KODITUWAKKU ARATCHI v. NELIYA WADUGODAPITIYA

012-SLLR-SLLR-1992-2-KODITUWAKKU-ARATCHI-v.-NELIYA-WADUGODAPITIYA.pdf


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KODITUWAKKU ARATCHI
v.
NELIYA WADUGODAPITIYA
COURT OF APPEALWIJEYARATNE, J„ AND. WEERASEKERA, J.
CA APPEAL NO. 1000/82(F)D.C. KANDY NO. 12769/L5TH OCTOBER. 1992.
Landlord and Tenant – Dependant – Section 36(2)(a) (i) Rent Act.
Where an elderly lady about 80 years old was living in a rented flat and thedefendant (a young woman in her early 201s) was brought to live in and look afterher and attend to her needs for which she received periodical payments and wasalso provided with clothes and sent to batik classes:
Held: that on the death of the lady the defendant was not entitled to succeed tothe tenancy as she was not a dependant within the meaning of section 36(2) (a)(i)of the Rent Act.
The defendant was a domestic servant or an-aide whose connection with the ladywas based on contract, express or implied.
A dependant must be a dependant in the proper sense of the word and not onewho merely derives some benefits from another.
In the absence of any definition of "dependant" in the Rent Act. the authoritiesestablish following propositions:-
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Dependency is not based upon any legal obligation to maintain.
A dependant is a person who derives support wholly or mainly for his orher subsistence upon another.
It is a question of fact upon the facts and circumstances of each casewhether a person is a dependant of another.
Cases referred to:
Re 8a//(1947) Ch. 228.
Re Baden's Trust -2(1973) Ch. 9.
McClean and Wife v. Moss Bay Iron and Steel Co. Ltd. (1909) 2 KB 521.
Smelting Co. of Australia v. The Commissioner of Inland Revenue (1897)1 Q.B. 275.
Turton v. Turnbull (1934) 2 K.B. 197.
Stile Hall Properties Ltd. v. Gooch (1979) 3 All E.R. 848, 851.
APPEAL from judgment of the District Court of Kandy.
A. K. Premadasa, PC. with C. de Silva for Plaintiff-Appellant.
L C. Seneviratne, PC. with L. Perera for Defendant-Respondent.
Cur. adv vult.
27th November, 1992WIJEYARATNE, J.
The plaintiff filed this action on 4.9.80 for a declaration of title andejectment of the defendant from premises No. 23-2/11 DaladaVeediya, Kandy. Also the plaintiff had claimed a sum of Rs, 1,500/- asdamages and Rs. 100/- per month as continuing damages tillpossession was restored.
The defendant in her amended answer had taken up the positionthat these premises were governed by the Rent Act, No. 7 of 1972,that the authorised rent was Rs. 50/92, that Miss F. M. Struyz was thetenant of these premises and while she was a tenant of thesepremises she died on 2.11.78, that the defendant was a member ofMiss Struyz's household for three months prior to her death, and that
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she was a dependant of Miss Struyz prior to her. death andaccordingly claimed to have succeeded to the tenancy under theprovisions of the Rent Act.
The title of the plaintiff to these premises was admitted andtherefore the main issue of the case was whether the defendant was:
a dependant of Miss Struyz immediately prior to her death,and
a member of her household during the whole of the period ofthree months preceding her death,
in terms of section 36(2) (a) of the Rent Act.
The learned Additional District Judge by his judgment dated31.8.83 held that the defendant succeeded to the tenancy of MissStruyz under section 36(2) (a) and dismissed the plaintiff’s action withcosts; from which judgment and decree this appeal has been filed.
The evidence in this case reveals that the defendant was a youngperson in her early twenties living in Gelioya, which is situated a fewmiles away from Kandy and both her parents were deceased.
Miss Struyz was an elderly Burgher lady around 80 years living inthese premises. She had another elderly woman to look after her.Mrs. J. M. Fernando who was a relative of Miss Struyz was living inColombo and used to visit her. The defendant also used to come tothis same building where these premises and certain other flats werelocated to see a relation of hers. The defendant had come to knowMrs. Fernando, who had requested the defendant to stay in thesepremises and look after Miss Struyz. Accordingly in about 1975 or1976 she had begun living in these premises and was looking afterthe needs of Miss Struyz. She admitted that previously she did nothave any job but was looking out for a job. She stated that shelooked after Miss Struyz even while she was warded at a NursingHome and attended to her needs and for this she received periodicalpayments.
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The defendant admitted that her ration book continued to remainregistered at her house in Gelioya where she had lived earlier;likewise she was registered as a voter at her home in Gelioya allthese years.
Miss Struyz died on 2.11.78 and thereafter Mrs. S. M. Fernandohad made an application dated 19.12.78 (P9) to the Rent ControlBoard of Kandy to be recognised as tenant of these premises.However Mrs. Fernando withdrew her application on 30.10.79 (videP2). The defendant had made a similar application to the RentControl Board of Kandy dated 8.5.79 (P13) and this is pending andawaiting the outcome of this case.
The question arises whether the defendant was a “dependant"within the meaning of section 36(2) (a) of the Rent Act. The word,“dependant” has not been defined in the Rent Act. Both learnedcounsel cited various definitions of “dependant” from legaldictionaries in England, but these are not quite relevant as they relateto various other contexts in which this term is used (as for instance,under the Workmen’s Compensation Act of England and variousother Statutes in England).
In Re Ballm it was held that a gift in a Will to a dependant was notsufficiently certain to take effect. However in Re Baden’s Trustw itwas held that "dependants” are persons wholly or in part dependentupon the means of another and its inclusion in the clause of asettlement did not render the clause void for uncertainty.
It should be kept in mind that a dependant must be a dependantin the proper sense of the word and not merely a person who derivessome benefit from any person.
The ordinary dictionary meaning of the word “dependant" is onewho depends on another for support or maintenance, or a person forwhose maintenance one is responsible.
In McClean and Wife v. Moss Bay Iron and Steel Co. Ltd.™ it washeld that dependency is irrespective of legal obligation to maintainand is a question of fact in each case.
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In the absence of any definition of “dependant” in the Rent Act, theauthorities establish the following propositions:-
Dependency is not based upon legal obligation to maintain.
A dependant is a person who derives support wholly ormainly for his or her subsistence upon another.
It is a question of fact upon the facts and circumstances ofeach case whether a person is a dependant of another.
All this evidence points to the fact that the defendant wasemployed as a servant or an aide of Miss Struyz. Domestic servantsor aides are not “dependants". Their connection with the employer isbased on a contract, express or implied. The fact that Miss Struyzprovided her with clothes and sent her to batik classes merely showsthat she was a kind and generous employer. This does not make thedefendant a dependant of Miss Struyz.
It was never the intention of the Rent Act to enable domesticservants or aides to succeed to the tenancy on the death of theiremployer.
The fact that at first Mrs. J. M. Fernando and later the defendanthad made applications to the Rent Control Board to succeed to thistenancy shows that there was a doubt in the matter.
As submitted by learned counsel for the plaintiff-appellant Mr. A.
K.Premadasa, the provisions of section 36(2)( (a) refer to a person ina family, namely the surviving spouse, a child, a parent, a brother orsister of the deceased tenant. Therefore he argued that the word“dependant” which follows should be interpreted in reference, to onewho is connected to the family.
There is force in this contention and the rule of ejusdem generis inthe construction of statutes is applicable in the matter. The ejusdemgeneris doctrine has been described in the words of Lopes, LJ inSmelting Co. of Australia v. The Commissioner of Inland Revenue"1 asmeaning “that where general words immediately follow or are closely
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associated with specific words, their meaning must be limited byreference to the preceding words.
In Bindra’s “Interpretation of Statutes” (7th Edn. 1984) it is statedas follows at page 339:-
“The rule of ejusdem generis is that where general wordsfollow particular and specific words of the same nature, thegeneral words must be confined to the things of the same kindas those specified. But it is clearly laid down by decided casesthat the specific words must form a distinct genus or category. Itis not an inviolable rule of law, but is only permissible inferencein the absence of an indication to the contrary.”
Therefore the wording of this section suggests that the dependantshould also be one connected to the family and certainly not aservant.
The Rent Act interferes with the common law rights of the landlordand hence should be strictly interpreted.
In Bennion's "Statutory Interpretation” ('984 Edn.) it is stated asfollows at pages 620 and 621
“In Turton v. Turnbull® Scrutton, LJ said of a point on s.12 ofthe Agricultural Holdings Act 1923-
‘As by the Act (the landlord) is being deprived of hiscommon law rights. I think we must construe the Act withsome liberality in his favour and scrutinise the tenant’sclaim with some strictness.’
The social changes which have occurred since this case wasdecided in 1934 would now weigh the scales more heavily infavour of the tenant.
Where property rights given at common law are curtailed bystatute, the statutory conditions must be strictly complied with.Thus Davies, LJ said of the Landlord and Tenant Act 1954: ’Thestatute, as we all know, is an invasion of the landlord’s right, for
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perfectly proper and sound reasons; but it must be construedstrictly in accordance with its terms’ (Stile Hall Properties Ltd. v.Goochm).
For these reasons I hold that the defendant was not a dependantof Miss Struyz within the meaning of section 36(2) (a) (i) of the Actand is not entitled to succeed to the tenancy. Hence the otherquestion under section 36(2) (a) (ii) also which the defendant has toprove, namely that she was a member of the household of thedeceased tenant during the whole of the period of three monthspreceding her death does not arise for consideration.
The defendant has no lawful right to remain in these premises.
On 24.5.82 when the trial commenced it was admitted that theplaintiff was the owner of these premises. It was agreed that in theevent of the plaintiff succeeding in this action, damages would be atRs. 50/92 per month.
I set aside the judgment and decree of the learned AdditionalDistrict Judge and enter judgment for the plaintiff as prayed for withcosts, but damages will be restricted to Rs. 50/92 per month from thedate of action till possession is restored.
The plaintiff-appellant will be entitled to the costs of appeal.
WEERASEKERA, J. – I agree.Appeal allowed.