083-NLR-NLR-V-41-MEDHANKARA-ISTAWEERA-v.-SUPPRAMANIAM-CHETTIAR–et-al.pdf
Medhankara Istaweera v. Suppromaniam Chettiar.
329
1939Present: Hearn e S.P.J.
MEDHANKARA ISTAWEERA v. SUPPRAMANIAMCHETTIAR et al.88—C. R. Kegalla, 11,571.
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Service Tenures Ordinance, s. 25 (Cap. 323)—Claim, for services from paraveninilakarayas—Value of services at present time—Register to be relatedto the time it was made.
The value of customary services due by a paraveni nilakaraya shouldbe calculated as at the present time.
The amount of money payment jfor which services may be commutedas given in the register must be- related to the time the registers aremade.
Yatawara Dissawa v. Lekamalage et al. (16 N. L. R. 14) referred to.
PPEAL from a judgment of the Commissioner of Requests, Kegalla.
A. P. Wijeratne, for plaintiff, appellant.
Cyril E. S. Perera (with him S. C. E. Rodrigo), for defendants,respondents.
330 HEARNE S.P.J.—Medhankara IstaweeTa v. Suppramaniam Chettiar.
August 23, 1939. Hearne S.P.J.—
The plaintiff, as the incumbent of Bisowela Vihare, sued the defendantsas the paraveni nilakarayas for Rs. 151.50 being half share of the servicesdue by them to the temple. Judgment was entered for Rs. 30 and theplaintiff has appealed.
In the argument addressed to me by Counsel for the appellant it wassaid that the Commissioner had before him evidence that the defendantsreceived as income from the temple land Rs. 50 to Rs. 60 only as theirhalf share, and that he accordingly related the money value of-the servicesdue by the defendants to the income derived by them. For these reasonsthis Court was pressed to send the case back to the Commissioner ofRequests with directions that he should calculate the amount due onlyby assessing the actual cost of supplying meals to the incumbent and of'repairing the Vihare.
This argument by Counsel is strangely at variance with the petition ofappeal in which it is asserted that “ according to the assessment placedby the learned Commissioner of Requests a sum of Rs. 60 a year wouldsuffice to provide the daily meals of the chief priest and for the annualrepairs to the Vihare ” but, the petition continues “ the learned Com-missioner has not taken into consideration that in the event of non- .performance of the <■ services, the appellant is compelled to engage theservices of a servant to prepare his meals ….”.
It is to be noted in the first, place that a fresh point was taken in thepetition which was not taken in the Court of the Commissioner, viz., thatin valuing the cost of meals not supplied the wages of a servant are to betaken into account (it was not, I may add, mentioned in the argument onappeal) and in the second place that Counsel for appellant asked thisCourt to send the case back to the Commissioner of Requests in orderthat he might do what according to the petition he has already done.
I have read the judgment of the Commissioner with care. There arein it undoubtedly expressions which indicate that it would b£ inequitableto adjudge the defendants liable to pay a bigger sum than they receive asincome, but it is also clear to me, as the petition itself asserts, that heattempted to place a money value on-the services which the defendantswere liable to perform. Taking into account the fact that “ the cost offeeding a priest has gone up ”, and “ viewing the matter in the. light ofpresent circumstances ”, he thought the claim of “ the priest was highlyexaggerated ”, and fixed Rs. 30 as the equivalent of annual services inrespect of a half share of the land in- question. The appeal, as it wasargued before me, appears to have proceeded on a misconception whichwas not, as I have indicated, shared by the proctor who drafted thepetition.
In replying to the arguments of Counsel for the appellant, Counsel forthe respondents referred to the word “ perpetual ” in section 25 ofOrdinance No. 4 qf 1370 (Vol. 6, Legislative Enactments, Cap. 323, p. .666).ITe argued that the use of that word indicated that once the commutationof services due under, the Ordinance dealing with Service Tenures (4 of,1870) had been fixed in accordance with the provisions of the Ordinance,such commutation was a constant and was not liable- to be changed ;
331
N1HILL. J.—Abeywardene v. Nonohamy.
that, as according to the -Register of Paraveni Panglts relative to theproperty in question, the annual commutation was Rs. 28, the defendants’half share could not amount to more than Rs. 14. This is clearly opposedto what is laid down by the Ordinance, viz., that the annual amount ofmoney payment for which services may be commuted must be related tothe time the registers are made. The registers are a guide and no morethan a guide, though they may, in the absence of evidence, provide theonly basis of assessment' Yatawara Dissawa v. Lekamalage et. al. '
The arguments addressed to me by Counsel for both the appellant andrespondents are in my opinion alike misleading. The Commissioner ofRequests took the proper view in calculating the value of the customaryservices at the present time. His conclusion involves a question of factwith which, on the evidence adduced, I would not interfere.
In the circumstances I dismiss the appeal and order that each partyshall bear his or their own costs of the appeal.
Appeal dismissed.