046-SLLR-SLLR-1999-V-3-ATTANAGODA-v.-LIYANARACHCHI.pdf
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Attanagoda v. Liyanarachchi
359
ATTANAGODA
v.LIYANARACHCHI
COURT OF APPEALWEERASEKERA J„
JAYASINGHE, J.
A. NO. 386/88 (F).
C. MT. LAVINIA NO. 1729/RE.
SEPTEMBER 8, 12. 1997.
Rent Act – S. 21 (2) – Tenancy – Husband and wife living apart – Wife payingrent – Does she become the tenant – Privity of contract – Right of a desertedwife.
The plaintiff-appellant filed action seeking to eject the defendant-respondent fromthe premises in question alleging that she was in arrears of rent and on the groundof subletting. The defendant-respondent in her answer denied tenancy, and claimedthat the tenancy agreement was between the plaintiff and her husband and that,the tenant was not in arrears, and moved for the dismissal of the action. Thedependant-respondent and her husband were living apart. It was contended thatthe defendant by a long and continued payment of rent became the tenant, thedefendant-respondent had paid rent to the Municipal Council in her own namefrom 1976-1981, and not in the name of the husband, and as rent has beenaccepted by the landlord, there was a contract of tenancy between the plaintiffand the defendant. The action was dismissed. On appeal –
Held:
The burden was on the plaintiff-appellant to establish that there was anabrogation of the agreement between the plaintiff and the defendant'shusband and that there was the emergence of a new contract of tenancybetween the plaintiff and the defendant.
Payments had been made by the defendant, the wife of the tenant husband.Even though they were living apart the marriage was still subsisting. Itis the evidence of the tenant that his wife and children lived at the premisesand that he came home every week-end, his furniture was in the premises,and that his wife paid the rent out of the money that was advanced byhim.
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It is now settled law that the deserted wife cannot be ejected by the husbandnor the landlord. The landlord can only get possession if the rent is unpaidor some other condition of the Act is satisfied entitling him to possession.
The plaintiff-appellant's action must fail on the basis that there is no privityof contract between the plaintiff and the defendant
APPEAL from the judgment of the District Court of Mount Lavinia.
Cases referred to:
Alwis v. Kulatunga-73NLR 337.
Middleton v. Batdock – 1950 1 ALL ER 708.
Old Gates Estate Ltd.v.Alexander andAnother -1949 2ALL ER 822.
National ProvincialBankUd. v. Ainsworth-1965AC1175.
Husseniya v. Jayawardane, 1981 – Sri LR. 93.
M. M. Perera v. D. M. J. de Silva – [1988) 1 Sri LR. 1.
D. M. J. de Silva v. Mallika Perera – [1989) 2 Sri LR. 353.
A. K. Premadasa, PC with C. E. de Silva for plaintiff-appellant.
P. A. D. Samarasekera, PC with L V. P. Wettasinghe for defendant-respondent.
Cur. adv. vult.
November 26, 1997.
JAYASINGHE, J.
The plaintiff filed action in the District Court of Mount Lavinia seekingto eject the defendant from the premises No. 109, Jayasumana Road,Ratmalana alleging that the defendant was in arrears of rent fromMarch, 1981 to February, 1982, and that the defendant had subletthe premises to one Leonard from January, 1980. The plaintiff alsopleads for arrears of rent and damages in a sum of Rs. 613/20.
The defendant in her answer denied tenancy. Claimed that thetenancy agreement was between the plaintiff and her husband one
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Attanagoda v. Uyanarachchi (Jayasinghe, J.)
361
S. Uyanarachchi. That her husband the said Uyanarachchi had ten-anted the said premises from one Charles Subasinghe the father-in-law of the plaintiff in February, 1957 and that on the death of thesaid Charles Subasinghe the defendant's husband became the tenantof the plaintiff and that all the rents payable were settled by herhusband and pleaded for the dismissal of the action. The learnedDistrict Judge dismissed the plaintiff's action. This appeal is from thesaid order.
The main question for determination at the hearing of the appealwas whether the defendant was the tenant of the plaintiff as allegedor whether the original tenancy agreement between the defendant'shusband survived even though the defendant and her husband wereliving apart. If this Court is to hold with the defendant notwithstandingthe separation that the tenancy survived, then there appears to beno useful purpose in going into the question of arrears of rent andthe question of subletting. The plaintiff-appellant's action must fail onthe basis that there is no privity of contract between the plaintiff andthe defendant.
Mr. Premadasa presented his case on the basis that the defendant-respondent was the tenant of the original plaintiff of the premises.The main thrust of his argument was on the basis that the defendantby a long and continued payment of rent became the tenant and whenshe defaulted payment or rent the tenancy was at an end even thoughin the case of a denial of tenancy, the plaintiff need not prove anyground under the Rent Act. He relied heavily on the statement markedP2 issued by the Municipal Council according to which the rent hasbeen paid by the defendant-respondent from 1976 upto 1981 in herown name and not in the name of her husband. This rent has beenaccepted by the landlord and consequently there was a contract oftenancy between the plaintiff and the defendant. He argued that therespondent did not give evidence and that, therefore, there was noevidence to show that the rent was paid on behalf of the husband.A presumption has to be drawn that she could not support her positionthat her husband was the tenant. Mr. Premadasa's other flak of attack
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was on the construction he placed on s. 21 (2). Mr. Premadasa arguedthat by a long and continued payment of rent by the defendant, therearose a tenancy agreement between the plaintiff and the defendant.He stated that the word °deemed" in section 21 (2) of the Rent Actmeant that the person who paid the rent was the tenant. I cannotagree. What is "deemed" there is that payment received on that dayby the landlord of the premises from the tenant thereof. In Violet Pererav. Asilin Nona, Bar. Ass. LJ. 1995 vol. 6 part 1 page 2 it was heldthat section 21 was intended to cater to tenants who experiencedifficulty or dilemma in making payment to the landlord. It confers notenancy rights nor does it operate to deny tenancy rights.
At the trial before the learned District Judge Chandradasa Subasinghewho held a power of Attorney on behalf of the plaintiff gave evidence.He stated that the premises in question belonged to his father andthat it was devised to his sister as the dowry. Consequently, hisbrother-in-law became the landlord. That it was rented out to oneLiyanarachchi who paid rent upto 1976. That he had information thatthe rent was being paid by his wife. That she had fallen into arrearsof the rent payable. That a portion of the premises had been sub-let to one Leonard without the consent of the landlord. That for thesaid reasons a quit notice was sent on 25.9.1981. That the plaintifffailed to hand over possession. Under cross-examination he deniedthat the tenant was the husband of the plaintiff. No other evidencewas called for the plaintiff.
Sirisena Liyanarachchi the husband of the defendant gave evidencefor the defendant. He stated that he was originally the tenant of CharlesSubasinghe from 1957 and thereafter-on the death of the saidSubasinghe, he paid rent to Attanagoda the plaintiff. That there wasa breakdown of matrimonial relations around the year 1976 and hecame home for the week-ends. The household expenses were metby him; thereafter there was a reconciliation. He admitted that therewas a maintenance action filed by the wife. He also stated that theplaintiff through his Attorneys by D17 sent his wife a quit notice andthat he promptly replied repudiating the allegations while maintaining
Attanagoda v. Uyanarachchi (Jayasinghe, J.)
363
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that he is still the tenant. The said letter was marked D1&. It is pertinentto note that this letter was written while the estrangement was continuing.His wife also wrote to the plaintiff denying that she was the tenant.The said letter is marked D16. The rest of the evidence led did nottouch the merits of the case and can be disregarded.
Mr. Samarasekera argued that the tenant of the_premises was thehusband of the defendant and that the tenancy has not been termi-nated by a quit notice by the landlord. He relied on D18. He submittedthat the defendant's husband has by his letter marked D14 reiteratedhis tenancy rights and warned both M. D. Attanagoda and ChandrasiriSubasinghe not to trespass on his rights also urging them to takeaction according to law. Mr. Samarasekera further stated that thehusband has not abandoned his tenancy and that his wife and childrencontinue to live in the said premises. His furniture was yet at thepremises. The rent paid by the wife was, in fact, advanced by himand that the husband came home for the week-ends. When the wifepaid the rent she did, in fact, pay such rent as the agent of thehusband.
The question for determination before us is that whether there wasa new contract of tenancy between the landlord and the defendant,by reason of the fact that the rents had been paid by the defendantfor a long period consequent upon the husband leaving the matrimonialhome. It is now a well-settled proposition of law that the desertedwife cannot be ejected by the husband nor the landlord. ". . . Thelandlord can only get possession if the rent is unpaid or some othercondition of the Act is satisfied entitling him to possession" – Alles,J. in Alwis v. Kulatung&'K In the same case Alles, J. went on to discussthe rights of a deserted wife. "… where the husband has desertedhis wife and she has nowhere else to go, no Court would order herout. She is, therefore, lawfully there, and, so long as she remainslawfully there, he remains in occupation by her. If he desires to ceaseto be in occupation – and cease to be responsible for her occupation- then he must go to Court and persuade it, if he can, to order herout. But, until that time arrives she is lawfully there, and she can claim
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in his right, even against his will, to be there. The landlord can getpossession if the rent is unpaid or some other condition of the Actis satisfied entitling him to possession". – Lord Denning in Middletonv. BaldocH®. Bucknill, LJ. Old Gates Estate Ltd. v. Alexander andAnother took the view that as long as the husband's furniture wason the premises he retained possession to that extent . . ." In thecase of National Provincial Bank Ltd. v. Ainsworth,w Lord Hodsonstated that "… where a husband even when he has deserted hiswife has been treated as still in occupation of the premises since heremained in possession of them through his wife . .." Lord Wilberforcestated that "… the Courts in a number of instances have givenprotection to deserted wives of tenants of rent-controlled premises.They have done this by the devise of holding that the husband-tenantcannot put an end to the tenancy, even by such acts as deliveringthe keys to the landlord, so long as his wife remains on the premises;he remains there by her, and as long as he does so, whatever elsehe does or says, the tenancy remains . . . This doctrine now seemsto be firmly established . . (cited by Alles, J. in Alwis v. Kulatunge),(supra). Implicit in these dicta is that a deserted wife remains inoccupation for or on behalf of the husband and, therefore, any rentspaid by the wife is deemed to be the rents paid on behalf of thehusband. It is settled law that where payment is made by a third party,it must be made on behalf of the debtor in order to constitute a validdischarge. Mr. Premadasa conceded that agents can pay the rent onbehalf of the tenant. But, argued that it must be in the name of thetenant. Relying on Husseniya v. Jayawardend5'. He said that theburden was on the payer to establish that the rent was paid on behalfof the tenant. The defendant failed to discharge this by giving evidence.That was a case where the plaintiff sued the 1st and 2nd defendantsfor ejectment on the ground that the tenant, the 1st defendant wasin arrears of rent and also on the ground that the 1st defendant hadsublet the premises to the 2nd defendant. The second defendant'sposition was that he was not a subtenant but that he was the tenantunder the plaintiff. This case can be distinguished on the basis thatpayment was made on his own behalf as the tenant. However, theevidence led at the trial was to the effect that the tenant was, in fact,
DIGEST
CAVEAT EMPTOR – See Land Development Ordinance.
CIVIL PROCEDURE CODE – S. 18, S 21, S. 93 (2) – Addition ofparties – Delay – Discretion – Due diligence.
Rohana v. Shyama Attygala and Others
CIVIL PROCEDURE CODE S. 14, S. 18 – Addition of a party.
Mackie & Sons v. Mackie and Another
CONTRACT – See Rent. Act.
ESTOPPEL – See Land Development Ordinance.
EVIDENCE ORDINANCE – See Land Development Ordinance.
GIFT – See Land Development Ordinance.
LAND DEVELOPMENT ORDINANCE – S. 2, s. 161, s. 162 – Permit-holder – Gift – Transfer to third party – Written consentof Government Agent prior to transfer – Prescriptive title
Evidence Ordinance, s. 115 – Estoppel – CaveatEmptor.
Lebbe v. Umma
LEASE OF STATE LAND – Cancellation – Failure to comply withcertain conditions – Should he be given an opportunityto be heard – State Lands Ordinance, S. 2, S. 6,S. 17 (1), S.110 – Land Settlement Ordinance,s. 106 – 128.
Kalu Banda v. Upali
(Continued in Part 15)
RENT ACT, NO. 7 OF 1972 – S. 13 – Repairs effected by tenant
Set off against rent without permission.
Navamany v. Rosairo
RENT ACT – S. 21 (2) – Tenancy – Husband and wife livingapart – Wife paying rent – Does she become the tenant
Privity of contract – Right of a deserted wife.
Attanagoda v. Liyanarachchi
(Continued from Part 13)
STATE LANDS ORDINANCE – See Lease of State Land.
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the 1st defendant. There was also the allegation that the 1st defendantwas acting in collusion with the plaintiff. To that extent that case canbe distinguished from the present case. A similar situation arose inthe case of M. M. Perera v. D. M. J. de SilvaPK The plaintiff as landlordinstituted action in the District Court of Panadura to eject the defendantwho was the tenant from the premises for arrears of rent. Here, thepayments were made not by the defendant who was the tenant butby one Mallika Perera who was the daughter of the defendant. Therewas nothing to show that the rents paid by Mallika Perera was onbehalf of her father. Court of Appeal held that it would be quite unrealin the circumstances of the case to hold that rents were beingdeposited at the Urban Council by the tenant's daughter on her ownbehalf and not on behalf of her father. The Supreme Court upheldthe findings of the Court of Appeal in the same case D. M. J. deSilva v. Mallika Perera (SC)(7). In the present case payments had beenmade by the defendant, the wife of the tenant Liyanarachchi. Eventhough they were living apart the marriage was still subsisting. It isthe evidence of the tenant that his wife and children lived at thepremises and that he came home every week-end. This has not beenchallenged. His furniture was in the premises and that his wife paidthe rent out of the money that was advanced by him. There was noevidence that the wife had an income of her own. As a matter offact the wife had asked for an enhancement of the quantum of themaintenance paid by the husband. I am unable to accept that therewas a consensus ad idem between the plaintiff and the defendantwhen the defendant's husband had been persistent in his assertionthat he was the tenant.
Mr. Premadasa urged very strongly that the defendant did not giveevidence to establish that rents were paid on behalf of the husband.There is no quarrel on this. But, then the burden was on the plaintiffto establish that there was an abrogation of the agreement betweenthe plaintiff and Liyanarachchi the husband of the defendant and thatthere was the emergence of a new contract of tenancy between theplaintiff and the defendant. Except P2 there was nothing to establishthat there was a new tenancy agreement. The plaintiff's Attorney who
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gave evidence conceded that the premises was let to Liyanarachchiand that the contractual tenant was the husband. He had no personalknowledge of the emergence of a new contract between the plaintiffand the defendant. His position was that he became aware of thedefendant's tenancy' only upon perusing P2. Apart from P2 there isno other evidence that he had any knowledge that the defendantassumed tenancy. Mr. Samarasekera argued that P2 does not sayanywhere that Liyanarachchi is the tenant nor does it say that thetenant is the defendant. The person who deposits the rent may ormay not be the tenant. He argued that if an officer at the local authorityinserts the name of the depositor in the receipt, that entry cannotcreate a tenancy in favour of the depositor nor can it deprive thetenant of his tenancy. All that the receipt indicates is that paymentshave been made. I am inclined to accept this submission. An officerof the local authority was called by the defendant. But, no attempthas been made by the plaintiff to elicit any of the matters disputedby the plaintiff.
For the reasons stated above I do not intend to interfere with thefindings of the learned District Judge.
The-appeal is dismissed with taxed costs.
WEERASEKERA, J. – I agree.
Appeal dismissed.