061-NLR-NLR-V-74-J.-E.-BRITTO-Appellant-and-A.-S.-SWAMIKANNU-and-4-others-Respondents.pdf
Brillo v. Swamikannu
200
1971Present : Weeramantry, J.
J. E. BR1TTO, Appellant, and A. S. SWAMIKANNU and 4 others,
Respondents
S. G. 102/6S—C. R. Colombo, 923GS
Rent Restriction Act—Subletting—Requisites of exclusive occupation and ascertainablerent—Whether sharing oj certain common areas o] accommodation negativessubletting—Definiteness of rent-—Proof.
Where defined areas or rooms of a rented house aro sublet by the tenant todifferent families and oach such family is in exclusive occupation of tho areasublet to it, a sharing by the familios of tho kitchen, a small common hall and thobathroom facilities of tho house does not negativo tho subletting.
Whore tho rent payable by different sub-tenants can bo calculated at anypoint of timo by a definite method, tho requirement of dofiniteness of rent■which is ossential to constitute a contract of lotting under tho Roman-Dutchlaw is satisfied.
Appeal from a judgment of the Court of Requests, Colombo.
Plaintiff sought ejectment of the five defendants on the basis thatthe first defendant had sublet the premises in suit to the other defendants.The evidence showed that the premises, which consisted of two rooms andtwo halls, had been partitioned with hardboard so as to form altogethersix rooms. Five of these rooms were admittedly in the exclusiveoccupation of families other than the first defendant’s, although theplaintiff was unable to specify the particular rooms occupied by particularfamilies.
The position taken up on behalf of the defendants was that the thirtyor more individuals who lived in the premises formed a group or“ chummery ” who lived together in the house, each family taking a turnat the monthly cooking for the entire group. They also shared a smallcommon hall and common bathroom facilities. Each family paid a
210
tYEERAMANTRY, J.—Britto i Sicamitannu
proportion of the rent depending on the number of i! adults ” it contained.A number of children between certain ages below 10 years, and allchildren above the age of 10 years, were reckoned as adults.
II. IV. Jayewardene, Q.G., with V. AruJambalam and G. 31. S.Satnaraueera, for the plaintiff-appellant.
RangancUhen, Q.C., with K. Skanmugam, for the 1st defendant-respondent.
Thillainalhan, with D. J. Tampoc, for the 2nd to 4th defendants-respondents.
Cur. udv. vult.
January 16, 1971. Weekamaxtkv, J.—
The plaintiff in this ease seeks the ejectment of five defendants on thebasis that the first defendant has sublet the premises in suit to the otherdefendants.
These premises were a part of a larger house which belongs to theplaintiff’s vendor, and would appear to have consisted of two rooms andtwo halls of that larger house.
The plaintiff's position was that at the time of his purchase only thefirst defendant and his brother were in occupation of the premises asfar as the plaintiff was aware. After his purchase however he came toknow that the first defendant had sublet these premises. On a subsequentinspection of the premises, he found that thej* had been partitioned withhardboard so as to form six rooms inclusive of the two halls—that is tosay, of the four units of accommodation that had been there earlier, twohad been sub-divided, so that there were now six.
It would appear from the householder’s lists, and this fact is not disputed,that at the time of institution of action more than 30 people, comprisingseveral families, were in occupation of these six rooms. It is the plaintiff’sposition that they have all come in, pursuant to various acts of sublettingby the first defendant. It is clear from the householder’s lists thatthe persons in occupation were members of different and distinct-families and that some of these families comprised as many as six orseven individuals each.
The position taken up on behalf of the defendants was a curious one,namely, that the thirty or more individuals who lived in these premisesformed a group who lived together in the house, each family taking aturn at the monthly cooking for the entire group. The expenses wereshared proportionately. Rent was also one of the items of expenditurein respect of which the members of this group, somewhat quaintlydescribed by the first defendant in evidence as a chummery, made acontribution to the common pool.
The rent due from each family was calculated according to the firstdefendant again on a most interesting and unusual basis—namely that
AYEER AMAXTR Y, J.—Britlo v. Stromikannu
21 I
five children between the ages of 3 and 5 were reckoned as one adult,three children between (he ages of 5 and 10 yva'rs were reckoned as oneadult, and all children above the age of 10 years were reckoned as adults.lDach family paid a proportion of the rent depending on the number of“ adults ” it contained.
As far as sleeping accommodation was concerned, the first defendantstated that the occupants of the house had no fixed places arid his evidenceat one point was that “ we sleep all over the house ”.
It was further stated by the first defendant that there was a commonhall where all the occupants sit and talk, that all use the same kitchen andthat there-is no separate place in the house set apart for the occupation ofany particular inmates. On the other hand lie has stated also that there issleeping accommodation in all six rooms and that each of these roomshas a door which can be locked. Out of the six rooms, five arc occupiedby the respective families living there.
The learned judge lias observed that although the plaintiff has spokento the occupation of the premises by various pernons he has not statedwhat particular rooms are occupied by the 2nd to the 5th defendants.He has also noted that the plaintiff has failed to prove that a fixed amountis paid by way of rent to the landlord by eacli of the alleged sub-tenants.On this basis he lias held that the plaintiff lias failed to prove sub lettingand ho has dismissed the plaintiff's action with costs.
In appeal it is contended on behalf of the appellant that the tests ofexclusive occupation and ascertained or ascertainable rent are bothsatisfied in the present ease and that there is in the circumstances asubletting in law by the first defendant to the other defendants.
By way of reply to this contention the respondent has urged the furtherpoint that in any event the sharing of the common hall and the commonkitchen not to speak of common bathroom facilities is also a factor thatmilitates against sub-letting.
I shall deal first with the contention that there is no defined area andin association with that question I shall examine the submission thatthe sharing of common areas of accommodation negatives subletting.
I shall thereafter consider the contention that there is no definiterent.
I am not impressed by the evidence of the first respondent that thooccupants “ sleep all over the house ”. A perusal of the householder’slists would indicate that there are persons of all ages in these families andI do not for a moment believe that this groiqi of more than thirty men,women and children sleep indiscriminately in various parts of the house.
It is quite clear that the rooms which can be separately locked are thosewhich each family has come to look upon as the sleeping quarters allottedexclusively to itself. Of course the adult males of each family wouldsleep outside their rooms if there is insufficient accommodation within,but this is not for lack of a defined area exclusively occupied by eachfamily. Indeed at one stage of the evidence the first defendant was
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VVEERAMAJiTRY, J.—Britto v. Swamikannu
constrained to admit that the males sleep in the verandah and the femalessleep inside the house, and the children with their mothers.
For the same reason the evidence that the premises were being run asa “ chummery ” is altogether unacceptable, if the idea sought to boconveyed is that all these persons of both sexes and of all ages wereliving together sharing common accommodation as is done in what ispopularly understood to be a “chummery”. I do not agree with thelearned judge when he holds that the occupancy of the premises on thebasis of a " chummery ” must, be preferred to the plaintiff’s allegation ofsub-tenancy.
The next submission to be considered is the respondent’s contentionthat the use of the common hall and the common kitchen constitutedimportant additions to the right given to the tenant which made thetransaction substantially one other than a transaction of letting theroom.
Having regard to the fact that the portion used in common is nothingother than one of the small divisions of six rooms into which the premiseswere divided and having regard also to the fact that each family occupiesthe kitchen only for a period of one month every five months, I do notthink the use of the so-called hall and the kitchen are of sufficientimportance to enable this Court to take the view that the substantialsubject matter of the contract of letting is anything other than the roomwhich each family occupied. The use of the hall and the kitchen weremcrclj7 adjuncts of the particular subject matter of the letting, namely aroom which each family was able to occupy dividcdly and exclusively.
On behalf of the respondents I have been referred to certain Englishdecisions where a sharing of the kitchen has been looked upon as indicativeof a sharing of the entire house, as distinguished from the tenancy of aportion. Thus in Kenyon v. Walker1 the tenant had allowed anotherperson the exclusive use of certain rooms of the house together withthe use in common of a box room, bathroom and toilet. The tenantasserted that there was no subletting and that the Rent RestrictionActs did not apply since this was only an arrangement to share the houseand did. not amount to a lotting of a separate dwelling. The judgmentdrew a distinction between the use of such amenities as bathrooms anclbox rooms which were considered purely ancillary to the contract ofletting, and the use of a kitchen, which was considered to indicate asharing of the entire house. So also in Cole v. Harris.2 Mackinnon, L.J.in a passage.cited with approval in Kenyon v. Walker 3 observed “Thereis a letting of a part of a house as a separate dwelling within the meaningof the relevant Acts if, and only if, the accommodation which is sharedwith others docs not comprise any of the rooms which may fairly bedescribed as ‘ living rooms ’ or ‘ dwelling rooms ’. To my mind a kitchen isfairly described as a living room where the occupants spend the greaterpart of the day ”.
1 (104C) 2 All E. R. 595.1 {194$) 2 All E. R. 140 at 152.
3 (1940) 2 All E. R. 595 at 60S.
WEERAMANTRY, J.—Britco x-. Swamikatmu
21»
On the basis of such decisions Mr. Renganathan has submitted that»he evidence that the families took monthly turns in doing the cookingwas indicative of a sharing of a common kitchen and was strong evidenceagainst- subletting.
In the first place 1 think a distinction must be drawn between thekitchen of an English household and the kitchen of a household inthis county. For climatic and other reasons a kitchen in England issomething more than merely a place where cooking is done, for as hasbeen pointed out in the very judgments referred to, a kitchen is a socialcentre for the entire house where the occupants meet and to which theytend to drift for the warmth and the c-omfort which it offers. It istherefore an important common room of the building—and this cannotbe said of the average kitchen in this country.
Moreover the English cases to which the respondents have madereference are in fact cases decided against a somewhat different statutorybackground where the question is not whether a distinct portion of thebuilding has been sublet but whether it has been let as a separateihcc-lling.
The English cases are therefore not directly helpful on the questionwhether there is a subletting or not.
However oven if value is to attach to English cases as a source ofguidance to us in construing our Statute, there is a later decision of theHouse of Lords in Baker v. Turner1 where Lord Porter expressed theview that a tenant who sublets a portion of the house he occupies andgives a right to his tenant to use the kitchen, may not in fact share hiskitchen and that ho may retain many rights which tire sub-tenant doesnot enjoy. For example the tenant continues to have general controlof the kitchen subject only to the rights he has granted, while thesub-tenant has nothing but- the rights which his landlord has given.
For these reasons I do not think that the sharing of the kitchen in thepresent case is an indication against subletting as Mr. Renganathansought- to argue. Further, in regard to the common use of the bathroom,this is no indication one way or the other. Even those English casessuch as Koinjon v. Walker which accorded a special position orimportancein the kitchen made it quite plain that the common use of bathroomsand lavatories is on an entirely different fooling and does not militateagainst the notion of a separate letting.
Reference was also made at the argument to a line of Ceylon authoritiesindicating that it is essential to a subletting that there should be a definedarea sublet. This line of cases starts with the judgment of Gratiaen J.in Suppiah Pillai v. AluHukarupjia Pillai2 wherein the principles ofcommon law were invoked in order to determine whether there has beena subletting, one of theso principles being that the thing hired should becapable of ascertainment as an identifiable entity occupied by thesub-tenant to the exclusion of the tenant. On this basis Gratiaen J.
1 (1950) 7 All E. ft. 834.■‘ [7033) 54 S. L. 57?.
2H
VEERAMA.MTRY, J.—Britlo v. Swami&atinu
held that no breach of the provisions of the Act is committed if a tenantwhile himself remaining in occupation of the leased premises merolypermits someone else to share his uso and enjoyment with him. Heheld further that the essential test in every case is whether there isevidence from which one can infer that there is at least some part of thepromises over which the tenant has by agreement placed the sub tenantin exclusive occupation. This judgment lias been followed in severalcases thereafter of which it will suffice to mention the judgment ofWijayatilake, J. in John Singhov. Marian Ecebic1 wherein the authoritiesare summarised and the same test is repeated.
In the present caso there is no doubt that some rooms are now in theexclusive occupation of particular families. The landlord is of courseunable to stato which particular family occupies any particular room,but on the first defendant’s own evidence it seems clear that, at leastfive of the rooms are in the exclusive occupation of families oilier thanhis own. To this extent there is compliance with tin* requirement ofexclusive possession of some part of the premises by the allegedsub-tenants. In a case such as this it ii quito impossible for a landlordto stato more than he has done. The details of occupation aro a matter•specially within the knowledge of the tenant and are in the circumstancesalmost impossible for the landlord to ascertain. I do not think it canfairly be urged as a circumstance against the landlord that ho is unableto specify the particular rooms occupied by particular families.
For all these reasons 1 do nob think flint the circumstances revealed inevidence in the present case militate in any way against tlie principleslaid down by our courts indicating the necessity for exclusive possessionof a defined area as a requisite to the proof of subletting. This test issatisfied by the exclusive use of the various rooms referred to by therespective families concerned: and the sharing of the kitchen or otherportions of the premises in no way derogates from the character ofsubletting which attaches to the transaction between the first defendantand the other defendants.
Coming now to the other question, namely the requirement of a fixedand defined rent, Mr. Jayewardcno has submitted that while it is truethat the first defendant's evidence does not reveal a fixed quantum ofrent it certainly reveals a definite method of calculating the rent. Thereis a formula to which I have already referred which determines thc-proportionate rent payable by the respective tenants and (he rent isthus at any point of time ascertainable. It may vary from time tolime. The rent of a paddy field may be fixed in terms of a one-fifthshare of the produce from the field, ami (hough the rent would thusvary from season to season, there would he a definite method availablefor its assessment, and the requirement of an ascertained or ascertainablerent would thus be satisfied
1 (1960) IS C. h. If. 107.
–
Her, Lnliiny, s. 37
Felix Stay ho r. Urban Council, Kalulara
21.5
Though the method for computing the rent is unusual and cumbersome,upon the evidence of the first defendant himself, the rent mould boknown the moment- the number of occupants of the respective familiesis known and it would thus be a factor determinable with precision atanj' point of time.
I do not agree therefore that there is a lack of that definiteness inrent which is essential to constitute a contract of letting under theRoman-Dutch Lair.
[ therefore conclude that in the circumstances of the present casethere is a- subletting by the first defendant to the other defendants and Iarrive at this conclusion upon the basis of the law as understood andapplied in our courts hitherto.
I would also like to make a further observation that the court shouldhesitate to construe a situation in such a manner that- the result wouldbe to permit persons so minded to drive a coach and six through, theOrdinance and flout the self-evident object of the Legislature. Theresult of the interpretation sought to be placed on the facts by therespondents would be to permit with impunity the letting of portionsof premises to a score of persons who arc strangers to the landlord,when the Legislature forbids a letting even to one.
Tt is useful to draw attention to the importance of taking a realisticview of the Statute rather than a view which by too much reliance ontechnicality may defeat the very mischief which the Statute was designedto prevent.
For those reasons I think the learned judge erred when lie took thoview that the plaintiff had failed to prove the requisites of a sublettingand dismissed Die plaintiff’s action with costs. I would reverse thejudgment of the learned trial judge and enter judgment for the plaintiffas prayed for with costs both here and in the court- below.
Appeal allowed.