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Present: Bertram O.J. and Garvin A.J.
SILVA ». ARUMUGAM.
418—D. C. Odombo, 1,402.
Bouse let by plaintiff acting ae executor—Action by plaintiff in hispersonal capacity—Is tenant estopped from, denying that plaintiffwas owner.
A person who enters into an agreement with another personin a representative capaoity cannot sue upon that agreement in hinpersonal capacity.
Where plaintiff acting as executor let a house to the defendant,—Held, that the defendant was not estopped from denying thatplaintiff was the owner in his personal oapaoity.
^j^HE facts appear from the judgment.
R.J. 0. Pereira, K.O. (with him A. St. V. Jayawardene, K.C.,and E. 0. P. Jayatikke), for plaintiff, appellant.
Bawa, K.O. (with him H. V. Perera), lor defendant, respondent.
Our. adv. vuit.
December 7, 1921. Bzbtbah C.J.—
The subject of this appeal is the tenanoy of a house, No. 18b,Fourth Gross street, Pettah, part of the property of the late C. S.Perera of Negombo. The estate of Mr. 0. 8. Perera appears neverto have been administered, but by a family arrangement this andother houses in Colombo were taken over, and the rents oolleoted,by his son, Mr. 0. E. Perera, on behalf of the family; other arrange-ments being made with respect to certain other houses in Colombo
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and Negombo. In April, 1919, Mr. C. E. Perera died, leaving a will,under which the plaintiff, Mr. Arthur de Silva, was appointed hissole executor. One of the Colombo houses referred to, No. 57c,Fifth Cross street, Pett&h (with which was incorporated a portionof No. 18b), had been for many years in the occupation of thedefendant. At the end of April plaintiff saw defendant and toldhim that he was Mr. C. E. Perera’s executor. He went into accountsWith him, and on June 3,1919, received a cheque for rent.
There can be no question that the defendant knew that Mr. C. E.Perera was only a part owner of the property, and that he was inpossession of it, and collecting rents as managing part owner.This question was discussed in a partition action, to which bothplaintiff and defendant were parties, and it was deolared by theDistrict Judge in that action, in the course of his judgment,that bothbefore and at the time of the execution of a lease subsequentlyreferred to defendant knew the true state of the title to the property.This must be taken as res adjudicate, and though the learned DistrictJudge did not define the point from which defendant’s knowledgemust be supposed to date, I think it may be taken as res adjudicatethat the defendant was aware of the true state of affairs at leastat the time of Mr. C. E. Perera’s death. At any rate both partiesin this oase have acted on the supposition that Mr. C. E. Pererawas managing part owner of No. 57c and No. 18b, and also on thesupposition that on the death of Mr. C. E. Perera his executor wouldbe the appropriate person to succeed him in the management. Itwas on this supposition that plaintiff, when he first approacheddefendant, informed him that under Mr. Perera’s will he (plaintiff)had been appointed executor.
As a matter of fact, plaintiff never ultimately obtained probate.The will was disputed; the claim to probate was never insisted on,and on August 19,1919, the case was settled by the application forprobate being withdrawn, the costs of the application being paidby plaintiff personally. An earlier will was produced, under whichplaintiff wasa co-executor, but here,too,he stoodout, and ultimatelyon October 10, 1919, he formally renounced his executorship. Atthis point, however, he seems to have conceived a curious scheme,namely, that though he would no longer have control of these housesas C. E. Pcrera’s executor, he would, nevertheless, assume control ofthese houses in another capacity, that it to say, he should purportto act on behalf of himself and all the other co-owners, including theexecutor of Mr. Perera, whose assent for this purpose he m^de noeffort to obtain, and which was, in any event, in the1 circumstancesof the case, not likely to be accorded.
Acting in pursuance of this new assumed capacity, he proceeded,in the course of the month of August, to give notice to the tenant ofNo. 18b, Fourth Cross street, Mr. Carrimjee Jafierjee, terminatinghis tenancy from September 30. This tenant had hitherto been
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paying rent to plaintiff as the supposed executor of Mr. C. E. Perera.Thus, a cheque dated June 3, 1919, in favour of the tenant, wasendorsed to the order of the executor of the last will of the lateMr. C. E. Perera, and was further endorsed by the plaintiff in thatcapacity. The notice to quit describes plaintiff as acting on behalfof himself and the other co-owners. Though nothing appears tohave been said with reference to this change of capacity, the tenantaccepted the notice and vacated possession on September 30. Nextdoor to No. 18b was No. 57c in the possession of defendant.Defendant at this time was desirous of enlarging his holding andtaking in No. 18b. Plaintiff offered the tenancy to defendant,and after the execution of certain repairs, defendant assumedpossession in the course of the month of October, paying Bs. 500in advance. Plaintiff gave defendant a receipt (D 3) signed in hisown name, making no reference either to the co-owners or to theestate of Mr. C. E. Perera. This receipt was given on October 3;after the settlement in the probate case on August 19 and beforethe renunciation of the executorship under the earlier will.
On concluding this agreement of tenancy, plaintiff thus Baidnothing about the change of capacity in which, in his own mindat any rate, he purported to act. He himself does not say that,either directly or indirectly, he gave the defendant any intimationof this change, except in so far as his personal signature of thereceipt might be construed as implying such an intimation. Earlyin the year 1920 he settled accounts with the defendant up to theend of 1919,signinga memorandum for this purpose in his own name.He collected the rents for the whole of the premises now in the occu-pation of the defendant, that is to say, for both No. 57c and No. 18b.
On February 5, 1920, defendant received a letter from Mr. J. A.Perera, Proctor, for the executor of the will of Mr. C. E. Perera,demanding the immediate payment of Bs. 1,250, being rent due inrespeot of No. 57c from April, 1919, to January 31,1920. Defend-ant replied on the 6th through his proctor that he had paid therent to Mr. Arthur de Silva, on his representation that he was theexeoutor of the estate of the late Mr. C. E. Perera. Mr. J. A. Pererawrote him a reply on the 8th that his client was unable to recognisethis payment, and finally defendant on March 2, 1920, took anotarial lease of the whole premises from the executor. Never-theless, with a duplicity and unscrupulousness which deserves theseverest reprehension, he concealed this fact from the plaintiff.He had some trouble with a sub-tenant; in certain proceedingsthat ensued he professed that the property belonged to plaintiff,and said that he had not taken a lease from plaintiff because itwas not customary so to do. What is more, in the partition actionsubsequently brought, he explained that he was influenced in hisdecision to attorn as' tenant to the executor of the late Mr.
E. Perera by wfiafc can only be described as personal resentment
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and spite against the plaintiff by reason of hiB interference withthe sub-tenant. On May 11, 1920, defendant obtained judgmentagainst his sub-tenant and evicted him from the premises, and onJune 7 by a proctor’s letter be disclosed the change in his positionto plaintiff, and demanded the repayment of the rent already paidto him “ on the representation made by you to me that you werethe executor of the last will of Relate Mr. C. E. Perera.” Plaintiff,thereupon, brought the present action claiming arrears of rent andejection of the defendant from the premises, and damages untilplaintiff should be restored to peaceful possession.
That there was an agreement of tenancy there can-be no doubt,but what we have to consider is, in what capacity plaintiff concludedthat agreement. It seems to me clear that that he didnot expresslypurport to let the premises as executor. As he had taken care togive the previous tenant notice in the new capacity which he hadassumed, it is not likely that he would have purported to have letthe premises to the new tenant in his old capacity. But did heby his previous conduct give defendant to understand that he wasdoing so ? Defendant says that he acted upon that understanding,but in view of the conduct of the defendant, which I have criticisedabove, no one would pay any attention to his word on the subject.It seems to me clear, however, from his answer to the letter of M*.
J.A. Perera, that this was, in fact, the case, and that he conceivedhimself to be taking the tenanoy from defendant as executor. Itseems to me clear also that he would not have entered upon the newtenancy without some definite explanation on the point, if he hadhad any idea that plaintiff was dealing with him in a changedcapacity. It was argued on behalf of plaintiff that this Was entirelya new tenancy unaffected by the old agreement. Plaintiff, in fact,let in his own name; defendant, therefore (so it is contended),being his tenant, is estopped from disputing his title, though, infact, plaintiff was only one of several co-owners. Mr. A. St. V.Jayawardene cites in this connection the case ot Weekes v. Burge,1 butthe troth is that the two tenancies—the old tenancy of No. 57cand the new tenancy of No. 18b—were so intimately connectedthat the transactions must be considered as continuous. Defendant,as I have above pointed out, was, in fact, enlarging his holding bytaking in the adjoining premises. Plaintiff had expressly andexplicitly dealt with defendant with regard to the tenancy of No.57c on the footing that he was the executor of Mr. C. E. Perera.Silence by the plaintiff under such circumstances, must be construedas a continuing representation, and defendant having altered hisposition on the faith of that representation^ plaintiff is estoppedfrom averring that he dealt with him in any capacity other thanthat of executor of Mr. C. E. Perera. He must be treated as thoughhe had dealt with him in that capacity.
169 £.T* 7*.
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Now, a person who has entered Into an agreement with anotheiperson in a representative capacity cannot sue upon that agreementin his personal capacity. Even if he could, the plaintiff in thiscase would be confronted with another difficulty. He has no titleto the whole of the property, the rent of whioh he seeks to recover;he7 can only rely upon a tenancy by estoppel. But a landlordgranting a tenancy in a representative capacity cannot set up theestoppel in a personal capacity. The tenant by taking the tenancyfrom him in a representative capaoity did notin any way admit thathe was the personal owner of the proper^. He admitted ownershipin the estate of which plaintiff pe&ported to be the executor, andit is only the true execute? or administrator of that estate whocould rely upon the estoppel.
It mupi ho admitted that the legal position of the executor in thegwmfc case is far from dear. He also has no legal title to thewhole of the property, but has only title to a share. It may bedifficult to establish that the managing ownership, which Mr. C. E,Perera exercised in his lifetime, was a legal right which descendedto his executor. Moreover, the effeot of contracts made by one oftwo executors, who subsequently renounces his executorship, is farfrom clear. The law. does not seem to contemplate that a personwho in any way has acted as an executor should be allowed torenounce his executorship. It is probable that a co-executor wouldbe allowed to ratify and adopt any such contract made on behalf ofthe estate. Mr. Bawa cited to us the case of Foster v. Bates?where an administrator was held entitled to ratify and adopt such acontract made by a person purporting to act as agent on behalf of theintestate’s estate before the appointment of the administrator,but in this case the executor had no more right to adopt the contractthan he had to make it. And, as I have said, it is not dear that hehad any better legal right to make it than the plaintiff himself.It is not necessary, however, for us to consider these difficulties.The question we have to decide is not whether the executor had theright either to grant this tenancy or to adopt it, but whether theplaintiff has a right in his personal capacity to sue upon an agreementof tenancy which he must be taken to have entered into in arepresentative capacity, and to that question the answer is in thenegative.
With regard to any claim which the executor may have against thedefendant, it is quite sufficient for his purpose that as the defendanthas taken a notarial lease from the executor in that capacity, thedefendant is estopped from disputing his title. As to what maybe the position of the parties with respect to sums paid by thedefendant to the plaintiff and the executor respectively, it is notnecessary for the purpose of this case to express any opinion. It is 1
1 (1843) 12 M. df W. 226,
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much to bo desired ttat oil parties to this family litigation wouldrefer the matter to arbitration, and have a general account taken.So far as the present appeal is concerned, I am of opinion that itmust be dismissed, with costs.
6tBTnr AJ. delivered a separate judgment, in which he discussedthe faotB at length, and concurred in the dismissal of the appe&L
SILVA v. ARUMUGAM