Present  : Ennis J. and De Sampayo J.   1915.

SEMAN v. SILVA.

95-D.C. Matara, 6,656.

Prescription-Notarial lease-Rent due prescribed in six years wider section 7 of Ordinance No. 22 of 1871-Meaning of the turn " bond"-Stamp duty-Debt not inventoried in testamentary proceedings-Case struck off the roll to enable plaintiff to regularize his position.

A notarial lease is a written contract or agreement within the meaning of section 7 of Ordinance No. 22 of 1871, and the period of limitation in regard to an action for the recovery of rent due thereon is six years.

DE SAMPAYO J.-The word " bond" is used in Ordinance No. 22 of 1871 exactly in the same sense as in the earlier enactment*, and an instrument should be construed as a bond or not according to its substance and real characteristics, and not according to its form of execution.

Where plaintiff had not inventoried the debt for the recovery of which he was suing in the testamentary proceedings, and paid stamp duty thereon, the case was struck off the roll to give him an opportunity to regularise the proceedings.

THE facts are stated by De Sampayo J. as follows:-

By a notarially-executed lease dated October 3, 1902, one Balasuriyage Laisahamy demised to the defendant a certain land for a term of eight years commencing from January 1, 1903, at a

rental of Rs. 50 a year. The rent for three years was received in advance, and it was stipulated in the lease that the defendant should pay the annual rent for the remaining five years on January 1 each year, and in default of due payment should pay the same with interest at nine per cent. The lessor, Laisahamy, died leaving a last will by which she appointed the plaintiff as executor and sole legatee. In that capacity the plaintiff has sued the defendant for the recovery of the sum of Rs. 422.50, being the amount of rent for the five years commencing from January 1, 1906, with interest thereon up to date of action. The defendant pleaded payment of the whole rent to Laisahamy during her lifetime, and he also raised two legal defences, namely, (1) that the claim was barred by prescription, and (2) that this alleged asset of Laisahamy's estate not having been inventoried in the testamentary case, and no stamp duty thereon having been paid, the plaintiff could not maintain this action. The District Judge held on the issue of prescription that the instrument of lease was a " bond " within the meaning of section 6 of the Ordinance No. 22 of 1871, and the claim was therefore not prescribed, and that the second objection was well founded, but he allowed the plaintiff time to move in the testamentary suit for the purpose of including the debt among the assets of the estate and paying the extra stamp duty; and he further ordered the defendant to pay the plaintiff the costs of the day. The defendant has appealed.

Bawa, K.C. (with him Keuneman), for appellant.

A. St. V. Jayewardene, for respondent.

Cur. adv. vult.

August 31, 1915, ENNIS J.-

The plaintiff, as legatee under the will of one Laisahamy, sued the defendant for the rent of certain lands.
The defendant pleaded payment, and that the claim was pre-scribed. He also asserted that the plaintiff could not maintain the action, as the sum had not been inventoried in the testamentary suit.

Issues were framed, and the parties heard on all except the issue as to payment. The learned District Judge found, on the issue of prescription, that the claim for rent came within section 6 of the Ordinance No. 22 of 1871, holding the rent due on a notarially executed bond conditioned for the payment of money. He then found that the plaintiff could not maintain the action until the debt was inventoried in the testamentary suit and the duty paid thereon; he struck the case off the roll, to give the plaintiff an opportunity to regularize the proceedings, and ordered the plaintiff to pay the defendant the costs of the day (June 30, 1915)