032-SLLR-SLLR-1982-1-Hewamallika-V.-Soma-Munasinghe.pdf
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Hewamallika r. Somu Munasinghe (So;a, J.)
339
SUPREME COURT
Hewamallika
V.
Soma Munasinghe
S.C. 291X1 — CA 325/73 (F) — DC Cdlorhbo No. !2609iL
Secnon IS Rent Restriction Act-Spouse deemed lobe tenant on hnf hand's death■■
One Janilcrip Kodithuwakku Hewamallika. jsif,ted premises No. 17 HvdcPark Corner. Slave Island to'the plaintiff his son in 1955. But after thegift'was made Jandens -Kodituv^akku' rented oiit the premises to H.B.Wilson.- In 1968 Jnrfderis Kodituwakku terminated the tenancy and institutedaction in the Court of Request for ejectment. But before the trial thetenant H.B. Wilson died and the case was abandoned. The widow ofWilson informed Jandcris Koditilwakk'u under Section 18 of Rent RestrictionAct that she was continuing its tenant'.'
The Plaintiff instituted this action for. declaration of title, recovery ofpossession and damages.
Held that Defendant (Wilson's- widow) must be deemed to be'-a statutorytenant succeeding to her husband's tenancy on his death, and a .vindicatorysuit does not lie.
Appeal from judgment of Court of Appeal.
BeforeCWanasundera J., Wimalanitne J., iindSoza J.
Counsel:H. L.deSilva, Senior Auorncy-at-Law with
Peter Jayasekcra for Defendant-Appellant.D.R.P.Gunatilakc for Plaintiff-Respondent.
Argued on:4.3.1982
Decided on:8.4.1982
Cur. tub. vult.
SO/A J.
'The suit before us has been constituted as a vindicatory actionfiled by the plaintiff against the defendant for a declaration of titleto premises No. 17, Hyde Park Corner. Slave Island. Colombo andfor recovery of possession of thenV along with damages at Rs. 55.48per mensem.
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Sri Lanka Law Reports
[1982] 1 S.L.R
The plaint proceeds on the footing that to begin with the defendant’shusband H.B. Wilson Silva (also known as H.B. Wilson) was atenant of these premises under the plaiptiff s father Jandiris KodituwakkuHewamallika who was acting for and on behalf of the plaintiff. Theplaintiffs claim that*his father was.actiqg for him was made for thefirst time in the plaint filed in this case. Indeed this claim is notsupported by any of the circumstances that have come to light inthis case and the learned District Judge rightly rejected it. LearnedCounsel who appeared for the plaintiff described this claim of agencyas a gift in the case to the defendant. Obviously the defendant fearsthe plaintiff even when'he is bringing gifts. Giving no hint whatsoeverthat he is acting for his son, the plaintiffs father terminated thetenancy of Wilson by notice dated 13.11.1968 and thereafter suedhim for arrears of rent and ejectment, in case No. 270 of the Courtof Requests of Colombo. After summons was served but beforeanswer was filed, Wilson died on 28.6.1969 and that action was notproceeded with. At this time the Rent Restriction Act No. 29 of1948 was in force and Wilson’s widow .the present defendant on24.10.1969 gave notice under section 18 of that Act to the plaintiffsfather, that she proposed to continue in occupation of the premisesas tenant thereof but he refused to acknowledge her as his tenantby his letter D5.
The plaintiff took up the position that as Wilson at the time ofhis death was a statutory tenant whose contractual tenancy had beenalready terminated, his widow was not entitled to take advantage ofthe provisions of section 18 of the Rent Restriction Act. But thisquestion has been now settled by the decision in Karunaratne vFernando ? where, a bench of two Judges held that an heir of astatutory tenant could avail himself of the provisions of section 18provided he had the stipulated qualifications. The contrary, view.jaiddown in Hensman v Stephen ^ decided by a single Judge was heldto be wrong. Indeed the decision in Hensman v Stephen if allowedto stand will defeat the very object of the rent laws. As SirimaneJ said in Karunaratne’s case (p. 461).
“The key note of the legislation introduced by section 18 isthe protection of the home after the death' of the tenant whowas protected by the Act.”.
The expression tenant must, be given .a broad construction > whichwill carry out the intention of Parliament. So far as continuance of,
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Hewamallika v. Soma Munasinghe (Soza. J.)
34.1
the, tenancy after the death, of the tenant goes it is only reasonablethat a .statutory tenancy is endowed with qualities of tenacity.-andperdurability. not ,|5§s than those of the contractual tenancy out-of-which it arose. Indeed section 36(1) of the Rent Act No. 7 of 1972has adopted the interpretation laid down in Karunaratne’s case andenacted that “a person shall be deemed to be the tenant of anypremises notwithstanding that his tenancy of-such premises has beenterminated by the expiry of the notice of the termination of thetenancy given by the landlord thereof, if at the time of his deathhe was in occupation of such premises". I have no difficulty inagreeing with the purposive interpretation adopted -by Sirimane J /inKarunaratne’s case.
Accordingly the present defendant must be deemed to be a tenantof the premises with effect from 1.11.1969 by operation of section18(2) of the Rent Restriction Act under the plaintiffs father despitethe latter’s refusal to acknowledge her as such by his letter D5.
It is in this background that we must examine the plaintiffs rights.Jandiris Kodituwakku Hgwamallika.had gifted the premises in suitto his son the plaintiff in 1955. So that at the time Jandiris KodituwakkuHewamallika let out the; premises to- defendant's husband Wilson,the plaintiff was the real owner of the premises. At no time did theplaintiff himself request Wilson or the defendant to attorn to him.Hence no blame can attach to the defendant for any failure on herpart to attorn to the plaintiff. The question of Jandiris KodituWakkuHewamallika being the agent of the' plaintiff is irrelevant to thequestion before us. In,fact at the time,.thp„p|aintiff filed the presentsuit the defendant was well within her:rights to regard the plaintiffsfather who was living at the time as her landlord.
As it would 'appearj the plaintiff filed the.present action.,withoutany prior'demand. Hence the, defendant's pleading -that she -is notaware of the plaintiffs title–is justified. The plaintiff-really'Stands inthe shoes of his father as'landlord-arid :is thereforenot: entitled tobring a suit to vindicate title. Presently the defendant has acknowlegedplaintiffs,..title. .It is not denied that rents due in respect of thesepremises are being paid in plaintiffs name to the Colombo Municipality.The defendant’s contention that she is the tenant of these premises
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under the plaintiff is entitled to succeed, she is entitled to theprotection of the Rent laws. In any event her tenancy has not beenterminated.' In thesS circumstances a vindicatory. Suit ^’'misconceivedand does not fie
I therefore allow this appeal and set aside the judgment of theCourt of Appeal and District Court. Let decree be entered dismissingplaintiff’s action with costs here as well as in the Court of Appealand in the District Court.
WANASUNDERA J. — I agree.
WIMALARATNE J. — I agree.
Appeal allowed
References:
(WO) 73 NLR 457
(1953). 55 NLR 89.