040-NLR-NLR-V-25-BANDARA-v.-APPUHAMY.pdf
( 176 )
1923.
Present: Schneider J.
BANDARA «. APPUHAMY.U5—C. R. Gampola, 5,757.
Lease—Lessor placed in possession by owner under a writing whum wunot notarially executed—Lease for three years—Subsequent leaseto third party—Action in ejectment by subsequent lessee—Lesseeunder informal lease a monthly tenant^ and not tenant-at-ivill—Notice necessary before ejectment.
Where a person is in possession of a land by virtue of a non*notarial lease for a number of years, he is to be regarded as amonthly tenant, and riot as a tenant-at-will or tenant by sufferanceor trespasser. He is entitled to a month’s notice before ejectment.
'J'HE facts appear from the judgment.
Navaratnamt for plaintiff, appellant.—An agreement for aperiod exceeding a month can be of no force or avail unless such acontract is entered into formally in conformity with section 2 ofOrdinance No. 7 of 1840. In the present case the respondent relieson an informal document purporting to create a lease for a term ofthreeyears. Tolethim setup thereunder the plea of monthly tenancyand claim a month’s notice would be to ignore the provisions of thesaid Ordinance. Apartfrom this,the informal document itself makesthe tenure conditional upon the execution of a formal lease, andcontemplates the precarious character of the tenancy. As there wasnothing of a monthly character impressed upon the agreement, inThe Secretary of Stale for War v. Ward 1 it was held that a tenantin possession, under an .agreement invalid in law was merely atenant-at-will, and was liable to be evicted without any demandprior to the institution of the action. 1
1 (2901) 2 Br. Rev. 256.
( 177 )
H. V. Perera, for defendant, respondent.—The question iswhether the defendant is in unlawful possession. Though thepromise to allow’ the defendant to possess the land for three yearsis not binding on the plaintiff’s lessor in the absence of a notariallease, yet having put the defendant in possession as his tenant, it isnot open to him to deny that defendant is his tenant. Being atenant, the defendant is entitled to notice to quit. His possessionis lawful till he is so noticed.
As to the length of notice required, it has been held that a personin the position of the defendant is entitled td a month’s notice.Wambeek v. Le Mesurier 1 and Buultjens v. Carolis2 The case ofThe Secretary of State for War v. Ward (supra) is distinguishable.The defendant is not a tenant-at-will, because there was no agreementcreating a tenancy-at-will. Nor is there any reason to treat himas a tenant at will. On the contrary, it is equitable that he shouldbe given at least the same rights, as regards notice to quit, as amonthly tenant.
Navaratnam, replied.
July 31, 1923. Schneider J.—
In this case the plaintiff sued the defendant in ejectment froman allotment of land, alleging that the defendant was in wrongfulpossession of it to the plaintiff’s loss and damage. He claimedpossession by virtue of a notarially attested deed dated November4, 1922, whereby one Ukku Banda had demised the land to theplaintiff for a period of five years from the date of the instrument.In his answer the defendant denied knowledge of the lease pleadedby the plaintiff, and stated that he was in possession of the land byvirtue of a lease granted to him by the plaintiff’s lessor by a writingnot notarially attested for a period of three years from November4, 1921, and that he had paid the rent in full for the said termof three years.
The material issues upon which the parties went to trial raisedthe questions: whether the plaintiff could maintain his actionagainst the defendant, whether the defendant was in wrongfulpossession, and whether the answer disclosed a lawful defence toplaintiff’s claim ? The plaintiff gave evidence, and stated that afterthe execution of the deed in his favour he went to the land andfound the defendant in possession under the informal writingsHe also stated that he did not get possession of the land. It isnoticeable that the plaintiff does not expressly state that hedemanded possession from the defendant. In the informal writinggranted by the owner of the land, Ukku Banda, to the defendant, itisfset out that the informal writing was entered into till a regular
1 (1898) 3 N. L. R. 105.2 (191$) 21 N. L. R. 185.
16-xxv.12(60)29
1923.
Bandara v.
Appuhamy
(173 )
1923.
SCHN'RIDER
J.
BanUara v.
A ppithamy
p
lease was executed. Ukku Banda also declares in his writing thathe thereby leases the premises to the defendant for a term of threeyears.
The learned Commissioner dismissed the plaintiff’s action on theground that the defendant, being in possession of the land underan informal agreement, tvas not in wrongful possession, and wasentitled to a month’s notice before his tenancy could be terminated.From the judgment the plaintiff appealed.
On behalf of the appellant, Mr. Navaratnam contended that thedefendant’s tenure was that of a tenant-at-will, and not a monthlytenant. He relied on the case of The Secretary of State for the WarDepartment v, Ward (supra), in which Moncreiff A.C.J. and Browne J.held that the defendant in that case was only a tenant-at-will, andnot a monthly tenant. To my mind that case is no authority forthe proposition of law put forward in support of the plaintiff’sclaim in this case. The facts of that case are clearly distinguishable.The plaintiff there leased to the defendant a portion of land by aninformal writing, in which the defendant promised to pay to theplaintiff a certain sum as rent for a year, and in which both partiesagreed that the tenancy might be terminated by six months’ noticeon either side. The plaintiff, in accordance with this agreement,terminated the tenancy by due notice, but the defendant, instead ofquitting the land, continued to forward moneys as if the tenancywere on foot. The plaintiff accepted these payments under protest,and claimed to hold them as security for the damage he wouldsustain. Upon these facts it is obvious that the defendant was inthe position of an over-holding tenant, and therefore liable to beejected without notice at the instance of the plaintiff, his landlord.No question as to the effect of the informal lease was involved,because, admittedly, the lease was terminated by due notice. Imust, therefore, regard whatever is said by the learned Judges whodecided that case, as to the effect of the informal lease, as mere obiterdicta. Both Judges expressed the opinion that the informal leasewas bad, and did not operate to create a monthly tenancy, butneither Judge discussed the bearing of the provisions of Ordinanceof 1840 as to the effect of an informal lease, where the tenant is putin possession and continues to be in possession, and where he haspaid the rent.
On behalf of the respondent, the case of Wambeek r. Le Mesurier(supra) and Buultjens v. Carolis (supra) were cited and relied upon.The former of these cases was considered by Browne J. in the caseof The Secretary of State for the War Department v. Ward (supra), towhich I have already referred. He refused to follow it. I am unableto appreciate the reasons he gives, and, as I have already stated, whathe says in that case is mere obiter dicta. The case of Wambeek v. LeMesurier (supra) was decided by Laurie J. sitting by himself.There the plaintiff had let the defendant into possession of a land
1923.
(179 )
upon an informal writing, agreeing to grant a lease of it for fiveyears. The plaintiff in breach of the agreement sued the defendantin ejectment, and Laurie J. held that the defendant upon enteringinto possession under the informal lease became a tenant frommonth to month upon the terms of the writing, as far as theywere applicable to and not inconsistent with a monthly tenancy.He cited two English cases, Doe d. Biggie v. Bell1 and Clayton v.Blackey,2 and also two local cases—one from Grenier's Reports(C. R. 1,873), page 16, and Perera v. Fernando from Ramanathan'sReports (64-68), page 83. There is one other local case which mightbe grouped with these two local cases, that is a case decided byCreasy J. and reported in Grenier's Reports (C. R. 1,874), page J. Inall these three cases the question considered was the right of alandlord to recover rent from a tenant who had been let into pos-session upon an informal agreement of lease for a term exceeding aperiod of one month, and in all three cases this Court held that thelandlord could sue for use and occupation upon a quasi-contractwhich was created ex re. Accordingly, they did not decide theprecise question which arises on this appeal.
In the case of Perera v. Fernando (supra), in the judgment of thisCourt the provisions of the English Statute of Frauds correspondingto section 2 of our Ordinance No. 7 of 1840 were compared withthe provisions of our Ordinance and discussed. It was pointed outthat the English Act provides that no action shall be brought uponparol agreements as not complying with the provisions of the lawas regards the form of the agreement, whereas our Ordinanceenacts that such agreements are to be of no “ force or avail in law.”The view was there adopted that the effect of our Ordinance wasto render such agreements invalid for want of formality, but notinvalid as being illegal. Several English cases were cited in thejudgment, and there is clear indication all through the judgmentthat the Court accepted the English cases as authority supportingthe view it took of the effect of section 2 of the Ordinance No. 7 of1840. This judgment is referred to in the case of Nanayakkara et al.v. Andris et al? by Bertram C.J., who stated that the difference ofphraseology between the English Enactment and our own had beenminimized in Perera v. Fernando (supra). He also states that hefound it difficult to believe that the change of phraseology in ourOrdinance was intended to exclude, or had the effect of excluding,the application of the legal principles, which had been developed inEngland for mitigating the strict rigour of the Enactments of theStatute of Frauds. He also cited Lord Halsbury’s judgment inRochefoucald v. Boustead, where speaking of section 2 of our Ordi-nance No. 7 of 1840, Lord Halsbury said “ that section does notappear to affect equitable rights.”
1 (2793) 6 T. R. 471 (2 R. R. 642).* 8 T. R. 3 (4 R. R. 676).
3 (1921) 23 N. L. R. 193.
NCHXEIDFII
J.
iSain!<va r.Apfwftnmtf
1923.
SCHXKIDER
J.
hnnuafa v.Appnhamy
( 180 )
The English cases cited by Laurie J. in Wambeek v. Le Mesurier(supra) support his judgment. The case of Buxdtjens v. Carolis(svpra) was decided by Loos J. and me. In that case I did notdiscuss the law applicable, but decided it upon the assumption thatthe case of Wambeek v. Le Mesurier (supra) had been rightlydecided. When, therefore, the point was again raised in thisappeal, I thought it desirable to reserve judgment in order that theauthorities might be carefully considered by me before judgmentwas delivered. I have since looked into a large number of Englishcases, and consulted Woodfall's Law of Landlord and Tenant.
The English law might be shortly summarized as follows :—
By the Statute of Frauds leases for more than three years
and all agreements for leases, however short, must be inwriting (29 Car. 2 c. 29).
By the Real Property Act, 1845, leases for more than three
years must be by deed (.$ and 9 Viet. c. 106).
Although a contract for a lease must be in writing and
signed to be sued upon as such, yet he who enters andpays, or agrees to pay rent under an oral contract for alease, or otherwise partly performs the contract, mayobtain a decree for a lease, that is for specific performance(Statute of Frauds, section 4). Nunn v. Fabian.1
“ If the tenant enter into possession under a void lease, he
thereupon becomes tenant from year to year upon theterms of the writing, so far as they are applicable toand not inconsistent with a yearly tenancy (k). Suchtenancy may be determined by the usual notice to quit atthe end of the first or any subsequent year thereof (l);and it will determine, without any notice to quit, at theend of the term mentioned in the writing (m). But if thelessee do not enter, he will not be liable for not takingpossession (n); nor, on the other hand, will an action lieagainst the lessor for not giving possession at the timeappointed for the commencement of the term but beforethe lease is executed (o). The effect of the Real PropertyAct, 1845 (<$ and 9 Viet. c. 106), is not to put an end tooral leases, but merely to superadd to such leases as arerequired by the Statute of Frauds to be in writing, thenecessity of their being by deed.” (Woodfall's Law ofLandlord and Tenant, 18th ed., p. 148, and the casesreferred to in the notes at the foot of that page.)
Although in section 1 of the Statute of Frauds it wras enacted
that all leases et cetera created by lively and seisin only orby parol shall have the force and effect of leases, &c., atwall only, yet it has been held that* such leases, &c., may
1 (1864) L. R. 1 Ch. 85.
( 181 )
change into tenancies from year to year when any of theagreed rent is paid and received. (Tress v. Savage, 4 E.& B. 36; Doe d Rigge v. Bdl (1793) 5 T. R. 471, 2 R. R.
642.)
The case of Perera v. Fernando (supra) was decided by a FullBench of this Court, and the question as to the interpretation ofsection 2 of Ordinance No. 7 of 1840 was essential to the decisionof the case. It seems to me, therefore, that it should be regardedas a decision binding upon this Court in regard to the constructionof section 2 of Ordinance No. 7 of 1840. If I may so say with allrespect, I agree with the opinion expressed in that judgment asto the effect and intention of section 2 of Ordinance No. 7 of1840. The words of section 2 applicable to this case are thefollowing:—
1923,
Schneider
J.
Banoara r.Appuhamy
“ No contract or agreement for establishing any interest affectingthe land (other than a lease-at-will or for any period notexceeding one month) shall be of force or avail in law,unless the same shall be in writing and signed by theparty making the same in the presence of a licensed notarypublic and two other witnesses, and unless the executionof such writing be duly attested by such notary andwitnesses.”
The intention of the Ordinance is the prevention of frauds andperjuries, and, therefore, when it says that a lease not executedwith the prescribed formalities shall be of no force or avail in law,it seems to me that what was intended was to shut out evidence,other than that of a notarially attested instrument, to prove alease for any period exceeding one month. It was not intendedto shut out oral or documentary evidence contained in an informaldocument of a tenancy for a period not exceeding one month.The Ordinance is careful to expressly exclude tenancies of such anature from its provisions.
In this case the defendant: was placed in possession by UkkuBanda, the plaintiff’s lessor. The defendant, therefore, was law-fully in possession. He cannot be treated as a trespasser until therelation of landlord and tenant between him and Ukku Banda isterminated. How that relationship can be terminated woulddepend upon the question whether the defendant is a tenant-at-willor a monthly tenant. The informal writing which he relies upon isunavailing to invest him with the rights of=a lessee under a leasefor a term of three years, because of the provisions of the StatuteLaw that such a lease shall be by a notarially attested instrument.But does that provision of the law render the agreement underwhich the defendant entered an agreement constituting a tenant-at-will. I think not. It was not the intention of either party that the
1923.
Schneider
J.
Bau'/ara v,A pii’thamy
( 182 )
tenancy should be of that description; on the contrary, theirintention was to create a tenancy for a term of three years, but theOrdinance then step$ in and says that the agreement is not enforce-able as a lease for that term of years. It seems to me, therefore,equitable and consistent with the spirit of the Ordinance and theintention of the parties to hold that the defendant is entitled tosay, if I am not a tenant for a term of years contemplated by meand my lessor, there is no provision of the law which prevents mefrom being regarded as, at least, holding the land upon the footingof a monthly tenant. Such an interpretation of our Ordinancewould be in accordance with the principles developed by EnglishJurisprudence on the interpretation and application of the EnglishStatute of Frauds. I would adopt the language of Bertram C.J.in Nanayakkara et al. v. Andris et al. (supra), and say “ it is opento our own Courts to apply these same principles to our owncorresponding Ordinance, and it can hardly be contested that itis reasonable that they should do so.”
Giving that interpretation to section 2 of our Ordinance wouldcreate no hardship in the case of a person claiming possession undera formal lease. It is the duty of his lessor to give him vacantpossession. If the lessor fails to do that, he has his remedy againstthe lessor, and it would be always open to his lessor to terminatethe tenancy of the person in possession by due notice. When thetenancy has been so terminated, the lessee himself would beentitled to sue the person in possession in ejectment, but so long asthe tenancy of the person in possession has not been terminated bythe lessor and the tenant in possession has not attorned to thelessee, the lessee has no right of action against the tenant inpossession.
In Woodfall's Law of Landlord and Tenant (ISth ed.)y at page 258,he says “ a tenancy-at-will is where lands or tenements are let byone man to another to hold at the will of the lessor ; in this casethe lessee is called tenant-at-will, because he has no certain or sureestate ; for the lessor may put him out at any time he pleases.”The relation between Ukku Banda and the defendant clearly doesnot come within this description, therefore defendant was not atenant-at-will. At page 259 in the same work it is stated “ if aman enter under a void lease, he is not a disseisor, but a tenant-at-will (/), under the terms of the lease in all other respects except theduration of time (g) ; and when he pays or agrees to pay any of therent therein expressed to be reserved, he becomes a tenant fromyear to year upon the terms of the void lease so far as they areapplicable to and not inconsistent with a yearly tenancy (</).” Itis said that such a person becomes a tenant-at-will because of theprovisions of the Statute of Frauds, section 1, that all parol leasesfor terms of years shall have the force and effect of leases-at-willonly.
( 183 )
The defendant is not a tenant by sufferance as Browne J. thoughtwas the case in The Secretary of State for the War Department v.Ward (supra) 3 because a tenant by sufferance is one who comes inby right and holds over without right as if a tenant for the life ofanother continue to hold after the. death of him for whose life heentered. The defendant s claim is that his tenancy was not termi-nated. It seems to me that the defendant in the circumstancescannot be regarded as a trespasser, nor as tenant-at-will, or bysufferance, but only as a tenant for a period not exceeding a month.He is entitled to claim that the relation between him and UkkuBanda should be terminated by due notice, that is, of a month.That has not been done, and he is entitled to remain till it is done.
I would therefore dismiss the appeal, with costs.
Appeal dismissed.
1923.
Schneider
J.
Handa: a iA ppu/.atny