WIJEYETILEKE v. RANASINGHE

090-NLR-NLR-V-30-WIJEYETILEKE-v.-RANASINGHE.pdf


(. 328
1889.
Present: Lyall Grant and Akbar JJ.WIJEYETILEKE v. RANASINGHE
147—D. C. Ratnapura, 4,573
Statute of Frauds—Agreement to transfer lease of Crown land—Trust—Covenant against assignment—Ordinance No. 7 of 1840, s. 2.
Where a -writing, which was not notarially executed, was expressedin t,Ke following terms :—
“ I, the undersigned D. E. R., have this day received from A. W.the sum of Rupees Six hundred and Thirty-eight, agreeing to givehim a half share of all the rights that X have secured from Govern-ment in leasing the right to collect tea seeds from Miyanowitaestate for a period of 10 years,"—
Held, that the agreement was of no force or avail in law to transfera half share of the leasehold rights mentioned.-
Held also, that where one of the covenants of the aforesaid leasewas that the rights and obligations of the lessee should not betransferred or assigned without the written consent of the TenderBoard, the plaintiff was not entitled to ask for specific performanceof the agreement to transfer the leasehold rights.
Where a transaction between a Proctor and his client is impugnedon the ground of undue influence, the principle stated in section111 of the Evidence Ordinance applies so long as the confldenc earising from that relationship continues, even though that relation-ship has actually terminated.
T
HE plaintiff, who is a Proctor practising in Ratnapura, suedthe defendant for a declaration that he was entitled to the
half share of the lease of a Crown land taken in the name of thedefendant. The plaintiff alleged that the defendant agreed totender for the lease, but the venture should be a joint one and theprofits should be shared equally between them. According toplaintiff, the defendant received a sum of Rs. 638 in cash from himas his half share of the money deposited by the defendant in theKachcheri as rent for the first year of the lease. At the same timethe following document was drawn up :—
“I, the undersigned Don Edmund Ranasinghe of Rakwana,have this day received from Mr. Arthur Wijetileke the sum ofRupees Six hundred and Thirty-eight (Rs. 638), agreeing togive him a half share of all the rights that I have secured fromGovernment in leasing the right to collect tea seeds fromMiyanowita estate for a period of 10 years. ”
( 329 )
The defendant's case was that the receipt was given after he haddeposited the full amount at the Kachcheri, and that in giving thereceipt he yielded to the importunity of the plaintiff. He raisedpleas of undue influence and want of consideration in attacking thevalidity of the document.i
The learned District Judge gave judgment for the plaintiff.
H. H. Bartholomeusz (with A. E. Keunemann and Choksy), fordefendant, appellant.
R. L. Pereira, K.C. (with de Zoyaa, K.C.„ E. Gf. P. Jayetilleke,N. E. Weerasooria, and E. Navaratnam), for plaintiff,-respondent.
April 30, 1929. Lyall Grant J.—
This is an appeal from the District Court of Batnapura. Theplaintiff sought (1) to have it declared that the defendant was atrustee for him in respect of the half share of a certain Crown lease.He asked (2) for an accounting and payment of half the nett incomearising out of the working of the lease. He further asked the Court(3) to order the defendant, on the written consent of the TenderBoard being obtained, to execute an absolute conveyance andassignment of a half share of the leasehold, or if such consent werenot obtained, a conveyance and assignment as between the plaintiffand the defendant.
Judgment was given for the plaintiff as prayed for, and from thisjudgment the defendant appeals.
Certain facts are common ground between the parties, but onother material particulars there is considerable discrepancy betweenthe accounts given by the plaintiff and the defendant respectively.
On these points the learned District Judge has accepted theplaintiff’s version.
It is common ground between the parties that in February, 1924,the Forest Department advertised in the Gazette a certain pieceof land called Miyanaowita as open to tenders for a lease for thepurposes of cultivating tea seed, that the defendant in the samemonth tendered for a 10 years’ lease of the land, that his tender wasaccepted, that he obtained the lease, and proceeded to manage theland.
It is also agreed that the defendant obtained the two suretiesrequired and secured their signatures to the tender form. Furtherit is a matter of agreement that the defendant brought the tenderform to the plaintiff’s office to be filled up by the plaintiff and thatthe amount of the tender is in the plaintiff’s handwriting. It is alsoagreed that on April 2 the defendant paid to the Forest Departmentthe first year’s rent and also that all other charges were paid by him.On the other hand, the defendant, admits that on the same date
1929.
Wijeyetileke
v.
Ranaainghe
( 330 )
ins.
LyaixGrant J.
Wijeyttilekt
«.
Ranasinghe
(April 2) he was paid by the plaintiff Bs. 638, being half the firstyear’s rent and expenses of obtaining the lease, and that he gavethe receipt P 15, which runs asr follows :—
“ Ratnapura, April 2, 1924.
“ I, the undersigned Don Edmund 'Ranasinghe of Rakwana,have this day received from Mr. Arthur Wijetileke the sum ofRupees Six hundred and Thirty-eight (Rs. 638), agreeing to givehim a half share of all the right that 1 have secured from Govern-ment in leasing the right to collect tea seeds from Miyanaowitaestate for the period of 10 years.
“ Signed D. E. Ranasinghe.(On a 6 cent stamp.) ”
It is also substantially agreed between the parties that the plaintiffhad during a number of years prior to this transaction acted invarious legal matters, including a number of Court cases, on behalfof the defendant and members of the defendant’s family. –
The plaintiff however does not admit that on April 2, 1924, hewas the defendant’s legal adviser or that he acted as such in thetransaction.
The lease which the defendant obtained from the Crown containsa prohibition against assignment, in the following terms :—
“ That the lessee’s obligations and rights under the leaseshall not be assigned or otherwise transferred or subletwithout the consent or authority of the Tender Boardpreviously obtained in writing. ”
The defendant’s explanation of how he came to take the lease isas follows :—In 1923, Miyanaowita, a tea seed-producing land, waslying vacant, a previous lease having expired.
The defendant obtained an introduction to the District ForestOfficer and told him he wished to lease it. The District ForestOfficer promised to let him know if the land was to be leased. InFebruary, 1924, he received by post a copy of the Gazettenotice calling for tenders. On this he obtained a tender form,which he took to the plaintiff to be filled up. After his tender wassuccessful he paid the amount on April 2 by a cheque which he hadobtained from a Chetty in Colombo.
Up to this time, according to the defendant, no suggestion hadbeen made by the plaintiff that he should have an interest in thelease. The defendant says that on the afternoon of April 2, afterpaying the rent and charges, he went to the plaintiff’s office to payhim his fee (Rs. 10) for his assistance in drawing up the tender.He asserts that the plaintiff then-begged for a share in the benefits
(• 331 )
of the lease, recapitulating all his services on previous occasions,particularly in connection with pne case, that he pressed Rs. 638on him, and finally dictated the receipt and agreement P 15.
The plaintiff’s story is that in 1923 he-was contemplating openingcertain land in tea and found that the cost of tea seed was heavy,that he happened to see the Government Gazette notice aboutMiyanaowita, and on February 14 happened to go to Rakwana,where he met the defendant at the resthouse. The plaintiff thentold the defendant about the advertisement and said he wanted tomake a tender, and asked the defendant to make inquiries. Hisimpression at the time was that the defendant knew nothing aboutthe advertisement, and he says -the defendant made ho suggestionthat he would like a share. The defendant obtained the informationand gave it to the plaintiff. At the subsequent discussion as to theprice to be offered the plaintiff suggested to the defendant that theyshould go half shares and that the defendant should take the leasein his own name.
In regard to the payment of Rs. 638, he says that the defendantcame to him on the morning of April 2 and told him that theconsideration had to be paid that day. The plaintiff then paid hishalf share in notes as he thought there would be trouble in gettingthe Kachcheri to accept a cheque: The defendant gave him thereceipt P 15, which was not dictated by the plaintiff.
The learned District Judge accepts the plaintiff’s story in toto,but- there are various important features in the case which he hasomitted to consider. He does not deal with the defendant’sevidence in regard to the part he played in having the land put upto tender. That evidence is amply corroborated by the ForestOfficer and by Mr. Ekanayake.
This is very important evidence in view pf the plaintiff’s
. suggestion that the original proposal came from him and that the .defendant was glad to accept whatever the plaintiff chose to givehim. It supports the defendant’s story and casts grave doubtsupon the truth of the account given by the plaintiff. Nor has theDistrict Judge adverted to the fact that the whole consideration for'the lease was paid by a Ghetty’s cheque; a fact which negatives theplaintiff’s suggestion that he gave the defendant half the price innotes in order to enable him to make the payment at the Kachcheri.
The learned District Judge has accepted the plaintiff’s story ofmeeting the defendant at Rakwana resthouse as against thedefendant’s denial, in spite of the fact that the story is entirelyuncorroborated and that the defendant has led evidence whichcasts grave doubts on its truth.
The resthouse-keeper has shown that, although on other datesthe plaintiff’s presence at the resthouse has been noted, there is nosuch entry on that date or in that month. As there is a legal
1989.
LyaixGramt J..
Wijeyetile kev.
Ranasinghe
( 332 )
f888, obligation on the resthouse-keepeT to insist on an entry in his bookLyaxx. by every visitor to’ the resthouse, the non-existence of snch entryQkakt j. at ^ raises a presumption unfavourable to the plaintiff.Wijeyetileke But that is not all. The plaintiff says he travelled on February 14IThiuk'i'iijj Tn ^rom Ratnapura to Bakwana—a distance of about 28 miles—for thepurpose of appearing in a case, the number of which he gave, which'was to be tried there on the 15th'. The defendant has produced thePolice Court records both of the Ratnapura and Rakwana PoliceCourts which show that the case was tried at Ratnapura on thatdate.
– It is clear from the judgment that, the learned District Judgeattaches great weight to the evidence of* the plaintiff from hispersonal knowledge of him as a pleader in his Court.
This personal knowledge may to some extent have diverted, themind of the learned District Judge from the probabilities of the-caseand the consideration of the weight of the evidence‘adduced onbehalf of the defendant. • One must add, however, that the evidencegiven by the defendant in respect of certain subsequent transactionswhich have little bearing on the relevant facts is such as to disinclineone to believe his unsupported testimony.
In my view the plaintiff has failed to prove his story-and up to apoint the probabilities are strongly in favour of the account givenby the defendant.
Even accepting the plaintiff’s story, it is doubtful whether he cansucceed.
It is quite clear that he is not entitled to the remedy of specificperformance, in view of the prohibition against assignment containedin tigs lease.
The Court will not compel the defendant to fulfil a contract ofassignment, when the effect of fulfilment jwould be to work aforfeiture of the lease. (Fry : Specific Performance, s. 958; Lewiv. Bond1; Gregory v. Wilson.2)
I do not understand what is meant by the plaintiff’s demandfor a conveyance or assignment as between himself and thedefendant as distinguished from an absolute conveyance andassignment.
The plaintiff however seeks a declaration that the defendant wasa trustee for him in respect of a half share. For evidence of thealleged trust he must rely on P 15, which by section 92 of theEvidence Ordinance is the only admissible evidence of the contract
between the parties,
> 18 Beav 85.
* 9 Hare 687.
( 333 )
The plaintiff reads this document as an undertaking to give hima joint lease and he relies upon section 84 of the Trusts Ordinance,which reads as follows:—
“ Where property is transferred to one person for a considerationpaid or provided by another person, and it appears thatsuch other person did not intend to pay or provide suchconsideration for the benefit of the transferee, the transferee must hold the property for the benefit of the perstpaying or providing the consideration. ”
I do nob onnk section 84 can be applied to the case of a leasewith a prohibition of assignment. The consideration for a lease ismuch more than the payment of the first year’s rent. It includesan undertaking, not only to pay the rent, in subsequent years as itfalls due, but also to fulfil a number of personal obligations. Itseems likely, that the section is intended to apply to an out-and-outconveyance of land.
P15 appears to me to be nothing more or less than an agreementto transfer an interest in immovable property, and not beingnotarially executed to be of no force or avail in law bv sect.ii-"-> 2 ofOrdinance No. 7 of 1840.
It is for the same reason equally unavailing to prove a trust, by•'ection 5 of the Trusts Ordinance, No. 9 of 1917
No doubt, in fact, the defendant did agree to give the plaintiff ahalf interest in the lease, but that is simply an agreement which thelaw says is void unless proved in a certain way, and it is not so-proved.
It is, however, argued for the plaintiff that the payment of part of’the-price creates a trust. On this point I hold on the facts that theplaintiff did not pay part of the price. The price was paid from-an independent source—by a cheque drawn by a Chetty—andthe money received by the defendant from the plaintiff was notappropriated to the payment.
Even if one accepts the plaintiff's evictence on thus point, I do notthink he has proved a trust by payment of the price. He merelyadvanced money to enable the defendant to get a lease in thedefendant’s own name.
The whole alleged trust lies in the agreement contained in P 15rand for the reasons previously set out, I do not think this agreementcan be admitted to proof.
The fact that some consideration may have been paid for thispromise does not to my mind validate an agreement which is by lawvoid ah initio. In this connection I would refer.to the case o£Adicappa Chetty v. Carvjrpen Chetty.-1
> 22 N. L. R. 417.
1889,
LvaixCtUHI J.
Wijeyetileks
v.
Ranosingkc
1929.
Ltaix •
■ Grant J.
WijeyeMeke
v.
Ranaaxnghe
( 334 )
Even if the plaintiff were to establish a trust, I think ha wouldfail on the ground of having exercised undue influence. It is quiteclear that the plaintiff had for years acted as legal adviser to .thedefendant and members of his family and I hold’that he acted assuch in the present transaction. It was 9m the ground of legalservices rendered that the plaintiff thought that the defendant wasunder an obligation to him. Although the defendant does notappear to have treated the plaintiff with complete confidence, I,think that the plaintiff was in a position to exercig& undue influence)upon the defendant to obtain from him the document P 15, and thathe did in fact obtain the document by the use ofsbch influence. '}The appeal is allowed and the plaintiff’s action dismissed withcosts in both Courts.
Akbab J.—
The plaintiff, who is a Proctor of over 20 years’ standing, practisingin the Ratnapura District Court, sued the defendant in this .case fora declaration, that the defendant is a trustee for the plaintiff inrespect of a half share of a lease of a Crown land called Miyanaowfta.The lease is admittedly in the name of the defendant as the solelessee, but the plaintiff’s case is that, on his suggestion on some datein March, 1924, according to the plaint, which was later altered toFebruary, 1924, and finally fixed as February 14, 1924, the defend.'ant agreed to tender for the lease of this land, the agreement beiiigthat the lease should be taken in defendant’s name, but that theventure should be a joint one and that the profits should be sharedequally between them. Thereafter the tender form was admittedlydrawn up by the plaintiff wherein the defendant is given as tenderingfor the lease on February 26, 1924, at the rate of Rs. 1,206 annualrental for 10 years. It may be noted by me that the two suretieswho were required to guarantee that the tenderer would perform.the conditions of the lease were procured by the defendant.
According to' the plaintiff's version the defendant informed the*plaintiff some time later that the tender was accepted by theGovernment and that the rent for the first year, namely, Rs. 1,206together with a deposit of Rs. 50, had to be deposited on April 2,1924. On April 2, 1924, the defendant came to the plaintiff earlyin the morning and recovered Rs. 638 in cash from him, being thehalf of Rs. 1,206 and Rs. 50 and an additional Rs. 20 which had beenpreviously paid by the defendant when he got the tender form fromthe Government office. It was on that occasion that the receipt(P 15) was written out by the defendant and given to the plaintiff.Later in the day the defendant paid the full sum to the GovernmentAgent, Ratnapura, not, let it be noted, in cash but by chequewhich, according to the defendant, he had obtained from a Chetty
( 335 )
in Colombo, S. P. L. K. K. Karuppen Chetty by name, with whomhe had certain dealings. This document (P 15) is in the followingterms:—
“ I, the undersigned Don Edmund Ranasinghe of Rakwana,have this day received from Mr. Arthur Wijetileke the sum ofRupees Six hundred and Thirty-eight (Rs..638), agreeing togive him a half share of all the rights that I have secured fromGovernment in leasing the right to collect tea seeds fromMiyanaowita estate for the period of 10 years. ”
“ Sgd. D. E. Ranasinghe.
(On 6-cent stamp.) ”
As an agreement to transfer a half share of leasehold rights it isof no force or avail in law. under section 2 of the Ordinance of Frauds,No. 7 of 1840.
The drastic nature of this section has been well explained in aseries of cases, notably in two of them which went before the PrivyCouncil (see: Adicappa Chetty v.CaruppenChetty1 and Arsekularatne v.Perera2), and the judgment of the Privy Council in the case ofArsekularatne v. Perera. 3 Unlike the case of Arsekularatne v.Perera {supra), the plaintiff here, as I shall explain later, asks for anaccounting incidentally in his claim for specific performance of aninvalid agreement.
The plaintiff, who is a lawyer of considerable experience, hopes toget over this difficulty by proving a constructive trust and relies onsections 84, 90, 94, and 96 of the Trusts Ordinance, No. 9 of 1917,and the leading local cases of Gould v. Innasitamby 4 and Ohlmvs v.Oh.lmus,s which were decided before the Trusts Ordinance. He seeksto prove this trust by the proof of two facts which appear to bematerial to his case, viz., that the original idea to tender for thislease emanated from his brain as he was in want- of tea seed to plantup his jungle land of “ a hundred odd acres ”, and that, indeed, hewas generous and liberal in offering a half share of the lease to thedefendant. The second fact the plaintiff attempts to prove is thathe paid a half share of the first year’s rent and the initial expensesof the tender before the full money was deposited on April 2, 1924.
On both these questions of facts the trial Judge has held stronglyin favour of the plaintiff.
In weighing the degree of credence which should be attached toa witness’s testimony there are, of course, advantages and dis-advantages when the witness gives evidence before a Judge whoknows him. The Judge may, of course, know the character andreputation of the witness by experience, but there is the danger of
1 (1921) 22 N. L. R. 417» (1927) 29 N.L. R. 342.
* (1926) 28 N. L. R. 1.* (1904) 9 N. L. R. 177.
* (1906) 9 N. L. R. 183.
Ittfe.
'Akbak J.
Wijeyetileke
v.
Ranasinghe
( 336 )
1989.
Akbab J. •
Wijeyetileke
v.
. Ranaainghe
an unconscious bias in favour of such a witness, especially whenhe is a tried and experienced lawyer who often appears beforehim. In this state of affairs I think it is my duty to examine theevidence of the plaintiff on these two points with some minuteness,to see if the trial Judge’s conclusions on these two material pointsare correct. In his letter on August 19, 1926 (P 19), to theTender Board, the plaintiff wrote saying that it was in February orMarch, 1924, that he and the defendant agreed to take the leasejointly. In paragraph 2 of his plaint he says that it was in or aboutMarch, 1924, which was altered to February, 1924, at the trial ashe was “ put upon inquiry ” when the date of the tender was givenas February 22, 1924, in the answer. In his evidenCe-in-chief onJuly 19, 1927, he stated that it was at Rakwana (a town which isabout 28 miles from Ratnapura and over which there is a PoliceCourt and a Court of Requests held on certain days of the week,concurrently with the Police Court and Court of Requests ofRatnapura) that he had first broached the subject to the defendant.He had, according to his recollection, gone there professionallyand met the defendant at the resthouse. It was on September 9,1927, in cross-examination for the first time that the plaintiff fixedby reference to his diary the casefin connection with which he wentto Rakwana (P.'C. Ratnapura, 25,917). The plaintiff was Counselfor the accused in that case and the defendant was surety or bails-man for the accused. The plaintiff says that he went to Rakwanathinking that the Police Court case would be taken up there, butthat in fact it was not taken up. He finally fixed the date later inhis cross-examination as February 14, 1924, as the date on whichhe was at Rakwana because the Police Court case was fixed forFebruary 15.
The trial in this case was resumed on September 10, 1927, whenthe resthouse-keeper gave evidence to prove that the plaintiff’s namedid not appear in the resthouse book for the months of January,February, March, or April, 1924. All visitors have to enter theirnames in the book, but it is, of course, possible, as the District Judgesays, for a mistake to have occurred on February 14 in the resthousebook, but the District Judge is wrong in stating that the Counselfor the defendant assumed that the plaintiff had spent the nightat Rakwana and that there was no evidence to support such anassumption. The evidence of the plaintiff recorded at the bottomof page 137 and the top of page 138 warrants this assumption.
After part of the examination-in-chief of the defendant, the casewas postponed from September 10 to October 21, 1927, and in themeantime the defendant naturally strained every nerve to getdocumentary evidence to disprove the plaintiff’s statement thathe was at Rakwana on February .14 and 15. He produced a seriesof documents (D 26 to D 30) showing not only that the case
( 337 )
P. C. Ratnapura, No. 25,917, was called in Ratn&pura before the 1929.additional Police Magistrate, but that the case does not figure atj
all in the Rakwana Court roll and does appear in the Ratnapura j
Court roll. Further, the documents show that the plaintiff appeared Wijey«tiUk*in Ratnapura in D. C. Ratnapura, cases Nos. 4,061 and 3,981, on RancuringheFebruary 15, 1924. My difficulty has been increased by theDistrict Judge’s .omission to comment on the evidence furnishedby these exhibits (D 26 to D 30).
It will be remembered that the plaintiff’s case was that he wasin want of tea seeds for the opening up of his jungle land and thatthe defendant was agreeably surprised when he made the generousoffer of a half share. Indeed the plaintiff stated that the defendanton February 14 gave him no indication that he had heard of theGovernment notification calling for tenders. It is a curious com-mentary on his need of tea seeds when he now admits that he hasplanted this land up with rubber (see his evidence recorded at pages95, 97, and 98 and his explanation of the document D 1).
The defendant has, by calling the witnesses E. W. Ekanayakeand D. W. Abeygoonesekera, corroborated by documentary eyidence,proved beyond any doubt that the defendant had interested himselfin Miyanaowita and thought of tendering for the lease in December,
1923. The District Judge has completely ignored the evidence ofthese witnesses and the documents produced by them.
Now I come to the events of April 2,1924. The two versions areso diametrically opposed, but the document speaks for itself. Thewords of the receipt flatly contradict the plaintiff’s case. It is anagreement “ to give the plaintiff a half share of all the rights I havesecured from Government in leasing the right to collect tea seedsfrom Miyanaowita estate for the period of 10 years. ” The word“ secured ” seems to corroborate the defendant's story that thereceipt was given after the deposit of the full money at the Kach-cheri: But in coming to a decision on this point, the importantfactor, to my mind, is the fact that the payment was made by acheque (D 3) of Karuppen Chetty for the sum of Rs. 1,256a fact which has not been taken account of by the District Judge.
The plaintiff’s case is that the receipt, which is in the defendant’shandwriting, was written by the defendant and he did not look atthe terms of the receipt; the defendant’s version is that it wasdictated by the plaintiff. The plaintiff admitted that he was toldby the defendant some days before April 2 that the money had tobe paid, and yet he had to make up Rs. 638 by ransacking severalalmirahs. His explanation as to why he did not give a chequedoes not seem to be very convincing. The plaintiff admitted thathe was entirely ignorant of the fact that the defendant had a chequefor the whole amount in his pocket and meant to make payment bythis cheque. If the plaintiff’s case is true, then the defendant must
( 338 )
1929.
Axbar J..
WijeyeKUke
v.
Ranasinghe
have made up his mind to trick the plaintiff from the beginning,,and plaintiff in his evidence made an admission to this effect (seehis evidence at the bottom of page 131 .and the top of page 132)..And yet the defendant sent him the accounts (see P 2. P 3,and P 4).
The defendant’s case, on the other hand, is that he gave receipt(P 15) after he had deposited the full amount at the. Kachcheriwhen he succumbed to the plaintiff’s importunity, and he has raisedvarious pleas in law attacking this receipt as invalid on the groundof undue influence, want of consideration, &c., which are all setforth in the issues on which the trial proceeded. There is no doubtthat the plaintiff was the Proctor for the defendant and his relativesfor many years past (see D 10, D 11, D 16, D 17, D. 12, D 14, D 15,.D 8, D 9, D 13, D 7, D 19, and D 25).
The letters P 9 and P 11 seem to corroborate the lettersquoted above.
Even if we ignore the definite evidence, of the defendant thateven in this transaction the plaintiff acted as his solicitor, yet tllterule stated in Detnerera Beauxite Go., Ltd., v. Louisa Hubbard andothers1 by the Privy Council would, I think, be applicable here, viz.,that although the relationship of a. solicitor and client, in a strictsense, has terminated, the principle applies so long as the confidencenaturally arising from that relationship is proved, or may bepresumed to continue. But before I proceed to discuss the variousissues of law which arise in' this case, it might be simpler to state myconclusion on the facts; especially on the two points sought to beproved by the plaintiff.
There are two other facts which I should mention here. Thecircumstances under which the plaintiff came to obtain the gemminglease (D 31) do not seem to be satisfactory, nor the transactionswhich led to his buying a land 114 acres in extent which was sold onorder of Court in a partition case in which he was a Proctor for someof the parties and in which some of the parties had directly petitionedthe District Judge to order a partition and not a sale (D 32 andP 31).
As . stated in Halsbury, Vol. 26, p. 750, para. 1244, “asolicitor who represents any of the parties in an action in whichproperty is sold under an order of Court cannot bid for the propertywithout the leave of the Court. ” In the result, property, whichwas valued at over Rs. 14,000, was bought by the plaintiff forRs. 7,200.
In arriving at a decision on the facts, it should be borne in mindthat the value Of the leasehold rights has gone up enormously owing:to the prohibition by the Government of the importation of teaseeds from India. The value of the lease for 10 years to Government
1 (1923) 1 A. C. 673.
( 339 )
is Rs. 12,060, but it is valued by the plaintiff at Rs. 200,000in the plaigt, and Rs..50,000 in the answer. This unexpectedinflation accounts, I think, for the mpny inconsistencies in theconduct of not only the plaintiff but also of the defendant. Inspite of the findings of the District Judge, I am forced to theconclusion that the version of the defendant as regards the twosalient facts, viz., the circumstances which led to his making thetender and his signing the receipt, is the truth.
Up to and including April 2, 1924, there is a remarkable contra-diction between the plaintiff’s evidence and the relevant documentsproduced in the ease. It may be that the defendant has exaggeratedthe events that took place when the receipt was granted on April 2,but I have, no doubt in my mind that it was after the money wasdeposited by the defendant that he agreed to allow the plaintiff toparticipate in the lease. It may well be that, had the price of teaseeds not gone up phenomenally, he would have kept his word asplighted in P 15. There would be nothing remarkable in thisbecause, according to the plaintiff himself, he did not anticipate aprofit of more than Rs. 500 or Rs. 600 a year for each of them.But when the price went up the defendant, ignorant of his legalposition under P 15, began to adopt shifty and devious tactics.This explains, I think, why he temporized with the plaintiff, wihyhe sent dubious accounts when pressed by the plaintiff (P 2 toP 4), the genesis of letters (P 6 to P 8), and why hisevidence is contradictory to that of Mr. C. F. Dharmaratne, andwhy he gave the deed of lease to the plaintiff. But it also equallysatisfactorily explains the efforts made by the plaintiff to wring out• a trust from the document P 15, by the compilation of letters',P 9, P 10, and P 11, .especially P 11. I refuse tobelieve that the plaintiff’s main object “ in putting the defendantin Court ” hras “ to pub^sh to the world as much as I can what youare as a warning to them against you One is sceptical of suchremarkable altruism and consideration for the rights of possiblestrahge^s who might be deluded by the future machinations of thedefendant, especially when such feelings prompt the plaintiff toacti’lities which are directed towards the recovery of property whichhas gqne up in price from Rs. 5,030 to Rs. 100,000.
folding as I do that the plaintiff has failed to prove his twoprops to establish the constructive trust, his whele case fails. Ifthe plaintiff had succeeded in proving that he had paid the Rs. 638on the. morning of April 2, 1924, and that he had engaged the.defendant for the purpose of obtaining the lease on the under-standing that it was to be held in trust for himself and the defendantjointly, his case would probably be covered by section 90 and theillustration (/) of the Trusts Ordinance, No. 9 of 1917, and probablyby section 84 of that Ordinance.
iM9.
Akbak J.
Wijeyetileke
v.
Ranasinghe
( 340 )
1929. it is true that the consideration for the lease was not merely theAkba» J. sum of Bs. 1,256 deposited on April 2,1924, but also t^e obligationmr..~~7[ [ to perform the covenants under the lease. But on the analogy of». the eases Be Lulham: Brinton v. Lulharn1 and Ex parte Grace 2 theRanaainghe plaintiff would be entitled to succeed. But as I hold that theplaintiff has failed to prove the facts that are material, his casemust rest on F 15, and as this document is not a notarial docu-ment he cannot succeed in enforcing the agreement (see Amarosekerav. Rajapakse 8 and the Privy Council case Adicappa Chetty v. Camp-pen Chetty (supra)). Further, the plaintiff will have to discharge aheavy burden under section 111 • of the Evidence Ordinance,No. 14 of 1895.
The remarks of the Judges in Moody v. Cox and Hatt 4, Wrightv. Garter 6, and the local case of Soyza v. Soyza 4 will ,1 think, applyeven if we accept the plaintiff’s version as true. They will applybecause the plaintiff did not explain, on his own showing, to thedefendant that he was in want of the tea seeds for the opening upof his own land. Further, the evidence shows that the plaintiffmade no effort to get sureties to the tender, but allowed the defend-ant to do this part of the work. The defendant was left to hisown resources to find the necessary money to work Miyanaowitaestate and to manage and work the estate single-handed withoutany extra recompense for his trouble in managing and woQ&ing it.The plaintiff pays a half of one year’s rent and he says he is entitled toshare the profits for the full 10 years. The inequity of the wholeposition becomes clear if the lease had turned out a failure or if thedefendant had broken any of the covenants of the lease. The soleperson who would have to suffer the loss would be the defendant;even the slender thread on which the defendant might have relied,receipt F 15, was in the plaintiff’s possession and eould have beeneasily destroyed without anyone in the worl<^being the wiser.
There is another ground on which the plaintiff, in my opinion, isbound to fail, even if we accept the plaintiff’s case at its full facevalue. The District Judge has given judgment in favour of theplaintiff “ as prayed for-with costs ”. It will be seen from the plaintthat the plaintiff claims (a) for a declaration of trust in respect of ahalf share of the lease..•
(6) For a full and correct account and that the defendant beordered to pay a half share of theisum found to be the nett incomeof the leasehold rights.
That the defendant be ordered, on the written consent of theGovernment being obtained, to execute a conveyance of this halfshare or, if this consent is not obtained, “ a conveyance and assign-'ment between the plaintiff and the defendant ”.
1 S3 L. T.9.* (1917) 2 Ch. 71.
1 Bosanquet and Puller 377.8 (1903) 1 Ch. 27.
(1911) 14 N. L. R. 110.• (1916) 19 N. L. R.31*.
( 341 )
It will be seen from the lease P 14, paragraphs 2 and 13t thatone of the lessee’s covenants is that his obligations and rightsunder the lease are not to be assigned or otherwise transferred orsublet without the written consent of the Tender Board. Fry, inthe 6th edition of his book, p. 450, para. 958, says that “ itwould be idle for the Court to compel a grant of that which ifgranted would have been forfeited to make a legal relation which,if created, would be immediately dissoluble ”. (See Lewie v. Bond1and Gregory v. Wilson2.) The plaintiff is here asking the Court todo the very thing which Fry says a Court will not do. The totaleffect of the plaintiff’s prayer is to ask for specific performance ofsomething which the defendant is prohibited from doing under thelease.
I do not think the case of Gentle v. Faulkner 3 will apply, as therethe covenant was “ not to assign or underlet the demised premises ”,but here it is wider, and prohibits the lessee from assigning or other-wise transferring his obligations and rights under the lease; andclearly the rights of the lessee will include the equitable rights ofenjoying half the income derived from the lease.
The plaintiff’s prayer for accounting is not for past accounts, butfor all accounts for the full 10 years of the lease, and is ancillary tothe other parts of his prayer. Nor do I think that the case ofLloyd v. Crispe 4 will apply, because that was an action to recovera deposit of £50, and the remarks of Mansfield C.J. should be bornein mind. As regards the statement of law in that case, that it wasthe business of the defendant to get the consent of the lessor, thereis no evidence here to prove that the defendant agreed to do so'.Moreover, such a contract would require a notarial agreement to-render it valid.
For the reasons stated above, I would set aside the judgment and'dismiss plaintiff’s action with costs in this Court and the Court below.-
Appeal allowed.
♦
1 IS Beav. So.* S2 L. T. 708.-
3 9 Hare 687.‘ 5 Tcamion 249.
30/251989.
Akbab J.
WijeyeCUekt
v.
Ranasinghe