022-SLLR-SLLR-1986-V-1-RATNAYAKE-v.-BANDARA.pdf
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In Re John Mathew (Seneviratne J.)
245
RATNAYAKE
v.
BANDARA
COURT OF APPEAL.
SENEVIRATNE. J. (PRESIDENT. COURT OF APPEAL) AND JAMEEL, J.
S.C. No. 579/76(F) CA 579/76 (F).
D.C. MATALE No. 2059/L.
NOVEMBER 4, 21 AND 22, 1985.
Kandyan Law-Gift creating a fideicommissum-Abolition of Fideicommissum ActNo. 20 of 1973 – Revocation – Roman Dutch law – S. 5(l)(d) of Kandyan LawDeclaration and Amendment Ordinance No. 39 of 1938.
Held-
Although a donation by a Kandyan is expressed in the deed to be absolute andirrevocable under the Kandyan Law (s. 5(1)(d)) of the Kandyan Law Declaration andAmendment Ordinance No. 39 of 1938) the gift can be revoked by the donor.
Although the deed of gift created a valid fidei commissum. as fidei commissum hadbeen abolished with effect from 12.5.1972 by Law No. 20 of 1972. the donee tookfree of the fidei commissum.
Per Seneviratne. J.:
' the principles of Roman-Dutch law can be applied to ascertain whether a
deed made by a person subject to the Kandyan law is a fidei commissum, still todetermine other connected matters it is the Kandyan law that should be considered.By executing such a deed a person subject to Kandyan law will not bemetamorphosed into a person governed by the Roman Dutch law.'
The question of revocability is governed by Kandyan law.
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Cases referred to:
Assistant Government Agent. Kandy v. Kalu Banda (192)) 23 NLR 26.
Menika v. Banda (1923) 25 NLR 207.
Tikiri Banda Dullewe v. Padma Rukmani Dullewe (1968) 71 NLR 289 (PC).
Punchi Banda v. Nagasena (1963) 64*NLR 548 overruled by Dullewe v.
Dullewe (1968) 71 NLR 289.
P. Thepanisa et al v. P. Haramanisa et at (1953) 55 NLR 316:
Kiriheneya v. Jothiya (1922) 24 NLR 149.
Ukku Banda v. Paulis Singho (1926) 27 NLR 449.
Bogahalande v. Kumarihamy (1926) 8 CL Rec. 9 I.
Tikiri Bandara y. Gunawardena (1967) 70 NLR 203.
Noorul Muheetha v. Sittie Leyaudeen (1953) 54 NLR 2 70.
Molligoda R. M. v. D. Sinnethamby (1878) 7 SCC 1 18.
APPEAL from judgment of the District Court of Matale.
Dr. H. W. Jayewardene, Q.C. with Lakshman Perera. Miss Premila Seneviratne andMiss T. Keenewinne for defendant-appellant.
H. L. de Silva. P.C. with Gomin Dayasiri and Chitralal Fernando for plaintiff-respondent.
Cur. adv. vult.
January 21,1986.
SENEVIRATNE, J. (President, C/A)
agree with the judgment of my brother Jameel, J., but I wish tosupplement that judgment. The facts pertaining to this appeal havebeen fully set out m the judgment of Jameel. J. The parties to this caseare persons subject to the Kandyan Law. The mam matter m issue inthis case in the original court was whether the deed No. 39373 of31.1.73 (P2) had the effect of revoking the prior deed of gift No.8247 of 11.6.60 (P1) from Tikiri Kumarihamy to JayalathaKumarihamy. As such, the main issues raised at the trial were asfollows
Did Tikiri Kumarihamy by deed No. 39373 of 31.1.73 revokethe deed of gift No. 8247 of 1 1.6.60?
By such revocation, did the property re-vest on TikiriKumarihamy?
Is the deed No. 8247 of 11.6.60 irrevocable ?
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The learned District Judge answered the issues (1) & (2) in theaffirmative and issue No. 3 in the negative. As such the learned Judgeheld that the deed of gift (PI) was validly revoked by the deed (P2),and that the plaintiff got -title to the land from the said TikiriKumarihamy on the deed of gift No. 72 of 17.2.73 (P3). Theconsequence of this finding was that the defendant did not get title tothe land from Jayalatha Kumarihamy on deed of transfer (P3).
In the original court there was no consideration in any way of thefact that the deed of gift No. 8247 of 11.6.60 {PI) from TikiriKumarihamy to Jayalatha Kumarihamy was subject to a fideicommissum. The learned counsel for both parties in this appealagreed that the deed of gift (P1) was subject to a fidei commissum. Asthe deed (P1) on the face of it created a fidei commissum, and as bothcounsel agreed on this matter, the Court permitted the learnedQueen's Counsel for the appellant to make submissions based on thefact that the deed of gift (P1) created a fidei commissum. It can besurmised that in the original court, the parties have ignored the factthat the deed of gift (PI) created a fidei commissum, because thataspect of the deed has been considered (I should say correctly)irrelevant to the consideration of (PI) as at the time of the execution ofthe deed of revocation (P2) of 1973 fidei commissum had beenabolished. Fidei commissum had been abolished by the Abolition ofFidei Commissum Act No. 20 of 1972 which came into operationfrom 12.5.72. The facts and the documents which are relevant to thiscase are those which came into being after fidei commissum wasabolished with effect from 1 2.5.72.
After the abolition of fidei commissum with effect from 12.5.72.Jayalatha Kumarihamy became the absolute owner of the gifted landin question. Jayalatha Kumarihamy by deed No. 5204 of 6.1.72 (P2)transferred the land to her husband P. B. Ratnayake the defendant. Onthe findings of the learned District Judge the plaintiff was held to beentitled to the land, and the defendant has appealed against thatorder.
The submissions made in this Court on behlaf of thedefendant-appellant were that the deed of gift (PI) was an irrevocabledeed of gift'and these submissions were tied to the fact that the deedof gift (PI) created a fidei commissum. It was submitted by thelearned Queen's Counsel for the defendant-appellant that as the deedof gift (P1) created a fidei commissum, a concept of law kown to theRoman-Dutch Law, the revocability of the deed must be considered
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under the Roman-Dutch Law. and as such it was not the Kandyan Lawpertaining to the revocability of a deed of gift that should be applied inthis instance. This submission ignored the fact, and the legal position,that when the deed of gift (PI) of 1960 was revoked by the deed ofrevocation (P2) of 1973, fidei commissum had been abolished in1972. What is exactly meant by holding that a deed creating a fideicommissum has been executed by persons subject to the KandyanLaw has been set out by the learned Judge De Sampayo. J., in thecase of Assistant Government Agent, Kandy v. Kalu Banda (1). In thiscase he said:
"It is being contended that the deed should not be construed onprinciples of Roman-Dutch Law to which fidei commissa arepeculiar, that fidei commissa are unknown to the Kandyan Law, andthat, therefore, the conditions in the deed should be ignored and theimmediate donees should be taken to have acquired absolute title tothe property".
De Sampayo. J. in answer to this submission has set out as follows:
"In this case, as I ventured to remark in the course of theargument, it is not a question of applying any particular rules of theRoman-Dutch Law to the construction of this deed of gift. It is rathera question of right of an owner of property to dispose of it accordingto his pleasure. I am not aware of any principle of the Kandyan Lawwhich prevents a Kandyan from giving a -limited interest to oneperson, and providing that at the termination of that interest theproperty should vest in another person. Such a disposition would, ofcourse, be called in the Roman-Dutch Law a fidei commissum. Itmay not be a proper expression to describe a similar disposition by aKandyan. It is, however, a convenient expression, and if the thingitself may be done among the Kandyans, the Court will not hesitateto give effect to it, simply because the disposition may also amountto a fidei commissum".
This case sets out clearly the position that when a person subject tothe Kandyan Law executes a deed of gift, subject to certain conditionsand restrictions which deed is a valid deed in Kandyan Law, such aninstance will be identified by the term or concept known toRoman-Dutch Law as fidei commissum "as a convenient expression"because there is no legal concept known to Kandyan Law as fideicommissum. In the case of Menika v. Banda (2) Jayewardene, A.J.held as follows:
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"The deed of gift, although it creates a fidei commissum, is validunder the Kandyan Law. Although we may resort to theRoman-Dutch Law to ascertain whether the deed creates a validfidei cpmmissum or not, yet to ascertain who the lawful heirs are wehave to resort to the Kandyan Law."
This case asserts-the principle that the principles of Roman-Dutch Lawcan be applied to ascertain whether a deed made by a person subjectto the Kandyan Law is a fidei commissum. still to determine otherconnected matters it is the Kandyan Law that should be considered.By executing such a deed a person subject to Kandyan Law will not bemetamorphosed into a person governed by the Roman-Dutch Law.The leading case, judgment of the Privy Council in Tikiri Banda Dullewev. Padma Rukmani Dullewe and Another (3) has dealt with a deed ofgift which created a fidei commissum (see the relevant passage in thedeed quoted at page 290). Though that deed created a fidei■commissum, and a valid fidei commissum as the deed in issue in thatcase had been executed long prior to the abolition of fideicommissum, and it had also taken effect prior to that, their Lordshipsof the Privy Council have not at all considered the revocability of thisdeed of gift-
fa) On the basis that it was a fidei commissum, and
(b) That as such the principles of Roman-Dutch Law pertaining tothe revocability of a deed should apply.
Their Lordships of the Privy Council have determined the revocability ofthat deed on the principles pertaining to the Kandyan Law.
The case of P. Thepanisa et a! v. P. Haramanisa et al (5) is the casewhich President's Counsel for the respondent referred to as the casewhich laid down the correct law pertaining to this subject. In this casePulle, J. held that-
"the creation of a fidei commissum by a Kandyan deed of gift doesnot by itself affect its revocability".
must add that the learned Queen's Counsel for the appellant statedthat he is challenging the correctness of the decision in Thepanisa'scase (supra), and made submissions on the basis that this case hadnot been correctly decided. I hold that there is no authority for theproposition that in case of a deed of gift made by a person subject toKandyan Law creating a fidei commissum the rovocability of that deedshould be determined according to the Roman-Dutch Law principles.
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I will now deal with the revocability of deed of gift No. 8247 of11.6.60 (PI). In this deed of gift (PI) the donation was made asfollows, to the daughter Jayalatha Kumarihamy-"as a donation inter
vivos absolute and irrevocable to have and hold the said
premises for ever."-(the emphasis is mine). The main issue in thiscase was whether the use of the words "absolute and irrevocable andto have and hold the said premises for ever" was a sufficientdeclaration under the Kandyan Law to make this deed of giftirrevocable by the donor Tikiri Kumarihamy. In considering thismatter-that is the revocability of a deed of gift, or a deed of gift whichcannot be revoked, the provisions of the Kandyan Law Declaration andAmendment Ordinance No. 39 of 1938-Vol. 111. Cap. 59.C.L.E.-Section 5(1 ){d) has to be considered, and which section is asfollows:
"any gift, the right to cancel or revoke which shall have beenexpressly renounced by the donor, either in the instrument effectingthat gift or in any subsequent instrument, by a declarationcontaining the words 'I renounce the right to revoke' or words of
substantially the same meaning"
In Dullewe's case (supra) the Privy Council considered the provisionsof the deed set out above in relation to section 5(1) (d) of the saidOrdinance to determine whether the said deed was revocable or not.The* majority judgment of the Privy Council held-
"accordingly the words as a gift irrevocable in a deed of gift do notsatisfy the condition for irrevocability prescribed in the section, sucha gift is subsequently revocable by the donor".
In coming to this decision this majority judgment of the Privy Counciloverruled the then leading case on this subject Punchi Banda v.Nagasena (4), in which Sansoni, J. held that—
"by the use of a single word 'irrevocable' in a Kandyan deed of giftthe donor may, under section 5(1) (d) of the Kandyan LawDeclaration and Amendment Ordinance, expressly renounce hisright to revoke".
Lord Donovan in his dissenting judgment upheld the judgment of theDistrict Court of Kandy, which was affirmed by the judgment of theSupreme Court holding that the words used in the said deed of giftmakes the gift irrevocable. Lord Donovan expressed himself asfollows:
"the words irrevocable means 'not capable of revocation'; andthe capacity to revoke obviously depends upon the existence of aright to do soWhen therefore he uses a word which
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Ratnayake v. Bandara (Seneviratne J.)
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indicates that the gift is not to be capable of revocation, he is sayingthat he shall not enjoy the right to revoke which he would otherwisepossess. In other words he is renouncing that right. He is not usingwords which 'substantially' means the same thing as the prescribedformula, but exactly the same thing. True, the Ordinance requiresthat whatever words are used the right shall be 'expresslyrenounced. The words’’as a gift irrevocable' are express".
In coming to this conclusion His Lordship Lord Donovan has in detailanalysed the Kandyan law pertaining to the revocation of a gift withreference to cases both before and after the Kandyan Law Declarationand Amendment Ordinance of 1938. In fact Lord Donovan'sdissenting judgment affirmed the decision in Punchi Banda v.Nagasena (supra) overruled by the majority judgment.
Learned Queen's Counsel for the defendant-appellant strenuouslysubmitted that the dissenting judgment of Lord Donovan was thecorrect view of the Law, and asserted that he will be duly challengingthe majority judgment. After due consideration I agree with thedissenting judgment of Lord Donovan and it is mainly to express thisview that I have written a supplementary judgment. However, thisCourt is bound by the majority judgment of the Privy CouncilinDullewe's case (supra), as it was at that time the supreme and finalCourt of Appeal.
For the reasons set out above I agree with the judgment of mybrother Jameel, J. and I dismiss the appeal with costs.
JAMEEL, J.
By his plaint dated 26.7.74, the plaintiff-respondent sued thedefendant-appellant for a declaration of title to the land calledWalauwewatte alias Ayapattu Walauwewatte.
It is common ground that the planintiff's mother, Tikiri KumarihamyEllepola was the former owner of this land and that she had on deed(PI) 8247 of 1 1.6.1960 gifted it to her sister Jayalath KumariRatnayake. the wife of the defendant-appellant.
It was admitted in the course of the argument before this court thatthis deed (P1) created a valid fidei commissum in favour.of the doneewith a gift over to her children and that should the donee leave nochildren then the property was to revert to the donor and her children.This gift has been accepted by the donee. That was on 11.6.1960.On 12.5.72 the Abolition of Fidei Commissum Act came into
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operation. On 5. 10. 72 by deed No. 5204 (V3) Jayalath Kumaritransferred the land to her husband, the defendant-appellant. On31.1.73 by deed No. 30373 (P2) Tikiri Kumarihamy Ellepola revokedthe deed of gift (PI) and on 17.2.73 by deed No. 72 (P3) she giftedthe land to her son the plaintiff-respondent.
Learned Queen's Counsel who appeared for thedefendant-appellant conceded that if deed P1 is in fact revocablethen, deed P2 would be an effective act of revocation and that titlewould then have passed on to the plaintiff-appellant. He also did notpress the appeal with regard to the quantum of compensationawarded by the Learned District Judge to the defendant-respondentfor improvements effected by him to the premises.
The arguments of learned Queen's Counsel were a three-prongedattack on the judgment of the learned District Judge.
The first line of argument was that this deed P1 which admittedly isa Kandyan deed of gift is irrevocable.
The relavant portions of the deed relied on by learned Queen'sCounsel are, "Give, Grant, Convey. Assure and Make Over as aDonation intervivos absolute and irrevocable." And, "to have and to
hold the said premisesunto the said donee and her aforesaid
forever, provided"
On the strength of the cases Kiriheneya v. Jotiya (6) wherein the
deed carried the words 'I shall not revokeat any time' and
Ukku Banda v. Paulis Singho (7), wherein the deed carried theexpression 'absolute and irrevocable' and, in Bogahalande v.Kumarihamy (8), wherein both Kiriheneya's case (supra) and UkkuBanda's case (supra) were reviewed. (All decided before the KandyanLaw Declaration And Amendment Ordinance No. 39 of 1938 waspassed) and the cases reported in Punchi Banda v. Nagasena (supra).wherein the words used were 'irrevocable' and Tikiri Banda v.Gunawardena (9), wherein the word used was 'irrevocable' and therenunciation was unconditional, learned Queen's Counsel contendedthat Deed P1 was irrevocable. In the light of the decision of the PrivyCouncil in Dullewe v. Dullewe (supra) I am unable to accede to thisvery forceful argument. Their Lordships of the Privy Council (LordDonovan dissehting) held, that unless the Kandyan Deed of Gift carrieda declaration expressed in the words contained in the statute, namely,"I renounce the right to revoke" or words which substantially carry the
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Subramaniam v. Pathmanathan (Samarakoon. C. J.)
253
H.eld-
The appellant's failure to pay the rents even after he received confirmation by P 6that it was R who had signed the letter requesting attornment to the respondentand that the premises had not vested in the Commissioner of National'Housing,was a repudiation of 'his tenancy and such a person is not entitled to notice.Pleading a termination in the plaint therefore did not arise.
The Rent Act required three months' notice to be given. Although there was nopleading or issue on the point, the notice P 7 was received in evidence withoutobjection. Therefore there was compliance with the requirement of the Rent Actand the respondent was entitled to maintain the action.
Cases referred to
Edirisinghe v. Patel. (1979) 79 (1) N.L.R. 217. 219.
David Silva v. Madanayake. {1967) 69 N.L.R. 396.
Hassan v. Nagaria. (19691 75 N.L.R. 335. 336.
APPEAL from a judgment of the Court of Appeal.
I. G. N. deJ. Seneviratne with S. Parathalingam for defendant-appellant.H. L. de Silva S. A., with W. D. D. Weerasinghe for plaintiff-respondent.
Cur. adv. volt.
April 5, 1984
SAMARAKOON, C.J.
This is an appeal with the leave of the Court of Appeal for decision bythis Court on two issues raised by that Court. The appellant was thetenant of premises he occupied under one M. Muthiapillai since theyear 1969. Muthiapillai died and his son M. Radhakrishnan becamethe owner of the premises and the appellant attorned to him and paidrents to him till the end of December, 1971. By Deed No. 1 7 dated1.4.1971 Radhakrishnan transferred the premises to his wife, therespondent in this appeal. By letter dated 24.1.72 (P 1) therespondent, acting by her attorney-at-law, requested the appellant topay her all rents from 1.1.1972. By letter dated 1.2.1 972 (P 2) theappellant, acting by his attorney-at-law,, requested the respondent'sattorney to forward to him a letter from " the previous landlord Mr.Radhakrishnan " authorising the appellant to make payments to therespondent. He also asked the particulars of the Deed of Transfer. A"letter dated -1 st November, 1973 (P 4) signed by Radhakrishnan wasforwarded to the appellant. This letter requested the appellant to make
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payments to the respondent. The appellant appears to have doubtedthe genuineness of the signature of Rad'nakrishnan on P 4 and hetherefore wrote through his attorney a letter dated 13.3.1974 (P 5)to the respondent's attorney asking him to confirm that it was in factsigned by Radhakrish.nan. He also sought information as to whetherthe premises had vested in the Commissioner of National Housing.The attorney added-
" On your confirmation that the said letter is genuine my client
shall pay to your client all arrears of rent. "
By letter dated 1 7.9.T974 (P 6) the respondent's attorney replied tothe attorney of the appellant providing the necessary confirmation andstated that the premises had not vested in the Commissioner ofNational Housing. Mo rents were however forthcoming. On 20.12.74the respondent instituted action in the District Court of Colombopraying tor-
fa) a declaration that the appellant was in wrongful and unlawfuloccupation of the premises ;
{b) for a decree in ejectment ; and
for damages at Rs. 50 per month from date of action untilejectment.
On 26.5.75 the appellant tendered to the respondent a cheque forRs. 960/72 being rents due from 1.1.1972 to 31.1 2.73 less a sumcf Rs. 331/87 being rates paid to the Colombo Municipal Council.This cheque was returned to the appellant by the respondent. Theappellant filed answer on 29.10.1975 denying the averments in theplaint and pleading the facts set out above. He also pleaded- •
(a) that no rents were paid for the period subsequent to 1.1.74" as the plaintiff had not furnished proof that the said land andpremises had not vested in the Commissioner of NationalHousing " ;
{b) that he was not wrongfully in arrears of rents and the failure topay rents was due to the default of the plaintiff (respondent) innot providing the documents asked for by him ; and .
that the action cannot be maintained as the tenancy had notbeen duly Terminated.
255
SCSubramaniam.v. Pathmanathan (Samarakoori. C.J.)
With his answer he brought into. Court to the credit of the case a sumof Rs. 1171 /95 on account of rent from 1.1.1972 to 31.10.1975.
After trial the District Judge entered judgment in favour of therespondent.' The appellant's appeal to the Court of Appeal did notsucceed.- Both Courts were of the view that the action as constitutedon the plaint read with .the admissions on record and the issuesframed was notone of rei vindicatio based on title but a tenancy actionbased on a breach of contract. The first question for decision is statedby the Court of Appeal as follows
" Could the plaintiff respondent have maintained an action inrespect of premises governed by the Rent Act of 1972 withoutpleading termination of tenancy ?"
It appears to me that the manner in which the plaint has been draftedhas been the cause of some confusion and the source of needlessargument. It recites the ownership by reference to the Deed ofTransfer. No devolution of title has been pleaded. It recites the factthat the appellant declined to pay rents to the respondent and that theappellant by his conduct repudiated the contract of tenancy betweenhimself and the appellant and therefore was not entitled to any reliefunder the Rent Act. No. 7 of 1972. What this latter pleading seeks toconvey is hard to comprehend. The sum and substance of it is that theappellant declined to pay rent to the new owner. The plaint goes on toplace a value " on the subject matter of the action ". Perhaps he valuesthe premises at this figure – which again is hard to accept. It thenprays for damages from date of action. Nowhere does it claim arrearsof rent or damages equivalent to the monthly rent. It- does not pray fora declaration of title but asks for a decree in ejectment. It has beennumbered as a land action. The answer has done no better. It doesnot even plead the benefit of the Rent Act. It only pleads the absenceof a termination of tenancy which could mean one under theCommon Law or one under the Statute Law.
On the first date of trial the dispute took a different course. Counselfor respondent raised three issues. They are-
"{1! Has the defendant paid any rent to the plaintiff after shebecame the owner of the premises ?
If not. is the defendant in wrongful occupation of the premises ?
if issues 1 and 2 are answered in the affirmative, is the plaintiffentitled to the relief prayed for in the plaint ? "
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There was no necessity for these issues for the reason that the factswere admitted of record. It is recorded at the outset that therespondent admits that the appellant is the lawful owner of thepremises in suit (this fact was denied in the answer). Further that theappellant had been requested by the respondent in writing to payrents. This must be read with the admission in the answer that norents were paid to the respondent in response to those requests. It isalso recorded that by consent of parties damages were fixed at Rs. 50per mensem. The entire case of the respondent was thereforeconceded and the burden was on .the appellant to prove that he had aright to continue in occupation. His counsel then raised the crucialissue as follows
"(4) is the defendant in occupation of the premises as the lawful
tenant of the plaintiff ?"
A tenancy has been referred to in para 5 of the plaint in a quizzicalmanner. For good measure his counsel raised on the next date of trialthe following issues based on para 5 of the plaint—
"(5) As pleaded in paragraph 5 of the plaint has the defendantrepudiated the contract of tenancy between himself and theplaintiff ?
If not. can the plaintiff have and maintain this action ?"
if the appellant succeeded in proving that he was the lawful tenantthen other questions arose due to the fact that an admission wasentered of record that the premises were governed by the provisionsof the Rent Act. No. 7 of 1 972. No further pleadings were filed but therespondent was permitted to mark in evidence notice to quit dated13th November, 1973, (P7) which gave the appellant three monthsnotice to vacate the premises.
The Court of Appeal has held that this was an action on a tenancyand I am of opinion that it was correct in so holding. Title has beenpleaded to show that the respondent was the new owner andtherefore by operation of law she stepped into the shoes of the sellerwho was the landlord and that therefore she was entitled to the rents.Repudiation of the contract of tenancy is pleaded because of thedecisions of the Supreme Court that such a tenant is neither entitled tonotice to quit nor to claim any rights to a tenancy. Vide the cases cited' in Edirisinghe v. Patel (1). The appellant did not deny the tenancy. Heonly wanted confirmation of a kind which was provided on 17.9.1974
SCSubramaniam v. Parhmanathan (Samarakoon. C.J.)257
bv P6. He was silent thereafter and did not pay any rent. In his answerfiled on 29.10.1975 he pleaded that rents were not paid firstlybecause the respondent failed to furnish proof that the premises werenot vested in the Commissioner of National Housing and secondlybecause the respondent failed to provide the documents asked for byhim. Neither reason is true to fact and therefore both areunacceptable. Having elected to remain in occupation he was boundto pay rent to the respondent. In this case he did not fulfil hisundertaking to pay even though he received the confirmation he askedfor by his letter P5. The respondent was, in these circumstances,entitled to sue the appellant in ejectment. David Silva v. Madanayake(2). As stated earlier a termination of tenancy has been pleaded inpara 5 of the plaint by a plea that the appellant himself repudiated thetenancy. This is a termination by him. The appellant did not expresslyadmit the tenancy. He held the respondent at bay for a long timewithout either an admission or denial of the tenancy. In his answerfiled in Court he gave two reasons for not paying rent which werepatently false. Such a person is not entitled to a notice to quit. Hassanv. Nagaria (3). Pleading a termination in the plaint therefore does notarise.
Issue (b) reads as follows
“(b) Is it competent for a Court to enter judgment against theappellant on the ground of termination of a tenancy within theRem Act where no issue in relation to the question of. termination of tenancy has.been taken up at any stage."
The Rent Act required a period of three months notice to be given. Itwas neither pleaded nor raised in issue. But such notice was given byP7 which document was marked in evidence without objection. Therewas therefore proof of compliance with the requirement o? the Ren:Act and the respondent was therefore entitled to maintain the action.Pleadings, have been defective and no issue therefore could be raised.But these were corrected during the trial. In the result there was proofthat the tenancy had been lawfully terminated and that the actioncould be maintained under the provisions of section 22 (3) (a) of theRent Act. An order of ejectment was therefore correct!y made.
in view of the above I dismiss the appeal with costs here and in theCourt of Appeal.
COLIN THOME’, J.-l agree.
ABDUL CADER. J.-l agree.
Appeal dismissed.