Sri Lanka Law Reports
12002) 2 Sri L.R.
COURT OF APPEALWEERASURIYA, J., ANDDISSANAYAKE, J.
CA NO. 19/94 (F)
DC MT LAVINIA NO. 612/SPLJANUARY 17, 2001FEBRUARY 22, 2001
Rent Act, No. 7 of 1972 – Repudiation of contract of tenancy – Plea of mistake- Conduct of parties – Attornment.
The plaintiff-respondent instituted action seeking to eject the defendant-appellantfrom the premises in question. It was the position of the plaintiff-respondent thatshe requested the defendant-appellant to send all arrears of rent and to continueto pay rents in the future. The defendant-appellant, whilst acknowledging the titlehad sent a cheque as settlement of all arrears upto December, 1987, to the RentControl Board. Thereafter, by another cheque rents upto 1988 has been remitted,however, these two cheques were drawn in favour of one R, the deceased husbandof the plaintiff-respondent – crossed ‘not negotiable'. The District Court in thecircumstances held that, there was a repudiation of the contract of tenancy.
On appeal –
Though there was no unequivocal refusal to recognise the plaintiff-respon-dent as the landlord, in the letter by the defendant-appellant, her conductin sending two cheques crossed 'not negotiable’ drawn in favour ofR – the deceased husband of the plaintiff-respondent is a clear manifes-tation of her intention to deprive the plaintiff-respondent of the rent.
The facts of this case, with a background of a bitter relationship wouldlead to the irresistible conclusion that it would never be a mistake but adeliberate act. This conduct is an act of repudiation of the present contractof tenancy.
APPEAL from the judgment of the District Court of Mt. Lavinia.
Deert v. Rauf (Weerasuriya, J.)
Cases referred to:
Violet Perera v. Asilin – 1996 1 SLR 1.
Lalitha Perera v. Padmakanthi – 1987 2 SLR 1.
Seelawathie v. Ediriweera – 1992 2 SLR 170.
Gunasekera v. Jinadasa – 1996 2 SLR 115 (DB).
P A. D. Samarasekera, PC with S. Mahenthiran for defendant-appellant.P. Vimalachanthiran for plaintiff-respondent.
Cur. adv. vult.
June 22, 2001WEERASURIYA, J.
The plaintiff-respondent by her plaint dated 09. 03. 1988, institutedaction against the defendant-appellant seeking her ejectment from thepremises described in the schedule to the plaint and damages in asum of Rs. 2,500 per month from 13. 11. 1986.
The defendant-appellant in her answer whilst denying avermentsin the plaint, prayed for dismissal of the action. This case proceededto trial on ten issues and at the conclusion of the case, learned DistrictJudge by his judgment dated 18. 01. 1994, entered judgment for theplaintiff-respondent as prayed for in the plaint. This appeal has beenfiled against the aforesaid judgment.
At the hearing of this appeal, learned President’s Counsel for thedefendant-appellant contended that learned District Judge hasmisdirected himself in holding that there was a repudiation of thetenancy by the defendant-appellant.
The case of the plaintiff-respondent rested on the basis that shebecame entitled to the premises in suit by virtue of deed of gift bearing
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No. 233, dated 15. 02. 1979 executed by her husband J. M. Rauf.Since the defendant-appellant failed to pay rent after the death of Rauf,the plaintiff-respondent by her letter dated 19. 11. 1987 (P1), calledupon the defendant-appellant to pay arrears of rent and the defendant- 20appellant sent two cheques with a crossing ‘not negotiable’, drawnin favour of her deceased husband in settlement of arrears of rentfor the period upto December, 1988. Thereafter, before the summonsreturnable date the defendant-appellant has sent two money ordersfor the amounts specified in the two cheques.
The main issue before the District Judge was whether thedefendant-appellant had failed to attorn to the plaintiff-respondent interms of her letter dated 19. 11. 1987 (P1).
The contention of learned President’s Counsel that the learnedDistrict Judge has misdirected himself in holding that there was a 3orepudiation of the contract of tenancy stems mainly from his plea thatthe conduct of the defendant-appellant amounted to a mistake whichcannot form the basis for a finding of repudiation of tenancy. Hecontended that letter dated 23. 11. 1987 (P2) by the defendant-appellant to the plaintiff-respondent would clear all doubts relating tothe question of attornment. In support of this contention learnedPresident’s Counsel laid emphasis on the definition of the doctrineof repudiation as found in Stroud’s Law Dictionary and Cooper’s SouthAfrican Law of Landlord and Tenant.
Repudiation as defined in Stroud’s Judicial Dictionary (vol. 4, 5th 40edition 1986 at page 2249) is in the following terms:
“Repudiation in relation to contract may mean –
a denial that there was a contract in the sense of anactual consensus ad idem,
a claim that apparent consent was vitiated by fraud, duress,mistake or illegality,
Deen v. Rauf (Weerasuriya, J.)
a claim that the contract is not binding owing to a failureof condition or breach of duty which invalidates the contract,
an unequivocal refusal to proceed with an admittedlybinding contract, or most commonly,
an anticipatory breach whereby one party to a contractindicates an intention not to be bound thereby, whereupon the other party accepts the repudiation and rescinds the contract. . . There must be a conscious act(of repudiation) in relation to the contract in question . .
Cooper in his South African Law of Landlord and Tenant(1973 edition at page 293) defines the doctrine of repudiation asfollows :
“Repudiation of a lease occurs when one of the partiesindicates an intention not to be bound by the contract. A partymay do so expressly, eg. by unlawfully cancelling the leaseand requesting the lessee to vacate the premises. Repudiationmay be inferred also from a party’s conduct, eg. the lesseevacating the premises and returning the keys to the lessor.
Repudiation will be inferred where a party exhibits a deliberateand unequivocal intention no longer to be bound by the contract."
It is necessary to set down following the facts before I proceedto consider the plea of mistake as adverted to by learned President’sCounsel. The defendant-appellant was the sister of Mohamed Rauf,the deceased husband of the plaintiff-respondent, who before his deathon 12. 11. 1986 gifted the property in suit to the plaintiff-respondentreserving life interest to himself as evident from deed of gift bearingNo. 233 dated 15. 12. 1979 attested by S. Bagiranathan marked P9.
Since there was a failure on the part of the defendant-appellantto remit the rent, the plaintiff-respondent by her letter dated19. 11. 1987, requested the defendant-appellant to send all arrears
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of rent and to continue to pay rents in the future. In that letter, theplaintiff-respondent made reference to the fact that she is the ownerof the premises in suit which she alleged was known to the defendant- 80appellant. In response to this letter, the defendant-appellant by herletter dated 23. 11. 1987 whilst acknowledging the receipt of the letterdated 19. 11. 1987, laid the blame at the Municipality for the delayin the payment of rent on account of its failure to credit the amountspaid as rates and taxes expeditiously. She stated in this letter thata Bank of Ceylon cheque has been sent to the Rent Control Boardsettling all arrears upto December, 1987.
The question to be examined is whether the defendant-appellanthas by her conduct repudiated the presumed contract of tenancy.
The learned President’s Counsel for the defendant-appellant 90contended that letter dated 23. 11. 1987 (P2) was a clear manifestationof defendant-appellant’s willingness to attorn to the plaintiff-respondent.
The letter (P2) is a direct reply to the letter by the plaintiff-respondent (P1) demanding payment of rent together with arrears ofrent since the death of her husband.
As adverted to by learned President’s Counsel this letter couldbe described ex facie as a compliance with the demand of the plaintiff-respondent to tender the arrears of rent.
Nevertheless, an a careful examination of the contents of thisletter the manner in which compliance of the demand for payment 100of rent was met, has come into conflict with the purported objectiveof payment.
The letter refers to a cheque bearing No. A71 631763 (P3) sentto the Rent Control Board as settlement of all arrears of rent uptothe end of December, 1987. Thereafter, by another cheque bearingNo. 631169 (P4) rents upto December, 1988, has been remitted.
Dean v. Rauf (Weerasuriya, J.)
The two significant features of these two cheques are :
that they contain a crossing ‘not negotiable’ and
that both are drawn in favour of J. M. Rauf the deceased
husband of the plaintiff-respondent.no
Therefore, the resultant position would be that despite a purportedwillingness to comply with the demand for payment of arrears of rent,the rents that were remitted were in the name of the former landlord.
The crucial matter that arises for consideration is whether thisconduct of the defendant-appellant could be described as a mistakeas alleged by learned President’s Counsel.
In examining the plea of mistake it would be necessary to examinethe position adverted to by the defendant-appellant in her answer. Inparagraph 7 of the answer the defendant-appellant averred that shehas lawfully and duly paid all arrears of rent. In paragraph 8 of the 120answer she put the plaintiff-respondent to strict proof of all the materialaverments in the plaint. However, in her evidence the defendant-appellant sought to explain the drawing of two cheques in favour ofRauf (the deceased husband of the plaintiff-respondent) on the basisof persisting with the earlier practice of drawing cheques in favourof him (Rauf). Thus, it would be clear that neither in the answernor in her evidence, has the defendant-appellant, claimed that owingto a mistake, she has drawn the two cheques in favour of Rauf.
The sending of two Money Orders subsequent to the filing of plainthas to be viewed as conduct emanating from legal advice as they 130were sent after a meeting with her lawyer.
Another factor which seems to have a significant bearing on theconduct of the defendant-appellant is the relationship of the defendant-appellant, vis-a-vis, plaintiff-respondent after her marriage with Rauf.
It was common ground that plaintiff-respondent was the second wife
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of Rauf. In the answer, the defendant-appellant has averred that whilethe former wife was alive'the plaintiff-respondent has contracted themarriage with Rauf seeming to suggest the inference that while thefirst marriage was subsisting the second marriage has been con-tracted. This suggestion containing in that averment was found to be 140incorrect as the marriage certificate (P9) revealed that marriage betweenRauf and the plaintiff-respondent has been effected after the disso-lution of the former marriage.
The evidence of the plaintiff-respondent that defendant-appellanthas never visited them and that they were compelled to sell housebearing No. 4, adjoining the premises in suit owing to the animosity,the defendant-appellant bore towards them remain unchallenged. Theresentment that the defendant-appellant had towards the plaintiff-respondent since the marriage has found expression in averment 4of the answer which could be described as an act of malice suggesting 150an inference of a marriage under Muslim Law with a person who hasfour children, while the first wife was still alive. When one considersthese facts forming the background as to the relationship betweenthe plaintiff-respondent and the defendant-appellant, the non-paymentof rent to the plaintiff-appellant assumes much significance. Therefore,the question is, to what extent this conduct would amount torepudiation of the contract of tenancy.
In this regard, it would be useful to examine the conduct of tenantsas revealed in some reported cases where it was considered that suchconduct fell short of compliance of the obligation of the tenant to pay isorent to the landlord.
In Violet Perera v. Asiliri') where the defendant on being duly' informed that the tenanted premises had been gifted to the plaintiff,after calling for a copy of the deed from the plaintiff’s mother (formerlandlord) and receiving no response continued to deposit the rent inthe Municipality in favour of the plaintiff’s mother (former landlord) itwas held that the tenant cannot be regarded as having paid the rentto the landlord of the premises.
Deen v. Rauf (Weerasuriya, J.)
In Lalitha Perera v. PadmakanthP' where the defendant was thetenant of the premises under the father of the plaintiff, and after the 170premises were gifted to the plaintiff (daughter) informed of the changeof ownership and requested the defendant to pay rent to the plaintiff,it was held that continuance in occupation without attorning to thenew owner (landlord), the defendant is liable to be sued in ejectment.
In Seelawathie v. EdiriweersP> the rented premises were gifted tothe plaintiff and the tenant was apprised of the change of ownershipand of the transferee’s option to take possession of the premises withthe tenant in occupation. Since there was no reply to that letter, andthe tenant continued in occupation, the Attorney-at-law of the plaintiffinformed the tenant that the plaintiff had become the owner of the isopremises and called upon the tenant to attorn and to pay rent. Thetenant merely acknowledged the receipt of the letter without prejudiceto his rights under the provisions of the Rent Act and the Ceilingon Housing Property Law. Thereafter, when the notice to quit wasgiven requiring the tenant to quit the premises, he replied that housewas vested with the Commissioner of National Housing and as theprevious owners had charged excess rent he is not obliged to payrent till the excess amount is covered in full. It was held that thelandlord was entitled to the relief of ejectment of the tenant.
In Gunasekera v. Jinadasaw where plaintiff’s father (landlord) and 190the plaintiff informed the defendant that the property had been giftedto the plaintiff and called upon the tenant to pay rent to him (plaintiff)and the defendant continued to occupy the premises and depositedthe rent in the father’s name, it was held that since the defendanthas failed to attorn to the plaintiff-appellant, he was a trespasser.
This case laid down the principle that payment to the authorisedperson in the name of the person who is not the landlord does notdischarge the tenant’s obligation to the landlord.
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In the present case, though there was no unequivocal refusal torecognise the plaintiff-respondent as the landlord in the letter by the 200defendant-appellant, her conduct in sending two cheques with a cross-ing ‘not negotiable’ drawn in favour of Rauf, is a clear manifestationof her intention to deprive the plaintiff-respondent of the rent. Thequestion may be justifiably posed as to whether the defendant-appellant was naive and puerile to pretend that those two chequescould be cashed by the plaintiff-respondent. The facts enumeratedabove viewed with the background of a bitter relationship would leadto the irresistible conclusion, that it could never be a mistake but adeliberate act. Thus, this conduct would be correctly described as anact of repudiation of the present contract of tenancy.210
In Seelawathie v. Ediriweera (supra) it was held that continuancein occupation by the tenant (with notice of the transferee’s electionto recognise the tenant) constitutes an exercise of the tenant’s optionto acknowledge the transferee as landlord, establishing privity ofcontract between the parties and that no other act or conduct isnecessary.
In Gunasekera v. Jinadasa (supra) the principle was laid down thatwhile it is legitimate initially to infer attornment from continued occupa-tion, thus establishing privity of contract between the parties, anotherprinciple of law of contract comes into play in such circumstances 220to which the presumption of attornment must sometimes yield. Whenthe occupier persists in conduct which is fundamentally inconsistentwith a contract of tenancy, and amounts to repudiation of thatpresumed contract the transferee has the option either to treat thetenancy as subsisting and to sue for arrears of rent and ejectmentor to accept the occupiers repudiation of the tenancy and to proceedagainst him as a trespasser.
For the foregoing reasons, I proceed to dismiss this appeal withcosts.
DISSANAYAKE, J. – I agree.
DEEN v. RAUF