1959 Present : Jayetileke S.P.J. and Canekeratne J.

KARUNASENA, Appellant, and COORAY, Respondent

S. C. 96-D. C. Ratnapura, 8,030

Statute of Frauds-Lease of land-Informal-Agreement to dig for plumbago Further agreement to fill up pits at end of period-Damages for failure to do so-Recoverable.

Defendant entered into an informal agreement giving him the right to dig for plumbago on a certain land. He also agreed to fill up the pits at the end of the period before giving back the land. An action for damages for failure to fill up the pits was dismissed on the ground that the agreement was not enforceable by reason of the provisions of the Statute of Frauds.

Held, that the Statute of Frauds did not apply. The lease could be considered as one renewable from month to month and the agreement in question was not inconsistent with such tenancy.

 APPEAL from a judgment of the District Judge, Ratnapura.

E. B. Wikramanayake, K.C., with C. Jayawickreme, for plaintiff appellant.

C. Thiagalingam, for defendant respondent.

Cur. adv. vult.

June 22, 1949. CANEKERATNE J.-

This is an appeal the administrator of the estate of one Singhe from a judgment dismissing an action to recover a sum of Rs. 750, as damages, from the defendant

The defendant entered on a land called Udagawakumbura, with the consent of Singhe and in terms of the agreement, PI, for prospecting for plumbago and continued in possession of it till November, 1944. The learned Judge held that the estate of Singhe has suffered damages to the extent of Rs. 550 by reason of the failure of the defendant to do some­thing which he now refuses to do because the agreement was not made in a notarial document, but he dismissed the action as the aid of the Statute of Frauds, 1840, was invoked by the defendant.

An informal or parol agreement, which fails to conform to the Statute is inoperative, because of the initial defect in its constitution unlike an informal agreement falling within the English Statute of Frauds of 1676 which is valid but unenforceable. If the question was res nova, perhaps it might be contended that an agreement which is of no force or avail in law cannot be enforced directly or collaterally. But it is well settled by a series of decisions extending for a long period that the statute has no application to certain executed agreements. It is settled that when one has been in occupation of another's land upon an agreement void under the Statute but not illegal, the latter can recover compensation for the use and occupation of the land and that the writing, if any, or the promise by words could be used as evidence of the quantum of the compensation.1[Perera v. Fernando, (Roman : 1863-68), 83. Nanayakkara v. Andris, (1921), 21 N. L. R. 193.]

A promise, bargain, contract or agreement for establishing any interest affecting land must be embodied in a notarial document-a lease at will and a lease for any period not exceeding one month are excepted from the operation of the section. The agreement, P3, conferring an exclusive right to sink pits for plumbago is one affecting land. There is here, a right to go in a