Page images
PDF
EPUB

The fourth and final point is this:—

1922.

BERTRAM
C.J.

Has the lessee in such a case, when he is displaced by the prior registration of the mortgage, a right to claim damages against his landlord in respect of that displacement independently of the Mohideen v. covenant above referred to? In my opinion he has not. In granting Isey the mortgage the landlord has not been guilty of any breach of his obligation to the tenant. His obligations are to put the tenant into possession, and to do nothing during the tenancy which would interfere with his right of possession. In executing the mortgage he did not thereby necessarily affect the tenant's position. The mortgage was subject to the lease, and, in the absence of any special action by the person interested, would not have taken priority over the lease. The reason why it acquired priority is that the mortgagee was more diligent than the lessee. He was more active in the appreciation of his rights under the laws affecting the land registration. The mortgagee registered his mortgage at once, and it was this superior diligence on the part of the mortgagee that was the cause of the lessee's displacement.

I have every sympathy with the appellant. I think that the lessor in executing this mortgage must have fully realized its probable effect. I do not think he would have succeeded in obtaining the mortgage, but for the fact that both he and the mortgagee knew that the lease was not registered. It is not possible, however, to prove any fraud or collusion on the part of the mortgagee, and under the circumstances I fear that the lessee must suffer for his lack of diligence.

Under the circumstances the decree must be varied by the substitution of the figures Rs. 902 98 for the figures Rs. 1,276 98. With regard to the costs, I think that the judgment should be varied, and that in the Court below the plaintiff should get costs in the class corresponding to the amount as to which he succeeded, that is to say, Class 3. With regard to the costs in this Court, the variation. of the judgment is so very slight that, in view of all the circumstances of the case, each party should bear its own costs.

SCHNEIDER J.-I agree.

Varied.

1922.

Present: De Sampayo J.

CALDERA v. ZAINUDEEN.

61-C. R. Colombo, 83,491.

Money Lending Ordinance, 1918, ss. 10 and 13-Promissory note given as security for future payment-Contributions to a cheetu club— Fictitious entry in margin—

A promissory note was given as security for the future payment of contributions, which might become due by the maker who was a member of a cheetu club. In the margin there was an entry that the capital sum borrowed was Rs. 100. The commissioner dismissed the action, as the entry was fictitious.

Held, that as the note was not given as security for a loan, sections 10 and 13 of the Money Lending Ordinance did not apply.

"No doubt the entry in the margin is false, but that is not what is penalized by the Ordinance."

THE facts appear from the judgment.

J. S. Jayawardene, for plaintiff, appellant.

E. G. P. Jayatileke, for defendant, respondent.

July 19, 1922. DE SAMPAYO J.

The plaintiff, who is the executor of the last will of one H. S. Caldera, sues the defendant on two promissory notes for Rs. 100 each, made by the defendant in favour of H. S. Caldera. Admittedly, the promissory notes were not given as security for any loan, but only as security for the future payment of contributions which might become due by the defendant who was member of a "cheetu club " managed by the deceased H. S. Caldera. In the margin of each of these documents is a memorandum stating that " the capital sum borrowed was Rs. 100." The Commissioner considered that this was a fictitious entry which is penalized by section 13 of the Money Lending Ordinance, No. 2 of 1918, and that he had no power to give judgment for the plaintiff. Section 13 makes it an offence to take "as security for any loan a promissory note or other obligation, in which the amount stated as due is to the knowledge of the lender fictitious." It is section 10 of the Ordinance which is more relevant to this case, for that section requires that in every promissory note given as security for the loan of money there shall be separately set forth upon the document, inter alia, the capital sum actually borrowed, and provides that any promissory note not complying with the provisions of the section shall not be enforceable. Both these sections presuppose a 66 loan" and a " lender," but as the case of both sides is that there was no borrowing at all, I do not think that the Commissioner's reason for his judgment is right. No doubt

the entry in the margin is false, but that is not what is penalized by the Ordinance.

The plaintiff, however, is bound to fail on the facts. He was not able to prove how much was due by the defendant. He did not even know how many contributors there were in this cheetu club. The amount payable by the defendant could, I suppose, be determined by the number of contributors and the duration of the club. The plaintiff appears to be quite inaccurately informed as to many things. He had, for instance, given credit to the defendant for Rs. 50 only, but when the defendant's pass book was produced, he had to admit that the defendant had to get credit for Rs. 70. Again, he claims Rs. 196.21, whereas his proctor's letter of demand was for Rs. 144. The only evidence upon which the Court could base any safe conclusion was that of the defendant. He admits that he has to pay Rs. 80, for which, therefore, the Commissioner has given judgment for the plaintiff. I think that the dismissal of the claim in excess of that sum is right. The appeal is dismissed with costs.

1922.

DE SAMPAYO

J.

Caldera v.
Zainudeen

Appeal dismissed.

Present: Ennis and De Sampayo JJ.

BANDARANAYAKE v. BANDARANAYAKE.

129-D. C. Kandy, 29,546.

Kandyan woman marrying a Low-country Sinhalese-Matrimonial rights of the parties.

Where a Kandyan Sinhalese woman marries a low-country Sinhalese, her matrimonial rights are governed by the Kandyan law and not by Ordinance No. 15 of 1876.

A Kandyan Sinhalese is not a person of a different race or nationality from a low-country Sinhalese.

THE

HE facts are set out in the judgment of the District Judge (W. S. de Saram, Esq.):

The plaintiff, a Kandyan lady, was married to the defendant, a lowcountry Sinhalese, and they lived together for fifteen or sixteen years. The plaintiff had some property of her own in the Kandy District. Defendant had some property at Henaratgoda in the Colombo District. In June, 1919, the plaintiff and defendant gave a joint and several promissory note for Rs. 2,000 to Y. C. Y. Muttiah Pulle. According to the plaintiff she got nothing out of that money which was spent entirely by the defendant on a shooting trip to Polonnaruwa and Trincomalee, on which trip she accompanied him. According to the defendant he spent that money not on the shooting trip, but on their lands,

1922.

1922.

Bandaranayake v. Bandaranayake

I would, therefore, find that the defendant got all the money on the note and spent it for his own purposes and not on the lands. Certainly not on plaintiff's lands. I believe the plaintiff with regard to this money. The note was subsequently sued on, and the assignee of the decree who happened to be plaintiff's father obtained payment in full by seizing money lying to the credit of the defendant in a testamentary case. The defendant has thus discharged the note. He claims in reconvention repayment to him by the plaintiff on the ground that the money was really raised by him for the improvements of plaintiff's lands. As I find that the money was not raised for any such purpose, the claim in reconvention must fail, nor can he succeed in claiming a refund of part of the amount, as it is quite clear the money was raised for himself alone. And I believe that plaintiff only joined in signing the note in order to obtain the necessary credit for her husband.

A couple of months after the note, in August, 1919, the plaintiff and defendant raised another Rs. 2,000 on a bond. The lands hypothecated being those of the plaintiff. According to the plaintiff she got none of that money which was spent entirely by the defendant for his own purposes, mainly in manuring his Henaratgoda property.

In January, 1921, the plaintiff discharged the bond. It makes no difference that she did so without waiting to be sued as an obligor under the bond. She had to pay the amount, and it is only natural she should have done so, as she states, to prevent the risk of the properties being sold. In September, 1921, the plaintiff obtained a divorce, a suggestion for the defence is that owing to that fact she is now falsely attempting to repudiate her liabilities. That contention has to be considered, but it may equally be said that now the parties have been divorced, the plaintiff is obliged to seek her legal remedy to recover her money. Judgment was entered for the plaintiff.

Pereira, K.C. (with him E. W. Perera and Weerasooriya), for the appellant.

Drieberg, K.C. (with him Navaratnam), for the respondent.

October 30, 1922. ENNIS J.

The plaintiff, respondent, in this case was at one time the wife of the defendant, appellant. She sued the defendant to recover the sum of Rs. 2,425, which she said she had been compelled to pay to save certain landed property from seizure and sale under a mortgage which she had given to secure the repayment of a sum of Rs. 2,000 advanced to her husband. Various issues of fact were framed in the Court below as to whether the money lent did, in fact, go to the husband, and whether he spent it on his own property; and the learned Judge in this matter has believed the plaintiff and disbelieved the defendant, and has found that the money was in fact borrowed by the defendant, and that he spent it on his own lands. In the Court below the defendant claimed Rs. 2,000 in reconvention, and his claim was dismissed. He now appeals, and on appeal it was argued that the Kandyan law did not apply to the present case, as the plaintiff, a Kandyan, on her marriage to the defendant, a low-country Sinhalese, took the status of her husband, and, therefore, that the general law of the country applies to this case, and that the plaintiff cannot maintain the action..

No issue on this point was raised in the Court below; no evidence taken in the matter, and further there was a distinct claim of some character by the defendant in reconvention against the plaintiff, which was not withdrawn, but which was decided by the Judge in giving judgment. In my opinion it is too late to raise this question now. But as it has been raised I would set out, as far as I am able to, the gist of the contention, which was this: That under section 2 of the Ordinance No. 15 of 1876 the wife is to be taken to be of the same race and nationality as her husband for certain purposes. But except for this purpose, and presumably the purpose is the question of the status of the wife, the Ordinance does not apply to Kandyans. Mr. Pereira, for the appellant, was unable to maintain that the parties were of a different nationality or of a different race. But he suggested that there was some difference of status which would bring in the general law as between husband and wife. I myself am unable to see how the section of that Ordinance applies to the marriage between the plaintiff and the defendant in the present case. On the question of fact there is no reason to interfere with the finding of the learned Judge. It was a question of belief in the evidence, and the Judge believed the plaintiff in preference to the defendant. The question of the claim in reconvention was necessarily not pressed in view of the argument led on appeal.

I would dismiss the appeal, with costs.

DE SAMPAYO J.—

The special case provided for by section 2 of the Ordinance No. 15 of 1876 is that of a woman who marries a man of a different race and nationality from her own, in which case the Ordinance declares that she shall be taken to be of the same race and nationality as her husband. The section goes on to say that, save as already provided, the Ordinance shall not apply to Kandyans. Judicial authority so far has been that a low-country Sinhalese is not a person of a different race or nationality from a Kandyan Sinhalese, and that, therefore, under the provisions of the same section the matrimonial rights of a low-country Sinhalese husband and his Kandyan wife are to be governed by the Kandyan law. See the case of Manikkan v. Peter.1 I think we ought to follow that decision because not only is it reasonable, but it accords with the view that ought to be taken in regard to the historical relations between low-country Sinhalese and Kandyan Sinhalese. As my brother has already remarked, the question is not fit to be fully argued and decided in this case, because it was not raised in the Court below and referred to in the judgment of the District Judge, and it is not even mentioned in the petition of appeal. I agree that this appeal be dismissed, with costs.

Appeal dismissed.

1922.

ENNIS J.

Bandaranayake v. Bandaranayake

1 1 (1899) 4 N. L. R. 243.

« EelmineJätka »