070-NLR-NLR-V-57-CHARLES-PERERA-Appellant-and-W.-A.-S.-DE-COSTA-Respondent.pdf
1955Present : K. D. de Silva, J.
CHARLES PERERA.. Appellant, and W. A. S. DE COSTA,Respondent
S. C. 72—G. R. Colombo, 46,975
I.o ndlord cntl tenant—Sale of rented premises—Jliejh! of purchaser to recover rent from,
tenant—Attornment.
A purchaser from a landlord of the property leased is entitled to recover therent from the tenant if ho takes over possession of the property along with thevendor’s tenant on it.
y.ackariya t Tien edict (1930) .33 X. L. R. 311, not followed.
ApPEAL from a judgment of the Court of Requests, Colombo.
II. IV. Jaycicardene, Q.G., with D. R. P. Goonetillele. for the defendant-appellant.-
G. Ranganathan, for the plaintiff-respondent.
Car. adv. vult.
•July 18, 1955. de Silva J.—This is an appeal in an action for rent and ejectment. The plaintiffinstituted this action on July 29th, 1953, to eject the defendant frompremises Ho. 23 1/1 situate at Kirillapone on the ground that he hadfailed and neglected to pay rent from May ISth, 1950. According tothe plaintiff the premises in question belonged to one Piyadasa Pereraand the defendant occupied the same on a monthly tenancy under thesaid Piyadasa Perera. On a writ issued against Pi3'adasa Perera the landon which the building stands together with e*erytliing. standing thereonwas sold by Fiscal on 20.5. ’49 and purchased by the plaintiff. This salewas confirmed on 7.7.’49 and the plaintiff obtained Fiscal’s conveyanceP3 dated 1S.5A50. . The plaintiff was placed in possession of the land on4.10.’50. At that time the buildings standing on the land were in the
occupation of the tenants of Piyadnsa Perera. On 15.G.’50. the plaintiffgave an informal lease of the land and the buildings to Ratnayake. But.as the tenants failed to attorn to Ratnayake this lease fell through.Thereupon the plaintiff asked those tenants including the defendant topay rent- direct to him. The defendant failed to comply -with* thatrequest. Admittedly the defendant did not attorn to the plaintiffalthough he was asked to do so. It- is in evidence that the defendant waspresent at the Fiscal’s sale- at which the plaintiff became the purchaserof the land in question. The defendant filed answer stating that premisesXos. 23 1 /I to 1/5 belonged to one Iv. D. Mithrasena and that he was inoccupation of premises Xo. 23 1/2 as Mithrasena’s tenant. He prayedthat the plaintiff's action be dismissed with costs. After trial the learnedCommissioner of Requests held that the defendant was in occupation ofjircmiscs No. 23 1/1 and not 23 1/2 as alleged by him. He further heldthat the defendant entered into possession of premises 23 1/1 as thetenant of Piyadasa Perera and that the plaintiff had terminated thetenancy by a notice to quit given on June 2Gth, 1952. Accordinglyjudgment was entered in favour of the plaintiff. This appeal is fromthat judgment…
The learned Commissioner’s findings of fact were not canvassed at thehearing of this appeal. Mr. Jnyawardenc who appeared for the defendantargued that the plaintiff was not entitled to sue the defendant on thebasis of a tenancy as admittedly the defendant had not attorned to theplaintiff. Til Silva v. Silva* Pereira J. and Sampayo A. J. held that thepurchaser from the landlord of the leased premises was entitled to sue onthe contract- of lease entered into between the landlord and the tenantand cited with approval the following passage from Wille on “ Landlordand Tenant in South Africa.” (221)
” A purchaser from the landlord of the property leased steps intothe shoes of the landlord, and receives all his rights and becomessubject to all his obligations so that he is bound to the tenant, and thetenant is bound to him, in the relation of landlord and tenant.”
This principle was affirmed by Wood Renton C.J. and do Sampayo J. inthe subsequent case W ije.sinrjhc v. Charles.- Tii regard to these two easesMr. Jayawnrdenc submitted that the purchaser at a Ficsal’s sale did notstand on the same footing as a purchaser from the landlord. I am unableto agree with that contention. There is authority for the propositionthat the purchaser at a Fiscal’s sale of the landlord’s interest in theleased property stands in the shoes of the execution-debtor in regard to acontract of tenancy. It was so held in Simon 3Iorris v. Henry Mortimer 3.In that case the plaintiff had purchased the landlord’s interest, in thepremises of which the defendant was a tenant at an execution-sale. Itwas held that the tenant was bound to pay rent to the plaintiff.Bias J. stated in that ease :— ……..
“ He (tenant) seems to have been aware of the execution sale and thepurchase by the plaintiff "and he cannot now be allowed to set up apayment of the rent to the execution-debtor after the plaintiff had
1 (If) 13) 10 .V. b. 7i. 315.- (1015) IS X. b. II. ICS.
■ * (IS70) 2 S. C. C. 90.
purchased the land. The defence set up is that the execution-debtor’sinterest in the land was merely a life interest. This may or may notbe tine, but whether the execution-debtor had an absolute or conditionalright, that right is now in the plaintiff, and the defendant is bound topay the rent to the plaintiff who now stands in the shoes of the execution-debtor.”
Mr. Jayawardene relied on the case of Zackariya v. Benedict,1 a casedecided by a single judge. The facts in that case were as follows :—Benedict took on rent certain premises from one Ahamed who was theowner of the same. Ahamed later gifted these premises to Zackariya theplaintiff. When the plaintiff requested Benedict to pay rent to him thelatter refused to do so and even questioned the validity of the deed ofgift. Thereupon the plaintiff sued Benedict for rent and ejectment.But his action was dismissed in the Court below. The plaintiff appealed,and the appeal too was dismissed. Swan J. who decided the appealappears to have based his decision on certain observations made byde Sampayo J. in Wijesinghe v. Charles. Those observations were madeby dc Sampayo J. in regard to a purchaser who was not prepared to takeover possession of the property along with the vendor’s tenant. Such apurchaser the learned Judge stated,
“ May either stand on the strength of the title and sue the third partyin ejectment, or he may at once bring the action ex empto against hisvendor for failure to implement the sale by delivery of possession.”
That this dictum applied only to a purchaser who was unwilling to takeover possession of the property with a tenant on it,- is clear, from anearlier statement made in the same judgment which reads :—
tc There is no doubt that under the Roman Dutch Law a purchaserhas the right to recover the rent accruing since the sale from a tenantwho had been let in by the vendor.”
There is no doubt that there is a conflict between Silva v. Silva andWijesinghe v. Charles on the one hand and Zackariya v. Benedict on theother. If I may say so with respect, the two earlier cases should befollowed as each one of them was decided by a Bench of two judges. Theposition is also made clear in the judgment of Gratiaen J. in de Altais v.Perera 2 where he stated :—
“ It would therefore seem that a tenant who remains in occupationwith the notice of the purchaser’s election to recognize him as a tenantmay legitimately be regarded as having attorned to the purchaserso as to establish privity of contract between them.”
In the instant case the plaintiff expressed his willingness to recognizethe defendant as his tenant.. .
For the reasons set out above the judgment of the learned Commissioneris affirmed and the appeal is dismissed with costs. ….–
Appeal dismissed.
{1950) 53 X. L. R. 311.
* (1951) 52 .V. Tj. R. 432.