Fernanao v. Wijtsckcra
1969Present: Weeramantry, J.
E. N. FERNANDO, Appellant, and G. WIJESEKERA, RespondentS. C. 73167— C. R. Colombo, 92762jR. E.
Landlord and tenant—Attornment of tenant to a new landlord—Precise meaning of••attornment ”•—Whether it carries the implication of a continuation of the priorcontract of tenancy—Land lord ship by title paramount, or by assignment andnovation—Effect—Rent Restriction Act.
The term “ attornment” in relation to tho acknowledgment by a tenant of anew landlord connotes a constructive method of delivery to tho new landlordthrough an alteration in tho tenant’s mental state by which ho acknowledgestho landlordship of a person other than his original landlord. “ The notion ofattornment contains no element which points to the continued existence of theprior contract—a meaning which is often mistakenly supposed to bo inherent intho term.”
A tenant (tho defendant), to whom his landlord had let a block of baro land,constructed a house subsequently on the land and occupied it. Some time latertho block of land was amicably divided between tho landlord and his brother(tho plaintiff), who were the co-owners and a new landlord (tho plaintiff) 'became the owner of that part of the land which contained tho dwelling-housoconstructed by the tenant. Thereupon the tenant attorned to tho new landlordon the basis of a contract of tenancy the terms and conditions of which providedfor an increased rental and wore not identical with those which had prevailedearlier.
Held, that the legal background existing at tho time when tho secondcontract of tenancy was formed was fundamentally different from that existing atthe tinio of the – first contract. Tho subject matter of tho contract betweentho plaintiff and tho defendant at tho time of tho attornment was not thobare land-but the land and the structure standing thereon. Accordingly, theRent Restriction Act applied to tho premises and tho defendant was entitledto its protection.
Observations on landlordship by title paramount and by assignment andnovation.
PPEAL from a judgment of the Court of Requests, Colombo.
. IF”. D. Gunasekera, for the plaintiff-appellant.
Nimal Senanayake, with Prins Rajasooriya, for the defendant-respondent.
Cvr. adv. tmil.
WEERAMANTRY, J.—Fernanda v. Wijesekera
November 20, 1969. Weeramantry, J.—
Tho question involved in this case is the right of a subsequent landlordto eject a tenant to whom the previous landlord had let a block of bareland on which the tenant constructed a building subsequent to suchletting but prior to his attornment to the new landlord.
It would appear that the original contract of tenancy in regard to thisbare block was between the defendant and tho plaintiff’s brother who atthat time was in possession of the land. The plaintiff’s position asstated by him in evidence was that though his brother was in possessionof the land, the entire front portion of the land in fact belonged to theplaintiff by right of inheritance from his father, and that he (the plaintiff)had been unable to look after the property himself because his duties asa public servant required him to be away from Colombo. Thereafter hesent a notice to the defendant and other tenants stating that he was infact the owner of the land. The defendant was agreeable to becominghis tenant, and accordingly was accepted as such. The building inquestion had been constructed on the land prior to the time when thedefendant became his tenant, but the plaintiff’s position was that whatlie let to the defendant was no more than what his brother had let,namely the bare land.
It would appear, although tho plaintiff denied that there had been adispute between himself and his brother, that the plaintiff had givennotice to his brother through a proctor asking him to occupy the rearportion, and that it was only thereafter that the plaintiff took over thefront portion which included the portion let to tho defendant.
TIio plaintiff’s admission that it was only after giving notice to hisbrother through a proctor that he recovered possession of this land,renders it uncertain whether the plaintiff took over the land upon anamicable division, involving an assignment to hint by his brother of thelatter’s rights r.s landlord, or upon an independent assertion of title. Ishall therefore examine the legal position upon both these hypotheses.
The main contention of the defendant is that the plaintiff is not entitledto institute this action for the ejectment of the defendant inasmuch asthe subject matter of the contract of tenancy between the plaintiff andthe defendant was not the baro land, but the building so constructedtogether with the appurtenant land. It was common ground that if itwas a building which was let, the tenant was entitled to protection underthe Rent Restriction Act and that this action would fail, whereas if thesubject of the contract was only the bare land the Rent Act-would notapply and the plaintiff would bo entitled to ejectment.
The submission was made on the plaintiff’s behalf that the defendant’sattornment to him meant in law that the prior contract continued, withthe plaintiff standing in the shoos of his brother the former landlord ; andthat the laud let by the brother being a bare land, the subject matter of
WEERAMANTRY, J.—Fernando v. Wijesekera
the contract between the plaintiff and the defendant was also this bareland, despite the fact that prior to the attornment to the plaintiff, thedefendant had erected a structure thereon.
The contention of the defendant on the other hand is that there wasno continuity of contract in the sense contended for by the plaintiffbut that upon the attornment by the defendant to the plaintiff a freshcontract came into being. The subject of this fresh contract was tholand and premises in existence at the time of its formation and thereforeincluded the building constructed by the defendant. Upon this basis itis contended that the premises are subject to the provisions of the RentRestriction Act and that the plaintiff cannot have and maintain thisaction.
Since the original hearing of this appeal counsel have at my instancegiven me the benefit of a fuller argument on the question of attornmentand I am thankful to them for their assistance in clarifying .its trueimport in this case.
In view of the importance attaching to attornment in the contextof the arguments referred to, it becomes necessary to examine theprecise meaning of attornment when used in our law in relation to theacknowledgment by a tenant of a new landlord. For this purpose theterm will require examination with reference both to the English lawwhere it had its origin and to the Roman-Dutch law, with a viewto determining whether it carries the implication of a continuation ofthe prior contract.
One significant feature which emerges from this examination is thatthough the word attornment is frequently used in Ceylon in relation tothe law of landlord and tenant, its use in the modern Roman-Dutch lawof South Africa seems to concentrate largely on its meaning as a methodof symbolic delivery, to which I shall presently refer. Thus while theword finds a place as such a mode of delivery in IVille’s work on thePrinciples of South African law it does not find a place in the work of thesame learned author on the Law of Landlord and Tenant;and indeedthe words “ attornment ” and “ attorn ” find no place whatever inSisson’s or Bell’s South African Legal Dictionary. Against this back-ground we must determine its precise implications in our legal system.
Turning first to the English law, we see that tho word apparentlyderived from the French term a tourner meaning to turn. It laterbecame “ a(t) tomer ”, whence “attorn” passed into the English lawbooks. According to the Oxford Dictionary it means to. turn over to•another, to assign or transfer goods, tenant’s service, allegiance etc., andmeant in feudal law to transfer one’s homage and allegiance from onelord to another. It has been judicially defined as " the act of thetenant’s putting one person in the place of another as his landlord.” 1
1 Per HoJroyd, Cornish v. Searell (] S2S), 8 B. & C. 471, cited by Foa, Go'eralLaw of Landloixl and Tenant, Sth ed., s. 732 and by Lord Devlin in McerupptSumanatissa Terunnanse v. WaraJcapUiya Pangnananda Terunnanse (19G8), 70X.L.R. 313 at 317. P. CL
WEERAMANTRY, J.—ternando v. WijeeeXera
Attornment was in its origin a technical concept tied up with thecomplexities of the English land law resulting from such measures as theStatute Quia Emptores which prohibited sub-infeudation,1 and its laterhistory was affected by such other statutes as the Statute of Uses, theStatute of Wills and the Law of Property Act 1925. It should bestressed that we in this jurisdiction are in no way concerned with theseintricacies or with the implications resulting therefrom.
It is necessary to observe also that apart iroro its use in the Englishland law, the word attornment with its basic underlying meaning alreadyreferred to, of a turning over to or acknowledgment, is used also inEnglish law in relation to the sale of goods. Thus where goods are inthe possession of a bailee or agent and after they are sold tho bailee oragent acknowledges the buyer’s title and continues to hold under him ashis bailee or agent, there is said to be attornment.2 So also a carrierof goods may attorn to the buyer after arrival at his destination byacknowledging that he holds the goods on his behalf and continuingin possession of them as bailee for the buyer.3
One final observation on the use of the term in English law before wopass on to an examination of its use in the Roman-Dutch law, is that theEnglish use of the term in land law' is not necessarily restricted to thecase of a landlord who succeeds to the rights of the previous landlord,for we find it used even in the case of a landlord who acquires his statusindependently by title paramount ;4 and indeed this Court has uponoccasion used this term in reference to a landlord claiming upon anindependent title.® The mere circumstance therefore that an attorn-ment had taken place does not necessarily imply in English law acontinuity of existence of the pre-existing contract.
Turning now to the modern Roman-Dutch law we sec that the notionof a turning over to or acknowledgment which is its underlying meaning• in the English law has brought about its use in tho modern Roman-Dutchlaw to signify a symbolic delivery to d new owner, that is, a means ofeffecting delivery without any change in the actual possession of theproperty.6 The term is thus a convenient description of the process ofchange of custody which occurs when an agent- who holds goods for A,receives directions to hold them for B.7 In sucli a case the agent is saidin the modern Roman-Dutch law, as in tho English lav relating to thesale of goods, to attorn to the third party,8 but what is thus referred to
1 See Woodfall on Landlord and Tenant-, 26th ed., s. 1009.
Dublin City Distillery Co. v. Doherty (1914) A.C. S23.
1 Hnlsbury 3rd ed., vol. 34, p. 131.
4 Doc d. Chaicner v. Boulter, (IS3G), 6 Ad. and El. G75.
Alice v. Krishnan, (1962) 54 N.L.R. 154 ; Tillckeratne v. Coomaraaingham(1926), 2S X.L.R. at ISO at 1S3 per Jayewardono, A.J. at 139.
Sco Standard Bank v. Conner, 6 S.C. 44 where apparently this phraseology olEnglish law was first adoptod. Sco also Mackcurton, Salo of Goods in SouthAfrica, 3rd ed, p. 160.
T Lee, Roman-Dutch Law, 5th ed., p. 136.
WEERAMANTRY, J.—Fernando v. Wijeeektra
is none other than a form of tradilio or delivery of a corporeal tiling, forit achieves a constructive or fictitious delivery by an alteration of themental element in possession without the necessity for the thing beingmoved at all.J It would appear to be in this sense that the term is usedin the law of South Africa.
This idea of constructive or fictitious'delivery is perhaps even moreclearly illustrated in the converse notion of conslitutum possessorium withwhich such attornment is often compared, and tp which learned counselfor the respondent referred mo in this connection! In conslitutum posses-sorium, A, who holds an article as owner, agrees to hold it thereafter inanother character, as by way of borrower from B. This involves ineffect a transfer of possession from A to B and a transfer back from B toA though in a different capacity. The two transfers cancel out eachother 2 as though by a process of legal algebra,3 and without the necessityfor the physical processes being gone through, the same result is acliievedby A remaining in physical possession.
The position is no different in the case of attornment, for here too theagent notionally surrenders the property to A, who delivers possession toB who in turn delivers physical possession to the sarno agent. A changeof mental attitude on the part of the agent effects the result that wouldotherwise require a set of physical transfers. This aspect of attornmentreceived recognition in Alles v. Krishnan 4 where it was observed that.attornment constituted a notional vacation of the premises under theformer landlord, and in Tillekeratne v. Coomarasingham 5 where actualphysical dispossession was held to be unnecessary, the tenant’s, evictionin such cases being constructive or symbolic.
In short, whatever technicalities may have attached to the term in thelegal system of its origin, the strict meaning of attornment in. the Roman-Dutch law is a variety of brevi maim tradilio, for which the Roman-Dutch -law had no specific name, which occurs when there is an agreementbetween the owner, the intended transferee, and. an agent who hasdetentio on behalf of the owner, to the effect that the agent- is: from thenon to hold the thing for the transferee.6 It is, in other words, one ofthe several forms of constructive delivery known to the Roman-Dutchlaw.7 .
Despite the fact that the term as bonrowed by the Roman-Dutch lawthus concerns itself with a method of constructive delivery of movables,in Ceylon it has since 1S958 at least been used frequently in relation tothe law of landlord and tenant. Since associations of the term with the•complexities of English land law are irrelevant in our Jurisdiction, its
Willo, Principles, 5th ed., p. 176.a Lea, ibid, p. -137.
•See Paton, Jurisprudence, 2nd ed., p. 43—“The fiction is the algebra of low- and a picturesque form of algebra besides
(1952) 54 N.L.R. 154.
(1926) 23 N.L.R. 1S6 at 189.
Wille, Principles, 4th ed., p. 176. See also Hearn tfr Co. (Ply-) Ltd. v. Dleiman(1950) 3 S.A.L.R. 617 at 625.
1 Hearn Co. (Ply.) Ltd. v. Bleiman (1950) 3 S.A.L.R. 617 at 625.
See Wijeratne v. Hendrick (1895) 3 N. L. R. 158.
WEERAMANTRY. J —Fernando v. Wijesekera
proper moaning, if we are to take its use in South Africa as a guide,would appear to be a constructive method of delivery to the newlandlord through an alteration in the tenant’s mental state, by whichhe acknowledges the landlordship of a person other than his originallandlord.
We thus sec that the notion of attornment contains no clement whichpoints to the continued existence of the prior contract—a meaning whichis often mistakenly supposed to be inherent in the term.
I shall now proceed to examine the question whether there can be saidto be a continuance of the old contract on cither of the hypothesesearlier indicated.
If this is a case of landlordship by title paramount, it is clear thatthcro is no continuity whatever between the present contract and thatbetween the tenant and tho previous landlord, and tlicro will be littledifficulty in deciding that tho matter must be treated on tho basis of analtogether fresh contract entered into between the plaintiff and thedefendant.
If on tho other hand there had been an assignment of his rights by the.plaintiff’s brother to tho plaintiff, thcro would appear again to bo nocontinuation of the old contract when wc have regard to tho true meaningof assignment, for assignment of contractual rights and obligations ib buta variety of novation.1 While substitution of a new debtor for an old istermed delegation and substitution of a new creditor for an old con-stitutes cession, substitution of a new party for the old both as creditorand debtor, that is where he assumes both rights and obligations, is thespecies of novation which is known as assignment.
One of tho characteristics of all species of novation is the extinction ofthe pre-existing contract2 and the substitution of a new contract in itsplace. Ordinarily therefore, when there is an assignment of contractualrights and obligations thcro is a complete extinction of the rights andobligations which had subsisted under the prior contract. In tho specialcase however of the assignment of a landlord’s rights and obligations toanother there may be a survival of the tenant’s rights in tho limitedsense that his rights under the lease are preserved. This is in conse-quence of the modification by tho Roman-Dutch law* of tho principle oftho Civil law that there is no legal bond whatever between the purchaserof land and a prior lessee,3 and the adoption by tho Roman-Dutch law' ofthe principle that hire goes before sale. The purchaser by virtue of thisprinciple becomes the landlord of the tenant under the same conditionsas under his lease with the seller.4 This rulo adopted in South Africa®has been received in Ceylon as well® though with some reservations7which may need further examination in an appropriate case.
1 Wille, Principles, 5th ed., p. 357.* TX 19.2.25. 1 ; C. 46.5.9.
IX 46.2. i pr. Can ay, Is'ovation, p. 2.4 Gr. 3. 19.16.
Sco Dt Jarjtr v. SUana, (1929), A.D. 71 nt 82 ; Willo, Principles, 5th ed., p. 393;
Landlord and Tenant, 4th ed., p. S6.
Silva v. Silva (1913) 16 N.L.R. 315.
7 Wijesinghe r. Charles (1915) IS X L. It 16S.
WEERAMAXTRY, J.—Fernando v. tt'ijctt&cra
In the present caso however there is in any event no need to consideiwhether the plaintiff became the defendant’s landlord under tho sameconditions by operation of this principle, for tho reason that, tho conductof parties clearly points to the plaintiff and tho defendant having actedon tho footing of a new contract whose terms wero not the samo as thoseof tho prior contract.
We have it in evidence that although the rental charged by the previous•landlord was a sum of Rs. 20 per month, tho plaintiff charged rentinitially at the rate of Rs. 30 per month, thereby showing a clear intentionto enter into a contract on terms and conditions not identical with thosewhich had prevailed earlier. It is no doubt possible, as learned counselfor tho appellant strenuously contended, to relate an increased rentalpurely to an increased uso of the ground, where additional structures arebuilt thereon, but there has been no increased use of the ground at themoment of commencement of the plaintiff’s landlordship, for .it com-menced tho very instant his brother ceased to be landlord. Tho enhancedrental is clear evidence that- the plaintiff and the defendant were not evenin their own minds looking upon their relationship as a continuance oftho prior contract and wero not merely taking the terms of their contractfrom that which had existed before. The circumstances point far moreprobably in tho direction of an enhanced rental being agreed upon inconsideration of the letting of the building than in tho direction of anincrease in pure ground rent, and as between the possibilities I wouldagree with the learned trial Judge’s view that tho existence of thebuilding was the reason for this increase in rent.
These factors viewed against the background of an option available tothe tenant at the termination of his original contract of tenancy to dis-mantle the building and claim his materials or alternatively to let thematerials enure to tho owner of the soil subject to his rights tocompensation,1 leave little doubt also that in the present instance thedefendant has by his conduct permitted tho materials to pass to thesoil.
It follows from what has been stated that the legal background existingat the time the second contract was formed was fundamentally differentfrom that existing at tho time of the first contract and that what waswithin the power of the plaintiff to let (namely a building with appur-tenant land) was entirely different from what was within his brother’spower to let at any time (namely a block of bare land).
La all these circumstances I consider that a tenancy only in respect ofbaro land seems both unlikely in fact and indeed impossible in law aftertho accession of the building to the soil.
All these factors point to the formation of a new contract whose subjectmatter was a building with the appurtenant land as opposed to one inrespect of baro land only.
Jafforjee v. de Zoysa, (1953) 55 N.L.R. 12-1.
¥EN*N*EKOOtf, J.—Plyasena v. Gunawarctendli?
I reach the conclusion therefore that the subject matter of the contractbetween the plaintiff and the defendant was not the bare land but theland and the structure standing thereon. In this view of the matter theRent Act applies to the premises and the plaintiff would not be entitledto maintain this action. The plaintiff’s action must accordingly fail,and it is dismissed with costs both here and in the court below.
E. N. FERNANDO, Appellant, and G. WIJESEKERA, Respondent