NANAYAKKARA et al. v. ANDRIS et al

052-NLR-NLR-V-23-NANAYAKKARA-et-al.-v.-ANDRIS-et-al.pdf


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Present: Bertram C.J. and Do Sampayo J.NANAYAKKARA et of. v. ANDRIS et al1921.
104—D. O. Matara, 8,794.
Informal lease of a land to plaintiffs for gemming—Sublease by oralagreement by plaintiffs to defendants for- half share of the value ofgems found—Action for half share of gems or value—OrdinanceNo. 7 of 1840, s. 2—Use of Statute, of Frauds as an instrumentof fraud—Claim for compensation for use and occupation—Mayperson who has no legal'title claim compensation for use andoccupation ?—May the oral agreement to give half share be con-sidered in assessing compensation 7—Doctrine of part, performanceconsidered.
The first six plaintiffs took an informal lease of a land from theother plaintiffs for gemming* and in the same month by a verbalagreement sublet the land to defendants for half share of the gems,or their value.
The plaintiffs (1 to 6) brought this action for their share of thevalue of the gems mined. The defendants contended, inter alia,(1) that the agreement was of no force Or avail in law undersection 2 of Ordinance No; 7 of 1840; (2) that plaintiffs could notsucceed as on a claim for use and occupation ; and (3) that in anyevent all that can be recovered on such a claim is a reasonablesum for the use and occupation of the land calculated upon themarket price of similar land, and that the alleged agreement to payhalf value of the gems found could not be used as evidence of thequantum of compensation.
The District Judge held (1) that the defendants were not entitledto use the Statute of Frauds to protect their own dishonesty; (2)that the plaintiffs were entitled to recover on the claim for use andoccupation ; and (3) that the defendants could not call in questiontheir lessors' title.
Held, that the principle that the Statute of Frauds should not bemade an instrument of fraud did not help the plaintiffs in thiscase, but that they could recover compensation on the footing of aclaim for use and occupation, though they had no legal'title whenthey sublet to defendants, and that the agreement might be usedas evidence of the quantum of compensation.
The equitable doctrine that the Court will not allow the Statuteto be made an instrument of fraud (apart from certain minor andinfrequent cases) is confined to two classes of cases :—
(а)Cases where the defendant has obtained possession of theplaintiff’s property, subject to a trust or condition, andclaims to hold it free from such trust or condition;
(б)Cases with the equitable doctrine of part performance.
“ This case is not a case in which a person who is occupyingproperty subject to a trust or condition fraudulently seeks toretain it free of that trust or condition. The action is not for the
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return of the sapphire, hut for rent, or more exactly, for compen-sation for the use and occupation of the land. Nor is this anaction for specific performance.*9The doctrine of part performance (with reference to the Statuteof Frauds) applies to suits for specific performance only. It hasno application to claims for damages. It is confined principally(though not exclusively) to cases of contracts for the sale orpurchase of land or for the acquisition of an interest in lands.
There is nothing to prevent the adoption of the doctrine of partperformance as part^of the legal system of the Colony.
Perera v. Amarasooriya1 commented upon.
The history and scope of the action for u use and occupation ”explained.
rpHE facts appear from the judgment.
Bawa, K.C., and H. J. C. Pereira,K.C. (with them H. V. Perera),for first, second, and third defendants, appellants.
A. St. 7. Jayaicardene, K.C. (with him Hayley and Weerasooriya),for plaintiffs, respondents.
Charles de Silva, for seventh and eighth defendants, respondents.
Cur. adv. vuU.
November 30,1921. Bertram C.J.—
This was an action arising out of a gemming agreement.' Theplaintiffs purported to let a gem pit to the defendants on terms ofreceiving half the value of the gems recovered. On the basisof a book kept for this purpose, they claimed a considerable sum,including half the value of a large sapphire said to be worth overBs. 40,000. The defendants denied that they entered into any suchagreement. They denied also that they ever worked at the gem pitsaid to be let to them, or discovered any such sapphire as thatalleged, or any other gems.
There were certain obvious legal difficulties in the plaintiffs’ case.They had no title, but held only under informal agreements with theproprietors of the land, reduced to notarial form only after thediscovery of the sapphire. The gemming agreement, which theyclaimed to have made with the defendants, was verbal only, andbeing an agreement for establishing an interest in land was, undersection 2 of Ordinance No. 7 of 1840, of no “ force or avail inlaw.”To avoid these difficulties the plaintiffs (though they had neverasserted it in their pleadings) were allowed by the District Judge toset up a claim in respect of “ use and occupation.” But, even so,the question was raised whether they were competent to sue for theuse and occupation of land which did not belong to them.
1 {2909) 12 N. L B. 87.
1921. *
Nanayab-Jeara v.Andris
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On the question of title the District Judge ruled that thedefendants, as tenants, could not call their lessors’ title in question.As to the plea of Ordinance No. 7 of 1840, he ruled that they were“ not entitled to use the Statute of Frauds to protect their owndishonesty.”
I need not refer further to the facts, as theyfully set out in the
judgment of my brother De Sampayo. I agree with his conclusionsand the order which he proposes. But the questions of law involvedin the case deserve special consideration. * The principal questionis: To what extent and by virtue of what legal principles are ourCourts in such cases entitled to go behind the express words of ourlocal Statute of Frauds, Ordinance No. 7 of 1840 ? I have suchsympathy with District Judges who in remote districts of theColony are called upon to decide such important questions of lawwithout anything in the nature of law libraries to assist them, thatI have decided to summarize the authorities on the subject forfuture reference, even though in so doing 1 shall travel outside theimmediate necessities of the present case.
English jurisprudence on the interpretation and application of theStatute of Frauds has developed certain principles which mitigatethe strict rigour of its enactments. It is open to our own Courts toapply these same principles to our own corresponding Ordinance,and it can hardly be contested that it is reasonable that they shoulddo so. When this Ordinance was enacted, these principles had beenlong in force in England. The legal knowledge of the law officerswho promoted the legislation must be imputed to the Legislature,and in thus adopting an English enactment, the Legislature mustbe taken to have contemplated that it would be interpreted andapplied in accordance with English principles, in so far as thoseprinciples were capable of being “ received ” into the legal systemof the Colony.
It is true that there is a difference of phrase between the Englishenactment and our own. The English Statute says that "no actionshall be brought ” upon the contract. Our own Ordinance saysthat the contract shall not be “ of force or avail in law.” Thisdifference has been emphasized (obiter)/m one of our leading casesPerera v. Amaraeooriya.1 It has been minimized in another(Perera v. Fernando*), where the opinion expressed was essential tothe judgment. It is quite true that in some of the English cases(for example, Maddison v. Aldersons) the fact that the Statute doesnot make the contract absolutely void at law is adduced as one ofthe reasons for taking note of it in equity. But this seems to mea circumstance only, and not the real basis of the doctrine underconsideration. I find it difficult to believe that the change ofphraseology (which dates from Regulation No. 4 of 1817) was
1881.
Bertram
C.J.
Nanityak-kara v.Andris
1 {1909) 12 N. XL R. 87.* (1864) Ram. 1868-68, 88.
' {1883)8 A. C. 487.
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1981.
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O.J.
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karav.
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intended to exclude, or has the effect of excluding, the applicationof the legal principles which have been developed in England* Atany rate, so far as actions for use and occupation axe concerned, thePull Court decision in Perera v. Fernando1 precludes us from sayingso. Note the remarks of Middleton J. in Perera v. Amarasooriya ; 1 2 3 4 *see also the observations of the same Judge in GkniMv. Innasiiamby2and of Lord Hakbury L.C. in JRochefoucald e. Boustead,* where(speaking of section 2 of Ordinance No. 7 of 1840) he says: “ Thatsection does not appear to affect equitable rights.”
The classes of cases in which English jurisprudence has mitigatedthe rigour of the Statute may for all practical purposes be reducedto three. Two of them belong to the sphere of equity, the other tothat of the Common law. I will deal with equity first.
It has been frequently said that “ Courts of Equity will notpermit the Statute to be made an instrument of fraud.” LordEldon in Me&taer v. Gillespie* expressed this idea in the most generalterms: “ Cases in this Court are perfectly familiar deciding that afraudulent use shall not be made of the Statute,” and other highauthorities have subsequently enunciated the same proposition.But taken by itself—apart from the cases in connection with whichit has been used—this is a dangerous and insidious maxim. It willbe found cited—I venture to think, with too great generality—intwo cases of our own (Issan Appu v. Gwra 9 and Guruhamy v. Suba*sens7). As Lord Selboroe observed in Maddison v. Alderson8 : “ Itcannot be meant that equity will relieve against a public Statuteof general policy in cases admitted to fall within it.” So alsoLord Cranworth, in Colon v. Colon,9 said: “ It would be a scandal. to suppose that when the Legislature has said that no action shall *be brought on a parol contract of a particular description, it shouldbe open to one of the contracting parties to escape from the con-sequence by simply shifting his sphere of operations from a Courtof Law to a Court of Equity.” The equitable maxim does notsimply mean that the Courts will disregard the Statute and admitoral evidence, in all cases where it would be uneonscientious of thedefendant to set up the Statute, if the plaintiff’s case is true. Toact thus generally would be to admit the very evils against whichthe Statute was designed to guard. It would be to decide on oralevidence questions which the Statute declared were only to bedetermined by evidence in writing. When this maxim is rightlyused, it is always used with reference to certain definite classes ofoases, and to these its application should be confined. The necessityof confining the maxim within definite limits was long ago realized.
1 (ISM)Bam. 1863-68, 83.6 {1806)11Ves. at p. 627.
r(2909)12 N. U B. on p. 92.6 {1910)13N. L. R. atp.106,
3{1904)9 N. L. R. on p. 182.7 (1910)13N, L. R. atp.114.
4(1897)1 Oh. on p. 203.8 (1883)8A. O. 467.
9 (1866) 1 Oh. App. at p. 147.
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“The Statute was made,” said Lord Redesdale in Lindsay v.Lynch,1 “for the purpose of preventing perjuries and frauds, andnothing can be more manifest to any person who has been in thehabit of practising in Courts of Equity than that the relaxation ofthat Statute has been a ground of much perjury and much fraud…. . It is therefore absolutely necessary for Courts of
Equity to make a stand, and not carry the decisions further.’9We must ascertain, therefore, the. limits within which this equit-able principle is to be applied. Apart from Certain infrequent cases,to which I will presently refer, it will be found that its applicationis confined to two classes of cases:•— .
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Nanayak^hara«?.Andris
(а)Cases where the defendant has obtained possession of theplaintiff’s property, subject to a trust or condition, andclaims to hold it free from such trust or condition;
(б)Cases within the equitable doctrine of “part performance.”
Of class (a), an illustration may be found in our own reports,Oould v. InnasUaahby,2 where the principle is fully explained byMoncreifi J. There the defendant bought land with the plaintiff’smoney in his own name under a promise to re-convey to plaintiff,and then repudiated his promise. There are numerous strikingEnglish cases. See Lincoln v. Wright,8 where defendant insistedon a conveyance as absolute, when it had been agreed that it shouldbe a mortgage; Haigh v. Kaye,* where the defendant claimed tohold property free of a trust under which he admitted it* was conveyedto him ; In re Duke of Marlborough,5 where the Duchess of Marl-borough assigned a house to the Duke to enable him to raise moneyby mortgage under a promise to re-convey, and where, after theDuke’sdeath, his creditors claimed it as the absolute property of the Duke'.In this case all the previous authorities were collected and discussedby Stirling J. See also a local case (Rochefoucauld v, Bou&tead*),where the plaintiff’s husband had received a conveyance of an estatein Oeylon in trust for his wife, but subject to a lien for his advances,and his trustee in bankruptcy claimed to hold them as his absoluteproperty. Lindley L.J. there said: “ It is further established bya series of cases, the propriety of which cannot now be questioned,that the Statute of Frauds does not prevent the proof of a fraud,arid that it is a fraud on the part of a person to whom land is conveyedas a trustee and who knows it was so conveyed to deny the trust andclaim the land himself.” Our own law on the necessity of trusts ofimmovables being in writing will now be found in the Trusts Ordi-nance, No. 9 of 1917, sections 5 and 118. Section 8 of the Statuteof Frauds makes an exception in favour of resulting trusts, but as
* (m2) 7 oh. App.
t>(U9£)2 CkD. m.
« (1897) 1 Ch. J9&
1 2 Sth.d> Lefr. 4.
* (1904) 9 N„ Xr. B. 177.*(2859)4deG. &J. 16.
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1921.
Bbbebam
Cj.
karav.
Andrie
Moncreiff J. gays in Oould v. Innasitamby,1 “ these eases were quiteindependent pf that section.” This principle is firmly establishedand clearly defined.
The seoond class oi cases referred to under head (6) above arecases within the equitable doctrine of “part performance.” Thisdoctrine applies to suits for specific performance only. It has noapplication to claims for damages. (See per Chitty J. in Lavery v.Pursett.2) It is confined principally (though not exclusively) tocases of contracts for the sale or purchase of land or for the acquisi-tion of an interest in lands. (See per Kay J. in McManus v.Cooke.2) The principle is that equity will enforce even a verbalcontract where the purchaser has performed his part of the contractto such an extent and under suoh circumstances that the partiescannot be restored to their original position, provided that theexistence of the contract is demonstrated by the acts of performancethemselves, and that they are “unequivocally referable to theoontract.” Payment of the purchase price is in itself not enough,as that can always be recovered. (See Story, Equity Jurisprudence,section 760.) The acts relied on must be such as have in some wayaltered the purchaser’s position to his prejudice. As Story puts it(Equity Jurisprudence, section 761): “ Nothing is to be considered asa part performance which does not put the party into a situationwhich is a fraud upon him, unless the agreement is fully performed.”In such a case, as Lord Selbome explains in Maddison v. Alderson?“the defendant is, really charged upon the equities resulting fromthe acts done in execution of the contract, and hot' . . . .upon the contract itself.” A cohdensed discussion of the doctrinewill be found in Pollock on Contract, diopter XIII., and perhaps itsbest exposition, in the judgment of Lord Selbome, in Maddison v.Alderson4 just referred to. See also the judgment of Elay' J. inMcManus v. Cooke? where the leading cases are also discussed.
It should be noted that it is only acts 6f performance of thepurchaser that are material. Acts of the vendor for this purposehave no effect. It is no ground for calling upon the vendor tofulfil his contract that he has partly performed it already. (See perLord Cranworth L.C. in Colon v. Galon?) There are, indeed, somecaseswhich seem to suggest that it is quite a sufficient basis for theaction if the vendor has put the purchaser into possession'on theground that this of itself proves the existence of the contract. Seein particular TJngley v. Ungley ;• Britain v. Bossiter;1 Morpeth v.Jones;* and Dale v. Hamilton,® See also Leake on Contract, 5thed., p. 263, and Story, Equity Jurisprudence, section 763. But in viewof the opinion of Lord Granworth cited above, and the explanation
1 (2904) 9 N.L.R. 177.* (1866)j Ch. App. alp. 147.
(188$) 89 Ch. D. 618.« (1887)6 Ch. D. 887.
(1887) 86 Ch. D. 682.7 (1879)11 Q. B. D. alp. 281.
(1888) 8 A. O. 467.« 2 S. W. 181.
* 8 . 881.
( IW )of the doctrine given by Lord Selbome in Maddison v. Aldcrson,1I think that,* in spite ol the high authority of the Judges who havestated the doctrine in this w&y, it most be taken that such possessionby the purchaser is only relevant when in oonsequance of thepossession, and in pursuance of or in rdiance on the contract hehasexpended money on buildings or improvements, or has otherwisealtered his position to his prejudice. The case then lpcomes thatput in the well-known case of Bamsden v. Dyson? where LordKingsdown states the rule of equity thus: “ If a man, under averbal agreement with a landlord for a certain interest in land, or,what amounts to the same thing, under on expectation, created orencouraged by the landlord, that he shall have a certain interest,takes possession of such land, with the consent of the landlord, andupon the faith of such promise or expectation, with the knowledgeof the landlord, and without objection by him, lays out money uponthe land, a Court of Equity will compel the landlord to give effect tosuch promise or expectation."
Should occasion arise, I see nothing to prevent the adoptionof this doctrine of “ part performance ” as part of the legal systemof the Colony. Too much must not be made of the observations ofWendt J. and the other Judges in Perera v. Amarasooriya* Theseobservations are wholly obiter, as the action in that case was not anaction for specific performance, but an action for damages, and wasnot therefore an action in which the doctrine of46 part performance ”could come into the question at alL It is difficult to read thejudgments without feeling that the real nature of the doctrine hadnot been fully considered, and in particular that the point lastmentioned had not been appreciated either in the arguments or inthe judgments. It seems to me that if the caseaiises, the way is opento this Court to take whatever course it considers required. Scotchlaw, which like our own is based on the Roman, has independentlydeveloped a precisely similar doctrine. (See Maddison v. Alderson,3 4)This, then, is the doctrine of "part performance," which, it ishardly necessary to point out, has no application to the present case.The other minor classes of cases in which equity on the ground offraud has relieved against the Statute are cases where the personwho sets up the Statute has fraudulently prevented a writtenagreement from coming into existence (see Fry on Specific Per-formance, section 574), and cases where the written memorandumput forward does not, in fact, represent the full agreement betweenthe parties, and a fraudulent attempt is made to represent itas doing so. {Ibid*, section 573.) These cases, however, are ofcomparatively rare occurrence.
It will thus be seen that the equitable doctrine, that the Court willnot allow the Statute to be made an instrument of fraud, considered
1981.
Bertram
C.J.
Nanaydk-ham v.Andri*
H1S8S) 8 A. o, m.* L. B. 1B. L. 129.
3 (1$09) 12 N. L. R. ST.
* {1883) 8 A. C- on p. 476.
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1981. in connection with the limitations under which it applies, has noapplication to the present case. Tide case is not a case in which a
O.J.person who is occupying property subject to a trust or condition
Nonauaktoudx&mily seeks to retain it free of that trust or condition. The
hsrav. action is not for the return of the sapphire, but for rent, or moreAndris exactly, for compensation for the use and occupation of the land.
Nor is this action an action for specific performance. The judgmentof the learned District Judge, therefore, in so far, as it iB based uponhis ruling that the defendants were “ not entitled to use the Statuteof Frauds to proteot their own dishonesty/1 must be considered asnot justified by authority. The ruling is, however, as a matter offact, superfluous, for the learned Judge has further ruled that theplaintiffs are entitled to recover on the claim for use and occupation,and I will proceed to consider this aspect of the question^
So far we have dealt solely with equitable considerations. Wenow come to an expedient with which equity has nothing to do, butwhich was solely an achievement of the Courts of Common law,namely, the use of the action for “ use and occupation ” as a meansof avoiding the hardship of the Statute. The action for use andoccupation lay at Common law in respect of “ the occupation of landby a person bound to pay some remuneration for it without theamount or time of payment being fixed/1 As Lord Denman C.J.says in Gibson v. Kirk1: “ Such a case is of rare occurrence/9 At'what period, or how the action came to be used as a means ofcircumventing the Statute, I have not been able to ascertain. Inour own Full Court case [Peremo. Fernando*) it is said: “After thepassing of this Statute it soon became to be explained that theStatute of Frauds is not applicable to any case where the actionis brought on an executed consideration, for as the object of theLegislature clearly was to prevent the setting up, by means of fraudand perjury, of contracts or demises by parol, upon which partiesmight otherwise have been charged for their whole lives, it did notappear unreasonable to limit the Statute to such actions only aswere brought to recover damages for the non-performance ofcontracts." I have unfortunately not been able to find theauthority for this interesting explanation, the edition of Tayloron Evidence, from which the judgment apparently quotes, being nolonger available. The judgment continues, quoting from Taylor:“ If it has been executed by cme party, and the transactions be ofsuch a nature as tcTadmit of an action for use and occupation, orin indebitatus assumpsit, the other party, perhaps; will not bepermitted to defeat the action by Betting up the Statute." The useof the word “perhaps" in this context is singular, as even at the dateof the edition cited there can have been no doubt about the matter.
The action had two forms: one in “debt," and the other “onthe case," or, “indebitatus assumpsit*9 A distinction existed'* (2841) Z Q. B. 860.• {2864) Bam. 1868-68,83.
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between these two forms of action, the reasons for whioh are notvery apparent. In the ease of the latter, though not of the former,the plaintiff eonld be non-suited on the production of an actualwritten demise not under seal. (See Oibson v. Kirk.1) A specialenactment was accordingly passed in the 11th year of George Q.,which expressly declared that where demises were not by deed (asrequired by the Statute of Frauds), the landlord should recover areasonable satisfaction for the lands held or occupied by the defend-ant in an action on the case; that the plaintiff should not be hon-snited by the production of a written demise under seal, but thatthis writing could be used as evidence of the quantum of the damages.It might be argued that this shows that in England the action wasthe creature of Statute, and that as we have no such Statute here,the action cannot here lie. But this is not so. The Statute onlyrelates to one form of the action, that “ on the case/’ that is,indebitatus assumpsit. Lord Denman declares in Gfibson v. Kirk1that, where the action was brought “ in debt/’ it was not defeatedby the production of a demise, and that, solar as the form of actionwas concerned, it was unaffected by Statute. Thus, the Statute didnot originate theaetion, it merely removed a difficulty whichaffeoteda particular form of it. The reasoning of LordDenman’s judgmentis certainly not very convincing, but it must be taken to express theEnglish law.
However this may be, this action was formallyandauthoritativelyadopted into our own system by Perero v. Fernando1: “ We decidethat alandowner can in Ceylon recover for usearid occupation withouta notarial instrument, if there has been actual use and occupation.”
Two special points- are, however, raised by Mr. Bawa in theprerant case. In the first place, he argues that the action can onlyhe brought by the “ landowner,” and that these plaintiffs, at thedate of tiie cause of action, were not landowners, having at that dateacquired no legal title. In the second place, he maintains that allthat can be recovered in such an action is a reasonable sum for theuse and occupation of the land calculated upon the market price ofsimilar land in the same neighbourhood, and that the allegedspecial agreement, by which defendants were to pay to plaintiffs halfthe value of all the gems found, could not in this case be used asevidence of the quantum of the compensation. In my opinion boththese points are bad. N
It is nowhere declared in the English cases that only the owner ofthe legal estate can sue. What is laid down is that, where therehas been occupation but no agreement, an agreement with theowner of the legal estate will be implied, but not with the owner of anequitable interest only. But that is, quite another thing. .1 see noreason why a person in the occupation of land to which he has nota complete title should not sue for use and occupation a person
1921.
Bertram
cur.
Nanqyak-harav.Andris
1 {3841} 1 Q. 3. m.* (1864) Ram. 1863-68,88.
7*
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whom he has put into occupation under himself. The importantthing is not the title of the plaintiffs, but the existence of therelationship of landlord and tenant between plaintiff and defendant*But quite apart from that, as the District Judge rightly held, thedefendants are estopped from disputing the plaintiff’s title. Thiswas expressly held in an old English case of use and occupation,Cooke v. LozUy.1 In this ease a glebe tenant sought to disputethe incumbent’s claim for rent on the ground that he had been“ simoniacally presented.” Lord Kenyon C.J. said: “ In an actionfor ‘ use and occupation ’ it ought not to be permitted to a tenant,who occupies land by the license of another, to call upon that otherto dhow the title under which he let the land.” Section 116 of ourEvidence Ordinance, 1895, is not to be treated as an exhaustivestatement of the law.
With regard to the other point, it is quite true that there is nocase on the books where in an action for use and occupation thecompensation has been assessed as a proportion of the profits. But^his is not conclusive. Local customs must be regarded. I see noreason why such a method of assessment should not be adoptedwhen the agreement is that a certain proportion of the crops shouldbe paid as rent. Equally, I see no reason why such a course shouldnot be taken when the agreement is for a fixed proportion of thevalue of gems found. If the agreement can be used as evidenceof the quantum of compensation when a rent is fixed in the ordinaryform, I see no reason why it should not be so used when the rentagreed upon is a proportion of the tenant’s revenue derived fromthe land of whatever character. For the reasons given I woulddismiss the appeal, with costs.
De Samp^yo J.—
Of the thirty-one plaintiffs, the real plaintiffs are the first sixplaintiffs, the other plaintiffs -being joined as lessors to them, ofsix-seventh shares^f the land Mahagaladeniya. Similarly, the firstsix defendants are the real defendants. The seventh, eighth, andninth defendants are joined as the owners of. the balance one-seventhshare of the land, and no relief is claimed as regards them. Theplaint is not very full and explicit, but the plaintiffs’ case, asdeveloped in the proceedings, is that at various dates in March andApril, 1919, the first six plaintiffs obtained from the other plaintiffsnon-notarial written agreements giving them right to gem on thesaid land on certain terms, and between May 25 and 29, 1919, theyfurther obtained formal leases for the same purpose, and that onor about April 13, 1919, they sublet to the first six defendants andothers various parcels of the land for the purpose of digging pits andgemming, on the terms that they should receive by way of rent a halfshare of all gems found by these sub-tenants^ or the value thereof.
'{1792) 5 T, & 4.
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The plaintiffs’ cause of action is that the first six defendants) whowere given one parcel of the land and had dug a pit, having in Apriland May, 1919, found gems there to the value of Rs. 50,000, failed togive to the plaintiffs their share of the gems or to pay the value,namely, Rs. 21,428'57, which they accordingly claim from the firstsix defendants.
The defendants severed their defences. The first, second, andthird defendants raised certain legal questions, and as regards themerits, they denied the alleged sublease, and also denied that theywere put in possession of the land by the plaintiffs, or that theygemmed thereon or obtained any gems therefrom. The fourth andfifth defendants admitted that, with the permission of the first Bixplaintiffs, they, with the first, third, and sixth defendants, gemmedon the land, but raised a dispute as to the share which plaintiffs wereto get, and stated that the gems found were kept in the custody ofthe first and second defendants pending the settlement of accountsand distribution of the gems. The sixth defendant’s answer wasto the same effect as that of the fourth and fifth defendants. Theseventh, eighth, and ninth defendants, who, as stated above, wereonly joined as owners of the unleaped share of the land, supportedthe plaintiffs, and claimed from the first six defendants their shareof the gems.
It will be seen that the contestants are the first, second, and thirddefendants, and of these, it is the first defendant who is said to haveactively carried on the mining operations, and with whose acts thecase is chiefly concerned. The first question of fact to be decidedis whether the plaintiffs sublet to them any portion of the land forgemming as alleged. The principal witness for the plaintiffs wasthe fourth plaintiff himself, who appears to have managed thewhole business on behalf of the plaintiffs. The plaintiffs con*stituted a syndicate for the purpose of gemming on this land.After obtaining some of the informal leases, they began gemmingabout March 12, 1919, but in the beginning of April there was adisturbance, which induced the fourth plaintiff and three others tocomplain to the first defendant, who is a headman, and to take areport for the purpose of instituting a case. But the matter wassettled, and, as theresult of that settlement, there was a distributionof pits, the contesting defendants getting the pit now in question.This is the effect of the fourth plaintiff’s evidence, with which theDistrict Judge was satisfied.
His Lordship dealt with the facts at length, and concluded asfollows:—
I have above dealt with the questions of fact only. The ChiefJustice has so fully considered the legal aspects of the case that itis unnecessary for me to add anything, except to say that, in myopinion, the first six plaintiffs are entitled to maintain this action.
1921.
Db SahfayoJ.
Nanaydk^kara p.Andris
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1921, The District Judge decided the issues of faot in favour of theDa Bsxbaxo Pkintiife, but deferred consideration of the amount to be awarded,j. in view of the facts above stated, we are in a position to enterd*1*1 Judgment.
katcv. Ia my opinion the appeal should be dismissed, with costs, andAndris judgment should be entered for the first six plaintiffs againstthe first six defendants for six-seventh of half of the said sum ofRs. 35,000, to wit, Rs. 15,000, with costs of action. Thefourth, fifth,and sixth defendants, if any part of the judgment is recovered fromthem, may have a claim for contribution against the contestants, thefirst, second, and third defendants, but they must seek this remedyin some other proceeding,.
Appeal dismissed.
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