Bhojraj v. Abdulla
COURT OF APPEALWEERASEKERA, J..
C. MT. LAVINIA 680/REOCTOBER 2, NOVEMBER 26, JUNE 24,
APRIL 01 AND
MAY 05, 1997.
Rent Act 7 of 1972 – S. 22 (2) b and S. 37 – Privity of contract – Hire goesbefore sale — 'Huur Gaat Voor Koop' – Right of Management and Administrationof Minors property – status of natural guardian.
The plaintiff-respondent filed action seeking to evict the defendant-appellant fromthe premises in suit on the ground of reasonable requirement. The defendant-appellant contended that his contract of tenancy was with the minor daughterof the plaintiff on whose behalf the plaintiff-respondent collected rent, and thatthe plaintiff-respondent had no right to institute this action; Judgment was givenin favour of the plaintiff-respondent.
On Appeal –
The defendant-appellant was in occupation long prior to the purchase bythe minor daughter in 1971. The purchaser can be safely inferred to havepurchased with the defendant-appellant tenant in occupation.
It is an established principle of the Roman Dutch Law that 'hire goes beforesale', thus a purchaser steps into the shoes of his seller as regards anexisting lease by operation of law.
Natural guardianship carries with it the right to receive payment of a debton behalf of the minor from a creditor of the minor. Such guardianshipentitles the father to the full administration and management of the property.
Rents had been paid by the defendant-appellant and receipts issued onbehalf of the minor daughter, the landlord as her agent. This did not createa privity of contract of tenancy between the defendant-appellant andplaintiff-respondent and could not have given rise to an inference todisplace the legal principle 'Huur Gaat Voor Koop'.
Sri Lanka Law Reports
(1998) 1 Sri L.R.
"In my view after the purchase and after the declaration the privity of contractbetween the minor daughter and the defendant-appellant had been sealed andcompleted, it meant that the defendant-appellant elected to accept the minordaughter as the landlord, tendered his rents to Abdulla as the person whocollected rents on behalf of the landlord minor daughter, and issued rentreceipts on behalf of the landlord. That being so the defendant-appellant wouldin fact and in law be estopped from denying his acceptance of the minordaughter the new purchaser as his landlord*.
APPEAL from the Judgment of the District Court of Mount Lavinia.
Cases referred to:
David Silva v. S. K. Madanayake – 69 NLR 396.
Eileen Prins v. Marjorie Pattemott – BAD 1995 Vol. VI – Part 1-41.
P. A. D. Samarasekera, PC with R. Y. D. Jayasekera for defendant-appellant.A. K. Premadasa, PC with Gamini Thilakaratne for plaintiff-respondent.
Cur. adv. vult.
October 9, 1997
WEERASEKERA, J. (P/CA)
The plaintiff-respondent filed this action in the District Court of Mt.Lavinia in respect of premises No. 97, Galle Road, Bambalapitiyaseeking to eject the defendant from the premises in suit on the basisthat the said premises were required within the meaning ofSec. 22 (2) (b) of the Rent Act, No. 7 of 1972 on the ground ofreasonable requirement.
The defendant-appellant filed answer that his contract of tenancywas with Fathima Rizvi the daughter of the plaintiff on whose behalfthe plaintiff-respondent collected rent and that the plaintiff-respondenthad no right to institute this action. He also asserted that the contractof tenancy was with Fathima Rizvi who had not legally terminatedthe contract and that this action cannot be maintained in its presentform.
The learned District Judge of Mt. Lavinia on 19.04.88 gavejudgment in favour of the plaintiff-respondent. This appeal is fromthat judgment.
Bhojraj v. Abdulla (Weerasefcera, J. P/CA)
The principal matter that was urged in appeal was whether theplaintiff-respondent was the landlord of the defendant-appellant orwhether Fathima Rizvi was the landlord of the defendant-appellantas envisaged in issues 1 and 5.
There is no serious dispute of the following facts. The premiseswere of two floors and partly used for running a textile business knownas 'Mohans' and used as a residence by the defendant-appellant inthe upper floor and the rear of the ground floor. The defendant-appellant was the tenant of the premises from 1950. In or about 1971the plaintiff purchased the premises in the name of his minor daughterFathima Rizvi. After the purchase, the declaration under Sec. 37 ofthe Rent Act (VI) was made by the plaintiff-respondent on behalf ofthe purchaser, his daughter, and describing her as the landlord andthe plaintiff-appellant as the ‘person who would collect the rent'. Thedefendant-respondent paid rents to the plaintiff-respondent and rentreceipts were issued. The plaintiff-respondent by his notice to quitdated 24.11.78 gave notice of termination of the tenancy on the groundof reasonable requirement which set in motion the present action.
This appeal revolves round a person who was a tenant of premisesand who continued in occupation after the premises were sold to athird party but attorned to such purchaser after receiving notice oftransfer of the tenanted premises.
The issues that arose for decision at the trial in this regard wereissues 1 and 5 which when translated reads as follows:-
Was the defendant the plaintiffs tenant?
As set out in para 3 of the amended answer was FathimaRizvi the landlord of the defendant?
The learned District Judge answered issue 1 in favour of theplaintiff-respondent and issue 5 against the defendant-appellant mainlyon the inference he drew from P1 written in October 1971 by thedefendant-appellant to the plaintiff-respondent where he used theword 'Attorned' and stated that he 'attorned' to Abdulla the plaintiff-respondent in 1975.
Did the learned District Judge conclude correctly that by this letter(P1) a contract of tenancy as between the defendant-appellant and
Sri Lanka Law Reports
(1998) 1 Sri L.R.
plaintiff-respondent had arisen? Did the learned District Judge considerwhether P1 indicated or expressed the intention of parties? Did hefurther consider whether there was privity of contract between thedefendant-appellant and plaintiff-respondent? Was there a privity ofcontract between the defendant-respondent and Abdulla or as allegedby the defendant-respondent with Fathima Rizvi? These are thepropositions that require examination.
Admittedly the defendant-appellant was in occupation of the premiseslong prior to the purchase by Fathima Rizvi in 1971. The purchasercan be safely inferred to have purchased the premises with thedefendant-appellant tenant in occupation. Although the purchaser hadthe option as against his vendor to insist on vacant possession orin the alternative to claim recision of the sale, the purchaser FathimaRizvi opted to purchase with a tenant in occupation. Her purchasewas subject to the tenant, the defendant-appellant exercising his optionof surrendering or electing to continue in occupation of the premises.In this instance the defendant-appellant accepted the latter coursewhen called upon by the purchaser Fathima Rizvi to recognise herself,the purchaser, as his landlord. He continued to pay the rent and wasissued rent receipts by the plaintiff-respondent on behalf of FathimaRizvi, the landlord. In the present case the position is that before andafter the transfer to Fathima Rizvi the minor daughter of the plaintiff-respondent, the defendant-appellant was in occupation of the premisesin question. After information of the transfer was received he paidrent to Fathima Rizvi.
It is an established principle of the Roman Dutch Law that “Hiregoes before sale". Thus a purchaser steps into the shoes of his selleras regards an existing lease by operation of law.
This legal position is based on the axiom “Hour Gaat Voor Koop“which is a part of our law adopted from the Roman Dutch Law. JusticeSamarawickrama in David Silva v. S. K. Madanayake<1> states:
"Hire goes before sale" or 'Huur Gaat Voor Koop', is an axiomof our law, and purchasers of, and persons succeeding to thepossession of landed property, are bound by the leases previouslymade by the vendors. From this arises the privilege of the tenant,either to remain the tenant of the new landlord, the purchaser, orto cancel the lease. But the new landlord, the purchaser, cannot,
Bhojraj v. Abdulla (Weerasekera, J. PICA)
according to this rule, eject the tenant, but must await the expirationof the lease, or the occurrence of some circumstances which willoperate as giving a right of re entry".
The significance of this legal principle therefore would be that therelationship of landlord and tenant which existed between the sellerand tenant before the sale gives place to a relationship of the samekind between the tenant and the new purchaser. That in my viewis the law applicable in Sri Lanka and applying that legal principlein law the defendant-appellant should be taken to have become thetenant of the new purchaser Fathima Rizvi.
As opposed to the application of this legal principle it was urgedby counsel for the plaintiff-respondent that there was no privity ofcontract as between the defendant-appellant and Fathima Rizvi butthat the privity of contract was with the father of Fathima Rizvi, theplaintiff-respondent.
In support of this argument he quoted the following passage fromthe treatise “Law of Contracts" by C. G. Weeramantry (page 414)which reads as follows:
"Natural guardianship carries with it the right to receive paymentof a debt on behalf of the minor from a creditor of the minor,and the right of contract of the child's education, a right whichthe father may exercise even after his death by last will. Suchguardianship further entitles the father to the full administration andmanagement of the property almost to the same extent as anappointed guardian, unless a curator has been appointed by courtor unless the person from whom the minor has derived title tothe property has expressly excluded the guardianship of the father".
This was the answer the plaintiff-respondent sought to give to thedeclaration made under section 37 of the Rent Act (VI) shortly afterthe purchase of the premises by Fathima Rizvi. It is my consideredview that what is conceived of in the passage stated above and theview expressed therein is fully substantiated by the declaration VIwherein Abdulla the plaintiff representing himself as the father of theminor purchaser Fathima Rizvi described as the person who wouldcollect rent and Fathima Rizvi is described as the landlord. Moreoverrents had been paid by the defendant-appellant and receipts issued
Sri Lanka Law Reports
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by Abdulla on behalf of Fathima Rizvi the landlord as her agent. Thiswas a perfectly correct and lawful exercise by Abdulla the plaintiff-respondent acting for and on behalf of his minor daughter in theprocess of the management and administration of the minor daughter'sassets. This in no way created a privity of contract of tenancy betweenthe defendant-appellant and plaintiff-respondent and could not havegiven rise to an inference to displace the legal principle of RomanDutch Law "Huur Gaat Voor Koop".
The learned District Judge in my view had misdirected himself toinfer that the person who was entitled to receive the rent was theplaintiff-respondent despite the plaintiff-respondent's own assertion thatFathima Rizvi was the landlord and the issuance of rent receipts onthe same basis. He should have considered the legal principle applicable,viz. the axiom "Hire goes before sale" together with the legal statusof a natural guardian vis-a-vis a minor child.
Let us now consider the three statuses that arose, namely,
that of Abdulla the plaintiff-respondent as natural guardian,
that of the minor Fathima Rizvi the purchaser and
that of the continuing tenant, the defendant-appellant.
The natural guardian in law in the absence of a legal appointmentof a curator has the right of administration and management of theminor's property but his rights cannot supercede in any way or legallyremove or diminish the status of a purchaser which she acquired asa minor. In law her status as purchaser remained and consequentlyby the application of the Roman Dutch Law principle of "Hire beforesale" the only inference that can be reached is that it was FathimaRizvi who became the landlord of the defendant-appellant and notAbdulla the plaintiff-respondent who was only an agent of the minorpurchaser.
Much has been urged to displace this legal inference by theinterpretation that was sought to be given to (P1) when the defendant-appellant referred to his having "attorned to Abdulla" the plaintiff-respondent. This letter was written in 1971 October long after thepurchase (over the delay in payment of rent) and long after VI andlong after rents had been paid and receipts issued by Abdulla on behalf
Bhojraj v. Abdulla (Weerasekera, J. P/CA)
of Fathima Rizvi, the landlord. In Eileen Prins v. Marjorie Pattemott®Bandaranayake, J. states as follows:
"The use of words such as rent, tenancy, rent in advance, etc.,is not conclusive proof of a contract of tenancy. These are wordswhich laymen are apt to use for any payment in respect ofaccommodation".
In the present case P1 was written long after by operation of lawthe defendant-appellant came to be considered the tenant of FathimaRizvi and to whom by law he paid rents and was issued receiptsin fact by Abdulla the plaintiff-respondent as rent collector of FathimaRizvi. There can be no mistake therefore that privity of contract bothin law and in fact was between the defendant-appellant the tenantand Fathima Rizvi the purchaser of the premises in suit in 1970. Toattempt to create or to infer that a privity of contract existed betweenAbdulla the father of the minor Fathima Rizvi who only legally actedfor and on behalf of Fathima Rizvi and the defendant-appellant onP1 long after the privity of contract arose between Fathima Rizvi andthe defendant-appellant and acted upon was clearly a misdirection bythe learned District Judge.
It was sought to be argued on behalf of the plaintiff-respondentthat the statement in P1 amounted to an estoppel and the defendant-appellant could not now prevaricate on the statement on P1 and ifso it should have first been taken in the reply to the notice to quit.
I am unable to agree with this submission. In my view after thepurchase and after the declaration VI the privity of contract betweenFathima Rizvi and the defendant-appellant had been sealed andcompleted. It meant that the defendant-appellant elected to acceptFathima Rizvi as the landlord, tendered his rents to Abdulla as theperson who collected rents on behalf of Fathima Rizvi and issuedrent receipts on behalf of Fathima Rizvi the landlord. That being sothe defendant-appellant would in fact and in law be estopped fromdenying his acceptance of Fathima Rizvi the new purchaser as hislandlord.
The resulting position in this case is that the status of naturalguardian of the plaintiff-respondent was never merged with that of thepurchaser. Fathima Rizvi remained and continued in her status as
Sri Lanka Law Reports
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purchaser and by application of law with the election of the defendant-appellant to occupy the premises as tenant under the new purchaserFathima Rizvi. Fathima Rizvi the new purchaser by law became thelandlord of the defendant-appellant who had been a tenant prior tothe purchase by Fathima Rizvi.
In those circumstances I am of the view that the learned DistrictJudge of Mt. Lavinia erred in coming to the conclusion that the plaintiff-respondent could maintain this action.
I therefore set aside the judgment of the District Judge ofMt. Lavinia dated 19.04.88.
The plaintiff-respondents action is dismissed with taxed costs payableto the defendant-appellant in both Courts by the plaintiff-respondent.
WIGNESWARAN, J. – I agree.
BHOJRAJ v. ABDULLA