009-NLR-NLR-V-27-MARTHELIS-v.-SIRIWARDENEHAMY.pdf
( 41 )
Present: Bertram C.J. and Jayewardene A.J.MARTHELIS v. SIRIWARDENEHAMY.
80—0. R. Ratnapura, 18,063.
Nindagama—Transfer of right to agricultural services—Payment of
ottu—Right to personal services apart from possession of lands.
Where a nindagama is held by paraveni niiakarayas andpelkarayas (sub-tenants), each being entitled to the possession ofseparate lands as their panguwas, the pelkaraya stands to theparaveni nilakaraya in the same relation in which the latter standsto the nindagama proprietor or overlord.
In such a case the paraveni nilakaraya is entitled to transferhis right to the agricultural services due from pelkarayas, withoutat the same time transferring any of the lands of the paravenipanguwa.
For the puipose of recovering the value of such agriculturalservices, it is not necessary to prove that the services due fromthe paraveni nilakaraya to his overlord have been performed,as such services may not have been enforced or the right to enforcethem might have been lost by prescription.
The right to demand personal services cannot be sold apartfrom the land.
^1ASE referred by Jayewardene A.J. to a Bench of two Judges.x<^ The facts are stated in the reference as follows :—
In this case several questions relating to service tenure land inthe Province of Sabaragamuwa, one of the Kandyan provinces,arise for decision.
One Bentota Viuanalage Siman Naide was the paraveni nila-karaya of a pangu called the Muttettuwatte (Galladaye) panguwaThis panguwa consisted of seven fields, one owita, and seven wattas.
1924.
( 42 )
1924.The proprietor was the Maha Saman Dewala of Sabaragamuwa, The
Marthdia nilakaraya had to perform certain services enumerated in theSiriwar- service register P 1, and the services were commuted for an annualdenehamy payment of Rs, 50. This panguwa, with the facts above stated,was registered in the register of paraveni panguwas underOrdinance No. 4 of 1870 (vide P 1 and D 11).
The nilakaraya of the Muttettuwatte (Galladaye) panguwa,called the ganladda, had certain panguwas tributary or sub-ordinate to him, and he was entitled to claim certain services fromthese tributary panguwas, and among the latter was the Gamagepanguwa which consisted of the Gamagekumbura, of which thedefendants are said to be nilakarayas or the successors of theoriginal nilakarayas. Siman Vidane who might be regarded asthe ganladda at the time of the register P 1—by deed No. 2,278of May 29, 1885, P 5—sold and transferred to one Guna Nachchirefor a sum of Rs. 380 the customary dues (such as ottu, dekum,
' penum, and rajakariya services) recoverable from twenty-twopanguwas, all tributary panguwas and appurtenant to Muttettu-watte (Galladaye) panguwa which he claimed to be entitled to byvirtue of a deed of gift. The rights conyeyed on P 5 have nowdevolved on the plaintiff.
The plaintiff pleading this title sues the defendants as the ownersof the Gamage panguwa, and claims a sum of Rs. 20 as “ ottu” forGamagekumbura. He alleges that they have failed to pay thesedues for the last three years. His claim is resisted on variousgrounds, and the following issues were suggested and framed bythe Court:—
Was Siman Vidane owner of Muttettuwatte (Galladaye) pan-
guwa, and as such-entitled to “ ottu” of Gamage panguwa ?
If so, has Siman Vidane’s title devolved on the .plaintiff ?
Is the plaintiff the sole owner of Siman Vidane’s title, and,
if not, can the plaintiff maintain this action ?
(5a) If the plaintiff had any rights, has he lost them by prescrip-tion ?
(5b) Can the right to collect “ ottu ” be lost by prescription ?
(6) What amount, if any, is due to the plaintiff ?
The Judge beard argument on issue (5b) first, and held in theaffirmative. He said that payment of “ ottu ” was in the nature ofperformance of service, and held that on non-payment for theprescribed period the right to claim “ottu ” would be prescribed. Thenext point argued was whether in view of the fact that the Mutt-ettuwatte (Galladaye) panguwa—the quasi-dominant tenement—was not now vested in one person, but portions of it have been soldto various persons who are not parties to this action, the plaintiffwho has only a part of the Muttettuwe panguwa can maintain theaction ? On this question the Court held that if a person who
( 43 )
owned a share of Siman Vidane’s Muttettuwe panguwa, and so hada right to perform the services, performed all the services thatSiman Vidane owed to the dewala, then that person could demandthe “ ottu ” from the holders of the quasi-servient tenements. “ Itis a question of fact,” he said, “ whether the plaintiff performedall the services specified in P 1—subject to this the plaintiff canmaintain this action.”
The plaintiff, I find, is not entitled to any of the Muttettuwatte(Galladaye) panguwa lands at any rate on P 5. The Judge thenproceeded to inquire into the question whether the plaintiff hadperformed all the services enumerated in the register as due tothe dewala. After some witnesses called by the plaintiff hadgiven evidence, he found the evidence so grossly contradictorythat he stopped the case and dismissed the action. In his viewthe plaintiff had failed to prove that he performed all the services,and such proof alone, in his opinion, entitled the plaintiff to maintainthe action. From this judgment the plaintiff appeals.
As regards the last point decided by the learned Judge, I amunable to agree with him. I am not sure that the plaintiff is boundto prove that he performed all the services before he can succeedin this action.
In my opinion it is sufficient if he proves that he has substantiallycomplied with the requirements regarding the performance ofservice.
Some of these services cannot be performed now, others arenot insisted upon, and I think the plaintiff has succeeded in estab-lishing a primd fade case of performance of services by him. Hestill acknowledges the temple as his overlord, and the templeacknowledges him as its tenant. It is not suggested that anyoneelse has performed any of these services. If I had to decide thecase on this point, I would send the case back for its resumptionfrom the stage at which it was stopped.
But the respondent contends on the authority of Ukku Banda v.Lapaya1 that the plaintiff cannot maintain the action withoutjoining all the other owners of the lands given in P 1 as com-posing the Muttettuwatte (Galladaye) panguwa, and that the orderof the Commissioner on this point is wrong.
These fields, wattas, and owitas mentioned in P 1 have passedinto the hands of a large number of persons who are now in possessionof them. But by deed (P 5) Siman Vidane has expressly conveyedthe right to recover customary dues (ottu, dekum, penum, andrajakariya), and that right has now devolved on the plaintiff.
The only document produced which discloses any dealing withany of the lands belonging to the Muttettuwatte (Galladaye) panguwabefore the execution of P 5 is a Fiscal Transfer of 1884, D 1. But
1924.
Marthelisv.Siriwar-denehamy
(1891) 2 C. L. R. 38.
( 44 )
19$4. . this is a sale in execution, and conveys a specific field, and it cannotMarthdiav construed as conveying any rights appurtenant to the panguwaSiriwar- to which the execution-debtor was entitled as overlord.denehamy All the voluntary conveyances have been executed subsequentto P 5, that is, after Siman Vidane had divested himself of hisright to the customary dues in favour of Guna Nachchire.
This case must be decided on the effect to be given to P 5. Byit not one of the wattas, fields, or owitas constituting the Muttettu-watte (GaOadaye) panguwa was transferred. What appears to havebeen transferred is the right to customary dues recoverable fromtwenty-two panguwas appertaining to Muttettuwatte (Galladaye)panguwa alone.
Can this right be transferred or otherwise disposed of apartfrom the lands of the Muttettuwatte (Galladaye) panguwa ?
The plaintiff’s rights depend on the decision of this question.The point is not covered by any authority. There are, however,some dicta in Siyatu v. Kiri Saduna,1 which appear to negative sucha right. Reference might also be made to Samarasinghe v. Weera-pulle.2
This is a test case, and I understand that a number of othercases have been laid over until the decision of this case. Thisquestion, undoubtedly, goes to the very root of the plaintiff’s title.
I would, in the circumstances, direct that this case be fixed forargument before a Bench of two Judges for the decision of thequestion whether Siman Vidane was entitled to transfer the rightsto customary dues apart from the lands of the Muttettuwatte(Galladaye) panguwa, as he has purported to do by P 5 ?
E. W. Jayewardene, K.C. (with him Samarawichreme andWeerasinghe), for appellant.
Allan Drieberg, K.C. (with him Keuneman)t for respondent.
November 26, 1924. Jayewardene A. j.—
The main question arising in this case was reserved by me forconsideration before a Court of two Judges. The case was accord-ingly argued before my Lord the Chief Justice and myself. [His.Lordship after stating the facts proceeds as follows : ]
To decide this question, it is necessary to consider the positionof Siman Vidane—the ganladda—with reference to the appur-tenant panguwas.
All these panguwas are registered in the registers compiledunder Ordinance No. 4 of 1870. See P 1, P 2, and D 11. Theyare described as being in the village Kotaketana. The name of pan-guwa No. 1 is given as Muttettuwatte (Galladaye) panguwa. Under
* (1882) S S. G. C. 40.
1 (1893) 3 C. L. R. 17.
( 46 )
the head “ Description and extent of panguwa,” the names ofseven fields, one owita, seven wattas, and one chena are given.The name of the paraveni nilakaraya is given as M Bentota Vidana-lage Siman Vidane.” The proprietor is given as “ SabaragamuwaMaha Saman dewala,” and the commutation value is fixed atRs. 50. In the fifth column, “ Nature and extent of services/’ wefind a full description of the services due from the paraveni nila-karaya to the dewala, and the following right referred to :—“ Toreceive ‘ ottu ’ at the rate of five lahas for each pela whenever thepelkara panguwa fields and chenas belonging to this panguwawere cultivated, and also that the pelkarayae shall perform servicesfor the panguwa and give the other presents/’ This is thetranslation appearing in D 11 (page 108). The translation in P 1(page 1) is not materially different, although the translation inD 11 appears to be more accurate.
Then we have the registration of three other panguwas numberedtwo to four. Their position is similar to that of the Muttettu-watte (Galladaye) panguwa. Then follows the registration of thirty-five panguwas, and the eleventh panguwa is the Gamage panguwawhich consists of only one land, Gamagekumbura—the one in respectof which the present claim for “ ottu ” is made. The names of thetenants of this panguwa and of the other thirty-four panguwas aregiven under the head “ paraveni nilakaraya.” The proprietor is theSabaragamuwa Maha Saman Dewala, and “ the nature and extentof services ” of the Gamage panguwa are described as follows:—(D 11(page 112) ) : “ The services of this pangu belong to the ganladdaof Muttettuwatte. To give ‘ ottu ’ on each harvest of fields as inpangu No. 1, and a pair of buffaloes for muttettuwa cultivations,to help on the seven occasions of the muttettuwa cultivations onreceiving one meal a day and to give meals, and for measuring“ ottu ” as in pangu No. 1,” and at the end of the list of panguwasof this village there is the entry :—
1924*
Jaybwab-DENE A. J.
Marthdie v.Siriwar-denehamy
“ The services of pangus Nos. 5 to 24 belong to the ganladda ofpangu No. 1. Those of pangus Nos. 25 to 30 to the gan-ladda of pangu No. 4, those of pangus Nos. 31, 32, and 33to the ganladda of pangu No. 3, and those of pangu Nos. 34and 35 to the ganladda of pangu No. 2. See register ofnindagamas. The gan-gatte of all animals shot in the villageshall be given to the ganladda of that pangu on which theanimal fell. The owner of each pangu shall keep the roadsclean.”
There can be no doubt that the “ pelkara panguwa” fields andchenas referred to in the description of the services due to panguNo. 1 are the panguwas Nos. 5 to 24, and although the names ofthe tenants appear under the head “ paraveni nilakarayas ”—theyare in fact paraveni pelkarayas, and stand to the ganladda in the
( 46 )
1924.
Jaykwak-DENE A.J.
Marthdit v.Siriwar-denehamy
same relation in which the ganladda stands to the SabaragamuwaMaha Saman Dewala, the proprietor. It is necessary to explainthe terms “ganladda” and “pelkaraya” as used here, and therelation in which they stood to each other. These terms areexplained in the “ Glossary of native terms occurring in the ServiceTenure Registers ” given as an appendix to the report of the ServiceTenure Commissioners for 1872 :—
“ Ganladda: An owner of land.—Sometimes applied to smallproprietors and sometimes to proprietors of inferior castes, e.g.,the proprietors of the village Kotaketana (smith and wood carvers)are always so styled.”
“ Pelkaraya : A sub-tenant.—See dalupotbkaraya. The mul-pangukaraya gets a person to settle on the lands of his panguwain order to have a portion of the services due by him performed bythe person so brought in, who is called ‘ pelkaraya ’: lit. cotter.—and ‘ dalupothkaraya ’: a sub-tenant—a garden tenant; one whohas asswedumized land belonging to the mulpangukaraya. Inthis district (Sabaragamuwa) the dalupothkaraya is called ‘ pel-karaya.’ ”
It is to be noted that the description of the term “ gan-ladda ” refers to the very village in which these-panguwas aresituated, viz., Kotaketana, and that the term is used as referringto the proprietors of lands in this village. The “ ganladda-pelkara ”tenure is referred to by Mr. Turnour in a report made by him onthe Sabaragamuwa District in the year 1824 and given as anappendix (C 2) to the Service Tenures Commissioners’ Report of1872 (see Administration Reports, 1872, p. 464). Explaining thevarious modes of tenure prevailing in Sabaragamuwa, he says:—
“It is so obviously true that the divisions of which every con-siderable estate in the interior consists were originallymade by the chief of the village (ganladda) or for hisadvantage and convenience that the assertion needs notto be proved. In a country where money is so scarce,that it can hardly be said to be in circulation, dues fromestates can only be raised in kind, and labour be obtainedby attaching personal services to land. Accordingly,it is found in these provinces, as in the instance of ninda-gamas, that the ganladda was in possession, generallyspeaking, of only a fifth or sixth of the property. Therest was distributed among the pelkarayo under varioustenures. The portions reserved by the ganladda weregratuitously cultivated by them in ninda or anda, asthe lands might be ninda or anda muttettus : he receiveddues in money or kind from many of the pelkarayo, whosepersonal services were light; and all were obliged to buildand repair his houses and to perform any other labour
( 47 )
required of them. Some were fed while so employed,and others not. As many of them as were requiredattended him on all his journeys, and at his annualappearance in Kandy to pay his tribute of five ridis.It was their duty to follow him and convey his provisionsand baggage, maintaining themselves all the while heremained there at their own charge.”
1024.
Jaybwab*DBKS A.J.
Marthelis v.Siriwar-denehamy
Through the courtesy of the Government Agent, Sabaragamuwa,I have been able to obtain a copy of the register of nindagamasrelating to these panguwas and referred to in D 11. This register,which I have marked SCI, throws a great deal of light on thedifficulties arising in this case, if it does not solve them altogether.
The nindagama register contains the following entry :—
“ This is a village (Kotaketana) possessed by a family of thesilversmith caste. They perform * rajakariya ’ to theMaha Saman Dewala and are possessing four shares. Theremaining twenty-nine shares are the 1 pelkara pangus ’for performing ‘ rajakariya ’ to the ‘ ganladda. For detailssee dewalagam register.”
And under the head “ proprietors ” appears the following :—
“ (1) Bentota Vidanelage Siman Vidane, (2) MuduwegaladdalageSelappu Naide and others, (3) Hittarage Givane Naide,
Kodal Badde Givan Naide.”
These are the names of the four persons to whom the " rajakariya ”services from the tenants of the 29 pelkara panguwas are due orbelong. See register D 11. I have also obtained a copy of thedewalagam register. I find it is the same as the register of paravenipanguwas D 11, P 1, and P 2.
Now Siman Vidane is described as the proprietor of the ninda-gama consisting of twenty-two panguwas, and he must be given allthe rights such a proprietor is entitled to. One of these is the rightto sell his nindagama with its proprietary rights, and to make thetransferee entitled to all the services of tenants, and I presume toreceive “ ottu : ” TiUekeratne v. Dingikami.1
Such a sale amounts in law and in fact to a sale of the right tothe services to be performed by the nilakarayo. The tendencyof legislation has been, as pointed out by De Sampayo J. in Appu-hamy v. Menika,2 to make the nilakaraya the real owner of thepanguwa. The proprietor’s rights are restricted to the rightto services and nothing more. The proprietor who is under theOrdinance entitled to sell the nindagama and enable the transfereeto obtain performance of services, ought, in my opinion, to beable to sell the right to the services alone without also transferringthe almost empty right to the nindagajna lands.
1 (1361) Ram. (186062) 114.* (1917) 19 N. L. R. 361 (368).
276
( 48 )
1924.
Jaykwab-DBHB A.J.
Marthdi^ v.Siriwar-denehamy
If Siman Vidane is regarded as the proprietor of the twenty-twopanguwas, as he must be, he had, in my opinion, the right, like allother nindagama proprietors, to sell his rights, and confer on thepurchaser a valid title to them.
In Siyatu v. Kiri Saduna {supra), Lawrie J., whose knowledge ofKandyan law and customs was almost unrivalled, expressed theopinion that a nindagama owner can so lease or alienate his land as toentitle the lessee or purchaser to the agricultural services due to theowner in respect of the land.
But he thought that the right to demand personal services,such as carrying burdens and palanquins and presents, could notbe leased or assigned, but if the nindagama is sold, then the newproprietor would step into the place of his vendor—in respectof all services, agricultural and personal.
It may be that Siman Vidane has purported to sell the rightto services, both agricultural and personal, but in the present caseno claim is made for failure to perform any personal services, andthe demand is for the payment of “ ottu ” or its equivalent inmoney. It may be that this transfer is invalid so far as personalservices are concerned, but that cannot affect the right to agri-cultural services or to a share of the produce. In view of theentry in the nindagama register, Bentota Vidanalage SimanNaide must be regarded as the proprietor of the pelkara panguwasand as having supplanted the Maha Saman Dewala in that position.
The documentary evidence also shows that the transferee ofSiman Vidane and his successors in title have been leasing theright to receive “ ottu” in the years 1897 and 1912. In the year1897 Gabo Naide, acting on behalf of the then owner of these rights,who was his grandmother—two months before the notarial deedof gift in his favour—leased these rights to two persons called AppuNaide and Siribohamy of the village Koteketana for a term ofyears. Again, in the year 1912 by lease 3,876 of October 10,the first defendant himself took on lease the right to collect “ ottu.”In the year 1895 Siman Vidane himself had leased the same rightto a Moorman called Kumister Casi Lebbe Marikar, who success-fully sued the tenants of Acharige panguwa, one of the pelkarapanguwas, for the value of the " ottu ” due to him under the lease.And so lately as 1920 or 1921 the present plaintiff sued the tenantsof Epitagedera Gamaralage panguwa and Liyadebodage panguwa—two of the pelkara panguwas, and recovered the value of “ ottu ”and the commuted dues. P 14 and P 15. These transactionsshow that the rights granted by Siman Vidane on P 5 have beenexercised and enforced. There are, however, some difficultiesto be considered. The first is whether the holder of these rightsis bound to perform any services to the Maha Saman Dewala, andwhether the right to receive “ ottu” is dependent on the perform-ance of such services. In my opinion the performance of services
( 49 )
mentioned in the register (P 1, P 2, and D 11) is attached to thepossession of the lands forming the Muttettuwatte (Galladaye) pan-guwa. The transferees of these lands would have to perform theservices, and not the transferees of the lands of, or the rights over,the pelkara panguwas. Otherwise, we would have two sets ofpersons having to perform the same services—the transferees ofthe Muttettuwatte (Galladaye) panguwa and the transferees of thepelkara panguwa. None of the services which the pelkara panguwaholders have to perform is to be performed for the benefit of thedewala directly. They have to be performed for the benefit ofthe ganladda—the proprietor of these panguwas.
The inclusion of the right of the ganladda to certain servicesamong the services he has to perform to the dewala is, in myopinion, a mistake, and this is apparent when the register ofparaveni panguwas (D 11) is read with the register of nindagamaa(S C 1). One of the services the pelkara pangukarayas have toperform is to give buffaloes for the ploughing of the muttettu fieldsand to otherwise assist in their cultivation. These services may passto the transferees of these fields, but the payment of “ ottu ” isa different obligation arising from the possession of land belongingto the ganladda, and may be acquired by any person to whom theright is transferred.
In my judgment the right to recover “ ottu ” from the possessorsof the pelkara panguwas has nothing whatever to do with theganladda *s possession of the lands of the Muttettuwatte (Galladaye)panguwa, and can be dealt with by the ganladda according to hispleasure. It is to my mind immaterial whether the ganladda has'performed the services due to the dewala or not. The dewalamight have abstained from enforcing the performance of theseservices, and the right to them might have become extinguished byprescription. But that would not affect the liability of thepelkarayas to perform services and to pay “ ottu,” to the ganladdaand his successors in title if these rights have been kept alive.
I would answer the question propounded in the affirmative.The judgment appealed from will be set aside, and the case sentback for the decision of the question whether the plaintiff haslost his right by prescription. The appellant is entitled to thecosts of this appeal. All other costs will abide the event.
Bertram C.J.—I agree.
Set aside.
1984.
Jaybwab*DENE AJ.
MartheHa v.Siriwar-denehamy
Case remitted12(61)29