v.RANASINGHE AND OTHERS
COURT OF APPEAL.
C.A. APPLICATION NO. 63/91RENT BOARD OF REVIEW APPEAL NO. 4426RENT BOARD OF KURUNEGALA NO. 23/84NOVEMBER 29, 1994.
Landlord and tenant – Application for declaration of tenancy – Effect of partitiondecree -Attornment – Licenseeship.
The rights of a monthly tenant are unaffected by a decree under section 48 of thePartition Act.
Although the documents marked did not refer to a tenancy or payment,*theevidence was that as the landlord refused to accept rents after earlier acceptingrents for 12 months, these were deposited at the Development Council, Hiripitiya.
Although there was a change after the partition decree, the evidence showed thatthe petitioner not only acknowledged the ownership of the new owner and paidrent to the Development Council, Hiripitiya when the new owner after havingaccepted rent for 12 months did not accept the rent. This amounted toattornment. Further it is unlikely that there was only a licenseeship when thetenant was running a business in the boutique room. It is a well-establishedprinciple that a tenant who remains in occupation with notice of the purchaser'selection to recognize him as a tenant may legitimately be regarded as havingattorned to the purchaser so as to establish a privity of contract between them.
Cases referred to:
Britto v. Heenatigala (1956) 57 N.L.R. 327.
Ranasinghe v. Marikar (§70) 73 N.L.R. 361.
Lalitha Perera v. Padmakanthi (1987) 2 Sri LR 1,5.
Alles v. Krishnan (1952) 54 N.L.R. 154.
Fernando v. Wijesekera (1969) 73 N.L.R. 110.
De Alwis v Perera (1951) 52 N.L.R. 433.
APPLICATION for writ of certiorari to quash the decision of the Rent Board ofReview.
S. Sinnathamby for petitioner.
P. A. D. Samarasekera P.C. with Upaii de Almeida Gunaratneioi 7th respondent.
Cur. adv. vult.
January 23, 1995.
The petitioner who was occupying premises No. 17, KumbukgetaRoad, Nikadalupotha filed an application dated 24.4.84 in the RentBoard, Kurunegala, seeking a declaration of tenancy, thedetermination of the authorized rent and an order to effect repairs tothe said premises. The Rent Board after an inquiry declared by itsorder dated 10.11.1986 that the petitioner is the tenant of thepremises. The 7th respondent appealed to the Rent Board of Reviewwhich, by its order dated 29.9.90, set aside the order of the RentBoard and held that the petitioner is not the tenant of the saidpremises.
The petitioner has now sought a writ of certiorari to quash the saidorder of the Rent Board of Review, annexed to the petition marked X.
The case for the petitioner before the Rent Board was that hecommenced his tenancy on 10.5.60 under Panis Pitigala. Heproduced rent receipts marked A1 – A4 in proof of having paid rentsto him in May '60, December ’61, January 71 and March 77. PanisPitigala himself gave evidence and acknowledged that the petitionerwas his tenant and that he paid the rent to him. The finding of theRent Board was that the petitioner was the tenant of Panis Pitigala.
It is common ground that subsequently, in about 1977, the 7threspondent derived title to the premises by virtue of a final decreeentered in a partition case. The petitioner then commenced payingrent to the 7th respondent. Having accepted the rent for 12 months,he refused to accept rent from him thereafter. The decree entered inthe partition case was not produced either before the Rent Board orthe Board of Review. The petitioner has objected to the decree, 7R1,now sought to be produced in these proceedings, i therefore do notpropose to refer to the terms of the said decree and thecircumstances in which it came to be entered. The Rent Board tookthe view that a partition decree does not extinguish tenancy rights.
The petitioner also produced rent receipts marked A6 to A12 inproof of having deposited the rent and the arrears of rent at theDevelopment Council, Hiripitiya, from 1982 onwards. The Rent Boardtook this fact also into consideration and held that the petitioner is thetenant of the premises.
The 7th respondent produced two notes dated 14.8.77 (VI) andApril '83 (V2) to show that the petitioner was in permissive occupationof the premises as a mere licensee. The Rent Board havingconsidered these two documents has stated that it is for a court ofcompetent jurisdiction to determine the legal effect of thesedocuments and as to whether they had the effect of terminating thetenancy of the petitioner.0
The 7th respondent in his appeal before the Board of Reviewattempted to take up the position that Panis Pitigala was a trespasserwho had no rights to the land and that he was not his predecessor intitle. Panis Pitigala was not cross-examined on these matters when hegave evidence. There is therefore no evidence at all as to the natureof the right, title or interest Panis Pitigala had in the premises whichhe admittedly let out to the petitioner and which continued to beoccupied by him for a period of sixteen years. The Rent Boardproceeded to make its order on the basis that Panis Pitigala was thelandlord of the petitioner.
The submission of learned counsel for the petitioner was that theRent Board of Review failed to take into consideration the provisionsof section 48(1) of the Partition Law, No. 21 of 1977, in terms of whichthe monthly tenancy of the petitioner was statutorily protected despitethe partition decree. The Board of Review has noted that the questionarose as to whether the petitioner’s tenancy continued after the 7threspondent became the absolute owner of the premises by virtue ofthe partition decree but it did not express its finding on this matter. It
proceeded to hold that the petitioner had not attorned to the 7threspondent.
The concluding sentence of section 48(1) of the Partition LawNo. 21 of 1977, which deals with the finality of the interlocutory andfinal decrees of partition provides that “the right, share or interestawarded by any such (partition) decree shall be free from allencumbrances whatsoever other than those specified in the decree."“Encumbrance" in this context is declared to mean “any mortgage,lease, usufruct, servitude, life interest, trust or any interest whatsoeverhowsoever arising except a constructive or charitable trust, a leaseat will or for a period not exceeding one month."
In Britto v. Heenatigala (1) it was held that the statutory protection ofa tenant under the Rent Restriction Act is not automaticallyextinguished if the leased premises are purchased either by co-owner or by a third party in terms of a decree for sale under thePartition Ordinance. This judgment was approved in Ranasinghe v.Matikar !2>. The majority of the Divisional Bench held that the rights ofa monthly tenant are unaffected by a decree under section 48 of thePartition Act, whether those rights are specified in the decree or not.
There was no evidence as to the nature of Panis Pitigala's title oras to whether he was a co-owner of the said premises. The RentBoard of Review should have proceeded in the circumstances tohold that section 22 of the Rent Act protected the tenancy of thepetitioner despite the 7th respondent having derived title to it under apartition decree.
The next submission on behalf of the petitioner was that the Boardof Review erred in holding that the petitioner has not attorned to therespondent. The evidence of the petitioner was that he paid rent tothe 7th respondent for a period of 12 months after he became theowner of the premises. He postponed giving receipts stating that thereceipt book had not been printed and did not issue receipts and hefinally refused to accept rent from the petitioner. The petitionerproduced a letter dated 26.10.82 (A5) from the Rent Board,Kurunegala, which referred to a complaint made by him andinstructed him to pay the rent and the arrears to the Development
Council, Hiripitiya. The petitioner has thereafter paid rents to theDevelopment Council. The receipt A6 is for the payment of rent fromFebruary 79 to April 79, A7 for May 79 to June ’80, A8 for July '80 toDecember '80, A9 for January '81 to July ‘84, and A10 for August '84.The 7th respondent must be presumed to have known that thepetitioner was depositing the rent at the Development Council as acopy of the letter A5 was sent to him by the Council.
The Rent Board of Review has held that the documents V1 and V2show that the petitioner was in permissive occupation of the premisesas a licensee of the petitioner. The note V1 written in August 77shows that the petitioner has acknowledged that the 7th respondenthas become the owner of the boutique room in which he is carryingbusiness and he has expressed his willingness to leave the premiseson being given three months notice. The next document V2 isundated but it has been written in April '83, five years after V1,similarly acknowledging that the 7th respondent has become theowner of the premises and that he would leave the premises 8months later at the end of that year. The Rent Board of Review fiasheld that these two documents negative the existence of a tenancyas they do not refer to a tenancy or to the payment of rent. These twodocuments are not letters addressed to the 7th respondent or to anyother person but are statements of the petitioner, one at or about thetime the 7th respondent became the owner of the premises and theother five years later while the petitioner continued to be inoccupation and after he commenced depositing the rent at theCouncil.
The term attornment has been judicially defined “as the act of thetenant putting one person in place of another as his landlord."Seneviratne, J. added in Lalitha Perera v. Padmakanthi (3>. “Thismeans that in any attornment the tenant acknowledges thelandlordship of a person other than his original landlord." Theprinciple has also been enunciated that the previous contract oftenancy does not survive upon attornment – Alles v. Krishnan w,Fernando v. Wijesekera (S>.
In the present case, however, as noted above the tenancy of thepetitioner has continued by operation of law under the 7threspondent. The documents V1 and V2 show that a privity of contracthas been established between the petitioner and the 7th respondent.The petitioner has acknowledged the ownership of the 7threspondent and the two documents do not show that the petitionerhas refused to pay rent or to attorn to him. The petitioner occupiedthe premises for about sixteen years under the previous landlord onpayment of rent and it is unlikely that the petitioner who was running abusiness in the boutique room would have been permitted to occupyit free of rent under the new owner. Wijayatilake, J. in (1968) 73 N.L.R.430 at 432 stated, following Gratiaen J. in De Alwis v. Perera (6) asfollows: "Thus it would seem that it is a well-established principle thata tenant who remains in occupation with notice of the purchaser’selection to recognize him as a tenant may legitimately be regardedas having attorned to the purchaser so as to establish a privity ofcontract between them.” The Rent Board of Review has failed toconsider the evidence of the petitioner that he paid rent to the 7threspondent for a period of 12 months and that upon his refusal toaccept the rent that he commenced depositing the rent at theDevelopment Council with the knowledge of the 7th respondent. TheRent Board of Review has erred in law in coming to the finding thatthe petitioner has not ''legally” attorned to the 7th respondent,whereas the evidence shows that the petitioner can be legitimatelyregarded as having attorned to the 7th respondent. The Rent Boardof Review has also erred in law failing to consider the effect of theprovisions of section 48(1) of the Partition Law No. 21 of 1977 whichstatutorily protected the tenancy of the petitioner. For these reasonsthe determination of the Rent Board of Review dated 29.9.90 isquashed.
The application is allowed with costs fixed at Rs. 5251- payable bythe 7th respondent.
LEELASENA v. RANASINGHE AND OTHERS