MANIOAVASAGAR, 3.—Fernando v. De Silva
1966 Present: H. N. G. Fernando, S.P.J., and Manleavasagar, J.Mas. W. I. S. FERNANDO and another, Appellants, and, H. M.DE SILVA, Respondent
S.C. 429/64—D. C. Colombo, 10220/L
Landlord and tenant—Monthly tenancy—Death oj landlord—Resulting position.
The death of the landlord does not terminate a contract of monthly tenancy ;his rights and obligations pass then to his heirs. In such a case, the heirs arenot entitled to seek ejectment of the tenant without prior notice to quit.
A.PPEAL from a judgment of the District Court, Colombo.
Ranganathan, Q. C., with D. C. Amerasinghe, for the plaintiffs-appellants.
T. Samerawickreme, Q.C., with S. W. Walpita, for the defendant-respondent.
Cur. adv. vuCt.
October 25, 1966. Manicavasagar, J.—
The issue which we have to determine in this appeal is whether thedeath of the landlord terminates a contract of monthly tenancy.
The plaintiffs who are the heirs of the deceased landlord seek theejectment of the tenant, on the basis that the contract was terminatedby his death.
The learned District Judge dismissed the plaintiffs’ action, and counselfor the appellants submits that his decision is wrong. His contentionis that a monthly tenancy is terminated on the death of either of thecontracting parties. In making this submission he relied on the opinionof Chief Justice Basnayake (Pulle J. agreeing) in the case of Abdul Hafeelel al. v. Muthu Bathool1 that a monthly tenancy is terminated on thedeath of the tenant, and his rights and obligations do not pass to hisheirs. The leaned Chief Justice citing passages from Roman DutchLaw texts said a monthly tenancy is a contract for a period not exceedinga month, and it expires on the last day of the month, but is tacitly renewedon the first day of each month by the silence and conduct of the parties.
The citations from Voet (Book xix. 2. 9 and 10) and the CensuraForensis (iv. xxii. 14) to which reference is made in the judgment are,in my view, referable only to the case of a lease for a definite period— andnot to a periodic tenancy—when after the expiry of the peiiod of the
* (1957) 58 N. L. R. 409.
MANICAVASAGAR, J.—Fernando v. De Silva
lease, the lessee continues in the onjoyment of that which was let, and thelessor permits him to do so. Pothier says, quoting from the Digest(19. 2. 14)—
“ Relocation is a contract of letting and hiring presumed to havebeen tacitly entered into by the lessor and the lessee when, after theexpiry of the period of a previous lease, the lessee has continuedin the enjoymont of the thing, and the lessor has permitted him to doso. This relocation is therefore not a continuation of the previouslease, but a new lease, created by a new and tacit agreement betweenthe parties, following upon the previous one ”. (Sec. 342 Contract ofLetting and Hiring. 1953 edition)
With respoct. I do not agree that a monthly tenancy terminates at theend of the month, nor with the view that it is tacitly renewed from monthto month. A monthly tenancy is a periodic tenancy : it is a tenancywhich by agreement between the contracting parties runs from monthto month, and is terminated by a month’s notice. Wille says,
“ The essence of a periodic tenancy is, under the common law, thatit continues for successive periods until it is terminated by notice, givenby either party. ” (Landlord and Tenant, page 45,. 5th edition)
The termination of a monthly tenancy is by reasonable notice, unlikea tenancy for a definite period which ends with the efflux of time, unlessit is dissolved before expiry by operation of law.
The answer to the problem before us lies elsewhere. There being nostatutory provision which provides a solution, recourse must be had tothe common law. The principle applicable to this question is expressedin these words by Pothier—
“ A lease is not dissolved by the death of one of the parties : but, inaccordance with a rule common to all contracts, the rights and obliga-tions arising from the lease pass to the person of his heirs, or to thatof his vacua successio. ” (Sec. 317)
He gives two exceptions to this general rule, which is accepted by thewriters on RomarjJDutch Law, that
where the lessor’s title was one for his life only, such as a fiduciary
interest or life usufruct, the death of lessor terminates the lease,and
where the lease is at the will of the lessor, or lessee, death of the
lessor, or the lessee, as the case may be, terminates the lease.
There is also unanimity for the view that where the lease is for a definitetime, the death of either party during the continuance of the lease, doesnot terminate the lease, and the estate is bound by the lease, exceptwhere the lessor’s title is limited to his life.
188ALLES, J.—Qunau-ardtne v. D.R.O., Weligam Korale
What then is the answer to the issue in this case? A periodic leasedoes not come within the exceptions in the texts : it is terminated bynotice by either party : where the contract, by agreement of the parties,runs from month to month, and has not been terminated by reasonablenotice, the death of the landlord does not extinguish the contract, buthis rights and obligations pass to his heirs ; in the instant case the tenancyhas not been terminated by the plaintiffs.
The plaintiffs’ action was rightly dismissed, and this appeal fails.
I have not considered, as I do not think it necessary to do so in viewof the decision I have reached, whether the tenant of rent-controlledpremises is entitled to the protection of the Rent Act, even if the contracthad been terminated by the heirs : and the larger question, whether amonthly tenant, assuming Chief Justice Basnayake’s opinion is right,has protection from ejectment, under the Rent Act, on the death of hislandlord.
The appellant will pay the costs of appeal, and of the original Court.
N. G. Fernando, S.P.J.—I agree.
MRS. W. I. S. FERNANDO and another, Appellant, and H. M. DE SILVA , Respondent