The Bishop of Chila w v. Wijcnathan
THE BISHOP OF CHILAW
FERNANDO, J., AMERASINGHE, J. AND DHEERARATNE, J.
S.C. APPEAL NO. 30/87C. A. APPEAL NO. 10/80.
M.C. COLOMBO (CIVIL) 31/GE.
JULY 15 AND 18, 1991.
Landlord and Tenant – Rent and ejectment – Reasonable requirement -charitable Trust – Landlord lacking beneficial interest – Capacity of Land-lord – Devise under last will – Succession to trust property – Trustee of char-itable trust – Sections 12, 22 (1) (b), 22 (2) (b), 22(7) of Rent Act.
The appellant, the Bishop of Chilaw was a Corporation incorporatedunder the Roman Catholic Archbishop and Bishops of Ceylon Ordinance.The appellant was appointed Executor under a last will wherein the follow-ing bequests, inter alia, were made:—
Udalawela Estate to the Roman Catholic Bishop of Chilaw to beused solely for the support of St. Anne's Nursing Home, Marawila.
Two flats Nos. 33 and 33/1, Guildford Crescent, Colombo 7 to theRoman Catholic Bishop of Chilaw to be used solely for the support of St.Joseph’s Home for the Aged, Lansigama, Marawila.
In 1964 the respondent became tenant of 33/1, Guildford Crescent. Thetestator died in 1971. As Executor, the appellant informed the respondentthat the premises were required for Church work and one years' notice wasgiven. In 1976 the appellant instituted action for ejectment by a petitionunder the Administration of Justice Law in the Magistrate's Court. Thepremises are residential premises the standard rent of which exceeded Rs.100/-per mensem. It was pleaded in the concise statement of facts that thepremises were required for Church work and In the concise statement of lawthat the premises were reasonably required for the purposes of the appellant.
The appellant held the legal title (but not the beneficial title) subject to acharitable trust solely for the support of St. Joseph’s Home for the Aged.
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The case was argued on two issues:—
Were the premises reasonably required by the appellant for the reasonsset out in the concise statement of facts?
Was the appellant’s action barred by section 22(7) of the Rent Act?
The trial judge held in favour of the appellant but the Appeal Court re-versed the judgement as follows:—
A landlord cannot succeed on the ground of reasonable requirementwhere he has no beneficial interest in the premises.
The object of the trust was the support of St. Joseph's Home, but thiswas not the reasonable requirement pleaded in the concise statement offacts.
The appellant had acquired ownership of the premises by inheritanceor gift otherwise than from a parent or spouse after the respondentbecame the tenant.
The respondent was a partner of a coconut and copra business in Dan-kotuwa. He had one son studying at St. Thomas College, Mount Lavinia.Residence in Colombo was necessary for purposes connected with his busi-ness, meeting workers, attending auctions, purchasing raw materials etc. Hehad built a house in 1974 in the adjoining permises but sold it in 1975 (afterreceiving notice to quit). Efforts to find alternative accommodation at thesame rent as at present (Rs. 422/- p.m.) were unsuccessful.
St. Joseph’s Home had 108 inmates cared for by 16 nuns. A new buildingfor 45 inmates had been built but could not be made functional for want offunds. Government assistance was received at Rs. 38/50 p.m. per inmate butthe cost of maintenance, on food alone was Rs. 6,000/- p.m. The deficit wasmet by public support which however was dwindling. The net income fromthe premises in suit was Rs. 300/- per month. Five nuns were residing at 33,Guildford Crescent. The premises were required to run social charitableactivities to raise funds such as a nursery school, a Home for Orphan Girlsand a centre for the sale of the products made by the girls.
Between the two competing needs, that of the beneficiaries of the char-itable trust was more urgent and far outweighed the needs of the respondent.
The Bishop of Chi law v. Wijenathan
Section 12 of the Rent Act prohibits the landlord and tenant of resi-dential premises from using them for other purposes. It does not prohibit anowner (or his agent) from using his premises for non-residential purposes. Alandlord can use residential premises for non-residential purposes after re-covering the premises from his tenant, if he refrains from letting the pre-mises. Accordingly such non-residential purposes can be taken into accountby the Court in considering whether the premises are reasonably required bythe landlord. The competing requirements being balanced by the court neednot be identical i.e. both residential or both non-residential. The appellant’sneed for non-residential purposes can be considered even though the pre-mises are residential or are used by the tenant solely for residential purposes.
The seeming discrepancy between Church work and charitable pur-poses in no way prejudiced or misled the respondent.
The landlord’s requirement does not have to be an immediate one, agenuine need which will come into existence in the near future is sufficientsuch as residence for a child not yet married, but soon to be married, a pub-lic officer living in government quarters due to retire soon or business to becommenced in the future. Here however the need was not dependent on anevent yet to occur but was both immediate and urgent; an increase in incomewas essential to supply the day-to-day requirements of 108 inmates and toaccommodate 45 others awaiting admission to the new building. The pro-posed activities could not be commenced unless and until the premises arerecovered.
All that the Court had to decide was whether the premises were rea-sonably required for the purposes of the business or vocation of the appel-lant and so long as the proposed activities were not patently unlawful orUltra Vires the strict enforcement of the terms of the charitable trust wasneither the tenant's concern nor a matter falling within the jurisdiction ofthe Court in this action. However here the proposed activities were substan-tially in conformity with the testator’s wishes.
Under our Rent Act the definition of landlord does not make benefi-cial interest the critereon. A person with bare legal title or even without ashred of title can be landlord. The person for the time being entitled toreceive the rent is the landlord and need not have title. A tenant who subletsthe premises is also a landlord vis-a-vis his subtenant and can recover pos-session on the ground of reasonable requirement.
.7. The appellant in his capacity as executor was the landlord. He there-fore had to institute action in his representative capacity and not in his per-sonal capacity. The cause of action that accrued to the appellant in his
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representative capacity as Executor was founded on the contract of tenancyand it was sufficient for that to be pleaded, put in issue or admitted.
8. The contention that as the ownership was acquired after the specifieddate by inheritance or gift (being by last will) but not from a parent orspouse does not apply here. In view of the duties and obligations imposedon the trustee of a charitable trust he does not acquire ownership of thetrust property by inheritence or gift but by transfer inter vivos or upon decla-ration by will. Section 22(7) does not bar appellant's action.
Cases referred to:
Noorbhoy v. Sellappa Chettiar (1957) 58 NLR 389
Thamby Lebbc v. Ramasamy (1965) 68 NLR 356
Thomas v. Rodrigo (1964) 66 NLR 437
Ismail v. Herft (1948) 50 NLR 112
Andrea v. De Fonseka (1950) 51 NLR 213
Swamy v. Gunawardena (1958) 61 NLR 85
Abdul Rahim v. Gunasena (1964) 66 NLR 419
Kader Mohideen v. Nagoor Gaoy (1958) 60 NLR 16
Arnolis Appuhamy v. De Alwis (1958) 60 NLR 141
Martin Appuhamy v. Urban Council Gampaha (1960) 62 NLR 156
Mamuhewa v. Ruwanpatiranc (1948) 50 NLR 184
Nanayakkara v. Pawlis Silva (1959) 60 NLR 490
Gunasekera v. Mathew (1953) 54 NLR 299
Appuhamy v, De Silva (1964) 67 NLR 188
Gunasena v. Sangarapillai (1948) 49 NLR 473
Hamedu Lebbe v. Adam Saibo (1948) 50 NLR 181
Aloysius v. Pillaipody  1 Sri LR 106
Parker v. Rosenberg (1947] 1 KB 371
Sharpe v. NichoUs  1 KB 382
Patel v. Patel  1 All ER 68
Harrison v. Hopkins  2 All ER 597
Alles v. Krishnan (1952) 54 NLR 154
Viswaliogam v. Gajawecra (1954) 56 NLR 111
Blacker v. David (1951) 53 NLR 499
Senanayake v. Dissanayake (1908) 12 NLR 01
Visaladchypillai v. Sivapakkiamma (1938) 40 NLR 114
Murvgiah v. Jainudeen (1954) 56 NLR 176, 181
APPEAL from the judgment of the Court of Appeal.
H. L. De Silva P.C. with K. Kanag – Iswaran P.C. and E. R. S. R. Coomar-aswamy (Jr.) for appellant.
The Bishop of Chile w v, Wijeaathao (Fernando, J.)
Miss. Maureen Sencviratne P.C. with Neville Jacolyn Seneviratne and MissDamayanthi Perera for Respondents,
Cur. adv. vult.
September 10, 1991.
The Petitioner-Respondent-Appellant ("the Appellant”), aCorporation incorporated under the Roman Catholic Archbi-shop and Bishops of Ceylon Ordinance (Cap. 338), wasappointed Executor of a Last Will. Apart from two small lega-cies, the entirety of the estate was devised for charitable pur-poses. There was a bequest of Rs. 50,000/- to the priestin-charge of St. Anthony’s Church, Kochchikade, for charityand church repairs, and the residuary estate was to be distrib-uted among charitable organisations at the Executor’s sole dis-cretion. The following provision of that Will is relevant to thisappeal:
"I do hereby give and devise:
Udalawela Estate to the Roman Catholic
Bishop of Chilaw to be used solely for the support ofSt. Anne’s Nursing Home, Marstwila;
My two flats Nos. 33 and 33/1 Guildford Crescent,Colombo 7 to the Roman Catholic Bishop of Chilawto be used solely for the support of St. Joseph’s Homefor the Aged, Lansigama, Marawila”.
In 1964, the Respondent-Appellant-Respondent ("theRespondent”) became tenant of 33/1 Guildford Crescent. Thetestator died in 1971. As Executor, the Appellant informed theRespondent that the premises were required for Church work,but the Respondent did not vacate the premises; having given
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one year’s notice, in 1976 the Appellant instituted action forejectment by a petition to the Magistrate’s Court under theAdministration of Justice Law. The premises are, admittedly,residential premises the standard rent of which exceeded Rs.100/-p.m. In the concise statement of facts it was pleaded thatthe Appellant informed the Respondent “that the said pre-mises are required for Church work”; in the concise statementof the law, it was averred that “the premises are reasonablyrequired for the purposes of the [Appellant]”. It is commonground that upon the death of the testator the legal title to thepremises (but not the beneficial interest therein) vested in theAppellant, subject to a charitable trust “solely for the supportof St. Joseph’s Home for the Aged”. Both in the Magistrate’sCourt and the Court of Appeal, the case was fought on twoissues;
' Were the premises reasonably required by the Appellant
for the reasons set out in the concise statement of facts?
Was the Appellant’s action barred by section 22(7) of the
The trial judge answered these issues in the Appellant’sfavour and further ordered that when the Respondent has’vacated, or is ejected from the premises, in terms of section22(8) the premises should be maintained by the Appellant as aHome for orphan girls and/or a nursery school and/or a cen-tre for the sale of articles produced by the girls, for the main-tenance of St. Joseph’s Home for the Aged, Lansigama,Marawila.
The Court of Appeal set aside that order, taking the viewthat (a) a landlord cannot succeed on the ground of reasonablerequirement where he has no beneficial interest in the pre-mises, (b) the object of the trust was the support of St.Joseph’s Home, but this was not the reasonable requirementpleaded in the concise statement of facts, and (c) the Appellanthas acquired ownership of the premises by inheritance or gift,
The Bishop of Chiiaw v. Wijenalban (Fernando, J.)
otherwise than from a parent or spouse, after the Respondentbecame the tenant.
It was in evidence that the Appellant was engaged in anumber of charitable activities in the diocese of Chiiaw,including orphanages and homes for elders such as St.Joseph’s Home. The running of that Home had been entrustedby the Appellant to a religious congregation; at the relevanttime (in 1976) it had 108 inmates who were being cared for by16 runs; a new building had been constructed to accommodateanother 45 persons, but these could not be admitted due tolack of funds for maintenance; Government assistance wasreceived at the rate of Rs. 38/50 p.m. per inmate; food alonecost Rs. 6,000/- p.m., and the deficit was met out of publiccontributions; however public support was dwindling. The nettincome received by Way of rent from the premises in suit, afterdeduction of rates, was about Rs. 300/-p.m. Five nuns wereresiding in the upstairs flat (33 Guildford Crescent). One ofthese was teaching at St. Bridget’s Convent, and she donatedher entire salary for the Home; although there were trainingfacilities at Lansigama, special training was provided at Aqui-nas College, Colombo, and two others were undergoingsuch training. The upstairs flat had only one bedroom, inwhich three nuns slept; one slept in the kitchen and the otherin the servant’s room. That flat was also used to accommodatenuns on visits to Colombo. In an affidavit filed with the peti-tion one of the nuns deposed that the nuns proposed “toundertake social charitable activities'in the premises to raisefunds’’ for the Home, and that “the premises are required forthe said purposes of the Church work”. In her evidence a fewmonths later, she stated that the premises were required “inorder to derive some income as well as for social service activi-ties” such as a nursery school, a Home for orphan girls, and acentre for the sale of products made by the girls. TheRespondent was a partner of a coconut oil and copra businessin Dankotuwa; he had one son studying at St. Thomas’s Col-lege, Mount Lavinia; it was necessary for him to reside in
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Colombo for purposes connected with his business, namely tomeet his brokers, to attend auctions, purchase raw materialsetc. In 1957 he had bought a block of land, adjoining the pre-mises in suit, on which he commenced building a house in1970. When this was completed in 1974, he was unable torepay the construction loans utilising the rental income fromthat house, and accordingly sold the house in 1975 (afterreceiving the notice to quit); after settling his debts, he was leftwith Rs. 75,000/-. He had made unsuccessful efforts to findalternative accommodation, at the same rent (of Rs. 422/-p.m.) as he was paying for the premises in suit.
There can be no doubt that as between these two compet-ing needs, that of the beneficiaries of the charitable trust wasmore urgent and far outweighed the need of the Respondent.On behalf of the Respondent it was strenuously contendedthat, by reason of the provisions of the Rent Act and the LastWill, the premises could not be said, in law, to be reasonablyrequired by the Appellant. Relying on the Rent Act, it wassubmitted that the Appellant’s need for non-residential pur-poses could not, in law, be weighed against the Respondent’sneed for residential purposes; that section 12 precluded the useof residential premises wholly or mainly for any purpose otherthan that of residence; that though the pleadings referred to“Church work”, the purposes disclosed in evidence were quitedifferent; that in any event those activities were not actuallybeing carried on but were only activities proposed for thefuture. Relying on the Last Will, it was contended that thetestator intended only that the rent from the premises be uti-lised for the purpose of the Home; that “Church work” wasoutside the scope of the charitable trust; that the use of thepremises for residential purposes by the nuns, or for the pro-posed future activities, would contravene the testator’s direc-tive that the premises be used “solely” for the support of theHome.
Reasonable requirement: sections 12 and 22(l)(b): Section 12 ofthe Rent Act prohibits the landlord and the tenant of residen-
The Bishop of Chilaw v. Wijenathan (Fernando, J.)
tial premises from using it for other purposes; it does not pro-hibit an owner (or his agent) from using his premises for non-residential purposes; a landlord can use residential premisesfor non residential purposes, after recovering the premisesfrom his tenant, if he refrains from letting the premises;accordingly such non-residential purposes can be taken intoaccount by the Court in considering whether the premises arereasonably required by the landlord. It was also stated that theuse of residential premises for other purposes was prohibitedby the Urban Development Authority Law, No. 41 of 1978;this was enacted after the conclusion of the evidence butbefore judgment, and there was no pleading, issue, evidence orsubmission at the trial as to whether the premises in suit wasaffected by any such prohibition, and it is too late to raise thatquestion now. Therefore the Appellant’s need must be assessedon the basis that there was no bar on the use of the premisesby the owner for non-residential purposes. Where the tenant isusing the premises for residential purposes sections 22(lXb)and 22(2Xb) do not provide that, in assessing the relativeneeds of landlord and tenant, the landlord’s need for non-residential purposes cannot be considered. If that was thelegislative intent, the relevant provision would have read —
“such premises, being residential premisesare in
the opinion of the Court reasonably required for occupa-tion as a residence for the landlord and such pre-mises, being business premises, are reasonably
required for the purpose of the business of the land-lord”
Further, sections 22(1 )(b) and 22(2)(b) do not refer only to“residence” and “business”; “trade”, “profession”, “voca-tion” and “employment” are also contemplated; if the tenantis using the premises for residence (or business), can the land-lord’s need for professional use be excluded from considera-tion? 1 think not. The legislature intended that the requirementof one be balanced against the requirement of the other; but itdid not further prescribe that the basis of such requirement
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should be identical. Where the legislature intended that thelandlord’s need for residence alone can be considered, expressprovision was made, as in section 22(2)(bb), but even there thelegislature did not restrict the landlord’s right only to the casewhere his need for residential purposes outweighted thetenant’s need for residential purposes; section 22(2)(bb) entitleshim to recover any “premises” let to a tenant, and not merely“residential premises”; thus if the tenant is using the premisesfor business purposes his need must be weighed against thelandlord’s need for residential purposes. The last paragraph ofsection 22(2) is also relevant. A corporation’s need for busi-ness premises can be considered in relation to “any premises”(and not merely “any business premises”) of which it is thelandlord. In that legislative background, to accept theRespondent’s submission would necessitate, under the guise ofinterpretation, the modification of several provisions of theAct. I therefore hold that the Appellant’s need for non-residential purposes can be considered even though the pre-mises are residential, or are used by the tenant solely for resi-dential premises. I am fortified in this conclusion by thedecision of H.N.G. Fernando J., (as he then was) in Noorbhoyv. Setlappa Chettiar, (1). There the landlord sought to recoverpremises in which his tenant was carrying on business; havingpleaded a requirement for business purposes, he raised an issueat the trial relating to his need for residential purposes. Thischange of position was held, in the circumstances, to be bonafide, and his need for residential purposes was held to prevailas against the tenant’s need for business purposes. In view ofthat decision, the seeming discrepancy between “Churchwork” and the charitable purposes referred to in evidence can-not be regarded as being of any significance: the premises wererequired for the purposes (whether business or vocation) of theAppellant, and the Respondent was in no way prejudiced ormisled by the pleadings or the issue. The particular purposedid not have to be mentioned in the notice to quit ThambyLebbe v. Ramasamy, (2), and it was sufficient to raise anappropriate issue as in Noorbhoy. In Thomas v. Rodrigo, (3),
The Bishop of Chilaw v. Wijenatban (Fernando, J.)
the landlord apparently required the rented premises both forher residence and for her vocation (of teaching music), but theissue raised was only whether the premises were required foroccupation as a residence, and Sri Skanda Rajah, J., held thatshe had failed to establish this. That seems to me an undulystrict view – as the purposes of residence and vocation were, inthose circumstances, closely intertwined – unless of course theother party was misled by the failure to refer to “vocation” inthe issue. Here, however, the issue was not limited in that way;it made reference to the concise statement of facts, which, asalready stated, was clarified in the concise statement of thelaw, and there was no question of the Respondent having beenmisled. In any event, it was unreal to regard the Respondent’sneed as being purely for residence, as he resided in Colombopartly for reasons connected with his business; and any com-parison was thus between his residential-cum-business pur-poses on the one hand, and vocational-cum-business-cum-residential purposes on the other. What had to be balancedwas the requirement and not the factors which gave rise to therequirement.
It is apparent from the pleadings, the affidavits and theevidence that the nuns had a general idea as to how theyintended to use the premises, but had not developed detailedplans. The Respondent submitted that the business contem-plated by them was a future business. It is settled law thatreasonable requirement has to be determined not as at the dateof institution of action, but at the conclusion of the trialIsmail v, Herft (4), Andree v. de Fonseka (5), Swamy v.Gunawardena (6), Abdul Rahim v. Gunasena, (7) and KaderMohideen v. Nagoor Gany (8), which took the contrary viewcan no longer be regarded as good law. While the landlord’sneed must exist at the time the action' was instituted, circum-stances occurring thereafter can strengthen his requirement:Aranolis Appuhamy v. de Alwis (9), where Sansoni, J., tookthe view that events subsequent to judgement would not berelevant (disagreeing on that point with Ismail v. Herft). Mar-
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tin Appuhamy v. Urban Council Gampaha, (10) was cited insupport of the proposition that where the landlord had to domany things before a business could be commenced, the pre-mises could not be regarded as reasonably required by him;however, in that case Sansoni, J., (as he then was), did nothold that the landlord failed on the ground that the businesswas not in existence, and expressly disagreed with the views ofBasnayake, C.J., in Mamuhewa v. Ruwanpatirane (11) andNanayakkara v. Pawlis Silva (12). I hold that the landlord’srequirement does not have to be an immediate need; a genuineneed which will come into existence in the near future is suffi-cient, such as a residence for a child, not yet married, but soonto be married Appuhamy v. de Silva (13), or for a publicofficer living in Government quarters, but due to retire soonAppuhamy v. de Silva (14), or for a business to be commencedin the future Gunasena v. Sangarapillai (13), Hamedu Lebbe v.Adam Saibo (16), Andree v. de Fonseka (5), Thamby Lebbe v.Ramasamy, (2) Aloysius v. Pillaipody, (17). Here the need wasnot dependent on an event yet to occur (such as a prospectivemarriage or retirement) but was both immediate and urgent:an increase in income was essential to supply the day-to-dayrequirements of 108 inmates and to accommodate 43 othersawaiting admissions to the new building. The proposed activi-ties could not be commenced unless and until the premiseswere recovered.
Reasonable requirement: breach of trust: The trust created
by the testator required that " flat No 33/1,
Guildford Crescentbe used solely for the support of St.
Joseph’s Home". The Respondent seeks to read this as "the
income from the flat’’, The words are plain, and require
no interpretation. Read as a whole, the Last Will discloses ageneral charitable intention, and this is an additional reason toresist a restrictive construction. The premises could be used inany manner conducive to the support of St. Joseph’s Home:by deriving an income from it (as by renting it or by using itfor income-generating purposes) or by using it directly or indi-
The Bishop of Chilaw v. Wijenathao (Fernando, J.)
rectly for purposes necessary or beneficial thereto (as byaccommodating inmates and those who serve inmates). “Sup-port” cannot be restricted to financial support, for the care ofthe aged requires many skills and services (to meet their men-tal, emotional, spiritual, psychological and other needs)which money cannot always buy or provide. It seems to methat all that the Court had to decide was whether the premiseswere reasonably required for the purposes of the business orvocation of the Appellant, and so long as the proposed activi-ties were not patently unlawful or ultra vires, the strictenforcement of the terms of the charitable trust was neitherthe tenant’s concern nor a matter falling within the jurisdictionof the Court in that action. Could the Court come to a conclu-sion, in proceedings in which neither the Attorney-General northe inmates of the Home are heard, that providing accommo-dation for nuns who donate their earnings or undergo train-ing is a breach of trust? It is only in proceedings under section101 of the Trusts Ordinance that such questions can properlybe decided. Conceivably, there might be an exception in thecase of'a patent breach of trust, where the making of the claimitself (apart from its interpretation) constitutes a breach oftrust; e.g. in the case of a charitable trust if the trustee pleadsrequirement as a residence for his ‘ relative, or in a (non-charitable) trust for the sole benefit of A, if the trustee claimsthe premises as being required for B’s use. This case does noteven remotely approach that situation. Since this contentionwas vigorously pursued I would express my view —conciousthat it is obiter — that the proposed activities were substan-tially in conformity with the testator’s wishes. Learned Presi-dent’s Counsel for the Respondent did not question the verac-ity of the affidavits an& the evidence shows a bona fide generalintention to use the premises for the purposes of the trust, thenature and scope of the proposed activities being progressivelyidentified, elaborated and clarified. The reference to “Churchwork” in the notice to qdit and the concise statement of factscannot be taken in isolation, to mean only Church work out-side the scope of the charitable trust; the provision of accom-
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modation for nuns (engaged in work connected with the sup-port of the Home, or undergoing appropriate training, orraising funds for the Home, etc.), and running income generat-ing projects (such as a nursery school and a sales centre) wereclearly for the “support” of the Home. The Appellant’srequirement for these purposes satisfied the provisions of thetrust and of section 22(2)(b). A Home for orphan girls maynot be a source of income or other support for the Home forthe aged, but such a Home together with a sales centre for theproducts made by them might well yield a profit; sympathy forthe products may loosen the purse strings of customers; thefacts before us are insufficient to enable a decision either way.In any event, the fact that such a Home was contemplatedwas, by itself, not sufficient to displace or outweigh the Appel-lant’s proved requirement for other purposes. If it is proved inappropriate proceedings that a Home for orphan girls wouldbe contrary to the trust, appropriate orders would be made :that possibility does not disprove the Appellant’s requirementof the premises for the purposes of the charitable trust.
Reasonable requirement; landlord lacking beneficial interest;One of the grounds on which the Court of Appeal held againstthe Appellant was that he had only the legal title to the pre-mises, and that a claim based on reasonable requirement mustfail where the landlord had no beneficial interest in the pre-mises; Parker v. Rosenberg, (18) was relied on. In support ofthis view, learned President’s Counsel for the Respondentsubmitted that while the law relating to landlord and tenantwas the Roman-Dutch law, the Rent Act had imposed statu-tory restrictions on the landlord’s common law rights; that theconcept of “reasonable requirement” was imported from Eng-lish statutes, and on that matter English decisions should befollowed; Sharpe /. Nicholh (19), was also cited. “Lease ofimmovable property” is not one of the matters specified in theCivil Law Ordinance (Cap. 79), which is therefore not an openlicence for the free importation of the English law relating to
The Bishop of ChiJaw v. Wijenatbao (Fernando, J.)
reasonable requirement. The fact that our common law relat-ing to lease has been modified by a statutory provision basedon English law does not mean that the matter thereuponbecomes governed entirely by English law, and subject tochange according to current English decisions. Even if theprovisions are identical, English decisions are not binding, andare no more than an aid to construction (see Weeramantry,Contract, Vol 1 pages 50, 53-54). Here, however, the statutoryprovisions are not identical, and English decisions are not asure guide. The decisions cited dealt with provisions in an Eng-lish Act of 1933, which enabled the landlord (on proof of rela-tive hardship) to recover possession of any protected dwelling-house if “the dwelling-house is reasonably required by thelandlord….for occupation as a residence for himself’ or achild over eighteen or a parent; there was no definition of“landlord”; that expression had been defined in an Act of
1920, to include “any personwho is or could but for
this Act be entitled to possession of the dwelling-house”,but it was doubted whether this definition was applicable tothe later provision. In Sharpe v. Nicholls, personal representa-tives of a deceased landlord were held not to be “landlords”within the meaning of the 1933 Act. In Parker v. Rosenberg(supra) that decision was regarded as authority for the proposi-tion that “personal representatives having no beneficial inter-est in the dwelling-house cannot avail themselves of the provi-sions” of the 1933 Act. Learned President’s Counsel for theAppellant drew our attention to a more recent decision inPatel v. Pate!, (20) which makes it unnecessary for me to scru-tinize the earlier decisions. It was held in Patel, that althoughthose cases were regarded as deciding that personal representa- >tives cannot be landlords unless they have a beneficial interestin the premises, that is not (as pointed out in Harrison v.Hopkins, (21) what they in fact decided; the correct position isthat personal representatives and trustees can be landlords, butit would not be reasonable to permit them to recover protectedpremises if they claimed possession for their own occupation,
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if to make such a claim would be to act in breach of trust. [Inthe case before us, for the Appellant to claim possession foruse and occupation for the purposes of the charitable trust, asdistinct from his personal use, is no breach oftrust.] Recourse to English law is thus of no avail to theRespondent. Our Rent Act contains a very different definitionof “landlord”, which does not make beneficial ownership thecriterion; a person with bare legal title, or even without ashred of title, can be a landlord. “The person for the timebeing entitled to receive the rent” need have no title; a tenantwho sublets the premises is also a landlord vis-a-vis the subte-nant, and can recover possession on the ground of reasonablerequirement. (See also AUes v. Krishnan, (22) and Viswalin-gam v. Gajaweera (23)]. The lack of beneficial ownership of thepremises was thus no bar to the Appellant’s claim.
Action not instituted in capacity of landlord: It was then con-tended that the Appellant instituted this action in his capacityas Executor; that an action based on reasonable requirementmust be instituted in the capacity of landlord. Although therewas no specific averment in the plaint that the Appellant wasthe landlord, it was admitted in the answer that after the deathof the testator the Respondent attorned to the Appellant.Blacker v. David, (24) was cited to show that a person cannotbe sued in his personal capacity in respect of a cause of actionwhich arose against him in a representative capacity. But thathas no application here; the Appellant, in his capacity asExecutor, was the landlord; he therefore had to institute actionin his representative capacity, and not in his personal capacity.The Appellant’s contractual position as landlord does notrequire or permit him to institute action in his capacity aslandlord, just as an action on a mortgage or a sale does nothave to be instituted in the “capacity” of mortgagor orvendor. The cause of action that accrued to the Appellant inhis representative capacity as Executor, was founded on a con-tract of tenancy, and it was sufficient for that to be pleaded,put in issue or admitted.
The Bishop of Chilaw v. Wyenathan (Fernando, J.)
Section 22(7): Section 22(7) of the Rent Act provides:—
“…,no action or proceedings for the ejectment of the
tenant of any premises referred to in subsection
(2)(i) shall be instituted:—
(a) on the ground that the premises are reasonablyrequired for occupation as a residence for the land'lord or any member of the family of the landlord orfor the purposes of the trade, business, profession,vocation or employment of the landlord;
where the ownership of such premises was
acquired by the landlord, on a date subsequent to thespecified date, by purchase or by inheritance or giftother than inheritance or gift from a parent or spousewho had acquired ownership of such premises on a dateprior to the specified date”.
The Appellant acquired the legal title to the premises in1971, a date subsequent to the “specified date” (which in thiscontext meant the date on which the Respondent came intooccupation). The Court of Appeal held that the Appellant had“inherited the premises in question by the Last Will whichgifted the premises” to the Appellant, and that section 22(7),therefore barred the Appellant’s action. Section 22(7) imposesa bar on a landlord re-covering possession. “Ownership” inthat context would generally include the right, title and inter-est whereby a plaintiff became the landlord; since I hold thatlegal title is sufficient to enable a person to be the "landlord”,despite the lack of a beneficial interest, “ownership” mustinclude such legal title. Ownership of the premises was thus“acquired” by the landlord after the specified date, and thefirst ingredient of section 22(7) was satisfied. The disputedquestion is whether such acquisition was “by purchase or byinheritance or gift”. Quite clearly the exception does not applyas the acquisition was not “from a parent or spouse”. Acquisi-tion was not by purchase. The question we have to decide is
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(1991] 2 Sri L.R.
whether the acquisition of legal title, without any beneficialinterest whatsoever, by the trustee of a charitable trust createdby Last Will constitutes either “inheritance” or “gift".Learned President’s Counsel for the Appellant submitted thatthe section contemplates only limited modes of acquisition ofownership; purchase and gift, being transactions inter vivos,and inheritance, namely devolution on death, whether testateor intestate; while those who take on intestacy are “heirs”related to the deceased by blood or marriage, he conceded thatthose who “inherit” under a Last Will consist not only of“heirs” in that sense but even strangers to whom property isbequeathed or devised. He submitted however, that “inherit-ance” contemplated a bequest which was primarily or princi-pally beneficial, and did not include an obligation which was aburden rather than a benefit. For the Respondent it was con-tended that, notwithstanding the restrictions on the Appel-lant’s right to use the trust property, the Appellant acquiredthe property either by gift or by inheritance; thus a fideicom-missum can be created by gift although the fiduciary’s benefi-cial ownership is restricted Senanayake v. Dissanayake (25),and a trust can be created by a deed of gift Visaladchypillai v.Sivapakkiammal (26).
The Rent Act imposes restrictions on the common lawrights of a landlord. Statutes which encroach on the rights ofthe citizen must be subjected to a strict construction at least inthat any uncertainty as to the extent of derogation must beresolved in favour of preserving common law rights (Maxwell,Interpretation of Statutes, 12th ed., pp 251-253; Craies, StatuteLaw, 7th ed., pp 121, 339; Murugiah v. Jainudeen (27)). Whilethe Rent Act restricts a landlord’s proprietary right to recoverpossession of the rented premises, section 22(2Xb) preserveshis common law right in the case of “reasonable requirement”;section 22(7) is a proviso which restricts even that right, and aproviso creating a restriction on common law rights must incase of doubt or ambiguity be narrowly, rather than broadly,
The Bishop of Chilaw v. Wijenathan (Fernando, J.)
construed. Viewed in that light, “purchase, inheritance or gift”would cover transactions whereby a landlord acquires thebeneficial ownership of property, and not those whereby anobligation in the nature of a charitable trust (devoid of anybeneficial interest) is imposed on him. It is true that by a deed
of gift a fideicommissum or a trust can be created, but it doesnot follow that every instrument whereby a trust is created isin the nature of a gift. Very different considerations apply inthe case of a charitable trust; had the Appellant declined toaccept the trust, being a charitable trust it would not havefailed for want of a trustee; another trustee would thereuponhave been appointed, perhaps by a competent Court, in accor-dance with appropriate legal procedures. Can such new trusteebe properly described as having acquired ownership by inher-itance or gift? Considering the nature of the duties and obliga-tions imposed on the trustee of a charitable trust, 1 am of theview that he does not acquire ownership of the trust propertyby “inheritance or gift”, but by “transfer” inter vivos or upon“declaration” by will (cf section 6 of the Trusts Ordinance).Section 22(7) does not bar the Appellant’s action.
I therefore set aside the judgment and decree of the Courtof Appeal, and restore the judgment and decree of the trialCourt, subject to one variation. Section 22(8) requires theCourt in its decree to direct “that no person, other than thelandlord or some member of his family whose name shall bespecified in the decree, shall enter into occupation of the pre-mises” upon vacation by, or ejectment of, the tenant; it doesnot authorise the Court to specify the purposes for which thepremises may be used. That part of the order of the trial Courtspecifying the purpose for which the premises may be used isalso set aside, and a direction that no person other than theAppellant (and his servants and agents) shall enter into occu-pation upon such vacation or ejectment is substituted. TheAppellant will therefore be entitled to a decree for ejectment
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 2 Sri L.R.
and damages, with costs in a sum of Rs. 7,500/- in this Court,and costs in both Courts below.
Amerasinghe, J — I agree.
Dheeraratne, J — I agree.
Decree for ejectment entered subject to variation under section22B.
THE BISHOP OF CHILAW V WIJENATHAN