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 expressed in the 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 give him a half share of all the rights that I have secured from Government in leasing the right to collect tea seeds from Miyanowita estate for a period of 10 years,"-

Held, that the agreement was of no force or avail in law to transfer a half share of the leasehold rights mentioned.

Held also, that where one of the covenants of the aforesaid lease was that the rights and obligations of the lessee should not be transferred or assigned without the written consent of the Tender Board, the plaintiff was not entitled to ask for specific performance of the agreement to transfer the leasehold rights.

Where a transaction between a Proctor and his client is impugned on the ground of undue influence, the principle stated in section 111 of the Evidence Ordinance applies so long as the confidence arising from that relationship continues, even though that relationship has actually terminated.

THE plaintiff, who is a Proctor practising in Ratnapura, sued X the defendant for a declaration that he was entitled to the half share of the lease of a Crown land taken in the name of the defendant. The plaintiff alleged that the defendant agreed to-tender for the lease, but the venture should be a joint one and the profits should be shared equally between them. According to plaintiff, the defendant received a sum of Rs. 638 in cash from him as his half share of the money deposited by the defendant in the Kachcheri as rent for the first year of the lease. At the same time the following document was drawn up :-

"I, the undersigned Don Edmund Ranasinghe of Rakwana, have this day received from Mr. Arthur Wijetileke the sum of Rupees Six hundred and Thirty-eight (Rs. 638), agreeing to give him a half share of all the rights that I have secured from Government in leasing the right to collect tea seeds from Miyanowita estate for a period of 10 years. "

The defendant's case was that the receipt was given after he had deposited the full amount at the Kachcheri, and that in giving the
receipt he yielded to the importunity of the plaintiff. He raised pleas of undue influence and want of consideration in attacking the
validity of the document.
 
The learned District Judge gave judgment for the plaintiff.

H. H. Bartholormusz (with A. E. Keunemann and Choksy), for defendant, appellant.

R. L. Pereira, K. C. (with de Zoysa, K. C., E. G. P. Jayetileke, N. E. Weerasooria, and E. Navaratnam), for plaintiff, respondent.

April 30, 1929. LYALL GRANT J.-

This is an appeal from the District Court of Ratnapura. The plaintiff sought (1) to have it declared that the defendant was a trustee 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 income arising out of the working of the lease. He further asked the Court (3) to order the defendant, on the written consent of the Tender Board being obtained, to execute an absolute conveyance and assignment of a half share of the leasehold, or if such consent were not obtained, a conveyance and assignment as between the plaintiff and the defendant.

Judgment was given for the plaintiff as prayed for, and from this judgment the defendant appeals.

Certain facts are common ground between the parties, but on other material particulars there is considerable discrepancy between the accounts given by the plaintiff and the defendant respectively.

On these points the learned District Judge has accepted the plaintiff's version.

It is common ground betw