ASOKAN v. PALANIVELU

039-SLLR-SLLR-1981-1-ASOKAN-v.-PALANIVELU.pdf


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ASOKAN
v.
PALANIVELU
SUPREME COURT
ISMAIL, J., WANASUNDERA. J. ANDRATWATTE, ).
S.C. APPEAL NO. 52/81
A. APPEAL NO. 269/80 (F)
C. COLOMBO CASE NO. 3228/RENOVEMBER 9, 10 and 12,1981.
Landlord and tenant — Tenancy — Succession – S. 36 of Rent Act — Non-joinder- Sub-tenancy – Right to carry on business.
One Palanivelu was the Owner and proprietor of the eating-house business of AsokaLodge which he ran at premises No. J69 Sea Street as the tenant of one Ameen.Palanivelu by Agreements X2 of 15.1.1973 and X3 of 9.2.1975 entrusted the manage-ment and control of the business to defendant on a commission basis for 5 years from9.7.1975. Palanivelu paid the rents to Ameen. Palanivelu died on 35.1976 and on69.1976 his widow the plaintiff wrote to Ameen that she was continuing the tenancy.She continued to pay the rents to Ameen who however continued to issue the receiptsin the name of Palanivelu. Ameen denied receipt of notice of Palanivelu's death. Thedefendant taking up the position that he was a subtenant of Palanivelu and that X2and X3 were sham documents to avoid the provisions of the Rent Act made arrange-ments to convert the business to a jewellery business.
Held:
The plaintiff became the tenant of the premises by the operation of s. 36(2)(c)(i)of the Rent Act and it was not necessary for the plaintiff to have joined the otherheirs of Palanivelu in the action.
The defendant and Ameen acted in collusion to deprive the plaintiff of thetenancy.
The defendant was not a subtenant but only in management and control of thebusiness of which plaintiff was the lawful owner and he had no right to occupy orcarry on the business except under plaintiff.
The plaintiff was entitled to occupy the premises.
Cases referred to
Patirand v. Somalatha de Silva (1978) 79(2) NLR26S
Charles Appuhamy v. Abeysekura (1954) 56 NLR 243
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Jayasinghe v. Hussain (1955) 56 NLR 381
Andiris Appuhamy v. Kuruppu (1963) 65 NLR 21
Appeal from judgment of the Court of Appeal.
J.W. Subasinghe, Senior Attorney, with S. Sivarasa.
D.J.C. Nilanduwa and N. Chelliah for defendant – appellant – appellant.
C. Thiagalingam, Q.C., with S. Mahenthiran for plaintiff – respondent -respondent.
Cur. adv. vuit.
December 14.1981
RATWATTE, J.
The Plaintiff instituted this action against the Defendant pray-ing for the following reliefs-
for a declaration that the Plaintiff is entitled to occupypremises bearing assessment No. 169, Sea Street, Colombo11 as against the Defendant;
for a declaration that the Plaintiff is the lawful ownerand proprietor of the business of Asoka Lodge which wasbeing carried on in the said premises.
for a declaration that the Defendant has no right tooccupy and/or carry on any other business in the saidpremises except through and under and/or as the agent ofthe Plaintiff;
for interim and permanent injunctions restraining theDefendant from preventing and/or obstructing the Plain-tiff and/or her son, servants or agents from entering thesaid premises and from occupying the room in the upstairportion of the said premises and from making any struc-tural alterations in the said premises and/or in any waychanging the said nature of the said business and/or remo-ving the furniture and fittings until the final determina-tion of this action.
The'Plaintiff's case is as follows;
She is the widow of the late Thambiah Palanivelu (referred tohereinafter as Palanivelu) who died on 03.09.1976. Palanivelucarried on the business of an eating house and restaurant calledAsoka Lodge at premises bearing No. 169, Sea Street, Colombo 11.Palanivelu was the tenant of the said premises under a personnamed M. A. M. Ameen. In January 1973 Palanivelu entered into
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a written agreement with the Defendant by which Palanivelu ap-pointed the Defendant as the Manager of the said business uponthe terms and conditions set out in the agreement, a copy of whichhas been produced marked X2 (also marked D39). X2 was signedon 15.01.1973 and the appointment of the Defendant as Managerwas for a period of 3 years from 15.01.1973. On 09.07.1975 Pala-nivelu entered into a fresh agreement, X3 (also marked D40) withthe Defendant by which Palanivelu handed over the managementand control of the said business on a commission basis for a period of5 years from 09.07.1975 upon the terms and conditions set out inX3. Thereafter the Defendant paid to Palanivelu every month rightup to his death a sum of Rs. 1,200/-. After the death of Palaniveluthe Defendant paid the sum of Rs. 1,200/- per month to the Plain-tiff up to the end of December 1978. After Palanivelu died on
the Plaintiff wrote to Ameen the Landlord of thepremises on 06.09.1976 informing him of the death of Palaniveluand asking Ameen to extend to her the co-operation that he hadextended to her late husband. A carbon copy of this letter hasbeen produced marked X4, (also as P4). The Plaintiff thereaftercontinued to pay the monthly rents to Ameen, but the latter con-tinued to issue receipts in the name of Palanivelu. On 13.05.1977the Plaintiff's Attorney-at-Law wrote the letter X6 (D6) toAmeen requesting inter alia that the rent receipts be issued infavour of the Plaintiff. Ameen sent the reply X7 (D4) through hisAttorney-at-Law,. inter-aiia denying the receipt of the notice ofdeath of Palanivelu. The Plaintiff's Attorney-at-Law replied to X7by his letter X8 (P20) dated 11.07.1977. No reply was sent byAmeen to X8. The Plaintiff thereafter continued to tender everymonth the monthly rental to Ameen through her Attorney-at-Lawup to December 1978. The Plaintiff averred that the premises aregoverned by the provisions of the Rent Act. No. 7 of 1972 andthat after Palanivelu's death. Plaintiff is the tenant of the pre-mises in terms of Section 36 of the Rent Act. After Palanivelu'sdeath the Plaintiff carried on the said business at the said premisesand the Defendant continued as the Manager. The Defendantagreed with the Plaintiff in the presence of a number of others tocontinue the mangement of the busines under the Plaintiff on the• terms arid conditions set out in X3. The Defendant paid the Plain-tiff a sum of Rs. 1,200/- per month up to December 1978. ThePlaintiff averred that the .Defendant is now attempting to changethe nature of the said business, is disputing the Plaintiff's owner-ship of the business and is endeavouring to start a new jewellerybusiness and further that the Defendant has kept the premisesclosed since 14.01.1979. The premises consists of the groundfloor where the business is carried on and an upstair portion witha room which is reserved for the occupation of the proprietor.During Palanivelu's lifetime, he occupied that room. After his
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death it was reserved for occupation by the Plaintiff and herchildren whenever they came to Colombo. On 14.01.1979 theDefendant attempted to break open the said room and to makestructural alterations to the room as well as to the ground floor.The Plaintiff thereupon through her agent complained to thePolice. The Plaintiff instituted this action on 29.01.1979.
The Defendant in his answer stated that prior to 15.01.1973,Palanivelu carried on the business of an eating house and restaurantin premses No. 169, Sea Street, Colombo under the name ofChitra Cafe. He pleaded-that Palanivelu sublet the said premises to' the Defendant from on or.about 15.01.1973. He further pleadedthat the agreements X2 and X3 were written in order to overcomethe provisions of the Rent Act No. 7 of 1972. He stated that thesecurity deposits referred in X2 and X3 were given for the safereturn of the furniture and fittings let to the Defendant by Pala-nivelu. The Defendant further pleaded that after Palanivelu's deaththe Plaintiff informed the Defendant that Ameen had recognisedher and accepted her as the tenant and that acting on this infor-mation, the Defendant continued to remain in the premises as thesubtenant of the Plaintiff and continued to pay the monthly sumof Rs. 1,200/- to the Plaintiff. After the Defendant became a sub-tenant under Palanivelu the Defendant commenced the business ofan eating house and hotel under the name of Asoka Lodgej’butPalanivelu had registered the business carried on by the Defendantunder the name of Asoka Lodge in Palanivelu's name. The Defen-dant denied that a room in the upstair portion of the said premiseswas reserved by Palanivelu or subsequently for the Plaintiff. To-wards the end of June 1977 Ameen's rent collector questionedthe Defendant by what right the Defendant was occupying thepremises and the Defendant informed the rent- collector thathe was a sub-tenant under Palanivelu and after the latter's death hecontinued to occupy the premises as a sub-tenant of the Plaintiff.The Defendant further stated that the rent collector informedhim that Ameen at no stage recognised the Plaintiff as the tenantof the premises. Sometime later as the rent: collector informed theDefendant that Ameen was contemplating to institute an action tohave him ejected from the premises, the Defendant informed thePlaintiff about Ameen's threat and further informed her that hehad no alternative but to negotiate with Ameen to become thetenant. The Defendant averred that in the latter part of August1977, the Plaintiff came to Colombo and the Defendant informedher that Ameen had agreed to accept the Defendant as his.tenant.It was then agreed between the Plaintiff and the Defendant thatthe latter was to pay a further sum of Rs. 10,000/- on account ofthe furniture and fittings let to the Defendant by Palanivelu and
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that the Plaintiff will have no further claims against the Defen-dant. The Defendant therefore paid the Plaintiff a sum of Rs.10,000/-. The Defendant stated that he became Ameen's tenantfrom 01.09.1977. He further pleaded that as the tenant of thepremises he decided in November 1978 to run a jewellery businesswith some others as partner in the said premises. The Defendantprayed for a dismissal of the Plaintiff's action.
After, trial the learned District Judge gave judgment for thePlaintiff in terms of paragraphs (a), (b), (c) and (e) of the prayerto the plaint with costs. The Defendant appealed and the Court ofAppeal affirmed the judgment of the District Court and dismissedthe appeal subject to a variation in the decree regarding the issueof the permanent injunction. The Court of Appeal granted leaveto the Defendant to appeal to this Court.
When this appeal was taken up for argument in this Court,learned Counsel for the Defendant raised a preliminary objectionon the basis of Rule 30 of the "Supreme Court Rules, 1978".Learned Counsel Mr. Subasinghe argued that the appearance of thePlaintiff was entered out of time. According to the docket, theRegistrar had sent the notice of this appeal to the Plaintiff on13.08.1981 and in terms of Rule 30 the Respondent should haveentered an appearance in the Registry within 14 days of thereceipt of the Notice. The appearance on behalf of the Plaintiffhas been filed on 04.09.1981. Mr. Subasinghe submitted that thePlaintiff is not properly before this Court. Learned Counsel forthe Plaintiff, Mr. Thiagalingam stated that he has been instructedthat within two days of the receipt of the notice of appeal bythe Plaintiff the appearance was filed on her behalf. The proxywhich was filed on 04.09.1981 is dated 03.09.1981. As there wasno material to Indicate when the notice of appeal was received bythe Plaintiff who lives in Nainativu, we overruled the preliminayobjection.
Mr. Subasinghe then formulated the first point of law which hewas raising as follows: "whether in view of the provisions of Sec-tion 9 of the Business Names Ordinance (Chapter 149) the Plain-tiff can maintain this action." Mr. Subasinghe submitted that thePlaintiff had failed to notify the Registrar of Business Names ofthe death of her husband Palaniyelu and to register herself as theindividual carrying on the business. This point had been takenup in the petition of appeal filed in the Court of Appeal inparagraphs 10 (X) (a) and (b). Mr. Subasinghe further submittedthat although this point was argued in the Court of Appeal, ithas not been dealt with at all by the Court of Appeal in its judg-ment. Mr. Subasinghe further stated that he was not personally
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aware whether this point was argued in the Court of Appeal, buthe was basing his submission on what is stated in paragraph15(g) of the petition of appeal filed in this Court. Mr. Thiagalin-gam stated that though this point has been taken up in the peti-tion of appeal fiied in the Court of Appeal, it was not argued inthe Court of Appeal, as it had not been taken up in the DistrictCourt. Mr. Subasinghe at this stage abandoned this point of law.
Mr. Subasinghe then formulated the following five points oflaw on which he was going to base his arguments:
i
Is it a proper inference from the facts proved and upona proper construction of the documents D39 and D40 (X2and X3), that the Defendant is a sub-tenant of Palanivelu.
Is it a proper inference from the facts proved in this casethat the Defendant is a tenant of M. A. M. Ameen from
01.09.1977.
Since the documents P6 to P18 have not been written andsigned by the Defendant, can the Court of Appeal drawany inference from these documents.
On the facts proved did the Plaintiff become a tenantunder Ameen by virtue of Section 36(2) (c)(i) of the RentAct.
Can a co-heir who inherits the half share of a businessmaintain an action without joining the other co-heirsas partners in respect of the business.
In the order of the Court of Appeal granting leave to the Defen-dant to appeal to this Court, there is no reference to any substan-tial question of law to be adjudicated upon by this court. Interms of Ariticle 128 of the Constitution, an aggrieved partycan appeal to the Supreme Court from a judgment of the Courtof Appeal, with the leave of the Court of Appeal, if a substan-tial question of law is involved. Mr. Thiagalingam submittedthat not one of the five questions raised by Mr. Subasinghe isa question of law.
Mr. Subasinghe argued that a wrong inference drawn by a judgefrom proved facts is a question of law. He further argued that theCourt of Appeal granted leave because that Court was satisfiedthat there were substantial questions of law. We indicated toCounsel that we will deal with this matter in our final judgment,and we allowed Mr. Subasinghe to continue.
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As stated by Mr. Subasinghe himself the five questions raised byhim are interlinked, some of them more closely so. Most of thearguments adduced by Mr. Subasinghe in support of the firstquestion of law raised by him applied to the 2nd and 3rd. It willtherefore be convenient to deal with the first, second and thirdquestions together.
In my view issues 1 and 8 raised at the trial in the DistrictCourt deal with the matters that come within the ambit of thefirst question of law. Both these issues were answered by the trialJudge in favour of the Plaintiff. I am also of the view that issues14, 15,16, 21 and 22 cover the 2nd question of law raised by Mr.Subasinghe. The learned District Judge's finding on these issueswas that though Ameen accepted the Defendant as his tenant ofthe premises from 01.09.1977, Ameen and the Defendant acted incollusion in fraud of the Plaintiff and attempted to deprive thePlaintiff of her right to the tenancy. He held that the Plaintiff wasthe tenant of the premises and that the Defendant was estoppedfrom denying that the Plaintiff is the tenant. Mr. Subasinghe'sargument was that these are not pure questions of fact. He con-tended that assuming that the learned trial Judge's findings oncertain disputed questions of fact are correct, the inferences hedrew from the facts he held to have been proved, are wrong.Mr. Subasinghe attempted to canvass some of the findings offact by the Trial Judge on the ground that he had not takencertain matters into consideration in arriving at these findings.It is not necessary to cite authorities for the proposition thatsanctity attaches to the decisions of a trial Judge, who has seenand heard the witnesses who give evidence at the Trial.
As regards the first question of law, the question that arises forconsideration is whether the agreements X2 and X3 were sham orfictitious documents executed to circumvent the provisions of theRent Act which prohibit sub-letting of premises by a tenant. Inconsidering this question it is relevant to ascertain what was thetrue intention of the parties. This, as Mr. Thiagalingam submittedis a pure question of fact. The learned Trial Judge analysed verycarefully the oral and documentary evidence led in the case andcame to the conclusion that the two agreements are documents bywhich the Defendant was appointed to manage and control thebusiness which Palanivelu was carrying on in the premises inquestion. The learned Trial Judge has adopted the correct legalprinciples in arriving at his conclusions. The Court of Appealhas affirmed the findings of the learned Trial Judge and the Courtof Appeal has further closely analysed the two documents particu-larly the document X3. The Court of Appeal has referred to and
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discussed a number of authorities on similar questions which havearisen in other cases. On the facts established at the trial andon the construction of the documents, the Court of Appeal hasaffirmed the judgment of the learned District Judge as to thetrue nature of the Agreements. I need only refer to the judgementof Chief Justice Samarakoon in the case of Pathirana vs. Somala-tha de Siiva^K The Plaintiff in that case who owned and ran abakery in certain premises by an agreement gave the premises to-gether with the bakery business and the furniture and fittings tothe Defendant in that case for a period of two years. After the twoyears period lapsed, the Defendant failed to vacate the premises.The Defendant had also sub-let the premises contrary to the termsof the lease. The Plaintiff filed action against the Defendant. TheDefendant pleaded that the document was not a lease of a businessbut in fact a mere letting of the premises. The trial Judge enteredjudgment for the Plaintiff and on appeal by the Defendant the Sup-reme Court affirmed the judgment of the District Court. Samara-koon Chief Justice in the course of his judgment stated as followsat page 267:
"I n deciding the question as to whether a document such as thisis a lease of a business or merely a letting of premises one hasfirst to look at the totality of its provisions and the objectit seeks to achieve. Vide Charles Appuhamy v. Abeysekera, (2)56 N. L. R. 243 <2) and Jayasinghe v. Hussein, 56 N. L. R. 381. ^Secondly, whether the facts established in evidence show thatin fact it has achieved something different and whether thedocument was only a cover for it. Andiris Appuhamy v. Ku-ruppu, 65 N.L.R. 21 ^ The evidence led in this case showsthat what was let was a bakery business, which business thedefendant ran during the period of two years and was still run-ning at the time of the trial. I therefore reject the contentionthat P1 was merely a letting of premises."
The Trial Judge and the Court of Appeal have adopted theprinciples enumerated by the Chief Justice in the above mentionedcase.
It was not the case of the Plaintiff that Palanivelu himself ranthe business right up to his death. The Plaintiff's evidence was thatsometime after X3 was entered into, Palanivelu went back toNainativu and the Defendant ran the business and paid Palaniveluthe sum of Rs. 1,200/- per month, which was the commissionagreed to by the parties. After Palanivelu's death the Plaintiff con-tinued to be the owner of the business and the Defendant paid toher the sum of Rs. 1,200/- per month right up to December 1978.
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These matters are pleaded in paragraph 14 o.f the plaint. TheDefendant in answering paragraph 14 of the plaint states in para-graph 10 of the answer, inter-aiia, that he "continued to pay themonthly sum of Rs. 1,200/- as paid earlier." He goes on to statethat "save and except as herein admitted the Defendant denies therest of the averments contained in the said paragraphs." Mr. Thi-agalingam contended that the Defendant in paragraph 10 of hisanswer has admitted that he paid the sum of Rs. 1,200/- permonth till December 1978. Mr. Subasinghe argued that there is nosuch admission-. Mr. Subasinghe referred to paragraph 6 of theplaint wherein also the Plaintiff has stated that the Defendant paidto her the sum of Rs. 1,200/-till December 1978. Mr. Subasinghethen referred to paragraph 6(a) of the answer in which the Defen-dant has denied the averments in paragraph 6 of the plaint. WhatPlaintiff in effect states in paragraphs 6 and 14 of the plaint is thatthe sum of Rs. 1,200/- was paid as commission first to Palaniveluand then to the Plaintiff. In paragraph 6 of the answer the Defen-dant pleads that the Plaintiff sub-let the premises to him. I am ofthe view that when the Defendant in paragraph 6(a) of the Answerdenied paragraph 6 of the plaint, the denial was in effect a denialthat the payment was paid as commission. The Defendant's evi-dence at the Trial was that he paid the sum of Rs.1,200/- to thePlaintiff only till August 1977 and that the payment was madeas rent to Palanivelu and later to the Plaintiff. The learned TrialJudge has accepted the Plaintiff's evidence that the Defendantpaid her Rs. 1,200/- per month till December 1978.
It was only in the answer that the Defendant took up the posi-tion that he became a sub-tenant of Palanivelu from 15.01.1973on which date X2 was signed. The learned Trial Judge as statedearlier after a careful analysis of the evidence, has come to theconclusion that it was only after the dispute started in Decem-ber 1978, that the Defendant has put forward this defence. It isquite clear from the oral and documentary evidence that theDefendant considered himself as the Manager of.the business firstunder Palanivelu and later under the Plaintiff. The Defendanthimself in his evidence stated that when the landlord Ameen askedhim in July 1977 in what capacity he was staying in the premises,he had replied to Arr.een that he was running the business on acommission basis under Palanivelu. Thereupon Ameen questionedhim as to whether there was any writing and when he replied thatthere was an agreement, Ameen asked him to produce it. TheDefendant states that he went subsequently with the document,apparently X3, and according to the Defendant, Ameen read thedocument and shouted out that the agreement was false and thatthe Defendant was a subtenant. Mr. Thiagalingam contended that
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this evidence of the Defendant clearly showed that the Defendanthimself considered X3 as a commission agreement and the idea ofsubtenancy was given to the Defendant by Ameen. I am of theview that there is much substance in this contention of Mr.Thiagalingam.
As regards the 2nd question of law raised by Mr. Subasinghe,the Plaintiff in her evidence stated that on 06.09.1976, i.e. 3 daysafter Palanivelu's death, she sent by registered post the letter X4to Ameen informing him of Palanivelu's death. Ameen denied thathe received X4. Since Ameen continued jo send the rent receiptsin respect of the premises in Palanivelu's name, the Plaintiff'sAttorney-at-law, Mr. Suntheralingam wrote the latter X6 (D6)dated 13.05.1977 to Ameen, drawing his attention to X4 andinforming Ameen that in terms of Section 36(2)(c) of the RentAct, the Plaintiff is the lawful tenant of the premises. The moneyorder for Rs. 160/- being the rent for May 1977 was also enclosed.Ameen was requested to send a receipt in the name of the Plain-tiff. Ameen's Attorney-at-law replied to X6 by X7 dated
Mr. Suntheralingam replied to X7 by X8 (P20). Noreply was received to X8. Thereafter Mr. Suntheralingam wrotethe letters P21 to P36 enclosing Money Orders for Rs. 160/- in res-pect of each month up to December 1978. Along with X7 themoney order sent with X6, was returned. But none of the sub-sequent money orders received by Ameen from Mr. Suntheralin-gam had been returned though they had not been cashed andneither had he replied to any of the letters P21 to P36* It is cleartherefore that when the Defendant negotiated with Ameen totake the premises in his name, Ameen was aware that Plaintiffwas claiming to be the tenant in terms of Section 36 of the RentAct and that the Plaintiff was regularly sending the monthly rent.Ameen was called as a witness by the Defendant and in his evi-dence he stated that he did not recieve X4. The learned DistrictJudge rejected this evidence of Ameen. Mr. Subasinghe has notbeen able to establish that this finding of the Trial Judge waswrong. We are of the view that on the oral and documentary evi-dence in the case, the finding of the Trial Judge which has beenaffirmed by the Court of Appeal, that the Defendant and Ameenacted collusively as stated earlier, and the further finding that theDefendant is estopped from denying that the Plaintiff is the tenant,are correct. I
I now come to the 3rd question raised by Mr. Subasinghe. Thesedocuments P6 to P18 were documents that were considered by theTrial Judge and the Court of Appeal along with other documents,in arriving at the conclusions referred to above. P6 to P15 wereletters which the Plaintiff claimed were sent by the Defendant to
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her son,. Parameswaran who gave evidence at the trial. P16 toP18 were letters said to have been sent by the Defendant to Pala-nivelu. When these letters were first produced when the Plaintiffwas giving evidence, they were shown to the Defendant by hisCounsel and the Defendant had stated that P6 to P18 werenot in his handwriting and that he had not signed them. Plaintiffwas an illiterate woman who could not read or write. Parames-waran in his evidence related the circumstances under which P6to P18 were received by him and stated that they were lettersfrom the Defendant. The trial Judge held that the letters P6 toP18 were all documents which have been "written and signed" .by the Defendant. The Court of Appeal held that that findingcannot be supported as neither the Plaintiff or her son werefamiliar with the Defendant's handwriting. But the Court ofAppeal was of the opinion that it is implicit in the finding of theDistrict Judge that the District judge was also satisfied that theyare documents which have been sent by or at the instance of theDefendant with the full knowledge and approval of their contents.The Court of Appeal went on to carefully examine the evidenceand the contents of these documents. The Court of Appeal hasfurther referred to certain admissions made by the Defendant.These admissions tally with some of the contents of the letter P6to P18, and are referred to in the judgment of the Court ofAppeal. And the Court of Appeal finally came to the conclusionthat "the inference that the said documents — P6 to P18 — are allletters, at any rate, sent by or at the instance of the Defendant withthe Defendant's full knowledge and approval of the contents, isquite justifiable. " The Court of Appeal went on to hold thattherefore the trial Judge was entitled to take the contents of theseletters into consideration in arriving at his decisions. I am unableto say that the Court of Appeal was wrong in arriving at thisconclusion.
For the above reasons, I am of opinion that the findings of thelearned District Judge in regard to issues 1,8,14,15,16,21, and 22which decisions have been affirmed by the Court of Appeal, arecorrect. Mr. Subasinghe's submissions regarding the first threequestions raised by him therefore fail.
The 4th and 5th questions raised by Mr. Subasinghe can bedealt with together. They are mixed questions of fact and law.They had been raised in the Court of Appeal too. In this connec-tion the following answer of the trial Judge to Issue No. 1 isrelevant*
"The Defendant who was managing and controlling the saidbusiness in terms of X3 under the deceased Palanivelu continued
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to do so under the Plaintiff under the terms and conditions setout in the document'X3."
I have already held that this was a correct finding. It is implicitin this finding that the Plaintiff as the surviving spouse, carried onin the said premises the business carried on by the deceased te-nant, Palanivelu. The Plaintiff therefore clearly comes within theambit of Section 36(2)(c)(i) of the Rent Act. It was accordinglynot necessary for the Plaintiff to have joined the other heirs ofPalanivelu in the action. The Plaintiff was entitled to institute theaction in its present form. The submissions of Mr. Subasingheregarding the 4th and 5th questions also fail.
For these reasons I would affirm the Judgment of the Courtof Appeal and dismiss this Appeal with costs.
Ismail, J.I agree.
Wanasundara, J.I agree.
Appeal dismissed