ALLES Appellant ,and KRISHNAN et al ,Respondents

033-NLR-NLR-V-54-ALLES-Appellant-and-KRISHNAN-et-al-Respondents.pdf

154
Alles v. Krishnan
1952Present: Pulle J. and Choksy A.J.ALLES, Appellant, and KRISHNAN et al., RespondentsS. C. 407—D. C. Colombo, 19,943
Landlord and tenant—Should landlord be owner of premises let?—Improvementseffected by tenant—Subsequent transfer of premises—Compensation for theimprovements—From whom should claim be made ?
Where improvements Were effected by certain tenants with the consent of thelandlord (A.) who was not the legal owner of the premises let—
Held, (i) that the tenants were entitled to claim compensation for the improve-ments from A., although the premises were subsequently transferred by the legalowner and the tenants attorned to the transferee.
that the relationship of landlord and tenant can exist between the tenantand a party who is not the owner of the premises so long as the latter fulfilledthe obligation of a landlord by putting the tenant into possession.
that a tenant’s claim for compensation can only be made after the(tenancy has expired and the tenant has vacated the premises. Upon the attorn-'ment, however, there was a notional vacation of the premises and a new tenancy
came into existence.
.^^.PPEAL from a judgment of the District Court, Colombo.
E. B. WihramanayaTce, Q.C., with T. Arulananthan, for the 1st defendantappellant.
N. Kumarasingha/m, for the plaintiffs respondents.
Cur. adv. vult.
CHOKSY A.J.—AMea v. Kriahnan
155
June 11, 1952. Ghoksy A.J.—
The plaintiffs filed this action against the defendants for the recovery ofa sum of Rs. 4,028'30, as compensation for the improvements effected bythem to premises No. 106, College Street, Kotahena, which the plaintiffshad taken on rent from the 1st defendant. The 1st defendant filed answerdenying that the plaintiffs effected any improvements ; alternatively, hepleaded that he was not liable to pay for any improvements. He alsotook up the position that he collected the rent of the premises, which be-longed to his late father, on behalf of his father, and after his death, onbehalf of his estate and that he carried out “ the necessary repairs andimprovements ” on behalf of the estate and heirs of _his deceased father.The 2nd defendant was made a party on the footing that he had purchasedthe premises from the 1st defendant and therefore compensation wasclaimed by the plaintiffs against the defendants jointly and severally.The second defendant’s defence was a general denial of the plaintiffs’claim and a plea of misjoinder of parties and causes of action, a pleawhich was raised by the first defendant also.
At the commencement of the trial the plaintiffs wanted the seconddefendant dismissed from the action. This was agreed to and thesecond defendant was dismissed from the case, plaintiffs paying thesecond defendant Rs. 105 by way of agreed costs. The evidence showsthat the second defendant himself had disposed of the property to a thirdparty in or about May, 1948.
At the trial the position taken up by the first defendant was that thepremises at no time belonged to him but that they belonged to his father atthe time of the commencement of the tenancy in or about June, 1942.His father died in 1946 and therefore the first defendant’s position was thatthereafter he collected the rents on behalf of his father’s estate. Theplaintiffs’ case was that they were not aware at any stage that the firstdefendant’s father was the owner of the premises, and that they did notbecome the tenants of the first defendant on behalf of his father but that-the contract of tenancy was one directly between them and the firstdefendant and that they continued to be the first defendant’s tenants tillthe first defendant requested the plaintiffs to pay the second defendant therent subsequent to the second defendant’s purchase of the premises where-upon the plaintiffs attorned to the second defendant and continued to payrent to him. It would appear from the first defendant’s evidence that thedeceased father had gifted the property to the first defendant's motherby deed of 7th February, 1945, and that it was the mother who later trans-ferred the premises to the second defendant, who in turn disposed of theproperty to a third party in May, 1948. The receipt issued by the firstdefendant for a sum of Rs. 100 paid by the plaintiffs as an advance,on 27th February, 1942, has been produced. This does not contain any-thing to show that the first defendant was acting on behalf of anyoneother than himself. The District Judge found upon the evidence that theplaintiffs had never at any time been appraised that the premises didnot belong to the first defendant. The “to-let “ board which was fixedon the premises before the plaintiffs took them on rent, and whichhas been produced, has the words “ To Let. Apply Alles, Ceylon
156
CHOKSY A.J.—AUes v. Krishnan
Wharfage Co., Ltd. ”. The first defendant had been employed at theCeylon Wharfage Co. Ltd., his father being the late shroff of theChartered Bank of India. In view of this strong evidence furnishedby the receipt for the advance, the “ to-let ” board, and other evidencein the case, the learned Judge’s finding that the first defendant wasthe landlord of the plaintiffs is correct and cannot be reversed.
It does not appear to have been disputed that after the first defendant’smother’s sale to the second defendant the plaintiffs attorned to the seconddefendant and paid rent to the second defendant thereafter.
The learned Judge has also found that the first defendant consented to,or at least acquiesced in, the plaintiffs effecting the improvements inquestion. Indeed it was the first defendant who actually signed theApplication to the Municipality for sanction to effect the alterations tothe premises which alterations constitute the improvements. He hassigned the form as the “ owner ” of the premises.
We therefore find ourselves confronted with a case where, as between theplaintiffs and the first defendant, the latter was to all intents and purposesthe owner of the premises which he had let to the plaintiffs as landlord, andthat he consented to or at least acquiesced in the improvements intendedto be effected by the plaintiffs od the footing—as between the parties—thathe was the owner of the premises. As a result of the improvementsbeing effected the Municipal Assessment of the premises was increased withthe consequence that the plaintiffs had to pay an increased rental, andthat to the first defendant himself. The result therefore is that whilst thetenants had the use and benefit of the improvements themselves, theirlandlord also reaped the benefit of the improvements in the shape of anenhanced rent. The question that arises for consideration, therefore, iswhether the plaintiffs, being tenants, are entitled to claim compensationfor the improvements effected by them from the person who was then-landlord at the time the improvements were effected, or should claim themfrom the actual owner of the premises to whom they had later attorned.
It is of course not necessary that the owner himself should be the land-lord. The relationship of lan dlord and tenant can exist between the tenantand a third party who is not the owner of the premises let so long as he ful-fils the obligations of a landlord by putting his tenant into possession x.He will then be the person entitled to receive the rent during the period ofthe tenancy.
It was conceded in the lower Court that the tenant is not entitled to ajus retentionis for the improvements effected by him. Even a lessee undera notarial lease is not entitled to a jus retentionis 2. A lessee is neither abona fide possessor nor a mala fide possessor. He certainly has not thepossessio civilis and therefore his claim for compensation must depend onhis possession as a lessee, because he is not such a “ possessor ” as is con-templated in the context of a claim for compensation for improvements3.In Costa v. Abeykoon4, this Court has held that a tenant is notentitled to a jus retentionis even for improvements made by agreement withhis landlord in the absence of an express or implied term in the agreement
(1935) 14 G. L. Bee. 210.(1924) 26 N. L. B. 97.
(1910) 13 N. L. B. 193.
(1908) 4 Bed. Bep. 25.
CHOKSY A.J".—AUes v. Kriahnan
157
giving him a jus retentionis—see Saboor v. Appuhamy1. The tenant inthat case, however, was in fact the lessee under a lease. Whatever may behis position in regard to a tacit hypothec it is clear on the authorities thata tenant is entitled to claim compensation for improvements effected byhim during the tenancy provided those improvements had been effectedby him either with the consent or acquiescence of the landlord. Thatclaim however can only be made after the tenancy has expired and thetenant has vacated the premises. The topic is discussed, among otherauthorities, by Wide in his standard work on The Law of Landlord andTenant in South Africa, 3rd edition, pages 259 to 261. Whilst it is true that' Wide relies, for his statement, on the placaats of 1658 and 1696 he alsoredes on decisions of the South African Courts to thaf effect.
Mr. Wikramanayake, while not contesting the proposition that a tenantwould be entitled to compensation for improvements effected with theconsent or acquiescence of the landlord strenuously pressed upon us thepoint of view that it was the actual owner of the premises at the date ofthe termination of the tenancy and vacation of the premises by the tenantwho is Uable to pay such compensation and not the landlord who consentedto or acquiesced in those improvements. We were told that there is nodirect authority on the point amongst the local decisions. The case ofScrooby v. Gordon & Co.2 was reded on by him. The question which wasformulated as being the one coming up for determination in that easewas whether a lessee was entitled, on the termination of the lease, to becompensated by the lessor for the value of the improvements effected be-fore the termination of the lease, if before the termination of the lease theproperty had been sold by the lessor to a third party. The Court heldthat it was established law in South Africa that in the absence of a specialagreement, a lessee who annexes materials to the soil retains his propertyin those materials dining the tenancy, that he can dissever and removethose materials, before the expiry of the lease, provided he can do so withoutserious damage to the land ; that at the expiry of the lease the owner of theland at that date becomes the owner of the materials ; that the lessee can-not retain the leased property after the expiration of the tenancy, butcan recover, as compensation, the value of the materials annexed by himto the soil with the landlord’s consent. The Court then put itself thequestion as to whether the tenant could enforce that claim for compen-sation against the person who was the owner at the time when the im-provements had been effected or against the person who is the owner atthe time when the lease terminates and the lessee has to quit possession.The Court was of the view that it is the owner at the time of the termina-tion of the lease who is the person against whom the lessee could assert hisright to compensation, principally because where a property which is soldis subject to a lease it is acquired by the purchaser subject to the lessee’srights. The Court held that the lessee has the right to continue in occu-pation of the premises as against the purchaser, during the balance periodof the lease, subject to the due observance by him of all the terms and con-ditions of the lease, and also the right to receive compensation, on itsexpiry, in respect of the materials annexed to the soil by the lessee with theconsent of the original lessor. It was pointed out that this obligation of
1 (1916) 2 0. W. R. 186.2 (1904) Transvaal Law Reports 937.
158
UH.OK.SY A.J.—Alias v. ICrishnan.
the purchaser to pay compensation in such circumstances is founded on thebroad-based equitable doctrine of Roman-Dutch Law, which is capable ofinfinite adaptation and application to the varying circumstances and situa-tions that arise under the continuously changing conditions of civilization,that “ no man shall enrich himself at the expense of another Theperson who appeared to the Court to be enriched was the person who wasthe owner of the property at the termination of the lease, owing to thefact that it was at the termination of the lease, and not earlier, that thematerials ceased to be the property of the lessee (who has not lemovedthem earlier) and became the property of the owner of the soil.
The case of Lechoana v. Oloete and others 1 was also relied on in supportof that proposition. In the course of his judgment De Villiers A.J. citesthe case of Hendersons Transvaal Estates Ltd. v. Bloom 2, as deciding that aperson who bona fide occupies land either under a mistaken belief thathe is the tenant thereof, or in the expectation of a lease being granted to him(the owner consenting to such occupation with the intention of grantinghim a lease), is a tenant-at–will and that upon the termination of his occu-pation such person is entitled to compensation for the value of the materialsstanding on the premises and which the tenant has annexed to the soilwith the consent of the owner. The report of Hendersons Transvaal EstatesLtd. v. Bloom is not available but it appears to be the case of a claim forcompensation against the very person who gave bis consent for theoccupation. Lechoana’s case was also concerned with a claim for com-pensation being made against the very body of persons (viz., the MissionSociety) with whom the defendant there had dealt, and not with anypurchaser from the Mission Society. That case therefore is not of asmuch assistance as is the case of Scrooby v. Gordon <b Go. (supra).
The case which comes closest to the present case is that of Gibson v.Frost 3, which is referred to and distinguished in Scrooby v. Gordon & Co.(supra). In Gibson v. Frost the defendant rented the house to his daughterthe plaintiff, and boarded with her, paying for his board. She put up a fencewith his knowledge and without his objection. He gave her to understandthat she was to get that house after his death. But in May, 1895, hetransferred the property to his son. Despite the transfer he continued toreceive the rent and treat her as his tenant whilst she regarded him as thelandlord. In December, 1895, he asked her to vacate the premises at theend of January, 1896, as he required them for his own use. She agreedto do so but claimed compensation for the improvements and said that shewould remove them if he refused to pay for them. Then the defendantfor the first time said that his son was the owner and that she could notremove the improvements. She accordingly left the premises and suedher father for compensation. Her claim succeeded on the footing that shehad made improvements with the defendant’s consent. It was arguedcontra that she could recover compensation only from the person who wasthe owner at the date of the termination of her tenancy because the lawreserves a tacit hypothec in favour of the lessee for such compensation.After considering the effect on tacit hypothecs, of a certain Act, the Courtconsidered the question even on the footing that the tacit hypothec
2 (1911) W. L. D. S8.
(1925) A . D. 536.
3 13 S. C. 169.
CHOKSY A.J.—AUes v. Krishnan
169
continued in favour of the tenant despite the Act. The Court held thatmerely because the tenant had a tacit hypothec it would not follow that thetenant lost her personal right of action against the landlord with whom shehad entered into the original contract of lease, and who consented to thematerials being annexed before he parted with the ownership of the pro-perty and who during the subsistence of the tenancy had prohibited theremoval. That personal right, it was held, she still enjoyed, whateverreal rights she might retain in respect of the land itself. It may be thatthe landlord would have had a good defence if he had proved that, after heceased to be the owner, and before the termination of the tenancy, thetenant had negligently failed to remove the materials, but that defencecould not have been raised in that case as he had prohibited the removal.On the evidence it was clear that when the tenancy expired the defendantstill regarded himself, and was regarded by tbe plaintiff, as the landlord.He gave notice to quit, he received the rents and he prohibited the removalof the materials. Buchanan A. J. said that it did not lie in the defendant’smouth to set up a transfer as, to the very end, he acted as the landlordbetween the plaintiff and himself and that it would not be equitable toallow the defendant to shelter himself behind the transfer. It was pointedout that the plaintiff’s position was further strengthened by the fact thatalthough the defendant parted with the ownership he still retained anusufructuary interest in the land.
It would be observed that there was a legal nexus between the land-lord (the defendant’s father) and his vendee, who could be said to havebought the property subject to all claims against the former owner.Nevertheless, the Court held that although the tenant may have real rightsas against the owner of the land by virtue of the transfer of the legal estatein it by her landlord to the purchaser, she still had her personal claimsagainst the former owner, her father. In the present case there is nolegal nexus between AUes, the defendant, and either his mother or thesecond defendant as neither of these two got title through Alles butindependently of him ; also, there was no consent or acquiescence bythe real owner to any of the improvements all of which were effected onthe footing that, as between the plaintiffs and the defendant, thedefendant was the owner of the demised premises.
There are local cases in our own law reports, in addition to the case ofde Silva v. Perusinghe 1 which was cited to the learned District Judge,which have a bearing on the questions before us. That case mainly dealtwith the classes of persons entitled to the jus retentionis—a question whichdoes not arise in this case.
In Soysa v. Mohideen 2 a bench of three Judges held that a lessee ofone of the fiduciaries who had agreed to pay at the termination of thelease half the value of such improvements as the lessee may effect, was notentitled to claim compensation for those improvements as against thefideicommissaiies. The reason for the decision was that the fideicommis-sary claims on a title independent of the fiduciary. Lascclles C.J. ex-plained that in the earlier case of JMuttiah v. Clements 3 and M'tuMcunse v. 1
1 (1939) 14 G. L. W. 137.s (1914) 17 N. L. R. 279.■
3 (1900) 4 N. L. R. 158.
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CHOKSY A.J.—Alles v. ICrishnan
SeUandayar 1 lessees -were granted compensation as against the successorsto the original lessors in view of the contractual relation between thesesuccessors in title, against whom compensation was claimed, and theirpredecessors in title, namely, the persons with whose permission improve-ments had been effected. De Sampayo J. further explains that Clementswas granted compensation against the trustee appointed under theBuddhist Temporalities Ordinance, even though Clements had effected im-provements under an informal lease taken from the incumbent, whoserights ceased upon the appointment of a trustee under the Buddhist Tem-poralities Ordinance, because the trustee appointed under the Ordinancehad, after his appointment, himself consented to Clements improving theproperty. X)e Sampayo J. also observes that in Clements’ case the in-cumbent was in law competent to deal with that temple property at thetime he executed the informal lease. In the present case there is noevidence that either the defendant’s mother or the second defendantapproved of the improvements ; indeed all the evidence is to the contrary.Moreover, Alles the defendant was in no sense legally competent to dealwith the property he rented, as was the case with th e incumbent in Clements ’ease. De Sampayo J. refers to Scrooby v. Gordon & Co. Ltd. (supra) andMudianse v. Sellandayar (supra) and shows that both decisions are capa-ble of explanation on the footing that a successor-in-title to the lessor,such as a purchaser from him, becomes entitled to the rights and liable tothe obligations of the lessor. That of course would be in a case where the 'lessor is himself the vendor so as to make the purchaser a legal successor-in-title to the lessor. The position in the present case is entirely differentas neither the defendant’s mother nor the second defendant were privies orsuccessors of Alles the landlord so as to saddle either the mother or thesecond defendant with the legal liability to compensate the plaintiffs forthe improvements. Lascelles C.J. states that a lessee’s rights to compen-sation are derived from considerations wholly different to those applicableto “bona fide possessors ” as lessees do not come within the category ofeither “ bona fide possessors ” or “ mala fide possessors ” as those termsare understood in the context of claims to compensation for improvements.De Sampayo J. makes it clear that a lessee’s right to compensation is aright resulting from, contract, which cannot be enforced as against a personwho is not a party to the contract. Applying that basis to the present caseneither the defendant’s mother nor the second defendant nor the subsequentpurchaser from the second defendant were parties to the contract betweenAlles the defendant and the plaintiffs, nor were they in any sense of theterm successors-in-title to Alles so as to be bound by any obligations ofAlles. In these circumstances the plaintiffs could not make their claim tocompensation against any party other than Alles who alone was the othercontracting party.
Lebbe v. Christie 2 was a case where a Kandyan widow leased (withoutthe Court’s sanction) a land belonging to her husband over which she hadonly a life interest. That lease was accordingly not operative beyond theperiod of her life and could not bind her children by her deceased husband.Her lessee was therefore held not to be entitled to compensation for im-provements as against the child of the widow by her deceased husband.
(1907) 10 N. L. R. 209.
2 (1915) 18 N. L. R. 353.
OHOKST A.J.—Allea v. Kriahnan
161
TCnnis J., who dissented from the view of Wood Renton C. J. and Shaw J.,held that a distinction should be made between the case of a lessee who hadnot been allowed to possess for the full terms of the lease and a lessee whohad possessed for the full term. But he too referred to the right of a lesseeto compensation as a right accorded to him as a matter of contract, andthen went on to state the equitable considerations applicable to a casewhere the lessee’s term of possession was cut short and what the compen-sation should be in such a case. In his view Soysa v. Mohideen (supra) de-cided that whatever rights a lessee might have against his lessor, the lesseehad no right to claim compensation against a party who derived titlefrom a source other than the lessor, in the absence of an assignment bythe lessor to the lessee of any rights that the lessor'may have to claimthe benefit of the lessee’s improvements as against the party ultimatelyentitled to the land. Shaw J. explained that the doctrine of enrich-ment was limited to compensating a person who is in possession of an-other’s property, bona fide, and in the belief—based on reasonablegrounds—that it is his own. That invests his possession with thecharacter implied in the expression “ bona fide possession ” and attachesan equity in his favour. Were the doctrine not so limited it wouldappear to be unjust to an owner of land that he should be called uponto pay compensation to any and every person who may have effectedso-called improvements on his property without any reference to himand without even so much as his acquiescence. I have already madeit clear that the limited right of a lessee to claim compensation for im-provements is not based on the character of his “ possession ” which isneither bona fide nor mala fide, but on contract. The plaintiffs in thepresent case therefore cannot be referred to the second defendant orhis successors on the principle that the latter should not be enrichedat the expense of the plaintiffs. Those parties had nothing to do with thecontract (express or implied) on which improvements were effected, norhave the plaintiffs that “ bona fide ” possession which would have entitledthem to claim compensation against the true owner on the doctrine ofenrichment.
Bertram C.J. who discussed this question of a lessee’s right to compen-sation in his judgment more fully in the Doloswella case—23 N. L. R. 129and 25 N. L. R. 267—does not reach a contrary conclusion, in view of thetwo cases of Soysa v. Mohideen (supra) and Lebbev. Christie (supra).Garvin J. observed that no authority had been cited to show that anaction, apart from contract, was allowed to a lessee (in respect of his claimfor compensation for improvements) as against a person who established aclaim to the land by a title adverse to and independent of the lessor.
Appuhamy v. Silva 1 is a case where the purchaser’from the owner ofthe land during whose ownership the improvements had been effected bythe monthly tenant, was held liable to pay compensation to the tenanton the footing that the purchaser was the legal successor-in-title to theformer owner during whose time the improvements had been effected.
{1891) 1 S. G. R. 71.
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CHOKSY A.J.—AUea v. Kriahnan
Consistently with this position Ennis and De Sampayo JJ. held in Mendisv. Dawood 1 that the fideicommissaries were not bound by the agreementfor compensation entered into between some of the fiduciaries and theperson who had erected buildings on the land in pursuance of that agree-ment with those fiduciaries. One of the grounds of the decision was thatthe fideicommissaries were not the successors to any of the parties to thatagreement, as they derived their title from the will which created thefidei commissum and not by succession to the fiduciaries who were partiesto the agreement.
Dharmadasa v. Marikkar2 decided that a lessee (or assignee) cannotclaim compensation for improvements effected in terms of his lease,against a person who establishes a superior right to the land than that ofhis lessor. No fidei commissum was involved in the case as the personswho claimed to be entitled to possession of the land free of any claims tocompensation were the children of a Kandyan by his mistress the latterof whom had executed the lease in question during the time when thechildren were minors. The decisions in Soysa v. Mohideen {supra),Lebbe v. Christie {supra) and Appuhwmy v. The Doloswela Tea & RubberCo. Ltd., were applied. Fernando v. Menchohamy3 was also a casewhere the principle that a lessee is not entitled to compensation asagainst the real owner who vindicates his title as against the lessor,was reaffirmed.
Finally in De Silva v. Perusinghe4, Soertsz A.C.J., with whom DeKretser J. agreed, had to consider a claim for compensation for necessaryimprovements effected by a tenant with the landlord’s consent. TheActing Chief Justice compares and contrasts the position of improvingtenants with bona fide and mala fide possessors who effect improvements,and states that a lessee’s or tenant’s position is equiparated to that of abona fide or mala fide improver according as to whether he has improvedthe property with or without the consent of the landlord, and pointsout that whatever controversy there may be amongst the Roman-DutchLaw writers on the question whether a lessee or tenant is entitled toclaim compensation from any party seeking to recover possession fromhim, or only from his lessor or landlord, the matter had been set at restso far as Ceylon is concerned by the two divisional bench decisions inSoysa v. Mohideen {supra) and Lebbe v. Christie {supra). In the casebefore him the plaintiffs were entitled to the property in question byright of inheritance from their father, a Kandyan. The property wasacquired property and so the plaintiffs’ mother was entitled to enjoythe income from it in order to maintain herself during her life. Duringthe period of that right the defendant entered into occupation of thepremises which he improved. Those improvements had been effected■without the consent of the plaintiffs’ mother. According to the viewtaken in South Africa the defendant’s position there was similar to thatof a negotiorum gestor and he would be compensated quasi-ex-contractu ;but as between the plaintiffs and the defendant there was no contractwhatsoever, express or implied or constructive. The plaintiffs got their
(1920) 22 N. L. R. 115.(1926) 7 O. L. Rec. 117.
(1929) 10 O. L. Rec. 124.(1939) 18 C. L. Rec. 206.
CHOKSY A.J.—Alles v. Kriahnan
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title quite independently of their mother and therefore it was held thatthe defendant could not claim compensation as against the plaintiffs,whose source of title was by inheritance from their father.
Despite the variety of facts and eircumstancea in the cases X havereferred, to, the principle that appears to emerge from them is that alessee or tenant cannot claim compensation for improvements effectedwith the consent or acquiescence of the landlord from a person who doesnot claim through the landlord but independently of him. In thepresent case there cannot be any question but that the title of the seconddefendant was quite independent of and not at all derived from thedefendant Alles and therefore the plaintiffs could'not have claimedany compensation for their improvements from the second defendantwhose predecessor-in-title, the first defendant’s mother, also had nothingto do with the improvements and neither of whom were bound by anyagreement express or implied between the plaintiffs and the firstdefendant. Both of them were perfect strangers to and had nothingto do with the plaintiffs and neither of them were bound by any acts orconduct of the first defendant. The plaintiffs were therefore in myopinion right in making their claim to compensation for improvementsas against the first defendant.
It was argued that in any event a lessee or tenant can claim com-pensation only at the termination of the tenancy and upon his quittingthe premises. It was said that here the plaintiffs were still in occupationof the premises at the date of this action and therefore not entitled toclaim compensation. But there is evidence that the plaintiffs attornedto the second defendant who thereafter continued to receive rent fromthe plaintiffs. I am of the view that upon the attornment the tenancythat existed between the plaintiffs and the first defendant terminated.One may even say that there was a notional vacation of the premisesas far as the first defendant was concerned, and a resumption of possessionunder a new tenancy as between the plaintiffs and the second defendant.I would accept the view of Basnayake J. in Samsudeen v. Rahim 1,where it was held that the status of landlord and tenant that existedbetween the vendor, who was the landlord, and the defendant, who wasthe tenant, terminated by the notice which the landlord had sent to thedefendant upon his selling the premises, and that that result was broughtabout even though the defendant ignored the notices he received fromboth the landlord and the purchaser. That a new tenancy comes intoexistence upon the attornment is also apparent from the judgment ofGratiaen J. in the case of Justin Fernando v. Abdul Raha/man s.
The conclusion I have arrived at is that the plaintiffs were correctlyawarded compensation as against the first defendant and the appealshould therefore be dismissed with costs.
Pttlle J.—I agree.
Appeal dismissed.
(1948) 37 C. L. W. 3.
(1951) 52 27. L. It. 462.