Sri Lanka Law Reports
 3 Sri LR.
COURT OF APPEALEDUSSURIYA, J„
C.A. NO. 609/92 (F).
DC. KANDY NO. 16270/LOCTOBER 27. 1998.
Rent Act, No. 7 of 1972 – Can the lessee sublet for a period exceedingthe period of the lease? – Vacua Successio.
The plaintiff-appellant instituted action for a declaration that she is the lessee ofthe premises in suit and ejectment of the defendants. One W took on lease bya deed, a bare land from the temple and constructed two houses thereon; thedefendant-respondent took on rent the said premises. W died, and the plaintiff-appellant who is the widow of W obtained a lease of the property on the expirationof the existing lease from the said temple for a further period of 20 years from1.5.1989 and alleged that the contract of tenancy the defendant had with theW came to an end with the execution of the subsequent lease, and that thedefendant became a trespasser.
It was contended that, the tenancy of the defendant existed only up to theexpiration of the lease on 30.4.89 (PI) and the lessee cannot sublet the premisesfor a period exceeding the period of the lease and since the defendant disputedthe title of the plaintiff she is not entitled to claim tenancy.
W had only a limited right to the properly in that he was himself a lesseeof the temple.
W's rights not being absolute he was only a person who under anagreement with the defendant was entitled to receive rent for so long asthe lease was operational.
The limited rights W had fell short of full ownership. When the lease expiresall the rights he and his heirs enjoyed under the said lease also cameto an end. The defendant who enjoyed the subtenancy lost her rights andbecame a trespasser, no tenancy survived after the death of W.
Wijayawardane v. Malini Wijayawardane (Jayasinghe, J.)
APPEAL from the judgment of the District Court of Kandy.
Cases referred to:
Gunaratne v. Thelenis – 47 NLR 433.
Sideek v. Sainambu Nathiya – 55 NLR 367.
Mohamed v. Public Trustee – [1978-79-80] 1 Sri L.R. 1.
Hameed v. Anamalay – 47 NLR 558.
Issadeen Mohamed v. Singer Sewing Machine Company – 64 NLR 407.
Jayatunga v. Rosalin Hamy – 78 NLR 213.
Britto v. Heenatigala – 57 NLR 327.
Gunapala v. Baby Nona – 1986 vol. 2 CALR 167.
Seelamuttu v. Medonza – 1986 vol. 2 CALR 318.
Fernando v. de Silva – 69 NLR 164.
Cur. adv. vult.
September 1, 1999.
The plaintiff instituted action in the District Court of Kandy for adeclaration that the plaintiff is the lessee of the premises in suit; forejectment of the defendant and her agents therefrom; for damagesin a sum of Rs. 500 per month from 01.07.1989 and for costs. Itis common ground that one Dr. Wijewardena took on lease by deedNo. 13105 of 28.6.1969 a bare land 1/4 acre in extent from theSuduhumpola Rajamaha Viharaya and constructed two houses thereonand the defendant took on rent the premises bearing assessmentNo. 26 set out in the second schedule to the plaint on a monthlyrent of Rs. 125 from 12.10.1973. Dr. Wijewardena died on 28.10.1986.The plaintiff who claimed to be the widow of Dr. Wijewardena hadthereafter obtained a lease of the said property upon the expirationof the existing lease P1 from the said temple by deed No. 936 of12.12.1988 for a further period of 20 years from 01.05.1989 andalleged that the contract of tenancy the defendant had withDr. Wijewardena came to an end with the execution of the subsequentlease and that the defendant became a trespasser from the date
Sri Lanka Law Reports
 3 Sri LR.
thereof. Dr. Wijewardena is the brother of the defendant. Consequentto a disagreement the defendant had with Dr. Wijewardena he refusedto accept rent from January, 1981, and the rent was deposited withthe Kandy Municipal Council. She has been depositing the rentspayable since then. The defendant claimed that she is protected underthe provisions of the Rent Act, No. 7 of 1972 and moved for dismissalof the plaintiffs action.
It was contended on behalf of the plaintiff that the tenancy of thedefendant existed only up to the expiration of P1 on 30.04.1989 andthat the lessee (Dr. Wijewardena) cannot sublet the premises for aperiod exceeding the period of the lease and that since the defendantdisputed the title of the plaintiff she is not entitled to claim tenancy.
The main question for determination therefore was whether thetenancy of the defendant came to an end with expiration of the leaseP1 Dr. Wijewardena obtained from the temple. Dr. Wijewardena haddied on 28.12.1986 during the period P1 was in force. It is in evidencethat the defendant was in occupation of the premises when the plaintiffobtained the second lease from 01.05.1989 marked P2. It is not indispute that the defendant has been paying rent regularly toDr. Wijewardena or deposited rent with the Kandy Municipality. Whatthen was a status of the defendant when the lease expired? Did thedefendant become a tenant under the plaintiff. Mr. Daluwattesubmitted that when the landlord dies his heirs step into shoes ofthe landlord so that immediately on the death of Dr. Wijewardena theplaintiff became the landlord of the defendant and that the subsequentlease obtained by the plaintiff did not terminate the landlord-tenantrelationship between the parties. It was the contention of the plaintiffthat the premises reverted to the Rajamaha Viharaya on the expirationof the lease P1 on 30.04.1989 and that the defendant accordinglybecame a trespasser. This argument was placed on the basis thatDr. Wijewardena the lessee of the temple could not as a matter oflaw sublet the premises beyond the period of his lease. Anysubtenancy created by him also came to an end.
It was submitted on behalf of the defendant that the defendantwho came into occupation of the premises as a tenant of the lessee
CAWijayawardane v. Malini Wijayawardane (Jayasinghe, J.)133
and continued as such during the subsistence of the lease in favourof Dr. Wijewardena, became a statutory tenant of the premises byoverholding at the termination of the lease and therefore entitled tothe protection of the Rent Act. Mr. Daluwatte in support of his argumentrelied on a number of authorities. In Gunaratne v. The!enid'] it washeld that a lessee can plead the benefit of section 8 of the RentRestriction Ordinance where the premises in question were occupiedby him under a notarial lease which has terminated by effluxion oftime. The terms of the Rent Restriction Ordinance are wide enoughto apply to premises leased as well as to premises held on a tenancyfrom month to month. In Sideek and Sainambu Natchiyafz* it was heldthat a tenant who enjoys under the Rent Restriction Act a statutoryright of occupation notwithstanding the termination of the earlier contractof tenancy must continue to pay rent at the original monthly rate; ifhe fails to honour this obligation and is in arrears of rent for onemonth after it has become due section 13 (1) (a) may be broughtinto operation to eject him.
In Mohamed v. Public Trusted31 it was held that on the death ofthe landlord his heirs became vested with the contractual rights andobligations in respect of the premises and there was a valid contractof tenancy with the appellant at the time the respondent gave himnotice to quit the premises. In Hameed v. Anamalay*A) it has beenheld that a person who takes a lease of premises knowing that thereare already in occupation a tenant holding under a prior contractof tenancy cannot avail himself of the provisions of proviso C of section8 to eject the tenant on the ground that he requires the premisesfor his own use and occupation. In Izadeen Mohamed v. Singer SewingMachine Company(5) where any premises are sold by a landlord whiletenant is in occupation thereof the purchaser can either insist on thevendor giving him vacant possession or with notice to the tenant inoccupation of the premises elect to take the premises with the tenant.If the purchaser fails to give notice of election to the tenant the contractof tenancy between the vendor and the tenant subsists and it is onlythe vendor who is competent to terminate the contract of tenancy.The above cases referred to by Mr. Daluwatte are of no applicationto the present case. These cases refer to landlord and tenant situ-ations. However, in the present case Dr. Wijewardena had only alimited right to the property in that he was himselfa lessee of the Rajamaha Viharaya. In Jayathunga v. Rosalin Hamy61
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one Anthony Fernando was the original owner of the premises in suit.By his last will he bequeathed the premises to his daughter MaryFernando subject to a fide commissum in favour of latter's children.Mary Fernando died on 23.4.1968 and the children, the 1st to 6thplaintiffs, became the owners of the premsies as fidei commissarysuccessors. The defendant originally came into occupation of thepremises as a monthly tenant under Mary Fernando. After the deathof Mary Fernando the defendant tendered rent to the plaintiffs butthey refused to accept the rents or the position that the defendant-respondent became their tenant upon the death of Mary Fernando.The plaintiffs, thereupon, sued the defendant for a declaration of title;ejectment and damages on the basis that the contract of tenancy withMary Fernando the fiduciary came to an end with the extinction ofthe fiduciary right and that the defendant had therefore become atrespasser. Defendant contended that upon the death of Mary Fernandoshe continued as a tenant of the plaintiffs and claimed protection ofthe Rent Restriction Act and prayed for dismissal of the action. It washeld that the plaintiffs are not barred from maintaining the actioninasmuch as they do not fall within the meaning of the term landlordas defined in the Rent Restriction Act. The Court held that the plaintiffsdo not fall under the definition of the term landlord by reason merelyof the fact that upon Mary Fernando's death they as fidei commissarybecame owners of the premises. They might have become the land-lords if Mary Fernando had in her power to grant a lease of thepremises extending beyond her life. But, that is exactly what she beingonly fiduciary could not do.
When Dr. Wijewardena sublet the premises to the defendant whatwas a capacity in which he sublet the premises? Tennakoon, CJ. inJayathunga v. Rosalin Hamy (supra) observed that:
"Under the common law applicable in this branch of our law, therelationship between a landlord and a tenant is a contractualone . . . The contract of letting is ordinarily unrelated to the .ownershipof property being in the landlord … It seems to me therefore thatwhen the Rent Restriction Act defines the term landlord as the personfor the time being entitled to the rent of such premises it is referringin the first place to the person entitled under the contract of tenancyto receive the rent and not necessarily to the true owner who maynot in relation to particular tenancy of the premises in question havebeen the person who let the premises". Tennakoon, CJ. cited a
Wijayawardane v. Malini Wijayawardane (Jayasinghe, J.)
passage by Gratiaen, J. in Britto v. HeenatigalaP: "If the true ownerof the leased premises vindicates his title against the contractual lessorthe statutory protection which the tenant enjoys against his lessorwould not be available against the true owner". Therefore,Dr. Wijewardena's rights not being absolute, he was only a personwho under an agreement with the defendant entitled to receive rentfor so long as P1 was operational. Tennakoon, CJ. also observedthat a person who has no right whatsoever, whether absolute or limitedto immovable property may nevertheless make a lease of such property.Such lease is valid between the landlord and the tenant but it doesnot follow that it is valid or effectual against the true owner of theproperty. Dr. Wijewardena's rights was a subjugated right vis-a-visthe true owner. Similarly, when the plaintiff obtained the lease P2 shewas in the same position as fidei commissary successors of AnthonyFernando in Jayathunga v. Rosalin Hamy (supra). It seems, therefore,that the relationship between Dr. Wijewardena and the defendantwas contractual and when P1 ended, the agreement betweenDr. Wijewardena and the defendant also ended. Even though it isnot necessary to go into the question of as to who the landlord isit is nevertheless helpful to determine the status of the defendant.On the reasoning of this judgment I am unable to agree withMr. Daluwatte's submission that the defendant who came into occu-pation of the premises as a tenant of the lessee became a statutorytenant of the premises by overholding at the termination of the leaseand therefore entitled to the protection of the Rent Act. With theextinction of P1 all rights that accrued to the lessee also came toan end. Therefore, it can never be said that the tenancy of thedefendant survived even after the expiration of P1. In Gunapala v.Baby Nonafe) the plaintiff and his brother were the co-owners of thepremises in suit. The grand uncle who had a life interest in the propertygranted a tenancy of the property to the defendant.
After the landlord's death the plaintiff requested the defendant toattorn to him and to pay him all arrears of rent. The defendant failedto attorn and to pay the arrears of rent. Plaintiff instituted action forthe ejectment of the defendant from the premises. The plaintiff claimedthat on the cessation of the landlord's life interest the defendant'sposition was wrongful. The Supreme Court held that when the landlordhas only a life interest in the property at the commencement of thetenancy the tenancy ends with the death of the landlord. In Sellamuttuv. Madonzat91 it was held that where a tenancy is created by a person
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who has a limited right or interest less than ownership in the propertyit will be effective for the period of his own rights but not beyondit and held further that where the tenancy is created by a personwho had absolute title to the property subsequent successors in titleare bound by the tenancy. In Fernando v. De Silvaf,0) it was heldthat the death of the landlord does not terminate a contract of monthlytenancy; his rights and obligations pass then to his heirs. In sucha case heirs are not entitled to seek ejectment of the tenant withoutprior notice to quit. Manicavasagar, J. referred to the principle ap-plicable expressed by Pothier: “A lease is not dissolved by the deathof one of the parties; but in accordance with a rule common to allcontracts the rights and obligations arising from the lease pass to theperson of his heirs or to that of his vacua succession This principleis subject to two exceptions:
where the lessors title was one for his life only such afiduciary interest or life usufruct, the death of lessor terminates thelease and;
that where the lease is at the will of the lessor or the lesseethe death of the lessor or the lessee as a case may be terminatesthe lease.
Admittedly, Dr. Wijewardena had only a limited right falling shortof full ownership. Therefore, when P1 expires all the rights heand his heirs enjoyed under the said lease also came to an end.Consequently, the defendant who enjoyed the subtenancy lost herrights and became a trespasser. No tenancy survived after the deathof Dr. Wijewardena on 28.12.1986.
For the foregoing reasons I set aside the judgment of the learnedDistrict Judge and allow the appeal with costs fixed at Rs. 2,100.
EDUSSURIYA, J. – I agree.
WIJAYAWARDANE v. MALINI WIJAYAWARDENE