Perera V. Amarasooriya

[In Review. ]

Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Wendt, and Mr. Justice Middleton.

PERERA v. AMARASOORIYA.

D. C., Galle, 8, 250.

Ordinance of Frauds (No. 7 of 1840)-Authority to enter on land and prospect for plumbago-Interest in land-Part performance- Action ex dolo malo.

An authority to enter on land and prospect for plumbago and to work the mines found there and take away plumbago is an agreement creating an interest in land, and should be notarially attested under section 2 of Ordinance No. 7 of 1840. Where it is not so attested, no action lies for the recovery of damages for breach of such agreement.

The doctrine of part performance has not been recognized in Ceylon to the extent to which it prevails in the English Courts of Equity.

HEARING in review of the judgment of the Supreme Court dated July 1, 1908. The material facts appear in the judgments.

Bawa, for plaintiff, appellant.

Van Langenberg (with him A. St. V. Jayewardene), for defendant, respondent.

Cur. adv. vult.

March 2, 1909. Hutchinson C. J. -

This is a hearing in review. The action was for damages; the cause of action is not clearly stated in the plaint, but it seems to be for breach of an agreement by the defendant to allow the plaintiff to prospect for plumbago in the defendant's land. The District Judge in his judgment treated the action as one for damages for breach of a partnership contract, and held that the plaintiff and the defendant were partners, and awarded the plaintiff damages for breach of the partnership contract. On appeal the judgment was set aside and the action was dismissed, because there was no allegation of a partnership, and no issue as to whether the plaintiff and the defendant were partners, and no evidence of any partnership between them, and because the agreement alleged in the plaint is an agreement creating an interest in land and was not in writing as required by Ordinance No. 7 of 1840.

The plaintiff alleges that " in May, 1905, the defendant authorized the plaintiff to prospect for plumbago " in the defendant's land, the plaintiff agreeing to pay the defendant one-tenth of the output as ground share; that the plaintiff opened a plumbago mine on the land and worked it with four other men as shareholders in one -third of it; that, subject to the one-tenth ground share of the

defendant, the mine is the property of the plaintiff and the other four men; that the defendant on and after April 1, 1906, unlawfully and fraudulently prevented the plaintiff from going on the land; that the plaintiff suffered damages to the extent of Rs. 8, 000 through being prevented from winning the plumbago, which he had successfully prospected; and he claimed that sum as damages.

The appellant first contends that the plaintiff and the defendant were partners from the beginning under the " authority to prospect, " because the four men who were his shareholders, and who, as he says in the plaint, were " employes of the defendant, " were merely " dummies, " and that the real and only shareholder with him was the defendant. It is impossible to draw such an inference from the statements in the plaint; there was no issue about it; and it is clearly unfounded. He also suggests that the defendant became a partner afterwards by purchase of their shares from two of the four shareholders. Such a purchase would not of itself make the defendant a partner, nor was it said in the plaint or suggested in the issues that the defendant so became a partner, nor does the evidence prove it.

With regard to the original claim as made in the plaint, and the defendant's answer that " the authority to prospect " was not executed in the manner required by Ordinance No. 7 of 1840, the appellant says, first, that such an authority is not an agreement for establishing an interest in land. He relied on Elias v. Jeronis. 1 a decision of the Full Court, which is dissented from by another

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