127-NLR-NLR-V-22-DINESHAMY-v.-SIDORIS.pdf
( 414 )
1821.
Present: Shaw J.
DINBSHAMY v. SIDORIS.
275—C. R. Balapitiya, 13,299.
Notarial lease—Lessor unable to give possession in terms of lease—Subsequent oral agreement to waive rent for eighteen months asplantation was damaged by previous lessee—Proof of oral agree-ment—Evidence Ordinance.
By a notarial deed plaintiff leased to defendant his cinnamonland for six years commencing from May, 1919. A previous lesseerefused to give up possession for some months thereafter, and thecinnamon plantation was also greatly damaged. It was agreedbetween the plaintiff and defendant that the defendant should havethe land free for the first year and a half.
Held, in an action for rent, that the defendant could lead oralevidence to prove the agreement.
“ The agreement entered into at the time the defendant agreedto take possession, was not a variation of the terms of the originallease, but was a new agreement entered into after the plaintiff hadbeen found unable to carry out the terms of the lease. This is averbal lease, and so long as possession is held under it, its termsmust be carried out. It may be that not being notarial, eitherparty could refuse to carry out the terms.”
r | iHE facts appear from the judgment.
Ameresekeray for the appellant.—The Commissioner of .Requestsis wrong in admitting in evidence an alleged oral agreement betweenthe parties contrary to the terms of the deed of lease dated May 9,1919, in contravention of the provisions of section 92 of the EvidenceOrdinance. In De Silva v. De Silva1 it was held that an agreementmade orally and subsequently to a deed of lease to accept a smalleramount as rent than that stipulated in such deed is a distinctvariation of the obligation of the lease, and cannot be proved byother evidence than by a notarial instrument.
F. de Zoysa (with him Weerasinghe), for the respondent. The caseof De Silva v. De Silva1 was considered and over-ruled in the caseof Kiri Banda v. Ukku Banda? Lascelles C.J. there held that theold rule of evidence that notarial documents can be modified orvaried only by notarial writings does not obtain in Ceylon since theEvidence Ordinance came into operation. 1
1 (1907) 1 A. C. -R. 107.*{1911) 14 N. Ll R. 181.
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The defendant’s position in this case is that he never took posses- 1921.
sion of the land under the lease, but that he did so on the oral '
agreement. He is, therefore, entitled to ask the Court to enforce theSidorU
terms of that agreement.
Ameresekera, in reply.—The position taken up by the defendantin this Court as regards the circumstances under which he came topossess the land is not borne out by the facts proved in the case.
Kiri Banda v. Ukku Banda1 can be distinguished from the case ofDe Silva v. De Silva.2 Kiri Banda v. UkhiBanda1 only decides thatunder certain circumstances the variation of modification of anotarial instrument may be proved by a non-notarial document.
But the rule in De Silva v. De Silva2 says that parol evidence cannotbe led to vary or modify the terms of a written agreement exceptunder circumstances provided for in section 92.
May 13, 1921. Shaw J.—
The plaintiff claimed Rs. 60 being two instalments of rent payableunder a lease dated May 9, 1919. He also claimed Rs. 40 beingthe amount of two penalties for non-payment of the instalmentsof rent, and he claimed Rs. 75 damages for the defendant havingallowed two houses on the land to fall down and for his havingappropriated to himself the materials of the houses. It appears,that a lease was entered into between the plaintiff and the defendant,which was to commence on May 9, the subject-matter being certaincinnamon land, for which the lessee was to pay for the term of sixyears.six bales of cinnamon or Rs. 360 cash. This had to be paid intwelve instalments, each of Rs. 30. From the evidence that hasbeen accepted by the Commissioner, it appears that the plaintiff waBunable to put the defendant in possession of the land under thelease. A man named Podi SinghcTwas in possession of the landand refused to give it lip, and he was not turned out until fourmonths after possession should have been given to the defendant.
During this time Podi Singho-had damaged the cinnamon onthelandto such an extent that the evidence shows that the land was worth-less for a year and a half. Thereupon a new arrangement was cometo between the plaintiff and the defendant, and .the defendantentered into possession on the plaintiff undertaking that he shouldhave the land free for the first year and a half. The evidence alsoshows that the houses in respect of which the plaintiff claims hadtumbled down before he took possession of the land. The Judgehaving accepted these facts has dismissed ‘ the plaintiff’s action.
It is urged on his behalf on appeal that it is hot open to thftdefendant to show a subsequent agreement by which the plaintiffundertook to waive the rent for eighteen months, because that would
2 (1907) 1 A. C. R. 107.
1 (2$H) 24 N. L. R. 181.
( 416 )
1921*
Shaw J.
Dineahamyv. Sidorts
be to allow parol evidence to vary the terms of the written agreement,and the ease of De Silva v, De Silva1 is cited in support of thiscontention! This case was considered and discussed in the case ofKiri Banda v. UkJcu Banda.* But it is not, in my opinion, necessaryin this case to go into the question of the principle of that decision,because the agreement entered into at the time the defendantagreed to take possession was not, in my opinion, a variation of theterms of the original lease, but was, in fact, a new agreemententered into after the plaintiff had been found unable to carry outthe terms of the lease he had agreed to grant the defendant. Theverbal agreement appears to have been that the defendant shouldtake the land on the terms of the original lease proposed, subject tothis variation in its terms that no rent should be payable'for thefirst eighteen months. This is a verbal lease, and so long as posses*sion is held under it, its terms must be carried out. It may be thatnot being notarial, either party could refuse to carry out the terms.I agree with the Commissioner that the plaintiff has failed tomake out the cause of action sued on, and the appeal must conse-quently be dismissed, with costs.
10?..
N. L. R. 282.