Sithamparanathan v. People's Bank (Siva Selliah, J.)
SHARVANANDA, C.J., COLIN-THOMl J. AND ATUKORALE. J.
S.C. APPEAL No. 66/84.
A. (S.C.) APPEAL No. 41/84.
C. TRINCOMALEE CASE No. 9834.
FEBRUARY 13, 1986.
Landlord and Tenant-Subletting of portions of house without landlord's prior writtenconsent-Sections 10(1) and 10(5) of Rent Act No. 7 of 1972-Letting of portions ofpremises for wedding receptions-Does it constitute subletting under the Rent Act?
The sole test for determining for the purposes of the Rent Act the question whetherthere is. in law, a letting or subletting of a pan of the premises is to be found insubsection (1) of s. 10 of the Rent Act. Subsection (1) of s. 10 postulates two criteriafor determining whether in law there is a letting or subletting of a part of premises. Theyare firstly, that the occupant must be in exclusive occupation of the part in consideration
Sri Lanka Law Repons
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of the payment of rent and. secondly, that the part must be a defined and separate partof which the landlord or tenant (as the case may be) has for the time being relinquishedhis right of control. If these two critena are satisfied the law deems the existence of aletting or subletting. Where a portion of a house is given in consideration of a paymentfor exclusive use and occupation for a wedding reception to be held these criteria aresatisfied.
Cases referred to:
Swami Sivagnananda v. The Bishop of Kandy- (1953) 55 NLR 130.
Booker v. Palmer- 2 All ER 676.
Errington v. Errington and Woods- IKB 290.
Marchant v. Chaners- 3 All ER 918.
St. Aubyl v, Attorney-General- AC 53.
APPEAL from judgment of the Court of Appeal.
H. L. de Silva. P.C. with M. Devasagayam for appellant.
A. Mahendrarajah, P.C. with Siva Rajaratnam and S, Mahenthiran for respondent.
April 2. 1986.
The premises in suit consists of a very large house bearing assessmentNo. 26, George Street, Trincomalee and is governed by the provisonsof the Rent Act, No. 7 of 1972. The respondent (the landlord) filedthis action for the ejectment of the appellant (his tenant), nowdeceased, on the ground that the latter was in arrears of rent and thathe had sublet parts of the premises without his prior written consent.In regard to the first ground the learned District Judge held thatalthough the appellant was in arrears of rent for the requisite periodprior to the date of the notice to quit (P4), yet he had paid all sucharrears beTore the institution of the action and that therefore therespondent's claim for ejectment on that ground must fail. Noquestion arises before us in respect of that finding, to establish theother ground of ejectment, namely sublettings of portions of thepremises without his prior consent in writing, the respondent relied ontwo categories of subletting. One category comprised of 3 acts ofsubletting parts of the premises to 3 persons, namely Mahroof.Suppiah and Maheswaran. The learned District Judge found that therewas sufficient proof to establish such acts of subletting by theappellant but ruled that as those acts of subletting had commenced at
SCWamakulasinghe v. Subramahiam (Atukorale. J.)
a date prior to and continued after the coming into operation of theRent Act the respondent was not entitled in law to an order forejectment on the basis of those acts of subletting. This ruling of thelearned District Judge has not been canvassed before us. The othercategory of subletting relied upon by the respondent consisted ofalleged acts of subletting by the appellant of parts of the premises forthe purpose of holding special functions such as wedding receptions.The learned District Judge found that the wedding receptions ofChitravelu's second soi*(Kankeyan), of John Britto Shanmuganathan,of Kalimuttu Selliah and of David Gnanapragasam took place ondifferent dates after the commencement of the Rent Act in portions ofthe premises in consideration of the payment of specified sums ofmoney by them to the appellant or his agent. The learned Judge heldthat these acts constituted acts of subletting within the meaning ofs. 10(1) of the Rent Act and since the appellant had not obtained theprior consent in writing of the respondent, he entered decree for theappellant's ejectment from the premises in terms of s. 10(5). TheCourt of Appeal to which the appellant appealed from this orderaffirmed the same and he has now appealed to this court therefrom.
At the hearing before us the findings of facts of the learned DistrictJudge were not sought to be challenged by learned counsel for theappellant. Thus the legal issue that arises for our determination in thisappeal is whether the acts of the appellant by which he permitted thefour persons aforementioned to hold at different times their respectivewedding receptions in a part of the premises in suit on payment ofspecified sums of money to him-or his agent by them constitutedsublettings of parts of the premises within the meaning of s. 10(1) ofthe Rent Act; Learned counsel for the appellant submitted that thesaid four persons were not sub tenants but only licencees. Hecontended that even assuming that they had exclusive user of parts ofthe premises for their functions on payment of money, still theiroccupancy was not in consequence of a contract of tenancy or subtenancy but was in pursuance of a licence given to them by theappellant falling short of a letting or subletting. He contended that thedecisive test, under ‘the common law, was to ascertain the trueintention of the parties to the contract did they or did they not intendto create the legal relationship of landlord and tenant? He urged thatthe facts and circumstances of this case disclosed that what wasparamount in the minds of the parties was the temporary characterand duration of the occupancy of the four persons for a specific
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(1986] 1 SriL.R.
purpose. These factors, it was submitted, tend to negative anyintention on the part of the four persons and the appellant to enter intoa contract of tenancy or sub tenancy. In support of this submissionlearned counsel for the appellant, referred us to certain Englishdecisions, some of which have been considered in the local case ofSwami Sivagnananda v. The Bishop of Kandy (1) in which Gratian. J. inthe course of his judgment stated as follows:
"The question whether or not the parties to an agreement intendto create as between themselves the relationship of landlord andtenant must in the last resort be a question of intention-per LordGreene, M. R. in Booker v. Palmer (3) Similarly Denning, L. J. Sciid inErrington v. Errington and Woods (3) :c
'Although a person who is let into exclusive possession is primafacie to be considered to be a tenant, nevertheless he will not beheld to be so if the circumstances negative any intention to createa tenancy. Words alone may not suffice. Parties cannot turn atenancy into a licence merely by calling it one. But if thecircumstances and the conduct of the parties show that all thatwas intended was that the occupier should be granted a personalprivilege with no interest in the land, he will be held to be alicensee only.'"
In Marchant v. Charters (4) the question was whether the appellantwho occupied a furnished bed-sitting room on a weekly payment wasa tenant or only a licensee. A tenant of a furnished dwelling house wasgiven security of tenure under the English Rent Act, 1974 whilst alicensee had no such security. After examining the more recentdecisions of the English courts, Lord Denning, M. R. said:
"Gathering the cases together, what does it come to? What is thetest to see whether the occupier of one room in a house is a tenantor a licensee? It does not depend on whether he or she hasexclusive possession or not. It does not depend on whether theroom is furnished or not. It does not depend on whether theoccupation is permanent or temporary. It does not depend on thelabel which the parties put on it. All these are factors which mayinfluence the decision but none of them is conclusive. All thecircumstances have to be worked out. Eventually the answerdepends on the nature and quality of the occupancy. Was itintended that the occupier should have a stake in the room or did hehave only permission for himself personally to occupy the room.Whether under a contract or not. in which case he is a licensee?"
Wamakulasinghe v. Subramaniam (Atukorale, J.)
In my view the English decisions cited by learned counsel for theappellant are not of any assistance to determine the question that wehave to determine in this case. The statutory provision considered inthem is different from the one that arises for our consideration in theinstant case. Those decisions deal with the question whether theroom or rooms in question have been let to the occupants as aseparate dwelling, in which event the letting is a protected one. Therelevant statutory provisions in our Rent Act, to which there is nosimilar provisions in the English Rent Acts, are contained in's. 10 andread as follows:
(1) For the purposes of this Act, any part of any premises shallbe deemed to have been let or sublet to any person, if. and-only if, such person is in exclusive occupation, inconsideration, of the payment of rent, of such part, andsuch part is a defined and separate part over which thelandlord or the tenant, as the case may be, has for thetime being relinquished-his right of control; and no personshall be deemed to be the tenant or the subtenant of anypart of any premises by reason solely of the fact that he ispermitted to use a room or rooms in such premises.
(2) Notwithstanding anything in any other law, the tenant ofanypremises-
shall not sublet any part of the premises to any otherperson-
without the prior consent in writing of thelandlord;
Subsection (i) to s. 10 sets out plainly and explicitly the circumstancesunder which, for the purposes of the Act, a part of any premises shallbe deemed to have been let or sublet to an occupant. It postulatestwo criteria for determining whether in law there is a letting or asubletting of a part of premises. They are firstly, that the occupantmust be in exclusive occupation of the part in consideration of the
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 1 SriL.R.
payment of rent and. secondly, that the part must be a defined andseparate part over which the landlord or the tenant (as the case maybe) has for the time being relinquished his right of control. If these twocriteria are satisfied the law deems the existence of a letting or asubletting, as the case may be. The word 'deemed' is often used toembrace a compehensive description "that includes what is obvious,what is uncertain and what is, in the ordinary sense, impossible*-perLord Radcliffe in St. Aubyn v. Attorney-General (5). But in subsection(1) the word ’deemed’ read in conjunction j/,ith the expression 'if andonly if' is, in my view, definitive of what, for the purposes of the act,constitutes a letting or subletting of a part of premises. In other words,the sole test for determining, for the purposes of the Rent ^ct. thequestion whether there is. in law. a letting or subletting of a part of thepremises is to be found in subsection (1) itself. Thus, in my opinion, inso far as a letting or a subletting of a part of the premises isconcerned, the intention' of the parties is immaterial, although nodoubt it would be of paramount importance in determining whether or' not there has been a letting or subletting of the entirety of thepremise's.
Applying the above test to the facts and circumstances of this case Iam of the view that the trial1 court and the Court of Appeal were bothcorrect in concluding that the appellant sublet portions of the premisesin suit to the aforesaid four persons for the purpose of holding theirrespective wedding receptions. The oral evidence led on behalf of therespondent establishes that on each of those occasions a defined anddistinct, part of the premises was given by the appellant to each personfor his exclusive user and occupation in consideration of the paymentof money for the same. There was no service provided by theappellant for the benefit of any of those persons. The appellantexercised no control over any part of the portions that were given outby him. In fact the substantial defence taken up by him at the trial wasthat he did not ask for or receive any rent from any of the four persons.This defence has been rejected by the learned District Judge as totallyfalse. At no stage did the appellant maintain that he or any one on hisbehalf retained any form of control of the parts in which the receptionswere held. The appeal is therefore dismissed with costs.
SHARVANANDA, C.J. – I agreeCOUN-THOME, J.-l agree.
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