010-NLR-NLR-V-80-ARIYANDHI-Appellant-and-MOHAMED-SIDEEK-Respondent.pdf
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Present: Samarawickrema, J., Weeraratne, J.and Sharvananda, J.
ARIYANANDHI, Appellant and MOHAMED SIDEEK, Respondent.
S.C. 520/69 (F) – D. C. GALLE L 7595
Landlord and Tenant – Death of tenant – Does it terminate tenancy.
When a monthly tenant dies in the course of the month and notice of termination hasnot been given the contract of tenancy will not terminate at the end of the month but willcontinue between the lessor and the legal representative or heir of the tenant.
Appeal from a judgment of the District Court of Galle.
J. W. Subasinghe for defendant-appellant.
A. Mampitiya for plaintiff-respondent.
Cur. adv. vult.
June 26, 1975, SAMARAWICKREMA, J-
The plaintiff filed this action for a declaration of title to premises No. 75,Sea Street, Galle, for ejectment of the defendant from the said premises andfor damages at the rate of Rs. 30/- per month from 3.5.66 until restoration ofpossession.
One Amaradasa had been the owner of the premises and Lucihamy was inoccupation of it as his tenant. In April 1964, Amaradasa sold and conveyedthe premises to the plaintiff for a consideration provided by A. M. N. Sideek,the father of the plaintiff. The plaintiff was at the time a student in the H.S.C.class.
The plaintiff’s case was that Mr. A. H. Jamaldeen, the Notary whoattested the deed of conveyance in his favour wrote to Lucihamy informingher of the transfer by Amaradasa to the plaintiff: that Lucihamy came oneday to Jamaldeen’s office and plaintiff also came there and that Lucihamyagreed to accept the plaintiff as landlord and to pay rent to him. Rents werepaid by Lucihamy in the shop of the plaintiff’s father and receipts have beensigned by the plaintiff’s brother. The plaintiff further averred that Lucihamydied on the 3rd May, 1966 and the defendant, who is the daughter ofLucihamy, refused to vacate the premises and is in unlawful occupation of it.
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The defendant’s case was that after the transfer by Amaradasa to'thePlaintiff, Amaradasa and A. M. M. Sideek came to the premises andAmaradasa indicated that rents should thereafter be paid to A. M. M. Sideek.Lucihamy paid rents at the shop of A. M. M. Sideek. The defendant furtherstated that when Lucihamy died she told A. M. M. Sideek that she would bepaying the rent thereafter and that A. M. M. Sideek acquiesced and agreedbut later put off accepting the rent. In January 1967, as Sideek refused toaccept money, she deposited it with the Rent Control Board. After that shehad regularly made deposits at the Rent Control Board up to May, 1969. InJuly, 1968 the defendant made an application to the Rent Control Board withregard to a latrine to the premises. At the inquiry at which she wasunrepresented the lawyer appearing for A. M. M. Sideek produced the deedof transfer and stated that he was not the owner.
On the question whether the landlord was A. M. M. Sideek, the plaintiff’sfather or the plaintiff, the learned District Judge states, “It is clear that theplaintiff has bought these premises in his name and if that was so, there wasno reason why his father should be the landlord when ordinarily it is theowner who becomes the landlord. I, therefore, do not accept the position ofthe defendant when she said that she was the tenant of Sideek Mudalali.”Later in his judgment, he said: – “It is difficult to believe that Lucihamy wasthe tenant of the father of the plaintiff.” The learned district judgeapparently thought it improbable that a person who buys property with hisown money in the name of his son who is a H.S.C. student would let out theproperty himself. He found it difficult to believe that such a thing couldhappen. It appears to me that it is more probable that in such circumstancesthe father would let out the premises and act as landlord than that the H.S.C.student would do so. In point of fact the plaintiff admitted that his fatherlooked after his property though he qualified it by saying that he did so whenhe was not there-
“Q: Sometimes your father also looked after the property?
A: Yes, if I am not there. I had complete confidence in my father in the way
he managed the property on my behalf.”
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The rent was paid at the father’s shop and receipts have been signed by theplaintiff’s brother who was at the counter there. The plaintiff at that timemust have been in the classroom doing his studies. In the counterfoil of onereceipt (P7) dated 3.11.65, the words “for M. A. M. Sideek” appear belowthe signature. In an earlier receipt (DI) of 29th September, 1965, thecounterfoil of which is the document P6, the frank of A. M. M. Sideek is. placed on the stamp. The other receipts and counterfoil bear indecipherablesignatures but the plaintiff’is brother who gave evidence stated that it was hissignature.
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It appears to me that the learned District Judge’s approach to the evidenceis vitiated by the fact that he went on the basis that it was improbable anddifficult to believe that plaintiff’s father who had purchased the premises inthe name of his student son with his own money was the landlord. This basisis in my opinion incorrect and erroneous. It appears to me that it is quiteprobable that A. M. M. Sideek was the landlord and that Lucihamy paid rentsat his shop to him. The plaintiff stated in evidence, “Lucihamy died on3.5.66. Thereafter the tenancy terminated on her death. The defendantoccupied these premises forcibly”. If this was in fact the position, it isdifficult to understand why the plaintiff waited till November, 1968 to fileaction. From the 1st of January, 1967 the defendant was depositing rent withthe Rent Control Board, and continued to be in occupation of the premises.On 11th July, 1968 she made the application to the Rent Control Board inrespect of the latrine for these premises. The order of the Rent Control Boardwas made on the 13th August, 1968. It would appear that in September theplaintiff applied to the Conciliation Board with a view to filing action. Headmitted in evidence that at the Conciliation Board he stated that he wantedthe house for the purpose of effecting renovation. The plaintiff stated inevidence that he did not know that the defendant had made an application tothe Rent Control Board and that at no time did his father tell him that he hadto attend an inquiry at the Rent Control Board in connection with thesepremises.
This last item of evidence is hardly credible on the footing that theplaintiff at all times was the landlord and acted as landlord. The evidencemay however well be true and it suggests that it was the plaintiff’s fatherwho was dealing with all matters connected with the tenancy of thesepremises and he did not even care to keep his son informed of what occurred.The plaintiff did not even know that his list of documents included a certifiedcopy of the application to the Rent Control Board. Even in regard to theconduct of this action, instructions appear to have been given by someoneother than the plaintiff and in the circumstances in all probability by theplaintiff’s father.
The learned District Judge had placed much reliance on the evidenceof Mr. Jamaldeen who is a Proctor practising in his Court. It is not, however,possible to consider that Mr. Jamaldeen’s evidence is without infirmities.He stated that he realised the significance of the letter he sent to Lucihamyand he sent it by registered post. Though he made a search he was unableto trace the registered postal article receipt. As he was not a civil practitioner,he did not maintain a separate book in which he made entries of registeredletters sent by him. A carbon copy of the letters sent by him did not bearthe word “registered” and he said it was not his practice to put the
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word ‘registered’ on his letters. Finally, he said it may have been sent byexpress post. A question put to him and the answer given by him was asfollows:-
Q: There is nothing to prove that this letter had been sent under registeredpost?
A: As I was in a hurry I have on an oversight not made an entry. It is notnecessary to write the word “registered”. It is now five years and Icould not trace the receipts. It may have been an express letter.
He stated that the plaintiff is a nephew of his as he happened to be hisyounger sister-in-law’s son. It appears to me that the learned District Judgehas given too much weight to his evidence.
For some reason which is not apparent, probably because of somedifficulty of proof, the defendant was forced to call the plaintiff’s father as awitness. Plaintiff’s father was the alter ego of the plaintiff or it may even bemore correctly stated that he was the principal actor and his son played aminor role.
The learned District Judge, however, did not accept the evidence of thedefendant because it was contrary to that of her own witness, the plaintiff’sfather. I do not think that this was a correct approach to the matter.
I am of the view that it has been established on the probabilities that
M. M. Sideek was the landlord and Lucihamy was his tenant at the timeof her death.
In the event of the death of a tenant, Section 18(2) of the Rent RestrictionAct, Chapter 274 as amended by Act No. 10 of 1967 provides:-
“any person who-
is the surviving spouse or the child, parent, brother or sister ofthe deceased tenant in premises, or was a dependent of thedeceased tenant of the premises immediately prior to his death;and
was a member of the household of the deceased tenant (whetherin those premises or in any other premises) during the whole ofthe period of three months preceding his death.
. shall be entitled to give written notice to the landlord before expiry oftwo months after the last day of the month succeeding that in which the
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death occurred to the effect, that he proposed to continue in occupationof the premises as tenant thereof and upon such written notice beinggiven such person shall, subject to any order of the Board ashereinafter provided, be deemed for the purpose of the Act to be thetenant of the premises with effect from the 1st day of the monthsucceeding the month in which the death occurred, and the provisionsof the Act shall apply accordingly”.
Learned Counsel for the appellant submitted that the defendant was aperson who was entitled to give notice in terms of this provision. In giving.evidence the defendant stated, “I know the premises in suit. I have stayed inthat house for 36 years”. As however there was no express evidence as towhether she was a member of the household or not, Court gave the appellantan opportunity to submit documentary evidence with notice to counsel forthe respondent. The defendant has submitted an affidavit to which is annexedcertified copies of the householder’s lists for the years 1964 and 1965 signedby Lucihamy and a certified copy of the householder’s list for the year 1966signed by her husband on 10th May, 1966 after the death of Lucihamy, in allof which the defendant’s name appears as an occupant of these premises.There is also annexed a certificate from the Chairman of the Authorised Rice
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Ration Dealers Society, Galle, stating that he has supplied rice and otherrations up to 1966 to Lucihamy and the defendant and the other occupantsof these premises whose names are given on the householder’s list andthat from May, 1966 to 1973 he has supplied provisions to H. R Piyadasa,the husband of the defendant, the defendant and their children. Therealso appears a certified extract from the electoral list for the years 1964,1965 and 1966 in which the name of the defendant appears as living inthese premises. It has, therefore, been established beyond doubt thatthe defendant is a person who was entitled under Section 18(2) to givenotice to the landlord that she proposed to continue in occupation as tenant.She has however, not given written notice as required by that provision.The learned District Judge has followed the decision in Abdul Hafeelv. Muttu Bathool and held that as there was no written notice and no
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fresh contract of tenancy, the defendant was not entitled to occupy thepremises.
In Abdul Hafeel v. Muttu Bathool, Basnayake, C.J. held that by reasonof the death on the 6th March, 1951 of one Cader who was a monthly tenantthe contract of tenancy terminated on 31st March, 1951. With respect I donot think that that decision is correct. It is a general rule of our common law
(1957)58 N.L.R. 409.
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that contracts bind the personal representative of the parties. Wessels Vol. I.P.488 section 1655 has the following:-
“As a general rule contracts cannot bind a person who is not a party toit – res inter alias acta aliis necoocet nec prodest (Third parties can beneither injured nor benefited by the acts of parties) but according to ourlaw a personal representative of a party to a contract is as much boundby the contract as the original party (C.8.38.13).
In respect of a contract of letting and hiring, Voet 19.2.14 states;-
“From this contract springs a two-fold action, namely on letting andthat on hiring. The action on a hiring is a personal bona fide actionwhich is granted to the lessee and to his heir against the lessor andagainst his heir”.
Grotius 3-19-16 states:
“It may be collected from the general law of contracts, that the right ofletting and hiring and of entry and ouster, remains in and goes to theheirs of the lessor and lessee”.
Van Leeuwan’s Roman Dutch Law 4-21 Kotze Vol. II p. 173 says:-
“If the tenant or lessor dies during the continuance of the lease, hisheirs must carry out the contract”.
Nathan, Common Law of South Africa Vol. II, p. 829, section 980 states:-
“The remedy which lies in favour of the lessee is known as the actioconducti (action of hiring). It is a personal remedy, and lies in favourof the lessee, his heir or legal representative, against the lessor, his heir. or legal representative. It claims as against a lessor of property that heshall give the plaintiff the use of such property, together with all suchthings as conducive to the use thereof’.
IIt appears to me therefore that the statement at page 102 of Lee andHonore’s Law of Obligations which Basnayake, C.J. did not find possible toaccept is correct. The passage at Lee and Honore’s is as follows:-
“389. Effect of death of parties. In the absence of agreement to thecontrary, the rights and duties of the lessor and of the lessee are(normally) transmitted on death to their representatives; but a leaseexpressed to be at the will of either party is determined by that party’sdeath”.
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As stated in the above passage the exception to the rule that rights andduties are transmitted on death is where a lease is expressed to be at the willof either party, While, Landlord and Tenant, 4th Ed. P. 44 sets out what sucha lease is:-
Lease at will of the landlord – A lease may be agreed to be at the willof the landlord in which the landlord may terminate the lease at anytime he pleased without giving any previous notice to the tenant. Sucha lease, or tenancy “at will”, also terminate ipso jure on the death ofthe landlord.
“Lease at will of the tenant – A lease may be validly made for as longas the tenant pleases. In such a case it is the tenant who has the right ofchoosing when to terminate the lease, and the landlord is not entitled toterminate it by giving notice”.
These two forms of leases are different to a monthly tenancy which maybe terminated by either party by reasonable notice which with us has beenheld to be a calendar month’s notice.
By a contract of letting and hiring (Lacatio conductio) is understood atransaction by which one party binds himself to let the other party have theuse of a certain thing for a certain time in consideration of a certain rentwhich the other party binds himself to pay to him, vide van Der Linden:Institutes of Holland (Juta’s translation) p. 141. The letting had to be for atime for if it was in perpetuity, it would be emphyteusis or usufruct orsomething else. But the time need not necessarily be fixed in terms of years,months or days. Kensdorp: Institute of Cape Law, Vol. HI, p. 208, states:-
“The term of the lease may, in a similar way, be either a period definedin the contract or one which may become defined later on by referenceto some subsequent occurrence such as the giving of a certain notice byone or other of the parties or by the happening of some other eventwhich may possibly be beyond the control of either.”
Grotius 3 – 19-8-9 (Herbets Translation) are:-
Sec. VIII – The letting cannot be effected otherwise than for a time,for otherwise it would be an usufruct, or something else,but, if the time had been mentioned, it would, in casesof land, be understood for one year. In case of a houseuntil the one or the other should renounce the hiring;which nevertheless, must take place at a proper time, sothat the lessor may have the opportunity of letting hishouse, and the lessee of providing himself with anotherhouse.
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Sec. II But a person may also let for as long as he pleaseswhich letting is understood to expire by death, althoughother lettings, in which time is fixed, are valid after thedeath of the lessee, and go over to his heirs.
In Abdul Hafeel v. Muttu Bathool, Basnayake, C.J. said –
“The term fixed in a monthly tenancy is the end of the month.” Withrespect I agree but subject to the qualification that where notice oftermination is not given, the lease will not expire at the end of themonth but will continue for a further period. Accordingly, where amonthly tenant dies in the course of the month and notice oftermination has not been given, the contract of tenancy will not in myopinion, terminate at the end of the month but be continued betweenthe lessor and the legal representative or heir of the tenant. In M. I. S.Fernando v. H. M. de Silva,'1 Manicavasagar, J. held that the death ofthe landlord does not terminate a contract of monthly tenancy and thathis rights and obligations pass to his heirs. The reasoning and basis forhis decision, however, are in some respects different to what I have setout above.
I am, therefore, of the view that on the facts and circumstances of thiscase the contract of tenancy did not end at the death of Lucihamy on 3rdMay, 1966 but that in the absence of any notice of termination it continued inforce: accordingly the defendant’s occupation thereafter was justifiedparticularly as she offered to pay rent to the landlord A. M. M. Sideek, and,on his refusal to accept, deposited it with the Municipal Council. Though theplaintiff was a minor at the time when his father A. M. M. Sideek first let outthe premises to Lucihamy, he had become a major by the time of her deathand he had at all times acquiesced in and consented to the letting of thepremises by his father; there are no differences between him and his father.In the circumstances, the plaintiff is bound by the letting made by A. M. M.Sideek and must abide by it and hold the premises subject to it. It followsthat his allegation that the defendant was in wrongful and unlawfuloccupation since the date of the death of Lucihamy is unjustified and hisaction for a declaration of title necessarily fails.
Even if the defendant has no right of claim to occupy the premises underthe contract of tenancy and was only entitled to give notice under section 18of the Rent Restriction Act (Cap. 274) as, for example, if she were a
1 (1966) 69 N.L.R. 164.
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dependant of Lucihamy and, in no wise an heir who was a member of herhousehold for the relevant period, yet the plaintiff’s action fails by reason ofthe operation of section 47 of the Rent Act No. 7 of 1972. The relevant partof that provision reads:-
“Notwithstanding anything in the Rent Restriction Act (Chapter 274)or in any other law –
(a) any action or proceedings instituted in a court before the date ofcommencement of this Act –
(not relevant)
(not relevant)
for the ejectment from any residential premises of anyperson entitled under section 18 of the Rent Restriction Act(Chapter 274), to give notice to the landlord thereof to theeffect that he proposes to continue in occupation of thepremises as tenant thereof
shall, if such action or proceedings is or are pending on the date ofcommencement of this Act, be deemed at all times to have beenand to be null and void;
Accordingly I allow the appeal, set aside the judgment and decree of theDistrict Court and direct that order be entered dismissing plaintiff’s action.The defendant-appellant will be entitled to her costs in both Courts.
Weeraratne, J. -1 agree.
Sharvananda, J. -1 agree.
Appeal allowed.