027-NLR-NLR-V-28-ANNIE-TILLEKERATNE-et-al-v.-COOMARASINGHAM.pdf
( 186 )
1926.
Present: Jayewardene A.J.
ANNIE TILLEKERATNE et al. v. OOOMARASINGHAM.
131—C. Pi. Colombo, 21,740.
Tenancy—Loss of landlord's title—Action for recovery of rent—Estoppel—Eviction by title paramount—Section 116 ofOrdinance
No. 14 of 1696.
In an action for recovery of rent, the tenant may plead evictionby title paramount, subsequent to the commencement of tenancy.Eviction may be constructive or symbolic.
A
PPEAL from a judgment of the Commissioner of Requests,.Colombo.
Wcerasooriya (with Chelvanayagain), for appellant.
H. V. Perera (with Ameresehere), for respondent.
August 26, 1926. Jayewabdexe A.J.—
This is an action between landlord and tenant. The landlordsued for rent, and the tenant replies in effect that he has beenevicted by title paramount, and that on such eviction his liability
( 187 )
-to pay rent ceased. The facts of the case are not in dispute. 1926.The plaintiffs, who are the landlords, were at one time the owners Jaybvah■•of the premises in question. They were sold for arrears of rates dene A.J.in 1916, and purchased by the Colombo Municipal Council. A Anniecertificate of purchase in form H under section 146 of the TtilekeratnrMunicipal Councils Ordinance, 1910, was signed by the Chairman *in 1919. On the issue of such a certificate the property sold vestsabsolutely in the Council free from all incumbrances, and it is madeconclusive evidence of the title of the Council to the propertyunder that section. In 1920 the Council leased the premises, andits tenant occupied them till he was noticed to quit. Thereafterthe plaintiffs entered into possession, and off November 1, 1924,let the premises to the defendant ; and on November 14, 1924,the Council sold the right to recover the rents for ten years to•one Don Juanis. The 1st defendant, in his evidence, states thatthe Council’s lessee wanted the rent from him and threatenedto sue him. He communicated with the Municipality and paidJuanis the rent. The latter says that he threatened to eject•defendant unless he paid rent to him. The issues framed at thetrial do not bring out the real question for decision in the case.
On those issues the judgment of the learned Commissioner Isclearly right. The real question is somewhat obscurely indicatedin the petition of appeal, that is, that the defendant can plead asan answer to the landlord’s claim for rent that the landlord’stitle had been superseded at the beginning of the tenancy by atitle paramount, and that he, the tenant, had been evicted by theagent or lessee of the holder of that title. This is the questionwhich- I invited Counsel to discuss at the argument before me.
Now section 116 of the Evidence Ordinance declares that—
“ No tenant of immovable property, or person claiming throughsuch tenant, shall, during the continuance of the tenancy,be permitted to deny that the landlord of such tenanthad, at the beginning of the tenancy, a title to suchimmovable property ;….
This section gives legislative recognition to a principle of thelaw of estoppel which has long prevailed in England and in Ceylon,where, from the very earliest times, the English rules of evidencehave been observed. This section is identical with section 116of the Indian Evidence Act. It has, however, always been opento a tenant to show that the landlord’s rights had expired, or thathe had been evicted by title paramount vested in a third partyduring the pendency of the tenancy. As regards the paramount•title, it is not necessary that it should come into existence afterthe creation of the tenancy. It might have existed before, butthe eviction under it must take place during the tenancy, and
( 188 )
1926.
Jayewar-DBNE A.J.
before the rent claimed became clue. The effect of the Englishauthorities on this point is thus stated in Spencer Bower’s Estoppelby Representation (Ch. VIII., section 3, sub-section (8), p. 267): —
AnnieTiUekeratnev. Coomara-singham
“If it is right that a tenant should be at liberty to set up thathis landlord's title expired by death or effluxion of timesubsequently to the creation of the tenancy by theestoppel, it is a fortion just, and it has accordingly alwaysbeen held, that where subsequently to the original-estoppel the tenant is evicted by title paramount vestedin a third person, he should be allowed to establish thisfact and use it for the purpose of extinguishing completelyany right to estoppel which the landlord might previouslyhave enjoyed ; for it is here a case, not of the mere (so tospeak) innocent determination of the landlord’s estate,but of the dispossession of the tenant, and the destructionof his rights, contrary to the implied representation ofthe landlord at the time of the demise that he (the tenant)could safely accept the tenancy. ”
See also Everest and Strode’s Law of Estoppel, p. 227 (2nd Ed).The same rule applies under the Indian Evidence Act. (LodaiMollah v. Kally Dass Roy,1 Usman Koja v.^Akora2) In an Americancase referred to in Bigelow on Estoppel p. 563, a learned ChiefJustice of the United States observed that “ the general doctrineof estoppel upon a tenant was not inconsistent with anotherrule, that where there is an eviction or ouster of the lessee bytitle paramount which he cannot resist, it is a good bar to thedemand for rent, on the plain ground of equity, that the enjoymentof the estate is the consideration for the covenant to pay rent,and when the lessee is deprived of the benefit, he cannot be heldto pay the compensation. It is not enough that a third party hasa paramount title ; but to excuse the payment of rent the tenantmust have been evicted or ousted under that title. ” In the localcase of Cader v. Hamidu 2 Garvin J. said: —
“It is sound law that a lessee cannot refuse to pay rent on theground that the lessor had no title to the premises leasedat the date of the. lease. It is equally good law, however,that he may prove that since the tenancy commencedthe landlord’s title has expired and that he has beenevicted by title paramount.”
In that case the title paramount, which was a title under apartition decree, came into existence after the creation of thetenancy. Nothing, however, turned on that fact.
a {1904) 15 Mad. L. J. R. 368.
a {1923) 23 N. L. R. 91.
1 {1881) 8 Cal. 238 (241).
( 189 )
The title of the Municipal Council to the premises in questionin this case is clearly a title paramount. The certificate of salevests the property in the Council free of all incumbrances, and isconclusive evidence of the title of the Council to the propertypurchased as shown above. It stands in the same position as afinal decree in a partition action, and vests the property absolutelyin the Council. What is sold on the failure to pay rates is notthe right, title, and interest of the person liable to pay the ratesbut the property itself in respect of which rates are due.
The next question is, has there been an eviction by a personclaiming under a title paramount ? The eviction alleged here isby the lessee, or agent, of the party in whom' the paramount titleis vested. The same rule must apply whether the eviction isby the paramount owner, or his agent. Earlier in this judgmentI have stated what passed between the defendant and the Council'slessee before the defendant agreed to pay rent to the latter. Whatthen happened amounts to a sufficient eviction in law. Actualphysical dispossession is not necessary, but the eviction may beconstructive or symbolic. A threat of eviction is Sufficient, andif the tenant in consequence of such threat attorns to the claimant,he can set this up as or by way of defence to an action for rent,subject to his proving his evictor's title. This is exactly whathappened in the case, and the defendant has proved the evictor'stitle (15 Halsbury’s Laws of England, p. 480, s. 961; SpencerBower's Estoppel by Representation, pp, 267-8; Cader v. Hatnidu(supra) ).
The defendant has, therefore, been evicted by a person claimingunder a title paramount, and by such eviction the contract oftenancy between himself and the plaintiff terminated and he isnot liable to pay the rent claimed. The judgment appealed frommust be set aside and the action dismissed, with costs in bothCourts.
1926.
Jayewar-DENE AJ.
AnnieTittekeratnev. Coomara-eingham
Appeal allowed.