( 158 )
WIJERATNE v. HENDRICK.
C. R., Colombo, 8,453.
Landlord and tenant—Monthly tenant and tenant for a term of years—Right of notarial leasee to demand rent from monthly tenantunder the landlord—Want of priority of contract by attornment orassignment.
Defendant was a monthly tenant of R, paying him ground rentfor occupation of a house built on a garden belonging to R. R letthe whole garden to plaintiff on a notarial lease for a term of years—Held, that on the strength only of the lease plaintiff could notmaintain an action against defendant for ground rent.
Defendant will not be liable except by attornment to plaintiff, orby express assignment to plaintiff by R of the benefit of his contractwith defendant, and due notice of such assignment to defendant.
T N this case, while .the defendant was under contract to pay opeLaity Ramanaden a monthly ground rent for occupation of ahouse built on his garden, the plaintiff took the whole garden ona notarial lease from Ramanaden for a term of years, and suedthe defendant for ground rent for some months after its execution.The defendant pleaded that he was not liable, as there was nocontract between him and the plaintiff to pay such rent, and thathe was liable to pay rent to Ramanaden only. The Commissionergave judgment for plaintiff. On appeal by defendant—
Wendt, for appellant.
' Sampayo, for respondent.
10th April, 1895. Withers, J.—
I am quite with the Commissioner when he decides against thedefendant on the issue as to whether he has up ,to the 1st January,1894, been paying the ground rent of No. 42 to plaintiff’s lessor,Laity Ramanaden.
But in the issue whether defendant is liable to pay the plaintiffas Ramanaden’s lessee a rent of Re. 1 a month from the 1st January,1894, to the 1st October, 1894, I am unable to concur when hepronounces the defendant to be liable to pay plaintiff the rent nowdemanded. For I cannot discover under what contract, expressor implied, the defendant is bound to pay plaintiff this money.It is clearly under no express contract of lease with the plaintiff.
At the date of plaintiff’s lease defendant, as the plaintiffalleged, was a monthly tenant of Laity Ramanaden. As long asthat contract subsisted Ramanaden could not lease to theplaintiff. He could of course assign to the plaintiff the benefit ofhis lease with the defendant, who, on notice of that assignment,
( 159 )
if he continued to occupy the premises, would be obliged to payrent to the plaintiff. Again, defendant, in consideration of Rama-naden’s releasing him from future payment of rent, and of theplaintiff continuing to let him enjoy the premises on the sameterms as Ramanaden, could bind himself to attorn to the plaintiff.There is no allegation or proof of attornment however.
It is alleged in the plaint that on the 2nd April Ramanadenrequired the defendant to pay ground rent to plaintiff for No. 42,but it does not say that defendant undertook to do as hp wasrequired.
Except under such an attornment as I referred to above, orunder an assignment by Ramanaden of his contract of tenancywith the defendant with notice, I fail to see how this claim canbe sustained.
Mr. Sampayo argued that the lease from Ramanaden to plaintiffwas in the nature of an assignment, and he relied on the provisionthat “ Plaintiff, &c., shall recover as ground rent a sum not exceed-“ ing Rs. 2 per month during the said term from each of the said“ houses,” including 42 ; but it is clear that this is not assignmentof the ground rent: the habendum, is an ordinary lease and not theassignment of a current lease.
Then, the case is embarrassed by the apparent existence, if notsubsistence, of a prior lease from Ramanaden to the plaintiff’sbrother (since deceased) of the same premises but I need notenlarge upon this. Suffice it to say that in my opinion plaintiffhas failed to sustain any obligation on defendant’s part to pay himground rent for 42, and I accordingly dismiss his action.
In view, however, of the nature of the defence, I make no orderas to costs.
Judgment set aside and plaintiff’s claim dismissed.
WIJERATNE v. HENDRICK