ABEYESUNDERE, J.—Izadeen Mohamed v. Singer Sewing Machine Co. 407
1962Present:Abeyesundere, J., and G. P. A. Silva, J.
IZADEEN MOHAMED, Appellant, and SINGER SEWINGMACHINE CO., Respondent
S. G. 3901GO—D. C. Kandy, 5662/L
Landlord and tenant—Sale, by landlord, of premises let—Failure of purchaser to givenotice of election to tenant—Effect.
Whoro any premises aro sold by a landlord while a tenant is in occupationthereof, the purchaser can either insist on the vendor giving him vacant posses-sion or, with notico to tho tenant in occupation of the promises, elect to takethe promisos with that tenant. If tho purchaser fails to give notico of electionto the tenant, the contract of tonancy between the vendor and the tenantsubsists and it is only the vendor who is competent to terminate that contractof tenancy.
A.PPEAL from a judgment of the District Court, Kandy.
H. V. Perera, Q.G., with N. Nadarasa and H. D. Tambiah, for theplaintiff-appellant.
G. Ranganathan, with D. P. M. Fernando, for the defendant-respondent.
September 13, 1962. Abeyesiwdere, J.—
The plaintiff-appellant sued the defendant-respondent for the purposeof ejecting him from premises No. 91, Trincomalie Street, Kandy. Thebasis of the action was that there was a contract of tenancy betweenthe plaintiff-appellant and the defendant-respondent, that the defendant-respondent was in arrears with regard to the rent for November andDecember, 1957, and January and February, 195S, for over one monthafter the rent became due, and that the tenancy was terminated bynotice to quit (P 3) dated 4th March, 1958. The plea of the defendant-respondent was that there was no contract of tenancy between him andthe plaintiff-appellant who had purchased the premises in suit from theprevious owner from whom the defendant-respondent had obtained thetenancy.
Where any premises are sold while a tenant is in occupation thereof,two courses of action are in law open to the purchaser. He could eitherinsist on the vendor giving him vacant possession of the premises or withnotice to the tenant in occupation of the premises elect to take the pre-mises with that tenant. If the purchaser fails to elect to take the premi-ses with the vendor’s tenant in occupation thereof, the contract of tenancybetween the vendor and the tenant subsists and it is only the vendorwho is competent to terminate that contract of tenancy. This view ofthe law finds support in the decision of the Supreme Court in the case
408 ABEYESUNDERE, J.—Izadccn Mohamed v. Singer Sewing Machine Co.
•of Wijesinghe v. Charles reported in 18 N. L. R., page 168, and that decisionhas been followed in the case reported in 23 1ST. L. R., page 476, and hasbeen approved by Gratiaen, J. in the ease reported in 52 N. L. R.,page 433, at page 445.
The premises in suit originally belonged to Madar Saibo MohamedHassan and he by deed PI of 16th October, 1957, sold the premises tohis son-in-law, the plaintiff-appellant. At the time of the! sale thedefendant-respondent was in occupation of the premises as the tenant, ofthe vendor. The change of ownership was notified to the defendant-respondent by letter P2 dated 24th December, 1957, sent by the vendor’sProctors, Messrs Lieschiiig and Lee. There was however no indicationwhatsoever by the plaintiff-appellant that he had elected to take thepremises with the vendor’s tenant in occupation thereof. The 'resultin law was that the- contract of tenancy between the vendor and thedefendant-respondent continued to subsist. Consequently the plea of thedefendant-respondent that there was no contract of tenancy betweenhim and the plaintiff-appellant must succeed. I therefore dismiss theappeal with costs.
G. P. A. Silva, J.—I agree.
IZADEEN MOHAMED, Appellant, and SINGER SEWING MACHINE CO., Respondent