026-NLR-NLR-V-39-THAMBY-LEBBE-et-al.-v.-JAMALDEEN.pdf
Thamby Lebbe v. Jamaldeen.^73
1937Present: Soertsz and Hearne JJ.
THAMBY LEBBE et al. v. JAMALDEEN.
196—D. C. Kandy, 47,009.
Agreement—Promise to give as dowry immovable property worth Rs. 20,000—Agreement not notarially attested—Validity—Ordinance No. 7 of 2840,s. 2—Ordinance No. 22 of 1871, s. 8.
An agreement to give as dowry immovable property to the value ofRs. 20,000 or the equivalent in cash, which is not notarially attested,is enforceable.
The words “promise, bargain, contract or agreement for effecting anysuch object ” in section 2 (b) of the Ordinance of Frauds refer to a meansof and a stage in the formal effectuation of a sale, purchase, transfer,assignment, or mortgage.
Held, further, that the cause of action arose on the refusal to carry outthe agreement and that the action was not barred by section 8 of thePrescription Ordinance.
r I ''HE pain tiffs, husband and wife, sued the defendant for the recoveryof a sum of Rs. 20,000 on account of dowry promised them by thedefendant. The plaintiffs relied, for the basis of their action, on thearrangement and promise entered into at the time that the negotiationsfor the marriage were concluded. The defendant stated that his promisewas in respect of immovable property and was, in the absence of a notarialwriting, unenforceable in law (section 2 of Ordinance No. 7 of 1840).A plea of prescription was also raised by the defendant. The DistrictJudge gave judgment for the defendant and the plaintiffs appealed.
Hayley, K.C. (with him C. V. Ranawake), for plaintiffs, appellant. Thedefendant admits the promise of land, but claims that it cannot beenforced as there is no notarial agreement. The marriage register P 1records whatever Mohr or Stridanam was given. The question here iswhether Ordinance No. 7 of 1840 applies to a promise to give unspecifiedland. The Ordinance has no application to a mere promise to settleland. If there is no conveyance, the remedy is an action for moneydamages as for a breach of contract.
Here there is no specific performance available as there is no landspecified. Section 2 of Ordinance No. 7. of 1840 refers to—(o) anactual specific conveyance of land, i.e., immediate dealings ,with land ; (b>a “ promise …. for effecting such object ”. This does not meana promise to effect, in the future. Promise …. for “effecting,a mortgage” results in a mortgage bond. It does not refer to futuretransactions ; and (c) contracts or agreements for the future dealingswith land ; these refer only to sale or purchase.
A strict interpretation of this Ordinance is required. It was held inNarayan Chetty v. James Finlay & Co.1 that the Ordinance did not applyto equitable interests. The English Act has specific provisions regardingtrusts, which are excluded from our Ordinance. Section 4 of the EnglishAct makes definite provision for settlements on marriage; our Ordinanceregarding future dealings speaks only of sale and purchase. Thus thepromise in this case is not covered by the Ordinance at all.
1 29 N. L. R. 65.
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Thamby Lebbe v. Jamaldeen.
As regards the action for damages—vide 25 Hals. 547 (old ed.). Underthe Registration Ordinance “ any land ” is specific land. Section 6 andsection 8 are taken over verbatim from the Statute of Frauds. Section14 requires description of land. Thus a promise to give land, as in thiscase, is one that cannot be registered, but is one that can be duly enforcedto the extent of obtaining damages.
JL. A. Rajapakse (with him H. V. Perera, K.C., and M. J. Molligoda),for defendant, respondent;—The plaint was filed on October 19, 1935, andpara. 3 recites: —“ The defendant agreed to settle on the two plaintiffsa house and paddy field …. whenver they demanded thesame Therefore the cause of action was one on demand. Further,para. 6 of the plaint recites that “ plaintiffs complain that during the lasttwo years they requested the defendant to implement the undertakingThe answer was filed in December, 1935, and the plea was taken thatthe claim was prescribed in three years from the date of the cause ofaction.
The amended plaint then recites:—“In October, 1930. a marriagewas arranged and the defendant promised a dower gift of Rs. 20,000 andin pursuance of such arrangement the defendant confirmed the saidpromise and undertook to give the gift either in land or in cash “ when-ever according to custom the plaintiffs shall have made demand. and inOctober, 1935, the defendant failed to keep to his promise. P 1, themarriage certificate, mentions the amount of Mahr and Stridanam, viz.,
“ Stridanam—cash Rs. 1,000 and house and paddy field and estate worth•Rs. 20,000 at Nawalapitiya and Rambukpitiya. Stridanam amountreceived, balance to be given whenever bride and bridegroom asked forthem ”. Thus the defendant undertook to give property not in general,but certain property in a specific place.
The cause of action in the plaint was upon a certain writing and if thewriting was enforceable in law, the action was prescribed in six years.If the cause of action was not upon the writing, vide amended plaint, e.g..promise—the action is prescribed in three years.
The cause of action arose immediately, for the agreement to give theidowry was one on demand. In the case of a promissory note, the cause ofaction arises from the moment the money is due. Therefore the cause ofaction in the present case, whether based on P 1 or on an alleged oralagreement is one for money payable on demand ; and comes withinsection 7 or section 8 respectively of Ordinance No. 22 of 1871. Section 7upon P 1, section 8, if not on a writing.
[Soertsz J.-:—Suppose the action was on the footing of a verbalpromise which in the course of evidence is supported by writing—will itnot be governed by section 7 ? Must the fact of writing be pleaded ?Here the plaintiffs file an amended plaint after the answer.]
Dealing with section 2 of Ordinance No. 7 of 1840 the appellantslimit this case to a future promise. Here the lands are in Nawalapitiyaand not lands in general. This is a promise or an agreement foreffecting a transfer of land.
[Soertsz J.—How are you going to register lands, supposing thedefendant had lands in Nawalapitiya ?]
HEARNE J.—Thamby Lebbe v. Jamaldeen.
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Section 14 (1) and (5) refer to the particulars required and theRegistrar can refuse to register the document. From the mere fact thatthe instrument cannot be registered, one cannot necessarily infer that theOrdinance does not apply.
Narayeri Chetty v. James Finlay & Co. does not say that equitableinterests may be conveyed without a notarial instrument. The dictumthat equitable interests could be transferred without a notarial agreementis obiter. Therefore the provisions of section 2 of Ordinance No. 7 of1840 cannot exclude this promise. The claim for damages is prescribedin three years.
Hayley, K.C., in reply.—On the point of prescription, the Kaduttamdeed P 1, was signed by the plaintiffs and the defendant. Thereforewhatever be the date on which the previous contract was made, thisdeed is to be regarded as a new contract and prescription runs from thatdate—six years. Even the amended plaint comes within six years.Damages do not arise till the plaintiffs have made demand and thedefendant has failed to comply. If he wants to limit the plaintiffs’right, the defendant must show a statute obstructing their right. Section4 of the English Act is expressly left out of our Ordinance, i.e., resettlements in consideration of marriage.
“ Any land ” in the Registration Ordinance must be specific lands.There is no sense in going before a notary and promising to give what isindefinite. If the land is registered, it can be traced. A mere generalpromise need not be attested by a notary.
Cur. adv. wit.
July 1, 1937. Hearne J.—
In. this case the trial Judge found that the defendant-respondenthat promised the plaintiffs-appellants a dowry gift of Rs. 20,000 inconsideration of their marriage which took place on December 20, 1930,and that he failed to give them immovable property to the value ofRs. 20,000 or the equivalent in cash as .stated in the marriage certificate.In the marriage certificate it is stated that the Stridanam was to be“ cash Rs. i,000 and house and paddy field and estate worth Rs. 20,000at Nawalapitiya and Rambukpitiya ”. The next paragraph is to theeffect that “ the Stridanam amount (had been) received, the balance to begiven whenever the bride and bridegroom asked for them ”. It is agreedfor the purposes of this appeal that “ Stridanam ” should read “ part ofthe Stridanam” and that the sum of money that actually changed handswas Rs. 1,000 only. On the issue of prescription the Judge found infavour of the plaintiffs, now appellants, but dismissed their claim on theground that the defendant-respondents, not having agreed to giveRs. 20,000 in cash, the plaintiffs were not entitled “ to claim immovableproperty in the absence of notarial writing ”.
Whether or not notarial writing is necessary depends upon theinterpretation that is placed on section 2 of Ordinance No. 7 of 1840.That section provides that (a) no sale, purchase, transfer, assignment, ormortgage of land or other immovable property, (b) no promise, bargain,contract, or agreement for effecting any such object ., and (c)
no contract or agreement for the future sale or purchase of any land orimmovable property, shall be of force or avail in law unless ….
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HEARNE J.—Thamby Lebbe v. Jamaldeert.
The facts of this case cannot be said to fall within (c), for there was noagreement of sale or purchase nor, in so far as (a) is concerned, was thereany sale, purchase, transfer, assignment, or mortgage. The question forwhich there is, as I understood, no authority in this Court is whetheran' agreement made upon consideration of marriage to settle upon theplaintiffs landed property is a bargain, promise, or agreement for“effecting” one of the “objects” referred to in (a). I do not think that(b) is susceptible of or intended to have that meaning. I regard thewords “ promise, bargain, contract, or agreement for effecting any suchobject ” as referring to a means of and a stage in the formal effectuationof a sale, purchase, transfer, assignment, or mortgage. The draftsmanno doubt had before him the Statute of Frauds and it would appear thatthe clause in section 4 of the Statute relating to agreements made uponconsideration of marriage was omitted designedly. A clause of thatnature would not have been left to the Courts to infer from the text butwould have been stated expressly. It is possible, if not probable, thatthe conditions in Ceylon would have made impracticable an insistenceupon notarial attestation in every case and that this was the reason forthe omission.
Apart from this view which I take of section 2 of Ordinance No. 7 of1840, I doubt very much whether the Ordinance has any applicationat all where the land, as in the present case, is unidentifiable land. Thedefendant-respondent’s promise had reference to property which waslimited as to value and as to situation but apart from these limitationswas a promise of land at large. Section 8 (a) of the Registration ofDocuments Ordinance, No. 23 of. 1927, refers to the same instrumentsaffecting land as does section 2 of Ordinance No. 7 of 1840 and it wouldappear that the instruments in question as mentioned in both are thosewhich relate to or affect specific properties.
In my opinion the view taken by the learned District Judge was wrong.
On the question of prescription Counsel for the respondent has arguedthat as the plaintiffs relied upon a verbal promise for payment of thedower -gift on demand, the cause of action arose in October, 1930, andthat in consequence the plaintiffs’ claim was barred by section 8 ofOrdinance. No. 22 of 1871. Now apart from the fact that the plaintiffsalleged that the defendant had confirmed his promise at the> marriage inwriting, it is quite clear from the evidence of the plaintiffs (the defendantdid not give any evidence at all) that the defendant verbally renewedhis promise from time to time till October, 1935, when he definitelyrefused to fulfil it. This refusal gave rise to the cause of action. TheDistrict Judge was, in my opinion, right in finding that the cause of actionaccrued to the plaintiffs in 1935.
' The appeal is allowed with costs. No issue was framed in the lowerCourt on the question of damages. The case should be remitted to the. Judge to decide the amount of damages suffered, by the plaintiffsconsequent upon the defendant’s refusal to settle property on theplaintiffs and to enter judgment in their favour in accordance with hisfinding.
Soertsz J.—I agree.
ppeal allowed.