014-NLR-NLR-V-27-UDAYAPPA-CHETTY-v.-GOONETILLEKE-et-al.pdf
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Present: De Sampayo J and Maartensz A. J.
UDAYAPPA CHETTY GOONETILLEKE et al.
309—D. C. Kalutara, 11,170.Landlord and tenant—Lease of mortgaged premises—Action on bond—jSale in execution of decree—Purchaser’s right to recover rent fromsublessee.
A mortgaged certain property with plaintiff, and then leased itfor ten years to B, who sublet it to C. In execution of a decreeon the mortgage bond, the property was sold and purchased bythe plaintiff.
Held, that the plaintiff was not entitled to claim rent from C.The principle of the Roman-Dutch law that a purchaser ofproperty is entitled to claim rent due by a lessee to the originalowner does not apply to sub-tenants.
A
PPEAL from a judgment of the District Judge of Kalutara.The facts appear from the judgment.
Samarataickreme, for first defendant, appellant.
1925.
P. Perera, for plaintiff, respondent.
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1925. April 1, 1925. De Sampayo J.—
Udgtyopp* This case raises a very important point, and in the absence of4SfoamUUeke any definite authority we are obliged to go on the principles of law.
The property involved in this case belonged to one Goonetilleke.He, by a certain bond, mortgaged it to the plaintiff on September ■22, 1920. Before any action was brought on that bond, Goone-tilleke, on February 28, 1922, leased the property for ten years tothe second defendant. The first defendant became his tenant ona month-to-month tenancy on July 1, 1922. The first defendant,as such tenant, continued to be in occupation till the time whenthis case was started. The bond having been put in suit, ultimatelythe property was sold, by a Commissioner authorized by the Courtin pursuance of the mortgage decree, on February 13, 1923, whenthe property was purchased by the plaintiff himself. This actionhas been brought by the plaintiff to eject the first defendant, andagainst the second defendant for damages and for costs. Bothdefendants filed answer, but the second defendant went out of thecase in circumstances which it is not necessary to go into. Butthe case, so far as the first defendant is concerned, was proceededwith. The first defendant’s position was that before the actionwas brought, he had regularly paid rent due to his own landlord,the second defendant, and after action was brought against him,he deposited the rent month after month in Court. Judgment,however, went against him for the rent from February 1, 1923, tothe time when plaintiff was put in possession. The first defendantappeals from this judgment, and contends that so far as he wasconcerned the judgment was wrong. There is no doubt that aspurchaser of the property under decree against Goonetilleke, theplaintiff is entitled to all the rent that Goonetilleke would havebeen entitled to under his lease to the second defendant. Thequestion in the present case, however, is whether he is similarlyentitled to payment from the first defendant, who is the seconddefendant’s monthly tenant, of the amount of rent due by thefirst defendant to his own landlord, the second defendant. TheRoman-Dutch law is explained in the case of Silva v. Silva.1 Thatcase went no further than saying that a purchaser of property,although he may not be entitled to possession as against a lesseeof his vendor, will yet be entitled to the rent due by the lessee tothb original owner. That is, as I said before, no authority on thepoint arising in this case between the plaintiff and the first defendant,who was not Goonetilleke’s lessee, but who was a tenant underGoonetilleke’s lessee, the second defendant. The principle underthe Roman-Dutch law by which a vendee is entitled to the rentdue to the vendor is that the rent stands in the place of possession,and as he cannot get possession, he must get what stands in its
1 {1913) 16 N. L. R. 315.
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place, namely, the rent. The same principle does not seem to meto apply to sub-tenants. There are not very direct authoritieson this subject, but one may refer to the case of Wijeratne v.Hendrick,1 where it was decided that a plaintiff who had become, entitled to a certain leasehold interest could not sue for the groundrent due to his lessor from a tenant in occupation without anassignment of that right from the lessor. In this connection wemay also refer to Wille on “Landlord and Tenant*9 p. 149, whichappears to lay down the law* in conformity with the ruling in thelocal case.
In these circumstances, I think the plaintiff is not entitled toclaim rent from the first defendant. The decree also gives theplaintiff possession of the premises, but counsel for the first defend-ant, though he is prepared to argue that the plaintiff is notentitled to get even possession, does not press the appeal on thatpoint. The judgment against the first defendant as regards rentshould, I think, be set aside. It appears that the second defendantwas considered to have been in default in view of certain circum-stances, but at the end no judgment has been entered against him.We direct the Court’s attention to this matter, and allow theplaintiff to take such step, or make such application to the DistrictCourt, as he may be entitled to. But the plaintiff must pay to thefirst defendant the costs of this appeal and of the District Court.
Maabtensz A.J.—I agree.
Set aside.
1926,
De Samfayo-
J.
VdayappaChetty v.OoonetiUeke
* (1895) 3 N. L. R. 158.