Lalttha Perera v. Padmakantht
WANASUNDERA, J , L. H DE ALWIS, J AND SENEVIRATNE. JS.C. APPEAL 80/85C A. No. 205/80(F).
OCTOBER 9. 1986.
Landlord and tanant-Change of ownership-Election of new owner to recognisedefendant as tenant-Attomment-Failure to attorn.
Attornment is the act of the tenant putting one person in place of another as hislandlord. In any attornment the tenant acknowledges the landlordship of a person otherthan his original landlord.
Where the tenant continued to occupy the premises let to him without attorning to thenew owner despite being noticed by his former landlord to do so. he (that is the tenant)is liable to be sued in ejectment. The defence that the tenant had not received notice ofthe change of ownership was false in the face of documentary proof and proceedingsbefore the Conciliation Board supporting the fact of the new owner's election torecognise him as the tenant. The proved payments of rent to the former landlord andthe Town Council of Maharagama also showed the tenant to be in arrears of rent. Thetenant was therefore liable to be ejected.
Cases referred to:
Meeruppe Sumanatissa Terunanse v. Warakapitiya PanganandaTerunanse-(1968) 70 NLP 313
DeAlwisv. Perera-(1951) 52 NLR 433 (D8).
Sabapathypillai v. Ramupillai-(1956) 56 NLR 367.
David Silva v. Madanayake-(1967) 69 NLR 396
Punch/ Nona v. Hendrick Perera-( 1968) 73 NLR 430.
Fernandes v P°r°ra-(1974) 77 NLR 320 (DB).
Mensma v. Jualm-Sri Kantha Law Reports Vol 1 p 76
Sri Lanka Law Reports
 2 Sn L.R.
APPEAL from judgment of the Court of Appeal.
Nimal Senanayake. P C. with M. A. Q. M Ghazali and Mrs A. B. Dissanayake forappellant.
Ikram Mohamad with Wijedasa Rajapakse for respondent.
Cur. adv. vult.
February 6, 1987.
The plaintiff-respondent-respondent in this appeal Anula Padmakanthihas filed this action on 16.3.78 in terms of section 22(1) of th4 RentAct, against the defendant-appellant-petitioner for ejectment of thelatter from the premises 425, High Level Road, Navinna,Maharagama, on the ground that the latter was in arrears of rent for aperiod of over three months. The case of the plaintiff was that thedefendant was originally the tenant of the premises of her fatherWilson Fernando. Wilson Fernando by Deed of Gift No. 515 of4.12.74 (P1) gifted the premises to the plaintiff, his daughter. Afterthe gift to the plaintiff, her father, the said Wilson Fernando sentletters dated 3.1.75, 4.5.75 and 11.5.75 to the defendant informingher that he had transferred the property to his daughter, Padmakanthi,and requesting the defendant to pay rent to her. Of the letters referredto above only the letter dated 11.5.75 (P3) sent by Wilson Fernandoto the defendant, and the postal receipt (P3A) were produced at thetrial. The case of the plaintiff was that, though informed by her fatherto pay rent to her, the defendant did not pay any rent to her, and thatshe was in arrears of rent for over three months. As such through herAttorney-at-law, by letter dated 30.5.77 (P5) the contract of tenancyof the defendant was terminated on the ground of arrears of rent fromJanuary 1975 to May 1979 a period of 27 months, and further thedefendant was given notice to quit the premises and to give vacantpossession of the premises on or before 31.8.77. As the defendantdid not comply with the notice (P5) the plaintiff has filed the presentaction.
The defendant filed answer on 28.8.78, and stated that she wasunaware of the transfer of the premises to the plaintiff by her landlordWilson Fernando. She denied having received any request from WilsonFernando her landlord to pay rent to the plaintiff. She denied that shewas in arrears of rent, and stated that she har deposited rents duewith the Town Council, Maharagama.
Lalitha Perera v. Padmakanthi (Seneviratne, J.)
On these pleadings the question which arose was whether thedefendant had attorned to the plaintiff as her tenant, after thepremises was transferred to the plaintif by deed of 4. 12. 74 (PI). Atthe trial the main issue (No. 2) that was raised by the plaintiff was asfollows:
'Has the plaintiffs father Wilson Fernando by letter dated 3.1.75sent by the Notary Mr. Kaluaratchi, and thereafter by letter dated11.5.75 sent by him requested the defendant to attorn to theplaintiff?" (See page 26 Brief).
The tetter referred to in the issue is the letter dated 11.5.75 (P3)written by E. Wilson Fernando the defendant's landlord, to thedefendant as follows:
"I am now not the owner of premises No. 245, Navinna Road ofwhich you are the occupant (tenant). From January 1975, I havetransferred the ownership of the premises to my daughter AnulaPadmini. The deed was attested by Notary Kaluaratchi who alsoinformed this to you. As such from January 1975 do not pay therent to me, pay to my daughter."
It is strange that the parties have not specifically raised the issuearising from Issue No. 2, that is, whether the defendant attorned tothe plaintiff. Further, neither party has specifically raised theissue-whether the defendant was in arrears of rent for over threemonths at the time the notice to quit dated 30.5.75 (P5) was issued.
At the trial the main defence taken by the defendant was that shewas not informed either by her landlord Wilson Fernando or by theplaintiff of the change of ownership, and that in any case she had notbecome aware of such a transfer. As the defendant was notrequested to attorn to the plaintiff, she has not done so. She alwaysconsidered the plaintiff's father Wilson Fernando as her landlord. Theevidence shows that the plaintiff herself had not informed thedefendant of the transfer to her and called upon the defendant toattorn to her and pay the rent to her.
The learned District Judge held that:
that it was proved that the father of the plaintiff informed thedefendant by registered letter of 11.5.75 (P3) of the change ofownership, and requested the defendant to pay the rent to theplaintiff.
Sri Lanka Law Reports
 2 Sri L.R.
the learned District Judge held that in any event the complaintby the plaintiff to the Conciliation Board made on 10.4.75 (P6),in respect of which complaint there was an inquiry by theConciliation Board on 18.5.75 (P4), would also have made thedefendant become aware that the plaintiff was the owner of thepremises, and was claiming to be the landlord.
The plaintiff's complaint to the Conciliation Board dated 10.4.75 (P6)was that she became the owner of the premises by a deed executedon 4.12.74, and that her father by letter dated 3.1.75 informed thedefendant of the transfer and to pay rent to her and that the defendanthas not done so. As such she requested the Conciliation Board toobtain for her the possession of the said premises. There is no doubtthat as stated by the learned District Judge the defendant becameaware of the transfer at least through the Conciliation Boardproceedings.
the learned District Judge held that the defendant had not paidrent to the plaintiff and was in arrears for over three months atthe time the notice to quit dated 30.5.75 (P5) was sent.
On these findings of fact the learned District Judge answered issueNo. 2 referred to above and other issues raised by the plaintiff infavour of the plaintiff and gave judgment for the plaintiff.
There was an appeal to the Court of Appeal, and the Court ofAppeal dismissed the appeal upholding the judgment of the learnedDistrict Judge, both on grounds of facts and law. Thedefendant-appellant has now come by way of appeal to this Court.The learned counsel for the defendant-appellant made submissions,both on facts and on law, to wit that the concurrent findings of factboth in the District Court and the Court of Appeal were in error, andthat the conclusion on the law by both the Courts was also erroneous.
There is no reason to interfere with the concurrent findings of factthat the plaintiff's father Wilson Fernando informed the defendant byregistered letter of 11.5.75 (P3) that he had transferred the premisesto his daughter the plaintiff, and requested the defendant to pay rentto the plaintiff. In other words, Wilson Fernando has informed thedefendant to consider his daughter the plaintiff in this action as herlandlord in future. The term "attornment" has been judicially defined-"As the act of the tenant putting one person in place of another as his
Lalitha Perera v. Padmakanthi (Seneviratne, J)
landlord"-Lord Devlin in Meeruppe Sumanatissa Terunanse v.Warakapitiya Pangananda Terunanse (1). This means that in anyattornment the tenant acknowledges the landlordship of a personother than his original landlord. By writing the letter (P3) of 11.5.75Wilson Fernando terminated his contract of landlord and tenant withthe defendant.
The submission on law made on behalf of the defendant-appellant inthis appeal is that even though (P3) of 11.5.75 terminated thecontract between Wilson Fernando and the defendant, there was nocreation of a contract of landlord and tenant between the plaintiff andthe defendant, as the plaintiff did not call upon the defendant to attornto her, and the defendant had not at any time attorned to the plaintiffas her landlord. Factually it is correct to state that the plaintiff herselfdid not request the defendant to attorn to her. On the facts of thiscase though Wilson Fernando sent the said letter of 11.5.85 (P3) tothe defendant, the defendant ignored that letter and continued to payrent directly to Wilson Fernando and later began to deposit the rent inthe name of Wilson Fernando with the Town Council, Maharagama.
One striking feature in this case is that the letter of 11.5.75 (P3) is aletter written to the defendant by the father of the plaintiff to attorn tothe latter. It is not the case of Wilson Fernando having sold thepremises to an outsider, and then informing the defendant to attorn tothat new purchaser. Wilson Fernando was the father of the plaintiffand his action may even be considered as that of an agent of theplaintiff. The complaint to the Conciliation Board by the plaintiff, andthe inquiry which followed can also be constituted as factors whichgave the defendant constructive notice to attorn to the defendant. Thelearned District Judge was correct in coming to the conclusion thatthe defendant had received sufficient notice to attorn to the plaintiff.
Thus, the position arising from these findings is that the defendanthas continued to occupy the premises without attorning to the plaintiffwhen noticed to do so. This is an instance in which the legal principlesdecided in the following cases apply to the situation. In the leadingcase of De Alwis, appellant and Perera. respondent (2) Gratiaen, J. inthe course of the judgment dealt with the aspect of contract oflandlord and tenant relevant to this case Gratiaen, J. had held asfollows:
"Finally, there is the position arising where the purchaser elects torecognise the tenant, but the tenant does not specifically attorn tohim. Sampayo, J. took the view-'but not without some
Sri Lanka Law Reports
 2 Sri LR.
hesitation'-16 N.L.R. at page 317 that in such a case thepurchaser would enjoy the right not only to claim rent but also to suefor damages and ejectment. In 18 N.L.R. 168, the earlier ruling wasreaffirmed".
In the case of Sabapathypillai, appellant and Ramupillai, respondent(3)-Weerasooriya, J. held that-
"when leased premises have been sold by the landlord, the tenantwho receives notice of the purchaser's election to recognise him astenant is not entitled to deny his attornment to the purchaser if hecontinued to be in occupation without informing the purchaser thathe does not elect to attorn to him. It would therefore, seem that atenant who remains in occupation with notice of the purchaser'selection to recognise him as a tenant may legitimately be regardedas having attorned to the purchaser so as to establish privity ofcontract between them."
The above principle was affirmed in the case of David Silva v.Madanayake (4) which held that when a landlord sells the premiseswhich have been rented by him, if the tenant elects to remain inoccupation of the premises he is bound to pay rent to the purchaser ifthe purchaser calls upon him to do so. In such a case, if the tenant, orhis licensee, refuses to recognise the purchaser as his landlord andcontinues to remain in possession of the premises, without payingrent, the purchaser is entitled to maintain an action for ejectment ofthe tenant. In this case Samarawickrema J. held as follows:
"After he was informed of the transfer to the plaintiff and wascalled upon to pay rent to him, the tenant continued to be inpossession in the same manner. As stated in the authorities, it wasnot open to him to remain in possession of the premises and torefuse to recognise the plaintiff as his landlord and pay rent to him."
This same principle was later followed in the case of Punchi Nona v.Hendrick Perera (5) in which case Wijayatilake, J. following the earlierdecisions held as follows:
"It is now a well established principle that a tenant who remains inoccupation with notice of the purchaser's election to recognise himas a tenant may legitimately be regarded as having attorned to thepurchaser so as to establish privity of contract between them."
Lalitha Perera v Padmakanthi (Seneviratne. J)
This case mainly dealt with the burden of proof of attornment, i.e. asto which party should prove attornment. It is in the course of thisdecision that Wijayatilake, J. set down the principle referred to above.As such the Law Report sets out the part of the decision cited aboveas having been made obiter.
The plaintiffs case was that three letters dated 3.1.75, 4.5.75 anda registered letter dated 11.5.75 (P3) (Postal Receipt P3 A) were sentto the defendant informing her of the donation to the plaintiff andrequesting her to pay rent to the plaintiff. The defendant has denied,the receipt of all these letters, and any knowledge of such a transfer.Issue No. 2 raised at the trial pertains to this denial. The learnedDistrict Judge has held that the defendant has received notice and inthe judgment comments as follows:
"Under cross-examination the defendant was seen to be veryuncomfortable and unable to reply to the questions put to her by theplaintiff's Attorney in respect of the letter drafted by the NotaryMr. Kaluaratchi (P1 & P2A) at the instance of the plaintiff’s fatherregarding the change of ownership. Ultimately the defendant statedfor the first time in this case that she had not received any letteraccording to the registered articles (P2). Again, as regards the letterdated 11.5.75 (P3) and (P3A) sent by registered post to her by theplaintiff's father the defendant could give no satisfactoryexplanation."
Thus in view of the letters referred to and the proceedings in theConciliation Board, the defendant can be deemed to have receivednotice of the donee's (plaintiff's) election to recognise her as thetenant of the premises she has continued to occupy.
As regards the payment of rent the defendant has not paid rentregularly even to Wilson Fernando whom she recognised as herlandlord. Even the deposits of rent at the Maharagama Town Councilshowed that the defendant was in arrears of rent. Ultimately, thelearned trial Judge held that when the notice to quit was sent to thedefendant on 30.5.77 (P5) the defendant was in arrears of rent forover three months, to the plaintiff.
This defendant has no defence except a false denial. This is not aninstance as in the case of S M. J. Fernandes, appellant and W. R. S.Perera and Another, respondent (6) in which case the tenant did notwant to pay the rent to the new owner, as there was a disputebetween the new owner and the person to whom he was already
Sri Lanka Law Reports
 2 Sri LR.
paying rent for the previous 18 years, regarding the title to thepremises. The case of that defendant always was that he wasprepared to pay rent to the person who was legally entitled to be hislandlord. The Supreme Court held that the plaintiff in the action wasthe legal owner after the demise of the previous landlord, and as suchthe 1 st defendant must be considered to have attorned to the plaintiff.In the case of Mensina v. Joslin. plaintiff respondent (7) the landlordsold the premises occupied by the defendant to a third party. Thedefendant tenant refused to attorn to the purchaser disputing thelatter's title. Thus, there was a reason though held by the Court to bean invalid one, for the existing tenant not to pay rent to the newowner. In this present case the defendant has without any valid orinvalid excuse not attorned to the plaintiff and not paid rent to theplaintiff, the new legal owner. When sued by the plaintiff for ejectmenton grounds of arrears of rent, a false defence has been set up by thedefendant.
I agree with the judgment of the learned District Judge affirmed bythe Court of Appeal, and I dismiss this appeal with costs.
WANASUNDERA, J.-l agree.
L. H. DE. ALWIS, J.-l agree.