1944 Present : Soertsz, Hearne, and Jayetileke JJ.

JAYARATNE

et al., Appellants, and GUNARATANA THERO,
Respondent

104-D. C. Kurunegala, 18,780.

Service Tenure-Commuted dues-Paraveni panguwa of nindagama-In divisible obligation-Service Tenures Ordinance (Cap. 323), ss. 9, 10, 14, and 15.

The obligation to pay the dues attached to the paraveni panguwa of a nindagama is indivisible and in eligible from any of the nilakarayas subject to his or their right to claim contribution.

THIS case was referred to a Bench of three Judges. The facts appear from the argument.

E. B. Wikremanayake (H. V. Perera, K.C., with him and H. Wanigatunge), for the substituted-defendants, appellants.-The main question for consideration is whether the obligation of paraveni nilakarayas to pay commuted dues is divisible or indivisible, i.e., whether one or more out of several nilakarayas are liable to pay the entire commuted dues fixed under section 15 of the Service Tenures Ordinance (Cap. 323). There are conflicting decisions on this point. The cases which have a bearing on this question are 1877 Ram. 131; 1877 Ram. 395; Asmadale et al. v. Weerasuria [1 (1905) 3 Bal. Rep. 51.]; Appuhamy et al. v. Menike et al. [2 (1917) 19 N. L. R. 361.]; Banda v. Amir Tamby [3 (1914) 3 Bal. N. C. 24.]; Martin et al. v. Hatara et al [4 (1913) 16 N. L. R. 92.]. The correct view would be that when the primary obligation to render services is converted into a secondary obligation to render services is converted into a secondary obligation to pay commuted dues the debtors would be bound each for his part only. Pothier 2, 4, 3, 1 which is referred to in Walter Pereira's Laws of Ceylon (1913 ed.) p. 590 is not considered in the reported cases. None of the sections in the Service Tenures Ordinance gives the nature of the obligation. The general rule is that, unless otherwise expressly agreed upon, the liability of co-obligors is joint merely and not joint and several, and each co-obligor is only liable for his share of the contract and not for the whole contract in solidum-Gunasekere v. Gunasekere [5 (1941) 43 N. L. R. 73 at 75.]

N. Nadarajah, K.C. (N. E. Weerasooriya, K.C., with him, Ivor Misso and S. R. Wijayatilake), for the plaintiff, respondent.-The unit which is liable is the pangu and not the individual nilakaraya. The question was considered recently in Bandara et al. v. Dinigiri Menika et al. [6 (1943) 44 N. L. R. 393.]. For purposes of service the panguwa, whatever the number of the co-heirs may be, is indivisible and the co-heirs are jointly and severally liable for the service-H. W. Codrington's Ancient Land Tenure in Ceylon, p. 3. If the services are commuted the character of the liability is not altered. Sections 10, 15, 24 and 25 make the position clear. What there is commutation what takes place is a substitution of the primary obligation; it is not a conversion of a primary obligation into a secondary obligation.

Compare, for example, the obligation of the co-heirs of a mortgagor when the latter dies-Wille's Mortgage and Pledge in S. Africa (1920) p. 267; Unguhamy v. Hendrick [1 (1930) 11 C. Law Rec. 54.]; Asmadale et al. v. Weerasooria (supra), Martin et al. v. Hatana et al. (Supra) and Appuhamy et al. v. Menike et al. (supra) are applicable in the present case. The proprietor can proceed against any one of the nilakarayas; the latter would have the right of contribution against the other nilakarayas.

E. B. Wikremanayake in reply.-The correct test is, if an obligation is capable of being divided into parts the liability will be pro rata-Ramalingam v. James [2 (1939) 40 N. L. R. 480.]; Panis Appuhamy v. Selenchi Appu et al. [3 (1903) 7 N. L. R. 16.].

If the unit which is liable is the pangu, all the nilakarayas of the four pangus in the present case ought to have been joined as parties.

Cur. adv. vult.

January 19, 1944. SOERTSZ J.-

The plaintiff who is the Viharadhipat