Present : Bertram C J. and De Sampayo J.

NANAYAKKARA et al. v. ANDRIS et al.

104--D. C. Matara, 8,794.

Informal lease of a land to plaintiffs for gemming-Sublease by oral agreement by plaintiffs to defendant! for. half than of the value of gems found-Action for half share of gems or value-Ordinance No.. 7 of 1840, s. 2-Use of Statute of Frauds as an instrument of fraud-Claim for compensation for use and occupation-May person who has no legal title claim compensation for use arid occupation ?-May the oral agreement to give half share be considered in assessing compensation ?-Doctrine of part performance considered.

The first six plaintiffs took an informal lease of a land from the other plaintiffs for gemming, and in the same month by a verbal agreement 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 the value of the gems mined. The defendants contended, inter alia, (1) that the agreement was of no force or avail in law under section 2 of Ordinance No. 7 of 1840 ; (2) that plaintiffs could not succeed as on a claim for use and occupation ; and (3) that in any event all that can be recovered on such a claim is a reasonable sum for the use and occupation of the land calculated upon the market price of similar land, and that the alleged agreement to pay half value of the gems found could not be used as evidence of the quantum of compensation.

The District Judge held (1) that the defendants were not entitled to use the Statute of Frauds to protect their own dishonesty; (2) that the plaintiffs were entitled to recover on the claim for use and occupation ; and (3) that the defendants could not call in question their lessors' title.

Held, that the principle that the Statute of Frauds should not be made an instrument of fraud did not help the plaintiffs in this case, but that they could recover compensation on the footing of a claim for use and occupation, though they had no legal' title when they sublet to defendants, and that the agreement might be used as evidence of the quantum of compensation.

The equitable doctrine that the Court will not allow the Statute to be made an instrument of fraud (apart from certain minor and infrequent cases) is confined to two classes of cases:-

(a) Cases where the defendant has obtained possession of the plaintiff's property, subject to a trust or condition, and claims to hold it free from such trust or condition;

(b) Cases with the equitable doctrine of part performance.

" This case is not a case in which a person who is occupying property subject to a trust or condition fraudulently seeks to retain it free of that trust or condition. The action is not for the

return of the sapphire, but for rent, or more exactly, for compensation for the use and occupation of the land. Nor is this an action for specific performance."

The doctrine of part performance (with reference to the Statute of Frauds) applies to suite for specific performance only. It has ("" no application to claims for damages. It is confined principally (though not exclusively) to cases of contracts for the sale or purchase of land or for the acquisition of an interest in lands.

There is nothing to prevent the adoption of the doctrine of part performance as part of the legal system of the Colony.

Perera v. Amarasooriya [1 (1909) 12 N. L R. 87.] commented upon.

The history and scope of the action for "use and occupation " explained.

THE 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. V. Jayawardene, K.C. (with him Hayley and Weerasooriya), for plaintiffs, respondents.

Charles de Silva, far seventh and eighth defendants, respondents.

Cur. adv. vult.

November 30, 1921. BERTRAM C.J.-

This was an action arising out of a gemming agreement. The plaintiffs purported to