in point. But I cannot think that it is lawful to attachsuch a condition to the land in perpetuity. If any effect is to begiven to it, I think that time must begin to run against the grantorfrom the date of the grant. It is to be observed, however, thatclause (4) does not expressly give a power to revoke, but onlydeclares that if the grant is revoked, the grantor shall pay a certainsum to the grantee; whereas the earlier clauses expressly declarethat it shall never be revoked. In my opinion, as the two declara-tions are inconsistent, and as the first is quite clear and the second isdoubtful, we must give effect to the first, and hold that there isno absolute unfettered power of revocation at any time.
In my opinion, therefore, the plaintiffs’ claim fails, and the appealshould be dismissed with costs.
Wendt J.—
I agree that the appeal fails. In particular I wish to say that Ishare the Chief Justice’s doubt as to the validity of the reservationby the grantor of land of a power to revoke the grant at any time.If the reservation is valid , at all, then, considering that the powermight be exercised the day after the grant, limitation must be heldto run from the date of the instrument, so that after ten years thegrantee’s title would become indefeasible.
Appeal dammed.