Judgement

Appeal and Cross-appeal from a judgment and decree of the Court of the Judicial Commissioner (August 28, 1918), reversing a decree of the District Judge, Magwe.

The suit was instituted by the respondent in 1913, claiming specific performance of a verbal agreement alleged to have been made by the appellant in 1912 to transfer to the respondent three specified sites for oil wells in Upper Burma. The agreement was alleged in relation to an agreement in writing made in 1903 by which the appellant agreed to sell to the respondent three out of twelve sites allotted to her for that year.

The facts of the case and the effect of the decisions of the Courts in Burma appear from the judgment of the Judicial Committee. The respondent cross-appealed (by special leave) from the appellate Courts refusal to grant specific performance of the agreement of 1903.

1921. Jan. 28. De Gruyther, K.C., Parikh and J. K. Roy for the appellant.

Sir Erle Richards K.C. and E. B. Raikes for the respondent.

The judgment of their Lordships was delivered by

LORD BUCKMASTER. The appellant in this case was the defendant in a suit that was instituted by the respondent on February 22, 1913, seeking specific performance of an agreement to sell certain oil wells in Burma, as she is what is known as a twinzayo—i.e., one of the twenty-four people to whom the Government is in the habit of annually making grants of oil wells in British Burma. On December 18, 1903, as the settlement of a dispute that was then outstanding between herself and the respondent, the appellant entered into an agreement, through her husband as her attorney, with the respondent, for the sale to him of two sets of oil wells. The first were six out of the twelve sites that she would obtain for 1902, and the second were three out of the twelve sites that she would obtain for 1903. It appears that so far as the twelve sites for 1902 were concerned the contract was duly satisfied, but with regard to the 1903 sites difficulties arose. On September 21, 1904, four of those sites were allotted by the Government, and on January 12, 1905, a further six were allotted, making ten in all. Eight of these were resumed by the Government on July 1, 1907, on the ground that there had been no working, and one was resumed on March 20, 1908. All the nine sites so resumed were re-granted before February 3, 1912, and, at a later date, probably about March of 1912, a further twenty-three sites were granted to the appellant, who thus became possessed of all the sites which she would have received had they been annually allotted to her according to the usual practice in groups of twelve at a time. None of these sites were conveyed to the respondent, and accordingly he instituted in 1913 against the appellant the proceedings which have given rise to this appeal.

The pleadings which were then filed are very instructive upon the nature of his claim. He sets out the contract of December 18, 1903 ; he refers to the fact that the sites allotted in 1902 had been duly transferred and alleges that ten out of the twelve sites had been received in 1903, and he concludes in this way " Out of these "—that is out of the ten for 1903—" the plaintiff asked the defendant to deliver three sites which still remained due to the plaintiff, but she refused to do so." He then refers to the allotments in 1912 and states that in 1912 he again “asked her to deliver three sites and she promised to give three sites out of those which she obtained in 1912. But afterwards she did not give them." He then states that the suit is not barred by limitation and prays " for a decree with costs, for recovery of three sites out of twenty-three granted in 1912," and he sets out the numbers of the sites. It is important to observe that no one of those numbers relates to any of the sites that were originally allotted in respect of 1903, and that the whole action is deliberately founded on the alleged agreement of 1912.

On the matter coming for trial befor