v.BOARD OF REVIEW, CEILING ON HOUSING PROPERTY AND
COURT OF APPEAL.
H. A. G. DE SILVA, J. AND G. P. S. DE SILVA. J.
APPLICATION No. 2279/80. '
NOVEMBER 6. 7 AND 9. 1984.
Writ of Certiorari – Order of Board of Review constituted under the Ceiling on HousingProperty Law No. 1 of 1973- Application to purchase premises – Letting to boardersand lodgers – Business premises ss. 9, 13, 17 11). and 47 of Law No. 1 of1973-Applicant in a position to purchase premises- Trust Ordinance – Constructivetrust under s. 84.
The 5th respondent (Mrs. Issac Nesamany) applied under s. 13 of the Ceiling onHousing Property Law No. 1 of 1973 to 4th respondent the Commissioner of NationalHousing to purchase premises No. 121, New Moor Street, Colombo. The 4threspondent refused the application as the premises had been used as businesspremises-being given to boarders and lodgers – from 1964 to 1972. The premiseshad been purchased in 1964 by Alibhoy Adamjee father of the petitioner. AlibhoyAdamjee who was the original 5th respondent to the petition, died on 14.11.1974 andthe present petitioner was substituted in his room. The application was resisted on theground that these were business premises and the petitioner was not in a position topurchase the premises.
The conclusion of the Board of Review is correct – there was documentaryevidence that the premises were used solely or mainly for a residential purpose thoughboarders and lodgers had been there, during certain periods.
There was prima facie evidence that the petitioner was in a position to purchase thepremises. Though she had not the means her son who was doing a lucrative businesswould buy them for her. Such a purchase by the son will not result in a constructive trustin favour of the son because this would be a case where the son is providing theconsideration for the benefit of the mother.
APPLICATION for Writ of Certiorari.
N. R. M. Oaluwatte. P.C. for the petitioner.
Nihai Singaravelu with J. M. Wanmnayaka for the 5th respondent.
Cur. adv. vuit.
February 15, 19.85.
A. G. DE SILVA, J.
This is an application for the issue of an Order in the nature of a Writ ofCertiorari to quash the Order P2 of the Board of Review constitutedunder the Ceiling on Housing Property Law No. 1 of 1973.
The 5th respondent had made an application under section 13 ofthe Ceiling on Housing Property Law No. 1 of 1 973 to the 4threspondent to purchase premises No. 121, New Moor Street,Colombo. The 4th respondent refused the said application on thebasis that the premises were used as business premises from 1964 to1972.
These premises had been purchased by one Alibhoy Adamjee, thefather and the predecessor-in-title of the petitioner in 1964. The saidAlibhoy Adamjee was the original respondent to the 5th respondent'sapplication to the 4th respondent, and on his death on 14.11.1974,the petitioner was substituted in his place. The 5th respondent'sapplication was resisted by the petitioner on two grounds viz., (1) thepremises being business premises did not come within the purview ofthe Ceiling on Housing Property Law, and (2) that in any event, the5th respondent was not in a position to purchase the said premises.The 5th respondent appealed to the 1 st respondent Board from therefusal of the application by the 4th respondent and the 1strespondent Board consisting of the 2nd and 3rd respondents by itsOrder P2 set aside the Order of the 4th respondent.
At the hearing of this application learned Counsel for the petitionersubmitted that the premises in question consisted entirely of businesspremises, in that, all rooms available therein had been let out toboarders or lodgers and therefore did not come within the definition of"house" in Law No. 1 of 1973 and further that the 5th respondent hasfailed to prove that these premises had been constructed forresidential purposes.
Section 2 of the Ceiling on Housing Property Law No. 1 of 1973regulates the number of houses permitted to be owned by anindividual.
Section 9 permits the tenant of a surplus house to apply to theCommissioner of National Housing to purchase such houses. Section17(1) enacts inter alia that "where an application has been made *under this Law for the purchase of a house; and the Commissioner issatisfied-
that the applicant is in a position to make the purchase, theMinister may, on being so notified by the Commissioner, byOrder (hereinafter referred to as a 'Vesting Order") vest suchhouse in the Commissioner with effect from such date as maybe specified therein".
Section- 47 defines 'house' to mean "an independent living unit,whether assessed or not for the purpose of levying rates, constructedmainly or solely for residential purposes ; and having a separateaccess but shall not include-
a house used mainly or solely for a purpose other than aresidential purpose for an uninterrupted period of ten years priorto March 1, 1972".
Learned Counsel for the petitioner referred to the householder's listfrom 1962 to 1972 viz., R 6, R 6 A, R 7, R 7 A, R 8, R 8 A, R 9,
R 10 & R 11 to show that the other occupants of the premises otherthan the 5th respondent and members of her family were lodgers.
In R 6, the householder’s list for 1962, against the namesappearing in cages 4 to 8, 9 to 17 and in the continuation sheet R 6 Ain cages 2 to 11 the relationships to the Chief Occupant – I.Rajaratnam, the son of the 5th respondent, are not given. In R 7 thehouseholder's list for 1966 against the names in cages 5, 6 and 11,the relationship to the Chief Occupant is given as 'lodgers' and in thecontinuation sheet R 7 A, there appear to be two households in thepremises. In the household of which the son of the 5th respondentwas the chief householder, the persons whose names appear in cages3 to 8 are stated to be lodgers.
In the householder's list for 1968, R 8, only the 5th respondent'sfamily appear to be in occupation while R 8 A, the continuation sheet•gives the members of yet another household in the same premises.R 9 the householder's list for 1970, R 10, for 1971 and R 11 for1973 show only one household and that too consisting of themembers of the 5th respondent's family.
R 12 which is a copy of the proceedings in 1971 of an inquiry intoobjections by the 5th respondent to the assessment for the year1971. the 5th respondent has stated that she has not given out anyportions of this house on rent. The assessor in his report, states afterinspection that the entire building parts of which were assessedseparately, is now occupied as one unit. R 13 which is also a report onassessment made in 1964 shows that one portion is occupied as adispensary at a rent of Rs. 50 per mensem while some 13 roomsappear to have been given on rent. It was on this report that separateassessment numbers from 121/1 to 23 were given but R 12 in 1971recommends that the whole premises be given one assessmentnumber viz., No. 121.
In plaint A 1 in a District Court action filed in 1965 by the petitioner’sfather Alibhoy Adamjee against the 5th respondent to eject her fromthe premises, the plaintiff has averred that the defendant has subletportions of the said premises to persons whose names are not knownto the plaintiff.
Learned Counsel for the 5th respondent referred to X 2 which is adeclaration made by the 5th respondent in respect of these premisesin 1974. In that she says the premises are used as a residence. In X 1a to X 1 e which are extracts of assessment registers from 1941 to1978. the premises are described as a house. Though X 1 c refers torooms let out separately X 1 a refers to one unit.
A perusal of all these documents does not disclose that thepremises in question have been used as business premisescontinuously by the rooms being given out to 'lodgers or boarders'.There appears to have been certain periods such as in 1966 (R 7 andR 7 A) when this has been done but one cannot say that from 1962 to1972 these premises have been used mainly or solely for apurpose other than a residential purpose as contemplated in thedefinition of 'house' in section 47 of Law No. 1 of 1973. I amtherefore of opinion that the 1st respondent Board has come to acorrect finding on the first ground that has been urged by petitioner'sCounsel.
The second submission made by learned Counsel for the petitioner isthat the 5th respondent has failed to prove in terms of section17 (1) (c) that she is in a position to make the purchase of the*premises! He submits that in her evidence before the 1st respondentBoard she had stated that she has no property other than this house ;that she has no sources of income and that she has to rely on her sonsand grandchildren to help her; and in these circumstances her mereipse dixit that her son will furnish her with the money is not sufficientespecially as her son had not given evidence and shown that he hadthe capacity to provide the purchase price to his mother.
Under cross-examination she has stated that her son had a shop inPeiiyagoda and that it is a lucrative business and that it is this son whois prepared to advance the money.
Learned Counsel for the 5th Respondent drew our attention tosection 20 A (1) (e) of the Rent Act.No. 7 of 1972 which speaks ofthe Commissioner being satisfied with the financial capacity of dieapplicant to construct a number of residential units while in section17 (1) (c) what the Commissioner has to be satisfied is that theapplicant is in a ‘position' to make the purchase. He also points out tothe fact that no cross-examination in detail was directed at the 5threspondent to test her assertion that her son was carrying on alucrative business in Peiiyagoda and could provide her with thenecessary funds to purchase the premises. I am of the view that thereis prima facie evidence from the 5th respondent as to her capability ofpaying the purchase price and this does not appear to have beenseriously challenged.
A further submission made by the petitioner's Counsel is that even ifthe 5th respondent's son provided the purchase money, she would bea constructive trustee for him and hold the property not for her benefitbut for the benefit of her son. Section 84 of the Trusts Ordinance (Cap,87) states that 'where property is' transferred to one person for aconsideration paid or provided by another person, and it appears thatsuch other person did not intend to pay or provide such considerationfor the benefit of the transferee, the transferee must hold the propertyfor the benefit of the person paying or providing the consideration'.
' This is a case of a son lending money to his mother. Could it be saidhe does not intend to pay or provide such consideration for the benefit,of the mother ? I do not think that in the circumstances, a constructivetrust would arise. I hold that the second submission of the learnedCounsel for the petitioner fails. I would therefore dismiss thisapplication with costs fixed at Rs. 3,15 payable,by the petitioner to the5 th respondent.
G. P. S. DE SILVA, J. – I. agreeApplication dismissed. ■