Kumnent v. Alim Nadjiar
1959Present:Basnayake, C.J.KURUKTERU, Appellant, and AT/PVT HADJIAR, Respondent.S. G. 194—C. B. Batticaloa, 4962
Contract—Right of contracting party to bind heirs and executors—Rent Restriction Act,No. 29 of 1948, s. 13 (c)—Notarial lease—Death of lessee—Right of executor tobenefit of Act on expiry of lease.
Although, the general role is that a contract cannot hind, a person who is not aparty to it, a person may by contract not only bind himself but may also bindbis heirs, executors and administrators.
Accordingly, where a lessee who enters into a notarial contract of lease notonly for himself but also for his heirs, executors and administrators dies duringthe pendency of the lease, the executor is entitled to the benefit of the RentRestriction Act, No. 29 of 1948, on the expiry of the term of the lease.
ilPPEAL from a judgment of the Court of Requests, Batticaloa.
H. W. Jayewardene, Q.G., with fit. Goorieratne and L. G. Seneviratne,for Defendant-Appellant.
G. Benganosthan, with S. C. Crossette-Thambiah and S. Sivarasa, forPlaintiff-Respondent.
Gur. adv. imlt.
1 (1953) N. Z. L. R. 366 at 383.
BASNAYAKE, G. J.—Kuruneru v. Alim Ha&jiar
May 29, 1959. Basttatakb, C. j.-—
By an instrument of lease No. 458 executed on 6th July 1946 andattested by K. V. M. Subramaniam, Notary Public, the plaintiffAhamadulewai Mohamadu Gassim Alim Haji leased to Caesar Kuruneru,his heirs, executors, and administrators, the land described in the schedulethereto for a period of ten years from 1st January 1947 at ayearly rentalof Rs. 720 to be paid quarterly in advance. It was a condition of thelease that the lessee should pay the rates on the premises. CaesarKuruneru died on 19th December 1953 while the lease was still currentand the defendant, his brother, Dharmadasa Kuruneru, executor andsole devisee of his business, continued to occupy the premises and carryon the business ■which the deceased was carrying on at the time of hisdeath and pay the rent and discharge the other conditions of the lease.
When the term of the lease came to an end on 31st December 1956 thedefendant did not quit the premises, hut continued to carry on businesstherein notwithstanding the fact that the plaintiff had asked him to quitand deliver possession thereof to him. On 16th February 1957 theplaintiff instituted these proceedings for the ejectment of the defendantwho was no longer the contractual tenant and for damages for wrongfuloccupation after 1st January 1957. The plaintiff seeks to bring himselfwithin the ambit of section 13 (1) (c) of the Rent Restriction Act, No. 29of 1948, by alleging that the premises are reasonably required by themembers of his family to carry on business.
The main question that arises for decision in the instant case is whetherthe plaintiff is barred by section 13 of that Act from instituting thisaction for the ejectment of the defendant.
The deceased Kuruneru entered into the contract of lease not only forhimself but also for his heirs, executors, and administrators. Theinstrument which is carelessly drafted and is full of mistakes and does nocredit to the notary who attested it reads—
“ The lessor doth hereby demise and let unto the lessee his heirsexecutors and administrators all that land and premises more fullydescribed in the schedule hereto. To have and to hold the saidpremises unto the lessee his heirs executors and administrators for theterm of ten years from 1st January 1947.
And the lessee doth hereby for himself and his heirs executors andadministrators covenant with the lessor that the lessee his heirsexecutors and administrators during the said term will pay the yearlyrent hereinbefore reserved on the days and in manner aforesaid.
And the lessee for himself and his executors and administratorscovenant and agree with the lessor that the premises shall not besub-let mortgage assign the said lease to a third party with the consentand approval cf the lessee (lessor ?).
BASNAYAKE, C. J.—Kuruneru- v. Alim Hadjiar
The lessee or hw aforesaid sha.ll qrre six months' notice if at any tonebefore the expiry of the said term of ten years desire to quit thepremises to the lessor failure to do so and in the event of the lessee orhis aforesaid leaves and quits the premises without such notice thelessee for himself and his aforewritten for the payment of the rent forthe said period of six months to the lessee. And the lessee and hisaforewritten further covenant and agree that at the expiration of thesaid term or sooner so yield up the same unto the lessor his heirsexecutors and administrators.
And the lessor doth hereby covenant with the lessee that the lesseehis heirs executors and administrators performing and observing allthe covenants by the lessee herein contained may quietly hold andenjoy the said premises during the said term without any interruptionby the lessor or any person claiming through him.”
It would appear from the portions of the lease I have quoted abovethat the lessee contracted not only for himself but also for his heirs,executors, and administrators. Although the general rule is that acontract cannot bind a person who is not a party to it, under our law aperson may by contract not only bind himself but may also bind hisheirs, executors, and administrators. The basis for this rule is the Code,Bk. 8 Gb. 38 s. 13, wherein it is stated—
“ In order to settle the disputes arising out of ancient law, we decree,in general terms, that every stipulation, whether it consists in givinganything, doing anything, or both giving something or performingsome act, shall be transmitted both to and against heirs, whether anyspecial mention has been made of them or not, for why should what isjust, so far as the principal parties are concerned, not be transmittedboth in favour of and against their successors ?
And, as it is held that stipulations of this description, having referenceto something which should be given, can still be performed by heirs,the subtle and superfluous opinion, by which it is decided that what isimposed on one person cannot possibly be executed by another, ishereby abolished.” (Scott’s translation, Vol. 14 p. 293).
This view gains further support from the following passage in theDigest (22.3.9)—-
“ Where an agreement is made in. which there is no mention of anheir, the question arises whether this has been done in order that onlythe person of the party himself may be considered. But although itmay be true that he who makes use of an exception must establishgood ground for doing so ; still, the plaintiff, and not he who pleadedthe exception, must prove that the agreement merely had reference tohimself, and did not include his heir, because in such cases, we generallyprovide for our heirs as well as for ourselves. (Scott’s translation,Vol. 5 p. 22.5).
BA SHAY ABLE, C.J.—Kwruneru t>. Alim Hadyiar
Van Leeuwen adopts the views of the Roman writers when he says—
“ We covenant for ourselves and for our heirs; not for others, unlesseither it is to the interest of the covenantor; or it is a contract withregard to restoring to a third party his rightful property, or withregard to giving up his own property to another ; or unless the cove-nantor is under the patria potestas of the man for whom he covenants.’ ’(Censura 3Torensis, Pt. I Bk. XV Gh. Ill s. 3—-Barber’s translation, p. 12).
Even where there is no express stipulation in a contract of letting andhiring—
“At the death of either of the parties the contract of letting orhiring is not terminated, but passes to th a heirs both of the lessor andof the lessee until the time fixed arrives and this is so everywhere. Thesame is the case according to the customs of Saxony, as we are told byGeorg Schultz and Carpzov. There is an exception in the case of someperformance, in which regard is had to the industry of a particularperson, and which cannot be done with equal satisfaction by anybodyelse, and so, as it were, adheres to that particular person.” (VanLeeuwen—Censura Porensis, Pt. I Bk. IV Ch. 3CXTT s. 18—Barber’stranslation, p. 191).
This is also the view expressed by Domat in s. 465 (Vol. 1 p. 259—Strahan’s translation) wherein he says—
“ The engagements which are formed by the contract of letting andhiring pass to the heirs or executors of the lessor, and to those of thelessee.”
In the instant case the defendant both as executor and heir was underthe terms of the instrument of lease entitled to continue and did continueas the contractual tenant of the premises in question. When the term ofthe lease expired the defendant became what is now familiarly known asa statutory tenant. The defendant’s position is no different from that inwhich Caesar Kuruneru would have been had he lived beyond the term ofthe lease and not quitted the premises on 31st December 1956.
The defendant is therefore in the position of an over-holding tenant andis entitled to the benefit of the Rent Restriction Act. It has been held inthe case of Ghmaratne v. Thelenis 1 by three Judges of this Court that theterms of the Rent Restriction Ordinance, No. 60 of 1942, were wideenough to apply to premises leased as well as to premises held on atenancy from month to month and that an action for the ejectment of alessee who overholds cannot be instituted except in any one of the casespermitted by the Ordinance. Although th*. Ordinance in respect ofwhich that decision was given has since been replaced by the RentRestriction Act, No. 29 of 1948, that decision is equally applicable to theAct and I hold that the plaintiff was not entitled to institute or maintain
1 (1946) 47 N. Jj. is. 433.
T. S. FERNANDO, J.—Agonis Per era v. Qcmegama
this action as he has failed to establish the allegations in paragraph 6 ofhis plaint that the premises are reasonably required by the members ofhis family to carry on their business.
Many other questions have been raised by the parties in the course oftnese proceedings, but it is unnecessary to decide them for the purpose ofthis action which is an action in ejectment.
I allow the appeal and dismiss the plaintiff’s action with costs here aswell as in the Court below.