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Present: Lascelles C.J.
MARTIN et al. v. HATANA et al.
422—C. R. Kegalla, 9,574.
Obligations of a panguiva of a nindagama to render services—Indivisibleobligation.
The obligation of the tenants of a panguwa of a nindagama totender services is in the nature of an indivisible obligation, and'therefore the liability to pay the commuted dues is also indivisible*
rpHE facts appear sufficiently from the judgment.
Bawa, K.C., for defendants, appellants.
H. Jayewardene, for plaintiffs, respondents.
Cur. adv. vult,
January 23, 1913. Lascelles C.J.—.
This is an appeal from a judgment of the Commissioner of Requestsof Kegalla awarding the plaintiffs Rs. 25.40 as damages for thevalue of services due by the defendants as the proprietors of anindagama known as the Bandaragama Nindagama. The liabilitiesof the defendants as tenants of the nindagama are, as the Com-missioner points out, res judicata by reason of the judgment in C. R.Kegalla, 7,454, to which all the defendants but the fourteenthdefendant, who is the successor in title of some of the defendants,were parties.
In the petition of appeal and on the arguments points are raisedwhich are outside the issues. No question was raised in the issuesas to notice, but, as a matter of fact, there is some evidence ofnotice, and, as Wendt J. observed in C. R. No. 7,454, slight evidenceof notice is sufficient.
Then the question of damages is raised. But no issue was framedon this point, and the case appears to have gone to trial on thefooting that Rs. 25.40, the sum for which the services had beenassessed by the Commissioner for the purpose of perpetual com-mutation, was a reasonable figure. .This is an amount which it wascompetent for the Court to award as damages under section 25 ofOrdinance No. 4 of 1870. The question whether the services aredivisible was raised in the answer of the fourteenth defendant andin the third issue. The position of the fourteenth defendant is that
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if the defendants are -liable, his company is not liable to pay morethan what is proportionate to the share of land owned by hiscompany.
On thin point we have been referred to the decision of this Courtin C. B. Ratnapura, No. 284,1 where it was held that each of thenilakarayas of a panguwa was liable only for a share of the servicewhich is proportionate to his share in the panguwa. A few monthslater this decision appears to have been followed in C. B. Kandy,4,533.2 But these decisions, as to the soundness of which Iconfess that Z have considerable doubts, do not appear to have beenfollowed in recent years. In Aamadale v. Weerasuriya 3 my brotherPereira held that the obligation of the tenants of a panguwa of anindagama to render services is in the nature of an indivisibleobligation, and therefore the liability to pay the commuted dues isalso indivisible. In Ratwatte v. Polambegoda,* the question whetherthe liability of the tenants was or was not joint and several was inissue. The Commissioner of Bequests held that the panguwa wasthe unit of contribution, and that the liability was joint and several.Lawrie'J. in his judgment did not expressly deal with this point,but the inference I think is that he concurred in the propositionof law laid down by the Commissioner.
In view of these authorities, which represent the view commonlyheld as to the obligation of the tenants of a panguwa, and on accountof the practical difficulty of distributing the liability, I think thatthe decision in C. B. Ratnapura, No. 284, is one which mightproperly be reconsidered by a Collective Court when the questioncomes up in a suitable form. But in the present case it is notnecessary to take this course. The action is one for damages undersection 25 of Ordinance No. 4 of 1870, a section which clearlyenables the proprietor to sue the holders of the panguwa collectively.I fail to see that under this section it is open for one of the tenantsto claim that his liability should be restricted to an amount ofdamages which is proportionate to his holding in the panguwa. Toallow this claim would be inequitable to the proprietor, for theproportionate share of each tenant could not be ascertained withouta survey and probably a valuation, the costs of which, in caseslike the present, would far exceed the whole amount^f damages.Whatever may be the law as to the divisibility of the liability torender services, or to pay the commutation for services, I thinkthat when it comes to recovering damages, in a case where theliability has not been apportioned, the damages are recoverablefrom the tenants jointly.
. The appeal, I. think, should be dismissed with costs.
i Ram. 1977,131.• Ram. 1977, 896.
» 8 fiat. 61.*6N.L.R.148.
MARTIN et al v. HATANA et al