097-NLR-NLR-V-58-ABDUL-HAFEEL-and-another-Appellant-and-MUTTU-BATHOOL-Respondent.pdf
1957Present ; Basnayake, C.J., and Pulle, J.ABDUL HAFEEL, and another Appellant, and MUTTUBATJ.-IOOL, Respondent
S. C. 582—D. G. Guile, 5,2281L
Landlord and tenant—Me nthly tenancy—Death of tenant—PJfect on contract ojtenancy—Rent Restriction Act, s. JS.
On tlio death of a monthly tenant tho contract of tenancy terminates at thoend of tho month in which tho tenant dies, and tho heirs or executors of thodeceased tenant nro not entitled to occupy tho premises thereafter except uponn fresh contract with tho landlord or unless they can avail themselvesof section 1S of the Rent Restriction Act.
A PPEAL from a judgment of the District Court, Gallc.
II. V. Perera, Q.O., with II. II. S. II. Goomaruswamy, for Plaintiff-Appellants.
H. IK. Jaycicardcnc, Q.G., with J I. Ifarfdutni, for Dofendant-Jic.sponde.n t.
Cur. ctdv. vult.
April 11, 1957. Bas.va yaice, C.J.—
In this action the plaintiffs who claim to be the co-owners of premisesNo. 124 in Main Street, Galle, each being entitled to an undivided halfshare ask for a decree in ejectment and damages against the defendantwho is the widow and executrix of the estate of one A. M. A. Cadcr.
It would appear that Cader was a monthly tenant of premises No. 124at the time of his death and that he carried on therein a hardwarebusiness. Cader died on 6th March 1951 and his widow the defendanthas since tfiat date continued to occupy the premises and carry on thesame business therein. The plaintiffs assert that the defendant hasno right to remain in the premises and is therefore in unlawful occupationof it and seek her removal by process of court. No rent has been acecjiteclby the plaintiffs from the defendant at any time and they have all alongrefused to recognise her as tenant. Tiie plaintiffs claim from her damagesat the rate of Rs. 115/76 per mensem from the date of Cader’s death tillshe delivers up possession of the premises and they arc placed in quietpossession.
The defendant contended at the trial that on Cader’s death Iiis rightsand obligations under the contract of tenancy passed by. operation oflaw to her as the executrix of his last will. '
The learned trial Judge has upheld that contention. Ho bases hisfinding on a statement at -page 102 -of.' Lee -and- Honorb’s-Law ofObligations.‘ '
is——Lvrrr-
2——J. Jf. B 05973-1,503 (6/57)
The appellant canvasses that finding. It Is submitted that on thedeath of a monthly tenant the contract of tenancy comes to an end andthe heirs or the executors of the deceased tenant are not entitled toremain in the premises.-
The passage in Lee & Honore on which the learned trial Judge hasbased his judgment is as follows :—
“ 389. Effect of death of parties. In the absence of agreementto the contrary, the rights and duties of the lessor and of the lessee arc(normally) transmitted on death to their representatives ; but a leaseexpressed to be at the will of either party is determined by that party’sdeath. ”
The authorities cited in support of this statement are Grotius 3.19.9,Voet 19.2.9 and On twerp 2003. Of these authorities I have not beenable to get the last named work. Grotius’s statement is as follows :—
“ But a person may also let for as long as he pleases, which letting isunderstood to expire by death, although other lettings, in which thetime is fixed, are valid after the death of the lessee, and go over to hisheirs. ”
Voet’s statement runs thus (Gane’s translation) :-
“ Then again in the second place the contract is either so made thatit has an end at a definite time, say in one, two or five years ; or sothat its duration is indefinite, “ as long ” for instance “ as the lessorshould be willing ”. In such a case it has been held that on the analogyof a loan on sufferance it comes to an end both on the death of the• lessor and on the announcement of an adverse intention being made bythe lessor in his life-time. ”
using without objection from the lessor, the lease appears to havebeen tacitly prolonged or renewed. It is renewed along with anyobligation of pledge which the lessee had established over his ownproperty in security of the original lease or rent.”.
According to the same author the renewal is on the same conditionsas those on which the earlier hiring rested. This is how he puts it :
*' Surely everyone is understood to have made a new hiring, so fai-ns that could be done, on the same conditions as those on which theearlier hiring rested, when he continued in the hiring after the passage 'of the scope of time of the original cont ract. ”
In a monthly tenancy the lease is tacitly renewed on the first day ofeach month by the lessor not indicating to the tenant before that daythat he wants to terminate the lease and the lessee remaining in thehouse without notifying the lessor that he proposes to quit. The termsof renewal must be taken to be the same each month unless they arechanged by mutual agreement. It might be asserted that if the tenancyterminates at the end of each month there is no need for a month’snotice of termination of tenancy cither by the lessor, or lessee, and thateither party can on the last day of the tenancy inform the other thathe will leave at the end of the.day. But there is a reason behind therequirement of notice. The reason is that if a tenant is suddenly informedon the last day of a month that he will have to find another house on thenext day he cannot do so. So the law requires that reasonable noticeshould be given of non-renewal of tenancy even if the lease expiresat the end of each month. Our practice that the landlord or the tenantmay terminate the tenancy or in the language of our common law, theletting or the hiring, as the case may be, in the case of a monthly tenancyupon a month’s notice terminating on the date on which the period oftenancy expires is based on this requirement of the Roman-Dutch Daw.Voet states the law thus :
“ In like manner the law among us and in very many other countriesstands nowadays so, that a hiring of a house or of male or femaleservants is held to have been prolonged after the end of the originalperiod up to the next date for quitting by the silence of both parties.Definite times for quitting houses and definite terms for services let. outby male and female servants are found to be fixed by statute or bylong established usages. At the same time, as even topers and barbersknow, a need lias been laid on for the giving of timely notice by thosewho at the end of the time of letting do not wish to avail themselvesany longer of the use or services, or to render them for the future. ”(Book XIX, Tit. 2, S. 10, Ganc’s translation.)
Van Leeuwen too (Censura Forensis, Book IV,’ Ch. XXII, S. 1-4) holdsthe same view. He says :'-
“ At the expiry of the terms of the lease-, the letting and hiringcomes to an end also, unless the owner of the estate allows the lesseeto remain longer on’th’e farm, in which case the lease itself is to betacitly continued. ”
the case of monthly tenancy there is no difficulty in determiningthe period for -which the lease is tacitly continued but in the case of otherleases the period will not extend beyond the period of reasonable noticerequired for terminating the lease that has tacitly come into being.On this jioint there appears to be some conflict of opinion between VanLceuwen and Grotius and others whose opinions Grotius accepts ; but-it is not necessary for the purpose of the present case to go into the matter.
I now come to the question that arises for decision here. Did thetenancy of Cader devolve on his executrix on his death ? I have statedabove that a monthly tenancy is a contract of tenancy for a period notexceeding a month as shown in the calendar regardless of the numberof days in a month. It expires on the last day of a month and is tacitlyrenewed by the silence and conduct of parties at the end of a monthand the beginning of the next. What then is the position if, as in theinstant case, a hirer dies after a month’s tacit contract has commenced;but before the end of the month—Cader died on the 6th of March—.As the contract was properly made though tacitly it will be in force forthe term for which it was made, viz., the currency of the month andcannot at the end of that month be renewed tacitly if one of the con-tracting parties is dead. The contract therefore comes to an end atthe end of the month in which the hirer dies and his hc.Ir or executor hasno right to occupy the house thereafter except upon a fresh contx-actwith the lessor or landlord whichever term we may choose to use. ThisI tliink is the effect of Van Beeuwen’s statement (Censura Forehsis,Part I, Book IV, Ch. XXII S. IS (Barber "s Translation)—
“ At the death of either of the parties the contract of letting orhiring is not terminated, but passes to the heirs both of the lessorand of the lessee until the time fixed arrives. ”
The term fixed in a monthly tenancy is the end of the month. Bothaccording to Van Lceuv.cn (Censura Forcnsis Book IV, Ch. XXTI,S. 1 ) and Voet (Book XIV, Tit. 2, S. 1), the contract of letting and hiringis governed by almost the same rules as purchase and sale. Accordingto these rules upon the death of a party there can be no tacit renewalof a contract and there can be no new contract between the executoror heir and the lessor unless such a contract is concluded between theparties.
Applying this view- of the law to the facts of this case it would appearthat Cader having died'on Clli March 1951 the tacit contract"of tenancywhich began on 1st March came to an end on 31st March 1951 and asthe defendant and the plaintiffs did not enter into a fresh contract oftenancy on 1st April 1951 or at any time thereafter the defendant hadno right to occupy the premises and is not entitled to remain therein.The plaintiffs are therefore entitled to succeed in their action.
The defendant was entitled on the death of Cader to take advantageof section IS of the Ilent Restriction Act, but she does not appear tohave done so. The time for giving the. notice prescribed therein is longpast and that section is now of no avail to her. »
The appeal is allowed with costs both here and below. The plaintiffsare entitled to judgment as prayed for except that the date for computingthe monthly damages will not be the date of Cader's death, but 1st April1951. Vc direct that decree be entered accordingly.
Appeal aUoivcd.
Pt'LLE. J.—I agree.