125-NLR-NLR-V-30-EDIRISINGHE-v.-DASSANAIKE.pdf
( 447 )
Present: Akbar J.
EDIRISINGHE v. DASSANAIKE.
66—C. R. Matale, 18,951.
Landlord and tenant—Several lessors—Notice to quit given by one—Action for ejectment.
Where there are several lessors to a lease, a notice to quit givenby one is insufficient to terminate the tenancy.
A
PPEAL from a judgment of the Commissioner of Bequests,Matale.
R. C. Fonseka, for plaintiff, appellant.
• N. E. Weerasooria, for defendant, respondent.
June 10, 1929. Akbar J.—
The plaintiff sued the defendant for ejectment from a certainland and for damages, alleging that the defendant was a tenant ofthe appellant’s mother and that he refused to quit after notice wasgiven to him to quit and deliver over possession of the premises let.The facts are clearly proved and there seems to be no disputeabout them, the appeal being on points of law. The defendantwas at first in possession of the land on a notarial deed executed in1920 for five years. Later, on October 14, 1926, he was given aninformal lease by plaintiff’s mother, which runs as follows :—
1, the undersigned Dona Catherine Dias Wanigasekera Hamine,presently ofSNorth Matale estate, and my children, viz.,Dona Margaret Maud ifdirisinghe and Don Edward ThomasEdirisinghe, hereby lease the 3 lands owned by us, viz.,Madugahamulapillawa, Kosgollegederawatta, and Kos-gollegederawatta, and the tiled house situated thereon,which said lands situated at PaUegama, to Don JohnDassanaike Appuhamy of PaUegama at the rate of Rs. 35per each year for a period of 5 years ….
This document is signed only by plaintiff’s mother, Dona CatherinaDias Wanigasekera Hamine, but the words quoted by me statedthat the lessors are the mother and her two children, namely,plaintiff and his sister. • The plaintiff says in his evidence that heserved a notice to quit on November 2, 1927, which is a Proctor’sletter stating that the Prdctor has been instructed by the plaintiffto give defendant notice to quit. It will be observed that thenotice to quit does not mention the name of the plaintiff’s sister.
1929
1929
Akbab J.
Ediriainghe
v.
Dattanaike
( 448 )
This notice was served alter the death of plaintiff’s mother. Thedefendant on November 14 asked for two months’ time, but herefused to pay the damages which were also claimed by the Proctoron behalf of the plaintiff in the letter I have mentioned. As regardsthe claim for damages, appellant’s Counsel admits that he has noright owing to the non-joinder of plaintiff’s sister in the action, buthe has pressed this appeal on the ground that he is entitled to claimejectment. To my mind I cannot see how plaintiff can succeed inthis case without joining his co-lessee, namely, his sister. WiUe inhis Landlord and Tenant in South, Africa, page 321, states that“ If there are more than one landlord, each may bring the actionfor his proportionate share of rights under the lease of these rights ;it is probably only the right to claim the rent which could beseparated into proportionate shares.” Berwick’s Voet (XIX. 2, 21)is also to the Bame effect by inference. Appellant’s Counsel con-tends that this case should be sent back under section 17 of theCivil Procedure Code to enable the plaintiff to join his sister asa co-plaintiff. I do not think this will cure the defect in thenotice to which I have alluded above. The notice was only onbehalf of the plaintiff, and not on behalf of his sister. It is un-necessary for me to consider the further point of law which arose inthis action, namely, that as the notice was served on November 2,1927, asking the defendant to quit on or before December 3, 1927,it was a defective notice.
Mr. Fonseka has quoted Mr. Justice Drieberg’s opinion in Aunerisv. Arnolis.1 The respondent’s Counsel, however, based his case onthe authority reported in Bandara v. Appuhamy * In view of theopinion that I have formed, that the notice to quit is defective byreason of the non-joinder of plaintiff’s sister, it is unnecessary forme to.decide which case is applicable. I must therefore dismissthe appeal with costs.
Appeal dismissed.
1 c. Rec., vol. 10. p. 16.
• 2.5 N. L. R. 176,..