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1923.

BERTRAM

plaintiff to the defendants warning them not to build the house on the land in dispute. In his judgment he says: "The defendants C.J. were warned not to build the house (see P 12, i.e., the letter referred to). "They elected to build notwithstanding that Dingiri Mahatmaya warning," and observes a little further down: "The defendants V. are malâ fide possessors, and cannot, therefore, compel the plaintiff Mudiyanse to pay them compensation for the house."

It had apparently escaped the notice of the learned District Judge that he himself was the person who wrote the letter on behalf of plaintiff. No objection was taken by the defendant at the hearing or in the petition of appeal, but we think it right, on the matter being brought to our notice, to send the case back for a re-hearing before another Judge.

The arrangement under which a gentleman practising as proctor also from time to time acts as District Judge, when the District Judge is absent on leave, is no doubt a very common thing, and it is one to which objection cannot be taken, but where a gentleman practising at the bar regularly acts from time to time during absences of the District Judge at other places, it is particularly important that the arrangement should be very carefully watched. In such cases the District Judge is liable to stumble into a case in which he has himself advised one of the parties, and, when that happens, I do not think that he should proceed with the case without getting the express consent of both parties. No doubt in this case what I have referred to was accidental, and the proctors engaged would thoroughly understand the position, but this would not necessarily be so in the case of their clients. It is important that the administration of justice should be free from even the suggestion of suspicion, and, without casting any reflection on the learned District Judge who tried the case, I think it should be well that it should go back for a re-trial.

I would, therefore, set aside the decree pro formâ, and remit the

case.

Costs of this appeal to be costs in the cause.

SCHNEIDER J.- -I agree.

Sent back.

Present: Ennis and Porter JJ.

HABEEBU v. SILVA.

300-D. C. Galle, 18,265.

Muhammadan law-Gift of land subject to long lease-Seisin-Delivery of possession-Lapse of time after gift-Presumption.

A Muhammadan gifted in 1891 a land which was subject to a long lease to his daughter N, who accepted the same in the deed. N died in 1897, leaving a son five years old, who subsequently transferred it to plaintiff. The defendant urged that as the donor was not in possession of the property at the time of the gift, the only way by which the seisin of the property could be proved would be to show that the donee had received the rents and profits of the property gifted, and that there was no evidence on this point.

The Court presumed in the circumstances of the cases that the rent was spent on behalf of the minor son.

"One must presume after lapse of years that everything had been done that should have been done." In the present case there is an accumulation of small details which seem to indicate that the Judge was right in coming to the conclusion that possession had been taken of the land gifted to the donee.

HE facts appear from the judgment.

THE

Jayawardene, K.C. (with him Samarawickreme and Cooray), for the appellant.

E. W. Jayawardene (with him Abdul Cader), for the respondent.

February 21, 1922. ENNIS J.

This is an appeal from a decree in a partition action. It appears that the boutique in question originally belonged to Packir Bawa and his wife Haniffa. The defendant claims by succession and transfer all the rights of Packir Bawa and Haniffa. The plaintiff claims under a deed of gift from Packir Bawa to his daughter Mayadu Natchia, executed on June 6, 1891, and duly accepted in the deed. Mayadu Natchia died in 1897, leaving as one of her heirs a child of five, Abdul Cader, who subsequently conveyed a share to the plaintiff, upon which the plaintiff bases his claim. The only point urged on appeal is that the deed of gift of June 6, 1891, was never acted upon. It appears that there was an endorsement on the original Crown grant, which was produced by the defendant, showing that the gift had been made. The learned Judge held that this fact, together with the fact that the deed was executed many years ago, was quite sufficient to support the presumption that the deed of gift had been acted upon. It is against this view of the case that the present appeal has been taken.

1922.

1922.

ENNIS J.

Silva

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It has been strongly urged that, where the donor was not in possession of property at the time of the gift, the only way by which seisin of the property could be proved would be to show Habeebu v. that the donee had received the rents and profits of the property gifted, and it was urged in his case that there was no such evidence. We were referred to the case of Mullick Abdool Gaffoor v. Muleka 1 to support the contention that there must be such proof or some such proof of possession. That case itself seems to show that the Courts are reluctant to set no value on a deed of gift by the application of a rule that lands let on lease could not be made the subject of a gift unless actual possession had been given. In the present case it appears that at the time of the donation the boutique donated was under lease for sixteen years, a lease which expired in 1902; and in 1902 it would seem that Packir Bawa was dead, and the donee, Mayadu Natchia, was also dead. Neither of them, therefore, could have been called to give evidence as to how the rents and profits had been dealt with. Abdul Cader gave evidence, and said that on his mother's death his grandmother took care of him and supported him, and that he had always lived in her house. In these circumstances it would seem impossible to hold that the grandmother, Haniffa, had taken the rents and profits of this land without allocating them to the maintenance of Abdul Cader. This bears out the Judge's finding that one must presume after lapse of years that everything had been done that should have been done. In the present case there is an accumulation of small details which seems to indicate that the Judge was right in coming to the conclusion that possession had been taken of the land gifted to the donee; and, in any event, it would be impossible for this Court to say that the presumption was wrong. I would accordingly dismiss the appeal, with costs.

PORTER J.-I agree.

110 Cal. 1112.

Appeal dismissed.

Present: Ennis J.

PERERA v. MACKINNON, MACKENZIE & Co.

193-C. R. Colombo, 1,289.

Motor launch driver-Notice to terminate service One month from date of notice-Ordinance No. 23 of 1912—Ordinance No. 11 of 1865.

A moter launch driver may be regarded as a chauffeur, and Ordinance No. 11 of 1865 applies to him (Ordinance No. 23 of 1912). He is, therefore, entitled to only one month's notice from the day of issuing such notice. Where he was given notice on February 11 and dismissed on March 11

Held, that the notice was sufficient.

THE facts appear from the judgment.

Croos-Da Brera, for defendants, appellants.

September 28, 1922. ENNIS J.—

This is an action by a motor launch driver against his employer for a month's wages for dismissal without notice, and another month's salary in lieu of notice.

The learned Judge has found that the plaintiff was given notice on February 11, 1922, and was dismissed on March 11. The learned Judge has held that the notice was not adequate, and that the plaintiff is entitled to wages up to end of March. From that decision this appeal is taken.

If the plaintiff is regarded as a chauffeur, the Ordinance No. 23 of 1912 would apply to him, and that Ordinance says that Ordinance No. 11 of 1865 is to apply for all purposes to chauffeurs as if they were domestic servants.

I see no reason why the plaintiff in this case should not be regarded as a chauffeur, as it appears he is a driver of a motor launch. That being so, section 3 of Ordinance No. 11 of 1865 would apply to him, and he would be entitled to one month's notice, i.e., notice of one month from the day of issuing such notice. The case of Burns v. Munisamy1 decides this point. The plaintiff would be entitled to payment of one month's wages.

It appears from the evidence of the witness Campbell that wages up to March 11 were offered to the plaintiff, which he refused to take, and the amount has been paid into Court.

In the circumstances the plaintiff would be entitled to succeed in this appeal.

I accordingly set aside the decree, and enter judgment for the plaintiff for the sums paid in. The plaintiff to pay the appellants' costs in the Court below.

The appellants do not press for costs of appeal.

1 (1896) 2 N. L. R. 193.

Set aside.

1922.

1923.

Present: Bertram C.J. and De Sampayo J.

GARVIN v. ABEYAWARDENE.

18-D. C. (Inty.) Matara, 421.

Warrant of attorney to confess judgment given to a firm of proctors-One proctor confessing judgment after the death of partner.

Where a power is conferred upon two agents, it is presumed to be conferred upon them jointly, and an act by one purporting to be an execution of that power is not a good execution. If the two agents are partners, and one partner purports to exercise the power singly as the survivor of the two, his act is none the less invalid. At the death of one of the two agents, it terminates the authority of the other.

A warrant of attorney to confess judgment issued to two proctors practising in partnership was held not to give the survivor the power to confess judgment after the death of the other partner. The warrant of attorney to confess judgment was as follows:—

To Messrs. G. E. and G. P. Keuneman,

Crown Proctors, of the Matara District.

These are to desire and authorize you, the proctor above named, to appear for J. V. P. Abeyawardene of Weligama at any time in the District Court of--and to receive summons for me, the said J. V. P. Abeyawardene, in an action at the suit of the Attorney-General on a bond dated the Seventh day of July, One thousand Nine hundred and twenty, executed by me, the said J. V. P. Abeyawardene, in favour of His Majesty the King, his heirs and successors, for the sum of Rupees Eight thousand and fifty only, lawful money of Ceylon, being the amount for which I, the said J. V. P. Abeyawardene, purchased the exclusive privilege of selling fermented toddy by retail within the village of Weligama for the period of twelve months from the First day of October, One thousand Nine hundred and twenty, to the Thirtieth day of September, One thousand Nine hundred and twenty-one, sold by the Assistant Government Agent of the Matara District, and thereupon to confess the same action, or else to suffer judgment by default, or otherwise to pass against me, the said J. V. P. Abeyawardene therein, and to be thereupon forthwith entered up against me, the said J. P. Abeyawardene, of record in either of the said Courts for the said sum of Rs. 8,050 only, or for such portion thereof in respect of which the action shall be brought, together with costs of action.

And I, the said J. V. P. Abeyawardene, do hereby further authorize and empower you, the said Proctor, after the said judgment shall be entered up as aforesaid for me, the said J. V. P. Abeyawardene, to sign and execute a good and sufficient release or releases in the law to the said Attorney-General for and on behalf of His Majesty the King, his heirs, &c., of all and all manner of appeals or proceedings by way of appeal, and all benefit and advantage thereof, and defects and imperfections whatsoever, had made, committed, done, or suffered in,

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