CROOS v. SAKAFF

008-SLLR-SLLR-1998-1-CROOS-v.-SAKAFF.pdf


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Sri Lanka Law Reports
(1998) 1 Sri LR.
CROOS
v.SAKAFF
COURT OF APPEALWEERASEKERA, J„
WIGNESWARAN, J.
A. NO. 749/85 (F)
C. MATARA 5206/LFEBRUARY 2, 1995JANUARY 24, MARCH 21, 1996FEBRUARY 05, MAY 14, 1997JUNE 16, 1997.
Rei Vindicatio Action – Rent Act No. 7 of 1972 S. 36 (2) (a) and S. 36 (3)- Succession to tenancy.
The plaintiff-respondent filed action for declaration of title. It was her position thatthe premises in suit was let by her late husband to one L.S. and after the latter'sdeath it was alleged that defendant-appellant was in unlawful occupation. Thedefendant-appellant's position was that he was a brother of the original tenantand that he had succeeded to the tenancy after the death of L.S. in terms ofs. 36 (2) (a).
Held:
At most the evidence shows that the defendant-appellant was a half-brotheror stepbrother of the deceased tenant. The relevant section does not includehalf/stepbrother into the category of a brother. (ii)
(ii)There was no proof that the defendant-appellant was a member of thehousehold of the original tenant during the period of 3 months precedinghis death as required by S. 36 (ii).
APPEAL from the judgment of the District Court of Matara.
Cases referred to:
1. U. G. Ariya Kandi v. Mohamed A. W. F. Mohamed Sideek S.C. 520/69SCM 26.6.75.
A. K. Premadasa, PC, with C. E. de Silva for defendant-appellant.
Faiz Musthapha, PC, with M. S. M. Suhaid for plaintiff-respondent.
CA
Croos v. Sakaff (Wigneswaran, J.)
69
October 28, 1997WIGNESWARAN, J.
The plaintiff-respondent filed this action for declaration of title.Her position was that the premises in suit bearing assessmentNo. 79/1, Sri Dharmarama Mawatha, Fort, Matara, was let by her latehusband to one Leonard Samarakoon. After the latter's death it wasalleged that the defendant-appellant was in unlawful occupation.
The defendant-appellant's position was that he was a brother ofthe original tenant and that he had succeeded to the tenancy inNovember, 1974 after Leonard Samarakoon died on 23.11.1974 interms of section 36 (2) (a) of the Rent Act.
After trial judgment was given in favour of the plaintiff-respondenton 06.12.1985.
The learned President's Counsel appearing for the defendant-appellant has taken up the following matters in appeal:
Under sec. 36 (2) (a) a parent, brother or sister becomesentitled to tenancy provided they had been members ofthe household of the deceased tenant for a period of 3months preceding tenant's death. The defendant-appellantbeing a brother or halfbrother of Leonard Samarakoonwas therefore entitled to claim tenancy.
Under section 36 (3) when several persons are entitledto tenancy the landlord must make an application to theRent Board to ascertain as to which of the persons shouldbe deemed to be the tenant. Until this is done personsentitled to tenancy cannot be ejected. Such an applicationto the Rent Board was not made in this instance. 3 * * * *
(3)A monthly tenancy is not terminated by the death of a
tenant. The erstwhile tenant’s successors did not become
trespassers on the death of the tenant. (The decision in
U. G. Ariyanandi v. Mohamed A. W. F. Mohamad Sideekf11
referred to).
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Even if the defendant-appellant was deemed not a brotherof Leonard Samarakoon (but only as a half-brother towhom the provisions of sec. 36 (2) (a) of the Rent Actwould not apply), yet he was entitled to occupy thepremises under his mother Marian Crooz and half-sisterIrene Samarakoon.
The learned trial Judge erred in holding that thedefendant-appellant was not residing in the premises insuit when his residence from 1973 was admitted in theplant.
These submissions would now be examined—
It was admitted on 24.02.1983 (vide page 75 of the brief) that theprovisions of the Rent Act applied to the premises in suit.
The relevant portions of section 36 (2) (a) of the Rent Act readas follows:
Any person who –
(a) in the case of residential premises the annual value ofwhich does not exceed the relevant amount and which has beenlet prior to the date of commencement of this Act-
is the surviving spouse or child, parent, brother or sisterof the deceased tenant of the premies or was a dependant ofthe deceased tenant immediately prior to his death; and
was a member of the household of the deceased tenant(whether in those premises or in any other premises) duringthe whole of the period of three months preceding his death;shall subject to any order of the board as hereinafter providedbe deemed for the purposes of this Act to be the tenant ofthe premises.
At most the evidence shows that the defendant-appellant was ahalf-brother or stepbrother of the deceased tenant. The relevant sectiondoes not include half-brother or stepbrother into the category of abrother.
CA
Croos v. Sakaff (Wigneswaran, J.)
71
The learned District Judge had come to a finding that the defendant-appellant was resident in Makola and that he occasionally visited thepremises in suit, (vide P13).
Even when Leonard Samarakoon was living the defendant-appel-lant had attempted to establish tenancy rights to the premises in suitbehind the back of Leonard Samarakoon. (vide P2). But by P3 thelandlord at that time repudiated his claim. Applications by defendant-appellant dated 25.04.73 (P18) and 21.01.75 (P6) to the Rent Boardclaiming to be tenant of the premises in suit before and after the deathof Leonard Samarakoon were both dismissed. In the later applicationthe defendant-appellant failed to prove either he was a brother ofdeceased Leonard Samarakoon or that he was a member of thehousehold of the deceased during the whole of the period of threemonths preceding Leonard Samarakoon's death. The defendant-appellant did not appeal against such order of the Rent Board.
Thus the learned District Judge was correct in holding that thedefendant-appellant was not a surviving brother of Leonard Samarakoonnor his dependent immediately prior to Leonard Samarakoon's death.There was also no proof that the defendant-appellant was a memberof the household of the original tenant during the period of 3 monthspreceding his death as required by section 36 (2) (a) (ii).
Since the defendant-appellant was not a person who was deemedto be a tenant in terms of section 36 and since there was no contestas between Marian Crooz, Irene Samarakoon and the defendant-appellant as to who should succeed to tenancy there was no questionof the plaintiff-respondent having to make an application to the RentBoard in terms of section 36 (3).
Even the learned District Judge accepted the position that amonthly tenancy was not terminated by the death of the tenant. Butsince the defendant-appellant was neither a brother nor dependentof Leonard Samarakoon he was right in holding that the defendant-appellant became a trespasser.
When the defendant-appellant failed to establish that he cameunder the provisions of section 36 (2) of the Rent Act he attemptedto take a new position that Marian Crooz who was the mother of theoriginal tenant had succeeded to the tenancy on her son's death and
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that Marian Crooz had permitted defendant-appellant to occupy thepremises in suit. This position is inconsistent with the original positiontaken up by the defendant-appellant in his pleadings and at the trial.In any event neither Marian Crooz nor Irene Samarakoon claimedtenancy. Therefore the question of the defendant-appellant becominga licensee of either of them nor a dependent of Marian Crooz doesnot arise.
The finding by the District Judge that the defendant-appellantwas resident at Makola was based on a consideration of the Gampahacase filed to eject defendant-appellant from the premises he occupiedat Makola and many other facts. Even though paragraph 10 of theplaint had indirectly admitted to the defendant-appellant residing inthe premises in suit such reference by itself cannot preclude the courtcoming to its decision independently on the evidence led in the case.In any event no admission was recorded on the basis of paragraph10 of the plaint that the plaintiff admitted residence by the defendanton the premises in suit for a period of over 3 months prior to thedeath of Leonard Samarakoon. The evidence is overwhelming thatthe defendant-appellant had resided elsewhere but tried to asserttenancy to the premises in suit even during the lifetime of LeonardSamarakoon and then after his death but that such assertions werenot accepted by the Rent Board.
Under the circumstances this court finds no reason to interfere withthe judgment of the learned District Judge, Matara, dated 06.12.85.The appeal is dismissed with incurred costs payable to the plaintiff-respondent by the defendant-appellant.
WEERASEKERA, J. – I agree.
Appeal dismissed.