..

NOTARY'S MANUAL

BY

S. KATIRESU,
Proctor S. C. and Nota_ry Public,
Author of the " Hand-book of the Thesawalamai "
and the "Hand-book to the Jaffna Peninsula,"

.,.. . '.i

R EVISED EDITION ~I
!
!',I

PUBLISHED BY
S . RAGUNATH '&? CO.,
JAFFNA, CEYLON
1921
All Rights Re served

. ..- r
 THE - NOTARY's MANUAL.
.N-, /aJ:.~y~y .,ke.~'

'.

.... ., --'. L' , 1) )>

 .. ' ;

To
ROBERT NIEMANN THAINE, ESQR .. B.A., C.C.S ..
THIS MANUAL
PRINTED AT
THE LAW PRINTING HOUSE, IS BY KIND PERMISSION
MOUNT ROAD, MADR AS.
RESPECTFULLY DEDICATED BY

THE AUTHOR .

.J ,, .. :J
,.

PREFACE TO rrHE REVISED EDITION.

I have in this revised edition endeavoured to

maintain the style and method adopted in the first
edition which has made it a popular ha.n.d~book. In this
volume which has almost doubled . its original size,
besides retaining the subject-matter of the first edition,
new chapters and new sub-headings and several
forms of precedents have been added to make the
manual more useful to the notary in actual practice.
In the chapter on stamp laws the latest schedule
to the Stam.E_> Ordinance hars been fully annotated
an d the practising notary will find several references to
English and Indian cases and notes taken from
standard text-books, which, it is hoped, will prove re~lly
useful. In the preparation of this chapter I was
assisted by Mr. K. Somasundaram, Proctor and Notary.
The law relating to Fidei Gommissnm which
is admittedly perplexing has been dealt with by
Mr. Advocate S. Rajaratnam, under suitable sub-head-
ings, with reference to almost all the existing local
decisions on the subject and to the Roman-Dutch Law
authorities.
The branch of the law relating to the registration
of deeds which is of great importance to the practising
notary has been summarised in a special chapter. I am
indebted to the treatise on this subject by Mr. A. St.
V. Jayewardene, K . c., who has given a lucid and

, 7 .. ,.
viii PREFACE . P REFACE . ix

exhaustive exposition of the subject. Registrati9n of noted under proper beadings the ordinaJ'.!_ces useful to
addresses by mortgagees is a vny important item in the a notary.
registration of mortgages. M an y a primary mortgagee Though _this manual makes no pretence to be a book
has lost his rights by not regi ster ing hi s address ; th e on precedents, I have collected several illustrative
remedies are also pointed out in thi s chapter. forms as adopted by the best conveyancers and forms
employed by the Government. In this connection I may
A small chapter on examination of title to land
say th at Messrs. Butterworth & Co. 's Encyclopa:idia of
has been added to indicate the pain.t s to be noted by a
Forms and Precedents will be a very useful addition
notary in passing title.
to the library of any practising notary .
The law rel ating to the presentment, protesting and My thanks are due to the Law Printing House of
noting of bills of exchange, promissory notes and cheques, Madras for the get-up of this manual.
in so far as it concerns the pract ice of a notary, has been
dealt with in a new chapter. E nglish text -books have S. KATIRESU .
been guoted and forms of preceden ts adopted and taken JAFFNA, 19th October, 1921 .
over.
This edition contains also a chapter on Kandyan
Law, so far as it is useful t o a notary practising in
the Kandyan Provinces, references being given t o
Mr. Madder's text-book -on this subject. Under that
system of law a donation deed can be revoked almost at
pleasure; and marriage does not confer majority . These
and other points of difference may afford an interesting
study to notaries practising elsewhere.
" Bills of sale" and " Hire-Purchase" are treated in
a separate Chapter. A chapter is also devoted to
" Conditions of Sale." Since going to the press some
judges have questioned the propriety of the commis-
sioners appointed to sell under mortgage-decrees
executing transfers where the decree does not give such
authority to the comm1ss10ner even though such
authority had been embodied in the conditions of sale
approved by court.
I have also added to this edition a chapter on
the Ceylon Ordinan9es wherein I have collected and
B
.,
.J) " ))
 PREFACE TO THE FIRST EDITION.

In endeavouring to c~llect whatever may be useful to

a notary pr~ctising in Ceylon, I have not lost sight of the
needs of the student who tries to master the first princi-
ples of notarial business, with no local text-book on the
subject before him.

I have attempted to epitomise in an accessible and

convenient form so much of the law as may relate to
notaries and the instruments they may be called upon to
attest. I have consulted several books published in
England and tbP. Cape and have culled from them such
hints and observations as may be useful to a Ceylon
notary, giving invariably the references to the authorities
relied on.

With respect to precedents, I have deemed it

sufficient to give under each \'!Ubject only a few simple,
complete and comprehensive forms for the purpose of
explaining and elucidating the subject treated. The
forms chosen are mostly local ones which, as they were
drafted to suit particular cases, have been varied and
made complete by a careful comparison with the books
on precedents published in the United Kingdom and the
Cape Colony.

I have departed from the conventional alphabetical

order adopted in books of precedents, and have arranged
the subjects according to their importance and usefulness.

U)
xii PREFACE .

No one can be more conscious than I am of the im -

perfections of this first attempt to supply a desideratum
much required'. Nevertheless, I venture to publish this ERRArrA.
work in the hope that it will receiv e an indulgent
reception, since it will not be altogether useless to PAGE LINE
beginners who desire to have a thorough grasp of the 3 9 for ;, 1836" read " 1839 "
subject . 26 18 a_dd " and A-~t. the _end _

I cannot conclude without expressing my m - . \ CONTENTS \

debtedness to Mr. N. Cbelvadurai, Proctor, for his great
assistance in passing the work through the press, to CHAPTER PAGE
Mr. M.A. Arulanandam, B. A., Advocate, for many useful J .-NOT ARY l
suggestions and to Mr. R. R. Nalliab, Proctor, for the IL-CONVEYANCING 13
preparation of the copious index at the end of the book. Ill.-ABSTRt\CT OF TITLE 50
IV.-EXAMINATION OF TITLE 56
S. KATIRESU . 60
V.-REGISTRATION OF DEEDS
JAFFNA, 13th August, 1909. VI.-THE CEYLON ORDINANCES 80
Vll.-KANDYAN LAW . 96
VIII.-BILL OF SALE AND HIRE-PURCHASE . 103
IX.-CONDITIONS OF SALE 109
X.-PURCHASE AND SALE OF LANDS 138
XL-MORTGAGE BOND 174
Xll.-LEASES 206
XIII.-LAST WILL AND TESTAMENT 263
XIV.-FIDEI COMMISSUM 294
XV.-DONAT(ON 318
XVI.-PARTNERSHIP DEEDS 345
XVII.-AGREEMENTS 368
XVIII.-DEEDS RELATIVE TO SHIPPING 395
XIX,-POWER OF ATTORNEY 417
XX.-DEEDS OF PARTITION 438,
XXL-DEED OF EXCHANGE 444
XX CL-ASSIGNMENT !151
XXIII.-RELEASE 465
XXIV.-BILLS OF EXCHANGE, PROMISSORY NOTES AND
CHEQUES 478
XXV,-MISCELLANEOUS DEEDS AND FORMS WITH NOTES, 504
XXVI,-STAMP LAW.S 566

" -~
----- - ,.
I
J

To
ROBERT NIEMANN THAINE. ESQR., B.A., C.C.S.,
THIS MANUAL
PRINTED AT
1'HE LAW PRINTING HOUSE , IS BY KIND PERMISSION
MOUNT ROAD, MADR AS,
RESPECTFULLY DEDICATED BY.

THE AUTHOR .

. .'
..

PREFACE TO rrHE REVISED EDITION.

I have in this revised edition endeavoured to

maintain the style and method adopted in the first
edition which has made it a popular h:.rid~book. In this
volume which has almost doubled . its original size,
besides retaining the subject-matter of the first edition,
new chapters and new sub-headings and several
forms of precedents have been added to make the
manual more useful to the notary in actual practice.
In the chapter on stamp laws the latest schedule
to the Stamp Ordinance ha,s been fully annotated
and the practising notary will find several references to
English and Indian cases and notes taken from
standard text-books, which, it is hoped, will prove reailly
useful. In the preparation of this chapter I was
assisted by Mr. K. Somasundaram, Proctor and Notary.
The law relating to Fidei Gommissum which
is admittedly perplexing has been dealt with by
Mr . Advocate S. Rajaratnam, under suitable sub-head-
ings, with reference to almost all the existing local
decisions on the subject and to the Roman-Dutch Law
authorities.
The branch of the law relating to the registration
of deeds which is of great importance to the practising
notary has been summarised in a special chapter. I am
indebted to the treatise on this subject by Mr. A. St.
V . Jayewardene, K. c., who has given a lucid and

) :))
' "
viii PREFACE .
exhaustive exposition of the subject. Registratic;m of
addresses by mortgagees is a very important item in the
registration of mortgages. Many a primary mortgagee
has lost his rights by not registerin g his address ; th e
remedies are also pointed out in th is chapter.
A small chapter on examination of title to land
has been added to indicate the points to be noted by a
notary in passing title.
The law relating to the presentment, protesting and
noting of bills of exchange, promissory notes an d cheques,
in so far as it concerns the practice of a notary, has been
dealt with in a new chapter. English text-books have
been guoted and forms of precedents adopted and taken
over.
PREFACE ,
ix
noted under proper headings the or d'maqces useful to
a notary.
Though _this manual makes no pretence to be a book
on precedents, I have collected several illustrative
forms as adopted by the best conveyancers and forms
employed by the Government. In this connection I may
say that Messrs. Butterworth & Co. 's Encyclopmdia of
Forms and Precedents will be a very useful add't'
t 0 th e 1'b
1 rary of any practising notary. I 100
My thanks are due to the Law Printing House of
Madras for the get-up of this manual.
S. KATIRESU .
JAFFNA, 19th October, 1921 .

This edition contains also a chapter on Randyan

Law, so far as it is useful to a notary practising in
the Kandyan Provinces, references being given to
Mr. Modder's text-book -on this subject. Under that
system of law a donation deed can be revoked almost at
pleasure; and marriage does not confer majority. These
and other points of difference may afford an interesting
study to notaries practising elsewhere.
" Bills of sale" and "Hire-Purchase " are treated in
a separate Chapter. A chapter is also devoted to
" Conditions of Sale." Since going to the press some
judges have questioned the propriety of the commis-
sioners appointed to sell under mortgage-decrees
executing transfers where the decree does not give such
authority to the comm1ss10ner even though such
authority had been embodied in the conditions of sale
approved by court.
I have also added to this edition a chapter on
the Ceylon Ordinances wherein I have collected and
B
JJ ~ I)
,, .,
 PREFACE TO THE FIRST EDITION.

In endeavouring to collect whatever may be useful to

a notary pr[Jictising in Ceylon, I have not lost sight of the
needs of the student who tries to master the first princi-
ples of notarial business, with no local text-book on the
subject before him.

I have attempted to epitomise in an accessible and

convenient form so much of the law as may relate to
notaries and the instruments they may be called upon to
attest. I have consulted several books published in
England and thfl Cape and have culled from them such
hints and observations as may be useful to a Ceylon
notary, giving invariably the references to the authorities
relied on.

With respect to precedents, I have deemed it

sufficient to give under each i:iubject only a few s~mple,
complete and comprehensive forms for the purpose of
explaining and elucidating the subject treated. The
forms chosen are mostly local ones which, as they were
drafted to suit particular cases, have been varied and
made complete by a careful comparison with the books
on precedents published in the United Kingdom and the
Cape Colony.

I have departed from the conventional alphabetical

order adopted in books of precedents, and have arranged
the subjects according to their importance and usefulness .

w
xii PREFACE.

No one can be more conscious than I am of the im-

perfections of thi s first attempt to supply a desideratum
much required. Nevertheless, I venture t o publish this
work in the hope that it will receive an indulgent ERRATA.
reception, since it will not be altogether usele_ss to
PAGE LINE
begi nn ers who desire to have a thorough grasp of the
subject . 3 9 for " 1836" read " 1889 "
2s 10 add .. o.nd.::t:g,.t the _end
I cannot conclude without expressing my in-
debtedness to Mr. N. Chelvadurai, Proctor, for his great . \ OONTEN'l.1S\
assistance in passing the work through the press, to
Mr. M. A. Arulanandam, B. A., Advocate, for many useful CHAPTER
PAGE
suggestions and to Mr. R. R. Nalliab, Proctor, for the I.-NOTARY
1
preparation of the copious index at the end of the book . . IL-CONVEYANCING
13
III.-ABSTRACT OF TITLE
50
S. KATIRESU. IV . -EXAMINATION OF TITLE
56
JAFFNA, 13th August, 1909. V,-REGISTRATION OF DEEDS
60
VL-THE CEYLON ORDINANCES
80
VII,-KANDYAN LA W . .. 96
VIII.--BILL OF SALE AND HIRE-PURCHASE 103
IX,-CONDITIONS OF SALE 109
X.-PURCH~SE AND SALE OF L ANDS 138 '
XL-MORTGAGE BOND 174
XII,-LEASES 206
XIII.-LAST WILL AND TESTAMENT 263
XIV,-FIDEI COMMISSUM 294
.XV,-DONATtON 318
XVI.-PARTNERSHIP DEEDS 345
XVII,-AGREEMENTS 368
XVIIl,-DEEDS RELATIVE TO SHIPPING 895
XIX,-POWER OF ATTORNEY 417
XX,-DEEDS OF PARTITION 4-88,
XXL-DEED OF EXCHANGE 444
XXII.-ASSIGNMENT 451
. XXIII.-RELE ASE 465
XXIV, -BILLS OF EXCHANGE, PROMISSORY NOTES AND
CHEQUES 478
XXV,-MlSCELLANEOUS DEEDS AND FORMS WITH NOTES , 504
XXVI.-STAMP LA W-8 566

,,
xii P REFACE.

No one can be more conscious than I am of the im-

perfections of t h is first attempt t o supply a desiderat um
much required. Nevertheless, I ven t ure to publish th is
work in the hope that it will receive an indulgent
reception, smce it will not be altogether useless to PAGE LINE

beg inners who desire to have a thorough grasp of the 3 9 for " 1836" read " 1889 "
su_bject . , . '" 25 18 add " o.nd" at the end
26 15 /or " whom conveyed therein " read " who oonvend
them"
" 25 for " expresses " read " expressed "
45 8 In "whether" use oapito.l " W "
61 9 for " 1864 " read " 1866 "
98 16 for " from " read " for"
IO!l 1 from bottom, /or "rent" read "overt"

.. 105
115
1
1
for "as " read " in "
from bottom, /or " provide " read " provided "
147 25 for "latter " read " lo.ter "
159 22 Insert "out" after "carry"
160 28 Insert "covenant" after "doth hereby"
174 1 from bottom, for "excuse" read "exouss "
175 3 for "devisionis " read "divieionis"
15 for " Velle1mi " read " Vellejani "
194 31 /or"M,A.",ead " M.B ."
195 15 /or "certain" read "the said "
,, 22 /or "M.A ." read "M,B,"
324 4 : /or "of " rea!l " on "
,, ,, for " on " read " of "
401 14 Insert "or " after " sum of "
" ,, for "penally" read "penalty "
436 I .for " Plaintiff" read " Power of Attorney "
440 1 for " old " read " sold "
448 19 /or ." deed:" read deeds
,, 20 _ for ".No,-" read "Noe,-"
449 12 for "deed" read "deeds "
460 8 for "T. o." read "T. & o.."
454 18 Insert "he" after "if ."
466 19 lnsnt "not" after "and "

0 , ,

"
2 ERRATA.

PAGE LINE
467 8 for " considered " read "considerably "
480 10 Delete the words " to the drawee "
483 21 for "b:ireinafter" read "bereinb!lfore"
491! 28 for " acceptance" read "acceptor"
493 13 for "an acco11tor for honour" read "liable to holder "
496 1 Insert " also comply " aftey "and"
61-4 14 fo, "or in" read "in or"
633 17 Below line 17 insert "For sale . by an Administrator
see p. lfH"
AUTHORITIES CONSULTED-ABBREVIA-
660 8 from bottom, Delete the word "Form " TiONS EXPLAINED.
670 9 Insert "are" after "to"
Footnote, for " 13 " read " 43"
676 22 Insert "whereby " after "agreement" A. C. R.-Appeal Court Reports.
6 froru the bottom, for "laws" read "lands" Anson-.Anson 's Law of Contract.
681
C27
634
11 Insert "no" after "have"
20 for " of " read "or "
.. Armour-Armour's Grammar Kandyan Law by Perera.
Ashburner-Asbburner on Mortgages by Ameer Ali-Indian
Edition.
Asir.-Asirwatham's Reports.
Aust.-Austin's Reports.
Bal.-Balasingham's Reports.
Bal. Notes-Balasingham's Notes of Cases.
Bal. P , & T.-Balasingham's Law of Persons and Things.
B. & C.-Barnewall and Cresswell, K. B.
Bal. & an,--Beling and Vanderstraten Reports.
Bev. & Sieb.-Beven's and SiEibel's Reports .
Br.-Browne's Reports.
Br. of Grot:-Bruyn's Opinion of Grotius.
Brooke-Brooke's Notary, 7th Ed .
Broughton-Broughton on Reminders.
C. A. 0. --Court of Appeal Oases.
Carter-Carter on Elements of Contract:
Cassels--Cassels on Hire and Hire-Purchase.
Ch. D.-Law Reports, Chancery (1876-90) .
Ohal.-Cbalmer's Bills of Exchange.
Clark-Clark's Students' Precedents in Conveyancing.
0 . L. R.- Ceylon Law Reports.
Oowp.-Cowper, K. B .

. ,))
xvi ABBREVIATIONS. ABBREVIATIONS. xvii

C. P. 0.-Civil Procedure Code. Koch- Koch's Reports.

Leg. Mis.-Legal Miscellany.
Or. } Orabb's Precedents in Conveyancing.
Crabb. Lemb.-Lembruggen's Reports. _
Oreasy-Creasy's Reporbs . Lindley-Lindley on the Law of Partnership, 6th Ed.
O. W. R.-Ceylon Weekly Reporter. L. L. R. } II

D. --Tbe Digest of Pandects of Justinian . .,L ea der L . R . . Tbe Leader " Law Reports. .
Deane-Deane's Principles of Conveyancing, 2nd Ed. Lor.-Loren:1.'s Reports.
De G. M. G.~De Gex, Macnaghten & Gordon Ob. App. Marshall-Marshall's Reports.
Jl Mass d rop ,s rnst1tutes
.
Donogh or Dono.-Donogh on Indian Stamp L aw, 6th Ed. Mass. of Cape Law.
Edgar-Edgar's Indian Edition of Ohalmer's Bills of Exchange, Mass d rop.
4th Ed. Matara Cases-R9ports of Matara Cases.
Elp.-Elphinstone's Practical Introduction to Conveyancing, Modder-Modder's Principles of Kandyan Law.
3rd Ed. Mor. Eng. & R. D. L.-Morice's English and Roman-Dutch
Ency.-Encyclopaidia of Forms and Precedents edited by Law.
Messrs. Butterworth & Co.
Ex.-Ex:chequer Reports (1848-56).
~
... Morg. Dig.-l\fo11gan's Digest .
Muttukrishna-Muttukrisbna's Eji tion of Tbesawalamai.
Fisher-Fisher's Law of Mortgage, 6th Ed. Nathan-Nathan's Common Law of South Africa.
Nell-Nell's Reports.
Gibs. ] Gibson's Conveyancing.
Gibson. N. L. R.-New Law Reports.
Gren .-Grenier's Reports. Norton-Norton's Treatise on Deeds.
Greenwood-Greenwood on Practice on Conveyancing. Ord.-Ordinance.
Perera-Perora's Kandyan Law.
G. } Grotius's Introduction to the Dutch Jurisprudence.
Grat. Prid . (or Pred.)-Prideaux's Precedents in Conveyancing.
Hawkins--Hawkins' Construction of Wills. Pollock--Pollock's Digest of tbe Law of Partnership.
H. T.-Hercules Tenant's Notary 's Manual, 8th Ed. Ram.- -Ramanathan's Reports.
Hogg.-Hogg's Conveyancing: R. D. L.-Roman-Dutch Law.
Sawers-Sawer's Digest of the Kandyan Law.
Holds. } Holdsworth on the Law of Wills Exr., &c.
Holdsworth. S. 0. C.-Supreme Court Circular.
Indermaur-Indermaur's Leading Conveyancing Cases. S. C. D.-Supreme Court Decisions.
J 9,r."-J arman on Conveyancing.
Jaye.-H. A. Jayewardene's Law of Mortgage.
Jaye.-A. St. V . Jayewardene on Registration of Deeds.
Tamb.
Tam.
l
S. C. R.-Supreme Court Reports.

Thamhyab's Repo ts.

Jones-Jones' Conveyancer's Assistant, 7th -Ed.
Jos. & Bev.-Joseph and Bevan's Reports.
J ust.-J ustinian's Institutes.
Kelly-Kelly's Draftsman, 5th Ed.
Key & Elp.-E.ey and Elphinstone's Precedents in Convey-
anciog.
Thanib.
Taylor-Taylor's Elements of Civil Law.
Tbom.-Thompson's Institute of the lJaws of Holland.
Underhill & Straham on Interpretation of Wills, 2nd Ed,
Underhill on Partnership by King.
Van Zyl-Van Zyl's Notarial Practice of South Africa.
C

,>)
.,
 ,;,, '
. .....~~ ... .., ... :.::
,..,' . 'J'.1
...
. =" #'"-

r. vii i ABBREVIATIONS.

V. D . L .- Vanderlinden 's In stitute of t he Laws of Ceylon .

V. D . K.- Vanderkeesel , Theses Selectae.
V. L. }Van L eeuwen 's Commen taries. \
Van . L.
Vand . -Vanderstraaten's Reports .
W endt-Wendt's Report~.
W eer.:_Weerakonn's Repo rts .
Wharton-Wharton 's Legal Maxims.
Willie-Willie's Landlord and Tenant in South Africa.
THE
W . P .-Walter Perei ra's Law s of Ceylon.
W ms . on Ex rs.--W illia ms on Executo rs a nd Administrators .
NOTARY'S MANUAL.
CHAPTER I.
' NOTARY.
1.-Deftnition.
NOTARY OR NOT ARY PUB LIC (Lat in N OTARIUS) is one
that attests deeds or wr itings to m ake them authentic.
Notaries were anciently Scribes who took notes or
minutes, and made drafts of writings and other instruments,
public or priva te {a), The ter m Notary in its origi'n al significa-
tion, means a short-hand writer or person em ployed to reduce
into writing, by means of signs and abbreviations called the
Notce, words and disco urses of another (b) : In this sense it
; ; ; freque ntly used by the Latin authors. B y the writers on
the J uri3prudence of Holland a Notary is defined to be a ublic
or offi cial scribe, who draws acts , instruments, a nd other
writings, to -1; -p,assed- b~for;-i;imi n """i:'he"--;;;;sence of two
competen t witnesses, an d wbo confirms and attests their
authentici ty (c) .

(a) Bum's Eoolesia.stioal law, Vol, iii, p, 1 ; Title Notary Public.

H,T.1.
(b) V11nder Linden , Verhaa deling van bet Notaris Ambt, Deel I .
Hoofdstuk 1, 1 ; H . T. 1.
(cl Lybreghts, Redenerend Vertoog over' t Not, Ampt. D, 1, Hoofdst.
1, 1; H, T, 2,

2 CH. !.--NOTARY.
,.,,
In England Notal'ie, were\...' originally officers of the Civil
and Can"';;;7";;,-;- and acted by imperial and p<1,pal authority.
During tb ~ idd!e ages their duties were of two-fold descrip-
tion. On the one hand deriving their authority from popes
and emperors or their delegates they wern in reality interna-
tionll.l officers and in that capacity attested and authenticated
documents for use in the foreign countrie~, and on the other
band like modern Solicitors they acted as conveyancers
and were employed in attesting the execution ; f wills,
deeds, contracts and other documents. In 1760 tha right of
solicitors to practise conveyancing was established (a).
During the period of the Roman Empire, they , were
known by the names of NOTARI!, TABULARII, TABELLIONES,
ScRIBAE, and ACTUARII (b).
Notaries were known in Engla.nd as early as the year'
1237. In France they were not officially appointed till 1302.
Notaries were known in Holland about the middle of the
15th century (c). The office of Notary was introduced into
t Ceylon probably by the Dut_ch who began to occupy Ceylon
in 1658. _
By the articles of capitulation (1796) all Notarial papers
, such as Wills, Bills of Purchase and Sale, Obligations, Bonds,
&c., were allowed to continue in force. Proi;ilamation of
1st March, 1801, deprived Notaries of their rights to draw up
deeds. Later by Regulation of January 1806, their right to
draw up deeds was recognized.
Rules for the prevention of frau~s and perjuries was first
promulgated by Regulation No. 4 of 1817, There no mention
was made of any Notary being found necessary to attest any
deed a,ffecting land. All that was then required was a writing
duly signed by the parties. Proclamation of 29th October,
1820, introduced the above rules for the prevention of frauds
and perjuries into tl:ie Kandyan Provinces. By this proclama- _
tion besides the signature of the pitrties, signatures of attesting
witnesses were requir~d. By Regulation 7 of 18?3 (5th cl.) it
(a)Brooke, pp. 9 and -14 , (b) H . T. 2.
>)
)
. ,
FUNCTIONS AND POWERS OF A NOTARY. 3
was declareq that deeds w.ere not invalid by reason of their
having n9t been executed before Notaries but the preference to
deans executed before N otariea was recognised. Regulation
No. 20 of 1824 and later Ord. No. 7 of 1840 enacted that
d~ ~ff;clin_g~la~[ -~-~-dto i;; ;tt;;t~d by a j:;i~-~p-;;;;i ~otary
---------" - --~--
and two witnesses for the deeds to be of force or valid in law.
--- -- ---
By Ord. 1 of 1837 a warrant under the hand of the
Governor was necessary tel eutitle . a person to act in the
capacity of a Notary. This was amended by 4 of 183S j
which increased the duties of a Notary.
Ord. No. 16_ of 1852 provided rules as to h~w one
-0ould become a Notary. These 'rules were amended later on
and Ord. No. 1 of 1907 is now the Chief Ordinance relating
to Notaries. I ~ ; ; details it has been amended by later
Ordinances.
II. -Functions and Powers of a Notary.
THE functions of a Notary in England are not defined by
any English statute or published rule, but generally speaking a
Notary Public may be described as an Officer of tbe law whose
duty is to~ ttest deeds, contracts and other instruments that
~ to be used abroad and _t~ ive a certifica.t e- of
the d~e
execution of such documents, which certificate if dyly
authenticated by his signature and. offici~a-c i; -;ccepted in
all countries where Notarial acts are recogni~ed as proof -~f
t~-acts'do'n ein his presence and attested by him (a).
/;) Another branch of an English Notary's business is the
'4;ranslati>n of documents coming from foreign countries.
They are also employed in~ aking formal presentments of
~ill~9f Ex~hanfJe for acceptan~; ;f -;;yme-;t,-iri noticing a~d
protesting them in case of dishonour, in preparing acts of
honour, and in authenticating and certifying examined copies
of documents for use in other countries.
In England and in all European countries Notaries have
been employed from a remote period i&>drafting Wills and
Oodicils.
(1:) Brooke, p. 18.
 4 OH. 1.-NOTARY.
They .are also entitled to~'s ettle forms of contract and
prepare m~es and de,eds relati;g t~ the transfer ' of land.
'!;) --- - -~
8
They are also employed in drawing u~'hharter parties, ttomry
bonds and.!ilverage a~reements.
Notaries Public, Solicitors and Conveyancers are entitled
to practise generally as conveyancers under the Statute 54
and 55 Viet., C. 39 (a). They are entitled at common law
to recover their f!JeS and charges. They have a general lien
upon Bills, Notes and Documents for the amount of their
general charges (b).
The Notary should carry out his cl~nt'.s.JawfuJ..jnsj;ruc-
tions, ex lain to him his position, rights and liabilities and see
----- . . '
. that every precaution is taken to protect his interests.
The chief function of a Scottish Notary is to aot as a
witness of some solemn fo11m or act. They are employed in
doing the work of an English Notary as well le).
In France and in the Continental Countries their princi-
pal duties are those of Conveyancers and Family Solicitors (d).
In the United States the chief function of a Notary is to
note and protest Bills, to note and draw up ship-protests.
They are generally authorized to administer oaths and take
acknowledgments of deeds and other instruments (e).
In Ceylon Notice of Marriage may be signed in the
presence of a Notary or a Minister or J.P. and of two respect-
able witnesses and such Notice form duly filled in sba,ll be
sent to the Registrar (f) ;
War Loan Bonds may be transferred either bv a sepa.rate
instru~~;;;ut;;i before a Notary or by endorse~ent in the
presence of a Notary or . J. P. and two witnesses. (Free of
stamps) {g).
(a) Brooke 'lO, (el Brooke 29.
(b) Brooke 28, (fl Ord. 12 of 1908 and 19 of 1907.
(c) Brooke 26, (g) Ord. 11 of 1917.
(d) Brooke 27.
>
RULES AND REGULATIONS. 5
CONVEYANCING COSTS.
Before 1833 Solicitors were paid for conveya,ncing
business according to the length of the document drawn and
without regard to the importance of the transactions to which
it related or the skill labour or responsibility involved in its
preparation (a).
By an order issued under the Solicitors Remuneration
Act, 1$81, the Solicitors are paid for . their _senrl!:es ~cc~ing
to the importan~e -;;r the . t~ansacti;-~ and the conse uent
~$~-; of _~:~s pon~ibifily_~ih i~~ol~; s:The order came into
operation on the ls~ January, 1883 in England. The Act
however provides for a s,;<Jcial written agreement between his
client and himself as to his getting a gross sum, commission
o; percentage, or e, salary otherwise (b).
The scale of charges under the Act provides rate of
fees for negotiating a sale, conducting a sale, negotiating a
loan besides for dra\Ying, engrossing the instrument to be
executed (c).
In re NorriH, {1902) 1 Cb. 741. It was held that a Soli-
citor is entitled to the 3cale foe for negotiating a Mortgage
even in cases in which he himself advances the Mortgage
money (d).
The table of fees chargeable have now been revised by
Ord. No. 22 of 1919 and it has been as much as possible
brought into line with the English practice.
III.-Rules and Regulations relating to Notaries.
Ord. No. 1 of 1907.
THE instructions issued to the Notaries of Ceylon are
mainly embodied in the Ord._ No. 1 of 1907. It enumerates
the several duties, liabilities and some of the rights of a
notary.
Every notary is required to have his office within the
area specified in his warrant (Ord. No. 1 of 1907, Sec. 10),
(a) Gibson, 536. (c) Gibson, 542.
(b) Gibson, f.87 and 588, (d) Gibson, 554,
6 CH, 1.--NQTARY.
YE;._9:.~!y_ oe!tifioa,tes shall be applied for and obtained on 01
before the 1st March every year, i.e., the calendar year
during which he acts as a notary. Such certificates relate
back to 1st January of that year (a). The Secretary of the
District Court is authorized to grant such certificates. If the
certificate is not applied for within the time, the District
Judge may, on being satisfied that the default was not due
to negligence order tbe Secretary to grant the certificate
(Seo. 25).
To obtain a yearly certificate a declaration in writing
signed by the notary, containing his n_~ipe and place of
rasidenoe and office and area within which be is authorized
to practise, shallbe deliver;;a to the Secretary of the District
Court, who will grant the necessary certificate (Seo . 26).
The declaration bears a rupee stamp (b) and certificate ten
rupees stamp (Seo. 25).
The following are the rules to be observed by notaries
(Seo. 29).
The Notary shall not divulge secrets confided to him by
the parties (clause 1) ; he shall not attest a deed drawn by
any person other than a notary (2), nor get the signatures in
blank (3).
He shall use durable paper (4) , get signatures on every
piece of paper forming the deed unless t he Registrar of Lands
nitials them (5); he shah use stamps of appropriate value (6)
and -duly cancel the same (7).
<L
He shall attest no deed unless t ~~e are t~?. w1tn_e.~ses
who could sign (8), and unless the p_ig:ties are kno;wn to the
notary or to the witnesses who have to sign a declaration of
knowledge il' th~-- notary does not know the parties (9), and
unless the narties or the . witnesses are known to him (10).
-"' . ~
He sball 0tead and explain the deed, before signature,
of the parties in the presence of the witnesses (wills
(a) Dias v, Rajpakse, 12 N.L.R. 138 ; 2 Leader 110.
(b) Ord. No, 22 of 1909, Boh, B. pt, 1.
,,
" RULES At-ID REGUliAT:ONS. 7
exoe~ted) (11) ; ~ et all .P.!}e signatures in tbe presence of
parties and witnesses an~ ign the same himseif .1,ikewise H2)
~ ascertain before signature the full names of parties , and
witnesses and ;'j ote any difference in the attestation (13) and
$)w rite over any signatures by mark, or in ot_h er languages,
that such mark or signature is that of so and so (14).
In deeds affectiog land iie shall describe it by its0 bound-
aries giving the probab!e''.Dexr.ent and~ ituation with respect
to the village, pattu, korale, distriClt and province and by
name or assessment number if an i (15~) ;' if the deed refers
to an undivided share he shall sa}l\ ow much of the whole, if
to divided share be shall give its particular boundaries and
extent (agree~ents to transfer, to mortgage and to laasa
excepted) (15b).
Bft!ore a deed ( will exoepted) is drawn by the notary he
should~ earob for prior registration (16a) unless the parties in
writing dispense wibh the search (16 proviso). Prior registra-
tion, if any, shall be noted on the top of the deed before it is ,
tendered for registration (16b) by him (a). He is not bound
to search for registration of seizures by tbe Fiscal (b).
He shall insert in letters the date, and place of execu-
the
tion (17) and shal l Q.Qt m_a~e !!-.!!Y.JJ,lt..e_lJl,tiqn in deed after
it is executed (18).
He shall without delay att st the deed, stating therein
that ' it was signed by the parties and the ~ "itne"sses in th0
presence of one another (19a), and designating the persons
. known to him (19bJ, He shall s~te .also the date and place
of execution , the full names of witnesses (19c), fact that it
was read and explained (19dl, whether any 1!!_.Q.llilY passed in
bis presence (19e), the number and value of the ~~_PS and
by whom they ware supplied (19JJ. Every attestation shall
be substanliially oi the form in the Schedule ; and be legibly
signed by the notary in the language of the deea . All altera -
tions in the attestation shall bei@i_ajled by him \20).
(a) The King v. Fernando, 13 N.L.R. 346,
(bl Guoeris v . Karunaratric, 18 N . L,R. 47 ,
8 CH. J.-NOTARY.
He shall practisa only in the place and in the language
be is authorized to practise (21), -- .. ""
He shall consecutively n~m!?_er the deeds attested by him
and shall begin numbering afresh when he goes to a different
district (22).
He shall keep a registel' of the deeds with an index
thereto and have in his ;;;;ession the ~~o~ols (a). He shall
on or before the 15th of the following month deliver to the
Registrar of lands the duplicates with two "monthly lists " (b)
of the deeds. If no deeds are executed for t ~ ~ - a 'NIL
LIST' shall b3 furnish ed (24). On or before the following
Monday of every week the notary shall deliver a " ~ l y
list" . of the deeds attested by him during the previous
~ek (35g) ; proctor .notaries on or before the following
Wednesday (25).
If deeds are aLLested in two or more districts by two or
more notaries, the notary who drew the deed shall deliver the
duplicate to the Registrar of lands. The other notary or
notaries ne~d not do so (26). If the deed is attested in a
district other tha)! the one in which the land affected is
situated, the notary shall send a certified copy of such .deed
with a list to the Registrar of such district (27) besides the
usual duplicates sent to the Registrar of lands of the district
wherein the deed was attested.
(a) The Protocol-this word is spelt the same in English as in Dutoh,
some writers put "k" for" c," though the old writers all use "c." The
word also is pronounced the same in both languages. It is derived from
the La.tin "Protooollum," which is merely the Greek "protokollon,"
meaning originally the first leaf pasted or gummed in a book. Protocol
therefore means the bo~k kept by a Notary, in whioh is contained the
Originals or Minutes of all acts and deed passed before him, 01 course
any original despatch, treaty or other instrument espeoia.lly in political
matters may aliio be called a. Protoool. But the word is here used in tbe
legal sense as applioa.ble to Notaries. (Bee Justinians' Novellae, 44 0, 2),
Van, Zyl., p. 20.
(b) Form F. in Sch, ii of Ord. No. 1 of 1907,
,,
RULES AND REGULATIONS. 9
If the deed is executed by an attorney the notary shall
~nnex true copies of the powers of attorney to the duplicate
and the protocol of the deed attested by him (28).
Lands worth Rs. 50 and over shall not be transferred to
Buddhist Temples ~ithout th; authority of the Governor (29),
whether the temple is in existence or not (a).
If the notary intenda changing his office he shall give a
month's notice to the District Judge and to the Registrar
General,- ~nd affix a copy of the notice on the wall of the
Dist;rict Court (30) ; after which, when actually changing his
office he shall forthwith inform the B,egistrar of Lands of the
District and the DJEtEi_ct Ju,dge (31).- - - -
He shall endorse on the title deeds the fact of any
transfer of immoveable properriy executed before him (32).
If an explanation of any irregularity, which could be
called for within 24 months, is required by the Registrar
General, the notary shall give an explanation in writing (33).
He shall expose in a conspicuous place at or near tbe
,entrance of his office a notice board with his name and the
words " Notary Public " on it (34).
Notary not being an advocate or proctor shalP live and
hold his office at places subject to the approval of the Gover-
nor (35a) Q) He shall keep an instruction book (35b) which
.shall be in his ow~ writing (350:>Q> He shall keep his records
at his office (35d),~all be present _at _his office oh M.2!:l days
and Thursdays between lQ_A.M. and 1-P.M. (35eh hall pro-
d~ th;bo~r~c., whenever required by the proper author-
ities (35 /) and hall submit his Weekly list " on every
Monday of the week following.
The maximum penalty for breach of any of the above
rules is Rupees Two hundred (Sec. 29).
The following deeds require ~ attestation no~ umbering
Do~ rotocol nor the<:9a escription of la!lds by boundaries.
(a) A power of attorney for use out of Ceylon.
(a) 'fhe King v. Goonetileke, 1 C. W. R. 116.
2
10 CH. I.--NOTARY.
(b) A deed solely affecting property not situated in
Ceylon.
(c) A transfer of stock of any Government.
(d) A transfer of sto ck shares or debentures of any
compa ay or corporation not having its registered
office in Ceylon.
(e) A notice of protest by a ship's officer, but not an
extended prote~t.
The mere non-observance of the above rules will not
iuvalidate any deed (Sec. 29, Proviso).
The notary if so instructed and paid for shall use due
diligence in having the deed registered (ilec. 31).
H~ shall ascertain and insert the correct consideration for
the execution of the deed (Sec. 32) .
No notary shali'act fraudulently (Sec. 33).
'
He is entitled to demand his lawful fees (Sec. 34). For
scale of fees, see Ordinance No. 22 of 1919.
The duty of a draftsman is to express the intention of
parties clearly and concisely in technical language (af
A professional adviser does not guarantee the soundness
of his advice. His duty is to bring to the exercise of his
profession only a ~ 3:..s onable degi:_ee of care and s_kill, but not
the highest degree of skill. Gross ignorance and gross negli-
gence alone would justify an action for damages against;
him (b). (Perera).
t
Q)cnmma
An allegation that a notary ~s. concerne d m
cases, that he was not possessed of ~ roperty, that there were
~ rits of execution against him, and that he was keeping
himself in onoealment does not disclose 1rn_y _~ _Qf!ence "
against any statute or other law of Ceylon (c).
(a) Elp. 46.
(b) Perera v. Chinniah, 7 N. L. R. 257 ; 1 Bal. 3.
(c) Re Jayewardene, 8 N.L.R. 152.
.,
RULES AND REGULATIONS. n
Where plaintiff got judgment against defendant for mis-
, feasance in his duty as a notary public, for a certain amount-
as damages computed as the difference between wbat the
plaintiff could have recovered on his mortgage bond, had it
been pi::operly drawn by the defendant, and what plaintiff
actually recovered; and where plaintiff subsequently recovered
by some unforeseen means a further sum from another debtor.
Held-that in equity i;he defendant notary was entitled to set
off such furhber sum against the amount of the decree (a).
It is of tbe utmost importance for the welfare of the
community that notaries should strictly comply with duties
imposed on tbem by 111,w. There is a distinction between
"negl..9t" and " ~ " ; "failure" may be due to inevitable,
accident, "neglect" is a culpable omission (b).
A notary who attests a deed which by law ought to be
stamped, but which bear~ no stamp, is guilty, of ahtesting a
deed insufficiently stamped.
The attestation of a deed by a notary is not complete
I when be had merely signed it, without sealing it.
So where a notary merely signed the attestation clausa
in a deed insufficiently stamped, and stated in the clause that
tbs duplicitte bore 'li stamp of 25 cents, whereas it bore no-
stamp at all, held, that he had not made himself obnoxious to
sub-section 13 of section 26 of Ordinance No. 2 of 1877, for
attesting a deed insufficiently stamped, nor to sub-section 10
for making a false statement as to the stamp required to be
affixed to the duplicate (c) .
It being provided in sub-section 22 of section 3 of Ordi-
nance No. 21 of 1900 that it is the duty of a notary to state
"definitely the erasures, alterations, or interpolations wbich
have been made in such deed,"--Held that the term "such
deed " applies to nob only the original but also the duplicate,
and that the noto.ry is responsible for any omission in the-
(a) Sivanadian v. Samarawikkrama, 3 N. L. R. 221.
(b) Queen v. Tilakaratna, 3 N. L. R. 208.
(c) The Queen v, Gunatileke, 2 N. L . R. 187.
12 CH. !.--'NOTARY.

duplicate- Qf tbe formalities requhed by sub-section 22, just as

he would be in'a similar omission in the original (a).
PUBLIC l fBRARY
JAFF!\JA.
Proof oi the signature of the notary alone who attested
the deed, where the other witnesses are dead, is sufficient to
meet the requirements of section 69 of the Evidence Ordi,
nance (b). = CHAPTER II.
A Notarial instrument is entitled to the presumption in CONVEYANCING.

!
favour of the regularity of the offici~l acts {c). It can only be
rebutted by very cogent evidence (d).
Where a notary took out a certificate under the Ordinance
on the 22nd February, 1906, and another on the 27th February,
1.-Definition.
CONVEYANCING is the practice of drawing convevance
and I;;;idocuments,--;,hich is a branch of the stud.-;- .and
practice of t1e la~. ,--- -- - - - ~- - - -- - - -
1907, and where he attested a deed a~ notary on tbe 25th
February, 1907 . .Held, that no offence was committed. "A q_o~VE,}'ANCE is the transfer of the ownership of (!rQporty,
notary who obtains hir. certificate before the 1st of March in especially landed property from one p(irson to anoth_er; or the
-each year, that is, in each calendar year during which he acts wr1ttenTr;t~i:;~~nt 'a;-aeed wher;by s~~h -t~ansf~r is made (a).
~..,........~ ~ -~--- 1 .

as a notary, bas complied with the law and is not .liable to A deed is defined as any instrument delivered as a deed
the penalty (e). and which either itself passes an interest or property or is in
affirmance or confirmation of something whereby an interest
ur property passei-(b) .- .
In most cases the right of property i_s acquired by delivery
or conveyance and therein a difference must be made between
- moveable and immoveable property. Moveable property
passes mainly by delivery thereof or- of its symbol.
In the case of most kinds of personal chattels in posses-
sion the legal property can be transferred inter vivos (ll by
delivery, (2) by deed of assignment, or (3) by a contract of sale.
The equitable property can be crea.ted by a declaration of
trust, which may be verbal, or in writing, or by deed , and
when created can be transferred by writing or by deed (See
also Trust Ord. No. 9 of 1917).
A few kinds of property like ships are transferable in
special ways established by statute law (c).
(a) Tbe King v. Seaeviratne, 6 N. L. R. 138.
(b) Somananater v. Sinnatamby, Tam. 38; Koch, 16.
(c) Dewar Umma v. Ismail Marikar, 3 Bal. ~9. (al Mozley & Whitely's Law Dictionary ,
(d) Ilagupillai v . Sivak:uru, 4 C. A. C. 101. (bl Elp. 46.
(e) Dias v. Rajapakse, 2 L.L.R. 110, (c) Merchant and Shipping Act, 1894, Bees. 24-46.

.,

14 CH. II.-CONVEYANCING.
In the case of sqch choses i.n action as stocks or shares
' th~ legal property is tt:11osfe'rable inter vivas by tbe substitu-
I tion of the transferee's uame for that of the transferor in the
. . books of the corporation or company issuing them and such
choses io action as policies of assurance by a written assign-
ment of which notice is given to the company issuing the
Policy (a).
Incorporeal interests in pure personal properby such as
pa.tent rights and copyrights are assignabl'e by deed or writing
in manner for the most part regulated by statute (b).
Land in England before 1845 may have been transferred
by 'delivery or in technical language, feoffment with livery of
seisin and since 1845 lande are transferred by deed of grant
or conveyance (c).
.
In immoveable property the title does not pass, unless
hy a .deed exec ted before a Notary and two witnesses. No
3 agreement affecting it, need not necessarily be notarial(/).
sale,purchase ransfe ,uassig~m~nt, or m rtgage of land or
. bl .
-other 1mmovea e proper t y, an d no-( S)promise,
' U ,
con trac t
h)
oargam,
or agreement for effecting any such object, or for establishing
any seourity, interest, or incumbrance affecting land or other
immoveable property (other than a lease__ !!f; ill, or for any
period not exceeding one month), nor any contract or agree-
J ment for the future sale or purchase of any land or other
immoveable property, shall be of force or avail in law unless
the same sha.11 be in w..r,iting and f!.!~n~d by the party making
the same, or by some person lawfully authorized by him or
her in~e resence of_ a lice~-~<!..!!Q..t~ry public and t ~ r
more wjj;nes,ses present at -the same time, and unless the
execution of such writing, deed, or instrument be duly attested
by such notary and witnesses (d) . - --....,.
Provision is also made in our hw for exe18ting deeds for
the conveyance of immoveable prope_rty before ' t ?lQ __wit~sses
(a) Policies of Assurance Act, 1867, Bee. 3 aud llhrioe Iosurnnoe
Act , 1906, Secs. 50 and 51.
(b) Gibson, 3,
(c) Gibson, 1 au d I! ,
(d) Ord. No. 7 of 1840, 2.
. .,
. DEFINITION. 15
and some ~istrict Judge or~ ommissioner qf Rsgue~ts of the
district, or :i. J usti;- of lib~ Pe_;; authorized bhereto (a).
The~ iscal is also authorizecl to execu ~e conveyance of
property sold by him and subseguenbly coofirmed by Court (b) .
Thi~overnor is empowered to ex1:1cute under Public seal
grants and disposition of lands belonging to the Crown (c).
. '
. A certificate of sale, under the hand of th ., Chairman,
Local. Board, of properties seized for the recovery of rates due
to the Local Board vests the properties in the purchaser free
from all incumbrances (d).
As regards deeds affecting crops and vegetation generally,
a distinction has to be drawn between frnctus naturales and
fructus industriales. The former establishes an ioleri;ist
affecting land but thl1atter does not. A contract to harvest
~n~h~na which is fruitus naturales requires notarial exe-
cution (el. A tobacco crop is fructus industriaZes and an
So are crops of paddy and chillies (g),
An agreement to cultivate land and sl:tare produce shoulil
be notarial (h).
Friwtus Naturales includes growing grass, tim her and
underwood (i).
Fructus Industriales is the crop produced _annually by the
labour of a man, e.g., corn, potatoes, turnips, &c)j) :
' in land (k).
Tenant's fixtures are not interests
Machinery affecting trade fixtures is an interest in land(l).
(a) 17 of 1852 , 1,
(b) Seo. 286, C.P.C,
(c) Let. Pat, of 16th June, 1877, Seo. 5; l W.P. 55.
(d) Ord. 19 of 1905 .
(e) Lee Hedge & Co. v, Beville, 8 B, C. 0, 21; 2 W.P. 557.
(/) Perera v. Ponnatohi, 3 N.L,R. 56.
(g) Silva v. Wasanahami, 3 8 O.C. 80.
(hi Elyas v. Bavunbamy, 18 N.L.R. 82 .
(i) Gibson, 33.
(j) Gibson, 33.
(k) Lee v. Gaskely, 1 Q.B.D. 700.
(I) Jarvis v. Jarvis, 63 L. J, Oh. 10 and Gibson, 34.
 16 CH. 11.-CONV.EYANCING.
FIXTURE.
Wall paper cemented to the walls of a room is not,
a, fixture .
Under tbe R. D. L. the principle applied is whether thtt
removal by the tena~t of which he had made and fitted at his
own cost could be removed without detriment or damage to
the subject hired (a).
Possession of trees standing on . another man's land
involves an interest in land, but when nuts are picked the
crop becomes moveable (b). Lease of cocoanut trees for draw-
ing toddy has to be notarial (c).
A "planter's share" is au interest in land, and cannot be.
acquired by the planter exce'pt by means of a notarial instru-
ment or prescriptive possession (d) ; and, similarly, a contract
by which one person agrees to improve and cultivate land, in
consideration of a promise by another to give him a lease
thereof, must be notarial (e) , But where by custom, a planter
is entitled to a certain share of the plants at maturity, no
notarial contract is necessary to entitle him to recov~r bis
share (f ).
By a planting agreement attested by a Notary it was.
agreed inter alia that ~ the event of the planter planing the
land he should be entitled to a furtber share of the soil and
trees . Held that the planter .became entitled to a I/4th share
of the soil and trees on the fulfilment of the conditions and
\ that no further conveyanca was necessary to vest the title on
the planter (g).
A parol agreement giviug a right to an interest in a grow-
ing crop of coffee for an entire season is void under Ord. No. 7
(a) Davis v. Baur, L. & A. 18; Gibson, 34.
J (bl Rome! v. Moises, 4 N. L. R. 225.
(c) Pieris v. Perera, 13 N. L. R. 225,
(dl Jayasuria v. Omer Lebbe, 2 C. L. R. ,6.
(el Gren., 1873, Pt. ii. 42; 2 W. P. 558.
(/) 3 Lor. 27 5 ; ibid.
(g) Weera.koon v. Juris, 16 N, L. R. 144,
,)
DEFINITION. 17.
of 1840 (a) but an agreement to deliver at certain specified
rates all the crop of a certain year of. a cinnamon estat9 is not
an agreement involving an interest in land to require a writing
under Ord. No. 7 of 1840 (b).
A writing relating to the sale of a paddy crop is simply
evidence of the sale and transfer of the crop in question and
does not fall within the provision of Sec. 2 of 7 of 1840 (c).
An authority to enter on land and prospect for plumbago
and to work, the mines there and take away the plumbago is
an agreement creating an interest in land and should be
notarially executed (d) .
An arrangement to possess in Tattumaru should be by a
Notarial deed (e).
A per;:ion who as wedumises a land does not acquire any
" interest in the land" in the absence of a notarial agree-
ment(/).
An agreement to bid for and purchase land at a Fiscal
Sale and thereafter to convey a share thereof to another in
consideration of bis n ot bidding at the sale is not valid unless
it was notari ally executed (g).
An agree ment to build a house though implying a license
to go on t he land does not create an interest in land (h).
A contract for the sale of the building materials of a
house to be taken' down and cleared away by the purchaser
o~eates an interest in land (i).
(a) 3 Lor. 284 ; Perera v . Mudalihami Ram, 1863-65, p, 123;
2 W. P. 558.
(b) Wall v , Schrade r Ra.m, 1863-68, p. 284,
ic) K uohi No na v. Brau, 5 A.C.R. 117.
(d) P erera v . Amc ra su ri a, 12 N.L.R 87 ,
(e) H arm ;i, nis v , Am ernsehra , 16 N.L.R. 207,
(/! Dionis 1,. Lewis, 5 Bal. 6,
(gl Ameraseka ra v. R ij~pakse, 14 N .L .R . 110 ; 5 L eader 36.
(h ) Per Hill, J ,, in Wrigh t v. Btavert , ( 1860) 2 El. and El, at p. 728:
Gi bson , 35.
(i) Lavery v . Pursell, (1889) 39 Ch , D , 508 ; Gibson, 85.
3
 18 CH, 11.-CONVEYANCING,
I
An agreement for the sale of lands and personal chattels,.
if not binding as to the land is not binding even as to the
goods unless the agreement forms two distinct contracts (a).
11
Anda " cultivation is cultivation under an agreemenb
the consideration for whioh is a share of the orop raised by
the cultivator. An agreement for the cultivation of land in
Anda requires notarial execution (b).
By a writing the defendants agreed t0 clear within one
year a block of land belonging to plaintiff and to stack aO
timber to be sawn by the plaintiffs. In return the plaintiffs
agreed to allow the defendants to sow ku'rakken in the land
and have the produce of the same for one year. Held that
this agreement was valid though not notarially executed.
The words of the agreement are inacceptable of the con-
struction that the defendants were to cultivate the Chana and
have all the produce in return for labour to be expended therG
in felling and stacking the timber. Timber when felled would
II
be produce" (o).
Possession in Tattumaru is an 11,rrangement by which thG
co-owners agree for considerations of convenience to possess
. the entirety of the crops in terms, instead of each taking his
proporbionate share of each crop. The arrnngemenh if not
notarial in no way affects the rights of the co-owners each of
whom is free at any time to resume bis strict legal rights (d).
.Money paid in pursuance of a contract which is void for
'l,,
non-compliance with Sec. 2 of Ord. No. 7 of 1840, and which
is not performed, is recoverable by action (e) ; and a person
declared the highest bidder at a~ auction sale of land may
recover a payment made under conditions of sale not notari-
ally attested(/). The provision of Sec. 2 of Ord. No. 7 of
)
(a) Dart's Vendor and Purchaser, 7th Ed,, p. 229; Gibson, 35,
(b) Sa ya.too v. Ka.linguwa, 8 S.C.C. 67.
(c) Jayasooria. v. Binno Appu, 16 N.L.R, 65,
(d) Harminis v. Amera.sekara., 16 N.L,R. 207,
(e) Gren. 1873, pt. ii. 34 ; Gdgoris v, T,Jltkara.tne, 2 C, L. R. 191,
(I) 3 Lor, 170; 2 w. P, 009,
0)
KINDS OF DEEDS, .19
1840 does not apply at places at which Ord. No. 21 of 1887
has -been proclaimed, to contracts , or agreements for the
cultivation of paddy fields or chena lands for any period not
exceeding twelve months, if the consideration for these
contracts or agreements is, that the cultivator should give to
the owner of such fieids or lands any share or shares of the
crop or produce thereof.
Immoveable properby of wife converted into money vests
in the husband unless there . was the intention on the part of
the wife to reinvest the same in land (a) .
A Si,perficiarium involves an interest in land and as
such cannot be created or alien ated except by a notarial
writing (b).
An agre_e ment for the agistment of cattle does not confer
a,ny interest in land within the meaning of the Statute of
Frauds and does not require to be in writing. Agist = take in
live stock to feed (c).
An agreement for the agistment of milch cows is com-
monly called "Milk for meat agreement "(d).
There is no c ommon law right of lien in respect of the
reinuneration for agistrnent such right must be. conferred by
an agreement between th e parties (e) .
An agreement to clear a block of land and to stack all the
timber is valid though not notarially executed (f).
II.-Kinds of Deeds.
0
DEEDS as to their form are divided into indentures and
eeds poll (g}.
By an indenture was originally meant a deed where the,
top of tbe deed was cut and indented (instar dentum). But
. (a) Sanmugam v. Rosa.ina. Silva, 1 Bal. 137; Ord. No. 15 of 1876,.
.Seo. 19.
(I>) Aha.mdu Natohia, v. Muhamudu Na.tohia., 9 N, L. R, 331.
(c) Jones v. Flint, (1839) 10 A, & E. 753; l. Euoy, 424.
(d) l Ency. 428,
(el Jackson v. Cummins, (1839) 5 M. & W. 342; 1 Ency, 428,
(fl Jay11,soori11 v. Lewis Appu, 16 N, L. R. 65 ,
{g) Elp. 58 ; 2 Crabb 839.

20 CH. II.-CONVEYANCING.
I now it means a deed that has parties of more than one
12!!!.t (a).
Deeds poll are so called because they were formerly
polled or cut even at the bead. It now ap plies to deeds wbers
the persons executing them arA a)l ";; one pa,rt.
., In indeni;;;"res the dato is usually placed at the beginning ;
in deeds poll at the e~d, in the witness clause.
When all the persons have identi.cal intentions, they
generally express them by means of a deed poll; but when
this is not the case, they do so by means of an indenture, and
are said to be made .parties to it, those who have identical
intentions being made parties of the same part.
The indenture begins as follows : -
11 This Indenture, made the 27th day of January, 1909,
between A. B. of Colombo of the first part; 0. D. o f - -- and
E. F. of---of the second part; and K. L. of---of the
third part."
If tho parties be of two parts only, they are said to be
11 II
of the one part" and of the other part" (b).
The formal method of stating the parties to a deed poll
and of beginning it varies according as ilP'laoes or does nob
co!!tai1;1 recit_als ; in the former case it begins / 1)" To- ~11 -to
whom these presents shall come A. B. of---send-eth
11
greeting": in the latter case it begins';1- ,) Know all men ~y
these presents that I, A. B. of----&c." the date being in
each case mentioned in the testimonium ciause (c).
In contracts the commencement is generally the same as
II
in an indenture substituting the words Memorandum of
agreei;nent" or " Articles of agreement -" for "This Inden-
ture." When the contract is long, and is, according to a
usual and convenient practice in such cases, divided into
numbered paragraphs, the heading " Articles of agreement"
is more often used th!J,n "Memorandum of agreement," but
_ it is entirely immaterial (d).
(a) Elp. 513. (c) Elp, 58; 2 Crabb 839,
lb) Elp, 60. (dJ Elp, 61.
REQUISITES OF A DEKD. 21
III. -Requisites of a Deed.
THE incidents essential to the validity of a deed are:-
(1) Writing.--A deed must be written or printed on
durable paper or parchment. The writing of deeds is without
punctuation but the Courts in construing them must read
them with such stops and marks of parenthesis as will give
a meaning to the whole (a) . Marks of parenthesis, &c., are
indeed usually inserted (b).
(2) Party able to contract.-All persons not under any
positive disability may execute deeds (See " Who could execute
a deed" below).
(3) Party to be contracted with.-As a rule, whoev~r is
capable of being a grantor may also he a grantee, but a deed
I
may be executed to or in favour of an in!al'lt, - even though he
be unborn (c) .
(4) A thing to be contracted Jor.-The thing or subject
matter to be contracted for must be c~arly expressed, and
may include almost every estate and interest in real and
personal property , whether in possession, remainder, or
reversion (d).
(5) Apt words.-B y apt word~ is to be understood not
only such technical words as . the law requires to create
particular estates, - but also such a form of words as will
ena-ble a judge or jury to discover the meaning of the
parties (e).
(6) Execution of deeds.-Under the English law sealing
by the parties is th0 most important requisite of a deed. ~h~t
is not the case in Ceylon. Seal except that of the Notary s 1s
not known here. The attestation of a deed by a notary is not
complete when he has merely sigued it, without sealing it (j).
(al Doe v. Martia, 4 T.R. 65, 66; 2 Cr. 840.
(b) 2 Cr. 840,
(c) Long v. Blaokall, 7 T. R. 100; 2 Cr. 8U,
(d) 2 Cr. 841,
(e) Lord Clanrioarda's oase, Hob. 1177 ; 2 Cr. 842.
(I) Qu~en v. Guaetileke,. 2 N.L.R. 187,
 22 OH. II.-CONVEYANCING. REQUISITES OF A DEED. 23

Signing_is necel;!~_a !~ .to the validity gf _!!i _del'.)d, A seal is E~ery deed (wills excepted) shall be executed in dupli-
essential in the cas!t_of a company or corporation which has a.
common seal (a).
H is essential for the validity of a deed affecting immove-
able property in Ceylon that the deed should be executed in
l
eate (a) and the notary s~all preserve as his pro~oco~ a draft
-or copy of tho deed to wb10h shall be attached his signature
and those of the party and witnesses to the original deed (b).
(7) Delivery of the deed.-Delivering of the deed may be
the Island. Every such deed is signed by the grantor or his in any form. The delivery of a writing as an escrow is where
attorney, in the presence of a Notary and at least two wit- 'the maker of the writin g delivers unto a stranger until certain
nesses present at the same time (b). conditions be performed, and then to be deli'vered to the party
A deed may be executed by the pa~ties in person or by in whose favour the writing is made, to take effeot as a deed.
attorney; but in the latter ease it must be executed in the The attestation should state the purport of the escrow (c).
name and delivered as the act and deed of him who gives the An example of .an escrow fs when a person executes and
aut~ority (c). delivers a deed to his solicitor to be exchanged against the
A person born deaf and dumb is not thereby incapa- purchase money when paid by the purchaser (d).
citated to execute a deed (d). But even where the deed is delivered to the grantee or
The deed of a blind unlettered man ought to be truly his agent if it is delivered on a condition which !\!US pends its
read to him and if it be misread it will not bind him (e). If a operation to some future time or event it will operate as an
party to a deed ~an reaa' b~t omits to do so or being an escrow (e).
illiterate or biind man does not require to hear the deed to be To pass title from t he plaintiff to the defendant there
read, or the contents thereof to be explained, although they -must be delivery of the land conveyed; this delivery may be
be contrary to bis intention the deed will yet be valid at by actually givin ~ ossession of the land or as has been held
law(/). Under Ord, No. 1 of 1907 it is the duty of the /J by this Court by delivery of th'e deed whicn has been held to

I
notary to read and explain the deed before signature, to the bo a fiotitious deli'very of the land itself (J ).
parties of whatever nature, in: the presence of witnesses ( wills " The delivery. of a deed is not essential for its validity
excepted) (g).
under our law (g).
Attestation is necessary for the purpose of authentication, A vendee of immoveable uroperty is not bound to accept
but it forms no part of the essence of a deed (h). -delivery of the deed as sufficient delivery of 'the possession of
The sta_mp Ord. ~o. 22 of 1909 and amending ordi- property ; he is entitled to ask his vendor to place 'him in
nances provide as to how a deed should be properly, duly and actual possession ( h).
sufficiently stamped.
(a) l!l Eaoy. 221,
(a) Ord, No. 7 of 1840, Seo, 15,
(blOrd. No. 1 of 1907, Seo, 29, ol, 23,
(b) Ram, 1860-6\!, p, 37; Brooke 261.
(cl2 Cr, 843.
(cl Crombe's case, 9 Co, 76; 2 Cr. 845,
.(d) Elp, 47 (1891),
(d) 3 Jar, 22 ; Ba.papa ti Pillai v, Tirumanaohari, 17 N, L, R, 1'46.

I
(e)Watkins v, Nash, (1875) L, R. 20; Gibson, 165.
(e) Pigot's case, 2 Cr; 846.
(fl jimdirisa v. Bandirisa, (1905) 3 ijal. Notes 11,
(f) Manse's case, 2 Co. 3; 2 Cr, 846,
(g) Wiokremesekere v. Wij etunge, (1913) 3 C, A, C. 5~; 1 Wije, 37,
(g) Ord, 1 of 1907, Bee, 29 (11).
(h) Ratwatte v. Dula.we, 10 N, L. R, 804,
(h) ;;i Cr, 846,
I
1
 24 OH. 11,-CONVEYANOING.
Where an assignor of a bond kept the deed of assignment
with bim as the consideration was not paid ; held that the
assignment did not vest title in the assignee .(a).
IV.-The Formal Parts of a Deed.
THE formal or orderly parts of a deed are usually con-
sidered to be six in number, namely : 1. The Premises,
2. The Habendum and Tendenum, 3. The Redendum, 4. The
_Conditions, 5. The Convents and 6. The ConcluEiion.
These parts of a deed are not necessary to the essence
thereof, but when form and ~ubstance combine, then is the
deed fair and absolutely good (b) .
1. THE _PRE MISES (c) (used in U1,e plural) is that part in
the beginning of a deed the office of which is to expresi.,. tbe
grantor and r_!!.nt_ee_!!Qd the land or thing granted or_c9..nvey..{l_g,
~pd a.JI that precedes the Ha_bendum.
The premises comprehend everything prior to the haben-
dum and consists of-
i. the date, ii. the names and description of the parties,:
iii. the recitals, iv. the consideration and acknowledgment of
the receipt thereof, v. the grant or gra~ting part, vi. the
parcels or things granted , vii. the general words, and viii. the.
exceptions and reservations (d).
i. The date.-A deed may be dated or executed on a.
Sunday (d) or a public holiday.
placed at the be innin ,indeeds..- "'--"~==--==-
c~e.
(a) Velayankangany v. Titoheo, 5 Leader 2.
(b) 2 Cr. 847,
(c) The word "premises" also sign ifies what has been before i;nentioned
or premised ; consequently " parcels" ca.nnot be referred to as the pre-
mises until they have been mentioned, Until then they are referred to
as "the hereditaments, etc. , intended to be assured, ate." The words pre-
mises is, of course, not confi_ned to the land only. An arrangement, for
instance , can be referred to as ' the premises, It refer~ also to the thing
demised or granted by a deed ; hence applied to a building and its.
adjuncts, e g'., a house and premises,
(d) 2 Ct. 8!18.
>
,;
THE FORMAL PARTl:l OF A DEED. 25
ii. The names and description of parties.-All those who ,
are intended to take an immediate interest ought to be named
as parties (a). Tbe parties to a deed are always described by
their dwelling places and qualities (b). Occasionally, parti-
cularly in commercial and railway conveyancing, we annex to
tho description of each party, the character in which they act,
and afterwards call them by that name, e.g., " This indenture
made- etc. between the North and South Junction Railway
Company, hereinafter called tbe Company of the first part,
&c."(c).
.. There is no strict rule as to the minuteness of description
of parties necessary, all that is required is to describe the
parties with such a degree of accuracy that no confusion will
arise.
Generally if a person lives in the country, a description,
as A. B. of-(village or parish) in-(district or country) is suffi-
cient. On the other hand you generally sta be the street
number in the Street of any one living in a Town, e.g ., "oi
No. 118, John Street, in the parish of St. Mary in the City of
London."
Where a party was described differently in a former _deed
relating to the same property give both the present and the
former description thus :-"A. B. of N o. 125, Norris Road, but
formerly of Wellawatte."
A woman who has been divorced is correctly described
after the divorce by the surname that she bore immediately
before it, i .e., by her husband's name. If she wishes to resume
her maiden name she 'm ay be described thus :--'' A. B. lately
A. C." If there is any teason for showing that she was for-
merly a married woman she may be described as "late the
wifo of D. C." (d).
Usually in a conveyance the conveying parties come
before those to whom the interest is cbnveyed (e).
(a) 2 Cr, 848. (d) Elp. 53 and 55 (1894).
(b) Elp, 61, (e) Elp. 65,
(c) Elp, 6!1 .
4

26 CH. II.-CONVEYANCING.
iii. The recitals.-A recibal in a deed like the preamble of
l an act of Parliament, has been held to be the key to what
comes after (a). Recitals are dllided int~arrative which are
either general or particular and :i.mtroduotory, The narrative
recitals are so framed as to shew the nature of the interest
intended to b9 dealt with (b). The i_ntroductory recitals are
[ .so framed as to explain what is in~ended to be done by the
deed (c).
If the original title is based on a conveyance it is un-
necessary as a rule to shew why or by whom the interest was
created and the recital is called a general recital.
Example:-" Whereas, hy a conveyance dated, &c., the
'hereditaments hereby granted, were assured to the use of the
said A. B. bis heirs a~ssigns for eveti,._ Here . no informa-
tion is given as to whem conveyed ~ or as to what were
his motives for doing so.
The creation of A. B.'1:1 estate having been shewn, we
must in the next recita;l, not only state that bis interest
became vested, or partially visted in some ono else, but shew
that A. B. conveyed it, and the recital is called a particular
recital.
The parcels are referred to in the recitals as "the messu-
age or dwelling house (or ' piece or parcel of land ' or as the
case may be) and bereditaments hereby assured" or herein-
11
aft;er expresses to be hereby "assured," granted," "appoint-
II
ed," assigned" or demised;'' as the case requires (d).
11
Care should always be taken to make introductory recitals
correspond exactly with what is subsequently done in the
operative l;)art of the deed. Thue in a purchase deed the
recital may be " whereas the said A. B. has agreed with the
said c. D. for the sale to him of the said hereditaments, &o.,
free from encumbrances, for the sum of Rs ....... " care must
be taken not to refer to any auotion or to any preliminary
(11) 2 Cr, 849. (c) Elp, 70.
(b) Elp, 68, (d) Elp, pp. 60 and 61 (1894),
,,
THE FO''RMAL PARTS OF A DEED. 27
<iontract in writing. by which the bargain was made, so as to
avoid putting notice of it in tbe title,
If the <lead be a marriage eettlemeot, the introductory
reoital may run thus :-And whereas upon tbe treaty for the
said intended marriage it was agreed that the said A. B. should
assign (parcels) to the said C. D. (tr~stees) their Executors,
Administrators and Assigns upon the trust and with and
aubj9ct to tbe powers and provisions hereinafter declared and
contained concerning the same (a),
It is the prachioe with some leading convev'ancers to dis-
pense with recitals in simple oases. Suppose for instance that
the recitals are omitted in a Conveyance on a sale under a
Power, reference would be made to the power in the opera-
tive part, which would run as follows : -
The said A. B. in exeroise of a power of sale contained
11
in an indenture dated, &c., and of every other power him
enabling, doth hereby, &c." (b).
It is always advantageous to reoibe the last con veyance
,by whiob the paxcels were oonveyed for this greatly facilitates
,the identification of the property (c).
Where a reoital is intended to .be a statement wbiob all
,the parties have mutually agreed to admit as true, it is an .
estoppal on all (d). A party to a deed of conveyanco is not
-estopped ?Y reoitals contained in other deeds, through which
the title so conveyed is derived (d).
For further observations vide Chapter on " Purchase
deed" below.
- iv, The consideration and the acknowledgment of the
receipt thereof,-Tbe consideration is always stated in words
(
at length in the first witnessing clause (testati.m) and where
there .i s more than one witnessing clause, it is referred to in
the subsequent witnessing clauses, as II the Consideration
aforesaid "(e). In all cases where a sta~p duty is imposed
(a) Elp 62 (1894). (d) 2 Cr. 850,
(b) Elp, 66 {1894). (e) Elp, 72 (189,t),
.(c) Elp, 82 (le94),
 28 CH. II .-CONVEYANCING.
on any instrument iri proportion to the consideration money
or to' the value of prop<irty, the full consideration or value
should be expressed and set forth in words at length in
-0r upon such instrument (a). But if the notary knowingly
or wilfully inserts the wrong .consideration he becomes guilty
II
of an offe nce" (b) .
II
The co~sideration may be either a "good II or valuable 11
one. A good conaidera_tion is such as that o-f natural love or
affection, etc. A valuable considera~ion is such as money.
marriage or the like -(c). By
""
consideration
_,.. .,,
is meant the motive
that affec~s _the parties .
The acknowledgment or receipt of the consideration,
money is usually expressed iu parenthesis, immediately after
II
the statement of the consideration. The usual words are the
receipt whereof, I, A. B.----do hereby acknowledge or
"the receipt whereof is hereby acknowl~dged. 11
. v. -The grant or granting part and the operative words.-
tThis is the part by _which the estate is granted, the technical
words of which vary in different kinds of deeds . The opera-
tive words vary according to the nature of the conveyance ..
Vide Post " Purchase deed " in particular.
I vi. The parcels. or things granted.-These ought to be
accurately described. In all deeds particular attention should
be paid to the description of the property intend.ad to be
conveyed.
In conveyances by trustees tho parcels are inserted in the
recitals, and they are conveyed .by words of reference to the
description in the recital. In as~ignments of leaseholds it is
the practice to introduce the parcels in the recital of the leas6
and to assign the property comprised in the lease (d).
After the description of real property a sweeping clause is,
II
sometimes added of all other the lands, &c." of the grantor
in a particular place, the use and object of which is to guard
(a) Ord. No. 3 of 1890, Seo 21. (c) 2 Cr, 852 .
(b) Ord. No, 3 oi 1890, Seo, 23. (di 2 C-r. 855
...
THE FORMAL PARTS OF A DEED. 29
,against accidental omission, but in such cases it is generally
meant to refer to estates or things of the same nature and
description with those whiob have already been mentioned (a).
If t~~hnical words are. used the draftsman must t~ke oare
that he employs them in _their proper significance (b).
Land includes not only the surface of the earth, but
-everything under it or over it such as mines, woods , and
houses (c).
Tenement includes land1:1 an~ everything which may be
the subject of tenure, whether corporeal or inoorp)real, real,
personal or mixed (d).
Gatf3Wt1,y bas bean held in a conveyance of land with the
exolusive use of a ga;teway, to pass t_be land covar~d by the
II
.gateway (e).
In the expression " house and premises " the word
premises includes only matters intimately connected with the
house. It does not include, for instance, an adjoining meadow.
" Hereditament means whatever may be inherited,' whe-
II
ther corporeal or incorporeal, real or personal or mixed.
A lease of rooms in a hou se, which constifiute a dwelling
,by themselves, includes the outer walls of the house so far as
they belong solely to such rooms, though the use of them by
t he lessee must be reasonable (f).
The mere sale of the land itself by the Fiscal against the
-owner or by the owner himself does not pass to the purchaser
any right to the share of the crop. The later owne~ does nob
become the owner of the paddy representing his ground share
until it is specifically delivered to him (g).
{a) 2 Cc. 856.
(b) Gibson, 135,
(c) 2 BJack Com. 18,
(d) I bid 17: .
{e) R eill y v. Booth, (1890) 44 Ch. D. H1 ; Gib. 135, 186,
{/) 7 Enoy . 75, 76,
(g) Gulappate v. Baban, l C.W.R. 134.
 30 CH. IL-CONVEYANCING,
The word farm is a good legal description for capitar
n;iess uage (or principal dwelling house) and all the land
belonging to or occupied with it (a), i .e., it passes the farm
hous.e and the land therswith ( b) .
II
A house m gssuage (especially if the wordswith the-
appurbenances " be added) includes tha dwelling house, the
adjacent buildings, the garden orchard, and the curtilage (i .e.,
courtyard) (c) , but probably not a detachE)ri garden belonging.
toit(d).
The land itself will pass in a conveyance adequate to that
purpose by the n ame of a "mi ne", but the grant may, it is
conceived, contain an exception of so much of the surface ae-
is not necessary for the purpose of minii;ig (e).
" Water" does not include the land upon which it stands,
and by a grant of so many acres of water nothing passes but
the right of fishing ; it should be described as so many acres
of land covered with water. A conveyance of land passes run-
ning water unless expressly excepted. A right of ferry may
pass by a conveyance of land with " all profits and .com-
modities belonging to the same"(/).
By a gra.nt of house all the :fixtures pass (g) .
A mill includes the stones, tackling and instruments.
necessary for tbe working of the mill (h) .
A grantor could not afterwards be admitted to narrow ' exception; for there may he a reservation of something not
the operation of his grant, by s hewing that the condition of
sale signed by him at the time of the sale was different (i).
vii.
General words.-In almost every deed affecting la,nd
numerous words, called "general words " descriptive of every-
(a) Co, Litt. 4. b 5. a; 2 Cr. 858,
(b) Gibsun , 136,
(c) 2 Cr. 858 .
(d) Gibson, 135;
(~) Ea.rl of Cardigan v. Armitage, 2 B, & C. 197; 2 Cr. 858,
(fl 2 Cr. e58,
(g) .Colegrove v. Bantoo, 2 B. & C. 76 ; 2 Cr, 858.
{h) Place v. Fagg, 4 M. & R. 277 ; 2 Cr. 859,
(i) 2 Cr. 860.
THE FORMAL PARTS OF A DEED, 31
kind of easement, privilege or appurtenance supposed to be-
capable of belonging to the property assured, are added after
II
the description (See below Purchase deed").
After the general words or after the parcels follow the
" estate ala.use" which purports to convey all the estate, right,
title, interest, claim and demand of the conveying parties in
the premises. This is only a formal clause. It should be
omitted in some cases as where a lessee grants an under-
lease (a.).
"
If after a particular desoriotion general words are intro-
duced what is often called "e1iJri.dem qeneris " ~ . applies, The
f rule is shortly as follows :-If a particular description suffi-
ciently clear to render certain what is intended is followed by
general words, the general wordi! will not be construed to
signify anything of a higher nature or of more importance
than or .of a different description from, what is before.
expressed (b) .
II
v111. The exceptions and reservations.-After the estate
f clause " usually follow the exceptions and reservations which
are intended to be made not of the property previously
described . Tho words "exoept and reserved " although fre-
quently conjoined, are not always both applicable, for every
exception is a reservation, but every reservation is not an
. in esse ai;: a reservation of a rent, or a right of way, but-
an 'exception is ever of part of the thing granted (c).
The rules respecting an exception_are:-
(1) It must be to the grantor and not to a stranger.
But it is not necessary to name any person.
(2) It must be part of the thing granted or of an ease-
ment, as a way, etc., and not of the thing not comprised in thit
grant or. not in esse.
(a) 2 Cr. 861.
(b) See Norton, Deeds, 227 and Gibson , 137,
(c) 2 Cr. 862,
 32 (JH. 11.-CONVEYANOING.
(3) It must be of a particular thing out of the property
comprised under general words, or under a general denomina-
tion, as a farm out of a manor, a close out of a farm, or the
like, for the exception of a particular thing granted by a
,particular name will be repugnant to the grant and void
for that reason.
(4) It must be of a thing capable of being severed, and
the description of the thing excepted must be certain as if it
were to be granted.
(5) There may be an exception out of an exception as
in the instance of a grant of a manor reserving a farm, parcel
-of the manor; except a close called B., a parcel of the farm (a).
A reservation can only be of something new out -of the
thing granted, a rent or right of way, for instance, may be
properly reserved. Strictly speaking a man cannot "reserve"
to himself anything that forms part of the land itself; such as
a right of common, he Clll)l only " except" . it, but this is
immaterial, since in practice both words excepting and reserv-
ing are invariably used (b) .
2. THE HABENDUM.-With the Habendum is usually
coupled the Tenendum by the words to have a nd to hold, and
under the English Faudal tenures this latter word had an
appropriate meaning, but is now retained more from custom
than from utility (c).
The offii'ie of the habendum is to limit with certainty the
l estate contained iii the premises. 'Whei:e-the habendum is not
absolutely inconsistent with the grant in the premises, it will '
qualify the grant but where it is inconsistent with such grant,
as if a grant made to A. and his heirs, habenrlum to him for his
life, the grant in the 'premises will prevail and the habenJum
J be rejected; so a habendum may serve to explain or supply
\ anything wanting in the premises, as, if there be no grantees
(a) ll Cr. 8611 , 863.
(b) Gibson, 139, (See also "Reddendum " below) ,
(c) 2 Cr, 863,
THE FORMAL P ABTS OF A D,EED. 33
named in the pr~mises, then the grant will be good to the
person whose name is in the habendum (a).
. The principle is that where there are two clauses in a
~~ repugnant to each other,. the fi~st shall Rrev~il.~b), but in
f the case of /f.,will it is otherwise (Vide Post Will ).
In other words , the purpose of the habendum is to
define the estate, i .e., the amount of interest taken by the
grantee (c) .
3. THE REDDENDUM-is that part of the deed begin-
ning with the words " Yielding and paying therefor yearly,
etc." which is palled a reservation of rent (d}. To every good
reservationthe following are essential:-
(1) That it be by apt words .
(2) It must be something issuing ouli of the thing granted _
and not a part of the thing granted, nor issuing out of any
other thing.
(3) It must be out of such, a thing whereupon the
grantor may have resort to distrain, as .lands- or houses.
(4) It must be made t o the grantor and not to a
stranger to the deed (e).
The reddendum in deeds is principally to be found in
leases (See below Chapter on " Leases "),
4. THE CONDITIONS-A condition is a clause of con
~~n_QY contained in the deed, whereby the grant m~y
be defeated on the happening of certain events therem
specified.
()) (y
Conditions may be either m deed or m law. A condi-
tion in deed is where an express proviso is contained in the
deed for def~ating the estate granted upon certain conditions
(a ) 2 Cr, 863,
(b) Dao d, Leicester v, Biggs, 2 Cr, 863,
(cl Gibson, HO.
(d) 2 Cr, 864.
(e) Perk, , Seo. 625 ; 2 Cr. 864 ,
5
 34 OH. II.--OONVEY4NOING. THE FORMAL PARTS OF A DEED._ , 35
as on the non-payment of rent, &G, A condition in law is When the execution is by one person on behaif of another
that which is implied in law (a). tbe testimonium will sometimes state the fact.
( ,\
Conditions are also precedent r,nd s ~ n t . A ~ondition
A fudher clause called the'attestation cla.itse [for example,

I precedent is one which m ust happen ~ e the vesti~g of an

interest, as if I give Rs. 100 to A. if he comes to Colombo.
ui.) A condition subsequent is one which divests an interest
the clause " Signed in the presence of us"] is placed opposite
the signature of the executing party and with the signature,
should, it is conceived, come after any Sch~dule appended
already in existence, as if I give an annuity to A. and
to the document though sometimes placed before the
declare that _it shall cease if he comes to, Colombo. Proviso
Schedule (a).
for re-entry in a lease for breach of a covenant is also a good
example (b). Attestation is a solem~or official d2c~tiop in support;
of a fact. The subscription of a name to the writing as a
5. THJ<J COVENANT-A covenant is an agreement of two
witness is also an attestation. Attestation is necassary for
or more persons by deed, whereby one of the persons promises
the purpose of authentication, but it forms no part of the
to the other that ~ i n g ill.QLis_ not d.orn, ~ir~ag.y_or_shall
.essence of a deed (b).
O_!_ ;!ha!l_ not. Ql3 done__afterw_~rds. There is this difference
betwe.en _a covenant and a simple agreem __ ant, that.an agreement

l
may be by parol or verbal, but uov~p~Ilt_m]lsj; be creat~by
deeg_ iJi wr.itiJ:Jg (c).
Between a covenant and a . condition there is a difference
as to the remedr ; a conditioff broken defeats th~ title and
gives a right of entry, but a covenan~ broken gives an action
only (d).
6. THE CONCLUSION-This comprehends the testi-
monium clause beginning "In witness whereof," the signatures
of parties and witnesses and attestation by the notary.
Signing by the executing parties is the most essential part
of a deed.
I The testimonium clause, which is usually placed at the
~ end of the body of the instrument, and before the Schedule, if
any, connects the signatures or signatures and seals with the
body of the instrument and generally declares that they
are the signatures or s.i gnatures and seals of the parties
thereto (e).
(a) 2 Cr, 864., (d)' 2 Cr. 70,
(bl Elp, 4.04 , (e) 14 Enoy ., 207,
(c) 2 Cr. 779,
An attesting witness is a -person who has seen a party
sign a deed and who subscribes his name thereto. But he is
not. to write anything to t):ie effect that he subscribes as a
witness (c).
A notary shall not attest any deed unless the person
executing the same be known to him or to at least ~o of the
witnesses thereto; in the latter case the witnesses shall
sign also a declaration at the foot of the deed to the following
effect (d).
Form of such a declaration.
Signed in the presence of us who aver and declare that;
we are well acquainted with the executant hereof and we
know bis proper name, occupation and residen ce.
A. B. witness
0. D. witness.
(a) 14 Ency, 207,
(b) 2 Cr. 846.
(cl Velupillai v. Sivakamipillai, 1 A. C, R, 180,
(d) Ord. No. 1 cf 1907, Sec. 29 (9),

.,
 THE FORMAL PARTS OF A DEED . 37
86 CH. 11.--CONVEYANCING.
By a Company in course of liquidation.
FORMS OF TESTIMONIUM CLAUSES.
In witness whereof tbe said [Liquidator] as such
Deed Poll. Liquidator as aforesaid has affixed the Common Seal of the
In witness whereof I the said M. N. (executant) do hereby
said [Oby.] hereto and tbe other parties have hereunto set
set my hand to three of the same tenor and date as these their respective hands and seals the day and year first
presents at Nallore, Jaffna, on the eighth day of May, One
above-written (a ) .
thousand nine hundred and nine. Soal of Company.
Signed in tbe) M. N. [Executant] Signature of the other parties .
presence of f
1. A. B. (witness) - N. C.,
2. C. D. (witness) Notary Public. . Executed under a Power of Attorney.
In witness whereof [Attorney J bas by virtue of a Power
Indenture executed by all the parties.
of Attorney under the hand and seal of the said A. B. dated
In witness whereof the said parties have hereunto and to the day of and hereto annexed set hereto the
two others of the E;ame tenor and date as these presents set hand and seal of the said A. B. tliis twenty-first day of April ,
their respective hands and seals the day and year first above-
One thousand nine hundred and twenty-one.
written (a). Signature of Principai
By a Corporation and by some other party . by his attorney C. D.(b) .
In witness whereof the [Corporation] have caused their
ooromon seal to be hereunto affiirnd and tbe said A. B. bas Governor's signature to Crown Grants and Leases may be
hereunto set hiB hand and seal the day and year first above- attached by means of a Stamp or facsimile of his sign manual
written (b). provided such grants shall he countersigned by the Colonial
By a Company having a Common Seal. Secretary or others duly appointed on tbat behalf (c).
In witn.ess whereof the [Company] have caused their Every such signature so attested shall be done in the
Common Seal to be hereunto affixed (or given under the presence of the Private Secretary to the Governor or of others
Common Seal of the Company) the day and year first above- duly authorized on that behalf (d).
written. Tho Colonial Secretary's signature to the Duplicate and
The seal of the above-named Company} Triplicate may be attached by means of a Stamp or facsimile
was in pursuance of a resolution of the of his sign manual in tbe presence of another officer specially
Board of Directors passed the day Seal of the Coy.
appointed for the purpose by the Governor (e).
of (or was by order of the
The following attestation clauses taken from English
Board) affixed hereto in the presence of
authorities may also be introduced into the special attestation
clause required of a Notary in Ceylon.
Directors .
.............................. (a) 14 Enoy, 233. (d) Seo. 1.
Secretary. . (e) (Seo. 1-a) 13 of 1905, Seo, Il, .
(b) l!1 Ency. 1!34.
(c) Seo. 1 of 30 of 1884.
(.::) 14 Ency, 228. (b) 14 Ency, 229.

,,

38 CH. U,-CONVEYANCING.
FORMS OF ATTESTATION CLAUSES.
[Usually placed at the foot of a deed.]
Company in liquidation.
The common seal of the [Co.] was hereunto Co.'s Seal
affixed by A. & B. two of the liquidators of the A and he appeared perfectly to understand the same) in the
said Coy. i:u the presence of us. B presence of.. .... (a)
H. (witness).
L. (witness) (a).
.Company.
The seal of the above-named Coy. was affixed hereto in
the presence of A. & B. -two Directors of the said Company
and the said A. & B. signed and C. :jhe Secretary of the said
Coy. countersigned these presents and the same delivered in
the presence of: (b)
WHnei,ses : -
Deaf and Dumb (capable of reading) .
The within written indenture was signed, sealed and deli-
vered by the above-named A. B. (who being Deaf and Dumb
but capable of reading hau first read and appeared perfectly to
understand the same) in the presence of : Cc)
Deaf and Dumb (incapable of reading).
The within written Indenture was signed, sealed and
delivered by the above-named A. B. who being a Deaf and
Dumb person and incapable of reading (after the same bad
first been interpreted to him in the Deaf and Dumb u.lphabet)
by the undersigned (interpreting witness) and the said A. B.
appeared perfectly to understand the said Indenture in the
presence of: (d).
Illiterate or blind (capable of writing his name),
The within written Indenture was signed, sealed and
delivered by the said A. B. being a blind person after the
same had been read over to him and he had stated that he
perfectly under~tood the same in the presence of ...... (e),
(a) Hogg. 151- (d) 14 Ency. ll40; Kelley 630; 3 Jar, 22,
(b) 14 Enoy. 238, (e) 14 Ency, 240; Kelley 630,
(c) 14 Ency. 240,
THE FORMAL PARTS OF A DEED,
39
Executant (incapable of writing his name).
Signed (by making his mark he being incapable through
illness or as the case may be of writing his name) and
sealed and delivered by the above-named A. B. (after the nature
of the above-written Indenture had been fully explained to him
(Signatilre being written for the Executant).
Signed in the name of the above-named A. B. at his
request and in bis presence (he being unable through illness
[or blindnessj to write his name) by C. D. and sealed and
delivered by the said A. B. (after the above-written Indenture
had been read over and fully explained to him and he appeared
perfectly to understand the sa~e) in the presen:ie of ...... (b)
(Signed by an Attorney).
j Signed, sealed and delivered by the above-namerl(Attorney)
as the Attorney (and in the name of the above-named A, B.,
Principal) in the presence of us .
Signed by an Attorney for himself and his principal.
Signed , sealed and delivered by the above-named A. B.
with his own name and as his own act and deed and after-
wards as t he Attorney ancl with the name and as the act and
deed of the above-named (Principal) in the presence of. .... . Cc)
Last Will.
Signed by A. B. of. ........ as the List Will and Testr~ment
of the said Testator in his presence and by his direction in
the presence of us, present at the same time who at his
request and in bis presence and in the presence of each other
have subscribed our names as witnesses (d).
FORM OF ATTESTATION REQUIRED OF A NOTARY
I, N. C. of------Notary Public
do hereby certify and attest the foregoing instrument having
been read over by [or, read and explained by me, tbe said
(c) 14 Ency, 242 .
(a) 14 Ency. 241.
(d) Holdsworth 173.
(b) 14 Ency, 241.
/
 I
40 CH. II,-CONVEYANCING.
notary, to] the said M. N. (executan t) who is known to me [if
the case be so} in the presence of A. B. of - - - a n d 0. D.
o f - - - - the subscribing witnesses hereto both of whom are
known to me [if the case be so], the same was signed by the
said M. N. and also by the said witnesses in my pres ence ana
in the presence of one another, all being present at the same-
time on the eighth day of May, One thousand nine hundred
and nine at Nallore, Jaffna,
And I further certify and attest that Rs:- -the considera-
tion [or part consideration, or no consideration, as the case
may be] was paid in my presence anp. that tbe original of this
instrument bears---stamp of the value of Rs.----and
duplicate--stamt,1s of the value of Rs.-and the stamps
were supplied by me the said notary [or by---as the case-
may be] .
Date of Attestation, 8th May 1909.
N. C.,
Notary Public.
V. -Who could execute a deed?
THE notary should see that the parties appearing before
him are capable of contracting, and. i_f they contract in their
own names, or for another (a).
The notary('i::) should bear in mind that ~ rror, oi ndue
influence o1'fear, "cleceit and the like vitiate contracts and that
they are void if made fer a falsi~Qnsideration or for i Jconsi-
deraJ;ion repugnant to j~stice, good faith and morals (b).
AU persons, not prohibited by law, are alloi ed to co_ntract.
Generally the followin '.hl're 12E.9hibit~.\L,1;1ersQ_gs t minors'/ iirodi-
gals under curatorship, idiots ana-:!.llunatics, except by the
instrumentality of their tutors or curatorl ? married women ,
(al H. T. 180,
(b) Ord. No. 15 of 1876, Secs, 9 and 10.
WHO COULD EXECUTE A DEED? 41
'f,,)
without the authority of their husbands; and drunkards when
their drunken state deprives them of their reason (a).
A married woman's or her ~en tis receipts alone are a good
discharge for ; ;~ues, and profits arising from her separ~te
immoveable 11roperty; and her receipts alone are a good dis -
. charge for wageR, earnings money, and property gained by her
in any employment and the principal and interest of any
investment thereof (b ),
By Last Wi~l sh~ h.as fajl P...Q'Y~- o( dispos~ng of her _seI?a-
rate prope;ty without the consent of ~~r husban~. But by an
ict- i;,,ter vivas she cannot deal with (c) or dispose of her
immoveable property except with the written consent of her
husband ; and her jewels, personal and household ornaments,
etc., except with the consent (not necessarily written) of her
h us b an d (d) . If the wife has been deserted by the husband . or
.
separated from him by mutual consent, if th_e b,usba~d. is m
orison for over two years, or if he is a lunatic or an idiot or
his place of abode is unknown, or if his consent is unreas~n-
ably withheld, or if the interest of the wife or chil?re~ require
that such consent should be dispensed with, the D1s~r1ct Court
may, 00 app!ication of the wife, grant her the authority to deal
with such property without such consent Ce).
Where a separation a mensa et thoro has been decre~d ,
the consent of the husband is not necessary to enable the wife
to deal with the property (/) .
The written consent of the husband must ba previous to
the execution of a mortgage bond by her (g}. But no consent
is necessary if the conveyance is in her husband's favour (h) ,
(a) H. T. 179, R 26
(b) Ord, No. 15 of 1876, Seas.' 9 and 10; Silva v. Silva, 18 N.L .. ,
(c) Silva v. Dissenaike, 2 C. L. R, 123, [Mortgaging or agreerng t~
a~ll is dealiug with], Marthalriappu v. Jayawardene, 11 N, L. R. 272 ,
4 A, C.R. 17. .
(d) Ord. No, 15 of 1876, Seo, 11.
(e) Ibid. Sec. 15; Silva v, Egcnis, 2 Br. 362; 4 N, L. R, 101.
(/) Bal, P, & T. 40,
(g) Marie Kangany v. Karupasamy Kankany, 10 N. L. R, 79.
(h) 14 N. L. R 35.
6
42 CH. II.-OONVEYANCING.
Husband's mark under the signatures of the witnesses was
held sufficient consent in writing (a). Husband acting as a
Notary attesting her conveyance of land, doss not thereby
,express his consent (b).
A wife who lives apart from her husband by mutual
consent cannot validly alien'l.te her property belonging to the
marriage community (c).
If a wife living separate from her hus~and desires to lease
a piece of land she should bring the proposed lease before the
District Court and ask that her husband's concurrence in it
should be dispensed with (d). And if the property is leased
with the approval of Cour~ the husband cannot object to the
lease on the ground that he is living in one of the houses
leased. He is merely bis wife's tenant at will and is liable to
be turned out at any time (e).
A widow married in community of property can create a
valid mortgage upon the common estate for paying her hus-
band's debts and the debt so contracted is not her own but is
chargeable upon the common estate (f).
A husband has a right to mortgage the property in com-
munity not only his own half but the whole (g).
A woman married after the Matrimonial Rights Ordinance
No. 15 of 1876 shall have full power of disposing her separate
immoveable property by any lawful act inter vivas with the
written consent of her husband or by Last Will without such
consent (h) ; but her wages and earnings may be disposed of
at her pleasure (i). She may with the consent of her husband
(a) Ponnamma v. Pattai,-13 N . L. R. 201; 4 Lei\der 91,
lb) Tiokira.le v. P. Laney, 19 N. L. R, 287,
(c) Silva v. Sha.ik Ali, 1 N, L. R. 228,
(d) Harminis v. Appuha.my, 4 N.L.R, 401; I Br. 22,
(e) Harmine v. Appuhamy, 2 Br. 362.
(I) Hadgiar v. Hennik Appu, 2 N.L.R. 26,
(g) Kook, 36,
(h) Ord, No, 15 of 1876, Seo, 9, .
(i) Ibid, Seo. 10,
WHO COULD EXECUTE A DEED? 43
foot necessarily written) dispose of her jewels and implements
of trade and agriculture (a).
Spouses married in community may make gifts to each
-0ther and such property becomes the separate- property of the
donee but subject to the debts of the donor (b), i.e., to debts
a.nd engagements existing at the time of the alienation and not
to future debts (c).
Under the Tesawalame it is competent for a wife who is
separated from her ..husbanj to alienate, without joining him
in the deed, a land for the sake of procuring maintenance for
herself (d).
A sale by the husband of the dowry property with the
kn~wledge and assent of the wife was considered binding on
her because if she were allowed to disown such sale she woul\l
be permitted to avail herself of her own fraud (e).
During the subsistence of marriage a husband subject to
the Tesawalame may dispose of the acquired property at will,
which property is ::i.lso liable for payment of debts during
marriage (j). He is entitled to the sole management of his
wife's property and she has no right to give anything away
without bis consent for otherwise his marital rights would be
prejudiced (g).
A widow under the Tesawalame has no power to dispose
of the portion of the acquired property of her late husband (h),
She also has no power to give a divided portion of their
acquired property in dowry to one (a daughter) of several
children, but if she so gives the right of the daughter to hold
(a) Ord, No, 15 of 1876, Seo. 11,
(b) Oharisa. v. Ooudert, 17 N .L.R. 397,
(c) Louis v. Dingiri, 18 ~L.R, 161.
!d) Ramalioga.m v. Poothatamby, 3 N.L.R, 347,
(el Marshall's Judgments, See Husband and wife. _ .
(I) Kathira.velu v. Menadohipillai. 2 O.L.R. 131! ; Mu,ha.hnaoh1 v,
Sitha.mparapilla.i, Muttukistna, 121.
(g) Ramalingam v. Ramalingam, MU:tt.ukistna., 268,
(h) Ponnampalam v. Vallinaeakam, Ibid. 265,

44 CH. II.-CONVEYANCING.
dividedly the portion given to her will expire with the life of
the mother (a).
The husband has the right to allot as dowry to his daugh-
ters such portions of tbe dowry property of his deceased ~ifo
as he may think fit (b).
Under Sec. 1 (12) of the Thesawalamai the "friends"
of minor orphans, cannot allot a larger share than that to
which tho minor is entitled to under the law of intestate
inheritance to the prejudice of the other minor children (c).
A minor's deed is not void but voidable (d) .. TbeR. D. L .
ratification of contracts by a minor is in force in Ceylon .
Contracts which are neither certainly to a minor's prejudice
nor necessarily for his benefit are neither void nor absolutely
vaiid, but are voidable and capable of confirmation after
majority (e).
Sale with the leave of Court by a Curator of the lands
belonging to minors for payments of the debts incurred by the
minors' father was held to be good, though the sale was not
by public auction (/).
Alienation of immoveable property or of any inheritance
by a minor without the leave of Court is void according to the
R. D. L. (g). . adequate price and gained no ad vantage thereby (e).
A conveyance of immoveable property by a minor is void
in law though the minor was carrying on trade (h).
At Common law in England a disposition of either
real or personal property by an infant is voidable. But a
disposition so made is binding unless repudiated and the
(a) Mumkesu .v, V11,irava.n 1 3 Bal. 141.
(b) Naga.ratnam v. Alaga.ratnam, 14 N,L.R. 60; 5 Lead, 29 .
(o) Valliammaipillai v, Ponaampalam,2 Br. 234.
(d) 7 T,nnb. l!0; Ismail v. Feraaudo, 19 N .L. R. 193,
(e) Raman Chetty v, Silva, 15 N.L.R. 286; l C,A,C. 147,
(/) Pinhamy v, Pieris, 11 N.L.R, 102.
(g) Manual Naide v. Adrian Hamy, 12 N.L.R. 259; P11,ddimio v .
Kanapati Pillai, 1 Br, 119.
(h) Sommindra v. Padya, 3 Leader, pt. v. 3.
WHO COULD EXECUTE A DEED? 45
.
repudi&.tioo must take place on attaining full age or within a
reasonable time afterwards (a).
lb is always well where 'an infant has disposed of pro-
perty, that on majority the disposition should be confirmed
even though a confirmation may not be strictly necessary (b).
Ao infant may purchase property, but here too the trans-
action is voidable and he may repudiate it on attaining full
age or within a reasonable time afterwards V:hether o~ re-
pudiation the price paid can be recovered 1s exceedmgly
doubtful (c).
A oontraob entered into with the authority of his father
would bind an unemanoipated minor, subject, however, to his
-r ight in certain oases, if the contract was a detriment.al one, to
.apply to the Court for the remedy of Restitutio in !ntegrum.
This remedy however is not available in oases where a minor
practising a trade or profession incurred !~abilities in th_e
course thereof. Trading is not of itself sufficient to emanci-
pate a filius Jamilias so long as he lived under the father's
roof (d}.
Both ur,der the Roman Dutch law and the English law
cha.sos by a guardian from his ward are Yoidable at the
pur 'd
option o( the ward, alhbough the former may have pat an
A guardian of a female ward could lease out property
belonging to the minor (j),
. A minor is bound by a contract, in all cases in which,
and to the extent of.. which :he is enriched thereby at the
( expense of another (g). Similarly a minor who has falsely
{a) Gibson, 5.
(b) Gibson, 7,
(c) Gibson, 7.
(d) MuttiBh Chatty v, De Silva, 1 N.L.R, 358; Velhlppa Cbetty v,
Pieris, 3 Bal 4, .
(e) Ka.runayake v. Perera, 1 A,C,R, 156,
(f) Wijeyagoonewardene v. Appuhamy, 3 Thamb, 110.
(g) Voet, 28, 8, 2; 1 Massdorp 246.
 f
46 . CH, ll,-CONVEYANCING,
I
represented himself to be of full age and has deceived the
other contracting party by representations will be bound by
his contract (a),
A_ ~in9i: though he cannot contract on his own account
~ay contra_!}t as agent for another (b),
Twenty-one years is the legal age of majority (c). One
under twenty-one may however ~ttain majority by obtaining
letters of Venia Aetatis (d), "By the Common law of Ceylon
marriage confers majority upon a person under 21 years of
{ age (e ). In the event of such marriage being dissolved while-
the person is under the age of 21 such person does not return
to the paternal power (/). ! .!iandyaI!__~oma~~u_{!de_r _the.__ru1e.
of g~ does _not become a major by mar_riage (g).
A disposition of property made by a person of unsound
mind but not so found by inquisition is valid if made during a
lucid interval (h).
Any disposition of property after the lunatic has been so
found after the inquisition is absolutely void even though
made during a lucid interval (i),
I A person born Deaf and Dumb is not thereby incapacita-
I ted to execute a deed or will, if he has sufficient understanding.
to give evidence of his assent, either by his own signs or by
signs with th~ assistance of an interpreter (j).
But persons who are born Blind, Deaf and Dumb as they
have always wanted the common inlets of understanding are .
_________ _____________
_,__ gift, lease, grant or will (k). - - .
incapable of making either
(a) Voet . 27 . 9, 13; l M'lssdorp 247,
(b) Anson's Law of Con tract, 9th Ed ,, 340 ..
(c) Ord , No. 7 of 1865, See. I.
(d) Ord. N o, 21 of 1844, Secs, 2 and 3,
(e) Weerasekera v. Goonesekera, 1 A.0,.R. 135 ,
(I) Dherasekera v. Dona Asena, 4 Th am b, 152,
(g) Muttiah Chetty v. Dingri , 10 NL.R, 371; I L .L .R, 27,
(t) Gibson, 8,
(i) G ibson, 9,
(j) Sabapathipilla i v , Tirumanohanan, 17 N,L,R, and 3 Jar. 22.
(k) 3 Jar, 23,
WHO COULD BE A WITNESS TO A DEED? 47
The following .is an instance of how a Deaf and Dumb
person expressed his intention of selling a particular land, He
put his hands that way, where that land lay and spread out
his hands (a).
A Trustee who is selling property under a trust or power
of sale must not either directly buy the trust property or any
interest or take a mortgage or lease thereof either for himself
or a co-trustee unless he is expressly authorized to do so by
the trust instrument or he obtains leave of Court (b),
A Solicitor may buy prnperty from his client subject to
the rule in Simpson v. Lamb, 7 Ell. and B. L. 84, that ~ r -
chase by a Solicitor from a _cli_ent _ ot the subject-mat!er
0~ ;ndi~g uction is void. The same ~ule applies to a.
Barrister fo), -- - - --
With regard to gifts inter vivas the rule h:1 far stricte~ (d) .
A conveyance or gift from a patient to his Medical
Adviser is on much the same footing as a conveyance or gift
from a client to his Solicitors, though it appears to be less
difficult to rebut the presumption of undue influence in the
case of. a gift to a Medical Adviser (e),
VI. - Who could be a witness to a deed?
IT would seem that all persons unless they are J2!e!_~~<d
~ understandi~[_the P.!:1.!.!!.2.~..9.LJ.!;1eir....ii;p~_~ urJ1 . b~ tender
year xtreme old agP.)disease, whether of body or mmd or
any other cause of the same kind, are com petent witnesses (f).
Persons formerly prohibited from being witnesses to
notarial acts and instruments were-(1) Males under 14 years
of age. (2) The sons of the parties and all others related _to
them by consanguinity, (3) Prodigals under curatorsb1p.
(a) 3 Jar. 23,
(b) Gibson, 29.
(c) Carter v. Palm er , 8 C,L . and F .M . 659 ; Gi bson, 31.
(d) Gibson, 31.
(e) Mit chell v. Hornfray, (1 881) 8 Q, B.D . 679; Gibson , 31.
(/) Ev idence Ord, No , 14 of 1895, Ser , 118 ,
 48 CH. II. -CONVEYANCIN G. CONSTRUCTION OF DREDS,

{4) Idiots and lunatics . (5) Deaf, dumb and blind p_ersons. be received and the latter rejected , wherein it differs fro m \

t
(6) Women. (7) H ermaphrodites . (8) The fa ther and son of a will , for then of t wo repugnant clauses_ the latter sh all
ii the notary . (9) Irifamous persons judicially convicted as such. ~ (a) . .
A notary shall a.ttest no deed unless there are two ' 6) If there is a discrepancy bet,ween the recitals a nd the
witnesses who could sign their names (a). r, oper~tive cl auses and t he latter are clea'. an_d unambi guous
the recitals will n ot co:1 trol t hem. A recital 1s not a neces
See the Chapter on " Last Will and Testament " re the
sary part of t he deed. O n the other h and if the operative

l
parspns who would be a witness to a will.
clauses be obscure and ambiguous they may be explained by
VII.--Construction of Deeds. th e recitals (b).
THE following are the chief rules governing the construc- (7) The questi on whether a land which was sold referred
tion of deeds : - t o a whole corp1is or to the extent only s ho uld bo determined
(1) The first great rule in the construction of deeds is, by th e t orms of tbe ~arious deeds in wh ich the property has
that the intent of the parties shall prevail, if it"''can be dis- been a~alt with (c). If ther~ is no certain ty in the first
covered and is' bdt contrary to
the ; ula"; ;f law (b). descri ption 1nd [I par ticular description is added the latter
(2) Words which are evidently repugnant to the general contr~ls the former a nd tb at tb e whole description should
intention of the parties will be rejected ; for the words of the be looked a t fairly t o see wh at are th e leadin g words of
deed are not the principal thing to be attended to, but the description and what is the subordinate matter (d).
intention of the parties (o) . (8) False spelling a nd false grammar do not -vitiate a
(3) All the words of the deed must be taken most grant- an error of !l ame is not hing where there is certainty
strongly against the grantor and most beneficially for t he as to _ t he person- the truth of tho same cures error of
~ ~ntee (d) provided no wrong be thereby done (e) . -- - - descrip tion . -(Wha rtonJ.
(4) If the words may have a double fotendment , and the
one standeth with law and the other is ag9iinst, they shall be
taken in the sense which is agreeable to law. The general
principle is, that if any clause in a deed which is void in law,
be mixed up with good matter which is entirely independent
of it, the good part stands but the rest is void ; but if the part
which JLg..9.od qepepj_!! ___U_pQ_n thab_ _wliicl:L !..S l;!.a.d J !!JL..Whole
i_!lstrument_is__y_o~d ( f) .
(5) If in a deed there are two clauses:so totally repugnarifl
to each other t b ~ey cannot st and together, the first shall
\
(a) Ord. No, l of 1907, Seo. \l9 (8) ,
(b) 2 Cr. 867 .
(c) Smith v. :Pa rkhurst, 3 A, and K, 135 ; 2 Cr. 868, (a) 2 Cr. 869,
(d) Windham's oase, 5 Co, 7, 8, (b) Elp. 59 (1894),
(e) 2 Cr. 868. (c) Crawther v, Benjamin , l L.L.R, 64,
(I) 2 Or, 869, (d) Abrew v, Siriwardene , {1914) 3 Bal . Notes 17.

7

CHAPTER III. .
ABSTRACT OF TITLE.
AN abstract of the documents commonly called an
abstract of title -~ a st3:-t_ell!~ ~ of the doq!Jqi._o nt and evidences
reiating to cer_t8'.~n particular premises ia which _-all tpat i,s
necessary to enable counsel to form a corr,ecUudgment upon
the validity of the title is_ given at length and an' that " is
imm-;te~ial is retr~~ched. The object is to show the act~;l
state of ~Tie title to the premises to which it relates and by
what charges and incumbrances they are affected (a).
The title may be either a marketable title, or a good or
sufficient title.
A marketable title is a title which at all times and
under all circumstances may be for<,ed upon an unwilling
purchaser (b).
A good or sufficient title is such a title as the Court would
adopt as a sufficient ground for compelling a specific
performance (b).
A vendor may, however, stipulate for the sale of an
estate with such title as he happens to have and thus limit bis
otherwise implied undertaking to make a good title (c),
A vendor is not only hound to exhibit a good title by the
.abstract but is also bound to verify it by the production of the
necessary documents (d).
Every document which forms a link in the vendor's title
ought to be abstracted in chief,
(a) 1 Cr, 2 ; 1 Precl. 140; l Ency, 1, (c) lOr,3,
(b) 1 Cr. 3, (d) 1 Cr, 5,
l,~
CH . lll .--ABSTRAOT OF TITLE. 51
The instruments should be abstracted in chronological
order except in the case of a will, which should be placed
before the date of the testators' death, while statements of
marriages, births, dea ths, heirships, and other facts on which
the title depends should be inserted in their proper order of -
ti~e. The abstract should also refer to any endorsements
there may be on the do;uments abstracted (a).
If a deed bas been executed under a power of attorney,
Q the purchaser can require the power to be produced in order
~ to see that the exercise of the power is in accordance with its
cb terms, and proof that the donor was alive at the time it was
.S- acted upon. There will be presumption that the power was
not expressly revoked until the contrary be shown. This
does not refer to powers of attorney which are_ for valuable
f
consideration and which are in the instrument expressed to be
irrevocable. The donee of a power of attorney ought to
exercise it not in his own, but in tbe donor's name (b).
When a deed is lost and if a copy is tendered it must be
a copy of the original ; a copy of a copy is not evidence (c).
Evidence that the parcels as described in the deeds are
identical with those contracted to be sold, if the purchaser is
entitled to recover it, may bo given by means of old plans,
leases, parish aseessments, declarations of old persons as to
identity of the property and as to the uninterrupted enjoy-
ment of it by the vendor and his ancestors or the person from
wh~m he bought it.
The proof of a peiigroe includes the birbhs, marriages and
dea~hs of persons who, from the pedigree, appear to have been
born, married or died (d).
Expired leases may be safely omittod from the abstract (e}
it cannot affect the purchaser (f) .
(a) Gibson, 99 .
(b) Gibson, 102, 103,
(c) Re Halifax Commercial Banking Coy, and Wood, (1888) 19 Lr,
J536 ; Gibson, 103.
(d) Gibson, 105,
(e) 1 Jar. 86.
11) Gibson, 98.
 52 CH. 111.-ABSTRACT OF TITLE.
Outstanding mortgages do not constitute . a defect in
title (a), but usufructuary mortgages have been -held as
defect in title so that the vendee may seek a rescission of the
sale (b).
A recital which manifestly can have no effect upon the
tit.le may be passed over (c).
The operative part and any limiting part in the habendum
should be abstracttid in full (d) .
Parcels should be described infull from the first abstracted
document ; in abstracting subsequent doc uments the descrip-
tion may he referred to (d ).
Exceptions and reservations are irnportant{e).
Covenants may be concisely stated (e),
If the deed was executed by an attorn ey state part iculars
of the power of attorney and date of execution ( /).
Under the English Law the Statute of L imitations has
reduc_ed the term of marketable title from 60 years to 40 years.
The rule was that if nothing appears on the lace of the deed
com prised within the period of 40 years which throws a
reasonable doubt or suspicion on the anterior title the want of
prior deeds referred to in the abstracted deeds, is not
material (g) .
What relates to abstract may be comprehended under
the t wo general heads :-i. Preparing the abstract, ii. Perusing
the abstract.
i. PREPARING THE ABSTRACT (a duty of the vendor 's
lawyer) is to be considered as to what regards:-
1. The commencement of the abstract.--The most satis-
factory document with which an abstract can commence is a
(a) Savory v. Mederwood, 23 Lt, 141 ; Gibson, 96.
(b) Sriattu v. Ram Menika, 18 N.L.R, 501.
(c) 1 Jar, 90.
(d) 1 Jar, 91.
(e) 1 Jar. 92.
(/) 1 Jar. 93,
(g) 1 Jal', 59 and 62.
CH. III.-ABSTRAOT OF TITLE. 53
purchase deed. It should in no case commence with an
assurance tbat depends for its validity on any prior deed.
2. The head of the abstract should shew the name
of the person whose title is to be considered and the land to
which it relates; e.g., " An abstract of the title of A. B. to
the farm-house at K."
3. The contents of the. abstract should include all
the material parts of an instrument, e.g., the date, names and
description of the parties ; their character as heirs, devisees,
etc,; the recitals of material facts, as marriages, deaths, failure
of issue, etc.; the witnessing part which states the considera-
tion and the purpose for ,which the deed was made ; the
description of the parcel which should be stated in the abstract
of the first instrument, noting variations in the later descri p- '
tion ; the habendum which should be stated verbatim as
regards t he grantee ; e.g ., unto and to the use of the grantee,
his heirs, etc.; the limitation and uses and every proviso defeat-
ing or abridging the limitations which should be accurately
stated; the common covenants which may be noticed generally,
and any special covenants which should be fully noticed; the
parties who executed tbe instrument ; and registration which
should be noted with reference to t he date.
4. Comparing the abstract with the title deeds ( a).
ii. PERUSING THE ABSTHAOT (a duty of the convey-
anc.er).
The Perusal of the abstract is to be considered as it
relates to : -
1. The commencement of the abstract.-The convey-
ancer has to consider whether the abstract is carried back
sufficiently far as to enable him to advise upon title.
2. The contents of the abstract.-It is the duty of the
conveyancer to consider the deduction of the title, the
evidence by which it is supported, the defects, if any, -yvhich
appear in the title or in its evidence.
(a) l Cr. 6 et seq .
 CH, III.-ABSTRAOT OF TITLE. 55
54 CTI, III.-ABSTRACT OF TITLE,
All the before abstl'acted premises.
3. The accompaniments of the abstract, or evid~nces
verifying the same.-Although the abstract may contain all To hold, etc.
that is sufficient, yet the conveyancer, on tbe perusal of it. Oovena1,t by T. S. he has done no act to encumber.
will generally find that evidence of many things are requisite Executed by T. S. and attested by D. E, , N. P. under
for tb e deduction of good title, -e.g., registers of births, deaths, No. 750.
and marriages, the probate of a will, the letters of an adminis-
February 7, 1880;
tration, pedigree, identity of parcels, etc. (a).
The said H. J. by his will, of this date after directing his
Form of an abstract of title of A. B. to th~ farm-house at K . just debts and funeral expenses to be paid, devised and
January 7, 1853. bequeath~d.
All the rest residue and remainder of his estate unto J . M.
Transfer deed by H.J. to T, S.
his heirs, executor,s, administrators and assigns for ever.
H was witnessed that in consideration of 500 to said Executed by H. J. and attested by five witnesses.
H. J, paid by said T. S. (receipt acknowledged) said H. J. did
grant, bargain, sell and transfer unto said T. S. his heirs,. December 2, 1880.
assigns, &c. The said H . J. died.
All that farm -house (describe fully).
April 17, 1881.
To hold the same unto the said T. S, his heirs and assigns The said will of H.J. was proved in Testy. Case No. 423
for ever. D. a. Colombo and probate obtained by the J, M.
Proviso for a re-transfer on payment of 500 and interest
July 15 , 1894.
at 5 per cent, per annum from the said date.
Tra nsfer by J.M. to A. B.
Covenant by said H. J, to repay 500 and interest and
Reciting (amongst other things) the before abstracted
that he had full right to convey free from encumbrances, for
quiet enjoyment and for further assurance .. will.
Reciting that J . M. as sole legatee became entitled to all
Executed by H. J _ and attesterl by C. D. , N. P. un der
tb~t above abstracted premises having paid all just debts and
No . 225.
funeral expenses and estate duty.
December 9, 1878. It was witnessed that J. M. as such sole heir did grant
Re-transfer by T. S. to H.J. an d convey unto said A. B. his heirs, ex~cutoi:s, administrators
Reciting the transfer deed of 7th January, 1853. and assigns.
Reciting the sum of 500 and interest. All the a,bove abstracted premises.
It was witnessed in consideration of the said principal To hoid unto A. B . his heirs, &o., for ever.
500 and interest to T. S. paid by H. J. (receipt acknowledged) Executed by J.M. and attested by E . F. under No. 350.
the said T. S. did grant, bargain, sell and release unto H. J. his
heirs, assigns, &c.
(a) 1 Cr, 10 et sfq,

CHAPTER IV.
EXAMINATION OF TI~LE.
ONE of the chief duties of a Notary when cal_led upon to
do so is to examine the rights and title of parties to the lands
to be dealt with by the deed to be drawn by him.
Crown grant.-A title based on Crown grant is generally
perfect. The Crown is not bound by law to warrant and
defend its sales (a), buu there is the presumption that the title
is good (b). This pre,aumption does not create any sanctity
to a Crown grant (c,.
It may however be laid down as law that a purchaser
f_E.o m Crowp. ~cquires by the grant a good title {d) ~ he title
is indefeasible unless the adverse title ha~ b~en derived from
the Crown itself (e).
. A Crown grant does not convey ati indefeasible title (/).
It is defeated by right acquired under Sec. 8 of Ord. 12 of
1840 (g),
A Crown grant by itself creates no presumption of the
title of the Crown to the land which it conveys (h).
A Crnwn grant in favour of a dead person is void (i).
(a) D. 0, K al utara, 29, 975; Ram, (1877) 317,
(b) Silva v Mend ira.sa, 8 8.C.C, 58.
(cl W1m,i,bsek er:\ v. Silva, 3 N.L.R. 61.
(d) Dao Simao v. Joba nis , (1898) 4 N.L R. 343.
(e) Ismail v. Aodris Appu, (1905) I Bal. 145 a.nil Silva v, Abera.n, 7
N.L.R. 330,
(/) Silva v, Ukuralar, (1910) 4 Lead, 34,
(g) Podda v. Babuli, (1905) 8 N .L.R. 3M!.
(h) Silva v, Bastian, (l9l2) 15 N.L.R. 132,
(i) Appubamy v, Nona, (1912) 15 N.L.R. 3lL
OH. IV.-EXAMINATION OF TITLE.
57
Where a Crown grant in favour of several grantees con-
veys the property to them simpliciter without specifying the
respective shares of the grantees, there is no imperative pre-
sumption that the grant was made in equal shares (a).
The words " Sann as" or "grant " imply an instrument
executed by .the Sovereign or some duly authorized officer of
the drown (b).
Where a Crown grant conveyed an allotment of land but
excluded the planter's share, held that planter's share did not
refer to a share in the tree~ only. By Sec. 8 of 12 of 1840 the
planter ~ f e11j;i_t!ed _t_o 11 gra~t_ of_t~e lan d ~pon pay~1?_nt
of balf the impro.v.ed yalue and tbat 1s a right which no aliena-
tion b-y the Crown can deprive him of (c).
Fiscal's conveyance.-it conveys onl.y ~be rig ht, title and
interest of the judgment-debtor. A Fiscal's sale, though
imperfect in the absence of a conveyance, can clearly form a
starting point for a title by prescription (d).
All private alienations of property duly seized by the
Fiscal and registered are void as against all claims enforceable
under the seizure {e).
Crown debts.-They have preference over all other debts
contracted subsequent to such Crown dobts (/i.
Prescription.-Title to land can be acquired by prescrip-
tion (g). An encroachment on public thoroughfares cannot
be prescribed (h).
Will.-A devisee under a will has no right to any property
l under the will, if he were a witneHS to the will (i). Nothing
(a) Sinnappu v. Di ngi rihamy, 15 N.L.R. \!59,
(b) Gamanala v. Vigors, 3 A.C.R. 95,
(c, Davi tte Suno t. Dou Charles, 2 Leader 117. (See also 8 N L. R.
358).
(d) Ponnammah v. Veerasuria, l s.c.D. 67.
(e) C. P. O,, Sec. 238.
(f) Seo. 5 o! 14 o! I 843.
(g) Ord. No. 22 o! 1871,
(h) Ord. No, 23 of 1910,
(i) Seo. IO o! Ord. No, 7 of 1840.
8
.
 58 CB. IV,-EXAMINATION OF TITLE.
l can be done under the will until the same is proved in Court,
and probate obtained. No formal conveyance by the executor
to the devisee is necessary to perfect the title of the devisee to
the property devised (a) .
I Partition decrees under Ord. No. 10 of 1863 gives a good
and conclusive title against all persons whomsoever-Crown
excepted (b).
But the rights of mortgagees are not affected by the
decree except as to their having a divided share in the place of
undivided shares (c).
A lessee loses his right unless be is referred to in the
decree for sale under the partition ordinance (d).
All private alienations or mortgages pending partition
actions are void (e).
l A partition decree is unaffected by non-registration (f).
A Fidei Commissum is not destroyed by a partition decree
even where it had not been expressly reserved (g).
A Lis Pendens, i.e., a pending action, respecting
immoveable property is not in itself an encumbrance on the
property.
By the doctrine of lis pendens a sale by a defendant to
Ia third party after service of Summons would be a nullity as
against the plaintiff (h).
Provision has now been made for the registration of lis
pendens by Ord. No. 29 of 1917.
As judgments need not necessarily be registered it is
difficult to say whether a party who had a good and perfec~
(a) Cassim v . Marikar, 1 S.C . R, 180.
(b) Seo, 9 and Fernando v. Perera, 2 N,L,R. 369.
(c) Seo, 12 of Ord. 10 of 1873.
(d) Samaraweera v, Kunjmusa , 18 N.L.R. 408.
(e) Seo. 17 of 10 of 1863.
(fl Bernard v. Fernando, 16 N.L.R. 438.
(g) Weemsekera v . Carlina, 16 N.L.R, 1.
(h) Gibson, 156; Perera v. Silva, 13 N,L.R. 81; 2 Cur, L.B. 911; 3
Weer 83.
CH. IV.-EXAMINATION 01!' TITLE.
title, bad Jost it by a judgment ag ainst him. It is also diffi-
cult to say whether a good and perfect paper title had been
defeated by prescription .
Pre-emption.-The right ol pre-emption prevails in tbe
case of lands situated in the " Province of Jaffna" a,s defi ned
th " T besawalamai" in favour of one's heirs, partners
IO .
and nortgagees of adjoining lands. In such cases prev1~us
notices of sale of such lands should be given to sucb hens,.
partners and mortgage(;)S (a).
Acquired property.-If tbe property had been acquired hy
a persan governed by Ord. No. 1 of 1911 (T hesawalamai)
after his marriage, his wife becomes entitle d to one-half
though the paper title is in him alone (b).
See also Chapter oc. "Kandyan Law."
Registration. -The Registration oi deeds waR intend
facilitate inquiries respecting prior tran ~actions and to rotect
capi tali st's agarns t frauds by dishonest deMors. With this
view Ord. No. 8 of 1863 and later on 14 of 1891 rendered,
every deed affectil!g _land _vQid _ ii,s _ against a. prior regtster~d,
!
&eel affecting t he same la1:1_d, But it is difficult and often
impossi l:ile i~ the absence of cad astral Survey to identify a land
in Ceylon from the description of it in a deed. The bounda-
ries given are fickle and shifting. The extent of the same land
is given differently in different deeds, being generally a rough
guess (c).
Gross frauds may even be perpetrated under the present
system by the deliberate insertion in a deed of t~e p~rticulars
I
of the lands i,1 such a way as to mislead the reg1sterrng clerk
into registerin g it in a wrong folio (d).
As registration plays a very important parb in the exami -
nation of title to land, it is summarised in the next chapter.
(a) Thea,, Seo. 7, sub-Seo. 1.
(b) Seo. 112 (b). ..
(c) Arunaohalam's report, 1891 and quoted in Jay, Intr, xxvn.
(d) Ibid. xxix.
 GENERAL, 61

A " Kaduttam" (Mohammedan Law) not being an

instrument on which title to land is founded does not require
registration (a).
A written agreement for the out and out sale of future
goods is not a bill of sale within the meaning of Sec. 6 of
Ord. 8 of 1871 and need not be registered (b).
Ord. 8 of 1863 which came into force in January, 1864,
CHAPTER V. expressly exempted from its operion instruments executed
REGISTRATION OF DEEDS_ ,:, before t hat date. Ord. 6 of 186~ rendered compulsory the
registration of deeds, &c,, exec uted before 1st February, 1840.
!.--General.
No provision is thus made for t-he cor;;i;~I;;;;, ~ptio~-;:l
TH~ registration of title is now regulated by O ii N 5 f registration of documents sxecuted ootween February, 1840
1877 which Ord. bas been oroclaimed to b . f r . r o. o and January, 1864. Instruments executed between these
Dehiwela, Wellawatte a~d . u. 1 e m orce only for
-:-- .nm ipana (See p I dates are not affected in any way by tbe registration of
t10ns of 10th N roe ama-
24th February 18~;)mb;: 1887,k' 11th November 1887 and instruments ,referrin.g to the saf.ie land whether execut.ed
. . . e war mg of tho Ord havin b . before or after such ins.trument (c). Owing to the saving
expensive it is now a dead letter. Ord N . 3. 0 f 19g een clause to Sec. 2 of Ord. No. 14 of 1891 it was held that
pa d f th . . o. 07 was
sse or e s_ame purpose of registering titles, but th t h this Ord. has no application to instruments executed before
not been proclaim ed as yet. a as
1864 (d).
. Registration
b of deeds and other i ns t ruments affect111g
. . There is nothing to prevent an instrument of date prior-
lm~ovea le property is regulated by Ord. No. 14 of 1891 to 1864 being registered (e).
whwh
z dl;ias superseded
, Ord. No. 8 of 1863 ' R eg1strat1on
.- - . of Sec. 8 of 6 of 1866 excuses the non-registration of
is ~en ens is provided for by Ord. No, 29 of 1917 . documents executed before February, 1840 and anuexed to
tration of seizures by Sec 237 , c1v 1
_ . ' 1
p rocsdure
-- Code.
- . Regis- \ documents bearing date subsequent to th<i,t date (j).

. Or~. No. 6 of 1869 makes it imperative that 1 In the case of charitable trusts, an appointment of a new
&c., which bear date on or before 1st F b a I deeds, trustee, which is declared to be a transfer under 16 of 14 of
be registered befo e ruary, 1840, should 1891, and "vesting orders" under the Trust Ord. of 1917
Th' 0 d re 1867 subsequently extended to 1875 (a)
is_ r . ~oes not affect public records, thomboos & .. need not be registered.
PU b he archives "h d , , c., in
' nor " e ecrees or Court and the like (b). A partition decree is also unaffected by non-registration.
_A .will or p~obate of a will is not a "deed" which is
It was held tbat the registration of a conveyance of an undivi-
regmrea to be registered under Ord. 6 of 1866 (c). ded share, once the land has been partitioned, was of no avail
(a) Ibrahim v. Rahimao, l Matar a oases l 75,
sf
This chapter is main! a sum
Registration of Deeds by A
. '
V J mary of the law relating to the
' ayewardeue published in 1919,
(b) Fernando v. Muttiabpillai, 2. Cur , L. R, 10,
(c) Marikar v. Marikar, 2 C".W.R, 79 '; Jay. 11,
(a) Donoh1ya v. Dissanayake, 11 N.L R. 165 (d) Goonewardene v, Dharma.wardone , 5 C.W.R, 29,
(b) Attorney General v. Kiriya, 3 N.L,R. 81' (e) 1 Br, App, B., p. X.
(c) Anthony v. Barton, 7 N.L.R. 43. . {t) Jay. 13,

62 Cli. V,-RHGH,TRATION OF DEEDS,
for, as a result of tbe partition decree, all previous titles
were wholly extinguished by qperation of law (a).
JI,_:Registration, Optional.
IT may be observed that registration is not now necessary
fo r th e validity of deeds affecting land, but it confers an
important benefit upon purch asers a nd mortgagees because
P~ Y of registration confers priority of tible (b).
The L and Registration Ordinance does not establish
rights to land by registration, it affects only the devolutions
-of rights and leaves an unregistered deed unaffected for all
purposes other than the establishment of a prior claim to one
and the same thing (c).
Registration does not cure the defects of instruments nor
prevent their invalidation for fraud, illegality, failure of con-
sideration, &c. (d) .
Sec. 16 of Ord. 14 of 1891 described the nature of the
instruments of which the law required registration and Sec. 17
confers priority on instruments so registered. Tbe following
,are registrable instruments :
i.-EVERY DEED OR OTHER INSTRUMENT-
(a) of sale, J2E_!'.!!.ase, lt.llllli.er or assignm_E}nt or mort-
~fe of land or other immoveable property. - --
A conveyance of land by the Fiscal is an instrument
of sale or transfer (e) .
or (b) of m:.Q.mise, bargain, c ~ c t or agreement for
effecting any of the above object (e). - - -
or (c) of contract or agreement for_ the f.\!_~_gr~_ s~le or
purchase of landed property.
(a) Bernard v. Fernaado, 16 N.L.R. 438.
(b) Cayley, C.J. in Alexander v. Hedges, (1881) 4 S.C.O. 85, 88,
(c) Ennis, J, in Mohamedali v. Weerasuria, (1914) 17 N.L.R. 417 ,
-424, . wiokremanayake v. Abeyawardene, 17 N .L.R, 169 and Fernando v,
(d) Jay, 15.
(e) Silva v. Sarah Hamy, Wendt. 383.
REGISTRATION , OPTION AL. 63
According to t,he plesent state of law, tJl._e registration
of a~~!_!lemel!.,~S to transfer or for the l_r_ uture sale of
immoveable property seems useless and un neces-
sary although the Ordinance provided ffor it. The
decisions of the Supreme Court have laid it down
f that such agreements cannot be specifically en
forced if the owner subsequently conveys the
t
property to a third party, except where there bas
been fraud. Even notice on the part of the
p'tuc haser 'of the agreement to convey bas been
held to be immaterial and insufficient to avoid the
conveyance (a).
Ag~~ents J _o C!myey have been , enforced in our
l Courts where the vendor had not parted with bis
right to another (b). -
or (d) for establishing or transferring any security, interest
or incumbrance affecting land or other immoveable
property.
Exceptions.-Leases at will or -for any period not
exceeding one month . Such leases being valid
without the Notarial execution .
ii. - BVERY DEED OR ACT OF RELJJ:ASE , SURRENDER
OR ANNULMENT OF OR AFFECTING ANY DEED OR
INSTRUMENT AS AFORESAID,
These deeds or acts do not come under Sec. 2 of 7 of
1840 and consequently need not be Notarial, e.g.,
a discharge of a Mortgage Bond need not be
Notarial, but such discharge can be registered.
iii.-PROBATE OF ANY WILLS AND EVERY GRANT OF
I
LETTERS OF ADMINISTRATION AFFECTING LAND
OR OTHER IMMOVEABLE PROPERTY.
The necessity for registering such instruments under
the Ord. was first . insisted on in the case of
(a) Jay, 17. Bee also A. Appubamy v. Boteju, 11 N.L.R, 187;
Peries, 19 N.L.R. 281.
(b) Appuhamy v. Silva, 17 N .L.R, 236.

64 CH. V.-REGISTRATION OF DEEDS,
Fonseka v. Fern~ndo, 15 N.L.R. 491, which was
decided in 1912.
T he P robate or Letters would - n~t show the lands
a ffected. So t hat un der Sec. 21 of the Ord. a copy
of t be I n ven t ory or list of appraisement must
acco mpany th e Probat e or L etters when, tendered
for r egistr ation .
iv.-EVERY J UDGMENT OR ORDE R OF COURT AFFECT-
IN G L AND OR OTHE R I MMOVE ABLE PROP E RTY,
There is no local case w bicb defi nitely dec idEs what
judg me nt or decrees and or ders of Court are
required to be registered un der the Ord . nor which
illus trat es tb e cor,flict between a judgment or order
and an instrument.
A judgm. ent affe~ti ng land for th.. e ~urp~se of this Or_di-
REGISTRATION, OPTIONAL. 65
v.-SEI ZURES BY THE FISCAL OF J,AND OR OTHER
IMMOVEABLE PROPERTY.
(Registrable under Sec. 237, C.P.C.}. This should be
done. within two weeks of the seizure. Fiscal's seizure is not
an encumbrance within the meaning of S"ec. 643, C. P. C.
The registration of a seizureof land under a money decree
does not affect a mortgage of the same land which was execu-
ted by the judgment-debtor prior to the seizure, but which
was registered after the registration of the seizure (a).
Hendrick v. Deen (b) upholds the. validity of an alienation \
between the Fiscal's sale and execution of the conveyance .
when the seizure has not been registered.
vi.-LIS PENDENS AFFECTING OR RELATING TO LAND
OR OTHER IMMOVEABLE PROPERTY.

l nance mus t be understo od to be a Judg ment whwh

by its ow n operat.ion, invests a person with an
. interest in t he lati d. Su ch , for example, as a
part ition de cre e or a judg ment which i~poses or
creates some cbarge, interest or liabilit y. A judg-
(Registrable under Ords. 29 of 1917 and 21 of _1918
" amending the principal Ord. 14 of 1891 by adding Sec. 27-a
to it) . . Application for registration should be substantially
in the following form (c) . (Vide Gazette, 9th November,
1917).
ment in an acrtion i9r declaration of ti tle is 'n ot a
judg ment affecti ng lan d with in th e meaning of this
secti on . T he t itle existed presumably before the (a) Mohatte v, Dissanayake, 18 N, L, R, 70.
action in whi ch the decree was had and the decree (b) 8 C, W. R, 205 .
i
I
declaring title is the expression of th e fin ding of (c) Form referred !o- I,
(1) Nature of land (including T. P , No., Lot No , and Assessmen t
t he Court as to the true state of t he existing
title (a). No,, if any...... .
(2) Situation : Town or Village. Pattu or Kqrale : Distriot-
Neither adjudication of Insolvency nor the appointment Provinoe.
9f assignees are registrable under the Ord. (b). (8) Extent .... . .,
Mortgage decrees require registration and if it is not (4) Boundaries ..... ..
(5) Reference to prior registration (if any) of land .. ... ..
registered, any person claiming adversely to it (6) Number and date of institution of Zis pendens .... .,,
under a subsequent registered instrument or decree ('1) Name of Court .. .... . . ,
is entitled to .claim priority (c). (8) Plaintiff (name in full and resid ~noe) .. , .. ..
(9) Defendant (name in full and residence).... . ..
(a) Mohamed. Ali v. Weernsuriya, 17 N,L,R. ,Uf. (10) Nature of lis pendens,
(b) Haniffa v . Silva, 15 N L.R . 362. (11) Name and address of applicant,
(c) Madar Lebl:>e v. Nagamma, 6 N.L.R. 21, 24; Salman v. Gabo. (12) Signature,
1 Lemb. 27 ,
9
 66 CH. V,-REGISTRATION OF DEEDS . .
Lis pendens come into existence when the defendant is
served with summons (a). Registration of lis pendens is in
force only for five years. It can be re-registered (b).
This has no application to the partition Ord. There by
Seo. 17 all alienations after institution of case is null and
void. Here filing of plaint is the time of the institution of the
action (c),
vii.-APPOINTMENT OF NEW TRUSTEES.
By deed or Court under Secs. 75 and 76 and vesting
orders under Sec. 112 of the Trust Ord. No. 9 of 1917. The
.requirement of registration does not appiy to any vesting
orders in respect of any charitable trust (d).
III.-Priority.
The chief object arrived at by our registration Ord. is to
confer prior!!Lon instruments registered under its provisions
as against earlier instruments unregistered or registered later
and thus compel the due registration of all instruments dealing
-with land (e).
The effect of priority as stated i~ the Supreme Court
judgments is to treat as non-existent the earlier document
which is not duly registered as far as it concerns the later but
duly registered one ; it cannot claim any right, such as taking
a second place, or any recognition whatever as against the
registered deed : and this priority is, of course, only to the
lI
.e xtent of the adverse interest created or carried out by the
later deed. For instance, if the first deed is a transfer, and
the second a" mortgage, the first deed is to be regarded as non-
/ existent_.only so far as the right of the mo_rt~agee to realise his
(a) Perera v, Silva, 18 N. L. R. 81 ; Mukeeth v, Nadaraja Pillai, 19
L. R, 461.
(b) Sec, 27-a (2).
(c) Jay, 172,
(d) Jay, 17 and as.
(e) Jay, 68.
PRIORITY.- 67
security is concerned but not further. If the mortgage is paid
l off, the transfer remains valid (a).
The subsequent instrument in addition to being registered
must possess c_ertain other requirements, before 'it oa.il success-
fully qlaim the priority conferred ~Y the section.
The subsequent instrument,
(I
(A) must be derived from the same source (b) ;
(B) must convey some adverseor inconsistent interest ;
(0) and be for valuable consideration.
..
Unless these three requirements are present, prior registra-
tion will be of no avail.
(A) SAME SOURCE.
If A claiming to be the owner sells a land to B, and O also
similarly sells it to D, and D's deed is registered while B's is
not, no question of registration arises or could arise between
Band D (c).
It is not essential that the instr ument in favour of tile
person claiming priority should itself be registered, provided
some instrument for valuable consideration in hie chain of
title is registered prior to the earlier qompeting instrument on
the other side (d).
No difficult question arises where both the competing
deeds are from the same pe.rson, but it does when one deed is '
from the owner and the other from a_n y of the following
persons:-
(l) Assignee by grant, such as, grantee by deed, pur-
chaser, legatee, devisee m:ider-; ; ;m, etc.
-.;. ... -- - - : - - "'I"
_.,., ' ; "
A sells to B unregistered and then A sells to C
unregistered, who sells to D registered. It ha.s
(al 'Jay. 63; Gamage Siman v, Usubu Lebbe, 8 8 ,0 ,R. 118; Muttu-
raman v. Masilamany, 16 N.L.R. 289 ; Sinniah Ohetty v, Appuhamy,
17 N.L.R. 76,
(b) James v. Oarolis, 17 N,L,R, 76 (Bl),
(c) Jay, 66,
(d) Weeratunga v. Silva, 1 Matara cases 170,
 68 CH, V.-REGISTRATION OF DEEDS.
been held that the deed in favour of D prevails-
over the deed in favour of B, inasmuch as the
deed in favour of B was not registered (a).
The owner of the property in P. S. gifted it in 1899-
but the dee!l of gift (P2) was not registered till
1910. In the meantime, in 1906 the owner-
had sold the property to one K, who sold if;
back the same year to the o'?ner. Again, in
1909 by a deed duly registered he sold the pro-
. . perty. The deed of 1906 was never registered but
that of 1909 was duly registered and the deed of
1899 was registered in 1910. It was held that the
registration of the deed of 1909 was sufficient to
avoid the title passed by the deed of gift of 1899
later registered (b).
An undivided share of a land was sold in execution
against the owner and, purchased by A, who sold
the same to B. The Fiscal's conveyance in favour
of A was unregistered but the deed in favour of B
was registered ; subsequently the owner sold the
same s:IJ.are to A who registered the deed. It was
held that as B's deed was prior in date and prior
registered, he had better title (o).
A purchaser from a residuary legatee, who duly
registered his deed, defeated the rights of an an-
nuitant who had a hypothec over all the property
of the testator for the payment of his annuity, as
the probate of the last Will b:ad not been
registered (d).
(2) Assignee by operation of law, such as. heir, executor.
administrator, etc.
A deed ~rom an heir and one from the intestate came
for competition and it was held thap a deed from
(a) Jay, 67,
(b) Kanapathipillai V, M, Levai, 15 N,L,R, 177,
(c) Perie v, Perera, 10 N.L.R. 33,
(d) Fonseka v. Fernando, 15 N,L;~. 491.
PRIORITY. 69
an intestate and another from his heir, administra,,
tor or executor are from the same source (a),
(3) Assiqnee in in.solvenoy.-Thera is no local case,
which decides that a conveyance from an insolvent
before his adjudication and one from his assignee
in insolvency emanate fro~ the same source (b}.
(4) Fisoal or other similar offi,oer.-A conveyance from
the Fiscal bas been regarded as a conveyance from
the judgment-debtor himself for the purpose oi
this Ord. (c).
(B) ADVERSE INTERESTS.
Instruments mav be said to be adverse, when the rights
dealt with by them are inconsistent or antagonistic, but not
when the rights dealt with by one do not interfere with or
infringe the rights dealt with by the other (d),
(1) Primary and secondary mortgages.-In the Full Bench
oase reported in Ram, (1877) p, 198, there were two mortgages,
the second of which was expressed to be second'b.ry, but was
first registered; it did not mention who the first mortgagee was.
lb was held that the facts did not make tile later mortgage a
a
secondary mortgage in faot, but it was oase of a person
obtaining a later deed with notice of a prior one and that the . -
rights area.tad by the two mortgages were adverse, and con-
sequently the later deed gains priority by registration.
Wijewardene v. Perera was a case in which the compet-
ing instrument was a secondary mortgage which expressly
l'ecited that it was burdened with the primary mortgage. The
:Secondary mortgage was, however, registered first, but the
:Supreme Court held that priority of registration did not give
the secondary mortgage priority over the primary mortgage.
(a) Jay. 72; James v. Carolie, 17 N,L,R. 76; Punohirala v. Appu-
'hamy, 7 N.L,R, 102,
(b) Jay, 77,
(c) Silva v. Barahamy, Wendt,, 888; Aserappa v. Weeratunga, 14
N.L.R. 417 (423),
(d) Jay. 80,
 I
70 CH. V.-BEGISTRATION OF DEEDS.
There is no conflict of adverse interests. It is clear that the
intention of the parties was that the plaintiff's mortgage
should be subject to the claimant's (a).
In Brodie v. Anthonv, the later mortgage recited "some of
the mortgaged land as subject to prior mortgage"_; it was held
that the interests created by the two mort,gages were not
l the party to whom the rent is to he paid. The estate of the
adverse and that by these words the parties intenc~ed to create
only a secondary mortgage in respect of some of tbe lands (b) .
In Goonesekera v. Goonetileke, the second was a usu-
I conserves the rights under lease whether registered or
fructuary mortgage reciting that the second mortgage was
effected to pay off the first . It was held that the second
mortgage on the face of it professes to be primary and it does
not profess to be given subject to the first mortgage, nor does it
even state that the second mortgage affected the same land.
In the circumstances, the two are adverse and the second
mortgage which 'Was registered first should have priority (c).
(2) Both Fiscal's conveyances.-Two mortgagees obtained
judgment on their Bonds and both purchased, under their
respective decrees, the property mortgaged. It was held tbat
the Fiscal's conveyance which was subsequent and registered'
earlier had preference, as the interests under the Fiscal's
conveyances were adverse (d).
(3) Lease and a private or F'iscal's transfer.-The owner
of a land had leased his property and had then sold it. The.
deed of sale was registered while the lease was not. lt was
held that the deed of sale, having been registered, is entitled to
priority over the unregistered lease (e).
In Ohinniah Ohetty v. Appuhamy, the lease was executed
but registered after an execution purchaser had obtained his
conveyance a.nd registered it. The lease was held void(/).
(a) !l B. C. C. 9.
(b) 9 8, C, O. 28,
(c) 2 Br. 399 and Kirihamy v, Kiri Banda, 14 N. L. R, 284.,
(d) Arumugam v, K~nap1,1thi Pillai, 7 8, C, 0, 120,
(e) Grenier, (1874) 0, R. 29,
(f) 7 B, 0, C. 111.
PRIORITY, n
A lease is adverse to a subsequent sale, because ib prevents
the purc,haser from having complete possession, but a sale is
not adverse to a subsequent lease, became it merely changes
tenant is unaffected (a).
(4) Lease and a partition decree.-Partition Ordinance
not (b). .
(5) Deed of trust and a mortgage by the settler.-Tha-
owner of certain land in contemplation of her marriage
entered into an ante-nuptial contract to which her intended
husband was a party by which she conveyed the land upon
trust for the intended spouses for life and thereafter for the
issue of the marriage. The parties married but the deeds were
not registered. Subsequently the husband and wife mort-
gaged the property to creditors who registered their deeds.
The claim of the creditors was upheld on the groun,d that the _
interests of the mortgagees and the other parties claiming under
the deed of settlement were adverse (c). '
(6) Probate of a will and a conveyance by the,residuary
legatee or the heir at law.-The testator by his will appointed
his son executor and residuary legatee and directed that
plaintiff should receive a certain annuity from his estate. The
annuitant had a tacit hypothec or charge over all the property
of the estll(te for his annuity. The executor sold one of the
testator's lands to the defendant who registered his deed;
The probate was never registered. It was held that the
plaintiff's claim as against the registered deed was void on
the groun-d that the will and the deed created adverse
interests (d).
Where the competition ~as between an execution sale
(unregistered) against the executrix as such and execution
(a) Lawrie, J, in Udamma Labbe v. Begu Mhhammadu, 2 O. L, R.
158.
{b) Gamage Bimon v. Usubu Labbe, 3 B, C. R, 113.
(c) Gaud er v, Dissanayake, 9 8. O. O. 97; 4 Bal, Bil ; A, C. 547.
(d) Fonseka v. Fernando, 15 N, L. R. !l91.
 12 OH, V.-REGISTRATI0N OF DEEDS.
sale (registered) against the executrix in her capacity as
intestate heir of the deceased, it was bald that, as the probate
-of the will was not registered, the execution sale against
her personally should prevail over the sale against her as
executrix (a).
1 \,I . (7) Planting a(Jreement and a subsequent sale.-Interests
adverse (b).
(8) Both mortgage decrees.-Two mortgage decrees on two
bonds duly registered. Plaintiff's bond w'as also earlier and
registered earlier. He also registered his decree but the
defendant without registering the decree registered the Fiscal's
t ,of gift came in conflict (c).
conveyance. The plaintiff got a later conveyance and
registered it later . . The plaintiff's title was held to prevail
by reason of the registration of his mortgage decree which
rendered void the unregistered mortgage decree and the sale
I
under it to the defendant (c).
(9) Fiscal's conveyance under a decree on a re(Jistered
mortgage and a transfer registered subsequent to the mortgage,
but before the Fiscal's conveyance.-Tha question whether a
purchaser under a mortgage bond as being the root of his title,
was raised and answered by the full bench, overruling earlier
cases, that the purchaser was not deprived of the benefit he
might g~i.n by the registration of Bond (d). But this question
is hardly likely to arise in the future, in view of the fact that
parties are now regulated by the procedure laid down in
Secs. 643 and 644 of the Civil Proceduro Code which indicate
the procedure by which a primary mortgage can obtain a
decree binding on all puisne encumbrances (e).
O.-VALUABLE CONSIDERATION.
The subsequent deed in res.pact of which priority is claim-
ed must be for valuable consideration.
(a) Cornelia v. Fonseka, 20 N. L. R, 97.
(b) Appuhamy v. Goonetileke, 18 N. L, R, 469.
(c) Salmon v, Gabo, 1 Lom, 27,
(d) Mutturamon v, Masillamany, 16 N .L;R, 289 ; Silva v, Goonewa.r-
dene, 18 N.L.ij. 241,
(e) Jay, 103,
PRIORITY.
The term " valuable consideration " is unknown to the
R. D. L. and is a term derived from the English Law of
Contracts. In Fernando v. Fonseka, Dias, J., defined it as
money, marriage or the like which the law esteems as an
equivalent given for the grant (a).
The mere fact that a transac~ion is stated to be for
valuable consideration would not prevent it being shpwn that
it is, in reality, a voluntary one and vice versa (b).
Registration was held to be of no avail where two deeds
A sale by a husband to a \Vife governed by Ord. No, 15 of
1876 was held to be not for valuable consideration inasmuch
as the money which she paid for the sale would have already
.
vested in the husband (d).
A deed by a.n administrator or executor in favour of the
heirs or devisee is not for valuable consideration, and the
registration of letters of administration or of a grant of probate
would not avoid an unregistered mortgage ot sale or other
transaction of the intestate (e). But, of course, a conveyance
by an administrator or executor for valuable consideration
would stand on a different footing (/).
A dowry deed or settlement in consideration of marriage
is for valuable consideration, if the marriage subsequently
,takes place, a post-nuptial settlement is, however, not consi-
dered to be for valuable consideration (g),
A past consideration is no consideration at all, unless it
was moved by a previous re uest or unless it was rendered
under such circumstances that a re_,a..;,:.::.cs........c.~--
uest is im_ylied - (h).
(a) l C,L,R. 81!.
(b) Jayasekera v. Wa.nigaratne, 12 N.L.R, 864.
le) M, Hamidu v. R. Naohia, I! O.L. R, 32.
(d) Menik Ettana v. Allis Appu, 3 N.L.R. 830,
(el Punohirala v. Appuhamy, 7 N -L.R, 102.
(/) James v. Carolis, 17 N.L.R. 76.
(g) Jayasekera v. Wanigaratne, 12 N.L.R, 864 ; Velupillai v 1 Kadi-
ravelu, 5 Tamb, 94,
(h) Salmon v. Obilias, 6 C.W,R. 1.
10
 74 CH. V.-REGISTRATION OF DEEDS.
Priority is lost or'defeated
(1) by fraud or collusion in obtaining the subsequenh
instrument or in securing prior registration of 'such
instrument ;
(2) by the holder of the earlier unregistered instrument
acquiring a title by prescripti9n ;
(3) or by registration in the wrong book, volume or
folio (a).
IV.-Registration when Inoperative.
The circumstances under which Registration becoming
inoperative, i.e., useless and of no avail to have any claim, may
be classified under the following beads :
(a) When there is no competing instrument.---Tbe registra-
ti~ ~f_ a:1 in_strument does pot affect legaJ _or eq):litable'. ~Jgbt
which need not be evidenced by_ wri.ti_pg. For instance, such
l;gal rights a~ o~tbly t~ancies which are exempted from the
operation of Sec. 16, an ~ greements to cultivate for a share of
the produc!!,.for a term not exceeding one year under Ord. 21
of 1887 anta' equitable rights arising by operation of law or
custom such as claims to compensation for improvements, with
the ius retentionis and "planters' shares" are not affected in
any way by a deed or other instrument granted by the person,,
where priority is subject to these rights . and claims, even
though such deed or instrument be registered (b).
In Mudiane v. Sellandiyar, the Supreme Court held
that a grantee under an unregistered planting agreement
which is avoided by a subsequent registered transfer by the,
grantor is entitled to compensation, in respect of the improve-
ments effected by him, from the transferee (c).
(b) Where the instrument registered is not one on which
the interests claimed are based.-Tba regfstration of an instru-
ment evidencing a collateral transaction, suQb as a mortgage
(a) Jay. 1_11.
(b) Jaya 113; see also Appuhamy tJ, Gunetileke; 18 N,L,R, 469,
(c) 10 N,L.R, 209.
REGISTRATION WHEN INOPERATIVE . 75
bond which forms no part of the chain of title, is ins.ufficient,
the deed on or through which the conflicting interest, are,
claimed must be registered (a). H_ere however the mortgagee
has a right to enforce his right (b).
(c) Where the grantee under the ~arlier deed has acquired'
a title by prescription.-Acquisition of title by pre~criPJ;io!J-:
i!:Eot in any way affected by t he Registra0on Ordinance.
The prior registration of a subsequent deed does not interrupt
prescription which bas already begun to run in favour of the-
holder of' the earlier unregistered deed (c).
(d) Where the grantor had no title at the date the instru-
ment was executed.-Tbe title which a grantor acquires, even
though it refers back to a date anterior to the date of his
conveyance,, cannot be availed of by a grantee under tb_e
registered conveyance so as to gain priority thereby (d).
(c) Where there has been fraud or collusion in' obtain--
ing or in securing the registration of the subsequent instru-
ment.-In Ceylon, notice of a prior unregistered deed has
been bald not to amount to fraud so as to deprive a person
registering of the priority conferred by law (e).
In Lawaris v. Kirihamy, the claim to priority was defeated ~
as the person who registered his deed was in a position.
of trust and had to protect the interest of the person whose
rights be attempted to defeat. n was a case where a brother
got another deed_from his mother to defeat the rights of his
younger brother and sisters created by a deed in their favou r.
from the mother(/).
(a) Lewis Appu v. Abilinu, 2 C,W.R; 254,
(b) Kirihamy v, Kiri Banda, 14 N,L,R. 284,
(c) Jayesekera v, W1rnigaratne, 12 N.L,R. 364; Appuhamy v,.
Goonetileke, 18 N.L.R. 469; Noordeen v, Appuhamy, 5 C.W.R. 93, '
(d) :Kadiravelupillai v. Pine, 9 B,C,C, 36 ; Marikar v. Fernando,
4 Bal. ii.as.
{e) Ram, (1877}, p, 198; Aeerappa v. Weeratunga, 14 N,L,R, 417 ;.
Kirihamy v. Kiri Banda, 14 N.L.R. 284,
) 3 Bal, Notes of oases 38,
 76 CH. V.-REGISTRATJON OF DEEDS.
(J) Where an instrument is not duly registered or is regis-
tered in the wrong book, volume or folio.-The words " unless
so registered" in Sec. 17, have been construed to mean
registered in the proper place as required by Sec. 16. It
rh as been held that the "right folio" is the one in which the
l
first deed relating to a particular land has been registored.
The de!ld so registered should also contain an accurate des-
cription of the property.
f An accurate description would be a description with the
I correct name of the land and its correct extent and boundaries.
The Ord. does not require that the lands should be depicted in
-a Plan or figure of survey. A private survey which is not
registrable has no greater effect than the description in the
instrument itself, and is nob of much value so far as registration
is concerned (a).
It is now settled law that a deed registered in a wrong
folio is void as against parties claiming an adverse interest on
valuable consideration py virtue of a subsequent deed which
has been duly registered (b) .
(g) Where the instrument is void as being a forgery, or
_for fraud, illegality, mistake, &c.-The' general principle is
that registration does not give any effect to an instrument
that in itself hD,s no effect (c).
(h) Where a land n.as been dealt with under the Parti-
tion Ora". No. 10 of 1863.-A transferee of a share cannot, by
registering his deed, avoid the partition decree though the
latter be unregistered, as a partition decree need not be regis-
tered (d).
(i) Where the owner has been adiudicated an insolvent
under Ord. No. 7 of 1853.-On t.he appointment of an assignee,
the insolvent owner ceases to h11,ve any right in his property
(a) Vand, (1871) UO; De Mel v. Fern&ndo, 4 N,L.R, 290; Paaris
v. Perera, 16 N,L.R. 148.
(b) Marikar v, Fernando, 17 N, L. R, 4i81,
(c) Jay. 160; Hogg's Registration, p, 87,
(d) Be~nard v, Fonseka, 16 N.L.R. 438.
REGISTRATION OF ADDRESSES OF MORTGAGEES. 77
and a grantee from him cannot by registering his deed claim
. to override the rights of the assignee in insolvency or of a
grantee from him (a).
V.-Registration of Addresses of Mortgag~es.
Registration of the address of tlie primary mortgagee
under Secs. 643, 644, C.P.C., is so very essential that the
Supreme Court has lastly held that, if the primary mortgagl!_&
failed to have the address so registered, ~ubsequent inoum-
brancees could tak~ advantage of such failure, notwithstanding
their own ~on-compliance with the r~quirement {b).
The position created _by Secs. 643 and 644 of the Civil
Procedure Code as interpreted by the Supreme Court is as
follows (c) :
(a) The primary mortgagee must register his Bondi
and his address in the first instance.
(b) Puisne encumbrancers must register their addresses.
and notify same in writing to the primary
mortgagee.
(c) When the primary mortgagee institutes his action,.
he must notice all such puisne encumbrancers.
(d) If the primary mortgagee complies with these
Secs. 643 and 644, but the puisne encumbran-
cers fail to do so, any decree which the former
obtains will be binding on the latter.
(e) Even though a primary mortgagee may not have-
registered his address, still he may join the puisne
encumbrancers or give them notice of the action,
:is by doing so the requirem'ents of the law would
be satisfied. For otherwise the _decree will not
(a) Hanifia v. Silva, 15 N.L.R. 362.
(b) Suppiramaniam Cli.etty v. Weerasekara, 20 N.L,R. 1'10.
(c) Jaya.. 198; Pieris v. Weerasinghe, 9 N,L.R, 369 ; , Weerappa
Chatty v. Arunaealam Chetty, 12 N .L.R. 139; Eliatamb'y 'V, Valliammi.i ,
16 N.L.R. 210; Suppiramaniam Chetty v. Weerasekara, 20 N,L,R. 1'10 :
Rome! v. Jayawardene, 14 B.L.R. 47 ; Ramanathan ,Cbe~ty v. Cassim,
H N,L.R. 177; Muthiah Ohetty v, Ledohuman Ohetty, 6 Bal. N.O. 8,

'78 CH. V.-RUGISTRATION OF DEEDS,
bind the puisne encumbrancers and their rights
will remain intact and, further, no second alltion
can be brought by the primary mortgagee to
establish his right as against subsequent inoum-
branoers irrespective of whether the puisne
enoumbranoers have complied with the require-
ments of.Secs. 643 and 644.
('/) The address must be specially furnished ad hoc arid
a mere description of the mortgagee in the register
is not sufficient. The address must be one by
means of which a person can ordinarily be
oommun'icated with.
(g) These rules apply not only to puisne enciumbrancers
whose deeds give them which is on the face of it a
,. primary right or mortgage but also to subsequent
encumbrancers whose deeds are expressly made
subject to an earlier mortgage.
VI.-Searches.
The object of searching for incumbrances or other matters
which are registered is to ascertain wh~ her th~ gra~t or's title
@ is adversely affeoted,.!ly an judgment!P,'Crown debt~ eizures,
tis pendens or by an~ isposition already registered.
The opinion of J udges is divided on the question as to
whether a Notary is bound to search any registers other than
t he Register of deeds except when requested to do so (a).
The following registers are kept at the Lands Registry
affecting lands within the district in which the Registry is
-established and it is necessary that searches should be made
,before entering into transactions affecting such lands.
(1) Registers of deeds affecting land kept under
Sec. 15 of the Ordinance. In this Register are
r'agi~re;a deed~ -;rders, judgments and lis
pendens . .
. '
(11) Gimeris v, Kar~naratne, 18 N.L.R, 47,
SEARCHES. 7.9
To facilitate the search two indexes are kept :
(a) Local index referring to the names of land and
(b) the personal index containing the names of
the grantor and grantee.
' I
( 2) The list of Crown debtors kept under Seo. 29 of
the Ord.
By the Crown Debtors Ord. No. 14 of 1843
preference is given to Crown debts .
,{3) The list of executors and administrators kept
under Sec. 28 of the Ord.
{4) The Register of seizures kept under Seo. 237 of
the O.P.O.
(5) The Register of Addresses kept under Secs. 643, 64:4
of C.P .C.
{6) The Register of Addresses of Mortgagees kept by
the Municipal Councils under Sec. 110 (7) of
the M.O. Ord . 1910, regarding lands wHhin its
limits.
This register is kept to enable the Chairman to
give notice of the sale of lands for the recovery
of taxes which has prefer en ce oyer other olaimg,
,It
~
I,
11
...

..
. haviag perpetuai succession with power to acquire and dispose
..
_C Hi\PTER VI.
THE CEYLON ORQINANCES.
0RDINANO~ S relating to instruments or deeds affecting
lands, churches, temples and to contracts or agreements, trusts.
and the mode of executing documents are summarisea in this
Chapter, excepting ordinances dealt with in the other chapters.
rnChurches, &c.-Trustees of aJmost all the Pr9je1:;1tl\nt.
churches in Ceylon, such as the United Church of England at .
Kandy, the - Pre; byte; ian Church at Kandy, the ~piscopal
Church of Scotland in Colombo and St. Andrew's Church were
empowered to acquire or dispose of property (a).
The Incorporated Trustees of the Church of England in
Ceylon, the Consistorr of the Dutch Reformed Church at
Wolfendal, the Church Missionary Trust Association, the-
American Ceylon Mission, th.e Wesleyan Methodist Missionary
Trust Association, the Incorporated Trustees of St. Andrew's
Church were incorporated as a body corporate with perpetual
succession and a common seal. The seal is affixed in the
presence of certain of the officers or members of the body
corporate who shall sign as a token of their presence and such,
signing shall be independent of those signing the instrument.
as witnesses (b) .
The Church of England Bishop of Colombo, the Roman
Catholic Archbishops and Bishops in Ceylon were declared
each independently from one another one corporate body
(a) Ordinances Nos, 11 of 1842 ; 13 of 1845 ; 12 of 1846 ; 80 of 1890 i
81 of 1890 ; 5 of 1898 ; 6 Qf 1911 i 18 of 1906; 7 of 1916 and 16 of 1916.
(b) Ordinances Nos, 6 of 1885 ; 24 of 1892 ;, 5 of 1864 ; 12 of 1896 :
2 of 1908 ; 4 of 1908 ; 3 of 1911 and 16 of 1916,
CH. V'I.-THE OEYLON ORDINANCE S. 81
of_pr~perty (a).
(2-) Colleges,-&c .-Tbe Incorporated Council or' Legal Educa-
tion the Council of th e Ceylon Medical College, the Boards
of. Directors of the J ~ffna College and 'of t he Jaffna Hindu
College were incorporated bodies corporate with perpet~al
succession and a Common SeaH b).
00 S ocieties, Associations, &c,_:_The L aw Society of Ceylon ,
the Public Service Mutual Provident Association , the Ceylon
Railway Ben ~fit Association, tbe Planters' Benevolent Fund of
Ceylon, the Disabled Ceylon Men's Fund, Local Loans and
Dev~lopment Commission, the Inc& porated Victoria Home
for Incurables, tbe Chamber of Commerce were incorporated
as bod ie s corporate havi ng common seals (c) .
The L aw Society may take cognizance of an,y professional
misconduct of any Proctor or Notary and apply to the Supreme
Court to strike t he name of such party irom the rolls (d) .
The Providen t 'Association caunot sell or mortgage or
exchange wit hout leave of Court (e).
Any mutual providen t anil oth er societies may on,
regi stration under Ord. 16 of 1891 beco::ne ~ body corporate.
L oan given by the Local Loans Commiss ion is t reated
as a Crown debt (f) .
The Chamber of Commerce bas special forms of conditions
of sale of tea, coffee, chincona, cocoa, &c.(g).
Co-operative Credit Societies, on registration under Ord.
No. 7 of 1911 become bodies corporate. Such a society is
entitled in priority to all creditors (except Government and
4
(a) Ord. Nos. 6 of le85 and 19 of 1906.
(b) Ord, Nos, 2 of 1900 ; 8 of 1905; 7 of 1894 and 6 1:)J 1!?02,
(c) Ord. Nos . 8 of 1911; 5 :o f 1891; 16 of 1908 ; 2 of. 1911 ; 81 of 1916 ;
22 of 1916; 7 of 1903 and 10 of 1895.
(d) Sec, 17 of 9 of 1911.
te) Seo. 26 of 5 of 1891.
(/) Sec. 18 of 22 of 1916,
(g) See Appendix to Ord, 10 of 1895,
I
11
I
I
 82 CB, VI.-THE CEYLON ORDINANCES.
landlords) to enforce its claim upon the crops, agricultural
produce and upon cattle and agriculhural implements (a). The
Governor m'ay remit the stamp duty in A.ny instrument.
The Joint Stock Coy.'s Ord,, 1861, does not apply to Societies
registered under this Ord.
Any building societies may be incorporated under OrJ. 15
-Of 1891.
(_ ~ Buddhist Temporalities Ords. 8 of 1905 and 10 of 1856.
Property moveable and immoveable' shall v~st in the
trustees of the temple (b).
It shall be lawful for the trustees with the written
sanction of the Committee (certified b~ the President of the
Committee) to demise or let any lands for a term..not e~ce5!_ding
fiftv years. But if the demise is over ten years the sanction
~f -ihe District Judge is also necessary (c).
It shall not be lawful for any Buddhist temple to acquire
property worth over Rs. 50 without the license of the Governor
and if any person shall by grant or devise, purport or attempt
to vest any land worth over Rs. 50 in any such temple, such
lands shall devolve and become vested in the lawful heir of such
person notwithstanding such grant or devise (d).
.Commissioners appointed under the 0l'd. No. 10 of 1856
-cannot buy lands in places where the Ord. operates.
Cs) r.-.. Municipalities .-T e Coupcil is not pe~mitted to sell or
,.:., ~) ?, ,ft) --
. l!!t waste land, "'q uarries, akes, reservoirs or other water works,
:~) markets without the written consent of the Governor and
without notice in the Gazette. Moveables may be sold if the
Council desires it necessary (e).
The Council may mortgage the taxes and rates by a deed
free of stamps signed by the Chairman and under the seal of
the Council (/) . Tenants may pay taxes and rates and
(a) Seo. 19,
. (bl Seo, 20
(cl Seo, 27.
Id) Seo, 41, Ord. 8 of 1905 ; Amendment, 15 of 1919,
(e) Bees. 69-163 of Ord. 6 of 1910,
(/) Seo, 217 .
CH. VI.-THE CEYLON ORDINANCES. 83
-deduct the same from the rent unless the terms of the lease.
are otherwise (a).
If land.is seized and sold for default of payment of taxes
and ratea, a certificate signed by the Chairman shall be
sufficient to vest the title in the purchaser free from all
encumbrances. Stamp duty is payable by purchaser as for a
,conveyance. Provided, however, that a mortgagee of the land
,m ay pay off the dues and add the same to tbe mortgage
amount and amount so added shall be secured by the mor tgage
held by him (b).
If lands are bought by the Council under such seizure
and sale the Council may sell the same to any person (c).
Tbe Council shall make provision fot the registration of
mortgages of immoveable property situated in the town and of
the addresses of mortgagees. Before seizure and sale, notice
of the same shall be sent by tbe Chairman to the registered
address of the mortgagee !d).
The Council may purchase or agree for the purchase of
lands with the sanction of Lhe Governor. If there is hl,n-
drance to the acquisition by purchase of any tand, the
Gove~nme'nt may acquire ib as for a puhlicpurpose and _make
over the same to the Council by means of a cedificate under
the hand of the C~ onial Sscre_hfY, to the effect that the same
has been made over to the Council (e).
Provisions of Ord. 7 of 1840 regarding immoveable pro-
perty shall not apply to any sales, leases, modgages, releases
and the contracts to which the Council is a party (I).
11
Boards and Oommittees.-The Local Boards are governed
by Ord. 13 of 1898 and other amending Ordinances, the
Newera Elia Board of Improvement by 20 of 1896 and
other amending Ordinances, the Sanitary Boards by 18 of
1892, 26 of 1908 and other amending Ordinances, the
(a) Seo, 119, (d) Seo, 148,
(b) Sec, 143, (e) Secs. 150-152.
(c) Seo, 14 7. (f) Seo, 153 (2).

84 CH. V.1.-THE CEYLON ORDINANCES.
Provincial~and District Committees, by Ords. 10 of 1861, 14 or
1896 and other amending Ordinances.
Mortgages of rates and taxes shall be by deeds signed by
the Chairman of the Boards and by two members, free of stamp,
duty, Such mortgages may be assigned free of stamp duty.
When lands are sold for payment of taxes, "&c., a certificate
up~~.tJhe hand of the _Govern!l}ent Agent shall be sufficient
to vest title in tbe purcliaseP. free from encumbrances. Stamp
duty is as for a conveyance (a,).
~Cbe Chairman, Provincial Committee, may enter into an.
agreement on behalf of Govern:ient for recompense to be.made
for any land required for any road. Such agreement followed
by possession vests the title in the Government without any
formal transfer thereof. A certificate from the Chairman that
any person has been allovrnd to possess any part of the former
road or other Crown laJ;1d shall be sufficienb title of tbe right
of such person to the same {b).
The provision of the prescriptions Ord . No. 22 of 1871 do,
not apply to roads (c).
Trust Ord. No. 9 of 1917.-A trust is an obligation annexed
Y __. - - .,_
to the ownership of property and arising out of a confidece
;eposed in and acc~pte~ by the owner, ' or decl;red .an~
accepted by him, for the benefit of another person, or of
~pother person_and the own_er, of such a character thl!it, while
tpe ownership is nominally vested in .,the owner, the right__t,?
the beneficial enjoyment of the property is veste.d .or to be
;e~ted in such other per;~n or in such ~ther person conodr-
re~}Y wHh the owner.
;;- A trust does not include a fidei commissum (d).
n
Where a trust. is created for two purposes, of wbieh one is
lawful and the other unlawful and the two purposes cannot be
separated the whole trust is void.
(a) Seo. 34- a of 13 of 1698.
(b) Sec, 9 of 10 of 1861. .
(cJ Seo, 90 (B) of 10 of 1861 ; Seo. 6 of 23 of 1910,
(d) Seo. 3,
CH. VI.-THE CEYLON ORDINA;NCE:S, 85
.e.g. A bequeaths property to B in trust to em.ploy it in
carrying on a emuggling busin ess and out .of the profits to
support A's children. The trust is void (a>. '
No trust in relation to 1mmoveable property is valid,unless
declared by a q_uly~ xecute~ instrurpent. No trust in relation
to moveable property is valitl, unless declared in w_r~bing or
unless the property is delivered {b).
Oonstructiv~ trust.-Where the owner of property transfers
or bequeaths it and it cannot reasonably be inferred consis
tently with the a~_te;d~ t- aj;qy_m6.t_a1;1c~s_ th_!l,t__ _he i~te; d~d to
dispose of the beneficial interest t l:terein, the transferee or
.
legate0. musth~l d s;~h- ; ~ ~erty- f~r- th~ benefit of the owner
Or his legal representative.
e.g. A conveys land to B withoui; consideratior,i. It must
reasonably be inferred that B holds it for the benefit of A.
A transfers certain stock belonging to him into the joint
names of himself and B. A and B hold the stock for the
benefit of A during his life.
A makes a gift of a land to his wife B. There she takes
it free from any trust (c),
Where property is tr.ansferred to one for consideration
,p aid by another,' unless intention appears otherwise, the
,transferee holds it for the he_nefit of lrhe parson paying (d).
Where A acquires property with notice that B has
,.
I
I
entered into a contract affecting that property, of which
specific performance ~ould be enforced, A must hold it for the
benefit of B to the extent necessary to give effect to t_he
-c~ntract. Provided in case of immoveable property, such
!
,contract shall have been duly registered before sqch acquisi-
r-
.tion (e).
A trust is created when the author of the trust indioate.s
with reasonable certainty by any worda or acts-
(a) an intention to create thereby a trust ;
(a) Seo. 4. (o) Seo, 83. (e) Seo, !);!.
(b) Sec. 5, (d) Seo. 84.
86 OH. VI.-THE CEYLON ORDINANCES.
(b) the purpose of the trust (which must be lawful) ;
(c) the benefic~ary (i. e., the person getting the benefit) ;
(d) the trust property and tra:1sfer of the property to
the trustee.
e. g. A bequeaths certain property to B ., Hoping he win
continue i_t in the family, " Here beneficiary is not indicated-
with reasonable certainty. So is it if B is requested to distri-
bute the property amongst such members of C's family as he,
thinks most deserving (a),
A beneficiary may renounce his intere st under the trust.
by disclaimer addressed to the trustee or setting up, with
notice of the trust, a claim inconsistent therewith (b).
.4. trust is accepted by any words or act of the trustee
indicating with reaso~able certainty of ;uch ,acceptance. He-
may also disclaim it. A disclaimer or the death or dischargt>
of one of two or more co-trustees, vests the trust property in
tbe other or others fo) .
All tbe trustees must join in the execut,ion of the trust.
unless the instrument provides otherwise or unless the Court
directs otherwise (d).
A trustee who has acM pted the trust ca~not afterwards.
reno.unce it, except with th'/i-'per~ ission of Court, or ~ nsent oti .
the beneficiary or by virtue of ~~special power in the instru-
ment (e).
A trustee is entitled to have in his possession the,
instrument of trust and all the documents or title relating to.
the trust property (f ),
A trustee cannot ordinarily delegate bis office or any 0
bis duties to a co-trustee or to a stranger (g) .
The appointment of an Attorney to do an act merely
ministerial and involving no independent discretion is not a.
delegation within the meaning of this section (h).
(a) Seo, 6. (cl) Seo. 50. (g) Seo. 49.
(b) Bee . 9. (e) Seo. 48 . (h) Bee. 49 (explanation) .
Cc) Beos . 78 and IO , (f), Seo. Bf.I.
CH. VI.-THE CEYLON ORDINANCES. 87
Revocation of trust.-A trust 'created by will may be
revoked at the pleasure of the testator.
A trust otherwise created can be revoked only-
(a) by the consent of the beueficiariES ;
{b) i'n exercise of the power of revocation reserved to
tbe author of the trust ;
(c) where the trust is for the payment of the . debt!! of
tbe author of the trust and has not been communi-
cated to the creditors (a),,
A trust is extinguisbed-
(a) when the purpose is comp.letel y fulfilled ;
(b) when the purpose becomes unlawful;
(c) .by the distribution of the trust property ;
(d) when the trust being revocable is expressly
revoked (b).
Charitable trnst includes any trust for the benefit of the
public or any section of the public within or without the
Colony of an y of the following categories- '
(a; for the rel ief of poverty ;
(b) for the adv ancement of education or knowledge ;
(c) for tho advancement of religion or the maintenance
of religious rites. and practices ; or,
(d) for any other purposes beneficial or of interest to
mankind not falling within the preceding cate-
. gories (c).
"' are bi:,ought under the powers of
These. charitable trusls.
the Court for the establishment, regulation, pro,tection and
" adaptation " (i.e., carrying out the wishes of the author of
trust as nearly as practicable) (d).
Tb i,s does not apply to religioos trusts regulated by the
Buddhist Temporalities Ord. of 1905 (e).
(a) B~o. 80 , (c) Seo. 99. (e) Seo. 109.
(b) Seo. 79, (d) Beos , 100 a11d 99,
88 Cil. VI.-THE CEYLON ORDINANCES.
No trust except charitable trust shall operate beyond. the
lifetime of person; living at the time of the constitution of
the trust and the minority of persons comiog into existence at
the expiration of that period. (a) .
A new trustee in place of another retiring or otherwise
disqualified may be appoin:ted by the person nominated for
that purpose by the instrument of trust or by the. author of
the trust or by the surviving trustee or rotiring trustees with
the consent of the Court. Such appointment shall be
i;iotarially executed. If it affects immoveable property, the
land should be fully described for purpose of registration (b).
A new trustee may be appointed according to some pres-
cribed or customary method appearing by a Memorandum
under the hand of ihe ~ on presiding at a meeting or other
proceedings and attested by L\Y..9_o.t.l.iers present at such meet-
ing or proceedings. Such Memorandum shall also be nofiari-
~lly executed (c).
The Notary should send particulars of the Memorandum
to the Registrar General to keep a Register of the same (d).
The Governor may authorize the incorporation of Trus-
tees of any ch~ritable t,rusts (e).
Sec. 115 re-enacts, 7 of 1871, Sec. 2, i.e., a Trustee or
Executor or Administrator is empowertiil to convey properties
to himself and another.
Entail 11 of 1876.-Any prohibition against alienation of
property contained in .any deed or will for any perio~!1~ond
the lives.of persons in existence or en vente. sa mere anl~ ith-
out det1ignating the person in whose favour such prohibition
is provided, shall be null arid void ( /).
. Such entailed property may be leased, exchanged or sold
with the authority of Coud duly obt31ined.
{a) Seo. 110, (d) Seo, 113 (4).
(b) Beos, 76 and 113. (e) Seo, 114,
(o) Seo, 113 (2) and (3). (/) Secs. 2 and 3.
.,
OH. VI.-THE CEYLON ORDINANCES, 89
. Proceeds of tbe sale of such property shall be applied as
the Court may direct-(a).
Property taken in exchange shall. become subject "to the
se.me entail as the property for which-it was exchanged (b).
This Ord. shall not apply to the case of ariy corporate,
joint stock compaoy, church or tempie or .any charitable,
religious or educational institution (c) .
I
.!
General and Miscellaneous.-A certificate of quiet posses-
sion may be granted on application by party in possession to
the Government Agent (-i).
lnsolvency.-0onv~yances by any person adjudged an
insolvent e:s;cept for valuable consideration are declared
void ce) . .
All properties of the person adjudged an insolvent shall
vest in the assignee who shall have power to sell any property,
imbject to the directions of the creditors (/).
Every deed of arran,1rnment entered into between any per-
son (the insohent) and fths of his creditors in numbers and
value shall be binding upon the remaining creditors as well (g).
Savings Bank.- -Mortgage bonds, &c., granted in the
name of the Treasurer of the Ceylon Savings Banks should not
tlpecify the name of the Treasurer (h).
All documents executed in pursuance of this Ord. are
oxempt~d from stamp duty (i).
Receivers of Wrecks are empowered to sell ships or boats
for non-payment of salvage..(j).
(a) Seo. 7. I I
(b) Seo. 8 .
(cl Seo. 12.
(d) Seo, 7 of 12 of 1840.
(el Sec, 51 of 7 of 1853.
(I) Secs. 65, 70, 71 and 80.
(g) Sec. 13!l,
(h) Sec, 2!l of 12 of 1859,
(i) Sile. 30. See also Sao, 18 of 12 of 1892. "
(j) Seo , 27 of 5 of 1861,
12

90 CH. VI.-THE CEYLON ORDINANCES.
Naval Service.-Lands purchased for the use of the naval
services shall vest in " Tbe Q.gJnl'.Il,issioners _for executing th&
office of LoJ d H [gh Admiral of the United Kingdom of Great
B rita ~nd Irela_nd" wbo shall be so describel i~ all deeds
without their names being expressed.
Signatures of any two of them shall be enough as if all of
them had executed or signed the same (a) . .
Nuisance.--If the occupier of any land shall be required
to pay any money fo r abating nuisance under this Ord. , be,
shall be entitled to deduct the amount from the rent payable,
by him (b).
Partition Ord.- Ce1tificate oi sale under the hands of
the J udge shall be evidence of the purchaset 's tHie. Decree
for partition or sale shall be conclusi ve against all persons
whomsoever. Mortgagees and lesrnes are not affected
except that they shall have only divided shares in lieu of the-
undivided shares (c).
No owner could alienate or hypothecate during the-
pendency of a partition action (d) .
Certified copies.-Public officers are required to furnish
certified copies of documents in their custody on payment of
fees (e).
Sale for police tax .- 1 land or other immoveable propf!rty
be sold fo r non-payment of (Police) assessment tax, a certifi-
cate signed by the Government Agent shall vest the prope1ty
in the purchaser(/) .
S ecurity Bonds given by the Fiscal, the Deputy Fiscal
and Indemnity Bonds given i~ favour of the Fiscal, shall by
endorsement without stamps, convey to the person in whose
favour the e~dorsemeut is made the right to give on such
bo~d (g}. ' (al Beas, 3 and 4 of 14 of 1890.
CH. Vl,--THE CEYLON ORDINANCES. 91
Security Bonds by public officers as prescribed by the
Governor are attested before a Dist~ict Judge, Commissioner of.
Requests, or J.P. or before two witnesses free of stamps (a).
Prescription Ord.-Lands are acquired by adverse posses-
sion for 10 years. Mortgage Bonds and other Notarial
Bonds are prescribed in 10 years from date of Bond, or from
last paymen t of interest or breach of conditions wbicbever is
the later .
Prescription cannot begin to run against parties during:
minority, lunacy or absence beyond seas (b).
Tramway.-It shall be lawful for the promoter of the
.Tramway Scheme in Colombo, with the consent or the Govern -
men t , but not otherwise, to sell their vndertaking to any
person, corporation or company (c) .
Land acquisition.-Wben a land is acquired for public
purposes, a certificate, signed by the officer taking possession
of the lan d to the effect that he bas taken possession of tbs,
same for and on behalf of His Majesty, shall vest the title,
in bis said Majesty (d).
The Government Agent may agree to give a Crown land
in exchange for land acquired . In which case a certificate as
above will vest title in His Majesty and a gran~ issued to the
other party in pursuance of the agreement nf exchange will
vest title in the other party (e).
Penal Oode.-Whoever diahonestly, or.fraudulently signs,.
executes or becomes a party to any deed which purports to
transfer or charge any property and which cpntains any false
statement relating to the consideration for such transfer . or
charge is punishable with imprisonment extending to two years
or with fine or with both (f}.
(b) Seo. 14 of 22 of 1871.

(al B~o. 4 of l of 1862.
(bl Seo. 13 of 15 of 1862,
{cl Beas. 12 and 13 of 10 of 1863.
(d) Seo. 17.
0
(e) Bea. 2 of 12 of 1864,
(/) Bee. 48 of 16 of 1965.
(g) Bees, 81, 82 and 83 of 4 of 1867.
(c) Bea. 18 of 5 of 1873,
,d) Beas. 12, 1-3 of 3 of 1876 and 18 of 1904, Seo, 2.
'(e) Seo. 46 (2) (c) & (e) and 25 of 1912, Seo. 2,
(fl Seo, 406 of 2 of 1883.
 CH, VI.-THE CEYLON ORDINANCES.
. .
Whoever commits forgery or makes a false document or
uses as genuine a forged document or fraudulently cancels ~r
destroys a will or other valuable document is punishable
with varying sentences (a).
Dangerous wells.-When the proprietor of anyJand where-
On a well or artificial pit required to be fenced is. not ascertain-
.able, tbe wail or pit may be fenc(1d and for the costs, after due
notice, the land may be sold by the Government Agent or
Assista.nt Government Agent and a Oe~tificate from that
Officer shall vest the title in the purchaser free from . all
encumbrances (b).
Abandoned lands.- When any land originally alienated by
the Crown have been abandoned by the owner thereof for
eight years or upwards, the Crown may resume the land
.after due publication calling upon owners to prefer their
-claims (c).
No informality shall invalidate the title of the Crown to
any land so resumed. The owner may however claim the
,appraised value within 3 yea:rs of the notification of the
resumption. Others affected may claim damages (d).
All treasure trove shall be the absolute property of His
Majesty. The finder is entitled to the value of the material
-of. such treasure trove together with an additional th of its
value (e).
Antiquitie!! such as statues, inscriptions, &c., shall abso-
fotely vest in the Crown. The other findings go by shares,
i.e., Crown rd, finder rd, owner of land rd (j).
Guarantee Ooy.-If any Mutual Guaiantee Association or
public Company had given security and if there had been a
breach of the condition, and if the, Association or Company
la) Seo. 452 onwards.
(b) Seo, 12 of 27 of 1884.
'(c) Secs, 1 and &lb! 4 of 1887.
(d) Bees, 9 and 15,
le) Seos. 2 and 6 of 17 of 1887 and Seo, 5 of 3 of 1891,
If) Bees. 3 and 4 of 15 of 1900,
_CH. VI.--THE ' CEYLON ORDINANCES. 93.
had paid the amount claimed, the bond may be assigned to the
Association or Company. The assignment is made by the
Coloniai Secretary by endorsement on the bond or otherwise
as he may think fit. Shamp, as for an ordinary assignment,
p11,yable by the Assignee (a).
These bonds are discharged by a certificate from the
Colonial Secretary with effect that there is no claim against
such officer (b),
Waste land.-All forest, waste, unoccupied or uncultivated
lands and chenas are presumed to be the property of the
Crown (c).
Cattle voucher.-Cattle are sold or transferred on a
voucher certified by an officer appointed for bhe purpose (d).
For subsequent sales fresh vouchers are required .
Endoreement on the old one will not be enough (e).
Criminal Procedure Oode.-If on forfeiture of a security
bond a warrant issued is for the attachment and sale of pro-
perty beiongiog to a person and immoveable proi,erty is sold
by the Fiscal, a conveyance ex~cuted by the Fiscal shall vest
the property in the purchaser (f).
General cemeteries.-Every sale and disposal of closed
burial grounds without the permission of the Governor shall
be null and void.
Proper authority may sell by deed a portion of any
oemetery for the special use of any religious denominations, i,'l,,
for purposes of burial, building monuments, &c. (g).
The proper authority may sell portions, either in perpetuity
or for a limited time, of the exclusive right of burial in any
euoh portion (h).
(a) Seo. 6 of H of 1890.
(bl Seo, 10.
(c) Seo. 24 of 1 of 1897.
(d) Seoa. 5 and 8 of 10 of 1898.
(e) Bee note to Schedule of 10 of 1898,
(/) Seo, 411-A of 15 of 1898 ; Seo. 4 of 24 of 1906.
(g) Seo, 12 (1) of 9 of 1899.
(h) Seo. 20.
 CH. VI.-THE CEYLON ORDINANCES.
94.
Every assigoment of an exclusive right of' burial shall be
-valid if executed before one or more witnesses (a,).
Any leper detained in a leper asylum may get the District
Court to appoint fl. Maoager to administer his property. The
property of the leper shall vest in tbe Manager in trust for the .
leper. Ile may leaee property for five years. Ile may not sell
or otherwise deal with property without an order of the
Court (b).
Forest Ord.-A certificate signed by the Government Agent
. -o f the sale of a land for the recovery of any money due to the
Crown under the Ord. shall vest title in the purchaser free
from encumbrances (c).
.Excise system.~The grantee of the exclusive privilege of
any country liquor may, with the approval of the Government
Agent, let or assign, the whole or any portion of the privilege.
(Stamps as for a transfer) (d). ' land is given to secure (i) future advances, or (ii) the floating
A form of assignment as aproved by Government is
found in anbther chapter.
Gift to Orown.-If in case any proceedings are taken for
the acquisition of any land for any public purpose and if any
person desires to make a free gift of the land to His Majesty
and to renounce all alaims for compensation therefor, a record
in writing signed by such person in the presence of the officer
buying shall vest the land in His Majesty (e) .
Irrigation Ord.-On seizure and sale of a defaulter's land,
a certificate granted by Government Agent in form given in
Schedule shall vest title in the purchaser free from encum-
brances. (Stamps as for a conveyance) (/).
Mortgagees may be noticed on the addresses registered
in the Kachchery by the mortgagees. They may pay the
(a) Seo. 25,
(bl Secs. 14 and 20 of !l of 1901,
(c) Bee. '12 of 16 of 190'1,
{d) Ord, No. 8 of 1912,
(e) Qr,J, No, 8 of 191!l,
(/) Bees, 69 and '10 of !l5 of 191'1 and 16 of 1906, Bees, !l3 and !l'1
CH. VI.-THE CEYLON ORDINANCE'S. 95
amount due to Goveroment and add that to the amount due to
themselves (a).
Enemy /irms.-Tbe Governor may appoint liquidators
of enemy firms. All their property shall vest in the
liquidators (b).
The liquidators are empowered . to execute conveyances 1
assignments and receipts in the name and on behalf of the
firm (c).
The Controller of tbe firm of Messrs. Freudenberg & Co .
was appointed by the- District Court of Colombo to have all .
the powers of a liquidator under this Ord. (d).
The Governor may by proclamation in the Gazette declare
that a conveyance executed shall convey absolute title free
from encumbrances (e).
Mortg1ige for future advances.-Where a mortgage of
balance from time to 'time due upon any account or (iii) a
contingent liability arising out of a particular relationship,
such mortgage shall be effective as against any subsequent
mortgage or transfer notwithstanding that no money was due
-on the original mortgage at the date of such subsequent
mortgage or transfer. This shall not affect 'the effect of prior
registration(/).
Estate Duty Ord.-Property disposed of by the deceased
b.efore 6th Dec:ember 1918 or more than three years before liis
death shall not be included in the Estate of the deceased for
. purpose of Estate duty (g).
Estate duty is not payable in respect of propedy disposed
of bona fide for full valuable consideration (h).
Estate duty shall be the first charge on all immoveable
,property of the deceased.
(a) Bee, '12 of !l5 of 191'1, (e) Bee. 45 uf !l of 191'1,
(b) Secs, 2 and 3 of 20 of 1916. (f) Secs, 1 nnd 3 of 8 of 1918,
(c) Sec, 5, (g) Sec, 8 (2) of 8 of 1919,
{d) Bee. 8, (h) Seo. 9,
,98 CH. VII.-KANDYAN LAW.
But Ord. No. 7 of 1865 makes no exception in the case
of Kandyans and the age of majority therein mentioned is 21.
.Disinhe~ison.-Tbe law recognised the right of a person
to disinherit his heir for sufficient cause by deed or ,will (a).
An act of disinherison is deemed invalid without a regu-
larly executed deed in favour of the chosen lieir, containing the
proper formula of disinheris2n and valid reasons for ~be
procedure, such as failure to render assistance, un~ut1~ul
conduct, ill-treatment or, generally, such conduct as 1s dis-
pleasing to the transferor (b).
A deed disposing of property away from heirs does not
require a clause of disinherison, (1) where it conveyed only a
portion of the donor's land or (2) where a hus?and d?nates to
his wife or adopted child or (3) where the heir receives pro-
perty from a different source (c). ~ actually rendered (e),
Sale and mortgoge.-A widow cannot sell, . but may,
urgent necessity, mortgage her husband's ancestral lands
during the minority of her children (d) .
The widow may sell her husband's acquired property to
pay off his debts (e).
A Buddhist priest may acquire property or inherit from
collateral sources. He cannot inherit from bis father and
mother(/).
Sale of lands worth over Rs. 50, to a Buddhist temple
whether in existence or not, is bad (g).
(a) Modder 128.
(b) Arm, 98 ; M. 130-133,
(c) Modder lU-148,
(d) Armour 19 ; Bawers 31 ; Marshall 359 ; Mo'.lder 294,
(~) Manika v, Horetala, (1894) 3 B, C, R. 16'1 ; M, 301 ; Malhamy
Appuhamy, 4 Leader 36.
(I) M. 415, 411, 511.
(g) Th~ King v, Gooneteleke, 1 C, W. R, 116,
MARITAL RIGHTS. 99
The delivery of a deed to the grantee is necessary to
render it effectual (a).
Earnest moriey or " Attikaram " is recoverable with inter-
est in case the vendors sell the property to a third party (b) .
Gift and trcmsfers.-A deed for assistance is a gift in
which the chief condition is that the donee or his heirs (not
necessary personally) shall administer to the wants of the
donor up to the death of the latter (c).
In all transfers for assistance to be rendered (i. e., execu-
tory), the condition must be shown to have been faithfully and
strictly performed (d).
A deed for assistance is revocable at any time by the
donor subject to compensation to the donee for services
The last donee of lands, fo r assistance to be rendered, has
the preferent claim (e).
A purchaser from the original donor, after a deed of gift
h as been formally revoked, obtains a good t itle as against the
purchaser of the donee's interest in the land (f).
Purchase (Ka.ndyan L aw) .- By proclamation of 14th
July, 1821, the rights of seller of land in the Kandyan
Provinces to re-purchase during his life has been done
away with. He may however expressly stipulate for the
reservation of the right to re-purchase in the deed of. sale
.and such reservation shall not be valid for a . longer period
(a) Modder 105. See also 6apalhamy v . Kirry Ettena, (1844) Morgan,
S, 371, 124 ; Punohi Nilame ,v, Dingiri Etana, (1909) 1 Cur, L.R, 239.
(b) Modder, 107; Armour, 112, Bee also Perera v. Silva , I! L .L.R, 48.
V,
(c) Modder, 11'1, ll8,
(d) Modder, 122.
(e) Modder, lll6,
(/) Modder, 16'1,
.

100 OH, VII.-KANDYAN LAW,
than three years from the date of the deed and it shall not;
extend to the heirs of the seller.
A deed of gift is revocable by the donor at his option_ at
any time, ~nless there is some circumstancel clearly appearmg
on the face of such deed to rer;ider it irrevocable (a).
A re;ocable deed of gift becomes null and void under th e
following circumstances : .
(1) If the donor did, by a subsequent deed, revoke the
f ormer deed (b).
(2) If the donee failed to fulfil the condition of the gift,
whether such failure resulted fro af'p overty or wilfu eglec~ or .
in consequence of his having been de~ rived of his liberty, or
having been removed to a. distant place by authority (c)
(3) If, by reason of neglect or ill-usage on the part. of t~e
donee, the donor resumed possession of the land specified ID
the deed and refused t~ receive assistance from the donee any
longer(d).
(4) If, having ca.use to 1:?e dissatisfied with the tre~tment
which he received from the <;lonee, the donor did, of his own
accord, quit the donee's premises 1!-nd did afterwards take u~
quarters elsewhere, and receive t a.nee a. nd support
a8s18 . unttl
bis death from some other person or persons, albeit the donee ,
held possession of the lands in question in the meantime (e)..
(5) If the donor, subsequent to the execution of the deed
of gift, has children {f).
The following deeds a.re irrevocable":
(1) ' A dead in favour of a Buddhist priest or temple or for
apy religious purpose (g).
(al Sundra tJ. Feris, (1878) 3 C.L.R, 81 ; .?tfodder, 102 and l54.
{b) M, 185 ; Arm, 91.
(c) M, 192.
(d) M. 193 ; Arm. 91, 92,
() M, 19i ; Arm, 92.
{I) M, 195 ; Arm. 102.
(g) Arm. 95 ; M, 173,
MARITAL BIGHTS, 101
(2) A deed in return for favour and assistance already
Tendered expressly deba.rring the dorior and his heirs from the
right to revocation (a).
(3) A deed of gift stipulating that the donee shall pay all
the donor's debts and also render him assistance during the
remainder of his life, if the condition precedent is fulfilled and
the deed contains a clauge of renunciation of the right to
,revoke (b).
(4) A deed bv a husband to a first wife a.ud her children
before he contracts a second marriage (c).
(5) A deed of transfer oi land to a public functionary in
lieu of a reward that was actually due (d).
(6) Unconditional donations of moveable property, such
,a s cattle, goods or money (e).
Service tenure-Ord. 3 of 1870.-Certain tenants wer
bound' to render certain services to certain proprietors of lands
in the Kandyan Provinces, so long as they continued -tenants
-of such lands upon such tenures (/).
Such services may be commuted for-a. money payment (g).
The tenants a.re ca1led "Nilakaraya.."
The commuted dues is the "head rent " (h).
Such lands a.re called " Pa.ngu " which is either '' Para-
vane pan u," held in perpet~ity, or '' MarU\'.!:l_ij.!!.J)_!!~g_u,"heid
.at will.
Proprietors are either (1) .Nindagama proprietors, i.e.,
,absolute proprietore of the village-Ninda.=unenoumbered-{i)
,o r (2) Wiharagama proprietors or Dawe.la.game. proprietors.
Wihara or Dewa.la=temple. Such proprietors include the
officers of the temple.
(a) M, 174, (/) Preamble,
(b) M, 179. (g) Seo. 14,
(c) M. 182 ; Arm, 95. (h) Seo, 15.
( ) Arm, 94; M, 184. (i) Perera'e Kandyan Law, 143.
(e) M. 185 ; Marshall, 3~1, 46,
102 CH. VII.-KANDYAN LAW.
A tenant cannot be ejected for failure to render personal
services or to pay the commuted dues (a) .
Service paravaney lands were declared by Ord . No. 3 of
1852 as capable of being alienated by gift, sale. devise or
other act or of being ch arged or encumbered.
A person who esweddumizes a land, does not f\cquire-
any interest therein, in the absence of a Notarial agreement (b) .
An esweddumma is land converte:1 foto low land as a
paddy field more reeently than the original field . There was
a custom of cutting down a strip of high ground immediately
adjoining it and converting the same into low ground ..
Singha.Iese Es= border ; waddamuwa= to drive into (c~.
Paravaney means ancestral property distinct from one's
acquired property (d).
Sannas (from Singha.Iese San= name, as = seal also sign}
was a grant froni the king usu~liy upon a piece of metal. with
the king's signature (e) .
Dewala (Dewa=God ; ala= house) is a templG (f).
Wihara (lit.=to dwell) ; a Buddhist place of worship, a
temple wherein there is some relic of Buddha. It is distinct
from II Pansalla," which is only a residence of a Buddhist
Priest. To the former are attached lands and other valuable
treasure (g}.
Waddale panalin sittu (Waddala= dacla.red, pancitin =
by order, sittu= a writing) a kind of grant inferior to thaf of
Sannas only from its being not signed by the king but by his
prime , ministers (g).
(a) Beo, 25 ,
(bl M. 218 ; Dionis v, Lewis, (1910) 5 Bal. 6.
(c) M. 207 and Perera, 189.
(d) Perera's Karidyan Law , 148.
. ( s) Ibid 144,
(/) Perera 140,
(g) Perera 145,
I
. '
CHAPTER VIII.
BILL OF SALE AND HIRE-PURCHASE.
I .-Bill of Sale.
A TRANSFER of the legal property in personal chattels may
be either an absolute assignment by way of gift or sale, or an
assignment by way of. mortgage or security only ; but in e ither
case when a written doeument of ani sod is usea' to effect .
11
the transfer the document is t~hni;;:JJ!y ~-;;:lled . Bill ~f
Sa~e " (a).-
The w~ ds " Bills of Sale " shall include ills of Sale,
'I- assignment@ transfers~ eclarations of trusts without transfer
and other assurances of moveable property and also powers of
attorney and authorities or licenses to take possession of
persona.I property as securi ty for any debt (b) .
No Bill of Sa.le of any moveable property shall he valid
' ,' ',
and effectual, unless tile property shall have bee a<!.t ally
d~~ or unless the Bill of Sale shall have been created by
(t) writing and d.!!!L!'.!IBifili.!JJed within 14 days (c).
A registered trade-mark can be assigned only in oonneo~
tion with the good-will of the business concern and is
determinable with that good-will (d}.
On the contract for the sale of any goods to which a trade-
mark has been applied, the vendor shall be deemed to warrant
that the mark is genuine (e)~
(ll) Gibson, 263. (cl) Beo, 12 of 14 of 1888,
(b) Seo, 6 of Ord, No, 8 of 1871, (e) Seo. 16 of 13 of 1888, .'.
(c) Seo, 2 of Ord, No, 21 of 1871.
104 CH. vm.--BII..L OF SALE AND HIRE-PURCHASE ~
11 of 1896-Sale of goods.-Where under a contract of
sale the property in the goods is transferred from the seller to
the buyer the contract is called " sale "; but . where the trans-
fer of the . property in the goods is to take place at a future
time, or subject to somA condition thereafter to be fulfilled, the
-0-;;tract is called "an ag~~nt. to sell" (a).
An agreement to sell becomes a sale when the time
.alapses or the con ditions ara fulfilled su,b ject to which the
property in the goods is to be transferred (b).
A contract for sale of goods to be in force, t~ buyer
should have actually("receive:i part of the goods or (p aid the
price (part or whole) or there should have been ~;\writing
duly sign ad (c).
Existjng or future goods may be sold (d).
The price may be agreed to be fixed by th() valuation of
a third party (e).
Unless a different intention appears from the terms of
the contract, stipulations as to time of pay~ent are not deemed
to be of the essence of a contract of sale (/).
A stipulation may"be a condition though called a warranty
in the contract. The breach of a condition repudiates a sale,
but the breach of a warranty gives rise to a claim for
damages (g).
Payment and delivery are concurrent conditions (h).
Warranty means an agreement collater_al to the myi.in
p_urpose of the contract (i).
AHhough a Bill of Sale is properly executed, attested and
registered, it is not a perfecb security-(!) The grantor who
remains in possession ma~eat the grantee's right by t:ielling
the goods in market l'e&f;. (2) The goods a.re Hable to
(a) Seo, 1 (3) 1 of Ord, No, 11 of 1896. (fl Seo. 10,
(b) Bee, 1 (4), - (g) Seo, 11,
(c) Bee. 4 (1), (h) Bee. 117.
{d) Bee, 5, (ii Seo. 59.
() Seo, 9,
HJRE-PURCHASE, 105
"""' value..
depreciat(J as (3) If the goods are in the possession of
the grantor in his trade or business and bankruptcy ensues,
the goods will pass to the trustee in bankruptcy of the grantor.
(4) The goods may be taken by way of distress for rent, rates.
and taxes and so lost to the grantee (a).
Form of a Bill of Sale.
Know all men by these presents that A.B. of--,in consi-
deration of the sum of Rs. 500 now paid to him by C.D. (the
receipt wl:Jereof is hereby acknowledged) doth hereby assign
unto C.D., his executors, administrators and assigns all and
singular tbe several chattels and things specially described in
the Schedule hereto annexed by way of security for the pay-
ment of the sum of Rs, 500 and interest thereon at the rate
of 12 per cent. pet annum.
And the said A.B. further agrees and declares that he will
duly pay t;o the said C.D. the principal sum aforesaid together
with the interest theree>n due.
In witness whereof the said A.B., &c.
. Schedule referred to,
11.-Hire-purchase.
Hire.-By a contract of hire in relation to goods is meant
an agreement whereby one person (called the owner) lends to
another person (called the hirer) goods for use for a period,
fixed or unfixed, at a rent (b),
Hire-purchase .-By a contract of hire-purchase is meant
a contracb , which, in addition to the terms of hire, provides
that on the payment of _rent for a certain period, or for a,
certain number of times, or on the payment of a certain sum
after such payment of rent, the property in the .goods hired
shall pass from the owner to the hirer. In other words, a
contract of hire-purchase is a contra.ct of hire with an option
of pu~~~e (c). - - --
(a) Gibson, 294, (b) Cassel, l. (cl Cassel, !l.
1'
106 OH, VIII.-BILL OF SALE AND HIREPUBCHASE.
Payment by Insta.lments.-By a contract in whicli th&
price of goods sold is to be paid by instalments is meant a
contract of sale whereby the property in tbe goods passes to
the purchaser at the time the agreement is made. Such a con-
tract has none of the features of a hire or hire-purchase
agreement (a).
Option to Buy.-Where there is no legal obligation on the
part of the hirer to buy, but only an option to buy, which
may be exercised on the happening of a certain event (e.g., the
payment of rent for a certitin period, or the payment of a
certain surn afbet the payment of rant for a certain period, or
the payment of rent which amounts to a certain sum), and
the hirer has power to return the goods hired at any time._
then such an agreement is an agreement for hire only and not
one in which the hirer has "agreed to buy " (b).
Bona fide Hire-purchase Agreement not a Bill of Sale.-
A real hire-purchase agreement does not require registration
M a bill of sale. The hirer, who is the person supposed to
give the bill of sale, h~s no property in the goods, and is not
the owner of them, and the agreement therefore cannot, in
substance, be regarded as a bill of sale fc).
Assignment by owner not a Bill of Sale.-If an owner
assigns his rights under a hire-purchase agreement, it is merely
an assignment of a benefit of a contract and does not require
registration as a bill of sale. If an owner assigns the goods
themselves for security of a loan, then such a transaction
requires registration (d).
Hire-purchase Agreeme~t of Pianoforte (e).
An agreement made the--day of--Between (A. BJ
of etc, (hereinafter called the owner) of the one part and
[C. D.] of etc. (hereim\fter called the hirer) of the other part
Whereby it is aiireed as follows:-
1. The owner shall let on hire and the hirer shall take a.
pianoforte bearing the name of--and No.--upon the terms
and conditions following.
(a) 011eeel, 2, (cl Cassel, 28. (e) Cassel, 112.
(b) 011ssel, 25. (d) Cassel, 30.
,.
HIREPUROHASE . 107
2. The hirer shall- _.
(a) pay for the hire to thti owner so Jong as the hirer
thinks fit to continue the' hire the sum of Jl--per
quarter in advance, the first quarterly payment to
be made on the signing hereof and the payment for
each subsequent quarter to be paid at the expira
tion of each succeedi1;1g period of three calendar
months.
(b) keep the sai~ pianoforte in good and substantial
order (damage by fire included) in his own custody
at his address as given in this agreement and shall
not sell, remove or _p art with the possession of the-
same . without the previous consent in writing of
the owner.
(c) permit all persons authorised by the owner at all
reasonable times during the hiring to inspect the-
condition of the said pianoforte.
(d) have the pianoforte during the hiring properly
tuned not less than twice a year.
(e) duly and punctually pay the rent, rates and taxes
payable for or in respect of the premises wherein
the said pianoforte may for the time being be and
produce the receipts therefor to the owner on
demand.
3. If default shall ~e made in the punctual payment of
the hire instalments speci~ed above or if the hirer shall not.
observe and p:irform all and every of the terms and conditions
of this agreement or shall suffer or do any act or thing where-
by the owner's right shall or may be prejudiced, it shall be
lawful for the owner to resume possession of the said piano-
forte and for sucb purpose to enter into or upon any premises.
occupied by the hirer.
4. The hirer may put an end to the hiring by returning
the said pianoforte at his own cost to the owner.
5. If twelve quarterly payments shall be duly paid by
the hirer in manner hereinbefore provided, the said pianoforte,
108 CH. VIII,-BILL OF SALE AND HIRE-PURCHASE.

shall become the property of the hirer, but until such

.p ayments shall have been made in full the ~a.me shall remain
t'he property of the owner .
. 6. If the hiring is determined by the owner or by the
hirer in manner hereinbefore provided, all hire and damages for
the breach of this a.greemen"t up to the date of such determ'ina.-
tion shall be pa.id by the hirer. to the Qwner and no payment, CHAPTER IX.
credit or allowance in respect of payments previously made
,shall be made or allowed 0 the hirer, , CONOITIONS OF SALE.
!.-Auction.
In witness, etc.
AN auction is a sale by competition, where the highest,
(Signatures of l;oth parties). bidder is the purchaser ; but to _qqnstitute a sale by auction it.
. is not necessary that it should be conducted in ,any particular
" manner (a).
Particulars of a sale by ~uction are, a description of the,
things to be sold which may be merely a, verbal statement or
. in writing, or there may be plans annexed by way of expla -
nation {b).
. Upon a sale by auction, the .property which is the subject.
of the sale is usually described in printed particulars, to which
a.re annexed conditions specifying the terms and condition&
subject to which the sale is to be made.
The purpose qf the conditions of sale is to set out the
terms on which the property is to be sold.
In fra'ining them, two objects should ,he kept in view, viz .
. (1) to save the vendor from unnecessary expense and throw
the costs of investigations, which would fall on him, if not.
otherwise provided, upon the pure.baser ; (2) not to make the
conditions 80 stringent as to .damp the sale and cause pur-
chasers to offer 11, less price than they otherwise would (c) .
An open contract (i.e., ~ontract" without any express
stipulations) is attended by the inconvenience tha.t there will
. ., be no time fixed for the delivery o_f the abstta.ct o( title or for
sending in requisition of title,. or for the completion of the

(a) 1 or: 488. (b) 1 Or, 44~. (c) Gibson, 48.

..
, .
 CH. IX.-OONDlTIONS OF SALE,
llO
purchase ; there will be no arrangement as to taking possession,
11,s to payment of interest on purchase-money or as to rescission
of the contract or compensation for mistakes in the. description
of tbe property.
The conditions of sale are therefore so framed as to obviate
those inconveniences and to relieve the vendor wholly or
partially from the obligations which a.re implied against
him (a).
We will now shortly consider the clauses which are most
commonly to be found in conditions of sale, viz. :-
CLAUSES :-(a) As to biddings.-Tbe highest bidder shall
be the purchaser ; and if any dispute arises as to any bidding,
the property shall be put up again at the last undisputed
bidding. Tbe amount of advance at each bidding shall be
regulated by the auctioneer and no bidding shall be retracted.
lNOTES.-The stipulation as to retracting . bid3ings is
probably not binding. on the purchaser. The purchaser's bid
is an offer, which like any other, may be withdrawn before
acceptance and, until the fall of the auctioneer's hammer, there
is no acceptance on the part of the vendor (b) .
(b) As to deposit.-The purchaser shall immediately after
the sale pay to the auctioneer (or to the vendor's solicitor) a
deposit of ten per cent. on the amount of the purchase-money
and sign a,;; ~greement in a foi:m subjoin~d to the conditions
to complete the purchase according to those conditions (c).
N OTES.-Where it is provided that the deposit shall be
paid to the auctioneer, tbe latter holds it as a stake:-holder and
must not pay it over to either party without the consent of the
other, even though he signs the conditions of, sale as the
vendor's agent. Where however it is paid to, the vendor's
solicitor, as is sometimes the case, the latter is not a
sta.k~, holder, unless made one by the conditions of sale, but
-a.gent for the vendor and must pay it over to the latter on
dema~d and the purchaser has no claim against the solicitor
so paying it (d) .
(a) Gibson, 56, (c) Gibson, 58.
{d) Ellie v, GouHon, (1893) 1 Q,B, 350,
(b) Gibson, 67,
AUCTION. Jll
The objec t of requiring a deposit is not only to secure a
part payment of the purchase-money, but t_o bind the pur-
o~a_~~r Ji?___!l<:>_!llplete. Accordingly, should he fail to complete
withm a reasonable time, he forfeits the deposit, even in the
absence of expi:ess stipulation to that effect (a,) but it is
usual_ and _advisable ~o state expressly that be shall forfeit, if
.
he fails to comply with the conditions (b).
If a sale goes off owing to the vendors not being able to
make a good title, the deposit will have to be i-eturned to the
purchaser and, in tbe absence of s~ipulation , when a deposit is
returnable, interest on it must be paid (c).
. If the purchaser makes defaul~ in completing and the
vendor :1'e-sells, the deposit must be taken into account in
oonnect1on with any deficiency in price there may be (d).
(c) As to identity.-Tba purchaser shall not require
oilier ev1d ance o fth
e identity of the property as descr-ibed~Yin
the particulars with the property described in the abstracted
d.ocu~ents than ~bat a~orded by a comparison of the descrip-
hon ID tbe particulars and documents respectively and
statutory declaration or affid avit by the vendor ~r som: '
other
t h' person which will be furnished to him if he re qmres 1t ,
a 1s o~n expense, that tbe property has been held consist-
ently with the title shown by the abstract during tbe last
10 years or more.
NOTES.-ln the absence of stipulation to the ' cont
th d . rary,
e ven or ts bound to furnish evidence of identity (e).
. (d) As . to tenan~ies and easements.-The property is sold
subiect
. to aJ.l .tenanc10s, land tax and tithe , rent -c h arge, an d
rights of way, water and other easements (if any) affecti~g
the same.
(a) Hall v. Bunull, (1911) 2 Oh, 551.
(b) Gibson, 58,
(c) Jacob v. Revell, (1900) 2 Ch, 858,
(d) Shuttleworth v. Clews, (1900) 1 Ch. 176 Gibson 59
(e) Gibson, 61. ' '

112 CH. IX.--CONDITIONS OF SALE.
NOTES.-This condition does not relieve the vendor from
the obligation of disclosing any easements or restricted cove-
nants or other outstanding interests or burden, derogating from
absolute ownership of which he is aware, nor of disclosing:
particulars of any lease of the property (a).
Land taxes and tithe, ren't-cha.rges are not regarded as
incumbrances, so that the purohp.ser takes subject to them.
although nothing is said about them (b).
(e) As to compensation for misdescription.-The descrip-
tion of the property in the particulars is believed and shall
be deemed to be correct, and no objection shall be made or
compensation claimed, on account of any error in qua,ntity,.
should such be found . If any other error or omission in the
particulars sha.ll be discovered, the same shall not annul the
sale; but, provided the same be pointed out before completion,.
compensation shall be allowed in respect thereof to, or by.
'the purchaser as the case may require, tbe amount to be
_settled _in case of difference by.two referees, one'to be appointed
by ea.oh party, or by an umpire to be appointed by the two
referees before they proceed in the reference.
NOTES.-This condition is construed as having reference- .
to a misdescription of the physical property, not to a mis-
description of the title such as the description of an underlease
as a lease (c). Nor does it apply to defects of title (d).
In fact , the condition is not so formidable as it looks ; for
it does not preclude a purchaser who is resisting specific-
performance from claiming compensation or rescinding the
contra.ct in oases where he would be entitled to do so under
an open contract ; and it is only effective to deprive purchaser
of any right to compensation when he is insisting on speoifio
performance with compensation ; ha is then bound by the
condition (e).
(a) Cabellarov, Gents, (1874) L.R, 9 Ch, App, 447,
(b) Gibson, 62,
(c) Re Byfus Masters, (1888) 39 Cb, D. no.
(di Debenham v. Bewbidg, (1901) 70 L;J. Cb. 525,
(e) The Terry and White's Contract, (1886) 32 Oh, D. 14 at pages ~4
and 30; Gibson , 63.
~U SL! C
JAt ; ,, A
(f) As to time for making requisitions and rescission.-All
objections and requisitions in respect of the title or 6Vi~~nce
of title or the abstract, or the particulars or these oond1t1ons
; any~hing appearing therein, shall be stated in writi?g _and
0
sent to the vendor's solic~tors within ~ j _ays from the dehvery
of the a.bstra~. "Any objectjon or requisition not sta.ted and
not sent within the time aforesaid, shall be considered waived,
and the vendor's answer to an objection or requisition shall be
considered satisfactory, if not replied to in writing within ten
de.vs from the receipt tliereof and in these respects time shall
be-deemed of the essence of the contract. If the purchaser
shall make any objection or requisition in respect of _any of
the matters aforesaid or as to the conveyance, which t_he
vendor shall be unable or unwilling to remove or ,comply w~th
and shall not withdraw the same within seven days after bemg
required so to do in writing, the vendor shall be at liberty, by
notice in writing, to rescind the sale in which case the purcha-
ser shall receive back the deposit and shall return to the
vendor the .abstract of title and ~ny other papers in his posses-
sion belonging to the vendor : but he shall have no claim for
interest or costs or otherwise (a).
NoTES.-The condition II time shall be the essence of the
contract'' does not preclude he purchaser from subsequently
objecting that the vendor has no title at all.. It _only refers to
defective title which might be made good 1f oh1ect1ons were
taken (b) .
The maxim of II caveat emptor.' ' applies in the sale of a
public sale : By it is meant-Let the purchaser beware; No
one ought in ignorance to buy that which is the right of
another (c).
{g) As to completion cf the purchase.-The remainder of
the purcha; e-money shall be paid, and the purchase shall be
completed on the-day of-next at the office of--
- ( t h e vendors' solicitors) and if, from any cause whatever.
other than the wilful default of the vendor, the purchase shall
(a) Gibson, 66 ,
(bl Want v, 6tallibrass , (1873) L. R. 8 Es, 175,
(c) Wharton.
15
 114 CH. IX.-COMDIT!ONS OF SALE. PRIVATE CONTRACT FOR SALE. 115

be @mpleted on that day, the purchaser shall pay to the . o re-sell on purchaser's default.-If
(i) Power for ve nd or t ly with these con-
vendor interest after the rate of---per cent. per annum on h U eglect or fail to comp
the remainder of the purchase-money from that day until the the purchaser s a n f f t d 1o the vendor, who shall
-ditions, his depos~t shall be dor _e1ge a conveyance to the pur-
completion of the purchase. The purchaser shall be entitled
be at liberty ( without ten eri;h by public aucbion or pri-
to the possession of the prnperty from the said---day of
chaser) to re-sell the pro~ertyte1 t~r to the present purchaser
----next, all outgoings up to that day beig discharged t with or w1tho11 no ice
by the vendor. Current rent and outgoings (if any) shall be va,te con t rac , d fi . if any arising on th:e
t s le and the e Clency, '
apportioned for the purposes of this condition, and any money .a,t the presen a ' tt ding a re-sale or attempted
1 d all expenses a en h
payable by or to the purchaser on such apportionment shall . re-sa e, an bl b the vendor froin th!3 pure aser
l'e-sale, shall be reoovera e Y
be paid with or deducted from the purchase -money at the time . .a t this present sale as liquidated damages (a).
of the completion (a).
II II.-Private Contract for Sale.
N OTES.-As to the mean ing of wilful default," Bowen,
L . J., said in Re Young and Horkou's Contract, (1885) 31 Ch. . ta contract for sale of property, the same
D. at p. 174, that default is a purely relative term, just like In. a pr1v~ dition of sale are inserted except the
stipulations as m a, con .
negligence. It means nothing more, nothing less, than not condition relating to the auction. .
doing what is reason able under the circumstances, not doing
The result of a valid contract for the sale of propehrty is
and omitting which you ought to do, having regard to the rela- "b fi . l " owners h ip. passe 8 to the pure aser,
tions which you occu py towards the other persons interested that the ene o1a. . t of the property for him, the
II
in the transaction. The other word wilful" implies nothing
and the vendor becomes a trus ea r n Or! tlie
. . ht to the purchase-money, a ie .
blameable, but merely that the other person of whose action vendor havmg a r1~ d a right to retain possession of the
,p roperty to secur~ it .a,1;1
or default the expression is used is a free age nt, and that what
property until it 1s pa10 (b). . .
has been done arises from tlie spontaneous action of bis will. It
n breach of a contract for the sale of land, the mJu~ed
amounts to nothing more than this, that. he knows whab he is
partyU!~1 in general be entitled to aither damages or spec1fio
doing and intends to do what he is doing and is a free agent (b).
.p erformance (c).
lh) Vendor to make assurances (i.e., to execute deed).
l a pe~stlond who
A broker who introduces to his prmo1p~ is
t his
Upon payment of the remainder of the purchase-money at the
. . t ' nto the contract is ent1 e o
time and place aforesaid, the vendor and all other necessary able a~d _w1lbng t; ei; e;h~ negotiations should fall through
parties (if any) shall execute to the purchaser a proper assur- comrrnss10n, eve h' h the broker has no con-
ance of the property, such assurance to be prepared by and .owing to circumstances over w 10
at the expense of the purchaser, and the engrossment thereof trol (d).
to be left by him at the office aforesaid not l~i,s than seven At an auction sale of certain land, the plaintiff became the
days before---day of---. . . r cent of the purchase-money
purchaser and depoda~tt~a :e:t:ale These provided.inter alia
NOTES.-This condition will not throw on the purchaser in terms of the con l ion .
the expense of obtaining the concurrence of necessary par-
ties (c).
(a) Gibson, 75,
- - - - - -- - - - - -- - -- - - -- - --
(a,) Gibson, 69, (b) Clarke v. Ranverz, 2 Q. B, at P 462
(b) Gibson, 70.
(c) Gibson, 82-88.
(c) Re Sandar and Walford's Contraot, (1900) 83 L.T. 316. r R ' 8 5 ' 4 Leader 43,
(d) Ferera v. Boysa., 13 N J,
 116 CH, IX,-CONDITIONS OF SALE. 11'1
CONDITIONS OF SALE.
" the.t from any ce.use whe.tever the completion of the pay- In the absence of fraud or of an express warranty_ of title.
ment of the purchase-money she.II be dele.yed beyond the 17th the only primary obligations resting on the vendor of im~ov~:
September, 1912, next, the vendor shall be entitled to 'interest
able property are to give the purchaser " vaoan~ P~:e:~io:~Y
or to re-sell the property at the risk of the pur- ~
tha t is to say possession unmolested by the ola
chaser . ." and that should the purchaser neglect or fail ' . t Id and to warra.nu
Ot her person in possess10n of the proper Yl!O ' ' h.
to comply with these "his deposit money shall be thereupon .
d defend the title which he conveys, a, fter the
. pure
, a.ser,
forfeited to the vendor." Owing to certain difficulties of the ::ca placed in possession, has been judicially evict.ad ta).
plaintiff's notary in drafting out the form of conveyance, no
offer to pay the balance J?Urchas8cmoney . was made until the At a. Fisoal's sale C., the own~r of a certain land, I bi!
20th September, when the plaintiff's proctors wrote to the for and was declared the purchaser of a. share of that an t
defendant to make good the purchase-money. The plaintiff for R s. 3 1 He did not complete his purchase, and the nex
h There was no
brought this ll,ction to compel the defendant to execute the con- h"ghest bidder D. was declared the pure a.ser.
veyao,ce or in the alterMtive for the return of Rs. 1,095, paid i "d that D was indu'ced to bid for the property by anyO-
evi ence Th Jud e held that .
as deposit and for auctioneer's commission and for damages.
~~e
0
:~::1:~~~ :a:r::~dtoo~u: : : O~hare eand :void litigation,
Held, that the conditions did not. provide that time was
to be of the essence of the contract, several of the conditions but fi~ding the price too mucha.bandonetl the purchase.
contemplated in the contract being still in force although com- . no evidence
H Zd that there bemg . th a. t w hat C. did musb.
pletion m~y be delayed beyond the 17th September. necess:ril~ have influenced bidders a.t ~he sal~ 0 . . w_a~ ooh
That, consequently, the defendant was not entitled to estopped from aenying D.'s title (b). .
forfeit the money in deposit (a) .
Wh sale is held by public a.notion uncier a~- ~rcter
A purchaser of a land at an auction who signs notarially ere a h b adm101stra.-
of Court, there is no objection to a ~urc ase Y an heir
attested conditions of sale agreeing to complete the purchase
tor of his intestate's property even if he be not an .
is not entiUed to withdraw from the sale on the ground of any
defect of title of the vendor ; in the absence of fraud on the, An objection on the ground that it is a purchase by an
part of the vendor, and of an express warranty of title, he is administrator is open to the heirs (c).
only etitled to get vacant possession.
The defendant caused a. land to be put up for sale by Conditions of Sale.
public auction, and plaintiff became the purchaser, and signed Sirnple Form.
notarial conditions of sale agreeing to complete the purchase. The conditions of a sale, to be h eId on the - d
. a
l y of
of
Thereafter plaintiff, alleging that the defendant's title was --1909 a.t---, of a piece of land the partiou ars
defective, claimed in this action .a refund of the sum paid by which is given below, are that:-
him as auctioneer's charges and other expenses incurred l:iy (1) The highest bidder shall be the purchaser.
him in investigating the. title,
Held, that plaintiff was not entitled to decline to accept (a) Jamis v. Suppa Umma et al, (1913) l 7 N . L . R . aa ; 3 c. A, C,
vacant possession on the ground that bis vendor's title was UO, [Full Bench.] C 183
defective. (b) De Silva v. Kala Appu, (1910) 2 Matara
ases, .h b'
. .
(c) Abeygoonawardena v. S1nwar d ene, Fisoal's Arao o t, (1906). i
(a) Davoodbhoy " Fernando, (1916) 2 C. W, R. 171.
Matara Cases 58, .
 us CH, JX,-CONDITIONS OF SALE.
(2) The_ purchaser shall immediately after the sale pay
to the auctioneer a deposit of .. per cent. upon the-
amount of his purchase-money, and sign an agreement to
complete the purchase according to these conditions.
(3) The remainder of the purchase-money shall be paid
e.nd the purchase shall be coqipleted on the--day of--
next.
,(4) The property is sold subject to existing tenancies .
and to all eas_e ments (if any) affecting the same.
(5) The description of the propedy is believed to be,
correctly stated in the parbiculars ; but if any error shall be,
found therein the same sp.all not annul the sale, nor shall any
compensation be allowed in respect thereof.
(6) If the purchaser shall f'll.il to comply ;ith these condi-
tions his deposit money shall be fo rfeited to the vendor, who
shall be at liberty to' proceed to another sale.
.....................
Purchaser. the auctioneer his commission at the rate of t-~~ye! _cent.,
Auctioneer.
The particulars referred to
A piece of land, &c. [For description see above] .
Memorandum of Sale or Agreement.
It is hereby agreed between A. B. (vendor) of -and C, D_
(purLJhaser) of--that at the sale by auction held this --day
of--of the property described in these patticulars the said
C. D. was the highest bidder for and has become the purchaser
of the said property for the. sum of Rs. 1,000, and that ha has.
paid to the said A. B. the sum of Rs. 250 as a deposit and in
part payment of the purchase-money, and that these pr..rticulars
and conditions shall be taken as the terms of agreement' for
the said sale and purchase {a):
In witness whereof .we A. B. and C. D., &c.
(a) 2 Pred, 36 ; 1 Key and Elp, 2113,
CONDITIONS OF SALE , ..... AUCTIONEER. 119
Conditions of Sale of Land, under a Mortgage
Decree, by an Auctioneer.
Conditions of sale upon which [auctioneer] by virtue of
directions received from the District Court of Jaffna in Case
No.--will put up for sale by public auction at ~he spot
at--on the--day of---, after previous advertisement,
the property hereinafter mentioned :-
1. The highest bidder sh!lll become the purchaser and in
the event of any dispute between two or more bidders as to
their bids, the decision of the au.ctioaeer shall be final' and the
sale proceeded with .
2. The purch aser shaU immedi~tely after the sale pay
the full amount of purchase where the same does not exceed
one hundred rupees; and where it exceeds that sum he shall
pay one-fourth of the purchase amount to the auctioneer.
3. The purchaser shall also at the same time pay to
the cost of publishing the sale as also the Notary's fees
and value of: stamps for conditions of ea.le, the coet of
drawing conditions, the auctioneer's travelling expenses and
the clerk's fee.
4. Where the pure b ase amoun t exceeds one hundred .
rupees, the purchaser shall furnish two. good_ and sufficrnnt
sureties who shall sign an agreement with him for the pay-
ment of the balance purchase-money on or before the
thirtieth day after the sale ; and should that day fall on a
public holiday or a Sunday, then on the first office day next
following.
5. In default of payment of the balance purchase-
money as mentioned in clause 4 herein the amount . of
deposit shall be forfeited , and such deposit sha_ll be apphed
in reduction of the claim of the judgment-creditor, and the
property shall be re-sold at the risk . of the purchaser and
his sureties, who shall forfeit all claiUJ, benefit and advantage
in respect of this sale and the property and ~ball not
be entitled to any advantage . arising at such re-sale, but
 120
CH. IX.-CONDITIONS OF SALE.
shall be liable in respect -of any deficiency between it and
the present sale.
6. The re-sale contemplated in clause 5 herein shall
take place upon fresh notice as provided for the sale in
Civil Procedure Code.
7. The auctioneer bas the right to reject the bid of
any person if he is not satisfied with bona fides of the
bidder and his ability to _pay the required amount of
deposit ; and he shall continue the sale as if no such bid
had been made.
8. Should the highest bidder, on being declared the
purchaser, fail to immediately pay the required amount and
furnish satisfactory sureties for the payment of the balance,
then the next highes t bidder may be declared the purchaser
and -be called upon to pay the required amount and furnish
.sureties as aforesaid ; and in the same manner the other
bidder in turn; and each person failing to make such pay-
ment and furnish sureties as aforesaid shall be bound to pay
the difference between the amount of his bid and the sum
finally settled at the sale. The auctioneer may, however, in
the event of deiault of the highest bidder, instead of declaring
the next highest bidder the purchaser, immediately put up the
property for sale a.fresh or postp~ne the sale, in which latter
event the property shall again be advertised as previously.
9. If the price for which the property is finally sold at
the second or any subsequent sale is not less than the first sale,
then the money deposited by the purchaser ab the first and
other sale, which preceded the final sale, shall be pa.id to
the execution creditor in satisfaction, pro tanto, of the
judgment ; and _in the event of such judgment being so
satisfied and any surplus remaining, such surplus shall,
after deducting any expenses bonsequeu:t on the sale, be
paid to the judgment-debtor.'.
10. The differences between the biddings of any person
failing to make payment and furnish sureties, 'as mentioned
in clause 8, and the amount finally settled at the sale ; and
CONDITIONS Of SALE .. .... ADMINISTRATOR. 121
also the difference between the a.mount of the final sale and
t he a.mounts of previous sales shall be added to the purchase-
money of the final sale.
11. The auctioneer does not warrant !and defend this
.sale.
12. The purchaser shall pa,y the cost of the transfer
in hiR favour.
The property referred to, &c.
Conditions of Sale by an Auctioneer at the
request of an Administrator.
Conditions of sale of property held on the----day
of - - - b y [Auctioneer] at the request of [Administrator] ,
administrator of the estate of the late C. D . in Testamentary
Ca.s~ No.--D. C. Colombo.
1. The highest bidder will be declared the purchaser. If
'there be any disputes betweerl. the bidders as regards their res-
pective bids the decision of the ----will be final.
2. No bidder will be allowed to bid a less amount than
Rupees ten at each bid or withdraw his bid.
3. The sa.le is determined by the bea.t of the Tom-tom.
Then the highest bidder or the purchaser shall forthwith
deposit with the auctioneer the whole amount of the purchase,
if it does not exceed Rs. 100 and, if it exceeds Rs. 100, he
should deposit one-fourth of the purchase amount together
with a commission of two per cent. to the auctioneer the stamps
and Notary's fees required for the conditions and the adverti-
sing charges. Further he shall pay the administrator within
thirtJL...d.OJJS from the date hereof the remaining three-fourths of
~purchase amount and for the duepayment thereof he ~h~ll
.give two good and sufficient sureties approved by the adm1ms-
trator and also the purchaser and the sureties shall sign the
bereinbelow stated Memorandum of the sala agreement binding
themselves that they shall comply with and complete the said
,purchase in terms of these condHiollS of 11ale.
4. If the pu~ohaser fails to pay immediately the amountr
payable by him or fails to tender the required security the
l6
r

122 CiL IX.~CONDITIONS OF SALE . CONDJTIONS OF SALE .. . ... AOMINISTRATOR.

property will be re-sold starting from tbe bid next below. Description o.f the property above ref;rred to:-
Further the defaulting purchaser will be liable to pay the (Desoribe the property fully) .
deficiency if any but will not be entitled to the excess if any. When the above described land was put up for sale
5. After the whole amount of purchase is paid the by public . auction on the--day o f - - - - one thousand
administrator shall execute and grant a lawful transfer deed nine hundred and---, A. B. of-.- - a s the highest bidder
for the said property in favour of the purchaser at his (the- was declared the purchaser at Rs. 4,000 and the sum of Rupees
purchaser's) expense. one thousand was deposited with the auctioneer, for and on
behalf of the administrator.
6. The purchaser is entitled to enter into possession of
the property he purchased after the whole amount of his pur- This--day of---19
chase-money is paid.
7.The sale will not be held invalid on the ground of Purchaser. Auctioneer.
any error or mistake to the description of the property. Memorandum of the Sale Agreemgnt above referred to :-
s. If the purchaser makes default to pay the three- I, A. B . of----the above-named purchaser do here-
fourths of the purchase amount within the time above set forth by covenant and agree that I shall duly and properly perform
or to perform any part of these conditions, he shall not only my part of the conditions which were read over and explained.
forfeit the money he advanced and all other expenses but the at present by the said auctioneer.
auctioneer shall conduct the sale of the said property at any I [Administrator] covenant and agree to sell the said
time, place and manner at his pleasure and the surplus amount land to A. B. of----for Rupees four thousand according to
that may be realiz ad by the re-sale and the advance money the said conditions.
previously deposited shall be considered as money belonging to
We, E. F. and G. H., both of---do hereby bind our-
the estate of the late C. D. but if there be any deficiency the
selves as sureties for the due performance of these conditions
purchaser aud his sureties shall be liable to pay the said
by the said purchaser.
deficiency and other expenses.
In witneas whereof we the said sevenl parties set our
9. If the p~rchaaer be the special Mortgagee of the pro- signatures to this and to two others of the same tenor and
perty sold the amount of debt will be deducted from the date a~ these presents at----this--day of----one
purchase amount and if there be any residue it must _be dealt thousand nine hundred and
with as shown in the third paragraph, but if there be any [Administrator] .
difference as to the amount of debt between the parties
A.B.,
(creditor and debtor) they shall abide by the decision of the
Purchaser.
_auctioneer.
E. F.,
10. After the sale is completed the property will be at the G. H.,
risk of the purchaser and if there be any loss to it by accident Sureties.
the vendor is not liable. Signed in the}
presence of us
Conditions Approved. (Witnesses).
. This-- " day of--191 Notary Public .
(Auctioneer) . [Attestation by Notary].
 124 CH. IX.-CONJ?ITIONS OF SALE,
Conditions of Sale-Waste Land Ordinance.
Govt. Form.
Conditions on which the hereinafter mentioned Waste
Land belonging to the Crown, that is to say, an allotment of
Cro~n Land, Lot No.----, called----situated at
-----in----containing in extent acres----is put
up for sale by Public Auction on 15th June, 1922.
Highest bid,
1. The said Land shall be' sold to the highest
bidder, provided that the sum off~red by him shall
at the least amount to the upset price of Rupees
fifteen per acre.
Aooeptanoe of 2. No such bidding shall be finally accepted
-bid-deposit.
un Iess th e person ma k'mg the same shall, on being
declared the highest bidder, immediately pay to the
Government Agent a deposit of ten per cent. on the
purchase amount of the said Land, whether he has
made a previous deposit or not, and also unless the
said person shall, on being declared the highest
bidder as aforesaid, sign these Conditions of Sale.
Payment of
balance.
3. The purchaser shall pay to the Govern-
ment Agent within one month from the day of sale
the balance of the purchase-money, and in failure
thereof the purchase shall be considered void, and
the deposit of ten per f.ient. shall be forfeited.
Grant to be 4. On payment to the Government Agent
ii;e!n.
0 by witbin the time specified of the whole of the pur-
chase-money, the Purchaser shall receive, under
the Public Seal of the Island, a Grant of the said
Land to be by him held in free and common
soccage, yielding every year to His Majesty, His
Heirs and Successors, a quit-rent of a peppercom,
and subject also to such regulations as now exist,
or which may hereafter be enacted relative to
landed property in general, and also subject .to the
several rights of the Crown enumerated in the 12th
clause of the Minute of May 14, 1875, and subject
WASTE LAND ORDINANCE, 125
also to the condition hereinafter mentioned ; that
is to say, the Purchaser, his heirs and assigns,
shall be bound within six months from the date of
the said Grant to cause the boundaries of the said
Land to be defined in tbe following manner: . that
is to say, according to the limits laid down in the
Survey, such boundaries to be ten feet wide, and
cleared of all roots, trees, and brushwood, and, a.s
far as possible, from all other impediments ; where
the boundaries run along open ground, a 5matl ditch
of one foot deep and two feet wide is to be excavat-
ed ; and he and they shall maintain and preserve
the said boundaries eo defined. And in failure of
his or their defining the boundaries as aforesaid, or
so maintaining or preserving them 11s aforesaid, the
same shall be done by the Government Agent, and
the cost and charges thereof shall be recoverable
f~om the said Purchaser, bis heirs and assigns, and
the s~id Land shall be liable to he sold for the said
cllfarges.
5. On the Purchaser having performed all the Deliver_y ofc
. . possession.
conditions in the preceding clause mentioned on his
part to be done and performed in order to obtain
a Grant of the said Land, he will be let into pos-
session thereof. Provided that, if at any time after
the sale of the said Land and before the issue of a
Grant therefor it appears to the Government Agent
that the putting up for sale of the said Land was
due to som mistake or oversight but for which the
same would not have been offered or put' up for
sale, or that thero i~ ressing need for th~ reten-
tion of the said Land by the Crown, the Govern-
ment Agent may 9eclare the said sale cancelled,
and thereupon the Purchaser shall be entitled to a
,, refund of any deposit made by him, but to no
cpmpensation. or other relief whatsoever.
6. Should it appear at any time before the Difference in,.
execution and issue of the Crown Grant that the measurement
 126 CH. JX.-CONDITIONS OF SALE.
actual extent of the said Land is in excess of the
extent given in these Conditions of Sale, the Pur-
chaser will be liable to pay the value of the excess
extent at the eame rate per acre as that at which
he purchased the Land. In the event of the extent
of the said Land being hereafter found to be. less
than the extent given in ~hese Conditions of Sale,
the Purchaser .will be entitled to claim a refund of
a proportionate amount of the purchase price paid
by him at the same rate per a~re as that at which
he purcbaseil the Land. Provided, however, that
no recovery froir , or refund to, the Purchaser shall
be made on account of the excessive or deficient
extent, unless the total sum involved exceeils Rs. 5,
and provideil also that he will not be entitled to
claim any further amount as interest on the money
paid by him or by way of compensation. In all
questions affecting the description and admeasure-
ment of the Land, the decision of t_he Surveyor-
General will be taken as final.
'Keep bound- 7. Purchasers will be required to keep their
arias, &o.,
-defined and boundaries defined at all times :-J+ through un-
1 hereby bind myself to perform the same.
intaot, felled jungle, by an open cutting, having occasional
boundary pillars, posts, or stones at the principal
angles of the lot ; if in cultivated ground, by a
fence, wall, paling, bank, or boundary posts.
Any neglect of this rule will render the parties
liable to all the expenses that may be incurred by
the Surveyor-General's Department, at any future
time, in re-opening or re-marking such boundal'ies.
Provisions, 8. The removal or disturbance of any Gov-
ernment Trigonometrical Station, or Beacon, or
Boundary Pillar, or Marks will render the owner
of the Land in which such objects are situated
liable to a fi.ne for impeding the Survey operations,
and all expen!!es incurred in re-fixing and restoring
such objects.
WASTE LAND ORDINANCE . 127
9 " -All antiquities
" as defined in Ordinance qut
Re_t~nti-
18S,
No. 15 of 1900, Sec. 2, Sub-Sec. (3), are expressly
reserved from sale and reserved to the Crown.
10. This Land is sold subject to the reserva- Re Mining,
bi~n to the Crown of all rights to mine for minerals,
save with the express sanction in writing of the
Governor for the time being, and subject to such
payment and regulations as he may approve from
,t ime to time.
11. Should ~his Land be or hereafter become Re Irrigation
ibenefited by any irrigation work already constructed
(or which may be hereafter undertaken) at the
expense of the public revenue, and for which .any
payment may be levied by virtue of any Ordinance
,n ow in force or hereafter enacted, it shall be liable
to payment of such rate per acre as may be re-
,coverable under such Ordinance or Ordinances.
I, A. B. of----do hereby ack11owledge to have
this day purchased the above-mentioned Land for the sum of
Rupees Five hundred on the Conditions above specified, and
Witnesses :
A. B.,
Purchaser.
1.
2.
B. H.,
Government Agent.
It is requested that the Title-deed may be drawn in
iavour of A. B. of---.
 128 CH. IX.-CONDITIONS OF SALE.
Conditions on which Government puts up-
a Lease for Sale.
Govt. Form.
Conditions on which a LeRsa of the hereinafter mantionacJ
land belonging to the Crown, that is to say, an allotment of
Crown Land, Lot No.--, called--, situated at--in-- ,
containing in extent--acres--roods and--perchas, is'
put up for sale by public auction on the 15th day of June,.
1922." . . . the deposit of ten per cent. , together with any
Limited l. The bidding shall be confined to the
bidders.
original applicant for the Lease and such other-
persons as have made applications for the same in
accordance with the advertisement published in
the Government Gazette dated tha-- day of--
1922.
Highest hid. 2. The Lease shall be sold to the highest.
bidder, subject to the rants, Covenants, and Condi-
tions sat out in the form hereto annexed. Pmvidad
always that the sum offered shall at the leas&
amount to the upset premium of Rupees two par
acre. A further sum, calculated at the rate of:
Eighty Cants for each landmark which may have
bean or may be erected to define the boundaries of
the land, shall be added to the amount finally bid
for the said Lease, to cover the cost of erection of
l&ndmarks, and this sum shall form and. be treated,
as part of the purchase amount of the Lease.
Deposit. . 3. The parson disclosed to be the bigba~ .
bidder shall immediately on such declaration pay
to the Government Agent,--, a deposit of ten par
cent. of the purchase amount, whether be had
~
made a previous deposit or not, and also sign ~base,
Conditions of Sala. Should such parson fail either
to pay the said sum of money or to sign these
Conditions, bis bid shall stand cancelled, any
deposit made by him shall be forfeited, and the,
CONDITIONS ON WHICH GOVERNMENT, &C. 129
Government Agent shall be at liberty to re-sell
the Lease in the same manner as in the original
instance ; provided that no bid shall be accepted
from the defaulting bidder.
4 The, purchaser shall pay to tba Govern- of Pabym ent
a1ance.
ment Agent, within one month from the day of sale,
the balance of the purchase amount, and in failure
thereof the purchase shall be considered void, and
other sum paid on account of the purchase of the
said Lease, shall be forfeited, and the Government
Agent i!hall be at liberty to re-sell the lease in the
same manner as in,.tha original instance ; provided
that no bid shall' be accepted from the defaulting
purchaser.
5 On the purchaser having paid the purchase Delive~y of
f b possession .
amount in full, be will be let mto possession o t a
land. Provided that, if at any time after the sale
of the Lease, but before the execution of the
Indenture of Lease, it appears to the Government
Agent of the Province that the putting up for sale
of the said Lease was due to some mistake or
oversight, but for which the same would not have
bean offered or put up for sale, or that there ia
pressing need for the retention of the said land by
the Crown, the Government Agent. may declare the
said sale cancelled, and thereupon the purchaser
shall be entitled to a refund of_ any deposit made by
him, but to no compansation or any other relief
whatsoever.
6 Should it appear at any time before the Difference in
measuremen
execution of the said Indenture of Lease that the
actual extent of the said land is in excess of the
extant given in these Conditions of Sale, the pur-
chaser will he liable to pay the value of the excess
extant at the same rate par aero as that at which
be purchased the Lease. In the event of the extent
17
 130 CH. IX.-CONDITIONS OF SALE.
of the said land being hereafter found to be l~ss
than the extent given in these Conditions of Sale,
the purchaser will be entitled to claim a refund of
a proportionate amount of the purchase price paid
by him at the same rate per acre as that at which
he purchased the Lease. Provided, however, that
he will not be entitled to dlaim any further amount
as interest on the money paid by him or by way of
compensation. In all questions affecting th~ des-
cription and ad measurement of the land the decision
of the Surveyor-General shall be taken as final.
K~ep bound- 7. Purchasers will be required to keep their
ariea, &o., b d . d fi
defined and oun arias e ned at all times: if through unfelled
intact. jungle, by an open cutting having occasional bound-
ary pillars, posts, or stones at tbe principal angles
of the lot ; if in cultivated ground, by a fence, wall,
paling, bank, or boundary posts. Any neglect of
this rule will render the parties liable to all tbe
expenses that may be incurred by the Survevor-
General's Department, at any future time, in. re-
opening or re-marking such boundaries.
8. The removal or disturbance of any Govern-
ment Trigonometrical Station, or beacon, or bound-
ary pillar, or marks will render the Lessee of the
land in which such objects are sHuated liable to a
fine for impeding the survey operations, and all
expenses incurred in re-fixing and restori-ng such
objects.
Provision re 9. All " antiquities," as defined in Ordinance
antiquitie9,
No. 15 of 1900, Sec. 2, sub-Sec. (3), are expres;ly
reserved to the Crown~
Re Mining, 10. This Lease is sold subject to the reserva-
tion to the Crown of all rigMs to mines and
minerals in the said land.
Re lrriga- 11. Should this land be or hereafter become
tion.
benefited by any irrigation work already constructed
(or which may hereafter be undertaken) at the
CONDITIONS ON WHICH GOVERNMENT, &c. 131
expense of the public revenue, and for which any
payment may be levied by any Ordinance now
in force or hereafter enacted, it shall be liable to
payment of such rate per acre as may be recovered
under such Ordinance or Ordinances.
I, A. B. of-do hereby acknowledge to have this day
purchased the above-mentioned Lease for the sum of Rupees
fifty on the conditions above specified, and hereby bind
myself to perform the same.
Witnesses:
A. B.,
Purchaser.
(1)
(2)
This Indenture, made the 2nd day of May One
thousand nine hundred and twenty-one, between His Excel-
lency Sir--(bereinafter called "the Lessor," which expres-
sion sh.all include his successor in office for the time being),
acting herein for and on behalf of His Majesty King George
the Fifth, bis heirs and successors, of the one part, and
C. D. of--in the District of--Province (hereinafter called
" the Lessee," which expression shall include his heirs,
executors, administrators, and permitted assigns), of the other
part:
Witnesseth, tha,t i n consideration of the sum of
Rupees Fifty (Rs. 50) and of the rants hereinafter reserved and
of the Covenants on the part of the Lessee hereinafter
contained, the Lessor doth hereby demise unto the Lessee,
subject to such exceptions and reservations as are hereinafter
contained, all that allotment of Crown Land called--situate
in the village--, in--Pattu, in the District of--Central
Province, containing in extent--Five Acres, two Roods and
three Perches (A. 5 R. 2 P. 3), and more particularly
described in the first part of the Schedule hereto annexed,
together with all ways, ri~hts, easements, and appurtenances
thereto belonging. Except and reserving to the Crown
out of this demise all mines, plumbago, gold, silver, precious
 132 CH; IX,-CONDITIONH OF SALE, CONDITIONS ON WHICH GOVERNMENT, &C. 133

stones, iron, tin, lead, .and all petroleum, rock oil, mineral is expressed. And it is declared that the said Schedule shall
oil, coal, shale, or other deposit or formation from which any be deemed part of these Presents and be read and construed
such oil may be obtained (which said petroleum, rock oil, .acco:dingly.
mineral oil, coal, shale, or other deposit or formation as afore-
Signature o/ Lessee. Signature of His ..Exce!Zenc11 the
said shall hereinafter in these Presents be deemed to be included Governor (Rubber Stamp).
and comprised in the term "minerals"), and all other minerals Witnesses to the signature of I certify that the above signa-
or lll:etals of whatsoever nature, or the ores thereof, in, under, 01; the Lessee at K'\ndy this seoond ture, attaohed by means of a.
upon the said premises or any part thereof, together with all ,day of May, One thousand nine stamp under the provisions of
right to mine, search, and prospect for the same, and all other hundred and twenty -one. Ordinances No. 11 of 1884 , No, 30
1.--- of .1884, and No. 16 of 1915, has
powers and privileges necessary or requisite for discovering or
2,--- been so attaohed in my presence
working such mines, or procuring, smelting, and carrying away at Kandy this second day of May,
such plumbago, gold, silver, precious !ltones, iron, tin, lead, and One thousand nine hundred and
all other minerals or metals of whatsoever nature, or the ores twenty.one
thereof . . And except and reserving further to the Crown out of (Signature),
this demise the right to quarry for and take and remove from
Private Secretar11 to the Governor.
the premises hereby demised, or any part thereof, all gravelaud
metal that the Crown may hereafter require for the purpose of THE SCHEDULE ABOVE RE.lmRRED TO.
metalling any public road, or in or for the construction of any
PART I.-THE LAND DEMISED BY THIS LEASE,
public work, and so that the Lessee shall not be entitled to any
compensation for loss sustained by means of the exercise of the All that allotment of Crown land called--situated in
right herein reserved ; but provided that he shall be entitled to the Village--, in--Pattu, in the District of--Central
claim a reduction of the rent herein reserved in proportion to Province, and boundeg. on the--
the extent of land affected by the exercise of the said right. North by--South by--East by----and West by--
Provided always, and it is hereby expressly agreed and declared, containing in extent five Acres, two Roods and three Perches
that the Lessor, his agent, servants, and workmen, may at any {A. 5 B. 2 p, 3), and more particularly delineated and des~ribed
time hereafter, ripon giving to the Lessee one month's notice in Lease Plan No.--, dated the--day of--, 191--
in writing of their intention so to do, enter upon the said
authenticated hy--, Surveyor-General.
demised premises or any part thereof, and execute and carry
out any of the purposes or works contemplated by the PART Il.-DUBATION OF LEASE.
reservations hereinbefore contained, and subject to such several The Lesse0 shall hold the said Crown land in perpetuity,
exceptions and reservations. ubject to the provisions hereinafter contained in Parts III,
. '
To hold the said premises unto the . Lessee for the term IV, V and VI hereof.
mentioned in the second part of the said Schedule, yielding and
PART Ill.-RENT.
paying the rent mentioned in the' third part of the said
Schedule. And the Lessee doth hereby covenant with the Rent in manner follow'ing shall be payable annually in
Lessor as in the fourth part of the said Schedule is expressed. adv.ance to the Government Agent of the Central Province, at
And it is also agreed and declared by and between the said the Kandy Kachcheri, on the First day of May of each and
parties hereto as in the fifth and sixth parts of the said Schedule every year.

134 CH. IX.-CONDITIONS OF SALE,
During the first period of thirty years, the rent for tbe
first six years sLall be Rupees two (Rs. 2) per annum, and for
the remaining twenty-four yea.rs thereof Rupees . three (Rs . 3)
per annum. Thereafter, during each successive period of
thirty years, such annual rent as tbe said Government Agent
shall fix for each such period. Provided Lbat he shall not
increase the rent payable during any period by more than fifty
per cent. of the rent paid during the precedin g period of thirty
years; and also provided that the rent duri,og the first period
of thirty years shall be reckoned at Rupees three <Rs. 3) per
annum.
PART IV.-COVENANTS.
1. That the L essee and his aforewritten shall and will
pay th~ said annual reats . at the rates and dates as herein
appointed, and shall also pay all rates, taxes, assessments ,.
and outgoings whatsoever now payable or which shall become
payable in respect of the premises demised.
2. The Lessee shall during each year of the first five
years from the date hereof clear and plant at least one-tenth
of the said land with--but not with any other product save
'Mth the written consent of the Government Agent of the
Province for the time being in that behalf fiist had and
obtained. He shall clear and plant as aforesaid at least one-
fourt h of the total area during the next following five years.
The Lessee, whenever he shall clear any part of the premises,.
shall f~rthwith plant the same in manner aforesaid .
3. In the event of the Lessee failiri g_ from any cause
whatever to clear and plant the said land or any podion there-
of within the periods specified in the preceding clause, the
Lessee shall become liable to pay to the Government Agent.
double the rental per annum from the period between the
seventh and thirtieth years of the first period of thirty years
provided for in Part III of this Lease for the whole area of
land not clearly brought under cultivation in terms of clause 2;
herein.
4. In the event of the Lessee failing to clear and bring
into cultivation the land as provided in clause 2 herein, it.
..
CONDITIONS ON WHICH GOVERNMENT, &c, 135
shall be optional for the Lessee to resign, surrender, and
release the whole land instead of payment of double rent as
stipulated aocl provi ct ed for in clause .3 hereiri, an~ to_ apply
for a new L 9 ase for the portion brought under cult1vat10n by
him. The Lessor shall have the right to grant a new Lease,
for such portion or not as he shall think fit.
5. The L essee shall and will pay to the said Govern-
merit Agent before the executiou of these Presents the renb
for tbe fir~t year of the term hereof, and subseq uent payment
shall be made in advance at intervals of oue year from that
date.
6. In c'!.se of non.payment of any annual instalment of
rent or any part t hare::if, or of any double rent due under_
clause 4 hereof, for the space of thirty days after the time
hereby appointed for payment thereof, whether the same shall
have been lawfully demanded 01 not, such ins talment of rent
shall carry in terest at the rate oi nine per centum per
annum till payment in full.
7. In tbe event of any instalment of rent, or of any
double rent under clause 4 hereof, being in arrear for the space
of more th a n on e year, whether t he same sh all have been law-
fully demanded or not, the said Governm ent Agent shall be at
liberty to declare the Lease forfeited to the Cro wn , and the
s~id land and premises, together with its plantations and
improvements, shall revert to and become the absolute pro-
perty of the Crown, without any claim to compensation
therefor 00 the part of the Lessee. The said Government;
Agent shall after such declaration be entitled to re-sell the
said Lease.
8. Tpe Lessee shall not, without the written consent of
the Lessor or of the said Government Agent or otherwise than
in accordance with the conditions of such consent, erect any
permanent buildings upon the said land, other thac structur~s
which may be necessary for the proper cultivation of the said
land, such as factories, stores, superintendent's bungalow ,
hospital, dispensary, cooly lines, or other buildings necessary
for the agricultural industry to be carried on under this Lease
 136 CR. IX,-CONDITIONS OF SALE.
(including in each case the respeo~ive appurtenances thereof),
and any breach of this Condition shall entitle the Lassor to
. terminate this L3ase forthwith, and the said land and premises,
together with all plantations and improvements, shall there-
upon revert to and become the absolute property of the Crown.
9. The Lessee shall permit the Lessor, bis agent or
agents, or surveyors, at all reasonable hours of the day during
the continuance of this Lease, to enter upon the said land for
the purpose of inspecting the condition thereof.
10. The Lessee and his aforewritten shall not sub-let,
11011, donate, mortgage, or otherwise dispose of or deal with his
interest in this Lease, or any portion thereof, without the
written consent of the L 9ssor, and every such sub-lease, sale,
-donation, or mortgage, without such consent, shall be absolute-
ly void.
PART V.-THE LESSOR'S COVENANT.
If the Lessee shall be desirous , in view of t.he growih of
population and the development of new industries in the
vicinity, to construct buildings other than those provided for
fo this Laase, it shall be competent to the Lessee to surren-
der the portion of land required for such building purposes to
the Lessor, if the Lessor should grant him a fresh Laase of
the portion so surrendered and intended to be built upon or
opened up as a township, on such terms and conditions as may
be-agreed upon,
PART Vl.-GENERAL PROVISIONS.
In the event of proceedings befog taken . under Ordinance
No. 3 of 1876 for the !t'cquisition of any portion of land in-
cluded in this Lease, it is specially agreed by and between the
parties that the compensation to be paid shall be a sum which
shall bear tbe same proportion to the premium paid at the
sale of this Laase ai:i the extent of the portion to be acquired
bears to the total extent of the land leased, together with a
further Sllm Fepresenting tbe differ~nce between the value of
the portion of land to be acquired as appraised at the date of
the L9ase and the enhanced value due to cultivation and
CONDITIONS ON WHICH GOVERNMENT, &C. 137
improvements effected by the Lessee. This latter sum, if the
Government Agent acting on behalf of the Lessor and the
Lessee are unable to agree on its amount, shall be determined
by two arbitrators, to be nominated respectively by the
Government Agent acting as aforesaid and the Lessee ; and, if
they differ between themselves, by an umpire to be chosen by
them, before they proceed to determine the amount.
2. That if any rent hereby reserved shall remain unpaid
and in arrea.r for the space 0 more than one year after the
time hereby appointed for payment thereof, whether the same
shall hav~ been lawfully demanded or not, or if a.ny breach
shall be committed by the frissee of any of the Covenants
herein on the Lessee's pa.rt contained, or if the Lessee shall
abandon or cease to cultivate the said land in manner provided
in Part IV. of this Lease, or if the :Gessee shall become bank-
rupt or compound with his creditors, or if the said land or the
interests of the Lessee or his aforewritten be sold in execution
of a decree against him or his aforewritten, then, and in
any of the said oases, this demise and the privileges hereby
reserved, together with thes~ Presents, i,hall forthwith cease
and determine, and the Lessor, his agent or agents, may there-
upon enter into and upon the said land and premises, or any
part thereof in the name of the whole, and the same have,
re-possess, and enjoy as in his former estate, and the said Jand
and premises shall forthwith revett to the Crown, without
any claim on the part of the Lessee or his aforewritten against
the Lessor for compensation on account of any improvements
or otherwise howsoever.
18
 140 CH. X.-PURCHASE AND SALE OF LANDS.
when tbey effected the sale had a true title, which was lacking
in them when they consented to the decree, they were never-
theless bound by the decree which they consented to for their
own purposes (a).
A. conveyed to B. a sixth share which she said she
inherited from her father. In fact she inherited nothing from
her father but sbe did from her husband. Held that the
husband's share was not conveyed to B. (b).
The execution of a conveyance by the Fiscal, for land sold
under the F iscal's sale, is an essential ingredient for the sale
of the land. No legal title accr?es to a purchaser under a
Fiscal's sale in the absence of a formal conveyance by the
F iscal, and until the execution of such conveyance the judg-
ment-debtor remains vested with the title (c).
A Fiscal's conveyance made in favour of a purchaser who
is already dead at the date of the transfer passes no title, and
in this respect there is no distinction between a private sale
and one carried out by the Fiscal (d).
A purchase from the judgment-debtor after seizure under
a writ is bad (e) .
Giv.en a seizure under a writ, duly effected, made known
and registered, any private alienation of the property subse-
quent to the seizure is void (f).
The question whether a land which was sold referred to
a whole corpus or to the extent only should be determined by
the terms of the various deeds in which the property has
been dealt with (g).
(a) Kaluhami v. Appuhami, 8 N. L . R. 261.
(b) Si1,odris v. Denokhamy , 5 Bil,!. 75 ,
(c) ~ilva v, Nona, 1 A. C.R. 15; 10 N. L. R. 44,
(d) Buohchi Appu v. Abeyasuria, 2 A. C, R, 127.
(e) Siva v. Krigoris, 7 N.L R. 195 ; Ledchimanan Ohetty ti. Muttu-
samy Pillai, 11 N. L . R. 83 (Narayan Chetty v. Ellis, 4 N. L. R. 367.
followed),
If) Fernando v. Fernando, 9 N, L. R, 1 ; C, P , C,, Seo. 238,
(g ) Crowt her v . Benjamin, 1 L, L . R. 6!l,
PURCHASE AND SALE- -ITS NATURE AND SCOPE. 141
I
Where a person who is entitled to the life interest only
of a property, executes a deed conveying the corpus, those in
whom the dominium is vested are entitled to have the convey-
J ance set aside to the extent of their interest (a).
Questions of alienations in fraud of creditors is governed
by the Roman-Dutch Law (b) ; under the Roman-Dutch Law
such alienations are not ipso jure void, but may be set
aside (c),
Neither a sale nor a donation would be considered frau -
dulent, if the vendor or donor was solvent at tbe time he
made h and if their disposition had not caused him to cease
to be so (d).
A deed cannot be set aside as fraudulent by a creditor
who becomes such after the date of the alienation, unless it be
proved to have been made with an intention to defeat future
oredi tors (e).
In order to succeed in an action for rescission of sale on
the gro~nd of enormis laesio, plaintiff must prove that the
property was at the date of the sale worth double the price the
defendant paid for it (/) . - ---- .c...-.-
The manager of American Mission schools is not a
corporation sole (g) .
Re Churches, Bishops, Colleges, etc., see Chapter on " the
Ceylon Ordinances."
A ius superficiarium involves an interest in land and as
such cannot be created except by a notarial writing (h). It
may also be acquired in the same manner as any other right
(a) Aohikannu v. Nagamma, 9 N , L, R. 282,
(ll) 4 Tha.mb. 100.
(c) Ossen Lebbe v, Dias, 2 Bal, 41,
(d) Ka.ruppan v. Mallupody, 3 N . L, R, 27!l,
(e) Silva v. Ma.ck, 1 N. L. R . 131.
(fl Guna.ra.tna v. Don Philip, 4 N, L , R, 268.
(g) 4 Tha.mb. 147.
(h) Ahamadu Na.tchia v. Muha.ma.du Natohia, 9 N, L, R. 381.
 142 CH. X.-PURCHASE AND SALE OF LANDS.
to immoveable property and is capable of alienation ,and also
-0 passing to the heirs of the owner of the jus (a).
In the caee of a sale of immoveable property, where the
\ vendor fails to give his purchaser "vacant possession," the
1 purchaser is entitled to sue for a cancellation of a deed
1
of sale. and for the return of the purchase-monev and for
damages (b).
A vendee of immoveable property is not bound to accept
delivery of the deed as sufficient delivery of possession of
the property ; he is entitled to ask bis vendor to place him
in actual possession. The vendor is bound to deliver "vacant
possession" (i.e. , possession unmolested by the claim of any
other person in posses8ion) of the propert~ sold to the
vendee ; on h is failure to do so the vendee is entitled to the
rescission of t he Sl\le and !1 refund of the purchase-money (c).
W here t he questi on is between a purchaser and a third
party, the delivery of the deed of transfer is sufficient to
-entitle the purchaser to maintain an actio.o, as owner, against
such third party (d).
A. bought a piece o{ land in bis daughter's name, but
the conveyance was delivered to A. and he was put in pos-
session of the land. He then remained in such possession.
In an action by t he daughter against A., it was held that,
under the Roman-Dutch Law, A. became the owner of the
land, because he had no mandate from bis daughter to nomi-
nate her as the purch aser (e) ,
Where a father by a notarial conveyance buys a land in
t he name of a minor child the title to the land vests in the
minor though t he father pays bis own money and accepts
-delivery of the deed ( /) .
{a) Ahamadu Natohia v. Muhamadu Natohia , 8 N. L, R. 330,
(bl Charles Appuhamy v_, Getchohamy, 1 A, C.R. 97,
(c) Ratwatta v. Dullewe, 10 N, L, R, 304; see also Appuhamy v,
Guoeris, l Bal, 8.
(di Ranagl\h amy v. Bastian Vederala, 2 N, L. R. 360.
(e) Ord, No, IO of 1868, Seo. 17 .
(I) Ammal v, Kaogaoy, 13 N, L, R . 65,
.
PURCHASE AN~ SALE-ITS NATURE AND SCOPE. 143
When any legal proceedings shall have been instituted
for obtaining a partition, it shall not be lawful for any of the
owners to .alienate or bypothecate his Rhare, and any such
alienation or hypothecation shall be void (a). But a sale by
.the Fiscal of the share of any of the owners is good. An
agreement to convey a share of land sought to be partitioned,
,after a few days of the final decree, was held good (b).
At a public sale held by an exeoutor, A. became the
purchaser of a certain land anti signed the conditions of sale,
which were notarially attested. B. thereupon brought a
partition suit before A. could take out his transfer, which was
taken out during the pendency of the partition suit.
Held, that the t ransfer to A was not obnoxious to 17
of the Partition Ordinance (c).
A. agreed to buy a land from B. and paid the purohase-
money, but, fearing some litigation, .obtained a conveyance in
the name of C. without C.'s kn owledge. A. informed 0. subse-
quently of the execution of the deed in C.' s favour, and C.
acguiesoed in "it, and agreed to tra nsfer the land to A. when-
6ver called upon.
H eld, t h at C. held t he lan d in tr ust fo r A., and that A.
,could maintain an a.otion for a conveya nce of the land from C.
[ or, if C. had parted with the land, to recover its value (d) .
Where a vendee recognises t he defect in his vendor's
title and surrenders what he knows he cannot hold .
Held, be can maintain an action for refund of the purchase-
money. He is not obliged to resist the la wful.owner or to sue
,him for recovery of possession if evicted.
A purchaser may, if be c1'tloses, sue his vendor on
-the direct allegation that he had, no title. In such an action,
., - - - - - - - - - - - - -- - - - - - -- - - - --
{a) Silva v. Gimarah, 7 N, L. R. 135.
(b) Mohamed Bboy v . Mui11 Dias,
(c) . De Silva. v . Kalappu, 2 Matara. 183,
(d) Sangarapillai v. Kandiab, (1916) 19 N.L,R, 344,

144 OH. x;-PURCHASE AND SALE OF LANDS.
the onus would lie on the purchaser of showing the state of
the title (a).
A. purchased from the Crown. Before obtaining the
Crown grant he sold to B. After obtaining the Crown grant
he sold to C. Held, that the effect of the transfer by A. to'
B. was that A. was bou'nd to obtain a Crown grant. and th~n
to execute a proper transfer to B.
That it did not pa.ss a full title to B. (J., having a full
legal title, was entitled to succeed (b).
.
A sale by a party to a partition action after interlocutory
decree and before final decree " of idl the advantages or
disad~antages, such as costs, etc., and also the share which be
would be entitled to in common or in partition" by virtue of
the decree in the partition action was held to be valid a~d not
obnoxious to Seo. 17 of 10 of 1863 (c).
Where a person obtains a conv'e yance of property with-
out fraud, but afterwards fraud~lently refuRes to pay the
consideration stipulated for, the gra.ntor is not entitled to
claim a cancellation of the conveyance, but his remedy is an
action for recovery of the consideration (dJ.
A mortgagee is not permitted to sell the property mort-
gaged or pledged to him without obtaining the judgment of a
competent Court against the debtor {e): A pawn-broker may
sell an article pawned with him by public auction without a
decree of Court (/).
A curator may with the leave .of Court sell l!londs belong-
ing to a minor ward (g).
(a) De Silva v. Balasuri/l, (19011) 2 Ma_tara oases 59.
(b) Teruna.nee v. Terunanse, (1910) 2 Matara oases 179,
(c) Subaneris v. Prolia, 16 N.L.R. 393.
(d) Muhammadu v. Huaaim, 16 N.L.R, 368.
(e) Jaye. 63; Voet 20, 1. 6.
(f) Ord, No, 8 of 1893, Seo. 20.
(g) Pillhamy v. Pieris, 11 N.L.R. 102.
~ 19
. /
THE FOBMAL .PARTS OF A PURCHASE DEED. 145
III.-The Formal Parts of a Purchase Deed.
The formal parts of a purchase deed most .constantly met
with are the follo'Ying : -
(1) 'The Premises; (2) the Habendum and Tenendum ;
(3) the Covenants for title; (4) 't he Testimonium clause la).
(1) The PREMISES include the following:
i. The Exordium or CommencemP.nt or the I ntroductory
part.-A purchase deed under the En glish La w may be an
indenture or deed-poll but un der o~ ~ l~w it is a deed-poll.
The formal comm encetnent of a deed-poll varies according as
it does or does not contain recitals; in the former case it
begins, "To all to whom the~ esents shall uome, A.~ .
of----sende th greeting;" in the latter case it begins,
"Know all men by these presents that I, A.B. of----" the
date bein g in each case mentioned in the testimonium clause.
_- 1i. The parties.-Tbe persons entering into hhe deed should ,
in general, com prise, besides the vendor aod purch aser, every
person froi:n wp om any legal or equitable estate or interest is
trans fe rred to t he purchaser; or whose con sent or concur~
re noe is necessary to m ake a perfect conveyance, and_ also all
persons who enter into an y cove nan ts con tained in th e deed.
In arranging the pa.r ties,1 ersons ha ving legal inte~sts come
before persons bavinA quitahle interests only; next coma, any
G'> perso~s whose concurrence is req uisite, or who enter _into any
coven a nts; and last the i..,~arty or parties to whom the legal
estate is to be given by the deed (b). In a purchase deed
which is a deed-poll the name of the purchaser does not
come along wit h the parties transferring their rights. The
purohaser's name should always be looked into in the granting
or operative part in the words of Iiwi~ation.
Toe names and description of all the parties should be set
out in full, so as to prevent any difticuJLy in their subsequent
identification (b).
,\
(a) Dsano 344. (b) Deane 345.

146 CH. X.-PURCHASE .AND SALE OF LANDS.
, On a. sale by an assignee or a trustee in bankruptcy; the
bankrupt need not be made a party, and no advantage is gain-
ed by ioining bim since his covenants are of little or no value, '
but, wben the liquidator of a company conveys, the company
~ust always be made a party, since the property is not vested
10 the liquidator (a).
When the purchasers are partners, purchasing property
for partnership purposes, it may be advisable with a view
to keeping the fact of the partnership off the title-deeds, to
convey to them as tenants in common, but there is an
objection t.o this course, viz. , that should they wish to sell
i.n case of the death of a partner, it would be necessary
to obtain . the concurrence of his representatives. The
more usual form of conveyance now is to convey to the
partners as joint tenants, as part of the partnership estate
with a proviso tb at the survivora or survivor of them shall
have full po wer to convey and give effectual receipts. An
.alternative is to make th e conveyance to trustees 'o n behalf
of the partners, the deed subsequently declaring that the
trustees are to hold the property for the partners as part
of the capital or joint-stock of their partnership business in
proportion to their several shares in the same. This met~od
may ~ave advantages, if there is a likelihood of changes taking
place m the constitution of the firm (b).
iii. The recitals.-Recitals should be inserted with
Caution, beo~use they may control the operative part of
the deed and because the doctrine of estoppel aoplies to
them (b).
The object of recitals is to shew the state of the title to
the property to be dealt with, and to explain in general terms
what is intended to be effected by the operative parh of the
II
deed: The former kind being the "narrative and the latter
the '' introductory recitals. As a general rule it should be
II
shewn by recitals why each person who joins in the deed is
made a partv.
(a) Gibson, 129. (b) Gibson, 130,
THE FORM~L PARTS QF .A PURCHASE P:JllEP, 14'1
In reciting another instrument, only so much of . tl:;ie same
should be noticed as relates t,o the matter in band. The
necessary clauses if in the ordi_n ary form the effect of the same
only is generally stated ; but when the matter is unusual or
informa,, it should be recited verbatim.
Needless explanations should not be given in recitals. As
a general rule, the bare fact of the case- should be mentioned
leaving them to tell their own tale.
In simple cases the recitals are omitted ; if they are
inserted it apoears advantageous, in most oases, to..Jecite the ~
last conveyance by which the parcels were conveyed ; for
g so grea y acilita es the i ent1 ca 10n of property (a).
010
In the ordinary case the introductory recital merely states
that " the said vendor has agreed with the said purchaser to
sell t-o him the said lands and premises free from incumbrances
at the price of Rs.-" (b).
If no re~itals are inserted in the deed the incumbrances
should be noticed in the habendum (b}.
Oare should be taken to express the recitals in general
terms ; since otherwise they may conflict with the operative
part. When they do so their tendency is to override the
latter (c).
Where a person sold a certain share of land reciting hia
title under a deed of purchase which was set aside iu subse
quent legal proceedings, and lat\er acquired title to such share
by inheritance.
Held, that the vendor and his heirs were estopped from
I
denying the vendee's title (d).
iv. The testatum or witnessina part; also called ~
-
operative part_ After tho parties had been named there was
(al Elp. 87.
(bl Elp. 88.
(c) Deane 347.
(d) Guruhamy v. Subeseris , 13 N.L.R. 111!; Mohamed Bhoy v.
Lebbe Maribr, 16 N,L.R, 466, followed i Nonobamy v, Appu Singbo,
(1916) i C,W,R, BO.
 148 CB. X.-PURCHASE AND SALE OF L4NDS, .
a break to introduce the recitals, and then the instrument
is cc>ntinued with the words "No~ know ye and these presents
witness." Where there are no recitals (and consequently no
such break) the deed runs simply "Know all men by these
presents." Tb ere may be several testata in one deed.
In the operative part are included the followia s :
(a) The consideration.-Where the consideration is- money
it is not necessary to describe it as the "lawful money
II
of Ceylon" or lawful British money," Wben the con-
sideration is fully explained in the recitals, it is referred to in
the testatum thus, "in consideration . of the. above premises."
. In deeds affecting lands, the Notary shall describe it
A de9d is not void for want of consideration, but if there
is a consideration it should be stated either in the recital or
tbe body of the deed (a).
(b) The receipt clause.-Where the consideration is
money, the statement of it is followed by a receipt clause :
"the receipt whereof is hereby acknowledged" (b).
{c) The operative words.-The operative part includes
t also words
of conveyance which transfer the proper~y ; these
varying according to the nature of the estate. In an ordinary
II
purchase deed the following ser. of words are used give, grant,
sell, assign, transfer, set over and assure." If the convevance-
is to a person who bas hq.d no previous interest in it, the.word
" gran t '' a Ione may be enough although other words will do
as well (c). Where the grantee has already some estate iri
II
the land the words " release" or surrender .,, as the case
may be are more appropriate. A party joining to tr ansfer
a beneficial interest should "confirm" the assurance of thG
property, If the property is leasehold, the vendor " assigns"
II
to the purchaser (c). .The word convey " may he used in a.
conveyance of any natu.r e (d). Tbe word "as;ure" is a com-
prebensi ve term and is applicable to every description of pro-
perty.
(a) Gibson, 132,
(c) Deane 854..
(b) Elp. 88,
{d) Elp, 90.
THE FORMAL PARTS OF A PURCHASE DEED. 149
(d) The words of limitation:-After the operative words,
come the names of the persons to whom the conveyances or
assignments are made, followed by words indicative of the
estates such persons are to take.
(e) The parcels.-T~ de~!l.riptign of__ t1!_~1rro11erty ~assured
is technically known as the parcels. The parcels are generally
inserted in the operative part of the deed. The description
may either be given in the body of the deed or, more con-
veniently, with the aid of a Schedule to the deed and endorsed
map {a).
by its boundaries giving the probable extent and situation
with respect to the village, pattu, korale, district and province
and by name or assessment number if any (b); if the deed
refers to an undivided share, he shall say how much of the
whole; if to divided, he shall give its particular boundaries
and extent {agreements to transfer, to mortgage and to lease
excepted) (c).
A conveyance is not invalid for want of description by
I
metes and bounds. Its identification and limits are provable
by parol evidence (d).
The following are some of the forms of how a parcel
is described in the operative clause : -
(1) All that plot, piece or parcel of meadow or pasture
land commonly called or known by the name of--situate
in--&c., containing by admeasuremen_t--or thereabouts
iind bounded on the north, 4';c.-and which parcel of l,t1-nd is
. delineated and coloured pink in the map or plan drawn in
the margin of these presents~
(2) All that messuage or dwelling-house with the out-
houses, buildings, yard, and garden thereto belonging, .
-c ommonly called--&c. (or being No. 4-street-in the
parish of_--&c.)
- -- - ~ - - -- - - - - - - -- -- ~ -
(a) Elp. 93.
(b) Ord, No. 1 of i907, Seo, 29 (15a),
(c) Ibid (15b),
(d,J Baba Suriya v. Charles, 1 N.L.R, 848,
 I
152 OH, X,-l'UROHASB AN,D SALE OF LANDS.
0
(i) By the covenant for right to assure, the vendor
covenants that be bas power to assure the property which in
the operative part of the deed he has purported to assure and
.g rant.
(ii) The effoct of the covenant for quiet enjoyment is,
,generally speakinil, that an action lies against the vendor on
the purchaser's quiet possession being interfered with. '
In the case of a sale of immoveable property, where the
vendor fails to give his purchaser "vacant possession," the
purchaser is entitled to sue for a cancellation of the deed of
oaale and for return of the purchase-money and for damages (a) .
The vendor is bound to deliver "vacant possession" (i.e.,
possession unmolested b!' the cl1J.im of any other person in
possession) of the property sold to the vendee; on his failure
to do so the vendee is entitled to a rescission of the sale and a
.refund of the purchase-money (b).
(iii) A short method of dealing with the covenant for
. freedom from incumbrances is by sim ply adding the words
. . free from incumbrances" after the covenant for right to
assure and omitting the covenant altogether in its usual place.
Trustees and others not having beneficial interest in the
property sold simply covenant that they have done no act to
in cumber.
Where in a deed of conveyance the vendor expressly
-coven anted t hat th e premises conveyed were free from encum-
brance, and t hat be would alway s warrant and defend the
same against any parsons whomsoever, and where the vendee,
who had suffered eviction, brou ght an action for damages
based on such express coveo ant,- Held that this express cove-
i nant in deed excluded the obli gation implied by law on the part
of the vendor to give good title to the vendee, and that the
plaintiff must be confir,ed to such express stipulation (c).
(a) Charles Appuh11my v. Gatobuhamy; 1 A.C.R. 97,
(b) Ratwatte v, Dullewe, 10 N.L.R . 304.
(c) Vanderpoorten v. Scott, 11 N .L. R, 147.
. .
DELIVERY OF THE DEEP, t53
(iv) The covenant for further & J5ursn ce has well been
na.med the most valuable of the covenants, By it the vendor
oove'ne.nts tha t ,rn reasone.ble e.ssur~ shall be executed and
.acts performed, for further carrying into effect the intention of
the parties. Under this the purchaser can sue the vendor for
,da.irie.ges, if the title prove defective or encumbered.
(4) THE TESTlMONJU CJSAUMiJ ,-Having thus gone
through the es:Otial parts of a purchase deed, it only remains
to mention phat the whole is concluded by a Testi11ionium
which sets forth that t he s~veral parties to the deed have duly
-affixed thereto their respective hands at such and tmch a place
-on such and such a date.
A deed is not necessarily attested the same day as exe-
cuted. Indeed, where several persons residing in different
parts have to execute it this would often be impossible .
For attestation, _vide ante
II
IV, The formal parts of a
deed " in Chapter II .
III.-Delivery of the Deed.
Under the English Law, the delivery of the deed is essen-
tial, but it may be in any form . . The delivtiry of a deed is not
essential for its validity under our law ~a) -
When the question is between a purchaser and a third
party, ~he delivery of the deed of transfer is sufficient to entitle
the purchaser to maintain an action, as owner, against such
third party.
A vendee of immoveable property is not bound to accept
delivery of the deed as sufficient delivery of the possession of
property; he is entitled to ask his vendor to place him in
actual possession (b).
(a) Wiokramasekera v. Wijetunga, 8 C.A.C. 52 : 1 Wija. 8,
(bl Ratwatte v, Dulawe, 10 N,L.R. 304, See also Appuhamy v.
Gunaris, l Bal, 8.
20
 l ' OH, X.-l>URCHASE AND SAt.E OF LANDS.
IStamp, ,,
.
Form of a Purchase
. Deed.
PRIOR REGISTRATION.
No. --
Premises
lilwoniiim, To all to whom these Presents shall come I,
fJ11r tioa A .D. (Vendor) of- - send Greetings.
Vou dor,
H ooNarrative,
(a) itl\l . Whereas under aod by virtue of a transfer
deed dated--and attested by--Notary Public
under No.--tbe said A.'.,B. is the owner and
proprietor and is seized and possessed of all that;
piece of land called--and situated at--with
the .house and outhouses standing thereon and
more particularly described in the schedule to
these presents.
(b) Introduc-
tory. Aod whereas the said. A. B. has agreed for the
Vandee,
absolute sale and assignment to U. D. (Vendee) of
--of tl.Je said premises intended to be hereby
granted and conveyed free from encumbrances at
the price or sum of rupees one thousand (Rs. 1,000).
Tdstatum,
Now know ye and these presents witness that
the said A. B. of --io pursuance of the said
Consider-
agreement and in consideration of the sum of
ation,
rupees one thousand (Rs.- 1,000) paid by the said
Receipt,
C. D. of--the receipt whereof the said A. B.
Operative doth hereby admit and acknowledge doth hereby
words,
sell, grant, convey, assign, traosfer, set over and'
assure unto the sa_id C. D. of--his heirs, exe-
Parcels,
cutors, administrators and assigos all that piece of
land called--and situated at--with the house
and outhouses standing thereon and more parti-
cularly described and set forth in the Schedule to
General
words, these presents; together with all buildings, erections,
fixtures, fences, hedges, ditches, trees, commons,
ways, privileges, easements, appurtenances what-
soever to the said premises beloni;?ing or in anywise
appertaining, or usually held or enjoyed therewith
or reputed to belong or be appurtenant thereto, and
FO'.RM OF A PURCHASE DEED . . , '
.
all the estate, right, .
title, . t t l nd clause.
10 ares ' c aim, a
demand whatsoever of the said A. B. in, to, out, of
Estate
and upon the said premises and every part thereof.
To bave,and to hold the said premises hereby Habendmn :
granted and conveyed, or expressed so to be, unto
the said C. D., his heirs, executors, administrators,
and assigns, for ever.
And the said A. B. doth hereby for himself, Covenants.
his heirs, e:\flcutors, and administrators covenant
with the said 0. D , bis heirs, executors, adminis-
trators and assigns that . the sat d premises
are free enoum-
Free from
from all encumbrances whatsoever made or suffered branoe.
by the said A.B. or any person or persons lawfully
claiming from under or in trust for the said A. B.
and that he now bas good right to _grant and convey Right to
the said premises in~manner aforesatd_i_
. an d th a t 1t assure,
sh;[ be lawful for the said C. D., his heirs, exe-
cutors and administrators and assigns, at all timBs
hereaf~er quietly to enter into hold and enjoy the Quiet enjoy.
. . or m
said oremises, without any ev1ct10n . -terrup twn. meat.
by the said A. B. or any person claiming through ~r
in trust for him and that tbe said A. B. and his
heirs, executors and admin istrators shall and will
warrant and defend the said premises an d every
part thereof unto the said 0. D., bis heirs, executors,
administratora, and assigns against any person or
persons whomsoever. Aod that the said A. B., his
heirs, executors, and administrators and every
person having or claiming any eetate, right, title,
or interest in the same premises hereby granted
and conveyed or any part thereof from under or in
trust for the said A. B. shall and will from time to Further
' aBsuranoe -
tiwe and at all times hereaHer at the request and
cost of tbe said A.. B , his heirs, executors, adminis-
trators . or assigns do and execute or cause to be
done and executed all such acts, deeds and things
whatsoever for further and more perfectly assuring
the said premises and every part thereof unto the
156 ~Il. X,:-PUROHASE AND SALE OF LANDS.
said C. D., his hairs, executors, administrators ai:ld
assigns in manner aforesaid as shall or may be
reasonably required.
Testimonium In witness whereof the said A. B. doth l:iereby
-clause,
set his hand to three of the same tenor and date as
these presents at Colombo this---day of---
one thousand nine hundred and nine.
Parcels, Tbe schedule above referred to:-
All that piece of land called---and situated
at---containing by admeasurement- ---or
thereabouts with tbe house and outhouses standing
thereon and other appudenances belonging thereto
and bounded on the East by tbe property of---
on the Nortb, ete:- - -' and which piece of land
is delineated and coloured pink in the map or plan
hereunto annexed.
A. B. (Executant).
Signed in the}
presence of us.
1. E . F. (Witness).
N. 0.,
2. L. M. (Witness).
Notary Public.
Transfer of a Cocoanut Estate for money
lent with an agreement to re-transfer
same on payment of all that money
and interest with Provisions for the
Management of the Estate by both,
etc , payment of interest, disposal of
proceeds, etc.
To all to whom tbese presents shall come
0. M. B. (also known as C. M. M. G. B.) of Colombo
sends Greetings : -
Whereas under and by virtue of a partiUon
deed dated---and attested by F. A., Notary
Public of Colombo under No.---and 2 transfer
deeds dated--and--and attested by F.A. (Jr.),
Notary Public of Colombo and A. K,, Notary Public -
TRANSF ER OF A COCOANUT ESTATE.
of Jaffna under Nos. 3027 and 5143 respectively, the said
C. M. B. is seized and possessed of all those several allotments
of land fully described in the Schedule hereto.
And whereas the said 0. M. B. has agreed with A. N. (!f
--for the sale and assignment unto him of the said sevaral
allotments of land free from all encumbrances at the price or
sum of Rupees F0rty-two thousand (Rs. 42,000) and subject
however to tbe conditions and terms hereinafter recited includ-
ing an agreemen~ to retransfer the prem ises hereby dealt with
on payment back to him of the said pri ce or sum of Rs. 42,000
within five years from the date ,hereof and upon payment in
the meantime of interest computed on the said sum of
Rs. 42,000 at the rate of ten per cent. per annum in manner
he-reinafter specified.
Now know ye and these presents witness tbat the said
0. M. B. (also known as C. M. M. G. B.) of Colombo in pur-
suance of the said agreement and in consideration of the said
aum of Ru pees Forty-two t housand (R1. 42 ,000) paid by the
sai'd A. N. of--(the receipt whereof in full the said C. M. B.
doth hereby admit aud acknowledge) and in consideration of
the premises doth hereby grant, convey, assign, transfer, set
over and as sure unto the sa id A. N ., his heirs, executorA, ad-
ministrators and assigns , all t hose afore said several allotments
of land called, e tc., and more particularly desoribed and aet
forth in the Sohedule to these presents together with all
buildings, trees and plantations thereon and all privileges,
easements and other appurtenances whatsoever to tbe said
premises belonging or in anywise appertaining or usually held
used, occupied or enjoyed therewith or reputed or known as
part parcel or member of the same or to belong or b~
appurtenant thereto and all the estate, right, title, interest,
property, benefit, claim and demand whatsoever of him the
said 0. M. B. in, to, out, of and upon the said premises and.
ovary part thereof.
To have and to hold tbe said premises hereby granted
and assured or expressed so to be unto the said A. N ., his heirs.-
executors, administrator-a and assigns-for ever, subject however
 158 OH. X.---'PUROHASE AND SALE OF LANDS.
to the conditions and agreements. on: the part of the sa.id
A. N. and his aforewritten to ratransfer the said premises
hereby dealt with unto the said O.M.B ., or bis hairs, executors,
administrators or assigns on payment back of the purchase-
money, viz,, Rs. 42,000 within the said period of five years
from the date hereof and upon payment in the meantime of
interest thereon computed at and after the rat9 of ten per
-cent. per annum from the date hereof in manner hereinafter
specified and subject also to the following covenants, condi-
tions, terms and agreements, that is to say : -
1. On and after the execution of these presents the said
A. N. and his heirs, executors, administrators and assigns shall
become entitled to entet into possession of the said premises
with his or their agents, attorney or attorneys, kanakkap-
pillais, kanganies, coolies and labourers.
2. The said C. M. B. and his aforewritten shall and will
carefully keep and maintain the said premises hereby
conveyed and assured in a good and proper state of manage-
ment and cultivation and the houses, bungalows, stores and
other buildings now standing thereon or which may at any
time hereafter be erected thereon in proper order and repair
and shall and will suffer and permit the said A. N. and his
aforewritten or his or their agents, attorney or attorneys
from time to time to visit and inspect the state of cultivation
and order of the said premises and the conditions of the
houses, bungalows, stores and other buildings thereon at all
,t imes during the said period and for such purpose or purposes
to stay in the said premises.
3. The said C. M. B. and bis aforewritten sball be
allowed to work the said premises during the said period of
. 5 years and collect all the produce of the said premises subject
however to the condition !,hat all the proceeds realized by
. sale of such produce shall forthwith be paid into the hands
of the said A. N. or his aforewritten or his or their agents,
attorney or attorneys and whose recaipts shall be valid for
all purposes. The proceeds so paid shall first be aporopriated
.-t owards the working expenses of the said premises which
TRANSFER OF A COOOANUT ESTATE. 159
it is agreed shall not exceed Rs. 1,500 a year and the
'b alance thereof in payment and reduction of the interest on
the said sum of Rs. 42,000 or on any reduced amount thereof
as the principal amount then due.
4. The said A. N. and his aforewritten shall have the
right to charge Rs. 15 a month as wages of a man whom he
may keep on the said premises to check what is being done
by the kanakkappillais, _kanganies, coolies and labourers
-employed by tbe said C. M. B. for the working and manage-
ment of the said premises and the said sum of Rs. 15 shall be
included in the working expenses of the said premises.
5. If the said A. N. or his aforewritten shall be reasonably
-dissatisfied with the working and management of the said pre-
mises and if he or they shall express in writing his or their
willingness or desire to improve the said premises in any
,respect or direction, he or they shall be allowed to direct the
workmen, kanakkappillais, kanganies, coolies and labourers
employed by the said C. M. B. or his aforewritten wbo shall
carry out thA directions of the said A. N. or his aforewritten
and if such direction be not adopted and complied with then
it shall be lawful for the said A. N. or his aiorewritten to
employ his own men to carry~ ch directions at a cost which
shall not raise the total working expenses above the said
sum of Rs. 1,500 a year unless by mutual consent otherwise
agreed.
6. If the said C. M. B. or his aforewdtten happen to fail
to pay back the said sum of R3. 42,000 and the interest there-
.on or the reduced amount which may then be found due, these
presents shall be taken as, and have the full effect and virtue
of, a good valid a.ad absolute transfer and conveyance without
any further instrument act or deed on the part of the said
C. M. B. or his aforewritten.
7. The said C. M. B. or his aforewritten shall not allow
-or suffer the payment of tbe wages of any of the kanakkap-
pillais, kanganies, coolies and labourers who now are or who
shall or may from time to t,ime hereafter during the said period
,of five years be'employed on the said premises to be in arrearS-
160 CH .. '\X,.-PURCHASE AND SALE OF LANDS.
and unpaid provided however that if the said C. M. B. or his
s!orewritten shall allow such wages to be in arrears and unpaid
as aforesaid then it shall be lawful for the said A. N. or his-
sforewritten to take charge of the said premises and to pay and
satisfy the wages aforesaid and to keep the accounts and apply
the sums so paid against the produce 0f the said premises and
to apply the balance only towards the payment and liquidation
of the interest and the principal as aforesaid.
8. It is also hereby expressly declared and agreed that.
notwithstanding anything in these presents contained, the
aforesaid premises shall not be liable to be seized oi' sequest-
ered or otherwise taken in execution of any wrH, decree, claim
or demand against tbe said C. M. B. or any of his aforewritten
under any pretext whatsoever.
9. The interest stipulated aforesaid, viz., the interest at ten
per cent. per annum .calculated on the said sum of Rs . 42,000
shall be payable half yearly on the 30bh day of May and
November in each a nd every year the fir st of such payments of
interest to be made on the 30 ,,h day of May 1919 now next
ensumg. T be proceeds recovered on the sale of the produce
and appropriated by the said A. N. and his aforewritten as
aforesaid shall be taken into account on the payment of interest.
and principal as aforesaid provided however that if any one of
the aforesaid half yearly pay men ts ,of interest shall be in
arrears for over a m on th after the due date the same shall be
calculated and be payable at and after the rate of twelve per
cent. per annum .
~ these presents set their respective bands at J affna this thirtieth
And the said 0. M. B. doth hereby,_,,for himself and his
aforewritten that the said premises and every part thereof are
and is free from all enc.umbrances whatsoever made or suffered
by the said C. M. B. or any person or person;; lawfully claiming
from under or in trust for him and tbat he now bas good right
to grant and convey the said premises in manner aforesaid and
that the said A. N. and his aforewritten may at all times here-
after quietly enter into hold and enjoy the said premises with-
out any eviction or interruption by the said C. M. B. or any .
person or persons claiming through or in trust for him and that,
TRANSFER OF A COCOANUT ESTh E. 161
the said C. M. B. and bis aforewritten shall and will warrant
and defend the said premises and every part thereof unto the
said A. N. and his aforewritten against any person or persons
whomsoever. And that tbe said C. M. B. and his aforewritten
and every person having or claiming any estate, right, title or ~
interest in the same premises hereby granted and conveyed or
any part thereof fro m u nder or in trust for him shall and will
from time to t ime a nd at all times hereafte r at the req uest and
cost of the said A. N. and his afore writ ten do and execate or
cause to be done a nd executed all such furt her acts, deeds an d
things whatsoever for further and more perfectly ass uri ng the
said pre mises and every part thereof unto the s aid A, N. and
his afore wri tten in manner aforesaid as shall or may ba
reaso nably required .
An d these presen ts further witness t hat the said A. N . in
pursuance of the said agreement and in consideration of the
aforesaid prtblises dot h hereby for himself and his aforewritten
covenant wit h the said C. M. B. and his aforewritten that he
and bis aforewritt~n shall and wiil upon payment to him or
them of the aforesaid sum of Rs. 42,000 and interest as afore-
said within the aforesaid period of five years, he and they shall
and will at tho cost of the said C. M. B. or his aforewritten
effect a good an d valid con veyance of t he a foresaid premises
free from ali encumbrances in favour of the said C. M. B. and
his aforewritten or his or their nominee or nominees.
In witness whereof the said Q. M. B. and the said A. N .
have hereunto and to two others of the same tenor and date as
dayof November one thousand nine hundred and eighteen.
The Schedule referred to above.
Signed in the presence of us :--
1. N. C. (Sd.) C. M. B.
2. V. K. (Sd.) A. N.
(Sd.) S. K.,
N.P.
I, S. K. of Jaffna, Notary Public, do hereby certify and
attest that the foregoing instrument was read over by the said
21

162 0:!l, X.--PURCHASE AND SALE OF LANDS.
0. M. B., and hy the said A. N. (who signed as--) both of
whom are known to me, in tbe presence of N. 0. and V. K. both
of Jaffna Town, the subscribing witnesses hereto both of whom
are kuown to me, the same was signed by the said 0. M. B. and
A. N . and also by the said witnesses in my presence and in the
presence of one another all being present at the same time
at Jaffna this thirtieth day of November one thousand nine
hundred and eighteen.
I further certify and attest that in the Origin .al in line 4
from _the end of page 4 the words " the said " were scored off,
in lines 11 and 15 of page 5 the words '.' or " and " in " were
interpolated in line 18 of the same the word "aforesaid" was
erased and retyped and in the Du plicate and Protocol in line 6
-of page 4 the words " whab is " were scored off and the words
" of a man " were interpol ated in line 3 from the end of page 7
the word "claimed" was scored off and the word "called"
was in terpolated before the foregoing ins trument was read over
as aforesaid by the said 0. M. B. and A. N ., tbat t hree Deposit
,Notes in favoUl' of V. K. for the amount due to him from the
said C. M. B. in Case No.--, D. 0 ., ,Taffna, granted by the
Chatty Firms A. R. A. R. S. M., M. K. P. R. and P. L. S. M. for
Rs. 25,000, 9,000 and 5,000 respectively and a Promissory
Note granted by the said V. K. in favour of the said M.K.P.R.
for Rs. 1,000 duly cancelled were handed over and Cash
Ra. 2,000 was paid in my presence by the said A, N. that the
Duplicate of this instrument bears six stamps of the value of
Rs. 420-50 eta. and the Original one stamp of the value of
Re. 1 and that the stamps were supplied by me.
Date of attestation.
30th Novemher 1918.
Which I Attest,
(Sd.) S. K.,
Notary Public.
8 of the way to be grnnted, It should also be provided at who.s e expense
GRANT OF A RIGHT OF WAY. 1'63
Grant of a Right of Way.':'
To all to whom, ete.,----A. B. of----sends
G reetings : -
Whereas unde1: and by virtue of a donation deed dated
,etc. ---the said A. B. is seized and possessed of all that
plot or parcel of land hereinafter described and over which
the right of way hereinafter men tioned is intended to be
hereby granted.
And whereas the said A. B. has agreed with C. D. of--
to grant the right o>i way to the said 0. D. for the sum of
Rs. 500.
Now know al! men by these presents that in pursuance of
the said agieement and in consideration of the sum of Rs. 500 '
now paid by the said C. D. to the said A. B. (the receipt
wbel'eof is h-ereby acknowledged) the said A. B. doth hereby
grant, convey , set over and assure unto the said 0. D ., bis heirs
and assigns all persons authorised by him or them to go,
return, pass and repass with or without horses, carts, wag-
gons and other carriages a nd motor cars laden or unladen
and also to drive cattle and other beasts in, through or along
and over a certain road or way of the width of 12 feet and
marked [A] upop the plan di awn by- - -- , Licensed Surveyor
and dated----to the point marked [BJ upon the said
pl0,n such line or road being shown upon the said plan and
being thereon coloured pink and being in tho length altogether
100 feet such way or road to be at all times hereafter kept
in good and sufficient repai1~ by and at the expense of the
said C.: D. , his heirs and assigns.
To have to hold, etc.
In witness whereof, etc.
This must be by a uota r. ial instrument. It should be stated with
clearness wbat kind of way is intended to be granted ; and oare should be
ta.ken to mention with preoision the ci'iiurse and direotion of the way, A
plan is the most convenient means of describing the route and the nature
Lhe way is to be kept in repair and whether the grantee is to have - power:
to repair. Kelly, p. 177,
 164 CH. X.-PURCHASE AND SALE OF I ANDS.
Sale by an Administrator.*
To all to whom these presents shall come I - - ~ o f
----send Greetings : -
Whereas certain----of.-- --haviog gone to Calicut
in India (or having lived at--as the case may be), died
there on or about tbe--day of --without having made a
will and leaving property in J affna wibbin the jurisdiction.
of the District Court of J affna.
And whereas Testamentary proceedings had been taken
in the District Court of J affna and Letters of Administration
to the Estate of the -deceased intestate was granted to me
by the District Court of J affna in Testamentary Case No.-
.-
of the said Comt.
And whereas to meet the debts and liabilities of t he
estate of the deceaS'ed it bad become necessary that the
land mentioned in the inventory filed in the said Testament-
ary Case and belonging to the deceased intest,ate should be
sold and whereas the necessary permission of Court to sell
the said propurty was obtained on tbe--day of---as per
order of Court dated the said date.
And whereas the 4th land mentioned in the inventory filed:
in the said Case No ................ Testy. D. C. J. and more fully
described herein below was put ,up for sale by public auction
on tbe--day of--when A. B. of--was declared the
purchaser as the highest bidder for Rs.----
And whereas the said A. B. being the mortgagee of the,
said land he was given credit to the full amount of purchase
[or having deposited the full amount of purchase to the credit.
of the said case] , it has become necessary to execute these
presents in favour of the said A. B.
Now know all men by these presents that I the said--
of---in my capacity as Administrator aforesaid, having
been appointed such Administrator by the District Court of
Jaffna in Testamentary Case No.---of the said Court, for
and in consideration of the premises aforesaid and in consi-
deration of the sum of Rs.---so credited (or so deposited
The usual covenants are not possible in this case.
TRANSFER BY AN AUCTIONEER, ETC. 165
as the case may be) (the receipt whereof in full is hereby
admitted and acknowledged) do hereby sell, grant, convey,
assign, transfer, set over and assure unto the said A. B., his
heirs, executors, administrators and assigns all that piece of
land (description of land).
To have and to bold the said land and premises together
with all and every of their appurtenances of the value of
Rs.--unto him the said A. B., his heirs, executors, adminis-
trators and assigns for ever.
In witness whereof I the said, &c.
Transfer by an Auctioneer or Commissioner
appointed by Court to sell under a
Mortgage Decree.
To all to whom these presents shall come J. N. of- --
sends Greetings:-
Whereas under and by right of purchase as per deed No.
--dated--attested by A. S., Notary Public, the late C. N.
and wife P. of--were seized and possessed of or otherwise
well and sufficiently entitled to all that piece of land called
--in extent ---and more fully described in the Schedule
hereto.
And whereas by Bond dated--attested by--N. P.
under No.--the said late C. N. and wife P. bound them -
selves to pay jointly and severally to K. P. of--and K. K.
-o f--, or to either of them, their heirs, executors, administra-
tors and assigns the sum of Rs.--with interest thereon at the
rate of eight per cent. per annum and for better securing the
said sum of money and in terest the said 0. N. and wife P.
mortgaged and hypothecated to and with the said K. F. and
K. K. the said land and premises and two other lands.
And whereas the said K. K. sued the said P., her husband
being dead, in Case No.---of the District Court of Jaffna and
-0btained ju:lgment for the recovery of the sum of Rs.---with
further interest and costs.
And whereas on an application made by the said K. K.
the plaintiff in the said case, the said J. N. of--was by
-0rder of Court dated---appointed Commissioner and was
 166 CH. X.-PURCHASE AND SALE OF LANDS.
authorized to sell the said lands and premises by public
auction and to execute the conveyance in favour of the pur-
chaser at such sale.
And whereas the said J, N. caused the said land and pre-
mises to be put up for sale by public auction on the--as per
conditions of sale dated--and atte:i)ted by--N. P. unde1
No.--, and whereas M. S. of--, as the highest bidder at
such sale, was declared the purchaser thereof at and for the-
price or sum of Rs.---.
And Vl(hereas the said M. S. having deposited tbe iull
amount of purchase and otherwise having conformed to the
terms of the conditions of sale, bas calle_d upon the said J. N.
to execute a valid transfer in favour of the said M. S.
Now know ye and these presents witness that the said
J. N. of--in pursuance of the premises aforesaid and in con-
side ration of the said sum of---well and truly deposited by
the sai:1 M. S. in the said Case No.---, D. C., Jaffna (the
receipt whereof is hereby admitted and acknowledged) doth
hereby grant, convey, assign, transfer, set over and assure
unto the said M. S ., his heirs, executors, administrators and
assigns all that piece of land called--- in extent----
situated a t - - - - together with all and singular the appurte-
nances thereof or thereunto belonging and all the right, title,
estate, interest, claim and demand whatsoever of the said late
C. N. and wife P. in, to, out, of or upon the s11id land and
premises and every part thereof.
To have and to hold the said land and premises hereby
granted and conveyed and assigned unto the said M. S., his
heirs, executors, administrators and assigris absolutely for
ever,
In witness whereof the said J. N. have hereunto and to
two others of the same tenor and date as these presents set his
hands at----this day of August one thousand
nine hundred and twenty . .
The Schedule referred to.
(Description of land). Signed in the presence of us.
CONVE YANCE TO PURCHASER BY COURT. 167
Conveyance to Purchaser by Court.
(i.e., when the Commissioner had no power to execnte the deed.)
To all to whom these presents shall come Greeting : -
Whereas by virtue of an Order of Cou~t in Case No.--,
datec!--, Mr. C. E. was directed to sell by public auction the
property mortgaged by--the defendants judgment-debtors in
the said case.
And whereas Mr. 0. E. has as ner his report filed in the
said cas; and dated---after a;e notice and publication
exposed the said property to public sale on the---day of
- - a n d sold to-----as the highest bidder of the said sale
for the sum of Rs.---.
And whereas the said---was duly credited with the
sum of Rs.---being the purchase money and has thus
become entitled to a conveyance to the said property.
And whereas the said Co urt by an Order dated---has
duly confirmed the said sale.
Now these presents witness that---Esquire, District
Judge, Jaffna, in h is capacity as District Judge, for and in
consideration of the said sum of Rs.----so credited as
aforesaid .has sold and assigned, and by these presents doth
hereby sell and assign unto the said---his heirs, executors,
administrators and assigns, the property decreed to be sold
under the above action No.--of this Court, viz:
To have and to hold the same with their and every of
their appurtenances unto him the said---his heirs, exe-
cutors, administrators and assigns for ever.
In witness whereof the Ra!I District Judge hath here-
unto fmhsoribed his name at Jaffna this---day of---
19L7.
District Judge.
 . '
168 CH. X.-PURCHASE AND SALE OF LANDS.
Land Acquisition for a Public Purpose,
Agreement and A ward.
Name of Land---.
Village---. P. Plan No.---. Lot---.
It is hereby agreed by and between B. H., Government
Agent for the--Province, and A. B. of--being the person
interested in the Land called---situated at the Village--,
in the--Pattu of the---Korale, and described as Lot
- - - i n tbe Surveyor-General's Plan No.----, dated
tbe---, of Lands required for the construction o f - - - -
that the amount of compensation to be allowed for the same
ought to be Rupees Two hundred and uo more. Signed by the
-said Government Agent and the said A. B, at---this
- - day of---, one thousand nine hundred and
Witnesses : -
B. H.,
Government Agent.
... A. B .
Awa1d.
To 11ll to whom t,heso presents shall come.
I, B. H., Gov~rnment Agent for the---Province of the
Island of Ceylon, send Greeting :--Whereas by " The Land
Acquisition Ordinance, 1876," it is amongst other things
enacted that if , the Government Agent and the persons
interested in any Lands required for any public purpc;>se should
agree as to the amount of compensation to be allowed by the
Government in respect of any L'l.nds needed by the Government
under the prrwisions of the said Ordinance, such agreement
shall be recorded' in writing and signed by the Government
Agent and the person so in;irested, and that the Government
Agent shall make his Award in pursuance thereof:
And whereas I, the said B. H., Government . Agent for
the said----Province, and A. B. of---being the person
interested in the Land called-'- -situated at the Village
..
CERTIFICATE Op' SALE TO THIRD PARTIE 169
----in the----Pattu of the---Korale, described as Lot
- - - i n the Surveyor-General's Plan No.--, dated---,
.and needed by the Government for a public pu!pose, namely,
for the construction of a Road have agreed as to the amount
Of co'mpensation to be allowed for the same, and such agree-
ment' has been recorded in writing and signed by the said
Government Agent and the person so interested as aforesaid :
Now know ye that I, the said B. H., Government Agent
for tho said----Province, do hereby in pursuance of the
Tenth section of tbe said "Land Acquisition Ordinance, 1876,"
award and det_e rmine that the sum of Rupees Two hu~dred
ought to be paid by the Government. of the said Island for tbe
purchase of tbe said Land, Lot---at---as or by way
of compensation, to the said person so in terested as aforesaid.
In witnes's whereof, I do hereunto set my hand a t - - - -
in the said----Province, this---day o f - - - - one
.t housand nine hundred and twenty-one . .
B. H.,
Government Agent.
Certificate of Sale to third parties.*
Unde1 the Local Board's Amendment Ord. No. 19 of 1905
(Form A) and under the Municipal Councils Ord. No. 6 of
1910 (Form G).
Whereas C. of--was rated (or taxed as the case may
be) under the L.B.'s Ord., 1898 (or the Municipal Councils
Ord., 1910, as the case may be) and became liable to the L.B.
of (or M.C.) in .t he sum of Rs.--inclusive of costs, and
made in payment thereof.
And whereas warrant of distress was issued in conformity
with the said Ord. and the property of the said O.--to wit
{hePe desoribe the property) was so.Id on this--day of--
and the same was purchased by _D. of--for Rs.--which
sum has been duly paid by the said D.
Stamps as for a conveyance, Seo. 2 (2) of 19 of 1905 and Sec. 143
of 6 of 1910,
22

170 CH. X.-PURCHASE AND SALE OF LANDS. CERTIFICATE OF SALE ...... PART. ORD. 17r
Now know ye and these presents witness that I, A. B., the- been duly credited to the said L.B. (or M.C.) and tb ; t the
Chairman of the said L.B. (or M.C. _as the .case may be) by said prem ises are and shall henceforward be veated in the
virtue of the powers vested in me by the said Ord. do hereby said Loeal Board (or M.0.J free of all encumbrances.
certify that such sale and purchase have duly taken place and Given under my band at----this--day o f - - - -
that the property above described is and shall henceforward 1917.
be vested free from all encumbrnnces in the said D. of--,
A. B.,
his heirs, .execuhors, administrators and assigns for ever.
Ohairmxn.
Given unde_r my band at--tbis--day of- -}917.
A. B., Certificate of Sale under the Partition Ordinance ..
Chairman. IN THE DISTRICT COUR r OF JAF.FNA .
No.
Certificate of Sale to L. B. or. lVL C. *
1.
Under 13 of 1898 and Ord. No. 19 of 1906 (Form B) and
under the Municipal Councils Ord. No. 6 of 1910 2.
(Form H). Plaintiffs, .
Whereas the sum of---was duo to the L.B. (or M.O.) vs.
of--by C. of---for and on account of rates or taxes and a
(Dead) 1. Thambipillai Ratnasamy of Valvettyturai.
further sum of---was likewise due for costs and charges ,.
which sums have not been paid by the said 0. Minor, 2. ThamhiRillai Ramasamy of Valvettyturai.
Defendants ..
And whereas the land hereinafter described belonging to
the said C. was seized and sold in conformity with the provi- The 2nd defendant is a minor
sions oi the " L.B. Ord., 1898 (or M.C. Ord. 6 of 1910) and by bis Gu ard ian ad litem the
the same was purchased on the day of--1917 for and on 1st defendant who having
behalf of the said L.B. (or M.C.) in part satisfaction (or full.
as the case may be) of the sum of Rs.--so due ~s afore-
. ilied Kanapatbipillai Cbinniah
of Valvettyturai is appointed
said and Rs.--for costs and charges. Guardian ad litem over the
Now know ye -and theRe presc1nts witness that I, A.B., 2nd defendant.
the Cbairrnan of the said L.B. by virtue and in exercise of Minor. Ratnasamy N adarasa of Valvettyturai.
the powers vested in me in this behalf by the L.B. Ord. 1898
Substituted defendant in the
as amended by the Local Board's Amendment Ord. 19 of 1905,
place of 1st defendant, de-
(or M.C. Ord., 1910! do hereby certify that the following pro-
ceased.
perty (here describe the propedy) has been sold to -and ~
purchased by the said Chairman for and on behalf of the
. A .minor over whom bis mother
said L.B. (or- M.O;) for the sum of Rs.--which sum has-
. Cliellakkandu, widow of
Thambipillai Ratnasamy of
Io the o!l.se of L . B. free of stam,ps, Seo. 2 (5) of 19 of 19C'5. In the, ,. Valvettyturai is appointed.
ase of M. C, stamps as for a conveyance, Sec . 146 of 6 of 1910. Guardian ad litem.
 ll'
CH. X.-PURUHASE AND SALE OF LANDS.
172
I - - - , District Judge of J affna, do hereby certify that of
the land- situated at--called--in extent--a divided
3/12th share on the North in extent 17,27/32 kulies, with
stone built house, kitchen and half share of the well standing
-on the Southern land and bounded on the East, etc., and
represented in Plan No. 3153, dated 27th March 1916, made
by Mr: G. 0., Licensed Surveyor, a copy of which is hereto
annexed and :filed in this above Case No.--was under and by
virtue of an Order of Court dated -- - - sold by Public Auction
on the 15th August 1917 and wail purchased by the 1st
plaintiff for himself on behalf of bis wife (the 2nd plaintiff) as
the highest bidder for the sum of Rs.-and that the
2nd plaintiff-purchaser having been given credit to the
extent of her claim in the said 111,nd, viz., Rs.----has
deposited in Court the balance amouI?,t, viz.,, Rs.----as
,required by the 8th clause of Otdinance No. 10 of 1863.
Given under my band and the seal of this Court at
J affna this---day o f - - -
District Judge.
.
CONVEYANCE IN FEE OF A FIRST RENT CHARGE. 173,
Conveyance in Fee of a first Rent Charge.
(English form).
This Indenture made the--day of---between
[Vendor] of, etc., of the one part and [purchaser] of, etc., of
the other part.
Witnessetb that in consideration oi the sum of - -
upon the execution of these presents paid by the said [purcha-
ser] to the said [Vendorl (the receipt whereof is hereby
acknowledged) the said [Vendor] as beneficial owner hereby
grants and conveys unto the s0,id [purchaser] and his heirs all
that yearly rent charge of ---created by an Indenture
dated tbe --day _of---and made between [original gran-
tor] of, etc., of the one part and the said [Vendor] of the
other part and issuing out of all that, etc. [parcels] and also
all and singular the powers and remedies for recovering the
said yearly rent charge and the full benefit of the covenants
and conditions in the last-mentioned indenture contained and
on the part of the said [grantor] his heirs or assigns to be
observed and performed.

Simplest form of a Purchase Deed under the To hold the same unto and to the use of the said [pur-
English Law after the Conveyancing Act of 1881, chaser] in fee simple.
This Indenture made the 19th day of May 1817 between In witness, etc.
A. (the Vendor) of---of the one part and B. (the Vendee) [Signature and Seal of Vendor,]'
-of---of the other part.
Whereas the said A. is seised of the bereditaments
,intended to be hereby conveyed for an estate in fee simple
in possession free from encumbrances and has agreed to sell
the same to the said B. for the sum of --- -.
Now this Indenture witnesseth that in consideration of
-
the sum of ---now paid by the said B. to the said A.
(the receipt whereof the said A. hereby acknowledges) the

said A. as beneficial owner hereby conveyed unto the said
B .. .. All that piece of land, ek
~o have 11.nd to hold unto . and to the use _of the said B.

in fee simple, the said premises.
In witness whereof, etc.
,.
..

CHAPTER XL
M O RTG A GE BOND.
1.-Bon ds in General.
A BOND or obligation is a deed whereby one called the
obligor binds h imself to on e called the obligee
or to d~_o_~ other j;_hjpg (a) .
The obligor is generally bound in a penal sum, double
the amount of the sum intended to be secured, and on h is
failing to perform bhe con:iibion, t he bond becomes forfeited at
law , but equity interposes to rest rain t he obligee from taking
more than the principal and int erest (b).
Although the usual manner of framing t he bond is t he
best, yet any words in a deed wh ich appear on the face
of it to ha'9'e been intended as a bond, will make a good obli-
ga tion (b).
A bond given witho ut c,onsiderat ion by a person in. a
st ate of insolvency is void as a fraud u pon all per-
sons who were credi tors at its date and prejudiced by
it (c),
There are several ki nds of benefits and exceptions introduced
by the Roman L a w and adopted in our for ms a nd t hey require
some explanation.
By the II beneficium ordiinis sev excussionis ' ' a surety
might refer the creditor to excusb in the first place, the goods
" {bl H, T. 200 .
(cl Silva v. Mack, 1 N ,L,R. 131-
(a) 1 Cr, !192,
(b) 1 Cr. !l9!l. . (e) H. T. 203 .
BONDS IN GE NE RAL . 175
Of the principal debtor. It is usually renounced when a
person binds himself as surety for another (a).
Tbe effect of the "bene/icium d~isionis " is, t hat t he debt
may be divided, by the sureties and each surety pay bis share
bub if the sureties renounce the ben efit, they are each of them
obliged to pay the whole debt {a) .
II
By the benefici um novae co nstitutionis de du, bus vel
pluribus reis debendi " each of the debtor wa s only liabie for
his sh are of the deb li, unless ha bad renounced this benefi t in
which case each debtor would be lia ble fo r t he whole de bt (b) .
In othe i' words unless it is expressly otherwise stater! each of
the debtors arn jointly liable, i,e.,*each fo r his share, but if it
is " join tly and severally " every one of the de btors is liable
for tbe whole.
B y t he " benefi, cium senatus conrnlti velletini" females
whether sole or married are in ca pacitated from ;ontracting an
obligati on as.sureties for anot her unless they ren oun ced t he
benefit (b) in express terms (c).
" De a1tthenticae si qua mulier " incapacitated women from
becoming sureties for t heir husbands u nless they renounced th e
benefit under this la w (d). T his being :1 speci al privilege it
should be separately renounced (c) .
If the debt ar i~es from money lent and adva nced the
oxoeption '.' non-numeratae vecuniae " of money not paid should
be r enounced (e).
41
The debt(H' and sureties should be full y inform ed of
the force and effect of t he benefits reno unced by them and
the Notary should state in the dead th at t hey have been
duly explai ned (e).
The "causa debiti ," i.e., t he cause of debt or the con -
11ideration for the bond being an esse ntial req uisite in a,
bond it is import ant t hat it should be correct,lv descri bed.
(q) H. T. 1~9.
(c) Goon etileke v, Abeyagoonasekere, 17 N .L,R. 368,
(d) H. T. 201.
176 UH. XI.-MORTGAIJE BOKD.
If the debt arises from goods delivered, the exception-
of revision of a.ccount," "errors of calculation" and "no
11alu received," should be renounced (a).
II.- Mortgage.
(a) DEFINITION.
The term .. Mortgage " used in our law was not known
to the Roman L aw but was an inv~ntion of the middle
ages (b). It is a pledge whereby anything is specifically bound
to the creditor for furth er security of his debt (c). Mortgage
is that P!iyilege 9-ver the prn mirt of aootber which tenqs to
t~e securi~y of a debt or per.son al claim (d).
A mortgage is defi ned by the late Mr. Fisher as "a 1
form of security created by contract conferring an interest in -;,
property defeas ible (i e. , annullable) upon pcrfol'.lll ~~ the
1
condition of paying a given sum of money with or without .
interest or of performin g some other conditions (e). . veyance o( this nature and a mortgage under the English L11,w
It imports a debt, i.e., a personal liability by the mort-
gagor to repay it with the stipulated interest(/).
It includes pledges strictly so calle:1 and also hypothec (g).
"Pledge " strictly so called, or " Pawn," was com:tituted
wh7u"' the thing which was the subj~ of the contraqt was
delivered to the creditor ; while the transaction w.as called
"hypo~~ec" when the possession did not pass (h).
The p/1fJtum antichresios is an agreement by which the
creditor was to have the use of the thing mortgaged in
place of interest until payment of the debt. A mortgage
with such a fact annexed to it is known as U.,!.Ufructuary
(a) H. T. 204,
(b) Jaye, 2,
(c) V.D,L. 1, 12. 1; Bal. P, and T. 169.
(d) Grot. 2. 48, 1; 2 W. P. 413.
(e) Fisher on Mortgage, 5th Edition 1 ; 8 Enoy, 444.
(f) 8 Ency. 445,
(g) Jaye. 2.
(h) 2 W, P, 413,
..
MORTGAGE- ITS NATURE AND SOOPE. 177
mortgage (a). Under the Thesawalamai the usuiructuary
mortgage is termed at) otty mortgage. English text-books call
it a " Welsh moE_t~~ge" (f;}:-- --
The pacjum_com'!J!:~Ssori1-vm is a pact whereby it is agreed
between the debtor and the creditor that, if the debtor did
not pay the debt on a particular day, the property mort-
\ gaged should belong to the creditor. This pact is not
allowed to be annexed to a mortgage now, as it is considered
, to be harsh and unjust (c).
For Pawns, see Pawn-broke~s Ord. No. 8 of 1893.
Mortgage under the English Law may be described as a
ll
conveyance of land to tha creditor subject to a proviso for
reconveyance on payment of the debt and interest (d),
On the other hand, a vendor can convey land to a pur-
chaser s ubject to a power of repurchase by the vendor at a,
given time for a fixed sum. Tbe distinction between ~ con-
is very clear in principle. In the one case the contracb is
really for a sale subject to locus poenetentiae on the part of the
vendor. In the oth er case, the parties do not contemplate
that t he property sh all change hands, and it does not do so
even on non-payment of the money on the appointed day ; it
only does so by the con sequence of legal proceedings taken hy
the creditor for t he purpose of procuring repayment of the
money (e).
(b) MORTGAGE-ITS NATURE AND SOOPE.
A hypothec is a kind of accession to the principal obli-
gation and cannot ordinarily subsist without it (/).
Under the Roman-Dutch Law the general rule was
that mortgage did not cover interest, unless it was specially
(a) Jaye, 13,
(b) Ashburner on Mortgages, p, ll,
(c) Ram, 1843-55, p. 136; Abewikreme v. Carlo, 3 Lor, 68; Jaye, 15,
(d) Elp, 132,
(e) Elp, 133,
(/) Jaye, 10.
23
:;
178 CH. XL-MORTGAGE BOND.
stipulated (a). We having no us ury laws, any rate of interest
may be charged (b).
A mortgage may be given for a debt due at a future date,
-0r for one due, conditionally and also I for eviction (c) .
Sometimes the covenant to repay is extended not only
to the actual money lent at the time of the execution of the
mortgage, but also to advances to be made on some future
occasion. In those cases it is not the practice to state
expressly the total amount beyond which these advances
shall not be extended, but the deed is so stamped as to cover
a certain sum in excess of that advanced at the time of
the execution (d).
Where a mortgage of immoveable property is given to
secure (i) future advances, or (ii) the floating balance from
time to time dua upon any account or (iii) a contingent liability
arising out of a particular relationship, such mortgage shall
be effective as against any subsequent mortgage or transfer
notwithstanding that no money was due on the origin al mort-
gage, at the date of such subsequent mortgage or transfe);'.
This shall not affect the effect of prior registration (e).
The mortgagee, with a view to make punctuality in the
payment of interest, wishes to provide that, if tbe mortgagor
does not pay it punctually at the time stipulated, he shall
be bound to pay interest at a higher rate. He cannot do
this directly as the Court would treat the provision as a
penalty and relieve the mortgagor against it. But the object
may be effected by stipulating that the rate of interest shall
he, say 6 per cent., but that, if it ia paid punctually, pay-
ment at the rate of, say, 5 per cent, (i.e., at a reduced rate)
will be accepted ( /).
(a) Voet 20. 4 .. 27 : Jaye. 11,
(b) Caruppan Chatty v. H erft, 7 S,C,C. 181! ; Jaye, 14; Ord. No. 5 of
1852, Seo, 3,
(c) Voet 20, 1, 20; Jaye. 12,
(d) Gibson 212 , see also 22 of 1909, Seo, 25.
le) Seos, 1 and 3 of 8 of 1918.
(/) Gibson 211 ,
.
.
MORTGAGE-ITS NATURE AND SCOPE. 179
A non-notarial mortgage bond will not relieve the obligor
-of his personal obligation under the bond (a) .
A surety against whom judgment had been entered along
with the principal debtor, is entitled on payment of the debt,
to a cession of the creditor's rights as against the principal
debtor and not to an assignment of the decree (b}.
A bond hypothecating proper ty may be assigned ; and the
assignee is entitled to sue in his own name for the recovery
of the amount due (c) .
A mortgage is either (1) legal or (2) conventional.
(1) Legal mortgages are those brought about by the
operatio~ of law. The law grants _tacitly, and without any
previous agreement of the parties being thereto necessary,
the right of mortgages to the following parsons:-
0
To those who have lent money for the purpose of rap~ ir-
ing house or ship or have advanced something for the naces-
;;ry reservation of certain property over the house, ship or
other ; opa~ty (d),
To those who ha.ve advanced money for medical attend-
ance or necessary funeral expanses over all the property of
the deceased. Persons having this hypothec are entitled to
preference (d).
To minors and wards over the property of their
-0urators for any loss suffered through their negligence or mal-
administration (e).
To masons, carpenters, builders and others for the
repairs (but not for the ornaments and improvements) made
by them or any building or for materials furnished for this
purpose (e).
To bleachers of linen and the like for their charges (a).
(a) Lushington v, Caralie, 14 N, L. R. 46~.
(b) Lebbe Ma.rikar V, Tamby Marikar, 5 Bal, 82,
(c) Raman Chetty v. Ferdinanda, 2 C. L, R , 194 ; Jaye, 12,
(d) 2 W , P. 418; Bal, P. and T, 170.
(e) v. D, L, I. 12, 2; Bal, 'P. and T, 170,

180 OH. XI.~MORTGAGE BOND.
To legatees on the property of the testator for security of
their legacies (a).
To inn-keepers on the goods brought into the inn by
persons, for board and lodging due by them (b).
To the Crown over the property of those who are its-
debtors (whether upon mortgage, judgment, award , bond or
other specialty or upon simple contract). The Crown is entitled,
to a preference over ,all specialties and other debts con_tracted
by its debtors subsequent to the accruing of the debt to the
Crown (c) and by its officers subsequent to t he date of
employment {d).
The Crown has no hypothec in the property of offenders
for fines and penalties; nor does the hypothec attach
until judgment has been recovered when the claim arises
ex delicto (e).
But t he lands or tenements of those who are in any way
employed in the collection of revenue or are in charge of public
property, are considered to have been specially mortgaged
for such debts when such officers wer.e first employed by the
Government ( /) .
To those who are entitled to census over the census pro.
party for the recovery of the census (g).
To a factor or agent on the goods of hfa principal for pre-
vious advances to the owner of those goods {g). .
To the master and crew for freight over ship and
cargo (h).
Municipalities have a tacit and preferent bypothec in-
respect of rates and taxes due to them (i).
(a) Mack v. Fonseka, 1 Bal, 130.
lb) Cens, For, 4, 37, 9; Bal, P, and T. 171.
(c) Ord, No, 14 of 1843, Seo, 5,
(d) Ibid, Seo, 4.
(e) Voet 20, 2, 9; Bal, P, and T, 175.
(f) Ord, No, 14 of 1843, Seo. 4,_
(g) 2 W, P. !118; Bal. P. and T. 172,
(h) V. D. L. I. 12. 2; Bal. P. and T, 172,
(i) Ord, No, 7 of 1887, Seo. 154 l Jaye. 33; Bal. P, and T, 172,.
MORTGAGE-ITS NATURE AND SCOPE. 181
..
Lessors have a special legal mortgage upon invecta et '-
:illata, i.e., upon moveabl~~_o-~@! ipto Jhe_!_{_l_aseg _premises,
in security for re;t due, and damage caused by the lessee.
Minors as well as majors are subject to this lien (a), Where
a tenant takes into the premises goods on the "hire-purch~se"
system, the landlord has a tacit hypothec over them (b). The
hypothec would be lost if there would be complete removal of
.t he things from the land;_ but an arrest may be made in the
-course of removal (c). A landlord's hypothec is privileged and
has preference over a prior spe~ial mortgage (d), The bypoth~c
is not lost by tho landlord taking from the tenant a promis-
. sory note for the amount due (e).
A conventional mortg_3!!:{8 is that which is not like the
preceding, , induced by operation of'iaw but takes place by
I '.J:,,f
express agreement of the parties and rela~es either ~o moveable
or immoveable property (f).
A' legal mortgage is not extinguished when a conventional
mortgage or sureties are given ; for as Voet says, " a provision
of man does not destroy the provision of the law when the
latter has preceded the former and each tends to the same
end; but rather the maxim ' super-abundance of caution does
not prejudice' applies" (g).
Under the Roman-D11tch Law a conventional mortgage
was either general or special. A gener~~ ~_2rtgage wu.s one
which extended over the whole of the mortgagor's property,
both present and future ; such a mortgage is not recognised by
our law (h).
Special mortgage extends over moveable as well as im-
mov~~ble prope;ty~, but a special mortgage of moveables need
not be so precise as that of immoveables (i).
(a) 2 Nathan 936; Bal. P, aud T, 173,
(b) Anglo-Oriental Furnishing Oo, v. Samarasioghe, 7 N,L.R, 12,
(c) Ram., (1877), p, 63,
(d) Vand. (1869-71), p, 103.
(e) Ex parte Austin, Ram,. (1872), P 18,
(/) V. D. L. 1. 12, 3; Bal, P. and T. 175, .
(g) Voet 20, 6. 12; ex parte Austin, Ram., (1872), 18; Ja.ye. 22.
(h) Ord. No, 8 of 1871! Seo. I.
~i) Cassie Labbe v. Idroos, 9 s.o :o, 109.
.
'I
182 CH. XI.-MORTGAGE BOND
A mortgage of moveable property is not valid unless it is
delivered over to the mortgagee and it continues to remain in
his possession from the date of mortgage, till date of action or
unless such mortgage is in writing Rand registered within four -
teen days (a).
A mortgage of immoveable property cau only be created
by a notarially executed writing (b). If immoveable property
subject to mortgage is transferred by the mortgagor or is so!d
by the Fiscal,the transferee takes it subject tosuch mortgage (c).
A mortgage by deposit of title-deeds without a notarial deed of
hypothecation is bad (d).
Mortgages in favour of the Crown need not be not;arial (e).
A mortgage may generally be extinguished by the creditor
becoming the owner of the thing mortgaged (f) ; but the debt
is not nec0ssarily extinguished by the purchase by the mort-
gagee of the mortgaged property when sold under ao otb~r
creditor's writ. Tbe morbgagee may recover the amount due.
to him from the general estate of tbe mortgagor (g).
A mortgage being accesiwry to the principal debt the
extinction of the latter dissolves the former (h).
A mortgage.is also extinguished when the deb tor has alien-
ated the property with the consent of the creditor (i).
When a mortgage has been hypothecated by the mort-
gagee to one of his own creditors and the first creditor (the.
origin al mortgagee) has been paid by the original debtor, th e
vincnlitm pignoris ceases in respect of tbe second creditor,
(a) Ord, No. 8 of 1871, Seo, 3 ; Ord. No, 7 of 1840, Seo, 21 (2),
(b) Ord, No, 7 of 1840, Seo, 2.
(c) Bal. P. and T. 177: Jaye, 48.
(d) Vand (1871), 267.
(e) Ord. 7 of 1840, Seo, 20.
(f) Jaye, 71.
(g) Jaye, 72; Ram. (1877), 316; Basanaike Nilame v. Havidiyalegay
Upendra, 3 S, 0, a. 106; Sinnohamy v, Sriwardene, 3 Loader, pt. IV, 11 ;
Burnon v. Appuhamy, 12 N. L. R, 300,
(h) Jaya, 72; Voet 20. 6, 2,
(j) Jaya. 72; Voet 20, 6, 8 and 6.
MORTGAGE-ITS NATURE AND SCOPE. 183
unless the second creditor bas given notice to the original
debtor not to pay to the original creditor, until be has been
paid himself (a).
A person who pays off a mortgage debt due by another
by giving his own bond for the amount, bas priority over other
credito,rs on the proceeds of sale of tbe mortgaged property (b).
In the ca,se of moveables, registration is essential to the
validity of a mortgage; but in the case of immoveables registra-
tion only confers priority. A bond of bypothecation of move-
able property does n.ot gain priority by reason of prior registra-
tion over a bond of an earlier date but subsequently registered
under the provisions of Ord. Jif o. 8 of 1871 (c) ,
If the mortgage of moveables is duly registered, the mort-
gagee has preference over unsecured creditors (d).
A posterior mortgagee can sell the mortgaged property ,
but such sale does not affect prior encumbrances, and in satis-
faction of which the property may be sold again (e).
If a mortgagor damages the property mortga-ged, and
diminishes its value, he is guilt,,y of mischief under Sec. 408 of
the Ceylon Penal Code. It. is not necessary for a mortgagee_
in such a case to prove that when be come; to realize the
security, he would not be able to recover the whole amount
due (/).
A mortgage or bypothecation of property which is the.
subject of a partition suit is void (g) ; but the right to recover
the money by a personal action remains (h).
A co-owner may mortgage his undivided share of the land
held in common and a subsequent partition does not affect the .
(a) Jaye, 72; Voet 20, 6. 2.
(b) Peria Carpen 'Q, Haotegederegey, 1 Lor. 128; Jaye, 75,
(c) Jaye. 76; Ram., (1877) 177; Ord, No . 14 of 1891, Seo, 17,
(d) Casi Lebbe Marikar v. Aydroos Lebbe Marikar , l O.L.R. 1.
(e) Jaye, 87.
(t) Meera Saibo v. Dureya, P.O. Kandy 31036; Jaye,, 88.
{g) Ord. No. 10 of 1863, Seo, 17,
(h) Jaye, 7.

184 OH, XL-MORTGAGE BOND.
-r ights of the mortgagee (a). A mortgage effected after decree
.for sale is also bad (b).
The propedy of minors cannot be mortgaged by their
.guardians without the consent or leave of the Court (c).
A mortgage bond executed by a minor is void even if the
loan is for his bem1fit and the deed was executed in the pre-
sence and with the implied authority of his father (d).
A morhgage executed by a married woman who represent-
-ad herself to be feme sole and by a minor who represented
himself to be a major was held to be invalid (e);
A widow married in community of property can create a
valid mortgage upon the common est ate for paying husband's
debt a nd the debt so con tracted is not her own but is charge-
-able upon the common estate(/).
The husband has a right to mortgage the property in
-community, not only his own half, but the whole (g).
Where tbe husb an d was present at the execu~ion of a
mortgage bond by uis wife, and by his subsequent conduct
recognised its validity, a nd where, ai ter her death, he was sued
as administrator and he pleaded that the bond was invalid as it
was exeouted without his written consent, Held, that the plea
was good (h).
Where a writ is re-called the seizure under it comes to an
end. Oa the writ being re-issued the property was re-seized
and sold. Held, that a modgage during the first seizure was
valid against the purchasor at the Fiscal's sale under the
second seizure (i) . .
(a) Ord. No, 10 of 1863, Seo, 12.
(bl Perera v, Alwis, 17 N .L.R. 135,
(c) Mustapha Labbe v. Martinus, 6 N. L. R, 364.
{d) Fernando v. Aponsu, 5 S. C, D. 49.
. (e) Siano Appu v. Podinona, 15 N. L. R. 241; C. A, C, 124, cf.
W1Jayasooria v. Ibrahimsa, J3 N. L. R. 195 ; 4 LeadeT 61 contra re
sale by a minor. ' Lebbe Marika.r, 1f> N. L. R, 466.
(fl Hadjiar v. Hendrick Appu, I! N, L. R."26 .
(g) Koo~ 36; Sellam v. Tailmuttu, I! Cur. L, 'R. 219; 4 S, C, D. 55,
I~) Mane Oa.ngany v. Caruppa.samy Cangany, 10 N. L. R . 79.
(J) Wijiawardene v. Bhuberk, 10 N, L. R. 90,
MORTGAGE-ITS NATURE AND SCOPE,
185
Where K. borrowed some money from T. on a mortgage
bond and promised to pay the amount to T., or if T. should die
without receiving payment, to 0., and where an assignee of 0.
sued K. on the bond, Held-that neither C. nor his assignee
could maintain an action against K., inasmuch as C. was no
party to the original contract. There is nothing to preve?t ~
person stipulating for pa,yment to a -third party in a contract,
but t"tie person to sue on -the contract must be a party to it ?r,
f; case of decease, his legl11 rep resentative (a).
Uncler the R. D. L. a mortgage of immovfJ able property
by a person who at the date of the mortga.ge is not the owner,
does not become valid when he subsequently acquires owner-
ship as against a bona fide purchaser from the mortgagor after
he bad acquired title (b) but it becomes valid as against a sub-
seguent mortgagee (c).
Where a security bond hypothecating immoveable property
was executed without N otarial attestation, held, the informa-
lity did not relieve the obligor of the personal obligation un?er
the bond (d).
Where an instrument was duly stamped as a bond but
was not notarially executed, Held that it was not a bond
within the meaning of Sec. 6 of 22 of 1871 (Prescription
Ord.) (e).
When the defendant having borrowed a certain quantity
of paddy from the plaintiff, agreed by a notarially executed
document statn ped as an agreement to return the said paddy
together with an additional quantity by way of profit and in
default of sucb delivery, pay the value thereof; Held that the
said agreement was a bond within the meaning of Sec. 6 of
Ord. No. 22 of 1871 (/).
(a) K<J.nnappan v. Kanapatipillai, 1 ~, L. R, 24,
ib) Alwis v. Fernando, 14 N. L. R. 90.
(c) Goonetileke. v. Jayasekere, 14 N, L. R. 65; Mohamedbhay v.
(d) Lushington v. Carolis, 14 N. L. R. 489,
{el Sathakkummafi v. Vaohira.na.yar, 12 N, L. R. 289; 1 Cur. L. R.
130.
(/) Suppiramaniapillai v. Kalikutty, 11 N. L. R. 71.
24
,
 MORTGAGE BOND-ITS FORMAL PARTS,
187
186 OH. XL-MORTGAGE BOND,

. Where persons advance money jointlv or on .. t time beingJ" in a penal sum. Held that the Secy. for the
account, the right of receiving and the power ~f giving a Jo~n t time being could sue on the bond, though it was not strictly
for ttbhe debt. and of enforcing the security' devolves ex:1;:~:~iy. in the form prescribed by Sec. 538, C. P. C. (a).
on e survivor. III.-Mortgage Bond - its formal parts.
. Where trustees advance money on mortgage they . . It is essential for the purpose of accepting the security
ablv adv mvari- offered by the mortgagor to investigate into his title to the
. .ance on a Joint account and the fact that th .
trustees is _never disclosed (x). ey ate property to be mortgaged. Prior encumbrances, not the mere
prior registration, should be searched for in the Land Registry .
~n a cont.ri?utory -mortgage, the mortgage money is repav-
Wherever the deed may be executed, the deeds affecting the
able m the or1gmal proportion contributed and the m t .
cannot be dis c h argect- wit
h om. tbe concurrence
. or gage lands are registered only in the office of the Registrar of Lands
of all parties (b).
of the district within which such lands are situated, A mort-
The disad_vantage of a contributory mortgage is th at no. gagee who has registered his bond and his address is amply
one
th can dcall
. . m his m oney w1. th out the concurrence of the protected (b).
ot' ers an .it is not adapted t 0 cases where there are stipula-
Unlike the mortgage bonds in . England, a mortgage bond'
10ns affectmg some portions only of the sums advanced (c).
here is a deed-poll where the mortgagor is the only party who
This disadvantage may be overcome by executes the deed.
to that effect (d). special covenants
Tbe usual clauses in a mortgage bond may be arranged as
bondThe ~ond in th e_ case .of a joint account will be the .usual follows:-
. but m favour or all tbe lenders stating that II th 1. The parties.-The mortgagor generally binds himself,.
paid b 'h e money
. . t Y n em is out of the moneys belonging to them on a his heirs, executors -and administrators to pay the debt to the
Jorn account " or to that effect. mortgagee, his heirs, executors, administrators or assigns.

t:
b bThe bond in the cas"e of a contributory

a aggregate sum of Rs. ----now paid b

. mortgage will
t e usual bond in favour of all the lenders stating II that
'
2. The recitals are as a rule not necessary.
3. The consideration is usually the actual amount
advanced or the amount acknowledged tohave been advanced.
lenders, was lent in the following ma . Y Rtbe several
A- R nner, i.e., s.---by
The mortgagor is sometimes bound in a penal sum,
' s. - - - by B-, and Rs.---by 0-and the borrower
covenants double the an:::ount of the sum intended to be secured, and on
on the--dseparately
f
with each o f th em as follows, to pay
his failing to perform the condition, the bonds become forfeited,
R ay O - -th!'l sum of Rs.----to A-, the sum of
at law, but equity interposes to restrain the mortgagee from
s.- f - t o B--, and Rs ~--t 0 O- , with
. mterest
. . . each
m
case r~~ the date hereof at the rate of 9 taking more than the principal and interest (c).
annum, or to that effect. per cent. per 4. The obligation.-The mortgagor usually binds himself
to pay the amount on demand or at a stipulated time with
. The . Administrator of the Estate of an intestate and
interest at a stipulated rate on the principal sum secured .
his G 11 bound themselves to " D . M . J anz, Secy. of the
D Csuretrns
, ., a e, or to the Secy. of the D. C. of Galle for the
(a) Moldriok v. Cornelia, 14 N. L. R, 97,
(b) Ramen Chatty v. Cassim, 14 N. L, R, 177.
(a) 8 Enoy, 535 (n), (c) 2 Kelly & Elp, 104 (n),
(!J) 8 Enoy, 537 (n). (d) Ibid 105 (n), (c) 1 Cr, 492 .


188 CH. XI.-MORTGAGE BOND.
5. The parcels or things mortgaged.-These ought to be
,accurately described . For further observations see page 28
et seq above.
6. The conditions.-The conditions in a bond b~gin with
II
the words No w the 'condition of the abovewritten bond or
obligation and morbgage hereby created is such, etc. " The
usual conditions are that if the mortgagor pays the full amount
due, the bond becomes null and void and that if he does not
so pay the amount, t he bond remains in fnil force.
7. .The covenants.-Besides the usual coven an ts of t itle
-common in a purchase deed t he mortgagor covenants and
agrees to keep t he mortgaged premises in good condi tion and
to allow the mortgagee to inspect t he same during reasonable
hours.
8. The conclusion.-T hfl conclusion consists of the
usual Testimonium clause. t he signatm-es of parties an d wit-
nesses and the attestation by the notary-See pages 34 to 40
above.
[Registration of Bonds is fully dealt with in Chapter V.]
Form of a Mortgage Bond.
[(Penal Bond).
Stamp Prior Registration .
No.--
Know all men by these presents that I, A. B . of-, 'am held
and firml y bound unto C. D . of-in the penal sum of Rs. 2,000
of _lawful money of Ceylon to be paid to the said C. D., his
heirs, executors, admi nistrators or assigns, for which payment
to be well and truly made I bind myself, my he1rs, executors
and administrators firmly by these presents. And. for securing
the payment of all sums of money which shall be due or pay-
ab_le under and by virtue or in respect of these presents, I, the
sa'.d A. B., do hereby specially mortgage and bypothecate as a
,-primary mortgage to and with the aaid 0. D., his heirs, execu-
tors, administrators and assigns all that ground with the
buildings standing thereon bearing assessment No.--, Hill
:Street, and more fully described and set forth in the schedule
18!}
FORM OF A MORTGAGE BOND.
to these presents and. all the estate, right, title, interest,
claim and demand whatsoever of me the said A. B. in, to,.
upon or out of the said premises.
And J, the said A. B., hereby covenant a~d agree with
the said C. D. and h is aforewritten that the said premises
hereby mortgaged and hypothecated are not subject to any
other cha'Cge or encumbrance ; and that I and my afore-
writ ten sh all an d will, at the request of the said C. D. or his
aforewritten , but a t my cost and chaTges, do and execute
all such furt her acts, deeds a nd assuran ces for the more per-
fectly assurin g to the said C. D. and his aforewritten by
way of mortgage and hy pothecation t he same premises or
. any portion thereof as shall or may reasonably be required.
Whereas I , the above boun den A. B ., have borrowed and
received from the said C. D. t he sum of Ru pees One t housand
(Rs. 1,000) which it has been agreed should be. secured by
these presents and the mortgage hereby granted and be re-
paid together with interest thereon at and after t he rate and
in manner hereinafter mentioned .
Now the condition of the abovewritten bond or obligation
is such th at if I, the said A. B. , my heirs, executors or
administrators shall and will, well and truly repay or cause to
be repaid unto t he said C. D., his heioo, executors , administ ra -
tors or assigns the said sum of R s. 1 ,000, on demand and shall
in t he meantime and until such repay ment pay interest on tbe
said sum of R s. 1.000 a t the rate of- -per centurn per annum
to be computed from the date h ereof payable yearly the first
of such payments to be made on the-_:_a ay of--1910 now
nexb ensuing and will during the continuance of the mortgage
effected by the presents well and carefully kee p and main_tain
the said premises and the ap purtenances thereof hereby mort -
gaged in a good, careful and bns6and-like m anner an d in
proper order and repair and shall suffer and permit the said
C. D. or his aforewritten or his agent to visit and inspect the
premises hereby mortgaged at all hours in the day time during
the continuance of the said mortgage : Then the above-
written bond or obligation to be null and void but otherwise,

190 CH. XL-MORTGAGE BOND,
shall.be and remain in full force and vidue. Provided however
that if default shall be made in the payment of the interest for
a period of 30 days after any of the days or dates on which
the same shall fall due or if the said premises hereby mart-
.gaged shall be allowed to fall into bad order or shall not be
kept and maintained in manner aforesaid or if the said
A.' B. shall be adjudicated an iqsolvent or the said C. D. or
his aforewritten or his agent aforesaid be at any ti
h' d d . me
, m ~re or prevented from visiting and .inspecting the said
premise~ as aforesaid then it shall be lawful for the said C. D.
or his af?rewritten at once to sue for and recover payment
-of the said sum of Rs. 1,000 and all sums of moneys payable
under these presents.
In witness whereof I, the said A. B., do hereby seb mv
'hand to three of the same tenor and date as these pres 6 nt~
at Colombo, this thirtieth day of May one thousand nine
bundred and nine. .
THE SCHEDULE ABOVE REFERRED TO:-
_All that ground with tha buildings standing thereon
bearmg assessment No.--aituated at Hill Street within the
Municipality of Colombo, Western Province, Ceylon, and
bounded on the East by the property of X. Y., on the North
--,on the West--and on the South by road and con-
taining in extent on; square perch. [For other kinds of
description of parcels, see pp. 149 and 150 above].
.Signed in the}
presence of us A. B., Executant.
E. F. (Witness). s.K.,.
,G, H. (Witness). Notary Public.
[Then follows the attestation by the notary.]
Mortgage Bond.
(Simple Form).
Prior Registration.
No.--
Know 1),11 men by these presents that I, A. B. of--
am held and firmly bound and do hereby acknowledge to be
MORTGAGE BOND.
191
justly a~d truly indebted to C. D. of--in the sum of Rupees
One thousand (Rs. 1,000) which I have this day borrowed and
received of and from the said C. D. and I therefore, renounc-
ing the beneficium non numeratae pecuniae the meaning of
which has been explained to me, agree and undertake and
bind myself, my heirs, executors and administrators to pay
the sa.id sum of Rs. 1,000 and interest thab might accrue
thereon to the said C. D., his heirs, executors, administrators or
11i9signs on .demand and until such payment I engage and bind
myself and my aforewritten t:l pay interest on the said sum
of Rs. 1,000 at arid after the rate of 10 per centum per
annum.
And for securing the due payment of the said sum of
Rs. 1,000 and interest which might accrue thereon, I, the
said A. B., do hereby specially hypothecate and mortgage to
and with the said C. D. and his aforewritten by way of
primary mortgage free from all encumbrances the following
1and to wHt.
I
All that allotment of land--oalled and known by the
name of--situated at--[ village, pattu, korale and pro-
vince] containing in extent---and bounded on the East by
,t he property of--and on the North, West and South by
-road, the same being held and possessed by me the said A. B.
under and by virtue of a donation deed dated--and attested
by N. C., Notary Public,
. under No.--. .
And as further security I do herewith deliver to the said
-0. D. the said donation deed and all its prior title deeds.
In witness thereof, &o. .
:Mortgage Bond.
(Special Form).
Know all men by these presents that we M. C. M. and
H. B. M. (wife and husband) both of Colombo, are jointly and
.severally held and firmly bound unto S. H. of Colombo,
Doctor of Medicine, in the penal sum of Rupees Nine
thousand (Rs. 9,000) of lawful money of Ceylon to be paid to
.the said S. H. or to his heirs, executors, administrators or
 .-
192
.
CH. XI.-MORTGAGE' BOND.
.
a ssign&. . For which payment well and truly to be made w&
bind ourselves and each of us, our and each of our heirs,
executors and administrators fir mly by t hese presents (And 'I
the said ]){. C. M. do hereby declare to expressly renounce all
and sin gular t he privileges to which a surety is by law entitled,
viz., beneficium senatus consultum vellani and de authenticae
si qua mulier, the meaning of which was explained to me and
all and every the privileges to which I am or may as a
married woman be entitled by law or otberwise). And for
further securing unto the said S. H. and bis afoi;ewritten the
due payment of all moneys that may become due ~nd payable
under, by virtue or in respect of or covered, or secured by these
presents or by tht:l Promissory Note hereinafter ~entioned
and the due and faithful observance and performance of the
covenants herein contained: I the said M.O.M. do hereby (by
and with t he consent and concurrence oi my husband the said
H. B. M. testified by bis being a party to and executing these
presents.) ; pecially mortgage and hypotbecate to and with the
said s. H., bis heirs, Xecutors, administrators and assigns as
a primary mortgage free from all encumbrances whatsoever the
following premises to wit": -
(1) All that land and premises situated at, etc.
Whereas I the said H. B. M. am indebted unto the said
S. H. in the sum . of ~upees Four thousand five hundred
(Rs. 4,500) of lawful money of Ceylon for money lent and,
. advanced to me ~bY him upon a Promissory Note dated the
2nd day of---payable on demand with interest thereon at
nine per cent. per annum f.rom tho date thereof (t he receipt
whereof I do hereby expressly admit and acknowledge}.
And whereas at the making of the said Promissory Note it
was agreed that we the said H . B. M. ~nd 1\1. C. M. should
enter into these presents and grant tho mortgage and security'
herein cont ained for the tlue pa.ymant of tho Promissory Nate
aforesaid.
No w the condition of the abovewritten bond or obJiga-
t ion is such that' ii we the Sltid M. C. M. and H. B . M. or
either of us or our or either of our, heirs, executqrs or adminis-
trators shall and will, well and truly pay or c_ailse to be paid to
. .
MORTGAGE TO SECURE OVERDRAFT, ETO. 193
the said S. H ., bis heirs, executors, administrators or assigns in
Colombo on demand the said sum of Rupees Four thousand
five hundred being the amount due on the said Promissory
Note dated tbe---day of--- bereinbefore mentioned and
all interest thereon at nine per cent. per annum from the date
thereof and shall and will save, bold harmless and keep
indemnified t h; said S. H . and bis aforewritten against all
suits or actions which be or bis afo rewritten shall or may be
put or subjected to for or in res pect of the said P romissory
Note dated tbe--day of- - . Then the abovewritten bond
or obli gation shall be null and void but otherwise the same
shall be and remain in full force and virtue.
In witness whereof we the said M. C. M. and H . B. M.
have hereunto and to two others of the same tenor and date
set our bands at Colombo on the ---day of---.
Bond by a Toddy-renter to Government.
For Form see next Chapter on " Lea~es."
Mortgage to secure Overdraft of Cu!rent Ac_c ount
to a Bank (a} .
To all .to whom, etc. --A. B. of- -sends Greetings:-
Whereas under and by virtue of a transfer deed dated ,
etc., the said A. B. is seised and possessed of all that piece of
land more fully described bereinbelow.
And whereas the said A. B. has opened an 'account with
the National Bank of India, Ltd. (hereinafter referred to as the
sa.id Bank) an<} bas requested them to allow him to overdraw
the same to the extent of Rs. 5,000 which they have agreed to
do upon the said A. B. executing these presents.
Now know all men by these presents that the said A.B. in,
pursuance and consideration of the said premises doth hereby
bind himself, and covenants to pay to the said Bank on
demand all such sums as now are or shall from time to tim&
hereafter become owing to the said Bank from the said A. B .
on the balance of his current account with the said Bank
whether in respect of the moneys advanced or paid to or for
(a) Adapted from s:Enoy, 608-A,
 194 CH. XL-MORTGAGE BOND.
the use of th'e said A. B., charges incurred on his account or in
respect of negotia,ble instruments drawn, accepted or endorsed
by or on behalf of tbe borrower and discounted or paid or held
by the lenders either at his request or in the course of business
or otherwise or in respect of moneys which the said A.B. shall
become liable to pay to the said Bank in aoy manner wha~so-
ever and .whether any such moneys shall be paid to or incurred
on behalf of the said A. B. alone or jointly with any other
person or persons, corporation or company ,together with the
usual interest, commission and lawful Bank charges, And
that if when the said current account shall be closed a balance
shall be owing to the said B.tnk the said A. B. will so long as
the Sf\me or any pa.rt thereof shall remain owing -pay to the
said Bank ioterest thereon at the rate of nine per cent, per
-annum computed from tbe time when such ha,lance shall be
ascertained.
For further securing tbe payment of tbe said several
sumq aforesaid the said A. B. doth hereby hypotbecate and
mortgage to and with tbe said Bank the following piece of
land to wit :-
(Describe land).
Now the condition of the Bond is that if the said A. B.
shall on demand pa,y to tbe said Bank all principal moneys,
interest, commission and Bank charges in accordance with the
foregoing covenants in that behalf, then this Bond shall be null
11nd void but otherwise shall he and remain in full force and
virtue.
In witness whereof, etc.
Contributory Mortgage to a College and a Mission.
(Simple Form).
To all to whom these presents shall come, M. B, of--
,sends Greetings : -
Whereas the Board of Directors. of the J. 0. at--have
been duly incorporated and made into a body politic and cor-
'porate by the name of" The Board of Directors of the J. 0."
by Ordinance No. 7 of 1894.
CONTRIBUTORY MORTGAGE ...... A MISSION. 195
And whereas the A. 0. M. has been duly incorporated in
Cey Ion and has been made a body politic and corporate by the
name of" The A. C. M." by Ordinance No. 4 of 1908, acting
through its treasurer now the Rev. ,T. H. D. of__:_-and his
successors in office.
And whereas there are moneys belonging to the said J. C.
"in the bands of its treasurer, tbe attorney of the said Board
of Directors of the said J. 0., namely, the Rev. G. G. B. to be
laid out and invested on interest on mortgage of landed pro-
perty for the benefit of the said J. C.
And whereas there are also moneys in the hands of
-the treasurer of the said A. 0. M., Rav. J. H. D. to be laid
-out and invested on interest on mortgage of landed property
aQ directed bv the s~id t,-. 0. M. .
- And whe~eas ~~. B. of--is at present indebted to
the said Board of Directors of J. 0. in the sum of Rs. 4,000
and interest from--on a Bond executed and granted by the
said M. B. in favour of the said Bo11ird of Directors of tha
J. 0. on the--and attested by T. 0. 0., N. P., under No.--
ior the sum of R,. 4,000 with interest thereon at the rate
-of eight per cent. per annum from tbe elate of the said Bond.
And whereas the said M. Jg, bas now applied for a further
foan of Rs. 10,000 from the sa.id Rev. G. G. B., Attorney of the
Board of Directors of the J. 0. and the' said Rev. J. H. D.,
0
Treasure; of the said A. C. M., upon primary mortgage of a
house and compound t:!ituated at-- and more fully described
hereinhelow, and whereas the said Rev. G. G. B. and Rev.
J. H. D. have consented to lend the said amount upon such
m.ortgaga and upon the following conditions and stipulations.
Now know allmen by these presents that I the said M.B.
am held and firmly bound unto the Board of Directors of the
J. C. in the sum of Rs, 4,000 and unto the said A. 0. M. in the
sum of Rs. 6,000 respectively, both lawful money of Ceylon,
which I have at the time of the execution of these presents
borrowed and received of and from the said Rev. G. G. B. in
bis capacity as Attorney of the Board of Directors _ol J;he._J, C.
being money belonging to the said J. 0. and from the 'said

196 CH. XJ,-MORTGAGE BOND.
Rev.J. H. D. in his capacity as Treasurer of the A. C. M. being
money belonging to and controlled by the said Mission and I
the said M. B. hereby renouncing the beneficium non numerata&
becuniae (the meaning of which is known to me) agree and
bind myself, my heirs, executors and administrators to pay on
or after three months' notice on either side the said sum of
Rs. 4,000 to the Board of Directors of the J. C. or to their
cer~ain Attorney or Attorneys or assigns at--, and the said
sum of Rs. 6,000 to the A. C. M. thrcugq its treasurer or hi&
successors in office or assigns at--, with interest thereon at
and after the rate of eight per cent. per annum tq be computed
from the date hereof till payment in full and such interest.
being payable as follows :-the interest that may become due,
and payable up to 30th June 1915 to be paid on or before that
date and the subsequent interests to be paid at the end of
every six months from the 1st day of July 1915.
And for further securing the due payment of the said
.sum of Rs. 10,000 and the interest as aforesaid I, the said
M. B., do hereby specially mortgage and .hypothecate to a~d
with the said Board of Directors of the J. 0. their certain-
Attorney or Attorneys and assigns and with the said A. C. M.
or its treasurer or his successors in office or assigns by way of
primary mortgage free from '. all encumbrances the said house
and compound called--and all my property, estate, right,
title, interest, benefit and advantages whatsoever_in and out of
and upon the said premises. The said land is being held and
possessed by me under and by virtue of a donation deed dated
--and attested by V. C., N. P., under No.---.
And as further security I do herewith deliver the saici
.deed together with the other connected papers.
In witness whereof.
Special Clauses.
Proviso for reduction of the rate of interest on punctual
payment (a).
Provided always that the lender shall accept interest at.
the rate of seven per cent. per annum in lieu of the higher
(a) B Ency, 602,
.
SPECIAL CLAUSES. 197
-rate hereby appointed for any quarter (or half year) in respect
-of which the borrower having at all times observed and per-
formed his obiigations hereunder (other than those relating to
the payment of the principal money and interest) shall pay
interest at such reduced rate not later than five days after
the day on which such in terest ought to be paid as to which
,time is to be the essence of the contract.
Proviso that debt shall not be called in for a term certain (a).
If the borrower shall pay the interest hereinbefore
-covenan ted to be paid by him within 14 days after the several
days on which tho same shall fall due (as to which term shall
be of the essence of the contract) and shall' perform and observe
all the covenants and stipulations herein contained and on
bis par b to be performed and observed other than the cove-
nant for repayment th e said principal sum of Rs.---then
and in such case the lender will not take any steps whatsoever
for enforcing payment of the said sum of Rs.---or any part
,thereof before the---day of---.
Proviso that the borrower is not to be entitled to redeem for a
term certain (b).
The borrower shall not be entitled to redeem this
securi ty hefore the---d ay of---any rule of equity to
the contrary notwithstanding.
Oov;nant by borrower to keep in repair (c).
That during the continuance of this security the borrower
-will keep all buildings for the time being subject thereto in
aood and substantial repair and that if he shall neglect to do
;o the lender may at his discretion enter upon the said
premises from time to time in order to repair and keep in repair
the said buildings without thereby becoming liable as a
.mortgagee in possession and that his expenses of so doing
shall be repaid to him by the borrower on demand and until
so repaid shall be added to the principal moneys hereby
.secured and bear interest accordingly.
(a) B Ency. 606. (b) B Ency, 607, (c) B Enoy, 603,
 198 OH, XI.- MORTGAG E B ON D.
Security Bond by a Shroff t o a Company.
K now all men by these presents th at S. T. of Colombo,
as principal and S. S. of- - -and F. H. of---as sureties-
are held and fi rm ly bound unto 0. L imi ted incor porated under
tbe Compan ies Aots, 1862 to 1890, in the penal sum of Ru pees
Four thousand to be paid to the said 0. L imited or their assigns
for which paymen t weil and truly to be made the said S. T., S.S.
an d F. H. do bind t hemselves jointly a nd severally an d their
respec tive heirs, execu tors and administ ra tors fir mly by t hese
presen ts. And as securit y for t he payment of all sum s of
money wh ich s hall be due or payable under these orosents.
th e said S.T. dot h hereby deposit with the said 0 . L imit~d as a
primary hypotheca tion the sum of R u pees F our hundred to
carry interest a,t fi ve per cent. per an num. And the said S. T.
and S.S. do and each of them doth heteby fu rtb er mortgage,
a nd hypothecate as a primary mor tgage wit h t he said C.
Limited t he premises des cri bed in tb.e Sc hedule h ereto with
all their righ t, title, in teres t, claim and deman d th er~ to and do
hereby deposit th e title-deeds of the said prem ises wit h the
said 0 . L imited . W hereas t he said 0. Li mited a re interested
iri and are carrying on husiuess in t he island of Ceylon as
General l\!erchants, Storekeepers, G rocers and otherwise. And
whereas the said S. T. h as entered th e servi ce of t be said
0. Limited to perform the duties of t he de partmental Shroff at-
their General 8_tores and Office to collect, receive and t ake in.
moneys and to do all other t hings incidental to the business
of a Shroff a nd a t t he engagement of his service it was
agreed that these presents should be entered in to and the said.
de posit, hypot hacatie>n and mortgage be effec ted.
No w the condition of the abovewrittan bon d or obligation,
is such that if the said S.T. so long as he shall be in the said
service of Shroff as aforesaid shall and will, wall and faithfullv
and honestly perform and discharge tbe du ties of Shroff a~-
afora.said and shall account for all moneys , properties, goods,
effects, papers and other things which may come into bis posses-
sion or under his control and shall pay or deliver to the said
0 . L imited or their manager for the time being all such moneys.
or other things which shall be in his hands or due by him in
BOND T O A FIRM .. .. .. A CLERK. 199'
the servlce of his said bus in ess or in case the S9.id S. T., S. S.
and F. H. or an y of t hem ot t heir afo rewri tte n shall when
required m'l.ke satisfacti on to the said 0. L imi ted or t heir-
man ager fo r the time being fo r all moneys , goods or property
which may be lost, mis applied or u nla wfully disposed of by
the s~id S.T. wh ile in such service or shall not be duly
accounted for a, paid or delivered as aforesaid an d sh all keep
the said 0 . Lim ited indemn ifi ed again st all losses, damages and
expanses whatsoeve r by reason or in consequen ce qf any such
act or defaul t of tbe said S.T. Th en th is obl igation shall be-
null an d void otherwise shall remain in foll force and virtue.
Provided always and it is hereby decl,ued th at the amount
ultimately to be recovera ble under t hese presents shall be
limited as not to exceed t he sum of Ru pees T wo t housand.
I n witness whereof.
SCHEDULE .
Bond to a firm for faithful service of a Clerk.
(Short Form) (a).
K no w all me n by t bes':l prese nts t hat we E.F. (Principal)
of- - -and G.H. (Suret y) of- - -are jointly a nd severally
boun d to A. B. and 0.D. of- - -carryin g on business u nder
the firm of - - -in th e sum of - -to be paid to the said
A.B . and O.D.
Whereas the abovenamed A.B. and O.D '. have agreed to
take the said E.F. into their employ as Olerk upon the said
E.F. and t h~ above-bounden G.H . enteri ng into a Bond in the-
above-mentioned sum of ---for the faithful service by the
said E.F. as Clark.
Now the condition of the abovawritten bond is such that
if the said E.F. shall faithfully discharge his duties as Clerk or_
if the said E .F. and G.H. or either of them shall at all times
hereafter keep indemnified the said A.B. and O.D. against all
losses, costs, damages and expanses which they may pay or
sustain by reason of their taking the said EF. into their
employ or by reason of any act, embezzlement, mismanage-
ment, neglect or default of or by the said E . F. whilst in
(a) Kelly, 374,
 200 OH. XL-MORTGAGE BOND.
t~e employ of the said A.B. and O.D. or ot herwine. Tben in
either of the said cases the abovewritten bond sh all be void
otherwise the sa me shr,ll ro main in fu !I force and virtue.
I n witness whereof.
Security Bond to a Shroff by his Assistant.
To all to whom these presents s hall come, M.E. o f - - -
{hereinaHer referred to also as the " Principal") and K.M. of
;:-S- ~nd )K.S. of--- (hereinaf tet referred to also as i;he
uret1es " -sen d Greetings :-
W nereas upon the recommendation a nd guarantee of
Mr.'d
R. D ., Chief Shroff of tbe E. Bank, Limited , Colomb o, t l1e
. .
sa1 P nnc1pal has been engaged by the said E . Bank. L imited
to ~ct, and to continue to act as Agsis tant Shroff to th e said
Ch1ef Shroff at the Ollice of t he said E . B ank , L'1m1t ed ,
0 o1om bo.
A. Aud whereas the duties of the sai d Princioal . as W Ch
ssIStant Shroff include an d involve that of bei ng in charge or
posses~ion of and controlling large sums of mouey belonging to
the sa1_d Bank, fo r the safe custody whereof the said Chi ef
Shroff 1s respo nsi ble to. the said Bank, Colom bo.
. ~nd whe r~as the s aid Bank has requested the said
P rmmpal to give security to the said R D 1n R upeeR T en 0
thous and (Rs. 10,000) for the due a nd fai thful perfor
and discharge of his duties as such Assistant Shroff. mance
And whereas the said M.E. as P rincipal and the said K.M.
a.Rdc. KS . as Sureties have agreed to furnis h such . secunt y 10
tthb: e sum of Ru pees Ten thousand (R s 10,000) b Y execu tmg
ese presents an d creating the mor.tgage and hypothecation
hereby created.
Now kn_ow_Ye and these presents witness that the said
M.E. as Prmmpal and the said K. M. and K.S. as Sureties
(who .. l have renounced
. the ,benefits
. which sureties are by 1aw
en t It. ad,
. to wit, the benettczitm
divisionis at1d th e beneJ.czuni
,+:
-01d inis). are jointly and severally held and fir b oun d un t o
the said R.D., the Chief Shroff of the said Bank, in the sum
of Rupees Ten thousand (Rs. 10,000) lawful money of Ceylon
to be paid to the said RD. or to his heirs, executors and
SEOURITY BOND .. . ... ASSISTANT. 201
administrators or assigns for which payment well and truly to
be made, they the said Principal and the said Sureties do hereby
jointly and severally bind themselves their and each of their
heirs, executora and administrators fi rmly by these presents.
And fo r securing the pay~ ent of t he said sum of Rs. 10,000
unto t he said R. D. or his aforewritt0n , the said Princi pal and
the said Sureties do hereby mortgage and bypothe cate unto
and with the said R. D. and his aforewri tten t he several
lands and premises full y described in the Schedule hereto.
And the said Prin cipal and t he said Sureties do hereby
covena nt with the said R. D. and his aforewritten that t h e
several lands and premises described in the Schedule hereto
are not subject to any charges or encumbrances whatsoever
and tha t the said P rincipal and the said Sureties have now
.good right and full power to mortga,ge and hy pothecate the
said several lands an d pre mises descri bed in the Schedule
hereto in manner aforesaid and t hat the said Pri ncipal and the
said Sureties a nd their aforewritten shall and will at all ti mes
hereafter during the subsistence of t}lese presents at the request
of the said R. D.' or his aforewritte n and at t heir own cost
and expense jointly and severally do and execute or cause to
be done and executed all such furt her an d ot her acts, deeds,
matters, things and ass uran ces for the morJ perfectly and
effectually assurin g un ~o the said R. D. or his aforewritten
by way of primary mortgage and hypothecation the said lands
and . premises and every part or portion thereof as by bim or
,t hem or any of them shall or may be reasonably. required.
Now the condition ?f this Bond or 0bligation is such
that, if the said M. E., the Principal aforesaid, shall from time
,to time and at all times hereafter and so long as be shall hold
t he Office of the Assistant Shroff or any other Office at the
,said Bank under the said R.D. duly and faithfully account to
him the said R. D. or to his heirs, executors, administrators
and assigns for all the moneys, securities and all and every
other valuab. apers which shall or may come into his hands
in the course of performing hi~ duties as such Assistant Shroff
or whicb shall or may be entrusted to him as such Assistant
Shroff under the said R. D. and shall honestly and faithfully
26
1I

202
CH. XL - MORT GA G E B OND,
INDE MNITY BOND WITH TWO SURETIES. 203',
perfo rm and discha r~e the duties and obligation s that sh all or
pre sents, the said 0. D. and E . F. and e ac h of them hereby
m_ay devolve u pon him as sucb Assistan t Sh roff and s hall an d
rea ouncing the benefici um ordinis divisionis e.t excussionis, th e
wil_J r egularly a nd puncG11ally attend t he Office 0 f tb a
Chief Shroff a . . e sa1 fo rce and effect of w hich have been explained to u s.
. . an g i ve ~ p a ll h rs t1!lle and a tten tio n t o t he work
of the Office of th o said B ank and shall n ot e b l Dated at- - - t h e - -j ay of---, one thousand nine -
or d < k m ezz e, conceal hu ndred and twenty -on e.
es"roy or aowing! y or wiifu ll y permit; or suffer t o bo-
embezzled, concealed or destroyed by Whereas the said V. N. has alleged to th e Colonial
who any person or persons
msoever any of'he said T reas ure r that Ceylon W ar LJa n Bo nd No. - - has been lost
, " ' mo ne ys , securities and valuable-
~a per~ and _sh a ll ~ot be guil ty ot any misconduct or dish onest and is n ot fo rth coming.
ID _con~ect1on with the s1id Office of Assi stant S hroff a: And whereas t he said Colonial T reasu rer b as agrned with
afo1~sa 1d an d sh all a nd will fai t hfull y an d punctually m ake t be said V. N . to p !t y to her t he amount of the said Bond
goon al: moneys belong ing t o th e s aid Bank wh ich shall o n her executing a bond together witu two approved su re ties.
~et fo u:'1 sho rt of wha t bad bee n ent rus ted t o or had come in fav our of our said S ove reign L :i rd th e King in t he ab ove-
Ill o t e possess ion, custody or control of t be 'd M E m ention sd penaUy , conditional on h er inde mn ify ing our said
and shall and will al ways make good all l said i .. .. S overeign L ord t he Kin g, the Ceylon G overn ment , and t he
t h osses , amages
cos s, c arges or expan ses which shaU or may be i d b ' Colonial T reasurer, and each and every of the m , agai n st all
the said R D b ncurre y
. . , . Y re 3,so n of any mi sconduc t, careless no~s or clai m ~, demands, a nd a ctions which m ay arise on t he said
negli g~ncti ot the said M. E . and so long a s th e said M E ~ d Bond, and against all aats , charges, losses , dam age s, an d
t he said Sureties shall keep t he "dd R n 1, d 'fi d. _an expenses wh ic h t hey or any . one or more of them sh all
11 l "" . . . n omm e a gam st.
a osse ~, charges, costs o1 ex penses which shall o b res pectively incur or be put to in respect of any claim ,
ff . a . r m ay &
su em . or mc u rred by any ac " of
,
om1 ss10 n or commission or de ma nd, or action which m ay be m ad e on the said Bon d.
n _eghgence or carelessn ess on the part of the said M E . h Now the condition of t bis bond is tha t if the a bove- bounden ,
d1scharg f h' d In t e
e o rs ut10s as such Assistant S h roff then th "d their heirs, executors, administrators and assign s, jointly and
Bond ,or O b_Iig~tion shall be null and vciid but otherw/se\~a~U severally keep indemnified our said Sover eign Lord t he K ing,
be ana r em am Ill full-force and vi rtue, the Ceylon G Glvern men t, ana tho Coloni al Treas urer , and each-
In witness w hereof, &c, and every one or more of them, from all cl aims, demands, and
The S chedule above r.ef erred to, action s which m ay arise o n the said Bond, and against all
Indemnity Bond with Two Sureties. payments, charges, costs, losses, damages, and expenses which
(Gov ern ment Form ) they or any one or more of them shall respectively incu r or
. ~now all men by t hese presents t~~t we, V. N. of--as be put to in respect of any claim, demand, or action which
Prmc1pal, and 0. D . of--and E F of S . may be made or brought on the said Bond, and shall and will
ointl and . .. - -as ureties, are forthwith pay to our said Sovereign Lord the King, the Ceylon
J Y severally bou nd unto our Sovereign Lord the Kina
His Heirs and Successors, in the penal sum of R O b Government, or the Colonial J.'reasurer, any sum or sums of
hundred (Rg, 100) law ful money to be 'd upees . ~e money whic:h they or any one or more of them may have to -
S L ' pai uo our said, pay in respect of the said Bond, together with all pa,ymen ts,
overe1gn ord the King, His Heirs or Succes s for wh. h
payment to be well and truly made we bind oursel~es join~; . charges, cost losses, damages, and expenses which they or-
and se-verally, and our respective Heirs Executors Ad . . Y any one or more of them may incur or become liable to in
trators and Assigns and every of them fi 1' ' b m1hll!s- respect of the said Bond, then the above-written obligation"
. rm Y Y t ess
shall be void,' but otherwise shall remain in full force .


204: CH. XI,-MORTGAGE BOND.
In witness whereof we have hereunto set our hands and
seals at---this-day of----, in the year of our
Lord One thousand nine hundred and twenty-one.
Wi tnesses:
Bond to secure Payment of Annuity by
Grantor. Surety joining in Bond (a).
K now all men by t hese presents that we (Grantol') of--
and (Surety) of--hereby jointly and severally bind ourselves,
our heirs, executors and adminis trators to (Annuitant) of- - ,
bis heirs , executors, administrators and assigns for the
payment to birn or them of------.
The abovewritten Bond is conditioned to be void in case
the above-bounden (Granter) m (Surety) or their represent-
ative heirs, executors or administrators s hall pay to the above -
named (Annuitant) his heirs, administratore and assigns
during the life of th e said (Granter) an annuity of---
by equ;tl (quarterly) paymentil commencing :on the- - -day
-of---next-.
Io witness whereof, &a .
Form, under the English taw, of an ordinary
Mortgage Deed of freehold land in a
simple case (b).
This Indenture made the--day of--between A. of- -
of th e one part and B. of--and C. of-- of the other part.
Whereas the said A. is seised of t_h e heredltaments inten d-
ed to be hereby conveyed for an estate in fee simole in
possession free from incutr).brances.
And whereas the said B. and C. have agreed to lend to the
said A. the sum of ---upon having the repayment thereof
with interest secured in manner hereinafter expressed.
Now this Indenture witnesseth that in consideration of the
sum of --paid to A. by B. and C. out of ruoney belonging
-to them on a joint account the receipt whereof the said A.
hereby acknowledges the said A. hereby covenants with the
-said B. and C. to pay to them on the--day of--the sum
(a) 1 Eaoy, 506,
(b) Gibs, 240.
FORM OF REOONVBYANCE .... . . LAND. 205,
of --with interest thereon in the meantime at the rate of--
per cent. per annum and also as long after that day as any
principal money rems.ins due under the mortgage to pay to
the said B, and C. interest t.bereon at the same rate by equal
half-yearly payments on the--day of--and the----
day o f - - .
And this Indenture also witnesseth tuat for the same
consideration the said A. as beneficial owner hereby conveys
to the said B . and C. All that (parcels).
To hold to and to the use of the said B. and C. in fee,
simple subject to the proviso for red~mption, the following,
viz.', that if the said A. shall pay to the said B. and 0. on the
--day of--the sum of --and interest thereon at the,
rate aforesaid, the said B, and C. will at the request and cosb
of the said A. reconvey the premises to the said A. or the
persons claiming under him.
In witness whereof, &c.
(English) Form of R~conveyance of Mortgage of
freehold Land (a).
This Indenture made the--day of--between B. of
--(Mortgagee) of the one part and A. of--(Mortgagor)
of the other part, supplemental to an Indenture made the,
--day of--between &a. (hereinafter called " the principal-
Indenture '') being a mortgage of certain land and heredita.-
ments situate at--for ,securing repayment cy A. to B. of
the sum of ---and interest thereon.
Witnesseth that in consideration of all principal money
and interest due under the principal Indenture having been
paid (of which principal and interest B. hereby acknowledges-:
the receipt) B. as mortgagee hereby conveys to A. all the lands
and hereditaments now vested in B. under the principal-
Indenture.
To hold unto and to the use 9f A. in fee simple discharged
from all principal money and interest secured by and from all:
claims and demands under the principal Indenture.
In witness whereof, &o.
(a) Gibs, 260.
 . .,
. 207
.. #
. :attenda.nce, tbis is sufticient to show that he retains posses-
. A lease operates. by way of actual demise ; an agreement
CHAPTER XII.
LEASES.
!.-Definition.
~ LE~SE i~ an assurance o;:. contract_wbQreby land or any
--0tbe;: t~ng capabie of be\ng demise~ i:s let by one p;;:s~n to
another for interest less in point of duration than the lessor
~as therein (a).
A lease is a contract by which the one party, while ,
reserving a reversion to himself, confers upon the other the 1
right to the exclusive possession of property for a limited
time-the limit being either definite, as for a life or lives, or
( for a term of years absolute or determin11ble, or indeiinite, as
a lease at will or from year to year-and receives a recom-
pense, generally in the shape of rent or other income, though
fealty is sufficient, and the reservation of rent is not essential (b).
To eonstitute a tenancy it is essential that the tenant.
should have e.irnlusive possession of the land, building, or part
of building as the case may be. There is no demise where the
grantor retains possession of the corporeal bereditament,
hence the distinction between a lease and a license. A license \
.
is a permission grant'ed to a person to use the property or
exercise rights over it in a certain way without giving bi~ the
exclusive possession of it (c).
I
A lodger who merely contracts .for food and shelter with-
ot separate apartments fa only a licensee. And so also is a
lodger who hrts separate apart~ents if;
as is usually the case,
the control of foe -apartments, and consequently, in law, the
(al 2 Prid. I. (b) 7 Ency, 51. (c) 7 Ency, 51, 52,
DEFINITION,
poesession, remains in the landlord. If the landlord provides
. sion ; and the lo:'lger c:1nnot in such case bring an action for
eiectment or trespass, nor is he liable to be rated (al .
for a lease does not, except as hereinafter mentioned, operate
by way of actual demise, but only bin ds the parties, the one to
grant and the oth&r to accept a ten ancy according to the terms
thereof. Hence an agreement for a lease does not at law
'c reate a tenancy (bl,
If there are words of present d~mise, and the essential
termsof the tenancy are fixed, the instrument will be con-
-strued as a lease, notwithstanding that it is .styled an agree-
ment, and stipulates for the exec:utio.n o[ a formal l~ase ; though
if the agreement refers to the covenants to ba contained in
the lease, these must either be s.pecified, or must be so des-
cribed as to be readily ascertained. This construction is assist-
ed if the tenant is to be let into possession at once, and if
the instrument provides tl)at the covenants to be ins~rted: in
the lease shall be binding until the execution of that docu
ment (c).
On tbe other hand, the instrument will be construed as an
executorv agreement if any of the provisions of tbe lease
remain t~ be asc;rtained; or if, from the present inability of
the intending lessor to grant a lease, or from his undertaking
to do specified _w ork as a condition of tbe lestiee accepting the
lease, or from pther similar indications, it appears that no pre-
sent demise was intend~d ; or if the insbrument in terms pro-
vides only for the granting of a lsa~e in f1ituro, and th.e re are no
special indications of an intention to make a present demise (c).
A lease of rooms in a house, which constitute a dwell-
ing by t)lemselves, includes the o~ter. walls of the house so far .
as they belong solely to such rooms, though the user of them
by the lessee must be .reasonable (d).
(c) '1 Ency. 55.
(a) 7 Ency. 52,
(d) 7 Ency. 77,
(b) 7 Ency, 54.
 . DEFINITION .
208 CH. XII.-LE.ASES.
Building leases.-The draftsman acting on behalf of the
owner of land who is desirous of granting building leases must;
ascertain whether what is inteod~d is an immediate lease of
the land with building stipulations, or an executory agree-
ment for leases to be granted when the buildings are completed
to the landlord's satisfaction . An intending lessee would
naturally prefer an immediate lease, _for if ~e is a _capitalist
intending to build out of bis own moneys, it gives him a fixed
and assured estate in the land ; and if be is only a speculator,
it gives him an estate upon which he can begin to raise money
by mortgage almost as soon as the found ations are laid. On
the other band, where the Iandlqrd is dealing with mere
speculative. builders, be generally prefers to enter in the first
instance into au executory building agreement only, which
gives the tenant no permanent interest in t ne land until the
co1;1tcmplated buildings have been wholly or partially erected-(.a) .
. Where a lessee for years disposes of his term reserving to
Sporting and recreation leases.-A contract giving th~ right;
to sport anct take game and fish is commonly, though e:rrone-
1"
.
ously, called a lease. L!ving beas_ts and birds of game being-
wild are not at law the . subject of property,~ and therefore
cannot be-leased. They belong to the owner of t.h_e soil where-
tbey happen' to be .when captured. Tire righ-t of sporting is
the privilege to go upon the la-nd and h-unt and kill the game,.
It includes the right to carry away theKgame when shot or the
fish caught unless the contrary is expressed (b)._ "'The- opera.
tive words may be "grant and demise " (c) .
Surrender of a term created by lease may be either expres~
or implied. If it is express it must be "by a regular deed which.
may be either, an indenture or deed~poll (d) .
A surrender is implied from the acceptance by the lessee
of a new lease to cqmmence during the currency of the existin~
lease. This is upon th~ ground that the les_see cannot be beard
to say that the lessor had not power to grant the new lease.
Hence when such a new lease is being granted to the existing
(al 7 Ency. 147, (c) 7 Ency. 162.
(bl 7 Ency, 160. (d) 7 Ency , 667.
209
lessee it is in general unnecessary to take an express surrender
of the old lease (a).
A" surrender by operation of law is also effected where the
lessee delivers possession to the lessor and possession is accept-
ed by him (a) . .
A surrender does not extinguish an under-Ieaae. If;
operates as a grant subject to the rights of the under-lessee.
The merely cancelling a lease is not a surrender (b).
The usual operative words in a surrender are: - "Surren-
der and yield up." It may be made without any particular
f~rm o! words. .The word " release " will operate as a surren-
der: The. word '_' assign ,.;_ may be added to the word " surren-
der" so that it may aperate as an assignment failing
surrender (c). : .
For form, etc., see "Surrender," infra.
himself a portion of the term, it is called an 1,:.nder-lease, but if
it be whole of the interest which the lessee has in the pre-
--
mises, it is 'an assignment (d).
The use of property or what is known in modern times as
tl:ie " purchase-hire system" similarly partakes of- the nature
of sale and of hire (e).
- A person who is let into occupation of the property as a
tenant, or as a licensee, must be deem_!'ld to occupy on the
footin g .on which he was admitted, untiJ by some overt act he
manifests his intention of occupying in another capacity (/).
A thing whether moveable 0 1 immoveable, corporeal or
incorporeal, 4s the farming of tolls and d?ti~s, is capable of
being let (g).
A lease may be (1) for lives ; (2) for a term of years ;.
(3) from year to year ; (4) at will !l'nd (5) by sufferance (h) .
(a) 7 Ency. 667, (el 2 W. P. 609,
(/) Maduanwala v. Ekvelegoda, 3 N.L.R. 213.
(b) Ibid, 668,
(c) 2 Crabb. 1500. (g) V. D. L,_1. 15. 11 ; 2 W. P, 593.
(d) 2 Cr, 1012, (h) 2 Cr. 1029. .
27
 CH. XII.-LEASES,
210
(1) A lease for life created hy parties exists when a man
has an estate in land which is to last for the term of his own
life or for that of ~nother, or for the lives of two or more per-
so~s, of whom be JllaY or may not be one. A lease for a life
or lives gives one e, free-hold interest. Such leases are rarely
beard of in Ceylon, In England they are rai;>idly falling into
disuse (a).
(2) A lease for a term of yeai;s, generally spoken of as
"term" of years, is where a person lets to another for a certain
and definite period (b).
In the calculation of the term of the lease the day from
which it was saicl to have begun should be included, e g.,
three years from 16th Dec9mber, 1892, would terminate on
the 15th December, 1895 (c).
Where a Je11 t:iei is for 110 uncertain period and determines
after the crops are sown and before harvest, the tenant is as a
gener 11l rule entitl0'1 to the crops or, ~s they are usually .called,
to emblements (d). but, if the lease 1s for a term certam, the
tenant has no such right.
A lease for one year, or for half year or for a quarter
of ai\ year is a lease for a term, so is a lease for a given number
of years, if a person shall so long live (e).
(3) A tenancY from year to year is a tenancy determin-
able at the end of the first or any subsequent year, by _eit?er
party giving to the other due notice to quit and contmmng
from year to year until so determined (e).
(4) A tenanOY at will is where a man lets to another
and either oartY, more properly both parties, may put an end
to the tena~cy at ple11sure (/) .
(a) Deane 83 a.nd Elp. 208,
(b) 2 Prid, 2 a.nd Deane 35.
(c) Andris Appu v, Silva , ll N, L, R, 175,
(d) Emblementa are the produce or fruits of land s~wo or ph1nteo; a.~so
f those vegetable production of the soils, such as gram,
growmg oropa o , .
, d the like whioh a.re not spontaneous, The proauce of
.ga.r d en roo~s a.n , (d) 2 Prid, 26.
grass, trees, and t,be like is not signified by the ter_m,
(e) ll Prid, 9.
(fl 2 Prid. 2 a.!ld 26; ll Cr. 1030,
INCIDENTS TO A LEASE. 211
(5) A lea.se by sufferance is where one who comes in by
. ,right holds over without right. If, for instance, a tenant for
years after the expiration of his tenao:ly continues to occupy
the land of which he was tenant, without either tht3 assent
,or dissent of his landlord, he is a tenant by sufferance, the
'law not considering him a trespasser, because, having been
originally rightfully in possession, it will be assumed in bis
a favour that he is so still (a).
If the landlord receives rent from a ten a nt on sufferance,
the tenant becomes tenant from year to year, subject to such
covenants and conditions in the lease as are applicable to that
species of estate (b),
A tenant entering into possession of land, under a written
lease void in law, thereupon becomes tenant from month to
month upon the terms of the writing as far as they are
,applicable to and not inconsistent with a monthly tenancy (c).
The acceptance of a new lease is an implied surre~der
{)f the first lease, and a new letting to a third party with the
assent of the original tenant has the sam9 effect (d).
A lease (other than a l~ase at will or for any pel'iod
not exceeding one mo n th) should be nota.tially execmted (e). -
- . --- - - . - -
In the case of a verbal contract, for lease for more t han
a month, reasonable rent for use and occupation may be
recovered (f),
II.-Incidents to a Lease.
The principal incidents to a lease entitled to notice here,
are (1) the commencement; (2) the duration and determina-
tion of the term; (3j the rights .a,nd liabilities of the parties ;
(4) the payment and apportionment of rent; (5) estovers and
(6J waste.
_ 0
(a) Deane 22 ,
(b) Bishop v, Howara, 2 B, a.nd Cr. 100 ; ll Prid, 2 and 3,
,
(c) Wambeok v. Lemeaurier, 3 N,L,R, 105,
(el' Ord, No, 7 of 1840, Sec, 2.
(/) DissaIJa.ike v, Fra.noisku , 1 Tamb. 23; Gren , pt. iii, p. 1.
 212 OH. Xll.-LEASES.
(1) The commencement.- A lease for life cannot begin at,
a date to come, but a lease for years may (a).
(2) The duration and determination of the term.-A lease
for years may be determined by the(!le xpiration of the period,.
bt forfeiture for breach of some covenants or by some ~;xpress
condition in the deed (b). ' -of the contract of lease; and if the tenant is not put in posses-
A lease for a running period of three, seven or fourteen
years without prescribing at whose option it shall determine,.
will be determinable at the option of the lessee only (c).
A tenancy at will is determinable by either party, but a
tec.ancy from year to year requires a notice to quJt (d) .
Where the premises are sold by the E'iscal and . notice is
given to the tenant of such sale, be is bound to pay to the
vendee the rent thereafter accruing due (e).
(3) The rights and liabilities of the parties.-Between the
lessor and the lessee there is a privity of estate and a privity
of contract, and they are reciprocally bound to each other by
the covenants in the lease implied or expressed. The lessee
is not discharged from the payment of rent or from other
covenants by assigning the lease, not even if the lessor has.
accepted the assignee as tenant (/J .
A notarial lease is a pro tanto alienation and gives the
Iess~e' during his term the legal remedy of an owner and
t possessor (g). He could maintain a possessory action against
his lessor (h).
A lessee has the right to rem0tin in possession upon pay-
ment of arrears of rent without being ejected (i),
(a) 2 Cr, 1029.
(bl 2 Cr. 1030,
(c) Daun v, Spurrier, 3 B. and P. !142; 2Cr, 1031,
(d) 2 Cr.:1031.
(e) Morris v, t Moi:timer, 2 S.O.C. 96,
(J). Thursby v, Plant, 1 Sound. 237; 2 Cr. 1031. .
(g) Goonewardene v. Rajapakse, 1 N. L, R. 217; Abayasekere v.
Silva, 2 Bal.~Notes 31.
(h) Perera v. Sobana, 6 S. 0, C,,61. , (g) Pavis Appuhamy v. Selanohi Appu, 7 N. L. R. 16.
(i) Amarasinghe v, Abdul Cader, 2 Br, 307, "
INCIDENTS TO A LEASE. 213
It is an implied term of the contract in 'letting and hiring
that the lessor should put the lessee in possession of the pro-
.party let (a).
It is a primary obligation on the part of a landlord to put
~ is tenant in possession of the property, which is the subject
sion, he may at once resign the contract and recover any
money paid in advance (b).
A lessee though not in possession of the leased premises
is liable for rent in the absence of evidence to shew that he has
called upon the lessor to put him in possession and that the
lessor has failed to do so (c).
A lease of a share of land during the pendenoy of partition
proceedings is void (d).
~~p.d~r the padition ordinance _is not ~ubjeot to any
ieases affeoting tbe property. A lease is not an encumbrance
withi~-- the m;~ning of the partition ordinance (e) but a
.p artition under the ordinanoe (not sale) is mape subject to a
lease(/).
Where two lessees covenant to pay a certain rent, each of
them is not bound to pay the whole rent, unless there are
words to shew that they bound themselves to do so, i.e., in
solidiim (g).
A lessee under a notarial oontraot not being pub in pos-
session by his lessor who has a valid title to the property
leased, can recover from third parties in adverse ~ossession
(
,t he use of suoh property for the period of his lease (h).
(a) Wijanaike v. de Silva, 9 N. L. R. 366; 3 Bal. 36.
(b) Silva v. Josinahamy, (1911) 2 Matara Q11,ses 98.
(c) Saibo v. kppuharny, 2 8 . C. 0 . 126 and Wijanaike v, de Silva,
'!l N, L. R, 366 distinguished; Ratwatte v. Ran Kira, (1915) 1 C. W.
R. 88,
(dJ Abey11,sekera v. Silva, l C.. A.C, 37.
(e) Samerawe,ira v. Cunji Moosa, 18 N.L.R, 408.
(fl Perera v, Fernando, 2 Bal, Notes 26.
(h) Isaac Perera v. Baba Appu, 3 N. L. R. 48,
 214 CH. XU,-LEASES.
The Court will grant a lesse.e relief against a prov1s100
!n the lea,se giving the lessor a right to claim a cancellation
r m the event of a breach of a stipulation by tbe lessee, if'
tho breach thereof did not involve a notably grave and
damnifying misuse of the property lea_sed (a).
A .lease of property is a good ground for the cancellation
of the lease (b).
A_ clause of forfeiture in a lease for pon-paym1mt is
only intended as security for the due payment of the rent ;
both under tha English and Roman-Dutch Law a lessee is
entitled to relief against such forfeiture even where the
lessor bas regained peaceable possession without any assist-
( ance of any Court of Law (c) .
Courts of law and courts of equity are always very
loth to. decree forfeiture of a terminal lease and, when the
party pays the amount due under the lease, even after the time,
for payment has expired, .it is usual to allow the term of
lease to continue (d),
Interruption of a tenant by strangers after the tenant ha8
been put in possession by the ,landlord is no ground for a
claim to damages or cancellation of the lease, unless it was
followed by eviction in law and due notice liad been given to
the landlord, in the proceedings terminating in eviction, to
warrant and defend title (e).
A substantial interruption by the landlord discharges a
lessee from the payment of rent and entitles him to claim
annulment of the lease and daiages (j) .
Where lessees had effected certain improvements in a.
~roperty leased and the lessor had transferred his rights to a
(a) Perera v. Thaliff, 8 N.L.R, 118; see Blso Silva. v , Da.sa.na.yllke.
3 N.L.R, 248; 2 Br, 325.
(b) Perera v, Perera, 15 N, L. R. 313; 1 C, A, C. 161.
(c) Perera v. Perera, 10 N: L, R. 230; see also 3 Tham, 103.
(d) Uda.ma Labbe v. Marioar, 3 Bal, 215,
(e) Saibo v, 'Appuhami, 2 S. C, R, 126.
(f) Marikar v, Bell, 1 S . C. R. 237 ; 2 C, L. R, 94.
INCIDENTS TO A LEASE . 215
third party, held- that the lessees were entitled to compensa-
tion for the improvement effected even as against third
parties (a).
Where the defendant agreed to grant to the plaintiff a
lease of certain premises and also undertook to effect and
complete certain alterations and improvemen ts to the premises
before May 15, 1905, anrl in default to pay Rs. 150 a day as
I
liquidated. damages for each day after that date and , where
default having been made by tbe defendant, the plaintiff sued
for the recovery of tbe damages stipulated : Held that the
amount agreed upon must be considered as liquidated damages
and not penaltv and that the plaintiff was entitled to recover
th~ sa~ br
Where A. leased an abandoned field to B. for 20 years on
the condition that B. should within three years render the field
cultivable by-erecting strong dams and trenches, or be liable to
forfeit rights under the lease ; and where B. failed to erect such
strong dams and trenches as stipulated but had a channel dug
through the field instead: Held, that B. had not complied with
the stipulations in the lease, and that A. was entitled to have
the lease cancelled (ci.
Where the plaintiff claimed to recover Rs. 180, being rent
advanced for certain premis1:,s and Rs. 500 damages for failure .
to repair the premises, which were damaged by rioters, and it
appeared that the plaintiff had been (originally) put in posses-
sion of such premises by the defendant: Held, ~hat, even if
plaintiff's possession was temporarily interrupted by the
invasion of the rioters, the defendant was still entitled to claim
the rent from the plaintiff as it was the duty of the lessee to
look after bis possession and as be could recover it by the pos-
sessory action should he be wrongly dispossessed : That for
such damages as the plaintiff might have sustained by
the act of t_he rioters he was entitled to be (and bad been)
(a} Mudia.nse v . Selandiar, ION. L. R. 209; 1 A. C. R, 174.
(bl Pless Pol v. de Soysa 12 N.L,R, 45; 2 Leader 130.
(c} Wiokremesekere v, Wickremesingha, (1913) 2 Matara Cases 177,
216 CH. Xll.-LEASES.
oompensated under the provisions of the Riot Damages
Ordinance No. 23 of 1915 (a).
II
A covenant on the part of the landlord to repair,
uphold, support and amend the premises with all manner of
necessary reparations and amendments whatsoever will not
make him liable for damages occasioned by the collapse of a
wall, if he had no notice that the wall was in a dangerous
state (b).
A tenan~ at will cannot, in the absence of any agreement,
,express or implied, claim compensation for improvements from
the lessor (c).
A tenant who makes an improvement on the premises by
agreement with the landlord is not entitled to retain posses-
sion until compensated, in the absence of an express or implied
term of the agreement to that effect (d).
Where a person takes a lease of property to commence
after the expiration of a subsisting lease, he can recover from
the lessee on the subsisting iease damage done to the property
by such lessee after the execution of the lease in his (the
incoming tenant's) favour (e), provided he has not withheld
from the landlord rent or sued the landlord for damages (j).
A lessee is bound to ,take reasonable care of trees on the
land leased (g) and lessor may sue the lessee for permanent
damage to the land even before the expiration of the lease (h).
A purchaser of a property subject to a lease acquires a
right to the rents' and profits of such properhy accruing after
such purchase without any assignment of the contract of
lease (i).
(a) Omardeen v, Marikar, 11916) 3 C.W.R. 123.
(b) Martin v, The Colombo Commercial Co., 1 Cnr. L.B. 117.
(cl Diya Wardeaa Nileme v. Ratnapala Unanse, 1 Cur.L,R. 253,
(d) Costa v, Abeya.koon, 4 Bal. 25,
(e) Louis v, Bafappu, Ram., (1863-68) p, 8.
(t) Jananis v, Dissaoaike, 2 N. L, R. 244,
lg) Vaod. C. R, 128; 2 W. P. 602,
(h) Natohia v. Natobia, 1 Br. 380,
(i) Allis v. Sie~era, 3 N. L. R. 5; Silva v. Silva, 16 N. L R. 315,
INCIDENTS TO A LEASE. 217
Lessors have a special legal mortgage upon invecta et
-i llata, i.e., upon moveabies brought into the leased premises,
in security for rent due, and damage caused by the lessee.
Minors as well as majors are subject to this lien (a).
The tacit bypotbec that a landlord has over the invecta et
illata in the house let out attaches, in the case of moveable pro-
perty, to the _Proceeds of sale of such property in the hands of
:a person who knowingly has had the property sold in execution
of a decree in his favour and drawn the money himself (b).
Where a tenant takes into the premises goods on " hire-
purchase " system the landlord has a tacit hypothec over
them (c).
The hypothec would be lost if there would be complete
removal of the things from the land ; but an arrest may be
made in the course of removal (d).
A landlord's hypothec is privileged and bas preference
over a prior special mortgage (e). The hypotbec is not lost
by the landlord taking from the tenant a promissory note for
the amount due (f).
A lessee of a land since acquired under the land acquisi-
tion ordinance is entitled to a share of the compensation
tendered by the Government Agent (g).
The owner of a reversionary lease is not a person interest-
-ea in the property sought to be acquired under the land
acquisition ordinance (h).
Local Boards when _t~ey enter into an agreement, whether
it be a sale or a lease, should comply with the terms of Sec. 2
of Ord. No. 7 of 1840 (i).
(a) 2 Nathan, -936; Bal. P. and T. 173; see also Goooaretne v.
Anna.ma.lay, 2 Br. 211,
(b) Marik,u v. Mohamed, (1913117 N, L. R. 191.
(c) Anglo Oriental F~mishing Coy, v. Samarasioghe, 7 N.L.R. 12,
(d) Ram, (1877), p. 63 .
le) V!lnd, (1869-71), p, 103,
(f) Ex parte Allstin, Ram. (1872), p. 18.
(g) G. A. Col. v, Dias, 1 Bal. 206; 5 N.L.R, 281,
(h) Ellis v. Carseem, 5 N.L.R. 44.
(il L. B. Trinoo v, Subramaniapillai, 2 A. C. R. 146-,
28
,,
11
I
218 CH, XII.-LEASES.
(4) The payment and apportionment of rent.-The rent is
payable at the time and place specified in tbe lease. Generally
tbe rent cannot be apportioned .
(5) Estovers is tbe liberty of taking the necessary
materials for use and furniture of a house or farm, which is
incident to the estate of every tenant for life or years, without;
the permission of the party (a) . It is an allowance to a person
out of an estate or other thing for support, as of wood to a
tenant for life, etc. , or alimony tq a woman divorced out of
ber husband's esta te.
(6) Waste is a spoil or destruction in houses, gardens,
trees, or other corporeal bereditaments to the disherison of
him that has the rem ainder or reversion. It is either volun-
tary, as by pulling down a house; or permissive, by suffering
it to fall (bJ.
III.-The Formal Parts of a Lease.
Tbe nature of the provisions usually inserted in a
lease
varies so materially with the nature of the property that it is
difficult to give any detailed analysis of a lease that would be
of use to the reader (c) .
The component parts of a simple lease in its ordinary
form are :-(1} the premises, (2) the habendum, (3) the red-
dendum, (4) the covenants, (5)' the conclusion (d).
1. THE PREMJSES consist of :-
(a) The comrtJ,encement or introductory part.-It begins
as follows: "This indenture made the second day of June,
1909, between A. B. of--of the-one part and C. D. of--of
the other part," &c.
(b) The parties.-It is not unusual to name the parties
as II lessor" and "lessee" at nhe commencement of the lease,
and to define these words either there or at the end of bhe,
lease, so as to include their heirs, executors, administrators, or
(a) 2 Cr. 1032. (cl 2 Elp. 220,
(bl 2 Ur. 1033, (di Dea,ne, 367,
'.I:HE FORMAL PARTS OF A LE;ASE.
assigns (a). It is safe that every person intended to take an-
immediate estate or benefit in a lease should be made a party
to it, since otherwise he may find it difficult to sue on tbe,
covenants contained in the lease (b).
(c) The recitals.-A simple form of lease does not require
any recitals. In an under-lease the head-lease is usually recited.
Som.:;times when the lease is made under a power, the power
is recited, but this does not appear to be usual. The instru-
ment creating the power is in such cases referred to in the
operative part of the lease (c) .
In assignments of a lease-hold the prevailing practice is
to introduce the parcels in the recital of the assignments and
to assign the property comprised in the lease (d).
Wben the consideration consists only of the rant and the
lessee's covenants, it sufficiently appears from the subse-
quent parts of the lease, and it is not necessary to refer to
it in the premises, though this is often done. Where it.
consists in part of the payment of a premium, the entirt>
consideration is properly mentioned in the premises (e) ,
(d) The consideration consists usually in tbe rent to be
paid, and the covenants to be observed by the lessee. It often
consists, besides the rent and covenant, in the payment of a.
premium, or the execution of repairs or improvements on the
property demised(/).
II
(e) The demise.--The word demise " is the .best for
expressing the fact tha~ the lessor leases the property. But
any words shewing a clear intention to lease will have the
same effect. In the case of a lease under an express power
the word " appoint " is sometimes added (g).
(j) The parcels and licenses.-The parcels should be care-
fully and accurately expre!;!sed. It is generally convenient,
(aiJ Elp, 221. (el 7 Enuy, 73.
(b) Deane, 366, (/) Daa,ne, 368,
(cl Deane, 368 and Elp, 221. (g) Deant, 368 and Elp, 222,
(d) 2 Cr. 855,
 220 CH. XII.-LEASES.
to describe the parcels by reference to a plan. See pages 149
and 150 above.
If the lessee is to be at liberty to commit waste, i.e.,
to do things like cutting timber, pulling down buildings,
opening mines, etc., the lease should specially state such
licensee. The grant of licenses in mining leases is usually
followed by a provision that in the use of the licenses tbe
lessee sh all do as little damage as possible to the lessor (a).
(g) The exceptions and reservations.-After the parcels
-come any exceptions or reservations which may be agreed
upon and these vary with the circumstances of each parti-
cular case. The word "exception" is properly applied to
save already existing part of the property which, by force of
tne exception, does not pass by the de-rnise, -~d .th~ ab;~lute
- ~ .
ownership in which remains, _therefore, with the lessor ;
- 2. THE HABENDUM states the term during which the
whilst the word Ii res~rvation " is used to express some new
right or easement over the property, created by the reserva-
tion, but taking effect by way of re-grant by the lessee to
the lessor, who can therefore only use it for the express pur-
pose forwhich it was reserved. It comprises rights such as
easements and profits a prendre, and rents (b).
An exception refers to a part of the thing granted, as an
exception of so many acres out of a specified area, or of trees
or minerals. But the exception must be certain, and it
must be capable of being so construed as not to cover the
whole of any matter specially granted. Thus in a grant of
a messuage "with all the chambers, cellars and shops," an
exception of the shops was held to be repugnant to the grant
and void (c).
A reservation is of a. thing not in esse, but newly created
-or reserved out of the land or tenement demised. In strictness
the term applies only to ~ t and to payments and ~ vices
in the nature of rent which issue out of the demised premises.
A reservation of a n incorpo'rea!right:--asa.- ngfitofsporting
or a right of way, does not technically take effect as an
(a) Elp. 2J2 and 223, (c) 7 Ency. 78.
(b) Deane 369 and Elp. 224.
. THH: FORMAL PARTS OF A LEASE. 22 !.
exception or a reservation. It is neither parcel of the thing
gran ted, nor does it issue out of it. Consequently it takes
effect by way of re-grant by the lessee, and to make the
grant operative it is essential that the lease ehould be executed
by the lessee. And since the incorporeal right is thus.
granted by the lessee, the grant may enure to the benefit of
a person who is not a party to the lease. A reservation of
an easemen t in favour of tbe lessor and bis assigns is avail-
able not on ly for assigns strictly, but, if the subject-matter
is suitable, for licensees of the lessor; but a similar reservation
of a profit a prendre, such as a right of sporting, extends only
to the lessor and bis assigns and their servants exercising the
right for their benefi6 (a).
lessee, his executors, administrators and assigns are t o hold .
the property and the day on which the term is to begin.
If no day is named in a lease for the commencement of the
term, it will begin on the date of the lease. The term of years
may be made to commence from a day already passed from
the date of the lease or in futgro (b).
In the case of an under-lease which is intended to com -
prise practically all the interests of the original lessee, the
term is made t o determine a few days before tbe original
lease, so as ~o leave a reversion i.n him (c).
3. THE R EDDENDUM specifies the a.mount of rents
and royalties which the lessee is to "yield and ' pay " and
the days on which they become payable. The reddendum
should not state to whom the rent is to be paid, for if rent
is reserved, generally the law will always carry it to the
owner of the reversion, whoever he may be, after the lessor's.
death (d).
. A rent is an ascertained sum, but the amount of a
royalty or galeage rent, which is a sum to be paid in respect
of the quantity of minerals raised, depends on the act of the-
(a) 7 Ency, 79. (c) Elp, 225,
(b) Deane, 370 and Elp. 225, (d) Deane, 370, 371 and Elp, 225.
 "222
.. CH. XII.-LEASES.
-tenant. As the amount of a royalty depends entirely on the
-amount oLminerals worked by the tenant, it is desirable that
"there should be a fixed minimum payment. This is gene-
'rally effected by reserving a fixed rent called a dead rent,
-payable whether the lessee works the mines or not, as well
,as a royalty. A render is where a certain proportion of the
,minerals themsel!es are to be delivered to the lessor (a).
A footage or acreage rent is a rent payable per acre a foot
thick of minerals, and so in proportion for a greater or less
tl:iickness (a).
A way-leave rent is a sum payable according to the quan-
tity of minerals drawn over specified roads or tramways (a).
A spoil-bank rent is a sum payable according to the
quaptity of rubbish deposited (a). ,
A clause called the strike clause is often inserted in
mining leases; it provides for the total or partial cesser of the
rents during a strike, or during a lock-otit made with the
:approv~l of the lessor (a).
A clause called an average clause is often added providing
that if the lessee raises in any year a less quantity of minerals
-than would produce royalties equal to the dead rent, he may
-make up the deficiency in any subsequent year without paying
royalties for it (a).
Where there are special days of payment limited upon the
reddendum, the rent ought to be computed according to it, and
not according to the habendum.
(~ 4. TrrE COVENANTS. A covenant is either i pressed or
implied. The expressed covenant controls one that is implied.
The nature of the covenants contained in a lease depends
entirely -g,pon the nature of the property. The following are a
few of the more important covenants-:-
Covenants for payments by lessee of (1) rent, (2) rates
and taxes. Covenants having reference to keeping up the value
-of the property with respecb to :-(3) repairs, (4) insurance,
(a) Elp. 226.
THJ!J FORMAL PARTS OF A LEASE. 223
{5) waate, altering the nature of the property, (6) using pre-
mises in a certain manner only, (7) and the state in which
property is to be delivered up, (8) covenants oot to assign or
under-let (a), (9) covenants on the part of the lessor and
{10) covenants in an under-lease.
(1) Rent.-Although the words " yielding and paying"
in the reddendum clause amount to an express covenant by the
lessee for payment, it is the practice to insert a covenant for
payment of the amount (b).
{2) The most sweeping words for including all rates and
taxes are "all rates, taxes, assessments and outgoings whatso-
ever, whether legislative, municipal, local or of any other
-description which are now or may at any time hereafter be
-assessed, charged, or imposed upon the demised premises or
on the owner, or occupier in respect hereof ,:' (b).
(3) The covenants with respect to repairs inserted in the
lease of a house are : -
(a) To repair and keep the premises in good repair.
{b) To paint the inside and outside at certain times in
a prescribed manner.
(c) To allow the lessor to en ter and view the premises
and on his giving written notice of waot of
repair, to repair within a particular time (c).
In a farming lease, the tenant generally covenants to keep
the buildings, gates, hedges, ditches, roads, etc., in repair on
being given specified materials by the lessor (d) .
In a mining lease, the lessees should covenant not to
injure the mines, to protect them from encrnachments, to keep
the works in repair, to fence pits, railways, and possibly to
leave certain of the minerals uowrought as support to the
surface, or as bulwarks against - water from the neighbouring
mines (d).
In the lease of a quarry, where the nature of the working
is to use open pits, so that the whole of the soil above the
(a) Elp, 230, (b) Elp, 231. (c) Elp. 232. (dJ Elp. 233.
224 CH. xn.-LEASES. THE FORMAL PARTS OF A LEASE. 225
stone .removed has to be removed, thus leaving a large hole, it; (h) To remove any buildings built by the lessee that
. . 'fi d that the tenant shall fill up the, the landlord may require him to remove, and other cove.
18 sometunes spe01 e . h b
hole and replace the surface soil after the st~ne as een nants of a like nature varying with. the circumstances of each
worked, so as to leave the surface fit for agr10ultural pur- case (a).
poses (a). (6) Using premises in a certain manner only.-Tbe follow-
In the lease of a brickfield, the tenant should. cove- ing covenants are common in England:-
nant to preserve the two top spits of soil, and replace it aft~.r (a) Not to carry on tbe same trade.
the clav has been removed, so as to leave it fit for agr1- (b) To buy his beer from the landlord (i.e., if the lease
culturai purposes (a). is of a public house and if the landlord is a brewer) (b).
(4) Insura.nce. Where the lease, not being ~n agri- A lease of a housn may provide that the lessee shall not
. b 1a acbinery furniture, or carry on particular trades on the premises, e g., the covenant
cultural lease, comprises UI rngs , m '
other property that is likely to be damaged by fir~, there mty " not to use tbe premises for the saie of spirituous liquors " (c) ;.
be inserted a covem,nt t o insure and keep them msured'. or . " not to carry on trade of a seller of manure, fish or tobacco.''
.. ' office to be approved by the lessor' e1 ther (7) State in which property is to be delivered up.-The
a certarn sum ill an f th
in the joint names of lessor and leesee or of .one P em lessee usually covepants to deliver up the premises in good
I with power to the lessor to insure and pay the p~e- ,repair and in such a condition as shall be consistent with the
on Y, the same with due performance of his covenants (d).
miums in default of the lessee and to recover
exrenses by distress as if they were rent in arrear (b) . In the absence of express stipulation, every fix ture put up
(5) Waste. The covenants intended to restrain the by the tenant belongs to the landlord except fixtures put up
lessee from committing waste or altering the nature of the for ornament or for his convenience or for the purpose of
trade which can be detached without doing any serious injury
property are : - to the premises (e).
In the case of a house and pleasure grounds :
walls or (8) The covenant not to assign or under-let is intended
(a) Not to alter the frontage or cut the main
to prevent the PP,lmises falling into the possession of an
timbers of the house. insolvent or a man' of bad character.
(b) Not to destroy timber. The covenant against assignment should, if intended to
In the case of a farm: prohibit under-letting, be expressly worded to that effect. for a
(c) Not to break up meadow or pasture. covenant merely not to assign or put a.way the lease o'r the
premises, does not prevent tho lessee from making an under-
(d) Not to cut trees.
lease of part o_f the term ; although an under-lease of the leas&
(e) Not to sell manure or certain crops. for the whole term amounts to an assignment(/).
(f) N~t to work mines.
(a) Elp, 2.36.
In the case of mines :
nes, engine houses, build-
(b) Elp. 236 and 237.
{c) 2 Prid. 15.

(g) Not to remove any engl (d) Deane, 377.
ings, etc. (e) Gibsou v. H11mmersmith 1 2 Dr, and Sin. 603 ; Bishop v. Elliot.
(bl Elp. 1134. 11 Ex. 113 ; Elp. 238.
(a) Elp. 233. (I) Deane, 376 ; Crusoe v. Bugby, 2 Wm. Bl. 766; Elp, 240,
29
 ..
,
CH. XII,-LEASES.
'226
The restriction against assignment does not cause a
forfeiture on the lease being taken io execution (a) or in the
bankruptcy of the lessee ; and the trustee in bankruptcy can
sell without license (b). In order to avoid this, the . proviso
for re-entry is sometimes framed so as to render the lease
determinable on its being taken in execution or in the
bankruptcy of the lessee, his executors, administrators, or
.assigns (c).
The lessee's covenants are usually foliowed by a proviso
or condition enabling the hissor to re-enter in case of a breach
.of the lesse~s covenants, but such a oondiLioo could oot be
insisted oo, in the absence of a stipulation (d).
(9) Covenants on the pa,rt of the ' lessor.-In tbe absence
of an express covenant the word " ~ Lse," "~" or any
similar word which actually creates tbe term, creates an
implied covenant by the lessor for quiet enjoyment during the
term,
An .express covenant for quiet enjoyment by tho lessor,
qualified, however, as oniy guarding against the acts of himse:f
and persons claiming under him discharges the lessor from his
liability under the covenant jmplied by the word " demise "
and substitutes the qualified liability express~d in the covenant,
which is of a much less onerous nature (e).
Sometimes the lessbr covenants to seU the premises to the
lessee at a certain price if required to oo so before a certain
day (fl.
Occasionally the lessor covenants to use or abstain from
usrng bis property . in the neighbourhood in a particular
manner. This is usual in the case of a ~uilding lease.
(10) Under-lease.-It is necessary for the safety of the
under-lessor that the under-lessee should not do any thing
(a) Doe v. Cader, 8 T. R. 300 ; Elp. ~41.
(b) Doe v. Deavan, 3 M. a n d 8. 353 ; Elp. 241.
(cl El p, 241. , .
(dl Hodgekinson v. Crowe , Z , R. 10 Ch, 622 ; 2 Pnd, 17,
(e) Elp, 242,
(() Elp, 244,
.!!'ORM OF AN INDENTURE OF LEASE. 227
with respect to the property which might cause a forfeiture of
the bead-lease. On the other hand, it is necessary for the
,safety of the under-lessee that the under-lessor should not
forfeit the head-lease by omitting to pay rent, or in case,1
where an the property comprised in the head-lease is not
,comprised in the under-lease by committing a breach of cove-
nant as to the property retained by him .
For these reasons, the under-lease will con!;ain, in addition
,t o the covenant to pay rent and other covenants which may
:be agreed upop between the parties, covenants by the under-
lessee with the under-ieseor, similar to the covenants by the
lessee in the bead-lease with respect to the user of the property
comprised in the under-lease, or any other covenants which
must be obderved by the tenant in possession to a,void a
forfeiture, substituting the under-lessee for the head-lessee, and
the under-lessor for the head-lessor throughout, except that io
those covenanbs by which in the head-lease power is given to
the bead-lessor to enter on or do some act with respoc~ to the
management of the property, the power should be reserved
both to the under-lessor and the head-lessor (a).
0
5. THE CONCLUSION consists of the testimonium clause,
tbe~signature of the parties and witnesses and the( attestation
,by the notary. See pages 34 to 40 above.
Form of an Indenture of Lease. .
Stamp No.-- , Prior Registration.
This indenture made the twenty-third day of November
1908,
Between E. F. of- -[lessor], hereinafter called the
lessor, of the one part and G. H. of--[lessee], hereinafter
called the lessee, of the other part ;
Witnessetb that, in consideration of the rant herein-
after reserved and the covenants by the lessee hereinafter
-eontained, the lessor doth hereby demise and let unto the
(a) Elp, 248 and 249,

228 CH. XII.-LEASES,
lessee, his heirs, executors, administrators and assigns, aU
/ that dwelling-house, etc. [parcels] .
To have and t o hold the said premises unto the lessee,
his heirs, executors, admi nistrators, and assigns, for the term
of ten years from the date hereof,
Yielding and paying therefor, during the said term, tqe,
yearly rent of Rs.- - , clear of all deductions, on the--day
of--in every year, the first of such payments to b~ made
on the--day of--next.
And the lessee doth hereby for him self and his assigns.
covenant with the leHsor, th at he the lessee, his heirs, execu -
..
tors, administrators or assigns during the said term will pl!.y
the yearly rent hereinbefore reserved, on the days and in
manner aforesaid ;
And will pay all rates, taxes and outgoings now payable or
heroafter to become payable in respect of the said premises ;
And will keep the said premises insured against loss or
damage by fi r e. in such office as the lessor, his heirs, execuliors,.
administrators or . assigns, shall approve, and will, whan
-required, produce the policy of such insurance, and the current.
year's receipt for the premium thereon, to the lessor, his heirs,
executors, administrators or assigns ;
And will keep tbe said premises in good condition and
complete repair, and without any alteration, except such as.
the lessor, his heirs, executors, administrators and assigns.
shall approve of;
And, at the expiration of the said term, or sooner, so yield
up the same unto the lessor, his heirs, executors, administra-
tors or assigns ;
And will permit the lessor, his heirs, executors, adminis-
trators and assigns, and his and their agents, surveyors, and
-workmen, at all reasonable times during the said term to
enter upon the said premises to inspect the same ;
Provided always that, if any part of the said rent shall
be in arrear for one 'month, whether lawfully demanded or
F ORM OF AN UNDER-LEASE. 229
not, or there shall be a breach of any of the covenants by
t he lessee herein contained, the lefj sor, his heirs, executors;,
.administrators or_assigns m!ty re -enter upon the said premises,
and i mmediately thereupon the said. term shall absolutely
determine.
And the lessor doth hereby covenant with the lessee, that
the less~e, his heirs, executors, administrators an~ assigns,
performmg and obse rving all the covenants by the lessee hijrein
contained, 11!-ay quietly hold and enjoy the said premises
during the said term, without any interruption by the lessor,
-o r any person claiming through him.
In witness whereof we the said E. F . and G. H ., &c.
Form of an Under-lease.
Stamp No.-- Prior Registration.
This indenture made the--day of--1909,
Between A. B, 0---[under-lessor], hereinafter called the
landlord , of the one part, and C. D, of-- [under-lessee], here-
inafter called the tenant, of the other part.
Whereas by an indenture of lease, dated the--day of
--1908, and expressed to be made between E. F. of--~nd
G.H. of--all that [take description of the parcels f rom the
.original lease], were demised by the said E. F. [original
lessor] to the landlord, his heirs, executors, administrator~
.and assigns, for the term of ten years from the--day
-o f--1908, at the yearly rent of Rs. 100 and subject to
covenants by the lessee, and conditions therein.contained;
And whereas the landlord has agreed with the tenant for
.an under-lease of the premises upqn the terms hereinafter
,expressed ;
Now this indenture witnesseth, that in pursuance of the
-said agreement, and in consideration of Rs.--this day paid
by the tenant to the landlord . (the r\jceipt whereof the landlord
,doth hereby acknowledge), he the landlord doth hereby demise
unto t~e , tenant, _his heirs, ' executors, administrators and

CH. XII.-LEASES.
230
assigns, all the said premises comprised in and expressed to be,
demised by the herein before recited indenture of lease;
To have and to hold the said premises unto the tenant,.
bis hairs, executors, administrators and assigns for .the term
of five years from the date hereof.
Yielding and paying therefor, during the said term hereby
grant~d, the yearly rent of Rs. 100, clear of all deduction s, by
equa"l half-yearly payments on the--day of--, and the
--day of--in every year, the first of such half.yearly pay -
ments to be made on the--day of--1909.
And the tenant doth hereby fo r himself and his assigns
covenant with the landlord t hat he the tenant, his heirs,.
executors, administrators or assigns, durin g the said term
hereby granted, will pay unto the landlord, his heirs, executors,
administrators or assigns the yearly rent herein before reserved ,.
on the days and manner aforesaid ;
[I nsert here the other covenants mentioned in the head -
lea se.]
And he the tenant doth hereby for himself and bis assigns.
covenant with the landlord that he and his afprewritten will
perform and ob~erve all t he covenants by the lessee and condi-
tions contained in the bereinbefore recited indenture of lease,
and henceforth to be performed and observed, except the'
oovt3nant for the payment of the said yearly rent of Rs.--
by the same indenture reserved ;
And will keep the landlord , his heirs, executors, adminis-
trators and assigns, indemnified against all actions, expenses,.
clai~s, demands, and liability, on account of the- breach of the-
said covenants and conditions (except as aforesaid) or any of
them.
Provided always that, if any part of the said rent shall be
in arrear for one month, whether lawfully demanded or not, or
there shall be a breach of any covenants by the tenant herein
contained, the landlord, bis heirs, executors, administrators or
assigns may re-enter upon the said premises, and immediately
thereupon the said term shall absolutely determine . .
-..
AGREEMENT TO LET FURNISHED APARTMENTS. 231
And the landlord doth hereby covenant with the tenant,
.that he the tenant, his heirs, executors, administrators and
. assigns performing and observing all the covenants by the tenant.
herein contained, may quietly hold and enjoy the said pre-
mises during the said term, witqout any interruption by the,
. landlord or any person claiming through bim.
And further, that he, the landlord, his heirs, executors,.
administrators or assigns will durin g the said term hereby
granted, duly pay the said yearly rent of Rs.--reserved by
the herein before recited indenture of lease ;
And will at all times keep the tenant, hi s heirs, executors.
administrators and assigns, estate and effects indemnified
against all actions, expenses, claims, and demands, otl account
of the non-payment of the said rent or any part thereof.
Ia witness whereof we the said A. B . and C. D.~ &c.
For FORM OF' A SURRENDER OF LEASE, see "Surrender,"
infra.
Agreement to let Furnished Apartments (a).
(Short Form).
Agreement rtlade this---J'ay of--19--between A. B .
of--of the one part and C.D. of-- of the other part.
The said A. B. agrees to let and the said C. D. to take the
--rooms on the floor of the dwelling-house situate a t - - -
together with the right in common witli the occupiers of the
other parts of the said dwelling-house to use the entrance hall
and stairs to the said rooms and also the furniture, articles and
effects now being in the said ' rooms and specified in the
Schedula hereunder written, For the term of--from the
--day of--19--At the rent of Rs.--And the said C.D.
hereby agrees to keep and preserve the said furniture, articles
_and effects so far as reasonable wear will permit in a proper
state and condition and supply and_ replace any arhicles that
may be destroyed , broken or lost during the tenancy by articles
of a like kind and of equal value and on the expiration or soo_n er
(a) Kelly. 264 .
232 CH. Xll.-LEASES.
determination of the said term will deliver up to tbe said A.B.
the said rooms, furniture, articles and effscbs or such articles
a.s shali ba so subs titu ted in the place of a ny of the said articles
as shall have been so destroyed, broken or lost as aforesaid
t1nd will not underlet or assign or part with the possession of
the said premises or any part thereof nor remove any articles .
from the said rooms without the landlorJ 's consent in writing.
The said A.B. will pay all ra,tes and taxes and will give the
said C.D. quiet enjoyment during the tenancy,.
In witness whereof, &c.
The Schedule.
Sporting Lease (a).
Thi::1 indenture m ade the--day of---batween A. B. of
- -(Lessor) of the one part and C.D. of--(Lessee) of the
.o ther part witnesseth as follows :
The said A.B. doth by these presents grant and demise
unto the. said C.D. full free and exclusive right for tbe said
C.D., his friends, gam a-keepers ana servants and all other
persons having his permission so to do to hunt, course, shoot,
fish and sport over and upon the land and grounds specified
in the Schedule hereto and every of thorn and over and upon
all other (if any) the game preserves, woods, farms and other
lands whatsoever of the said A.B. in the parish of--and to
kill and ta.ke and dfapose of all game, rabbits, wild fowl
and other wild anima.13 and wild birds and fish upon the
said several premises and for the purpose aforesaid to enter
upon the said several premises or any of them subject to the
rights of any tenants of the said lands conferred by their
agreements of tenancy or by law.
To hold the said rights and liberties hereby granted
subject as . hereinafter provided unto the said C.D. fr.om the
- -_d ay of--unto tbe--day of--:-(or for the term of--
years from the--day of--).
(a) .Kelly, 284,
SPORTING LEASE. 233
. Yielding and paying unto t he said A.B . the rent or sum
d Rs.--for the whole of the period aforesaid without deduc-
tion in--equal portions on the--day of---, tbe--day of
~-, tbe--day of--and tbe--day of---(or the yearly
xent of --without deduction on the--day of--in each
year or by eqnal--instalments on etc. the first payment to
be made on etc.).
The said 0.1;:>. coven:i,nts with the said A.B. to pay tl~e
said rent of Rs.--a!; the times o.nd in m ann er afores aid and
to pay all rates or taxes levied upon t hu ri ght of sportin g hereby
.granted or upon the owner or occupier of t he said lands in
respect thereof.
A.nd also that he the said CD. will exercise the said right
of sporting in a proper and sportsmanlike mi\nner and will
during the said term at his ow-n cost keep a game-keeper (or
game-keepers and--assistants) and will use his best endea-
vours to preserve a proper and sufficient head of game.
And also that he the said U.D. wiJl dnring the said term
pay all reasona.ble claims of the tenants or occupiers of the
said lands for damage or injury done in the exercise of the said
right of shooting dr by game or other animals as aforesaid on
the said lands and will keep the said A.B. indemnified from
.any such claims.
And also will not at any time during the said term assign
or underlet the right of sporhi'ng over the said lands or any
pa.rt thereof without the previous consent in writing of the said
A.B.
And will at the end or sooner determination of the said
term leave upon the said lands a stock of game equal to that
which now exists thereon.
The said A.B. hereby covenants with the said C.D. that
he the said C.D. paying the said rent hereby reserved and
observing and performing the covenants on his and their part
hereinbefore contained shall subject only as hereinbefore
mentioned with respect thereto quietly exercise and enjoy at
all times during the term hereby granted the several rights
80
234 Cll. XII.-LEASES.
and liberties hereby granted without any interruption or
disturbance by the said A.B. or any person claiming under or
in trust for him, them or any of them.
And also that he the said A.B. will give notice to persons.
not to trespass on the said land, grounds and premises and will
allow his name to be used in any proceedings against persons
trespassing thereon, the said C.D. holding him the said A.B.
harmless from damages and costs in relation to such proceed-
ings.
And it is hereby agree::l that any dispute or question
which may arise under these presents shall be referred to
arbitration of two indifferent and independent persons to be
nominated by the parties hereof, with power unto them to
nominate an umpire.
In witness whereof, &c.
The Schedule referred.
Building Lease of an Allotment of Land
for 50 Years.
(Govt. Form).
This indenture, made the---day of---between G.A.
II
of---hereinafher called the lessor" (which expression
shall include his sucDessors in office for the time being as
G.A.), of the one part, and C.D. of---hereinafter called,
the II lessee" (which expression, where the context so admits,.
shall include his heirs, executors, administrators, and assigns).
of the other part : Witnesseth as follows:-
That in consideration of the rent bereinaHer reserved and
of the covenants hereinafter contained, the lessor doth hereby
demise unto the lessee all that allotment of land situated at
- - - , &Cl., containing in extent---which said allotment of
land is more fully described and delineated as lot No.---
on the plan attached hereto, dated the--day of--, 191-
and authenticated by---and bearing No.---, together
with all rights, easements, and appurtenances to the same-
belonging, or reputed to belong, or usually held or enjoyed
therewith, except and reserving unto the lessor all mines and
BUILDING LEASE ...... FOR 50 YEARS. 235
minerals whatsoever in and upon the said allotment of land
or any part thereof, with full power to dig, search for, win ,-
work, and carry away the same respectively, and to do all
things necessary or proper in that behalf, making reasonable
compensation to the les11ee for the damage which shall be
sustained by him thereby. And also except and reserving unto
the lessor the free and uninterrupted passage and running of
water and soil from the lands of the lessor and his lessees or
tenants in and through the sewers, draius, and water-courses.
now existing, made, or to be made in or under the premises
hereby demised. To have and to hold the same unto the
lessee irom the--day of--, 191-, for the term of FIFTY
YEARS, yielding and paying therefor yearly during the said
term, and proportionately for any fraction of a year, the rent
of Rupees---by equal yearly payments free from all deduc-
tions, the first payment thereof to be made in advanDe on the,
--day of--, and the last payment on the--day of--.
2. That the lessee for himseli and his assigns, and to
the intent that the obligations may continue throughout the
term hereby created, covenants with the lessor as follows:-
(i) TIJat he will pay the reserved rent on the days and
in the manner aforesaid.
(ii) That he will bear, pay, and dis'Charge a.II existing
and future rates, taxes, assessments, and outgoings
whatsoever in respect thereof,
(iii) That he will, within two years from the date here-
of, at his own cost and charges, and in accordance
with plans and elevations to be first approved of
in writing by the lessor or his engineers erect and
finish in a substantia_l and workmanlike manner,.
and with materials of the best description of
their several kinds, fit for immediate comfortable
occupation and use, one good and substantial
dwelling-house and no more, with proper offices,.
outbuildings, walls, fences, drains, connections,
and other conveniences and appurtenances,
expending on the before-mentioned works on cost
of labour and materials the sum of Rupees---
236 CH. Xll.-LEASES.
at the least, and producing vouchers of such
expenditure to the lessor, if required. Provided
th at all materials or work condemned by the lessor
shall be removed and replaced by others approved
by him.
Ov) Th at he will, at all times during the said term,
well and sufficiently repair, cleanse, uphold, main-
tain, and keep in good and tenantable repair the
said dwelling-house or other outbuildings, and all
additions thereto, and the w11lls, fences, roads,
sewers, drains, and appurtenances thereof, with all
necessary reparations and amendments. And
when for that purpose the state of the premises
either by decay, accidents from fire or otherwise,
shall so require, that be will take down the same
and re-build and erect again on the said allotmenb
of land in such like good and substantial manner,
a similar dwelling-house, with the necessary offices
and outbuildings, to the satisfaction of the said
lessor so that there shall always, during the said
term, be upon the said allotment of land in such
tenantable repair as aforesaid a good and substan-
tial dwelling-house.
(v) '!'bat be will, within---months from the date
hereof, ferice off in a proper manner to thti satis-
faction of the said lessor the allotment of land
hereby demised from the adjoining lands by a
substantial fence or boundary wail, and during the
said term keep the same in good repair and con-
dition, and also keep, preserve, and maintain all
landmarks of the lessor in good . order and
condition.
(vi) That be will not sell or dispose of any earth,
cabook, clay, gravel, or sand from the demised
premises, nor excavate the same except so far as
may be necessary for the execution of the said
works. Provided, nevertheless, that the lessee
may use for the purpose of the said works any
BUILDING LEASE ...... FOR 50 YEARS. 237"
materials excavated in the course oi the proper
execution thereof.
(vii) That be will permit ~he lessm:- and his agents at all
reasonable hours in the daytime, with or without
workmen, to enter the said premises and view the-
state of re pair and condition of the same, and that
upon the said lessor giving or leaving notice in
writing of any defects, or wants, or reparation, he
will repair and make good the same according to
such notice within three calandar months aUer
service thereof.
(viii) That he will not, without the consent of the
\essor in writing, use or permit the use of the
said allotment of land or any part thereof, or tho,
dwelling-house, for the purpose of carrying out
any trade or business, or as a place of public resort
or amusement, or for any purpose whatever other
than as a private or professional residence.
(ix) That he will preserve all timber and timber-liko-
growtbs that may be marked by the Forest Officer
of the Dist,riot and pay the liquidated and agreed
sum of Fifty Rupees (Rs. 50) for every tree that
may be out or injured.
(x) That he will not assign, underlet, or part with the
possession of the demised premises or any interest
therein, without first obtaining the written con-
sent of the lessor.
(xi) That at. the expiration or sooner determination of
the said term he will yield up and surrender the-
demised premises with all buildings erected thereon
during the said term, together with all additions,
improveil?ents, and fixtures affixed to the said
dwelling-house, in such repair and condition as
shall be in accordance with the covenants herein-
before contained (fair wear and tear excepted) to
the lessor, and that he will not be entitled to any
"238 CH. XII.-LEASES.
payment of any compens11tion in respect of the
said buildings or improvements, or on any account
whatsoever.
3. The lessor hereby eovenants with the lessee tha.t
the lessee paying the rent hereby reserved and performing the
covenants herein before on his part contained, eh all quietly
possess and enjoy the premises hereby demised for the term
hereby granted, without any lawful disturbance from or by
the lessor or any person or persons whomsoever rightfully
--claiming under him.
Provided always that if the rent hereby reserved or any
part thereof shall be in arrears and utJ.paid---days after
the same shall have become due (whether legally demanded
or not), or if there shall he any breach or non-observance
of the lessee's coven ants herein contained, then and in any
such case it_shall be lawful for the lessor to enter upon
the said allotment of land and the buildings for the time
being thereon or any part thereof in the name of the whole,
and to re-possess the same as of his former estate, without
making to the lessee. any compensation or allowance in
respect of improvements, and this demise shall thereon cease
and determine.
Provided always and it is specially agreed by and be-
-tween the lessor and lessee that, if the dwelling-house hereby
agreed to be erected shall not be completed and mado fit for
occupation within the period bereinhefore limited, or if the
lessee shall in any other respect fail to perform or observe
the conditions of the de mise heroin contained, the lessor shall
be at liberty to re-enter upon and take possession of the said
premises and all buildings, materi als, plant, and things thereon,
without making to the lessee any compensation or allowance
-for the same, and this demiso shall thereupon cease and
determine.
In witness whereof the said parties have hereunto set
their bands and seals at the places and on the day.s and dates
hereinafter mentioned.
Signed and dated at--this--day of--.
LEASE FROM GOVT. _OF CROWN LAND. 239
Lease from Government of Crown Land.
(Signature of His Excellency the Governor).
I certify that the above signature,
attached by means of a Stamp
under the provisions of Ordinances
No. 11 of 1884 ::ind No. 80 of 1884,
has been so attached in my presence
at--this---da.y of--, One
thousand nine hundred and - - .
Private Secretary to the Governor.
This indenture, made the----day of----One
,thousand ~ine hundred ana----, betweeu----Governor
,of . Ceylon, acting fo r aud on behalf of His Majesty the King,
.and hereinafter called the lessor, of the one part, and-.- - -
bereinafter called the lessee, of the other part:
'
Witnessetb, that in consideration of the sum of Rupees
----paid by the lessee, and of the sum of Rupees----
being rent due from the date of these Presents to the 31st day
,of December next \lnsuing (the receipt whereof is hereby
acknowledged) , _and of the rellts hereinafter reserved, and the
-covenants on the lessee's' part hereinafter contained, the lessor
-doth hereby demise unto the lessee, his executors, admin istra-
tors, and assigns, all that allotment of Crown land called--
situate in the Village----, in tbe----Korale, in the
District of---, in the---Province, containing in extent
--acres, ~-rood~, and--perches, and more particularly
described in the first part of the Schedule hereunder written,
with all wa~1 s, rights, and appurtenances thereto belonging, to
bold the said premisa;i unto the lessee, bis execu tors, adminis-
trators , and assigns, for tho term mentioned in the second
part of the said Schedule ; yielding and paying the ren t
mentioned in the third part of the said Scbeduie ; and the
les3ee doth hereby covenant with t he lessor, his successor and
successors in office, as in the fourth part of the said Schedule
is expressed ; and the lessor doth hereby covenant with the

CH, XII.-LEASES.
lessee, bis executors, administmtors, and assigns, as in the-
fifth part of the said Schedule is expressed ; and it is also
agreed and declared between and by the parties hereto as in the
sixth part of the said Schedule is -expressed : And it is declared,
that tbe said Schedule shall be deemed part of these Presents
and t>e read and construed accordingly.
In witness whereof tbe said parties have hereunto set their
hands and seals at the places and on the days and dates herein-
after mentioned.
(Signatu.re of Lessee).
Witnesses to the signature
of the Lessee, at---, this--
day of--, One tho1~sand nine
hundred and--.
SCHEDULE ABOVE REFERRED TO.
PART I.
The Land demised by this Lease.
All that allotment of Crown land called---situate
in the Village----, in the----Korale, in the District.
of----, in the-----Province, and bounded
on the North by----, on the South by----, on the
East by----, on the West by---, containing in extent
-,----acres,---roods, and---perches, and more parti-
cularly delineated and described in Plan No.---'--, dated
- - - , 190-, authenticated b y - - - -
Il.
PART
Duration of Lease.
' A term of----years commencing from the---day
o f - - - , 190-.
PART Ill.
The Rent reserved by this Lease.
The yearly rent of Rupees----to be paid in advance
without any deduction on the lat day of J anu-ary in every
LEASE FROM GOVT. OF CROWN LAND. 241
year. The first payment having been made before t!ie exe-
cution of these Presents, the next payment to be made on the
1st day of January, 190--.
PART IV.
The Lessee's Covenants.
'
1. The lessee shall pay the s11id yearly rent of Rupees--
at the time and in tbe manner above appointed for payment
thereof, and shall also pay all the rates, t11,xes, and assessments
whatsoever which shall during the term above-mentioned be
payable in respect of the demised premises. ,,.
2: The lessee shall not assign 'or underlet bhe premises
hereby demised, or any part ther_eof, without the consent in
writing of ~be lessor.
3. The lessee shall from ~ime to time during the said
term, when and so often as need shall require, at his own
cost, well and substantially repair and maintain the boundary
marks and hedges, mounds, banks, fences, drains, and ditches,
.
which indicate the boundaries of the premises
- hereby demised.
4. The lessee shall not have or make any claim for
compensation against the lessor or our Sovereign Lord the
King, his Heirs Oli Successors, for or on account of any alleged
expenses or on any account whatsoever, at any time.
PART V.
The Lessor's Covenants.
The lessee paying the rent hereby reserved, and observ-
ing and performing all the covenants herein on his part
contained, shall and may peaceably and quietly possess and
enjoy the premises hereby demised without any interruption
by the lessor or any person lawfully or equitably claiming from
or under or in trust for him.
PART VI.
General Provisions.
If any rent hereby reserved or any part thereof shall
remain unpaid for the space of fifteen days after the time
31
 242 OH. XII.-LEASES.
hereby appointed for payment thernof, whetbHr the same
shall have been lawfully d9manded or not, or if any breach
shall be committed of any of the covenants herein on the
lessee's part contained, or if tha lea3oe shall become bankrupt,
or compound or make any arrangement with his creditors,
then and in any of the said cases the lessor may re-enter into
and upon the premises hereby demised_, or any part thereof,
in the name of the whole, and the same have again, re-possess,
and enjoy as in his former estate.
Lease by Way of Renewal of an Expired Lease (a).
This indenture made the--day of --between--.
Witnesseth as follows : -
The landlord hereby demises unto the tenant all that
[parcels].
To hold unto the tenant from the --day of - - f o r
the term of---years.
Paying therefor during the said term yearly and propor-
tionately for any part; of a year the rent of Rs. - --by equal
quarterly payments to be made on the usual quarter days
without any. deduction except for landlord's property tax the
first of such payments to be made on the--day of--.
Except as to the term of years hereby granted and the
rent hereby reserved lbis demise is made upon the same terms
and subject to the same reservations and to the same cove-
nants on the part of the landlord and tenant respec ~ively and
to the same powers and conditions as were expressed and con-
tained in an indenture of leas!:) dated the---day of---
attested by S. K., Notary Public, under No.---and made
between---Oandlord) of the one part and---(tenant)
of the other part as if the same were herein set forth at
length with such modifications only as are necessary to make
the same applicable to the present demise and the parties
hereto.
(a) 7 Ency, 665.
AGREEMENT TO GET .... . . REFINE SUGAR. 243
The tenant .for himself r1od his assigns and to the intent
that the oblig>1.tions may c:rntinue throughout the term hereby
-created hereby covenants with tbe landlord as follows:
(1) To pay the reserved mat at the times and in the
manner aforesaid.
(2) To observe and perform such of the covenants
subject to which this demise is made as aforesaid
, as ought on bis part to be observed and performed.
The landlord hereby covenants with tbe tenant to observe
and perform such of the covenants subject to which this
demise is made as aforesaid as ought on his part to ba observed
,and performed.
In witness whereof, &o.
Cancellation of a Lease Bond.
Kno w all men by these presents that we P. R. B. and
M. A. A. both of Jaffna Town for divers good causes and con-
siderations, as hereunto specially moving, have cancelled,
annulled and made void and by .these presents do cancel,
annul and make void tbe Indenture of Lease made and
entered into between us on. the 28th day of September 1909
and attested by K. K. , N. P ., unde1 No . 80 and all the
covenants, condition s and agree ments whatsoever therein
-contained.
In witness whereof, &c.
Agreement to get Lease of Palmyrahs for
Toddy to refine Sugar.
An agreement made the eleventh and sixteenth days of
April 1914 between W. M. and E. M. both oi Jaffna in the
Island of Ceylon carrying on business in partnership as
mercha nts under the name, style and firm of W. M. and Sons
-and hereinafter referred to as " the said W. M. and Sons "
( which expression as herein used shall mean and include the
said W. M and E. M. and all future members or member for
-the time being and from time to time constituting the said
,partnership or firm of W. M. and Sons and their and each of
244 CH. XII.-LEASES,
AGREEMENT TO GET . ..... REFINE SUGAR. 245
their heirs, executors and administrators wherever the context
business of a similar nature to the said intended
so requires or admits) of the one part and G.L.C. a~d D.M.W.
Company.
both of Colombo in the said Island hereinafter referred to as
"the Trustees" (which expression as herein used shall mean (2) The said W. M. and Son shall before obtaining the
and include the said G. L. C. and D. M. W. and each of them said Leases make full and careful enquiry into and
and the heirs, executors, administrators and assigns of them) satisfy themselves that the Title of the Lessors as
for and on behalf cf the Company hereinafter mentioned of the a good and valid one to the trees leased and tbat
other part. the Lessors have full right, power and authority to
0 Lease 'the same to them.
Whereas a Company is about to be incorporated under
the Ceylon Joint Stock Companies Ordinances and to be called {3) The Trustees shall use their best endeavours to
The Ceylon Sugar Refineries, Limited, or some other name to cause the said intended Company to be incorporat-
be approved for the purpose inter alia of . leasing toddy-bear- ed within a reasonable period of the date hereof.
ing palmyrah trees in the Jaffna peninsu~a and manufacturing . . {4) Uoon the focorooration of the said Company the
therefrom sugar and other products. s~id W. M. and Son sh~ll upon being requested so
Now it is hereby agreed as follows:- to do assign to the said. Company all the said lJ::iases
as and when the same shall be completed in fulfil-
(1) The said W. M. and Son shall with all possible
ment of the covenant hereinbefore contained on
speed and due_ diligence and within a period of
the part of tbe said W. M. and Son to obtain
three months from the date hei:eof obtain from the
the same provided always that the Company
proper owners "thereof Laases of 200,000 female
shall have the option in its absolute direction
and male palmyrah trees which shall already have
of rejecting any Lease or Leases of which it does
blossomed within a reasonable and practicable
not approve and the said W. M. and Son shall
radius of two miles at such rent and on the terms
forthwith obtain fresh Leases as provided in
and condit1 ns set out in the draft Lease which
article (1) hereof to replac: the Lease (if any) of
has been prepared and approved of by the parties
whi{lh the Company does not approve and shall
hereto and a copy of which is hereto annexed and
upon such fresh leases . being approyed by the
markecl " A" and signed by the parties hereto as
Company assign them to tht;i Company in manner
being relative to these presents.
aforesaid.
The said W. M. and Son hereby also undertake that (5) Upon the execution by the said W. M. and Son in
thev will not during the pendency of this agree-
favour of the Company of good and valid assign-
me~t and if this agreement shall be duly adopted
ments of such Leases as lllforesaid of 200,000
by the said intended Company will not also during
palmyrab trees or any less number as _the Com-
the subsistence of any Leases assigned by them
pany in its absolute direction shall agree to accept
to the Company in manner hereinafter provided
the Company shall pay in advance to the Lessor
either directly or indirectly, _either in their own
or Lessors named in each such Lease so assigned
name or otherwise as principals or agents be
as aforesaid either directly or through the said
- engaged or interested in or on behalf of any
W. M. and Son one-half the first quarter's rent
individual corporation or Company carrying on
reserved in such Lease.
 ,',:'
.. ..
. ~: . : . .........
'
-.,.
. :
~ ~-:: l cH. X11.-tEAsEs.'_
:-. ,-~. :.~ . -, :_. -:~~-.:.- { .
24q
~~e c; v~n~~ ts on ti~~ ,p~r~ -6i th~ ;'.
... .. -
.,
,' \6) In .consider~tion ~f
., .
"
.. ... said .W. M .'and Son bereinbef~re~ontalnea and
'their part to be observed and performed- tbe Oo~:
.
.' .
. "_,,. ......
.. .... :,, "~
pat).Y shall pay to the said VJ. M. -and So!1 _fo,
,... ... . ...
. ~
respect of each and every palmyrah tree comprised_-'
in the said Leases so assigned by tbjjm t'o thi "'-
.
. Company as aforesaid one cent. 1:ier. tree -per-aimum
:," for 'every . to,ddy -bearing . palniyrah tree, ._ . The
amount due ~to the . said M. and. . So~ fn:
respect qf the first year of tbe pe~iod of su~h teases.
shall be paid by the _Compan y to the .said W. ~ -
and Son i~mediately u i: ol'.! tbe execution _by them
of such a;signment of ) eases as ifresaifl and
thereafter tho same shall be payable on similar
terms and condi:tions as to mode and. manner and
period of payment as in the.said draft lease marked
" A " is set out and contained with regard to the- .
rept to be p!!iid to the Lessor by the said W . M:
. and Son such paymei;it of one. cent. per tree to be-
payable to the said W. M .. and Sari during the
subsistence of the saia Leases ao assign~d a&
"' aforesaid and any renewal or/ renewals thereof.
(7) In consideration of t he said covenants on ~he part
of,the said W. M. and Son the Company shall also,
pay to the said W. M. and Son. all ~urns duly "
expended by them in respect 9f stamp and regis-
tration duties pa~able to them Government of
Ceyl~n in respect of the said, ' Leases and also a
sum of Rs. 2,500 towar?s the legal and other
expenses thereof .
(8) In the event oi the said Company not being duly
in corporated and failing or neglecting to take
from the said W. M. and Son 1l.n assignment of all
or any Lease; of up to 200,000 ' palrnyrah tree.s as
aforesaid which the said y-1. 1VL 'and Son shall
have obtained and which the Company, sh3ill not
have rejected un'der the proviso 'in that behalf
bereinbefore coutained the Company shall p_ay to
.. : c~.... . .. .
"
_
. .. '
-.: : '-
.. ,. t
._ :'EA~E OF ,PALMY~AHS ...... REFINING SUl,lAR . . 247
0 r
t pe) ai d W. M. a~d .Son a_nd by ; a.y of' li~iii ~
pn. " da:te_~ dam~ges ascertained and agreed on. by the - :
.:
part:es . and not by ~ay of penalty the sum of ~
Rs_: 1,000.. , . . . - ..
. (9) :-ne Co-mpany shaft have the ; igb t to enter Leases
direct ,with the owners of palmyrah trees and to.
<ti
. enwlo y if it so desires any Agent or Agents other
t. . _t~_an tbe said Y'f
M. and-Son to obtain such l~ases.
w~ , . The said W. M'. and Son shall be paid by the
Company one ~eat. per tree per annum for every
t ~ddy-bearing palmyrah tree comprised in such
. . l ast-ment_ioned leases . .
.,. {10) Upon th'e adoption of this agreement by the
Company the Trnstees shall be discharged from
all . liability to the said_W. M. and Son in respect
thereat'
(11) If this agr~ernent shalt' not bs
adopted by the
Company on or before the 30th day of September
1914 next either party he~eto may by notice in
writing _,t o the other rescind the sarne'.and upon such '
rescission qeither party shall (subje ct a"nd without
prejudice to the right of the said W. M. and Son
to the payments of the stamps and Rs. 2,500 and
Rs. 1,000 as provided in articles 7 and 8 hereof)
have any claim ag~ipst the other in respect of
anything contained herein as connected herewith.
In witness whereof.
. .
Lease of Palmyrahs to tap Toddy
for:. refining Sugar.
Tbis indenture made the 13th dav of April 1921
between
, A. - B. of---hereiaafter call~d " the L essor, "
which expression as herein used shall, where the context
so requires or admits, mean. and include bis heirs, exe-
cutors,, administra'tors and assigns of the one part, and
W. M. and E. M., both of ,J affaa, carrying on business in
. . P.artnersbi p. a~ J affna aforesaid as merchants under the name,
..
..

248 CH. xn ......:...LEASES.
style and firm of W. M. and Son bereinaHer
called "the Lessee," which expression as herein
used shall, where tbe context so requires or admits,
mean and include tbe said W. M. and E. M. their
and each of their heirs, executors, administrators
and assigns of the other part.
Witnesseth as follows : -
-Demise. (1) The L3ssor hereby demises to the Lessee
500 female palmyrah trees and 100 male palroyrah
trees (which said trees shall be selected and marked
by the L9ssee after tbe execution of these presents)
which shall have already biossorned and all of
which said female and male palmyrah trees included
in this demise are herein sometimes referred to as
"tha said trees " growing in all.' that and those the
garden or gardens fully -described in the Schedule
hereto and which said garden or gardens is herein-
after sometimes referred to as " the said garden ."
Rights (2) There ll.re included in t_he said demise and
defined. for the purpose~ thereof the rights, liberties and
privileges follow-ing :_;_ '
(a) The Lessee may enter upon the said
garden and draw and collect toddy
,. and gather the fruit and produce from
the said trees and carry away and
dispose of the same for the benefit of
him, the Leesee; . but the le_ssors are
entitled to the alas which may be cut
down by the lessee when they droop
and to any alas and stalks, which
may fall off.
(b) The Lessee may make roads and erect or
lay all such pipes and erections and
conveniences as the Lessee may con-
sider necessary or convenient for the
purposes of drawing, collecting,
LEASE OF PALMYRAHS ...... REFINING SUGAR ,
249
storing and transporting the toddy of
the said trees.
(c) To cultivate or manure the said garden if
the Lessee shall in bis absolute dis-
cretion think fit .
(d) Generally to do all things which shall
be convenient or neceSi!ary for the
purposes aforesaid or for obtaining
the full benefit of the rights, liberties
and privileges hereby granted. There
is ex.cepted and reserved to the Lessor Reservation.
bis tenants and all persons authorised
by him free liberty to use and occupy
the said garden an4 to cross the
garden for any lawful or proper
purpoee.
Thar~ is also excepted ann reserved to the
Lessor the timber., of sucn of the said
.
trees as may have fallen or which
may bs cut down with the permission
first bad and obtained of the Lessee.
(3) The so.id trees shall be held by the Lessee
from the first day of October 1914 for a term of
nine years, determinable as hereinafter provided.
(4) The Lessee covenants and agrees with the Lessee' ~
coven an ta,
Lessor as follows:-
(a) To pay the following'annual rents to be
calculated in the following manner:-
(i) For female trees at the rate of ninety
cents per tree per annum.
I
(ii) For male trees at the rate of sixty
cents per tree per annum.
(iii) Such rent shall be payable as follows:-
U pon the execution by the Lessee of a
deed of assignment or sub-lease of
_these presents in e~orcise of the right
32
 250
. LEASE OF PALMYRArrs ."..... REFINING SUGAR.
CH. XII.- LEASES.
in tbat bebalf reserved to tbe Lesseo under the
provisions of Article 5 (3) beTeof the Lessor shall
be paid one equal half of a quarter's rent
. calculated from the first day of January 1915 .
On the' said first day !Jf January, 1915, the
-~ Lessor shall be paid the remaining half of a
quarter's rent calculated to the 31st day of
March 1915. Thereafter such rent shall be
payable in advance by e qual quarterly payments
to be made o~ the first day of January, the first
day of April, the first day of July and, first 'day
of October in each and every year during the
... continuance of this demise the rent for the
quarter ~ndiog tbs 30hh "day of June 1915 being
payable on the first day of April 1915. Provid-
ed always that upon the execution by the Lessee
of any such deed of assignment or sub-lease as
aforesaid , all rents resei:vod by these presen~s
11,nd to become .due from the date of such Deed
of Assi,gom;iot or Sub-lease shall be payable to
tho Lessor, by the Assignee or Sub-lessee.
Provided 11,Jso that if the L,ssee shall fail or
neglect on or before. the 1st day of January 1915
to execute a Deed of Assignment or Sub-lease as
aforesaid these presents shall ipso facto be
determined .
(iv) The said rent shall be paid free of all deduc-
tions whatsoever.
(b) To bear and pay all the rates and taxes, dutie~,
impositions, outgoings a~d burdens whatsoever
imposed or charged under any Ordinance or
Ordinances for the time being or from time t;o
time relating to Excise in Ceylon .
(q) To use the said trees only for the purposes contem-
(d)
.
plated in these presents.
Not to commit or permit spoil or waste on any part
of the said trees or garden (the Act of God
251
alone excepted) and to pay r easonable
compensation for any. breach of th is
covena,nt.
(e) .At the " termination or other sooner
determination oi this present demise
to deliver up the said trees in a fit
and proper state consiste~t with the
due exercise of t he righ ts, liberties
and privileges ' herein conferred on t he
LessEe.
(f) At t he termination or other sooner
determination of this present demise
to remove all buildin'gs, works and
:,}
erections .which shall then be upon
or within the said ga! den in connec-
tion with the purposes of this present
demise.
(5) The lessor covenants and agrees with the Lessor 's
covenants.
Lessee as follows : -
(a ) Tfi a,t the Lessee paying the rent and
obser ving and p_erforming the cove-
na nts hereinbefore contained an d on
his part to be observed and performed
shall quietly hold and enjoy the said
trees and the said rig~ts, liberties and
privileges without any eviction, inter-
ruption or disturbaq.oe by the Lessor
or any pe;t'o n or persons claiming
by, through or in trust for him or by
any other person or persons whomso -
ever.
(b). Fr.om the date of 't he signing hereof, not
to do a,ny act or thing which may
prejudicially affect the yield of toddy ...
from the said trees or any of tbem
and n ot to cu~ or remove any portion
thereof.
 252 CH, XII,-LEASES,
(c) To permit the Lessee (and the right so
to do is hereby expressly reserved to
the Lessee) to assign or sub-lease,
these presents and all or anv of the
benefiGti, rights, liberties and ))rivi-
leges hereby conferred to any person
or persons, company o'r companies
limited or otherwise whatsoever.
Special agree-
ments re de- (6) It is hereby expressly agreed as follows :-
termination
(a) If any part of the rents herebv reserved
and renewal.
shall be unpaid for 30 day~ after the
due date thereof and after formal
demand in writing shall have been
made therefor, then and in such case
it shall be lawful for the L3ssor at
any time . thereafter to re-enter into
possession C?f the said trees and these
presents sliall thereupon determine.
(b) The Lessee may determine this present
demise by giving to the Lessor three
calendar months previous notice in
writing to that effect and thereupon
.
provided the Lessee shall up .to the
time of such determination have paid
t_he rents and have performed and
observed the covenants hereinbefore
contained and on his part to be paid,
observed and performed, this present
demise and everything herein contain-
ed shall cease and determine,
(c) If at any time before the expiration of
the said term of nine years the Lessee
shall be desirous of obtaining a
renewed Lease of the said trees and of
such his desire shall give to the
Lessor six calendar months previous
notice in writing, then the Lessor
TODDY RENT SALE ...... ARE PROHIBITED, 253
shall execute in favour of the Lessee a further
demise of the said trees upon terms identical
with the terms of this present demise. Such
renewed Lease shall contain a provision similar
to this present provision for a renewal for a
.
'further term of nine years but no more.
In witness whereof the parties hereto have set their
hands to these presents and to two others of the same tenor and
date at the places and on the days and dates hereinafter
mentioned.
The Scheditle above re/erred to.
Toddy Rent Sale Conditions applicable to
Toddy Taverns in respect of which
"Off sales" are prohibited.
(Govt. Form),
, The Conditions on which the exclusive privilege of selling
Fermented Toddy by retail within the village of--in the
Islands Division, Tavern No.----from----to---
is sold are in addition to the Geq,eral Conditions applicable
to all Excise Licenses published in the Government Gazette
No. 6615 of March 13, 1914, as follows:-
1. The Government Agent shall have power, in bis
discretion, to refuse to accept any bid or tender, subject to
which power the highest bidder or tenderer shall be the
grantee_ of the privilege and shall conforrp to and perform all
the Conditions under which the privilege is sold.
2. (a) The grantee shall, immediately on being declared
the grantee, sign these conditions of sale, and pay to the Gov-
ernment Agent a sum equivalent to two months' rent of the
privilege as a security deposit which amount shall be liable to
forfeiture in whole or in part at the discretion of the Govern-
ment Agent for breach of any of the Conditions; and such
forfeiture shall he in addition to any other penalty prescribed
by the Conditions_ for such breach . . The grantee shall
bypothecate thB said security deposit by a bond in form
Ex~ise T 23 within fourteen days of sale of the priyilegybove
prescribed.
:354 CH. XII.-LEASES.
(bl If the highest bid or tender under Condition 1 exceeds
tbe sum of Rs. 2,000 the grantee shall at tbe same time
<ixecute, if so required by the Government Agent, in the form
sanctioned by law, a power of attorney to confess judgment in
any action which may be instituted against him for the
recovery of any moneys due in respect of this privilege.
(o) The grantee shall, on signing the Conditions of Sale,
0
elect and u nder his hand signify a Post Office to which all
notices and processes whatever in connection with the above
said privilege shall be addressed under regiatered post ; and
all such notices or processes .as aforesaid so addressed to the
Post Office so elected and posted in due course shall be consi-
dered as good and effectual to all intents and purposes ai:l if
the same were served personally.
3. The grantee shall pay the purchase-money to the
Government Agent in equal monthly instalments. The first
instalment shall be consid~red due and payable on June 30,
1920, and the r11mainder on the last day of each succeeding
month. Interest at the rate of--pe:r cent. per annum shall
be payable on all arrears.
4. No payment of any sum due by the grantee to the
Crown shall be considered as duly made unless the grantee
shall produce a Kachchery receipt therefor ; and no money
which, for his own cqnvenience, the grantee may think fit to
leave in the hands of the Shroff or any other Officer of the
Kachchery shall be considered as money paid under this con-
tract.
5. If any instalment of the purchase-money or any part
of an instalment remains unpaid after the same shall have
become due and payable, the Government Agent shall have
power, after fifteen days' notice to the grantee of his intention
to do so, without further process of law, to cancel the License
or Licenses issued to the grantee, and to re-sell the privilege
at the risk and loss of the grantee. The notice referred to
may b!1 given in, such manner as the Government Agent may
direct.
TODDY RENT SALE ...... ARE PROHIB TED. 255
6. Tbe grantee shall, on receipt of the License to sell,
furnish to the Superintendent or Assistant Superint0ndent
of Excise au application on the prescribed form showing the
numbers and situations of the trees which he proposes to
tap for the supply of .1!1ermented Toddy for sale at each tavern
and no t ree shall be tapped or toddy drawn for this purpmie
-e xcept under cover of a License setting forth tbe numbers and
sibuations of the trees, the name of the drawer, and the
Tavern for which the Fermented is intended. The Sup9rin-
tendent of Excise or Assistant Superintendent of Excise shall
have power, subject to appeal to the Excise Commissioner, to
-refuse any application to tap trees for any tavern if such
application in his opin ion is open to serious objection.
7. No tree shall be tapped or toddy drawn therefrom for
the supply of Fermented Toddy for sa.le at a tavem unless such
tree shall first have been marked for this purpose in a ~anner
prescribed by the Excise Commissioner nor shall Toddy be
transported to the tavern except under cover of a pass
granted by the Superintendent of Excise or th e Assistant
Superintendent of Excise. Such pass shall set forth the name
of the person who transports the toddy, and shall be issued to
the grantee, who shall hand it to tbe pe rso n who transports
the toddy.
8. The grantee if he taps the trees and draws the toddy
himself or if he delegates the work to another person such
person shall at the time of tapping the trees or drawing the
toddy invariably carry the license on his person and shall
pr<1tluce it forthwith on the demand of any Excise Officer or
Village Headman.
9. The grantee shall have no concern or interest direct
or indirect in the sale of arrack or in the purchase of any
privilege for the sale of arrack within the Revenue District
In which be possesses the privilege of selling t L,ddy .
10. Except under the written authority of the Assistant
Commissioner of Excise, no toddy, except toddy drawn from
trees licensed and marked or a particular tavern shall be"kept
o ffered for sale or sold in that tavern.
 256 CH. XII.-LEASES.
11. No Fermented Toddy shall be sold at a lower price
than 49 cents per gallon and in proportion for any smaller
quantity.
12. The Government Agent shall not be bound to find a
site for any tavern in the event of the grantee not being able
to procure a site. No tavern shall be opened at any place
except with tbe approval of the Government Agent.
13. The purchaser shall, within ten days from the date
ori which the privilege commences to run or within such
extended time as the Government Agent may grant, apply to
the Government Agent and obtain a license or licenses for the
sale by retail , of Fermented Toddy at the tavern within the
area covered by the privilege.
14. The grantee shall have no claim to a remission if the
Government Agent or bis Assistan t shall find it necessary to
order the taverns upon any roads to be closed for a limited
period during the march of troops or upon the plea of losses
arising from any cause whatever.
15. (a) No bids will be accepted from any person who
is a habitual criminal as defined by Ordinance No. 32
-of 1914.
(b) The purchaser shall, whenever called upon to do
so by the Government Agent, satisfy him that he is not a
habitual criminal within the meaning of the said Ordinance,
16. The tavern within the area of the exclusive privilege
granted under the foregoing conditions shall open at 7 AJA.
and close at 7 P.M.- and no toddy shall be sold at such tavern
between the hour of closing and that of opening.
17. No toddy shall be sold under this exclusive privilege
for the purpose of removal from the tavern, and no toddy
sold in the tavern shall be removed from it, except under
cover of a special permit granted by the Government Agent.
At the sale held this day of . the privilege above dis-
cribed--became the grantee o(tbe said privilege in conside-
ration of the payment of Rs.--as a fee therefor, and
ASSIGNMENT OF TODDY RENT. 257
the said grantee having paid to the Government Agent the
sum of Rs.--by way of security deposit under clause 2
of these conditions, hereby agrees ~o complete the purchase
according to the above conditions and the Government Agent
hereby acknowledges the receipt of t,he said deposit.
Place.
Date.
Witnesses : GranteP-.
1.
2.
Govt, Agent, N.P.
I--the undersigned do hereby signify that for the
purposes specified in Condition 2, I have elected the under-
mentioned Post Office for the next service of all legal processes
and notices which may be found necessary to be issued
against me, viz. :-
Witnesses:
1.
' 2.
Grantee.
Assignment of Toddy Rent.
(Form accepted by Government).
T.his indenture made this--1919 between A. B. of Nallur
of the one part and C. D. of Chundikuly of the other part.
Whereas on the--1919 the said A. B. became the
purchaser of the privilege of selling fermented toddy by retail
within the village oi--at tavern No.--for the term of
twelve months from the first day of--to the--sold by the
Government Agent of the Northern Province for and on behalf
of His Majesty the King, His Heirs and Successors for the
sum of--payable in twelve equal monthly instalments the
first ,of such instalments to be considered due and pa.yable on
the--1919 and the remainder QP'tbe last day' of each of the
eleven succeeding months of the said term respectively and
33
 258 CH. XII .-LEASE:o.
became bound to fulfil certain written conditions bearing date
tbe--1919 copy of which is hereto annexed marked A.
And whereas the said A. B did on the---1919 pay to
the said Government Agent the sum of Rs.--equivalent to
two months' rent of the privilege as a security deposit as
provided for by the said conditions of sale.
And whereas the said A. B. has executed a boni dated the
--1919 in favour of His Majesty the Kjng, His Heirs and
Successors for the due performance and fulfilment of tho said
conditions of sale and has specially mortgaged, bypothecated,
assigned and set over unto our said Lord the King, His Heirs
and Successors all tba h sum of Rs.---paid by him as
aforesaid .
And whereas the said C. D. has requested the said A. B.
to assign to him the said C. D. the said privilege of selling
fermented toddy by retail at the said tavern N o.-situated at
--subject to all and singular the conditions under which the
said A. B. purchased the same on the said--1919 and also to
assign to him the said 0. D. the said sum of Rs.---subject
to the right of the said Government Agent to declare the same
forfeited for breach of any of the said conditions of sale.
And whereas the said A. B. bas agreed with the said O. D.
to assign to the said C. D. subject to the said conditions of
sale dated---1919 the said privilege of selling .fermented
toddy by retail within the village of--at tavern No.--
purchased by the said A. B. as aforesaid and the sum
of Rs.---deposited by the said A. B. with the said
Government Agent and hypotbeoated as aforesaid.
And whereas the Government Agent of the Northern
Province acting for and on behalf of His Majesty the King,
His Heirs and Successors bas given permission to the said
A. B. to assign 'to the said C. D. the said privilege of selling
fermented toddy by retail within the village of--at tavern
'No.---subiept to the said conditions of salo and also to
assign the Sl.\id sum of Rs.---subject to the said conditions
of sale and subject to the terms of the said bond.
ASSIGNMENT OF TODDY RENT. 259
Now this indenture witnesseth that in consideration of
tbe sum of Rs.---well and truly paid to the said A. B.
bv the said C. D. (the receipt whereof the said . A. B. doth
h~reby acknowledge) and in consideration of the premises be
the said A. B. doth hereby assign, transfer, set over and
.assure unto the said C. D.
All that privilege of selling fermented toddy by retail
within the village of--at tavern No.--from the--1919 to
the--1920 purchased by the said A. B. from the Governme~t
Agent of the Northern Province acting for and ~n behalf of Hts
Majesty the King,His Heirs and Successors subiect howev~r to
the aforesaid conditions of sale dated--1919 and all the right,
title, interest, claim and demand wbat~oev~r. of ~im the s~id
A. B. into, upon or arising out of the said pr1v1lege,together _with
full power and authority to transact all affairs and busrness
connected with or relating to the said tavern till the--1920
d thereafter until all the said affairs and business shall have
.a, n 'd
been closed. And all that sum of Rs.--deposited by the sa,1
A. B . with the said Government Agent on the--1919 ~s
securitv for the due performance and fulfilment of the said conc'lt-
tions ~f sale dated tbe--1919 and specialiy mortgaged,
hvpotbecated, assigned and set over unto His Majesty the
King, His Heirs and Successors by the aforesaid _b ond dated
the--1919 subject however to tlie right of the said G~ver~-
ment Agent to declare the said sum of Rs.---forfe1ted ~n
whole or in part at his discretion for breach of any of the said
conditions of sale dated--1919 .
To have and to hold the said privilege apd all the benefit
and advantage thereof and attached thereto for the full end
and term of twelve months from the---1919 to the
--1920 and the sum of Rs.---deposited by the said
A, B. with the Government Agent of the Northern Province
,on the said --- - --- -1919 and speoially mortgaged a~d
bypothecated with the said Govermrent Agent by ~he s~td
bond dated the---1919 unto the said 0. D., his heirs,
-executors, administrators and assigns.
And the said C. D. doth hereby for himself and his
Msigns covenant and agree with the said A. B. and that the
 260 CH. XII.-IiEASES.
said C. D., his heirs, executor,s, administrators and assigns shall
well and regularly pa.y the aforesaid sum of Rs.---and
the instal'inents thereof to the Gov~rnment Agent of th&
Northern Province or his successors in office at the, Jaffna
Kachcheri for and on behalf of His Majesty the King, IIis Heirs
and Successors in the manner k)rovidel by the said conditions
... of sale dated . 1919 and shall indemnify His Majesty
the King, His Heirs and Successors for any loss which
may arise from a re-s.ale of the said rent or any portion
remaining to run thereof effected under the said condi_tions of
sale or any of them and shall well and truly do observe and
fulfil all and singular the conditions and stipulations on the-
part of the said A: B. to be done, observed and fulfilled in
respect of the said conditions of sale.
And the said O. D. doth hereby for himself and his assi,gns
further covenant with the said A. B. that he the said C. D., his
heirs, executors, administrators and assigns will keep the said
A. B., his heirs, execqtors and admi nisti,:!l,t.ors indemnified
against all actions, expenses, claims, demands and liability on
account, of any breach of the ,.covenants and conditions con-
tained in the conditions
. of sale dated .the---1919 or
any of them.
And the said A. B. doth hereby covenant with the said
C. D. that the said C. D., his beirs, executors, administrators
and assigns performing and observing all the covenants and
~onditions contained in the said conditions of sale dated
----1919 and the said bond dated - - - a s well as the
covenants and conditions in these presents contained may
quietly bold and enjoy the premises hereby granted without
any manner of interruption by the said A. B. or any person
,. claiming through him.
And the said A.-B. doth hereby further covenant with the-
said 0. D. that tha.said A. B. shall and will from time to time
and at all times during the c<;mtinuance of the said period of
twelve months at the .request and cost of the said C. D., his
heirs, executors, .administrators or assigns do and execute _a nd
cause to be done and executed all such acts, deeds and things
whatsoever for further and more perfectly assuring the sai:d
- . ._
BOND GRANTED BY TODDY RENTER. 261
I
privilege and the said sum of Rs.----and every part thereof
unto the sa,id C. D,,;;his beirs, executors, administrators and
IJ.SSigns in manner aforeflaid,
In witness'. whereof the said A. B. and C. D. have here-
unto and to two others of the same tenor and date as these
presents set their banns at Jaffna this--,----day of
----1919 in the presence of E. F. and G. H. the attesting
witnesses c!l.lled and required hereto on the day, month and
year first above written.
Bond granted by Toddy Renter.
(.Govt. Form).
Stamps to the value of Rs. 7 /50.
ltnow all m;.en . by the~e presents that i - - - o f - - -
am held and firmly bound unto our Sove; eig~ Lord .King
George the Fifth, His Heirs and Successors, in the~ sum of
Rs.----iawf-ul. money of Ceylon, . to be paid to Our
said Lord the King: HisJieirs and Successors, for which pay-
ment to be well a~d truly made I Bind myself, and my heirs,
-executors, administrators, and personal representatives, and
each and every of them, Jirmly by these presents. And for
further and better securing to Oar said Lord the ,King, His
Heirs and Successors, all moneys due and payable under these
: ,presents, I, the said v do b~reby specially: mortgage and
hypothecate, assign, and set over unto Our said Lord the
King, His Heirs and Successors, all that sum of Rs.---
deposited by me, the said----with the Government Agent
of the Northern Province on the---day o f - - - - .1920,
,as sec{!rity for these presents.
Signed ~nd 'dated -at Jaffna, by the said---this---
day of---1920. ,
(Signed)--.
Whereas the above-bounden----has ent~red into a
contract bearing date the-- --of----1920, hereto
,annexed marked A, witb the said Governm,ent Agent, acting
. ,, for and on behalf _of Our said Lord the King, His Heirs and
.
262 CH. XII,-'- LEASES.
Successors, for the retail of Fermented Toddy within the
---Village, Tavern' No.---in the Jaffni;i. District of the
said Province.
Now the Condition of this Obligation is such, that if the
said----shall well and regularly pay the aforesaid sum of
money and the instalments thereof to the Government Agent
of the Northern Province, or to his successors in office at the
Jaffoa Kacbcheri, for and on behalf of Our said Lord th6 King,
His Heirs and Successors,. in the manner provided by the
said Contract, and shall indemnify Our said Lor'd the King ,
His Heirs and Successors, for any loss which may arise
from a re-sale of the said rent or any portion remaining to
run thereof effected under the Conditions of the said Contract
or any of them , and shall well and truly do, observe, and fulfil
all and singul1u the Conditions and stipulations on his part to
be done, observed and fulfilled in respect of the said contract
then this obligation shall be null and void ; but otherwise,
shall be and remain in .full force and virtue.
Witnesses :
1.
2.
Govt. Agent, N.P .
...
..
CHAP TER XIII.
LAST WILL AND T E STAME NT.
!.-Definition.
TESTAMENTS are of high antiquity. They were in use
among the ancient Hebrews, and inetances of them may be
found in the sacred writings. Into most countries they have
been introduced by the positive act of the State, as by t he laws
of Solon into Greece, and by the Twelve Tables into Rome.
Hence it appears that wills are the creatures of the municipal
law, and where they are permitted they are subjected to
different formalities and restrictions (a).
A Testament is so called from the Latin words testatio
mentis , because it bears witness or testimony to the determina -
tion of the mind . The writers on the Civil Law give various
definitions of a testament. Modestinus calls H " lihe legal
declaration 9 a )!lan'~inteAtiJ>n, . w__gich_he_wiU~ to be performed
after his death," and this definition Blackstone considers
preferable to the etymology of the term . 0Gher writers , how-
II
ever, define a testament to be the appointment of an heir
made according to the formalities prescribed by law," contend-
ing that the instibution of an heir is the essence of a testament,
and that which distinguishes it from a codicil (b).
The principal characteristic of a will is, that it_)s ambula-
torv and revocable and bas no operation during_1he life of the
testator. The.form ~f th~ inst;ume~t i~~ t of i~port~nce, so
long :s its terms are testamentary (oj,
(a) Ulp. 11, ;14 ; H. T, 23 ;
(b) D. 28-1-1 pr; 2~-5-1-3; H, T. 23 and 24.
(c) 2 Prid. 36l ; Wms. on Exrs. I. ii, o, 2,' Seo, 3,

264 CH. Xlll,-LAST WILL AND TESTAMEJ:\T,
Strictly speaking, the words " will" and ".devise" refer to
real estate ; "testament" and " bequeath " to personalty ; and
although in practice the word " will" is used for ".testament"
the skilful draftsman always employs the words "devise " and
" bequeath " correctly (a), '
A husband and wife may both make their testaments in
one and the same paper writing, which is called a joint last
will or mutual testa.ment, containing two separate wills, in
which each disposes of his or her moiety of the joint estate, and
which each of them may always alter or revoke separately,
and wibhout the knowledge of the other (b).
Wills may be verbal, being called nuncupative. They &re
<ionfined to soldiers in actual military service, or to mariners,
or seamen being at sea (c).
A codicil is a supplement to a will or an addition made by
~~Je;};ator, apn_~xedto or t~ken _as part of a testa-~e~t, b~ing
~! its i:i~planation or alte~atioI?,_, or to m_~e some a~ditio,Q to,
or else some abstraction from, the formal disposition of the
t~sta~or. Wills and codicils are executed alike (d). -
A codicil should never be used for the purpose of ~ ing
e~yJU,Jj;.9r11,tJons in a will. It may be properly employed '
for such purposes o "'s ubstituting one person for another as
trustee or executor~ iving a legacy to a person not taking any
_benefits under the testator's will , o~ ltering the amount of a
legacy given under a will, in which latter case care should be
taken to state expressly whether the gift made by the codicil
is in addition to, or in substitution for, that made by the will,
the rule of construction being that in the absence of special
directions, the legatee is entitled to both gifts (e).
It appears hardly nec~ssary to mention that no draftsman
ought ever to attempt to prepare a codicil to a will unless he
has the will before him (f).
(a) Elp . 398 ; I! Cr. 1509.
(b) H. T. 62.
(c) Ord. No. 7 of 1840, 13 ; Bal, P, a.ad T, 99.
(d) Bal, P. and T. 99 and 100; 2 Thom, 207 ; Ord, No, 7 of 1840, 3,
(e) Elp. !l30; Hirnkins, Const. of Wills, 303,
(f} Elp, !l30, : (~) Fernando ii, Fernando, 9 N, L, R . 293,
DEFINITION. 265
A codicil should be looked at as part of the will (a),
Under the Roman-Dutch Law, wills were either open or
close, but the Ceylon fogisla~_!_e -~a! ~ad_e _ al!_ w_ilJs open __
wills,_that is, demanded for all wills the same form of open
e:s:ecution (b).
A last will is not a " deed " which is required to be regis-
tered under Ord. No. 6 of 1866, Sec. 2, nor does the probate fall
within the description of that section Cc).
f . It is only by proof of probate that title under a will can
l be established (d).
II
The wiil of a person falling under the designation l\tussul-
!llan native " as used in the charter of 1801 must be construed
not according to the Roman-Dutch Law, but according to the
la.ws and usage of the Mussulroans as provided by clause 32 of
that charter (e)'
An instrument, whereby property is donated to take effect
after th 9 donor's lifetime and whereby such donation could be
revoked during his lifetime, was held to take effect only as a
will (f) ; but where there was no such reservation of revoking
such a donation, it was held to be a donation inter vivas and
not a testamentary disposal (g).
Property which passes by will falls within the scope of
II
the word inheritance " (hereditas) (h),
Where spouses by joint will vest their property in the
survivor. with power of alienatio.n, subject to the resti_tutio_n of
the residue to the heirs of both the spouses, the survivor 1s at
[ liberty to alienate the whole in his lifetime, but not by will,
but s~ch alienation should be made in good faith and not with
11, view of defrauding the substituted beirs(h).
(al Beal, 505.
(b) Bill. P, and T, 98 ; 2 Thom. 206.
(c) Antboniz v. Barton, 7 N, L, R, 43.
(d) Charles Hamy v. Jane Nona, 15 N, L . R, 461.
(e) Oassim v. Pariatamby, 2 N, L. R. 200,
(fl Vaity v. Jaooova, 2 A. C. R . 45.
(g) UlumaLevai v. Mayatun Vava, 2 A.C.R. 13; _ I ON. L . R, 347,
3!l
 267
JOINT WILL.
266 CH. XIII.-LAST WiLL AND TESTAMENT.
revoking bis own will
dying, such survivor is preolu~ed from
II.-Joint Will.
which is a part of the joint will (a). .
The survivor is hound by a joint will, when one oUhem , . . nt will shall dispose of
with the consent of the other, makes the other heir of the If one of the testators ma~mg a 101 h ft the death
Estate by way of fidei commissum substitution, or usu- the property of the other by hrs conse~,t: t en,fa er rty the
. b disoos1t1on o prope '
fruct (a). of the testator ma k mg sue - - the will or not,
.
survivor, whether be accepts any benefit under
Joint or Mutual Will is unknown to the English Law, but is precluded from revoking his will (a). .
is allowed by Dt1tch L aw to man:ied persons. Such a will bl d g the life of the
though contained in one paper is held to be two distinct Wills, The rule that all wills are revoca e ur~n contain-
. t . . t wills which are considered as
testator app1ies o 1010
each of which may be proved separately as such (b).
A joint will contained the following cl ause:-
f mgu
. many wills as there are testators (a).
.
.
A bus b an d a1spose
d of the whole common estate with the
f ot
" We do hereby give and bequeath to the survivor of us . . . wife Held that the wt e was n
all our moveable property consisting of pearls, diamonds, &c., ex1wess consent of his .fit d the will and claim her
en.t itled to renounce all bane un er .
all furniture made of ebony, &c., and . all vehicles, &c., worth
Rs . 10,000.'' It was held that only the moveable enumerated moiety (b).
( above were bequeathed and not all the moveable properties of
..
Where a surviving husband ha d a d ta e
. t d inheritance
t '11 the will is not revoked by bis second
the deceased (c) .
A husband made various bequests including a legacy to
his wife of what he termed his property, but which was really
l under a 30m w1 ,
marriage (c)
.
" Should be possessed and en1oye Y
d b the survivor of us "
f t" (d)
property which he owned in community with his wife. Held . l to " the survivor is entitled to only the usu rue , .
1s equa
tbat the widow was entitled to her moiety of tbe joint property
Joint will provided that they fgivbe tabnd /:~:ea::o~~:
and to her legacy (d) . 0
common. property aft er the death o . o ) after the
Where a will directed that the survivo.r " should possess . The son died (leavmg an issue_
unto their son. h H ld that the devise to the
the common estate as be or she pleases and after the death of d before the mot er. e ()
.f a th er an . . . g both the testators e .
both whatever is left should be divided amongst the children," son was contingent on bis surv1vm ..
Held that the sur.:vivor had no power to make an absolute . b b d deals with the entire
If after a joint will, the us an . b ld not
alienation of the property of the Estate to the prejudice of the
common property by a c_o~ioil, the widow was e
reversionary legatees I e).
bound by such will and ood1c1l (f).
After the death of two joint testators, if the survivor,
being appointed heir, shall adiate inheritance or shall, if not . . M t t L J N 8, P. C. 41,
heir, accept any benefit under the will of the testator first "!a) Vand , 11\;!, See also Denyson v. os_ ar ;5 ' . .
\ (bl Re Will of Vaitianadan, Ram., (1872-76), C 'a 14
(c) In re Will of Jobanes Muppu, (18781 2 8. .
_ (a) Moir v,, Garstin, Bam., (1820-33), 128,
(d) Deviot v. Fryner, (1879) 2 S. C, ~- l~\01. See also Omer Lebb&
(b) Fernando v. Fonseka, Ram., (1843-66), 21. (el Joaobim 'V, Robertse, (1890) 9 S.
(c) Cost.av. Silva., (1910) 15 N. L. R . 392.
!llarikar v. Ebert. (1893) 3 C.L. R. 5. 2 B 10
(d) Theyv,urni v. Sinnaoutty, Ram., (1863-68), i03; Vand. 3L (f) Geddes v. Apothecaries Coy., (1901) r,
(e) Vand . 203.
 .

WITNESSES TO A WILL. 269
268 CH. XIII.-LAST WILL" AND TESTAMENT.
The heir-at-law is not disinherited by a devise unless
IIL-Interpretation of a Will. there be express words or necessary implication (a).
It is not necessary that any technic!!,l or artificial form
Where two legacies of the same amount are given by the
of words should he used in a will (a).
same instrument to the same person the second legacy will
Effect of recitals.-Where a testator in one part of his be presumed to be merely a repetition of the first (b).
will has recited that he had given a legacy to a A., hut it has
If a, bequest is made to " children " without their being
not appeared that any such legacy was given, the Court has
mentioned by name.' all persons who at the time of the testa-
tak~n the recital as conclusive evidence of an .intention to give
tor's death fall within the class of "children " will be entitled
by the will and has given to the erroneous recital the effect of
to the benefit of the legacy, unless the testator's words clearly
an actual gift (bl.
showed that he meant the bequest to be confined to" children"
If technical words are used in a will, by whomsoever they living at the time he made a will (o).
are written, they must be considered as used, with their
The word " children " does not generally apply to any
technical meaning, unless the testator in the context shows
beyond immediate d es~ndants. "!s~e ii would mean descend-
that he meant to use tbem in a diffe~ent sense {c).
ants generally (d).
General words in a will must be taken to comprehend a
" Wife" would refer to thfJ individual who answered the
subject that falls within their usual sense, unless there is some-
thing like declaration plain to the contrary (d). description at the time the will was made.
"Nephews and Nieces" do not include "grand-nephews
E. g., The words " goods, chattels and effects " are suffi-
ciently large to include and pass the absolute interest in the and grand-nieces."
whole personal estate (d). " Cousius " include " first cousins " only if sucb are in

The words are, "all my furniture, plates, linen and other existence.
effects that may be in my possession at the t_ime of my death." " Stock on a farm " includes both moveables and the grow-
It is alleged that the words " other effects '' are to be cut ing crops.
~own so as to mean that which is like furniture, plate or " Money in band " will pass money at a bank, as well as
lmen. But the answer is, that the words of a will ought that which he may have in his house or on his person at the
to have their natural meaning given to them unless there is time of bis death (e).
some contrary intention appearing in the will. The n:iere
fact that the testatrix enumerates some items before the

IV.-Witnesses to a Will.
wor as " and other effects " does not alter the proper meaning
of those words (e).
It is obviously expedient in the highest degree bo choose
for witnesses persons of good character, whose evidence will be
Where you find a general gift in the will followed by a
particular gift which would from its nature be included in (al Beal, 599,
the general gift, you read the particular gift as being an (b) Underwill and Straham, p. 193,
exception from the general gift (e). (c) Holds, 56, See also Caruppen Tondy v, Kalimuttu, (1899) Tamb,
36; 2 Br, 219.
(d) Holds 56~
(a) Beal, 504. (c) Beal, 548. (e) Beal, 555.
(el Ibid 59,
(b) Beal, 521. (d) Beal, 554.

270 CH. Xlll.-LAST WILL AND TESTAMENT.
received with the most perfect credit in any subsequent pro-
ceedings (a).
No will, testament or cor1icil shall be valid unless the
testator's signature shall be made 01 acknowledged by the
testator in the presenfie ol~ ~~ry and two or ruore _'Y_itntl~es
-or in the presence al- five or more :~vit_n esses, who shal:l be
present at the same tiirul"and-duly attest such signature (b).
An executor, a creditor or a person to whom or to whose
husband or wife gifts are made are nevertheless competent
witnesses, although such gift to such of the attesting witnesses
are void (o).
One incompetent witness is sufficient to render the whole
testament void, but then such witness must be one of the
minimum number required by law(d).
The witnesses to a will were not actually in the same room
as the deceased and the Notary when the former signed the
will, but were in the verandah opening into the rooms and
were conscious of what ;as taking place in the room. Held
tbey were in the " presence" of the testator within the mean-
ing of Seo. 3 of 7 of 1840 (e).
The deoeased's signature was on tbe document, which he
bad acknowledged in the presence of a Notary and two wit-
nesses, but the attestation of this acknowledgment by the
Notary and witnesses was written on a detached piece of
paper. Held that the requirements of Seo. 3 of 7 of 1840 was
not complied with(/).
V .-How wills are to be made.
Wills must, in Ceylon, be in writing and signed at the
end (g) by the testator or by another person on his behalf in his
(al Holds, 18.
(b) Ord, 7 of 18!0, Seo, 3 .
(c) Ord, 7 of 1840, Seos, 12, 11, 10.
(d) Br. Op, Grot. 185 ; 2 W. P, 306,
(e) Abra.him Neina v. Kosumma, 15 N, L. R. 46.
(f) De1Zoysa v. An~ardt, (1878) 1 8. C, C, 28.
ig) Vand, D, C, 49; De Silva v. Anwardt, 1 S, C. C, 118,
HOW WILLS ARE TO Bl~ MADE. 271
presence and by his direction in the presence of a notary and
two or more witnesses (a), or if no- ~~t;;;:v is present in hi;
notarial capacity (b), in the presence of five or more wit-
nesses (o). The signat~re ~f -tb; -test~to;-~nd atte;t;tion -;;f
notary and witnesses must be at the same time and in the
preseJ?,ce of each other (d),
Although a will written in pencil would be perfectly valid,
no_one would use anything but ink, if any could be had at the
time (e).
A will is valid and it is sufficiently executed if the signa-
ture is so placed that it is appat"ent on the face of the will that
the testator intended to give effect by such signature to the
writing signed (/).
A notary cannot, in his capacity of notary, make bis own
will before two witnesses or write the attestation ~f. his own
will (g).
As freedom of will is essential, the notary should see tbut
the testator is-under no restraint, and that he is not ileprived
of his free agency by importunity and influence. Hence it
became customary for notaries to adopt the expression that the
will was made by the testator '' without inducement or persua-
sion." The use of these words is, :however, unnecessary, as
the testator is presumed to make his testament of bis own free
will (h).
If the testator is confined to his bed from illness, the
notary should satisfy himself that the testator is " of sound
mind, memory ana understanding and fully capable of any act
requiring thought, judgment and reflection " (i).
(a) Ord. No. 7 of 1840, 3.
(b) Re last will of Perera, 3 N, L, R, 306.
(c) Ord. No. 7 of 1840, 30.
(d) Ibid., Ram., (1872-76), 296,
(e) Holds, 11,
(/) Usoof v. Bawa, 2 Leader 49 ; l Weer, 88,
(g) H. T. 163.
.
(h) H. T, 151,
(i) H. T. 152,

272 OH. XIII.-LAST WILL AND TJ\sTAMENT .-
Tbe clause II sick in body, but ot perfect mind and
memory" is also common (a).
Prefacing a will with an invocation h1 the name of God
is approved of by some and disapproved of by others (a).
The commencement of most wills is derived from the
Grecian. form. On a marble tablet at VeI\ice there is a record
of a Greek will, which begins thus :-
" I, E_picteta, being of sound mind and memory, do make
my last will and testament, in tbe manner and form follow -
ing :-
" .M~ first desire is life, health, and strength to enjoy
what 1s given me ; but when I am called aw ay I d'rnpose of
those goods, as below," &c. (b) .
It is not o[ unfreque nt occurrence fat the testator to say
"taking into considera tion t he shortness "f " 1r
1 e- tb e cer t am
ty
of death-and . the
. uncer5ainty of t he bou.., w b en It may arrive
-and not w1shmg to depart this life without disoosing of the
worl(d)ly goods, which God bas been plflased t~ grant me,"
&c. C.
In the above preambles there is notbing relevant to the
matter of the will. It may generally be observed th.at what-
ever (te)nds to shorten and simplify th e ma.king of wills is desir-
able d .
Legacies and pri:e-legacies usually precede tlie institution
of . the heir; but it i3 held to
. be immaterial 10
w b a t par t of th e
will they are given, nor 1s 1t material in Vi>bat part of the will
the heir is insti tuted (e) .
A will does not t ake effect from its execution, but from
the death of the testator and accordingly the draftsman bas to
consider not only the circumstances of the testator but also
what they may possibly be at tbe time of bis death.
(a) H. T. 152,
(b l Taylor's Elemen ts of Civil L a w, p . 1"1 '2 4 ; H. T. 153.
(c) H. T. 154.
(d) H . T. 155 . .
(el H . T. 156.
213
HOW WILLS ARE TO BE M.ADE,
Under the Roman Law the non-institution of an heir was
fatal to the will. This was not so under the Roman-Dutch
Law and still less under our law. Buh the naming of an heiris
the principal point (a).
In naming an heir the words are not iroportanl,provided
the intention of the testator clearly appears (b). Nor is the
descriptio; ~aterial (c), nor is it important in what part of
the will be is named, nor for what time, nor if there be more
heirs than one, whether they are appointed heirs for equal
or unequal portions, or with or without condition or
reservation (d). The conditions must be possible and not
contra bonos mores (e).
Every will made beyond the limits of this Colony, in
conformity with the t.2,r ms and solemnities prescribed by the
l l~w of the country where the same bas been m11,q.e, is valid and
eff~ tu:i1 to alienate and pass property here (/).
A Ceylon will executed by the testator in accordance with
the requirements of the law of England, and admitted to
probate there, was held to be ineffectual here, it having not
been executed in accordance to Ord. No. 7 of 1840 (g).
A will disposing of real property roust be made according
to the form required in the countr y where bbe property is
situated (h).
Every will re-executed or re-published or revived by any
codicil is deemed to have been made at the time at which the
same was re-executed, re-published or revived (i).
A will or codicil informally executed may be rendered
valid by a later c~dicil duly executed and referring clearly to it.
(a) 2 Thom . 208.
(bl V. D. L. 1, 9. 6.
(el Ibid ; Voet 28. 5. 2 and 15.
(d) V. D,: L . 1, 9. 6.
(e) Ibid; Vo.e.t 135. 1. 13,
(/) Ord, No. 21 of 1844, Seo. 4.
(g) Be the Will ot Grigg, 8 S . C. C. 69 ; \l W. P, 314,
(h) Holds. 20.
(i) Ord, No, 21 of 1844, Seo. 5,
35

274 CH. XIII.-LAST WILL AND TESTAMENT,
to show that it is intenc1e.:1 to make such former instrument
valid (a).
A will though invalid by reason of defective execution
may in time bscome binding by acquiescence of parties (b).
The notary need not necessarily k~ow anything of the
contents of the will which he attests. Tbe provision that the
l
notary should read and explain the instrument to the party
executin~ does not. amo~nt to an enactment that, in failure of
the requirement of its bamg observed, the instrument should
be deemed not duly attested (c).
To vitiate a will, the influence used must be either by
l c__o~ercion or fraud (c ).
The Notaries' Ordinance, 1900 [now Ord. No. 1 of 1907]
does not prescribe fre,h formalities on which validity of wills
depends. The object of the ordinance is a disciplinary o'ne
It prescribes rules for the conduct of notaries and attaches ~
penalty to the breach of such rules. It does not say that, if
a notary fails to comply with an_y of them in the preparation
or execution of a will, tha will itself will be invalid, provided
that the requirements of ordinance No. 7 of 1840 (frauds and
perjuries) have been satisfied (d).
The explanation of a will to a testator and the making of
such explanation in the hearing of witnesses are not pre-
requisites to its validity, however important they may be from
the standpoint of evidence of approval of its contents. It is
-1 sufficient if the testator, at the moment of execution, believes
the will to be, and if the will is, in accordance with the
instructions previously given (d).
No duplicate of the will or codicil executed before a
notary need be sent to the Regishrar of lands. So that the
will or oodioil executed before a notary has only tbe original
and the protocol to be kept by him.
(a) Holda, 20.
(b) 3 Lor. 80,
(c) Pieria v, Pieris, 8 N, L , R. 179 ; 9 N. L, R, 14,
(d) Pieria v, Pieris, 9 N, L. R, 14,
CAP.ACITY .TO MAKE, AND T,AKE UNDER, A WILL. 275
In the " monthly " or " weekly lists " to be supplied
to the Registrar of lands only the number and date of
tbe will or codicil are inserted, the names of parties being
omitted (a).
Iri the case of wills or codicils, there is no necessity for
-search of the registers to ascorta.in whether any prior deed has
been registered : And the rules affecting deeds relating to
lands in another district do not apply to wills ~nd codicils (b).
A will written in Tamil and attested by a notary practis-
ilig in English only was admitted to probate (c).
VI.-Capacity to make, and take under, a will.
All persons including Mohamedans (d) except the follow-
ing have the right of making a last will : -
(1) Males under 21 and females under 18 unless they be
married or have obtai;;;a letters of Venia A;;;;:iis (e).
(2). Those who are ~.~E.l!.~J!y or bodily infi~m so as to be
deprived of the control and administration of their property,
e.g., insane persons except at lucid intervals, prodigals, deaf and
<lumb persons, unless they could understand and declare their
testament, criminals condemned to punishment inourring con-
fiscation of property (f).
A blind man can make a will if he knows what was
-written down and approved of it (g).
All persons except .the following could take under a will:--
(1) A person, including a notary, who, or whose wife or
husband attests a will, except as to any debt that may be due
to him from the testator (h).
(a) Ord, No, 1 of 1907, Seo. 29 (24) and (25),
i
(b) Ord, No, of 1907, Secs. 29 (16) (a). 26 and 27 .
(c) In re Last will of Fernando, (1891) 1 O.L,R, 59 ; 9 8,0 ,C, 146,
(d) Shariffa Umma v, Rohatumm11, 14 N,L.R. 464.
(e) 2 Thom, 206 ;-21 of 1844, Seo, 2,
(/) B11l, P. and T. 10111nd 102.; H. T, 61-64,
(g) Holds. 21.
{h) Ord, No. 7 of 1840, Secs. 10 11nd 11; H. T. 64-66; 2 W , P, 291-2,

~H. xm.-LAST WII.iL AND TESTAMENT.
(2) Guardians, curators, administrators or their children
from wards an'd minors (a).
(3) Those who have clandestinely married or eloped
may not leave anything to each other by will (b). Those who-
had been living in adultery and since married may take under
each other's will fo).
(4) Children born in incest can take no more by the will
ot the parent than their necessary maintenance. With respect,
to other illegitimate and adulterine chH-d.ren and their mother
whether under the common law or the Thesawalamai there is
now no restriction whatever (d).
(5) Any person in trust for Buddhist temples may not.
take under a will land of the value of Rs. 50 or upwards unless
with the license of the Governor (e).
I Under our law, the person who takes the residue under a
will is looked upon as an heir (/). Vnder the Roman-Dutch
Law an heir is a sort of ' niversal legatee (holding the estate,
of a testator for himself and as a trustee for others) and
Cw administrator rolled into one (g) .
Every person competent to make a will may dispose of by
will all and every kind of property within this colony, which at,
the time of his death shall belong to him or to which he shall
then be entitled, to such persons as are not legally incapacita-
ted from taking the same (h) .
According to the Roman-Dutch Law if a testator excludes.
part of his property from the operation of the will, s uch pro-
pedy descends to his heirs ab intestato and not to the instibuted
heirs (i).
(al 2 Thom. 210,
(bf Ibid,
(c) Rabot v. de Silva, 8 N.L.R, 82.
(dl Angohamy v. Karonohih11my, 2 -N.L,R. 276; Visuvanather v.
Theyagarajah, 8 N,L.R, 174; Jayashamy v. Abeyasooria, 15 N,L.R, 348. ;
14 N.L.R. 202; 5 Leader 47,
(e) Ord. No. 3 of 1899, Sec. 48.
(t) Bal. P. and T. 106,
(g) 2 Thom, 208,
(h) Ord. No. 21 of 1844, Seo, 1,
Ii) Nagammav, Sapapathy Chetty, 9 N. L. R. 246.
LEGACIES,
VII.-Legacies.
A legac is some articular tJ::iJ!_ig or things_ given o.r I~fb
bv the testator, to g~.JJ!!,id_QLP_e,:f~ll!l2d. aft__er l_!is death, by his
....:--
,executor -
or heir, to some perSO!!-Q.t -Per.sons . W....J}qjh h e__
h as
~ ! !_.!':!!ueit;ment or_codicij. It is somethiqg that the
testator would rather retain himself than give away, and that
,h a would prefer the legatee to have rather than the heir (a).
A p_rre-le~Y is a legacy left to an heir over and above
,bis inheritance (b) .
A s ~ J l l l Y is a gift of a specified part of the
testator's estate as " the watch I usually wear " " the sum of
1,000 consols standing in my name on the day of the date of
' y will" ; whi\e a general legacy may or may not be part of
01
the testator's estate, thus, a legacy of 100, a diamond ring
worth 50, are general legacies. A spe.cifio legacy fails if the
subject of it does not belong to the testator at the time
of bis death , on the other hand it does not abate with
general legacies on a deficiency of assets. A general legacy
must be purchased by the executor if necessary, but on a
deficiency of assets is liable to fail and must be exhausted
before the spe oific legacies are resorted to (c).
A demon strative legacy is a general legacy chargen on a
particular fund; as a gift of so much money, "to be raised by
the sale of my stock." It is a general legacy, in so much that
the l~gatee is entitled 'to have it raised even if the fund out of
which it is to be raised should fail, on the other hand it is so
far specific that it is not liable to abate with general legacies on
a deficiency of assets, with the parhicular fund exists out of
which it is directed to be paid (d).
A gift of residue, whether the word "residue " be used or
not, is construed so as to pass all the testator's property not
otherwise effectu ally disposed of. It follows that lapsed and
(a) FI , ~;. 100 and 101.
(bl H . T. 111,
(c) EJp. 399. See also Koelman v. Koelroan, 2 L . L . R. 141,
(d) Elp. 399.

278 CH. XIII.-LAST WILL AND TESTAMENT.
void legacies pass under the residuary bequest (a}. If the,
testator makes no disposition of the residue, it is divided like
an intestate estate (b).
All persons who are capable of testatiog are capable of
bequeathing ; and tpose who are capable of taking by will
may also take as legatees (c).
A legacy may also pass through a person incompetent
to take to one who is competent (d) apd it may be left to one,
not named in the will, but whom the -testator has mentioned
verbally to his executor (e).
If a bequest contains words of futurity, the question must
be considered whether they are inserted for the purpose of
postponing the vesting of the legacy, or of merely deferring
tbe fulfilment of the legacy, as where the bequest to one person
is made subject to a life interest in favour of another. If such
life interest is mernly a usufructuary one, the legacy vests in
the, legatee immediately on the death of the testator ; if it be a.
f i ~ interest, the vesting of the legacy is postponed tin
after the death of the fiduciarius (f).
Where a joint will made by a husband and wife contained,
the following clause: "The remaining half o~ the Kandy land
is to be divided into three portions, and after the respective
death of both of us two shares are to go to ...... and of the,
rest of the land to our adopted sons Elias and Andris," and
where the testator died in 1855, th ~ testatri~ in 1899, and
Andris in 1889, held, that the interest left to the survivor under
the will was merely a usufructuary interest, and that the
!
legacy vested in Andris immediately on the death if the
teshator, and a sale by Andris of his interest before the death
of the testatrix was valid (/).
(a) Elp. 411.
(b) Holds, H9,
(c) H. T~ 101 ; Bal. P. and T. l 23.
(d) Voet 30, 3. 39; 1 Mass. 170,
(e) Voet 34, 9. 5,
(/) Mendie v, Fernando, 9 N, L. R. 77,
EXECUTORS,
279
The provision in a will that the whole of the residuary
estate should devolve on certain persons named therein is to be
regarded as specific io regard to the immoveable property. A
residuary devise of raal estate is not specific. But a specific
appropriation of immoveable property to specific persons
, is a
specific devise (a) .
VI.11.-Executors.
An executor testament ar y is ch arged with the execution
of r the will of the, deceas,id testatot. E xecuhors may be
appointsd by wi!l or codicil. So may guardians or curators
over one's children or estate be appointed by will or codicil.
Substitution is the powet of appointing a person to act in
the stead of an executor or tutor or guardian during his life,
but surrogation is the power of appointing a person to act in
the stead of an executor or tutor or guardian after his life.
If, in the progress of a testamentary case, circumstances
oi suspicion arise, whether from the fact that the parties pro
pounding a will benefit largely unoer its provisions and have
been instrumental in securing its execution or otherwise, the
sus picion must be removed by the executors. They must
satisfy the Court th at the will is the act of a free, as well as
capable, testato r (b) .
No assen t on the part of the executor is necessary to pass
to the devises i.m moveable properhy which bas be~n specifically
devised to him by will (c) .
The executor under the Roman-Dutch Law was merely an
agent of the heir and had not the same power and authority
as an executor unde r the English Law.
The powers of- an executor appointed under a will proved
before the date of the charter 1833 must be regulated by the
Roman-Du tch Law and not by the English Law (d).
(a) De Kroos v . Don Johanes, 9 N, L. R. 7,
(bl Pi eris v, Pieris, 9 N. L. R. 14.
(c) Da Kroes v . Don. Johanes, 9 N. L. R. 7; Oassim V, Marikar,
1 S, O. O. 80, followed.
(d) Oassim v. Diogihamy, 9 N, L. R. 257 . .

280 OH. XIII.-LAST WILL . AND TESTAMENT.
According to the Roman-Dutch L'l,W property burdened
with a fidei ~ mmissum cannot be alienated by the executor
e!_cept for th 14iayment of the _testator's debts a~d legacies, and
~hen only:, if there is no other property available for the pur-
pos_e ; o/ '1- ith the , Ronsent of all the beneficiaries under the
. fidei commissum ; or i where the property is perishable ; or on
..,1.'c ertain special grounds with the leave of the Court. When
fidei commissum property ' is improperly alienated the fid ei
commissarii are entitled to follow it into t he .hands of the
purchaser a.ad to assert their title by re i vind icatio (a).
Where an executor or administrator transfers property
belonging to the deceased's estate to a bona fide purchaser,
such transfer canno t be invalidated on the gro und that the
value of such property has not been included in the amou nt
on which stamp duty has been paid in the administrat ion pro
ceedings, and that therefore the pro.b ate or grant of ad minis-
tration was not "duly stamped " within the meaning of Seo.
547 of t he Civil P rocedure Code (O rd . No. 2 of 1889) (b) .
"
The introduction of the E nglish Liw relating .to executors
and administrators did not affect, much less destroy, the dis-
tinctive character, st atus and rights of the heir as the term is
understood both in the Roman and Roman-Dutch Laws (c).
On t he death of a person, his estate, in the absence of a
will, passes at once by operation of law to his heirs, and the
dominium vests in them (c).
A conveyance by the heir or devisee of hi s share of the
immoveable property of the deceased is not void, The pers on al
representative still retains the power to sell it ( with th e
special authority of the Court if the provisions of the grant of
administration so require) for the purposes of t he administra -
tion ; but his non-concurrence in the conveyance does not
otherwise affect jts validity (c) .
(a) Oassim v. Dingihamy, 9 N. L. R. 257.
(b) Perera v. Krioke nbeok , 10 N , L. R, U9 ; 1 A. O. R, 50 ; Silva v.
Weerasuria, ION. L. R, 73, distinguished.
(c) Silva v. Silva, 2 A. O. R, 47.
REVOOATION OF WILLS.
281
It has been held in Fernando v. Fernando (a) that the
English Law of executors and administrators has been intro-
duced here and the powers aud duties of executors and
administrators in Ceylon extend. to real as well as personal
property (b) .
There was no such office as administrator under the
Rom an-Dutch L aw; and the Roman-Dutcl;i. executor was a
very different function ary from t he one who bears the name
under th6' English system. H e was lithle more than the agei:t
of the heir. He could not alien ate or sell without the heir's
consent, and, if the heir would not accept the inheritance, the
executorship became a nullity (c).
In the absence of any special restriction in a will exclud-
ing from t he executor's power any part oi the testator' s estate,
the executor's power extends to t he whole of t he estate, though
if any part of it is left undis posed of by will , such part h as to
be distributed as unde r an int estacy. So, a purchaser from
the executor of property undisposed of by the will acquires
good title as against the heirs or persons cl aiming under
them (d) .
The executor of an executor is entitled to administrntion
of the original testator's estate in preference to others {e) .
An executor cannot assi gn his execuhorship to another
during his life (f) .
I X.- Rev ocation of W ills .
It is proper always t o insert a clause of revocation in a
will, for oases have occurred where a document entitled "a
last will and testame nt " has been admittecl t o probate con-
jointly with a former will , a result generally not in accordance
with the testator's wishes (g ) .
(a ) 4 N. L. R, 201.
{bJ Vllnd. 273 ; 2 W. P. 296 ,
{c) 2 W. P. 296; Staples v. Da Saram, R am ., (1863-68), p, 27 5.
(d) Silva v. Perera, 2 C. L, R, 53 ; 2 W, P. 296.
(e) Silva v. Oornelis de Silva, 3 L or. 92 ; In re H ~wa Umma, H.11.m.,
( 1863-68), 46.
(f) Holds . 79 .
(g) Wms. on Exrs., Pt , 1, Bk. II, Oh , iii , Bee, 2; Elp. 398,
36
 282 CH. xm.- LAST WILL AND TESTAMENT. THE ANALYSIS OF A WILL. 283

~A testament
(1)
--- in Ceylon may be revoked
- "-"'"- .... ;,.;. "'-
The marriage of the testator or testatrix.
bv-
,.;~~

But.
most proper place of -deposit. A will which is in the custody
of the executor is in "proper custody" (a1.
joint wills of married persons are not revoked by
Tbe word document as defined in the evi dence ordinance
subsequent marriage (a).
is large enough to include a will, and therefore the presump-
(2) The execution of another will (b).
tion by Sec. 90 applies to the case of a w~II 30 years old (b).
(3) Some wril;ing declaring an intention to revoke the-
When a will which has been parGly revoked and after-
. ,will and executed in the manper in which a will

!
wards wholly revoked is revived, the reviva.l does not ~xtend
is required to be executed (b).
0 to so much of it as has been revoked before the revocation of
(4) The destruction of the will by t be maker with the-
the whole unless an intention to that effeat appears (c).
intention of revokin g it (b).
Alterations in a will except those, but for which the
(5) The ~ ill not forthcoming, for it has fo be implied' word or effect of a will shall not be clear, made after its exe-
that the will h as been destroyed (c) . cution must be executed with all the formalities of a will and
Where a will is lost or destroyed, its contents may be. the signature of the testator and the subscription of the wit-
proved by secondary evidence, and probate granted of a copy nesses must be near the alteration (dJ.
/ embodying the terms of the will (d).
A covenant not to revoke a will is not vo,id as being in
A tes tator may make as m~uy wills as he likes in succes-
sion and each will remains valid so long as he allows it to-
t restraint of marriage (e).

continue so. He may revoke or cancel it any moment he X. -The Analysis of a Will.
pleases; nor will the fact of his having made his will give any In the last few chapters we have goneth.rough the clauses
person any claim against him or any hold ~pon his property (e) . or the formal parts of the deeds treated therein, in order to
shew how the practical work of conveyancing is made to

j A testator intended to revoke both his will and codicil but

by mistake or ignorance destroyed only the will ; held that
t~ codicil was not revoked (f).
comply with the rules of law. But in the case of wills it is
not possible for us to _adopt such a p'lan. All those deeds,
however ,much they may vary in detail have some parts
As it is not unusual to execute wills in duplicate, testators,
common to the class to which they belong. The covenants of
desiring to revoke their wills by destroying them, must be
careiul to destroy bot_h (g ) . a purchase deed, the lessee's covenants in a lease, the
obligation in a mortgage bond vary only within moderate
A will cJmes within the meaning of documant as defined limits; and the observation, therefore, of any one set of them
in the Evidence Act. Proper custody does n~t mean best and aerves as a gu ide in framing all other assurances of a like
nature. But with wilis the case is different("/).
(a) Ord. No. 7 of 1840, Seo. 5 ; Re estate of Joh annes Mupp~, 2 S.C .
C. 14,
(al Maria!S ilva. v, Adorfa s~ysa, 1 Bal. 46.
(b) Ord. No. 7 of 1840, Seo. 5.
(b) Silva v, Soysa, 7 N. L. R. 360 ; 1 B1'l. 46 .
(c} Ram., (1871) 31; 3 N. L. R. 317.
(c) Ord , No, 7 of 1840, Sec, 7.
(d} Ram., (1877) 34,
(d! Ibid., Seo. 6,
(e) Holds. 11.
(e) Robiu9on v, Ommaoey, (1883/ 23 Ch. D . 285 ; Norton's T~eatise
(f) Appuh'l m y v Perera. H N . L. R. 467; 8 Bil. Not es on Deeds, p . 5J.l.
(g) Holds, 63.
(I) Deane, 413.
....

284 CH. XIII,-LAST WILL AND TESTAM&tiT,
There may be, and often is, a similarity
betwe~n one will and another. The conveyancer
may be able to lay bis finger upon this and that
form, and sa~ that they ought, re3peotively, to be
made use of m certain oases, but he oaunot say of
any of the important parts of any one will that
they are matters of commo n form (a).
.Although it would be jm possible to give a
detailed analysis of a will t hat would bil of any use
to the ,reader, an analysis that would indica te the
general arr,i,n gem1mt is subjoin ed :
1. The commencement.
2. The revocation of prior wills.
3. The ins~itution of heirs.
4. The gift of legacies.
5. The appointment of guardians and curators.
6. T he appointment of execu tors.
7. [Any other thing in any order .]
8. The testirnonium.
XI,- Fidei Oommissum.
.
See
.
next Ohal,)ter.
F orm of a Will of a single Person.
Commence- I, A. B. , late of Katu kelle Street, Kandy, but
m ent.
presently of Colpatty,' Colombo, hereby revoke all
former wills, codicils, an d testamentary instru ments
made by me, and declare th is to be my last will.
285'
FORM Oll' A WILL OF A SINGLE PERSQN,
I bequeath my leasehold
messua.ge,
with
. theB
bpeoifio
equeat of
outbuildings and stabling belonging thereto situate leasehold,
at-unto J. K. o f ~ , bis heirs, executors,
administratms and assigns for all the residue which
shall be unexpired at my decease of the term for
which the same premises-are holden, the said J. K.,
bis heirs, executors, administrators and assigns
paying the rent reserved by, and performing and
observing at his and their own expense the
covenants and conditions contained in the lease
under which the said premises a.re holden, and
keeping my general estate indemnified in respect
thereof. ;-
1 devise to L. M. of..,....--his heirs, executors, Speoifio
.. t - . . ll b l - devise.
a mm1s rators and assigns a my ouse an<,. pre-
d
mises, with 'thti outbuilding an.d lands belonging to
and held with the same situate a t - - -
I bcaueath the following legacies, namely, the General
R
- t N O f d th legaoies ,
sum o f s.---- o . . o - - - , a n e sum
of Rs.---to P. Q. of--'---.
I bequeath to R. S. o f - tpe s:um of Rs. Demonstra-
- t o be raised by the sale of a sufficient part tive legacy.
of tb8 3 per cent. consolidated stock now standing
in my name, as the primary fu nd for the payment
thereof ; and in case I shall not at my decease be
nossessed of such stock or of a sufficient amount "
thereof, I direct that. tho said legacy, or so much
thereof as the said stock shall be insufficient to
pay, shall be ~aid out of my general personal
estate.
I bequeath to T., the wife of C. K, o f - Bequest of

Specifi c
legacy,
I b_egueath to C. D. of---- my gold watch
and cham; and to _E. F . of---all other articles
d
.
urmg
h l'f t
er 1 e an annm y o .
f R
-s.-
f
separate use, to commence from my death, and to
h annuity,
or er

of personal or domestic or household use or orna-
ment belo~ging to me; and to G . H. of---all
my s hares rn the---Oompany, Limited.
(a) D ea ne, 413.
. be payable half yearly on the__.:.__.. .day o f -
and the-day of----in each year, the first
payment, or an apportioned part thereof, from my
death, to be made on such of the said days as shall
happen next after my death .


.,
.-
-286
General
CH. XIII.-LAST WILL AND TESTAMENT.:
devise and . I devise and oequeath all my real and personal
bequest , _ estate, except what I otherwise disposed of -by this
my- will o.; any codicil hereto, unto_L. R. of----his
heirs, executors, administrators and aesigns, charged
as to my real estate in aid of my personal estate
with the payment of my funeral and testamentary
expenses and debts, and the legacies and annuities
.
beguea~~ecl by this. my w,. ill or any codicil hereto.
Appointment And_ I nominate, constitu'te and a ppoint the
ol executors, 'd R o . d C . We, A. B .. oi--and G. D. of--being in health of body,
- sa1 . ,s, ab . D. of---executors of this my
will. " -
Testimonium In witbess whereof I, the said A. B., &c.-- .
Attestation, [For attestation, se~ pp. 39 and 40 above.
Here it is safe to state that the testator appeared
'to be of sound and disposing mind,' memory and
_understanding.]
Form of a Will of a single Person.
."
(Short Form) .
I, A. B., being ill in bed, but of a sound and
disposing (a) mind memory a~d understanding,
. . _decl!l.re my intention 'to make and execute this
- Last Will and Testament ; wherefore, hereby I do
revoke and annul all wills.~ codicils and other
testamentary acts heretofore...made and executed by
me.
I, the said A. B., . do hereby nominate and
appoint 0. D. of--to be the sole and universal heir
of all nhe estate and effects which shall be left by
me after my death, whether moveable or immove-
able, and of what nature or kind soever, and
whereso~ver _situate, or whether the same be in
possession, reversion, remainder 01' expectancy I
. nothing excepted.
(a) N.B,-It is not enough if the testat~r has only a memory. He
should have a disposing memory, 2 Cr, 1514.
.
...
., .
.. I
FORM OF A JOINT AND MUTUAL w ILL. 287
I, the said A. B, also do hereby nominate and appoint t~e
ilaid C. D. to be the executor of this my L-3.st Will and Testa-
ment, hereby giving and granting unto him all such power and
cauthority as are required or allowed in law.
In witness whereof, &c.
., ' .,.
- .
Form of a Joint and Mutual Will.
of sound and disposing mind, memory, and understanding and
.capable of doing ~ny act that r~quired thought, judgment or
reflection deciare our intention to make and execute our lash
will and testament; wherefore, we do hereby revoke and
annul all wills, codicils aod other testamentary acts hereto-
fore made and executed by us or by either ~f us.
"
-We the said A. B. p.nd 0. D. do h~reby nominate and
appoint the-survivor of us together with the chili] or children
which shall or may hereafter be begotten by us dming our
marriage, to be ;the sole heirs . of the first dying, of all my
estate; goods, effects, stock, inheritances, ch?,ttels, credits, and
things whatsoever and wheresoever the same may be, nothing
excepted which shall be lefb at the death of me the first dying
of us, whether moveable or immoveable and whether ' the same
be in poBsession, reversion, reqiainder or expectancy.
It is our will and desire that the surviv6r ~f us sh.all be
held and bound, after the dece'l.se of the. first dying, . to have a
true and perfect inventory made of the whole of the estate of
the first dying of us, and to-cause the same to be appraised, in
order, by so doing, to ascertain the portions of the hairs, of the
first dying-the su-rvivor, . however, to keep the whole of the
joint estate under his or her sole and entire direction and
-administration, in order that he or she may be better enabled
to educate and support our childr'en until they become. of age
or ml\rry when the survivor 6f us shall be obliged to pay over
to each of them, such sum or sums of money as shall be due
to them for their share of inheritance from the estate of their
.father or mother.

288 CH. XIII.-LAST WILL AND TEflTAMENT.
We, the said A. B. and C. D., do hereby nominate and
appoint the survivor of us to be the executor or executrix of
this our last will and testament and guardian of our minor
children hereby giving and granting to each other of us, reci-
procally, all such powers as are requ!red or allowed in law.
In witness whereof we the said .A. B. and C. D., &c.
Form of a Codicil~
This is the codicil to the last will an-d t estament of A. B.
bf - - ,
Whereas I have made and executed my last will and
/ t estament bearing date the--day of--1909 and attested by
S. K. , Notary Public under No.--.
Whereas it ap pears to me that some misunderstanding
may aris e as to the JDeaning of t he t hi rd dlause therein relating
to the legacy to C. D .
Now therefore I hereby desire to settle all disputes whi~h
may hereafter arise in respect thereof that the said third clause
in my said last will and testament be construed and take effect
as a legacy in -favour of D. E . the only child of C. D. and not
in favou r .of C. D . himself.
"' other respects i do hereby co nfirm my said last
And in all
.
will and testament.
In witness whereof I , the said A. B., &o.
[For attestation see pp. 39 and 40 _above. As in a will it
is :3afe to state that the test ator appeared to be of sound and
disposing mind, memory and understanding.]
W ill leaving all property to Testator's wi fe and appointing her
sole executrix (a).
This is the Last Will and Testament of me A. B., etc. I
give all my real and personal estate wb atscever and whereso-
ever unto my dear wife Lucy B. absolutely . And I appoint
(a) Kelly 3!15.
, FORM OF A CODICIL. 1.289
JDY said wife sole executrix of this my will. In witness
whereof I have hereunto set my band this--day of--.
Signed by the said A. B. the
testator as and for his Last
Will and Testament in the pre-
sence of us present at the same
time who at hi$ request in his
,presence and in the presence of
-each other have hereunto sub-
0scribed our names as witnesses .
Will leaving all Property to trustees upon trust to sell and con
vert into money 1:1,nd to divide proceeds between Testator's
two sons el!Jually (a).
This is the Last Will and Testament of me A. B . of etc.
I appoin t my frien ds C. D. of etc. and E. F . of etc. the exe-
cutors and trustees hereof. I give to t hem all my real and per-
sonal estate whatsoever a.nd wheresoever upo n trust as soon as
-conveniently may be after my decease to sell, call in and
convert t he sama into mon ey and af ter payment of my just
debts, fu neral and testamentary expenses t o pay and divide t he
net proceeds of such sale, callin g in a nd conversion un to and
equally between my two sons G. B. and F. B .
I n wit ness, &c.
Will of a married woman imde r a Power cuntained in her
Mlrriage settlement (b).
T his is t he L ast Will and Testament of me A. B . t he wife
-of C. D . of etc. Whereas under or by vir tue of the settlement
made on my marriage with the said C. D. dated etc. and m ade
between etc. a power of appointment by will over a sum of
10,000 part of the settlement funds was given to me. No w
in exercise of such power and of all others (if any) me here-
unto enabling I hereby appoint the said sum of 10,000 to my
(a) Kelly, 345. (b) Kelly, 350
. 37

' 290 CH, XIII.-LAST WILL AND TESTAMENT.
said husband absolutely. And I appoint my said husband th&
sole executor of this my will.
In witness, &c.
Form of a Revocation of a Will (a).
I, A. B. of--in the county of--Esquire do hereby
revoke my will dated the--day of---.
In witness, &c. (formalities as for a Will) .
Form of Revival of a Will retoked by Marriage on a. sepa,rate
paper (b).
I, L. M. of--in the county of--gentleman having
made my will on the---day oi--a; d having since inter-
married with Y. Z. do hereby revive and confirm my said will
this--da.y of--.
In witness whereof, &c. (formalities as for a Will).
Memorandum reviving a Will revoked by Marriage (c).
I hereby declare that the above-written will shall opera.ta
and be constructed as to persons and things as if I had made
the same on the---day of----, in the year----
In witness, &c. (formalities as for a Will) .
Codicil reviving a Will previously revoked (d).
Whereas I, A. B. of etc. made my wm- on the---day
of----, and have since revoked the same. Now I hereby
annul such revocation, and declare that the said will is valid
and subsisting.
In witness, &c. (formalities as for f Will).
Will of a married Woman disposing of real and personal
Estate in favour of her husband absolutely (sub/ec.t to
pecuniary Legacies) with an Expression of her Confi-
dences that he will leave the Property of her Relations (e),
This is the last will and testament of me (testatrix's
name), the wife of (husband's name and description). I give
(c) Holds, 205. (ej Holds, 174,
(a) Kelly, 351.
_(b) Kelly, 352. (d) Holds, 206, _
FORM OF A CODICIL. 291
,
all the real and personal estate of which, by virtue of any
power or authority, or of any separate right of property or
otherwise, I am competent to dispose, unto my said husband,
for his absolute use, subject to the payment thereout of the
pecuniary legacies bequeathed by this my will, and to be
bequeathed by any codicil thereto. Trusting that my said
husband will at his death distribute my said real and
personal estate among my brothers and sisters and their
issue ; but this expression of my confidence shall not abridge
his absolute ownership or create any equity in their favour.
I bequeath the leg<tcies following (namely) :-To ea.ch of my
brothers and sisters Rs.---, to be paid at the end of six
calendar months after my death; to each of my nephews who
shall attain the age of twenty-one years, and to each of my
nieces who shall attain that age, or marry R s . - , to
be paid at the end of six calendar months after they shall
respectively become objects of this bequest and to my servant
(name), if she shall continue in my service till my death
Rs.---, to be paid immediately after my deatb. And
I appoint my said husband sole executor -of my will.
In witness whereof, &c.
Will of a tradesman, legacies to children, wife to carry on
business, and, manage estate during her widowhood : b-ut
if she marries -again to have an Annuity. On wife's
death or marriage, property vested in Tru-stees for Benefit
of Children (a).
This is the last will and testament of me (testator's name)
I give to each of my children, who, being a son, shall at my
death have attained the age of twenty-one, or shall afterwards
attain that age, or, being a daughter, shall at my death have
attained that age, or have married, or shall &fterwards attain
-that age, or marry, a portion of- . -. I authorise my wife to
carry on my business of a - - - , and for that purpose to con-
tinue tenant of the premises which I shall use at my decease,
or to take others which she may think Il!ore convenient, and
(a) Holds, 178.
 292 CH. XIII.-LAST WILL AND TESTAMENT. FORM OF A CODICIL. 293
marriage of my said wife, to apply the whole or any part of the
to employ in the said business such portion of my pereonal
income of the presumptive share or shares of any child or
"estate as she shall deem fit . . And I fudher authorise her to
children of mine, who, being a son or aons, shall be under the
transfer the said business to one or more of my sons, or to
age of twenty-one years, or, being a daughter or daughters,
admit one or more of them to a share in it, and to lend him
shall be under that age, and unmarried towards his, her or
or them such capital as may be necessary for carrying it on.
their maintenance and education. And also to advance any
I empower my wife to manage my personal estate generally,
part of such pre3umptive shares, not exceeding one-half thereof,
in such a manner as shall appear to her to be most advant-
towards the advancement in life of any such children res-
ageous to my family, investing the proceeds in her name, and
pectively. I appoint my said wife, during widowhood and on
varying the investment or investments when and as she shall
her death (or if she shall matry again, tben on her marriage),
think fit (the real property so purchased to be convertible
my friends (names), to the office of executor and trustee of my
into and treated as personalty for all the purposes of my will).
will, and guardian of my infant children, with full power to
I give my wife all the income derived from the said business,
compound and compromise debts and claims, and settle my
and from the residue of my personal estate ; but charged with
accounts and affairs, and to give receipts for moneys paid or
the maintenance, educ:1ition and bringing up in a manner
accounted for to my estate by purchasers or others, who shall
suitable to the station in life of my sons for the time being,
be exonerated by such receipts from all liability in respect of
under tbe age of twenty -one years, anrl my da ughters for the
the application of the money. And I direct, so far as concerns
time being under that age, not being or having been married.
the trusteeship of my said friends, that vacancies occurring
In the event of my wife marrying again, I thenceforth annul
therein from death in my lifetime, or otherwise from disclaim-
the powers and benefits hereinbefore given to her, and gfre
er, or incapacity, shall, from time to time, be supplied by the
her ap annuity of - - -, during the remainder of ber life,
other trustees or trustee for the time being, or if none such,
payable quarterly into het proper hands, and to her sole and
then by the disclaiming or resigning trustees or trustee, or if
separate use. And I direct that the first payment of the said
annuity shall be made at the expiration of three months from also none such, by the executors or administrators of the last
the day on which .she shall acoount for and deliver up my deceased trustee. And I declare that as well my said wife, as
personal estate in her hands to the other trustees of my will the other trustees or trus~ee of this my will, shall be chargeable
to their satisfaction; but such annuity to cease if my said only to the extent of her, his or their respective actual receipts,
wife should attempt to alienate or incumber it, or any part of and be exempt from responsibility for involuntary losses, and
it. And I declare that on the death or marriage ,of my wife, be entitled to retain all disbursements and expenses incident to
my business of a--and my personal estate, shall vest in the the exaction;, of my will].
other trustees or trustee of my will, who shall have the same Ia witness whereof, &c.
powers with respect to the management of the said business,
and the investment and application of the said estate as I have
before given to my wife, and shall hold the said personal
estate from and after the death or marriage of my wife [in trust
for all my children, who, being sons, shall attain the age of
twenty-one years ; or. who, being daughters, shall attain that
age or marry, in equal shares. And I authorise my said
trustees or trustee, at any time after the decease or second
 DEFINIHON. 295

used (a), But the person to whom the property is to go over

must be clear (b', They may be indic~ted ~ither individually,
or bytheir generic names, such as children t> the "next of
II

kin;, or the "heirs ab intestato " of a padicular person or the

members of "a certain family" (c).
sary. H I give my property to A. subject to the condition
that it is to become B's pro perty after the death of A, I create
,a complete and effectual fidei commiss um. In such a case,
CHAPTER XIV.
FIDEi COMMISSUM.
!.--Definition.
Pidei ~ommissary substitutfQ n is the reque t m ade b_x__~~e
1!_e_stator or donor t o him whom he institutes t hat he wil! restore
-
t o another
.
the whole or a. par t of t he su ccession
- or
__,,,. a specifi
- ... c
thing, t he property which is the su_bject of this substitution
being called fidei commissum, th ough the ter m is also frequent-
ly us~d to express t he trust (Burge, vol. 2, p. 100). The person
burdened with the fid ei commissum, i. e., on whom the testator
imposed the duty or the trust, is t he fi du~iary (fiduciarius) .
H e to whom the inheritance is handed over is the fidei com-
missary heir (heres fidei commissarius, or full heir) (a).
A fide i commissum is defined in the Censura Forensis as a
provi;i; n of ~~;'s last will by which a mandate is given to him
to ~horn something is t~ co~e t o give the whole or a oart- of
it to another, or to give something else. Van der Linden -says~
sometimes a person ia a ppointed hei; under the condition that
tbe property after his deat h shall pass to another ; this is
termed a fidei commissum (b).
No peculiar words are necessary to create a fidei com-
missum (c), It may he effected no~ only inlDexpress words,
but also by :. ecessary implication from the words actually
(a) 3 Nathan, p. 1900,
(b) Oen. For, 1, 3, 7, 1; V, D. L. 1, 9. 8 ; 2 W, P. !129,
(c) V, D. L, 1. 9, 8,
.
A prohibition against alienation is -qot ordinarily neces-
prohibition against alien ation is a mere superfluity (d). A mere
prohibition against alienation, wit h out saying in whose behalf
th e prohibition is made, is of no effect (e).
The funda mental distinction between fidei commissum and
.usuiruct is t hat in t he former the "dominium " and the right
of possession ar e bot h given t o A, subject to the condition
that after t he 1,pecified time (u sually his lifetime) the property
sh all pass. to B, who u n til A'll death hakes no veated in terest .
II
I n t he case of " usufrnct ' ' the dominium" is given to l B at
once while the r ight of possession fo r life (" usufru ct ") is
given t o A. (f). *
T he most essential diffarence between t rusts and fidei
7t
.commissum may be expressed as follows : -I n t rusts the interest
of t he trus tee and t he cestue que trnst a re co-axistcmt in time : in
.tidei commissa t hey are successjve . Most of the points of
diffetence bet ween t rusts and fi'dei commissa are corollaries
from this princi ple . Thus, the trustee h as no beneficial inter-
est, only the domini11.m ; the fiduciary lias, as a rule, a bane-
,fi cial interest and the dominium as well. In Dutch Law the
legal and beneficial interest or legal and equitable estates had
not been distinguished . Thay were not conceived as existing
in separnte persons at th e same time as in the case of the
(a) Voet 36, _l 1_0 ; Cens. _For. 1, 3, 7, 7. 8; G. 2. 20. 14. V, D . K ,
Tb. 37ll; 1 Mass. 159,
(b\ V. D. L. I. 9. 8,
(c) Voet, 36 1. 21. 31; 1 Mass. 159.
(d) 2 W. P. 431.
(e) V. D. L, 1. 9, 8; Ord. 11 of 1876, 3; Bal. P. and T, 111,
(fl Fonseka v, Babu Nona, ll Weer. 27,
 296 CH. XlV.-FIDEI COMMISSUM.
English trust. The fiduciary UDited both interests for the time,
being (a).
Then, again, the interest of the cestue que trust vests on
the creation of the trust; the fidei commissary's interest does
not vest until after the fulfilling of the condition of the fidei .
commissum-usually the death of the fiduciary. The pros-
pective interest of the fidei commis8ary before the condition of
the li,dei commissum has been fulfilled is vaguely called by
Voet spes fidei commissi. If the fi,dei commissary dies before
the condition of tbe fidei commissu,m has been fulfilled, e.g., if
he pre-deceased the fiduciary, the fidei commissary's heirs.
take nothing, no interest having vested in the fidei commissary.
The fiduciary thus b!)comes absolute owner of the property,
The fidei commissary is thus in a w.orse position than,
the person to whom property is bequeathed subject to the
life interest of another. Such a remainderman, if he pre-
deceased the holder of th3 life interest, transmits his rights to-
his heirs (a).
A fidei commissum can be imposed not only by a will,.
but also by an act inter vivas (b).
The difference between a fidei commissum created by a
will and that created by a deed of gift is that in the former
case the testator can revoke it at any time, during his life-time,
while, in the latter, if the donation is once accepted, it cannot be,
revoked (c). Further, a fidei commissum created by will
terminates by the death of the fidei commissarius before the
accrual of the interest, unless the intention of the testator is
otherwise exrtessed, but one created by an act inter vivas
accrues to,,..f e benefit of the heirs of the fi,dei commissarius (d) .
ia) Mor. Eng, and R. D. Law, 800.
(b) Voet 86, 1, 9 ; H. T, 98,
(c) Asiathumma v. Alianaohohy, l A. C. R 58 ; de Silva v. Thomi-
eappu, 7 N.L R. 128, overruled,
(a) Gould v, SoaH, 2 Br, 878; Tillekeratne v. Abeyasekara, 2 N,L.R.
818; 2 W. P. 818; Voet 86. 1, 67.
DIFFERENT KINDS OF "FIDEi COMMISSUM." 291
II.-.-Di:fferent kinds of "Fidei Oommissum."
Fidei commissary substitutions or trusts are of different
kinds-.
(a) A pure fi,dei commissum, under no condition (a).
(b) A conditional trust or fidei commissum, which only
takes effect in a particular case, for example, in
case the heir dies without issue. This condition,
is implied when any one in the ascending line,
burdens any of his descendants with a universal'
fidei commissum. Where the fidei commissum is
subject to the condition of the instituted heir
dying without children,lawful children are intended ,.
whether the fiduciary is male or female, unless the
circumstances of the case lead to a different con-
clusion (b),
(c) A fidei commissum in succession, when the substi-
tuted heirs are in like manner affected with a trust-
or Iiinitation over to a third person.
(d) A trust may be of the whole inheritance or of a
part of some special property (c).
(e) A reciprocal trust, when two persons are each
mutually affected with a trust for the other.
(/) A trust of the residue, as when the heir is charged
in case he dies without issue to suffer the residue of
his property 9,t his death to pass to a third person.
In this case he must suffer at least a fourth part of
the original property to pass (d). He may however
if in want of a dowry, or if the property is necessary
for marriage, or for ransom of c~ives, alien~te
even the remaining fourth (e), In f~ case or a
fidei commissum of the residue by a joint will, in
(a) V. D. L, 1. 9. 8.
(b) Voet 36, I. 18; Cena, For. L 8. 7. 17; Voet 86. 1. 14. 15, 16; 2:,
W,P, 380 and 881.
(c) V, D, L. J. 9, 8; Cens, For,,. 3. 7, 8; 2 W. P. 322.
(d) V. D. L. 1. 9, 8.
(e) G. 2, 20. 13; 2 W,P, 319.
88

298 CH. XIV,-FIDEI COMMISSUM,
favour of the heirs of both spouses, the survivor
may alienate in his or her lifetime the whole, but
not by will ; the alienation, however, must be
made in good faith, and not with a view to defraud
substituted heirs (a).
A fidei commissum may . also be effected with leave to
1tlienate only on account of necessity or poverty {b).
The permission, however, to alienate during one's life-
.time does not include permission to alien~te by testament (c).
At the same time a prohibition contained in a will against '
-alienation by act inter vivas is not to be extended to testament-
-ary dispositions (d).
A fidei commissum is to be strictly interpreted and its
-existence should not be lightly presumed, and, in case of doubt,
the Court will assume that no incumbrance wr:.s intended {e).
A tacit fidei commissum may be created by a testator
merely enjoining his heir ';}Ot to make a testament(/).
The person, to whom tlte limitation over of the enjoyment
-of anything is made, must wait till the event takes place on
which such limitation is tJ take effecb. If, for example, I give
my property to A, subject to the condition that it is to become
B's property after the death of A, it vests in B, on A's death .
But if I give my property to A prohibiting him from ali enat-
ing it, and providing that in the event of alienation the pro-
perty is to go to B, the event on the happening of which tbe
.p roperty is to vest in B is not the death of A, but tha alienation
,of the property by A. If A does no act in contravention of
the yrohibi~\7. against ~lien_ation, the property will never
vest rn B. )' will go to A s heirs after his death {g).
(a) Voet 36. 1. 54. 56; Ferdina.odus v. Ferna.ndo, 6 N. L. R. 328.
(b) Gens. For, l. 3, 7. 15 ; 2 W . .P. 321,
(c) Gens, For, 1. 8. 7 , 16.
(d) Voet. 36. 1. 27 ; 2 W. P. 321.
(e) Voet 36, 1, 7; Br. of G. 2\19 ; 2 W, P, 329,
(/) Oens, For, l. 8. 9,
(g) V, D. L. I. 9. 8; 2 W. P, 320 ; Bal. P . and T. 112-116,
now LONG WILL A ...... BE BINDING,
299
III.-What may be subject to a "Fidei
Commissum ''?
The thing which is left by fidei commissum may be the
testator's own property or that of the heir. It may be not
only a corporeal thing, but even an incorporeal .thing. It may
even be a thing which manifestly.belongs to a third party (a).
IV.-How long will a "Fidei Commissum"
be binding ?
Fidei commissa, whether left to the family or in any
other mode, are not to be regarded as erpetual, unless the
directions or intentions of the testator to that effect are clear
and definite. In case of doubt, the perpetuity, so called, only
extends to the fourth generation, and thereafter the property
is unburdened, so that the fifth generation is able t9 dispose
thereof at will. This is accepted as the general view prevailing
in Roman-Dutch Law, although certain Dutch commentators
(e. g., Grotius, Int. 2, 20, 22 ; Decker, ad Van. L., R. D. L.
3, 8, 6, 7) holct the rule to be absolute that the prohibition of
alienation, even if perpetual, cannot extend beyond the fourth
generation. Apparently this is t ba view adopted by C. T.
Smith, J., in De Jager v. De Jager (1 A. C. R. 444), though
the view generally accepted, which must be tf1ken to be the
law prevailing in South Africa, ia that four generations is the
normal durat,ion of a perpetual fidei commissum unless the
language employed by tbe testator makes it perfectly and
absolutely clear that the fidei cominissum is to extend
further (b).
But in Ceylon tbe case of immoveable pro~ty is govern-
ed by Ord. No. 11 of 1876, Secs. 2 and 3, _ch are as
follows:-
" No prohibition, restriction, or condition against the
alienation of any immoveable property declared by or contained
in any will, deed, or other instrument, which shall be executed
after the proclamation of this Ordinance, shall be effectual to
(b) 3 Nathan, p. 1914 ; B. T. 92.
(a) Gens. For, 1. 3. 7, 4.
 300 CH. XIV,-FIDEI COMMISSUl\l,
prevent or restrict the alienation of such property for a longer
period than the lives of persons who are in existence or en Ventre
sa mere at the time when such will, deed, or instrument is
executed and are named , described, or designated in such will,
deed or instrument, and the life of the sprvivor of such persons."
" Any such prohibition, restriction, o_r condition against aliena-
tion as aforesaid shall be nuil and void, so far as it prohibits
or restricts alienation for a longer peribd than that limited in
the preceding section." ~
. a~ Villlers says in Potgieter v. Executors of Van der Hee ver(a),
V.-Who may be affected by a" Fidei Commissum ?"
U oder the Roman-Dutch Law all those who take any
benefH under a pe;;;n's will .except his children in so far as
their legitimate portiou is concerned may be bound by 'a fidei
commissum. '1.:he legitim:i.te portion must always rema,in fr~e
and only that portion which exceeda it can be burtbened with,
a fidei commissum,
It had, however, been introduced into practice that a
father might put his child : to the election to . declare, and
frequently under a judicial act, whether he would ac~ept thfa
legitimate portion_free and unencumbered, leaving the residue
to a third person, or would renounce it and in its place take a
child's portion of the whole inheritance burthened with a fidei
commissum (a).
This exception in favour of the children does not exist in
Ceylon, since the rights of chil~ren, par_!3l!tI, and Q!ibexaJ.o a
"!e~itimate portion" have been removed by legisla.!;joon .liete (b).
VI.--" Ju~ar rescendi "-What is it? How far does
it afff t " Fidei Commissum " property ?
Wheri eyeral persons are all appointed joint heirs and onEt
~r ~or~ of these happen to di~ before the testator, their share
goes to the survivor unless each of the heirs has only a separate
P,?_rtion of the inheritance. This is termed jus accrescendi (c).
(a) V. D. L. I, 9, 8.
(b) Ord. No. Ill of 1844, Seo. 1. Seep. 313; 2W, P.
(c) I! Thctnp. 218; Bal. P. and T. 108,
" " JUS ACCRESOENDI " ...... PROPERTY, 301
The case of survivorship or jus accrescendi says Mr. Morice
in his work on the English and Roman-Dutch L'1W, arises in
the event of failure of one or more of several co-legatees, e.g.,
'by pre-deceasing tlie testator. The question must then be
.decided whether the wh9le of tbe thing bequeathed\ oes to the
survivor or survivors, or whether the deceased legatee's share
~ falls back into the estate. The generai answer is that this
,depends upon the intention of the parties. As Sir Henry
-all rules for the interpretation of wills are found'ed
,upon the presumed intention of parties. But there are
certain technical rules for ascertaining the intention of
testators which are given by V.oet (b). The legatees may be ...
associated (I.) rt_tantum, (2) re et _verbis and (3) 729js ta'/'iturp,.
The first case occ.u rs where a testator bequeathed an article
to A, and in another part of the will to ;B. In that case the~
jus accrescendi applies. If A or B pre-de ease th~ testator, B
or A respectively takes the whole thing. Ao example of the
second ca'se is where a wiil bequeaths a thing to A and B
1
without mention of the shares. In such a case there is also a
-:i
jus accrescendi. In the third case where an article has been
lI
bequeathed to A and B in equal shares or in apecified shares,
&
there is no jus accresoendi (c) . 1!
When the whole or a certain part of a fi,dei commissum is . 11
left to several in. conjunction, the right of accrual takes place l
among them (d).
This principle was given effect to by the Privy Council m
the C!J,S6 of Tillakaratne_ v. Abeysekere (e), There A and his
wife B made a joint will in 1858, the portion of\.v hicb material
to the prese~t subject was as f,ollows :-" All the ~ ~ veable and
immoveable property belonging to us shali be po~ses'b\id by the
(a.) Ill S, C. 40. *
(b) 30, 1, 59-62; 2 W. P, 449,
(c) Mor, oD Eog, and R, D. Law, p, 1187. See Nathao, Vo\ . III,
'I), 1897, n.
(d) Cens, For, 1-3-7-lll; Voet 36. 1. 71,
_ (e) I! :r:;{,L,R, 313.
 302 CH, XIV.-FIDEI COMMISSUM.
survivor of us, after which the three children of C (the decease<)
of our two children), namely, D. E. and F. and our second
daughter G shall divide into two and inherit according to cus-
tom." D and E survived both their grandparents (A and B}.
F survived A but pre-deceas~d B, leaving him surviving his
wife and a child K. K survived both A and B and died
unmarried and intestate leaving her surviving her mother.
K's administrator now claimed a sixth share of the estate on
the ground that K had succeeded her father; but it was held
that the moiety settled uoon the gra~dchildren D. E., and F
was subject to one and the same fidei commissum, and that the
bequest was not in the form of a disposition of one-third share-
of the whole to each of the institutes, but of a gift of the whole
to the three institutes jointly with benefit of survivorship and
with substituti on of their descendants, and also that Ordi-
nances Nos. 21 of 1844, 10 of 1863, and 7 of 1871 had in no
0
way altered the law of fidei commissum. The claim of K was
accordingly "dismissed (a).
From the time the Prr vy Council decided the above case a
series of cases have been decided by the Supreme Court where
the principle of jus accrescendi or survivorshiv was held to
apply not only to fidei commissum crea.ted by will but by act
inter vivas (b).
The Supreme Court bas decided in a few cases (c) that
jus accrQscendi did not apply. This has been explained by the
Judges in Usoof v. Rahimath (d) as cases which concern the
(a) See~Jsoillekeratne v. Silva, 10 N. L.R. 214,
(b) Tilleke tne v. Abeyesekere, (1897) 2 N. L. R. 313 ; Jayawardene
v. Ja.yawardg::., , (1905) 8 N. L. R. 28 3 ; Tillekeratne v. Silva, (1907) 10
N. L. R . <;{4 ; Jobsz v. JobHz, (1907) 3 A. C. R. 139 ; Babahamy v.
Maro iMhamy, (1908) 11 N, L. R. 232 ; Samarawickreme v. De Saram, -
(1911) 14 N, L. R, 321 ; Wirasekera v. C,i.rlina, (1912) 16 N.L. R. 1 ;
Seneviratne v, Candapapulle, (1912) 16 N. L . R. 150; Sandenam v,
Iyamperumal, (1916) 3 C. W.R. 59; 15 N. L. R. 493; 20 N. L. R. 89 ,
449 ; 21 N, L. R, 65 ; 4 C. W.R. 50, 82; 5 C. W. R. 245 ,
(c) 16 N, L. R. 474 and 17 N. L, R, 407,
(d) 20 N. L, R. 225,
EFFECT OF PROHIBITION ...... FAMILY. 303
vested interest of the fiduciaries and not fidei commissaries.
for once the several fiduciaries under a fid-ei commissum enter
into the enjoyment of their respective interests that converts a
single fidei commissum into a bundleof separate fidei commissa
as far as the interest of fiduciaries are concerned.
VII.-Effect of prohibition of alienation out of the
family.
A fidei comw,issum is not created by a mere prohibition
against alienation, unless the prohibition be against alienation
out of the family (a). The persons to benefit must be named or
designated ; but in the case of a mera prohibition against alien -
ation, if the testator state the ground of the prohibition or bis
rea!1on for it, as, for instance, if he forb'id the alienation of the
property in order that it may be preserved and remain in the
family, then a tidei commissum is to be presumed to be created
in favour of the family (b).
A last will contained the following clause : '.' They (the
children) shall not sell, mortgage, etc., the immoveable property
to strangers except the original heirs, nor could one or more
people outside their circle be granted or obtain any rights."
Held, that the will created a fidei commissum ; and a
mortgage by a devisee to a person outside the family was held
to be invalid (c).
In Oornelis v. Wattuha-my(d), under a joint will the land
in question was devised by one A to his two sons B and C,
subject to the following condition: t hat if the afo~said
parties mortgage, lease out, transfer, gift out, or give over in
any other way any lands of this estat~ to any\ "Pe oth~: than
an heir of this estate, such grant shall be null 't;~ voH~. and
the property should belong to the estate. '\
Held, that the prohibition in the will was only ~gainst a
voiuntary alienation, and not against a sale in execution.
(a) V. D. L, 1. 9. 8 ; Cens. For. 1.
(b) Cens, For. 1. 3. 7. 10; Anthony v. Barton, 7 N. L. R. 43.
(c) Robert v, Abeywardene, 15 N. L, R, 323.
(d) 22 N, L. R. 77,
 -304 CH. X:,V.-FIDEI COMMISSUM ..
Sampayo, J.-I cannot quite see who -are the persons who
are to get the property in the event of alienation in breach of
the condition.
In Beris v. Soysa (a), by a deed of conveyance executed
in consideration of a sum of money S conveyed a land to four
-children of his sister, their heirs, or legal representatives, with
,a direction that if it become necessary to sell or mortgage, it
should be done among the four grantees, and shall not be sold
or mortgaged to any outsider. Held, tllat there is no fidei .
.commissum.
Ennis, J. says :-The learned Judge has held that this
direction has created a fidei commissum, and he relied on the
case of Robe1t v. Abewardene (b). I confe3s that I find some
difficulty in that case, but the document in tha present case
is not on all fours with the document in that case. In thab
case there was an express condition that nobody outside a
certain circle oould obtain any rigbts . The present document
-relates only to sale or mor,~gage to an outsider, and does not
refer to any other right. The document does not specify what
is to happen in the event of a sale or mortgage to an ou~sider,
The document, it is to be observed, is not a sale, but a
conveyance, and whether by way of gift or on sale it is
impossible t o say. It must, therefore, be read strictly, and
the Roman -Dutch rule of Law in connectjon with such
claims is that t,her'.3 is p_o .M J i comm_~ sum, unlef!.t liJ::iil~P0t \!..O.\lS
to be benefited are clearly design a,ted. Juta , in his L!tw of
Will~--in S~~~h Afr ica (i:,. 106), says that if a testator prohi-
bits his heirs from alienating property left, and says nothing
more, such a _:)ohibition is termed nudum , and is of no fo rce
or effect, a'i?J the case of In re Lourenz (c) supports the
priuciple _yia down by Juta. In our own reports there is
the cas~i' of Nugara v. Gonsal (d), where it was held that
,the words in a will that the children should not be at
(a) 21 N.L. R. 446.
(bl (1912) 15 N.L.R. 323.
(c) S.A. Law Reports, Cape Div. L. 1912, p. 643
(d) (1912) 14 N, L. R, 301.
II
ROW DQES " FIDHI COMMISSUM END ? 305
liberty to mortgage, sell, or encumber the propedy during
. their lifetime did not create a fidei commissum.
VIII.-How does '' Fidei Commissum " end ?
(a) By f~ilure of the condition upon which it is made.
{b) Wheri the person in expectancy dies before the heir,
or becomes incapable or disqualified to take, for
it is a rule of
law that, in the absence of any clear provision in the will to
the contrary, the inheritance will in that case belong to the
fiduciary absolutely (a). But the fidei commissary when the
fidei commissum has been created by an act inter vivas, trans -
mits to his heirs on his death the expectation oI the fidei
commissum (b).
(c) By tbe perishing of the trust properliy without fault
of the heir.
(d) By the express renunciation of the party in expect-
ancy.
(e) Bv a release from the trust which can only be obtain-
ed from the Sovereign and only foP lawful reasons and on the
~ consent of all the parties in expectancy. But in Ceylon by
(?) sale under Secs. 4 and 7 of Ord. No. 11 of 1876 (c).
U oder the Roman-Dutch L'l.W a fidei commissary institu-
tion lapses, if the fiduciar~ heir dies before the testator, unless
the will contains an ordinary as well as a. fidei commissary
institution or unless the will contains the codici!lf\ry clause.
This. however would appear to be not the case with us. For
by o_g.r l~ the heirs under a will are of the nature of legatees ;
and even under the Roman-Dutch Law a particular fidei
commissum imposed upon a legatee will survive, ven though
the legatee pre-deceases the testator (d).
Under the Roman-Dutch Law 'a /idei commissu,
which a legacy was burdened d~d not lapse by the death c
immediate legatee before the testator.
(a) Voet, 36. 1.:67; 2 W.P. 344; 1 Mass. 169; V,D.L . 1, 9, 9.
(b) Voet. 36, 1. 67,
(c) See also Mirando v. Coudart, 19 N.L.R. 90.
(d) Voet. 36. 1. 69,
39
...

CH. XIV.-FIDEI COMMlSSUM.
306
Per Pereira, J.- In the rule of the 'Roman-Dutch Law
that a fidei commissum ended by the death of the fiduciary
heir before the death of the testator, the term " heir " had
reference to the "testamentary heir'' of that law, in whom
was vested, inter alia, the right, duties, and responsibilities of
the executor of our time. The rule has no place where
property is devised by a will of our time to a devisee subject
to a fidei commissum, although the devisee be a person who
would have been an heir in intestacy btit for the will (a).
A fidei commissum does not fail on the fi,dei commissary
dying before the fiduciary or the testator, if the fidei commis-
sary left b~hind children on bis death (b).
A sale by the Fiscal against tbe fi,duciarius of a land
subject to a fidei commissum does not put an end to such fidei
commissum (c).
In Sousa v. Mohideen a Full Bench of the Supreme Court
held that, where a do1ation subject to a '(i,dei commismm in
favour of the descendants of the donees was aGcepted by the
-fiduciary donees, it was not or,en to the donor to revoke it and
grant it absolutely to the donees, even though no issue of the
<lonees were in esse at the date of the first deed, and though
the fidei commissar'ius had not accepted the gift at the date of
the revocation.
In the case of such a donation acceptance by the fiduciary
<loneo is a sufficient acceptance on behalf of tho unqorn
descendants (d).
When ei commissarius fail, the last holder's fiduciary
interest i~ nlarged into full ownership, and any disposition by
him by ct inter vivas or by last will is operative (e).
_ :l - - - - - - - - - - - ~ - - - ~
(a) Livera v. Gunaratna, 17 N,L.R, 289.
(b) Robert v, Neina Marikar, 16 N.L R. 99.
(c) Peiris v. Perera, 2 C.W.R- 814,
(d) 17 N.L.R, 279; see also Coudart v, Elias, 17 N,L.R. 129,
(e) Perera v, Mariano, 21 N,L.R, 62, ,
RULES FOR INTERPRETATION ...... A WlLL. 307
IX.-Rules for interpretation of a deed or a will.
J11stice Ennis, in Craib v. Loku Appu (a), says " To hold
. -that a fi,dei commissum is created it must clearly appear:-
(a) That the gift is not absolute to the donees,
(b) Who are the persons to be benefited, and
(c) When they are to benefit,"
It is difficult to give an inflexible rule to be applied in the
,construction of wills and other instruments with reference to
the question whether a fidei commissum bas been constituted.
The very gen~ral, though comprehensive, . rule given in tbe
extract cited below from Mr. Justice Walter Pereira's Judg-
ment, agreed to by the rest of the Court, in Wijetunga v.
Wifetunga (b), will, it is hoped, be of some use in the direction
mentioned above. In this case, by means of a deed of gift, the
,donors "gave and granted " certain landed property to A.
They stipulated that A. " should not sell, alienate, lease out,
mortgage, &c., tho property, and that all acts, deeds and things
dona contrary to thar. stipulation should be null and void,"
' They reserved to themselves a life intere!lt in the property, and
provided that " after their death the property should be hold
-possessed, and enjoyed by A., and that after bis death hi~
heirs, executors or adminis trators should hold and possess the
property or deal with it as they pleased." The extract
referred to above is as follows:-" For the solution of the
,question as to whether a particular provision in a will or other
instrument creates a fidei commissum, an important rule is laid ...
down by Van Leeuwen in the Oensura Forensis-' Pro fidei
cpmmisso accipitur, quad non alia ratione videri potest
expressum, nisi causa fidei commissi inducendi' , ). That is
to say, a provision or stipulation given expression t must be
.taken as a fidei commissum which cannot be cons1, red as
having been inserted ior any purpose other than till t of
including a fidei commissum. Now, in the above deed the is
a provision that A. shall not alienate, &c., the property conveyed
(a) 21 N.L.R, 449.
(b) 15 N.L .R. 4\)3. But see Ponnuswamy v. Kartbie, 1 C.W,R, 91.
(c) Cene, For. 1, 3. ~. 7; 2 W, P. 484, 485,

CH. XlV ,-FIDEI COMMISSUM,
308
to him, and that any alienation shall be null and void, and
there is also a provision as to what is to happen to the property
after the death of A. Can we imagine any purpose for which
these provisions have been_ inserted in the deed in question
except the purpose of creating a fidei commissum? I do not
think so. The intention to create a fidei commissum is, I
think, manifest, but then the question has been raised whether
that intention has not been frustrated by the words used . If
the intention of a donor or testator to create a fidei commissum-
is . clea;r, and the words used by him can be gi;en an interp;~-
- Similarly, provision that the survivor should possess the
tation that supports that intention, I should be sJow to _embark
~ e of discove~y hi search _of possible interpretations
that defeat that intention. In the words of Van Leeuwen
again-' In tidei commissis sola test-atoris voluntas sepcta.tur, nee
solum verbis expressa, sed et tacita et ex conjecturo, collecta' (a).
The appellant's counsel has argued with much force that
in the above deed there is a clear indication of the persons to
benefit after the death of A. They are the heirs of A. What,
the deed means is that, alternatively, that is to say, in default
of heirs, the property -is to vest in executors or administrators.
In default of heirs, A. as fiduciarius would, of course, be
absolute owner of the subject of the fidei commissum, and a
disposition by him of the same by will would then ~ave full
effect, and thus the use of the words 'executors ' and ' adminis-
trators ' (the latter implying administrators de testamentio
annexo) could be explained away without doing violence to the
language employed. and in a manner that gives effect to the
obvious intention of the grantor to create a fidei commissum."
IX (a).- Cases creating a" Fidei Commissum."
The. lowing cases are given as illustrations of the int11r-
by the Supreme Court of deeds or wills as creating.
A provision in a will that the property " shall for ever
remain unsold and undivided, and the profits thereof be
divided among the heirs collectively" was held to amount to a
(a) Cens. For, 1. 8. 7; 7; 2 W. P. 484, 485,
CASES CREATING A "FIDEi CJOMMISSUM," 309
jidei commissum, the word " heirs '' not necessarily meaning the
children of the testator (a).
A gift of land to A. comprising a prov1s1on that the land
"shall be possessed and enjoyed only by A., her children and
their children in perpetuity, but shall not ha sold, mortgaged,
or gifbed to any one," was held to create a valid fi,dei
-commissum (b) .
common estate as he or she pleases, and that after the death
-of both, whatever is left should be divided among the children,
constitutes a fidei commissitm as to the residue. The survivor
can alienate or encumber the property, but he or she should
not needlessly spend, give. away, or squander the estate in
,prejudice of the heirs on whom it is entailed. Under the
Roman-Dutch Law it must not, in any case, be diminished by
more than three-fo~rths (c).
A. and B. being married in community of property " gave
and bequeathed " to each other their joint estate to be possess-
ed by the survivor during his or her natural life. The will
further provided that after the death of the survivor they
gave and bequeathed " the said estate to their sons P. and K. ;
and it was held that this was not a bequest to P . and K. with
merely a.life interest in favour of the survivor of A. and B., but
that the survivor was made fiduciary heir to hold the property
-subject to a fidei commissum in favour of P. and K. (d).
Where in a joint will of husband and wife, after they had
a,ppointed the survivor the sole heir to all the common property,
they willed as follows-" It is our will and desif that after the
-death of tis to give and bequeath to our beloved s ~ M. [land
described] ; it was held that the devise to M. was >ontingent
-00 his surviving both the testators, and that the interes\ vested
in him after the death of one but before the death of the ~ ther ;
- - - - - - -- - - - - - ~ - -- -- - - ---'~
(a.) Va.nd. D, 0, 82,
(b) Va.nd, D. C. 208,
v. Chinnapilla.i, 9 S,C.C, 83.
(c) Sa.ntia.goopillai
(d) Gould v. Souza, 2 Br, 878,
 I

OASES CREATING A " FlDEI COMMISSUM," 311

310 CH. XIV,-FIDEI COMMISSUM.
assigns subject inter alia to the following condition:-" That
and so, he having married in community of property in the,
the said D. shall possess and receive the rents, profits and
interval and died intestate, his wife could not maintain a claim
income of the same, but she shall not sell, mortgage or
to a half share of the land (a).
dispose of the same and after her death 11ih sh.all devolve
The following words in a will-" I hereby direct that C. and, and descend on her children without issue, then the said
bis posterity (paramparawe) should possess the following lands,. land and premises shall revert and devolve on my lawful heirs
&c. Except such possession, these lands or any part thereof and they shall not sell, mortgage or alienate but possess the
shall not be sold, mortgaged, or made over in any other mann er
same."
or seized for bis debt,''. were held to create a Mei commissum.
Held that the deed created a, fidei commissum and that,
The word paramparawe was interpreted to mean lineal descend -
on the death of the donee without issue, t he property vested
ants of the testator (b).
in the heirs of the donor (a) .
In the case of Vansanden v. Mack (c), it was held by Bonser,.
Where by a deed of gift the donor donated certain pro-
C. J ., that no special words were necessary to create a fide i
perty to his three daughters, A., B. and 0. He then declared
~ m~ i~sum,-but effect was giviin_to be gi;,e_1;1, tQ.!bJJ_it;1Jen_tiog of
as follows : " If any of them (i.e., the donees) shall depart
the testator, if it could be collected from any expressions in.
this life without descendants, bis or her share, or part of the
t9 e instrument t,hat be intended to create a fidei cowm,iss,E_m.
said ~emises, shall be added to my estate for the benefit of my
In the same case Browne, A. J., was of opinion' that the
heirs ; and I do hereby declare and desire that the above-
expression " my children and their descendants " was different
named three persons and their descend!)-nts may possess
in nowise from " my children and my descendants '' ; and it
and en3oy the produce of the said premises, subject, how -
was also held by the Court that whatever bad been the inten -
ever, under the same express restriction before mentioned,
tion of the testator as to the creution of a !i,dei commissum,
without disposing, mortgaging, or alienating the same, only
where the will had been construed by the parties as if the
possessing and enj_oying the produce thereof." After the
. testator had impressed a n,dei commissitm on the property,
donor's death, A. died leaving child D ., and D. died leaving no
and such construction bad formed the basis of family
arrangements, for a long period, it should not be disturbed. , descendants.
Held, that on the death of A. the property that she had
In De Livera v. Abeyasinghe (d), where a will provided' received under the deed of gift vested in D., and that on D.'s
11 when my three sons aforesaid become absolutely entitled death it reverted to the estate of the donor (b) .
.. . ... they and posterity are at liberty to possess--......and enjoy
the same for ever, but they and their heirs are respectively- ' The joint will of A., and his wife B., who were married in
restricted frOJ, selling, mortgaging, or otherwise alienating the community of property, contained the following ~ auses : -
1 e same hereby entail as a (i.dei commissum." " (2) It i~ directed that all the moveable :l.' _ immove-
Council held that the will created a fidei commis- able property belonging to us be posses~ d by us,
sum. the abovenamed, during the lifetime of 1 oth of
us according to our wish; if one should d1. and
here .the donor purported to gift certain " property to,
the other survive, the person who lives is diret; ed
his daughter D." his heirs, executors, administrators and,

(c) 1 N.I,.R. 311 .

(al Gunaratne v. Perera, 1 C.W.R. 24 .
(a) Joohino v. Robertu, 9 8.O.C, 101.
(d) 19 N .L.R. 492. (b) Asera.ppa v. Julibamy, 18 N.L .R. 233.
(b) Iba.nu v. Abeyesekere, 6 N.L.R. 344.
 312 CH. XlV,-FIDEI COMM!SSUM.
as far as in us lies to possess the property
according to his or her pleasure, and also to
. do whatever he or she likes with it.
11
(3) It is directed that after the death of both of
us all the movt:Jable n.nd immoveable property
belonging to us shall devolve on the children,
grand-children, and such other heirs descending
from us."
Held, that the will created a fi,dei com~iss;m residui, and
that the survivor was a fiduciary with free power of aliena-
tion (a).
No words expressed in a will should be treate:l as super-
fluous if they could be given a meaning not inconsistent with
the avowed intentions of the testator (b).
It is not nece,sary that there should be a probifition
against alienation to constitute a (idei commissum. A fi,dei
commissum might be so constituted as to take effect if the fidu-
~intestate, or without having made any dispositi;~ "of
the property during his lifetime,
A person by deed gifted his property to three of his
II
children and their heirs and assigns, as (sic. such as are)
children and grand-children, to be possessed or to be dsaH with
as they pleased, subject to the direction herein mentioned
below." The deed provided, inter alia, that if one or two of
the donees died without leaving a descendant, their shares
should devolve on the survivor ; and that if all three donees
died without leaving any descendants, the property should pa~s
to another br ch of the family. There was no prohibition
, that the deed created a valid fidei commissnm, and
as not open to the donees to alienate the property (c).
)
(a} Wirasiogbe v. Rubeyat Umma, 16 N.L.R. 369,
(b) Dias v. Jansen, 16 N.L.R, 502,
(c) Perera v. Perew, 20 N.L,R. 463,
.
CASES CREATlNG A
II
FIDE! COMMISSUM." 313
In Dassanayake v. Tillekeratne (a), T. left his property
by last will to his wife for life, and the will further provided :
" After her demise all my property to devolve and descend
unto my said children,, share and share alike, to be held and
possessed by them, their heirs and assigns, for ever, suhjaot to
the reservations and restrictions hereinafter mentioned, that is
to say, I will and direct that neither my said wife, nor children,
nor any of them whomsoever, nor their nor any of their heirs
or assigns, shall nor may on any account whatsoever alienate,
transfer, &o., the following premises, viz., all my lands situated
at Ratnapura, which property I will and direct only to be
enjoyed and held by my wife and children during their natural
lives, and at their respective deaths to devolve unencumber-
ed unto the survivor or survivors of them, and unto their
. respeotive heirs and assigns in succession for ever."
Shaw, J. says a large number of old cases ware cited to
us on behalf of the appellant, in which it was held that the
use of the words "heirs," "h eirs and assigns," and " heirs,
administrators, executor-a, and assigns " in certain clauses of a
will or deed must be held to prevent the construction that a
Mei commissum was intended.
I do not think that these cases, in which great emphasis
was given to the form of particular words, and to tbe particu-
lar clause of the deed in which such words occur, are of autho-
rity at the present day. The trend of the more recent deci-
sions, of which I will mention Wijetunga v. Wijetunga (b),
Coudert v. Don Elias (c), Silva v. Silva (d), Guneratne v.
Perera (e) and Mirando v. Coudert (f), is to give effect to .the
true intention of.the donor whenever it can b",gathered from
the language used, and not, as remarked by 1~ reira, J. i.n
Wijetunga v. Wijetunga (b), to embark on a vd) ge of dis-
covery to search for a possible interpretation that di'h ats this
intention. As said hy Wood Renton, C. J. in Gune\ tne v.
Perera (e), "the recent oases have laid down the rule th~ the
(a) 20 N.L.R. 89, (d) (1914) 18 N.L.R. 174,
(b) \19i2) 15 N.L:R. 493, (e) (1915) 1 0.W.R, 24.
(c) (1914) 17 N.L.R. 1119, (f) (1916) 19 N.L.R. 90.
40

314 CH. XIV;-FIDEI COMMISSUM.
words II heirs, executors, administrators and assigns" in a
deed alleged to create a fidei commissum may be nothing rnore
than a means of vesting in the fiduciary the plena proprietrM
as a preliminary to imposing a fidei commissum upon pro-
perty."
In the present case I feel no doubt of the intention of the
testator from the language used, namely, to create a tidei
commissum in favour of his children, and he clearly intended,
as indeed he said in his will, that at tbe respective deaths of
his wife and children the property was to pass unencumbered
to tbe survivor or survivors of them.
In Pinnawardene v. Fernando (a) by a joint will the
testators devised their landed property to their seven children
and three others severally, and provided as follows : -
" In this manner, after our death, they shall take charge
of their said respective properties as we have ordained, and
they, their children, grand-children, heirs and representatives
descending from them shall possess the same ; but they shall
not sell or alienate the said properties in any manner, or cause
the same to be subject to any mortgage or security. Should
such an act be committed, the right of the persqn who sells or
alienates the lands or land .................. shall cease. and it is
ordained that the same shall go over to the Crown.''
Held, that the will created a valid -/id6i commissum in
favour of the children, grand-children and remoter d~scendants
of the devisees.
De Sampayo, J, says-" Tbe District Judge has rightly
pointed out th Ji the trend of judicial opinion since -the date of
the decision Fernando v. Salgado (b) is ~ot to empbasiz&
such tecbn l phraseology a~ " heirs, executors, a,dministra-
tors and assigns," whenever the instrument as a whole-
clear intention to create a fi,dei commi ssum, and
suffi9.il nt language is used to express it. I meed only
in this connection to Dassanayaka v. Tillek eratne (c),
(a) 21 N. L. R . 65 67 . le) {1917) 20 N, Lo, R. 89
(b) (1911) 14 N. L, R. 310.
II
CASES CREATING NO FIDEi COMMISSUM." 315<
in which the will was almost in similar terms to the will
now in question. As regards the rule of construction,.
Shaw, J. said in Mirando v. Ooudert (a) that the documents
must be looked at as a whole, and that if the intention to-
c:eate a fidei commissum was clear, eff~- sho;i"a be given- to it',
tE_';)U@_the_re might be in the dooument expressions inoonsist~nt 0
with a fi,dei commis.~um. This is i~ , -;,cc~rdance with t he
. principle enunciated i~ such English cases as Arundell v.
Arundell (b), where it is laid down that a Court of Equity looks-
to the general intent, although a particular expression in the-
deed may be inconsistent with it. This is so more especially
in the case of wills. In testo,mentis benignir interpretatio
facienda est. In re Haggarth, Wickham v. Haggarth (c), it
is stated that the intention is competent, not only to fix the
sense of ambiguous words, but to control the sense even of
clear words, and to supply the place of express words in cases
of difficulty or ambiguity. In the present case there is no
question as to the intention of the testators to create a fi,dei
commissum in favour of the successive generations of their
children, a_nd I think that the word "representatives " may
eHher be disregarded as meaningless, or be taken as a mere
extension of the idea of succession conveyed by the previous.
words with which it is associated.
IX (b).-Cases creating no "Fidei Commissum."
~n Sethurapillai v. Nagainuttu (d), certain K. donated a
la.nd to bis two daughters providing that they should possess
and enjoy it as Taiwali Muthusam (i.e., inheritance from the-
mother's side) from generation to generation without in any
way ottying or mortgaging tba same. Held that the deed did
not create a valid fi,dei commissum as the persons , to be bene-
fited were not sufficiently designated. \
A gift to " children, their heirs, executors, adminis, ~tors
and assigns," with a mere prohibition
/a) (1916) 19 N. L. R. 90, (cl !1913) 2 Ch. 15.
(bl 1 Myi, & K. 316, (d) ll C. W. R. 309.

'-316 CH. XIV.-FIDEI COMMISSUM.
held not to create a nd1i commissum (a). But contrary view
is being held now by the Supreme Court (b).
X.-When is a Fidei Commissary bound .to give
any compensation ?
The fiduciary heir is entitled to recover from the fidei
commissarius compensati.on for monies spent for the perma-
nent preservation of buildings, or the restoration of those
which have been burnt down or have fallen in, and for the
payment of a debt of the inheritance or legacies and the like,
but not for every day repairs. He can deduct the amount of
that expenditure and those improvements, the deduction of
which has been allowed to the bona fide possessor and quit-
rent owner after the expiry of the tenure. He has moreover
not only the right of rention until such compensation is paid,
but also an action for the expenditure, and he is not bound to
allow, except in certain circumstances, fruits which have
been gathered, to be set off against expenditure and improve-
ments (c).
An agreement entered into with fiduciary owners to build
-on the property is not binding on the fi,dei commissaries and
they are not liable for compensation to the party who builds
-the house under the agreement (d).
XI.-Can " Fidei Commissum ;, property be
partitioned?
In Ram. (1877) 304, Supreme Court held that it cannot be
,partitioned but now it is settled law that it can be partitioned.
(a) Hom sjee _v. Cassim, 2 N.L.R. 190; 7 S. 0, O. 135; Aysa Umma
v. NoordeP-', 6 N .L, R. 173; 8 N.L,R, 350; Da.ssanayake v, Da.ssanayake,
BN.L.B' 361: Silva. v. Silva, 18 N.L.R, 174.
(~ 17 N.L.R, 129,
(d) Mendia ti, Dilwood, 22 N.L,R. 115, See also the Privy Oounoil
udgment in De Livera v. Abeyasioghe, 19 N, L. R. 492 and of the
_/ :Supreme Court in 18 N, L. R . 57; Soys" v. Mobideen, 17 N,L.R. 279
(F,B.). ,
, '
:
CAN " FIDEi COMMISSUM " ...... PRESCRIBED. 317
A decree for partition of fidei commissum property even with-
out the rights of the fidei commissum being expressly reserved
does not destroy the fidei commis sum (a).
Where a land subject to a fidei commissum is sold under
a decree for sale in a partitio.n suit and the decree does not
direct it to be sold subject to such fidei commissum, the
purchaser at such sale will get an absolute title to the land free
from the fidei commissum which will, however, attach to _the.
p~($i!ile(b). -
Any one of several fiduciaries holding property, with right
of survivorship and subject to fidei commissum in favour of
their respective heirs, may transfer to a third party all his
rights as fiduciary and tbe transferee mn.y seek a liartition
of the common property among himself and the other fidu-
ciaries (c).
XII.-Can " Fidei Commissum" property be
prescribed?
Prescription does not begin to run in respect of fidei
commissary property which has been alienat,ed by the fiduciary
pending the fulfilment of the condition upon which the
property is to be restored, until tbe fulfilment of the condi-
tion (d) .
~- -
(a) Fernando v. Shewahram, 20 N. L. R. 27 ; Weerasekera v. arlioa,
16 N,L,R. 1. But see Fernando v, Fernando, 1 C,W,R. 46.
(b) The Govt. Agent, W. P. v, Alphonso, 1 (), W. R. ll20.
(cl Dassa.naika v. Tillekeratne, 4 C. W. R, 334, ~
(d) 1 Mass, 165; Voet 44. 3, 11; 36. 1. 64; 2 W. P, 320 ; Geddes v.
Viravy, 9 N.L,R. 126; Cassim v. Dingihamy, 9 N.L.RA57.

,y v d~no? or by some one duly authorised on his behalf is an
' -essential ingredient in the constitution of a valid donation, t he
CHAPTER XV.
DONATION.
!. - Definition.
A DONATION or gift is, properly_, the transferring the
property of a thing from one person to another, without a
valuable consideration_and is therefore denominated a voluntary
conveyance (a).
The effect of a valid donation is that the donee has an
action against the donor to put him into possession of the thing
.given (b).
Very frequently, indeed almost always, such gifts have
t heir origin in t he principle of recompense or gratitude fm:
former services. Sometimes they are made in contem plation
of death or of imminent danger, and they are t hen t E1rmed
-danatianes martis causa ; other wise they are. termed dana tianes
in ter vivas (c ).
R emuneratory donation s are not subject to t he laws which
operate in prejudice of donations (d).
A deed of donation conferring a present gift, i .e. , one
taking effect immediately on aue acceptance by the dooee, is
a donation inter vivas even though the possession of t he
,property dr. ated is postponed until the death of donor (e).
(a; 2 Or, 979,
V,D.L, 1. 15, 1 ; 2 W.P, 582,
(c) V.D.L. 1. 15. 1 ; 2 W.P. 528.
(d) H.T. 262,
/ (e) Silva v. SaroliehBmy, 5 Leader 3; 5 B,C,D, 56.
/
DEFINITION. 319
A donation is an agreement whereby a person without
being under an y obligation to do so gives to a nother with out
raising or stipulating anything in return ..... . acceptance by the
consent of both parties being required in donation as in all
other contracts (a).
The distinguishing mar k of a gift is the absence of valuable
consideration. The expression " gift " at the prese nt time
always implies a gratuitous transfer (b).
Valuable consideru.tion does not necessarily mean a money
-consideration, though in many cases capable of bei ng expressed
in terms of money value. The consideration of marriage is
regarded as" valuable" (bJ.
The mere agreement to give is not a gift, neither is it a
valid contract since there is no consideration for it; it is a
mere nudum pactum (c) .
There mu<;t be two parties to the transaction to make a
valid gift, and, until acceptance by the donee, t he gift is
revocable (c).
An infant can acc~pt a gift notwithstanding infancy, but
-he may repudiate the gift on coming of age. If the gift i!:!
subject to a condition tl..ie infan t may not re tain the gift with -
out complying with th e condition (d).
A voluntary conveyance does not differ in point of form
from a conveyance for value in any material respect, except as
-regards the absence of consider ation (e).
A donation mortis causa is only of force after the death
,of the donor, it reverting to him if he lives. I li'requires no
(a) Massdrop Institutes of Cape L aw, Vol. III, pp. 89 aud 9 ~ iokra-
: ;.
,ma.einghe v. Wijetunge, 16 N ,L.R. 413.
(b) 6 Enoy, 120. ,
(cl 6 Ency, 121.
(d) 6 Ency, 122.
(e) 6 Ency. 124,

320 CH. XV.-DONATION.
acceptance, being similar to a legacy, and may always b&
revoked. It does not pass without delivery of actual poRses-
sion but a legacy does (a).
No donation inter vivas is complete until accepted by th&
donee; but it is immaterial whether this acceptance be signified
by the deed itself, or by letter, or in any other way, provided
the intention clearly appears (b).
An instrument whereby property. is donated to take effect,
after the donor's lifetime and whereby such donation could
be revoked during his lifetime, was held to take effect only as a
will (c) ; but where there was no such reservation of revoking
such a donation, it was held to be a d9nation inter vivas and
not a testamentary disposal (d).
In donations inter vivas which are to take effect after
the death of the donor the gift is a present one taking effect
on due acceptance by the rlonee, but the possession
of the thing donated is postponed till the death of the
donor (e).
Where an instrumerot purports to make over by way of
gift but reserves the right of life interest to the grantor and
the right to revoke in case of misconduct on the part of the,
grantees, and where there is acceptance in the face of the
deed, and the deed is duly stamped and registered, held; that
the instrument is a deed of donation and not a will (f).
The gift of property ad pios usus is not prohibited. Where
such gift is made by deed to a particular church, the priest.
managing such church and its property is entitled to sue on
such d~d (g).
(al H . T. l'l5.
(b) V. .L. 1. 15. 1; l ~Vand D.C. 168; 2 W.P, 528,
(cl 1 ity v. Jaocova, 2 A.C,R, 45,
(d) duma. Lebbe v. Meydeen Bawl, 2 A.C.R, 133 and 10 N.L,R .
47 .
l:
) Uduma. Lebbe v. Meydeen Bawll, 1 L.L.R, 40; 10 N.L,R. 347,
ea Bioirisllmy v, Nonie, 3 Bal. 24. . (d)
} Carolis v, Da.ritb, 1 L,L.R, 57,
~ ) Godinho v Koning, Ram , (1843-25) 131!; Leg, Mis, (1846-51!) 21.
,/
DONATION AND ITS SCOPE, 321
II.-Donation and its Scope.
A giit by a man to a woman to induce her to live in
illicit intercourse with him or to continue to live in such inter-
course, she being otherwise desirous to break it off, would be a
contract extirpi caUSll; and a judge would refuse the support of
the law to it fa).
A donation made to a meretrix under the influence
of an inhanesta affectio is not prohibited by law (a).
By the Tamil customary law a married m an could
not give away more than half the lands acquired during
the marriage (a).
A gift of all bis property to bis wife by a person married
after Ord. No. 15 of 1876 is valid although such a deed of
gift is liable to be set aside under the Roman-D~tch Law ID
which there is community of goods between spouses (b).
A wife who lives apart from her husband by mutual con
sent, cannot validly alienate property belonging to the ma,riage
community (c) .
By the Roman-Dutch Law, a parent cannot legally make
a donation to his minor child who is still in potestate (d) ; but
in Franscisco v. Costa (e) it was held that a gift to a son is
not invalid by reason of the donee being the infant son of the
donors.
Under the Roman-Dutch Law, acts of munificence are
valid though prompt.ad by an inhonesta affectio or circa mere-
trices equally with acts of munificence inspired by an hanesta
afjectio as erga bene merentes amicas; but the Civil LiJ,w, in
order to protect creditors, has in effect provided that alienation
by gift may be set aside when a man gives away the whole
6
(a) Parasa.tty v, Setbupillai, 3 N.L.R. 271.
(bl Louisbamy v, Cornelis de Silva, 3 Ba.I. 43,
(c) Silva v. Shaik Ali, 1 N. L, R. 228,
Sedam para v. Ayenpillai, Ra.m., (1843-55), p, 114; Thom. 335 ,
(el 8 S, C, C, 189,
41
 322 CH. xv.--DONATION.
or a considerable part of his estate knowing that be is insol-
vent, and that he is diminishing the substance out of which
his debts might be paid._
He who acts thus will be considered to have intended the
natural results of his acts which is the defrauding of his
creditors. And in such a case fraud on the part of the donor
is sufficient to invalidate the donation, though the donee bad
no knowledge of the fraud or of the circumstances wh,ence it is
inferred.
But neither a donation nor a sale would be considered
fraudulent if the donor or vendor were solvent at the time be
made it, and if their dispositioa has caused him to cease to be
'so (a).
A deed of gift, not being a deed for valuable considera-
tion, does not by reason of prior registration, obtain priority
over a deed previ'ously executed (b).
Where a donor gives the wlrole of an estate, he having
but a share, his gift is valid to the extent of bis share and tbe
heirs are shut out; but if be gives less than his share tho heirs
take the surplus (c).
S. being owner of a share in a certain land gifted the
whole land to P. S. acquired title to the remainder soon after-
wards. Held, that P. was entitled to judgment for whatever
S. owned at the date of the gift, but tbat, the conveyance
being merely a voluntary one, the title subsequently acquired
by S. did not pass to P. under the deed of gift (d}.
A deed of gift made in consideration of past cohabitation
and in contemplation of future cohabitation is not invalid for
that reason (e).
~ (a) Karuppen v. Mylupody, 3 N. L. R, 274 ; Ram., (1872-76), p, 69,
/ See also Palaniappa Chetty i,, Mortier, 7 8. C. C. 108; 1 Thom. 345 and
Aust. 3. ' . .
) Hamidu v. Rahimuttu Natohia, 2 C. L. R . 32 ; Fernando v,
seka, 1 C, L. R, 82.
(c) Morg. Dig, 153 ; 2 Thom. 336,
(d) Mathes v, Punch Hamy, Wendt 12'.l,
(e) Sedris Appuv, Bantakehamy, 13 N, L. R , 237.
..
I
DONATION AND ITS SCOPE. 323
Adulterine bastards can take under a gift from the
father (a).
The Roman-Dutch Law allows a husband married in
community of property to make gifts of their community pro-
perty to third parties unless it was meant to defraud her (b ).
A donation or a bequest of any land to any Buddhist
temple, wihare or dewalle without a license from the Governor
is not lawful. Such property shall not be considered the pro-
perty of the temple but shall be given to the nearest heirs (c).
Where a husband married in community of property
donated to his wife, after Ord. No. 15 of 1876 i, the exact half
of all the specified community of properties belonging to me
exclusive of the other half belonging to my ' wife by law," it
was held that the husband had conveyed to his wife all his
interests in the community property, although his interest was
inacc4rately described as undivided half (d).
. ~
Donation~ between Muhammadans are regulated by the
Muhammadan Law.
According to Muhammadan Law, a donation whether
intended to take effect at one~ or at some future period, is
invalid, unless there is delivery of the thing gifted.
The conditions required by Muhammadan Law to consti-
tute a valid donation are (1) a manifestation of the wish to
give 'on the part of the donor, (2) the acceptance of the donee,
either impliedly or expressly, and (3) the taking possession of
the subject-matter of the gift by the donee, either actually or
constructively.
No acceptance is necessary in the case of a gift by a father
to his minor child.
Actual possession .is not necessary, construction delivery
is sufficient (e).
- - - - - - - - - - - - -~
(a) Jayashamy v. Abbeysuria, 15 N, L, R, 348,
.lb) Weerasuriya v, Weerasuriya, 13 N, L. R. 376.
(c) Proolama.tion of 18th Sept. 1819,
(d) Umaiattai v. Thamotharampiltai, 14 N, L. R. 26,
(e) Affeluden v. Periatamby, 14 N.L.R. 295
 CH. XV.-DONATION .
324
III,----;-Acceptance.
The gift should be accepted by the donee in the lifetima,
of the donor. Its irrevocability depen ds on the acceptance ,.
which may take place irf'person, by ~ ocuration or b~ letter (a) .
~
The acceptance the face gj-the deed is not. necessary.
Acceptance will be presumed when there are ~ircumstances to
justify such presumption. The law favours the acceptance of
gifts in tha ease of minors (b).
If a deed of gift is all that can be i..ccepted, it.s production
by the donee is sufficient proof of acceptance (c).
Under the Roman-Dutch Law the natural guardian of a
minor was allowed to accept a gift on behalf of the latter (d) .
A brother who is a maj or can accept a donation, on behalf
of' minor brothers (e) .
Grand parents and parents of a min or donee when not also
the donors, may accept-it for the minor donees (/) .
A father making a donation cannot accept it on bis child's
behalf (g) .
A donor's nephew is not a competent person to accept.
the gift'. on behalf of the donor's children (h).
Acceptance of a donation, on behalf of minors by an uncle,.
during the lifetime of the.ir mother, is not valid. Where the
donation is bad for want of proper acceptance, a claim by right
of inheritance to the property so donated is permissible (i).
(a) H. T. 263,
(b} Govt, Agent, 8, P, v. Carolis, 2 N.L.R, 72 ; Lokuhamy v. Juri11n ,
Ram ., (1876) 215, '
(c) Til11karatne v. Tennekoon, Ram,, (1843-55), p. 155; 2 Thom. 340 ;
De Bi a v, Ondatjee, 1 B. C, R. 19.
} Voet 39. 5. 12 ; 2 W, P, 529.
(e) Lewishamy v, Comelis de Silva , 3 Bal, 43,
(I} Femando_v. Weerakoon, 6 N , L. R, 21\l,
(g} Wellappll v, Mudalihami, 61'1, L, R, 233.
(h) Fernando v. C11nangara 1 3 N. L, R. 6,
(i} Goonaw11rdene V, Bastian Appu, 5 Tam. 75 ,
...
ACCEPTANCE. 325
Acceptance by a stranger on behalf of the minor is not
a good acceptance (a).
Thar~ i~ not the broad proposition that a person under the
:ge of 21_ 1s l~c~pable of validly accepting a donation. It is
,rue_a mmor 1s mcapable of validly binding himself to his own
detriment
. by onerous
contract
. ' but he can a lways accept an
unequivocal benefit, wh10h a donation essentially is (b).
The acceptance by a wi fe without being joined by her
husband of a donation for which there is valid ' ' .
e.g., marriage, is .a valid a.cceptance (c) .
. rt>. In case of a_donation whereby the property gifted is made
~ ~ect to ~ fidei ~omm_i_ssum, the donation must be accepted
Ybe fidei commissarii to render it effectual i h. f (d)
and by th fid . . n 1s avour
() e uclary donee tq render it effectual in his
1avour e. ,
, It is not ess en t"ia I ""h at the acceptance of a deed ~f gift
~bould appear _on the face of it, but such acceptance may be
.mferred from circumstances.
Possession by th~ d~nee of the property donated leads
to the inevitable inference that the deed of donation was
,accepted (j ).
It ~s cornpetenb for a minor to accept a donation in his
favour masmuch as he is benefited ther~by (g).
In the case of a donation to a minor _the law requires
. a
pr~sent acceptance by the natural or leg~l guardian of the
mmor. and n_ot an acceptance at some future indefinite time by
the mmor himself, after ,he has attained majority.
Where a deed of gift executed in favour of a minor by his
fa ther was accepted by the uncle of the minor on behalf of the
(a) Tissera v. Tissera, 2 L. L. R. 101.
(b) Bafahamy v. Marunahamy, 2 L. L. R. 16,
(c) Punohibamy v . Arnolis, 4 Ta.rob. 87,
(dJ De Silva v. Thomis Appu, 7 N.L.R, 123.
(e) Voet 39. 5, 3 ; 2 W. P. 532.
(/) Benanayake v. Dissenayake, l\l N,L,R, I.
(g) Babaihamy v, Maroinahamy, 11 N,L,R. 232,

326 CH. XV.-DONATION . .
minor." Held that such acceptance, was invalid, the uncle no!;.
being the natural guardian of the mino r (a) .
A deed of gift to a minor may. be accepted by the minor
himself o~ through any agent recognised by him . for that
purpose. Tbe future husband of a minor daughter is entitled
to act as an agent in that behalf (b).
Where the deed of donation reserved the life interest in
favour of one of the donors, held, that jt was open to the
I need (a) ,
done~s to accent tli'e gift after the death of the life owner c).
. . '
Acceptance may be manifested in any w~y which assent
may be given or indicated. The question of acceptance is a
question of fact and each case has to be determined according
to its own circumstances (d).
Delivery of a deed is not essential for the, validity of a
donation under our law (e), though it would be useful as a test
as to the evjoence of acceptance (f) .
A donation may be accepted at any time during the liie-
time of the donor, and, where its fulfilment is postponed until
after the donor's death , it may even be accepted after t he
donor's death .
Acceptance may be pre~unied ""from either the physical
acceptance of a deed of donation delivered by t he donee or by
[ the sale of the land dqnated by the donae.
Pereira, J.-In my opinion t he acceptance of a donation of
land must be notarially attested as much as the making of th e
donation and the acceptance by the do~ee himsel f or by some
person competent in law to represent the donee fo1 t he purpose
of entering into such contracts. But in view of the long series
of decisions it will be inexpedient to question their correctness
at this time of day (e),
(a) Silva v. Silva~ 11 N,L,R, 161.
(b) Hendrick v. Sudritaratoe, (191 2J 3 C,A.C. 80 ,
(c) Tissem v, Tissera, ll B, C, D, 36 ; ll Leader 101.
(d) Bindua v. Untty, 13 N.L,R, 259
{e) Wikramasinghe v. Wij etuoge, 16 N. L . R. 413 .
(f) Casi Lebbe Marioar v. Charles, (1913) ll Matara Cases , 137 ,
~
.. .
REVO~ TION OF DONATIONS. 32_7
. IV.-R~vocation ~of Donations.
A donation by its nature ls irre_vocable. This irrevoeability
is however subject to some exceptions (1) en the ground of
gross iE,Sr1J,tJt!!_d!3 or rpjsl;>~4avioijr, as for instab ce ' when the
donee attempts-:- the life of the donor or strikes him or attempts
to ruin bis estate. Causes of equa or greater weight are also
held to have the sa Pne force ; amon gst others, the neglect of th~
donee, if he ha.s the means, to maint ain the dono r in bis utmost
(2) When the condition on which the deed was given is
broken (b). "
(3) A deed of gift with a power of revocation may be
revoked by a subsequent deed (c),
(4) When the donor of a gift of great value ri,fterwards ha s
children (d) ,
(5) W nen the don'ation is of such magnitude . that the
children of the donor are thereby prejudiced in their legitimate
portion . In this case, however, the gitti is or}}y held bad as iar
as regards the di fference . When t bA don ation is mortis causa.
it may at all times be reclaimed during th~ life ~f the donor (d ).
Even'Tgm to take effect after a lifet ime ~ f the donor is irre-
voc able {e).
A donee after t he gift ...fiYStem atim\ll y u sed foul and
contumelious abuse and reproaches to the donor which made it
impossible for her ,!LSa decent and respectable woman to remain
in t he house with him. The donor having, in these circum-
stances, left t he house: instituted 11.n action to r ~over posses-
sion ; and it was held t bab t he donor was entitled to ~ the
gift in consequence of the use towards her of atrocious and
contumelious reproaches by t be donee (f).
(a) Grot 3. 2, 17 ; Vand . D : C, .] 44 ; 2 W . P ..533 ,
(b) Ram ., (187ll-76), p. 32 ; Ram., (1877), p, 314; Vand. 14!1 .
(c/ Govt. Agent, W . P. v. P~J,rn i,i,ppacbeUy et al. , 2 L L . R 18.
(d) V. D. L, 1. 15. 1; ll W. P. 533 .
(e) Sinnir,.h v. Valli pillai, 4 N ,L R. 288.
(f) Sinsoni v . F0enander, Ram,, (1862-76),' p. 32; Vand . 144 .

328 CH, XV.-DONATION,
A husband in 1878 on the occasion of his separation from
his wife gined to his wife and daughter a land for their
maintenance; after wife's death the daughter in 1886 conveyed
the land to a third party. The father soon after revoked the
deed of 1878. Held, that the deed was not revocable as it was
not the usual Kandya'l deed of gift ; it was a dead of settlement
for consideration (a).
A deed of gift, which under the E;andyan Law is revocable
without any cause being assigned, is revoked by the fact that
the donor executed a later and absolutely inconsistent deed.
An express revocation it1 unnecessary (b).
A donation made by a parson in favour of his daughtar-in-
law in contemplation of her marriage with the donor's son is
revocable under the Kandyan Law (c). It will however be
inequitable to allow a revocation of such a donation (d).
A Kandyan deed of gift made for past services rendered
by the donee to the donor and co ntaining a clause renouncing
the right of revocation under Kandyan L'c!,W is good (e). . tion to his son without the decree of a Court (/).
A Kandyan deed of gift containing a clause renouncing
the right of revocation is revocable if the donee fails to
observe the stipulations, subject to which the gm was made (j) . .
A Kandyan gift in consideration of filial service and con-
taining the usual position against revocation is revocable (g).
A Kandyan dead of gift made in consideration of past
services rendered by the donee to the donor ~and containing a
clause renouncing the right 'of revocation is irrevocable (h).
(a) Punohirala v. Punohirala, l Bal. 190.
(b) Teldena v, Teldena, 3 Bal, 133.
(o) Dingin Menika v, Dingin Menika, 9 NL.R. 131.
(d) Ran Menika v. Benda Lekam, 15 N.L.R, 407.
(e) Tikiri Kuma.rihamy v. Silva, 9 N.L.R. 202; Kiri Menika. v.
Ca bala, .3 Lor. 76, and Ileneza v, Rana, 1 S .C.C. 47 were followed,
(fl Banda v. Hetuhamy, 5 Leader 100; 15 N.L,R. 193,
(g) Keri Menika v . Mudalihamy, 6 S.C.D. 82; 6 Leader, 52.
(h) Tfkkiri Kumarihamy v. De Silva, 12 N,L.R, 74; 2 Leader, 127,
See also Wm, Dovitayawa. v. Banda, 1 Cur. L. R. 259,
THE FORMAL PARTS OF A DONATION DEED. 329
,..
A Kandyan donation dead for consideration in part money
and service in future had no clause renouncing the right of
revocation. Held that the dead was revocable and the donee
. was entitled to get back the money paid (a).
Where donor reserved to himself the right to revoke the
gift for misconduct on the part of the donee and where he
executed a deed of revocation without alleging any such
misconduct. Held tlrnt the cleed of revocation was inoperative
as no misconduct was alleged therein (b).
A deed of gift cannot be revoked by a conveyance-a
-d ecree of Court is necessary {c). -
One of two spouses married in community has no power
t o revoka a gift made by both of them, where the right of revo-
cation is reserved to both (d).
It is lawful for the owner in a dead of gift to reserve to
hirnselfthe_powar to revoke the gift and a revocation made in
the exercise of such power is valid (e).
It is competent to a Mohamedan father to revoke a dona-
V.-The Formal Parts of a Donation Deed.
The formal parts of a donation dead are mostly similar to
those of a purchase deed.
They are: (1) the premises, (2) the habendum and the
tenendum, (3) the cove~ants for title, (4) the acceptance and
(5) the testimonium clause.
Though the deed of donation is a deed poll, both the parties,
,namely, the donor and donee usually sign the dead. The
donee signs for the purpose of the acceptance . Acceptance
being provable otherwise, the signature of the donee is not
-essential ; but it is safer to get his signature.
(a) Mudyanse v. Banda, 16 N .L.R. 53.
(b) Carolis V, Don Daith, 11 N.L.R, 17,
(c) Kanapatipillai '!1, Kaane,ohohi, 4 8.0.D, 47; 13 N.L.R. 166.
(d) Fonseka v. Fonseka, 5 Leader, 116.
(e) G. A.; W. P. v. Palaniappa Cbetty, 11 N.L.R. 151; 4 A,C.R. 1.
{f) Cader v, Pitoha, (1916) 19 N.L.R. 246; 3 C. W.R. 269,

330 CH. xv.-DONATION.
The consideration for a deed of donation is usually fhe
natural love and affection which the donor beareth unto the-
donee. In England deeds of gift of real property seem to be
very rare. Even in such deeds the following words are com-
mon :-" and also for and in _consideration of tho sum of
10 shillings to him the said R.S. in hand also paid by the said
E.T." or ' and also for the better maintenance, support, liveli-
hood and preforment of him the said E.T."(a).
The operative words used in a deed of donation are as
follows:-" give, grant, assign, set over and assure unto him
the said E.T. a~- ;;_- gift~ r d~~~tion - int~rmvo~solute -;~d .
ijrevocable-all that house, &c." . - ' A donatio mortis causa may take place when a person in
Then follow the words of limitation, the parcels, the general
words, the estate clause, and the exception, and reservations,
the habendum and tenendum and the covenants for title which
may be said to be word for word same as Jn a purchase deed ..
See pages 149 to 153 above.
No particular words are required to express acceptance. It
is usually express;d as follows:-" And I the said E.T. (donee)
do thankfully and gratefully accept the said donation under
and subject to the conditions, reserva;tions and provisoes
hereinbefore ,Jllentioned" (b).
Deeds of gift are commonly expressed to be " in consid,e
II
ration of natural love and affection ," or of esteem and regard"
and the like (c).
Examples of Operative Words and Clauses.
11
I-- . of--in consideration of the natural love and'
affection hereby assign unto my daughter--all my household
furniture " (d).
_" I -
-&c. hereby grant and convoy unto--all those
freehold heroditaments" (e).
(a) Jones' Conveyancer's assistant, 7th Ed., 283 and 288,
(b) H.T. 272, . (cl
(c) 6 Eocy. i20.
. (dJ 6 Ency, 129.
(e) 6 Ency, 133 .
DONATIO MORTIS CAUSA. 331
" I--of--in consideration of my esteem and regard
for C.D., hereby assign unto C. D. All the goodwill of me in
the said trade or business of---and all the plant, trade fixtures ,
machinery, &c." (a).
VI.-Donatio :Mortis Causa.
To constitute a donatio mortis causa the donor should '
e~ess !~_cle~: _words and declare that he makes the gift
thinking or suspecting that he is about to die. The mere
;;;ention of death is not sufficient, nor the mere fact that the
gift is made by a dying person. Where there is the least
doubt, a gift is considered inter vivas and not mortis ca1isa (b) .
contemplation of death actually delivers something .to another
or beq1tea,t hs it to him without delivery (c).
Such donations have in their effect many things in
common with legacies bequeathed by last will. They may be
revoked during life and become void ipso iure in case the
acceptor dies before the donor, even if delivery has been
made (d).
Persons who like miriors and others may not alienate
their property during life may not make such donations .
These donations wheJ;J. lawfully made by lega1ly competent
persons .are valid, even though the donor's inheritance is not
adiated (cl.
When any one on the point of death makes a donation to
another without delivery, and afterwards recovers , such dona-
tion is considered as tacitly revoked (c) .
A donatio mortis causa becomes void i! the donor~.q_rvived
the danger he ~pprohended, or<:'~revoked it, or if th JDdonee
should die before the donor (e).
(a) 6 E~o:l'.. 132 and 139,
(b) Cena. For, 1, 4, 12. 25; 2 W,P, 524,
Grot, 3. 2. 23; 2 W,P : 523 and 524 .
(d) H, T, 272,
(e) H, T, 36,
332 CH. XV.-DONATION.
In English Law, the donation mortis causa is conditional
on the donor'.s dying from his illness. In Dutch Law, where
there bas been no delivery, th9 donation is ipso facto revoked
by the recovery of the donor. Wh&e there bas been delivery,
the donation is only revocable. It lapses when the donee
predeceases the donor (a).
A donatio mortis causa is under the R')man-Du~ch Law
valid between husband and wife (b).
The essential requisites of a donati~ m~rtis causa are :
(1) That it must be made with the view of meeting
the case of death, and
(2) Take effect only if the donor's death is the first to
occur.
We have stated above that one of these conditions, or
requisites, of a donation martis causa was with . the view of
meeting the case of death. This means in the case of a man
going to war that he runs the risk of being killed in battle ;
but it is equally a good donation and has the same effect in its
consequences, if a man is at home, quite well and is in no danger
whatever, or if he is dangerously ill and anticipates death.
It takes effect only if the donor dies ; the donor may at any
time recall the gift, and the gift is effectual if the donee dies
before the donor. It is not a gifb, whic~ in case of the donefl's
.predeceasing the donor, passes to his heir, as in the case of
" inter vivos " (c) ,
Any person who can make a testament can make a
donatio mortis causa (d).
In the case of Brink's Trustees v. Michu (e), in which
a donation was given on condition that the donor was
to retain possession of it during his lifetime, and that only
(a) Mor. Eng. and R.D. L,w, 104; 2 W.P. 5:H.
(bJ Cens, For. 4. 12. 24; 2 W,P, 524.
{c) 2 H. C. C. 39; 6 H, C. C. 79; Huber. H. Regts. 1, p. !B5, n.
12 and 21 ; Wassenaar, Not. Ambt, Vol. 2, Chap. J.8; Bees, 190-192 ;
rctius, 3, 2. 10 and 22 ; Van der Keessel, Thee. 100 and 49J,
(d) V. d , Keessel, Thes. 493,
(e) 1 R, 209.
FORM OF A DONATION INTER VIVOS. 33S
after his death it should take effect, Watermeyer, J. said
that " such a donation is ' not valid as against creditors.
Where a donation inter vivas haB been given and accepted,
it is irrevocable, but if there was not a full and complete
acceptance, the act is imperfect. Respecting the securities
which had been endorsed over to the insolvent, I bold that,
to make the transaction complete, there must have been an
actual delivery of the goods. In the present case the property
was in Brink's possession."
Thus there must be an acceptance by the donee or by any
one for him of a donation to be given to him even after the
donor's death (a).
If a person has made several gifts mortis causa, and there
is not sufficient in his estate to pay all donees in full, then
there is no question of a preference of the one over the other by
reason of a gift or gifts being earlier in date ; but all must
make proportionate deductions and receivepro rata (Wassenaar,
Not. Ambt. Chap. 18, Sec. 190) (b).
A donatio mortis causa, 'though it involves a transfer of
proprietary rights, does not fall within the scope of a book
on conveyancing, since no document is required for its
validity (c).
VII.-Fidei Commissum .
See last Chapter.
Form of a Donation Inter Vivos.
Stamp No. Prior Registration.
To all to whom these presents shall come I, A. B. of--
send greeting.
Whereas under and by virtue of a donation deed dated--
and attested by--Notary Public under No.--I, the said.
A. B., am the owner and proprietor and am seized and possessed,
o.f all that house and premises, &c. [description of parcels],
(a) C, 8. 57. 4, (3Jl; (b) Van Zyl., pp, 168-170, (c) Gibson, 4 .

334 CH. XV.-DONATION.
And whereas I am desirous of donating the said hou~e
and premises to my sou C. D. of--subject to a right of life
interest in my favour,
And whereas the said C. D. is willing to accept the said
donation subject to the life interest in my favour,
Now know ye and these presents witness that I, the said
A. B. of---for and in consideration of the natural love and
affection which I have and bear unto my said son C. D. of
--and for diverse other caus~s and consierations me here-
unto moving, do hereby give, grant, convey, make over and
confirm unto the said C. D., bis heirs, executors, administrators
and assigns aa a gift of donation inter vivos a;bsolute and irre
vocable all the said house and premises, &c. [parcels] of the
value of Rs.--and all my estate, right, title, interest, property,
claim and demand whatsoever from, in, out of and upon the
said premises, provided however that I hereby reserve to
mvself the right of enjoying the rent, issues and profits of the
said house and premises during my life. To have and to bold
the said house and premises, together with all rights, ease-
ments, privileges, appurtenances thereunto belonging o~ used
or enjoyed therewith or reputed or known as pairt, parcel or
member thereof, unto him th~ said C. D., his heirs, executors,
- admiuistrators and assigns for ever subject however to the
right of life interest reserved as aforesaid in favour of me the
said A. B. the granter hereof.
And I, the said A. B., do berebw for myself, my heirs,
executors and administrators covenant with the said CJ. D. and
his aforewritten that the sa.id house and premises and every
pa.rt thereof hereby conveyed and donated are and is free from
all encumbrances wha.tsoever ma.de or suffered by me the said
A. B. that I have good right to grant, dona.ta and convey the
said premises in manner aforesaid, and that it is lawful for tbe
said C. D., his heirs, executors, administrators and alssigns at
all times after my life quietly to enter into, hold and enjoy
the said premises, without any eviction or interruption by any
, person claiming through or in irast for me and tha.t I and my
;JJ aforewritten shall and will always warrant and defend the
,;? said premises and every part thereof unto the said C.D., his
DONATION MORTIS CAUSA. 335
-heirs, executors, administrators and assigns against any person
or persons whomsoever, and I, the said A. B., and my afore-
written and every person having or claiming any estate, right,
title or interest in the said premises or any part thereof from,
under or in trust for me the said A. B. shall and will from time
to time at all times hereafter at the request and cost of the
said C. D. or his aforewritten do and execute or cause to be
done or executed all such acts, deeds and things whatsoever
for further and more perfectly asauring the said premises and
-every pa.rt thereof unto the said C. D. and bis aforewritten in
manner aforesaid as shall or may be reasonably required.
And know all men by these presents that I, the eaid C.D .,
do hereby thankfully accei.-;t this gift or donation subject to
the right of life interest hereby reserved in fava'ur of my
father tbe said A. B,
In witness whereof, we, tbe said A. B.. and C. D. have
hereunto _a nd to two others of the same tenor and date as these
,presents set our bands a.t Colombo this twenty-fourth day of
.June one thousand 'nine hundred and nine.
Signed in the ) A. B. (Donor).
presence of us f C. D. (Donee).
E. F. (witness). S. K.,
G. H. (witness). Notary Pitblic.
[For attestation, &o., S_!le pp, 39 and 40 above.]
Donation Mortis Causa.
(Simple Form).
Know all men by these presents that I, A. B. of--, being
.about to proceed to South America in tha ship "Flyer," and
contemplating the perils of the voyage, and the probability of
my death, I, the sa.id A. B. do hereby give and grant as a
donatio mortis causa, unto and on behalf of C. D, of--certain
- - , as his sole and exclusive property, and to his absolute
-use and benefit, in case I, the said A. B., should not survive
the danger I apprehend, desiring that due effect may be given
hereto as a donatio mortis causa.
In witness whereof we the said A. B. and C. D., &c.
I
~
 . ,...,,.,,_
336 CH. XV.-DONATION.
Another form of a donation mor_tis causa (a).
1. I, the unaersignea, A. of--do hereby give to D. of
---the whole of my L ibrary consisting of ab~ut one thousand
voiumes together with the book-cases and book-shelves all at
present at my residence--- ; also my rifle and shot gun, ~nd
my two dogs ; also my gold repeater watch. All the foregomg
gifts to be taken possession of and to be used by him.
2. I also give him certain (one hundred) shares in the--
Bank ; also a certain mortgage bond passed in my favour
by E. for the sum of--pounds and bearing data the--
day of--. The two latter gifts to remain in the custody of
the said Bank where tbey are at present,
3. The whole of the gifts before mentioned are on the
condition that, if I should die while on my contemplated tour
round the world, be, D., shall be unconditionally entitled
to them all as bis own property ; but if I should return to this
Colony, then this gift shall thereby become void .
4. I, D: hereby accept the gifts on the condition named ..
Dated at--this--day of--192
Witnesses :
A.
E.--F.
D.
G.-H.
Gift to Crown.
(Govt. Form). ~
Whereas His Excellency the Governor, in exercise of the
powers vested in him by " The Land Acquisition Ordina~ce,
1876," as amended by Odinance No. 8 of 1914, has acquired
from A. B. for a public purpose, an allotment of land called
---situated in the village---in--in the District of
---Province, bounded on the North by &c., containing in
extent---.
And whereas the said A. B. , is desirous of making
a free gift of the said land to His . Majesty the King for
(a) Van. Zyl. 171.
GIFT OF LAND TO GOVERNMENT FOR A SCHOOL. 337
such public purpose, and to renounce all claim to pecuniary
compensation which otherwise would have been payable to
him, the said A. B. by His Majesty the King in respect of the
said land :
Now know ye that I, the said A. B. of---being
desirous of gifting unto His Majesty King George the Fifth,
His Heirs and Successors, the land and premises acquired as
aforesaid, do hereby renounce all claims to pecuniary compen-
sation in respect of the acquisition thereof.
.
(Signature) A. B.
Signed by the aforesaid A. B. in the presence of
B.H.,
G0vernment Agent.
Gift of Land to Government for a School.
This Indenture made this--day of--One thousand
nine hundred and seventeen between C. H. 0. of--
widow of--of--(hereinafter celled and referred to as
the Donor) of the one part and Sir John Anderson, Knight,
Grand Cross of the Most Distinguished Order of Saint
Michael and Saint George, Knight Commander of the Most
Honourable Order of the Bath, Governor and Commander-in-
Chief in and over the Islanq of Ceylon with the Dependencies
thereof acting for and on behalf of His Majesty the King
George the Fifth, His Heirs and Successors of the other
part.
Whereas the said Donor is under and by virtue of deed
No. 3870, dated the---day of---1906 attested by R. F .
De Sa.ram of Colombo, Notary Public and Deed No.----
dated---,day of--1917 and attested by Fred De Saram
of Colombo, Notary Public, seised and possessed of or otherwise
well . and sufficiently entitled to All that allotment of land
called and known as--situated in the villages U dagama or
Wake and Milletta in Gangaboda Pattu of the Siyane Korale
in the District of Colombo, Western Province, and in' the
Schedule hereto more fully' desc.dbed
43

338 CH. XV,-DONATION.
And whereas the Donor has cauood a part or portion of the
said allotment of land m ex.tent one acre and two roods to be
surveyed and separated as per Plan No.--dated--made
by---Surveyor and hereinafter more fully described.
And whereas the Donor is desirous of granting and con-
veying the said portion of land as a Gift to His Majesty King
George .t he Fifth for the purpose of erecting suitable buildings
thereon to be used for a School upon aud subject to the terms
and conditions hereinafter expressed and. contained.
Now this Indenture witnesseth that for the purpose of
effectuating her said desire and in consideration of tbe premises
the Donor doth hereby freely and voluntarily give, grant,
convey, assign, transfer, set over and assure unto His Majesty
King George the Fifth, His Heirs and Successors All that allot-
ment of land marked Lot C. in the aforesaid Plan of the 23rd
March 1915 (being a part or portion of the said land called--
fully described in the Schedule hereto) situated at Milletta in
Gangaboda Pattu of the Siyane Korale in the District of
Colombo, Western Province, bounded on the North-East,by--
on the South-East by--on the South-West and on the
North-West by---containing in extent one acre and two
roods according to the said Plan No.--together with
all rights, privileges, easements, servitudes and appurtenances
whatsoever to the said premises hereby assured or intended so
to be belonging or reputed or known as part and parcel thereof
and all the estate, right, title, interest, property, claim and
., demand whatsoever of the Donor in, to or upon or out of the
said premises hereby granted and assured or intended so to be.
To have and to hold the said premises hereby granted or
expressed or intended so to be with all and singular the rights,
easements and appurtenances thereunto belonging unto His
Majesty King George the Fifth, His Heirs and Successors for
ever subject however to the following conditions, that is to say:-
1. That suitable School buildings shall be erected on
the said portion of land hereby granted at the expense of
the Government of Ceylon at such cost and at such site and
l . according to such plan as may be approved of by the said Sir
GIFT OF LAND TO GOVERNMENT FOR A SCHOOL. 339
.J obn Anderson acting as aforesaid OJ' by the Officer adminis-
tering the said Island for the time being.
2. That the Government of Ceylon shall have the sole
use, control and management of the said portion of land hereby
granted and the rents, profits and income arising therefrom so
'long as the same is used as a site for the said School to be
'6rected as aforesaid.
3. The said portion of land or any part thereof or any
interest therein shall not be sold, alienated or encumbered
.for any purpose whatsoever.
Provided always and it is hereby expressly declared and
,agreed that in the event _of the said School being discontinued
or not maintained at the expense of the said Government or
any _other contingency arising whereby it shall become im-
possible to carry into effect the desire hereinbefore expressed
then and in such case the said premises hereby granted shall
forth with revert to and become the absolute property of the
Donor or her heirs and the said Government of Ceylon shall be
at liberty to remove the materials ~f any buildings erected
thereon.
And the Dono_r hereby covenants with His Majesty King
George the Fifth, His Heirs and Successors that the said pre-
mises h!lreby granted are free from all encumbrances and that
she has not executed or done or knowingly suffered or been
party o_r privy to any act, deed or thing whereby or by means
whereof the said hereditaments and premises or any part there-
of is or may .he impeached, charged, effeeted or encumbered in
title, estate or otherwise or whereby or by reason whereof the
Donor in anywise hindered from granting and conveying
the said hereditaments and premises or any party thereof in
,manner aforesaid.
And this Indenture further witnesseth that the said Sir
.John Anderson for and on behalf of His Majesty King George
the .Fif6h doth hereby accept the donation hereby granted
subject to the conditions hereinbefore mentioned and, set.
-forth.
.
340 CH. XV.-DONATION.
In witness whereof the parties hereto have set their hands
to these presents and to two others of the same tenor_ and
date at the places and on the days and dates set opposite to,
their respective signatures.
The Schedule abave referred to.
(Description of land).
Signed by the within-named C.H. 0.
at-this----day of----One.
thousand nine hundred and sev1;inteen in
C.H.O.
the presence of us : -
JOHN ANDERSON,
by Rubber Stamp.
1.-
. 2.-
s. K.,
N. P.
I certify that the signature of Sir John
-Anderson attached by means of a Stamp
under the provisions of Ordinances No. 1:1.
of 188 4 No. 30 of 1884 and No. 15 of 1915
1
bas been so attached in my pres_ence.
Private Secretary.
Kandy,--January 1918.
Gift of Land to a School.
To all to whom, &c.
Whereas under and by virtue of a Transfer deed dated--
and attested by V. S., N. P. under No.--and under and by
virtue of a. Donation deed dated--and attested by th~ same
Notary under No,--; I am seised and possessed of a p10ce of
land called--in extent l Lms. P. C. with the appurtenances
at Copay South and more fully _,_described hereinbelow. _
And whereas A Hindu Vernacular Girls' School under the
name and style of " Sarasvathividyasalai" was started by
A, N. myself the said S. K., C. V_. and M. S. all of Copay South.
GIFT OF LAND TO A SCHOOL. 341
And whereas at a meeting held on the 31st December
1912 convened by the said promoters the following gentlemen,
-viz :--were elected as Trustees of the said School with
power to add to their number.
And whereas it was also decideq that all the funds of the
:said School shall vest in the said trustees and shall be dealt
with by the majority of those present at any meeting convened
for the said purposes.
And whereas I am desirous of donating the said piece of
iJand called-- in extent l Lms. P. C. with the appurtenances
situated at Copay and more fully described hereinbelow unto
the said trustees for the purpose of putting up a building for
the use of the said " Sarasvathividyasalai " School calling
however the said M. S., the proprietor of the said School for he
purposes of his dealing with the Director of Education and
.subject to Mia condition that the title to the said land shall
-revert to me th9 said S. K. the moment the site of the said
School is changed or the moment the said School is dis-
,continued.
Now know all men by these presents that I the said S. K.
,of Copay for and in consideration of the premises aforesaid do
hereby give, grant, convey, make over and confirm unto the said
A. N., etc., all of Copay, thtl said piece of land called---in
-extent l Lms. P. C. with the appurtenances situated at Copay
.and bounded---.
To have and to hold the said piece of land and
premises of the aggregate of Rs.---unto the said
'Trustees subject however to the condi~ion that the said M. S;
be the proprietor of the said School for the purposes of his
-dealing with the Director of Education and to the further
condition ~bat the title to the said land shall revert to me the
-cSaid S. K. the moment the site of the said School is changed or
;the moment the said School is discontinued.
In witness whereof, &o. :
,,
 342 CH. XV.-DONATION.
Gift of Land to a Mission for 'helping a School.
To all to whom.
Whereas during my marriage with tbe said K V. the fu!D
shares of the following 4 pieces of lands fully described in tbe
Sc hedule hereto were bought as per Fiscal's Conveyances,
dated---and under and by virtue of a partition and.
transfer deeds dated---attested by V. E ., D. T. and S. K.
Notaries under Nos.---.
And whereas the said K. V. having died the said M. haS
become entitled to one-half share of all the said pieces of larids
and which half shares are more fully described in the said,
Schedule hereto annexed.
And whereas the American Ceylon Mission has been duly
incorporated in Ceylon and has been made a body politic and
corporate by the name of "The A. 0. M." acting through its
Treasurer now the Rev. J. H. D. of Tellippalai and his.
successors in office.
-And whereas the said M. with the object of advancing.
the cause of the Uduvil Girls' Boarding School under the said
A. C. M. is desirous of donating the said pieces of lands
described in the Schedule hereto with the liberty unto the said
A. C. M. to deal with or dispose of the said pieces of lands.
through its Treasurer for the time being.
And whereas the Rev. J. H. D. is willing to accept the-
said donation on behalf of the said A. C. M.
Now know ye and these presents witness that I the said
M. widow of K. V. for the causes and considerations me
hereunto moving do hereby give, grant, convey, make over and
confirm unto the said A. 0. l\1. through its Treasurer the said-
Rev. J, H. D. and his successors in office, as a gift of donation
inter vivos absolute and irrevocable all the said pieces of land
called----and more fully described in the Schedule hereto
all of the aggregate value of Rs.---and all my estate, right,
title, interest, property, claim and demand whatsoever from, in ,.
out of and upon the said premises.
GIFT BY DEED OF A SHARE IN A RACE HORSE . 343
To have and to bold the sa.id 4 pieces of lands together
with all rights, easements, privileges, appurtenances thereunto
belonging or used or enjoyed therewith or reputed or known
as part parcel or member thereof unto the said A.C.M.
through its treasurer the said Rev. J. H . D. and his succes-
sors in office for ever.
And I the said M., widow of K. V., do hereby for myself,
my heirs, executors, administrators, coven ant with the said
A. C. M. that the said lands and premises and every part
thereof hereby given in Donation are and is free from any
incumbrances, that I and my aforewritten shall and will always
warrant and defend the same unto the said A. 0. M. against
all persons whomsoever and further whenever thereunto
required and at the proper costs and charges of the said
A.C.M. sign, execute and deliver unto the said A. C. M. all s1tch
further and other acts, deeds and assurances as shall or may
from time to time be necessary or expedient for more fully and
effectually vesting on the said A. C. M. the said lands and
premises hereby donated.
And know all men by these prese nts that I the said
Rev. J. H. D. and as the present Trea.surer of the sa,id A. C. M .
do hereby thankfully accept this donation.
In witness whereof.
Gift by Deed of a Share in a Race Horse.
(Form) (a).
To all to whom these presents shall come .A. B. of--
send greeting :-
Whereas A. B. is the owner of several race horses and
amongst others of a certain thoroughbred bay mare known
as--.
And whereas 0. D. of---has for some years past acted
as trainer of race horse for A B, and has from time to time
rendered many gratuitous services to A. B. in connection with
(a) 6 Ency, 132.
344 CH, XV,-DONATION.

the management and training of hie horses and A. B. is

desirous of shewing his gratitude to C. D. for such servio~s
in manner following.
Now know ye that in consideration of his esteem and
regard for C. D ., A. B. as beneficial owner hereby assigns unto
C. D. all that one undivided moiety of and in the said bay
,;nare known as--now in the possession of C. D. at his
stable at- --as trainer or agent ior A. B. which is register-
ed in the stud book kept by the Jockey Club and is therein
numbered---.
To hold the said undivided moiety unto the said C. D.
absolutely.
Now again know, ye that the said C. D. doth hereby
t hankfully accepts the same.
In witness, &o.
. property, labour, or skill and to share the profits between
I :the souroe of the relation (d).
t,profit, are not partnerships {e),
CHAPTER XVI. "
. PARTNERSHIP DEEDS.
!.-Definition.
PARTNERSHIP, often called co-pat'tnership, is the relation
whichsiibsfsts between pers~~s ~b.o ha:ve agrnaa. tQ sb.are.J;he
profits Of a busine~- car~iea" On by all Or any Of t.b em ,PD _behaJf
of aJI of them (a).
When persons contract to combine in some business their
them, they are oalled partners. The terms of the contract are
often embodied in a deed called '1 articles of partnership." The
.p artners are collectively called the firm , they trade under a
n ame called "the style" of the firm (b).
By the English Partnership Act, 1890, " partnership"
h as been defined as "the relation which subsists between
persons carrying on a business in common: with a view of
profit " (o).
Partnership, though often called a contract, is a relation
resulting from a contract. An agreement express or implied is
Societies and clubs, the object of which is not to acquire
(a) Pollock's Digeat of the Law of Partnership, 1.
{b) Elp. 1151; Lindley ou P,utnership, 4 and 10.

- (cl Lindley 10,

(d) Lindley on Partnership, 11.
(e) Ibid, 13,
 CH, XVI.-PARTNERSHIP DEEDS,
346
. Agreements to carry on business at a future time do not.
render the parties to them . partners before they actually do
carry on business (a).
A corporation, company or associ~ion or partner_!hip-
g-""
.
l a
or-!. ~ ,.,, incorporated under the ordinances- as Joint Stock Com~any,
~ oth~rwise incor~orate~ by ~pecial aut~orit~, is a ~cti_tious
person, endowed with a capacity to acqutre rights. and 11:_cur
obligations, as a means to the end for the a~tainment of which
the corooration is created . A cprporation, it is true, consists
of a nu~ber of individuals, but the rights and obligations of
these individuals are not the rights and obligations of the,
fictitious person composed of those individuals; nor are the
rights and obligations of the body corporate exercisable by or
enforceable against any individual members thereof either-
jointly or severally, but only collectively, as one fictitious
whole (b) .
With partnerships not so incorporated the case is other-
wise ; the members of these do not form a collective whole,.
distinct from the individuals composing it ; nor are they
collectively endowed with any capacity of acquiring right or
incurring obligatio1,1~- The rights and liabilities of a
part11t3rship are .the rights and lia~ilities of the partners, and
are enforceable by dr against them individually (b) ..
No partnership necessarily subsists amongst persons to
whom property descends, or is given jointly, or in common.
and even if several persons agree to buy property, to hold
jointly or in common, although by the purchase thoy become
co-owners they do not become partners unless that also was
their intention (c).
No company, association, or partnership consisting ot
more tq_aJJ_tivJ1nty..J~JJ.!.SOJ;U! shall carry on any trade or business.
having for its object the procurement of gain to them unless it
is registered as a company under the Joint Stock Companies
Ordinance, 1861. And if any persons do so oarry on business
contrary to the provisions of the said ordinance, every person
(a) Lindley on Partoers_h ip, 15, (c) Ibid, 25,
(b) Ibid, 20 and 21.
DEFINITION, 347
so acting shall be severally liable ior the payment of the whole
debts of the company (a) .
. In Ceylon, under Ord. No. 7 of 1840, no promise, contract,
bargain, or agreement, unless it be in writing anp. signed
by the party making the same, or by .some person thereto
lawfully authorized by him or her, is of force or avail in law
for establishing a partnership where the capital exceeds omr
thousand rupees. Tbis, however, shall not be constru~d to
p; ~ t third ~arties from suing partners and offering in
evidence circumstances to prove a partnership existing be.tween
such persons, or to exclude parol testimony concernin g.
tr!!.nsactions by ot the settlement of any account betwee n
partners (b).
Tbe term ''. capital" referred to above refers to initial
capital of a partnership, either cash or property contributed by
partners, and does not extend to the amount that m~y stand
as capital after additions and withdrawals at any time during
the course of busiqess (c) .
When the capital exceeds Rs. 1,000 a bond executed in
favour of one of the alleged partner;:>y the others reciting their
proportionate interests in tbe business does not amount to a
partnerspip agreement nnd is not a sufficient compliance with
Sec. 21 of 7 of 1840 (d).
Lender of any money to a person engaged in .any trade,
on an agreement that the lender rece_ives a rate of interest
varying with the profits shall not of itself constitute him a
partner (e).
N_o person being the widow or child of the deceased part-
ner or trader, and receiving by way of annuity a portion of the
profits made by such trader in his business, shall, by reason-
only of su"h receipt, be deemed to be a parhner of, or to be
(a) Ord, No. 4 of 1861, Sec, 6; Ord . No, 9 of 1867, Sec . 2.
(b) Ord . No, 7 of 1840, Sec, 21,
(c) Sinno v. Punohihamy, 19 N.L .R. 43 ; 2 C.W,R. 140 ; Wickra.-
maratna v. Fernando, 2 C.W.R, 154.
(d) Jayasekera v, Lewishamy, 3 C.W.R, 239.
(e) Seo, 3 of 21 of 1866.

'348 CH. XVI.-PARTNERSHIP DEEDS.
subject to, any liabilities incurred by such trader (a) ; nor shall
a person receiving a portion of the profits in consideration of
the sale by him of the goodwill of the business be deemed to
,be a partner of the business (b) ; nor shall a servant or agent
receiving any remuneration by share of profits of the business
.tie deemed a partner of the business (c).
In ail qu~stions or issues which may arise with respect to
l
the law of partnership, the law to be administered_shall be the
same as would be administere.d in Enghi,_nd (d).
---- - - ,,
The rights and liabilities of the partners as between them-
,selves are usually r~gulatad by express contracts (e).
It is remarked, Lindley on P~rtnership, tpat " in fra mjng
articles of partnership, ib should always_ be~ r!;J!llem..b: ;ci.th.at
___ ,_ tb t1mued fo; the guidance of persons
thty are --- -
who are not
-~--
lawy~rs : and that it is therefore unwise to insert only such
,provisions as are necessary to exclude the operation of rules
which apply when nothing to the confrary is said. The articles
should be so drawn as to b~ a code of dir~ctions, to which the
partners may refer as a guide in all their transa.ctioi;is and
[ upon which . they may settle among themselves differences
whiap may ar!se without having recourse to the Court " (f).
Partnership for acquiripg the whole of the opium licenses
is illegal as being contrary ti_o the policy of the Opium Ord. of
1889 (g).
I
Land bought by a partner of a firm in his own name out
-of the assets of the partnership is not deem~d the property of
[ the partner in whose name the conveyance IS executed (h).
In the case of partnership, all the partners are usually
named as parties to the d~ed and each partner should execute
(a) Ord. N-,. Ill of 1866, Seo, 5,
(b) Ibid, Seo. 6.
(c) Ibid, Seo, !l,
(d) Ibid, Bee. 1.
(e) 1 Prid. 641. :
(/) Elp. 251.
{g) Meyappa Ohetty ti, Rama.nathan, 16 N.L.R, 33,
(h) Madar Ba.ibo ti, Sira.judeen, 17 N.L,R, 97,
JOINT STOCK COMPANIES.
it. A partner has no implied authority to execute deeds in the-
name of his co-partner, and, therefore, in the absence of special
authqrity a deep execu.ted by one partqer purporting to act on
behalf of the firm will not bind the other partners (a).
II.-Joint Stock Companies.
Contracts on behalf of any company registered under tbe
Joint Stock.Companies' Ordinance, 1861, may, (1) if the law
requires such contracts to be in writing, be made under tbe
common seal of the company; (2) if the law reauires such
contracts to be written and signed by the parties, be made in
writing, signed by any person acting under the authority of
the _company; (3) if the law does not require writing, be made
by parol by any person acting under the authority of the
company (c) .
. The company so registered, may by instrument or writing
under their common seal empower any person, as their
attorney to execute deed on their behalf in any place (d).
A promissory note or bill of exchange may be made,
accepted or 'indorsed in the name of the company by any
person acting under the express authority of the company (e) ,
In any mortgage made by any company, duly registehd,
are implied the following covenants (unless otherwise express-
ed) : (1) a covenant to pay the money thereby secured with
interest, (2) a covenant that they have power to mortgage the
property and (3) that the same is free from incumbrances (/).
The form of a mortgage by a company duly registered is
simple. It is as .follows :
"The--Company, Limited, in consideration of the sum
of Rs.--paid . to such Company by A. B. of--, mortgages
(aJ Marchant v. Morton D own & Co,, (1901) 2 K. B, 829; 1!l Ency ,
lHO.
(b) Elp. :154.
(c) Ord, No, 4 of 1861, Seo. 53,
(d) Ibid, Seo. M ,
(e) lbid, Seo. 55.
(/J Ibid, Sec, 56.
 CH. XVI.-PARTNERSHIP DEEDS.
ANALYSIS OF A PARTNERSHIP DEED. 351
.350
-experience some difficulty in obtaining from a ~ingle lender a
unto him, his heirs, executors, administrators and assigns the
large sum
b but it generallv has no difficultv- in o bt ammg
. . sue h
.following : - , a sum Y an ~ssue of debentures. Such an issue is in substance
. a great contributory mortgage by a number of small I d
and the . k . . en ers
"Given under, the seal of the said Company tbe--day . ~1s . Is proportionately distributed and even this risk
of-1909 " (a). ,can be ehmmated by means of a guarantee.

In a conveyance made by any company, duly registered, Definition.-A debenture is an acknowledgment of indebt-
there shall be implied the following covenants (unless other- edness by a company by which it agrees to repay the lende
wise expressed) : (1) that they at the time of the conveyance -or the holder for the time being of the security th r
the I t f e amount of
were possessed of the property, lands and premises, as their . oan a some uture date, with interest until payment {a).
own absolute property ; (2) that the property is free from
[Re Bodies such as Churches, Bishops C0 II
incumbrances occasioned by them ; (3) that the persons to see e rli h t " ages, &c,,
a er c ap er on The Ceylon Ordinances,"]
whom tbe property is conveyed and his heirs , executors,
administrators and assigns may quietly enjoy the same against
the company and their successors, and be indemnified from III.-Analysis of a Partnership Deed.
all incumbrances; (~) that the company will warrant and A partnership deed being an indenture the date d
defend the title to such lands and grant at the expense of the ,of the parties are stated at the beginning. an names
person to whom it is conveyed such further deeds as may be The parties are expressed to be of as man
necessary to render such conveyance effectual (b). ,necessary. Y parts as are

'.rhe official liquidator with the sanction of the Court Recitals are rarely needed, except where the t
[Sec. 99] and the liquidator appointed on the voluntary wind- ,. existing partnership are to be modified or b arms of an
. t b . w ere a new partner
- ing up of ~he company without the intervention of Court -ls O 8 taken mto an existing firm (b ).
[Sec. 107 (7)] may sell the immoveable and moveable property
of the company by public or private contract (c). The operative cl<i.us(ls in a partnersb1'p deea consist of
mu t ua l covenants
. by the partners ' and may be divided into
He shall execute in the name and on behalf of the com
:the followmg clauses relating to:-
,pany all deeds, receipts and other documents and for that
purpose use, when necessary, the company's seal (d). 1. The nature of tbe business , the .d ura t10n of the
partnership, and the style of the firm.
Debenture.-A company like an individual, may borrow on
2. How the capital is to be provided.
the security of a mortgage of property or in any other mode
sanctioned by the company's articles but the form of security 3. The banking account of the firm.
which a company commonly adopt is, that of debentures or 4. The outgoings and profibs.
debenture stock, and the reason for this is, that those forms 5 . The management of business.
afford superior facilities of borro.wing. A company may 6. Not acting so as to injure the firm.
7. Accounts.
(al Ord. No, 4 of 1861, Bob. F. I
(b) Ibid, Seo. 57, 1 I
(c) Ibid, Seos, 99 and 107 (7), (a) 5 Eaoy, 10, (b) Elp. 252 .
(d) Ibid, Seo. 99 (pa,ra 4),

7
 CH, XVI.-PARTNERSHIP DEEDS.
352
8. Death of partner or dissolution of the firm.
9. Provisions of the family of a deceased partner.
10. Arbitration clause (a).
1. (a) Nature of the business and the place where it is-
to be carried on should be stated with clearness. The tiDle
at which the partnership is to commence should also be
stated (b).
- (b) Duration.-The firm may be dissolved at the will
of any partner unless a definite duration is stipulated for (o) .
The duration may be for a term of years or during the joint
lives of the partners. Provision should also be made, if agreed .
upon, for the continuance of the partnership after the dea,th
or bankruptcy of any partner, between the surviving or otber-
.,
partners (d).
(c) The style of the firm should be stated, and it should
be provided that all engagements en_tered into on behalf of the
firm should be entered into under the style, so as to prevent-
any doubt whether the contract was really entered into on
behalf of the firm or not (e).
2. Oapital.-The proportions in which the original capi-
tal ie to be provided by the partners, and in what events and
by whom additional capital, if required, is to be provide_d
should he stated (e): It is generally stated that the capital is
to be 01;nployed in the business (f),
3,, Banking accounts.-It is usual to state who are to be
the bankers of the firm, and that all monies belonging to the
firm shall be paid into the bank. Sometimes it is decJe.red
also that all outgoings shall be paid by cheque, and that a
particular person or persons shall draw the cheque(/).
4. Outgoings and profits.-Pro:visions should be made .
for the payment of all outgoings, the principal heads of which
(a) Elp. 252. (di Elp. 253,
(b) Elp, 253, (s) Elp, 254,
(c) Peacock v, Peacock, 16 Ves, 50. (f) Elp, 25~.
ANALYSIS OF A PARTNERSHIP DEED. 353
should be specified, out of the receipts a,nd earnings of the
business, or in the case of deficiency, by the partners. This
-clause only states what the rule is in the absence of any
-special agreement and may therefore be omitted where brevity
is of importance (a).
In the absence of a special agreement, profits are divisible
between the partners equally, though they ml\y be entitled to
unequal shares in the capital (b) . If this is not intended to be
the case, a clause should be inserted, stating in what propor-
tions t hey are to be divided. This clause should also state
when they are to be paid (al.
It often happens that persons agree that all profits shall be
-shared rateably, and, nevertheless, that all losses shall be
borne by some or one of them exclusively. Such agreements
.appear to be reasonable , especially where the partners indem-
nified leave the whole management of the concern to their
co-partners (c).
5, Management of business.-In the absence of special
stipulation, .e ach partner has a right to take part in the
management of, and is bound to attend diligently to, the busi-
ness of the partnership (d).
6. Injure the firm.-No partner should act so as to
injure the firm and stipulations to that etfect are sometimes
inserted (e). -
7. Accounts.-Provisions should be made for the takine1b
of accounts , so as to shew the position of the firm as regards
-strangers and as regards the partners (e).
8. Dissolution of the firm.-Tbe provisions on the retire-
ment or death of a partner: and on the dissolutio_n of the firm,
are som etimes of a complicated character and require much
(a) Elp, 256,
(b) RJbioson v. Anderson, 7 De G. M, and G. 239 ; Elp, 256,
(c) Lindley, 76,
(d) Elp, 257.
(e) Elp, 258.
45
354 CH. XVJ.-PARTNERSHIP DEEDS.
care and attention. The ordinary provisions on diseolution-
are that the whole assets of the firm shall be realized, and
the proceeds applied in discharge of the liabilities of the firm
and the cost of dissolution, and that the surplus shall be
divided among the partners and the representatives of a
deceased partner in specified shares. Prnvisions should also
be made for contribution by the partners or their repre-
senttttives in case of insufficiency of the assets, and for the
execution by them of mutual releases (,t).
9. Provisions for family of a deceased partner.-Some -
times on the death of a partner an annuity or a portion of the
profits by way of annuity-is made payable to his widow or
executors out of the profits during the continuance of tbe
business by the surviving partners. Provisions enabling a
partner to?introduce a son are not uncommon (b).
It should always be provided that the new partner should
exeo ute a deed of accession to the partnership (c).
It is a fundamental rule of the law of partnership that no
person can be introduced as a partner without the consent of
all the members of the firm (d).
10. Arbitration.-The indenture generally concludes with
an arbitration clause (e). This clause does not enable a
question of dissolution of parbnership to be referred to arbitra-
tion {f).
IV.-A Deed of Accession to a Partnership Deed.
Thef deed of accession where one of the parties in exercise
of a power in the articles introduces a new partner, and assigns,
part of his sliara in the capital t.o him, contains a recital of the
article setting out the clauses as to capibal, division of profits,
the power of introducing a new partner, the restrictions if any,
(a) Elp. 259.
(b) Elp. 261.
(c) Elp, 262,
(d) Elp. 263,
(e) Elp. 262,
(f) Bokoliogam Pillai v, Gunewardene, 13 N, L. R. 4.
A DEED OF ACCESSION TO A PARTNERSHIP DEED. 355
on such introduction, and the direction that the deed of
accession is to be executed ; or instead of the recitals the deed
may conveniently be directed to be "read as annexed " to the
articles (a). "
The practice as to the manner of describing a person who
is a party to or is mentfoned in a deed made supplemental to
or intended to be read as an annex to a previous deed, and was
also a party te or was mentioned in the previous deed, is nob
quite settled-some practitioners describe the1m fully and
call them the "said., " e.g., "This indenture, dated--and
expressed to be made between A. B. of--of the one part and
C. D. of--of the other part supplemental [or inflended to be
read as an annex] to an indenture, dated &c., and expressed
to be made between the said A. B. of the. one part and the
said 0. D. of tbe other part." Some describe them as "the
abovanamed " and afterwards call them "tbe said " (b).
Whether the dead is made an annex to the articles or not,
the reoitals will show in what shares the existing capital is
held and the desire of the donee of the power to introduce the
new partner and to assign him a portion of bis share of
the capital.
The operative clauses consist :
1st, of the assignment by the donee .,pf the power, with
consent of the other partners, of part of his capital to the new
partner and
2ndly, of the mutual covenants by the partners including
the new partner to. observe and perform the provisions of the
articles "with such variations as are rendered necessary by
the introduction of the said ~C. D. as a par~ner and the
assignment to him by the said A. B. of the said--share of
the capital of the said A. B. as aforesaid and the provisions
hereinafter contained " and that they will observe and
perform the provisions of the articles so varied " as if the said
C. D. had originally been a party to and had executed the said
articies as if the provisions of these presents had been
(a) Elp. 264, (b) Elp, 64,

356 CH, XVI,-PAR'.rNERSHIP DEEDS,
embodied therein "; then follow any special provisions affect-
ing the new partner as for instance that be may not draw
cheques or that the partner' who introduces
,_ him may expel
him (a).
Form of a Partnership Deed.
This indenture made the 31st day of December 1908
between A. B. of~-of the one part a~d C. Dt of--of the
other part.
Witnesseth that the said A. B. and C. D. hereby mutually
covenant and agree to become and be partners in the trade or
business of--upon and subject to the following Lerms, COD
,.
<litions and stipulations, namely :
(1) The partnership business shall commence on the 1st
day of January 1909 and shall continue untii determined by
6 months' notice, to be given by one partner to the other or to
be left at the place of business.
(2) The name of the ' firm s~all be--aod the business
shall be carried on at--or at su~h other place as the partners
shall from time to time agree upon.
I
(3) The bankers of the business shall be--& Co,
(4) The capital of the firm shall be Rs .--to be brought
in by' the partners in equal shares and th e profits and losses of
the business sh all be divided between the partners in equal
shares.
(5) P roper accounts shall be kept of all partnership
transactions and on the 31st December in every year, or as
soon . afterwards as possible, a,. balance sheet shall be made
out shewing t he assets and liabilities of the -firm and what
belongs and is due to each partner for capital and share of
profits.
..
(6) Upon the determination of the partnership the assets
of the partnership shall be realized and applied, 1st, in payment
of the debts and li abilities of tbe firm and_2ndly, in paying to
(a ) Elp . _264.
FORM OF A DEED ...... OF A PARTNER. 357
each partner the amount of his capital in the said business and
the surplus (if any) shall be divided betwoen the partners or
their respective representat.ives in equal shares.
All matters in difference in relation to the partnership
affairs shall be referred to the arbitration of two indifferent
persons, one to be a1Jpcinted by each party or to an umpire to
be chosen by the arbitrators before entering on the cons.idera-
tion of the matters referred to them.
In witne~ whereof we the said A. B. and 0. D., &c.
Form of a Deed of Accession-Admission of
a Son of a Partner (aJ.
This indenture made the-- dc.y of--between A. (father)
of--of the first part, B. aod C. (two of the old partners) of
--of the second part, and D. (son of A.) of--of the third
part.
Whereas by certain articles of parcnership (hereinafter
called the articles) dated &c., the said A. B. and C. entered
into mutual covenants, amq,ngst other things, that they would
become and remain partners.,.in the trade of--under the firm
of--with the power to any partner to introduce a son.
And whereas the said A, B. ar:d C. have carried .)0 the
said business up to the present time according to the pro-
visions of the articles and they are now entitled to the capi-
tal of the said partnership consisting of-__:.in the shares
following, that is to say, the said A. to--&c.
And whereas in pursuance of the provisions in the
articles as aforesaid the said A. is desirous of introducing the
said D. as a partner unto the said firm for the residue of
the term--years assiga"ing to him one equal one-fourth
part of tbe share of him the said A. in the said partners!Jip
but subject to the restrictions and provisions hereinafter
contained:
Now this indenture witnesseth that in pursuance of the
said provision contained in the articles, the said A. with the
(a) 2 Key, & Elp. 456.
358 OH. XVI.-PARTNERSHIP DEEDS .
consent (hereby testified) of the said B. and C. doth hereby
introduce. the said D. as a partner unto the said firm upon the
terms and subject to the restrictions and provisions herein-
after contained : And the said A. hereby assigns unto the said
D. one equal fourth part of the share of him the said A., in the
capital stock in trade, assets, goodwill, and profits of the firm
as from the--day of--.
To bold the same unto the said D. absolutely subject as
hereinafter mentioned :
And this indenture also witnessetb that pursuant to the
provisions contained in the articles, the said A. B. C. and D.
hereby mutually covenant and agree as follows :
1. The said A B.C. and D . will as from the--day of--
be and remain partners in the said trade or business of--for
>the residue of the said term of--years, upon the terms and
-subject to the agreements and provisions contained in the
articles, with such variati<;ms as are rendered necessary by the
introduction of the said D. as a partner an<l the assignment to
him of the said one-fourth part of the share of the said A. as
aforesaid and the provisions hereinafter contained and will
observe and perform the said agreements and provisions, with
such variations as aforesaid, in the s~me manner (as far as
circumst'linces will admit) as if the said D. bad originally been
a party to the articles and the provisions of these presents had
been embodied therein.
2. The said D . shall be at liberty to charge the share
hereby assigned to him with the amount of estate duty (if
any) which shall become payable by him in respect thereof
upon the death of the said A. within three years from the date
of these presents together with interest on the sum so charged
at such rate as the said D. shall think fit.
' .
3. [Insert any other special provisions and restrictions
affecting the new partner] .
In witness whereof, &c.
DEED Ol!' PARTNERSHIP BETWEEN TWO PROOTORS, 359
Deed of Partnership between two Proctors.
This indenture made at-this-day of-between T. C. 0 .,
P roctor of the S. C. and N. C., Proctor of the D. C., Jaffna.
Whereas the said T. C. 0. for the consideration herein-
after mentioned hath agreed to admit the said N. 0. to be a
,co-parbner in profit and loss in the proportion hereinafter men-
tioned with him the said T. 0 . C. in the business and profes-
sion of a Proctor the sam .3 to be managed and carried on at
their office at Jaffna in the joint n a.mes of the said T. C. C.
and N. C., subject to and under the several covenants . and
agreements hereinafter contained.
Now this indenture witnesseth that in pursuance of the
said agreement and in consideration of the covenants herein-
after contained and also in consideration .that the said N. C.
hath agreed to give his whole time to tbe management of the
said basiness and to employ his utmost skill in promoting and
conducting the same each of them the said T. C. C. and N. C.
doth hereby for himself, bis heirs, executors and administrators,
covenant and declare with and to the other of them his heirs,
executors and administrators in manner following : -
1. That they the said T. C. C. and N. C. shall and will
from this date become, continue and be co-partners in profit
a nd loss in the proportion hereinafter mentioned in the said
businesB and prnfession of Proctors in the carrying on, prose-
cuting, managing and defending all and every suit or action
which shall by them or by either of them be instituted, carried
on or defended in the D. C., J affna, and in the Court of
Requests of--and which they the said T. C. C. and N. C. or
-either of them at any time during the said co-partnership
shall be concerned in and in all other business common or
incident .to a Proctor and the style of the said co-partnership
shall be " C. and C."
2. That neither of them tl}e aaid T, C. C. nor N. C. shall
or will at any time within the continuance of the said co-
partnership carry on, prosecute or defend any suit or action or
transact or do any other affairs or 'business incident or belong-
ing to the profession of a Proctor for any profit or advantage
360 CH. XVI.-PARTNERSHIP DEEDS.
on bis own separate account or for any otber !lccount than fot-
the joint benefit of the said co-partnership save and eicept;-
the cases which the said T. C. C. and N. C. have already
instituted or have already agreed to defend, save also wbat is
excluded hereinbelow.
3. That all pleadings, writings, documents, papers,,
vouchers. and letters shall run in tbe joint names of tbe said
T. C. C. and N. C. and shall be signed by them or eitber of
them, either in the joint names being the style of the partner-
ship or in the name of either of them the said T. C. 0. or N, C.
provided however that the signature by either of them of their
individual names shall not be taken to mean that the business.
in respect of which their individual signatures are affixed is
carried on on the separate account of each of them.
4. That ea.ch of the said parties tbe sfl.id T. C. C. and,
N. C. sball have full power and authority to sign all papers,
documents, writings, vouchers and letters anywise relatit1g to
the management of the said partnership business, including,
the recovery of the debts due to the partnership solely and in.
his own name and without joining the other of them as will
during the absence of the other of them from J affna as during_
his presence and in like manner each of the said parties shall
have full authority to carry on, prosecute and manage all o~her
matters in anywise relating to the said partnership business in
hi.s sole name and in the absence of the other of them and each
of them shall have authority to sign, the name of the other
and to perform all and every matter and thing which they
both personally present could or might lawfully do and each
of them doth hereby promise to rectify, confirm and allow al L
and every act, matter or thing done by the other of tbetll on
account of the said partnership business.
5. That they the said T. C. C. and N. C. shall be entitled
to such shares and proportions of and in the profits arising in
the co-partnership as hereinafter mentioned, that is to say, the
said T. C. C. is to have two-third share for the first year and
one-half share for the subsequent years, and the said N. (1, is
to have one-third share for the first year and one-half shar~
DEED OF PARTNERSHIP BETWEEN TWO PROCTORS. 36:t
for the subsequent years, of all the work done in the name of
the Sil.id co-partnership except cTiminal cases and except cases
entrusted to the said T. C. C. as a Crown Proctor or as
Proctor of the Provincial Road . Committee or as Fiscal's
Proctor.
6. That all dehts due and owing on the said partnership
account and losses which shall happen by reason of the said
co-partnership business a nd all counsel's fees, expenses for
stationery, clerk's and writer'. s salaries and all other ch arges,.
disbursements and necessary expenses incident t o the same
shall be sustained aud borne by them the said T. 0. C. and
N. C. respectively and their respective heirs, executors a nd
administrators in the proportion abovemanti~ned.
7. That all and every sum and sums of money that shall
be received by either of the said partie;; shall from time to
time be deposited and relllain in the hands of the said T. C. C.
in trust for tbe joint use and benefit of both the said parties
according to their respective interests, and that out of the
said money he, the said T. 0. C. shall and will pay and supply
the said N. C. with such sums of money as shall from time to
time be necessary and expedient for carrying on and prosecut-
ing the said joint business. That the said T. C. 0. shall pay
out of the funds of the said co-partnership to the said N. C.
by monthly instalments such sums of money as the said
T. C. C. shall think it expedient to pay to the said N. C. dne
regard being had to the state of the partnership accounts.
8. That there shall be bad and kept proper books of
account wherein each of the said co-partners shall duly enter
and set down all moneys received and paid and laid in and
about t!;ie managements of the said business and all other
matter and things whatsoever to the said joint business in
anywhere relating to or appertaining together with all such
circumstances of names, times and places as may be necessary
or useful for the better manifestation of the state and proceed-
ings of the said business, which said books together with all
letters, papers and writings whatsoever relating to the said.
joint business shall be kept in their office at J affna so that;
46
362 CH, XVI.-PARTNERSHIP DEEDS. DEED OF PARTNERSHIP BETWEEN TWO PROCTORS. 363

either of them may have free access thereto without any

. documents bslo1Jging or relating to the afkirs of the said
interruption by the other. ,clients shall be retained by or delivered to the said T. C. C. or
N. 0. according as the parties shall have become clients of the
9. That if either of the said parties shall give credit or co ,partnership through the interest of either of them the said
disburse any sum or sums of money for any particular person
T. C. C. and N. 0. and in case of doubt or dispute it shall be
or parsons whom3oavar aHer having been forewarned by the referred to the client to determine in whose custody the
other of them against giving such credit or making such dis-
papers shall remain.
bursements such party shall aione stand to the loss, hazard
and adventure thereof and the share of the said party in the 12. That in case either of the parlies shall happen to die
,profit of the such business shall ~tand charged with the same.
10. That the said parties shall half yearly auring the
during the continuation of the said co-partnership the survivor
shall and will carry on, prosecute, manage and defend in bis .
own name all and every suit or action which sh1'll by them or
,continuance of the said partnership mutually make out a
-either of them have instituted, carried on or defended and the
'b alance or clear and just a.ocount in writing of a!i such
survivor shall and will recover in his own name and for his
transactions ~s have passed in the conduct of the said joint
benefit all fees, debts, emoluments and sums of money owing
'business and of the balance of the said joint account subsist-
to the said partnership or to either of the parties and the said
'ing at the time and shall duly transmit to each other fair copies
survivor shall and will take for his profit, advantage and
thereof subscribed with their respective names fl.nd upon
benefit all debts and sums of money which shall be so
stating and furnishing such account as aforesaid shall use recovered paying into the hands of the administrators, execu-
their joint and utmost' endeavours to recover, receive and
'cutors or heirs of the deceased partner one-half of the amount
collect in all and every such sum and sums of money due and
which may be so recovered and the administrators, executors,
owing to them, and after payment and deducti'on of all such
or heirs of the deceased partner shall have no further claim
-sums of money due and owing from the joint co-partnership ,upon the profits arising from the partnership business during
,concern they the said parties shall thereupon ma.ke padition the time the deceased partner shall have continued as partner.
and division between them of the clear gains and profit of the
-said co-partnership and joint business in the shares and 13. That in case either of the said parties shall be
proportions hereinbefore mentioned. desirous of dissolving the partnership by these presents enter-
ed into at any time such party shall give to the other of thwn
11. That upon the dissolution of the said co-partnership
three calendar months' notice of such his desire, and at tlie
during the lives of the said parties if such dissolution take
expiration of three calendar months from the date of such
place for any reason a general account in writing shall be
notice the said co-partnership shall cease, determine and be at
stated and settled between the said parties of all the debts for
an and anything hereiribefore contained to the contrary
from and to the said parties and of all tbe affairs and transac-
notwithstanding, provided always that in case any of the said
1iions relating to the said co-partnership and on the comple-
parties shall give such notice as itforasaid aud terminate the
tion of such an account the said parties shall forthwith pay
partnership an account shall be taken of the debts, credits and
and provide for the payment of their respective shares of the
effects of the said partnership in like manner as in herein-
debts and so forth and after such payment shall make a
before directed.
distribution, division and allotment of the partnership, credits
and affects batv;:een them according to their respective propor- 14. That if any dispute or difference shall arise between
,tions and interests therein and the deeds, papers, writings and the said parties or between the survivor of them and the heirs,
 .,._
364 CH. XVI.-PARTNERSHIP DEEDS,
executors or administrators of the other of them with respect;
to these present;i :or anything herein contained or relating
hereto and any such dispute or difference cannot be settled
between or amongst themselves then such difference or dispute
shall at the request of them be referred to the arbitration of
two different persons to be appointed severally by them or of
an umpire to be appointed by such arbitrators or umpire shall
be final c~nclusion and binding on the said T. C. C. and N. C.
and such reference and award shall . il necessary be made a
rule of the District Court of J affna.
In witness whereof &c.
Dissolution of Partnership between two Proctors.
To all to whom t bese presents shall come, we T. C. C.,
Proctor of the Supreme Court of Ceylon and N. C., Proctor of
the D. 0., J affna , send greeting:-
Whereas under and by virtue of a deed of partnership
dated--and attested by--under--tbe said T . C. C.
and the said N. C. became co-partners in carrying on the,
business and profession of Proctors.
And whereas the said T. C. 0. and N. C. resolved to-
dissolve t,be said partnership releasing each other from all the
liabilities or claims contemplated in the said partnership or
any other liabilities as well as claims against each other
connected with the said business of Proctors in any manner
w atsoever.
Now know all men by these presents that we the said
T. C. O. and N . C. both of Jaffna for and in consideration of
the above premises and for various other causes us hereunto-
moving do hereby dissolve, annul and rnvoke the said,
co-partnership entered into between ourselves on the said---
as per deed--of the said date attested by--and further we
the said T. O. O. and N. 0. do hereby remise, release and quit
claim unto each other, our heirs, executors and assigns all right,
title and claim which we the said T. 0. O. and N. 0. or either
of us shall now have on the said deed of c-artnership.
In witness whereof.
DISSOLUTION OF PARTNERSHIP ...... BUSINESS. 365
Dissolution of Partnership with Power of
Attorney to one to carry on the business.
To all to whom.
Whereas the said B . D. and B . M. had been carrying on
business in , partnership in Ceylon under the name , firm and
style of "B. M. D."
And whereas the said B . D . and B . M. have ilissolved the
said partnernhip and the said B. M. has ps.id to the said B. D .
a sum of Rs. 42,000 for his share absolving however the said
B. D. from all liabilities in the said partnersh ip.
Now know all men by these presents that I the said B.D.
-of ,Taffna for the reasons aforesaid anil in consideration of the
said sum of Rs. 42,000 paid to me by the said B. M. and in
consideration of his guarantee to absolve me from all liabilities
o'n account of the said partnership, do expressly renounce and
disclaim all the right, title and interest whatsoever of me the
said B. D. in and to any moveable properties including ali
moneys secured on Bonds either in my own name or in the
name of either of us, Promissory Notes, shares of Com-
panies, ;;hop goods in Ja.ffna and Batticaloa or anywhere-
-else excludin g h owever all the houses and premises and
cocoanut estate (all 11 in number) and their appurtenances
especially relinquishing the said moveable property in favour
of the said B. M., or his heirs, executors , administrators and
.assigns.
Whereof an act being required I the said B . . D. have
granted these presents to serve and avail as occasions shall
.or may require.
And now again I the said B. D. do hereby nominate,
constitute and appoint the said B. M., his heirs, executors,
administrators and assigns as my lawful Attorney irrevocable
in my name but for the sole use, purpose and benefit of the
said B. M. and his aforewritten t he said B. M. and bis afore-
written to do, pa.rm and execute every act, deed, matter and
thing whatsoever requisite and 0:3cessary for carrying the said
business as was carried on under the said partnership and for
 DEBENTURE TO A Sl:KGLE PERSON. 367
366 CH. XVI.-PARTNERSHIP DEEDS.
Given under the seal of the---Coy., Ltd .
recovering all the moneys due on any other accqunt as.
this---day of---
aforesaid.
Now again know all men by these presents that I the ________ } Directors .
said B. M. for and in consideration of the aforesaid premise_s,
do hereby guarantee to absolve the said B. D. from all
liabilities on account of the said partnership including Bills-
[Seal]. Secretary ,
from firms against the name of the said B. D. as was incurred The conditions above referred to-
for the said partnership business or for sha'"p goods.
1. All the debentures of the series are payable pari
In witness whereof. passu and will rank equally against the security .
2. This bond is by mercantile usage a negotiable instru-
Debenture to a Single Person (a) . ment with all the incidents of negotiability.
(Form). 3. This shall not binder any sale or other dealings by
The----Coy., Ltd. the Coy, in the ordinary course of its business with the pro -
Tbis debenture is issued under clause--of the Coy.'s perty and assets of its business.
memorandum and clause--of its articles of association and
in wursuance of a resolution passed on the--day of--.
Debenture No.--. ---
1. The---Coy., Ltd. (hereinafter called the Coy.) in
consideration of ---paid to the Coy. by A. (lender) of---
(hereinafter calied the lender) (the receipt whereof the Coy.
hereby acknowledges) hAreby binds itself to pay to the lender
on the--day of --next the sum of --and until payment
of the s~id sum of --to pay to the lender interest thereon.
at the rate of--per cent. per annum by equal l;:ialf-yearly
payments on the--day of ---and the--- day of----in
each year.
2. The Coy. as beneficiA.l owner hereby charges with
such payments its undertaking and all its property and assets
whatsbever and wheresoever both present and future including
therein the uncalled capital of the Coy. for the time being,
3. This debenture is issued subject to the conditions
endorsed hereon .

(a) 5 Ency, 93 ,

. ..

\ parties intend to have such operation. Such intention is a
J matter of fact, and must l:ie inferred from the parties' writing,
( circumstances. Thus are excluded social agreements, agreements
CHAPTER XVII.
AGREEMENTS.
!.-Definition and Scope. _
AN agreement in its most extensive sense, is defined to ba
tbe consent of two or more persons in constituting or dissolv-
ing some legal obligation, and in that sense inclu~es every
species of assurance; but, in a more limited acceptat10n_ of tbe
term, it implies any memorandum, articles and mmutas,
entered into between two or more persons either to serve as a
deed itself, or as preparatory t some more formal instrument(a).
A contract or agreement not under seal may be defined
to be an agreemen.t entered into between two or more persons,
whereby in consideration of something done or to be done by
the narty or parties on one side, the party or partie 0 on the
oth~r promise to do or to omit to do some act (a).
Where agreements are notarial they are as to t~e ~ubject-
matter sometimes called special contracte or spee1al~1es, but
where they are verbal or only in writing under the signature
of tbe parties they are termed parol agreements or absolutely, .
agreements (b).
A contract is a communicated agreement between tw~ or
more parhies as to iuture conduct which has a legal oper~t10~,
l
i.e. , which is regarded by the law as valid, ~nd on which. if
properly proved an action will lie. Agreement _is s~ewn to exist
a.t the moment when one person expressly or 1mphedly accepts
a.o offer which another person expressly or impliedly makes to
bim (c).
(c) Carter 1,
(a ) 1 Cr , 77- (bl 1 Cr. 78.
DEFINITION AND SCOPE. 369
Only those agreements have a legal operation which the
words, or conduct taken in connection with the surrounding
in opinion, flourishing statements of intention, mere intima-
tions of readiness to do business, conveyances and trusts (a) .
A covenant is the agreement of two or more persons by
deed, whereby one of the persons doth promise to the other that
eomething is or is not done alread y or sh all or shall not be
done _afterwards .(b).
Au agreement may be by parol or verbal, but a covenant
must be created by deed . Between a covenant and a condition
there is a difference as to the remedy ; a condition broken
defeats an estate ; but a covenant broken gives an .action for
damages only (b).
Hire-purchase, by a contract for hire-purchase is meant
a contract which, in addition to the terms of hire, provides
that in the payment grant fo1 a certain period, or for
a certain number of times, or on the payment of a certain sum
after sued payment of rent, the property in the goods hired
shall pass from the owner to the _h irer. In other words a
contract of hire-purchase is a contract of hire with an option
of purchase (c).
This contract is different from a contract in which the
price of goods sold is to be paid by instalments, where the
property in the goods passes to the purchaser at the time the
agreement is made (c) .
An agreement that the creditor on a bond should possess
the land mortgaged in lieu of i~terest is of no force unless it is
notarially executed (d).
1
An agreement among ~ohamedans to pay magger may be
proved by oral evidence, no writing being requisite (e).
II
(a) Carter 1 and 2,+ (d) Mudianse v, Mudianse, 2 N. L, R. 86. iJ
(b) 2 Crabb 779, (e) Maydeen Kfmdu v. Meera Lebbe, 5 Tamb, 7, "lll'
(ci Cassells 2,
4'i'
370 CH. XVII.-AGREEMENTS.
Agre~m~nts for t.he purchase and sale of any immoyeab}e
. ( .
property should be notarial ,a).
'
Where there is ari agreement for the sale of real and .
personal property together, it is heia to be an entire contmc~;
~nd if the agreement is void as to the land it becomes void in
toto (b).
The purchaser who contracts for the purchase of an
estate will be entiUecJ, to the rents and profits and the vendor
to interests .Qr bis i;noney until the execntion of ~he convey-
ance ubles~ otherwise agreed upon (c). . but they are neverhheless proper in some cases, as they serve
Agreements of a lease should be clear and explici~ on .all
material points. Whatever covenant is intended to be mserted
in the lease should be expr!}ssly stipulated in the agreement(d).
Where a contr'act is made to build a house to .a certain
plan and "tbe owner mak~s deviations from the plan, this does
not vacate the contract, but subjects the owner to the payment
of any additional charges occasioned by such deviations (e).
No contract, bargain 'or agreement unless it be in writing
and ~g~ed-by the Dfl:rlY _QJaking the same, or_ ~y _some person_
lawfully authorised by him, is of force or a.vail_ in_ ~~- _{1) for .
'charging a;v- person for the -debt, defa:ult or m?scarriage of
another (2) for pledging moveable property unless tho same
shall h~ve bt3en actually delivered, (3) for establishing a
partnership where t:he capital exceeds one tho1,1sand rupeedf),
No one can enter into an agreement who has nqt discre-
. or the power of using it, therefore idiots, lunatics, infants ,
t IOU .
married women and persons under duress or restramt are m
general incapable of contracting. A contrac~ b~ infants or
married women for necessaries is absolutely bmdmg (g) .-See.
also" Who could"execute a deed," pages 40 to 47 above.
(a) Ord, No. 7 of 1840, Sec, 2.
(bl Cooke 1). Thambs, 2 Anst. 425 .: 1 Cr. 156,
{c) Seton v. Slade, 7 Ves. 274; l Cr. 159,
Id) 1 Cr. 97,
(e) Pepper v, Barland , Peakes N. P. C. 103 ; l Cr. 81,
(j) Ord~ No , 7 of 1840, Seo. 21.
l g) 1 Cr, 77,
"'
DE.FINITION AND SCOPE. 371
' The exoouto;s and administrators of a party are usually
mentioned fu an agreement; but this is not necessarv in order
to bind his al3sets, as his represen.tati;es are, ,b'y intendments
.
of law, included in his person (a) .'
. Every agreement, to be effectual, ought to be full and
complete, and so framed as to expre~s with clearness and
,precision the stipulation and terms of the contract ..
. '
Rec.itals are not an essential part of a deed of agreement,
.to explain the meaning of th~ witnessing part (b).
As a rule, a purchaser by entering into posse~ion before a
conveyance is l'!xecuted, is hold.to waive all objections to the
title and if a purchas: r wishes to have immediate possession ,
be may protect himself by a special clause, [as in the pl'ecedent
or form given on .1;1age 380 be!owJ {c).
Where a person agreed orally t~ sell land and failed to do
so and was sued for the return of the earnest money : Held
that the action was competent although the agreement was not
~ . .
reduced to writing (d).
"
A submission to arbitration , unless a contrary intention is
,expressed thereon, is irrevocable, except by leave of Court (e) .
Verbal contracts for service of a servant shall be deemed
only for one month and that of a journeyman, artificer only for
a, day (f)'. ' .
If for over a month, ~he contract should be in writing and
it cannot extend beyond three years. Such contracts shall be
signed before a Magistrate, Justice of tge Peace or any person
expressly authorized b:y the Governor (g).
(a) l Cr, 78.
(b) 1 Cr. 79,
(c) 1 Cr. 176,
(d) Perera v, Silva, !l A, C.R. 74; 2 Leade r 48,
(el Arbitration Act, 1889 ; 2 Ency, 133,
If! Seas , 3 and 5 of Ord. 11 of 1865.
(g) Sec, 7 of Ord, 11 of 1865, ,.

372
Indians here could not enter into a contract for service
outside Ceylon and India (a). Ceylonese alsa could not do so
except to notified places. Such contracts shall be enternd a
Magistrate (b). The emigrant and the employer shall each
give a Bond for Rs. 150 on Rs. 10 stamp (c).
II.-'' Causa" or Consideration.
Causa" iinder the Roman-Dutch ~aw denotes the
11
ground, reason or object of a promise giving such promise a
binding effect in \aw, It has a much wider meaning than the
English term II consideration" and comprises the motive or
reason for it promise and also purely rporal consideration.
Even if the agreement was a nudum pactum it would yet
support an action under the Roman-Dutch Law. Nude facts
mad~ in earnest and with a deliberate mind give rise to actions
equally with contracts (d).
Under the Roman-Dutch Law an "agreement is not void
11
for want of consideration, provided there be a lawful causa"
or origin for it (e).
Besides the invaliditr of contracts ou the ground of the
want of free and mutual consent, they are also void when they
are made without a 11 causa,"~o~ for a fal.13e consideration which
is repugnant to justice, good faith, or good morals (f)..
If the immoral cause is on the side of the acceptor alone ;
no claim can be made by virtue of the obligation but any
payment made under it having been once made holds go~d. If
the immoral cause is on both sides, the patty in actual posses-
sion is in the better position (g).
(a) Ord; 3 of 1847.
(b) Ord, 4 of 1882.
(c) Ord, 22 of 1917 re-enacting 32 of 1908, Sec. 7.
(d) Lipton v. Buchanan, 8 N. L. R. 49,
(e) Lipton v. Buchanan in review, 10 N. L, R, 158 .
(fl V, D. L, 1. 14. 2; 2 W. P, 476, ' (e)
(g) Grat, 3. 1. 46; 2 W. P, 476,
11
CAUSA" OR CONSIDERATION. 373
A reward promised for the purpose of bringing about a
marriage cannot be said to be founded on immoral cause or
consideration (a).
An agreement whereby defendant covenanted to give his
da,ughter in marriage to the plaintiff within 6 months, and in
case of default to pay a sum of Rs. 1,000 to the plaintiff by
way of liquidated damages was held not to be an illegal
contract.
The agreement sued upon is essentially different from
a marriage brok~rage contract, where one. of the narties
in consideration of some beneilt to herself engages to ~rocur~
or bring about a marriage (b).
The obligation on the part of the husband to maintain
his wife and children. is a continuing one, and he cannob
relieve hi;nself of the liability by entering into an agreement
unconscionable bargain with the mother, by paying her
Rs. 50 as maintenance on account of bbth mother and child
during their lifetime. The case would be different if the
husband invested some money for his wife and allowed her to
take the interest for her maintenance (c).
Pacts against the freedom of marriage ar~ not allowed bv
faw (d). -
An agreement for future separation between husband and
wife is b.ad (e).
A contract between two persons that one should break a.
. promise he has made to marry another is illegal and cannot be JI
enforced (/).
No action lies for breaQh of an agreement by which a
party in consideration of marriage agrees to change his
.religion (g).
(a) V. D, K. 482; 2 W. P. 476.
(b) Abdul Hameed v. Peeroando, 15 N. L. R, 91.
(c) Nagamuthu v. Kantan, 1 S, C, D. 48,
(d) Voet 2. 14. 21; 2 W. P, 476,
Cartwright v. Cartwright, 3 De G, M. G. 981!; 2 W, P. 476,
(/) Perera v. Anthony, Ram,, (1863-68), 46.
(g) 3 Lor, 80,
374 CH. XVII,-AGREEMENTS ,
A future marriage bas been held to be a good considera-
tion for a contract, but a past marriage is not (a).
An owner of land who employed a skilled contractor-not
an independent contractor-to clear and_burn the jungle on his -
land, was held to be liable for the damage caused to a neigh -
bouring land owner, by the burning of the jungle.
Au independent contractor is9 one who underbakes t o.
produce a given result , so that, in the actual execution of the
work, he is not under the order and control of the person fo r
whom he does it and may use his own discretion in thin gs not
specified bef~rehana:(b) .
A contract to withdraw a criminal charge of assault an d
theft (cl, to procure a place unc.er Government (d) , or to
forbear criminal proceedings against a thief is invalid, t he
consideration being illegal (e) .
A contract to teach devil-dancing, it has been held , is not
bad for illegality (/) .
The act also to which . thfl party abinds himself must be
something precise and definite. Thus, an agreement to build
a house without sayinglwhere, is ineffectual (g) .
No obligation!can be contracted with the object of having
a share in a lawsuit, nor with respect to the inheritance of a.
person still alive, with the exception of the choice of law by
ante-nuptial contract (h).
An agreement to take over the business of a stall-holder
in a public market in the Kandy Municipality is illegal being
contrary to the bye-laws of the Council (il.
(a) Vand D . C, 192,
(b) Tatham v. Emily Chinniah, L, 17.
(c) Velupillai v. Ponniah, Wendt. 276.
(d) Sedupady v. Nicholas, Ram., (1843-55), 113.
(e) Raman Chatty v. Joedt,, Ram., (1863-68), 197.
(/) 2 Lor. 106.
(g) V. D. L. 1. 14, 6; 2 W. P. 493,
(h) Grat. 3. 1. 41; 2 W. P, 521; Perera v , De Alwis, 1 Lead, 55.
(i) Mohideen v, Saibo , (1913) 17 N, L. R, 17.
ANTE-NUPTIAL CONTRACTS. 375
III.-Penal Sum.
If a contract is for a matter of uncerbain value, and a,
fixed sum is to be pai d for t he breach of one or more of its
provisions, the sum may be recovered as liquidated damages .
If a contracri is for a m'l.tter of certain valu; and on breach of
it, a sum is tio ba paid in exce3s of that value , this is a penalty
and not liquidated damages, If fl, cont t'!LC "i CJntain ecJ a num be/
of tetms, some . of whicl:i are of certain and so me of uncer tain
valu':l and a fix:e d sum is i,o be oai,1 for t he hrell.c h of a ny of
them , this is a g~p~lty (al. A C'rn rt mi gh t awrird as damages
the amount of the pen alt y stipul ated batween th e pa rties, if it
was not toJ excessive or disproportionate to the ci rcumstances
of the -case (b) . The use of th e wol'ds " pen:i,lt y or liq uidated
damages " does n ot determine the intention of the parties (c) .
In contracts of an executory kind, a clause is usually
inseded stipulating for the payment of a sum of money either
by way of penalty or (or liquidated or -ascertained damages , in
case of violating any of the articles of tba contract by either
party. The latter mode is to be preferred as it prevents tb e
nece.;isitr of the Court fixing t he amount of damages. The
mention of the word " pen alty " or "penal sum " prec:ludes the
Court from considering it as liqui dated damages (d).
Where a certain pen alty was fixed by agreement for
non-delivery of goods nothing in exc:ess 9f that amount could
be claimed (e).
IV.-Ante-nuptial Contracts.
An ante-nuptial contract (pactum antenuptiali um) is an
agreement made by two intending spouses regulating the
disposal of the property brought by them on marriage, and of
that which they may afterwards acquire (j).
(a) Anson on Contracts, 278; 2 W. P, 51!1.
(b) Fernando V, Fernando, 4 N, L, R. 285,
(c) Webster v. Bornnquet, 13 N. L. R. 47.
(d) Smith V, Dickenson, 5l B. and P : 630; 1 Or, 80.
(e) Lenora v. Amera Sekara, 5 N. L . R, 114,
(/) H. T. 235.
376 OH. XVII.-AGREEMENTS.
It may take place on the firs t, second or subsequent
marriage. It must be made before marriage, being invalid if
made afterwards (a).
An ante-nuptial contract cannot be altered or revoked
d uring marriage. It can only be revoked by last will, and the
.revocation is of no effect until it is confirmed by death (b) .
But any condition may be stipulated during marriage ;. and it
would have the effect only of a gift betwee~ man and wife (c).
Where parties desire to intermarry so as to exem pt their
union from the consequences of marriage, they may regulat_e
their terms and condition by an ante-nuptial contrac~. B~ it
all such conditions may be stipulated as the parties thrnk
proper, provided they are not contrary to the nature of
marriage.
The most ueual conditions under the Roman-Dutch Law
are :--
(a) That th~ parties shall on each side, bring in their
separate property to the support of the marriage, without,
however, thereby inducing any community of goods. [Under
our present law community of goods is no~ a consequence of
marriage (d) .]
(b) That the one shall not be an~werabie for the debts of
the other contracted before or after the marriage. [By_ Ord.
No. 15 of 1876 tho woman married after the proclamation of
the ordinance (viz., 29th June, 1877) is exempted from such
liability.]
(c) That the gain or loss shall either be mutu~l or that
the community in this shall be excluded or that the wife o~ her
heirs shall have the choice, on the dissolution of the marriage,
to aha.re or not in the profit and 'loss.
(d) That the wife, for her property, on the dissolution of
marriage, shall have the right of dower, lega} mortgage or
preference.
(a) H. T, 235, (c) H . T. 236.
(b) H, T. 239. (d) Ord, No, 15 of 1876, Seo. 8.
F ORM OF AN ANTE -NUPTIAL CONTR ACT. 377
(e) That the wife shall have l;he adminisbration of her
-own property without its being subject in an y way to the
marital power. [The power of the husband to appear fo r his
wife in Cou rt cannot ha removed even by ante-nuptial con-
t ract (a) J .
(f) That t he survivor shA.11 be entitled to a certain sum by
way of gift [called Don(.irie], out of t he goods of the party who
dies first.
(g) That the goods of the parhies shall be contributed
towards the support or uses of the marriage.
It is necessary t hat an ante,nuptial contract should be in
writing and contained in a notarial instrument (b) .
It is competent to Mohamedans to enter into a valid
ante-nuptial contract regulating succession to property (c).
Form of an ante-nuptial Contract.
Stamp
No.--
To all to whom these present's shall come we A. B. of--
and C. D. of-.--send greeting :
Whereas a marriage is intended shortly to be had and
solemnized between the said A. B . and C. D.
And whereas the said intended consorts wish to avoid tbe
.,
.consequences which might result from such intended marriage
being solemnized in Ceylon, without ante-nuptial contract.
Now therefore these presents witness that in pursuance of
the said wish and in consideration of the said intended
marriage, the said A. B. and C. D. have contracted and agreed,
as by these presents they do contract and agree, with each
other by way of pacta antenuptialia or marriage contract, . as
follows, to wit : -
1st. That there shall be no community of property, or of
. profit and loss, between the said int.ended consorts, but that he
(a) Voet 5, 1. 14; 2 W . P, 116,
(b) Bal. P. and T, 21 ; V, D, L, 1. 3. 3.
(c) Rahiman Lebbe v. Hassan Usan Umma, (1916) 3 C. W. R, 88.
48
.
 FORM OF AN AGREEMENT . .. . .. OF PROPERTY. 379-'.
CH. xv11.~AGREEMENTS.
378 Form of an Agreement for the Sale of Property.
his or her estata
. . I tain and possess a11 Stamp. No.--. Prior Registration .
or she shall respecaive Y re ion expectancy
and effects moveable and immoveable, in possess ma~ have any Articles of agreement entered into between A. B. of--
. t h h he or she has or
or contmgency, or ?w ic ff t Uy as he or she [vendor J for himself, his heirs, executors and administrators of
eventual right or title, as fully and e ec ua. ge did not take the on0 part and C. D. of --[purchaser] -for himself, his heirs ,
might or could have if the said intended marria axecutors and adroinisfrators and assigns of the other part.
place. Witness that the said A. B. doth hereby agree wibh the
t be answerable for said 0. D. to sell to hiro the said A . B. all that allotment
2nd. That the one of them .shall ;~barn but that each [description of parcels], for the sum of Rs.-'--to be paid at the
debts and engagements _of the other ; bts--c~ntracted before time aod in the manner hereinafter expressed, and that he the
shall be answerable for his or her own e
said A. B. shall and will within two months from the date
or :lfter the said intended marriage.
hereof at his own expense furnjsb the said C. D. with a full
. . d d consorts shall be at. and satisfactory abstract of the title of him the said A, B. to
3rd. That each of the said mten e ff t b will
. . rt and e ec s, Y , the whole of the said premises, and also that he the said A. B.
liberty to dispose of his or her ~rope __Y as he or she mw or his heirs .and all other necessary parties shall and will on or
codicil, or other testamentary d1spos1t1on,
before tbe--day of--19O9 next ensuing, on receiving from
think fit. the said C. D., his heirs, executors or administrators the sum of
d ring the existence of Rs.--at his request costs and charges of him the said 0. D.,.
That Lhe said A. B . shall, u . d t t1on,
4th d lusve a romis ra his heirs, executors and administrators execute a proper convey -
the said ma,rriage, have the sole an axe f. his said intended
of all the property, estate and effects o f the support of
ance for conveying and assuring all that said allotment
.
consort, as we 11 as h 18 own,
for the purpose o
. he may at all
[parcels1 unto the said C. D., his heirs, executors, administratcrs-
to which purpose and assigns free froro all encumbrances.
the said intende d marriage, t thereof but so,
t th t rest and usufruc ' In consideration whereof the said 0. D. hereby agrees-
times appropria e e m e . other right or power
however, that he shall not acquire apy t and shall not with the said A. B. that provided the counsel of the said C. D.
over the property of the said intended consore,ll or otherwise . shall approve of the title of the said A. B. to the said premises--
- d r te or s '
encumber, mortgage, ple ge, or a iena f unless with the he the said 0. D., bis heirs, executors, administrators or assigns.
. h r any part thereo , on- the execution of such conveyance as. aforesaid shall and
dispose of, t e same O - d d consort, signed and
special written consent of bis said mten e will pay the said sum of Rs .--unto the said A. B., bis heirs,.
subscribed by herself. executors or administrators,

. . b a.id A. B. and C. D. And further that any trifling error or omission which
Upon all which cond1t1ons, t e s .d . t ded may appear to have been made with respect to the quantity
t have the sa1 m en
respectively promise and agree . o l to act up to the tenor or other description of the said premises shall not vacate the
marriage solemnized, and respe~t1_ve Y 11 w each other the contract but a reasonable abatement shall be. made by the said
of these presents, mutually prom1smg t_o at" on of their persons A. B., his heirs, executors and administrators. And further,_
full force and effect hereof, under obhga io - tha_t any loss . or damage which may happen to the said
and property according to law. premises by fire or otherwise or any benefit which may accru&
to it between the date of these presents and the completion o.f'<
'd A B and C. D., &c.
In witness \Yhereof we t h e sa,1
"380 dH. XVII.- AGREE MENTS.
t he pU!'chase Shall not l' n anywise affect or vac ate th e
contract.
In witness whereo f we th'e sa1'd .A,
---i B . and 0. D., &c. [S_ee
pages 36 to 40 above.]
For m of an Agreement for letting an inten~e(l
Purchaser into Possession.
Stamp, N. 0 _ _ . .P rior Registration.
Memor'andum ~f agreement made this-day of:-1909,
Between A. B. of--(vendor) of t he one par t and 0 . D.
-of -- (purchaser) of the o~her part :
Whereas by an agreement entered into the--day 9- -
1909, the said A. B . agreed to sell and the sa~d ?
D . agreed to
purchase all that house and premises [description of parcels] , .
Now these presents witness and it is hereby declared and
agreed by and between the said parties that the eaid 0 .. D. may
be let into and take immediate possession of the sa~d ~ouse
and premises so contracted tQ be sold to him as aforesaid_ for
his own benefit in as full and ample a manner as if a
-conveyance of the same had been executed.
Provided always that such taking possession shall not be
deemed to be an acceptance of the title or as an abandonme~t
on the part of the said C. D. of his right to h_ave.al~ valid
objections thereto fully removed and all de_fect1ve evidence
supplied at the expense of the said A. B.
And the said A. B. doth hereby agree that he will fort?-
w ith proceed with the said contract and remove all_ valid
objections to be made to the said title and supply _all evidence
which may be defective therein.
In witness whereof we the said A.' B. and C. D., &c.
Form of an Agreement for Lease of a House.
'Stamp. No.--. Prior Registrati_on.
Articles of agreement made, entered into and concluded
this--day of--1909,
.
FORM OF AN AGREEMENT ... . .. AND A FACTOR. 381
Between A. B. of--. [lessor] of the one part, and C. D.
of - - [lessee] of the other part, whereby the said A. B. agrees,
t>y an .indenture of lease to be executed on or before the--day
of--next ensuing to demise and let unto the said C. D.,
' All that house and premises with the coach -house and
garden called-, -bearing assessment No.--,-- street within
tbe Municipality of Colombo, and bounded on the East by
the Wesleyan l\fo1sion Church, on the North, West and South
by Road, ip.. extent 1 rood,
To hold the same for the said C. D. , his heirs, executors
and administrators from the--day, of--next ensuing for
t he term of six years at the . yearly rent of Rs.--clear of all
taxes municipal or otherwise and payable quarterly. In which
leas~ shall be contained covenants on the part of the said
C. D. to pay the rent, to repair t he premises and to deiiver up
the same at the end of the said term in good and _tenantable
repair, and also not to assign or under-let the said premises
without the license of the said A. B. with all other and
reasonable covenants and a proyiso for the re-entry of the said
A, B. in case of non-payment of the rent for one month after
the said day of payment or of non -performance of the
covenants, and that there shall be a covenant on the part of
the said A. B. for the quiet enj oyment of the said C. D., his
heirs, executors and administrators of the said premises during
the said term upon payment of rent and perform ance of the
covenants. And it is hereby agreed by the parties hereto that
t he expense of preparing these presents and the said lease shall
be paid and borne by the parties equally.
In witness whereof we the said A. B. an d C. D ., &c.
'
F orm of an Agr eement between a Merchant and a '
Stamp.
Factor. l
No.-- j
Articles of agreerr::ent made, entered into and concluded
this-- day of--1909, between A. B. of - -[merchant] and
0 . D . of- - [ factor ]. :1
..

382 CH. XVII.-AGREEMENTS.
Witness that for the co~sideri:.tion hereinafter contained
on the part of the said A. B., be the said C. D. for himself, ?is
beirs, execu'tors, administrators and assigns doth agree with
the said A. B. that he the said 0. D. shall and will during tho
term of five years from the aate of these presents accept ~nd
take into his ch.a rge all such goods, wares and merchandises
as he tbe said A. B. shall send and consign to him the said
c. D. and also shall use his best endeavours to sell and
dispose of the same to the bes~ profit and advantage.
And also that he the said C. D. shall and will keep a true
account of all such . goods of the said A. B. from time to time
consigned to him or that may come into his. hands_and of all
sales, barters and other transactions concernrng the. same ancl
shall every six months make true payment and delivery t~nto
th e sa1'd A. B ., hi's heirs , executors administrators and ass1gvs
of all such moneys, securities and other things as shall be
-received by the said A. B. for the said wares and merchandises
and at the expiration or sooner' determinati_o n of the said term
shall and will deliver up unto the said A. B. all such goods,
1-
wares and merchandises as shall remain in the custody of the
.iaid C. D.
And also that the said C. D. shall not, nor will give credit
;
to any person or persons for a greater length of time than
three months without the consent of the said A, B.
And also that the said C. D. shall not during the said
t erm deal or trade as a factor for any other person for the
buying or selling of any wares or goods of a like kind.
And the said A. B. in consideratio'n of the said agency
doth hereby agree with . the mid C. D. tbat he the said A. B .
shall and will pay unto the said C. D. yearly and every year
the sum of Rs.--so long as be shall continue' the factor of
the said A. B. under the present agreement.
In Vi'.Hness wh ereof we the eaicl A. B. and 0 . D. , &::.
FORM OF A BUILDING CONTRACT. 383
Form of a Building Contract.
'Stamp. No.--
Articles of agreement entered into this--day .bi--1909
between A. B. qf--and C. D. of--,buildArs and contractors,
hereinafter .called " builders " of the first part, and E: F.,
G. H., and J. K., of-- carrying on the business of bankers in
co-partnership under the name or style of E. F. and Company
-of the second part.
Whereas the said parties hereto of the sec~nd part being
desirous that a banking-house with suibable offices shall be
erected on a certain piece of ground belonging to them, situate
in the main street, Galle, have appointed L. M. of--to be the
architect for that purpoi!fe, and whereas plans, drawings and
elevations of the said intended banking-house and offices and
a specification of the works to be done, and of thA materials to
be provided in anrl for the erection of the same, have been
prepared by th!) said L. M. and approved of' by the parties
hereto of the second part, and whereas the builders are
w.illing to contract for the execution of the said works for the
sum of Rs. 50,000, and whereas the said plans, drawings,
elevations and specification have been signed by the said
-builders and by the said L. M. and a.re annexed by way of
schedule to this agreement, and whereas it is intended that
he due performance of this contract Rhall be secured by the
joint and sev'eral bon,d of the' builders a~d of N. 0. and P. Q.
a,s sureties for the builders.
Now it is hereby agreed between the parties hereto as
follows:- ~
1. The builders will well and substantially erect and
.complete tba said banking-house and offices in a good, lasting
and workman-like manner, according to the instructions and
directions and in the manner expressed or contained in the
said . specifications, plans, drawings and elevations ; a nd will
provide, execute, perform and fully complete all and singular
the materials and works respectively specified, required and
set forth in the said specifications, plans, drawings and
elevations or to be implied ther efrom or to be incidental
 ... 1
384 OH. XVII.-AGREEMENTS.
thereto; and will complete all the said works with materials
of the best' a~~lity in the most substa_ntial ar.d workman-like
manner, an~ fo the satisfaction of the said L. M. or such
other architect, without reference to any other person ; and
will in ali r~spects, comply with and abide by the true. intent
and meaning of the said specification, plans, drawings and
elevations and of this agreement.
2. The builders will cover in the roof qf the banking-.
house on or before the--day of-_-,1910 and will finish
and complete the said banking-house and offices on or before
the--day of--1910 ; and if the sai.J banking-house and
office shall not be completed on or before the said--day
of-~1910 the builders shall forfeit, out of the moneys
whicl:i shall be due to them by virtue of .this' agreement
the sum of Rs. 1,000 for every day ~hich shall elaps_e after
the .said--day of--191O until the said banking-house and
offices shall be completed.
3. In case the said L. M. oi; such 0tl1er architect as
aforesaid shall consider any part of the said works t<:> be
executed' ' in an . unsour1<l and imprqper mannep, the said
builders will cause the same immediately to . be taken down
and executed in a proper "manner and to the sailis{actio~ of the.
said L. M. or such other architecli' af! aforesaid without any
extra charge or exgenses whatever.
4 Aid the said E. F . and Co. doth hereby, for themselves,
their ~airs, executors, administrators and, assigps, covenant
and agree with the said builders, their heirs/ ex\:)cutors,
administrators and assigns thab the sai:d E. E. an,d Co. and
their afore written shall and will well and trul:y pay or cause
to be paid unto the said builders and their aforewri-tten the
said ~sum' of Rs. 50,000 in manner following : (that is to say) ,.
Rs. 48,000 a part thereof, shall be paid by twelve instalments
" of Rs. 4,000 each, upon the certificate from time to time of the
said L. M. or such other architect as aforesaid, that work and
materials to a sufficient amount shall hitve been done, executed
and provided by the said builders to th_e satisfaction of the
said L. M. or such other architect as aforesaid and the balance
. .
TRANSFER AGREEMENT. 385
'
Rs. 2,000 shall be paid within ~
.
week after the whole of the
1iaid works shall be completed and finished and the accounts
m ade up.
And lastly it fs hereby agreed by and :between the saicl
,,p arties to these presents that if any dispute . or difference. sqall
~hal)p~n to arise tou~hing th.a said house and buildings o~ the
money to be paid in the manner aforesaid then and in
such cas~ it l'1h11,ll be left to the determination and award:.of .
three fod,ifferent persons one to be named by tbe builders,
their heirs, executors or administrators and the other by the
'Said E. F. and Co., t,heir heirs, executors or administr.ators and
the third by the said two, pere;ns so to be n11,med immediately
after s~ch dispute sball arise. And the said J;>arties hereto do
, '
hereby covf;)nant 'and agree with each other that" the said
p arties shall and will severally stand to, abiqe by, perform. and
. keep the award and determination of t.he . said ,arbitrators
within one cal~ndar .month next after suoh refet lmce.
And for ..
the due fl)bs:rvance of the stipulations by, them
-mutually ;nt(?red into ea2h of the said parties by these
pr0sents doth blpd himself unto the other of them in the penal
-sum ~f Rs.--by way of liquidated d~mages.
... .
fo witaess whereof we the said A. B., 0. D., E. F., G. H.
.a nd J. K., &c . .
...
,.
Transfer
... ..
Agreement .
(Special Form) .
Adicles of ag~eament entered foto between M. G. of
J affoa for himself,,.his heirs, executors and administrators of
the one part and T. P. 0. of Jaffna, for and on behalf of his
'8~~-in-law W. A-. "R. of Jaffua, bu!; ' presently of Malacca,
-acting here _as his agent in J affna of the other part.
Witnesseth that the said 1\1. G. doth hereby agree with
the said T. P. 0. on behalf of his son-in-law the said
W,. A. R. to :eii to the safd W. A. R. all that allot;
ment of land or cocoanut estate ' commonly known as--. of
the e.x tent of 320 acres situated at--and all the live and
49
"'
 '.;_ '
386 CH. XVII.-AGREEMENTS,
dead stock belonging to the said estate and more fully. de scrib-
ed in the Schedule hereto for the sum of Rs. 1,06,000 to be
paid at the time and in the manner hereii;iafterexpressed, viz. ,
Rs. 2,000 to be paid forthwith at the execu~ion of these
presents and the balance sum of Rs. 1,04,000 .to be paid on or
before the--day of--and that the .said M'. G. and his afore-
written shall and will on or before the-_ - day of--or at any
time earlier at his expense furnish to the said T. P. O. with
full and satisfactory deeds of the said pr.emises and also that he
the said M. G. or his heirs and all other necessary parbies shall
and will on or before the said 10th day of September 1910
next ensuing, on re?eiving from the said W. A. R., his heirs,
~xecutors or administrators or his or their agents the sum of .
Rs. 1,06,000 of which the sum of Rs. 2,000 the said M. G. doth
hereby acknowledge to have received ~t his request or at the
request of the said T. P . 0. and at the costs and charges of
him the said W. A. R. and his aforewritten execute a proper
conveyance for conveying and assuring all the aforesr.id
premises unto the said W. A. R., his heirs, executors, adminis -
trators and assigns free from all encumbrances . If the
said balance amqunt of Rs. 1,04,000 is not paid within one
month of this date such balance Bhall carry with it interest:
at the rate . of 6 per cent. per annum from tbe end of
such month .
In consideration whereof the said T. P . 0 . for and on
behalf of the said W . A. R. agrees with the said M. G. that,
provided counsel of the said W. A. R., s hall approve of the
title of the said M. G. to the said premises he the said T. P . 0 .
for and <Jn behalf of the said W. A. R., hi,i heirs , executors,.
administrators and assigns on the execution of such con-
veyance as aforesaid shall and will pay the said sum of
Rs. 1,04,000 in the manner aforj:lsaid unto the said M. G., his
heirs,. executors and administrators.
And it is further declared and agreed by and between the
said parties that the said W. A, R . or bis agents the said
T. P. O. or his heirs, executors or administrators may be let
into and take immediate possession of l,lhe said premises so
agreed to be sold to him a,s aforesaid for his own benefit in as.
TRANSFER AGREEMENT. 387
full and ample a manner as if a conveyance of the same has
?een exe~ute(;l. ~rovided that t_he said M. G. may also remain
lil the said premises until tho completion of the said con-
veyance and that no party shall remove any future produce of
crop from the said estate until completion of the said con-
veya~ce except with the written consent of the other of them .
Provided also that such taking possession of the said estate
shall not be deemed, to be a n acceptance of the title or as an
abandonment on the part of the said W. A. R. or his afore-
written of their right to have valid objection thereto full
r~moved and all defect'ive evidence supplied at the expense :r
the said M. G. and the said M. G. doth hereby agree that ha
will forthwith proceed with the said agreement or contral't:t
and remove all valid objections to be made to the said title
and supply all evidence which may be defective therein. ,
And further that any trifling error or omission which may
appear to have been made with respect to the quantity or
other description. of the said premises sh all not vacate the
agreement or contract but a reasonable abatement shall be
made by the said M. G., bis heirs , executors or administrators.
And fur Lber that a ny loss or damage which may ha ppen
to the said premises by want of rain or otherwise or anv
benefi t which may accrue to it between t he date of thes-e
presents and the completion of the purchase shall not in
anywise effect or vacate the agreement or contract.
And it is further agreed between the said M. G. and
T. P. 0 . that the said T. P. 0. would forego an amount of
Rs . 5,000 including the amount juJSt now paid in case the said
W. A. R. does not purchase the said premises and that the
said M. G. binding himself, his heirs and his aforewritten to
transfer the said premises to the said W. A. R. and bis
aforewritten as a specific performance in terms of this agree-
ment.
In witness whereof.

CH. XVII,-AGREEMENTS.
388
Agreement to give Dowry.
Memorandum of Agreement enttered into between K. K.
and wife s. of--for themselves, their heirs, 1:,xecutors and
administrators of the one part and 0. wife of P. T. of--
of the other part.
Whereas a marriage bas just been registered bet'Yeen the
said o., daughter of the said K. K. and P. T.' but the ~on-
summation of marriage according to Hintlu rites have een
postponed to--, .
t\.nd whereas i~ bas' been agreed and settled by and
betw~en the said parties that the said K. K. and wife S.
should give . to the said 0. by way of dowry Rs. 25,000 worth
of landed property free from all encumbrances and Rs. 5,000
worth of jewellery.
And whereas the several lands belonging to the said K.K.
and wife S. become free from encumbrances only in Sep-
tember, 1915.
Now this Memorandum wit,nesseth that the said K. K.
and wife S. do hereby agree to give by way of dowry
Rs. 25,000 worth of landed property wit.bin six m~nths from
this date and Rs: 5,000 worth of jewellery at the time of the
consummation of the marriage according to Hindu rites.
And now know ye and these presents witness that tue said
O. and husband P. T . do hereby agree to accept the said land~d
property and jewellery of the aforesaid value on the aforesaid
dates.
And it is further agreed by and between the parties that if
any dispute or difference relating to the valuation of tbe s~id
la.nded property or jewellery shall arise among the parties
then the matter shall be referred to the arbitration of two
indifferent persons to be chosen by the said parties or their
aforewritten or of any umpire appointed by the said two
indifferent persons chosen in their stead, and the award of
which arbitrators or umpire shall be final.
In witness whereof
AGRl!:EMENT CORRECTING ...... IN A TRANSFER. -389
Agreement correcting the Description of a Land
in a Transfer.
An agreement ma~ and entered into between L. K .
of--of the one part and V. 0. of ---of the other part.
Whereas the said L. K. by right of inheritftnce from her
late mother S. and by virtue of long possession was seised and
possessed of a divided extent of th Lms. V. 0. out of a
piece of land called " A. M." in extent 4 Lms. V. 0. situated
at--and more fully described hereinbelow.
And whereas by transfer deed dated 11th May 1920
attested by S. K., N. P., under No. 1193 the said L. K. sold
and assigned tbe said th Lms. V. C. unto V. C. of--
describing therein that the said th Lens. V. 0. was on the
sou~h of the said entire land though in fact it was and is on
the west thereof.
And whereas the parties hereto have agreed that the said
transfer deed does not accurately set forth the true description
of the land conveyed thereby and _are desirous of rectifying in
manner herein appearing annexing to these presents a Survey
Plan clearly describing the said piece of land dealt with by
the said deed .
And whereas the th Lms. V. C. conveyed by the said
tra.nsfer deed is represented in the said Survey Plan as Lot 1
of the extent of 8 kulies, and the mistake on the said deed
No. 1193 can be rectified by scoring the word "South" in lines
7 of page 1, 6 of page 2 t\nd 2 from the eod of page 3 of the
3 copies in the sairl deed respectively and by interpolating in
its place the word " Wost."
II
Now these presents witnesseth that the word South "
in lines 7 of page 1, 6 of page 2 and 2 from the end of page 3
of the 3 copies of the said transfer dead No. 1193 of 11th May
II
1920 and attested by S. K., N. P., shall be read as West,"
and that the said transfer deed No. 1193 shall be read and
construed as if the said L. K. had duly conveyed, trans-
ferred, set over and assured unto the said V. 0., All that
 OH, XVII,- /\GREEMENTS,
390 AGREEMENT TO GRANT AN ANNUITY 391
divided Axtent of th Lms. V. 0 . but according to measure- shall recover inter~st on the s 'd .
ment as per Survey Phn dated 27th ,June 1920 made by this day by deed No tt a1 Bond No.--duly assigned
.--a ested by-- t d f
M~. S. E., Licensed Surveyor, and ap nexed hereto, contain an rate of eight . per cent a an a_ter the
!ilSr annum on th
extent . of 8 kulies, and marked Lot 1, on the " West " sum of Rs. 30 000 . d . e . said principal
' secure on the said B d N .
out of a piece of land called A. M. in extent 4 Lms. V. C. of at the rate of twelve on o.--mstead
the said Bond d par cent. per annum as stipulated in
with the appurtenances situated at Vannarponne East in the -. -an so ree t'l
parish of Vannarponne in the Division and District of ,Jaffna, be in force and no more. over un I the said Bond shall
Northern Province and which said extent of th Lms. V. C.
In witness whereof, &c,
ar 8 kulies is bounded according to the said plan on the
East by the property of S. S., on the Nortli by the property
of S. S., on the West by the property of S. E. and . on the Agreement to grant an Annuity (a).
An agreement made the--d
South by bye-lane.
In witness whereof the said L. K. and V. C. have
granter] of, etc., (hereinafter call ;Y of--between [intended
part and [intended annuitant] of a the gra_ntor) of the one
hereunto and to two . other.s of the same tenor and date as annuitant) of the . h ' etc., (heremafter called the
these presents set their hands at--tbis-- day of September Ou er part.

One thousand nine hundred and twenty . Whereby it is agreed as follows :

1. The grantor will sell and th ,
Signed in the presence of us : for the sum of d . e annmtant will purchase
if it be so agreed during thur1~l! thfe . life of tue grantor [or,
e ne o the an u't t
Agreement to get Reduced Rate of Interest on an t erm of--years or tor .
a term of
n I an , or for a,
on the death of the t . --years determinable
Assigned Bond. b . . ' 1as survivor of A B d O]
e paid quaderly on the I . . an . to
To all to whom, &c. deductions except income-ta;st:a quarter days free from all
Whereas it has been agreed between E. S. S. presently made on the--day of e first of such payments to be
--next.
of Madras and the said M. K. that the said E. S. S. should
get bis Mortgage Bond dated--and attested by---under 2, The said purchase-money of
the--day of-- t t --3ball be paid on
No.--in favour of the J.C. C., Ltd ., assigned in.favour of the . . . nex a the office of M
sohe1tor a t - a t h' h . r.---tbe grantor's
said M. K. and that the said M. K. i:!hould agree and covenant w IC time and I
s h all be completed. Pace, the purchase
as hereinafter mentioned.
3 Upon payment of. th
And whereas t~e said Bond No.--has this day been and in man f . e purchase-money at the time
ner a oresa1d the granto h 11 b
assigned in favour of the said M. K. by deed dated the--and ment grant the said a . r s a Y a proper instru-
nnUiuy to the ''t
attested by--under No.--and it has thereby become .t ors, adr:nin_istrators and . [ annm ant, his execu-
assigns or hei d
necessary that the said M. K. should execute these pres-ents. an d a l so charge th rs an assigns]
in the proceeds of t~ sam~ on the grantor's life interest
Now these presents witnesseth that the said M. K. for . e ree1duary real d
o f his late father [ J an personal estate
himself, his heirs, execu tors, administrators and assigns, agrees name under his will dated the day
and covenants with the said E . S. S., his heirs, executors and
administrators that be the said M. K. and his aforewritten (a) 1 Ency. 503.
 ...
392 CH. XVII,---:-AGREEMENTS. AGISTMENTS. 393,
of---and proved a t - - --on the---day of---such que vi~ ] an fl.nnui~ty or yearly sum of - - -
instrument shall contain all usual clauses and provision s- [half-yearly] payments on the----d f payable by equal
--d f ay O ----and the-
[including a proviso enabling tbe grantor to redeem and to be ay ~ --m every year the first of such payments
extinguish the said annuity on giving six calendar monthsr . ,ma e on the--day of--next but so that
notice in that behalf and paying all arrears if any by paying claim s~all be mada under these presents for pa ment oto,
to the annuitant such a sum as would then purchase a similar
annuity according to the Government tables].
~;~~ort1~dna[te pa~t of the said annuity to the day
e sa1 cestui que vie].
:f
the deat:

4 The said instrument shall be prepared by the grantor [Provided always that the Capital Stock of the C
at t,he annuitant's expense and sent to the annuitant or his- ~::~ and the accumulated funds for the time being belongin~:.
solicitor for approval at least seven days before the day above- f th u;pany and all other stock fund securities and property
named for completion. The expenses of and incident to the, ;h e ompany shall alone be liable to satisfy all claims under
engrossment and execution of such instrument shall be paid I' :~e :resents and no shareholder of the Company shall be,
and borne by the annuitant . sl: e efyo_nd t~e amo~nt of the unpaid portion of his share or
ares o the said Capital Stock].
5. In the event of purchase not being completed on the
day abovenamed from any cause whatever even the grantor's- s In
t witness
f whereof [two] of th e D'1rectors and the-
default the annuitant shall pay interest on the said purchase- e~re ary o the Company have hereunto
th1s--day of---. set their hands
money at the rate of ---per cent. per annum but shi\ll
be entitled 'to receive the said annuity as from the date named - - - - , Director.
for completion. - - - - , Director.
As witness, &c. Chief office , Secretary .
[Signatures of both parties] ..
at which notices of assignment of this annuity may be gi .
pursuance of the Policies of Assurance Act, 1867. ven m
Annuity created by Insurance Company (a).
[Here set out address of Chief office.]
The---fosurance Company, Limited.
Whereas [purchaser of annuity] of, etc., has made a Agistments.
proposal to the--Insurance Company, Limited (hereinafter
Agreement for the agistme11,t of cattle.
called the Company) for the purchase of an annuity of ,----
This agreement made
payable during the life of lcestui que vie] of, etc., and has.
between (occupier of land). of, ~c .. (h~relna.fte~ called the
delivered to the 9ompany a declaration setting forth that the
fa;mer) of the one part and (owner of cattle) of, &c. (hereinafter
said [cestui que vie] was--years of age on the--day of--~
ca led the stock-owner) of the other part.
Now these pres~nts witness that in consideration of the- Witnesseth as follows :
' sum of ---paid by the said [purchaser] to the Company
1.. The farmer agrees to take in, to graze and depastu
(the receipt whereof is hereby acknowledged) the Company upon his farm called ............ stock and cattle of th t kre-
.
hereby agrees with annuitant during the life of the said [cestui owner at the following prices namely cows Rn 2 e s ook-
l R I ' ~. per wee
caves e. per week, horses Rs. 5, sheep Rs. 3 per score e;
(a) 1 Ency. 511. week, corn or grass to be provided by the stock-o wner. p
50
"'
_j
394 CH. XVII,_.:c_AGREEMENTS,
2. The period of depasturing shall extend from the
--day of--to the--day of--.
3. The number of animals at pasture may b~ varied by
the stock-owner from time to time, but so that any ammal at the
pasture for part of a week sha_ll be paid for as for a whole week.
4. The amount payable for pasturage shall be ~aid. every
fourth week, the first payment to be made at the expirat10~ of
the fovrth week, from the date when ~attle are first t~ken m .
5 No animals shall be removed until payment Ill respect
of th~ir pasturage shall have been made. The _farmer shall
have a general lien upon the whole of the amm~ls of ~he
stock-owner upon the said farm for any sum for the time bemg
-Owing for pasturage and such lien may be enforced ~Y the
date by selling by auction or private contract any a01mal or
-animals for the time being upon such farm.
6 The farmer will take reasonable care of the animals
entrus.ted to him, but he shall not be responsible for any loss
arising from the restive nature or vice of tbe animals.' or other
matters over which he has no control n_or for any srnkness of
the animals. The farmer will give notice to t?e stock-own~r
of any sickness on the said animals so soon as it_ comes to his
knowledge but the stock-owner shall pay all veterinary charges.
In witness, &c.
" Milk for Meat Agreement "
Or agreement for the agistment of milch cows.
(See above form),
SPECIAL CLAUSES.
The agister agrees to take in, to feed, depasture and care
for 12 milch cows belonging to the cow owner fro~ the--.-
d Of ---to the--day--- i n coneiderat10n of bemg
ay
all6wed to milk the said cows and dispose of the mil k f or h'1s
own benefit.
The cow owner shall at all times have the right to come
unon the premisea and inspect the condition of the cows a_nd
i~ case he shall be of opinion that the same are in an unsatis-
factory state to remove the same.
CHAPTER XVIII~
DEEDS RELATIVE TO SHIPPING.
Definitions.
THE law in respect of all contracts or questions relating
to ships and to the property therein, to the carriage of goods
by ships, to bilis of lading, etc., shall be the law as administered
in England in the like case at the corresponding period (a).
Until the framing of
17 and 18 Viet., Cap. 104, an Act
relative to merchant shipping, which bas been repealed by 57
and 58 Viet., Cap. 60, all deeds connected with the sale,
transference or hypothecation of a British ship were ordinarily
executed before a notary. By this Act, however, certain forms
were provided whicb were required to be strictly observed in
granting powGrs of attorney to sell sbips, and in passing bills
of sale or mortgages (not bottomry bonds) Cb).
A registered ship, or share therein, may be made a
security for loan or other valuable consideration. Mortgages
will be entitled to priority according to the date of their record
in the register book and not according to tbe date of the
instrument itself (c).
A bottomry (nauticum foenus) is a contract on which
money is advanced upon the mortgage of a ve~sel, for the
purpose of the voyage and _th~ keel or bottom is pledged as a.
_s~urity J or payme!!h on the co; dition, that if the ves~el be
lost by accident during the voyage the lender loses his money ;
but if it arrives in se.fety he receives the principal and the .
(a) Ord, No. 5 of 1852, Seo. l.
(b) H, T, 349.
(c) 57 and 58 Viet., Cap, 60 ; H. T. 351.
..
396 CH. XV!II.-;-DEEDS RELATIVE TO SHIPPING.
stipulated interest however much it may exceed the legal mte.
As this debt is often contracted for the preservation of the
ship, a later bottomry bond takes prece3ence of an older
one (a).
Tbe master of a vessel putting into port where his owner
does . not reside, is entitled to take up money on bottomry,
for the necessary repairs of the vessel, for which the owner is
liable (b).
Bottomry is sometimes in the form of a deed-poll called
bill ofbottomry, executed by the borrower and sometimes in
the form of a bond with a penalty (c) .
Respondentia. is another species of contract of the same
nature as bottomry. This occurs when a loan is made jpon .
the securitv of merchandise laden on board the ship, not on
th; ; essel, but on the goods, and usually on the f-;eight also,
and tile repayment whereof is in general made to depend upon
the safe arrival of the goods (d) .
A respondentia bond is exactly similar to a bottomry
bond except as to the fact that the thing hypothecated is the
particular cargo to be enumerated in the bond and not the
ship. The several provisions as to the ship would be made to
apply to the cargo. The urgency for the loan is usually to
provide funds to meet the expenses of discharging, ware-
housing, re-shipping and other necessary disbursements on
account of the Gaid cargo (e).
Byl-bond,-Tbis is sometimes called "Water" or "Byl-
brief.'' It is a special hypotheo on a ship or a boat, sold by
the builder for the purchase price thereof. It includes the
masts, sails and everything belonging to her and the bond
remains good so long as the purchase amount is not paid.
(Van der Keessel Thes. 550) (/).
On the same principle that a later bottomry bond is
preferent to a former, so a bottomry bond is preferent also to
(d) H. T. 349.
(a) H. T. 348,
(e) 2 Cr. 1491.
(bi H. T. 349.
(f) Van Zyl, 418.
(c) 2 Cr: U86.
DEFINITIONS. 397
a byl-bond. [Van de Linden, Laws of Holland, pp. 426- 430
(Jutas Translation) ; Van der Keessel Tbes. 551] '(a) .
In a bottomry bond, tbe debt originates on a loan ; in a
byl-bond on a sale. In a bottomry bond, on the loss of tbe
vessel, the debt is at the risk of the creditor; in a by I-bond if
the vessel is lost, the personal obligation still remains. , I~ a
bottomry bond, not only the vessel, but the merchandise also
may be mortgaged ; in a byl-bond , the vessel alone is
mortgaged (b). A person who has effected repairs to a ship
acquires an ordinary lien and not a maritime lien for the cost
of the repairs and he loses bis right to enforce bis claims
against the ship after he gives up possession of tbe ship (c).
Average is defined as a loss arising from any voluntarv
act, done with a view of preserving the vessel and goods or ~f
averting greater and probable damage. Average is either
,general or particular, that is, it either affects all who have any
interest in the ship and cargo or only some of them (d) .
A ship protest is a declaration made by the master of a
vessel before a notary, consul, or other authorised officer upon
his arrival in port after a disaster, stating the particulars of it,
and 11howing that any damage or loss sustained was not owing
-to the fault of the vessel, her officers or crew, but to th e perils
-of the sea_, etc., as the case may be, and protesting against
them (e).
A charter-party__ may be described as a written contract by
which an entire ship, or a principal part of it, is let to a mer-
,ohant for the conveyance of goods on a specified voyage, or
during a specified period, in consideration of the payment of
freight (j).
(a) Van Zyl, 418.
(b) Van Zyl, 419.
(c) Ponnusamy V, Veeraka.tipillai, 13 N. L. R. 269,
(d) 2 Cr, 1491.
(e) Story ; Kent ; Webs.
(f) Abbott on Merchant Shipping (13th ed.) 218 ; Brooke, 161; 2 Cr ,
H91.
 CH. XVIII.-DEEDS RELATIVE TO SHIPPING,
398
A charter-party, in its ordinary form, commences by
specifying the parties between whom it is made. It contains
the name and tonnage of the vessel, and its situation, at sea
or in dock, at the time it is chartered ; a declaration on the
part of the owner that the ship is tight, staunch and strong,
and in every way fitted for the voyage ; a stipuhi.tion that the
ship shall with all convenient speed sail to the port of loading
and there load in the usual and customary manner, and being
so loaded shall forthwith proceed to tbe port of discharge, or
so near thereto as she can safely get, and there deliver the
cargo (perils and accidents excepted) to the charterers or their
assigns, the latter paying freight at the agreed rate. The,
stipulations on the part of the charterer or merchant are to
supply a full and complete cargo, pay the freight, load and
unload within a given time, and pay demurrage. The time
allowed for the loading and discharging the cargo, usually
called "lay-days," is always expi;essed in the charter {a).
Freight is the r(lmuneration payable for the carriage of
goods by sea. It is regulated by express agreement, and if
there be no agreement, by usage, or the course of former deal-
ing between the parties (b).
A charter-party is generally executed by the owner of the,
vessel when made at the place of his residence and sometimes
by the master also. If the charter-party is executed by the
master it ought not to be done in his own name nor without
authority given him by deed (c).
Besides his remedy by action, the carrier has a right to
retain the goods he has carried until the freight is paid. This.
right is called a iien, In the absence of express stipulation,
no lien exists for advance freight, or for freight made payable-
after delivery. The common law lien for freight exists only
when the payment of the freight and the delivery of goods are
contemporaneous (d).
The ship-owner has no lien for port charges or wharfage,
unless it is clear, from the terms of the charter-party, that it is
(a) Brooke, 162, (cl ll Crabb, 1492.
(d) Brooke, 165.
(b) Brooke, 164.
DEFINITIONS. 399
intende_d to be ~Bowed ; nor bas he a lien for dead freight ; nor
can a nght of lien be enforced for demurrage, or damages by
detention, where the charter-party does not contain a clause
giving such right; nor does the Jaw confer a lien in respect of
unliquidated damages (a). '
Be~ides lay-days, an additional number of days usually
concedect to the charterer, which are called "demurrage "
days" (a).
Whenever a charter-party is entered i~to, the number of
days 9,llowed for discharging or loading, as the case may be,
and th.9 demu_rrage to be paid in case of delay, ought to be
c~reful.y provided for; and they should also be inserted in the
bills of lading, in the case of a general ship (b).
A Bill of Lading is a receipt for the goods specified as
placed on board ship, which is signed by the person who con-
tracts to carry them or by his agent, and which also sets forth
tbe terms of the contract of carriage, the voyage, the consignor
and co~signee to whom or to whose order or assigns the goods
are deliverable; the freight payable, and the conditions and
excepted risks.
_ It is not _the contract, for that was made before the bill of
ladmg was _signed, but it is excellent though not necessarily
the sole evidence of the contract. (Per Lord Bramwell in
Sewell v. Burdick) (c).
, ~ea.ling, with a bill of lading by way of sale is termed
_negotiat_t10nd, han_d a bill of Jading being "to order or assigns,"
1s nego 1ate y mdorsement (d).
Masters . of every ship over 50 tons shall enter into an
~greeme~t with every seaman whom he carries to sea regard-
mg the time of work, wages, &c., and such agreements shall be
before a shipping officer who shall read and explain the same to-
the seamen (e).
(a)' Brooke, 167, (a) Carter, 198.
(bl Brooke, 168, (e) B~s. 17 and 18 of Ord. 7 of 186B.
le) Carter 197 ; 2 Or, 1481.
.
 ,,
..
CH. XVIII.-DEEDS RELATIVE TO SHIP~I~NG.
-400
Form of a Bottomry Bond.
Know all !lien by these presents that I, A. B. of---
master of the English ship "Ceylon" of eThven-hunared tons
~ .
register or thereabouts, am held and firmly bound unto C. D.
,of--in the sum of Rs.--to be repaid to the said C. D., his
agent, attorney, executors, administrators or assigns, for which
payment I bind myself, my heirs, executors and administrators
and also bind and hypothecate the said ship " Ceylon," the
cai:go ana the freight, to become due in respect to this voyage
firmly by these presents sealed with my seal at--this--
day of--,--,
Whereas the said A. B., being without sufficient funds or
credit at this port and urgently requiring the sum of Rs.--
to pay for repairs, supplies, and provisions which hava become
ne~essary to enable the sajd vessel to continue her said voyage
and to discharge the lawful and necessary disbursements of the
said vessel at this port, and to release her from her liabilUies
and to enable her to continue her voyage, and having first duly
communicated with the owners of the said vessel with a view
to obtaining funds from them and also with the consignees of
the cargo and not having receiv.ed a reply from them within a
reasonable time he was compelled to apply for a loan upon
bottomry of his ship, cargo and freight ;
And whereas the said C. D. proposed and agreed to
advance upon such security the said sum of Rs.--at- a mari-
time premium of--per cent. for the said voyage;
And whereas the said A. B. having ace.opted the proposal,
the said C. D. has duly advanced the said sum in pursuance of
tho agreement and proposal.
Now the condition of the above bond or obligation i; such
that if the said A. B. do with the said ship and cargo duly
prosecute the voyage and do within---days after the arrival
of the said ship at the port of discharge pay or cause to be
paid to the said CJ. D. or to his order or assigns the said sum of
Rs.--with the maritimetbremium thereon at the rates afore-
-said, or if the said ship shall duly prosecute her said voyage
.
FORM Oli A RESP()NDENTIA ...... EAST INDIES. 401
and shall be by perils of the sea lost in tbe course of such voy-
age, or on payment to the said C. D., in case of the loss of the
said ship such an average as by custom sha n become due on
the salvage, then this obligation and hypothecation shall be
null and void and . the said A. B. shall be released from all
liability in respect of the said sum aforesaid , otherwise to
fe main in full force and virtue.
In witness whereof, &c.
Form of a Responden tia Bond on a Voyage to
the East Indies (a).
Kno w all men by these presents, that we, J. P. F. , Com-
mander of th e ~hip, Belvidere, and P. D.., of Fitzroy Square,
are held a_nd firmly ~o1;}ld to H. B., of New Board Street, ...
mercha nt , m the sum of,_tJenal'8 of one thousani:1 five hundred
pounds of good and lawful money of Great Britain , to be paid
to t~e- said H . B., or to his certain ~ttorney~ ei ecutors,
admm1strators, or assigns, to which payment well and truly to
be made we bind ourselves jointly and severally, our heirs,
executors and administrators, firmly by these presents. Sealed
with our seals, dated tbis --day of-- in the year 19-.
Whereas tbe above-named H. B., has, on the day of the
-date above written, advanced and lent unto the said J. P . F .
and P. D. the sum of seven hundred and fifty pounds noon. the
.goods and merchandises , ~and effects laden, and to b~ l~den on
board the good sh_ip or vessel Belvidere, of the h~rthen of nine
hundred and eighty-seven tons, or thereaboute, now riding at
anchor in tl:re River of Thames, outward bound to:China, and
whereof J. P. F. is Commander, by bis acceptance of a bill of
exchange to that amount, at four months' date, for the account
-of them the said J. P. F. and P. D.:
Now the condition of this obligation is such, that if the
s _aid ship or vessel ao and shall, with all convenient speed,
(a) Brooke, 397.
51
402 OH. XVIII.-DEEDS RELATIVE TO SHIPP.ING.
proceed and sail from and ou~ of the said river Thames on a
voyage to any port or place, ports or places in the East Indies,
China, Persia, or elsewhere beyond the Cape of Good Hope,
and from .hence do and shall sail, return, and come back into
the said river Thames, at or before the end and expiration of
thirty-six calendar months, to be accounted from the day of'
the date above written, and there to end her .said intended
voyage (the dangers and casualties of the seas excepted), and
if the said J. P. F. and P. D., or either of them; their or either
of their heirs, executor<! or administrators, do a_nd shall within
thirty days next after the said sbip or vessel be arrived at bet
moorings in the said river Thames, from her said intended
voyage, or at or upon the end and expiration of the said thirty-
six calendar months, to be accounted as aforesaid ( which of
the said times shall first and next happeni. well and truly pay
or cause to be paid unto the said H. B., his executors, adminis-
trators, or assigns, the full sum of one thousand and twenty
pounds of lawful money of Great Britain, together with thir-
teen pounds ten shillings of liRe money per calendar month ,
for each and every calendar month, and 80 proportionately for
a greater or lesser time than a calendar month, for all such
time, and so maoy calendar months_as shall be elapsed and
run out of the said thirty-six calendar months, and over and
above twenty' calendar months, to be accounted from the day
of the dato above written ; or if in the said voyage, and within
the said thirty-six calendar months, to be accounted as afore-
said, an utt(!r loss of the said ship or vessel by fire, enemies,
men-of-war, or any other casualties shall unavoidably happen,
and the said J. P. F. and P. D., their heirs, executors, or
administrators, do and shall within six calendar months next
after such loss, well and truly account for (upon oath, if requir-
ed), and pay unto the said H. B., his executors, administra-
tors or assigns, a just and proportionable average on all the
goods and effects of the said J. P. F. carried from England on
board the said ship or vessel, and the nett proc:eeds thereof,
and on all other goods and effects which the said J. P. F.
shaU acquire during the said voyage, for or by reason of such
goods, merchandise, and effects, and which shall not be,
FORM OF AN AVERAGE BOND AGREEMENT. 403
unavoidably lost, then the above-written obligation to be void
and of none effect, else to stand in full force and virtue,
Signed, sealed, and delivered
(being first duly stamped) by
the above-named in the
. .
presence of.
Form of an Average Bond Agreement
(Adopted by the Cape Town Chamber of Commerce, H. T. 369) .
Memorandum of agreement made tb is--day of--,
between A. B. of--, master of the ship or vessel called the
- - , and the several persons whose names or firms are set
and subscribed hereto, being respectively consignees of cargo
on b~ard the said ship of the other part.
Whereas the said ship ,lately arrived in the port of-- ,
on a voyage from -- , and it is alleged that during such voyage,
she met with bad weather, and sustained damage and loss and
that sacrifices were made and expenditure incurred which may
form a charge on the cargo, ~r some part thereof or be the
subject of a general average contribution, but the same cannot
be immediateiy ascertained, and in the meantime it is dosirable
that the cargo should be delivered.
N ~w, therefore, these presents witness, and the said A. B.
on his behalf, and on behalf of his owners, in consideration of
the agreement of the parties hereto of the second part hereinafter
contained, hereby agrees with the respective parties hereto of
the second part, that he will deliver to them respectively their
respec~ive consignments, on payment of the freight payable on
delivery, if any, and the said parties hereto of the s~cond part
in consideration of tbe said agreement of the said A. B., for
themselves severally, and respectively, and not the one for the
others of them, hereby agree with the said A. B. that they will
pay unto the said A. B. or the owners of the said ship, the
proper and respective proportion of any general average,
or particular or other charges which may be chargeable upon
their respective consignments, or to which the shippers or
404 CH. XVIII.--DEEDS RELATIVE TO SHIPPING.
owners of such cousignment may be liable in respect thereof
to contribute to such damage, loss, sacrifice or expenditure,
and the said parties hereto of the seco~d part further promise
and agree forthwibh to furnish to the said A. B. or owner of
the said ship a correct account and particulars of the value of
the goods delivered to them respectively, in order that any
such general average and other charges may be ascertained
and adjusted in the u0ual manner.
And whereas at the request (a) of the owner of the said
ship the parties hereto of the second part have respectively
deposited or agreed to deposit in the Bank of--in the joint
names of--nominated on behalf of the ship owners, and
nominated on behalf of such depositors, the sum of RR.--
per cent., on the amount of the estimated value of their
respective interests. Now it is hereby further agreed t hat the
~urns so deposited by the sairl parties respectively shall be
held' as secu rity for and upon trus t for the payment to the
parties entitled thereto, of the general average and particular
charges payable by the said. parties hereto of the second part
respectively as aforesaid, and subject thereto upon trust for
the said depositors respectively.
In witness whereof the several parties, viz. , A. B., C. D.,
E. F. (consignees), &c.
Charter-party.
(Ordinary Form).
This charter-party of affrsightment indented--made and
concluded this--day of--between A. B . of--owner of
the ship called" Japan," burtben about 1,200 tons of the one
part and C. D. of--of the other part witnessetb,
That the said A. B. doth hereby grant and to freight let
unto the said C. D. the said ship or vessel and the said C. D.
bath actually hired the same for the voyage hereunder
mentioned. And therefore the said A. B. doth hereby for
himself, his heirs, executors and administrators covenant and
agree with and to the said 0. D. in manner following ; (that is
(a) This clause is added only on special occasions, (H. T. 361),
CH ARTER-PARTY (A CANDIAN TJMBERCHARTER). 405
to say), that the said ship shall be rendered tight, stout and
staunch and be fitted, maae ready and provided with all things
fitting for such a ship and voyage and sb;ll receive and take
on board her all such goods as the said C. D . shall load on
board her with respect to the several parts of the tonnage to
him let and shall sail directly unto L. (wind and weather, the
dangers of the sea and the restraint of princes and rulers
always excepted), and within 10 days after her arrival there
or sooner shall unload and deliver all her suoh goods unto the
factors of the said C. D.
And the said C. D. in consideration of the premises doth
qer~by covenant and agree with the said A. B. and bis heirs,
&o., that he, the said C. D., his heirs, executors, &c., shall and
will unload the said goods within the time before limited and
will also truly pay or cause to be paid unto the said A. B., bis
heirs, &c., freight, for every ton of goods which shall be laden
and delivered to the said C. D. or his factors at L. as aforesaid
and after tbe rate of Rs.--per ton for every ton of goods and
proportionately for every lesser quantity than a ton ~itbin ten
days next after sugb discharge with Rs.--per ton primage (a)
and will also pay average as accustomed together with the
third part of all port charges to grow during the said voyage.
In witness whereof we the said A. :S. and C. D., &c.
The Charter-party (a Candian timber-charter) (b) .
It is thiS' day mutually agreed between (A. 0. Johnson
Co.), owners of the good Sailing Ship called the (Erling) of the
measurement of (1,216) Tons Register, or thereabouts, now (in
Norway) and Messrs. (Richd. R. Fox cf; Co.) of (London):
1. That the said Ship being tight, staunch, and strong,
and every way fitted for the voyage, shall, with all convenient
speed, sail and proceed to [Three Rivers Wanc;,da)] , or so near
thereunto al;\ she may safely get, there load, always afloat, in .
(a) The word " Primage" denotes a small payment to the mMter for
his care aad trouble, which he is to receive for his own use, unless he has
otherwise agreed with the owners. (2 Cr. 1484,l
(bl Carter, 206,
406 CH. XVIII.-DREDS R t LATIVE TO SHIPPING.
a safe berth as dire~ted after arrival from the Factors of the
said Merchants, a full and complete cargo of (dry or bright
deals and battens) and a lawful deck load at Captain's option
at full freight, with the necessary Ends 9 feet and under (as
required by Captain) for broken stowage only, not exceeding
what she can reasonably stow and carry over a,nd above her
Tackle, Apparel, P rovisions, Furniture, and Fuel, and, being
so loaded, shall therewith proceed to (London) or so near
thereunto as she can safely get, and deli var the same; al ways
afloat, as per Bills of Lading, on being paid freight, as
follows:-
For Deals, Battens I 2 I 12
s. a. I, per St. Petersburg Stand-
1
ard Hunqred.
For Ends, 9 feet and
under (2 /3 freight) per St Petersburg Stand-
ard Hundred.
(Not over 5 Stds. 9 feet at 2/3 freight).
Freight payable on Deals; Battens, Deal Eads, and Swan
Lumber on the intake measurement of pieces delivered as
ascertained at the Port of Discharge, being in full of all Port
Charges, Pilotages, Pierage, and Primage, as customary (the
Act of God, Perils of the Sea, Fire, Bal'ratry of the Master
and Crew, Enemies, Pirates and Assailing Thievefl, Arrests and
Restraints of Rulers, Princes, and People, Collisions, Strand-
i'ng, and other Accidents of Navigation mutually excepted, even
when occasioned by negligence, default or error in judgment
of the Pilot, Master, Mariners, or other Servants of tbe
Shipowners) .
2. Freight payable as follows, viz. :-One-third in cash
on arrival, less any freight advance made, and the remaining
two-thirds on right and final delivery of the cargo, in cash, 1
with two per cent. discount, less. value of cargo short or
damaged {if any), all in British sterling money. All the
'Charterers' liability to cease on delivery of cargo to vessel,
Captain holding a lien upon the cargo for Freight, Dead Freight,
and Demurrage. The Ship to discharge in such Berth or Dock
as ordered by Charterers or their Agents after arrival.
CHARTE,R PARTY (A CANDI AN TIMBER-CHARTER). 407
3. Tbe cargo to be supplied in (16) days, and to be
received from the Ship at Port of Discharge (in 15 working
days ) (Sundays and Holidays excepted), weather, fire, floods,
ice, strikes, lockouts, or labour combinations permitting, and
ten like days on Demurrage if longer detained, at the rate of
four pence per register ton per day, and pro rata for any part
. of the last of such days. Lay days to commence on Ship
getting into a proper loadin g or discharging berth.
4. Ship to be addressed to Char terers or their Agents at
Port of Loading, f_ree of Commission on this Charter.
5. Charterers to advance money for Ship's ordinary
disbursements at Port of Loading, if required by Captain,
subject to 2 per cent . .Dommission and to Premium of In-
surance. Master's receipt for advances to be conclusive
evidence that payment bas been made on account of freight,
and Charterers shall in no way be responsible for the appropria-
tion or any misappropriation of the same.
I
6. If ordered to London, and discharged in one of the
Docks fo the River Thames, the Freighters, to pay two-thirds
Of the dues. Ship to call at Gravesend for orders, there
..giving to consignees 24 hours' notice of her expected arrival in
discharging berth, and to discharge over side into lighters if
required by consignees.
7. The Cargo to be supplied to the Ship and to be taken
from alongside, as customary, at each port. Only Rope Slings,
or Chains properly canvassed, to be used for loading and
.discharging. Ship's Hold to be thoroughly swept ~~d cleansecl
.before taking in cargo.
8. Tbe Bill of Lading shall be conclusive evidence
againat the owners of the quantity of Cargo shipped on board,
as stated therein; and in case of short deliverv Owners shall
produce the log book and furnish an extended protest, if
demanded, showing the cause of such short deliverv before
,b alance of freight, becomes due or payable.
9. The Captain shall not be obliged to sign more tha~
-0ne set of Bills of Lading (not exceeding 5 in
flll) unless
408 CH. XVIII.-DEEDS RELATIVE TO SHIPPING. FORM OF A BILL OF LADING. 409
written notice be given him before commencing to load, so as, and required the said E. F. to depart and sail with bis said
to enable him to keep separate the different consignments. ship, out of the said--, in order to proceed on her said voyage.
IO. The usual custom of the wood trade of each Port to, And notwithstanding the said orders, he the said E. F. has
be observed by each party in cases where not specially. neglected and refused, and delayed to proceed on the voyage
expressed. aforesaid, in breach of the said charter-part y ; therefore, they
' the said appearers requested me the said Notary to protest, as
11. Penalty for non-performance of this Agreement, by these presents I do solemnly protest as well against the
estimated amount of freight. said E .. F. as all ot hers whom it may and doth concern, fo1
12. Average, if any, to be settled according to York and breach of the said ch arter-party in not departing out of the said,
Antwerp Rules, 1890, but Jettison of deck load to be considered, &c., in order to proceed on the said voyage on or before the
general average. said--day of--instant, and f6r all costs, loss, damage
and detriment which they, t he said appearers, have already
[By Authority of suffered or sustained, or shall or may hereafter suffer or
A. 0. JOHNSON, ESQ. sustain by reason of the said ship departing and proceeding on
WILLIAMS & Co., her voyage as aforesaid, and for what else the said appearers
A.s Agents ..
can, may, or ought to protest, to recover the same in time and
Witness:
place convenient. Whereof an act being required of me, the
RICHD. R. Fox & Co.
said Notary, I have granted these presents, subscribed my
21-3-1900.]
name and affixed my seal of office this--day of--.

Protest for Breach of Charter-party (a). R. B.,

Notary Public, L. - - .
By this public instrument of declaration and protest, be
it known and made manifest, that on, &c., before me, R. D .,
Form of a Bill of Lading (a).
Notarv Public, &c., personally came and appeared A. B . and
Shipped, in good ordet and well con ditioned, by (John
C. D. ~f, &c., who declared, that whereas E . l:!~, master of the
Jackson and Co.) in and upon the good ship called the (Venus)
ship or vessel called Ada, of the burthen of, &a., or thereabouts,
whereof is Master for this present voyage (Paul Jones) and
had by charter-party under the hand of him the said E. F.
now riding at anchor in (Hobson's Bay) and bound for
bearing date the--of--instant, let the _said ship unto t~e -
[London, 100 (one hundred) cases whisky] being marked and
said appearers for a voyage with her to be made from this
port of--to ......... And whereas by the said charter-party,. numbered as in the Margin, and are to be deli -
vered in the like good order and well conditioned,
among . other things it was agreed that the said E. F. should
at the aforesaid Port of [London] (the King's
depart with the said sbi out of the ...... , wind and weather
Enemies, Fire, and all and every other Dangers,
permitting, on or before tbe-.-day of--instant in order to -_
and Accidents of the Seas, Rivers, and of N agiva-
proceed on the said voyage. And whereas they the said
tion, of whatever nature or kind soever, excepted save Risk of
appearers having fully loaded the said ship (as the case may be)
Boats, so far as Ships are liable to), unto (Messrs. Anderson
have several times since the--day of--instant, ordered,
n,nd Co.) or to (their) Assigns, Freight for the said Goods-

(~) Brooke, 356, (a) Carter, 196,

6!1

.

 410 CH, XVUI.-DEEDS REf~ATIVE TO SHIPPING,
[being payable at the rate of Five pounds eighteen shillings
Freight and sterling (5/18) in London) with Primage and
charges 5-IB . Average accustomed. In witness whereof, the
Master or Purser of the said Ship, hath
affirmed to {3) Bills of Lading, all of this Tenor and Date,
the one of which Bills being accom plished the others to
stand void . Dated in (Melbourne, Sept. 1, 1902).
(PAUL JONES).
Protest for refusing to sign a Bill of Lading for
Goods shipped at the Freight contracted (aJ .
By this public instrument of protest, &c., that, on &c.,
before me, R. D., Notary Public, &c., personally came and
appeared A. B. of, &e., who declared, and by these presents
declares, that on tbe- -day of &o. instant, he agreed with
C. D. master of the good ship Ada (bound from this port of--
.for - - ) to ship on board the said ship--tons--, and to pay
for the same at and after the rate of--per ton, accounting
--feet square to a ton. And that he, the said A. B. did
accordingly ship on board the said vessel the said--tons
of-, and did afterwards exhibit to the said C. D. the receipt
given by the Chief Officer of the said ship for the said, &c.
-of, &c., when the same was received on board the said ship,
and required him to sign bills of lading for the same, pursuant
to the said agreement; but the said C. D., master of the said
-ship, Ada, refused to sign such bills of lading, demanding
that the said A. B. (as the case may be) should pay at the rate
of, &c., per ton for the freight of the said, &o. contrary to
the agreement above mentioned. And therefore the said
A. B. required me, the said Notary, to protest against the said
C. D. for not performing his said agreement, and for refusing
to sign bills of lading pursuant thereto ; and for all loss,
-damage, and detriment that may be sustained by reason there-
-of. Thereupon I, the said Notary, in company and required him
to sign bills of lading for the said, &c., of, &c., shipped on
,board his said ship by the said A:H., and to insert therein that
(a) Brooke, 360,
FORM OE A SEA PROTEST OF A VESSEL. 411
the freight should be paid for t he same at the rate of, &c., per
t on, according to their said agree ment; to which the said C. D.
replied (state the answer) ; which !l,nswer not being satisfacto ry
I, the said Notary, did daclare that I should protest, an d by
these presents (at the request aforesaid) I do solemnly protest
as well against the said C. D. as against all others wh om it
doth or may concern, fo r all loss, damage and detriment which
m ay happen or be sustained by reason of t he said C. D.
refu sing to sign bills of ladin g fo r the sa id, &c., pursuant to the
agreement above-mention ea , and for whatever else can, or ought
to be protested concerning the premises, to be recovered in
t ime and place convenient ; whereof an act, &c. [See last formJ.
Form of a Sea Protest of a Vessel.
(Simple Form).
By this public instrument of protest be in known and
made manifest unto all whom it shall or may concern, that
A.B., master or commander of the English merchant schooner
Or vessel called t he Emily, of the burthen of 200 tons or there-
abouts at present lying at anch or in the port of Colombo, doth
hereby note his protest against gales of wind, bad weather, the
accidents of seas, and the damage the said vessel and her cargo
-may have sustained therefrom, on a voy age from Bombay
to this port, laden with a cargo of--resorving to himself
to extend this his protest in time and place convenient.
The said A. B. further declares, testifies and says for
truth, in manner and form following, that is to say, on the
--day of--in the evening between the hours 5 and 7 P.M.
the said vessel was visited by violent and tempestuous weather,
together with a very high sea running from North-east off
Quilon which carried away her bulwarks, anchors, cables, &c.
The said . A. B. further declares that the said vessel, at
t he time of her departure from Bombay aforesaid, was tight,
staunch and strong, had her batches well and sufficiently
covered, and was well and sufficiently manned, provided and
furnished with all things needful and necessary for the said
voyage dming the whole of which the said A. B. and the
ship's company used their best and utmost endeavours to
 412 CH. XVIII.-DEEDS RELATIVE TO SHIPPING.
preserve the said vessel, bar tackle, apparel and furniture, and
the cargo of ber lading, from damage or loss.
And the said A. B. doth hereby protest against tbe said
bad weather, gales, storms, accidents and occurrences, and all
loss or damage occasioned thereby, the same being entirely
owing to the facts and circumstances before mentioned, and
not to any insufficiency of the said vessel, her tackle, apparel.
or furniture, or neglect of the said master or of any of the.
mariners.
In witness whereof I, the said A. B., &a.
Ship Protest (Common Form), in Consequence -of
Loss or Damage by Storms and Tempestuous
Weather, and also by Jettison (a).
By this public instrument of protest,
Be it known and made manifest, that on tbe--day
of--, one thousand nin~ hundred and--, personally came
and appeared before R. D ., Notary Public, by royal authority,
dulv admitted and sworn, and practising in--, in the
cou~try of--, in the tfnited Kingdom of Great Britain and
Ireland, A. B., master of the good ship Eleanor, belonging:
to---, C. D ., chief officer, and E. F., carpenter of tbe said
vessel, who did severally, duly and solemnly declare and
state as follows, that is to say, that these appearers, and the-
rest of the crew of tbe said ,vessel, set sail in her from Calcutta
. on--last, bound on a voyage from thence to Liverpool,
laden with a cargo of (general goods), the vessel being then
tight, staunch and strong, well manned, victualled and sound,.
and in every respect fit to perform her said intended voyage.
That they proceeded on their voyage with fine weather and
variable winds, accompanied occasionally with rain until--.
when they had fresh gales from the south-west and passing
squalls, and a heavy sea running, and they shipped large
q~antities of water on deck, and over all parts of the ship,
the vessel plunging the bowsprik end under water; at noon,
(a) Brooke, 334.
SHIP PROTEST .. . ... ALSO BY JETTISON. 413
being in latitude 14 degrees 22 minutes north, longitude 18
degrees 13 minutes east, they had fresh gales from th e south-
west by west, with showers of rain ; at thirty minutes past
one they got the bowsprit secured, tbe ship labouring and
shipping great quantitiel'! of water. On--they had fresh
gales and squally weather, accompanied with rain ; at noon
they had fresh winds from the south-west, and a heavy
sea running, the ship labouring very mucb, and every atten-
tion being paid to the pumps. Th at they continued on their
voyage with variable winds and cloudy weather, accompanied
occasionally with rain, thunder and lightning, bu t wit hout
any extraordinary occurrence, until--, when they arrived
-off the Isle of France, and at four P.M. came to anchor at
Port Louis; took in water there, and on--again proceeded
-on their voyage with fine weather until--, which commenced
with strong winds from th e north-west, and a heavy sea,
the ship labouring very much. That they proceeded on th eir.
voyage, and on--, at three P.M., made the island of St.
Helena, bearing north-west by west. On---, at four A.M.,
kept away for the port ; took in water there , and at thirty
-minutes past eleven bore away, and set all possible sail. That
they proceeded on their course, and on---, being in latitude
-32 degrees 57 minutes north, longitude 33 degrees west., bad
fresh gales from west-north-west, with cloudy weather and
frequent showers of rain, t he sbip labouring very much and
-continually shipping heavy seas over all, and filling the decks
with water; at fifteen minutes past eleven A.M. kept the
-ship away to go to the eastward of the Azoree, the squalls
being very heavy, and the sea coptinually breaking over her,
and the, same bad weather continued un~il midnight with a
-cross sea running. On--more moderate, but at ten P.M.
had freshening winds from the north- east to north ; the eale
increasing at eleven A.M. carried away the jib sheet, and
tore the sail all to pieces before they could stow it. On--
they had more moderate weather, and proceeded on their
voyage. On-,-they made the island of St. Mary, distant
-eight leaguQs. On--the wind increased from tbe west-
north-west ; at one A.M. they had strong winds from the
westward, accompanied with rain, which carrieu away the

..
CH. XVIII.-DEEDS RELATIVE TO SHIPPING.
414
fore-topmast studding s<J.il boom ; at thirty minutes past
two they had a heavy sea from the north-west ; !l.t
thirty minutes past seven A.M. the ship laboured very
much, and shipped tons of water on deck, the main
deck continually full of water ; and they were trying .
the pumps every opportunity, and pumping every four
hours. On--they had steady winds from the south-west
and cloudy weather ; at noon, in latitude 41 degrees 27
minutes north, longitude 20 degrees 43 minutef! west ; at
three P.M. double-reefed the fore-topsails ; at eight they had
strong winds, with heavy squalls , from the west-south-west,
tbe sea getting up considerably ; at nine tbey had trem endous
gales from the west-south-west, and a heavy sea broke on
board, which carried away the long boat and skiff, bulwark
rails, stanchions, and swept the decks of spars, _and various
other articles, and the pumps were instantly set on ; at ten
P.M. had tremendous gusts, and a sea broke into the starboard
quarterboat, and burst her, and she was necessarily obliged
to be cut away. That in the course of the night they were
~ontinually pumping, found the ship making a great deal of
water, and on getting a light forward on the main deck, in
order to ascertain the extent of _the damage, found the deck
stove in very badly, and supposed it originated from the
force of the boat or spars going overboard ; the water still
gaining on them, they were obliged to continue at the pumps
throughout the night, and they found several stanchions gone
on the port side, and also all the oars, rudders, and everything
belonging to t he long boat and skiff, which had been lashed
inside, also , six water casks, and six more from the decks,
which had been properiy lashed ; several spars were lost, whfoh
were partially washed over the side, and which they were-
obliged to throw away, not being able to get them in ; the-
best main topmast studding sail, . and all the studding sail
yards were washed overboard, with all the studding gear, and
other ropes, and every light article about the decks, although-
everything had been se~urely lashed before the bad weather
commenced. The (date) commenced with heavy gales from
the northwest to north-north-west, being in . latHude 42
degrees 45 ,:minutes north, longitude 18 degrees west, the
SHIP PROTEST .. . ... ALSO BY JETTISON. 415
ship in the same state as on the preceding day ; at daylight
to alteration, the ship a perfect wreck, and they .cleared up
what spars remained, and secured them, and finding the ship
straining exceedingly, and being afraid of losing more stan-
chions, they were obliged to cut the guns adrift, and put them
ovetboard with the carriages, the shot having previously
rolled out of the shot rack overboard, a.nd they were obliged,
in order to iighten the ship, and for the safety and preservation
of the vessel, crew and rest of the cargo, to throw overboard, a.
portion of the cargo, consisting of (here describe the goods or
articles voluntarily thrown overboard for the common benefit
of all concerned), which was accordingly done ; at noon they
had fresh winds, west by north, and cloudy weather, with a
heavy sea running, and still shipping much water on deck,
and pumping ship every hour ; and during the remainder of
the day they had strong squalls at intervals, until midnight.
That they continue~ on their voyage, generally with strong
squalls, fresh gales and cloudy weather, with hail and showers
of rain, accompanied with lightning and heavy seas, and
constantly shipping seas, the pumps being attended to every
hour, until---, when at noon they had fresh winds from the
south-west; at ten P.M. the Skerries light bore east-north-
east, distant three leagues; at one A.M. on--tbey rounded
the Skerries ; at two took a pilot on board; at daylight they
made all possible sail for the New Channel, and got into the
river Mersey, in the Port of Liverpool, at three P. M. ; and at
'six P.M. they got safely moored in the Prince's Dock. And
this appearer, A. B., further declares, that on the following
day he appeared at the office of the said notary, and caused
his protest to be duly noted.
And these appearers do protest, and I, the said notary,
do also protest, against the aforesaid bad weather, gales,
storms, accidents and occurrences, and all loss or damage
occasioned thereby.
We, A. B., C. D., and E. F., sev~rally, do solemnly and
sincerely declare that the foregoing statement is correct, and
contains a true account of the facts and circumstances, and.
 ..

416 OH. XVIII.-DEEDS RELATIVE TO SHIPPING.

ake this solemn declaration conscientiously believing

we m . . f th
the same to be true, and by virtue of the prov1s1ons o e
Statutory Declarations Act, 1835.
A. B .
C. D.
E. F.
Declared and protested in due form of law, at L.-- CHAPTER XIX.
aforesaid, this-- aay of - -., one thousand nine hundred POWER OF ATTORNEY.
and--before ma.
A POWER, generally speaking, is an authority which one
(Seal). R. _D.,
gives to another to act for him, as to receive debts and divi-
Notary Public, L.--.
dends, to distrain, &c., or the powers reserved to trustees to
sell, make leases and the lilre (a).
Powers are for the most part inserted in deeds, except
-power of attorney which is frequently given by a separate
,deed and otherwise called Letters of Attorney (a).
In assignment deeds a power of attorney is given in the
-deed for the purpose of the assignment (b).
A power or letter of attorney is an authority given in
-due form of law by one person to another to act for him. A
power of attorney is revocable by the granter at any time
unless given for valuable consideration and it determines on
.his death (c). It may be either general or special.
A minor may hold a power of attorney for his principal
abroad (d).
Power of attorney she.Ii include any written authority
(excepting a proxy to a Proctor) given by one to another to
perform any work and executed before two witnesses or
executed before or attested by a Notary Public or by a Justice
of the Peace, Registrar, Judge, &c.
A power of attorney may be registered by the Registrar
-General on the party producing the same with a copy thereof
(a) 2 Or, 1233,
(b) 2 Cr. 1234.
(c) Prid, 711,
(d) Somasundara.m v. Ibrahim, 1 N. L. R. 297.
53
 418 CH. XIX,-POWER OF ATTORNEY.
certified by, a Notary as true and an affidavit stating that it is
genuine and is in force . .. The copy is returned to the party with
the endorsement of the fact of registration .
A revocation may also he similarly registered on the
Registrar General being notified. The Registrar General shall
publish the fact in the G azette and in three of the local daily
papers in Colombo and until such notification and publication
the grantor shall be held liable and ~ound by all acts of bis.
attorney.
Certified copies of such powers of attorney with the
endorsements are obtainable from the Registrar General (a).
A letter or power of attorney may be described as an
instrument by which one person authorises and empowers
another, who is named in the instrument, to act as bis attorney
or agent either generally or in some partlcular business. The
person who gives the power is known as the principal or
J donor; and the person to whom it is given, the agent, or donee
of the power. The relation thus created is one of agency, and
the law of principal and agent is to a large extent the law
applicable to powers of attorney. Powers of attorney may be
given in separate instruments, or in deeds relating to other
matters (b).
The nature and extent of the authority conferred by a
power of attorney must be ascertained from the deed itself (c).
In its nature, the authority is partly express, and partly implied.
In its extent, it may be special or gene~al. A speoi~l autbariJ.
is one that restricta the agent to a particular~ . A general
authority empowers him to transact all matters connected with
1
the management of a particular business, trade or .employ -
ment (d). Thus, an agent who is authorised to execute a
\ particular deed or sign a particular contract is a special agent.
On the other hand, an agent who is authorised to execute all
(a) Ord; 4 of 1902.
(b) Brooke, 191,
Seo. 7; and Bythewood and Jarman's Pre-
(c) Story, Agency,
cedents, Vol, 4.
(d) Whitehead v. Tuckett, 15 East, 408, per Lord Ellenborough ,
..
OH. XJX.-POWER OF ATTORNEY, 419
deeds or sign all contracts connected with a particular business
is a general agent in that business (a). _An authority may also
/ be limited or unlimited. It is limited when the agent is bound
-by express instructions to act in a particular way. It is un-
limited when be if!. permitted to act in accordance with bis own
. judgment {b).
Every express power, however, whether it be special, or
gene. ral, carries with it and impli~s authority to do all that is
( necessary and usual to carry 1t mto effect (c). For instance,
~ a power to demand and recover debts includes the power to
sue for them, and upon payment to execute proper receipts .
An express authority to sell real estate is an au thority to make
a bin'ding contract. and includes a power to sign an agreement
for sale (d). A power to sell goods includes a power to receive
payment, but a power to receive money and give receipt does
. not authorise the agent to negotiate bills received in pay-
...
ment Ce). Nor does a power to sell include authoritv to
pledge (/).
A power to obtain leases of mines in a foreign country
anrl superintend_the working of them implies authority to draw
bills to raise money for these purposes (g),
Every pJwer of attorney authorizing an agent to convey
property in Bri tish India of the value of Rs. 100 or upwards
must contain a power to register the proposed conveyance (h) .
(a) Story, Agency, Seo. 17,
(bl Brooke, 194,
(c) Howard v. Vaillie, 2 H. BI. 618; Pole v . Leask, 28 Beav, 562;
Perry v. Holl, 29 L. J, Ch. 677; Story, Agency, Sece. 58-60,
(d) Rosenbaum v. Belson, (19001 2 Ch, 267: 69 L. J. Ch . 569;
Hawksley v. Outram, (1892) 3 Oh . 359.
(e) Murray v. East India Co., 5 B, & Aid, 204; Hogg v. Snaitb ,
1 Taunt. 347.
(I)_ Jonmenjoy Coondoo v. Watson, L. R. 9 App, Oas, 561; Jacobs v.
Morris, (1902) 1 Ch, 816; 71 L, J. Ch. 363; Bannatyne v. M'Ives ,
(1906) 1 K, B. 103; _75 L. J. K. B. 120; Brooke, 195.
(g) Withington ' v. Herring, 5 Bing, 44~ ; cf. Brown v. Byers, 16
L. J. Ex, 112 ; Brooke, 196.
(h) Brooke, 260,

.-
420 CH. XIX.-POWER OF ATTORNEY.
A power of attorney is conl:)trued strictly and should
therefore mention in express words any power which it is,
wished to confer. A power to "make sale, dispose of, assign
and transfer" has been held not to confer a right to pledge (a).
Reliance should never be placed upon a general clause,
such a clause only confers such additional authority as is
necessary to carry out the powers specially conferred. In
Bryant v. De Reniple, (1893) A. C. at p. 179 the words and to ;i
do execute and perform any other act, matter or thing ..... .in
or about the business affairs of the Coy. " were held not to
give a power to borrow money on behalf of the Coy. (b}.
As in the case of all deeds, recitals in a power of attorney
l
may control the operative part, thus if it be recited tlfat the
reason for the conferment of the power is that the donor is
going abroad, the grant may be l"ev~ed by his ' return (o).
Power of attorney always receives a strict interpretation,
and the authority given is never extended beyond what is
expressly given or necessarily implied. Every power intended
to be exercised should, therefore, be conferred in express terms,
especialiy when the power of attorney is to be used in a foreign
country.
If there is a power to do a particular act followed by
general words, these words are not to be construed as enlarging
the power expressly given but as conferring all powers not
specially enumerated but necessary to carry the particular
power into effect (d).
Generally speaking, the authority conferred on the agent
or donee of a power is personal and cannot be delegated by
him to another ; for it is based on the confidence or trust the
t
principal has in his personal integrity and skill. To enable
an agent to employ a deputy or sub-agent a special power of
(a) Jo~menjoy Cooodoo. v, Watson, (1884) 9 App. Cas. 561 ; 1 Ency,
280.
v, Morris, (190 ) 1 Ch, 261 ; l Ency. 280.
(b) See also Jacobs
(c) Darleyv, Coutts & Co., (1885) 29 Ch. D, 500; 1 Eooy, 280,
(d) Attwood v, Munniogs, 7 B. & C, 278; Brooke, 197.
~.
CH. XIX.-POWirn OF ATTORNEY. 421
-substitu~ion must be conferred on him by the deed of appoint-
ment (a).
When an aUorney bad acted for himself, the principal
tiould not ratify that act (b).
A principal can .ratify the unauthorized act of an agent
only when he is fully aware of its nature (c).
A conveyance to a Chatty with the initials of bis firm
affixed is not equivalent to a conveyance to an individual or
individuals composing the firm. But evidence may be led to
prove that the transfer was made to the transferee in the
capacity of an accredited agent of the firm (d).
A lease was taken from one M. R. R. M. Vellasamy, who
was attorney of the firm of M. R. R. M. Held that the legal
title did not vest in the firm (e).
A Notarial conveyanc of land is not void because the
person who purported to sign it for bis principal was not
authorized thereto by a notarial power of attorney (f).
A power of attorney for use out of Ceylon requires no .
attestation by the notary nor numbering nor execution in
triplicate (g).
A foreign power of attorney before it is used in Ceylon
should be stamped by the Commissioner of Stamps (h).
An attorney who signs for and on behalf of bis principal
usually signs as follows (iJ.
A. B. (principal)
by his attorney
C, D. (attorney).
(a/ Story, Agency, Seos. 13. 14. As to delegation of powers by
trU6tee~ abroad, see Stuart v. Ncrtoo, 16 Moore, P. G. 17; Brooke, 199.
257.
(b) Waas v. Samaroayake, (1916) 2 C, W. R. 34 .
(c) Sinnatamby v. Johopulle, (1915) 18 N. L. R. 273.
(d) Soa:asundram Chetty v. Aruoasalum Cbetty, (1914) 17 N.L.R.
(e) Suppiramaoiam Chatty v. Kaonu Wappu, (1915) 1 C. W, R. H,5,
(/) Meerasaibo v. Pavilu Silva, 3 N, L. R. 229.
(g) Ord. No , l of 1907, Seo, 290 Proviso.
(h) Ord. No, 3 o! 1890, Seo. 31.
(i) Hogg. 78,
. .
422 CH. XIX,-POWER OF ATTORNE Y.
The revocation of a power of attorney may be implied as
well as expressed. It is i~plied by the ap?ointment of another .
l
mandatory to do that which was committed to the former.
When the first procuration is generai, and the latter special,
the forme r is revoked only in res pect of that which is the
subject of the second, but it continues in force as to all the
6ther affairs of the constituent., But a general power of
attorney is not an implied revocation of the former special
power of attorney giyen to another (a).
The attorney is at liberty to relinquish the trust at any
t imu he chooses (b).
Revocation may be expr~ssed by a verbal or a written
notice of revocation (c ).
An attorney may at any time before executing the power
r enounce his authority by n otifvin the donor of his desire
to do so. But renunciation after acceptance and part
performance will render the donee liable to the donor for a.ny
I
loss he may sustain fd) . Powers of attorney often provide
against renunciation by appointing a second attorney to act in
the event of the original attorney renouncing his powers.
A power of attorney may also be determined by operation
of law. Thus , at common law, the death of the principal termi-
nated the powers of bis agent ; the rule being that a power
should al ways be exercised during the life of the donor (e),
The lunacy or bankruptcy of the donor produced a like effect.
A power of attorney given for valuable consideration, or as
I security for a debt, or one coupled with an interest, is from its
nature and character in contemplation of law irrevocable, and
cannot, therefore, be determined by the death, lunacy or bank
ruptcy of the grantor, nor by any act of revocation en his
part (f).
(a) H. T, 283.
ib) H. T. 281,
(cl The Margaret Mitchell, (1858) Swa. 382; R v. Wait, 11 Price, 518,
[d) Story, Agency, Seo. 478 ; 1 Brooke, 202,
(e) Watson v. Kiog, 4 Camp. 272,
(f) Kiddill v. Tarnell, 3 Sm. & G. 4213; Brooke. 203.
CH. XIX.-POWER OF ATTORNEY. 423
An attorney, when he signs for his principal, may be
called ?Pon to declare t hat the power of attorney under which
he acts is still in force and that be has received no notice of
<the revocation of the said power of attorney either by the death
of his principal or by any other means (a). This declaration
may be entered at the bottom of the deed below his signature
in a separate paragraph independent of the deed.
The determination of the power may be brought a.bout in
five ways (b ) :-
1. By mutual agreement.
2. By revocation-
It may be either : -
(i) Express-
A power is by nature revocable except where the
authority forms parts of a security for a debt
or where it is for a valuable consideration.
(ii) or Implied.
Ca) Which may take place under circumstances in
which the principal ceases to have power over
the subject matter.
0
e.. g. Where he sells it, where he becomes a
bankrupt or where he dies. '.
N. B.-It thus becomes obvious that a security for
money should never be made by a P/ A alone,
but should always be (as it usually is) accom-
panied by an assignment.
(b) Which may take place when the principal does
an act inconsistent with the continuance of
the power.
e. g. The appointment of another attorney to
do that which was committed to the former
attorney.
(aJ Hogg~ 78.
(b) Jarman, Vol, 8, Part I, Power of Attorney, ,
424 CH. XIX.-POWER OF ATTORNEY.
N. B.- When the first power is general and the second
special the former is revoked only in respect
of that which is the subject of the seco~d. A
special power is not revoked by a general
(3 Burge's Com. 988 and Jarman 8. 1, p. 41).
3. By the attorney's renunciation of the power.
This also may be either
0
(a) Express
(b) or Implied.
e. g. (1) Where the attorney becomes insane or
otherwise incapable.
N. B.-Attorney's bankruptcy would probably not be
held an implied renunciation except where the.
authority is to receive monies.
- (2) Where he dies.
Death of one out of the joint attorneys would be,
a renunciation. Well-drawn instruments ac-
cordingly 'make the power exercisable by each
of the aUorney;;.
N. B.-Powers of attorney may provide against the
inconveniences of renunciation by appointing
a person to act in case of the incapacity,.
refusal or death of the original attorney.
4. By the exhaustion of the power.
e. g. An authority to sell is at an and by the sale.
5. By the expiration of the time limited expressly or
impliedly for its exercise.
e. g. When the authority is to ach during the prin-
cipal's absence from a place.
It may be observed that whenever and however the
attorneys' authority terminates that of any substitute ap-
pointed by him in general also ceases. Not so where the
attorney has, pursuant to the terms of the power appointed
another to act as agent for the principal. Then, of course.
the principal, noli the attorney, is the mandant.
.... FORM OF A GENERAL POWER OF ATTORNEY . 425
Form of a General Power of Attorney.
To all to whom these presents shall come I, A. B. of--
send greeting.
Whereas I am about to leave the said island and to remain
for sometime in parts beyond the seas :
And whereas I am desirous of appointing some fit and
proper person as my attorney to ma nage and transact all my
bueiness and affairs in the said island during my absence
therefrom.
Now know ye and these presents witness that I the said
A. B. of--do hereby nominate, constitute and appoint C. D ..
of---my true and lawful attorney in ~eylon during my
absenoe therefrom, to act for me, and on my behalf and in my
name or otherwise for all and each, and every or any of the
following purposes : -
To superintend, manage and control the houses, lands,
estates and other landed property which I now am or hereafter
may be possessed of or entitled to.
To sell and dispose of, or to mortgage and hypothecate, or
to demise and lease, or to convey by way of exchange or other-
wise, the houses, lands, estates and other landed property
which I now am, or hereafter may be possessed of or entitled,
to, or any part or parts thereof divided or undivided.
To sell and dispose of, or to ship and oonsign for sale
elsewhere, the crops and produce of the estates which I now "
am, or hereafter may be possessed of or entitled to.
To mortgage the crops and produce of my estates, together-
with the buildings, tooj.\l, implement, machinery, live and dead
sbock on the said estates or thereunto belonging as security
for advance against crops or otherwise.
To call for, or to give consent to, a partition of the same
or any of them, or any portion of them, or any of them
between me and the other proprietor or proprietors thereof,
and to enter into any deed or deeds of partnership between me,
and the other proprietor or proprietors thereof.
54 -
 ' .'
426 CH. XI:C-POWER OF ATTORNEY.
To purchase for me or to take on lease for me any estates,
la;nds, tene!Ilents or bereditaments my said attorney shall
think fit and proper.
In the event of _any sale, mortgage, leas~, exchange, pur-
chase, partition or partnership for me and in my name, and as
!llY act and deed, to sign, se~l, execute and deliver all deeds,
cash, credit bonds, instruments and other writings, necessary
for giving effect and validHy to tbe same respectiv-;-;ly, or to
any contract, agreement, bargain or prpmise for effecting
tbe same.
To ask, demand, sue for, recover and receive of and from
all persons liable to pay and deliver the same respectively, all
and every sum. and sums of money, debts, -dues, legacies,
goods, chattels, effects and things now o~ing or payable,
coming or belonging to me, or which shall or may at any time
hereafter be owing, coming or belonging to me, and on pay-
ment or delivery thereof to give, sign and execute receiots
-r eleases and other discharges for tbe same respectively, ~nd
thereupon to manage, employ and deal with the same as I
myself could or might lawfully do, if personally present; and
on non-payment or non-de.livery thereof, or any part thereof,
-commence, carry on and prosecute any action, suit or other
proceeding whatsoever for receiving and compelling the
payment or delivery thereof.
To transpose or transfer and in due form of law to assign,
mortgage bonds or otbAr securities for money, belonging to me,
and to sign all necessary deeds in that behalf.
. To consent to any mortgage or mortgages in my favour
standing postponed to and ranking after . any mortgage or
mortgages to be granted subsequent to the dates of tbe said
mortgage or mortgag'es in my favour and to sign all deeds
neuessary in that behalf.
To state, finally settle, and adjust all accounts, reckonings
.and demands whatsoever between me and . any person or
.p ersons whomsoever.
To compromise disputes and differences, and to refer and
<Submit matters to arbitration, and to sign and execute all
...
FORM OF A GENERAL POWER OF ATTORNEY, 427
necessary bonds, submission and references thereof, and to
enforce any award.
.,To seli and convert into moneys ariy goods, effecLs or
things which now belong or at any time hereafter shall belong,
to me.
~~o invest the moneys which now b~long, or at any tirue
hereafter may belong to me upon such security as my said
att.orney shall consider good and sufficient, and from time to
time to vary the said investment or to release such security.
To appear for me before any Court or Courts of Justice
either as plaintiff, defendant, or intervenient; and to sign and
grant all necessary proxy or proxies to any proctor or proctors
practising in the said court or courts and the same from time
to time recall and revoke, and to prosecute or defend, any suit
-0r suits or other proceedings brought by or agaim1t me, and to
proceed to judgment thereon or to suffer judgment by way of
non-suit or default to be entered against me, and against any
judgment, order or decree, of any of tbe said courts to appeal
and to prosecute such appeal before the Supremo Court of the
said Island, and from any judgment, order or decree of the
said Supreme Court to appeal to His Majesty the King in
Council, and to give all neaessary securities and sign all neces-
sary bonds upon !luch appeals.
.),
To prove any debt or debts due to me by any person or
persons who shall or may be adjudged insolvent, and to vote
in the appointment of assignees and accept any offer or
composition, and to represent and act for me in insolvency
. proceedings.
To sign, make, endorse and accept any bill or bills of
exchange, promissory note or notes, bills of lading, drafts or
orders fo.r money, and to sign or endorse cheques for the
purpose of drawing money out of any of tbe banks in this Island.
To become security to any person for the purpose of
raising money for any purpose whatsqever.
To enter into and execute any covenants, bonds, assign-
ments of bonds, n;_iortgage or other securities and w_a rrants and
 428 CH. x1x:-POWER OF ATTORNEY.
powers of attorney for confessi ng judgment in any of the
courts in the said Isla nd.
I(; To attend any meetings of any company or compan ies
wherein I am, or hereafter may be, shareholder, and
vote for me on any subject-matter or question that may
be brought forward at any such meeting at which by the
rules and regulations of any company I could or might vote if
personally present, and to grant proxy or proxies to any other
person or persons to vote on my behalf for any of the said
purposes, and generally to act for me and do and execute any
and every act, matter or thing in respect of the assignment or
transfer oi my shares in ~ny company or in respect of the
liquidation or winding up of any such company or otherwise
as shall or may be found necessary or expedient.
To charter, lease or .otherwise dispose of any ship or
ships, vessels, dhonies, canoes and boats or any of _them
belonging to me the said A. B . and to appoint and remove
tindals for such ships, vessels, dhonies, c anoes and boats and
at plaasure such appointments to revoke and others to appoint
in their places.
'l'o buy or purchase for me and m my name and behalf,
any moveable or immoveable property either under any writs
of execuhion already issued or which may hereafter be issued
from any of the said courts at my instance or at any other
fiscal's sale or auction or by private contract or deed and to
accept deeds of transfer or bills of sale for such property.
Generally to do, execute and perform all such further and
other acts, deeds, matters, and things whatsoever which my
said attorney, the said 0. D ., shall or may think necessary or
proper to be done in, about or concerning my business, estates,
land, .houses, debts or affairs as fully and effectually to all
intents and purposes as I myself might or could do if I were
personally present and did the same in my proper person , it
being my intent and desire that all matters and things respect-
ing the same and every of them shall be under the full
management, control and direction of my said. attorney.
FORM OF A: SPECIAL POWER OF AT'.I.'ORNEY. 429
And ~for more effectually doing, effecting, executing and
performing the several matters and things aforesaid, I give and
-grant unto my said attorney the said C. D. full power and
authority from time to time to appoint one or more substitute
.
or substitutes to do, execute and perform all or any of the
matters and things aforesaid, and such substitute or substitutes
at pleasure to remove and to appoint another or others in
his or their place or places, hereby promising and agreeing to
ratify , allow and confirm all and whatsoever my said attorney
the said C. D. or bis substitute or substitutes shall la wfully
-do or ~ause to be done in the premises by vi r tue hereof.
And I do hereby direct that all ac ts whi ch sbaa be bad,
made or done by my said attorney the said C. D. or his substi-
tute or substitutes and any other person or persons before he
or they shall have received notice of my death or the
revocation of the authoriby contain(1d in these presents, shall
.
be as binding and valid to all in tents and urJ.)oses , as if the
same had taken place previous to my deat h or before such
revocation , any rule of law or equity to t he contrary
notwithstanding.
In witness whereof I, the said A. B . of--bave hereunto
.and to two others of the same tenor and date as these presents,
set my hand at Jaffna this sixth day of J ul y One thousand
nine hundred and nine.
Signed in the l A. B. (execntant) .
,presence of us f
1. E. F.} ~-
s. K.,
2_ G. H. Witnesses. Notary Public.
F _o rm of a Special Power of Attorney.
Know all men by these presents that I, A. B. of -. -
,being about to go unto parts beyond the seas do hereby nomi-
nate, constitute and appoint C. D. of--to be my true and
lawful attorney for me and on my behalf and in my name to
sell at such time or times as my said atborney shall think fit
.all that allotment of land [description of parcel] either together
430 CH, XJX.-POWE R OF ATTORNEY.
or in lots and either by public auction or private contract, and
also to execute such deod or deeds for conveying the said pre-
mises to any pmchaser or purchasers thereof, and also to give
effectunl recei pts and discharges for the purchaee moneys of
the said prem ise s as my said attorney shall think fit.
And whatsoever my said attorney shall lawfully do in the-
premises I hereby agree to ratify and confirm.
And I decl are th at this power is irrevocable for one year
computed from t he date here of.
In ' witness whereof I, A. B., &c.
Special Power of Attorney by a Coy. to
sell a Steamship.
To all to whom t hese presents shall come the J . 0 . C.
(Ltd.) being a, Company incorporated under the Provisions of
the Ceylon Ordinance No.--of--rtnd hereinafter referred to
as "the Company" and W. M. in his capacity as the Managin g
Director of the said Company send greeting.
Whereas the said J. C. C. (Ltd.) are the owneril and
proprietors of the steamship called _and known by the name of
--now lying in the Port of--.
And whereas the said Company pave agreed to sell the-
said steamship--.
And whereas for the purpose of effecting the said transfer
and executing the necessary Bill of Sale for recovering the
value thereof it is necessary that an attorney should be
appointed by the said Com pany at--.
And whereas the said Company and the said W . M. are
willing to appoint A. S. of Colombo as such attorney for
executing the necessary transfer deed or Bill of Sale to receive-
the payment of the value anc. whereas the said A. S. is willing
to act as such attorney of the said Company and of its said .
Manager.
Now these presents witness that the said Company and its
Managing Director W . M. of Jaffna do hereby nominate, con-
stitute and appoint A. S. of Colombo their lawful attorney to-
do all or any of the following things, viz. :-
POWER OF ATTORNEY ...... EMPLOYEE OR AGENT. 431
1. To appear before the Collector of Customs, Colombo
and all other officers of the Customs of Colombo or other
places and to make all declarations or affirmation s regarding
the ownership or transfer of the said steamship--.
2. To exe!lute and deliver any transfer deed, Bill of Sale
or other doc~ments for the transfer of the said steamship
usually ca.lled--on behalf of t he said Company and for that
purpose to sign on behalf of t he said Company and if necessary
on behalf of the said W. M. in his ca pacity as the Managing
Director of the said Company all such documents and to ~eceive
payment of the value of the said steamship and to give receipt
for such value and any part thereof.
3. To do all other acts nemissary for making vali d the
said transfer and for assuring the title thereof in t he same
manner as the said Company or its Managing Director could do
if the said deed or Bill of Sale were to be executed at their
Registered Office in J affna under the c0mmon seal of t he said
Company.
And the said Company and the said W. M. here by promise
to confirm and ratify all such acts as may be done by tb e said
attorney in the matter of sellin g the said steamship an d receive
payment of the value thereof.
In witness whereof tho saicl Company have caused their
common seal affixed and t he said W. M. in bis capacity as the
Managing Director of the said Company has adhibited his
signature to this and to two others of the same tenor and
date as these presents at their Registered Office in J affna this-
---day of--1905 in the presence of--.
Power of Attorney by an Arrack Renter to
his Employee or Agent.
To all to whom these presents shall come I, K. V. S. of
--send greetings:-
. Whereas I have bought from the Government of Ceylon
the Arrack Rent of the District of--for a period of one year
commencing from the--day of---and ending on the--
day of--.
432 CH. XIX.-POWER OF ATTORNEY.
2. And whereas for the purpose of managing the said rent
during the saici term--and for transacting all the business
relating thereto, it has become necessary that a person should
be appointed as my attorney and whereas K. V. N. of--
but now at--is a fit and proper person to be so appointed
and is willing to become my attorney.
Now know all men by these presents that I the said
K. V. S. of--have nominated, constituted and appointed as I
do by these presents nominate, constitute and. appoint the said
K. V. N. of--as my lawful Attorney in the Di3trict of--
to act for me and on my behalf and in my name or otherwise
for all and each and every or any of the following purposes.
To take charge of, manage and control all the affairs con-
nected with the Arrack Reni; of the District of--from the
--day of--up to the end of- --and thereafter also until
all the business connected with the said rent is fully completed
and ended and for the purpose for me and in my name or
otherwise to appear at the Kacb~hery in the District of--
a1;1d to deposit the monies due ' to the Government on account
of the said rent or to draw either from the Government or from
any of the sub-renters any money due to me on account of the
said rent and to sign and deliver all receipts and acguittances
therefor.
To ask, demand, sue for, recover and receive of and from all
person or persons liable to pay and deliver the samo respect-
ively all and every sum or sums of money due from all persons
on account of the said rent and oc payment or delivery
thereof or any part thereof to give, sign and execute receipts,
releases and other discharges for the same respectively and on
non-paym6nt or non-delivery thereof to commence, carry on or
prosecute any action, suit or other legal proceedings before any
Court of Law.
To state, finally settle and adjust all accounts, reckonings
and demands whatsoever relating to any business connected
with the said Arrack Rent.
To compromise disputes and differences and to refer and
submit matters to arbitrat;on and to sign and execute all
POWER OF ATTORNEY ...... EMPLOYEE OR AGENT. 433
necessary bonds, submission and reference thereof and enforce
any award.
To sub-let or assign on portions the said rent or the pri-
vilege of selling arrack in the District of--and to recover all
monies due from retailers of arrack and for that purpose to get
in my name all bonds, deeJs and assurances for securing tha
paym~nt and delivery thereof.
To recover from the Tavern-keepers, sub-reuters or retail-
ers all amounts due to me on account of the said rent and to
sue them if necessary for the recovery thereof and also to buy
or purchase for me any property moveable or immoveable
seiz(,d and sold at any Fiscal's sale or disposed of by common
contract or otherwise.
To grant in my name to ;mob person or persons .the
necessary psrmits, licansGs and authorities for empowering
such parson or persons as my attorney shall think fit for
the Cflrrying on of, any business cunnected with the said rent or
retail sales of arrack in the District of--and to recall and
revoke if necessary Ii.he powers so vested in any person or
persons and also to prosec~te before any Government Officer
including Excise Authorities, Police Authorities or Court of Law
any person who might commili offences against tl,e laws in
force regarding tbe sale of arrack.
To appear for me before tbe Government Agent or his
Assistants the Fiscal or his deputies and before the Customs
Officers of the --Province or other Government Officer con-
cerned and obtain permits, licenses or other authorities for
doing or causing to be done any act for the carrying on of the
said rent and for that purpose to sign all applicA.tions, petitions,
receipts, discharges or other doc~ments.
To appear for me before any 0omt or Courts of Justice
either as Plaintiff Petitioner or added party Defendant or Inter-
venient in any suit or action connected with the said rent and
to sign and grant all necessary Proxy or Proxies to any Proc-
tor or Proctors of the said Courts and the same from time to
time to recall and revoke and to appoint other Proctor or
Proctors instead and to retain any Advocate or Advocates and
55
.
 CH. XTX.-POWER OF ATTORNEY.
434
to prosecute or defend any suit or suits with reference to any
business connected with the_ said rent and to proceed to
judgment or to suffer judgment by way of default to be entered
against me and against any judgment, order or decree of the
said Courts to appeal before the Hon'ble the Supreme Court of
the Island of Ceylon and give.all necessary securities and sign
all necessary bonds for the presentation of such appeals.
And generally to do, execute and perform all and every-
thing which my said at torney shall or may t hink necessary or
proper to be done in about or concerning the management of
the said rent as fully and effectually to all intents and pur-
poses as I myself might or could do if I were personally present
and did the same in my proper person it being my intent and
desire that all matters and things respecting the same sh all
be under t he full management, control and di rection of l\'.lY said
attorney and I do hereby allow, ratify and confirm all and
whatsoever my said attorney shall or may lawfully do or
cause to be done by virtue hereof.
In witness whereof , &c.
Form of a Substitution under a Power of
. Attorney (a) .
. To all to whom these presents shall come greetin g :
Whereas E. F . by deed dated the--day of--appointed
me A. B. of--his attorney for him and in bis name to do
certain acts and things connected with the management of his
business as general importers of piece goods in the said deed
set forth including l,he power to appoint a , good and suitable
substitute [the very words giving the power to appoint substitu-
tion should be quoted here] .
Now know ye that by virtue of such power and of all
o_ther power me hereunto enabling I thereby nominate, consti-
tute and appoint C. D. of--to be the attorney of the said
E. F. for him and in his name or in my name to do and per-
form all or any of the acts, matters and things which I was
(al 1 Ency . 416,
FORMS OF SPECIAL CLAUSES. 435
a uthorised to do by the said deed in the same manner and
11.s effectually as the said C. D. could have done them or any
,of them if he had in my stead received authority thereto in
the said deed.
And I hereby agree~to ratify and confirm aH that the said
C. D. shall do or cause to be done by virtue hereof.
In witness, &c.
. .. Form of a Revocation of a Power of Attorney.
To all to whom these presents shall come greetings :
Whereas by deed dated--!, E. F. appointed A: B. of
--my attorney for me and in my name to do certain acts
and things connected with tbe management of my busine~s as
.g eneral importers of piece goods into Ceylon.
Now know ye that I hereby revoke the ~aid. deed and
power of attorney and every power authori~ini:i thereby
-c onferred provided that nothing herein contained shall affect
t~e validity of any ~ct or thing done by the said A. B. by
virtue of the powers conferred on him by the said deed
before he shall reaeive notice of the revocation thereof.
In witness, &c.
Forms of Special Clauses.
Power of attorney w here there are several appointors
,. and several attorneys. (a)
(Operative clause).
Know all men by these presents that we A. B. of--
0. D . of--and E . F . of--do and each of us does b b '
K ere v
appomt
. . C. of-- L. M of--and Q R . of--an d any
one or more of them our attorneys and attorney fo r
th .. A us
e s_aw . B., C. D. and E. F. and any one or more of us
and m the names or name of 'QB or an~ . one or more of
us to, &c.
(a ) 1 Ency, 4 18,
 436 CH. XIX.-POWER OF ATTORNEY.
~ Powt-r~~
Cla1tse providing that the ~ i f f shall lJe
irrevocable (a).
(And] I declare that the power hereby created shall be
irrevocable for the space of--years from the date hereof.
Clause undertaking to ratify (b),
(Short Form).
I hereby undertake to ratify whatsoever my attorney
shall lawfully do or cause to be done in tlte pre~ises.
Chtuse undertaking to ratify (b).
(Full Farm) .
[And] I the said A. B. hereby ratify and confirm and pro -
mise at all times to allow, ratify and confirm all and whatso-
ever the attorney shall lawfully do or cause to be done in or
FORMS OF SPECIAL CLAUSES. 437
Now therefore know ye that I hereby appoint the said
E. F. my true and lawful attorney from and immediately after
the happening of the said E1Vents during my absence to act in
and manage all mv affairs in the same or like manner in all
respects as tbe said C'. D. could have done and I accordingly
grant to and vest in the said E . F. as from the date of such
event all and every the same or the like powers and authorities
in or con,::erning the premises in all things as are hereinbefore
given to or vested in the sa.id C. D. and as if the name of the
said E. F. had throughout these presents been inserted instead
of the na.ine of the said C. D.
And I hereby undertake to ratify whatsoever the said
E. F. or his lawful attorney or attorneys shall lawfully do or
ca.use to be done in or about the premises by virtue of these
presents.
I

about the premises aforesaid by virtue hereof including any - In witness, &c,
thing which shall be done between the revocation of these A. B.
presents by my death or in any other manner and notice of
such revocation reaching tile attorney, and I hereby declare

that as against me and persons claiming under me everything
which the attorney shall do or cause to be done in pursuance
of these presents after such revocation as aforesaid shall be
valid and ,,effectual in favour of any person claiming the benefo
thereof who before the doing thereof shall not have had
express notice of such revocation.

Clauses appointing a second attorney to act on the

decease of the first (c),
Recital And whereas I the said A. B. am desirous of
providing for the event of the said 0 . D. dying or becoming
incapable of acting or refusing to act or becoming bankrupt
during my absence and have requested E. F. to take upon
himself the care of my estate and effects and to act for me in .
my absence in apy of the events aforesaid which he has
consented to do.
.,
(a) 1 Ency, 420, (b) 1 Ency. 421. (c) 1 Enoy. 422.


takes the whole (a,).
CHAPTER XX.
DEEDS OF PARTITION.
PARTITION is the process by which property which is held
in undivided shares is divided amongst the co-owners, so that
each of them holds a divided share in severalty instead of an
undivided share in the whole (a).
It is made either by the agreement of the parties or by
the order of court, as under the Partition Ordinance No. 10 of
1863, When the partition"is made pursuant to the ordinance
and final decree is entered th~ partition is complete, and 'no-
conveyance is necessary.
The deed of partition coD3ists of the division and allot-
ment of the shares, with a few covenants of title if necessary .
It requires no stamp d~ty (b).
Partition, according to the law of Ceylon, amounts to an
alienation (c). A partition deed is entered into for valuable
consideration, the consideration of each person's transfer of
his undivided interest in all the land, but that which is
allotted to him in severalty, is his co-owner's transfer tS1. him
of his undivided interest in that land (d).
A partition might also be employed for the division of an
estate between co-parceners, joint- tenants or tenants in com-
mon (e). . (a)
(a) 9 Ency. 420,
(b) Ord. No. 37 of 1916.
(c) Jayawardene on Partition, iv.
(d) Salgado v. Salgado, 1 S. C. R, 137,
(e) Deane 300,
CH. xx.--DEEDS OF PARTITION. 439
Co-parceners are those who have equal portions with
others of an inheritance (a).
Joint-tenants are those who bold an estate by unity of
interest, title, time and possession unner which the survivor
Tenancy in common comes the nearest to separate owner-
ship, from which it differs in little else than the shares held in
common are not actually divided or mark.ad oq_t, A tenant in
common bas no right of survivorship as to the property
held in common, which is a characteristic incident of joint-
tenancy (b). This distinction between joint-tenancy and
tenancy in common appears to have been done away with in
Ceylon where the right of survivorsn1p as to property held in
common could be created only by an express stipulation (c).
A partition between tenants in common is by a grant,
between joint-tenants by a release and between co-parceners
either by a grant" or release.
The operative words in the case o'f a grant are" grants and
conveys; " in tbe caile of a release "releases and conveys."
The forms of precedents are otherwise identical.
A power of sale is not properly executed by a partition(d),
but a po"7er to exchange will authorize a par~ition, at any
rate where the property partitioned is held in not more tban
two undividfd shares (e) .
An assignment by a co-owner of all the advantages and
disaq.v antages such as costs and also share which he would be
entitled to either in comtf:ron or iiartitfon by v.irtue of the
decr~e in a partition suit was held to be valid and not affected
by Sec. 17 of the Ord. 10 of 1863 (/).
Blackstone.
(b) Penny Cyolopredia, Vol. vii, p, 405.
(c) Ord, No. 21 of 1884, Seo. l!'O.
(d) M ;Queen v. Farquar, (1805) 11 Ves, 467, 477,
(e) Re Frith and O;borae, (l876) 3 Ch. Div. 618; 9 Enoy. 421.
(f) De Silva v. Waki's'tahami, 1 Wije. 21!.
440 CH. XX.-DEEDS OF PARTITION.
A fi,dei commissum does not attach to the lands$old under
a decree under the Part,ition Ordinance unless it was sold sub-
ject to the /idei com~iissum. It however attaches to the
proceeds of the sale (a).
A deed of partition executed by three co-owners of a parcel
of land provided as follows :-We (A. & B.ihave divided and
accepted a two-third port10n of this land separately for us as
-0ur own towards the northern side containing in extent 128
acres. We also declare that C. has divided and accepted
separately a portion for hia third share on the south~rn
side containing in extent 64 acres.
There was then a provision in the deed for pro\)ess_ to
demarcate the boundary, The deed provided that A. or C.
might do so subject to certain conditio!ls and that after the
line was so fixed, each party should have no "right, title or
,claim to the portion so indicated as belonging to the other."
Beul, that the deed constituted cross conveyances, that is
to say, a conveyance of the Northern two-third in favour of A.
and B. and a conveyance of the Southern third in favour of C.,
and that the latter provision in the deed meant that once the
boundary was fixed in the manner provided for in the deed,
the matter should be deemed as concluded between the parties
and that they were to be absolutely bound by the indication of
lihe boundary.
Held, further, that it was not open to either party to
institute proceedings under the Partition Ordin11nce for a
partition of the land (b).
Form of a Deed of Partition.
This indenture made this---day of-_-between A. B.
of--of the one part and C. :Q. of--of the other part, wit-
nesseth:
Whereas by right of inheritance from their fate father,
E. F., the said A. B. and C. D. are seized ll,nd possessed in
(a) G. A. (W. P.) v. Alphonso, 1 C. W. R. ~20.
(bl Jalalcron v. Cassim Nal, (1914) 2 Bal. Notes 9,
FORM OF A DEED OF PARTl'rION. 441
-common of all that allotment of land, [description of parcels] ,
marked X and Y in, the map or plan hereto annexed ;
And whereas the said A. B. and C. D. have agreed that a
partition should be ma.de between them of tbe said land and
l
that all bhat portion of the land marked X in the map or plan
hereto annexed to ~e the specific part or share of the said A. B.
and all that markeu Y on the same map or plan to be tbe
specific part or share of C. D.
Now this indenture witnesseth that in pursuance of the
said agreement and in consideration of all and tiingular those
the premises the said A. B. doth hereby grant, assign and
assure unto the said C. D., his heirs, executors; administrators
and assign., the entirety of all that portion of the land marked
Y in the said map or plan with all and singular the rights,
easements and appurtenances thereto in anywise belonging
or used or enjoyed or reputed or known as part or parcGl
thereof and all the estate, right, title, jnterest, claim and
demand whatsoever of the said A. E. in, to, upon or out of, the
tiaid premises.
To have and to hold the said premises hereby granted,
assigned and assured unto the said C. D., his heirs, executors
and adminis_trators and assigns absolutely for ever.
And this indenture also witnesseth that in pursuance of
the said agreement and in consideration of the premises the
said C. D. doth hereby grant, assign and assure unto the said
A. B., his heirs, &c., the entirety of all that portion of the land
marked X in the said map or plan with all and singular tbe
rights, easements and appurtc,nances thereto in anywise belong-
ing or used or enjoyed or reputed or known as part or parcel
thereof and all the estate, right, title, interest, claim and
demand whatsoever of the said C. D. in, to, upon or out of the
said prewises.
To hav:e and to hold the said premises hereby granted,
assigned and assured unto the said A. B., his hei1s, executors
and administrators and assigns abs~lutely for ever.
In witness whereof we the said A. B. and C. D., &c. [See
pages 36 to 40 above.]
56

442 CH. xx.--DEEDS OF PARTITION.
Deed of Partition between three Tenants in
Common, one paying a sum for Equality
of Partition.
(Adoptefl, from English Texts) (a) .
This indenture ~made tbis--day of--between A. of
- - of the first part; B. of--of the second part, C. of--of
the thhd part.
Whereas under and by virtue of &~ . (recite title of A.).
And whereas, &c. (recite title of B.) .
And whereas , &c. (,ecite title of 0 .).
And whereas it was lately agreed between the said A. , B .
and C. t hat a partition should be made between them of the
hereditaments comprised in the several schedules hereto, so
that the entirety of the hereditaments comprised in the first
scbedule should be take.n in severalty by the said A,, and
t_he entirety of the hereditaments comprised in the second
schedule should be taken .ju severaity by the said B., and the
entirety of the hereditaments comprised in the third schedule
should be taken in severalty by the said C., and it was also
agreed that the saiil C. should pay for equality of partition the
sum of --to the said A. and B. in equal shares :
Now this indenture witnesseth that in pursuance of the
said agreement and in consideration of the sum of-- to .t he
said A. and B. in equal shares paid by the said C. (the r~ceipt
whereof is hereby acknowledgerl) and in .consideration of the
assurances and assignments hereinafter made by the said C.,
the said A. B. hereby grants, conveys . and 01ssigns unto the
said C. all those the two several undivided third parts or shares
of the said A. and B. respectively of and in the premises parti- .
culars whereof are set out in the third schedule hereto and
which are delineated upon the map or plan hereto annexed
and therein, marked ~ and coloured blue. To bold the same
and to the use of the said C. in fee simple henceforth in
severalty.
(a) Hogg. 189.
"
DEED OF PARTITlON ..... . EQUALITY OF PARTCTION. 443
.I
And this indenture also witnesseth in further pursuance
of the said agi,eement and in consideration of the ass urances
and assign"ments hereinbefore and hereinafter made by the
said B., the said A. and C. hereby grants, conveys and assigns.
unto the said B. all those the two several undivided third parts
or shares of the said A. and C. respective,l y of and in the premises
particulars ~ hereof are set out in the second schedule he~eto
and wbich are delineated upon the map or plan hereto annexed
and therein marked Y and coloured pink. To hold the same and
to the use of the said B . in fee simple henceforth in severalty .
And this indenture also witnesseth that in further
pursuance of the said agreement and in consideration of the
assurances and assignments hereinbefore made by the said A.,
the said B. and C. hereby grants, conveys and assigns unto the
said A. all those the two several undivided third parts or shares
of the said B . , and C. respectively of 'and i n , the premises .I
I
particulars whereo{ are set out in the first schedule hereto and
which are delineated upon the map or plan hereto annexed and
therein marked Z and coloured yellow. To hold the same and
to the use of the said A. in fee simple hencefor,th in severalty.
And each of them, the said A., B . and C. so far as rega rds
his one undivided third pa; t of the said premises hereby
covenants with the others of them respectively that notwith-
standing anything by them the said parties or any persoQ
through whom they claim respectively done, omitted or
knowingly suffered the said parties respectively have power to
assure the said premises to the othe,; of them aforesaid : And
that the same shall henceforth be quietly enjoyed accordingly ,
free from encuhibrances and interruptions by the said parties,
respectively or any persons claiming under them respectively or
under any person through whom they claim otherwise than as
aforesaid : And that the said parties respectively and all persons.
claiming under them respectively or under any otber such.
person as aforesaid will at the cost of the party requiring the,
same do all such things for further assuring the said premises
and every part thereof to the uses aforesaid as shall be,
reasonably required.
In witness whereof, &c.
 . FORM OF A DEED OF EXCHANGE .
CHAPTER XXI.
DEED OF EXCHANGE. "
A DEED of exchange is the mutual grant of equal interest.
It is not neoessary that the estates exchanged should be of
equal value, but they should be equal in quality or tenure.
The word " exchange " is so individually requisite and appro-
priated by law in this case, that it cannot be supplied by any
other word (a).
An exchange is sometimes effected hy one deed comprising
.reciprocal conveyances from each party to the other of the
lands respectively given and taken in exchange, and sometimes
by two separate and distinct deeds. A covenant for quiet
enjoyment may be added, but the deed is good enough without
such covenant (b).
Whatever the number of persons may be who are named
in the introductory part of the deed, and exchange can, pro-
perly speaking, be only between two parties. Three cannot
exchange with each other (c).
Thus, if there was an agreement by which A. conveyed
!anus to B., B. conveyed others to C., and C. conveyed othe_rs
to A., this would not have operated as an exchange and the
conveying parties would' not have been liable to the conse-
quences of an exchange (d).
Lands of any tenure and undivided shares thereof, rights
-of common, right of fishing, manorial and other rights, ease-
ments, quit-rents, chief rents, heriots, titles and title rent-
charges may be intercharged and all or any of them may be
(a) 2 Cr, 965, (cl Jones 258, _
(d) 5 Enoy. 568,
(bl 2 Cr. 966.
445
exchanged for iand: In fact all hereditaments, corporeal and
and incorporeal, may now be fully exchanged (a).
By the common law of Engiand, before the passing of the
Real Property Act, 1845, the word _" exchange " in a deed of
exchange implied mutual warranties of title and rights of
re-entry on the eviction of either of the parties from the lands
exchanged. As in Ceylon there is no such Act, it appears that;
the word " exchange " should imply what it did before that Act.
A combined exchange and partition may he effected where
persons own the entirety of some of the land, and undivided
shares in other land or subject matter of exchange (b).
Mines and minerals, and also rights of way and other
easements may be reserved (c).
Form of a .Deed of Exchange.
This indenture made the--day of--betwaen A. B. of J
--of the one part and C. D. of--of the other part. I
'_i,:
Whereas under and by virtue of transfer deed dated-- Jr
and attested by S. K., Notary Public, under No.--the said
A. B. is seized and possessed of all that piece of land, &c.,.
more fully described in the schedule A hereto.
And whereas under and by virtue, &c.--the said C. D. is
seized and possessed of all that piece of land, &c., more fully
described in the schedule B hereto.
And whereas the saiil A. B. and C. 1). have mutually
agreed to exchange the said pieces of lands, &c,, hereinafter
metioned.
Now this indenture witnesseth that for effectuating the
eaid exchange and in consideration of the conveyance herein-
after expressed to be made by the said C. D,, I the sair:I A. B .
of--do hereby grant and convey in exchange unto the said
C. D., his heirs, executors, administrators and assigns all that
piece of land, &c.--more fully described in the schedule A.
hereto, together with all buildings, privileges, easements,.
appurtenances whatsoever to the said premises belonging or
(a) 5 Enoy, 572, (b) 5 Ency, 573, (c) 5 Ency'. 574,
 446 CH. XXI.-DEED OF EXCHANGE.
in anywise appertaining or usually held or enjoyed therewith
or reputed to belong or be appurtenant thereto, and all the
"6state, right, title, interest, claim and demand whatsoever of
the said A. B. in, to, out. of and upon the said premises and
every part thereof.
To have and to hold the said premises hereby granted
and conveyed or expressed so to be unto the said C. D ., his
heirs, executors, administrators and assigns for ever.
And this indenture also witnesseth that for further effec-
tuating tbe said exchange and in consideration of the grant
and conveyance bereinbefore contained I the said C. D. of
--do hereby grant and convey in exchange unto the said
A. B., his heirs, executors, administrators and assigns all that
piece of land, &c.--more fully described in the schedule B
hereto, together with all buildings, privileges, easements, appur-
' tenances whatsoever to the said premises belonging or in any-
wise appertaining or usually held or enjoyed therewith or
reputed to belong or be appurtenant thereto and all the estate,
right, title, interest, claim-and demand whatsoever of the said
C. D. in, to, out of and upon the sa.id premises and every part
thereof.
ro have and to hold the said premises hereby granted and
conveyed or expressed so to be unto the said A. B., his heirs,
executors, administrators and assigns for ever.
And the said A. B. and C. D., their heirs, exeoutors and
administrators covenant with each other, and their heirs,
_executors, administrators and assigns that the said respective
premises are free from all encumbrances whatsoever made or
suffered by them or any person or persons lawfully claiming
from, under or in trust for them respectively and th3:t they
now have good right to grant and convey by way of exchange
the said premises in manner aforesaid and that they shall and
will warrant and defend the said respective preiises and every
part thereof unto each other, their heirs, executors, adminis-
trators and assigns against any person or persons whcHnsoever.
A~d tli_~t ~hEl s_ajd /1_. 1-3-. ~l!d C. D., th_eir 1:ieirs, 13,-xecuto_rs,
and administrators and every person having or claiming any
EXCHANGE UNDER LAND ACQUISITION ORDINANCE. 447
estate, right, Gitle, or interest in the s~id respective premises
hereby granted and conveyed or part thereof from, under or in
trust for the said A. B. and C, D. shall and will from time to
time and at all times hereafter at the request and cost of the
other of them, his heirs, executors, administrators or assigns
do and execute or cauee to be done and executed all such acts
deeds and things whatsoever for further and moro perfect!;
assuring the said respective premises and every part thereof
unto the other of them , his heirs, executors, administrators
and assigne in manner aforesaid as shall or may be reasonablv
required.
In witness whereof we the said A. B. and C. D., &c.
Exchange under the Land Acquisition
Ordinance.
(Form-Agreement) .
Whereas His Excellency the Governor, in axercise of the
powers vested in him by "Tbe Land Acquisition Ordinance;
1876," as amended by Ordinance No. 25 of 1912, has acquired
from A. B. df---for a p'1blic purpos-e, an allclment of land
C alled---situated in the village---in---in the
District of---Province, bounded on the North by &c.
containing in extent---.
It is hereby agreed by and between B. H ., Government
Agent .of the---Province, for and on behalf of His
Majesty the King, and the said A. B. of---in terms of
Seo. 46 (1) of the said Ordinance, that tbe consideration
for the acquisition of the said lands shall be an exchange of
other land, to wit, an allotment of land called"'---situated
in the village---in---in the District of---Pro-
vince, bounded on the North by, &c., containing in extent
----, the property of the Crown, instead of a pflcuniary
,consideration.
Witness:
Signature of Party.
Government Agent.
Describe as in Crovrn Grant,
448 CH. XXI.-DEED OF EXCHANGE.
I
Agreement of Exchange under Ord. 10 of 1861
amounting to a Transfer.
Whereas N. K. of--is by virtue of the transfer deeds
in bis favour da,trJd the--day of--and attested by
- -Notary Public of--under Nos.--the owner of the
pieces of land called "T. & 0. " situated at--in extent
--Lms; V. C. exclusive of the land used for the lane
that passes through that land and whicb lane is vested
in the Chairman of the Provincial Road 'Committee of Jaffna
(who is hereinafter called " the said Chairman") under the
provisions of the Ordinanre No. 10 of 1861 and which
is marked as "B. C." in the Survey Plan No. 73 made by
Mr. J. de N., CoD?mittee Surveyor, dated 15th November
1917 and is in extent 1 94 perches.
,,,.
And whereas tba said N. K. is by virtue of the aforesaid
deeds entitled also to the piece of land called "T. H." in extent
3'7'1, perches -and marked A. B. in the said Plan (which extent
of 374 perches is the Southern portion of tbe said land called
"T. H." belonging to the said N. K. by virtue of the said deed $
No&--.
<\.nd whereas on the application .of the said N. K. to the-
Provincial Road Committee, ,Taffna, to exchange the said portion
of lane marked B-C for the said Lot A-B, the saidoProvincial
Road Committee has under the provisions of Sec. 9 of the
Ordinance No. fO of 1861 obtained an order from ~is
Excellency the Governor sanctioning the exchange of the said
Lot B-O for the lot A-B.
And whereas it is necessary under the pi;ov1s1ons of'
Seci. 9 of the Ordinance No. 10 of 1861 tbat the Chairman
of the Provinpial Road Committee, J affna, on behalf of the
Government of Ceylon should enter into an agreement with
the said N. K. for tbe exchange of the said lots of land.
Now this indenture made by and between B.H. Esq., of
Jaffna, Chairman of the Provincial Road Committee, Jaffna,
hereinafter called " the said Chairman" acting on behalf of
AGREEMENT OF EXCHANGE ...... TO A TRANSFER. 449
the Government of Ceylon of the one part and the said N. K.
of--of the other part, witnesseth :-
That, in consideration of the said Chairman granting a
certificate in favour of the said N. K. for the possession
-of the piece of land described as Lot B-O in the Survey
Plan No.--made by Mr: J. de N. dated 15th November 1917
and more fully hereinafter described the said N. K. doth
hereby for himself and his heirs, executors and administrators
covenant and agree with the said Chairman that the allotment
of land calied and known by the name of "T. H." situated
at--and described as Lot A-B and belonging to the said
N. K. by virtue of the aforesaid deeds N os.--and containing
in extent 37 4 perches, with the appurtenances thereto
belonging and bounded on the East by Lane, ou tbe North by
the property of the said N. K., on the West by Road and on
the South by the property of P., wife of Paramu, should
-absolutely vest in the Crown and that the same be taken
possession of by the said Cuairman and be used as a Lane
in lieu of the Lot B-C in the said Plan and which is now
used as a lane.
And the said Chairman hereby covenant and agre,::, in
-consideration of the said allotment of land described ,as Lot
A-B being 'allowed by tbe said N. K. to be absolutely vested
in the Cr'owo and be taken possession of by the said Chair-
man, to grant, a certificate in favour of the said N. K. to the
effect that he has b~en allowed by His Excellency the Gover-
nor to possess the Lot B-O in tbe said Survey Plan, in lieu
ortbe said Lot A-B.
In witness whereof the said Chairman and the said
N. K.---of--do set their bands to these presents
a t--this--day of--.
Witnesses:
1. a B.H.,
2. Ohairman,
Provincial Road Committee.
N. K.
57
 .
..
450 CH. XXI.-DEED OF EXCHANGE .

Certificate of Exchange under Ord . .10 of 1861

amounting to a Transfer.
I, B. H., Chairman of the Provincial Road Committee of
Jaffna, do hereby certify that N. K. of- . -has been under th& ...
provisioiis of Sec. 9 of the Ordinanc~ No. 10 of 1861, allowed
by His Excellency the Governor to possess the allotment of
land situated at--in t~ parish of--aforesaid_ called and
II
known by the name of T.C." containing in extent 1 94 perches
and marked as Lot B-0 in"the said Survey Plan and bounded CHAPTER XXII.
or reputed to be bounded on the East and West by the proper- ASSIGNMENT.
ties of N. K., on the North by Road and on the South by front.
of lane, the said N. K. having agreed to allow the Lot of land AN ASSIGN:r,fENT is the transferring or setting over to
another the interest one has in a thing --more particularly
ca 11 ed T .""H . " marked Lot A-B in the said Survey Plan
II

the transferring to another that particular interest' which one

No.- - , dated 15th November 1.917, to be vested in the Cro~n
has in any property wherein a third person not a party ,J;o the
and be taken possession of by me in lieu of the aforesaid
assignment has some right or interest (,i).
Lot B-0.
In witness whereof I set my hand to these presents Assignment of rights and liabilities may occur, by act or
at--this-- day of--. agreement of parties, by the assignment of
estates or interests
in land to which covenants running with the lands are annex ..
Chairman, ed, by marriage operating on the contracts of the wife, by
Provincial Road Committee.
. ' bankruptcy, or by death.
It is, of course, open to .\ . an'd B., the original parties, to
agree with C., that C. shall take B.'s place. Tbis three-cornered
agreement is a tearing up of the old, and tbe making of a new
contract This is not assignment.
But if ,i. owes B. 10 under a contract, and B., without
obtaining A.'s consent, can transfer his right of action to 0.,
the contract or right of action is said to be "assignable."
Liabilities cannot be assigned.
If A. owes B. 10, A. cannot, by arrangement with C.,
compel B. to look for payment to C, For B. is entitled to the
credit and substance, such as it is, of A.(b),
Assignments ere usually made of leases, of mortgage
bonds, of an annuity or _rent-charge, of an agreement, of a
decree of court and of personal chattels.

(a) 1 Cr, 344, (b) Humble v. Hunter, 12 Q. B. 310; Carter 160.


452 CH. XXII.-ASSIGNMENT.
An office of trust or a personal trust as that of a guardian
or curator cannot be assigned ; nor the foll or half-pay of an
officer (a). A pension for past services may be assigned (b) . A
good-will of a trade is also assignable (c).
In the absence of any covenant on his part to the con-
trary, the lessee may assign all or part of his estate, notwith-
standing that the lease may not have been granted to him and
his assigns (d). , The same privilege belongs to every subse-
quent assignee. Every lessee who assigns his lease is entitled
to a covenant by his assignee for indemnity against any
breach by the assignee of the covenants contained in the
original lease (e).
A mqrtgagee may assign without the mortgagor being a
party. If an a,Si!ignee pay arrears of interest it will not be
considered principal, and bear interest, unless the mortgagor
l will not expose the vendor to any liability by holding him out
concur in the assignment(/).
In an assignment it is usual to have a clause appointing
the assignee as the attorn. ey of the assignor for the "purpose of
the assignment. This helps to give effect to tbe dead either
as an assignment or as a spec:al and irrevocable power of
I/ attorney. . Negotiability, which is the child of the law merchant, is
With regard to other legal choses in action, on contracts
involving personal confidence or ability, there can be no assign-
ment, nor whenever by reason of change of business or
change of parties the result of an assignment would be to
impose on one of the contracting parties a greater liability
than he ever intended to assume. But a contract that
certain work shall be done or goods supplied without regard
to the person engaged is assignable (g).
(a) 1 Cr. 346 and 347,
(b) Davis v, Marlborough, 1 Bwanst, 79; 1 Cr. 347.
(c) Bunn v. Guy, 4 East, 190; 1 Cr. 379.
(d) Church v. Brown, 15 Ves. 258, 264; Deane 65,
(e) Staines v, Morris, l Vos. and. B. 8, 11 ; Deane 65.
(f) 1 Cr. 401!,
(g) Carter 167.
CH. XXII.-ASSIGNMENT. 453
Assignments of a judgment ne6d not be notari1tlly' exe-
cuted (a).
Good-will.-Wben the subject of the sale or assignment
is the good-will of a busineas, some provision should-be made
to protect the right of the purchaser. In the absence of
stipulation to the contrary ( 1) the vendor may set up a pre -
cisely similar business to that sold, even next door to the
premises where the original business was carried on (b) .
(2) He may deal with the old customers of the business sold.
A covenant thereof is necessary by the vendor that he will not
set up a similar business within a specified distance of the
premises where the business the good-will of which is sold is_
carried on. A covenant on the pa,rt of the purchaser that he
as the real owner of the business (c).
Negotiability differs from assignability in some important
respects, AssignabiHty only . puts the assignee into the
shoes of the . assignor ; he takes the benefit of his assignor's
rights and no more. The common law says : Nemo dat quad
non. habet.
the property by which certain undertakings to pay pass from
hand to hand like cash (d) .
Policies of insurance, although chose in action, may ha
assigned. Any insurance made on the life or livE>s of any
person wherein the person for whose use or on whose account
the policy is effected shall have no interest, is void. Every
man has an insurable interest in his own life, but to support
an assurance on the life of another, the interest must be
pecuniary as that of creditor on the liie of his debtor or that
of a surety on the life of his principal. The assignee of a
chose in action of a m 1.rried woman has an insurable interest .
"
(a) Fernando v. Fernando, 8 8, C, C. 132. .
(bl Libouohre v, Dowson, (1872) L.R. 13 Eg. 322 .
{c) Burchell v. Wilde, (1900) 1 Cb. 551; Gibson, 182.
(d) Carter 172,
 454 CH. XXlI.-ASSIGNMENT. , FORM OF AN ASSIGNMENT ... .. . OF AN ESTATE.
in her life. A policy of insurance effected by a father on the
life of hie son is , vo id, he having no pecuniary interest
.- .
therein (a).
No assignment will confer on tbe assignee the right to
sue for the amount of the policy until a written notice of the
date and purpose of the assignment be given to the Company,
liable under the policy at their principal place of business, and
the date of the receipt of such notice will regulate the priority
of claims under any assignment.
A mere agreement to assign a policy is not an assignment
of a policy (b) ..
I Mortgage of a policy is affected by an assignrrient of
( the policy ~fth the right of rede~ption (c).
In the assignment _the vendor generally covenants that
the policy is subsisting and valid, that all premiums have
been paid up to date, that he will do nothing whereby it may
be avoijl_ed or by which the premiums may be increased and
that i("an-es
,.. do so that he will' pay the advanced premiums(d).
. The mortgage of a Policy at Life Assurance is affected by
:an assignment of the policy, and immediately on completion,
notice must be given to the Assurance Cornt;>any otherwise a
sub.sequent encumb. rancer who gives notice will obtain priority
(
if he is unaware of the mortgage. The assignment should
contain covenants by the mortgagor not to do anything which
may avoid the policy, to reiltore it if by any means it becomes
voidable, and to effect a new insurance in the name of the
mortgagee if it becomes void and to pay the premiums and
deliver the receipts therefor to the mortgagee, a power to the
mortgagee to pay the premiums if he makes default and a
covenant that, on the mortgagee doing so, he, the mortgagor,
will on demand repay them with interest and expenses.
If the policy is mortgaged in conjunction with a mort-
gage of land there should be a charge of these expenses on the
land until repayment. But the mortgagee-even in the absence
(a) 1 Cr. 411. (c) Gibson 244.
(b) Spencer v, Clarke, (1878) 9 Ch. D. 137. Id) Gibson 181.
',
455
- of stipulation, is entitled to charge the property
with any sums he may advance to keep up the
policy with the leg_al interest thereon (a) .
Form of an Assignment of an Agr.eement
for the Purchase of an Estate.
This indenture made the-,-day of--
between A. B. of--[assignor] of the one part and
-0. D. of--[assignee] of the other part ;
Whereas by articles of agreement bearing date Re?itals of
11rt10les,
the--day of--last past and expressed to b e
made between E. F. of-.--[vendor] of the one part
and the said A. B. of the other part it is witnessed
that the said E. F. did pr the consideration there-
in mentioned agree to sell unto the said A. B. all
that [de .~ cription of the estate].
Now this 'indenture witnesseth that in consi- Testatum.
-de~ation of the sum of Rs.--well and truly paid
by the said C. D. (the receipt whereof is hereby
.acknowledged) he the said A,.B. doth assign all
those the said recited articles of agreement and all
the estate, right, title, benefit, advantage, property,
claim, and demand whatsoever of him the said
A. B. of, in or to the same.
To have and to hold the said articles and all Habendum.
benefit and advantage thereof in as full ample and
beneficial a manner as he the said A. B. could or
might have been entitled to the same if these pre-
sents had not been made unto the said C. D., his
heirs, executors, administrators and assigns for
-ever. .
And the said A. B. doth hereby nominate, con- Power of
.
st1tute and. appomt
. t h e sa1a C. D ., b'1s, h e1rs,
. . exe
Attorney.
cutors, administrators and assigns his true and
lawful attorney and attorneys irrevocable in his
(a) Re Leslie. Leslie v. French, (18SS), ~3 Ch, D.
Gibson, 244.
..

456 CH. XXII.-ASSIGNMENT.
name but for the sole use and benefit of him th&
said C. D. and his aforewritten to do, perform,
and execute every act, matter and thing whatsoever
requisite and necessary for carrying the said articles
of agreement into full effect.
Indemnity Provided nevertheless and it is hereby d.eclared
to assignor,
and agreed by and between the said parties hereto,
that the said C. D. and his aforewritten shall and
will at all times indemnify and save harmless the
said A. B. and his aforewritten from and against
all costs and charges and damages which he or any
of them shall or may pay or sustain or be put unto
by reason of any action or suit in pursuance of the,
power hereinb.efore given .
Assignee to And the said C. D. and his aforewritten do,
~~!~~:ts t~~ hereby covenant with the said A. B. and his afore -
.the agree- written that the said C. D. and his aforewritten
ment. shall and will, well and truly pay, perform ~nd
observ.e all and every the sur:n or sums of money,.
covenants, agreements,. promises, and conditions,
respectively which are mentioned or contained in,
the said in part recited articles which on the part
of the said A. B. and bis aforewritten are thereby
agreed to be paid, performed and observed.
In witness whel'eof we the said A. B. and
C. D. &c.
Form of an Assignment of .a Decree.
To all to whom th~se presents shall come I,.
A. B. of--.[assignor] send greeting:
Whereas I, the said A. B, on or about the--
day oJ--1908 last 01tst recovered a judgment in
case No.--of the District . Court of--against.
L. P. of--for the sum of Rs.--with interest
thereon at--per centum per ,annum from the--
day of--'1904 till payment in full and costs of
suit.
FORM OF AN ASSIGNMENT OF A DECREE. 457
--., And whereas J have agreed with C. D. of--[assignee] for
the absolute sale and assignment to him of the said judgment
and decree and all moneys due thereon for the settled sum of
Rs.--.
Now know ye and these presents witness that I the said
A. B., in pursuance of the said agreement and in considera-
tion of the said sum of Rs.--well and truly paid to me by
the said C. D. (the receipt whereof I do hereby admit and
acknowledge), do hereby bargain, sell and assign unto the,
said C. D., his heirs, executors, administrators and assigns all
that the said judgment obtained by me in the said case No.--
of the District Court of--, and the sum of Rs.--now due
upon the said judgment and all interest nm; due and may here-
~fter become due for the same and the full benefit, profit, sum
and sums of money and advantage whatsoever that now can or
shall or may hereafter be obtained by reason or means of the
same or of any execution thereupon now had or to be had,
sued out, executed or obtained and all the estate, right, title ,
interest, claim and demand whatsoever of me the said A. B.,
to and upon the same.
To have, bold, receive and take the said premises hereby
assigned or expressed so t::> be unto him the said C. D., bis.
heirs, executors, administrators and assigns for ever.
And ior the batter and more effectually receiving the
several sum or sums due on the said judgment and decree I
the said A. B. do by these presenbs nominate, constitute and
appoint tho said C. D. and his aforewritten my lawful attor-
ney or attorneys irrevocable for_ me and in my name to sue.
and prosecute the said execution upon the said judgment and
to make or give valid and effectual receipts or discharges for
the same and to issue or re-issue or enforce one or more writ or
writs of execution founded on the said judgment and decree and
to take all such proceedings and do all such other things and acts.
whatsoever as shall be requisite in and about the premises.
And I the said A. B. do hereby covenant with the said
C. D. and his aforewritten in manner following, that is to say,.
that I the said A. B. have never made or executed any release-
58 .
 458 CH. XXII.-ASSlGNMENT.
or other discharge oi the said judgment or of any execution
which hath been or shall thereupon be sued or executed,
neither will nor shall I the said A. B., my heirs, executors and
administrators at any time hereafter make or do any act or
thing whatsoever whereby the said judgment or decree shall
be in any manner defeated, hindered, disabled, disbarred or
-extinguished without tbe consent of the, said 0. D. or his
aforewritten thereto first had in writing.
And further I the said A. B. and my 1;1,forewritten shall at
all times at the request, cost and charges of the said O.D. and
his aforewritten maintain, justify, allow and confirm Fill such
lawf~l actions, suit, processes, executions and prnceedings
whatsoever as have been or shall hereafter be brought, sued
forth or prosecuted against the said L. P., his heirs, executors
or administrators, his, their or any of their property or by
reason of tbe said judgment.
In witness whereof I the said A. B., &c.
Form of an Assignment of a Policy of Life
A.s surance (a).
I, A. B. of--in consideration of Rs.--paid to me by
C. D. of--do hereby assign unto the said C. D., his heirs,
executors, administrators, and assigns the [within] Policy of
Assurance granted [here describe the policy.]
Signed in the presence .of
A. B. (assignor).
E. F. }witness~s.
G. H.
Sale of a Policy.
To all to whom &c. I, J. C. 0.
Whereas my life had been insured by my late father
T.P.O. of--in his own favour and for his benefit under Policy
No.--, dated the--, with the Standard Life Assurance
(a) This assignment is made by . endorsement on the Policy duly
stamped, of which notice in writing shall be given to the Assurance
Company (30 and 31 Viet., C. 144, Bees, 5 and 3). It may also be by a
.separate writing, For stamping, see chapter on "Stamp Law."
SALE OF A POLICY. 459
Company of Edinburgh for a sum of Rs.--with participation
in profits payable on the expiration of twenty ye_a rs from--
or ai; my death if previous.
And whereas my late father the said T. P. 0. died
intestate at--on--without having made a will and
leaving property in--wit;hin tihe jurisdiction of the District
Court of--wberein Leliters of Administration to the estate
of my late father the said T. P. 0. was obtained by me in
Testy. Case No.--of the said Court.
And whereas I as Administrator was un~ble to have con-
tinued the said Policy, I got the permission of the Court in
the said Testy. Case No.--, to sell the said Policy as per
order of Court; dated the--and whereas it was put up
for sale by Mr. K. R. of--as Auctioneer on the --at the
D. 0. premises and J. 0. was decl,ued the purchaser, he being
the highest bidder.
Now know all men by these presents that I the said J. 0.0.
of--in my capacity ~s ad~inistrator of tbe estate of my late
father the said T. P. 0. in Testy. Case No.--and person-
ally if necessary, for and in consideration of the premises
aforesaid and in . consideration of the sum of Rs. 350 paid by
the said J.C. of--into Court (the receipt whereof I do hereby
.admit and acknowledge) do hereby sell, give, grant, convey,
trausfer, set 9ver, assure, and assign unto the said J.C. of J affna,
his heirs, executors, administrators ~nd assigns, All the right,
title, interest, claim, and demand . whatsoever whether as
administrator or personally or as botb, in, to and upon the said
Policy No.--, dated the--issued by the said Standard
Life Assurance Company for Rs.--with participation in
profibs payable on the expiration of twenty years from - -
or at death if previous with all privile~es, easements and advant-
'8.ges in, to and lJ.pOn the said _P_olicy.
To have and to hold the said right, title, interest, claim and
demand in, to and upon the said Policy No.---..-unto the said
J. C., his - heirs, executors, adminisLrators and assigns for
.ever.
In witness whereof
460 CH. XXII.-ASSIGNMENT.
Assignment of Debts (a).
Agreement entered into this--day of--19 --between
A. B. of--of the one part an rl C. D. of--of the other part.
Whereas the said A. B. has for some time past carried
on the trade or business of a--at---aforesaid and in the
course of such trade or business the several persons whose .
names, addresses and occupations are mentioned in the schedule
hereunder written have become indebted to him in the sums of
money set opposite to their respective names and he has con-
tracted with the said C. D. for the absolute sale to him of the
said debts for the sum of --.
Now these presents witness that in consideration of the
sum of - -on the signing hereof paid to the said A. B. by the
said C. D. (the receipt whereof is hereby acknowledged) he the
said A.B. doth hereby assign unto the said C.D. all and singular
the said debts and sum of money mentioned in the said
schedule which are now owing to the said A. B. To have ,
receive and take the said debts and sums of money unto the
said C. D . for hjs absolute use and benefit
In vdtness whereof, &c., . the said A. B.
The Schedule above referred to
Name, etc. of Debtor. Amount of Debt.
Signed by the said A. B .
in the presence of.
(a) Kelley, 171. N B -Though this is in the form ofan agreement,
yet it is signed only by A. B. as there is nothing for C. D. to state or agre&
to but to pay the money ,
ASSIGNMENT OF GOOD-WILL ... .. . BOOK DEBTS . 461
Assignment of Good-will, Fixtures, and
Book Debts (a\
This Indenture made the--day of---19--between
A.B. of etc., of the one part aud C.D. of etc., of t he other part .
Whereas the said A. B. has agreed with the said C. D.
for the sale to him of the good-will, fixtures and book debts of
the trade or business of a- - car ried on by him at--afore -
said as a going _concern for t he sum of. - -.
And wherea.s prior to the date hereof t he said A. B .
delivered to the sai d C. D . the stock a nd utensils in trade
thereof.
Now the I nd enture witnesseth that in consid eration of
the sum of ---to the said A. B. paid by tb e sit id C. D. on
the execution hereof (the receipt whereof the said A. B. doth
hereby acknowledge) he the said A. B. as benefici al owner
doth hereby assign unto the said C. D ., bis executors, ad minis-
trators and assigns all the ben eficial in tere3t a nd good-will of
the said business of a--with the fixtures pertaining thereto as
lately carried on by the said A. B. And also ~ll U,e hook and
other debts now due and owing to the said A. B. upon account
or in respect of the said trade or business a nd all securities for
the same and also all oont raot s wh ioh have beon ente red into
by the ~aid A. B. or to which he is or can be en titled on
account or in respect of the said trade or business.
To hold the same unto the said C. D., his executors,
administrators and assigns absolutely without any interruption
or disturbance of or by the said A. B. or any other person
-claimfog through or in trust for him .
And .t he said A. B. doth har.aby covenant with the said
C. D., his E:'Xecutors, arlministrators and assigns that he the
~aid A. B. shall not either by himself or with any other person
or persons do, or cause to be done an1 wilful act or thing to
the prejudice of the said trade or business of a--as berein-
,a,fter carried on and conducted by ~he said C. D., his executors,
administrators and assigns but will whenever required by the
(a) Kelly, 174.
 4.62 CH. XXII.-ASSIGNMENT.
said 0. D., his executors, administrators or assigns render every
assistance and give all necessary evidence for the purpose of
recovering or otherwise enforcing payment of all or any of the
said trade debts and vesting the absolute ownership thereof in
the said 0 . D., his executors, administrators and assigns. And
the said C. D. doth hereby for himself, his executors, adminis-
trators and assigns covenant with the said A. B. that he will
at all times hereafter save harmless and keep indemnified the
said A. B. and his estate and effects from and against all
losses, costs, charges, expenses and damages which may be
incurred by or by reason of any action or other proceeding
which shall or may be brought or instihuted against the said
0. D., his executors, administrators or assigns for or in respect
of the said good-will and fixtures or for or in respect of the,
recovery of the several sums of money which by the said
books appear to be due and owing from the said A. B. in
resp_ect of the said trade or business and also from aod against
tbe contracts and engagements to which' by the said books the
said A. B. api1ears to be now liable and also all interests, costs,
expenses, losses, claims and demands on account of the same
debts, contracts. and engageme.nts respectively or otherwise in.
relation to the premises.
In witness, &c.
Transfer or Assignment of a Lease from
Government.
Form.
This Indenture made this---day of--1921 between
V. K. of- -of the one part and N. ~- of--of the other part.
Wherea8 the said V. K. is the Lessee under Indenture-
of Lease entered into between him and the Officer
Administering the Government of Ceylon and hereinafter
referred to fully. And whereas in terms of clause 10 of part
IV of the said Indenture it was necessary that written consent.
of the Lessor should be obtained hefore executing these
presents. And whereas the said consent had been obtained as
TRANSFER OR ASSIGNMENT ...... GOVERNMENT. 463
. N _ 1342
per letter o. P. 724 of 20th June 1921 sent by the Goverpment
Agent of the Northern Province.
Now this Indenture witnesseth that in consideration of
the sum of Rs,.c._-now paid by the said N. C. to the said V. K.
for the absolute purchase of the Leasehold Crown Land called
" Illakkaddichool ai " in extent 25 acres 2 roods- and 28 perches
situated at Veddukkadu in the parish of Punakari in the
Di.vision of Punakari in the District of J affna, Northern
.P rovince 11nd bounded on the North by T. Ps. 312702 an d
312096, on the East by Lot 3 in P. P . 4828, on the South by
Illakkad'dichoolai .b~longing to Crown and on the West by
T. P. 288604 and more particplarly delineated and described in
Lease Pla,n No. 1772, dated the 27th February 1919 and .
authenticated by W. 0. s. Ingles, Surveyor-General an d
comprised in the Indenture of Lea_se No. 3 entered into
between His Excellency Sir Graeme Thomson, K. c. B., Officer
Administering thl') Government of Ceylon and V. K. on the
24th March 1920 (the receipt of which said sum ~f Rs.--
the said V. K. doth hereby acknowledge) the said V. K .
doth hereby grant and assign unto tbe said N. 0 ., his
h?irs, executors, administrators and assigns the said piece-
of land called " Illakakkichoolai" in extent 2-5 acres 2 roods and
28 perches situated at Veddukkadu and more fully described
above and all tbe premises comprised and demised bv the
said Indenture of Lease No. 3 of 24th March 1920- with,
their appurtenances.
To hold the said land and premises unto the said N. C.,
his heirs, executors, administrators and assigns henceforth l
.,
I
I
during all the residue now expired of the term in perpetuity
granted by the said Indenture of Lease and for and all other
the term and estate of the said V. K. therein subject to the
payment, observance and performance of the rents and
covenants in the said Indenture reserved and contained,
and on the Lessee's part to be paid, observed and perform~d.
The said V. K. for himself, his heirs, executors and
administrators hereby covenants with the said N. C. and his.
aforewritten that notwithstanding any act done or suffered by
 ..
464 CH. XXII.-ASSIGNM_E)N'.I.'.
the said V. K. he has now power to assign the premises
in manner aforesaid and tbat subject to the payment of
the said rent and to the ob_servance and performance of the
said coven9,nts henceforth to he paid, observed and performed- it
should be lawful for tbe said N. C. and bis aforewritten
peaceably and quietly to hold and enjoy the said lan,d and
premises during all the said residue of the te"rm of lease without
interruption or disturbance QY the satd V. K. or any
person claiming under him and that free and clear of and from
all charges and encumbrnnces whatever created or permitted
by the said V. K. or occasioned by his act, i;ieglect or default
and further that the said V. K. and every person -I~ wfully
claiming through or under him will. at any time bereaiter
on the request and at the costs _of the said N. C. and his
afornwritten assign and confirm unto him and them the saiil
bereditaments and premises for all theresidue of tbe said. term
of lease in such manner as the said N. C. and his aforewritten
shall direct.
The said N. C. for himself and his aforewritten hereby
c,,yenants with the said V. K. and his aforewritten that he
the said N. C. and bis aforewritten will froi;p. time to time
per.form and observe the Lessee's covenants contained in the
said Indenture and save harmless the eaid v.
K. and his
aforewritten from all losses, damages and expenses in respect
thereof.
In witness whereof the said V. K. and the said N. C.
have hereunto and to two others of the same tenor and
date as these presents set out' hands at-'--this--- day of
August One thousand nine hundred and twenty-one.
Signed inthe 1 V.K.
presence of us : r N. C.
. ,position of a surety without his knowledge and thereby releases
. (b) See Rees v, Barrington, (1795) 2 Ves, 540, a.nd see a.lso 2 Wh, &
.
..
CHAPTER XXIII.
RELEASE.
A DEED of release is an instrument whereby one doth give
-or diseharge the right or the action, which he may have or
claim against an0tber, or it is the conveyance of a right or
interest whic,h one "haih in a thing tg another who has the
_.possession thereof or some estate therein (a).
Classification.-Re'leases are commonly stated to be of
two sorts, . namely :--(1) . a form of conveyance by which an
estate or interest in lands or tenements or in goods and
.chattels is transferred by one person to another person who
,has already a vested interest thereon, e.g., a release by a joint
tenant to his co-tenant of an undivided share in land, or by a
mortgagor to tbe mortgagee of the equity of redemption ; and
(2) a discharge or renunciation by one person of some right of
action or claim which he has against another, or against
another's property. To these may be added a third kind of
refoase which hardly falls under either of these heads, viz ..
the release of certain powers, which operates in effecfi as a
.disclaimer.
Releases of the kind secondly above mentioned may be
-effected either (1) by express words (whether by parol or by
-deed) ; or (2) by operation of law, e.g., ' when a creditor gives
time or other indulgences to his principal debtor affecting the
the latter (b). but for. the present purpose we are only con-
cerned with releases by express words in writing.
(a) 1 Cr! 1324.
Tud. L. C., 7th Ed., p, 568; il Eooy. 444,
59
 ~ ( , .,.
466 CH, XXIII.~RELEASE .
Releases are as a rule given i;mder seal by deed poll or-
indenture. Wben covenants and other provisi9ns have to be,
inserted an indenture must be used.
Recitals.-Great care is necessary in the preparation of
the recitals 6f releases. The whole state of the case . upon
which a release is to be granted should be fully set ou~ in the
recitals as the operative part is constr ued by t~i:, help -of t he
recitals (a). ~ consider shortened. But where breaches of ,trust have
, .
A covenant not to sue on a bond tiil such a ti me is a
deieasa nce, but a covenant ~ot to sue at all is a release, , Where
0
l n instrument amounts to a covenant only and n_ot to a
release, it cannot be pleaded in bar (a) . .
Importance of setting out all the facts.-;rhe ,general words
co ntained in a release are, by an old rule of construction,
liable to be controlled and restricted iri their operation by the
recitals . F or example, a release, by t he next of kin of'- an
intestate to the administrator, though unlimited in its terms ,.
was held from the recitals and context to
op~e only as to a
particular sum mentioned in the recitals, and,_to include funds.
which afterwards fell into the,.inteetate's estate (b).
It follows therefore that the recital~ in a release should:
,. show fully and precisely the circumstances upon which the
release is based. Thus in a release to trustees where a breach
of trust has bean committed, it is not sufficient to rely upon
general words of release or discqarge, however sweeping, but
'tbe facts of the breach of trust, including the amount of the
loss (if any), should be fully stated, in the recitals, and it
should clearly appear that the acts or omi~sions of the trustees
constituted a brer.ch of trust (c) .
It is not unusual in tqe case of releases granted to trus-
tees executors, or administrators upon the winding up of a
trus~, or -the distribution or partial distribntidn of an estate, to
(a) 2 Cr, 1324.
(b) See Ramsen v, Hyl! on, (1761) 2 Ve~. Seo, 304; Lindo v, Lindo,
(1839) 8 L. J, Ch, 284; Pritt v. Clay, 11 Enoy. 446; .(1843)_ 6 Bea.v, 603,
(c) 11 Enoy." !146.
..
rely upon accounts submitted to and approved by the cestuis
que trustent as sufficiently showing ~he dealings with the trust
property or funds, wii;hout setting out the facts in recitals.
The recitals would in that case simply' refer to the accounts,
whether appended by way of schedule to the release or signed
as a separate document. And in many cases this is a con-
venient ~ . urse to adopt; as the body of the deed is thereby
occurred, ith or without the concurrence of beneficiaries,
then, even if the circu)llstances appear clearly on t he face of
the _accoun ts, j t would not be safe to t rust to a reference to
settled accounts, and the story shouid be fuUy recounted by
, ,,.
way of recital as stated above. In some cases a receipt at the
foot of accounts signed by the beneficiaries, with a note show-
ing that the accounts have been e:xami~ed and.1 approved by
them, wiil operate as a sufficient discharge to the trustees (a) .
Oorisiderati:m.-In a release under seal (not being by way
of conveyance on sale) it is not necessary to state any con-
sideration on the face of the deed. But the release is usually
expressed to be made i n copsideration of the premises, i.e., of
the facts stated i_n the recitais ; or, where payments or trans-
fers have been made to t be beneficiaries on tho distribution of
an estate, in consideration of t he pay ments and transfers so
made and of the premises (a).
0
Operative iuords in a Release.-According to Littleton ,
the proper words 'of release are -.. temise, release and quit (or
quiet) claim ; " but no special words are necessary so long as
the intent.ion to release is clearly shown. The words "release "
and " discharge" are com~only used in modern' relea~es, with - .
out the other words mentioned by Littleton (a).
A release _ of all demands extinguishes all actions, rights ,
titles, conditions and the like then existing ; but it is usual for
the releasor to expressly release the releasee or the property
of the releasee from the subject of the release and from " all
actions, proceedings, claims and demands " in respect there-
of (a) .
(a) 11 Ency. 447.
"'-- ol

468 CH. XXIiI.-RELEASE.
In releases to trustees or others bolaing a fiduoiary
position, where qreaches of trust have been committed or com-
plications have arisen in the execution of tbe trust, it is not
unusual to add to the release a covenant of indemnity by the
beneficiaries or some of them who are sui iuris in respect of
such breaches or complications. But this can only be properly
required where persons other than the releasors are interested
or may hav!l claims in respect of the subject-matter of the
release (a).
A covenant not to sue, absolute and unconditional and
without limitation as to time, operates as a release and may
be pleaded in bar of action by the covenantee (b).
When one partner covenants not to sue for a debt due to
the partnership his covenant does not bind the firm, as; in the
absence of express authority, one partner cannot bind the
other by a deed, tbougb-a curious exception to the general
rule-a release by one partner would have that effect, because a
release by one of two joint creditors destroys tbe debt, except
in the case of fraud ; a covenant by all the partners not to sue
would operate as a release (c).
It should be noted that a partner has implied authority
to execute a release on behalf of his firm (d}.
A release of one partner from a partnership debt releases
the others, but a covenant not to sue one partner has not that
effect, nor would a 1elease, if it appeared not to be so intended,
the right of action against the others being res_erved (e).
(a) 11 Ency. 447.
(b) Hodges v. Smith, (1599) Cr, Eliz, 623; 11 Ency, 449.
(c) Walmesley v. Cooper, (1839) 11 A, and E . . 1116; Hawksbaw v.
Parkins, (1818) 2 Swanst. 539; Barker v. Richardson, (1827) 1 Y, and J.
362; Deux v. Jefferies, (1594) Oro, Eliz, 352 ;_11 Ency, 449.
(d) Hawkahaw v. Parkins, (1818) 2 Swanst. 539 and Phillips v,
Clagett, (1843) 11 M, and W. 84; 11 Ency, 446,
(e) Lacy v. Kinastoo, (1701) 1 Ld. Raym, 688,690; Walmesley v.
Cooper, ubi supra; Solly v. Forbes, (18~0) 2 Br, and B. 38; Willis v. De
Castro, (1858) 4 C. B, (N, S.) 216; 11 Ency, 449.
CH. XXIIL-RELEASE . 469
Where bare is a debt due to a partner individually, and
also a debt due to bis firm, and a general release is given to
the partner, such release applies only to his separate debt.
Similarly, where there was a release to a firm releasing the
partners and every of them from all claims and demands by
tbe releaser, it was held that the release did not extend to
debts due from the partners individually (a).
Powers appendant (i.e., where tbe donee has an estate or
interest which may be affected by the exercise of the power)
or in gross (where the donee's estate or interest is not affected)
could be released (see Farwell on Powers, 2nd Ed, p. 15}. and
a covenant not to exercise such a power operated as a rele!ise.
'D ealings with the estate creating interests inconsistent with
the exercise of a releasable power would have the effect of
extinguishing it (b).
One or more of several executors can without the consent
of the others settle accounts and release debts (c}.
One of several obligees under a bond may release the
obligation and a release to one of two or inore joint and several
obligors will be a discharge to the other or others (d).
A release of an annuity or rent-charge operates by way of
extinguishment and though made to one who is tenant for life
will nevertheless be effectual (e).
As a rent charge issues equally out of every part of the
land charged with tbe payment of it a release of any part will
by implication exonerate the whole, unless it be otherwise
agreed between the parties-(e}.
(a) Bain _v. Cooper, (1842) 9 M. and W. 701; Noel v Roobfort, (1836)
!i CI. and F. 158; 11 Ency, 449,
(b) West v, "Barney, .ubi supra; Be Hanoook, (1896) 2 Cb. 173 ;
Fuakes v. Jackaon, (1900) 1 Ch. 807; 1 l Ency 450,
(c) Smith v. Everett, (1859) 27 Beav, 446; Jacomb v. Harwood,
(1751) 2 Ves. Sen. 365; The Trustee Aot, 1893 (56 & 57 Viet. o, 53),
S. 21; 11 Eocy. 446.
(d) 11 Ency, 446.
(e) 2 Cr, 1327,
 470 CH. XXlll.-RELEASE.
Where there are several obligees, a release by one of tbem
will be a release of the entire bond (a).
A discharge to one of two debtors in solidum does not
extingisb the debt ; it liberates the person to whom it is given
and not his co-debtor, the latter remaining liable for his
share lb).
A discharge to a principal debtor induces tbat of the
sureties; but a discharge to a surety does not discharge the
principal debtor (b).
A discharge to one surety does not discharge his co-
sureties but it liberates them from the part for which after
payment of the debt, they wouid have bad recours., against
bim if be bad not been discharged (b).
An agent, acting under a general power of attorney, a
tutor, curator, or administrator cannot release a debt-a
release being a donation and those . persons having only the
power of administering and not of giving (b).
]t'orm of a 'Release of Lands.
To all to whom these presents shall come I, C. D. of--,
send greeting.
Whereas and by virtue of a mortgage bond dated--and
attes_ted by-- --under No.--certain A. B. bound him-
self to pay the said C. D. a sum of Rs.--and, whereas for
securing the payment of the said sum eight pieces of lands
were hypothecated and mortgaged with the said 0. D.
And whereas the said A. B. has paid all sums of money
due on the said bond except a sum of Rs,--B,nd bas applied
to the said. C. D. for the release of the first four pieces
described hereinbelow from the said bypotbecat!on and mort-
gage;
Now, know all men by these presents that I, the said
C. D. for and in consideration of the payment to me by the
(aJ 2 Cr. 1328.
(b) Pothier on Obligations, P. 3, C. l, Art, 6, 2; H, T, 303,
RELEASE OF PA.RT OF THE LA.NDS ... MORTGAGE. 471
-said A. B. of all sums of moneys due on the said mortgage b0nd
dated--and attested by-- -- -under No.--except a
sum of Rs.- --(the receipt whereof I do hereby admi~ and
acknowledge) do hereby remise, release and quit claim unto
the said A. B. all right, title, interest and cl~im which the said
C. D. has to the follov;:ing four pieces of lands as described in
the said mortgage bona.
(1) All that -[descriptio~ of the four pieces of lands.]
To have and to hold the sfl.i:l four pieces of lands hereby
r emised and released or so expressed to be unto the said A .B.,
his heirs, executors, administrators and assigns for ever.
In witness whereof I the said C. D., &c.
Release of part of the Lands comprised in a
Mortgage (a).
(Form of a Deed poll may, also be used.)
This indenture is made the--day of--between
{releasor) of, etc. (hereinafter called the releasor) of the one
part and (mortgagor) of, etc. (hereinafter called the mortgagor)
of the other part.
Whereas by bond dated the--day of--the mortgagor
hypothecated the hereditaments hereby released together
with other hereditaments of considerable value unto and to
the use of the releasor by way of mortgage to secure the
payment to the releasor of the sum of --with interest for
,the same as therein expressed.
And whereas the mortgagor is desirous of laying out the
lands and hereditaments hereinafter described as a building
estate and has requested the releasor to release the said here-
,ditaments from the said mortgage debt.
And whereas the releaser being satisfied that the remainder
,of the land and hereditaments comprised in the said mortgage
bond is sufficient security and that the proposed development
of the hereditaments hereby released as a building estate will
(a) 11 Ency. !191.
472 CH. XXIII.-RELEASE.
increase the value of the other hereditaments still remaining,
subject to the mortgage bond has agreed to execute such
release as is hereinafter contained.
Now this indenture witnesseth that in pursuance of the
said agreement and in consideration of the premises the
releasor doth hereby grant and release unto the mortgagor
all those pieces or parceh; of land situate and being (details) to
hold the same unto and to the use of the mortgagor and his
heirs discharged from all principal moneys and interest
intended to be secured by and from all claims and demands.
under the hereinbefore recited indenture of mortgage.
In witness, etc.
(Signature of releasor only though
it is called an indenture.}
Form of a general Release or Discharge
from one to one.
Know all men by these presents that I, A.B. of---
for and in consideration of the sum of Rs.--to me well and.
truly paid by C.D. of---have remised, released and for ever
discharged and by these presents do for me, my heirs, execu-
toi:s, and administrators, remise, release and for aver discharge,
the said C. D., his hairs, executors and administrators of and
from all, and all manner of action and actions, suit and
suits, cause and causes of actions and suits, debts. dues, sum and
sums of money, accounts, reckonings, bonds, bills, specialities,
covenants, contracts, controversies, agreements, promises.
variances, damages, judgments, executions, claims and
demands, whatsoever, at law and in equity which against the,
said C. D., I the said A. B. ever had, now have or which I or
my heirs, executors and administrators hereafter can, shall or
may have, for, upon, or by reason of any matter, cause or thing
whatsoever.
In witness whereof I the said A. B., &c.
RELEASE BY CREDITORS '.W A DEBTOR. 473.
Mutual Releases by two Persons (a).
(Oo;icise Form).
This indenture made the--day of--between (first.
releasor) of etc. of the one part and (second releasor} of
etc. of the other part.
Witneslleth that each of them the said (first releasor) and
(second releasor) hereby releases the other of them from
all sums of money, accounts, actions, proceedings, claims and
demands whatsoever which either of them at any time had or
has up to the date of these presents against the other for or by
reason or in respect of any act, cause, matter or thing.
In witness, &c.
Release by Creditors to a Debtor (b).
This indenture is made the--day 0f--between-
(creditors) of etc. (hereinafter called the creditors) of the one-
part and (de~tor) of etc._of the other part.
Whereas the said (debtor) is indebted to the creditors in
the several sums specified against their re;pective names in the,
schedule hereto. . -
And whereas the creditors have agreed to accept a compo-
sition of--shillings in the pound in full discharge of their
said debt.
Now this indenture witnessetb as follows:
1. The said (debtor} agrees on or before tbe--day of
--next to pay to each of the creditors who shall execute these,
presents before that date the composition of-- shillings in
the pound on his or her debt specified in the schedule hereto.
2. Each of the cred1tors hereby agrees to accept such
composition in full satisfaction of his or her debt.
3. If such composition be duly paid each of the creditors
-hereby releases the said (debtor) from his or her said debt.
4. This release shall be binding and effectual though not
executed by all the creditors of the said (debtor) and though
all or any of the non-executing creditors may be paid in full.
(a) 11 Eooy. 45. (b) 11 Ency. 451!.
60
474 cm. xxm.--RELEASE .
5. Provided always that if the said_composition shall not
be duly paid at t he time and in manner aforesaid or if before
the--day of--a receiving order in bankruptcy shall have
.been made against the said debtor then these presents shall
be void.
In witness whereof, &c.
The Schedule above referred to.
Creditor's name and 1 Amount of oomp o-
Amount of debt. sition.
description,
Signatures of all the parties .
Release of a Power of Revocation and New
Appointment; Supplemental to an Appoint-
ment by Deed in favour of Children
reserving such Power (a).
T~ all to whom these presents shall come (appointor) of,
-e tc., sends greetings.
Whereas these presents are intended to be supplemental
to a daed poll (hereinafter called the principal deed) dated the
- -day of-- under the hand and seal of the said (appointor)
whereby the said (appointor) made certain appointments by
virtue of the power in that behalf veste~ in her by an indenture
of settlement dr..ted the--day of --in the said deed poll
mentioned and reserved to herself a power of revoking such
appointments and making a new appointment or new
.a ppointments.
And whereas the said (appointor) has not exercised the
power 0 .f revocation and new appointment reserved to her by
(a) 11 Enoy. 598,
RELE ASE OF L ANDS ...... H I S MA ,TORITY. 475
the principal deed and has determined to release the same in
manner hereina fter appearing.
Now these presents witness th at the said (a ppointor)
hereby reieases unto the said (dtJ,ughter) and t he said (other
'c hildren) and their respective heirs and assigns the said power
of revocation and new appointm en t reserved to the said
(appointor) by the principal deed to t he intent that the here-
ditaments thereby appointed s hall absolutely rem ain and be
held upon the trusts expressed in and by the principal deed
discharged from the said power of revocation and new
appointment.
In witness, &c.
(Signat1ire of appointor) .
Release of Lands from a Legacy bequeathed to
Minor on his attaining his Majority (a).
To all to whom these presents shall com3 A. B. of etc .
[releasor] sends greeting :
Whereas C. D . of etc. died on the--day of-- - having
by his will dated the--day of--and proved by tho said
E. F . and G. H. in t he District Court of- - whereby he
appointed E . F . and G. H. the executors thereof and bequeath-
-ad the sum of 1,000 to the said A. B. on his attaining the
age of 21 years and charged the same on bis farm and lands
'ilituate at-- -which farm and lands the said testator devised
to I. J. of--subject neverthelees and charged with the said
sum of 1,000 as aforesaid.
And whereas the sa.id A. B. attained the age of 21 yea.rs
on the--day of--last.
And whereas the said I. J . has immediately before the
execution of these presents paid the sum of 1,000 to the
said A. B . in discharge of the said legacy so charged as-afore,
said the receipt whereof the A. B. doth hereby acknowledge.
(a) Kelly, 387 .
476 CH. XXIII.-RELEASE.
Now these presents witness that in consideration of such
payment and of the premises the said A. B. hereby releases
tbe said farm and lands from the said sum of 1,000 and all
interest thereon and from all cll\ims and demands in respect
thereof or of any part thereof or in anywise relating thereto.
In witness, &c.
Release by Residuary Legatees to Executors and
Trustees, the accounts be,ng set forth
in a Schedule (a).
'.rhis -i ndenture mad0 the--day of--between A. B.,
X. Y. and J. K. of etc. [residitary legatees] of the one pg.rt
and C. D. of etc. and E. F. of etc. [trustees and executors] of
the other part.
vVhereas E. M. late of--duly made bis will dated the
--day of--19 --whereby after appointing the said C. D .
and E. F . to be the executors and trustees thereof and bequeath-
ing certain pecuniary legacies he devised his real estate and
bequeathed the residue ~f bis personal estate and effects unto
the said C. D. and E. F. Upon trust to pay the rents of his
real estate and the income of his personal estate unto bis wife
Maria M. fot her life. And on her decease the said testator
directed the said trustees to sell and convert into money his
said real estate and the residue of his personal estate in the
manner directtld by the said will and after payment of the
costs, charges and expenses attending such sale calling in and
uonversion the said testatot directed bis trustees to pay and
divide the proceeds of such sale calling in and conversion unto
and equally between the said A. B., X. Y. and J. K.
And whereas the said testator died on the--day of--
and his said will was proved by the said C. D. and E . F. in
the District Court of--on the--day of--.
And whereas the said C. D. and E. F. duly discharged the
said pecuniary legaciee and paid the said rents and income to
the said Maria M. during' her life.
RELEASE B Y RESIDUARY ..... . IN A SCHEDULE . 477
And whereas the s'aid Maria M. died on t he- -day
of--.
And whereas the said C. D. and E. F. shortly after the
death of the said Maria M: sold and converted into money the
said real and residuary personal estate oi the said testator as
directed by the said will and after the payment of the costs,
charges and expenses attending such sale calling in and con-
version and all duties payable to Lhe Government and the
costs and charges and expenses a tten di ng tee preparation and
-execution of these presents there remained in t he hands of the
-said trustees the sum of --as ap pears by the account set
out in the schedule hereto a copy of which has been oresented
to and approved by each of them the said A. B., X. Y. and
J. K. who have examined and are perfectly satisfied with the
same.
And whereas th_e said sum of --has been divided
equally between and paid to the said A. B. , X . Y. and J. K.
as they do hereby respectively acknowledge and t hey have
agreed to give the release herein contained.
Now this indenture witnessetb that in consideration of the
premises each of them the said A. B., X. Y. and J. K. hereby
releases the said C. D. and E. F. a nd each of them from all
.accounts, actions, claims and demands whatfloever for or in
respect of the estate of the testator _or any part thereof or any
act, deed, matter or thing whatsoever committed or omitted by
the said C. D. and E . F. or either of them in or about the execu-
tion of the sa.id will of the trusts thereof or in anywise
Telating to the premises.
In witness, &c.
The Schedule.

(a) Kelly, 384,


CHAPTER X.XIV (a) . .
BILLS OF EXCHANGE, PROMISSORY
NOTES AND CHEQUES.
PRESENTMENTS, NOTING AND PROTESTING.
! .-Introductory.
BY Ord. No. 5 of 1852, Law of England was intr.oduced
in ma tters relatin g to Bills of Exchange, Promissory Notea
and Cheques.
As part of the practice of a notary consists in making
formal presentments of bills of exchange for acceptance or
-p ayment, and in noting and protesting them _when dis-
honoured, it is proposed in this chapter to give an outline of
some of the leading features of the law relatinf! to bills of
exchange and othm negotiable instruments .
Exchange, in the commercial sense of the term, is the
system or process by which the debts of individuals residing
at a dista nce from their creditors are settled by an exchange
or transfer of credits without the transmission of coin, and
a bill of exchange, generally speaking, is the instrument by
which this exchange or transfer is effected (b).
The pa.r ties to a bill of exchange are : the drawer, who-
draws the bill; the payee to whom or to whose order the bill
is to be paid; the drawee, on whom the bill is drawn, who,
when he has accepted it in the manner prescribed by the Bills
of Exc!:Jange Act (c), is called the acceptor; the indorser, or
(a) This Chapter is m>\inly taken from Chapter VII on Bills ol
Exchange, eto,, io Brooke's Notary, 7th Ed. of 1913.
(bl Brooke, 78,
(cl 45 & 46 Viot., c. 61, S. 17,
INTRODUCTORY, 479,
payee, who transfers his right to receive payment of the bill , I
to another; the indorsee, to whcim the indorser transfers the II
right of receiving or assigning payment of the bill; the holder,.
or last payee or indorsee, who is to receive payment of the bill
when it becomes due. A " holder in due, course " is a person
who has taken a bill complete and regular on the face of it,
before it was overdue, and without notice that it had been
J'
I,I
previously dishonoured (if such was the fact), in good fa ith
and for value, and without notice at the time ihe bill was
negotiated to him of any defect in the title of t he person who
negotiated it (a) .
Sometimes one person may take the place or two of these.
parties. Thus a bill may be drawn payable to, or to the order
l
of tbe drawee. Again , the drawer and drawee may be the same
person. When this is the case, or when the drawee is a ficti - I.
tious parson (b), or a person not having capacity to contract,.
the bolder may treat the instrument
,. either as a bill of exchange
or a promissory note (c). A bill may be addressed to two or
more drawees whether they be partners or not ; but an order
to pay addressed to two drawees in the altern ative, or to two
or more drawees in succession , is not a bill of exchange (d) .
So a bill may be made payable to two or more payees jointly,
or it may be made payable in the alternative to one or two, or
to one or more of several payees, or to the hoider of an offi ce
for the time being (e) . Tbe drawer of a biH, or auy indorser,
is also entitled to insert in the bill the name of a person to
whom the holder may resort in case the bill is dishonoured by
non-acceptance or non-payment. This person is known as
the referee in case of need (f).
A bill of exch~nge! as defined by the Bills of Exchange
Act, 1882, . ~ ~9nc;l ~tiop~al orc1er ig _wl'_itin_g, addressed by
(a) Sec. 29 (1) and Sec, 30 (:4),
(b) For definition, Vagliaoo's Case, (1889) 23 Q, B. D. 243; A.O. 107
and Chalmers on Bills, 7th Ed., p, 23,
(c) Seo. 5 (2).
(d) Seo. 6 (2),
(e) Sec, 7 (2) ,
(/) Seo. Hi ; Brooke, 81 and 82,
480 CH. XXIV.-BILLS OF EXCJHANGE, ETC.
one person to another, signed by the person givina it, re9-u!Eing_
the perso---;; t~who_!!l it i_s ~ddr~~s~d to pay on demand, or at~
fii;for determinable future tiD_!e, a sum certa~n }n ~~n~y~
or to the o__rder of, a sii~c}!i~d _person, or to bear.er. (a).
The liabilities of the parties to a bill of exchange are
briefly as follows : The drawer, by drawing it, contracts with
-the payee and every pt"rson to whom the right of receiving the
bill may be subsequently transferred, that if_ the bill be duly
presented to the drawee it will be accepted and paid when it
,becomes due ta the aPawee, and tbat if it be dishonoured he
will compensate the holder or any indorser who is compelled to
,p ay it, provided the necessary proceedings on dishonour are
,duly taken. A drawer is precluded from denying to a holder
in due course the existence of the payee and his then capacity
to indorse (b:.
The indorser of a bill, by indorsing it, contracts that on
due presentment it will be accEfl)ted and paid according to its
tenor, and, if it be dishon~ured, that he will compensate the
holder or a subsequent indorser who is compelled to pay it,
provided that the necessary proceedings on dishonour be duly
'taken (c).
So long as a bill remains in the possession of the payee,
his engagement is simply to prtisent the bill for acceptance or
payment, as the case may be, within the proper time, and, if
.acceptance or payment be refused, to give notice of such refusal
to the drawer within the time prescribed by law ; on the
payee's failure 'to do this the drawer is discharged from liability
,on the bill. But when the payee transfers the bill by indorse-
ment, other duties and obligations arise. Indorsement by the
payee implies an undertaking on his part to th!l indorsee and
all other persons to whow the bill may be afterwards_ trans-
ferred, precisely similar t.o the undertaking implied on the part
of the drawer by drawing the bill (d). In the absence of any
indorsement by the payee, he is not liable on the bill (e).
(a) Brooke 82 and 83, (d) Seo, 1i5 (2),
(bl Seo. 55 (I). (e) Brooke 92.
(cl Brooke 90.
PRESENTMENT FOR ACCEPTANCE, 481
The drawee of a bill is _u nder no liability until by an act
-of his own, or .of his agen t, he has made himself liable. As
soon as be has expressed on the bill his willingness to pay the
amount or part. of tbe amount, he becomes known as the
acceptor of the bill (a), ._and is the person primarily liable (a).
A foreign bill differs from an inlan d in the following res-
pects : It need not be stamped befora it is issued, whereas an
inland bill must be writt; n on duly stamped paper; if dis-
honoured it must be protested, whereas an inland bill needs no
E.!:otest ; and it is fre::iuently drawn payable at one o- ; : ~""
usances . By "usance " is meant customary time, that is to
say, the time for paymen t as fixed by custom, having regard to
the place where the bill is drawn and the place wh ere it is
payable (b).
T he duties of the holder with regard to presentment, pro-
test and notice of disilooour are determined by the law of the
place wh ere ttJe act is done or l;he bill is dis honoured (c).
II.-Presentment for Acceptance.
The hoider of a bill of exchange ha!! the right to present it
for acceptance. When a bill is made payable after sight, pre-
sentment for accepta nce is absolutely necessary to fix the time
when it is to become due, otherwise the time of payment would
never arrive. And when a bill ex pressly stipulates that H must
be presented for :1cceptance, or when it is drawn payable el\je-
where than at the residence or place 10f business of the drawee,
-the bill must be presented for acceptance before it can be pre-
-eented for payment (c).
A bill should be presented for acceptance by, or on
'behalf of, the holder to the drawee himself, or to a person
authorised by him to receive bills for acceP,tance (d). For,
-~ Ehougb, in presenting a bill for payment, presentment at the
c.I'esidence of the acceptor is sufficient, in presenting a bill for
(a) Brooke 9~. (cl Brooke 96.
(b) Chalmers on Bills, p. 40; Brooke 94, (d1 S~o. 41 (1) ,
61
 .
482 CH, XXIV.-BILLS OF EXCHANGE, ETC,
acceptance, presentment should, as a rule, be to the drawee-
bimoelf. A bill, however, that is deposited in the bill-box of
the drawee, or handed to a clerk in bis office in the usual way,.
is duly presented, but evidence that a bill was presented for
acceptance to some one of the drawee's premises without
connecting him with the drawee does not amount to proof
of presentment (a).
If a bill is addressed to two or mor~ drawees who are not.
partners, it must be presented to each, unless one has
authority to accept for all, when the presentment may be-
made to him alone (b).
If the drawee be dead, presentment may be made to his
personal representative, and, if he be bankrupt, presentment,
may be made to the bankrupt himself or to his trustee, and in
either case presentment is excused, and the bill may be treated
as dishonoured by non-acceptance. Presentment is also
excused, and the bill may be treated as dishonoured by non-
accepta nee, when the drawee is a fictitious person (c) or a
person not having capacity to contract ; or when, after the-
exercise of reasonable diligence, it cannot be effected ; or when,
although the presentment has been irregular, acceptance bas
.
been refused on some other ground (d).
In all cases presentment for acceptance should be made
at a reasonable hour, on a business day, and before the bill
is overdue. If made at a Bank, presentment must be within
banking hours; if made at a place of busines>1, it must be
within the usual business hours ; and if made at a residence,.
presentment at eight o'clock in the evening would probably
not be considered unreasonable (e).
(a) Cheek v, Roper, 5 Esp, 175 ; Chalmers oo Bille, p, 149.
(b) Seo. 41 (1) (b),
.(c) For definition, see Vagliano's Case, (1891) A. C, 107 and
Chalmers on Bills, p, 28,
(d) Seo. 41.
(e) Parker v. Gordon, 7 East 285 ; Elford v. Teed, 1 M, and B. 28 ;.
Brooke 101,
PRESENTMENT FOR PAYMENT. 483
. When a bill is presented ior acceptance , the d rawee 1s
entitle~ to a reasonable time to consider whether he will
accept it or ~efuse a?d, if the bill is not accepted within the
customary time, the person presenting it must treat it as dis-
h?nou:ed by non-acceptance, otherwise the holder will lose
bis nght of recourse against the drawer and indorsers
(Sec. 42) (a).
III.-Presentment for Payment.
W~en a bill com es to maturity it is absolutely necessary
except 1~ cases expressly exeml?ted by the Act (b), that it
should oe duly presented for payment to the acceptor either
at the_ address mentioned on the bill or at his place of business
or residence.
. . .Failure on the part of the hold er t,o present
the bill will discharge the drawer and indorsers and f
from. them. ail liability not only on the b1'll , -~b u t a'1 so on trheee
cons1derat1on for which it was given (c).
. Presentment for paymtmt, in order to be valid, must be
made by the holder of the bill, or his agent, duly authorised
and competent to give a valid receipt for the money (d)' at a
reasooi,~ie hour, on a business day ' at the p.roper P1ace, as
h ~
erem r efined, to the person designated by the bill as
payer,. or to somff'
. person authorised to pay or rn
. fuse payment-
on bis behalf, if such person can with reasonable diligence
be found
. at the place of presentment If no sue h person can
be
found, dno further presentment to the d rawee or acceptor
1s require .
. If . the bill be lost, a copy should be presented and an
mdemmty tendered (e).
When authorised by agreement, or usage, a presentment
for payment by post is sufficient.
(a) Brooke 101.
(b)-See Seo, 46 (2) .
(c) Brooke 103.
(d) Roberts v. Tuoker, 16 Q, B. 560,
(e) Seo, 52 (4) ; Ch!ilmers on Bille, p. 159 , Thaokray v. Blaohett.
8 Camp, 164. '
;

484 OH. XXIV.-BILLS OF EXCHANGE, ETC.
Presentment must also be ma.de at the proper place,
otherwise the drawer and indorsers will be di scharged from
liability (a).
A bill is dishonoured by non-payment when it is duly
ore~ented for payment and payment is reiused or cannot be
~btained, or when payment is excused and the bill is ov~rdue
anrl unpaid (b) .
IV.-Noting and Protest (c).
As soon as a bill is dishonoured by non-acceptance or
non-payment, a rig ht of action against the drawer and
indorsers accrues to the holder, but before the right is
enforceable, not only is notice of dishonour to be given,
but the bill, when it is a foreign bill, must be duly protested,
that is to say, it must be taken to a notary, who at a
reasonable hour of tbe day on which it is dishonoured will
present it, or cause it to be presented, a second time to
the drawee or acceptor, and demand acceptance or payment,
as the case may be. In England, the bill is usually presented
by a notary's clerk, wbo exhibits it., and makes the formal
demand for acceptance or payment. On refusal, the bill is
taken back to the notary, who on the same day notes it for
dishonour.
To note a bill means to make a note or minute on
the face of it. The note consists of t,he notary's initials, the
true date of dishonour, the noting charges, and a reference to
a mark or number in the notary's register. A ticket is also
attached to the bill on which is written in abbreviated form
the answer given to the cierk when he presented the bill : for
instance, "no effects," "no orders," or other words giving the
general purport of what was said or done.
Before the bill is sent out for presentment an exact copy is
always made in the notarial register, or protest book, as it is
(a) Brooke 105.
(b) Brooke 108.
(c) Brooke 108 and the following pages.
NOTING AND PROTEST. 485
generally callea, and the notary on receiving tbe bill again rlis-
honoured, inserts in tbi<i book a nots or minute of tbe trans-
action which is initialled by t~e clerk who actually presen ted
the bill. From this minute a formal instrument called the
protest is afterwards drawn up, signed by tbe notary and passed
under his official seal.
Pro perly speaking, a proteat is ti:.e formal annouuce-
ment or attestatio n u nder th~ signature and seal of a notary
that a bill has bsen duly presented and disho noured by non-
acceptance oe non-payment. Io practice, however, the word
protest has a wid er meaning, and include, the noting and
dom a.nd, in shorb, all the steps that must ne cessarily be taken
to fix liability in a dishonoured bill.
There is no prescribed or special form of protest. The
only model provided by statute is the form of certificate (a)
that is to be used by a householder, or other subahn tial resi-
dent, when the services of a notary cannot be obtained. The
BiHs of Exchange Act, however, directs that every protest
must specify the perso'n at whose request the bill is protested,
the place and date of protest; the demand made; and either
the answer given or the fact that the drawee or acceptor could
not be found. It also provides that a protest should contain a
copy of the bill and be signed by the notary who makes it.
Although the "Ac~ does not rnquire the official seal of the
notary t.o be affixed to the instrument, tbis formali~y should
never in practice ba omitted. A protest by a notary in Eng-
land doss not require an attesting witness, though forrn9rly
such witnesses to protests were not uncommon,
A protesb is alwayB made and drawn up by a notary, if
there ba one at or near the place where the bill is to be paid
or the acceptance given. If tb.ere he no such notary, a house-
holder, or substantial resident of the place may, in the
presence of two witnesses, give a certificabe signed by him,
attesting the dishonour of the bill, and the cerbificate will
(a) For form see below.
486 CH. XXIV.-BILLS OF E XCHAN GE, E TC .
operate in all respects as if it were a form al protest of th e bil l.
T he signature of t he witnesses is esseutial.
A bill must be protested ~t t he place where it is dis-
h onoured. B ut when a bill is presented through t he post,
and retur ned by post disho noured, it mtty be protested at the
place to which it is raturned; and a bill dra wn pay able a t the
place of business or residence of some person other than
the dra wee , wh ich bas been dishon oured by non- acceptance,
must ha protested for non-payment a t 'the place where it is
expressed to be payable, and n o fu rther presentment for
payment to, or demand on, the drawee is necessary.
The loss, destruction, or wrongful detention of a bill does
n ot excuse protest ; a nd the Act provides that when a bill is
lost, destroy ed, or wrongly detained from the person entitled to
h old it, a protes t may be made on a copy of written
p articulars t hereof.
Protest is dispensed with by any circumstance which
would dispense with noti~e of dishonour.
H is not necessary that a copy of the protest should
a ccompany the notice of the dishonour of a foreign bill. But a
memorandum or notice of tbe pro~est should be sent, if the
party to whom notice is transmitted reside abro\J,d,
A bill must be noted on the day on which it is dis-
h onoured, but the formal protest may be drawn up, or, as it is
technically termed, extended by the notary on 11, subsequent
day, and dated as of the true date when the bill was dis-
honoured. When a Bill is presented through the post, and
returned by post dishonoured, it may be protested on the
day of its return if reQeived during business hours, and if not
received during business hours, it may be protested during the
next business day, but not later. And when a bill is required
to be protested within a specified time, or before some
further proceeding is taken, it. is sufficient, if the bill has been
noted for protest before the expiration of the specified time, or
t he taking of the proceeding.
NOTIN G AND PROTEST . 487
In the case of a foreign bill, that is a bill which appears
-On t he faa e of it to be a. foreign bill, which h as been
dishonoured either by non -acceptance or non-pay ment, a
protest is ab solutely necessary, a nd the want of it will release
t he dra wer a nd indorsers from all liability. But a bill which
does not on t he face of it a ppear to be a fo rei gn bill, alt hough
'I n realit y it is one, need not be protested in case of dishonour.
Nor is protest necessar y, when a foreign note is dishonoured.
Inland b ills require no protest, but t hey ar':l sometimes
noted for disho no ur by non -acceptance or non-pay ment, as t he
,case may be , as evidence of due presentme nt. It is unnecest:! ary
to note or protest a n inland bill to pre 3erve reoours e against
tbe dra wer or indorsers. 'rhere are instances, however , in
which a protest is neoessary on the dishonour of inland bills ;
for exam ple, an in land bill cannot be aqcepter fo r honour sitpra
protest unless it has been protested for non-acceptance or for
better security ; and when a dishonoured inland bill has been
,accepted for honour supra protest, or contains a reference in
Case of need, it must be protested for non-payment before
it is presented for payment to the acceptor fo r honour, or to
t he referee in case of need. In both instances the noting
.alone would be sufficient, provided a formBJ protest was drawn
up in due course.
As regards inlan d bills and notes, notice of dishonour is
;t he English substitute for protest. As regards foreign bills
notice of dishonour is supplementary to protest.
Tbe protest book, to which reference has been made, is a
.n otarial register of bills noted and pr'o tested, which is kept in
the office of every notary. It furnishes the means of prepar
ing duplicate or triplicate protests if they should be required
at a subsequent date ; and as it is usual for the clerk who
presents a bill to mark the register with his initials, it
,assists the holder to obtain evidence of the presentment
without much difficulty; but neither the entry, nor the book,.
nor the ticket, is in itself legal evidence of the presentment
-Of the bill. Presentment must be proved by the clerk who
.actually presented the bill. It has been helci, however, that-
488 CH. XXIV.~BILLS OF EXCHANGE, E'li().
an entry in the notarial register of tbe dishonour, a bill made
by a notary's clerk who presented the bill, is receivable in
eyidence in an action on the bill, upon proof of the death of
the clerk.
V .-Notice of Dishonour (a).
When a bill on due presentment is dishonoured by non-
acceptance or non-payment, form al notice of this fact, unless.
such notice is excused, should be given immediately by the
holder to tbe drawer and every ir!dorser ,whose name was on
the bill when it came into his possession. The dra wer and any
indorser to whom such notice is not given will be disc harged
from liability, on the bill itself, and on tho , consideration for .
which it was given. But when a bill is dishonoured by non-
acceptance and notice of dishonour is not given, the rights
of a subsequent holder in due course are not prejudiced by
the omission.
To be valid and effectual the notice must be given by or
on behalf of the holder, or by or on behalf of an indorser who
at the time of giving the notice is himself liable on the bill.
It may be give n by an agent, such as a banker or solicitor .
either in his own name or in the name of tbe party entitled
to give notice, whether that party be bi s principal or nob.
An d an agent who is in possession of a bill when it ia dis-
honoured, may give notice either to t he partieB liable _on the
bill or to his principal. In the lather case he must do so
within the same time as if he were the bolder, and the pri nci-
pal upon the receipt of such notice bas the same time for
giving notice as if the agent had bee n an independent bolder .
Notice of dishonour means something more than mere
knowledge of that fact, it means a formal intimation of_ the
non-acceptance or non-payment of a bill. The notice may .be
given in writing or verbally. No particular words are
necessary, but the language used must be sufficient to identify
the bill and intimate that acceptance or payment bas been
refused. A written notice need not be signed, and an
(a) Brooke 117, eto,
PROTEST FOR BETTER. SECURITY, 489
insufficient written notice m ay he su pplemented and validated
by verbal communication. A misdescription of the bill wm
not vitiate the notice unless the party receiving it is in fact
misled thereby.
When a bill drawn in one country is negotiated, accepted,
or paya ble in another, the duties of the holde r wit h respect
to presentment, protest, and notice of dishonour are determined
by the law of the place where the act is done or the bili
is di shonoured.
.
VI.-Protest for Better Security (a).
When the acc_e ptor of a bill become9 bankrupt or insolvent
or suspends paym ent befortl it becomes due, the holder may
cause the bill to be protested for better security, that is to
say, be must instruct a notary to present the bill immediately
to the acceptor and demand better security fo r its payment
than t he acceptance affords , If better security is not obtained ,
the bill may be protested at once and notice of the protest
sent to the drawet and indorsers. The holder, however, can-
not enforce his rights at once, he must wait until the bill
matures. Omitting to make a protest in the above circum-
stances does not in any way affect the holder's remedy against
the drawer or indoraers of the bill. The only effect of such,
a protest . in this country is that it permits a second accept -
ance, that is to say, an acceptance for honour, whereas with-
ou~ the intervention of a protest, there cannot be two accent-
ance s on the same bill.
When the acceptor of a foreign bill becomes bankrupt or
insolvent or suspends payment before it matures, the bill
should always be protested for better security, because in some
foreign countries a holder after such a protest may at once
dema.n d security from the d'r awer and indorsers, or treat the
bill as dishonoured, and sue the parties thereon.
(a) Brocke, 122 and 123.
6\l
490 cH: XXIV.-BILLS OF EXCHANGrn, ETC,
VII -Acceptance for Honour (a).
When a bill of exchange has been protested for dishonour
by non-acceptance or protested for better securit:, and is not
overdue, any person who is not a party already liable thereon
may, with the consent of the holder, intervene and a~ce~t
the bill supra protest, for the honour of any party habie
thereon or for the honour of the person for whose account
,the bill is drawn.
An acceptance of this description fs said to be for the
honour of the party or parties on whose account or on whose
behalf it is made, and is called an acceptance . for honour
supra protest.
Such an acceptance may be for the whole amount of the
bill, or for a part only, and either for the honour of the bill,
,t hat is of all the parties thereof, or of the drawer, or of the
indorsers, or any one of them, but it is essential, as its n~me
imports, that an acceptance for honour s_bould not be given
until after e. regular protest of the bill for non-acceptance or,
where the acce ,;tor becomes a bankrupt oi insolvent or sus
pends payment before the bill matures, for want of better
,security.
If the acceptance for honour does not expressly state for
whose honour it is made, it is deemed to be an acceptance for
the honour of the drawer. Although the rule is that after a
general acceptance by the drawee another person cann,ot ma~e
a second acceptance in order to guarantee the acceptor s credit,
it is said that when a bill has been accepted .mpra protest for
the honour of one party it may be accepted supra protest by
another person for the honour of another party. The holder
of a bill, is under no obligation-to receive an acceptance ~upra
protest, and the .Bills of Exchange Act, 1982, expressly
provides that such an acceptance can only be made with the
holder's consent.
An acceptance for honour to be valid must be written on
the bill and signed by the acceptor for honour; and it mush
indicate that it is an acceptance for honour.
(a) Brooke, 123,
ACCEPTANCE FOR HONOUB. 491
The purpose or objecb of an acceptance of this kind is
to enable the holder to preserve the rights he would have had
if the bill had been accepted, and to save tbe credit of the .
parties to the bill and prevent them being sued.
By the law mercbaut an acceptance for bonour supra
protest must be attested by an instrument called an aat of
honour, or, as it is sometimes called, an act for honour,
recording the transaction. An act of honour must be
drawn up by a notary. It is a certificate under his band
and seal explaining the reason and object of the acceptance
.supra protest. It certifies, in effect, that t,he original bill of
tixchange, a true copy of which is appended, having been duly
protested for non-acceptance, a person not a party to tbe bill
had declared in the presence of the notary that be would
accept the bill either for the whole or a part of the amount
for the honour or on account of some party thereto, and
states in effect that suc1.1 party and all other proper parties are
held responsible for the amount oi the bill, together with
interest, damages and expenses, and genarally concludes with
the words: "Wherefore, I (meaning the notary) have granted
this notarial act accordingly.'' It is not necessary to have an
attesting witu'ess to tho act.
The wording of an act of honour varies considerably.
No precise form of words is necessary, but the act must be
truly dated on the day of which the bill was exhibited and
the acceptance for honour made.
An act of honour is by the law merchant indispensable,
and a copy of it, and of the bill, is preserved in the notary's
protes_t book or register and is usually marked with the
initials of the clerk wbo presented or exhibited the bill
as in the ordinary case of presentment to the drawee for
acceptance. The protest should be kept by the holder of the
hill, as it is for the holder's security, but the act of honour
or a duplicate should be kept by the acceptor supra protest,
as he would find it of use in an action brought to enforce his
rights against other parties in respect of such acceptance.
'The acceptor for-honour pays the costs of the act of honour,
492 CH. XXIV.-BlLLS OF EXCHANGE, ETC.
and if he accepts for the whole amount of the hill, he also-
pays or reimburses the expense of the protest.
The mode of accepting for honour supra protest is regu-
lated by mercantile usage. On appearing before a notary.
the intending acceptor for honour, personally, or through the
medium of a clerk or agent (on the bill being exhibited by the,
notary or his clerk), declares that he will accept it under protest
for tbe honour of the party be names or generally for honour,
and will satisfy tbe same when it becomes due. An act of
honour is prepared, and after this is done, or simultaneously.
the a,cceptor or his agent, writes upon the bill an acceptance
to the following effect : " Accepted supra protest for the honour
of C. D. (the drawer or indorser), lsb of October, 1920, (Signed)
A. B." or simply " Accepted S. P., 1st October, 1920, Signed
A.B."
If the drawee has not sufficient funds of the drawer in hand
to provide for the payment of the full amount of the bill, and is
willing to accept for a part of the amount, the proper course is
to cause the bill to be protested absolutely, and to state in the,
protest that the drawee bad refused to accept it, according to
the tenor of the bill ; an dthen to have an act of honour pre-
pa.red by a notary, certifying that the drawee would accept the.
bill supra protest for the part of the amount, for the honour of
the drawer. An acceptance supra protest for such part ma.y
then be made upon the bill as follows : "Accepted supra protest
for --sterling being part of the amount of this bill for the,
honour of C. D. for 1st October, 1920 (Sigoea) A. B."
According to the Act the accept~e for honour by accept-
ing it engages that he will, on due presentment, pay the bill
according to the tenor of his acceptance, if it is not paid by
the drawee, provided it has been duly presented for payment~
and protested for non- payment, and that be receives notice of
these facts.
An acceptance for honour supra protest, is, therefore, in
effect only a conditional obligation, and to render such an
a9ceptance absolutely binding the performance of several acts,
ACCEPTANCE FOR HONOUR. 493
as conditions precedent, is .essential. The bill must be duly
presented for payment when it falls due to the original drawee
notwithstanding his former refusal, because in the meantime
he may have received funds out of which, if it were again
:presented, he might honour the bill. Then the bill must be
duly protested a second time, and notice of dishonour given to
the acceptor for honour in the same manner as in the case of
the drawer and indorsers. Presentment to the drawee and
protest and notice of dishonour to the acceptor for honour are
therefore, requisite, and if any of these form alities is omitted:
the acceptor for honour is discharged. Su bject to these cond i-
t i o n s ~ ! P ~ honour by his acceptance renders himself
a.e aooeptm for lrnaear and to all parties subseque nt to t he
.p arty for whose honour he has accepted.
If the acceptor for honour pay the bill, he is entitled to
have recourse fol' repayment to the person for whose honour
he made the acceptance, and to all other persons who are
liable to that person ; but if be accepted it for the honour of
-the drawer only, he cannot sue any of the indorsers.
When a bill payable after sight is accepted for honour,
the maturity of the bill is calcul9,ted from the date of the
noting for non-acceptance, and not from t he date of the
.acceptance for honour.
A second protest for non-payment by the original drawee
after an acceptance for honour is also necessary to enable the
acceptor for honour to charge the party for whose honour the
.. acceptance for honour was given.
If the acceptor for honour fails or refuses to pay the bill
when it becomes due, the bolder must again cause it to be
protested for such non-payment, and give due notice thereof to
the parties interested.
If the address of the acceptor for honour is iti the place
where the bill is protested for non-payment, the bill must be
pres~nte_d t~ him ~ot_ later than the day following its maturity;
and if his address 1s m some place other than the place where
it was protested for non-payment, the bill must be forwarded
,for pressntment to him not later than the day following its
494 CH. XXIV.-BILLS OF EXCHANGE, ETC.
maturity. Delay in presentment, or non-pre_sentment to the
acceptor for honour, is excused by any circumstance that
would excuse delay in presentment or non-presentment for
payment.
When a bill drawn in one country is negotiated, accepted,
or payable in another, the duties of the h<Jlder with respect to
presentment for H.cceptance or payment, and the necessity for
or sL1ffioiency of a protest, are determined by the law of the
place where the act is done or the bill is dishonoured.
VIII.--Payment for Honour "Supra Protest" (a).
When a bill is dishon oured by non -payment and has been
protested for non -payment in the manner described, any
person ,w hether liable on the bill or not, may intervene and
pay it sitpra protest for the honour of any party liable thereon ,
or ior the hono ur oi t he person for whose account the bill is.
drawn. Payment of this description is said to be for the
honour of the party or parties on whose al.lcount, or on whose,
behalf, it is made, and is called a payment for honour supra
protest.
Payment for honour supra protest, in order to operate as-
sucb and not as a mere voluntary payment, must always be
attested by a uotarial act of honour, which may be appended
to tbe protest, or form an extension of it.
This notarial act of honour must be founded on a decla--
ration made by the payor for bonour, or bis agent, declaring his,
intention to pay the bill for honour, and the party for whose
honour he pays.
. \ payable to the maker's own order is not a note within the
When a bill has been paid for honour, all parties sub-
sequent to the party for whose honour it is paid, are discharged ,.
and the payer for honour becomes in effect the holder of the
bill, and succeeds to tbe rights and duties of the bolder as.
regards the party for whose honour he pays, and all parties .
iiable to him.
(a) Brooke, 129. &o.
PROMISSORY NOTES. 495,
When, after a payment of part of the amount of a bill bas
been made by one person supra protest, a further part , or the
balance, is paid by a second person, another act of honour
must be made and granted for the security of the latter.
On paying a bill supra protest, the person receiving the
money gives a receipt upon it to the following effe,Jt : -
London, 1st September, 1920.
" Received from Messrs. G. and Company ---sterling
the amount for part of the amount, as the case may be) of the.
bill, paid by them supra protest, for the honour of A. B. the
drawer (or C. D. the indorser, as the case may be) E. F."
IX.-Promisso1y Notes (a).
With certain exceptions, such as the rules regulating
presentment for acceptance, acceptance, and acceptance supra
protest, the provisions of the Bills of Exchange Act that relate
to bills of exchange apply to promissory notes.
A promissory note, as defined by .the Act, is an uncondi-
tional promise in writing made by one person to another,.
signed by the m1:1,ker, engaging to pay, on demand or at a
fixed or determinable future time, a sum ce_rtain in money to,
or to the .order of, a specified person o,r to bearer. An instru-
ment that does not comply with these conditions, or one that.
promises to do something in addition to the payment of money
is not a promissory note.
The necessary parties to a promissory note are the maker~
who gives the written promise, and tbe payee to whom the
note is given. An instrument in the form of a note made.
meaning of the Act, unless and until it is indorsed by the maker ..
If indorsed in blank, it becomes a note payable to bearer.
No particular words are necessary to make a note, and it
may be in English or any other language. But to constitute a
valid promissory note the document must substantially comply
with all the requirements of the above definition, and clearly
(a) Brooke, 131-140.

496 CH. XXlV.-BILLS OF EX.CHANGE, ETC. .
aA.e.-..,.,
indicate an intention to make a note and,.with the !oth section
of the Ceylon Ord. No. 2 of 1918.
A statement of thfl transactions that give rise to the note
included in the note will not. render it invalid. Likewise, the
addition to the promise of the following words, " and I have
deoosited in his hands the title deeds to lands as a collateral
-se~uritv for the same," does not invalidate the note; nor is a
note in~alid because it contains a pledge of collateral security
wit h power to sell or - dispose of t he pledge. A reference in a
note to an agreement does n ot make the note conditional and,
t herefore, in valid.
A note payable on demand is one that is expressed to be
-payable on demand, or at sight, or on prnsentatioo, or one in
whi ch no time for payment is expressed.
Days of grace are not allowed on notes payable on
demanii .
A note is payable at a determinable future time when it is
expressed to be payable: h) at a fixed period after .date of sight,
or (2) on or at a fixed period after the occurrence of a specific
event which is certain to happen, though the . time of happen-
ing may be uncertain. There is, however, no limit as to the
length of time, provi,ded it be a term that is certain to
happen.
As a promissory note is substantially the same as a bill of
exchange when the drawer and acceptor are the same per son,
the decision and rules relating to bills are applicable to notes .
When mites are made payable to order, they are transfer-
red from one holder to another by indorsecrient and delivery,
and when they are !J}ade payable to bearer they are transferred
by mere delivery.
When a. note is payable to order, and the payee or indorsee
is wro.ngly designated, or his name mis-spelt, he may indorse
the bill as described therein, adding, if he desires, his proper
-signature.
Protest is not necessary when a foreign note is dis-
honoured.
BANKER'S CHE QUES, 497
X.-Banker's Cheques (a).
A cheque is a bill of exchange drawn on a banker payable
,on demand ; and, generally speaking, the provisions of the Bills
,of Exchange Act applicable to a bill of exchange payable on
demand, apply to a cheque. A cheque . may, therefore, be
described as an unconditional order in writing addressed to a
banker requiring him to pay on demand a sum of money either
to a specified pers~rn, or to his order, or to bearer. A cheque is
not an assignment of money in the hands of the banker, it is a
bill of exchange payable at a banker's . In some respects,
however, cheques are entirely different from bills. F or instance,
they require no accepta nce, and, t herefore, no presentment for
acceptance. Cheques are always payable on demand , whereas
, bills aro, as a rule, mack, payable at a fixed determinable future
-date. Bills are intended for circulation ; cheques are given
for immediate payment. Tht~ drawee of a bill, by accepting it,
becomes liable, if be dishonours the bill, to the holder; but a
banker, if he dishonours a cheque, is not liable to the holder of
the cheque, but to the drawer. Besides, there is no noting
and protest of dishonoured cheques, and notice of dishonour is
seldom necessary.
A cheque, like a bill of exchange payable on demand, must
,as a rule be presented for payment, otherwise the drawer and
indorsers are discharged.
To render the indorser liable, the cheque must be presented
for payment on the day next after the transfer, but to render
-the drawer liable, the cheque need only pe presented within a
,reasonable time.
Form of a Bill of Exchange (b) .
(INLAND).
Rs. 1,000.
Calcutta, 1st June, 191/l.
Three months after date pay to the order of Mr. John
Charles the sum of One Thousand rupees.
Andrews & Co.
To Messrs. Brown & Son, Agra.
(a) Brooke, 14 l. (b) Eggar, 56 ,; Cb~lm~rs, .333,
63
498 CH. XXIV.-BILLS OF EXCHANGE, ETC.
FORM OF A PROTEST ..... NONACOEPTANCE. 499
Another Form (a).
Form of a Cheque.
(FOREIGN).
No.
No. 015.
Calcutta, 1st June, 1912. Calcutta , 1st June, 1912.
Sixty days after sight of this First of Exchange (second The Bank of Bengal.
and third of the same tenor and date not being paid) pay to-
the order of the National Bank of India the sum of Rn pees. Pay Mr. J obn Charles or order Rupees One Thousand
only---
One Thousand.
Andrews & Co. Rs. 1,000.

To Messrs. Brown & Sons, Bombay. Andrews & Co.

Every promissory note after the commencement of the Ord ..

No. 2 of 1918 (i.e., after August 1, 1918) shall be substantially Form of a Protest of a Bill on Non-acceptance (a).

in the following form : - On this the- -day of--, at the request of A. B. of the
city of--mercbant, and holder of the original bill of exchange,
(Date and place).
a true copy of whi~h is on the other side written, I, R. D. of
Stamp.
the said city, Notary Public by royal (or lawful) authority duly
On demand (or--months 1. Capital sum borrowed admitted and sworn, did produce and exhibit the said original
after date) I promise to pay to Rs--. bill of exchange to C. D. on whom it was drawn, at (address)
--or order, the sum of'Rupees 2. I nterest, premium or
for his acceptance, and demandecl. acceptance thereof, to which
- - , with interest thereon at charges deducted or paid in be replied, that it would not be accepted at present (or the
the rate of--per centum per advance, if any, Rs-- . answer given).
annum. 3. Rate of interest per
centum per annum : - - Wherefore, I; the said Notary, at the request aforesaid did
protest, and by these presents do solemnly protest against the
(Signature of Borrower). drawer of the said bill of exchange and all ct.her parties
The following is the form of the noting which is usually thereto, and all others whom it doth or may concern for
endorsed on the face bf the promissory note by the notary. exchange, re-exchange, and all costs, damai::es, charges and
i_nterest already incurred and to be hereafter incurred by .reason
Form of the non-acceptance of the said bill of exchange. Thus dona
Noted for non-payment and protested at--in the--presence of E. F. and G. H. ,
This-day of-1909 witnesses.
A.B.,
Notary Public. Dated this --day of--one thousand &c.

A cheque is a Bill of Exchange drawn on a specified Which I Attest,
banker and not expressed to be payable otherwise than on (Signed) R, D.,
demand. (Sec. 6.) Notary Public.
(a) Eggar, 5'/ ; Chalmers, 333.
(a) Brooke, 101.

r~OO
CH. :XXIV.-BILLS OF EXCHANGE, ETC.
Form.-Noting for Non-acceptance (a),
(Copy Bill and Indorsements).
r"
On the--of--1920 the above biU was, at the requesb
-of A. B., by me presented for acceptance to E. F., the drawee
personally (or at his residence or usual place of business)
in the city (town or village) of--, and I received for answer
- - - - ..
The said bill is, therefore, noted for J'.lOn-acceptance.
~Place and date).
Nota1y .
Memorandum of Service.
Due notice of the above was by me served upon G. H.
(drawer) and M. K. (indorser) personally, on the--day of
--19-, (or at bis residence or usual place of business), on
the--day of-_ - 19-, (or by depositing such notice,
addressed to him at--,' fo His Majesty's Post Office in the
city (town or village) of--on the--day of--19-, and
prepaying the postage thereon).
(Place and date).
Form.-Protest of a Bill for .better Security (b).
On this--day of &c. I, R. B., Notary Public, &c., at the
request of C. D. of~-aforesaid (or of the holder, or the bearer),
did exhibit the original bill of exchange (whereof a true copy
is on the other side written), at the (counting-house) of E. F.,
the person on wbom the said bill is drawn, and whose accept-
ance appears thereon, and did present the same unto a clerk
there, and demand security for the payment thereof when the
same should become payable, in consequence of the said E. F.
having become bankrupt for insolvent, or susp~ded payment)
and I received for answer, tbat security for the same could not
be given by the said E. F. who bad been declared bankrupt
(or had suspended payment).
(a) Brooke, 304, (bl Brooke, 306,
..
PROTEST OF A BILL ...... OBTAINED. 501
Wherefore, I, the said Notary,. at the request aforesaid,
have protested, and by these presents do protest against the
drawer of the said bill, and the acceptor an1 all other parties
thereto, and all other,s concerned, for exchange, re-exchange,
and all cost_s, damages, 'and interest, present and to come, for
want of better security for the payment of the said bill when
due.
Which 4' Attest,
(Signed) R. B.,
Notary Public.
Form.-Protest of a Bill on Non-payment (a).
On this the--day of, &o., did produce and exhibit the
said bill to E . F. on whom the said bill was drawn (and by
whpm the same was accepted, if the bill has been accepted),
at his office situate at, &c. and demanded payment thereof, and
he answered that it would not be paid.
Whereupon, 1, the said Notary, at the request aforesaid,
did protest, and by these presents db protest against the
drawer of the said bill, and all other parties thereto, and all
others concerned, for exchange, re-exchange, and all costs,
charges, damages, and interest, present and to come (or future),
for want of payment of the said bill.
Thus done, &c.
Which I Attest,
(Seal) R. B.,
Notary Public.
Form.-Protest of a Bill by a Resident where
the Services of a Notary cannot be obtained (b).
Kn.ow all men that I, A.B. (householder} of--, in the
county of-- , in the United Kingdom, at the request of C. D .
there being nO'notary public available, did on the--cfay of--
19 - , at--, demand payment (or acceptance) of the bill of
exchange hereunder written, from E. F. to which demand he'
(a) Brooke, 307.
(b) Brooke, 3111. This form is the only one given in the English Aot,
 502 CH. XXIV.-BILLS OF EXCHANGE, ETC. NOTARIAL NOTICE OF NOTING ...... NON PAYMENT, 503
made answer (state answer, if any). Wherefore I now, in the -drawn, who declared (or declared before me) that; the said firm
presence of G. H. and J . K. do protest the said bill of would accept the said bill supra protest for the honour of
exchange. E. F,, the drawer, for part thereof, namely, for the sum of
(Signed) A. B. (three hundred pounds) sterling; .holding the drawer and all
G. H.}w
J. H. _ itnesses. -other proper persons responsible to them, the said C, D & Co.,
for the last-mentioned sum, and for all interest, damages,
Form.-Act of Honour on Payment (to be written
and expenses. I have, .therefore, granted this notarial act of
at the foot of the Protest) (a).

Afterwards on the--day of--in the year aforesaid
,honour accordingly. ..
Which I Attest,
before me the said notary and witnesse~ appeared Messrs. (Seal) R. B.,
A. B. & Co , of frmdon , merchants, and declared that they Notary Public .
would pay the bill of exchange before protested under protest
for the honour and upon the account of the C. D. Bank, Berlin, Form.-Notarial Notice of Noting, or of a
the second indorsers on the said bill. Protest for Non-acceptance or Non-payment
(Canadian Form) (a).
Holding, nevertheless, the said second indorsers and all
others concerned always bound and obliged for reimbursements (Place and date of Noting or of Protest).
i n due form of law and according to the custom of merchants. To (drawer)
Principal .. . 100 0 0 Which I Attest, Sir: Your bill of exchange for --, dated at--the--
Notarial charges. 0 13 0 E.F., ,day of--19--, upon E. F, in favour of C. D. payable--
Notary Public. ,days after sight (or date) was this day at the request of---
100 13 0 duly noted (or protested) by me for non-acceptance (or
,non-payment).
Received the--3.ay of--19--from Messrs. A. B. (Signed) R. D.,
& Co,, the sum of one hundred pounds, thirteen shillings sterling, Notary Public.
-the amount of the said bill and notarial charges thereon.
Form.-Act of Honour on Acceptance " supra
protest ", by the Drawee for part of the Amount,
for the Honour of the Drawer (b).
On this the--day of &c. I, R. B., Notary Public, duly
authorised, admitted and sworn, practising at--in the
county of--, in the U. K. of Great Britain and Ireland, do
hereby certify that the original bill of exchange for (five
hundred pounds) of which a copy is on the other side written
(now protested for non,acceptance), was this day exhibited to
0. D,, one of the firm ai C, D. & Co., upon whom the same is

(a) Brooke, 314, (b) Brboke, 316, (a) Brooke 326.


CHAPTER XXV.
MISCELLANEOUS DEEDS AND
FORMS WITH NOTES.
!.-Accounts.
ALLOWANCE of an account stated requires no stamp duty ~
it being only admission of money formerly received (a). If a.
promise to pay be added stamp will be required (b).
Form.
We, A. B. of--and C. D. of--having carefully
exami~ed the several a_c counts, now between us, with the,
several vouchers, orders, invoices and otber papers do approve
an.d allow the same and do admit that the balance of Rs.--
is a just and fair balance due from A. B. to 6. D.
Witness our hand this 27th day oi July, l!J09.
Witnesses: A. B.
E.R C.D.
G.H.
11.-Acknowledgment.
Informal instruments serving as mere memoranda may,,
as a rule, be admitted in evidence, without any stamp. An
agreement stamp is necessary only wben a paper is evidence
of an agreement directly but not when it is used incidentally (c) .
So an acknowledgment of having received money for another
does not require a receipt stamp (d).
(a) 1 Cr. 30. {c) Wheldon v. Mathews, 2 Chit, 399,
(bl 1 Enoy, 220, (di 1 Or, 31,
. ACQUITTANCE OR RECEIPT. 505
Acknowledgment of a debt amouotiug to Rs. 20 or
upwards in amount or value, written or signed by or on behalf
of a debtor requires a stamp of six cents (a).
Acknowledgment of a right in another under the Prescrip-
tion Ord. No. 22 of 1871, Sec, 3, may be verbal (b).
An acknowledgment of a debt BO as to take the case out
of prescription requires to be in writing signed by the party
chargeable (c), and requires no stamp (d).
Form .
I, A. B. of--do hereby acknowledge thab the sum of
Rs.--being part of tbe sum of Rs.--lent to me by C. D~
of----is still owing and unpaid .
Witnesses : A, B.
E. F .
G.H.
An Alternative Form.
Colombo, 18th June, 1921 .
I. 0. U. Rs.--
To 0. D. A. B.
If an I. 0. U. is not addressed to any one it is presumed
to be an admission of indebtedness to the person who hold~;
it (e).
111.-Acquittance or Receipt.
An acquittance signifies a release or discharge in writing.
of a sum of money or debt due (/). A receipt or discharge
given for or upon the payment of money amounting_to Rs. 20
or_upwards requires six cents stamp (gl.
(a) Ord. No. 10 of 1919, Bob. B, pt. 1.
(b) Perera v. NenQbinona, l L. L. R. 74,
(c) Ord. No. 22 of 1871; Sec, 13.
Id) 1 Cr- 32,
(e) l Enoy, 220 and 184.
(1! 1 Cr. 36,,
(g) Ord, No. 10 of 1919, Sch. B, pc. 1.
64
 :506 CH. XX>V.--MlSCELLANEOUS DEEDS AND FORMS.
A memo. in these words "Mr. T. bas left in my hands
Rs. 200" requires no receipt stamp. It is only necessary for
a payment of something already due. A receipt need be in no
parbicular form to make it liable to a stamp. The word
... settled" written on payment is enough (a). An acquittance
or receipt in full of all demands will discharge all debts except
such as are on specialty, as bonds and the like (b).
* -of the land, to another in fee-tail or for term of life, &c., with
Receipt endorsed on a bond need not be stamped (c).
"This endorsement can be registered on pay,ment of the duty.
Form.
Know all men by these presents that I, A. B. of--do
,hereby admit and acknowledge to have this day at Jaffna
r~ceived from C. D. of--the sum of Rs.--in full and complete
,satisfaction of all my claims against him for principal and
foterest due on a bond dated--and attested by S. K., Notary
Public under No.--.
In witness whereof I the said A. B., &c.
[For testimonium clauses and a_ttestation, see pages 36 to
40 above].
Stamp -on a notarial receipt has to b_e aftixed on the
-,original and not on the duplicate as in the case of other
. -deeds (d).
Form of a Receipt endorsed on - Bond.
Received the sum of Rs.--in full satisfaction of the
principal and interest on this bond. The bond is hereby
-discharged.
Jq,ffna, 19th June, 1921.
Witnesses: A: B. (~ortgagee).
O.D.
E. F.
(a) 1 Cr. 3f'. (c) Ord. 10 of 1919, Sch, B, pt. 1.
(b) Oro, Jae. 650 ;. 1 Cr. 37. (ell Ord. Ill! of 1.909, Seo, 90,
ANNUITY. 507
IV.-Annuity.
An annuity is a yearly payment of a certain sum of
money granted to another for life or years or in fee. If an
annuity issue out of land, the grantor may be charged in
person, or the land may be distrained upon (a).
If a man seized of land grant a yearly rent issuable out
a clause of distress, this is rent-charge (b).
A power of entry, as well as a power of distress, is
usually given to the grantee of an annuity or rent-charf(e or to
his representativ,e in default of payment for a certain time (b).
An annuity is not redeemable, unless there is a special
provision to that effect in a deed granting it (c).
An annuity is assigna_ble (di. ii-!
/1
To make a good grant of annuity, no particular technical
mode of expression is necessary. If, therefore, a _ person
intending to grant a rent-charge, do it in such a manner that
it shall be vpid as a rent, it will he good as an annuity for tbe
words "to perceive" or "recei~e" sufficient charge on the
person of the granter (e).
Tbe essential difference between an annuity and a rent-
cbarge, is that ~n annuity is primarily payable by tbe granter
personally and tbe land is resorted on default of payment by
the grantor, whereas a rent-charge is payable out of the rents
and profits of the land and payment can be enforced by
distress(/).
A person to whom an annuity has been granted by a
testator has a tacit hypothec over the residuary estate of the
testator (g).
(a) 1 Cr. 179 and 180.
(b) 1 Cr. 182,
(c) Caverly v. Burrel, 5 B. and Aid, 257 ; 1 Cr. 181!,
(cl/ 1 Cr. 22~-
(e) 1 Cr, 189. '
(fl 1 Enoy. 500,
(g) Mack v. Fonsek&, 1 Bal. 130.
508 CH. XXV,-MlSCELLANEOUS DEEDS AND FORMS.
Form.
This Indenture made the--day of--between A. B.
of--(grantor) of the first part, C. D. of--(grantee) of th&
second part, E. F. of-- (a trustee named and appointed bv the
said grantee for the purposes hereinafter mentioned) of the,
third part and G. H. of--.(receiver) of the fourth part.
Whereas the said A. B. is seised of and entitled to the,
several lands and hereditaments hereinafter particularly
described.
And whereas the said C D. has contracted with the said
A. B. for the absolute purchase of one annuity or clear yearly
rent-charge or sum of Rs.--during the life of the said A. B.
[or ds otherwise agreed] free from taxes and without any
deduction whatever.
And whereas it was agreed that the said G. H. should hes
appointed receiver of the rents of the said hereditaments as
hereinafter mentioned.
Now this indenture witnesseth that in pursuance of the
sa.id in part recited agreement and in consideration of the sum
of Rs.--to the sa.id A. B. in band well and truly paid by th&
said C. D. (the receipt whereof the sa.id A. B. doth hereby
acknowledge and of and from the same and every part thereof
doth acquit, release and discharge the said C. D., his heirs,,
executors and administrntors. by these presents), he the said
A. B,, doth hereby give, grant, bargain and sell unto the said
C. D., his heirs, executors, administrators and assigns during
the actual life of the said A. B. one annuity or clear rent-
charge or sum of Rs.--to be issuing -imd. payable out of and
chargeable upon all those lands and tenements [description of
parcels.]
To have and to hold, receive and perceive and take the,
said annuity or yearly rent-charge or sur:g, of Rs.--unto the
said C. D., bis heirs, executors, administrators and assigns
henceforth during the actual life of the said A. B. to be paid
and payable to him, the said C. D., his heirs, executors.
administrators and assigns at Colombo by four , quarterly
ANNUITY. 509
;payments on tbe--day of--, tbe--day of---, the--
day of--and tbe--day of--in every year free from all
taxes--and without any deduction or abatement, the
first quarterly payment to be made on the--day of--now
,next ensuing.
And the said A. B., for himself, his heirs, executors and
,administrators doth hereby covenant, promise and agree with
and to the said C. D., bis heirs, executors, administrators and
-assigns that the said A. B., his heirs, executors and adminis-
trators shall and will, and well an d truly pay or cause to be
paid unto him _the said C. D., bis heirs, executors, administra-
tors or assigns the said annuity or yearl y rent-charge or sum
of Rs.--during the life of him the said A. B. at and upon
the days and in the manner hereinbefore appointed for the
,payment thereof.
And in case the said annuity or any part thereof sball be
'behind or unpaid for the space of 40 days next after any of tbe
,days or times hereinbefore appointed for the payment thereof
.although no formal demands shall have been made thereof then
-and so often it shall be lawful to and for the said C. D,, his
heirs, executors, !!,dministrators and assigns into and upon the
I
,said premises or into or upon any part thereof in tho name of
the whole to enter and the same to have, hold and enjoy and
the rents and profits thereof to receive and take to or for his
own or their use and benefit until he or they shall be fully
,paid and satisfied the said annuity and the arrears.
And this indenture further witnesseth that for the further
securing the payment of the said annuity the said A. B., doth
hereby grant and demise unto the said E. F., his executors,
administrators and assigns all those several lands and tene-
,ments described hereinbefore.
To have and to hold tbe said premises hereby demised
unto the said E. :jl'. from this date for 99 years if the said
A. B. shall so long live, upon trust, in the first place to permit
the said A. B. to receive and talrn the rents, issues and profits
of the said premises until default of payment of the said
;a,nnuity or part thernof, and upon the further trust that in

510 CH. XXV.-MISCELLANEOUS DEEDS AND FORMS.
case the said annuity shall happen to be behind and unpaid by
the said epace of 40 days, then and so often as the same shalt
happen the said E. F., his executors, administrators and
assigns do and shall by and out of the rents, issues, and pro-
fits of the said premises &c. raise and levy such sum or sums
of money as shall be necessary and apply such ruoneys in and
towards the payment or satisfaction of the amounts due to
the said C. D., his heirs, executors, adffiinistrators and assigns
and shall permit and suffer the said A. B. and bis assigns to
receive the surplus (if any) of t he rents, issues and profits of
the said premises.
That the said A. B. doth hereby covenant that he hath in,
him self the full power and absolute authority to charge all.
and singular the said premises, t hat the said premises are free-
from incumbrances, that the s11.id A. B.. his heirs, executors,-
administrators . shall make, do, execute all such and further
and other acts, deeds, matters and things whatsoever for the-
more effectually assuring the said premises to the said E. F.
And the said G. R. doth bareby promise and agree to-
collect and receive tha said rents and profits and duly and,
punctually pay t_o and for the ends a.nd purpo~es aforesaid.
In witness whereof we the said A. B., C. D. and G. H. ,,
&c.
Grant of a Rent-charge in Fee (a).
(Simp le Form).
This Indenture is made tbe--day of--between-
[grantor] of etc., of the one part and [chargee] of etc., of the,
other part.
Whereas the said [grantor] being seised of the plot of
land and hereditaments hereinafter described for an estate of
inheritance in fee simple in possession free from incumbrances-
bas agreed with the said [chargee] for .toe creation and sale to-
him of a yearly rent-charge of --to be limited out of the said
(a) 1 Eooy. 545,
APPOINTMENTS UNDER POWERS. 511
plot of land and hereditaments and to be secured in manner
hereinafter appearing at the price of --.
Now this Indenture witnesseth that in pursuance of the
said agreement and in consideration of the sum of --paid
by the said [chargee] to the said [grantor] (the receipt whereof
is hereby acknowledged) the said [grantor] as beneficial owner
hereby grants unto the , said [chargeeJ his heirs and assigns
one perpetual yearly rent-charge of --to be issuing and
payable out of all that plot of land situate, etc., which said'
yearly rent-charge is to be paid by equal half-yearly payments
on the--day of--and the --day of--in every year free--
from all taxes and deductions whatsoever the first of such
payments to be made on the--day of--next.
To hold the said yearly rent-charge unto and to the use of
the said [chargee] in fee simple.
And the said [grantor] hereby covenants with the said
[chargee], bis heirs and assigns that the said [grantor], his
heirs or assigns will at all times hereafter pay unto the said
[chargee] , his heirs and assigns the said yearly rent-charge at
the times and in manner hereinbefore appointed for payment.
thereof,
In witness whereof, &c.
(Grantor only signs) .
V.-Appointments under Powers.
A power is a right of alienating property exercisable by a
person who may or may not have an interest in the property
over which he possesses the power (a).
If the donee may appoint the property to whom he pleases,
the power is styled a general power; whereas if he has only
power to appoint a particular person or persons or members of
a class, the power is called a special power (a),
A power possessed by a person over property in which he-
has no interest is called a power collateral ; such is a power of
(a) Gibs, 526,
 512 CH. :XXV.-MISCELLANEOUS DEEDS AND FORMS.
sale and exchange given to trustees of a settlement who have
no estate in the land settled (a).
An appojntment as a deed is an _irrelative and independ-
ent instrument, delegating an authority to one person to act
for or in behalf of another (b).
An appointment under the English statute of uses is an
instrument adapted for carrying into effect those particuiar
modifications of uses which are denominated powers (b).
The appointment there nperates not as a conveyance, but
-as tbe limitation of the use ; the right to make this desig-
nation is termed the power ; the exercise of tha power is
termed an appointment; the person exercising it is the
appointor, and the person taking under it is the appointee. An
appointment is, therefore, controlled by the pre-existing instru-
ment on wbiob it is founded (b) ; an appointment delegating,
an authority must_ be by deed or writing. It is not necessary
for an attorney to be a party to the deed appointing him.
Infants and femes covert may act as attorneys if it . will not
prejudice or inconvenience the parties acting under it. When
a person has an authority, as an attorney, to do any act he
ought to do it in the name of the person givi~ the authority.
A deputy cannot appoint a deputy unless .he be expressly
authorised so to do by the deed of appointment (c).
The appointment of a receiver, if made by deed, may
-either be by way of power of attorney or by way of demise to
the receiver. Appointments by way of demise have this
convenience, that they enable the receiver to act either before
or after the decease of the party appointing (d).
Form of a Deed of Appointment of a Parcel to
Children to be endorsed on a Deed of Release (e).
Know all men by these presents that I, A. B. the within-
named by force and virtue of the power and authority to me in
,t hat behalf given or reserved in and by the within-written
(a) Gibs. 527. . (c) 1 er: 234 and 235. (e) 1 Cr. 235.
lb) 1 Cr. 231. (d) 1 Cr, 270,
APPOINTMENTS UNDER POWERS . 513
indenture and of all other powers and authorities enabling me
thereunto do, by this my_writing under my band direct, limit
and appoint all and ever the [parcels] in and by the within-
written indenture granted and re-leased or mentioned or
intended so to be with the appurtenances thereof from and
immediately aft.er the decease of the said A. B. and C. D. my
wife to the use ' of all and every the children of me by the said
0. D. my wife born or to be born to be equally divided between
them share and share alike.
Provided always that it shall be lawful for me the said
A. B. at any time or times during -my liie by any deed
or by my last will and testament to revoke, alter, make void or
change all and every or any the uses and est3i.,tes hereby
limited or appointed of or concerning the sai d messuages, .&o.
In witness whereof I the said A. B .. &o.
Appointment by a Widow of one moiety of a
moiety to one child, and of the other moiety of the moiety to her
other cliildren under power in a marriage settlement,
subject to the widow's Life Estate and Power of
Revocation (1'),
To all to whom these presents shall come [appointor
(name of widow)] of, etc.; sends greeting :
Whereas by an inden ture dated the~day of-- a nd
made between [hnsband] since deceased of the first part, the
said [appointor] (by her then name of [maiden name] spinster}
of the second part and [trustees] of the third part (being the
settlement made previously to the marriage then intended and
shortly afterwards solemnized between tho said [husband] and
the said [appointor] all that undivided moiety of the said
[app?intor] in aU those [parcels] was conveyed arid assured
(subject to the estate for life of [tenant for life] in the
same which has long since determined by his death) to
the use after the solemnization of tbe said marriage
and the decease of the said [tenant for - life] of the
(a) 1 Enoy. 629,
65

514 CH. xxv.--MISCELLANEOUS DEEDS AND FORMS.
[trustees] their heirs ~nd .assigns upon trust to nermit the
' said [appointor] to receive the r(!nts and p;ofits thereof for
her life for her separate use and after her decease upon
trust -to permit the said [husband] (in case he should be then
living) to receive the rents and. vrofits thereof during his life
and after the decease oif the said [husband] and [appointor]
then upon trust all and every the child and children of the said
[husband] by the said [appointor] for such estate and estates
and in such part shares and proJlortions manner and form as
the said [api;ointor) should notwithstanding her coverture by
any deed or deeds .revocable or irreyocable or by will ~r coa_icil
appoint and . in default of and subject to such appointment
upon other trusts therein mentioned .
'H'
And whereas the said [husband] died ~ about the
month of---leaving the said [appaintor] his widow and
[names of children/ their only children and no other issue.
And whereas the said' lappointor1 intends to exercise the
nower vested in her by thr~ said indenture by appointing the
~oiety in the same indenture comprised bf the said lands and
hereditaments unto to.' the s~id [children] their heirs and
assigns in the shares or proportions and in the manner
hereinafter mentioned .
. Now these presents witness that the said [appointor] in
exercise of the power vested in her by the said indenture or
settlement and of every other power enabling her in this behalf
hereby directs and appoints that the trustees or trustee for the
time being of the said indenture of settlement shall henceforth
stand possessed of the said moiety ip the said indenture
comprised of the lands and hereditaments described in the said
....
indenture (subject nevertheless and without prejudice to the
life estate' ~r interesp of the said [appointor] therein) upon
trusts following, viz. :-
(a) As to one equal undivided, moiety thereof upon trust
for the said [one daughter] her ~eirs and assigr;s for ever.
(b) And as to the other equal undivided moiety thereof
,upon trust for the said [other children] in equal shares and
..
APPOINTMENTS UNDER POWERS. , 515
vroportions as tenants in common and for their respective heirs
and assigns for ever.
Provided always that it shall be lawful for the .said
[appointor] by any deed or deeds revocable or, irrevoc~ble
-or bv will or codicil absolutely to revoke tbe appomt-
ment; trusts and estates hereinbefore declared and con-
tained' as to the whole or a ny part of the hereditaments
and premises hereby appointed and by the same or any
other deed or deeds or by will or codicil to appoint and
declare such other trusts, estates and limitations as to
the hereditaments a'nd premises to which such revocation
shall extend as the said [appointor] shall think proper any
,thing hereinbefore co ~tained to the contrary notwithstanding.
In witness, &c .
[Signature of appointor].
Appoint7.nent by a Marriea Woman under a; General
Power in Marriage Settlement (a).
To all to w)lom these presents shall come [appointor] wife
-of [husband] of, eta., ~ends greeting:
Whereas &c. [recite marriage settlement giving the power].
And whereas the said marri.age afterwards took ph.tJe and
the said [appointor] bas not had nor is there any likelihood of
her having any cbiid or children by the said [husband].
Now these presents witness that the_ said [appointor] in
pursuance of the power reserved to her in the . s.aid reo~ted
indenture herepy limits and appoint,s that all the said prem1s~s
,shall from and after the decease of the survivor of the sa,1d
[husband] and [~ppointor J respe~tively -and the failure of the
issue of the said [appoinJor] b~ tl;ie sa~d [husband] go an_d
remain _to the use of [name of person to whom property is
appointed] bis heirs and assigns for, ever.
Provided always that it shall be lawful for the ' said
rappointor] at any time or times during her life by any deed
~r deeds with or without power of revocation or by will or
(a) 1 Ency. 641,
 516 CH. xxv.--MISCEL'LANEous DEEDS AND FORMS.
codicil to revoke all or any of the uses hereinbefore limited or-
appointed and in lieu of the uses so revoked to appoint such
other uses as thf'l said [appointor] shaU conformably to the,
power in that behalf contained in the said indenture think
proper anything herein befors contained to . the contrary
notwithstanding.
In witness, &c.
" [Signature of appointor).
VI. -Apportionment.
Apportionment, or setting apart or dividing into set por--
tions for particular purposes, is applicable to several matters in.
law,-as to rents, contracts, conditions, covenants, commons,
annuities, dividends, mortgages and other payments at stated.
periods (a).
As a rule where a contract is entire it cannot be split, e.g. ,
where a party engages to do a specific work for a specific sum ,
he must complete the work before he ca-n recover the sum
agreed upon, but where a shipwright enters into a general
engagement to repair a ship he may on having done a part .
refuse to-proceed until be is paid for the part completed (b) .
Conditions, being entire, are for the most part not
apportionable. So also are covenants for title or cove-
nants .in leases (c).
Annual sums made payable on policies of assurance
are not apportion able (c).
Interest on a mort,?age being due from day to day and not
being periodical it is apportionable (c).
Form of an Apportionment of Annuity
(a clause).
And in case the said grantor or grantee (as the case
may be) should die in the interval between any of the sairl
quarterly days of payment then a proportionate part of the
said annuity for the time which at the decease of the said,
gr antor shall have elapsed of the quarterly payment growing
(a) 1 Cr, ~85. (b) 1 Cr. 1186, (c) 1 Cr, 1187,
APPRENTICESIUP. 517
d ue, shall be paid within 20 days after the decease of the
-s aid--.
VII.-Apprenticeship.
The word apprentice, from apprendere to learn, signifies a
ilearner of a trade; therefore, the covenant by the master to
,teach the other a trade, and the latter was to do nothing
ulterior to the employment in trade, was held by Lord Ellen-
borougb to be a contract apprendere (a).
An apprenticeship being a personal trust is not assignable
without the consent of the apprentice (b).
Articles of apprenticeship are usually, though not
n ecessarily effected by deed (c).
The father or other guardian of an infant apprentice
-is also usually a party and covenants that the apprentice will
perform bis covenants but he is not a necessary party (d).
An infant is bound by articles of apprenticeship, if the
contract is taking it as a whole, reasonable and beneficial
,to him, and he may be sued on the covenants therein (e).
In tbe absence of a special agreement, tbe master cannot
dismiss an apprentice for misconduct; but if the covenant
to teach is limited by# a proviso for good conduct of the
apprentice, or if the apprentice refuses to be taught or is
an habitual thief or runs away the master is discharged (f).
If it is contemplated that the master shall have the right
of employing the apprentice elsewhere than in the usual
place of business of the master, this should be expro::1sly
provided for (g).
(a) l Cr. 292,
(b) Hob. 134 ; Peak's case, l 8!\lk, 66; 1 Cr. 295.
(c) 2 Ency. 26,
(d) Rex. v. Arundel, (1816) _5 M. and S. 257.
(e) Walter v, Everard, (1891) 2 Q, B, 369,
(fl Wise v. Wilson, (1844) 1 Car, and K, 662 ; Westiok v. Theador,
,( )875) L. R. 10 Q, B. 224, &o.; 2 Ency. 27 . .
(g) 2 Eacy. 27,
518 CH. xxv.-MISCELLANEOUS DEEDS AND FORMS.
Articles of Clerkship:
(Simple Form).
Arhictes of agreement made and entered into between
A. (the articled clerk) of the first part, B. (a proctor
S. O. or an advocate) of the second part and C. (the surety) of
the third part witnesseth,
The said A. of his own free-will and accord doth
hereby put place and bind himself under the said B. as.
his articled clerk and apprentice for' a term of 3 years
commencing from the date hereof and doth hereby promise to-
be faithful to and to obey all the reasonable and lawfut
commands of the said B. during the said term of 3 years.
The said B. for and in consideration of the sum of,
Rs.-agreed to be paid to him by the said A. in yearly
payments of Rs.-at the end of each and every year commen-
cing from the date hereof, the first of such yearly payment to -
be made on the-day of--and of the services to be rendered,
to him by the said A. doth hereby en gage and bind himself to-
instruct the said A. in the profession of notary public, so that
he the said A. may be at the end of the said term of 3:
years fit and qualified to be admitted and enrolled a notar y
public.
The said C. doth hereby engage and bia d himself as-
surety for tb e said A. and for the duo payment by him of the.
sum of Rs .--- .
In witness whereof we the sai,1 A., B. an d 0. , &c.
Forrn of Articles of Apprenticeship by a Notarial Clerk.
Stamp Rs.--.
Memorandum of agreement entered into between,
Mr. T. C. O. of J affna, Proctor of the Hon'ble the S . C. of the
Island of Ceylon and Notary Public of the one part and T . S ..
of- -of the ot,her part witnesseth : -
That the said T. S. of his own free-will doth by
these presents put place and bind himself as a Notarial Clerk:
to the said T. C. 0. to serve him from the day of the date,
APPRENTICESHIP. 519
hereof for and during and until the full end and term or three
years from hence next ensuing and fully to be complete and
ended.
That the said T. S. shall and will well faithfully and
diligently serve the said T. C. C. as his clerk in the profession
of a Notary Public from the day of the date hereof for and
during the said term of three years and that he the said T. S .
shall not at any time during the said term of three years spoil ,
destroy, waste, embezzle, spend or make away with any of the
books, papers, writings, moneys, stamps or other property
of the said T. C. 0. or of any of bis clients or employers
which shall be deposited or entrusted to bis custody or
profession.
That the said T. S. doth hereby promise and agree to pay
to the said T. C. C. the sum of Rs.--as bis fee whereof a sum
of Rs.--to be paid on the--day of--and the balance
sum of Rs. - - to be paid by two instalments of Rs. - - on
the--day of--and the 3rd instalment at the expiration
of the said term of three years.
That in consideration whereof and of the s11.id sum of
Rs.--he the said T. 0. 0. doth hereby covenant, promise
and agree with and to the said T. S. that be the said T. 0. C.
shall and will accept and take the said T. S. as his clerk during
the said term of three years and shall and will by the best
ways a nd means and to the ut most of bis skill and knowledge
teach a nd ins truc t or ca'..lse to bil taught and instructed the
said T. S. in the practice and profession of a Notary Public
and shall at the expira,tion of the said term certify the time
of service of the said T. S. with Lim the said T. C. 0. and use
his best endeavours at the request costs and charges of the
said T. S. to cause and procure him tbe said T. S . to -be
admitte.i and enrolled a Notary Public provided he the said
T. S. shall have well faitl.tfully and diligently served the said
intended clerkship.
In witness whereof.
520 CH, XXV.-MISCELLANEOUS DEEDS AND F'ORMS,
General .form of apprenticeship where an infant binds himself
with consent of his guardian (a).
This indenture made the--day of--between [appren-
tice] of--an infant of the age of--years or thereabouts
(hereinafter called the appre.ntice) for the first part, [guardian]
of--duly appointed guardian [or natural guardian] of the
said apprentice (hereinafter called the guardian) of the SE)cond
part and [master] carrying on business as--at--(herein-
after called the master) of the third part.
Witnesseth as follows, that is to s~y : -
1. The apprentice of hi;; own free-will and with the
consent of the guardian puts himself apprentice to the master
in his aaid business of--carried on by him at--aforesaid
to learn the art of--for the term of--years from the date
-0f these presents.
2. The apprentice agrees with the master as follows : -
(a) That he will well and faithfully serve the master
as his apprentice and keep his secrets and obey
his lawful cornmanos ;
(b) That he will do no harm to the master nor willingly
suffer the same to be done by others but will
forthwibh give waming thereof to the master ;
{c) Tbat he will not .waste or spoil the goods of the
master nor without the master's consent lend
or di spose of them to any person ;
(d) That he will not during the said term play at cards,
dice or other unlawful games nor ba.unt taverns
nor absent himself from the master's business ;
(e) That he will not marry during the said term without
the master's consent;
(f) T.b,at he will in all things behave himself towards
the master as a good and faith apprentice ought
(a) ~ Enoy, 33.
ARBITRATION. 521
3. The master agrees with the apvrentice as follows : -
(a) That he will during the said term to the best of
his skill and ability teach or cause to be taught
to the apprentice the art of--;
. (b) That he will during the said term find the apprentice
good lodgfngs, clothes, medicines, and medical and
surgical assistance and all other necessaries ;
(c) That he will pay as wages to the apprenLice during
the first year of the said term the sum of--every
month and during the second year of the said term
the sum of--every month and during the third
year and every subsequent year of the said term
the sum of--a month provided that the
apprentice shall have observed the covenants
hereinbefore contained and on his part to be
performed.
In witness, &c.
(Signature of all the parties).
VIII.-Arbitration.
Arbitration is the hearing and determination of a cause
between parties in controversy, by a person or persons chosen
by the par~ies. This may be dime by one person ; but it is
usual to choose two or three ; or for each party to choo?.e one,
and these to name a third, who is called the umpire. Their
deterlI!ination is call.ad an award (a).
An agreement to refer any rriatter in dispute, commonly
called a submission, may be by the act of parbies themselves
or by the interposition of a court of law (b).
An arbitration exists when differences have arisen
between parties to the agreement, and the person who has to
decide them has to exercise judicial functions in arriving at
his determination (c).
(a) Webs.
(b) l Cr. 308.
(c) Re Hammond ar:d Watertoa, (1890) 62 L, T. SGS; 2 Eooy, 90
66
 ,
522 CH. XXV.-MISCELLANEOUS DEEDS AND FORMS.
Persons who have merely to make a valuation ara not:
arbHrators; nor is a third person who is appointed to make a
valuation when two others fail, an umpire, but valuer.
Neither is any other expert who has simply to decide a matter-
by the application of his skill in the particular matter, an
arbitrator. In an agreement for valuation the parties can,.
however, provide that it shall be deemed to be a submiasion
to arbitration (a).
The plaintiff and defendant were Mohamn:edan traders.
By deed No. 8465 of 21st May, 1914, they agreed to refer
certain matters of account in dispute to an arbitrator. The
deed provided that in the event of either party refusing to
abide by the award he should pay Rs. 10,000, to the party
accepting it. After hearing the parties the arbitrator made,
his award finding that the plaintiff was entitled to Rs. 13,500,
from the defendant. The award was not filed in Court. In
an action brought by the plaintiff to enforce the award the-
District Judge held that the plaintiff was entitled to
Rs. 10,000 damages.
Held, that an action lay to enforce the award in spite of
the provisions of the Civil Procedure Code, Secs. 696 and 697.
That there was no reason why the plaintiff should not get;
judgment for the full sum awarded, namely, Rs. 13,500 (b) .
The requisites of an award are (c) :-
(1) that it must be consistent with the submission
(2) that it must be certain
(3) that it must be mutually satisfactory, i.e., it must.
give satisfaction to one and discharge the otber ;
binding on both parties
(4) that it must be final
(5) that it must be of a thing possible and lawful
{a) 2 Ency. 90.
(b) Thaha v. Alim Bahibu, (1916) 19 N . L. R. 207; 2 C. W . R, 269,
{c) 1 Cr, 331.
ARBITRA'flON. 523
Form of an agreement to refer dispute to Arbitration.
Stamp No.--
ArticleR of agreement, &c., made this--day of--
between A. B. of---of the one part and C. D. of--of the,
other part.
Whereas disoutes have arisen between the said parties.
hereto touching the several rights, titles, claims, and demands
as well, of, in and to a certain messuage or tenement.
Now therefore for tlie final ending of all such questions -
and disputes it is hereby agreed by and between the parties
that the rights, titles, claims and demands of the said A. B.
of, in, to and out of the same premises or any part thereof
shall be and are hereby referred to the award order and final:
determination of E. F. and G. H. (arbitrators). And the award
of the said E. F. and G. H. if made in writing to be delivered,
on or before the--day of---now next shall be binding,
and conclusive on all parties, and for the better enforcing the
performance and observance of suoh awa1d the reference
shall be made a rule of Court at the instance of either of the-
said parties hereto without notice to the other of t hem.
And further that in case the said arbitrators shall not.
agree upon the award or determination that it shall be lawful
for the said arbitrators and they are hereby expressly
empowered by writing under their respective hands to appoint
another indifferent person to be umpire in or to concur and
join with them in considering and determining all or any of
the uremises hereby referred to them. And further that all
cost; a nd charges attending the said . arbitration shall be in.
the discretion of the said arbitrators and shall be paid and
satisfied pursuant to their award. That they the said parties.
hereto respectively and their respective executors and,
administrators shall and will well and truly keep, obser?e and
perform the award, order and final arbitrament of the saict
arbitrators or of the said umpire respecting all the matters so-
referred to them as aforesaid. And that neither of the said
parties shall bring or prosecute any action or suit at law
..524 OH. XXV.-MISOELLANEOUS DEEDS AND FORMS.
.against the, other of them or against the. said arbHrators or the
,said umpire concerning the matters referred.
In witness whereof we the said A. B. and C. D., &c.
IX.-Arrangements and Oompromises.
The creditors may enter into any arrangements with a
debtor which may best suit the convenience of the parties.
The mode of effecting such an arrangement must depend upon
the circumstances of the case. When a debtor wishes only
for time a simple agreement to that effect may be sufficient,
but the more usual mode in the case is to e~ecute a deed
called a Deed of Inspection, by which a debtor is enabled to
-carry on his business for the benefit of his creditors under the
inspection of truatees.
Another mode of effecting an arrangement is by the
creditors agreeing to accept a composition, or a part of their
respective debts, in satisfaction of the whole ; and the
instrument by which this is effected is called a Deed of
Composition. In both these deeds it is usual to insert a
,covenant, called a Letter of License, whereby .the creditors
agree to give the debtor, for a certain time, liberty to pursue
his affairs without the danger of being arrested or sued.
Sometimes tbis covenant is given by a separate instrument.
An arrangement or compromise may be shortly defined as a
settlement by agreement between the parbies of any disputed
or doubtful right (a).
The main objects of any voluntary arrangement with
creditors whether it takes the form of assii:inment, composition,
91' inspectors hip, must al ways be, in the first place, to avoid
ad ministration in bankruptcy, and subject to that to secure
for all the debtor's creditors equal benefits out of the debtor's
.property (b).
A deed of assignment by a debtor to a trustee for the
henefib of his creditors, in the first instance, operates . merely
as the creation of a revocable trust. The trustee, if not
(a)' 2 Eaoy. 229. (b) 2 Eaoy, 216.
ARRANGEMENTS AND OOMPROMISES . 525~
himself a creditor, is merely a mandatory, and before the deed
is communicated to the creditors it can be revoked by the
debtor (a). The execution of such a deed s hall not be deemed
an act of insolvency, unlei,s a petition for sequestration of the
estate of such person be filed within three months from the
execution thereof (b).
In tbe case of assignments, preferential claims should
always be provided for before the claims of ordinary creditors (c).
These preferential claims include the following, viz.:-
(1) Taxes due hy the Insolvent up to the end of the
current quarter (d).
(2) Moneys held by him or entrusted to him when holding
an office in' tbe Savings Bank, L::>an Board or in any friendly
society (e).
(3) Three months' wages or salaries of clerks, servants,
superi ntendent or labourer and not exceeding Rs. 300 (j).
(4) Wbole or pa,rh of the premiums paid by an appren-
tice (g).
Compositions and schemes of arrangement may be made
with creditors after adjudication of insolvency (h).
The distinction between a composition and a scheme was
hold to be where the debtor keeps his assets and undertakes
to pay over to the creditors a certain sum, it is a composition ;
where the debtor makes over his assets to be administered by
a trustee it is a scheme (i).
Family arrangements are frequently come to with regard
to wills or settlements of doubtful construction, and in cases
(a) 2 Eacy. 216.
(b) Ord. 7 of 1853, Seo. 8 .
(c) 2 Ency. 221,
{d) Ord, 7 of 1853, Seo, 95,
(e) Ibid, Seo. 96,
(/) Ibid, Beo, 97.
(g) Ibi4. Bee. 98,
(h) 2 EnQy, 226; Ord, 7 of 1853, Bees. 134 and HO,
(i) 2 Ency, 226,
 -526 CH, XXV.-MISCELLANEOUS DEEDS AND FORMS.
where all tbe beneficiaries under any instrument concur
in wishing to alter the trusts declared or the interests given
thereby (a,).
Form of a Deed of Composition.
This indenture made this--day of--between A. B.
of--(debtor) of tbe first part, C. D. of--(surety) of tbe
-second part, and E. F. and G. H. of--(creditors) being credi-
tors of the said debtor of the third part.
. .
Whereas, &c. (recite the proposed arrangement, dfo.)
Now this indenture witne3seth that in pursuance of tbe
said agreement on the part of the said A. B. and C. D. and in
-consideration of tbe covenants and agreements on the part of
the said E. F. and G. H. of the third part hereinafter con-
tained each of them the said A. B. and C. D. doth hereby for
himself, his, &c., covenant with the said E. F. and G. H. and
each of them their and each of their heirs, &c., that they the
said A. B. and C. D. or one of them, . their or one of their
heirs, executors will pay unto the said E. F. and G. H., their
executors, &c., on or before the 5th day of June 1910 the
-sum of 25 cents. in the rupee upon the amount of their
respective debts set opposite to their respective names at the
foot of these presents and without any deduction or abate-
ment whatsoever.
And this indenture (b) also witnesseth that in considera-
tion of the covenants and. agreements bereinbefore respect-
ively made and entered into by the said A. B. and
C. D. for the discharge of the said several debts in
manner hereinbefore provided for, they the said E. F.
and G, H. by these presents do and each of them doth_
give and grant unto him the said A. B. free and full
license liberty' and authority to attend, follow, carry on,
-conduct and manage his said trade and business and to
transact and to attend to an and every his affairs, matters,
things at any place or places at his free-will and pleai:rure
,and without any let, suit, action, arrest, attachment or
(a) 2 Ency. 229, (b) This clause is called the Letter of License.
')
ARRANGEMENTS AND COMPROMISES, 527
-other impediment or molestation to be offered or done
.unto bim, bis goods, chattels, moneys or other effects
whatsoever by tbe said E. F. and G. H. or any of them or their
.respective heirs, &c., partners or assigns or by them or their
-means or procurement for and during the space of 12 months
next after the day of the date hereof if the said A. B. should
,so long live.
And further that if the said A. B. and C. D., their heirs
-&o., shall duly observe, keep and perform the several covenant~
and ~greements hereinbafore or their pari;s respectively
contamed then they the said E . F. and G. H . will at the cost
,a~d charges of the said A. B., hia heirs, &o., execute and give to
h im or them a general release and discharge for the said
several respective debts due from the said A. B. and deliver up
,all bonds, bills, notes, and other securities fol' tbe same
'Whether given by him or an'y surety or sureties for him.
And moreover that if the said E. F. and G. H. or any of
-them or any of their heirs , &c., shall act contrary to the true
intent and meaning of these presents then this present letter of
license shall and may be pleaded in bar to such debt or debts
and sums of money and to any prosecution, suit or other
action that shall be brought against the said A. B., bis heirs,
,&o., on account thereof as effectually as if the said A. B. had a
general release under the hands a.nd seals of the said E. F.
and G. H. respectively for that purpose.
In witness whereof we the said A. B., C. D., E. F, and
G. H., &c.
Form of an Agreement by creditors to accept a composition
payable by instalments to be secztred by Promissory Notes ani
to execute a Release (a).
We the undersigned being respectively creditors of A. B.
-of--to the amount set opposite our respective names in the
schedule at the foot hereof do in consideration of the said
A. B. having procured the making of the promissory notes
(a) Kelly, 596.

528 CH. XXV.-MISCELLANEOUS DEEDS AND FORMS.
hereinafter mentioned hereby severally agree with the saidi
A. B. to accept in full discharge of our respective debtS-
against him a composition of--shillings in the pound payable
as follows : The first instalment of--in the pound in--
calendar months from the date hereof, the second instalment
of--in the pound in--calendar months from the date hereof
and the third and final instalment of--in the pound in--
calendat months from the date hereof the said ~evel'al instal
ments to be secured by the joint and, several promissory-
notes of W. W. of--and G. H. oi--for the respective
amounts of the said instalments.
And on payment of the said composition by the instalments
and in manner aforesaid we severally agree to execute to the,
said A. B., at his request and expens'e a complete release and
discharge from our said debts respectively and from aU
claims, demands and rem ed ies in respect thereof. And in case
the said composition shall be pa,id before the execution by us
respectively of such release then from and immediately after
full payment of tbe sa id composition in manner aforesaid and
u ntil such release shall be executed this agreement shall
operate and be a discharge to t he said A. B. from our said
debts respectively and from all claims and demands in respect
th ereof and from all ou r rights and remedies respectively for
recovering the same in" full and may be pleaded and used as
such and in bar of any action hereafter to be instituted by ariy
of us against the said A. B. in respect of our said several debts.
But if default sh1dl be made in the payment of tho said
instalments or either of them or if the said A. B. shall be
adjudicated bankrupt before the payment of the said composi-
tion we shall be at liberty to enforce pay~ent of the _balance
thereoi due to us or to claim remUtance to our respective original'.
rights.
In witness whereof, &c.
THE SCHEDULE.
[Give names and addresse'3 of creditors, short particulars.
of what the debts are for, the amounts thereof, and spaces for-
signatures.]
ARRANGEMENTS AND COMPROMISES. 529
Form of a Deed of Assignment to a Trustee for the Benefi,t of
Oreditors with a Release for Debt (a). (Short Form).
This indenture made the--day of-- 19--be-
tween A. B. of etc. [debtor] (hereinafter called the debtor)
-of the first part, C. D. of etc. [trustee] (hereinafter
-called the trustee) of the second part and the creditors of the
-debtor whose names and the particulats of whose debts are set
out in the schedule hereto (hereinafter called the creditors) of
the third part.
Whereas the debtor is indebted to creditors in various
sums and being unable to meet his engagements he has
., arranged to assign his estate and effects unto the trustee for
the benefit of the creditors on their releasing him from his
debts in manner hereinafter appearing.
Now this indenture witnessetb tbat in pursuance of the
said arrangement and in consideration of the premises, the
-debtor as beneficial owner hereby assigns unto the trustee all
the estate and effect~ of him the debtor (save and except all
necessary bedding and wearing apparel of himself and bis
.family,
To hold the same unto the _trustee, upon trust that the
trustee shall as soon as may be sell, collect, call in and convert
the same into money in such manner as he shall deem best.
And upon trust out of the moneys to be received therefrom to
pay all proper costs and expenses attending the investigation
-of the affairs of the debtor prior herej;o wit h a view to these
presents and of the preparation and execution of the deed also
tbe costs charged and expenses attending or relating to the
. carrying into effect of the trus ts hereby created then to pay all
claims which are by la w payable in full in. priority to other debts.
And-in the next place upon trust thereout so far as the same
may extend to pay and satisfy rateably and without preference
to and amongst the creditors of the debtor the several debts
or sums of money due to them respectively and to pay the
(a) Kelly, 593,
67
 530 CH, XXV.-MIECELLANEOUS DEEDS AND FORMS.
surplus (if any} to the debtor. And the debtor hereby appoints:
the trustee his true and lawful attorney in his name ands
stead to do any act including the execution of any deed
and signing of any document which the trustee may think
necessary for the due performance of the trusts hereof.
And this indenture witnesseth that in further pursuance of
the said a_rrangement and in consideration of the premises.
the_creditors, sabject to tha proviso next hereinafter contained,
do and each of them doth hereby acquit, release and for ever
discharge the debtor of and from all and all manner of debt
and debts, sum and sums of rr:onay, bills, bonds, notes, accounts,.
reckonings, judgments, executions, actions, suits, claims and
demands whatsoever which they the said releasing parties or
any or either of them their or any or either of their partner or
partners now have or hereafter may have against the debtor
for or in respect of any debt, transaction, matter or thing up to -
the day of the date hereof.
Provided always that , _ any cr!:)ditor or creditors who-
hath or have any specific lien or security or securities
for his or their demand or demands or any part thereof or to
the payment whereof any person or persons is or are liable as
a surety or sureties for the debtor may execute these presents
without prejudice to the same security or to the claim against
any surety, convert the same security or securities into money
' ii or same to the satisfaction of the trustee or without such-
consent may exercise any power of sale or other powms now
vested in him or them respectively and receive a dividend
rateably with the other creditors on so much of the same
demand or demands as shall not be satisfied out of the produce,
of the same security or securities in the same manner as if a.
receiving order had been made against the debtor.
And it is hereby declared that the trustee shall be entitled,
to and shall be paid such remuneration for his services as shall
be determined by the creditors or the majority of them.
assembled or voting at any creditors' meeting properly called.
In witness, &c.
CONVEYANCES IN A TESTAMENTARY CASE. 531
THE SCHEDULE.
[Give names and addresses of creditors, short particulars
of what the debts are for, the amounts thereof, and spaces for
execution by creditors.]
X.-Conveyances in a Testame.atary Case.
An administrator selling his intestate's estate is not
bound to covenant for title, and when he has conveyed
without an express covenant for title, none is implied in
law (a).
Where an executor or administrator transfers property
belonging to the deceased's estate to a bona fide purchaser,
such transfer cannot be invalidated on the ground that the
probate or letters was not " duly stamped." The penal
provision in Sec, 547 of the Civil Procedure Code contemplates
the transfer of a deceased's assets without the formality of
taking out 'probate or letters at all, and not mere deficiency in
stamp duty (b).
In Ceylon land passes to the executor as personal
property passes to the executor in England (ct
An executor may sell real property without leave of
Court and is not bound to deposit, in Court the proceeds of
sale. An administrator takes his authority from Court, but
an executor from the testator (d). An administrator requires
the authority of Court to sell lands but be may .sell moveables
without anybody's leave (e}.
A property burdened with a fidei commissum cannot be
alienated bv the executor except for the payment of the
testator's debts and legacies and unless there_ is no other
property available for the purpose (f).
(a) Fraooisoo v. Peresenty, (1878) 2 S.O.C, l.
(b) Perera v. Krickenbeck, (1907) 10 N. L. R. 119.
(c) Mutu Menika v. Anderson, (1891) 1 C, L. R. 101.
(d) D. O. Kandy Testy., 318; Aust, 233,
(e) Vide the proviso in the Letters granted to the Administrator,
Ka.rusev, Pathumma, (1901) 5 N. L. R. 16ll; 1 Br. 414 .
(f) Cassim v. Dingihamy, (1906) 9 N. L. R. 257.
532, CH, XXV.-MISCELLANEOUS bEEDS AND FO:i;tMS.
An executor or administrator will not be allowed to
purchase any part of the deceased's estate unless all parties
interested concur in the transaction (a). Purchase by a surety
to an administra~or is not altogether void, but it is voidable if
it could be proved that the sale was to the prejudice of the
estate (b).
Before a person purchases immoveable property from an
administrator, he should see that the vendor bad special
authority from Court and that all formalities connected with
the sale are properly carried out (c). He is not bound to
enquire as to the regularity of the steps by which probate or
letters were obtained (d).
One of several administrators can sell property of the
estate (e).
W here tbe administrator sells before obtaining authority
from Court, the authority when obtained enures to the benefit
of the purchaser (e).
Form of a Conveyance to an Heir by an Administrator.
To all to .whom the8e presants shall come I, A. B.
of--send greetings :--
Whereas E. F. of--died at--within the jurisdiction
of tbe District Court of--on or about the 15th day of May
1906 without ha.vin g made a will and leaving behind property
in--,
And whereas the said A. B . of--was nominated consti-
t u ted and appoi nted by the District Court of--in Testa-
menta ry Case No.- -nf the said Court, administrator of the
estate of the said E . F ., for the purpose of administering the
.property left behi nd by him the said deceased E. F.,
And whereas the said A. B. has by virtue of the said
let~ers of administration administered the said estate and has
to file a fioal accou nt of his said administration,
(a) Staples v, De S!irnm, Creasy 34,
{b) Bev. and Sieb , (1875) 48.
(c) Hendrick Appu v. Biriwardeoe, (1902i 5 N. L. R, 247; 2 Br. 387,
(d) Perera v, Kriokenbeck, (1907) l A. C. R, 60,
.(e) Wijesekara v . Bastian, (1900) Matara cases 130. Browne, J. doubts,
CONVEYANCES IN A TESTAMENTARY CASE. 533
And whereas before filing such final account it has
become necessary that the said administrator should transfer
and convey by a deed of conveyance the immoveable property
left behind by the said intestate to C. D. the sole heir and
minor son of the said late E. F.,
And whereas the immoveable property left behind by the
intestate consisted of 6 pieces of lands, 2 of which have been
with the sanction of the Court sold by the said administrator
for payment of debts, funeral and medical expenses and
whereas there are oaly 4 pieces of lands to be conveyed, all
situited at--and more fully described herein below,
Now know all men by these presents that I, A. B. residing
at--in my capacity as administrator of the estate of the
late E. F. having been appointed such adminis trator by the
District Court of--in Testamentary Case No.--of the said
Court for and in consideration of the premises aforesaid have
transferred, conveyed, made over and assured as I do by these
presents transfer, convey, make over and assure unto the said
C. D. of.---his heirs, executors, administrators and assigns
the following lands to wit :--
1. A piece of land situated at &c.
[description of the four parcels] .
To have and to hold the said four pieces of lands and
premises and all and every of their appurtenR.nces which are
of the aggregate value of Rs.--unto him the said C. D .
his heir3, executors, administrators anJ agsigns for ever.
. In witness whereof I the said A. B. in my capacity as
administrator of the estate oi the said late E. F. have here-
unto and to two others of the same tenor and date as these
presents set my hand at--this tenth day of December One
thousand nine hundred and seven.
Signed in the l A. B. (Administrator).
presence of us. ) L.K.,
Notary Public.
E. F. } Witnesses.
G.H.
[For attestation, see p. 39 above] .
 534 CH. XXV.-MISCELLANEOUS DEEDS AN'D FORMS. CROWN GRANT . . 535
Executor_' s Conveyance. To have and to hold the said house and premises and
_--itll and every of its appurtenance unto her the said B. A. K.,
To all to whom, &o.
lier heirs, executors, admiojstrators and assigns for ever.
Whereas M. T., widow of S. A. of Jaffna, died at Jaffna
in September 1903 leaving a Last Will and Testament dated In witness whereof I the said S. C. as executor of the
- the--day of--wbereby S. 0. was appointed executor and Will of the late M. T., widow of S. A., have set my hand to
this and to two others of the same tenor and date as these -
leaving also property within the juri~diction of the Di strict
presents at Jaffn a tbis--day of--one thousand nine
Court of-- .
hundred and--in the presence of--the subscribing wit-
And whereas the said S. 0. duly proved the said L ast msses hereto called and r~quired .
I
Will and Testament in Testamentar y Case No.--of the
I
District Court of--and obtained Probate of the said Will in XI.-Crown Grant.
his favour under the hand and seal of the District Judge of-- Parm.
f
I
authorizing a nd empowering him (the said S . C.) to admin ister Waste Land. -1.
the estate of the said M. T.
George The Fifth, by the Grace of God, of the United
And wb~reas the said S. C. has by virtue of the said Kingdom of Great Britain and Ireland and of the British
Probate administered the said estate and bas to file a final Dominions beyond the Seas, King, Defender of 'the Faith, &c.
account of bis administration.
(Sd.) W. H. Manning.
And whereas before filing such final account it is
necessary that the said executor should convey to the Legatee / Seal , I certify that the above sig-
appointed by the said Will, viz., B. A. K. the immoveable nature, attached by means of a
of the
property of the said M. T . .in terms of the provisions contained Colony, stamp under the provisions of
( Ord. No. 11 of 1884' and No. 30
in the said Will.
of 1884, has been so attached
And whereas the immoveable property to be conveyed is in my presence.
a house and premises situated at-- .
Now know all men by these presents that I, S. 0. of
(Signature) .

J affna in my capacity -as the executoi; of the Last Will of the
late M. T., widow of S. A. of--for and in consideration of the
premises aforesaid have transferred, conveyed, made over and
assured as I do by these presents transfer, convey, make over
- Private Secretary to the

To All To Whom These Presents Shall Come,

Governor.

and assure unto B. A. K. now residing at--her heirs, execu- Greeting.

tors, administrators and assigns.
All that house and premises situated at &p.
The said land, worth Rupees five thousand (Rs. 5,000)
was held and possessed by the said late M. T., widow of S. A.,
by virtue of a transfer as per deed dated--and attested by
--Notary Public of--under No.--.
Know Ye that for and in consideration of the sum of
, :Eighl hundred and Seventy-eight Rupees and Twenty cents
ms. 378-20) lawful money of Ceylon, to Us -paid by S. K. of
.J affna hereinafter called the Gran.t ee (the receipt whereof is.
hereby acknowledged), We, of Our special grace, certain know-
ledge, and mere motion, have granted and assigned, and by

)
 536 CH, XXV,-MISCELLANEOUS bEEDS AND FORMS.
these Presents do grant and assign, unto the said Grantee, his,
Heirs and Assigns the following premises, to wit: -Aii-
allotment of land called " Muttirankadu," in Irinamadm
Village, Karachchi Division, Jaffna District, Northam Province ..
Bounde:i as follows :-North by Lot 187~ in P. P. 4242,
East by Lot 1880 in P. P. 4242, South by fot 1884 in P. P.
4242, West by Lot 1882 in P. P. 4242.
Containing in extent Twenty acres ~nd Three perches .
(20 A. 0 R. 3 P.) according to the annexed survey and
description thereof authenticated by W. C. S. Ingles, Esquire,
Surveyor-General, bearing date th.a 28th April 1919,
No. 333033.
To have and to hold the said premises, with their and
every of their appurtenances, unto the said Grantee, his Heirs
and Assigns, subject to existing rights of way, if any, in free
and common soocage for ever, he and they yielding and pay:ng-
yearly and every year to Our Governor of Our Island of
Ceylon, on behalf of Us, Our Heirs and Sucoessors, a quit-rent
of a Peppercorn on the First day of January .in each y9ar,
or so soon thereafter as the same shall be demanded, and
subject to the several Provisos and Reservations herein!l.fter
declared and contained concerning the same ; that ia to
say, provided always that the said frrnds shall be liable to such
Regulations as now exist, and as may hereafter be emoted,
relative to landed property in general; and that it shall
at all times be lawful for Us, Our Heirs and Successors, or for
any person or per sons acting in that behalf by Oqr or
their authority, to resume and enter upon possessicn of'
any par~ of the said lands which it may at any ti~e by
Us, Our Heirs and Successors be deemed necessary to resume-
for making and constructing such Roads and Bridgas as
may be neciessary for public purposes, or for the benefit qf the -
proprietors of other lands alrea_dy purchased or to be hereafter
purcihased from Us, Our Heirs and Successors, in and,
upon the said Lands hereby granted and assigned I and.
provided also that it shall at all times be lawful for Us ,.
Our Heirs and Successors, or for any person or persons aoting.
(
!
CROWN GRANT. 53T
in that behalf by Our or their authority, to out, search .
dig for, and take away all suoh indigenous Timber, Stones, .
Ca.book and other Materials, the produce of the said Lands, as -
mav be neoessary or requisite fo.r making and keeping the said
Ro~ds and Bridges in repair, or for any other public works-
,~- '
whatsoever. ,_
And we do hereby also save and reserve to Us, Our
Heirs and Suooessors, all right and title to the Mines, Minerals,
Plumbago, Gold, Silver, Copper, Iron, Tin, Lead, and other
Metals and the Ores there~. and to all Mineral Oil, Coal,
I
Shale, or other deposit or formation from which Mineral
Oil may be obtained ( whioh said Mineral Oil, Coal, Shale,
or other deposit or formation as aforesaid shall hereinafter,
in these Presents, be deemed to be included and comprised
in the term " Minerals ") in or upon the said Lands, together
with full power of entry for tbe same respeotively, and
all other powers and privileges necessary or requisite for
the building o~ constructing such Roads, or Bridges as .
aforesaid ; or for the cutting, procuring, and oarrying away the
Timber, Stone, Cabook, and other Materials for the purposes
aforesaid; or for the disoovering or working such Mines ;.
or proouring, smelting, and oarrying away the said Plumbago,
Gold, Silver, Copper, Iron, Tin, Load, and othe..r Metals,.
or the Ores thereof, or any Minerals in or upon the said lands,
And we hereby deolare that it shall not be lawful for the
said Grantee, his Heirs or Assigns, or any person claiming by,
through, under, or in trust for him, them, or any of them,.
to prospect for, dig for, mine, or recover ,.."any of the above-
mentioned Minerals or Metals that may be discovered on
the said land and premises under this Grant or under any
subsequent transfer, lease, encumbrance, or conveyanoe of the -
Land and Premises hereby grante!l and assigned as aforesaid,
save only under Grant or License expressly obtained from Us,
Our Heirs and Successors, for the purpose of prospecting for,
digging for, or mining for any suoh Minerals or Metals; and then
only subjeot to the royalties, terms, and conditions in suoh..
Mining License or Grant contained.
68
538 CH. XXV.-MISCELLANEOUS DEEDS AND FORMS.
And we do hereby further declare that should the
said Grantee, his Heirs and Assigns, or any person, claiming
-by , through, under, or in trust for him, them, or a.ny of them,
-prospect for, dig for, mine or recover any such Minerals
or Metals found on, in, or under the said La. nd and Premises
without having obtained from Us, Our Heirs, or Successors, a
Grant or License in that behalf as aforesaid, then the
'Grant hereby created shall be forth with rendered void and
inoperative, and the Land hereby granted and assigned,
together with all buildings and improvements erected or
effected thereon, shall revert to and be forthwith vested in Us,
Our Heirs or Successors, without the said Grantee, his Heirs
and Assigns, or any person claiming by, through, under or in
trust for him, or them, or any of them, being entitled to
any compensation whatsoe er in respect of such buildings or
improvements.
And provided further, that the said description and
.a.dmeasurement herein contained of the said premises herein-
before mentioned to be granted and assigns shall be hereby
taken to be correct; and in the event of any error or mistake
hereafter appearing therein, that the said Grantee, his Heirs or
Assigns, shall not be entitied to claim any compensation or
abatement of the price paid for the same by reason thereof.
In Testimony Whereof we have caused these Our Letters
to be made Patent, and the Public Seal of Our said Island to
be hereunto affixed, at N uwara Elia, in the saiff1sland, this
'Twelfth day of May, in the year of our Lord One thousand
nine hundred and nineteen.
By His Excellency's command,
(Sd.) A. S. PAGDEN,
Acting Colonial Secretary.
XII.-Declarations.
A declaration is any form or instrument by which the
:intentions of parties are expressly declared. H may be made
,before a justice of the peace or it may be by deed.
DECLARATIONS. 539
Forni.
I, A. B. of--J.O hereby solem nly, sincerely and . truly
declare and affirm that a certain deed of transfer dated the--
day of--granted by C. D. of--in favour of--and attest-
ed Ly N. C., Notary Public u nder No--whereby the
. follo~ing landed property was conveyed, namely [description
of parcels], has been actually lost or mislaid, and cannot be
found, although diligent search has been m ade.
I also declare th at t he said deed of t ransfer has not been
,pledged, and is not detained by any one as security for . debt
-or otherwise, and I am unable to s1;ate the circumstances
under which the said deed was los t or mislaid .
Declared at--thfa--day of--.
Declaration re a Common Wall by the Ou;ners of the
adjoining House.
To all to whom these presents shall come we, A. T. V .
-and wife M. S. both of--, send greetings :
Whereas the second namen of us is the owner and we arn
seised and possessed of all that house and premises situated
.at--.
And whereas cedain N. T. is the owner of all that house
and premises situated at--.
And whereas the said two houses and premises are lying
-contiguous to each other with a wall between the two, which
was consid~red the common property of the two adjoining
,owners.
And whereas_disputes has arisen as to whether we have a
l'ight to build on the said wall increasing its height.
And whereas by way of settlement we have agreed to
declare that we consider all the additions on the wall we make,
common to the owners of the two houaes with liberty for any
-one to insert into the said wall any timber or timbers or other
materials for the purpose of improving the said houses or of
-otherwise altering the houses, without weakeuing the said
wall,
540 CH. XXV.-MlSCELLANEOUS DEEDS AND FORMS,
Now know all men by those presents that we A. T. v:
and wife M. S. both of--do hereby solemnly and sincerely
-0oclaro that tho said wall of tho width of 22 inches at tho
bottom and of tho width of 14 inches at a height of 13 feet from
tho floor Jovel now lying to tho wost of our house and to the
east of tho house of the said N. T. shall be treated as common
to t.ho owners of the two houses oven when we have added to,
the height of tho said wall. The said wall and its addition
shall be treated as common to all purposes of the said owners.
with full liberty to insert any timber or timbers or other
materials for tho purpose of improving, strengthening or of
altering the said houses and premises provided however that
the wall shall not be weakened in any manner whatever so as.
to cause damage to tho other.
Further the said wall shall be so common as to admit of
any necessary work being done such as to improve and keep,
in good state any one or two of the said houses and premises .
It is further declared thg,t no one shall charge the other
for any improvements or additions made to tbe said wall with ~
out the written consent of the other.
In witness whereof, &c
Form.-Declaration by a Wife regarding Tediateddam.
To all to whom these presents-shall come I, A., wife,
of B . of--of--, send greetings:
Whereas I desire to prevent any possible dispute or
litigation regarding that portion of my property known as
Tbediatuetam or acquired property in the Thesawalamai.
Now know ye and these presents witness that I the said
A., wife of B . of --do hereby declare and place on record
that the earnings of my bushan a" the said B. since the date of
my husband the said B.'s marriage with me and the income,
derived from all his properties and my properties whatsoever
was spent by us on ourselves and given for charity and other
contributions with our mutual consent and that there is now
no saving from the said Thediathotam or acquired property.
DEFEASANCES. 54:1
I further declare that neither I nor my heirs, executors,
,administrators and assigns have any right to claim from my
hushand the said B. anything as such Tbediathetam o
,acquired property in respect of any of his earnings or income up
to this date and that I, my heirs, executors, administrators and
,assigns are hereby estopped from olaimin~ anything whatsoever
.as such Thediathetam .
And further to prevent anv claim for the accounting of
-such Thodiathotam by me or by my aforewritt0n I make it
known hy these pr~sents that in con seq tien ce of the love and
affection I bear to him I have made over as a gift unto him
my said husband each and ever ything th at mig ht h ave
belonged to me as Thodiathetam in respect of earnings and
,income up to this date .
In witness whereof we the said A. and B. have hereunto
and to two others of the same tenor and date as these presents
,set o_u r hands at--this--day of--.
Signed in the
presence of us : - }
XIII.-Defeasances.
A defoasance is a collaterfl.l deed which defeats the opera
tion of some other deed and differs from t be common condition
of a bond only in that t he one is inserted in th e deed itself
,and tho other is made as a separate deed.
Defeasances are usually appli cable to executory in terests ,
-such as bonds, judgments, and ter ms of years (a) .
Every defe asance must contain proper words, as , t hat tho
thing shall be void. A covenant not to sue a sole obliger is a
release. An agreement not to t1uo an obligor with in a particu-
lar time or not to sue one of seve ral joint and several obligors
is merely a defeasance.
Where any warrant of attorney to confess jud gment is
subject to any defoasance or condition such defeasance or
condition shall be written on the .same paper with the warrant
before the filing of the same in Court (b).
(a) 2 Cr, 899, (b) C.P.C ., Seo. 32.

542 CH. XXV.~ MISCELLANEOUS DBEDH AND FORMS.
Form of a Warrant of A-Uorney to confess Judgment.
(See Sections 81, 82, Civil Procedure Code).
T o X . Y ., P roe t or Of the Supreme Court (or, of the,
District Court of----) or to any other proctor of the same
court .
. These are to desire and authorize you, tbe proctor above -
named, or any ot h er proctor of the said court, to appear for
me, O. D ., of---, (or, for us, 0 . D., o f - - -- , and E. F. ,.
of---, or either of us), at any time in tlie----court of
----(or as the case may be) and to receive summons for.
me (or us, or ei t her of us, as the case is) in an action for---
rupees for money found to be due and payable from m~ (or as,
before) to A . B. on an account stated between us (or, on a bond
made by rue, the said C. D. to A. B. in the penal sum of
.--rupees, or as the case -is) at the suit of the said A. B. ,.
bis heirs, executors, or administrators and thereupon to
confess the same actfon or else to suffer judgment by default
or otherwise to pass against me (or as before) therein and to -
be thereupon forthwith entered up against me (or as before) of
record in the said court for the said sum, together with costs
of action. And I (or as before), tbe said C. D. (and E. F. and_
each of us), do hereby further authorize and empower you, the
said proctor, after t he said judgment shall he entered up as
aforesaid for me and in my name (or as before, for us and in,
our or either of our names), to sign and execute a good anci
sufficient release or releases in the law to the said A . B., his
heirs, executors, aod administrators of alland all manner of
appeals or proceedings by way of appeal, and all benefit and
advantage thereof, and defects and imperfections whatsoever
bad, made, committed, done, or suffered in, about, touching, or
concerning the said judgment or any proceedings whatsoever
in any way concerning the same. And for what. you, the said
proctor, shall do or cause to he done in the premises or any of
them, this shall be to you a sufficient warrant and authority .
In witness whereof I (or we) have hereto set my hand'
(or our hands) the---day of--, 18-.
(Signed) 0. D .
DEFEASANCES. 543:
Signed by the above-named 0 . D. in my prosence. And
1
I hereby declarl myself to be proctor for the said 0 . D ., and
@that I subscribe my name as such his proctor ;@'a nd th at :E
have read and explained the contents of r.,;
the above-written
warrant of attorney to the said C. D., and th at be, t he said
C. D., appeared to understand the nature and effect thereof.
(Signed) G. H .,
Proctor,---Court.
I
Form of Defeasance to be written thereon (when reqitired) .
MEMORANDUM . The within warrant of attorney is given
to secure the payment from t be witbin-nameJ C. D. to t he
within -named A. B. of--rupees, with interest at--per
cent. per annum, on the--day of--, 18- (or, if by
instalments : on the days and in manner following ; that is to
say,- - - rupees, part tbereof, with interest for the same,
on---; ---rupees, other part thereof, with interest
for the same, on--; aod--rupees, residue thereof,.
with interest for the same as aforesaid, on-- ; and if a
bond was given, add : according to the cond ition of a bond
made by the said 0. D. to the said A. B., and bearin g date-
- - - , or even date with these presents). And it is hereby
agreed that no action, execution , or other process or proceeding
shall be commenced, sued out, or prosecuted against the said'
0 . D., his heirs, executor1i', or administrators, or against his 01"
their lands, goods, or chattels, upon the j udgmeot to he entered
up in pursuance of the within warrant, until default shall be-
made in the payment of the sum above mentioned (or of some-
or any one of the instalments above mentioned) and interest -
for the same as afor~said (and then only for the amount of the-
instalment or instalments which shall then be due and un paid ,
together with interest for the same, and so from time to time-
as each instaiment becomes in arrear, or, if all the instalments
are to become due on one default, and then for the whole of the
said---rupees, with interest, or such part thereof as shalt
not have been paid, notwithstanding tbe periods for the pay-
ment of the residue of tbe said instalments shall not have-
arrivedl. And it is hereby agreed that tbe said A. B. shall ba
,544 CH. xxv.-MISCELLANEOUS DEEDS AND FORMS.
at liberty, under any writ of exeoution to be issued on the said
judgment, to levy the costs of registering the said judgment,
suing out the execution thereon, fl.seal's fees, and all other
-expenses of execution, and further that no appeal or. other
proceedings or any advantage be taken or attempted to be taken
by the said 0. D. ,' his heirs, executors, or administrators for or
on account of the premises or any other matter, cause, or thing
whatsoever relating to, touching, or in anywise concerning the
issuing or executing of any such execution aforesaid, or any
other proceedings which m11,y be bad or taken on the said judg-
ment, or to enforce the execution thereof according to the true
intent and meaning of these presents.
As witness our hands the---day of---,18-.
Witness: 0. D.
G.H. A . B.
XIV.-Disclaimer or Renunciation.
A renunciation or disclaimer, is an expre;;s denial or
renouncing of a claim. A release by one trustee to a co-
trustlle will not operate as a disclaimer, unless the release
be made with intent to disclaim (a).
A disclaiming trustee ought not to release and convey
the estate to his co-trustees, as such a form of conveyance
may import an acceptance of the trust (b).
If a person appointed a trustee by deed or will is desirous
of disclaiming the trust, n,nd has done no act which would
amount to an acceptance of it, he should execute a deed of
disclaimer in proper form , bearing in mind that any form is
objectionable which affects to convey and release property the
trust whereof he wholly disclaims (c).
Disclaimers.
A disclaiming party is one who refuses or renounces any-
thing; until the estate given by deed, will, or otherwise be
(a) 2 Cr. 13!1.0,
(b) 2 Or . 13!1.l.
(c) Nicholas v. Wordsworth, 2 Swan. 365.
DISCLAIMER OR RENUNCIATION , 545
disclaimed and renounced, it is assumed that the gift is
accepted by the donee (a).
Ao heir-at-law is the only person in whom the law of
England vests property whether he will or not. He cannot
disclaim, though he may, as soon as he pleases, dispose of the
property by an ordinary conveyance.
A deed of disclaimer should be executed by a trustee who
refuses to accept the trust, because such deed is distinct
evidence of the disclaimer, and admits of no ambiguity, and I I
such is the usual course to adopt. But still there may be
c,onduct which amounts to a clear disclaimer (a).
Io framing a disclaimer by deed, great earn should be
taken that no words be introduced that might be eonstrued
into a conveyance or release of the estate, for it was held in tbs
case of Crewe v. Dicken, (4 Ves. 97), wherein trustee, wishing
to disclaim, released to his co-truste~ thai.t it was not a
disclaimer, but an acceptance of the trust, followed by a
conveyance of the estate. The trustee should simply disclaim,
and not profess to convey the property (Nicolson v. Wordsworth,
2 Swanst. 369) (a).
Form of a deed of disclaimer by an execiitor and
guardian.
To aU to whom these presents shall come I, A. B. of - -
(disclaiming party) send greeting :
Whereas G. H. late of--deceased duly made his will ,
dated the--day of--and hereby gave, devised and
bequeathed all his real and personal estate unto the said A.B.
and O.D. of--upon the trusts and with and subject to the
po_wers and provisions therein declared and contained concern-
ing the same respectively, and the said testator appointed the
said A.B. a.nd C.D. executors of his said will and guardians
of his infant children.
And whereas the said testator died on the--day of--.
(a) Kelly 378-
69
546 CH. XXV.-MISCELLANEOUS DEEi.JS AND FORMS.
Now these presents wit,nees that be the said A. B. of--
doth hereby declare that he bas from the time of the decease
of the said G. H. refused to act as a trustee or executor of the
said will or as guardian of t,he infant children of the said
testator and he renounces and disclaims the said offices of
trustee, executor, and guardian and all interest in and power
over the real and personal estate devised and bequeathed by
the said will:
In witness whereof I the said. A.B., &c.
Form of Repudiation of Inheritance.
To all to whom these presents shall come I, A.B. of--
send greeting :
Whereas the estate Ci the late C.D. is burthened with debts
and liabilities surpassing tbe as.ets of the said estate, and he
the said A.B. bas been ~dvisetl not to adiate or accept tbe same.
Now know . all men by these presents that I tbe said
A.B. for and on account of the reason aforesaid doth expressly
renounce and disclaim all the right, title and interest whatso-
ever of me the said A. B. in and to any property moveable or
immoveable and of what nature or kind soever, whether tho
same be in reversion, remainder or expectancy, belonging to
the said estate, especially relinquishing the same in favour of
the creditors of the said e state or of such persons as shall claim
to be entitled thereto. ' .
Whereof an act being required I the said A. B. have
granted these presents to serve and avail as occasion shall
or may require.
In witness whereof I the said A.B., &c.
Form.-Disclaimer by one of the Executors of a Will (a).
T6 all to whom thesa presents shall come, A. B. of etc.
sends greeting ;
Whereas C. D. late of--duly made his last will dated
the--day of--19:---whereby he appointed the said A. B.
and E. F. of, etc., executors thereof.
(a) Kelly. 381.
l
DISCLAIMER OR RENUNCIATION. 547
And whereas the testator died on tbe--day of--
J 9--.
And whereas the said A. B . has nev1:1r in any respect
acted and bas refused to act as an exec11tor of the said
will.
Now these presents witness that the said A:
B. has from
the decease of the said C. D. disclaimed and by these
presents doth disclaim the office of executor and all interest
in and power over tbe real and personal estate dev.olving to
or becoming vested in him by virtue of the will of the
said C. D.
In witness whereof, &c.
Form-Renunciation.
(Simple Form).
To all to whom, &a., I, T. P.. of--send greetings :
Whereas S. V. alias A. of--had by deed dated 27th May
1912 and attested by --N. P . under--sold, transferred
and conveyed to me the said T. P., subject to certain debts
referred to in the said deed All that allotments of 20
parcels of land called, etc.
And whereas the said S. V. alias A. had also previously
by a deed dated 19th Juiy 1909 and attested by--N. P.
under No.--donaterl the said same land unto his son M. A.
,of--subject to the said debts.
And whereas certain doubts have itrisen as to whether the
title of the said M. A. is perfect and whereas to confirm the
said title of the said M. A. it has become necessary that I
should renounce my right, title or interest if any to the said
land.
Now know all men by these presents that I the said
T. P. of--for and in consideration of the premises afore-
said have renounced and by these presents do hereby renounce
.all my right, title, interest and claim in, to ,and upon the said
land and premises whiob was conveyed to me by the said
deed dated 27th May 1912 and attested by--N. P. under
No.--.
 ..
548 CH. XXV.-MISCELLANEOUS DEEDS AND FORMS.
To have and to hold the said land and premises together
with all and every of the appurtenances unto the said M. A.,.
his heirs, executors, administrators and assigns for ever.
In witness whereof, &c.
Form-Renu.nciation and Confirmation.
To all to whom these presents shall come we, A. A. and
R. A. both of--send greetings :
Whereas A. A. of--who has the original owner of a, .
piece of land called &c. and more fully described in the
Schedule hereto, gave the same by word of mouth as
II
donation at the time of his last illness, or as Thanam " as
called in Tamil to two priests S. A. and S. S. both of--.
And whereas the said priests did enter into the actual
possession of the said piece of land and were in the quiet and
peaceable enjoyment of the rents and profits thereof. The,
gaid priest S. A. having died his. children A. T., A. S. and
A. N. became the heirs-at-law. The said A. T. having:
renounced his rights to the said land, and the said A. S.
having died issueless, the , said A. N. became the sole heir-
at-law. A. N. gave the right over the said piece of land unto
only two of his sons, viz., N. S. and N. T. Again the said
priest S. S. having died his son S. M. became the sole heir-
at-law and on his death bis two s_o ns M. S. and M. A. became,
the sole heirs-at-law.
And whereas the said N, S., N. T., M. S. and M. A.
who are in the actual possession of the said piece of land
have assured the correctness of the statements in the last
two of the above paragraphs.
And whereas although it is true that the g1vmg by word
II
of mouth as Thanam " followed by actual possession with
the quiet and peaceable enjoyment of the rents and profits 0
the said piece of land for a period of ten years and upwflords.
by them and their prede::essors in title is sufficient to pass
title to the said N. S., N. T., M. S. and M. A. yet to obviate
all doubts and difficulties should a contrary view at any time
hereafter be entertained the said A. A. and R. A. have,
consented and agreed to make and execute these presents.
DOWRY. 549
Now therefore these presents witness that for effectuating
,the purposes aforesaid and from the regard we the said A. A.
and R. A. both of--have to the memory of our late grand-
father A. A. of--and that his intention in don11ting by way
of " Thanam" to the said two priests may not be defe'1ted and
{or cil ivers other co nsiderations, we the said A. A. and R. A. by
these presents for ourselves, our heirs, execmtors and adminis-
'trators fully and ab3olutely remise, release, give, grant, ratify,
approve and confirm and for ever quit claim unto the said
N. S., N. T., M. S. an d M. A. all of---their heirs, execu-
t ors, administrators an d assigns in and over all that piece of
land called, &c., more fully described in the Sohedule hereto and
.all t be estate, right, title, interest, claim and demand whatsgever
at law and in equity of us the said A. A. and R. A. in and to
out of and upon the said piece of land and premises to the
intent that tbe said piece of land and prernises m9,y be and be
deemed the absolute property of tha said N. S .. N. T., M. S
.and M. A. and their aforewritben.
To have and to hold the said premises hereby de[l,lt with
-unto the said N. S., N. T., M. S. and M.A., their heirs, execu-
>tors, administrators and assigns for ever.
In witness whereof, &c.
XV.-Dowry.
In England, the word dower or dos (as used by Brackton
,and other lawyers) denotes what the husband gives the
wife. The Roman jurists used dowry or dos to signify the
p ortion brought by the wife to the husband for the purpose of
sustaining the burdens of marriage, If the marriage did not
,take place the giving of the dos was null and void.
Under the Dutch Law the term dos acquired a wider '
signification and included, in the absencie of proof to the
-contrary, all the property given to the husband for adminis-
tration, by the wife, but she acquired no tacit hypothecation
in respect of such property unless it was specially secured
.a gainst alienation by ante-nuptial contract excluding the
 .
550 CH. XXV.-MISCELLANEOUS DEEDS AND .JfORMS .
community of goods (a). Community of goods is no more a.
consequence of marriage (b).
Under the Thesawalamai, "do"wry" is any property
moveable or immoveable or both given to tbe bride by her
parent or parents or others interes-ted in bar in consideration
of ber 'i:narriage which is to come off or which has already
taken place. Such " dowry " is considered her separat~
property.
Withers, J.--Though the dowry deed on the face of i t
purports to be made to the " wife," and if post-nuptial would
be voluntary, yet, according to the answer ana evidence, th e
marriage took place after the execution of tbe deed, which
thus amounted to a settlement in consideration of marriage,
and, therefore, valuable (c).
Bertram , C. J. - -Tbese words denote as plainly as can
be denoted that the consideration for the deed was a past-
consideration. The principles of the English Law are per-
fectly clear and they are , that a past consideration is no
consideration at all, unless it was moved by a previous.
request, or unless it was rendered under such circumstances
that a request is implied (d).
A conveyance of land by a father to bis daughter by
way of dowry on her marriage is, prima jacie, a conveyance
for valuable consideration. Such a deed gains priority over
an anterior deed of sale by prior registration.
The fact of such a deed being called a deed of gift,
cannot make any difference, if it is clearly proved what tbe.
real nature of it was.
No question of acceptance arises with respect to a
dowry deed (e).
(a) Nathan, 254-289,
(b) Ord. N9, 15 of 1876, Seo. 8.
(c) Velupillai v, Katiravelu, 5 Tamb. 94,
(d) Salman v. Obilias , (1918) 6 0, W. R , L
(e) Jayasekere 'If, Wanigaratna, 12 N, L. R. 364,
DOWRY. 551
Hutchinson, 0. ,J.-Io is pogsible, of course, and it is a
thing which is done every day for th& parents or friends of
a bride to give her a present on the ~ay of her marriage, a
pure gii_t, w bicb does not form the consideration or any
part of the consideration for the bridegroom marrying her .
But tha~ is not dowry. And in this country, as in most
others, the dowty is almost always tbe consideration or
part of the consideration for the mari taking t.be woman as
wife (.i).
A past m,i rriage is no consideration for an agreement
by a third pairty to con 11ey property to the wife. H is
only a nud uni p:10t1~m (b).
An agreement in writing to give a specified sum by way
of dowry is not a security within the meaning of Sec. 3, sub -
Sec. 0 of the Public Servants Liabilities Ord. 2 of 1899. The
word security must be read as if it were ejusdem generis with
the other documents mentioned in that section (cl.
The Mohamedan Registration Ord. 8 of 1866, Sec. 19
provides that the tims for the prescr iption 0 au action
for a woman's dower shall not begin to run until after the
dissolutjon of the marriage by death or divorce.
Form.
Stamp No.-- Prior Registration .
To all to whom these presents shall come I, A. B. of--
send greeting :
Whereas I am by virtue of the transfer deed dated the
--day of--1899 and attested by--Notary Public of
Jaffna under No.--the owner and proprietor of all the allot-
ment of a piece of land called---and more frilly hereinafter
described.
And whereas I am desirous of giving by way of dowry the
said land, house and premises to my daughter C. D. wife of
E. F. of--.
.(a)Jayasekera v. Wanigaratna, 12 N. L, R, 364.,
(b) D, C. , Colombo, 53 776, (1871) Vand .. 192 .
(c) Wijey11sekera v. Perera, (1911) 14 N.L.R. 87 .
552 CH. XXV.-MISCELLANEOUS DEEDS AND FORMS.
And whereas t.he said E:. F. and wife 0. D. are~willing to
accept the said dowry.
Now kfrow all men by these presents that I, A. B. of--
for and in consideration of the natural love and affection which
I have and bear unto my said daughter 0 . D. arid for and in
consideration of the marriage of my said daughter C. D. with
the .said E. F. do hereby, by way of dowry give, convey, make
over, transfer, and assign, unto the said C. D. wife of E. F.,
h er heits, executors, administrators and assjgns the following
piece of land bo wit :
A piece of land [description of parcels], with all my right,
estate, title , interest, claim, btrnefit and advantage whatsoever
from, in, out of and upon the said land and premises which are
of the value of Rs.--.
To bavo and to hold the said land and premises together
with all the rights, easements, privileges and appurtenancefi\
thereunto belonging or used or enjoyed therewith or reputed or
known as part and parcel or member thereof unto her the said
C. D., wife of E. F., her heirs, executors, administrators and
assigns for ever.
. And I the said A. B. do hereby for myself, my heirs,
executors and administrators covenan't with tQe said C. D.,.wife
of E. F., that the said land and premises and every part there-
of hereby given in dowry are and is free from any inc"0.mbran-
oes, that I and my aforewritten shall and will always warrant
and defend the .same unto her the said C. D., wife of E . F. and
her aforewritten against all persons whomsoever and further
whenever thereunto required and at , the proper costs and
charges of the said C. D., wife of E. F. and her aforewritten,
sign, execute and deliver unto her and them all such further
and other acts, deeds and assurances as shall or may from time
to time be necessary or expedient for more fully and effectually
vesting on her and them, the said land and premises hereby
dowried.
And now know all men by these presents that we the said
E. F. and wife 0. D. do hereby thankfully ~~cept this dowry.
In witness whereof we the said A. B., E. F. and 0. D., &c.
FISCAL'S CONVl<WANCE. 553
XVI.-Fiscal's Conveyance-Form.
(See Section 286, C.P.C.).
To all to whom these presents shall come, greeting :
Whereas by virtue of a writ of exeuution issued from
tbe--court of--, bearing date the--day of--, 18-,
-directed to the Fiscal (or Deputy Fiscal as the case may be)
of the--Province, whereby he was directed (insert
directions of the writ), A. B., Esquire (Fisca l) of the said
Province, did cause .to be seized a,nd taken t he property herein-
after described, which, after due notice an d publication in
manner by law prescribed, was exposed to public sale on t he
--day of--, 18-, by--, _acting under the authority
of the said Fiscal, and was sold to ---as the highest bidder
11t the said sale for the sum of--rupees :
And whereas the said (pitrchaser) has duly paid to the sard
(Fiscal) the whole of the said purchase-money, and thus became
entitled to a conveyance of the said property ( or where the
plaintiff is purchaser: And whereas the said (purchaser) has
?een allowed the amount of purchase (or as the case may be)
1 n reduction of his claim, and has produced the order of court,
copy whereof is hereunto annexed, . and has thus become
entitled, &c.) : And whereas the said court by an order
dated the--day of--, 18-, copy of which is hsreunto
11nnexed, has duly confirmed the said sale :
Now these presents witness that the said A.B., Fiscal of
the--Province, in consideration of the said sum of--
rnpees, so paid by (or credited to) the said (purchaser) as
.aforesaid, the receipt whereof the said A. B . doth hereby
acknowledge, hath sold and assigned, and by these presents
.doth sell and assign, unto the said (purchaser), his heirs, exe-
-cutors, administrators, and assigns, all that (name and des-
cription of the land by metes and bounds), containing--,
and described in the diagram or map annexed to (some title
deed delivered to the purchaser, or if there is non'e then) these
presents, and marked---, to have and to hold the same
with their and every of their appurtenarices to him the said
(purchaser), his heirs, executo.rs, administrators, and assigns
for ever.
70
554 CH. XXV.-MISCELLANEOUS DEEDS AND FORMS.
In witness whereof the said (Fiscal) hath hereunto subs-
cribed _bis name at--, this--day of--, 18-.
-witnesses.
Annexures.
Fiscal.
(In cases where the sale bas been effected in execution of
a decree specifically directing a sale, the conveya nce will be in.
accordance whh the terms of the decree) ..
XVII.-Post-obit Bond.
A post-obit bon d is a security for the payment oi a greater
sum than the sum adv11,nced, where either the payment depends
upon a contingency, or, the payment being certain, the time of
payment depends on a contingency (a) .
Form.
To all to whom these presents shall come I, A. B. of---
send greeting:
Whereas C. D. of--(obligee) has contro.cted and agreed
with the said A. B. for the purchase of the sam of Rs.--to be
paid to her the said C. D. in the event of E. F. departing this
life in the lifetime of the said A. B. bu~ not otherwise at or
for the price in the lifetime of the said A. B. but otherwise at.
or for the price or sum of Rs.--.
And whereas in performance of the said recited contract
she the said 0. D. hath paid the sul:n of Rs. --unto the said
A. B., the receipt and payment whereof the said A. B. doth
}iereby acknowledge.
And whereas upon the treaty for the purchas_e of the said
contingent sum of Rs.--it was agreed that the payment
thereof should be secured by, among other securities, the bond
of the said A. B.
Now know ye and these presents witness that if the said
E. F. should depart this life in the lifetime of the said A. B ,_
then and in such case if the said A. B., his heirs, &o., shall pay
(a) 1 Cr. 549.
POST-OBIT BOND. 555-
or cause to be paid unto the said 0. D. her &c. within one
calendar month next after the decease of the said E. F. as
aforesaid the sum of Rs.--or in case the said A. B. shall hap-
pen to depart this life in the lifetime of the said E. F., then
this obligation ~o be void or otherwise shall rema,in in full force ,
and virtue.
In witness whereof we the said A. B. and C. D ,, &o.
Form.-Post-obit Bond by a. Son for the p1iyment of a sum
of money lent by his Father (a).
Koow all men by th ese presents that [son] am hel d
and firm !y bound to [father] of--in the sum of - - [double
the amount secured] to be paid to the said [father]. Dated
this---jay of--.
Whereas the above-bounded [son] is .indebted to his
fa.that aboveoamed--in the sum of--:i,dvanced by the
said f/ather] to the said [son] at his request.
And whereas it has been agreed between the parties
that the repayment of the said sum of --shall be
deferred untii---months after the decease of the said [son]
and shall not carry interest during his life but that interest
thereon at the rate of 5 per centum per annum shall
commence from the day of his decease.
Now the condition of the above written obiigation is
suoh that if the heirs, executors or administratqrs of the -
the said [son] shall, at the expiration of--:Jalendar months
next after his decease, pay or cause to be paid to the sai d,
[fa.therj , his executors, administrators or assigns, the principa
sum of --with interest at the rate aforeaaid. Then tbe-
abovewritten bond shall be void otherwise the same shall
remain in full force.
In witness whereof, &o.
XVIII.-Protests.
See CHAPTER XXIV.-BILl;,S OF EXCHANGE, &c.
(a) Kelly, 375 .
 ..
-'556 CH. XXV.-MIS0ELLANEOUS DEEDS AND FORMS.
XIX.-Restraint on Anticipation .
(An En:glish Doctrine abou_t to be introduced into Ceylon).
By the new ordinance, a draft of which is already
published, a married woman becomes entitled to deal with her
separate property as a feme sole. Here the legislature is trying
to follow the Married Woman's Property Act of England and
proposes to i'.ntroduce the Principles and Doct rine of the Law of
England ~ith respect to restraint on anticipation. Under the
English Law !l,.Jld the proposed ordinance ll. restriction against
anticipation may be attached to the enjoyment of any property
or income under any settlement, will or other instrument by
a woman during marriage.
Under the English Law, irby a settlement the income
is given to the wife for her separate use without a restraint on
anticipation, she is exactly in the position of a feme sole in respect
-of it; she can dispose of her in terest during the joint lives,
and is exposed to pressure on the part of her husband or his
creditors to do so; but when the restraint on anticipation is
added, the income becomes practically inalienable. Thus when
she could not dispose of her income by way of anticipation,
she could not dispose of the corpus, for this would in effect be
to dispose of the income to arise from it in the future (a)
The phrase " without power of anticipation " is explained
as follows: It does not mean "inalienable." Suppose the
owner of consols, immediately after be has .received his divi-
dend, goes with the money in his pocket to a shop and makes
a purchase, which he pays for out of it, he applies his dividend
not by way of anticipation. On the other hand, if be makes
the purchase before be has received the dividend, ~nd promises
to pay out of the dividend when received, he disposes of it by
-anticipation. So if he sells his stock, he disposes of the whole
-of the future dividends by way of anticipation (b).
The modern form of the trust for separate use without
power of anticipation consists of direct.ions to the trustees to
pay the in.come to the wife during the joirit lives of herself
(a) Elp. (189i), 330 and 331. (b) Elp. (1894), 330 ,
RESTRAINT ON ANTICIPATION. 557
and her husband, for her separate use, without power of
anticipation (a,j,
A restraint on anticipation attached to an interest give n
to a woman is only binding during coverture (b) and she can
before marriage or during widowhood destroy the restraint by
obtaining a transfer of the property, conv&ting it from its
original foi:m, and dealing with as absolute owner (c) . lb is
conceived that, on the same principles, a declaration in tbe-
form of a release given below will eft'ectivoly destroy the
restraint (d).
Deed of Settlement on Marriage with a re~traint on
ani,icipation (e).
Form .
This indenture made tbe--day of--between H ..
of--(husband) of the, first part, W. of--(wife) of the
second part and A.T. and B . T. of--(trusiees) of the third
part.
Whereas a marriage is shortly to be solemnized ,between,
the said H . and W.
And whereas the said H. is seised of the bereditaments-
specified in the schedule hereto.
And whereas upon the treaty for the said intended
marriage it was agreed that the said hereditaments should be
settled in manner hereinafter appearing.
Now this indenture witnesseth that, in pursuance of the
said agreement, and in consideration of the said intended
marriage, the said H . as settlor, with the approbation of the
said W., doth hereby grant unto the said A.i'. and B.T., all those
(parcels), all which said hereditaments are more particularly
described in the schedule hereto.
(a) Elp. (1894), 332.
(b) Woodmeston v. Walker, (1831) 2 Russ. and M, 197, 206.
(c) Wright v. Wright, (1862) 2 J. and H. 647 ; i 5 Enoy. 43,
(d) 15 Enoy. 43 and 44.
. (e) Clark, 85
558 CH. XXV.-MISC!!LLANEOUS DEEDS AND FORMS.
To hold the same unto the said A.T. and B.T. and their
heirs, to the use of the saio R. and his heira until the said
intended m1J,rriage and afterwards, to the use that the said W.
shall, during the joint lives of uerself aud the said H., receive
out of the pr-Bruises for her separate use, and without power of
.anticipation, the .yearly rent-charge of ,-----, to commence
from the solemniza~ion of the said intended marriage, and
to accrue from day to day, but to be paid without any deduc-
tion by equal quarterly payments, the first thereof to be made at
the end of three months from the solemnization of the said
intended marriage, if the said W. and H . be both then living ;
And, subject and charged as aforesaid.
[Further provisions may be made in the case of the death of
the parties, their issues and the like.}
In witness whereof.
Special Clause in a Deed of Settlement.
The wife shall not have during the. intended coverture
the right to dispose .of or charge by way of anticipation any
interest or interest of whatsoever nature and whethe_r in
possession, reversion, remainder, contingency or expectancy
,hereby given to her in the property hereby settled or agreed
to be settled (a).
Clause in a Will (b).
I devise [parcels] with the appurtenances thereof to A. ,
the wife of B., of--in fee simple, but so that during her
present and future cove,rture tlie same shall be without power
of anticipation.
A no-ther clause in a Will (c).
I give to A., the wife of B., of--during her life, an
annuity of --free of duty, without power of anticipation,
commencing from my death to be payable in equal quarterly
payments, the first payment to be made 9:t the expiration
of three calendar months from my death.
(a) 2 Key, and Elp. 598, (c) 2 Key and Elp, 861.
(bl 2 Key. and Elp. 827,
RESTRAINT ON ANTICIPATION. 559
Clciuse in a Settlement of Children's Shares (a).
T he share of the trust fund be reinbefore given to my
<daughter A., shall not vest in such daughter but shall be
retained by my trustees and held by them upon the trusts
hereinaHer declared concerning the same respectively .
During the life of such daughter my trustees shall pay the
-income of sucb share to her and so that during coverture the
same shall be without power of anticipation.
Annuities.
All annuities hereinbefore given to females shall during
-coverturn be without power of anticipation (bl.
13,elease by an i,nmarried woman of a restraint on
Anticipation (c).
Form .
To all to whom these presents shall come R. ol---
'(releasor) sends greetings :
Whereas by his will dated -- - T . late of--- (testator)
who died on the--day of--devised and bequeathed to
the said R., one equal fifth sbart;i in his residuary estate and
directed the trustees of his said to hold such share on trust to
pay to the said R. during her life the income thereof for her
-separate use without power of anticipation and after her
decease to hold the said share upon the trusts in the said will
mentioned.
And whereas the said R. is now unmarried and is desirous
that in the event of her being hereinafter married she should
cenjoy her interest in the said share of residue released from
the restraint on anticipation imposed by the said will.
Now these resents witness as follows :
1.The said R. hereby declares that she henceforth
stands released from the restraint on anticipation imposed on
her in relation to her interest in the said share of residue.
(a) 2 Key. and Elp. , 894. (c} 15 Ency, 43,
(bl 2 K. ana E. 862.
 560 OH. XXV.-MISOELLANEOUS DEEDS. AND FO~MS.
2. The said R. hereby directs the trustees for
the time being of tne said will to hold all the
interest of the said R. in the said share of residue
in trust for the said R. freed and released from the said
restraint on antfoipation and further directs to give effect
to all future dealings by her with the said share or .any
part thereof whether by anticipation or otherwise and whether
she shall be covert or discovert in all respects as if the said
restraint on anticipation had never been im\losed.
In witness whereof, ~c.
R.
XX.-Revocation.
A revocation is destroying or making void some deed
or instrument that had happened before the act (a).
Form.
Know all men by these presents that I, A. B. of--
for divers, good causes and considerations, me hereunto
specially moving, hath revoked, annulled and made void and
by these presents doth revoke, annul and make void the power
of attorney executed by me the said A. B. in favour of
C. D. of--dated the---day of--1909 and attested by E. F.,
Notary Public under No.--and all powers and authorities.
whatsoever therein contained.
In witness whereof I, the said A. B., &c.
XXI.-Separation from Bed and Board.
Form.
Separation deeds were at one time not enforced by
Courts of Law, as being contrary to public policy, but the view
gradually changed [see Wilson v. Wilson, (1848), 1 H. L. Oas.
538.]
It must be borne in mind that a separation deed, which
is not immediately followed by actual separation, wi4.l be
altogether void [Bindley v. M:ulloney, (1869) L. ~- 7 Eq. :'!43],
(a) 2 Cr, 1345 ,
,.
SEPARATION FROM BED AND BOARD. 561
as an agreement for a future separation, before such separa-
tion has become inevitable, is still considered contrary to
public policy (a).
An agreement by a putative father for the support and
maintenance of a bastard child is substantially a compromise
of the right which the mother has of compelling such father to
support such child (a).
Under the Roman-Dutch Law an agreement between
husband and wife for a separation a mensa et thoro and for the
payment by the husband to the wife a monthly allowance, is
enforcible. Such an agreement is terminable at the will and
option of either party (b).
In a judicial separation a reason must be assigned, but in a
notarial separation no reason need be given. It is true most
draftsmen give as a reason " certain unhappy differences,"
but as they are rarely specified. this expression need not
really be used. Reasons of ill-health, or disappointments of
!He, or non-appreciation of married life, or ill assortment have
been frequently th9 cause of separation (1J),
Form of a Deed of Separation.
To all to whom these presents shall come we A. B.
and wife C. D. of--send greeting:
Whereas some unhappy differences have lately arisen
between us, and whereas we have mutually agreed as we-
do hereby agree, henceforth to live apart from each other,
and separate ourselves from bed, hoard, cohabitation and
community of goods.
Now know all men by these presents that in pursuance of
the said agreement, I, the said A. B., do hereby for myself,
my heirs, executors and administrators covenan t , promise
and agree to and with the said 0. D., her hairs, executors and
(a) 2 Ency. 230.
(b) Silva v, Silva, 18 N. L . R . 26.
{c) Van Zyl., 242.
71
562 CH. XXV.-:--MTSCELLANEOUS DEEDS AND FORMS.
administrators, in manner and form following, that is to
say:-
That it shall and may be lawful to and for my wife the said
C. D , and I tbe said A. B. shall and will permit and suffer the
said 0. D. from henceforth, during her natural life, to live
separate and apart from me, and to reside and be in such place
or places, and family and families, and with such relations and
friends and other persons, and to follow and carry on such trade
and business as the said 0 . D. from time to tim!3 shall think fit.
And that I the sai~ A. B. shall not nor will, at any time
or times hereaiter, sue her, the said C. D., for living separate
and apart from me, or compel her - to cohabit with me, or
to sue, molest, obstruct, or trouble her for such living separate
and apart from me, nor shall or will, at any time hereafter,
claim or demand any property which she shall or may
hereafter buy or purchase, or which shall be devised or
given to her, or she shall otherwise acquire, and that she
shall enjoy and absolutely dispose of t he same as if she were
a feme sole and unmarried.
And further I tbe said A. B., _my heirs, executors and
administrators, shall and will, well and truly pay unto the said
0. D. , my wife or her assigns, during the term of her natural
life, for and towards her bet,ter support and maintenance the
sum of Rs. 50 per mensem.
In consideration whereof, I the said C. D., as aforesaid, do
hereby agree to accept the said sum of Rs . 50 to be monthly
paid to me as aforesaid and to take the same in full satisfac-
tion for my support and maintenance, hereby binding myself
not to molest the said A. B . nor claim to be with him, nor
hereafter to claim any of the property of the said A. B. save
and except the .sum allowed for my mainteuance as above.
And we the said A. B. and C. D. are mutually agreed that
the one will not be responsible for any debts or liabilities
which the other of us shall contract but that each shall be
alone responsible for any debts or liabilities which any one of
us shall contract.
In witness whereof wethe ~aid A. B. and C. D., &c.
SURRENDER. 563
:xx.II.- Substitution under a Power of Attorney.
[See Chapter on " POWER OF ATTORNEY,"]
XXIII -Surrender.
A surrender is the yielding up, or returning, or relinquish-
ing of a smaller estate ~o him who bas a greater estate in the
same land in remainner or immediately exoeutant upon such
smaller estate (a).
Tbe usual operative word R are :-"surrender and yield up."
It mo.y be made without any particular form of words. The
word" release" will operate as a s urrender. In surrenders of
a term of years the word "assign" is generally used in addition
to the word "surrender," so that it may operate as an assign-
ment failing surrender (a}.
The merely cancelling a lease is not a surrender (a).
To make a surrender good , the person who surrenders must
'be in possession, and he to whom the surrender is made must
h ave a greater estate immediately in reversion or remainder in
which the estate surrendered may merge (a) and the surren -
der cannot be made, if the reversion or remainder is not imme-
diate (b}.
Form of a surrender of a lease for lives.
This indenture made this--day of--between A. B. of
--and C. D . of--witnesseth.
(Here recite the lease from A. B. to 0. D. to hold to him/or
the lives of A. B. and two nominees).
And whereas the said nominees have lately departed this
<life leaving the said A. B. them surviving and the said A. B. is
now desirous of having a new lease of the hereditaments and
'Premises to him granted for and during the lives hereinafter
n amed.
Now this indenture witness"lth that in consideration of
Bs.--paid by the said 0. D. to the said A. B. (the receit?t
(a) 2 Or, 1500, (b) 2 Cr. 1601,
 .
564 CH. XXV.-MISCELLANEOUS DEEDS AND FORMS.
wheraof the said A. B. doth hereby acknowledge) he the said
A. B. doth hereby surrender and yield up unto the said C. D.,
his heirs, &c., and assigns all that [description of the parcels] to
the intent and purpose that the said C. D. may be enabled to
grant a new lease of the said premises for and during the-
lives of such three persons as shall be nominated by the
said A. B.
And the said A. B. doth hereby give up the said in part,
recited indenture of lease to be cancelled.
In witness whereof we the said A. B. and C. D., &c.
WARRANT OF ATTORNEY TO CONFESS JUDGMENT. 565
[See TRUSTEES ORD., 1917, IN CHAPTER ON "CEYLON
ORDINANCES " FOR FULLER NOTES].
:XXV.-Warrant of Attorney to confess Judgment.
It is a power given _to a proctor by a client to confess
judgment on his behalf. This is executed in the presence of
another proctor who should explain to the client the nature
of the instrument and who should also subscribe to the instru-
ment. This is executed before a proctor (a)._ A memoran-
.dum of defeasance is usually attached to it.

[See also the Chapter on "LEASES."l [See XIII, DEFEASANCE ABOVE FOR FORM.]

XXIV.-Trustees.
A trust is an obligation attached to the ownership of pro--
perty binding the person in whom such property is vested to
hold it for the benefit of some other person (a).
Trusts are also divided into express trusts and implied or
constructive trusts.
An express trmili is one expressly declared by a deed, will'
or other written instrument.
An implied or constructive trust is -one arising by impli-
cation or construction of Jaw from certain circumstances ; as-
where land is purchased by and conveyed to A. but with
money belonging to B., A. is treated as a trustee for B., unless.
there is such a relation between the parties as will lead to the
presumption that a gift was intended by B. to A. (b).
A trust relating to immoveable property could be proved:
by parol evidence (c).
If a new trustee appointed in place of another is given-

the power to appoint another new trustee, he, the second
trustee, may exetcise that power and appoint a new trustee (d).
(a) Prid. Vol. ii. 142,
(bl Prid, 144.
, (c) Ohlmus v. Ohlmus, 9 N , L, R, 183; eee also Gould v .
Innasitamby, 9, N. L. R. 177,
(d) Alwis v, Jnanis Appuhamy, 7 N.L.R, 266,
'a) Civil Procedure Code, Beos, 31 and 3!2.

CHAPTER XXVI.
STAMP LAWS.
.
!.-General.
ORD. No. 22 of 1909 is tbe prfocipal Ordinance tbat.
deals with the stamping of documents. That has been amended
by Ord. No. 16 of 1917 which has in turn been amendeil
by 10 of 1919 and by 32 of 1919. Regarding the stamp duty
on Registration, Ord. No. 14 of 1891 has been amended by
Ord. No. 11 of 1919. This had been done as Ord. 10 of 1919'
has included for tbe most part tbe registration duty as well,
e.g., the stamp duty on a transfer deed or a mortgage bond
now includes the registration duty as well, so that such
deeds are now registered free. '
. '
To a practising Notary the stamping of documents is a
very important subject. He holds himself liable to a prose-
cution if the document he attests is not properly stamped (a), _
or if the stamp used is not properly cancelled by putting
the initiall:l and the true date on the stamp (b), or ii the-
number and value of the stamp -u sed is not stated in the
attestation (c).
It is also his duty to endeavour to ascertain the true
and full consideration for the execution of any deed and to
insert and set forth the same in the deed (d). He shall also ,
set forth such facts and circumstances affecting the charge-
ability of any instrument with duty (e). In default he is liable
to a prosecution (f).
(al Ord ~ l of 1907, Bees, 29 end and 29 (6).
(b) Nakuran v. Rauhamy , \1917) 20 N. L, R. 135.
(c) Ibid, B. 29 (7) ; Ord. 22 of 1909, Secs, 9, 10 and 59.
(d) Ord, l of 1907, Seo, 311.
(e~ Ord, 22 of 1909, Bees., 60 and 26.
(fl lb.id, Seo, 67,
GENERAL. 567
Punching of stamps will not be enough of cancellation
under the Ord . No. 22 of 1909.
No instrument shall be deemed to be invalid in conse-
quence of the non-obs~rvance by the Notary of any rules in
any matter oi form (a).
All instruments chargeable with duty and executed in
Ceylon shall be stamped before or at the time of execution (b)
and such stamps eball be cancelled by the party executing
the same and if it is a notarial instrument by the
Notary, by writing across the stamp his name or initials,
true date of his so writing aDd tbe number of the deed if
notarial (c) ; such stamps are affixed to the duplicate, receipts
excepted (d).
No instrument chargeable with duty shall be admitted in
evidence in any Civil Court unless such instrument is duly
stamped or unless it bears a certificate from the Commis-
sioner of Stamps that the full duty has been paid'. (e). Once
it is admitted it is not open to tha pitrties to call the docu -
ment in question (f) .
If an instrument which would have been stamped is
brought to the notice of the Commissioner of Stamps within
an year of its execution by a person who offers to pay the
proper duty and penalty <if any), and if the Commissioner
is satisfied that the non-stampiug was due to any accident ,
mistake or urgent necessity, he may receive the amount and
certify payment by endorsement on the deed {g).
By sections 46, 47, 51, 54 to 57 of 22 of 1909, the
Commissioner is empowered to pay for spoiled, unused and
mi.s used stamps.
(a) Ord, 1 of 1907, Bee, 29 and Ord. 22 of 1909, Sec. 10,
(bl 22 of 1909, Seo, 16, ..
(c) 22 of 1909, Seo, 9; 1 of 1907, Seo. 29 (7),
(d) Ibid, Seo. 90.
(el 211 of 1909, Seo. 36,
(f) 161 D. C., Galle, 11931 (1915) ; p. Bai. notes 21.
(g) 22 of 1909, Secs. 43 and 44,

568 CH. XXVI.-STA.MP LAWS.
Tbe sehedule to tbe Ordinance regulates tbe duty payable
on every instrument.
Any instrument compdsing or relating to several distinct
matters sball be chargeable with the aggregate amount of the
duties with which separate instruments, each comprising or
relating to one of such matters, would be chargeable under
this Ordinan ce (a).
If the in terest of tbe p <1.rties rela tes to one tbing which
is the subject-matter of the instrument; or in otber word.i, if
the instrument affe cts t he separate in terests of several, and
there is a community of the same subject-matter as to
all parties, then a single stamp will be sufficient ; but where
the parties have separate interests in several subject-matters,
t here ougpL to be a separate stamp for each party (b) .
Where a document has a two-fold operation and the
stamp is sufficient to protect one of the objects which it
-0ontemplates, it may stand good for so much as is protected
by the stamp (c).
Where a document requiring to be stamped is executed
by several persons, it is not necessary that all should cancel
the stamp (d).
All the parties were present for tbe purpose of executing
this deed. One party had just executed, and immediately on
an objection being taken, and before the other contracting
parties bad executed, it is agreed to strike out the clause
which had given rise to the objection; that was done accord-
ingly, and the party re-executes, and the' other p~rties execute.
This must be considered, I think, as one transaction ; and on
the ground that there was no final consummation of the
.e xecution before the deed was altered, I am of opinion that a
fresh stamp was not necessary (e).
Seo. 6 of 211 of 1909,
(a)
(b) Per Jervis, C. J., Doe v. Tidbury, (14 C. B. 80!l); Dono. 111.
(c) (1836) Morg. Dig. 11.
{di Appuhamy v. Thodoris, (1916) 19 N. L. R. 15!l; 2 C. W. R. 211.
(e) Per Vaughan, B., Jones v. Jones, () c. and M. P. 724); Dono, 127,
GENERAL. 569
Where, however , a number of proxies were stamped
with adhesive stamps which required to be cancelled so as to
render the same " in~apable of b_eiog used for any other
instrument," and tbe ca,ncellation was effected in various ways,
.e. g., some with a name or part of it written across, others,
with only the date so written, and a few with only lines or a
cross, with nei ther the signature nor the date, it was held that
they were properly and effectively cancelled so as to prevent
their being used again (a).
. I,
The cancellation of the stamp a pparently should be done
,I
'by the person affixing it ; but as it is , a m ere mechanical
operation to prevent the stamp bein g used again, it will be
sufficient if done by bis direction express or implied. Accord-
ingly the cancellation of tht1 stamp would not be invalidated
if don t the time of execution by the payee of the 'hundi'
with the authority of the drawer (b).
When an instrument falls within two descriptions and
t he Crown claims the higher rate, it is ,no answer to say that
.a, lower rate is also chargeable (c).
Under a similar provision (8 and 9 Vic., c. 16, S. 41) as
in section 26 it has also been held that the omission to set forth
the consideration in express terms would not invalidate an
instrument (d).
Where the duty with which an instrument is chargeable,
-or its exemption from duty, depends in any manner upon the
,duty actually paid in respect of another instrument, the
payment of. such last-mentioned duty shall, if applicati~n is
(a) M'Mullen v. Sir Allred Bickman Steamship, Ltd., (71 L . J. Ch .
766) ; Dono. H3.
(b) Ibid. (p. 638) ; Dono, 124.
(c) Per Lnrd Loreburo, L. C., Speyer Brothers v. Commissioners, [L.
R (1908) A. C. 9:J] ; Dono. 115.
(d) Landowners West of England and Co . v . Ashford, (L. R. 16 Ch .
411) ; Dono, 147.
711
570 CH. XXVI.-STAMP LAWS.
made in writing to the Commissioner of Stamps for that pur--
pose and on production, of both the instruments, be denoted
upon such first-mentioned instrument by endorsement under-
the hand of the Commissioner of Stamps, or in such other
manner (if any) as the Governor in Executive Council may
by. rule prescribe (a).
The method of denoting prescribed here is endorsement (a).
In England denoting stamps are used. The cases in which
they are resorted ta those of duplicates, counterparts, collateral,
securities, securities by way of further ch,uge, substituted
securities to bearer, and conveyances made in pursuance
of a contract upon which ad va lorein duty has been paid (b) .
It has beerr held that documents stamped with a 'denot -
ing stamp ' by the Comrqissioners of Inland Revenu annot-
be objected to when tendered in evidence as being improperly
stamped (c).
If a stamp were affixed . and cancelled immediately after
the signature, the signing and the stamping being continuous
acts in the same transaction, it would be sufficient compliance
with the section (d) :
Secs. 30 to 32 provide that the opinion of the Commis -
sioner regarding the stamping of instruments ma.y be obtained
on a fee of R,. 5 and that if one is not satisfied with that.
opinion ha may appeal to the Supreme Court within ten
days of his receiving the written opinion from the Commis-
sioner.
Foreign stamp laws.-One nation or country does not
take notice of the revenue laws of another. If, however, a
contract is void by reason of being insufficiently stamped
in the place where it was made, it cannot be sued on
(al Seo. 13.
(b) Alpe ; Dono, 180.
(c) Prudential Mutual Aesuranoe v. Carzon, (8 Ex, 97); Dono. 131.
(d) Burji Mull v, Hudson, (24 Mad. 259) ; Dono, 1131,
GJJ:NERAL. 571'.
anywhere. But such a document can be admitted in evidence ,
in the other country {a).
Every charge upon the subject must be imposed by
clear and unambiguous language. A taxing statute is to be
interpreted upon the same principle, and by the same rules .
as any other statute (b).
,r
In interpreting statutes relating to the revenue, the,
popular sense of the words rather than their strict legal,.
meaning should be looked at (b).
It is incumbent on the Crown, when claiming the tax, .
to make out affirmatively that ti.la case falls within tbe ,
statute (c). H is a wholesome principle which has often
been ognised, that taxing acts must be reasonably clear
and precise as to the subjects which are intended to be ,
taxed (d).
Where any instrument specified in Schedule B, part I ,
(not being a draft, order or promissory note for the payment of
money or a receipt or discharge for or upon the payment .
of money) shall be exe" ted or acknowledged before a notary
public, or shall be executed before some public officer,
under the authority of the Ordinance No. 17 of 1852, entitled
" An Ordinance to make furhher provision touching the exe-
cution of certain Deeds and Instruments," or by any Fisca k
or Deputy Fiscal in the execution of his office, the stamp
duty hereby chargeable on such instrument shall be chargeable
on the duplicate or counterpart thereof, instead of on the
original instrument, and in such case, if the duty exceed the
sum of Rs . 5, the original instrument shall bear a stamp of one.
rupee.
(a) Beal on Cardinal, Rules on lQterpretation, 2nd Edn.,.
pp, 106 and 107,
(b) Beal. 486.
(c) Beal. 441.
(d) Beal, 442,
 '572 CH. XXVI.-STAMP LAWS.
lI.-Schedule B, Part I of Stamp Ordinance No. 22
of 1909 as amended by Ordinances 10 of 1919
and 32 of 1919 annotated.
Date of commencement--10 of 1919 --1st July 1919;
., - -32 of 1919--16th Feby. 1920.
. SCHEDULE B.
Part !.-Containing the Duties on Instruments of Con-
veyance, Contract, Obligation, and Secm;ity for Money; on
Deeds in general ; and on other Instruments, martters, and
tl:i,ings not falling under any of the following heads.
Part IL-Containing the Duties on Law Proceedings,
in the Supreme Court, District Courts, Courts of Requests,
-a,:i;ig
and Police Courts respectively.
Part III.-Containiog the Duties in Testamentary Pro-
ceedings.
Part IV.-Containing the Duties in respect of Service
,of Processes in District Courts.
Part V.-Miscellaneous.
PART I.
CONTAINING THE DUTIES ON INSTRUMENTS OF CONVEY- .
ANOE, CONTRACT, OBLIGATION, AND SECURITY FOR
MONEY ; ON DEEDS IN GENERAL; AJSD ON OTHER
INSTRUMENTS, MATTERS, AND THINGS,
1. ACKNOWLEDGMENT OF A DEBT amounting to Rs. c.
Rs. 20 or upwards in amount or value,
written or signed by or on behalf of a debtor,
in order to supply evidence of such debt in
any book (other than a banker's pass book)
or on a separate piece of paper when such
book or paper is left in the creditor's
possession 0 6
Notes.-!. O. U. does not oome within the operation of the
..above provisions, and was therefore not liable to stamp duty.
admissible as evidence of an account stated (a).
la) Odris v. Pieris, (1893) 3 C,L,R. 14..
SCHEDULE B, PART . I OF STAMP ORDINANCE. 573-:
An I. O. U. in not an agreement to pay and therefore requires no,
stamp. If a promise to pay a creditor or bearer be added it becomes a
promissory note (a).
An allow11.nce of an account stated is not a receipt and does not
require a stamp (a) .
An acknowledgment of a debt so as to take the oa.se out of
prescription requires no stamps (b),
An acknowledgment must be signed by or on behalf of a debtor
to indicate his assent thereto (c),
Where certain words were written at the commencement and also at
the end of a ietter, neither of which was an actual signature of the name
of the writer, they were held to constitute an acknowledgment of a .
debt (d).
Whetb~r an aooount signed by debtor in the books of his creditor
amounts to an acknowledgment, within the meaning of Art. I, is
a question depending in eaoh oase upon the form and intention of the--
entry (e).
An acknowledgment of a debt within the meaning of Seo. 19 of the
Limitation Act woui'd not necessarily be liable to duty under Art, 1. (t)
The principle in Seo, 22 re not ch1uging duty on interest has been ,
applied to the oase of an account stated and signed by a debtor and ,
stipulating for payment of interest (g).
Duty.
2. AFFID.AVIT, affirmation, or declaration made for Rs. c ..
the purpose of being filed, read, or used in
any court of justice in this Island, not other-
wise provided for in Part II 1 O
Duty. 1t
3. AFFIDAVIT, affirmation, or declaration not made
for the purpose of being filed, read, or used
in any court of justice in this Island 1 0
(a) 1 Euoy. 220.
.
(b) l Cr. 32.
(c) Nand Ram v . Ram Prasad, (2 All. 641) ; Donogh, 235.
(d) Gangadharrai Venkateah v. Shidramapa Balapa Desai, {18 Brim.
586) ; Donogh, 235.
(e) Binjaram v. Rajmohun Roy, (8 Cal. 282) ; Donogh, 235,
It is
(/) Ambica Dat Vyas v. Nityanund Singh, (30 Cal. 687); Bishamber-
Nath v. Naud Kishore, (15 All, 56) ; Donogh, 236.
(g) Girdhar Naran v Umar Aju, (4 Bom. 326).
 OIL XXVI.-STAMP LAWS.
Exemptions from the preceding and all other
Stamp Duties.
Affidavits, affirmations, or declarations requir-
ed or authorized by law to be made in
criminal matters ; affidavits, affirmations,
or declarations on the assumption of any
office under Government, or for the verifica-
tion of any public accounts, or to be made
pursuant to this Ordinance in . regard to
flxchange of spoiled stamps, or for tbe sote
purpose of enabling any person to receive
:any pe9sion or charitable allowance; affi-
davit, affirmation, or declaration required
to be made under the provisions of " Tbe
Widows' and Orphans' Pension Fund
Ordinance, 1898."
Affidavits filed for the purposes of proceedings
under Chapter XL" of the Civil Pr.oceilure
Code.
" Exemptions from the preceding and all
other Stamp Duties " (32 of 1919, Sec. 4}.
Declaratfons made in compliance with, or
under the . provisions of, Ordinance No. 17
of 1869, intituled " An Ordinance for the
General Regulation of Customs in the
Island of Ceylon."
Declarations made under section 21 of Ordi -
nance No. 13 of 1889, as amended by " The
Indian Coolies Ordinance, 1909."
Declarations made o.nder sections 12 (2), 14
and 25 of "The Marriage Ordinance, 1907."
.Declarations made by a consignor of petrol
for conveyance by rail under " The Ceylon
Railways Ordinance, 1902."
SCHEDULE . 13-, PART I OF STe\MP ORDlNANCE. 575
Declarations made by candidates on applica-
tions for permission to compete for the
entrance examination for employment in
the Third Class of the Railway Olericai
Service.
A joint affidavit by two verso~s has been held to require but one
atamp (a) .
Duty.
-4. (a) AGREEMENT or contract, or any minute or Rs. c.
meqiorandum of any agreement in this Island
(and . not otherwise charged nor expressly
exempted from all st amp duty) , whether the
same shall be only evi oence of a contract, or
obligatory upon the parties, from its being
a written instrument 0 50
Exemptions from the preceding and all other Stamp Duties.
Agreement or covenant secured by a mort -
gage contained in the same instrumen~
therewith, such instrument being duly
stamped as a mortgage ,
Memorandum or agreement for the hire of
any labourer, artificer, manufacturer, or
menial servant.
Memorandum, letter, or agreement for or
relating to the sale of any goods, wares, or
merchandise.
Letters containing any agreement (not
before exempted) in respect of any merchan-
dise, or evidence of such an agreement whicl1
shall pass by the post between merchants
or other persons carrying on trade or
commerce in this Island, and residing and
actually being at the time of sending such
letters at the distance of 20 miles from e~ch
other .
(a) Reversionary Interest Society v. Commissioners, (22 T.L.R. 740);
.Donogh, ll38.
 576 CH , XXVI.-STAMP LAWS.
Duty,.
Memorandum or agreement made between Rs. c~
the master and mariners of any vessel or
boat for wages.
,.A.greement made in oompliance with or
under the prov1s1ons of the Mercantile
Shipping Act.
Agreement to marry, not containing any
settlement or transfer of propertY..
Agreements made in compliance with, or
under the provisions of; Ord. No. 17
of 1869, intituled " An Ordinance for the
General Regulation of Customs in the Island
of Ceylon." [32 o( 1919, Sec. 4 (9.)].
(b) Agreement for transfer or mortgage 9f any
immoveable~property 10 o,
A mere proposal or offer until aooepted amounts to nothing. If
accepted iO: writing, the offer and acceptance together amount to an
agreement; but if accepted by parol, such acceptance does not convert .
the offer into an agreement or into a memorandum of agreement,
unless, indeed, after the acceptance something is said or done by the
partks to indicate that in the future it is to be so considered (a),
An Engineer in a factory is an artificer and the agreement he enters
service falls within the exemption (b).
An agreement for the sale of goods need not be stamped (c).
An agreement to deliver je.welry on marriage requires stamping (d).
An agreement to allot space in a book and tor t,he sale C1f ~he book
need not be stamped (e),
Au agreement to draw toddy. as a labourer, is exempt from stamp
duty; it creates no interest in land If).
(a) Per Hawkins, J., Carlill v. Carbolic Smoke Ball Co., L. R, (1892)
2 Q, B. 490; Donogh, 240,
{b) (1905) Lemb, 13.
(c) Kartigesar v. Katirgamer, (1883) 5 S C,C, 123.
(d) NatohiB v. Ismail Lebbe, (1896) 2 N.L.R, 275,
(e) Lloyds Greater Britain Publishing Coy, v, Di11,s, (1910) 13 N.L,R ,.
94; 2 Cur, L,R, 132.
(fl Mathes v. Mathes, Ram., (1863,68) 182; D. C,, Kalutura ,.
No, 8438, (S.C, Judgment).
SCHEDULE B, PART I OF STAMP ORDINANCE. 577
Agreements to raise the rate of interest, say from 6 per cent , in a.
bond to IO per cent. or so, and agreements to rectify an error in the
description of lands in a deed have been accepted by the Registrar General
as agreements under this article.
Instruments appoiot ing brokers to sell the produce of an estate being
of the nature of a contract comes under thfa article and not under
article 6.
The following have been held to be agreements requiring t'o be
stamped under this clause.
(1) A postscript to a document stipulating that t he defendant should
return two promissory notes deposited with him as soon as a certain
house was given up to him in good order (a),
(2) An instrument whereby a person oontraoted to serve a railway
ool;n.p,rny, for four years exclusively under a penalty of 100 (b) .
(3) A prospecting license, even though rent be reserved (ci.
\4) An instrument which acknowledged receipt of a sum of money
and provided for the payment of interest at a spwified rate (d/,
15) A contract oontaining a stipulation that an Engineer should
retain 10 per cent. of the value of wo rk do ne by a co ntractor to cover
compensation for any default by him, and as security for proper
performance of the contract le),
(6) An acknowledgment of a debt containing a provision for the future
payment of interes t (j),
T he following h,ave been held no t to be agreemen ts requiring to be
stamped:-
(1) Letters written by parties authorisi ng arbitrators to arbitrate
between them, although together they might be ueed as evidence of a.
verbal agreement to eubmit to arbitration (g) .
(2l Negotiations with a baoker for a loan preliminary to the
execution of a formal documet (h),
(3) An offer to sell or an option to purchase (i).
(a) Motilal v, Munshook Kuramchand, (4 Bom, 328); Donogh, 240,
(b) Madras Railway Co, v, Rust, 14 Mad, 18,
le) Not, No, 1677 8.R.. 10th April, 1902; Donogh, 241.
(d) Ferrier v. Ram Kalpa Ghose, 23 W.R. 403,
(e) Ref. (7 Mad, 209); Donogb,, 241.
(f) Laxumibai v; Ganesh Raghnuth, (25 Born, 373) ; Mulohand
.Lala v. K!!shiballav Biswas, (35 Cal. 111),
(g) Ganharam Kushaba v. Narayan Babaji, (19 Born, 32).
(h) Rajeswar Bagohi v, Emperor, 21 O,W.N, 758,
(i) Hiiby v, Mathews; L,,R, (1895) A.C, 471.
73

578 CH. XXVI.-STAMP LAWS.
(4) An adverti~ement offering a reward of l00 upon a certain
1lVent (a).
"Otherwise provided for ".-An agreement in writing to lease is
chargeable as a lea8e (b).
The expression "goods and mernhandise" is not an equivalent for
moveable property. but is borrowed from the English Stamp Act, the
language of which is again taken from that of tho Statute of
Frauds. The c~ses npon the distinction (often a fine one) between the
sale of goods and merchandise in the shape at trei,s and oth~r produce of
land to be cut and removed and a contract for an interest _in land will be
found collected in Benjamin on Sales (c).
An agreement to deliver cotton in exchange for cotton seeds would
not come within the exemption, for it would not refate to a sale but to an
exchange of goods (d),
Gu1Hantees as a rule must be stamped s.s an agreement. A guarantee
for the payment of goodo, however, need not be st-amped as it is an
agreement relating to the sale of goods (e).
Guarantee of performance of contract by hirer rrquires stamp (f),
Consent by ownar of food through which riew highway is proposed to
be made requires stamp as for an agreement (g).
Guarantee by a Colliery Coy. as to loading of ooal~Stamps as for an
agreement (h).
Guarantee to shipowner for the due ' fulfilment of .a charter-party by
the charterer-Stamp as for an agreement ; it is not liable to etamp duty
_ as a charter-party (ii,
A letter of guarantee which is chargeable under Art. 4 (a) is also
distinguishable from an indemnity bond. "There is a plain distinction
between a promise to pay the ctaditor if the principal debtor makes
default in payment, and a promise to keep a person who has entered, or
is about to enter, into a oontraot of liability indemnified against that
(a) Carlill v, C:trbolic Coy., L.R. 2 Q. B. mo.
(b) Donogh, 24ll,
(c) Per Farran, CJ., Vohra M:thamadali v. Ramchandra, 32 Born.
187.
(d) Samratmal Uttamohand v. Govind, 35 Bom. 696; Doncgh. 243.
(e) See Chatfield v. Cox, (18521 18 Q. B. 3~1; 6 Ency. 190.
(f) 6 Ency. 469,
(g) 6 Ency. 375.
(hi 14 Ency. 124,
(i) Rein v. Lune, (1867/ L.B. 2 Q .B. 144; 14 Ency. 125,
SCHEDULE B, PART I OF STAMP ORDINANCE. 579
liability independently of the question whether a third person makes
-default ur not " (a),
A contract by which one party promises to save the other from Joss
caused to him by the oonduot of the promiser himself. or by the conduct
-of any other person is called a "contract of indemnity " (b).
It is presum9d that to convert such a contract into a bond there
must be superadded an obligation to pay money, otherwise it would be
-chargeable only as an agreement, as in the case of an indemnity note (c).
In tho oase of an agreement to assign a lease, where the parties agreed
'by an endorsement to enlarge the time for performance, it wa.9 held to be
-a fresh agreement which required a fre sh stamp (d).
Where three persons bound themselves that, in consideration of A.'s
-discharging a debt due from B . ta C. and costs thereon, each of the three
would severally pay 50 and one-lourtb of such costs, and give a bond,
bill or note for his own proportion, it was held that thia was onlv one
,transaction and required only one stamp (e).
Community of iuterests.-An agreement by several for a subscription
to one common fund, such as for making a wet dock, though several as to
each subeoriber; needs only to be siamped as one instrument (f).
Aud so an agreement relating to the prize shares of different persons,
though several as to the share of each, yet as payable in respect only of
-one entire fund, was held to be chargeable with one stamp (g),
Wher~ ferlain terms of agreement were proposed in a letter, and the
person to whom it w"s sent agreed to the term, by a memorandum
written and signed by him at the foot ol it, and subsequently his lather
wrote on the back of the letter ,. guarantee for perlorm11,nce of the 11gree-
ment, it was held tha.t one sta mp was sufficient, as tho whole of the
-instrument containing the guu cL ntee mu; t be ta.ken together ae forming
one transaction (h).
In Skrine v. Elmore. (18101 2 Camp, 407, it was held that a receipt
:for the price of a horse containing f\ warranty of soundness might be read
.in evidence to prove the WMranty, without being stamped with an
(a) Per. Davey, L.J., Guild & Co. v. Conrad, [L. R. (1894) 2 Q_,B.
.896]; Dono, 271,
(b) Indian Contract Act (IX of 1872), Sec. 124.
(c) Dono, 271.
(d) Bacon v. Simpson, (2 M. & W. 78); Dono. 127,
(el Ramsbottom v. Davis, (4 M. & W. 584); Dono. 112.
(f) Davis v. Williams, ( 13 E'i>st 232) ; Dono. 11 \!,
(g) Baker v. Jardine. (Id, p. 235, n); Dono. 112,
{h) Stead v, Liddard, (8 J,B, Moore 2) ; Dono. 110.
 SCHEDULE B, PART I OF STAMP ORDINANCE. 581
580 OH. XXVI.-STAMP LAWS.
In contracts of carriage of goods the value of the subject-witter for
agreement stamp, as being an agreement '' relating to the sale of goods,. -the purpose of stamp duty is the freight obarged (a).
wares and merchandise.'' Contracts for the sale of choses in action is stamped in England 11s
A warra1;1ty is defined as "-An agreement with reference to goods conve:yanoes, the reason heing that the contract operates as frn agsign-
which are tbe subject of a contract of sale, but collateral to the main ment (b).
purpose of such contract" (a).
Clauses referring future disputes to arbitrators inseited in any instru-
Agreement between a Gas Company and a private consumer for a . ment. The stmp on such instruments is regulated by the substantial
supply of gas by meter-No stamp, as being an agreement. relating to the -object of the instrument. No additional stamp will be rE:quired on
sale of "goods; wares and merchandise" (b). . account of f,he arbitration clause (a),
For an agreement between a Local Theatre Mariager and a Touring Agreement Lo refer all existing differences to a single arbitrator
Coy. allowing the use of the theatre, providing lights, &o., on payment of requires an agreement stamp (d).
rent, and the Coy, agreeing to play, &c -Stamp is probRbly as for an
Duty.
a~reement, but adjudication should be obtained (c),
<5, AGREEMENT to secure the repayment of a loan Rs. c.
An agreement for JJersonal service at a salary (not b~ing !In agreement
for the hire of a labourer, artificer, &c.) is liable to the agreement stamp - made by hypotbecation of title deeds or other
and such stamp has been held to be sufficient (dJ, valuable security, or upon the hypotheoation of
If the rem~neration is not any definite sum, as, for instance, if it is moveable property when such loan is repayable
by way ol commission or percentage of profits, the instrument will be within one year and is-
properly stamped as an agreement (e). Over Rs. 0 and not over Rs. 1,000 1 0
A hire-purchase agreement is chargeable with _etamp duty as an OvGr Rs. 1,000 do. Rs. 2,500 2 50
agreement if.) no matter what the ,.value of the obligation undertaken, Over Rs . 2,500 do. Rs. 5,000 5 0
thereby is (g),
Over Rs. 5,000 do. Rs. 7,500 7 50
If the hire-purchase agreement should amount to an agreement to- Over Rs. 7,500 do. Rs. 10,000 10 0
buy, it will be exempt from doty as being an agreement for the sale of
Every further Rs. 1,000 or part thereof 1 0
goods (h),
An actual conveyance of goods, wares or merchandise does not appear See exemptions under Bond.
to be exempt from stamp duty, although an agreement relating to the -
In India these agreements are stamped as a Bill of Exchange. Stamp
sale is so exempt (i). .
Au agreement for the sale of a crop, which is a oontraot for an ,
interest in land will require an agreement stamp , But if the crop is in
,Act of 1st March 1912, Under valuable security are included stocks,
-.s hares, debentures, debenture stock, policies of,insuranoe, bonds, etc. (e). .
This agreement if it should affect the laws referred to in the title-
the nature of chattels no stamp is required being an agreement for the ,
deeds, it should be notarial under Ord. No. 7 of 1840.
sale of good a (i).
Hypothecation of moveable property to be of any effect, should be in
,terms of Ord. No. 8 of 1871 (f),
(a) 1 Ency. 203.
There is no provision for 011ses of loans~repayable after one year,
(b) 15 Ency, 255.
(c) 14 Ency. 289.
(d)
(e)
Moutsey v. Stephenson, (1827) 7 B, &.C. 403.
13 Ency. 43. . (a) 3 Enoy. 166.
(b) 3 Ency. 513, 514.
(I) 16 Ency. 299, (c) 2 Ency, 90 {n),
(g) Cassels, 9, (d) 2 Ency. 106 (o),
(h) 6 Ency. 453. See Lee v, Butier, (189'!!) 2 Q. B, 318, (el Gibs. \150.
(i) Hogg 180 (n), (f) See also Chapter on Registration, supra.
(j) 5 Ency. 359,
 SCHEDULE B, PART I OF STAMP ORDINANCE. 583,
582 CH. XXVl,-STAMP LAWS.
-property, it will be subject to the stamp duty of 1, whether under seal or
"The most oommon class of oase to whioh this article would apply-
not (a).
would be that of an ordinary equitable mortgage by deposit of title-deeds,
aooompanied by a memorandum of charge,. (a), An appointment of new trustees is not a settlement (b).
The provision in the English Aot from which this clause is taken is- A settlement made !or a bona fide pecuniary consideration is rare (c).
as follows:-" For the purpose of this Act the expression 'equitable
Trust deed endowin homes already established-Stamped as settle -
mortgage' means an agreement or memorandum under hand only, relat-
ing to the deposit of any title-deeds or instruments constituting or being ment (d).
evidence of the title to . any property whate ver {other tbau stock or Deed-poll declaring trusts for the establi8hmeot and maint~n~noe of
marketable seourity), or oreating a charge on suoh property, 11 -Sec, 86 - a Library of Eoonomio Science. Stamp, ad valorem, on the defimte,sum of
(2), (bl mon ey settled and 10 sh. in respect of the decluation of trust of books,
Hypotheoation is the act of pledging a thing without parting with - furniture, &~. (e),
the possession (c), No stamp is required on an appointment of an umpire or third arbi -
The distinction observed in the R0man Law between a pledge or trator (f).
pawn (pignus), where possession was given of the goods, and a hypothEoa-
Appointment of guardian of bis or her children alter his or her decease
tion (hypotheoa), where it was not given has now, however, been lost -
sight of. "Tbere are few oases, if any, in our Jaw, where an hypothcoa- requires no stamp (g),
tion, in the strict sense of the Roruan Law, exists ; that is a pledge without Appointment of a parish olerk by the vioar-Stamps as for an
possession by the pledgee, and there are rather oase~ of liens or privileges . appointment, &o,
than striot hypothcoations (d),
Form.
Duty.
Know all men by these presents that I--vioar of the parish of--
6. APPOINTMENT in execution of a power, whether Rs. c. hereby appoint-of -to be the olerk of th~ sa id parish with &II right ,
of trustees or of any property; or of any use or fees and emoluments appertaining to that office (h),
interest therein, when made by writing, not a
Duty,
will 15 O,
7. APPRAISEMENT of valuation of any estate or Rs. c.
Where a man is invested with power to determine the disposition of
property of whioh he is not the owner, he is said to have power to appoint effects, moveable or immoveable ; or of 11ny
such property, Indian Succession Act, (Z ol 1895), Sec. 56. (~} interest therein ; or of tbe annual value
A settlement made by trustees in favour of a particular charity in thereof; or of any dilapidations; or of any
exe<Jution of a general power conferred by a testamentary disposition of ' repairs wanted ; or of tbe materials and labour
property to charitable uses was held to be chargeable under this article (f), used or to be used in any buildings ; or of any
The appointment under the statutory power, and usually under artificer's work whatsoever. Where the
express powers, of appointing new trustees, need not be under seal. If
the appoictment is made by deed the form of an indenture is the most
convenient. Since the instrument operates as a conveyance of the trust . (a) Hogg. 467,
(b) Viscount Masserene v. Commissioners of Revenue, (19001 ll Ir. R ,
(al Queen-Empress v, Debendra Krisma. Mitter, 27 Cal. 587 ;: 188 ; 13 Enoy, 286.
Dono, 246. (cl 13 Ency. 285,
(b) Dono, 246.
(d) 8 Ency. 841.
(cl Wharton ; Dono, 246. (el 3 Enoy. 421,
(f) Routledgev. Thornton, (1812) 4 Taunt. 704.; ll Ency, 134.
(d) Dono, 246,
(e) Dono, 247. (gl 6 Ency. 564.
(/) In re Abdull.a Haji, (85 Bom, 444) ; Dono, 247, (hl 8 Enoy. 720,
 584 OH. XXVI.-STAMP LAWS. SCHEDULE B, PART I OF STAMP ORDINANCE. 585
Duty. Duty.
amount of such appraisement or valuation Rs. c. :8. (1) ARTICLES OF APPRENT!Cl!:SHIP relating to Rs. c.
shall be- the service or tuition of any person intending
Over Rs. 0 and not over Rs. 100 0 25 to qualify as a notary or apothecary 100 0
Over Rs. 100 do. Rs. 200 0 50 (2) ARTICLES OF 4,PPRENTJCESHIP, including
Over Rs. 200 do. Rs. 300 0 75 every writing relating to tbe service or tuition
Over Rs. 300 do. Rs. 400 ] 0 of any apprentice, clerk, or servant placed
Over Rs. 400 do. Rs. 500 1 25 with any master to learn any profession,
Over Rs. 500 do. Rs. 1,000 2 50 trade, or employment except that of a notary
Every furbher Rs. 500 or part thereof 1 25 or apothecary 10 0
Provided that the duty on any one appraise-
'9. ART!CLES OF APPHENTICESHIP or contract
ment shall not exceed Rs. 10.
relating to any such service or tuition as is
Exemptions. mentioned in 8 (1) or 8 (2) whereby any
person shall become bound for tbe residue of
Appraisements or valuations of any property
the term for which he originally contracted
belonging to, or to be acquired by Gov(lrn-
in consequence of the death of his former
ment, or made by or at the instance of any
master, or of the contract between them being
Government officer in the execution of his
office. vacated by consent, or by rule of court, or in
any other event 10 0
Formal valuatioo of valuer on division of intermixed lands are
stamped. on the amounts of the valuations separately fa) . Notes on articles 8 and 9,
An 'appraiser' is a person who values or appraises any estate or This must be distinguished from hiring ngreements and agreements
property real or personal, or any interest, in possession or otherwise in any for service, which are chargeable under Art. 4 (a), The distinction rests
estate or property, or any goods, merchandise or effects, for or in e:rpecta- up on the words" place with any master to learn."
,t ioo of any hire, g., in, fee or reward (46 Geo, III, o. 43, Sao. 4), This has
Where the teaching aud learning were incidental to the contract it
been interpreted to mean a person who be1us the character or follows the
has been held to be a oontraot of hiring, But where they were the
,c alling or occupation of an appraiser (b),
principal object of the parties, although there was a service the contract
An 'appraisement' or 'valuation' to be oharge>ible under this Art. has been considered to be one of apprentioeahip (a),
must be made as between parties. It is distinguishable from an ' award ' Where it is evidently the intention of the p1utie,, the one to teaoh
though the duty is the same in both.
and the other to learn it must be considered a contract of apprentice-
Where an instrument 'appointed persons to settle an account of what .ship (b).
was due betweel<l the parties for the value of different articles,' it was An indenture ,whereby an a;;:prentice w:i.s baur::d to serve two masters,
held to be an appraisement '(c). ,c onsecutively, to learn two different trades, was held to require but one
,stamp (c),

(a) 5 Ency. 512,

(al King v. Inhabit>ints of Crediton, (2 B, & Ad. 493) ; Dono. 249,
(b) Per Lord Elle11borough, 0, J., Atkinson v. Fell,, {5 M. & S. 240) (b) King v. Inhabitants of Great Wishford, (5 L, J ., M,O., p. 26! ;
Dono, 248, ' '
Dono. 249,
(c) Leeds v, Burrows, 11! East, l; Dono. 248,
(c) King v. Iuhabitants of Louth, (8 B, & 0. 247) ; Dono. 249,
74
586 CH, XXVI.-STAMP LAWS. SCHEDULE B, PART r OF STAMP ORDINANCE. 587
An assignment of articles of clerkship to a solicitor requires a 10 sh. Duty ,
stamp (a), Rs. c,
Under the Cape Colony rules, on the death of an attorney (notary), Over Rs. ~50 and not over Rs, 500 0 25
his articled clerks can have their itrticles ceded to another for the- 0 50
Over Rs. 500 do . Rs. 1,000
remaining period without having to pay an additional duty (b),
Every further Rs. 1,000 or part thereof ... 0 50
An indwture by which an apprentice was bound for seven years, to
serve A. B. for the first four years, and his own fat,her for the last three,
Exemptions.
to learn two clif!erent trades, was held to require only one stamp,.
the whole being one transaction (c). All cheques drawn by army accountants on
Ditty. Imperial services.
Rs. c. All letters of credit, whether in sets or not,
10. ASSIGNMEN'.r.- See Transfer or Assignment. sent by persons in this Colony to persons
11. AWARD,-Otber than that~made in any cause 10 (), out of the same, authorizing drafts on the
British territories in India or in Ceylon, or
Award, that is to say, any decision ia writing by an arbitrator
or umpire on a reference made otherwise than by an order of the- any otber of His _Majesty's colonies or
Court in the course of a suit. foreign possessions,
This provision relates only to private awards (d). " Bill of exchange " means a bill of exchange as defined by " The
The appointment of an umpire by arbitrators would not be- Bills of Exchange Act, 1882" (45 and 46 Victoria, chapter 61), and.
chargeable under this artiolo (e), any other document entitling or purporting to entitle any person whether
named therein or not to payment by any other person of, or to draw upo n
Letters written by parties ' au t horising arbitrat ors to arbitrate - any other person for, any sum of money .-Seo. 3 (3) .
between them do not require to be stamped If).
" Bill of exchange payable on demand " includes-
12, BANKER'S LETTER of lien or banker's trust (a) An order for the payment of any sum of money by R bill
receipt. The same duty as on an agreement. of exchange or promissory note, or for the delivery of any bill of
exchange or promissory uote in satiefaotion of any sum of mJney, or for.
13, BILL OF EXCHANGE payable on demand 0 & the payment of any sum of money out of any particular fund whioh may
or may not be available, or upon any condition or contingency which..
Bill of exchange, promissory note, draft, or
may or may not be performed or happen ;
order for the payment at any time (b) An order for the payment of any sum of money weekly, monthly,
otherwise than on demand to the party or at anv other stated periods ; and
named therein, or the bearer, or to order, (c) ~ letter of credit, that is to say, any instrument by which-
of any sum of money- one person authorizes another to give credit to the persoo in whose !a.vour
Over Rs. 0 and not over Rs. 100 0 Hr it is drawn.-Sec, 3 (4),
Over Rs. 100 do, Rs. 250 0 15, " Promissory note" means a promissory note as defined by "The -
Bills of Exchange Act, 1882" (45 and 46 Victoria, chapter 61) ; it also -
(a) 2 Ency, 43. includes a note promising the payment of any sum of money out o! any
(b) Van. Zyl. 65, particular fund which m1.y or may not be available, or upon any
(cJ Rex, v, Inhabitants of Louth, (8 B. & C. 247); Dono, 111. condition or contingency which may or may not be performed Of"
(d) Dono, 251. happen.-Sec. 3 (21),
(e) Routledge v. Thornton, 4 Taunt, 704 ; Dono. :251. " Cheque" means a bill of exchange drawn on a specified bank and,
(f) Gangaram Kushaba_v. Narayan Babaji, 19 Bom. 32 ; Dono, 25:li. not expressed to be payable otherwise than on demand,-Bec, 3 (8). , .
 -588 OH. XXVI.-STAMP LAWS.
Mere obits addressed by a trader to a person who had arranged
to le12d him money as required, and given to the trader's creditors,
from time to time, for payment of sums of money in satisfaction
of his trade debts could not be regarded as cheques ohargeable with
duty, the lender not being a banker (a).
When a bill of exchange is drawn in a set according to the custom of
m erchants, and one at.the set is duly stamped, the other or others of the
set shall, unless issued or in some manner negotiated apart from the
stamped bill; be exempt from duty; and upon proof of the loss or destruo-
tion of a duly stamped bill forming one of a set, any other bill of the set
which has not been issued or in any m11,nner negotiated apart from the
lost or destroyed bill may, although unstamped, be admitted in evidence
to prove the contents of the Jost or destroyed bill.-Seo, 62,
. The first holder in Ceylon of any bill of exchange, oh,!)que, or pro-
missory note drawn or made out of Ceylon shall, before he presents the
s ame. for aooeptanoe or payment or endorses, transfers, or otherwise
negotiates the same in Ceylon, affix thereto the proper stamp and oancal
the same.
Provided that-
. (a) If, at the time any suoh ~ill of exoh11nge, oheque, or note oome
8
_'.uto the hands of any holder th~reof in Ceylon, the proper adhesive stamp
1s affixed thereto and cancelled 1n manner prescribed by Seo. 9, and suoh
holder ~as no reason to believe that suoh stamp was affixed or cimoelled
otherwise than by the person and at the time required by this Ordinance,
suoh stamp shall, so far as relates to such holder, be deemed to have been
duly affixed and cancelled ;
. (b) Nothing contained in this proviso shall relieve any person from
-any penalty incurred by him for omitting to affix or cancel a stamp.-
-Seo. 18.
. When any bill of exchange, promissory note, or cheque chargeable
with the duty of five cents is presented for payment unstamped the .
t h t . , per
son o w om 1 1s so presented may affix thereto the n~oessary adhesive
stamp, and, upon oanoollrng the same in manner herein before provided,
. may pay the sum ~ayable upon suoh bill, note, or cheque, and may
-charge the duty agarnst the person who ought to have paid the same
deduQt it from the sum payable as aforesaid, and suoh bill, note,' ::
cheque shall, so far as respects the duty, be deemed good and valid _
Seo. 49.
(a} Rutulal Rangild~s v. Vrijbhukhan Parabhuram, (17 Bom.
6841 ; Dono, 57.
SCHEDULE B, PART I OF bTAMP ORDINANCE. 589-
Any person who-
(a) With intent to defraud the Government of duty , draws, makes,
or issues any bill of exchange or promissory note bearing a date subse-
quent to that on whioh such bill or note is actually d_rawn or made; or
(b) Knowing that such bill or note has been so post-dated, endorses.
transfers, presents for aooeptanoe or payment, or accepts, pays, or receives .
payment of such bill or note, or in any manner negotiates the same; or
(c l With the like inteut practises or is concerned in any act, con
trivance, or device not specially providsd for by this Ordinance or any
other law for the time being in foroe-
shall be punishable with fine which may extend to one thousand
rupees.-Sec, 64.
To render a foreign bill admissible in evidence, it is not necessary for
the hold er to show that the proper person affixed and oanoelled the stamp .
provided it is properly affixed and stamped (a).
A promissory note made in Jamaioa , and whioh by the laws of that .
islan d was void for want of a stamp, was held to be inadmis,ible in
evidence in tho English Courts. "As it is not st>lmped it cannot be
received in evidence. Then it is said we oannot take notice of the-
revenue laws of a foreign country ; but I think we must resort to the laws
of the country in which the note was made ; aorl unless it be good t here, it
is not obliga tory in a Court here" (b).
This h>ls been explained thus-'' I agree that if for want of a stamp
a oontract ma,de in a foreign country ie void, it cannot be enforced bare.
But if th!lt case meant to decide, that where a stamp is required by the
revenue laws of a foreign State before document Cfln be received in
evidence there, it is inadmissible, I entirely disag ree . If that were so, it
would be impossible to get out of his dilemma, that if a document were
properly stamped acoorcliog to the law of this country, it could not be
given in evi dence here because it was improperly stamped according to
the Jaw of a foreign country where it was given (c)."
It is not necessary for Cour~s in this country , to oons ider whether a
power -of-attorney executed in England, but whioh is inte nded to operate .
in India complies with the _fiscal requirements of the Stamp Laws in
England, It is sufficient if it complies with the requirements of the
Indian Act, and is valid for the purposes it is i~tended to meet (d).
(a) Marc v. Rouy, (31 L. T . 372); Dono, 134.
(bl Per Lord Kenyson, C. J., Alves v. Hodgson, (7 T. R. 241) ;'
Donogh, 1011.
(c) Per Rolfe, B., Bristowe v,. ~equeville, 15 Ex. 271i) ; Dono. 10,2.
l :'l'~; (d) In the goads of Mo Adam, (5!3 Cal. 187) ; Dono, 1()3, ,
:590 CH. XXVI.-STAMP LAWS. SCHEDULE B, PART I OF STAMP ORDINANCE . 591
Foreign bill in a set of three-)nly one se.t need be stamped, unless -entitled to bil!s-of-ladior, which should be given in exchange for that
tbe others are separately negotiated (a). receipt (al,
Transfers o1 Bills of Exchange and promissory notes by endorsement The contract of affreightment by oh!lr ter-party (Art. 18) is to be
-require no stamp (b). -d istinguished from the oon trnct for conveyaooe of goods in a general ship
Bills, notes and cheques are, with certain exceptions, incapable of which is evidenced by the instrument known as a 'bill-of-lading' (b),
being stamped after execution, even upon payment of penalties and that There is some doubt whether a' bill-of-lading' prope rly so-called, is
the absence of a proper stamp is fatal to any claim on the instrument. -not confined to m aritime adventures; and whether an instrument so
'The e:r;oeption to t-bis rule aro foreign bills and notes coming unstamped to worded given by a boat-master in a ca.nal navigation, would operate in any
this country and bills payable on demand ; in the fatter case the person way except as a receipt or memorandum,
-t o whom such bill is presented for payment 1rnstamped ma.y affix a
This m~tter has been settle:i in India by a notification exempting
penny adhesive stamp, and thereupon pay the Bill ; but this does not
,so-called bills-of-l>lding issued hy [nlan1 S teflmer Companies from
relieve any previous party from pena.ltiea ; nor can an interveni ng bolder
- affix or canoe) the stamp on such a bill, and if he does so, the bill will duty (c),
be of no avail in his bands, nor even in those o! a subsequent bolder for Bonds.
value, and in good faith {c). Duty.
15, (a) WRlTING OR BILL OF SALE by way of pledge Rs. c.
Duty.
or hypothecation requiring registration under
l 4. BILL OF LADING of or for a.ny goods, merchan- Rs. c.
Ord. No. 8 of 1871; bond or mortgage
dise, or effects expoded or carried coastwise,
for any definite and certain sum of money,
for ea.ch pa.rt of every set 0 25
and affecting or of any immoveable property,
" Bill of lading " includes a " through bill of !fl ding," but does not where the sum shall be-
include a mate's receipt .-Seo, 3 (5). 1 0
Over Rs. 0 an d not over Rs. 50
A bill of lflding for imported goods is not liable to duty (d). 100 1 50
Over Rs. 50 do. Rs.
If a bill of lading is drnwn in puts, the proper stamp therefor must Over Rs. 100 do. Rs. 200 3 0
te borne by each one of the set, Rs. 300 4 0
Over Rs. 200 do.
The transfer of a bill of la.ding by endorsement requires no stamp (el. Over Rs. 300 do. Rs. 400 5 0
"Includes a through bill-of-lading, "-A througl;i "bill-of-lading "is Over Rs. 400 do. Rs. 500 6 50
one made for the carriage of goods from one place to another by s~ver!ll Over Rs. 500 do. Rs. 1,000 10 0
shipowners or railway companies (fl, Every further Rs. 500 or part thereof 4 0
'' Mate's receipt."-On dt11ivery of goods by a shipper to the
{b) Bond or mortgage not affecting land, given as
shipowner or his agent, the shipper will, unless there is a custom of the
-port to the contrary, obtain a document known as a ' mate's receipt.' As security for the payment of any definite and
.a general rule, the per.son in possession of the mate's receipt is the person certain sum of money, where the sum shall
be-
(a) Stamp Act of 1891, s, 39; 2 Ency. 511,
Over Rs. 0 and not over Rs. 100 0 50
lb) See infra, 22 Enmption,
(c) Bee Hobbs v, 0atbie, (1890) 6 T. L. R. 292 which was a case of a Over R9. 100 do. Rs. 200 1 0
<:Jieque; 2 Ency, 509, Over Rs. 200 do. Rs. 300 1 50
id) 14 Ency, 25.
(e) Dono. 253. (a) Borutton , ' Charter-parties,' p, 13ll; Dono, 47,
(/) Scrutton , 'Charter-parties,' (6th Ed.) p. 6!l l<'or an illustration, (b) Smith,' Mercantile Law,' (11th Ed,), pp. 357-399; Dono, 48,
,see Moore v. Harris, (L.R. 1 A.O. 318) ; Dono, !17. (c) Dono, !18,
 SOHEDOLE B, PART I OF STAMP ORDINANOE. 593
592 OH. XXVI.-STAMP LA \VS.
Duty.
. Duty . Rs. c,
Rs. c. (/) Bond or mortgage to secure the repayment
Over Rs. 300 aod not over Rs. 400 2 0 of money to be thereafter lent, advanced, or
Over Rs. 400 do. Rs. 500 . 2 50, paid, or which may become due u,p on an
Ovflr Rs. 500 do. Rs. 1,000 5 0 account current.
Every further Rs. 500 Cir part thereof 2 501
If the total amount of the money secured or
(c) Bond given in acknowledgment of advances to be ultimately recoverable thereupon shall
made or to be made on a forthcomin(J crop, be uncertain, and withont any limit 75 0
such advances being secured by hypotheca-
tion of the crop with or without personal Buff if the total amount of the money secured
security, and made payable on the realiza- or; to be ultimately recoverable thereupon
tion of such crop, but within a year , from shall be limited not to exceed a given sum,
the date of such bond. Where the sum to the same duty as on a bond or mortgage for
be lent shall be- such limited sum.
Over Rs. 0 and not over Rs. 1,000 2 o, When a bond and mortgage shall be contained
Over Rs. 1,000 do. Rs. 2,500 5 0 in the same instrument, and be given to
Over Rs. 2,500 do. Rs. 5,000 10 0 secure the same moneys, the bond only
Over Rs. 5,000 do. Rs. 7,500 15 0 shall be chargeable with stamp duty.
Over Rs. 7,500 do. Rs. 10,000 20 0
Every further Rs. 1,000 or part thereof. 2 O, (g) Bond for indemnifying any person who shall
1
,d) B on d or mortgage to secure the repayment have become bound as surety for the pay -
ment of any sum of money or the perform-
of money to be thereafter lent, advanced , or
paid, or which may become due upon an ance of any act 10 0
account current, together with any definite (h) Bond for further securing the repayment of
and certain sum already lent, ailvanced , or any sum already secured by a bond or
due. The same duty and conditions as to mortgage for , which an ad valorem duty
calculation of duty on the amount already bad been previously Pf!,id 10 0
leot, advanced , or due as on a bontl or a
mortgage of property for any definite and (i) Bond of any kind whatever not otherwise
ceriiain sum oi money, togefoer with a n charged in this schedule nor expressly
additional duty of 75 o, exempted from all stamp duty 10 0
(e) Bond or mortgage to sacure the repayment Provided that, except in cases wherein different
oi money to be thereafter lent, advanced, or allotments are treated and described as one
paid, or which may become due upon an property, and from their situation as respects
account current, together with any sum each other can be included in one survey, a
already lent, advanced, or due, where such bond or mortgage affecting more than one
sum is not ascertained 125 o, 76
,I
 594 CH. XXVI.-STAMP LAWS.
Duty.
and shall be liable to further duty as Rs. c.
follows:
Each additional land, where the aggrec:1at0
- sum recoverable upon the instrur:ent
does not exceed Rs. 100 0 25
Where it exceeds Es. 100 and does not
exceed Rs. 300
500
Where it exceeds Rs. 300 I 0
Exemptions from the preceding and all other' Stamp Duties,
,. Bond or mortgage made in pursuance of
covenants, or other agreei:uents on tbat
behalf, contained in some other instrument,
and without additional money consideration
if sucb ' other instrument has been stamped
with an ad valorem stamp duty on the
amount of the consideration for such bond " other party, or to m11ke 11ny shipments during the term of the contract
or mortgage:
Bonds or. mortgages giv_en by any Government
officer, or his sureties, for Ul8 due execution
of his office.
Bonds ?r mortgages of indemnity given to Fis-
cals or their Deputies, or officers in the
execution of their duty.
Bonds or morhgages given to any officer of
Customs i? his official capacity .
(j) Bond, BOTTOMRY, that is to say, any instru-
ment whereby the ma.star of a sea-going ship
borrows mone~ on the security of the ship
to enable him to preserve the ship or prose-
_cute her voyage.-The same duty as a bond
15 (b) for the same amount.
. Every instrument of mortgage ,ixecuted by a member of [I society
moorpomted under the Buildipg Societies Ord. No. 15 of 1891 in favour of
any such society shall be subject to only one-half of the stam d t
payable in respect of such bond or mortgage (a), p u Y
(a) Seo, 33 of Ord. No. 15 of 1891,
SCHEDULE B, PART I OF STAMP ORDINANCE. 595
Where interest is expressly made payable Ly the terms of an instru-
ment, such ins trument shall not be chargeable with duty higher than
-that with which it would have been chargeable had no mention of int'erest
'been made therein.-Seo. 22.
Bonds !He in the nature of agreements. They are, in fact, agreements
ol a particular form (a),
" An agreement to lend money does not ore ate an obligation to pay
money within the meaning of a Bond" (b),
~
Every promise and every set of promises, forming the oonsideration
for eaoh other, is an agreement (c).
_ Covenant with penalty attaohed.-This i3 an agreement to perform
a specified aot and in the event of non-performance to pay a sum of money
by way of damages ; whereas a bond ol. (al is an agreement to pay a sum
of money at all events save one, viz., the performance of the specified
act (d).
Where an agreement, which sets forth a oontraot for the sale and
delivery of 500 to 700 oases of hog's lard on certain t;rms, contained an
undertaking on the part of the seller, not to sell any hog's lard to any
without the consent of the purchaser, under a pen!llty of Rs, 5,000, by
way of liquidat ed damages, and a further condition of the purchaser's
liability to pay a similar sum to the seller by way of liquidated damages
in the event of his failure to take delivery under the oimtraot, it was held
to be an agr,e ement and not a bond (eJ.
And similarly, a oontraot for personal service whereby a carriage
,painter oon.t racted to serve a Railway Company exclusively for four years
under a penalty of 100 was also held to be not a bond hut an agree-
meut (/),
Bonds aud Mortgages.-The distinction between these two classes of
instrumenls appears to be that, while the one merely creates an obliga-
0
tion, the other not only oreates the obligation, hut seouree its per-
formance by a pledge of property (g),
And where a mortgage-bond contained certain conditions, whereby
the mortgagor engaged to pay to the mortgagee any costs incurred in
(a) Dono, 49.
(bi Par Boott, C.J,, Hitwardhak Cotton Mills Co. v. Sorabji, (33 Bom.
-428) ; Dono. 49,
(c) Indian Contract Aot (IX of 1872), Seo. 2 (e) ; Dono. 49,
(di Dono. 49,
(e) Robert and Charriol v. Shircore, (7 B. ;L. R. 510) ; Dono, 50,
(/) Madrns Railway v. Rust, (14 Mad, 18); Dono. 51,
-(g) Dono, 51.
 596 CH. XXVI.-STAMP LAWS.
euits brought against him, or any debts which he might pay off, it was,.
held that these stipulations did not separately constitute an indemnity.
bond (a).
In the oase of a document drawn thus: " We promise to repay,
with interest, the sum of Rs. 12-8, borrowed from you in the month of '
Falgoon of this year, consideration received in cash, In addition to this;
we promise to give nine ' pailies ' of ' nagli ' in the month of Falgoon of
this year, and on failure to give it (i.e., nagli), give wadh, at the rate of
quarter of a maund for every niaund per yeu ;" the first part was held to ,
be a u:oney-bond, and the second an agreement (b).
Acknowkdgment of a debt (Art. 1),-Any borld may contain an
acknowledgment of a debt as well as an undertaking or promise to pay,
e.g., " I acknowledge myself to be indebted to B. in Rs, 1,000 to be paid,
on demand for value received," The first cl.i,use contains a simple
acknowledgment of a debt ; the second would make the whole a promissory
note ; and if duly attested as a deed , the note would come within the,
description of a bond (c), [The bond may be executed without a notary
in India],
A mere covenant not to alienate_ any property of,he debtor until -.
payment of the money advanced would not constitu~e a mortgage (d).
A bond executed by A. as principal and B. as surety, whereby they-
were jointly and severally liable, contained an additional obligation by A.
to indemnify B against all loss secured incurred as surety, It was held'
that the whole appeared to have been.one transaction, the agreement to
indemnity being no doubt the consideration whieh included A, to beoome -
a surety, and that the bond was properly stamped as one instrument (e).
Where sixteen persons borrowed a quantity of rice from tho plaintiff
an~ executed a bond for the debt, showing how much , rice had been
borrowed by each of them, while they did not bind themselves to repay
the entire debt jointly and severally, it was held that the instrument
muet be regarded as comprising sixteen distinct contracts of loan for the ,
several quantities of paddy mentioned, and therefore, as including sixteen .
distinct matters (f),
(a) Damodar Gangadur v. Vamanrav Lakshman, (9 Bom , 435)
Dono, 52,
(b) Chimnaji v, Ramu, (4 Bom, 19) ; Dono, 55;
(c) Dono. 55,
(d) Gunoo Singh v'. Latafut Hossain, (3 Cal. 336); Najibulla Mulla ,
v, Nusir Mistri, (7 Cai, 196) ; Bhupal v. Jag Ram, (2 All, 449) ; Dono. 83~
(e) Annamdale v. Pattioon, (9 B.' and C, 919) ; Dono, llO,
II) Shabudin v, HirnakRajnak, (10 Bom, 47); Dono, 113,
SCHEDULE B, PART I OF STAMP ORDINANCE. 597
Where one oi the clauses of an instrument by which one party to the
i nstrument bound himself in the event of a breach on his p;ut of any of
the conditions thereot"to pay the other party a penalty of R s, 5,000 was
-.regarded as a bond , and whereas the instrument would otherwise have
been ohargeable, as an agreement, it was held that it was ch1ugeable
-under Seo. 7 with the duty leviablo on a bond for Rs, 5,000, i ,e,, with the
higher of the two stamp-duties (a),
Where an instrument, in consideration of moneys advanced by a bank
,purported tc create a trust in favour of the bank in respect of the ' 'stook-
in-trade, goods, chattels and effects'' of a certain business, it was held
that the document in question, was in fact a 'mortgage-deed' and must
,be stamped accordingly (b) .
Interest coupons, if not- issued with and attached to securities, has
- been held to be separately oh1ugeable (c) .
Where a, mortgage deed expressly secured the mortgagee's expenses and
interest, the payment by the mortgagor of all t1ues ou the mortga,ged,pro-
,perty, the expenses incurred by the mortga,gee in keeping up a policy of
insur1noe oompris6 in the security, it WEIS held, that as in each of these
-oa,ses tlie moneys expended by the mortgagee for tbese pu rposes would
have been charged by the law without any express words, the deed did not
require a,ny ad valorein duty in respect of the moneys so expended (d),
An agreement to plant secured by a mortgage for an indefinite sum is
.a bond "not provided for" and therefore chargeable under Art, 15 (i),
Under Seo, 6 of the ordina,nce comes the case of a contributory
-mortgage bond for Rs. 700 made up of Rs. 400 and Rs, 300 borrowed
from two persons respectively . It has to be stamped as two separate
deeds, But if, however, two persons borrow separate sums of money
-ea.oh mortgaging a piece of land of his own and undertake to rapay jointly
it 011,nnot be ta,ken as two transactions, It may be so if they undertake
each to pay only the money he borrowed. In a bond to secure future
advances up to Rs. 35,000, the grantor covenanted to repay the adva,ncea
.. and interest and bound himself in a penal sum of Rs, 70,000, The stamp
duty due is the ad valorein duty as on bond of Rs, 35,000 (e), -
A bond had a covenant to pay l ,\l50 and a mortgage securing suoh
payment, Held that it falls under the item not otherwise charged nor
expressly exempted,"
(a) Ref, (2 All, 654) ; Dono, 114,
(b) Secretary to Commissioner of Bait v. Orr, (38 Mad, 6!6); Dono.
~14.
(c) Australasian Mortga,ge and Agency Co, Commissioners, (26 So,
L, R, 47) ; Dono. 137.
(d) Lawrence v, Boston, (1851) 7 Ex, 28 ; Norton, 113,
(e) In re Usoof, (1880) 3 S.C ,C. 140 (under 15 f, 3 para),
 598 CH: XXVI._:.STAMP LAWS.
The sum of 1,250 mentioned in the bond is not a sum of money in,
ter.m s of the Stamp Ordinance, f;r sovereigns, not ~eing a legal tender in,
Ceylon, !)annot be regarded as " money" but as a mere marketable oom --
modity of fluctuating value (a).
But by Ord. No. 211 of 1909 "money" includes all sums, whether
expressed in Ceylon, British, foreign or. colonial ourrenoy (b).
lndemnity.-As to stamp on instruments of indemnity, it seems that.
if the indemnity is in theform of a personal contraot only, not contain-
ing any covenant to pay any definite and certain sum, then the stamp
should be as for an agreement, If a mortgage or security on property is .
given by way of indemnity or if the instrument contain a covenant to pay
any definite and certain sum-though of oourse contingeutly payable--
then the instrument should, semble, be stamped with an ad valorem mort-
gage or covenant stamp on the agreed or estimat~d amount of the liabi--
lity intended to be covered by the indemnity (c). [For further distinc-
tion , see Art, 4 (a) notee,]
Mortgage by a purchaser to his vendor, to seoure !?!rt of the purchase
money, of property conveyed by the same deed-Stal'1'p ad valorem on
the whole of the purchase money as a oonveyanoe on sale, and also ad
valorem on mortgage money (d),
If in a mortgage bond there is clause to cover any further sum that
is likely to become due from the borrower, the stamp should be high
enough to cover that further sum (e).
Bond for money borrowed by a company governed by the Company's -
Aot.-The stamp duty is ad valorem on the amount secured(/),
The amount "secured'' by a penalty bond is not the penalty, but the
payment of which it is conditioned to be void (g).
In the case however of a bond where the sum mentioned in the obli-
gation is described as "liquidated damages" and is intended to ue the
actual amount recoverable in case of breach or default, it may be that the
bond should be stamped as a bond to secure pllyment of that sum (g).
Bonds to secure the performance of agreements not being for the
payment of money and bonds of indemnity come under the head " Bond
of any kind not specially charged w'ith any duty" (g) .
(a) Thomas v. The Comr, of Stamps, (1880) 3 S.C,C, ll7.
(b) Sec~ 3 (i6).
(c) Lancashire Insurance Coy, v. Inland Revenue Comnrs,(1899) 1 Q.B.
353; City of London Brewery Ooy., (1899) 1 Q,B, at p. 139; 6 Ency, 476.
(d) Brighton v. Inland Revenue Commissioners, 18 L. T, N, S, 412;
8 Ency. 605.
(e) 3 Ency. 43,
(/) 2 Enoy, 557,
(g) 2 Ency, 535.
SCHEDULE B, PART I OF STAMP ORDINANCE. 599
; Bond by partners for protection of secret prooeas.-It is apprehended
that this bond should be stamped ad Valor_Bm OD the amount of tbe penalty
or a fix:ed duty of 10s. But it may be argued that a bond of this nature,
should be treated as a bond to seonre payment of the sum mentioned as
liquidated damages, and not merely as one to secure performance of the
agreement to preserve the secret, and should, there/ore, bear the proper
ad valorem stamp on that sum (a).
Where a bond was couched in these terms: '' We keep a loan of the
balance Rs. 100 and ex:aoute this bond to pay twice this amount, includ-
ing Rs. 100 for interest, total Rs . 200, in eighty days," it was held that
the amount secured by the bond was Rs. 200 (b),
Bottomry bond:-There is no such provision as this in the English
Stami;i Act, 1891, but, on the contrary, the Aot expressly exempts "instru-
ments for the sale, trnnafer, or other disposition, either absolutely or by
way of mortgage, or otherwise, of any ship or vessel, or any part, interest,
share or property of or in any ship or vessel." This would cover bottomry
bonds. A similar provision has been introduced into Ordinance and
embodied in Seo. 4 (2). ,Although this was done with the express object
of bringing the Ai t into conformity with the law in the United Kingdom
this artiole has been retained. Art. 15 (j) must therefore be read with and
subject to Seo. 4 (2), the effect of which will be to exclude from its purview
all ships registered in the manner indioa.ted by that sect ion, but possibly
no others.
Bottomry is the hypoth.ioation of a ship by the master. with or
without its freight, as a security for the payment, in tbe event only of the
safe arrivt1l of the ship at her destination, of a debt contracted for the
supply of necessaries for the preservation of the ship and the continuance
of the voyage, the debt being lost in case of the non-arrival of the ship (c),
Any instrument for the sale, transfer, or other disposition, either
absolutely or by way of mortgage or otherwise, of any ship or vessel, or
any part, interest, share, or property of or in any ship or vessel registered,
whether in Ceylon or elsewhere, under "The Merchant Shipping Act,
189!,"-Sec, 4 (2).
As bottomry is in the nature of a mortgage, a ~tamp is not required
under the English Stamp Act, 1891 (exemption), The inclusion of the
freight would seem not to involve a stamp ; but if the cargo is included a
stamp may be necessary (d).
(al 7 Ency, 14,
(b) Sambu Chandra Bepari v. Kriahna Kharan Bepari, (26 Cal.
179); Dono, 265,
(c) Fisher, 'Law of Mortgage,' (6th Ed.), para, 235 ; Dono. 255,
(d) Willis v. Palmer, (1859) 7 C,B,N,S, 340, 858 i 14 Ency, 65 ,
 SCHEDULE B, PART I OF STAMP ORDINANCE . 601
600 CH. XXVI.-STAMP LAWS.
Duty.
Mortgages of any ship or vessel or any part, interest, share or property
19. CLAIM PROCEEDINGS.-See Part 11. Rs. c..
-of or in any ship or vessel are exempted from all stamp duties undE!r the
English Stamp Act; 1691 (!!) :20. COMPOSITION DEED or other instrument of
In the event of the property being liable to duty on the death of the composition between a debtor or debtors,
tenant for life, the purobas er will have to pay it, if the tenant for life
and his or their creditors 10 0
is no party to the conveyanoe aud the vendor enters into no covenant on
the subject (b). Deed of a8signment of personal estate for benefit of o:editors.-
Duty, Stamps 10s. under the Stamp Act, 1891 (a),
Rs, c. Deeds of In~peotorship-i.e,, a deed by which a debtor in insolvent
l6. BROKER'S NOTE, each copy 0 6 -ciroumetances is allowed by the creditors to carry on his trade but
.subject to the direoti,rn, inspection and control of inspectors. St!lmps
'' Broker's note " means the note sent ~y a broker or. agent to bis
pifnoipal (except where such principal is acting as broker or agent for a 10s. (b),
principal) advising him of the sale or purchase of any stock or marketable An instrument which subJ tantially amounts to a transfer by a
security. -debtor of his property for the benefit of his creditors is a composition-deed
and not a conveyan ce (c).
17. CART OR BOAT NOTE for the conveyance of
:21. CONDITIONS OF SALE of immoveable property of
goods for hire by cart or boat along any
the value of one hundred rupees and up-
road, river, or canal, when the di-stance 6 0
to be traversed, by such carb or boat shall wards
Exemptions.
exceed one . mile outside the limits of any
Municipality or Local Board, on the All sales by public officers, including Fieoals and
original and each c~~Y thereof 0 6 their officers.
Exemptions from the preceding Stamp Duty. Conveyances.
Memorandum, !utters, or agreements made :22. (a) WRITING OR BILL OF SALE by way of
with any common carrier or other person conveyance or transfer requiring registration
for the carriage of goods, wares, or under Ord. No . 8 of 1871; conveyance
merchandise iq. this Island, if stamped as or transfer of any immoveable property for
an agreement or contract, or any minute or any consideration-
memorandum of an agreement, Where the purchase or consideration money
18. CHARTER-PARTY or any agreement or contract therein or thereupon expressed, or if .the
for the charter of any vessel 10 0 consideration be other than a pecuniary
A charter-party under the Eoglisb Stamp Act is stamped as for an one, or partly pecuniary and partly other
_agreement (c), than pecuniary, the value of the property
The contract of affreigbtment by 'charter-party ' is to be distin- shall be-
guished from the contract for conveyance of goods in a. general ship which Over Rs. 0 and not over Rs. 50 1 0
is evidenced by the instrument known as a ' bill of lading' Id),
Over Rs. 50 do. Rs. 100 2 0
(a) Ashburner, p, 206,
(b) Hogg, Hi9. See also Seo, 17 (4) of the Estate Duty Ord. 8 of 1919. (a) 2 Ency . 28 (n),
(c) 14 En<iy. 20, (b) 2 Ency. 8l!l (n),
(d) Smith,' Mercantile Law,' (11th Ed,), pp. 357.399; Dono. 269. (c:) Subbaraya v. Vythilinga, (16 Mad, 89),
76
602 CH. XXVI.-STAMP LAWS. SCHEDULE B, PART I OF STAMP ORDINANCE. 603"-
Duty .
Dut71.
Rs. c. (d) Conveyance or transfer of properhy without Rs. c.
consideration by a trustee or trustees, or the
Over Rs. 100 and not over Rs. 200 4 0
Over Rs. 200 do. Rs. 300 executors or administrators of a deceased
6 0
trusteo or trustees to a surviving trustee or
Over Rs. 300 do. Rs. 400 8 0
trustees, or to a new trustee or trustees, or
Over Rs. 400 do. Rs. 500 10 0
to a'surviving trustee or trustees and a new
Over Rs. 500 do. Rs. 1,000 15 0
Every further Rs. 500 or part thereof 8 0
trustee or trustees 10 o,
(d-1) Conveyance or transfer of shares by a
(b) Conveyance or transfer of any moveable, broker acting as such in favour of the actual
property for any consideration-
buyer-
Where the purchase or consideration money ,Where the value of the shares does not exceed
therein or thereupon expressed, or if the Rs. 1,000, as on a conveyance [22 (b)] ;
consideration be other than a pecuniary and
one, or partly pecuniary and partly other
In any other case Rs. 'io.-[Sec. 4 (4) of 32
than pecuniary, the value of the property
of 1919.]
shall be-
(el Conveyance or transfer of property of any
Over Rs. 0 and not over Rs . 50 0 5()
kind whatsoever not charged in this schedule
Over Rs. 50 'do . Rs. 100 1 0
or expressly exempted from stamp duty . .. 10 o,
Over Rs. 100 do. Rs . 200 2 0
Over Rs. 200 do. Rs. 300 3 0 Provided that, except in cases wherein different
allotments are treated and describdd as one
Over Rs. 300 do. Rs . 400 4 (}
Over Rt1. 400 do. Rs. 500 property, and from their situation as respects
5 0
Over Rs. 500 do. Rs. 1,000 each other can be included in one survey, a
10 0
Every further Rs. 500 or part thereof 5 Q, conveyance or transfer affecting more than
one land shall be liabl\) to further duty as
(b-1) Conveyance or transfor of property by way follows:
of trust.-The same duty as on a conveyance Each additional land, where the aggregate
or transfer for a pecuniary consideration value of all the lands does not exceed
equal to the value of the property as set 25
Rs. 100 0
forth in such instrument.-[Sec, 4 (3) of Where it exceeds Rs. 100 and does not
32 of 1919.) 50
exceed Rs. 300 0
(c) Conveyance or transfer of property by an Where it exceeds Rs. 300 1
o,
executor, administrator, or trustee, without
consideration to the person beneficially enti- Exemptions fro,m the preceding Stamp D1ities.
tled to such property, or when made by All conveyances and transfers by His Majesty,
~ order of court in cases of divorce a vinculo or by any person for or on behalf of His
matrimonii 10 0 Majesty.
I 604 CH. XXVI.-STAMP LAWS.
Duty,
Transfers of bills of exobange and promissory Rs . c,
notes by endorsement.-[Sec. 4 (5) of 32
of 1919.]
22 A, Copy or extract, certified, of any document
issued by a public officer not otherwise
specially provided for, Re. 1.-[Sec, 4 (6)
of 32 of 1919.)
" Conveyance II includes a conveyance on sale and every instrument
:by which property, whether moveable or immoveable, or any interest or
-estate in any prop erty, is transferred inter vivos , and which is not
otherwise specifically provided for under this Ordinanoe.-Sec, 3 (9) ,
The consideration (if any) and all other facts and oiroumstanoes
affeotKJg the obargeability of any instrument with duty , or the amount of
:the duty with which it is chargeable , shall be fully and truly set forth
,therein,-Beo. 26.
Where any property bas been contracted to be sold for one considera-
tion for the whole, and is conveyed to the purchaser in separate parts by
-different instruments, the consideration shall be apport,ioned in such
manner as the parties think fit, provided that a distinct consideration
for each separate part is set forth in the conveyance relating thereto, and
such conveyance shall be chargeable with ad valortm duty in respect of
,irnoh distinct oonsideration ,-Beo. 27 (1),
Where property contracted to be purchased for one consideration for
the whole by two or more persons jointly, or by any person for himself
-and others, or wholly for others, is conveyed in parts by separate
instruments to the persons by or for whom the same was purchased for
distincit parts of the consideration , the conveyance of e11oh separate part
shall be chargeable with ad valorem duty in respect of the distinct part
-of the consideration therein specified,-Beo. 27 (2).
Where a person , having contracted for the purchase of any property
-but not having obtained a oonvey1rnoe thereof, contracts to sell the same
, to any other person, and the property is in consequence conveyed
-immediately to the sub-purchaser, the conveyance shall be chargeable
--with ad valorem duty in respect of the 00nsideration for the sale by the
-original purchaser to the sub-purohaser,-Seo. 27 (3),
Where a person , having contracted for the puroh:ise of any property
but not having obtained a conveyance thereof , contracts to sell the whole,
-or any part thereof, to any other person or persons, and the property is in
,oonsequenoe conveyed by the original seller to different persons in parts,
the conveyance of each part sold to a sub-purchaser ahall be chargeable
-with ad valorem duty in respect only of the consideration paid by such
SCHEDULE B, PART I OF STAMP ORDINANCE.
sub-purchaser, without regard to the amount or value of the original
605,
consideration ; and the conveyance of the residue (if any) of such proper~y
to the original purohase-r shall be ohargeabl"l with ad va[,ryrem duty Ill
respect only of the excess of the original consideration over the aggregate
of the considerations paid by the sub-_purohasers,-Sea, 27 (4),
Provided that the duty on such last-mentioned conveyance shall
in no case be less thari one rupee,
Where a sub-purchaser t akes an actual conveyance of the interest of
the person immediately selling to him, which is chargeable with ad
valorem duty in respect of the consideration paid by him and is_ duly _
stamped accordingly , any conveyance to be afterwards made_to him of
the same property by the original seller shall be chargeable with a ~uty
equal to that which would be chargeable on a conveyance for the consider- .
ation obtained by such original seller, or , where such duty would exceed
fi v e rupees, with a duty of fi ve rupees .-Seo. 27 (5).
Bale is a transmutation of property from one m an to another in
consideration of ~ome prioe.-(Blackstone) , "It may be defined to be
a transfer of the absolute or general property in a thing for a price
in money 11 ,- (Benjamin) (a),
A sale imports a quid pro quo, ' in some way or other enuring-
to the benefit of the party selling (b).
;, The expression conveyance on sale ' includes every instrument, .
and ever,; decree or order of any Court or of a ny Commissioners, whereby
any property (or an y estate or int erest in any property) upon the
sale thereof is transferred to or vest ed in a purchaser, or any other
person on his behalf or by his direction (c),
11
A transfer of property and interest by one body of persons to another , _
or t o a company whether comprising the same or different persons, is a
' conveyance on sale' (d).
A transfer by trustees of trust property to a cestui. que trust in ,
pursuance of the trust need not be made for pecuniary consideration, and
if the nominal consideration W5re omitted the transfer would not be -
chargeable as a transfer (e),
'Transfer of property' means an aot ~y which a living person
conveys proporty, in present or in future, to one or more other living
persons, or to himself and one or more other living persons, and ' to-
transfer property ' is to perform such act (f).
(a) Dono, 60,
(bl Denn v.' Diamond , (4 B, & C., p. 246) ; Dono- 60.
(c) English Stamp Act, 1891, Seo, 54 ; Dono, 61,
(d) In re Kondoli Tea Oo., (13 Cal, 48) ; Dono. 61.
(e) Ref, (7 Mad, 850); Dono. 306,
(/) Indian Transfer of Property Aot (IV of 1882), Seo, 5; Dono, 61,-
 1306 CH. XXVI.-STAMP LAWS .
.
A transfer of land in pursuance
of a compromise of a widow's
suit for maintenanco is neither a settlement, nor a gift, but is a
conveyance (a).
And where a mortgagor relinquished his title to the mortgaged
property in favouz of the mortgagee in consideration or an additional sum
-of money, it was held to be a conveyaoce (b).
A deed by which a bank and its liquidators transferred to a
new ,bank all its property, business and good-will, with the benefit
of all contracts and engagements, upon certain terms , contained
a provision by which the old bank transferred to the new its immoveable
property in Bombay comprised in its business premises for a consideration
of Rs, 1,50,000, On the question being raised whether this constituted a
conveyance' or was merely a transfer of property from one company
to another, it was held to be a 'conveyance', or in other words, a sale of
such property at a price of Rs, 1,50,000, The circumstance that
the transaction was part of a larger one between the banks, and that the
price to be paid was part of a larger consideration for the !lgreementcould
not affect the character of the insirument (c), ,
And where such a transfer takes place either upon the reconstruction
of a 'partnership business as a limited liability company, or upon an
amalgamation of two oompanies the transaction must likewise be a
conveyance (d), , -invention (g),
And so also upon a dissolution of partnership, the transfer by a
"retiring partner to a continuing partner of all his estate and interest
in the partnership assets is chargeable as a conveyance (e),
And where the consideration for the transfer is not money merely, but
stocks and securities, or where the transfer is one of shares in one
company in exchange for shares in another company the transaction
is none the le~s a conveyance on sale (f),
The duty would be chargeable on the value of the property conveyed
a.nd not upon the nominal value of the shares allotted (g),
(a) Ref, (21 Mad. 422) ; Dono. 61,
(b) Sinapaya v. Shivapa, (15 Boin, 675) ; Dono. 61.
le) Ref, (20 Bom, 432) ; Dono, 61.
(d) John Foster and Sons v, Commissioners, [L,R. {1894) 1 Q,B,
:516]; Dono, 62,
(e) Christie v, Commissioners, (L. R, 2 . Ex, 46) ; and see also
Hiralal Navalram, (32 Born. 505); Dono, 62,
{f) Ooats v. Commissioners, [L.R, {1897) 2 Q, B, 423]; Dono, 62.
(g) John Foster and Sons v. Commissioners, I;, R. (1894) 1 Q, B,
,816 ; Dono, 62,
ECHEDULE B, PART I OF STAMP ORDINANCE. 607
Deeds of family arrangement which in volve the transfer of inter-
;ests, though not strictly 'conveyances on sale' in t,he ordinary sense,
may nevertheless be such as to constitute conveyances (a) ,
An instrument which is in terms a conveyance of property at an
.agreed value, is a sale of such property ai th at price. The circumstance
that it forms part of a larger transaction will not Affect the character
-of the instrument b).
A conveyance must be taken to include the usual covenants for
title, and the stamp for the conveyance covers the whole, Such ooven~nts
cannot be regarded as constituting separately an indemnity boud
on which duty could be charged (c),
When , conveyance to a purchaser contains an acknowledgmAnt and
undertaking as to deeds, no extra st am p is required ; but whenever
,such acknowledgment and undertaking are given in a separate ins t~ument,
it is usual to stamp the instrument {d),
An assignment al a debt is a transfer of property and falls within the
definition of 'Conveyance' (e),
A trade-m:uk, as well as a good-will, ,is property, and may be
-conveyed (f).
And so may the share of a patent and a sole license to use an
A policy of Assurance also is property wi th in the meaning of
,the Stamp Act and assignable (h).
And so is the benefit of a contract assignable (i).
When property is conveyed subject to a debt, charge, or incumbrance,
the consideration must be deemed to include it (j),
(a) Per Kennedy, J., Marquess of Bristol v. Commissioners, [L,R.
{1901) 2 K.B. p. 340] ; Dono, 62,
b) Ref, (20 Bcm. 432) ; Dono. 260.
(cl Ref. (1 MiJ,d, 133) ; Dono, 261.
(d) Gibson, 188,
(e) Nandubai v. Gau, (27 Bom. 150); Measures Brothers, Ltd, v.
Commissioners, (82 L. T, 689) ; Dono, 64.
(I) Benjamin Brooke & Co. v. Commissioners, [L,R, (1890) 2 Q.B.
356].
(g) Smelting Company of Australia v, Oommissioners, [L,R. (1897)
1 Q,B. 175],
(h) Caldwell v. Dawson, (5 Ex. 1).
(i) SugiJ,r Factories v. Commissioners, [L.R. (1901) 1 Q.B, 245],
(il Seo, 24 of the' Indian siamp Act, 1899, Dono. 66
608 CH. XXVI.-STAMP LAWS .
Matters accessory to the main object.-'' There is no better established,
rule as regards stamp-duty than that all that is required is that the instru-
ment should be stamped for its leading and principal object, and that.
this stamp covers everything accessory to this object." (a),
If an instrument were chargeable as a conveyance, a covenant to pay
6,000, the balance of the purchase-money, would be a direct accessory
to the main object of the instrument {b}.
Wh'ere by a single deed certain lands were conveyed on certain
trusts, and a declaration of similar trusts was also made as to certain.
Government stocks, it was held that one stamp was sufficient {c) ,
' .
Where an instrument of trarisler of shares in a company contained a -
covenant to abide by and perform all the rules and covenants contained
in the company's deed of settlement in respect of the shares, it was held
that the covenant was a very material incident to the conveyance, and,
that no additional stamp was necessary (d! ,
An indenture by which several persons released and conveyed to
others their respective estates ,md interests, acquired by encroachments .
upon a common, was held also to require one stamp, there being
community of interest in the subject.matter of the conveyance in all the ,
conveying parties (e).
So also where three persons wlio were entitled in all to sixty shares in..
an incorporated company: A to thirty, B to twenty and C to ten ,
conveyed them jointly by one deed. "Such a deed , no doubt, if it is
executed by the parties, conveys th~ separate interest of each. It does
not require three deeds or three stamps, and the ad valorem stamp is
correctly calculated upon the whole (/J.
And so where an agreement, though drawn in form of a declaration
of trust, purported to transfer the whole of the shares in a company,
which was being voluntarily wound up, to a new company in pursuance or
a contract of sale, it was held that the instrument was chargeable with,
ad valorem duty as one of a conveyance on sale (g),
(a) Per Martin, B., Limmer Aspatte Paving Co. v, Com';llissioners,.
(L,R, 7 Ex, 211) ; Dono, 108.
(b) Ibid ; Dono , 109.
(c) Doe v. Fereday, (12 A. & E. 23) ; Dono. 109 .
(d} Wolseley v. Cox , (2 Q,B. 321); Dono , 109,
(e) Doe v. Tidbury, (14 C.B. 304); Dono. 112.
v. Bridge, (18 L,J,Ex. 384); Dono, 112,
(f) Per Pollock, C. B. , Willis
(g) Chesterfield Brewery Co, v. Comm:ssioners, [L,R, (1899) 2 Q. B ~
'1] ; Dono. 114.
SCHEDULE B, PART I OF STAMP ORDINANCE. 609
Where an instrument was executed in France, whereby property in
France, was conveyed to a company to be formed in England, it was held
0
by the Hou se o{ Lords that the document must also be stamped as
'conveyance' in England {a),
Where a price or value is stated in the instrument, the stamp-duty
must be calculated on the price or value so fixed, If it were otherwise, it
would be impossible for the parties to a document to fix the amount or
value for the purpose of determining what stamp-duty should be paid (b) .
Where any property is transferred to any person in consideration ,
wholly or in part, of any debt due to h im, or subject either certainly or
contingently to the payment or transfer of any m_oney or stock, whether
being or constituting a charge or incumbranoe upon the property or not.
such debt, money, or stock is to be deemed the whole or part, as the case
may be, of the consideration in respect whereof the transfer is chargeable
with ad valorem duty, Provided that, in the case of a Fisoal's sale, the
duty shall be calculated on the consideration expressed for the transfer,
Exvlanation ,-In the case of a sale of property subject to a mortgage-
or othe~ inoumbrance, any unpaid mortgage money or money charged,
together with the interest (if any) due on the same, shall be deemed to be-
part of the 00nsideration for the sale,-Seo. 23.
Where a property is merely sold, subject to a mortgage or other
charge the payment of such mortgage or charge forms , under ordinary
circumstances, no part of the consideration for the purcha6e. The vendor
simply sells, and tho purchaser buys an incumbered property: and it is
in no way essential t o t h e validity of the sale tha t the mortgage or charge
should be paid off (c) . .
. Seo. 47 of the English S tamp Act of 189 1, the terms of wh ich are
identical with Sao. 23 . hae been construed as follows : "Where property is
inoumbered and is sold subject to the inoumbranoe , or even subject to a
bond or condition that certain money shall be paid in future, then upon
paym ent off of the inoumbrance, or upon payment of the money st ipulated
to be paid in future, the purchaser obtains an estate discharged from th e
incum brnn oe, or bond, or condition is paid indirectly as part of the
purchase-money of the estate, and therefore it is right that the sums of
money, upon the payment of which tbe purchaser is able to obt ilin au
uninoumbered estate , should be taken into consideration as forming part
of the purchase-money, and be added to the amount paid by the purchaser
(a) Commissioners v. Maple & Co., Ld,, [L.R, (1908) A.O. 22] ;
.
I?ono. 132,
(b) Bhairab Chundm v. Alek Jan, (13 Cal. 268); Dono. 136 ,
(c) Per Garth, C,J , , Rel, (10 Cal. 92) ; Dono, 140,
77

610 UH. XXVI.-STAMP LAWS.
as the price of the inoumbered estate, or as the price of the estate sold
burtbened with the condition of tbe payment of money in fut~re (a).
When the conveyance on sale operates also as a 0011veyance of ot her
property than the property sold, or contains any other matter which is
not incidental to the sale and conveyance of the property sold or the title
thereto, it is liable, in addition to the ad valorem duty, to the duty to
which a separate instrument containing such oi her matter would be
liable (b),
Where the payment of the consideration is postponed and secured by
a mortgage, both mortgage and conveyance duties a~e payable (c).
Where any property is conveyed to any person in consideration,
wholly or in part, of any debt due to him or subject to a debt, the debt is
to be deeme/i the whole or part of the consideration for stamp duty
purposes (d),
Where severnl persons having sepuate interests in the _same
property join in conveying it, only one stamp, calculated on the aggregate
considera tions is required; but where several persona convey separate
interests in separate property in one instrument, or where several
properties are conveyed to several persons in one instrument, seveml
stamps are required (e).
Where the property agreed to b,e bought for o~e consideration by two
or more persons jointly, or by one on behalf of himself and others or on
behalf of others alone, is conveyed in separate parcels to the several
persons for distinct parts of the consideration, each conveyance is charge.
able fo respe~t of the distinct part of the consideration therein
specified (1).
In the absence of express stipulation, a purchaser is entitled to insist
that all documents of title shall be properly stamped at the vendor ' s
e:iipense (g).
The payment of stamp duty upon an assurance is a matter which is
important to the purchaser, though it is of no concern to the vendor (71).
SCHEDULE B, PART I OF STAMP ORDINANCE . 611
Where timber or fix\ures taken at a valuation are sold with the
'land the amount of the valua.tion must be included in ~he statement of
the ~onsidention, but where the land is sold with the t'.mber _or fi~tures
.eparate apportionment of the oons1deration 1.s not
for a lump sum ~ -
l, necessary (a),
The st~mp on the assurance need not cover the value of chattels
h " h pass by delivery but if they are assigned by the deed, or even, as
10
-w . . n'tend if the sale and delivery is recited in the deed
the Comm1ss1oners co ,
duty is payable in respect of the assignment (b),
Absolute " Bills of Bale" are stamped as oonveyanoea; "Bills of Sale"
.to secure money as mor tgage bonds (c).
T rnns!er of shares of a oompany,-Stamps ad valorem on the
,consideration as a conveyance or transfer on sale,
Form.
I, A. in consideration of the sum of --paid to m~ by B. ~ere~y
"d B the shares numbered 5 to 20 inclusive, standmg m
trans f er to th e sa1 t th
,my name in the books of the--Coy.' Ltd. To bold_ the same un o e
-said B. absolutely subject to the conditions on which I held the same
immediately before the execution hereof.
I the said B. hereby agree to lake the said shares sub ject to the said
.,conditions.
In witness whereof, &c. (d).
Goodwill is " property ather th an lands" capable of being sold
d endently of land and is subject to sep1uate ad valarem duty, unless
.::1:P with the property where the business is carried on, for a lump
.sum(e).
Surrender of life interest would make the instrument liable to
-duty ~8 a conveyance of property (f)

(a) Ptr Bruce, J,, Swayne v. Commissioners, [LR. (1899) 11 Q.B.

(a) 12 Ency. 144.
p. 341] ; Dono. 141. n:l Re\',, (1900) 81 L. T. 633;
(bl G:i.rnett v. Comm:s2icncrs ol Inl ~
(b) Alpe, (10th Ed, 1 , p. 110 ; 12 Ency, 146,
12 Ency, 144,
(c) Alpe, (10th Ed.), p. 114; 12 Ency. 146.
(c) Gibs, 296.
(d) Gibs, 186.
(d) 4 Ency. 605, . . ( )
(e) Alpe, (10th Ed,), p, 111 ; 12 Ehoy. 146, 1898
(el West London Syndicate v, Inland Revenue Commrss1oners,
(f) 12 Ency, 146; Stamp Act, 1891. Seo. 58 (2), 2 Q. B. 507; Inland Revenue Commissioners v. Muller & Co,, Marga-
lg) Whiting v, Loomes, (1880) 14 Ch, D. 822 ; (1881) 17 Ch, D. 10 .; ,rine, Ltd., (1901) A. C. 217; 6 Eooy. 152
12 Ency. 113,
(/) Hogg, 466, n.
{h) 12 Ency, 144,
.

I OF STAM P ORDIN
_ ANOE. 613
SCHEDULE Bl P A.RT
612 OH. XXVI.-STAMP LAWS.
Duty.
A bill of sale of a ship does not require stamping ; nor do 11ny doou -- Rs. c.
DEBENTURE ( whether a mortgage ~ebenture
ment transferring the property in a ship or share, or mortgages require- :23.
or not), being a roarketable security trnns-
stamping but certain fees 11re p11y11ble (a).
ferable by delivery or by endorsement or by
Easements.-Although there has been no express decision on the point, . a separate instrument of transfer.-The
it is conceived that a grant of 11n easement de novo should be stamped as same duty as on a bond for the same
11n ordinary conveyance of property (b).
amount.
The doctrine that 11n easement gives no "interest in land " within
the Statute of.Frauds [see M'Manus v, Cooke, (1887) 35 Ch, D, 681] is .E x planation.-The term" debenture" includes
not inconsistent with its being of itself a species of " property~" any interest coupons attached thereto, but
within the Stamp Act (c), the amount of such coupons shall nob be
An easement has been defined as " 11 privilege without profit which- included in estimating the duty
the owner of one neighbouring tenement has of another existing in respect
of their several tenements by which the servient owner is obliged to suffer - Exemption.
or not to do something on his own land for the advantage of the domi-
A debenture issued by an incorporated com
nant owner,"-(Gale on Easements, 7th Ed,, p, 6.) (d),
pany or other body corporate in terms of
H is a question wheth~r a deed of transfer of land executed out of a mortgii,ge deed, duly stamped in resp_ect of
Ceylon could be stamped here, It is contended that. the deed being of
the full amount of debentures to be issued
no effect (vide Ord, No. 7 of 1840) there is n othing to be stamped,
thereunder, whereby the company or bod_y
In a transfer of a land for value subject to the life interest of the - borrowing ma.kes over in whole or m
vendor, no 11ddition11l stamp as und,~r Art. 30 (c) could be claimed, their property to trustees for the
pa rt 'd d
There is no authoritative decision as yet regarding dowry deeds banefit of the debenture holders. Provi e
which are executed after m arriage 11nd wherein is reserved life interest ,. thaii the debentures BQ issued are expressed
The Registra.r -General considers that it shollld come under 30 (c), such
.to be issued in terms of th~ said mortgage
dowry deeds being post-nuptial and thereby amounting to only a dona-
tion, This may be so in Singhalese Districts. I,ut it cannot be so iu deed.
places where the " Thesawal!)mai" applies for t here dowry may be given" When any duly st~mped debenture is renewed by the issue of a
ev.en after marriage. Marriage is considered as valuable oonsider11tion, . t the Commissioner of St.amps shall,
"USW debenture lil the s'l.me erms, he arson issuing
Crown grants are exempt from stam.p duty (e),
;::: :~:!~::~~nthX:a!:1:!t!!nt::est:;;t:~ ~::a~rt;~~l ! on the new
A deed of acquisition by Government of a land for public purposes debenture, whichever shall be less,
under Ord . 3 ol 1876 is exempt from stamp duty (e),
Provided that the original debenture is produced before the Commi~-
Municipal Councils and Loo11l Boards cannot claim the same privilege, sioner of Stamps and cancelled by him in suoh mllnner as the Governor ID
as they are no departments of the state, 'Executive Council m11y direct,
- Ex lanation,-A debenture shall be deemed to_ be re~ewed in _the
p s11me terms within the me:ining of this section, notwith-
(a) Merch8nt Shipping A.ct (1894), Seo, 721; 14 Ency. 7 11nd 9 ;,
Ord. No. 21! of 1909, Seo. 4, proviso I!, standing the following changes: . . .
(a) The issue of two or more debentures in place of one or1gmal
(b) 5 _Ency, 503,
debenture, the total amount secured being the same ; ..
{c) 5 Ency. 504.
(b) The issue of one debenture in plaoe of two or more ongmal
(d) 5 Enoy. 487, debentures, the total amount secured being the same ;
(e) Gazette of 21st Oot. 1910,
 614 CH. XXVl,___:_STAMP LAWS.
SCHEDULE B, PART I OF STAMP ORDINANCE. 615
(c) The substitution of the name of th h Id . .
e o. er at the time of
renewal for the name of the original holder ; and Certificate of debenture stock transferable by_ delivery-Stamps
ad valorem on the nominal amount of stock,
(d) ~::r:~ttation of the rate of interest or the dates of pay men~
Form.
A debenture means a document whi h . "This is to cer tify that A, B, of--or the bearer hereof is the holder
or acknowledges it, It must be 'issued ' . c . either creates .a debt. of -of the above stock" (a),
pany to the person who has the oh r , i.e.'..dehvered over by the com-.
effects of the company (a), a ge, a nd 1
" mu 9t be secured on the- Where a corporation issued certain debentures which were stflmped as
It i . . . bonds for that amount, and by a trust deed appointed trustees for securing
It is a p:~:~~::;u::t: :i~:i:~:; note, but it is th~t and_something more. the payment of the money payable in respect of the debentures and th~-
them. "You h . ers attached to it havrng a purpose in, corporation by a mortgage bond bound itself to the trustees in the penal
may ave a debenture which i9 Oth sum of Rs. 1,50,000 and as further security mortgaged to them certain
acknowledgment of indebtedness ,, (b), n rng more than an
property to secure the repayment of the money p11yable on the,
" A debenture is spoken of as a . debentures.
acknowledgment of a debt and th ~eounty even though it is a mere-
. ' ere 1sno m<iterial security Held that snob bond by the oorporntion in fa vour of the trustees was
ing the debenture or included in it at all" (c). , . accom pany_-
only liable to stamp duty of Rs, 10,
' A mortgage debenture , '-This presum ably m
mortgage, eaus one secured by a. Held also-that the debentures were "bonds" within the meaning
of the Btamp Ord., 1890 (b).
Where debentures were issu d f LOO
that it might be redeemed at ane t' or ' each co~taining a stipafation- Duty,
103 wh10 h h y ime after a oertam date upon notice at
, sum s ould become payable f th 24. DEOLARATION.-See Affidavit. Rs. c.
money, it was held that duty was oharg::~le ue :ame w~re the P_rinoipal.
money secured by the debenture (d), P n !00, as bemg the, 25. DECLARATION of any use or trust of or concern-
'' Issued by an incorporated com " Th.18 .
ing any property when made by any writing
for the benefit of limited . pany' - exempt10n is intended, not being a will 15 0
t f t .
. .
oompames, and not of private persons or proprie-
ors O es ates who issue debentures
Registered debenture,-Stamp, ad val~rem
Provided always that in case such declaration
~ on the amount secured,, is in fact and substance a conveyance or
as on a mortgage (e),
transfer on sale, the s1J.me duty as on a
Certificate of registered .debenture stock-requires no stamp(/), conveyance or transfer for a pecuniary
Form of endorsement on debenture stook issued - " Th' . t . consideration equal to the value of the pro-
th t A B f - 1s 1s o certify
a . , o --1s the registered holder of --of the above stock" (g), perty as set forth in such instrument shall
be payable.
(a) Levy v. Abercorris Slate and Slab Co, (L R 37 Ch D
Dono, 265, ' ' 260) ; Declaration that a purchase was made by the purchaser as a.gent
(b) Per Lindley, J,, British India. Steam N . t for an undisclosed principal (by indorsement). The English Stamp
miss
- 10ners, (L , R . 7 Q. B. D . 155 ), av,ga ion Co, v. Com -- Commissioners claim that it should be stamped 10s. as being a. declaration
(c) Per Vaughan Willim~, J., Rowell v Com . . of trust or concerning property ; but it seems doubtful whether it is really
2 Q, B, 194]; Dono, 265, . m1ss10ners, [L.R, (1897) anything more than an admission of the fact of agency (c),
(d) Knights Deep Ld, v. Commissioners [L. R. (1900) I Q, B. 217] ;.
Dono. 265, '
(ei 5 Ency, 77, 50. (a) 5 Ency, 74,
(/) 5 Ency. 71, 50. (b) In the matter of an appeal, (1909) 12 N, L, R. 281 ; l Cur, L, R.
(g) 5 Ency, 71. 136, .
(c/ 3 Ency. 632,
 SCHEDULE B, PART I OF STAMP ORDINANCE. 617
616 CH. XXVI.-STAMP LAWS.
And s~ an instrument setting forth (1) that J . and S. relin_quished
A declaration 9f trust m"y also operate as a ' convey~nce' and
-thei.r right t~ oerta.in property in favour of. E .. (\!) that E, was to d1sohar~:
be chargeable as such (a),
Where an instrument is in fact a mortgage although drawn in
"Oe.r t am d eb's , that E , was to pav J. and 8. an annuity, was
" , and 13, . he
t'
to be chargeable as a, release only, "Tho point '. or de_term1~a. 10n
the form of a declaration of trust it is chargeable as a mortgage and J:!Ot as is . ~hether stamp -duty is chargeable in respect of st1pu!R,t1ons (2) and
a trust {b). .-.(a)? The document is e![eouted by Jagannath_ and Bomnath, but
Where an agreement was made between certain persons to n~t by Eknath. The provisions, therefore, purportrng to be m f_avour _of
transfer the future surplus profits of their respective trades to a a.nil Samoa.th are ,. mere recital of the oons1derat10n
trustee to be held by him on the trusts declared in the agreement; i.t .J agann ath t d b t he
f m Elrn 11,th. N J interest in their favour 1s orea e Y
was held to be a declaration of trust and also an agreemenL (c). ,movrng ro . {\!) d (3) a.re
oh therefore as for as stipulations an
.d ooumen t , Whl , ' bl th
But a document whereby a Hindu .widow purported to confer all her -oonoerne d , Oa.nn ,.nt be regarded as an instrument chargea e w1
property on a kinsman, and iDlposed upon him the dnty of m11,intaining stamp-duty," pe1 Wedderburn, J. (a)
Duty,
her from the profits .thereof was held to be a gift and not a trust deed (d).
of land between Rs . c.
Duty. 27. Deed for the exchange
co-heirs-
26. DEED or instrument of confirmation, release, Rs. c. 1 0
revocation, substitution, surrogation, dis- (a) If of equal value
claimer, and renunciation 10 0 lb) I pecuniary consideration for equality be
The same duty
A deed by which one co-owner renounced his claim for partition given
,a gainst the family property in consideration of a certain income to as on a con-
.be enjoyed by him for life out of certain specified property was held to be veyance or
.a release (e). And so is the relinquishment of his claim by a reversioner (f), transfer of
Where an instrument set forth that J, and S. relinquished their immoveable
right to certain property in favour of their brother E,; that E. was property for
to discharge certain debts ; and tliat he wa.s to pay an annuity to J, and the con-
S, the document being executed by J. and S. but not by E,, it was held
siderabkm so
that the provisions purportjng to be in favour of J. and S, were a
mere recital of the consideration-money from E,, ~nd that the instrument given. [Sec.
was chargeable as a release (g). 4 (8) of 32 of
-An instrument by which trustees make over trust property to a 1919.]
cestui que trust in pursuance of the trust is not a release, for the Exchange by one and tho s11,me deed,-This oo_nvey_anoe appe~rs
parties who execute it do not renounce any claim on the property nor on
to be chargeable only with. stamp duty, if no money is paid for equ'lhty
the person to whom it is transferred (h).
of exchange; and it appears to be extremely doubtfu~ whether a~y
ad valorem duty is payable in respect of any money paid for equahty
(a) Chesterfield Brewery Co , v. Commissioners, L, R. (1899) 2 Q, B,
of exchange,
?; Dono, 309.
(b) Secretary to Commissioners of Salt v. Orr, (1913) (33 Mad. 64.6/ ; The conveyance should be executed in duplioat~ and the . d~ty o:n:
Dono, 309, ,appears to be payable in respect of each part, each berng an ougrnal
le) Ref, (11 Md. 216): Dono, 309, not being a counterpart (b),
(d) Ref, (12 Mad. 89) ; Dono, 309. The Supreme Oourt has, in the matter of the application by
(e) Ref, (18.Mad, 23'.3), V. Sivaprakasam, Notary, held that the deed has to be stamped as for two
(t) Krishnaji Narayan i:. Balkrishna Venkatesh, (33 Boro, 657); oonveyanoes, This case has not yet been reported.
Dono, 299,
{g) Eknath v. Jaggannatb, (9 Bom, 417); Dono. 299, (b) Hogg . 188 (n).
(a) Eknath v, Jaggannath, (9 Bom; 417).
(h) Ref. (7 Mad. 350) ; Dono. 300,
78
 618 CH. XXVI.-STAMP LAWS.
By the English Stamp Aot, 1891, Seo, 73, upon the exohangoc
of any real property where money is paid for equality of exchange,
the principal or only instrument whereby the exchange is effected
is charged with ad valorem duty as a oonveyauce on sale for the
consideration and with that duty only, In other cases, i.e., where
nothing is paid for the . equality of exchange, the stamp upon the
deed by which the exchange is effected is ten shillings (a),
By Seo, 73 of the Stamp Aot, 1891, it is provided that where, upon the
exchange of any . real or heritable property for any real or heritable
property, any consideration exceeding in amount or value LOO is paid
or given or agreed to be paid or given for equality, the .principal or only
instrument whereby the change is effected is to be charged with the-
same ad v.2lorem duty :.ts a oouveyanoe on sale for th9 consideration and
with th at uuty only. In other case?, i.e., where nothing is paid for
equ ality of exchange, the stamp upon the deed by which the exohanga is.
effected is 10s, (a),
Duty,
28. DEED or instrument not otherwise charged in Rs. c.
this schedule, n"or expressly exempted from
stamp duty
10 (),
Exemptions f ram the (J.bove Stamp Duties.
All wills, testaments, aud codicils, whether
notarial or otherwise.-[Sec. 4 (9) of 32 of
1919].
Anton Bertram, C,J,-'J'he document is headed "Deed of'
Agreement" and relates to a plumbago pit. It declares that the party of-
the let part had hereby delivered to tbe party of the 2nd part the pit in
question and it provides that out of the plumbago to be dug by the 2nd,
party a certain debt of Rs. 9,655 due to him shall be liquidated ; that the
plumbago extracted from the pit by the party of the 2nd part shall belong
to him, and that after the expenses incurred in winning the plumbago,
and liquidating the debt have been provided for, the pit shall be delivered
back to the party of the 1st put, There is a subsequent clause which,
provides that the party of the 2nd part after the liquidation of the debt
shall be entitled to extract plumbago to a value not exce~ding Rs. 20,000,.
and that, a[ter plumbago of this value has been extracted the party of the
1st part, who is apparently assumed to be in possession of the pit at this
point, shall as a token of pleasure pay to the party of the 2nd part Rs. 25
per ton in respect of the plumbago which he may subsequently extraot.
.from the pit.
(a) 5 Enoy, 571,
SCHEDULE B, PART I OF STAMP ORDINANCE. 619
Crown contends that the document is a oonveya.noe. Defence urges
that it is a lease or that if it is not a lease, it is a deed not otherwise
oharged in the Sobedule.-Art. 28,
The easentials of a lease aooJrding to R.D. L'iw are explained in sub-
Seo, 7 of Walter Pereira'A Laws of Ceylon on page 668. Tbis docume~t
does not fulfil these conditions. The case of Panditatilleke v, Comm1~-
sio11er of Stamps reported in 12 N.L,R. 59 and decided by Full Bench is -
no authority whether the document in this case is a lease. Is it then a
oonveyaaoe ?
I am unable to read the words in that senso as Mr, Dias pressed upon ,
uu that it is a conveyance subject to the condition that the property
would be reoonveyed. 'l'he test is this, Is another document necessary
for the purpose of revesting the property ? I understand the word used
for delivery aud for delivery baok sim[Jly signify ' ' giving charge," If
that is so the deed is not a conveyance. We are _thus brought by a
process of exclusion to para, 28 of the Schedule, To quote the words
used on pa.ge 666 of Walter Pereira's work with reference to the dooume_nt
under discussion ' ' it constitutes a oontraot by itself whioh has no spemal
name , " In my opinion, therefore, the stamp duty to which it is liable is
Rs, 10 under para, 28, (a)
Duty~
29. DELIVERY ORDER in respect of goods; that is Rs. c ..
to say, any instrument entitling a,ny person
therein named to the delivery of any goods
lying in any dock or port, or in any
warehouse in which g-0ods are stored or
deposited on rent or hire, or upon any
wharf, such instrument being signed by or
on behalf of the owner of such goods, upon
the sale or transfer of the proper!iy therein,
when such goods exceed in value twenty
rupees 0 6,.
This is an order addressed by the owner of goods to a person holdi~g
them on his behalf, requesting him to deliver them to a person named m
the order, Delivery orders are chiefly used in the oase of goods held by
dock companies, wharfingers, &o. (b),
It is doubtful if a mere order in writing by a merohant to his
warehouseman to deliver goods to a purchaser would come within it, An
(a) In the matter of application of Notary, J.E, de Saram.
(bl Sweet; Dono. 266.
'620 CH. XXVI.-STAMP LAWS.
order by a master to a servant in writing to pay money to another has
l.een held not to be an order for the payment of money, which is liable to
stawp-duty, as it was not ' in the nature of a mercantile instrument" (a).
A delivery order differs from a warrant for goods in being signed by or
on behalf of the. owner of the goods, as distinguished from the person in
whose custody they are.
The transfer of a delivery order by endorsement requires no
,stamp (a).
Dut71,
-30. (a) GIFT or deed of gifb of any property.-The Rs. c.
same duty as on a conveyance or 'transfer
for a pecuniary consideration equal to the
value of the proper,ty as set forth in such
instrument.
{b) Gift or deed of gift in which a power of
revocation is reserved to the donor, or in
which the donee or some person authorized
by law to represent the donee has not
expressly signified his acceptance of the gift.
Where the value of the property is under
Rs. 2,500, a duty of Rs. 3 for every Rs. 100
or fraction thereof. Where the value of
the property is Rs. 2,500 and over, a duty
of Rs. 3'50 for every Rs. 100 or fraction
thereof.
{c) Gift or deed of gift of any property without
power of revocation, but reserving to the
grantor any life interest or estate in the
property. Where the value of the property
/ , is under Rs. 2,500, a duty of Rs. 3 for every
Rs. 100 or fraction thereof. Where the
value of the property is Rs. 2,500 and over,
a duty of Rs. 3'50 for every Rs. 100 or
fraction thereof.
Provided that, except in cases wherein
different allotments are treated and des-
cribed as one property, and from their
(a) Dono. 266,
SCHEDULE B, PART I OF STAMP ORDINANCE, . 621\
Duty,
situation as respects each other can be Rs . c.
included in one survey, a gift or deed of gift
~ffecting more than one land shall be liable
to further duty as follows :
Each additional land, where the aggregate
value of aH the lands does not exceed
Rs. 100 0 25
Where it exceeds Rs. 100 anti does not
exceed Rs. 300 0 50
Whure it exceeds Rs. 300 1 O
An instrument cannot be oh!laged from a deed of gilt into a settle-
ment by extrinsio evidence, The facts and ciro,umstan_ces a~eoting the
cbargeability of an instrume_n t with duty should appear m the rnstrument
itself by way of recitals or otherwise (a),
A deed purported to " make over " four lands in equal shares to his
children, It recited that the grant was made as a "deed of distribution-
of mudusom, known as a deed of settlement." The children did not
expressly signify their acceptance a.a the face of the deed, Held that the
deed was a deed of settlement and bad to be stamped as suob and not as
a deed of gift (b).
A deed of gift of land must bear an ad valore,n stamp {c),
31. (a) LllJABE or agreement for lease of any pro-
perty .-The same duty and conditions as
to calculation of duty as on a bond, or
mortgage of immoveable property, for the
same amount as the aggregate rent payable
for the whole term comprised in the lease ;
provided that the duty shsll not exceed
that on a lease for -six years, and provided
that the lease does not contain a mortgage
of property, in which case the mortgage shall
(a) In the m<1tter of an applioa tion of A. K, Obellappa , Notary, under
Seo, 30 of the Stamp Ord. (1916) 19 N. L. R. 116; 2 0, W. R, 2,3.
(b) In re application of V. Coomarasamy, Proctor and Notary, (1916),
19 N. L. R, 171; 4 C. A, C. 117. '
(c) The King v, Abeyasekara, 11909) 12 N. L,R, 357; 1 Cur, L.R, 265 ~
 622
1 CH. XXVI.-STAMP LAWS,
Duty.
be chargeable as a separate instrument. Rs. c.
Provided also that no duty is leviable
in respect of any additiooal lands.
{bl Every lease, transfer, or assignment thereof
where the consideration is partly in produce,
and the value of such produce is not stated
in the instrument, a duty of Rs. 2'50, in
addition ta" the duty upon the stated
pecuniary consideration.
Exemptions from the preceding Stamp Duties.
All leases or agreements for leases of any
property by His Majesty, or by any person
for or on behalf of His Majesty.-[Sec, 4 (9)
of 32 of 1919.]
~2. LEASE executed in pursuance of -a duly
stamped agreement for the same, on pro-
duction of such agreement to the Commis-
sioner of Stamps 2 0
-33. LEASE, surrender of:
(1) When tha duty with which the lease is
chargeable does not exceed Rs. 10, the duty
with which the lease is chargeable.
(2) In any other case 10 0 to the main object (h).
Where the amount or value of the subject-matter of any instrument
chargeable with ad valorem duty cannot be, or (in the case of an instru-
ment executed before the commencement of this Ordinance) could not
have been ascertained at the date of its execmtion or first execution,
nothing shall be claimable under such instrument more than the highest
amount or value for which, if stated in an instrument of ' tbe same
.. description, ihe stamp actually used would, at the date of such execution,
:have been sufficient,
Provided that, in the case of the lease of a. mine in which royalty or
a share of the produce iij received as the reut or part of the rent, it shall
be sufficient to have astimated such royalty or the value of such share,
for the purpose ol stamp duty, at twenty thousand rupees a year; and
the whole amount of suoh royalty or share, whatever it may be, shall be
<-0laimable under such lease,
SCHEDULE B, PART I OF STAMP ORDINA~llJ. 623
Provided also thi.t, where proceedings have been t aken in respect of.
,an instrument under Secs, 30 or 43, the um ount oertifiod by the
Commissioner of Stamps shall be deemed to be th e st amp 11otually used
-at the date of execution. -Seo. 25.
An instrument , by which a Collector grants to an Excise contractor
the monopoly of manufacturing and selling certain spirits for three yea rs
,at an annual rate, is not a. lease (a),
A lease will include a. covenant contained therein and relating
thereto, for purposes of stamp-duty (b).
An option to renew is also auxiliary to and a part of a. lease, and
cannot be charged separately (c) .
A prospecting license is not ,i, lease, even though re nt may be reserved,
'It is chargeable as an agreement under Art. 5 (c), Sob. I. (di.
' ' An under-lease or sub Iease."-This is to be distinguished from a
transfer of a. lease by way of assignment, which is ohargea.blo with a
'h igher duty, The distinotion wm depend on the terms of tbe instrument.
In a sub-lease the lessee does not part with the whole of his interest to
his sub-lessee, but retains a reversion . Io a transfer of a lease the rights
and interest of the lessee, though not necessarily his liabilities, are
conveyed absolutely (e).
"Any . agreement to let or sub-let , "-This is chargeable as a lease
even although a formal deed of lease may be in contemplation(/). But
if a formal lease be subsequently drawn up in pursuance of the agreement
the duty on such lease is not to exceed 8 ann as (g). Here, in Ceylon,
it is Rs. 2 to be denoted.by the Commissioner under Seo, 13.
1
In the case of a. surrender of a !ell.Se for lives, in consideration of 11!0,
.and of a new lease to be granted for the life of the lcsseP, it was held that
the agreement for a. new lease was part of the contract ; and it is accessory
A lease of Charity -Commissioners containing an agreelljent for the
purohase of premises different from the subject-matter of the demise was
-held on that account to be chargeable both a.a a lease and an agreement (i),
(al Ref. (I! All , p. 659) ; Dono, 77.
(bl British Eleotio Tra.otion Co. v, Commissioners, [L. R. (1902) l
K. B, 441].
(c) Ref. ( Mad. 3) ; Dono. 77,
(d) G. O. No. 1677 S . R. 19th Apr. 1902; Dono. 17.
(e) Transfer of Property Act (IV of 1882), Seo. 108 (j) ; Dono. 272,
(/) Ref, (17 Mad. 280).
(r,) Boyd. v. Erieg, 17 Oa.l. 548; Dono, 11711.
(h) :Doe v. Phillipps, (11 A. & E. 796) ; Dono. 109,
{i) Lovelock v, Frankland, (16 L, J., Q. B, 182); Dono, 107,
624 CH. XXVI.- STAMP LAWS.
0
B y an indenture in the form, and containing the usual covenants of'
a lease, A. demised premises to B., and B, and C, covc,nanted to pay the -
rent, but C. was not otherwise referred to in the i!istrument, In au aoti,m
against C, on the covenant to pay rent, it was held thatthe instrument wag .
properly stamped though stamped as fl lease only. '.' If this covenant had
introduced matter no way connected with the demise but wholly distinct .
and independent, it might then ha;e been said that the plaintiff could not
benefit by such a stamp as was affixed to this indenture, But that was
not the case, The objection therefore cannot prevail." Per Lord Tender-
den, O. J, " The lease was the principal to whioh this covenant was an,
accessory " (a),
But it would be otherwise if tbe guarantee were by a third party who
did not join in the principal covenant (b),
In the case of a demise for two years, at a certain rent, with an
option to the lessee to purchase, during the term for a given sum, a further
lease for two lives, it was held that the contract for sale was sufficiently
connected wiLh the consideration for the lease to render a further stamp-
unnecessary (c),
Similarly, where the consideration for a leaHe consists partly of rent,
to be paid each mouth and partly of a sum Equal to a mont)l's rent paid in,
advance and to he 'repaid at ihe end of the lease, the instrument relates to -
one matter only (d).
Where a lease for 999 years reci ted the title and a succession of'
agreements- repr esen ting various transactions relating to the properties
comprised thereon, and the parties . to these transactions also signed the
lease by way of corrourrenoe, it was held that this did not alter the
character of the instrument so as to convert it into a multifarious deed (e) , ..
In the case of an instrum ent containing a written contract of demise
with several operations in respect to different tenants, who sign it for
different estfltes at the different rents set against their signatures, there
should be a different stamp for each contract, although the same terms
of agreement apply to all. One stamp has been only held to be sufficient
upon an instrument affecting the separate interests of several, where
there h ~s b~en a community of the same subject-matter as to all the
parties (f).
(a) Per Littledale, J., Pr ince v. Thomas, (2 B, & Ad, 218) .
(b) Wharton v. Walton, (7 Q. B. 474); Dono, 110.
(c) Worthington v, Warrington, (5 C. B. 635) ; Dono, 111.
(d) Ref. (26 Mad. 473) ; Dono, :Ul.
(e) In re Parasea Collieries, (37 Cal. 629).
(t) Doe v. Day, (13 East. 246); Rei: v. Reeks, (2 Stra, 716); Dono .
113,
SCHEDULE B, PART I OF STAMP ORDINANCE. 625
Agreements with two- or more raiyats not jointly interested in the
same lanii for the Wlrohase or lease of their lands are distinct agreements
requiring to be separatel-tampell. (a).
Section 25 provides for the levy of duty ad valorem when the amo unt
on which it would have to be reckoned is unascertainable, A person is free
to select his own rate of duty, but may not recover upon the instrument
more than the amount which the 'stamp covers. An exception is,
however, made by the first proviso, which is new, in the case of a lease of
mines, when the rent is to be a share of the produce or a royalty on the
profits, In such oases it is generally impossible to predict what the rent
may be, but any one who chooses to assess the share of the produce at
Rs. 20,000 a year m~y recwar any amount in exoess of that estimate
without regard to the limit covered by the Stamp (b),
"Cannot be ascertained."-This will not apply to oases in which the
value of the subject-matter ca.n be ascertained, Where fir! instrument of
release bore an insufficient stamp of-two annas, and the High Court on
appeal left the deed as part of the evidence in the oase, but qualifie.d
itf} effect and the ex\ent of its opera tion by treating it as releasing so
much as would be covered by the insufficient stamp of two annas, it was
held by the Privy Council that the proper course would have been to
require the dooume!lt to ho properly stamped and the penalty paid into
Court, and that the course taken was entirely without precedent, principle
or authority le).
"Nothing shall be olaimable,"-The question whether an ingtrument,
bearing ai;i optional ~tamp of iosufiioient value can be validated by the
payment of the proper duty and a penalty has given riso to conflicting
deoisions. Under Act XXXVI of 1860, the prO\isions of wbi oh were
somewhat different, it has been held that it oould not be so validated (d),
But more recently it has been held under Regulation XVIII of 1827,
that additional stamp-duty and penalty may be paid in order to obtain
judgment for a farger sum, and that there-is notliing to prevent the Courts-
from allowing this to be done (e),
And this seems to be the beUer \'iew, for it would be unreasonable if
a person who neglected to stamp a document altogether could obtain the-
benefits of Seo. 36, while a person who only failed to estimate oorreotly a
value which was unasoertainable could not.
(a) Ref. (24 Mad, 176); Dono, 113.
(b) Dono. 144,
(c) :t;,J:antapp v. Baawantro, (15 W. R ., P. C. 32) ; Dono, 145.
(d) Syud Kerai;nut Ali v. Mooshee Abdul Wahab, (l'i' W.R. R. 131}-
Dooo, 145,
(e) Mulji Beohar 1,1, Jetha Jeshankar, (10 Bom. 239); Dono, 145
79
 626 CH, XXVI.-STAMP LAWS.
"I should be very sorry to see justice defeated by holding that a man
is to lose his olaim by making a mistake. The greatest injustice might be
caused if we were to hold that the plaintiff sh.Id lose his whole claim
simply because be made such a mistake (a).
Claimable ' in Seo. 25 means claimable in a Court of Justice,
Where a bond, which was given, as security for sums advanced on
a running aocouns, was stamped sufficiently to cover a gross sum of
Rs. lQ,000, the intention of the parties evidently being that it
could continue as security for frosh advances up to that limit aft_er
the former advances had been paid off, the fact bei?g that such advances
never at any time exceeded Rs , 10;000 although a much larger sum bad
actually been discharged during the pendenoy of the security, it was held
that this would not prevent the mortgagee from recovering in a suit
the balance of the debt (b).
The provisions of this section are so stringent that even an
admission of a plaintiff's claim will avail him nothing if the stamp
does not cover it (c).
Where a document provided for the payment of Rs. 25 as earnest
money to secure the supply of 21 maunds of unrefined sugar, on w~ich
the grower was to receive a prnfit of 9 annas per maund over t_he prices,
fixed 11 t the meeting of growers, plus the payme!lt of a sum which would
not have been ascertained at the time the deed was executed owi_ng
to the price not having been fixed, it was held that as to the sum which
could not have been ascertained, Seo, 25 applied (d),
Where a deed purported to lease a certain land for the purpose
of gemming by 'the lessees in consideration of the lessor getting J /10th of
tile gems dug out-Held that it was a deed of lease and should
bear a stamp duty of Rs . 10 (el,
A deed dated 23-1-18 surrendering a lease dated 10 2-17 is liable to
.. duty payable on the lease at the time o{ execution ?f surrender, viz,, in
terms of Ord, No. Hi of 1917 (f),
An agreement to take a lease requires only 6d, stamp (g).
(a) Per Peacock, C. J,, Gomes v. Young, (12 W, R,, 0, A, 1).
(b) Harendra Lal Roy v. Tarini Charan Chakravl!'rti, (31 Cal. 807):
Dono, 145,
(c) Kistnasamy Pillay v. Municipal Commissioners for Madras,
(4 Mad, H. 0, R . 120) ; Dono. 146.
(d) In the miitter of Gajraj Singh, (9 All. 585) ; Dono. 146,
_ (e) Panditahlleke v. Commissioner of Stamps, (1909) 2 Leader 112 ; 12
N.L.R. 59,
(f) P. O. Panadure, 62249 (S, C. No , 182i ,
(q) Glen v. Dungey, (1849) 4 Ex . 61; 7 En cy, 133 ,
SCHEDULE B, PART I OF STAMP ORDINANCE. 627
A leaRe is not to b9 charged with any duty in respect of any penal
"rent thereby reserved, or by reason of its being ID'\de in consideration of
-the surrender or abandoument of any existing lease or agreement
rehting to the same subject-matter ; and where the lease is subject to ad
valorem duty, it is not ohugeab!e with any duty in respect of improve-
ments which the lessee has made or which be covenants to make or in
respect of any covenant relating to the subject-matter of the lease (a).
Under the R. D. L. no tenancy may be continued or prolongea on
the old instrument of lease, but all continuations or prorogations
of previous leases s'tall be written afresh on a similar stamp, Failing
that the lessor shall have lien on the hirer's household goods, &o.,
nor may the hirer or lessor claim any personal obligation against
the other, Leases of houses which are accustomed to be hired by t he
week are exempt from stamp.duty (b),
The ef!eot of the Stamp Acts is that if a !_ease is reduced to writing, a
stamp of a certain value must be affixed to the document. If a lease for
a short period is not reduced to writing, it is nevertheless valid (c),
An agreement for letting to be stamped as for a lease (d).
Where there has been an agreement in writing for a lease , such
agreement should be stamped as a lease (e).
If tbe essential and distinguishing features of a lease are present in
any instrum~nt, sooh instrumeni, is liable to stamp duty as a lease (f) ,
Consent by mortgagee to a leaae to be made by mortgagor-No
stamps (g).
License to partners to wo rk slate quarries , reserving royalty on slate
sold, with a minimum rent-St!<mp ad valorem on the minimum rent and
10s, on the royalties, The instrument though in form~ license, gives
the virtual possession of t he Quarries arid is equivalent to a lease for the
purpose ol the Stamp Act, 1891 (h),
If, however, the lessor wa s to get a proportion of the slate sold
without fixing a minimum rent, the lessor cannot, in terms of Seo. 2,5 of
Ord . 22 of 1909, recover any amount more than the value covered by the
stamp used ,
(a) Stamp Act, 8. 77 (1) and (2) ; 7 Ency, 131.
(b) Willie Landlord and Tenant, p, 86,
(c) Willie, p, 118,
(d) 16 Ency, 32.
(e) Greenwood 129.
(f) Panditahlleke v. The Comm issioner of Stamps, (1909) 12 N, L ,
,R, 59,
(g) 16 Enoy. 439.
(h) 8 Ency, 116,
628 CH. XXVI.-STAMP LAWS.
A lease duly stamped with ad valorem duty doea not require any
further duty in respect of an optiou_ of purchase (a), or in respect of its
containing a covenant by a surety for payment of rent (b),
Leases for short terms are frequently called "rrgreemenls " and are
made by the words " agrees to let " (c),
In the case o! a lease of a cotton mill with a provision for the
purchase of the moveable machinery, no additional stamp is required in
respect'l-of that provision, as the lease do~s not operate as a conveyance of
the machinery so as to attract conveyance duty (d),
Surrender of a lease to the reversioner in fee or for life or years.-
Stamp 10s. ; unless the arrears of rent exceed the consideration money, .
in which case 10s, and ad valorem duty, as a conveyance, on the
excess (e).
Duty
Rs. c.
34. LETTER OR POWER-OF-ATTORNEY for the
purpose of appointing a proxy to vote at a
meeting 0 6,
35. LETTER OR POWER-OF-ATTORNEY, whether
executed in Ceylon or elsewhere, for any
other purpose whatever 5 O
Substitution or surrogation under any letter
of attorney_ 2 50
Exemption. ,.
Power-of-attorney made by any petty officer,
seaman, or soldier, or by the executors or
a.dministra~ors of any such person, for pay
or prize money, or by any Government
officer in the execution of his duty.
" Power-of-attorney " includes any instrument (not chargeable with
a fee under the law relating to court-fees for the time being in force)
empowering a specified person to act for and in the name of the person -
executing it.-S.eo. 3 (20).
Every letter or power-of-attorney for the sole urpose of appointing a
proxy to vote at any meeting shall specify the day upon which the,
(a) Worthington v. Warrington, (1848) 5 C. B, 635.
(b) Price v, Thomas, (183 1) 2 B , and Ad, 918; 7 Ency, 131.
(c) 7 Ency. 221.
(dj Lee v, Butler, (1893) 2 Q,B, 318; 7 Ency. 457.
(e) 8 Ency. 850,
SCHEDULE B, PART I 01<' STAMP ORDINANCE. 629
,meeting at which it is intended to be used jg to be held, and shall be
-available only at the meeting so specified, or any adjournment th,ireof.-
Sec, 84,
No English stamp will be required to make a power-of-attorney
-executed in England valid abroad. So far as the primary object of the
-power is concerned, it will have to be stamped (if at all) in, rind according
to the law of, the country in which it is used. But if (e.g., in
subsequent disputes between principal and attorney) the doument
should come before an English Court, it would be inadmissible unless
stamped with an English stamp (a).
An instrument authorising a person to receive on behalf c,f another
such sums as should become due in the course of the execution of a
certain work is a power-of-attorney (b).
An instrument authorising one person to receive payment of money
on behalf of thirty-six persons out of a fund in which they are jointly
interested is a power-of-attorney le),
A sunnud which authorises a gomasta to oolleot rents and to sue for
them is a power-of-attorney and nquires to be stamped as such (d).
Where a power-of-attorney was executed by all the members of a
,mutual insurance club only one duty was chargeable, as there was
"community of purpose actuating all the members" (e).
" A proxy given for a p1utioular meeting, and any adjournment
.
thereof, falls under this charge"(/),
A power-of-attorney was executed by all the members of a mutual
insurance club ; inasmuch as there was " a community of pmpose
actuating all the membera," although there might not have been entire
0 oommunity of interest, the instrument was held chargeable with only
one stamp (g),
(a) 1 Ency. 320 and 281, n; ; see also Briston v. Sequeville, (1850) 19
L. J. Ex. 289; Stamp Act, 1891, Seo, 14 (4) and Stonelake v. Babb, (1770)
5 Burr, 2674,
(b) Bhagvandas Kishordas v. Abdul Huselin, (3 Born, 49); Dono. 89,
(c) Ref. (9 Mad. 358), and see Ref, (15 Mad. 386) ; Dono, 89.
(d) Raghu Nandau Thakar v, R11,m Charan Kupali,- (10 W ,R,, F,B,
39) ; Dono. 89,
(e) Allen v, Morrison, (8 B. and C. 565J, See also Ref. (15 Mad,
.:.1386) ; Dono, 292.
(fJ Alpe, 'Law of Stamp Duties,' (14th Ed.), p. l64.
(g) Allen v. Morrison, (8 B, and C, 565); Dono. 112.
630 CH. X:XVI.-STAMP LAWS. SCHEDULE B, PART I OF STAMP ORDINANCE. 631
Stamp on an instrument authorising a proxy to vote at one meeting. ' Policy of Insurance ' includes-
inclu!]ing any adjournment thereof, ld, The date of the meeting must,. (a) Any instrument by which one person, in consideration of a
appear in t~e instrument, Any other proxy requires a 10s, stamp (a), premium , engages to indemnify another against loss, damage, or liability
arising from an unknown or contingent event ;
If the instrument appointing the proxy adds "and if expedient to
demand a poll," it Aeems that 'a 10s. stamp will be n.ecessary, If the (b) A life policy, and any policy insuring any person against accident .
words are omitted the proxy l?ill have D!J power of dem'l.nding a poll (a) . or sickness, and any other pereonal insurance ; and
(c) Any writing evidencing the renewal of, fa~ the purpose of keeping
Revocation of a proxy required no stamps under the English Law (b) .
in force, a policy of fire insurance in respect of which, and of the previous
Authority to auctioneer to sell land by auction, renewal whereof (if any) there has not already been paid the stamp duty
which would have been chargeable if the policy had originally been
It is questionable whether this authority is not chargeable with 10s, granted for a longer term than six months,-Seo. 3 (18).
as a letter of attorney . The point does not seem ~o have been decided; .
and apparently the usual practice is to stamp such authorities with " Policy of sea insurance" or ' ' sea policy "-
6d. stamps (c), (a) Means, any insurance made upon any ship or vessel (whether for
muine or inland navigation), cir upon.,t;he machinery, t ackle , or furni -
A proxy to a proctor to be filed in a case is stamped according to the ture of any ship or vessel , or upon any goods , merchandise, or property of
class of the case as provided for in Parts II and III. any description whatever on board of any ship or vessel, or upon the
freight of, or any other interest'whioh may be lawfully insured in , or relat-
Duty, .
ing to, any ship or vessel ; and
Rs. c. .(b) Includes any insurance of goods , merchand ise, or property for any
36. LETTERS OF Venia setatis 100 O transit which includes , not only a sea risk within the meaning of
clause (a), but also any other riek incidental to the trans it imured from
37. LETTER OF LICENSE from creditor to debtor .. . 10 o., the commencem en t of the transit to the ultimate destination covered by
the insurn.nce,
38. MORTGAGE.-See Bond. Where any person, in consideration of any sum of money paid or to
be paid for additional freight or otherwise, agrees to take upon himself
39. NOTARIAL copy of, or extract from, any instru-
any risk attending goods, merchandise, or property of any .descrip,tion
ment other than a copy or extract from any whatever while on board of any ship or vessel, or engages to inde~nify
will or codicil or of any document mentioned the owner of any ~uoh goods, merchandise, or property from any risk ,
in Part III of this Schedule. [Sec. 4 (11) loss, or damage, such agreement or engagement shall be deemed to be a
of 32 of 1919]. 1 O contract for sea iosurnnoe .-Beo, 3 (19),
A 'policy of insurance ' is an instrument by which one party, in
[Partition deeds are exempt from duty (37 of 1916)]. consideration al a premium , engages to indemnity another against a
. contingent loss, by making him a payment in compensation, if and when
40. PARTNERSHIP, instrument of 10 0 the evont shall happen by which the loss is to aoorue (a),
'Insurance' is a contract by which a person , company , or society,
41. POLICY OF INSURANOE:
in consideration of a gross sum or of a periodical payment, undertakes
In the c11se of sea insurance 0 25 to pay a larger sum on the happening of a particular event, The considera-
In the case of insurance against risks by fire 0 25 , tion is termed, the premium or premiums; the party entering into the
undertaking, the assurer or insurer ; the party for whose benefit it is
In the case of any other insurance, when the entered into, the assured or insured ; the happening of the event, the risk ;
amount insured does not exceed Rs . 1,000 ... 0 50 and the instrument containing the con.tr[!,ct, tl?,,e policy (b)_,
For every further Rs. 1,000 or part thereof . .. 0 50"
(a) Stephen, 'Laws of England'; Dono. 84.
(a) !l Ency. 685, (b) 4 Ency, 846, (c) 2 Enoy, 458. (b) Smith 'Mercantile Law' ; Dono. S!l,
 SCHEDULE B, PART I OF STAMP ORDINANCE. 633
632 CH, XXVI.-STAMP LAWS.
A certificate of membership oi a Provident .Society purporting to Proviried also that this exemption shall not
effect an insurance on the life of a person, in favour of another named extend to a receipt or acknowledgment for
therein, is a policy of life insurance (a). any sum paid or deposited for or upon a
Marine insurance is a contract by which one party, for a stipulated letter of allotment of a share, or in respect
s um, agrees to indemnity another against loss of a ship, or the goods, or
-of 11, call upon any scrip or share of or in
the freight, or the profits expected from the cargo, or of all or any of them,
during a certain voyage or a certain period (b). any incorporated company or other body
Duty. corporate or such : propos.ed or intended
42. PROMISSORY NOTE.-See Bill of Exchange. Rs. c. company or body, or in respect of a deben-
- ture being a marketable security.
43. PROTEST of any bm of exchange or promissory
note for any sum of money not exceeding 'Receipt endorsed on or contai'ned in .any
Rs . 200 1 0 instrument duly stamped, or exempted
Exceeding Rs. 200 and not exceeding Rs. 1,000 1 50 under the proviso to section 4 (instruments
executed on behalf of Government), acknow-
Exceeding Ra. 1,000 and not exceeding
ledging the receipt of the consideration
Rs: 5,000 2 50
money therein expressed, or the receipt of
Exceeding Rs. 5,000 5 0 any principal money, interest, or annuity, or
44. PROTEST.-Ship protest in consequence of loss other periodical payment thereby secured.
or damage by storms and tempestuous Receipts given for the return of any duties of
weather, by jettison, or by collision, straud- Customs.
ing, or fire 20 0
Receipts given for value of goods taken by the
45. PROTEST of any other kind 2 50 Crown for undervaluation.
46. PimXY to vote at any meeting.-See Letter or Receipts or discharges given by any officer in
Power-of-Atbornoy. the service of the Government of Ceylon in
4 7 RECEIPT or discharge given for any money or the execution of his office. Provided that
other property amounting to Rs. 20 or up- this exemption shall not include a receipt
wards O 6 given by any public officer to the Treasurer
or other authority for the payment of. the
Exemptions.
salary of such public officer,
Receipt given for money or securities for
money deposited in the hands of any banker Receipts or discharges for pay or allowances
to be accounted for. Provided that the given by officers and soldiers of His Majesty's
same is not expressed to be received of, or forces for the time being stationed in this
by the bands of, any other than the person Colony.
to whom the same is to be accounted for. "Receipt" includes any note, memorandum, or writing-
(a) Whereby any money, or any bill of exchange, cheque, or promis-
(a) In re Rimat Provident Society, (25 Bom, 876) ; Dono. 85. 'Sory note .is acknowledged to have been received ; or
(b) Arnould. And see.Marine Insurance Act, 1906 (6 Edw, VII, (b) Whereby .any other move:i.ble property is acknowledged to have
c, 41), Seo. 1 ; Dono. 87. been received in satisfaction of a debt; or
80
 634 OH. XXVI.-STAMP LAWS.
(r) Whereby any debt or demand, or any part of a deb~ or demand
is acknowledged to have been satisfied or discharged ; or
(d) Which signifies or imports any such acknowledgment ; a!!'a
whether same is or is not signed with the name of any person.-Seo, 3.
(23).
"Any writing which signifies or imports an acknowledgment is
.e~o~gh. Entries import an acknowledsment, whether they are merely
rn1tialled, or whether in addition to the initials they contain the words-
' entered or 'received ' (a),
Where the receipt of a cheque for Rs. 100 was acknowledged by letter-
in the following terms-''. Your cheque for Rs. 100 to hand," it was held-
that it should have been stamped (b),
A mere note or memorandum of the payment oi a sum of money on
a pieoe of paper is not a ' receipt ' unless it is given to the person to
whom the money is due, to be kept by him as his voucher (c),
A Bank memorandum, purporting to intimate that money remitted
by one person had Leen credited to the account of another, was held to
require no stamp, as the money did not appear to have been paid in
satisfaction of a debt, and fnrther that, even assuming that it was so-
paid, the document was not ' a receipt of discharge ' because it was not.
given to the party who had paid the money. "The document in question
is nothing more than the ordinary intimation wh ioh the Bank gives to
its customer that a certain sum has been paid in by the Oommissioner of
Stamps to his credit. If the instrument were a receipt, then in a oaee
where it would be proper for the Bank to give notice of a particular-
payment to several different people, each one of the notices so giveu
would have to be stamped as a receipt. It seem9 to us perfectly clear-
that this was never the intention of the Stamp Aot " {d).
The writing off of a debt wbioh is intended to be considered as a.
payment of money, though no money p,>sses, would be a receipt and liable-
to stamp-duty. An instrument, however, which only admitted a settle-
ment on a by-gone day, might operate merely as an admission (e),
Before an acknowledgment for the payment of money oan be-
chargeable as a receipt the relation of debtor and creditor must be shown
(a) Per Lord Russell, C.J., Attorney-General v. Carlton Bank, [L. R.
(1899) 2 Q, B. 158] ; Dono, 94,
(b) Queen-Empress v. Muttitulandi, (11 Mad, 329) ; Dono. 94.
(c) Day v. Glaister, (37 So, L, R, 736) ; Dono. 95.
(d) Per Garth, C. J,. In the matter of the Uncovenanted Service-
Bank, (4 Cal, 829) ; Dono, 95.
(el Lucas v, Jones, (5 Q, B. 953) ; Dono, 95,
SOHEDULE B , PART I OF STAMP ORDINANCE. 635
to exist. No such relation exists between fellow -servants or employees of
~ a company or firm (a).
A receipt given by a barrister for a fee is exempt from stamp-duty, as
being for the payment of money without consideration. " A barrister's
foe for services in litigation is a gratuity or honorarium. The relation of
counsel and client in litigation creates an inc!!opaoity Lo contract for such
services. Such services are not ,c apable of forming suob a valuable
consideration aa will support an action on the client 's promise to pay, and
conversely, if the client does pay, the payment must be held to be one
without consideration" \b).
More recently it has been held in Engh,nd that Cotimel's receipts are -
not exempt (c).
Receipt by endorsement.-A receipt endorsed or contained in auy
duly stamped instrument acknowledging the paymer,t of consideration, .
money or any periodical payment is exempt from duty (d),
The word ' settled, ' written on a bill, by way of a receipt, with the- ,
writer 's initials appended, was held to be a receipt and liable to duty (el.
"No country takes notice of the revenue laws of another" (/),
Where certain receipts for money lent in France were not stamped as ,
requ_ired by the laws of that country, and objection was taken on that
ground to their admisAibility, it was overruled, "It has been settled, or
at least considered as settled, ever sinoe the time of Lord Hardwioke, that
in a British Oourt we cannot take notice of the revenue laws of a foreign ,
State, It would be productive of prodigious, if in every case in which an
instrument was executed in a foreign country we were to receive in
evidence what the law of that country was, in order to :asoertain whether
the instrument was or was not valid" (g),
A document which by the lllw o_f a foreign country is not admissible
in evidence for want of a stamp may nevertheless be admitted in this .
country. But where by the foreign law the want of a stamp renders a
contract void , it cannot be enforced here (h)_,
(a) In re Burn & Co. / (37 Cal. 634); Dono. 96,
(b) Ref, (9 Mad, 140) ; Rel. (16 All. 132) ; Dono, 96.
(c) General Counsel of the Bu v, Commissiouers, L. R. '(1907) 1 K.
B, 462 .
(d) Dono. 97. See also Exemption above,
(e) Ref, 3 All. 793; Dono. 94,
(fl Per Lord Mansfield, C. J,, Holman v, Johnson, (1 Cowp, 3!13) ;
Dono. 103.
(g) Per Abbott, C, J., James v, Catherwood, (3 D. an.d R, 190) ;.
Dono, 103.
(h) Bristowe v, Sequeville, (5 Ex,. 275) ; Dono, 104.
 ,636 CH, XXVI.-STAMP LAWS,
A duplicate receipt would be liable to stamp-duty under Art, 25 of
the Indian Stamp Act, 1899 (No. 2153 , 20th July, 1883), But the same
purpose may be served equally well by copies of the original, which need
not be stamped . (B. 0. O. No , 17 T. F., 19th Aug. 1884) (a),
An endorseme nt on a mortgage acknowlecging the receipt. o! t he sum
secured thereby is exempt under this l)rov ision (b),
Where from t he number of receipts endorsed on a bond there was no
longer room for receipts to be written, it was held that reoeipts u pon blank
paper annexed to the bond might be read in evidence (c).
A receipt given by a Secretary or other Manager of a Cl u b to a
member acknowledging a payment of money Rs. 20 or more on account
-of a Club bill, is lia ble to stamp-duty (d).
A payment of money by a cashier to an assistant in a firm is a
payment without considerat ion (e ),
A receipt t o be a ' receipt ' or 'discharge' must be given to the party
.
who makes the payment (1) .
A mere note or memorandum of the payment of a sum of money on
a piece of paper is not a '' re,c eipt " unless it is given to the person to
whom the money is due, to be kept by him as his vouch6r (g) ,
A memorandum importing tl~at one party had paid a sum of money,
'but importing no acknowledgment from the other of his havi ng received it
is not a receipt (h) .
A memorandum of a transaction whe reby one debt is set off against
. another of equal amount and both thereby discharge:! is n, receipt and
.requires a stamp. " When the parties agree to consider both debts
discharged without actual payment it has the same effect, beoause in
Qontemplation of law a pecuniary transaction is supposed to have t aken
place by which the debt was then paid (i) .
Mutual releases by two persons, whereby each of t hem releases the
-other of them from all claims, demands, etc,, requires stamping (j).
(ai Dono, 297.
(b) Ref,, (10 Mad, 64) ; Dono. 297,
(c) Orme v. Young, 4 Camp, 336; Dono. 297,
(d) Ref, , (10 Mad, 85) ; Dono, 297,
(e) In re Burn & Co., (37 Cal. 634); Dono, 297,
(/) In the matter of the Uncovenanted Service Bank, Ltd ., (4 Cal.
829) ; Dono, 298,
lg) Day v. Glaister, 137 So. L. R. 736); Dono . 298,
(h) Rex v. Harvey, (B. and R. 227); Dono, 298.
(i) Per Lord Campbell, C,J., Livingstone v, Whiting , (15 Q. B. 722) ;
.Dono. 298.
(i) 11 Ency, 452,
SCHEDULE B , PART I OF STAMP ORDINANCE. 637
Receipt by officers and crew fo r a m ou nt of salvage awar ded by
arbitrator. Ellch pa rty to this receipt mu st affix a receipt stamp if the
amount individually received exoeeds g (a).
Receipts endorsed on mortgage und er some of the E nglish Acts .-No
stamp required (b) ,
A rece ipt, contained in or indorsed on an y' inst rum ent li able t o
stamp-duty and duly stamped, need not be stamped aR a reoeipt (c),
A receipt gi ven by a pawn-broker is n ot li able t o stamp-duty, [Th e
Ceylon Ord. N o. 8 of 1893 makes nc exception though a fo rm of th e
receipt is given ] (d).
Receipt t o be endorsed on mortgage.-No st am p required unless t he
receipt includes costs (e),
48. RESPON DENTI A BOND.-Any instrument secur -
ing a loan on the cargo laden or to be laden
on board a ship and making repayment
contingent on the arrival of the cargo at
the port of destination.-The same duty as
on a bond [15 (b)] for the amount of the
loan secured.
There is a distinction between a R esponden tia Bond and a Bot tom ry
Bond (Art . 15 j) which is th e hypothecation of a sh ip. Thi s relates t o
the oargo only, The exem ption re an y m ortgage, eto., of a ship contai ned
in Sec, !l (ll ) affecting Bottomry Bonds, would , It is presumed, have no .
application to these(/).
[F or furt her notes Bee article le, supra .]
Duty,
49. SHARE CERTIFICATE.-- On eacb Rs. 100 of Rs . c.
the face yalue of the shares, scrip, stock, or
debenture stock to which the certificate
relates 0 50
Exemptions.
(aj New share cer tificates issu ed upon a subdivi -
sion or consolidation of exis ti ng shares
(a) 1!l Ency . 173.
{b) 3 E ncy, 56,
(c) Sta mp Act, E xemption, 1 E ncy . 207 .
(cl) 1 Ency, 216 (11),
(e) Fi rth & Sons, L td. v. Commissioners of Inland Revenu e, (1904 )
2 I{. B. 205
(f ) Dono, 300,

638 CH: XXVI.-STAMP LAWS.
forming the capital (original, increased, or
.reduced) of any joint stock company.
(b) New share certificates issued in lieu of share
certificates-lost or destroyed, or in lieu of
existing share c1,rtifioates, but for a greater
or less number of shares, as the case may
be.
-50. SHIPPING ORDER for the conveyance of goods
on board of any vessel
51. TRANSFER or assignment (a) of bond, mort-
gage, lease, or judgment dabt.-The same
duty as on a bond for the same amount as
that of the iponey secured, consideration
paid, or security assigned or amount due
under decree.
, (b) Of debentures or debenture stock being mar-
ketable securities, whether the debenture is
liable to duty or not. --One-fifth the duty
payable on a conveyance [22 (b)] for a
consideration equal to the face value of
the debenture or debenture stock.
Provided that in the case of a transfer or assign-
ment of debentures by a broker acting as
such in favour of the actual buyer-
Where the face value of the debentures does
not exceed Rs. 5,0001 the duty shall be as
on a transfer of debenture3 [51 (b)] ; and
In any other case Rs. 10.
-51 A. Transfer or assignment of any policy of
insurance for any consideration, the same
duty as on a conveyance [22 (b)], provided
that for purposes of calculation of duty the
value of the policy shall be its surrender
value at the time of execution of the trans-
ier.
PUBl. .i 1....
JA;
Duty. -51 B. Transfer or assignment by way of gift. of
Rs . c. any policy of insurance, tbe same duty
as on a gift (30), provided that for purposes "
of calculation of duty the value of the
policy shall be its surrender value at the
time of execution of the transfer.
51 c. Transfer or assignment of any market-
able security by way of security for money
advanced or to be advanced by way of loan
0 6 or for an existing or future debt, the same
duty as on a bond or mortgB,ge [15 (b)].
.51 D. A release or discharge of any such trans-
fer or assignment, or a re-transfer or re-
assignment for the purpose of such release
or discharge, Rs; 10.
Where 11 mortgage-debt is assigned to a third party and the mort-
gagor and mortgagee both join in the assignmer.t the instrumer.t is
,chargeable as a ' transfer of a mortg11ge,' and not as a ' release ' (a),
A transfer of a lease by way of aasignment ie to be distinguished from
,a sub-lease. In the former the rights and interest.s of the lessee, though
n ot necessarily bis liabilities are transferred absolutely, whereas in the
,latter they are not, for he still retains his reversion (b).
The duty is pa,able on the consideration actually mentioned in the
conveyance, i.e., the amo unt of the purchase-money, and the rent reserved
by the deed should not b[, taken as part of the oonsideration in respeot of
which the transfer is chargeable (c).
An express surrender of a lease is efiec ted by the lessee yielding up
his interest under the lease to the lessor by mutual agreement between
them, and the lease is thereby terminated (d).
A document which purports to be an actul\l assignment of crops and
growing produce must be stamped as a conveyance or mortgage accordi ng
.as it is absolute or conditional (e),
(a) Humpheys v. Commissioners, (81 L. T . 199/; Dono. 306.
(b) Dono. 307.
(c) In re Indian Stamp Aot, (24 Bom, 257) : Swayne v. Commissioners,
{L. R. (1900) l Q.B. 17~j; Dono, 308.
(d) Transfer of Property Act (IV of 1882), Sec, 3; Dono, 304.
(el 5 Ency . 359 .
 CH. XXVI.-STAMP LAWS, REGISTRATION DUTIES .... .. 08D, NO, 11 OF 1919. 641
640
Assignment of leasehold premises and good-will and business as a,, SCHEDULE III. Rs. c.
going oonoern-Gtamp ad valorem on the amount of the purchase-money
and the amount of the debts against which the purchaser covenants to (See Section 18 of 14 of 1891) .
indemnify the veudor (a), 1. Every instrument of release, surrender; or annul-
Conveyance of hereditaments omitted by mistake from parcels of ment, and every receipt or discharge-
previous conveyance-Stamp 10s, (b),
Assignment of the freight and earnings of a ship as security for a Where the amount for which such instrument
debt, Sta.mp , ad valorem, as a oonveyanoe on sale, on tbe amount of or receipt or discharge is given does not
debt covenanted to be paid (c) , exceed Rs. 5,000 .. . 2 0
Assignment of a simple contract debt,-Stamp ad valorem on the
consideration as a conveyance on sale unless the all valorem duty had Where it is indefinite, or it exceeds Rs. 5,000. 5 0
been paid on tbe oontraot-for the sale or assignment of the debt (d),
Assignment of book-debts in consideration of assignor's debt to 2. Every instrument of partUion, and every judg-
assignee-Sta.mp ad valorem upon the amount of the debt discharged (e), ment or decree of court decreeing such
Assignment of part of a debt owing to the r.ssignor with power-of- partition, where the value of every land
attorney to sue for it-Strunp ad valoren upon the consideration in respect
partitioned and divided does not appear on
of which the:assignment is made(/).
Duty.
the face of the instrument or judgment or
Rs. c. decree : for each land so partitioned and
50 0 divided, a duty of. .. 5 0
52. WARRANT to act as a notary public
Proviso.-Where any person duly authorized Where the value of every land appears on the
to practise in any area shall be afterwards face of the instrument or judgment or
authorized to practise in any other area, the decree, and the total value does not exceed
subsequent warrant shall be subject to Rs. 100 1 0
Rs. 25.
Where it exceeds Rs. 100 and does not exceed
[Ord. 10 of 1919.] .. . 2 (7) 21
Rs. 250 .. . 2 0
(Warrant or prwer-of-attorney to confess judgment-comes under Rs . 250 do. Rs. 500 .. . 3 0
Do.
heading" Miscellaneous,'' Pt. II-Stamps Rs. 6.) Rs. 1,000 .. . 4 0
Do. Rs. 500 do.
Do. Rs. 1,000 do. Rs. 2,500 . . . 5 0
III.-Registration duties as amended by Ordinance
Do. Rs. 2,500 do. Rs. 5,000 .. . 7 50
No. 11 of 1919.
Ceylon.
Do. Rs. 5,000 do. Rs.10,000 ... 10 0 .
And every further Rs. 10,000 or part of
[DATE OF COMMENCEMENT : JULY 1, 1919.) 10 0
Rs. 10,000
2. Schedules III. and V. of the .
Substitution of principal Ordinance are hereby repealed, 3. Caveat, for every land affected thereby 12 50
new schedules III. and the follo:,ving shall be inserted in the,
and V,
principal Ordinance in lieu thereof. 4. Every instrument of any kind whatsoever not
charged in this schedule nor expressly
{a) 12 Ency, 895, (c) 16Ency , 675, (e) 3 Ency, 534,
exempted from registration duty 12 50
(b) 12 Ency. 473, (d) 3 Ency, 533, (/) 3 Ency, 535,
81
642 CH. XXVI.-STAMP LAWS.

Provided that nothing in this item contained Rs. c.

shall render liable to duty under this Ordi-
nance any writing or bill of sale requiring
registration under Ordinance No; 8 of 1871,
or any instrument of sale, purchase, trans-
fer, assignment, or lease, or mortgage of any
immoveable property, or o(promise, bargain,
conti."act, or agreement for effecting any
such object, or for transferring~any security, INDEX.
interest, or. incumbrance affecting such
PAGE
property, or of contract or agreement for
.A BSTRACT OF TITLE 50
the future sale or purchase or tra.nsfer of
ACCEPTANCE, of bills of exch ange for hon or 490
any such property.
ACCESSION. a deed of, to a par tnership deed 35!1
5. Every judgment or order of court affecting A CCOUNTS 504
immoveable property, and every probate of ACKNOWLEDGMENT 504
a will or let,ters of administration 6 0 ACQUITTANCE OR .RECEIPT 505
ADDRESSES, registration of, of mo rtgagees 77
ADMINISTRATOR, sale of ho ds by an 161
form of a oonveyanoe to an heir by a n 532
AGISTMENT, agreement for the, of cattle 393
AGREEMENT, of exch ange und er Ord . 10 of !861 amounting to
a transfer 448
form of an, to refe r dispu t e to arbit ration 523
form of an , by oredito rs to accept a oom903ition payable
by instalments 527
.A GREEMENTS, definition a nd s cop e 368
"oausa" or consideratio n 372
an te-nuptial contracts 375
pen al sum 375
form of an ante-nupti al contract 377
form of an agreement for the sale of property 379
form of an agreement fo r letting an intended puroh aser
ir.to poseession 380
fo rm of an agreement for Je 13,se of a house 380
form of an agreement between a merchant and a factor 391
fo rm of a building oonLract 383
transfer agreement 385
t o give dowry 388
correcting the descr iption of a l1md in a, transfer 389
t o get reduced rate of in terest on an assigned bond 390
i o grant a.n annuity 391


INDEX. INDEX. 645

644
PAGE' P AGE
AGREEMENTS-(Concludad),
392 AVERAGE .BOND , fo rm of an , agreem-'nt 403
annuity created by Insurance Company
393 BILL OF L ADING, definiti on 399
agistments
milk for meat agreement 394 form of a 409
507 pr otest for ref using to sign a,, fo r go ods sh ipp ed a t t he
ANNUITY
bond to secure payment of , by granter 204 freigh t contracted 410
agreement to grant an 391 BILL OF BALE, and hire pu rch ase 103
392 /
created by Insurance Company ,
BILLS OF EXCHANGE, PROl'dISSOR ~ N OTES AND CHE QUES .
APPOINTMENT, by a widow of oue moiety of property in a marriage presen\msnt, noting and prot esting 47 9
settlement subject to her life estate a.ad power of revo- pres entment ior accep tance 481
cation 513 present ment for pay_men t 483
by a married woman under a general power in ma.rriRge noting and protest 484,
settlement 5.15 notice of dis h onor 488
511 protest fo r _be Her security 489
APPOINTMENTS AND POWERS
a~cept,.nce for h onor 490
APPORTIONMENT 516 494
payment for honor 's upra prot est '
APPRENTICESHIP 517 promissory notes 495
articles of clerkship 518 ban ke r's che ques 497
form of articles of apprenticeship by a not arial clerk 518 form of a 497
general form of, where an infant binds himself with form of a cheque 499
consent of bis guardian ,. 520 form of a protest of a bill on non -acceptance 499
form of noting for non-aooepta.noe 500
A REIT RATION 5'.U
memorandum of service 500
ARRANGEMENTS AND COMPROMISES 524 form of a protest of a bill for bette r securi t y 500
form of an agreement by credi tors to accept a composi- form of a protest of a. bill on non-pay ment 50 1
tion payable by instalments to be secured by promissory form of a protest of a bill by a resident where t he services
notes and to execute a release 527 of a notary cannot be obtained 501
form of a deed of assignment t o a trustee for the benefit form of an act of honor on paymen t 502
of creditors with a release for debt 529 form of an act of honor on a ccepta nce ' supra protest '
by the drawee for pa,r t of the amount for the honor of
ASSIGNED BOND , agreement to get reduced rate of interest on
390 t he d rawer 502
an
for m of a no ta.rial notice of noting , or of a protest for
451
ASSIGNMENT non -acceptance or non-payment 503
of toddy rent 257
form of an assignment of a.n agree m en t fo r the purchase BOTTOM RY , defin ition 395
455 fo rm of a bottomry bond 400
of an estate
form of an assignment of a decree 456 383
B UILDING CONTRACT , fo rm of a
form of an assignment of a Policy of Life Assurance 458
BYLBOND , definition 396
sale of a policy . 458
460 CANCELLATION, of a lea.se bond 243
of debts
of good-will, fixtures and book debts 461 CATTLE , ag reement for the agistment of 393
transfer or , of a lease from Government 462 -CEYLON ORDINANCES, See under ORDINANCES ,
form of a, deed of, to a trustee fo r the benefit of cred it ors CHARTER-PARTY, definition 397
with a release for debt 529 405
a oandian timber-charter
397 protest for breach of 408
AVER AGE , definition
646 INDEX. INDEX . 647
PAG E DEED- (Oo nclude d /, PAGE
CHEQUES, See under BILLS OF EXCHANGE , PROMISSORY NOTES of exchang e 444
AND CHEQUES, . form of a , of ootnpJsiti on 526
banker's cheques 497 form al p,uts of a don a tion deed 329
form of a cheque 499
DEED OF EXCHANGE 444
CLERK, bond to a firm for faithful service of a 199 fo rm of a 415
156 exoh a n;Jii und er t he L and Acqu isition Ord in a nce 447
COCOANUT ESTATE, transfer of a
28& agreY.m ent of exob111Jge und er O rd , 10 of 1861 amoun t-
CODICIL, form of a ing to a t ransfe r 448
COMPOSITION DEED, fo rm of a
526
cer tificate of exchan ge und er, Ord, 10 of 1861 a.m ounti n g to a
OOMPROMISES, and arrangements 524 t ra n sfer 450
CONDITIONS OJ;' SALE, auction 109 })EEDS , kinds of 19
CONSIDERATION . for agreements 372 r elativ ~ to s h ippi n g 395
375 of part ition 438
CONTRACTS, ante -nuptial contracts
194 S ee under MISCELLANEOUS DEEDS AND FORMS WITH
CONTRIBUTORY MORTGA GE, to a college a nd a m ission NOTES.
CONVEYANCE, definition
13
DEEDS OF PARTITION 438
form of a, to an heir by an .i.dministrator 5311
form of a 440
by an executor 534
bet ween t h ree tenan t s in aornrnon, one pg,yi ng a s um fo r
fisca l's conveyance
553
equality of put ition 442
CONVEYANCE IN FEE, of a first, rent charge 173
DE E DS REL ATIVE TO S HIPPING, definitions 395
CON VEYANCES IN A TESTAMENTARY CASE 531 form of a bot tomry bond 400
CONVEYANCING, definition
13 form of a respo nden t ia bond on a voyage to the Eas t
391 Ind ies 401
Cows, agreement for the agistment of milch
336 fo rm of an a verage band agreement 403
CROWN, gift t o cha rter-pa rty-ordinary fo rm 40 4
535
CROWN GRANT ch arter- pa rty (a oan dian ti mber-char ter) 405
CROWN LAND, lease from Government of 239 protest for breach of cha rter-pa r ty 408_
CURRENT ACCOUNT, mortgage to secure overdraft of a, to a form of a bill of lading 409
193 pr otest for refu sing to sign a bill of la.din g for goods shipped
bank
DEBTS, assignment of debts 460 at t he fr eight con tra cted 4fo
461 form of a sea _prot est of a vessel U l
assignipent of book debts
540 ship protest, in oonsequeuoe of loss or damage by st orms
DECLARATION , by a wife regardin g Ted iatedd a m
and t empestuous wea ther and a lso by jettison 41 2
538
DECLARATIONS DEFEASANCES 541
DECREE , form of an assignment of a
456
DEWALA , unde r Ka.ndyan Law 102
21
DEED, requisites of a DISCLAIMER OR RENUNCIATION 514
formal parts of a
24
40 DISINHERISON , under Kandyan Law 98
who could exeonte a
who could be a witness to a . 47 DONATION, definition 318
48 its scope 321
construction of
registration of deeds
60 acceptance 324
611 revocation of donations 327
registration, optional
145 formal parts of a donation deed 329
formal parts of a purchase
fidei oommissum-Rules for interpretation of a deed 307 'dona.tio mortis cause. ' 331
 INDEX. 649
648 INDEX-
F ORM-(Continued) . P AGE
PAGE
DONATION-( Concluded). of an agreement by creditors to accept a composition p11y-
333
form of a, inter vivas able by instalments 527
335
donation mortis oausa-short form of an agreement for lease of a house 380
336
gift to Crown of an agreement botween a me rchant and a faotor 381
gift oi la.nd to Government for a school
337
340 of a n agreement for letting an intended purchaser into
gift of land to a school possession 380
gift of land to a mission for helping a school
342
343 of an agreement for the s1le of property 379
gift by . dse:l of a share in a raoe horse of an annuity 508
549 of an ant~-nuptial contract 377
DOWRY
388 of aztioles of Bpp rentioesbip by a notarial clerk 518
agreement to give
401 of an assignm ent of au agreement for the purchase of an
EAST INDIES, voyage to, form of a respondentig, bond on a
172 estate 455
ENGLISH LA.W, s,implest form of a purchase deed under the 456
102 of an assignment of B decree
ESWEDDUMMA, under Kandyan Law of an assignment of a Policy of Life Assurance 458
56 497
EXAMINATION, of title al a bill of exohange
4!14 of a bill of lading 409
EXCHANGE, deed of
under the Land Acquisition Ordinance 447 of a bottomry bond 400
See under DEED OE' EXCHANGE, of a building oontract 383
279 of a cheque 499
EXECUTORS 288
of a oodioil
EXECUTORS AND TRUSTEES, release by residuary legatees to, 526
476 of a deed of composition
the accounts being set forth in a schedule 532
of a conveyance to an heir by an administrator
FIDE! COMMISSUM, definition
29!1 of a deed of appointmen t of a parcel to children to be endor-
297 512
different ki nds of sed on a deed of release
who may be affected by a
300 445
of a deed of exchange
'jus accresoendi '-what is it? 300 543
of defeasanoe
how far does ' jus acorescendi ' affect, property 300 545
of a deed of disola.imsr by an executor and guardian

effect of prohibition of alienation out of the family

bow does, end
303
305
of disclaimer by one of the ex:eou tors of a will
of a mortgage bond
546
188
.
rules for interpretation of a deed or a will 307 356
of a partnership deed
308 HO
oases creating a of a deed of partitioc
. 315 425
oases creating no of a general power of attorney
' can' fidei oommissnm' property be partitioned 316 429
of a special power of attorney
when is a fidei commissary bound to give any compensa- of speoial clauses in a power of a ttorney !135
316 43!1
tion of a substitution under a power of attorney
oan' fidei oommissum' property be prescribed 317 of a revocation of a power of attorney 435
553 of a protest of a bill on non-acceptance 499
FISCAL' S CONVEYANCE
16 of a protest of a bill for better security 500
FIXTURE, definition
4til of a protest of a bill on non-payment EOl
aseignmen t of
506 of a protest of a bill by a resident where the services oi a
FORM, of acquittance or receipt 501
502 notary cannot be a btained
of act of honor on payment of a bill
ol a receipt endorsed on bond 506
of act of honor on aooeptanoe 'supra protest' by the drawee
502 of a release of lands !170
for part of the amount for the honor of the drawer
357 ,of a general releaRe or discharge from one to one 472
of a deed of aooession-Admission of a son of a partner
523 of retiunoiation 547
an agreement to refer dispute to arbitration
82
 650 INDEX . INDE X . 651
FORM-( Concluded). PAGE LAST WILL AND TESTAMENT-(Ooncluded). PAGE
of renunciation and confirmatio n 548 legacies 277
of repudiation of inheritance 546 exeoutNs 279
401 revocation of wills ' 281
of a respondentia bond on a voyage to the E ast Indies
411 analysis of a will 283
of a sea protest of a vessel
561 ' fidei commissum ' 284
of a deed of separation
542 form of a will of a single person 284, 286
of a warrant of attorney to confess judgment
284, 286 form of a joint and mutual will 287
of a will of a single person
287 form of a codicil 288
of a joint and mutual will
FREEHOLD LAND, form (English) of reconvoyabce of mortgage LEASE, form of an agreement for, of a hous e 380
of 205 from Government, transfer or assignment of a 462
FURNISHED APARTMENTS, agreement to let 231 LEASES, definition 206
incidents to a lease l!l l
GIFT, See under DONATION.
formal parts of a lease n8
GIFTS AND TRANSFERS, under Kandyan L aw 99
lorm of aa indenture of 227
GOOD-WILL, assignment of 461 form of an under-lease 229
GOVERNMENT, gift of laud to, for a school 337 agreemen t to let furnished apartments 231
HIRE -PURCHASE, and bill of sale 103 sporting lease 232
assi,:nment by owner not a bill of sale 106 building lease of an allotment of land for 50 years 234
boticr.-fide, agreement not a bill of sale 106 lease from Government of Crown land 239
option to buy 106 lease by w~y of renewal of an expired lease 242
payment by instalments 106 cancellation of a lease bond 242
INDEMNITY BOND, with two sureties 202 agreement to get lease of palmyra hs for toddy t o refine
sugar 243
INFANT, general form of apprenticeship when an infant binds
lease cf pitlmyrahs to t!ip toddy for refining sugar 247
himself with consent of his guadian 520
toddy rent sale conditions applic!l.ble to toddy taverns
INHERITANCE, form of repudiation of 546 in respect of which " off sales " are prohibited 253
INSURANCE COMPANY, annuity created by 392 aasignment of toddy rent 257
INTEREST , agreement to get reduced rate of, on an assigned bond granted by toddy renter 261
bond 390 LEGACY, release of lands from a, bequeathed to minor, on his
Jus AcCRESOENDI, what is it 300 attaining his majority !!75
how far does it affect 'fidei commissum' property 300 LEGACIES 277
KANDYAN LAW 96 LIFE ASSURANCE POLICY, form of an assignment of a 458
KANDYAN MAR RIAGE, age oi majority 97 MARIT ~L RIGHTS , under Kandyan Law 96
LAND, building lease of an allotment of, for 50 years 234 MARRIAGE, Kandyan, age of majority 97
lease from Governmant of Crown land 239 MARRIAGE SETTLEMENT, appointment by a married woman
purchase and sale of 139 under a general power in 515
LAND ACQUISITION, for a public purpose , agreement and award... 168 MARRIED WOMAN, appointment by a, under a general power in
LAST WILL AND TESTAMENT, definition 263 marriage settlement 515
joint will 266 MERCHANT, and a factor, form of an agreement between 381
interpretation of a will 268 MISCELLANEOUS DEEDf; AND FORMS WITH NOTES 504
witnesses to a will 269
how wills are to be made 270 MORTGAGE, definition 176
capacity to make, and take under, a will 275 its nature and scope 17T
 INDEX. 653'
INDEX.
652
PAGE ORDINANCES REGARDING-(Conc!uded). PAGE
MORTGAGE-(Conc!uded),
194 mortgage for future advances 95
contributory, to a college and a mission municipalities 82
471
release of part of the lands comprised in a naval service 90
174
MORTGAGE BQND, bonds in general nuisance 90
187
its formal parts 188 partition 90
form of a 193 Penal Code 91
by a toddy-renter to Government prescription 91
193
to secure overdraft of current account to a bank receivers of wreaks 89
196
special clauses 198 sale for pol ioe tax 90
security bond by a shroff to a company savings bank 89
202
indemnity bond with two sureties security bonds 90
20!
bond to secure payment of annuity by granter societies 81
form (English) of an ordinary mortgage-deed of freehold tramway 91
204
land in a simple case treasure trove 9il
77 trusts 84
MqRTGAGEES, registration of addresses of
l waste land 93
NOTARY, definition 3
functions of a OVERDRAFT, mortgage to secure, of a current account to a bank . 193
3
powers of a P ALMYRAHS, agreement to get lease of, for toddy to refine
5
rules and regulations relating to not"lries sugar 243
1 lease of, to tap toddy for refining sugar 247
NOTARY PUBLIC, definition
488 PARAVANEY, under K,rndyan La.w 102
NOTICE OF DISHONOR
E, PROMISSORY NOTES PARTITION, deeds of 438
NOTING, See under B ILLS OF EXCHANG
AND CHEQUES, PARTI'l'ION ORDINANCE. certificate of sale under 171
92 PARTNERSHIP DEEDS, definition 345
ORDINANCES REGARDING, abandoned !ands
Bl joint stock companies 349
associations
83 analysis of a partnership deed 351
boards and committees
82 a deed of accession to a partnership deed 354
buddhist temporalities
93 form of a partnership deed 356
cattle voucher
93 form of a deed of accession-admission of a son of a
cemeteries
90 partner 857
certified copies
80 deed of partnership between two proctors 359
churches Bl
colleges dissolution of partnership between two proctors 864
93 dissolution of partnership with power of attorney to one
Criminal Procedure Code
92 to carry on the business 365
dangerous wells 95
enemy firms debenture to a single person 366
95
estate duty POSSESSION, form of an agreement for lel;ting an intended
94
excise 94
purchaser into possession 380
forest post-obit bond 554
94
gift to Crown POWER OF ATTORNEY 417
92
guarantee company form of a general 425
89
insolvency form of a special 429
94
irrigation special power of attorney by a Coy. to sell a ste!lmsbip 430
91
iand acquisition by lln llrraok renter to his employee or agent 431
94
leper
 654 INDEX. IN D.ID/. GM
POWER OF ATTORNEY-(Concluded), PAGE REGISTRATION-(Conc!udc d) . P AGE
form of a substitution undor a ' ... 434 inopern tivo, wber" I.hero h l\9 hee u fraud or collusion in
fotm of a revocation of a 435 ob taining or in socuring the regi stration of t he subse-
forms of special clauses 435 qu ent instrument 75
P RIORITY, is conferred by registration 66 inoperat ive, whero the grantor had no title at the date the
same sou rce 67 instrument was executed 75
adver se interests 69 inoperative, where the grantee under the eariier deed has
valuable aonsideration 72 acquired a title by prescription 75
inoperative, where the owner bas been adjudicated an
PROCTORS, deed of partnership between two 359 insolvent under Ord, 7 of 1853 76
di ssol ution of partnership between two 364 inoperative, where a land has bee n dealt with und er the
PROMISSORY NOTES, See u nder BILLS OF EXCHANGE, PRO Partition Ord. No . IO of 1863 76
MISSORY NOTI,;S AND OHEQOES . inoperative, where the ins trument is void a s being a forgery
or for fraud, illegality. m istake, eto. 76
. PROTEST, for breach of charter-party 408
inoperative , where a n ins trum 8o t is n ot duly r egist ered
fo rm of a, of a bill on non- acceptance 499
or is registered in t he wrong book, volum e or folio 76
PROTESTING , See under BILLS OF EXCHANGE, PROMISSORY of addresses of mortgagees 77
NOTES AND CHEQUES, of deeds-searches 78
P ORCHASE, under Kandyan La.w 99 RELEASE 465
of lands 139 classification 465
'P URCHASE AND SALE OF LANDS, definition 138 recitals in 466
its nature and scope 139 importance of setting out all t. be fa cts 466
formal parts of a purchase-deed 145 oonsideration 467
delivery of the deed 153 operative worqs in a 467
form of a purchase-deed 154 form of a , of lands 470
grant of a right of way 163 of part of the lands com prised in a mortgage 471
sale by an administrator 164 form of a general, or discha rge from on e to one 471!
transfer by an auctioneer or ccmm1ss1oner appointed by mutual releases by two pers ons 473
Court to sell under a mortgage decree 165 by creditors to a debtor 473
conveyance to purchaser by Court 167 of a power of revocation and new appointment 474
la nd acquisition for a public purpose, agreement and of lands from a lega~y beq untbed to min1r '. on his : a t tain-
award 168 ing his m ajori ty 475
certificate of sale to th ird parties 169 :i
by residuary legatees to executors and trust ees , the
certificate of sale under t h e Partition Ordinance 171 accounts being set forth in a schedule 476
simplest form of a purchase deed under the English L '!.w 172 by an unmarried woman of a res traint on anticipc1 tion 559
conveyance in fee of a first rent charge 173 RENT-CHARGE IN FEE, grant of a 510
, PURCHASE DEED, formal parts of a
simplest form of a , ~nder t he English L :i.'w
145
172
RESIDUARY LEGATEES, release by, to executors and t rus teee ,
the accounts being set fo rth in a schedule 476
RECEIPT 505 RESPONDENTIA, definition 396
REGISTR ATION , of deed optional 62 RESTRAINT ON ANTICIPATION 556
confers priority 66
REVOCATION, form of a , of a power of attorney 435
inoperative, where the instrument registered is not one on
74 RIGHT OF WAY, grant of a 163
which the interests claimed are based
inoperative, when there is no competing instrument 74 S ALE , oonditions of 109
when inoperative 74 private contract fo r 11 5

,)
 INDEX. 657
INDEX.
656
PAGE PAGE
SALE-( Concluded),
118 WIDOW, nppolntmont by a, of one moiety of propert,y under
memorandum of
by an
conditions of, of land,*under a mortgage decree, power in B mBrriage settlement sul;>jech to her life estate
119- and power of revocation 513
auctioneer
an
conditions of, by an auctioneer at the request of WILL, ' fidei oommissum '-rules for interprehation of a deed or
121 ', ~-
administrator 12<1 a will 307
conditions of-waste land ordinance
128 See under LAST WILL AND TESTAMENT,
conditions on wbioh Government puts up a lease for
138 WITNESS, who could be a, to a deed 47
oMands 458
. of a Life Insurance Policy
98-
SALE AND MORTGAGE, under Kandyan L<iw
102
SANN AS, under Kandy an Law
337
SCHOOL, gift of land to Government fo r a 340
gift of land to a
489
SEOURITY, protes.t for better
200
SECURl'rY BOND, to a sbroff by bis assistant
560
SEPARATION, from bed and board
101
SERVICE TEN1JRE, under Kandyan Law
SRIPPU'IG, See under DEED.S. RELATIVE TO SHIPPING,
397
SHIP PROTES'r,; ilefinition: -
198
SHROI;'F, secur~ty bond by a, to a qol'.ilpany 200
security bond to a, by his al!liist_a";:ft
232
SPORTING LEASE, form of a
566-
STAMP LA_WS 430
STEAMSHIP, spe~ial power of attorney by a Coy, to sell a
434
SUBSTITUTION, form of ,l, under a powe.r of attorney
243
SUG AR, agreement to get lease of palmyrabs for toddy to refine
247
refining, \ease of palmyrabs to tap toddy for
. 563
SURRENDER MQ '
TEDIATEDDAM, declaration by a wife regarding
TENANTS IN COMMON, deed of partition between three, one pay-
442
ing II sum for equality of partition
5f
TITLE, abstract of 56
examination of
257
TODDY RENT, assignment of
385
TRANSFER AGREEMENT, special form
56<1
TRUSTEES 229
UNDER-LEASE, form of an
102
WADDALE PANATIN 8ITTU 1 under Kandyan Law
542
WARRANT OF ATTORNEY, form of a, to confess judgment
565
to confess judgment
THE LAW PRINTING HOUSE, MADRAS-1921.

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