062-NLR-NLR-V-22-VYRAMUTTU-v.-DISSANAYAKE.pdf
( 196 )
Present: De Sampayo J.1920.
VYRAMUTTU «. DISSANAYAKE.
0. B. Anuradhapura, 10J.22,
Interpretation of deed—Agreement to pay rent in paddy—Valuation ofpaddy in deed for purpose of stamping deed—Action to recovervalue of paddy according to market rate in default of payment ofpaddy—Stamp Ordinance, s. 25.
– Plaintiff leased to defendant a paddy field for the annual rent of130 bushels of paddy. For the purpose of regulating the stampsto be affixed to the deed of lease the paddy was valued, in the bonditself, at Be. 1 *60 per bushel.
In an action by plaintiff to recover arrears of rent in paddy, orin default damages at Bs. 3 a bushel, which was the market rate—
Held, that in the circumstances the plaintiff was entitled to claimdamages at the market rate, and that section 26 of the StampOrdinance« No. 22 of 1909, did not bar the plaintiff from claimingdamages according to the market rate.
r | '±1E facts appear from the judgment.
The deed in question was as follows:—
This indenture made and entered into at Anuradhapura, in theDistrict of Anuradhapura, North-Central Province, this Twentieth dayof October, u>. One thousand Nine hundred mid Sixteen, betweenArumugam Vairamuttu, presently of Anuradhapura aforesaid (herein*after called the lessor) of the one part, mid Stephen Dissanayake ofAbhayagiriya, in the town of Anuradhapura aforesaid (hereinaftercalled the lessee), of the other part, witnesseth:
The lessor, in consideration of the rent and covenants hereinafter onthe part of the lessee reserved and contained doth hereby let anddemise unto the lessee, his heirs, Ac., all that divided portion out ofland called Abhayagiriyakele described …. To hold the saidpremises unto the lessee mid his aforewritten for the term of five years,commencing from the date hereof, yielding mid paying therefor byway of annual rent one hundred and thirty bushels of good paddy freeof chaff and other refuse in half-yearly instalments of sixty-five bushelsat the end of each of the two sowing seasons of the year. Provided,and it is hereby expressly declared and agreed, that in case the saidportion of land, together with other lands under the Bassawakulamatank, shall not be cultivated, or in case the paddy crops growing on thesaid land shall be withered mid die away in any season of the said termfor lack of sufficient water supply, the said rent shall not be payable inrespect of the said sowing season (one bushel of paddy being valuedat one rupee and cents fifty).
The lessee hereby convenants with the lessor that the -lessee shallyield and deliver the said paddy rent in, manner hereinbefore reserved;and shall at the expiration of the said term peaceably and quietlydeliver over possession of. the said premises to the lessor. Provided,however, and it is hereby agreed that in the event, of the lessee failing.
( 196 )
1020.-
Vyramuttu
v.
Dieeanayake
refusing, or neglecting to deliver the said rent in manner hereinbeforereserved, it Bhail be lawful for the lessor to cancel and'determine thesepresents and forthwith to eject the lessee from the said premises, not-withstanding that the said term of five years has not elapsed, and tosue for and recover all arrears of rent then due. The lessor herebycovenants with the lessee that the lessor shall pay and discharge alltaxes, rates, assessments, impositions, dues, and charges which are nowor may hereafter be levied on or in respect of the said premises duringthe said term, and that the lessee paying the rent and performing thecovenants herein on his part reserved and contained shall* and maypeaceably and quietly hold and enjoy the said premises during thesaid term without any interruption, hindrance, or disturbance by thelessor or any persons.
In witness whereof, &c.,
Signed, witnessed, and attested.
J. S. Jayawardene, for defendant, appellant.
jR. L. Pereira, for plaintiff, respondent.
July 19, 1920. De Sampayo J.—
This case involves the construction of a deed of lease of a paddyland. By deed dated October 20,1916, the plaintiff leased the landto. the defendant for a period of five years, and it was thereinstipulated that the defendant should pay by way of annual rent 130bushels of paddy in two half-yearly instalments of 65 bushels at theend of each of the two harvests of the year. The plaintiff broughtthis action in respect of the instalment of rent due at the end ofmaha harvest, 1918-1919, and prayed that the defendant be orderedto deliver to him 65 bushels of paddy and in default of suchdeliveryto pay damages. He estimated his damages at Rs. 3 per bushel,being the rate at which paddy was valued by him. The defendantdisputed the correctness of the claim in respect of damages, hiscontention being that the paddy deliverable was valued in the deedof lease itself at Re. 1*50 per bushel. He relied on the followingpassage in the deed :—
“ To hold the said premises unto the lessee and his afore-written for the term of five years commencing from the datehereof, yielding and paying therefor by way of annual rent130 bushels of good, paddy free of chaff and other refuse inhalf-yearly instalments of 65 bushels at the end of each of thetwo sowing seasons of the year. Provided, and it is herebydeclared and agreed, that in case the said portion of land,together with other lands under the Bassawakulama tankshall not be cultivated, or in case the paddy crops growingon the said land be withered and die away in any season ofthe said termforlack of sufficient water supply the said rentshallnotbe payable in respect of the said sowing season (onebushel of paddy being valued at one rupee and cents fifty).-''
( 197 )
The defendant contends that the last words within the bracketsconstitute a stipulation that if the paddy were not delivered in kindthe assessment of damages should be at the rate of Be. 1*50 perbushel. The notary who attested the deed stated that those wordswere put in only for the purpose of regulating the stamps to beaffixed to the deed, and not for the purpose contended for by thedefendant. Perhaps such oral evidence was not admissible toconstrue the deed, but I think that an independent considerationof the deed leads to the same conclusion. These words have nogrammatical connection with what precedes, nor do they have anyvisible reference to the delivery of paddy. It will be noticed thatthere is no stipulation that the rent, whioh is to be in kind, should inoase of default be paid in money calculated at the rate of Be. 1*50per bushel or any other rate. The rent is payable under any cir-cumstances in kind only.. The claim in this case is for the paddydeliverable at the eDd of the maha harvest of 1918-1919, and as thedefendant failed to deliver that paddy, he must pay to the plaintiffsuch a sum as would enable the plaintiff to buy the paddy in themarket. The market rate would seem to have been even higherthan Bs. 3 per bushel, but the Commissioner has allowed that rate.Under the decree the defendant may, if he does not wish to pay incash, discharge his obligation by delivering the paddy in kind, andI do not think he is entitled to any further relief so far as thestipulations in the deed are concerned.
Beliance was also placed on the provision of section 25 of theStamp Ordinance, No. 22 of 1909, which runs as follows:—
“ Where the amount or value of the subject-matter of anyinstrument chargeable with ad valorem duty cannot beascertained …. at the date oi its execution orfirst execution, nothing shall be claimable under suchinstrument more than the highest amount or value forwhich, if stated in an instrument of the same description,thestamp actually used would, at the date of au?v» execution,have been sufficient.”
The subject-matter of the lease was the quantity of paddy stipu-lated for, and if the rate mentioned within the brackets be thevaluation of that paddy, the value of the subject-matter of the leaseat the date of its execution was, in fact, ascertained, and the deedwas stamped accordingly. The instrument was, therefore, operativeto its full extent, and the entire quantity of paddy was claimableby the plaintiff. At what rate that paddy should now be valuedis a different question. As I have already stated, the paddy shouldbe valued at the market rate prevailing at the time when it shouldhave been delivered, and this is what has been done.
The appeal is dismissed, with costs.
Appeal dismissed.
1920.
DsBiarm .J.
Vyramutfu
v.
Diteanayake