The Attorney General V. Perera

Present: The Hon. Sir Joseph T, Hutchinson, Chief Justice,
and Mr. Justice Wood Renton,

THE ATTORNEY-GENERAL v. PERERA.

D. C., Colombo, 24, 032.

Crown, bond in favour of-Conditional variation of terms of the bond- Fulfilment of conditions-Burden of proof-Evidence Ordinance, s. 106.

The defendant's intestate, who was the assignee of the privilege to sell arrack and toddy by retail in the Kalutara District, entered into a bond dated December 8, 1903, to pay to the Crown the amount due, to wit, Rs. 143, 668, in twenty-four monthly instalments.

Certain circumstances having been represented by the defendant's intestate to the Government, the Colonial Secretary wrote to him (document D 3), inter alia, as follows: -

(a) The Government will accept from the renters, instead of the monthly installment entered on the bond, payment at the rate of Rs. 4. 50 per gallon for the quantity of arrack certified by the Excise Officers to have been issued during the month.

(b) The difference between the amounts actually paid and the amounts of the monthly instalments as they appear on the bond will be carried forward as a debt due to Government by the renters.

(c) It is not the intention of Government to recover this amount or any portion thereof if it is satisfied that the rent taken as a whole has been worked at a loss; that the renters have adhered strictly to the Government regulations issued to them; have acted honestly in their dealings with Government; and that no arrack other than that issued under the supervision of the Excise Officers has been sold by the renters or persons in their employment or by others with their connivance.

The defendant when sued on the bond pleaded this letter as an agreement superseding the terms and conditions of the original bond, and alleged that the Crown had acted on the said agreement and was estopped from denying its validity, No evidence was led by either side at the trial.

Held, that the defendant's plea was not entitled to succeed, and that the plaintiff was entitled to judgment on the original bond.

Per Hutchinson C. J., on the ground that, although the letter amounted to an agreement, there is no evidence that the Government is satisfied that the conditions mentioned have been fulfilled.

Per Wood Renton J., on the ground that the letter did not amount to a binding agreement, or such a representation, as could form the basis for a plea of estoppel.

Vol. XII 6

Wendt J. (in review). -There was no present and absolute waiver by the Crown of its right to recover the instalments. Assuming there was a conditional waiver, there was neither allegation nor proof by defendant that the condition had been fulfilled.

Middleton J. (in review). -The letter of the Colonial Secretary must be construed as a declaration of the terms upon which the Government would work in carrying out an indulgence given to. the renters in respect to their contractual obligations, and not as a hard and fast agreement, by which they would be legally bound. Assuming it to be a binding agreement, the onus was on the defendant to prove that the conditions were fulfilled.

ACTION by the Crown on a bond entered into by the defendant's intestate. The facts appear in the following judgment of the District Judge (Joseph Grenier, Esq. ) (December 9, 1907): -

" This is an action on a bond dated December 8, 1903, executed by the original defendant, who is now dead, the present defendant being the administrator of his estate, for the recovery of the sum of Rs. 28, 553. 98, being balance due in respect of the instalments for July, August, September, October, November, and December, 1904, and January and February, 1905.

" The original defendant purchased the privilege of selling arrack and toddy by retail within the District of Kalutara for the term of two years from January 1, 1904, to December 31, 1905, and the bond now sued upon by the Attorney-General was executed to secure

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