SHARVANANDA. C.J.. WANASUNDERA. J. AND ATUKORALE, JS.C. 28/85. C.A. 418/78 (F). D C. MT. LAVINIA 409/RE.
MAY 6. 1986.
Rei Vindicatio action-Suit for ejectment-Landlord gifting premises reserving lifeinterest and thereafter renting them-Death of landlord-Suit filed by donor on basis oftenancy-issues framed on basis of rei vindicatory suit-Does contract of tenancy endby death of life interest holder?
One Simon gifted the premises in suit to G and S reserving his life interest. ThereafterSimon rented the premises to B. Subseauently Simon died and G called upon B to
attorn to him (G) but B did not pay any rents to G who then instituted a suit forejectment on the basis of a tenancy. Issues however were framed without objection onthe basis that the suit was by a co-owner suing in a rei vindicatio action.
Where the lessor granting a lease has'only a usufructuary interest the lease isdissolved by the death of the usufructuary although the new co-owner requested thetenant B to attorn to him but B failed to do so. The case must be decided on theissues-i.e. as a rei vindicatory suit. B was in wrongful possession against the co-ownerG and liable to be ejected.
Cases referred to:
Fernando v. Silva-(1966) 69 NLR 164.
Mohamedv. Public Trustee-) 1978-79) 1 Sri L.R. 1.
APPEAL from judgment of the Court of Appeal.
C. Perera for plaintiff-appellant. ■
N. J. de Seneviratne with Rushan D' Alwis for defendant-respondent.
/. A. N. J. de Seneviratne with Rushan D' Alwis for defendant-respondent.
July 8, 1986.
By this action filed on the 29. 4. 1977 the plaintiff sued for theejectment of the defendant from the premises in suit. The defendantwas the tenant of the premises from March 1969, under one Simon.Prior to the defendant becoming the tenant, Simon had by Deed No.4958 dated 3.10.1967, donated^these premises to his grandnephews, the plaintiff and his brother Siripala, after reserving tohimself his life interest, Simon died on 26. 10. 1975. It is admittedthat all rents in respect of the premises had been paid and/or settledupto 30th November 1974 and that no rents were paid thereafter.The plaintiff pleaded in his plaint that after the death of Simon, thedefendant attorned to him and that by letter dated 9. 8. 1976 he hadasked' the defendant to pay him all arrears of rent failing which heterminated the defendant's tenancy as from 31. 12. 1976. Thedefendant in her answer denied that there was a tenancy betweenherself and the plaintiff and pleaded that plaintiff had never called onher to attorn to him.
The case proceeded to trial on the following issues:
1. By Deed No. 4938 dated 3.10.1 967 is the plaintiff the ownerof the premises in suit?
From 1.1.1977 is the„defendant in wrongful possession causingloss to the plaintiff at Rs. 59.72 per mensem?
As the dispute could not be settled has the Conciliation BoardCertificate been filed of record?
If issues 1. 2 and 3 are answered in favour of the plaintiff is heentitled to relief as prayed for?
Is the defendant a tenant of the plaintiff?
If not can the plaintiff maintain the action?
The trial judge answered the issues as follows and dismissed theplaintiff's action with costs:
Not sole owner.
TOC o "1-5" h z No.
The plaintiff's appeal to the Court of Appeal was dismissed withcosts. The plaintiff has now preferred this appeal to this court.
The plaintiff's brother Siripala has stated in his evidence that he hadno objection to the entire rent/damages being paid to the plaintiff.Both the District Court and the Court of Appeal have dismissed theplaintiff's action on the ground that the defendant was not madeaware of the existence of the deed on which the plaintiff claims thepremises and hence she was not bound to attorn to the plaintiff.
It is true that the plaintiff had framed this action on the basis that thedefendant attorned to him and had thereby become his tenant. Butsignificantly the issues framed by him in this case departed from hispleadings and converted the action into a rei vindicaiio action. Theissues were raised by the plaintiff on the basis that he claimed to be aco-owner of the premises and on the cessation of Simon'slife-interest, the defendant's possession was wrongful possession ofthe premises. The defendant did not object to the issues framed bythe plaintiff. The case must be decided on the issues raised in theaction.
Counsel for the plaintiff contended as a matter of law, that the deathof the landlord Simon operated to terminate the defendant's tenancyand that the plaintiff being a co-owner entitled on the death of theusufructuary, to possess the property and maintain this action for theejectment of the defendant. He submitted that Simon who was thelandlord of the defendant had, when he took the defendant as histenant, only a life interest in the premises in suit and that in law atenancy is dissolved by the death of the landlord who had only lifeinterest over'the premises. He conceded that position might havebeen different if Simon had been the owner of the premises. He citedin support of his proposition Fernando v. Silva (1). In that case it washeld that as a general rule a contract of tenancy is not terminated bythe death of the landlord; but that this rule will not apply where thelessor's title was one for life only, such as fiduciary interest or lifeinterest, in which case the death of the lessor terminated the lease.
He also referred to the judgment of the Divisional Bench of thisCourt in Mohamed v. Public Trustee (2) where Samarakoon, C.J.,referred to the general rule applicable to all leases –
"a lease is not dissolved by the death of one of the parties; but, inaccordance with a rule common to all contracts, the rights andobligations arising from the lease pass to the person of his heirs, orto that of his vacua successio" and added that "This rule issubjected to an exception where the lessor made the lease in hiscapacity as usufructuary, for in that case the lease is dissolved bythe lessor's death."
I agree with the legal submissions of Counsel for plaintiff and holdthat as defendant's landlord Simon had only a usufructuary interest inthe property when he granted the tenancy to the defendant, thetenancy stood dissolved by the death of the landlord Simon and thatthe defendant was, after the death of Simon in wrongful possession ofthe premises in suit as against the co-owners. Though by letter dated
976, the plaintiff had requested the defendant to attorn to him,yet the defendant had failed to attorn to the plaintiff. The defendant'spossession of the premises is therefore wrongful. Both the lowercourts had erred in dismissing the plaintiff's action. In fairness to thosecourts, it must be said that the legal submission set out above, wasnot addressed to them.
I set aside the judgment of the Court of Appeai and of the DistrictCourt and enter judgment for plaintiff as prayed for. The plaintiff willhowever be entitled to the costs of this court only,
WANASUNDERA, J. – I agree.
ATUKORALE, J. – I agree.
2-GUNAPALA v. BABYNONA