013-SLLR-SLLR-1986-V-2-SAMSUDEEN-v.-FAROOK.pdf
SAMSUDEEN
v.FAROOK
COURT OF APPEAL.
T. D. G. DE ALWIS. J. AND DHEERARATNE. J.
A. No. 116/76 (F).
C. KURUNEGALA 4337/L.
JUNE 11. 12. 13 AND 14. 1985.
Landlord and tenant-Partnership-Can partnership hold tenancy.'’-Attornment.
A drapery business was being conducted in the premises in suit at the time relevant tothe suit by a partnership under the name Abuthahir and Son. There were severalchanges in the members of the partnership and eventually the defendant Samsudeenwas the sole partner. The ownership of the premises changed in 1971 and then SahidHadjiar the new owner called upon Abuthahir and Son to attorn to him. At this time oneShah Johan Beebee and Samsudeen were the partners of Abuthahir and Son.Samsudeen who ran the business sent the rents by Money Orders. Some Money Orderswere returned but not all. Sahid Hadjiar gifted the premises to his children the plaintiffsin 1973. Later Sahid Hadjiar died and his son the 1st plaintiff returned the remainingMoney Orders.
Held-
Although a partnership cannot in law be the tenant of premises the notice to attorn wasfor no other than those who were partners of the firm Abuthahir and Son at the time.The partnership name is only a conventional mode of designating the personscomposing-it. Therefore the notice to Abuthahir and Son to attorn is a notice to thepartners of the firm at the time.
Cases referred to:
Perera v. Liyanagama-( 1956} 58 N.L.R. 454.
Shanmugasunderam v. Mohamed—[1984] 2 S.L.R. 270.
Wrayv. Wiay-[1905] 2 Ch. 349.
APPEAL from judgment of the District Court of Colombo.
Or. H. W. Jayewardene, Q.C. with M. S. M. Nazeem. P.C. and Miss T. Keenawinna forappellant.
Nimal Senanayake, P. C. with M. Gazzali and Mrs. A. B. Dissanayake for 1-6plaintiffs-appellants.
Faiz Mustapha with M. H. M. Ashroff for 9-10 plaintiffs-respondents.
Cur. adv. vult.
February 12. 1986.
T. D. G. DE ALWIS. J.
The plaintiff instituted this action against the defendant for adeclaration of title to the premises bearing assessment No. 89,Mahaweediya, Kurunegala, for the ejectment of the defendanttherefrom and for damages. The defendant claimed that he was thetenant of the premises. Judgment was given for the plaintiff and thedefendant has appealed.
These premises were at one time owned by Saibu Hadjiar SeyedSahabdeen, who on deed No. 7958 dated 04.10.1971 (P4) sold thesame to Mohammed Sahid Hadjiar, who by deed No. 113 dated06.03.1973 (P5) gifted the same to his children the plaintiffs. In thesepremises a drapery business was carried on from as far back as theyear 1942 known as K. M. S. Abuthahir and Brother, the partnersbeing K. M. S. Abuthahir and his brother Katu Bawa. In 1948 KatuBawa retired from the firm, and in his place Abuthahir's son AbdulRazaak became a partner, and the name of the business was changedto K. M. S. Abuthahir and Son. According to the evidence Abuthahirand his son Abdul Razaak were the tenants of Sahabdeen in respect ofthese premises.
Abuthahir and Abdul Razaak were Indians, and in the year 1966Abdul Razaak was deported to India and he never came backthereafter. In early 1969 Abuthahir himself went to India and he diedthere on 29.05.1969. After Abdul Razaak was deported Abuthahirtook his son-in-law Gulam Mohideen as partner. After the death of
Abuthahir in 1969 Gulam Mohideen became the sole partner, andafter his death his widow Shah Jehan Beebee became sole partner.Thereafter on 11.12.1970 Shah Jehan Beebee admitted Samsudeenthe defendant as a partner. On 27.06.1973 Shah Jehan Beebeegifted all her rights in the business to the defendant. The defendantfirst became associated with the firm of Abuthahir and Son in the year1964 as a salesman. From there he worked his way up to be themanager of the firm, and then to be a partner in 1970, and solepartner in 1973.
When by deed (P4) Sahabdeen sold these premises to Sahid Hadjiarin 1971 the defendant was a partner of the firm, and the otherpartner Shah Jehan Beebee being away in India the business wascarried on by the defendant alone. After the execution of deed (P4)Mr. M. 0. M. Thahir, attorney-at-law who attested deed (P4) wroteletter (P6) dated 07.10.71 addressed to Abuthahir and Son informingthem that Sahabdeen had sold the premises to A. R. M. Sahid Hadjiarand asking them to attorn to him and pay future rents to him.
On receipt of letter (P6) the defendant wrote letter (D1) dated
to Sahid Hadjiar acknowledging letter (P6) and enclosing
rent for October 1971. He has signed this letter as partner ofAbuthahir and Son. Thereafter the defendant sent rents regularly forthe months November and December 1971, and for the monthsJanuary and February 1972. The letters sending these rents havebeen signed by the defendant as partner of Abuthahir and Son. Theletter dated 10.03.1972(D2) was not accepted and therefore
returned to the defendant. But however the defendant continued tosend rent to Sahid Hadjiar by money order till August 1972. On
Sahid Hadjiar wrote letter (D6) to Abuthahir and Sonstating that although by letter (P6) they were requested to attorn tohim and pay future rents to him no rent has been paid at all. By thetime he wrote letter (D6) Sahid Hadjiar had returned five of the moneyorders sent by the defendant. These money orders were the rents forMarch and April 1 972 and June to August 1 972. The rent for the sixmonths October to February 1972 and May 1972 were not returned.There is no correspondence produced as to why the rents for the fivemonths March and April 1972 and June to August 1972 werereturned. To letter (D6) the defendant replied by letter (D5) dated
also signed by him as partner of Abuthahir and Songiving a list of the money orders sent, those accented and those
returned. With this letter the money orders that had been returnedwere sent back to Sahid Hadjiar. Sahid Hadjiar died on 11.03.1973.Till that time he had not cashed any of the money orders, nor had hereturned any of them to the defendant. On 27.08.1973 SahidHadjiar’s son Farook the 1st plaintiff returned eight of the moneyorders to the defendant, and on 21 09.1973 Farook returned thebalance three money orders to the defendant.
In the District Court the main contention on behalf of the defendantwas that the firm of Abuthahir and Son was the tenant, and thedefendant being a partner of the firm had succeeded to the tenancyThe learned District Judge held that a partnership could not in law bethe tenant of premises. This is undoubtedly a correct statement of thelaw. Vide-Perera v. Liyanagama (1) and Shanmugasunderam v.Mohammed (2). He further held that the tenancy had been withAbuthahir and Razaak, and that there was no privity of contractbetween the landlord and the defendant.
It was submitted by learned Queen's Counsel for'the appellant thaton the facts of this case after Sahid Hadjiar purchased these premisesin 1971, a new contract of tenancy was created between SahidHadjiar and the partners of the firm of Abuthahir and Son at the time ofthe purchase. As stated earlier Razaak was deported to India in 1966and he did not come back thereafter. Abuthahir died in India in 1969.The question arises as to whom the notice to attorn (P6) was meant.-Could it have- been the intention of Sahid Hadjiar that this notice toattorn (P6) was meant to reach either Abuthahir or his son Razaak?Did he even know of an Abuthahir or a Razaak at all, and if so whatcould have been the source of his knowledge of them? In any of hiscorrespondence with the defendant he has nowhere mentioned thathis tenant was either Abuthahir or Razaak. The premises in questionare situated at Kurunegala, and Sahid Hadjiar was not fromKurunegala; he was a resident of Minuwangoda. His vendorSahabdeen was a resident of Kurunegala and he is the best personwho could have given information to Sahid Hadjiar as to who were inoccupation of the premises. Sahabdeen would have surely known thatAbuthahir was no more and that Razaak had been deported to India asfar back as 1966. He could not have told Sahid Hadjiar that thepresent tenant was either Abuthahir or Razaak. There is no evidencethat Sahid Hadjiar even attempted to find out who the occupants ofthe premises were. He could easily have had the business registrationsearched, the necessary documents being in Kurunegala itself. He
could have got the necessary information from Mr. Thahir the notarywho acted for him in regard'to this purchase. Mr. Thahir knew quite alot about the firm of Abuthahir and Son and its affairs. Mr. Thahir'sevidence is that Sahid Hadjiar's purpose in purchasing this propertywas only to obtain the rents. Then to whom could the notice to attorn(P6) have been meant. I think that it was meant for no other than thosewho were partners of the firm at that time.
What then are the legal consequences that follow? Lindley in histreatise on Partnership (15th edition page 36 et seq) states asfollows:
'the name under which a firm carries on business is in
point of law a^ conventional name applicable only to the personswho, on each particular occasion when the name is used, are
members of the firmas the name of a firm is only a
conventional mode of designating the persons composing it;anyvariance among these persons is productive of a new signification of
the name Thus in Wray y. Wray {3) it was held that a
conveyance of freeholds to 'William Wray in fee simple' passed thelegal estate in fee to the persons who were at the date of the
conveyance members of the firm trading under that nameIf
therefore a legacy is left to a firm the legacy is payable, unlessotherwise expressed, to those who compose the firm at the date ofthe will."
Likewise in this case when (P6) the notice to attorn was addressedto Abuthahir and Son it was an offer of the tenancy to those who werethe partners of the firm at that time. The defendant one of the partnersby his letter (P10) of 13.10.71 accepted this offer and sent SahidHadjiar the rent for October 1971. Thereby; in my view, a contract oftenancy was created between Sahid Hadjiar and the defendant as apartner of the firm of Abuthahir and Son The judgment of the learnedDistrict Judge is therefore set aside, and the plaintiff's action isdismissed. The appeal is allowed, but without .costs.
DHEERARATNE, J.-l agree.
returned. With this letter the money orders that had been returnedwere sent back to Sahid Hadjiar. Sahid Hadjiar died on 1 1.03.1973.Till that time he had not cashed any of the money orders, nor had hereturned any of them to the defendant. On 27.08.1973 SahidHadjiar's son Farook the 1st plaintiff returned eight of the moneyorders to the defendant, and on 21 09.1973 Farook returned thebalance three money orders to the defendant.
In the District Court the main contention on behalf of the defendantwas that the firm of Abuthahir and Son was the tenant, and thedefendant being a partner of the firm had succeeded to the tenancyThe learned District Judge held that a partnership could not in law bethe tenant of premises. This is undoubtedly a correct statement of thelaw. Vide-Perera v. Liyanagama (1) and Shanmugasunderam v.Mohammed (2). He further held that the tenancy had been withAbuthahir and Razaak, and that there was no privity of contractbetween the landlord and the defendant.
It was submitted by learned Queen's Counsel for the appellant thaton the facts of this case after Sahid Hadjiar purchased these premisesin 1971, a new contract of tenancy was created between SahidHadjiar and the partners of the firm of Abuthahir and Son at the time ofthe purchase. As stated earlier Razaak was deported to India in 1966and he did not come back thereafter. Abuthahir died in India in 1969.The question arises as to whom the notice to attorn (P6) was meant.-'Could it have been the intention of Sahid Hadjiar that this notice toattorn (P6) was meant to reach either Abuthahir or his son Razaak?Did he even know of an Abuthahir or a Razaak at all, and if so whatcould have been the source of his knowledge of them? In any of hiscorrespondence with the defendant he has nowhere mentioned thathis tenant was either Abuthahir or Razaak. The premises in questionare situated at Kurunegala, and Sahid Hadjiar was not fromKurunegala; he was a resident of Minuwangoda. His vendorSahabdeen was a resident of Kurunegala and he is the best personwho could have given information to Sahid Hadjiar as to who were inoccupation of the premises. Sahabdeen would have surely known thatAbuthahir was no more and that Razaak had been deported to India asfar back as 1966. He could not have told Sahid Hadjiar that thepresent tenant was either Abuthahir or Razaak. There is no evidencethat Sahid Hadjiar even attempted to find out who the occupants ofthe premises were. He could easily have had the business registrationsearched, the necessary documents being in Kurunegala itself. Hecould have got the necessary information from Mr. Thahir the notarywho acted for him in regard to this purchase. Mr. Thahir knew quite alot about the firm of Abuthahir and Son and its affairs. Mr. Thahir'sevidence is that Sahid Hadjiar’s purpose in purchasing this propertywas only to obtain the rents. Then to whom could the notice to attorn(P6) have been meant. I think that it was meant for no other than thosewho were partners of the firm at that time.
What then are the legal consequences that follow? Lindley in histreatise on Partnership (15th edition page 36 et seq) states asfollows:
*..the name under which a firm carries on business is in
point of law aLconventional name applicable only to the persons■ who, on each particular occasion when the name is used, are
members of the firmas the name of a firm is only a
conventional mode of designating the persons composing it anyvariance among these persons is productive of a new signification of
the name Thus in Wray v. Wray (3) it was held that a
conveyance of freeholds to William Wray in fee simple' passed thelegaj estate in fee to the persons who were at the date of the
conveyance members of the firm trading under that nameIf
therefore a legacy is left to a firm the legacy is payable, unlessotherwise expressed, to those who compose the firm at the date ofthe will.'
Likewise in this case when (P6) the notice to attorn was addressedto Abuthahir and Son it was an offer of the tenancy to those who werethe partners of the firm at that time. The.defendant one of the partnersby his letter (P10) of 13.10.71 accepted this offer and sent SahidHadjiar the rent for October 1971. Thereby, in my view, a contract oftenancy was created between Sahid Hadjiar and the defendant as apartner of the firm of Abuthahir and Son The judgment of the learnedDistrict Judge is therefore set aside, and the plaintiffs action isdismissed. The appeal is allowed, but without costs.
DHEERARATNE, J.-l agree.