008-SLLR-SLLR-1995-2-DEVARAJAH-AND-ANOTHER-V.-ARIYATUNGA.pdf
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DEVARAJAH AND ANOTHER
v.
ARIYATUNGA
COURT OF APPEAL.
S. N. SILVA, J. P/CADR. RANARAJA, J.
A. NO. 687/88 WITH CALA 78/88
C. COLOMBO NO. 3149/REFEBRUARY 23, 1995.
Landlord and Tenant – Rent Act, No. 7 of 1972, Section 36(2) – Ejectment – Deathof tenant – Statutory fiction – Death of landlord – New contract of tenancy.
Plaintiff-respondent instituted action for ejectment of the defendant-petitioner.Defendant pleaded that he became the Tenant on 24.2.1973 upon the death ofhis father, the tenant of the premises. It was admitted that tenancy commencedon 24.2.1973; this was on the basis that the defendant succeeded to the tenancyof his father who died on 24.2.1973. The tenancy was terminated by notice dated29.12.1977 with effect from 31.3.1978.
The defendant challenged the Notice to quit on the ground that a tenancy whichcommenced on the 24th of a month, cannot be validly terminated by a Notice ofwhich the terminal date is the 31st of a month; this was on the basis that a newcontract of tenancy came into existence on 24.2.1973 upon the death of theformer tenant.
Held:
(1) Although the contract of tenancy is based on common law it is regulated inspecific respects by the statutory provisions as contained in Rent Act, No. 7
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of 1972. One specific instance of such statutory regulation is contained in Section36 which provides for the continuance of tenancy upon the death of a tenant ofpremises governed by the Rent Act. The requirements that should be satisfied forsuch succession are stated in relation to residential premises in paragraphs (a)(b) (c) of subsection (2). This subsection ends with the provision that the personsatisfying such requirements shall subject to any order of the Board as hereinafterprovided be deemed for the purposes of this Act to be tenant of the premises".Thus continuance of the tenancy is based upon a statutory fiction and not on afresh contract of tenancy.
(2) There is no provision parallel to section 36(2) which deems that the successorto the interests of the deceased landlord is the landlord of the tenant inoccupation. Hence the common law will apply and the tenant (whose occupationof the premises is protected by the Rent Act) may attorn to the successor aslandlord. Thus in the case of the death of the landlord a fresh contract of tenancycomes into existence.
Cases referred to:
Weerasuriya v. Manamperi 1992 – 1 S.L.R. 31.
Miriam Lawrence v. Arnoida 1984 -Vol. 1 Part IV 136 Bar Association LawJournal.
Sriyani Peiris v. Mohamed 1986 — 2 S.L.R. 385.
APPLICATION in Revision of the order of the Addl. District Judge of Colombo.
I. Mohamed with Hussain Ahamed for defendant-petitioners.
N. R. M. Daluwatta, P.C. for plaintiff-respondent.
Cur. adv. vult.
March 10, 1995.
SILVA, J. P/CA
This is an application in revision from the order dated 21.6.88.By that order Learned Addl. District Judge answered issue No.12,which was taken up as a preliminary issue of law, in favour of theplaintiff.
The above action was filed by the plaintiff-respondent forejectment of the defendants from premises bearing No. 2,Ketawalamulla Lane, Colombo 9, more fully described in theschedule to the plaint. Action has been filed on the basis that thepremises are governed by the Rent Act. There are two causes ofaction. The first is on arrears of rent and the second is on
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unauthorised-subletting. The defendant-petitioners filed answersdenying the causes of action and pleaded for a dismissal of theaction. The 1st defendant-petitioner in paragraph 3 of the amendedanswer dated 2.4.85 stated that he became tenant on 24.2.73 uponthe death of his father one S. Selliah who was the tenant of thepremises. At the commencement of the trial it was recorded as anadmission that the tenancy commenced on 24.2.73. It is clear thatthis admission is referable to paragraph 3 of the answer of the 1stdefendant (referred above) where it was admitted that he succeededto the tenancy of his father who died on 24.2.1973. According toparagraph 4 of the plaint tenancy had been terminated by noticedated 28.12.77 with effect from 31.3.78. It appears that issue No. 12was raised by the defendants as to whether the notice to quit is validin law on the basis that the tenancy which commenced on the 24th ofa month cannot be validly terminated by a notice of which theterminal date is the 31st of a month. This issue was taken as apreliminary issue of law.
Learned counsel for the defendant-petitioners submitted that anew contract of tenancy came into existence on 24.2.73 upon thedeath of the former tenant, as admitted by the respondent. On thisbasis it was contended that the tenancy would continue on a monthlybasis and can validly be terminated, at the end of a month namely,the 24th. Counsel for the plaintiff-respondent submitted that a freshcontract of tenancy did not come into existence upon the death of theformer tenant. He submitted that the continuance of the tenancy,upon the death of the former tenant, is not based on common law buton a statutory provision as contained in section 36(2) of the Rent ActNo. 7 of 1972. He submitted that in view of this provision thesucceeding tenant continues as the tenant on the basis of thecontract of tenancy which existed with the former tenant who haddied. Hence a new contract of tenancy cannot be considered ashaving commenced on 24.2.73 being the date of the death of theformer tenant.
We have considered the submissions of Learned Counsel inrelation to the order of the Learned Addl. District Judge made on thepreliminary issue of law. We have to note that although the contract oftenancy is based on common law it is regulated in specific respects
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by the statutory provisions as contained in Rent Act No. 7 of 1972.One specific instance of such statutory regulation is contained insection 36 which provides for the continuance of tenancy upon thedeath of a tenant of premises governed by the Rent Act. Therequirements that should be satisfied for such succession are statedin relation to residential premises and business premises inparagraphs (a), (b) and (c) of subsection (2). This subsection endswith the provision that the person satisfying such requirements “shall,subject to any order of the board as hereinafter provided, be deemedfor the purposes of this Act to be the tenant of the premises”. Thusthe continuance of the tenancy is based upon a statutory fiction andnot a fresh contract of tenancy. In the case of Weerasooriya v.Manamperi<1) a bench of two Judges of this Court held, following theobservations made by the Supreme Court in the case of MiriamLawrence v. Arnold(2), that the person succeeding to the tenancy ofthe deceased tenant in terms of section 36 is a “statutory tenant” andthat there is “no fresh contract of tenancy between the parties.”
Learned Counsel for the Petitioners submitted that we shoulddepart from the decision in Manamperi's case and follow the decisionin Sriyani Peiris v. Mohamed(3) where it was held that upon the deathof the Landlord, if the tenant continues in occupation under the newLandlord, a fresh contract of tenancy comes into existence. We haveto note that the situation arising from the death of the landlord is notregulated by a specific statutory provision as in the case of the deathof the tenant. There is no provision parallel to section 36(2) whichdeems that the successor to the interests of the deceased landlord isthe Landlord of the tenant in occupation. Hence the common law willapply and the tenant (whose occupation of the premises is protectedby the Rent Act) may attorn to the successor, as landlord. Thus in thecase of the death of the landlord a fresh contract of tenancy comesinto existence. It is not so in the case of the death of the tenant,where the common law is superseded by the specific statutoryprovision in section 36(2) of the Rent Act where it is provided that theperson entitled to succeed to the deceased tenant in terms ofparagraph (a) (b) or (c) is deemed for the purposes of the Act to bethe tenant. The contract of tenancy continues with the successor asthe statutory tenant. Therefore we cannot accept the submission of
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Learned Counsel for the defendant-petitioners. The application isdismissed. Each defendant-petitioner will pay a sum of Rs. 1,000/- ascosts to the plaintiff-respondent.
DR. RANARAJA, J. – I agree.
Application dismissed.