068-NLR-NLR-V-13-PEIRIS-et-al.-v.-PERERA.pdf
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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice, >
and Mr. Justice Van Langenberg.*
PEIEIS et al. v. PEBEBA.
D. C., Ckilaw, 3,605.
Lease of coconut trees for one year—Should be by notarial• agreement—Lessee under verbal lease bound to compensate owner for produceenjoyed by lessee.
A contract by which a person gives another the right to theexclusive possession of specified coconut trees for a year, for thepurpose of drawing toddy from them, must be notarially executed.
A lessee who enjoyed the produce of the trees under a verballease would, however, be bound to compensate the owner for theproduce.
T
HE facts are fully set out in the judgment of Van Langen-berg A.J.
Chitty, for appellant.—The agreement set out in the plaint is voidin law, as it is not contained in a notarial document. It is anagreement whereby an interest in land is sought to be created.Counsel cited Board of Health and Improvement, Trincomalee, v.Subramaniapittai; 1 Perera v. Amarasooriya;8 Pereira’s Laws ofCeylon., vol. II., page 557.
B. F. de Silva, for the respondents.—The case of Fernando v.Themaris 3 is a binding authority. The defendant has taken theproduce of the trees and must pay compensation in any case.
Cur. adv. vvlt.
June 7, 1910. Van Langenberg A.J.—.
.The plaintiffs bought from-the Crown the right to buy and sellarrack in the Chilaw District for the years 1903 and 1904. Theplaintiffs say they sold to the defendant the right of selling arrackat a particular tavern for Bs. 1,600, and that they gave possessionof seventy-five coconut trees to the defendant with a right to drawtoddy from them for that year, and that defendant was to pay themrent at the rate of Bs. 8 per tree. They further claim Bs. 100 forarrack sold by them to the defendant. Certain payments weremade by the defendant, and the plaintiffs bring this action for abalance due to them of Bs. 871.76. There was no . written agree-ment between the parties. In his answer the- defendant pleadedthat the agreement sued upon was bad in law, and on the meritsdenied the agreement set out in the plaint, and stated that the
-1 (1906) 2. A. C. B. 146.3 (1909) 12. N. L. B. 97.
3 (1892) 2. C. L. B. 183.
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June 7,1910 agreement between him and the plaintiffs was that he should buy allVmTlan-he wanted from the plaintiffs, paying them, so he says
obhbbbg in his evidence, Bs. 8 for every .gallon, this being Bs. 3 in excess of thevalue of the arrack, and that he paid all sums due to the plaintiffs.
Peiria v.Perera
Among the issues framed were these: —
M What was the agreement between the -parties; was it valid^in law ?
M Was there a subsequent agreement between the parties as setout in the second paragraph of the answer ?
The learned Judge believed the evidence called for the plaintiffs,and I am not prepared to say he was wrong in so doing. He enteredjudgment for the plaintiffs for the amount claimed. The defendanthas appealed- In appeal it was argued that the agreement was oneaffecting immovable property, and that under section 2 of OrdinanceNo. 7 of 1840 a writing attested by a notary was necessary. This doesnot affect the agreement to pay Bs. 1,500. As regards the coconuttrees, I gather from the evidence that the contract was that thedefendant had the right to the exclusive possession of seventy-fivetrees for a year for the purpose of drawing toddy from them. Thisseems to me to be an interest affecting immovable property, andI think that under the Ordinance the contract should have beenin writing and attested by a notary. The case of Fernando v,Themaris 1 was cited, in which Withers J. would appear to haveheld the contrary. The details of the contract are not set outin the report, and it is difficult to say how far that decisionwould apply in the present case. The defendant in this case has,however, enjoyed, as he admits, the produce of about forty ‘trees, so that he would be bound to compensate the plaintiff forthis. I am not disposed to send the case back for the trial of theissue as to what would be reasonable compensation, first, becausethe District Judge in believing the evidence of the plaintiff mustnecessarily have believed that seventy-five trees were given over tothe defendant; secondly, there .is no suggestion that Bs. 8 is anextravagant claim to make in respect of each tree; thirdly * I am notsatisfied that the objection based in the Ordinance No. 7 of 1840was taken in the Court below; the point is so simple that an issuecould have been plainly stated in unmistakable terms.. The petitionof appeal does not mention the point, unles it is concealed in thewords that there was “ no valid agreement ” between the parties,and I gather from the judgment of the Judge that the argumentaddressed to him was that the agreement should have been inwriting under the Sale of Goods Ordinance, I would dismiss theappeal with costs.
Hutchinson C.J.—I concur.
Appeal dismissed.
1 {1892) 2 C. L. R. 183.