Karunasena v. Gooray
1949Present: Jayetileke S.P.J. and Canekeratne J.KARUNASENA, Appellant, and COORAY, Respondent
S. C. 96—D. C. Rainapura, 8,020
Statute of Frauds—Lease of land—Informal—Agreement to dig for plumbago—Further agreement to fill up pits at end of period—Damages for failureto do so—Recoverable.
Defendant entered into an informal agreement giving him the rightto dig for plumbago on a certain land. He also agreed to fill up the pitsat the end of the period before giving back the land. An action fordamages for failure to fill up the pits was dismissed on the ground thatthe agreement was not enforceable by reason of the provisions of theStatute of Frauds.
Held, that the Statute of Frauds did not apply. Hie lease could beconsidered as one renewable from month to month and the agreementin question was not inconsistent with such a tenancy.
A.PPEAL from a judgment of the District Judge, Ratnapura.
B. Wikramanayake, K.G., with O. Jayawickreme, for plaintiffappellant.
C. Thiagdlingam, for defendant respondent.
Cur. adv. vult.
CANEKERATNE J.—Karunasena v. Cooray
June 22, 1949. Cawekeeathb J.-—
This is an appeal by the administrator of the estate of one Singhe froma judgment dismissing an action to recover a sum of Its. 750, as damagesfrom the defendant.
The defendant entered on a land called Udagawakumbura, with theconsent of Singhe and in terms of the agreement, PI, for prospectingfor plumbago and continued in possession of it till November, 1944. Thelearned Judge held that the. estate of Singhe has suffered damages to theextent of Rs. 550 by reason of the failure of the defendant to do some-thing which he now refuses to do because the agreement was not madein a notarial document, but he dismissed the action as the aid of theStatute of Frauds, 1840, was invoked by the defendant.
An informal or parol agreement, which fails to conform to the Statuteis inoperative, because of the initial defect in its constitution unlike aninformal agreement falling within the English Statute of Frauds of 1676which is valid but unenforceable. If the question was res nova, perhapsit might be contended that an agreement which is of no force or availin law cannot be enforced directly or collaterally. But it is well settledby a series of decisions extending for a long period that the statute hasno application to certain executed agreements. It is settled that whenone has been in occupation of another’s land upon an agreement voidunder the Statute but not illegal, the latter can recover compensationfor the use and occupation of the land and that the writing, if any, orthe promise by words could be used as evidence of the quantum of thecomp ensation.1
A- promise, bargain, contract or agreement for establishing any interestaffecting land must be embodied in a notarial document—a lease at willand a lease for any period not exceeding one month are excepted fromthe operation of the section. The agreement, P3, conferring an exclusiveright to sink pits for plumbago is one affecting land. There is here,a right to go in and hold the land for the purpose stated ; it conferredon the defendant the right to be there for the purpose of sinking pitsand gave him possession of the land, although it was for a limited purpose.It was not disputed at the argument that he was not a tenant bysufferance. He was not a tenant by will, for it was not a permissivepossession which was revocable at any moment. He was a monthlytenant of Singhe in terms of the agreement. For a person entering intopossession upon such an agreement becomes tenant from month tomonth upon the terms of the writing so far as they are applicable to,and not inconsistent with, a monthly tenancy 2.
The agreement may be considered from two points, as one creating atenancy for a month only or for a period exceeding a month. Here thedefendant in consideration of being permitted to sink pits as he likesand take the income, less the ground share, in another’s land agreedto fill up the pits. No definite term is mentioned in the agreement,nor was there any agreement as to the amount of plumbago to be taken,
Perera v. Fernando, (Raman : 1863—68), 83.
NanayaJckara v. Andris, (1921), 21 N. L. R. 193.
Wambeck v. Le Meswrie, (1898), 3N. L. R. 105.
Kciluwa v. Hdkensa, (1909), 1 Our L. R. 89.
cf. Kanagaratna v. Banda, (1923), 25 N. It. R. 129, 135, 136.
M.. G. Perera v. Inspector of Labour, Matngama
or as to the time during which the defendant should keep up his business•or as to the nature of the pits—these are sometimes superficial. Theparties may well have expected that the agreement would continue inforce for more than a month ; it may have been very improbable thatit would not do so ; and it did in fact continue in force for a much longertime. But they made no stipulation which in terms, or by reasonableinference, required that result. The question is not what the probable,or expected, or actual performance of the agreement was ; but whetherthe agreement, according to the reasonable interpretation of its terms,required that it should go on for more than a month ; if within a monthafter entry on the land he had abandoned his whole business of pros-pecting or for any other reason, such as the absence'of plumbago or lackof means, had ceased to need the use of the land, the tenancy would havecome to an end. There may be a tacit relocation of a lease, by this ismeant the renewal of the lease by the fact of the tenant remaining inpossession without a formal renewal of the lease and without oppositionfrom the land-lord, coupled with payment of what is due as rent orcompensation for the use of the premises ; at the expiration of the timewhich was originally fixed by the agreement or which becomes fixed byoperation of law, the lease is held to be tacitly continued or renewed.1The effect of a tenant like the defendant being allowed to keep possession,by tacit relocation, after the expiration of the first month, is to renew thelease from month to month, each time for a month only. It is difficultto contend that a promise to fill up the pits and deliver the premises tothe owner is inconsistent with the terms of a monthly tenancy.
Judgment should be entered in favour of the plaintiff for this sum ;the respondent will pay the costs of trial and the costs of appeal.
Jayetileke S.P.J.—I agree.
KARUNASENA, Appellant, and COORAY, Respondent