WEERASOORIYA, J.—Piyadasa v. Panditharatna Hamine
Present: Weerasooriya, 2., and Sansoni, J.
PIYADASA, Appellant, and PANDITHARATNAHAM! hi E, Respondent
8. C. 491—D. G. Matara, 722(M
Assuming that a lease of immovable proparty for a period exceeding one-month can be cancelled or terminated by means of an informal endorsement on.the deed of lease, it is essential that, in such a case, possession also of the-leased property should be surrendered by the lessee to the lessor.
aPPEAL from a judgment of the District Court, Matara.
It. P. Goonetilleke, for defendant-appellant.
W. D. Qunaselcera, for plaintiff-respondent.
Cur. adv. wdU
November 20, 1959. W^bbasoobiva, J.—
The plaintiff-respondent filed this action against the defendant-appellant for the recovery of a stun of Rs. 400 being the balance saidto be due on a promise in 'writing dated the 6th October, 1953, grantedby the defendant and marked A ” and annexed to the plaint.
The documenttf A ” is in Sinhalese. According to a translation filedof record (the correctness of ■which has not been questioned) the materialpart of the document reads as follows :
“ I Wickremasinghe Ambepitiya Piyadasa of Gabadaweediya,Matara, do hereby disclose : That in respect of the premises dealt■with by the deed of renunciation of rights No. 16487 attested byA. D. S. W. Samaranayake this day, that immediately after the Deedof Lease No. 12945 of the 9th July, 1952, executed by Grace PhilipPanditharatna Hamine of Blamburupitiya for a period of five yearscommencing from 1st July, 1952, is cancelled by a deed executed in
WEERASOORlYii, JT.—Piyadaea v. Pcmditharatna Hamine
accordance with, law in as far as it concerns the remaining period ofthe said lease, I do hereby promise to pay unto Grace PhilipFanditharatna aforesaid the sum of rupees six hundred (Rs. 600)lawful money of Ceylon. ”
Grace Philip Fanditharatna referred to in the document is the plaintiff.2h her plaint which is dated the 11th May, 1956, there is no avermentthat deed of lease No. 12945 had been cancelled.It merely sets out that
subsequent to the execution of the document ** A ” the defendant hadpaid a sum of Its. 200 on account and the balance sum of Its. 400 wasjustly and truly due and owing ” from him to the plaintiff which sumhe had failed to pay " though thereto often demanded
At the trial, after the issues had been settled, Counsel for the plaintiffproduced what he described as “ the cancellation ” of deed of leaseNo. 12945 marked P 1. By that deed of lease, which was executedon the 9th July, 1952, the plaintiff leased to one Gunadasa for a periodof five years commencing from the 1st July, 1952, at a rental of Rs. 40per annum, the land described in the schedule thereto. The *e cancellation ”consists of an endorsement on the deed which reads: “ We the lessorand lessee by usual agreement do hereby cancel this lease on this 13th•day of June, 1955”. It is signed by the lessor and lessee and twowitnesses. This endorsement has been registered on the 14th June, 1955,as a cancellation of the lease.
The defendant, who was the only witness called at the trial, statedthat he purchased from the plaintiff for Rs. 1,250 the land which wasthen subject to the lease and that he gave the document “ A ” on thestrength of the plaintiff’s undertaking to get the lease cancelled in themanner stipulated in the document, that at no time had he been informedby the plaintiff that the lease had been cancelled and he subsequentlysold the land to a third party for Rs. 4000. He denied that he had gotpossession of the land at any time and stated that the lessee continuedto be in possession.
The learned trial Judge gave judgment for the plaintiff and thedefendant has filed this appeal against it. Mr. Gunasekerafor the plaintiffsubmitted at the hearing before us that the endorsement on the deedof lease No. 12945 amounts to a legal cancellation of the lease. He reliedon the judgment of Jayewardene, J-, in Gopallawa v. Fernando andAnother 1. The question that arose in that case was whether a notariallease of land for a period of five years could be regarded as having beenlegally terminated on the lessee making an endorsement on the deedof lease that it was cancelled and also surrendering possession to thelessor. Jayewardene, J., held that it was not necessary to have a notarialdocument cancelling the deed and that as between the lessor and thelessee the lease must be regarded as terminated. He referred to thecase of lsohami v. Appuhamy 8 where Shaw, J., held that an informalagreement (which was not even reduced to writing) was sufficient toterminate a lease of land for a period of six years as the agreement hadbeen acted upon by the lessee surrendering, and the lessor taking over,
1 (1926) 26 O. i. W. 93.
2 (1920) 7 C. W. R. 290.
KrishnapiUai v. Inspector of Police, Crimes499
But I do not see how these two decisions can avail the plaintiff. Evengranting that a lease of land for a period exceeding one month can beterminated by a mere informal agreement, I think it is essential thatpossession also should be surrendered by the lessee to the lessor. In thepresent case, notwithstanding the purported cancellation of the leaseon the 13th June, 1955, it appears from the uncontradicted evidenceof the defendant that the lessee continued to be in possession of the landeven on the date when this action was filed and also thereafter. Theplaintiff has, therefore, failed to establish a valid cancellation of thelease. There is yet another reason why she ' cannot succeed. Theagreement “ A ” specially stipulates for a cancellation of the lease “ bya deed executed in accordance with law ”, whioh expression, in myopinion, signifies a formal document, such as a notarially attestedinstrument, and not a mere endorsement. The stipulation may wellhave been inserted for the avoidance of the very questions of law whichwere agitated in this case as a result of the purported cancellation of thelease by the informal method of an endorsement.
For these reasons the judgment and decree appealed from must beset aside and the plaintiff’s action dismissed with costs here and in theDistrict Court.
Sansowi, J.—I agree.
PIYADASA, Appellant ,and PANDITHARATNE HAMINE , Respondent