MEERUPPE SUMANATISSA TERUNNANSE, Appellant, and WARAKAPITIYA PANGANANDA TERUNNAN

072-NLR-NLR-V-70-MEERUPPE-SUMANATISSA-TERUNNANSE-Appellant-and-WARAKAPITIYA-PANGANANDA-TERUNNAN.pdf


Aleeruppe SumanaHssa Terunnanse v. Warakapitiya Pangnananda Terunnanse 313
[Privy Council]
1968Present : Viscount Dilhome, Lord Guest, Lord Devlin,Lord WUberlorce, and Lord PearsonALEERUPPE SUMANATISSA TERUNNANSE, Appellant,and WARAKAPITIYA PANGNANANDATERUNNANSE, RespondentPrivy Council Appeal No. 8 of 1967
8. C. 63911960—D. C. Matara 2891L
' Estoppel of tenant and licensee—Applicability of English law—Evidence Ordinance,ss. 100, 116—Interpretation of s. 116—Bwldhist ecclesiastical law.
Section 110 of the Evidence Ordinance reads as follows :—
“ No tenant of immovable property, or person claiming through suchtenant, shall during the continuance of the tenancy, be permitted to denythat the landlord of such tenant had, at the beginning of the tenancy, a titleto such immovable property ; and
no person who came upon any immovable property by the licence of theperson in possession thereof shall be permitted to deny that such person hada title to such possession at the time when such licence was given.”
Held, (i) that it is legitimate, when applying s. 116, to consult and give effectto the English cases, even if they appear to go further than the language of thesection ; and specific authority for so doing is given by s. 100 of the EvidenceOrdinance which provides that whenever in a judicial proceeding a question ofevidence arises not provided for by the Ordinance or by any other law in forcein Ceylon, such question shall be determined in accordance with the EnglishLaw of Evidence for the time being.
that, whore a person entered into possession of immovable property bythe licence of the person in possession thereof, it is unnecessary, and indeedirrelevant, for the purposes of an argument on estoppel, to consider what thelicensor’s title truly was. The question is what was the title which the licenseewas apparently recognizing, and this depends on the title which the licensor wasapparently claiming.
that the construction put on s. 116 that Tinder it the estoppel operatesonly in favour of the first landlord of a tenancy or the original grantor of thelicence, and that it cannot operate in favour of their successors in title, truncatesthe English doctrine. The scope of the first and second paragraphs of s. 110must by virtue of a. 100 be expanded to give full effect to the English law ofestoppel.
that a revocable licence is automatically determined by the death of thelicensor or by the assignment of the land over which the licence is exercised. Ifthe licence is then renewed, and the licensee continues to remain on the land,there is no moment at which the tenant or licensee physically leaves the landand re-enters it. There is none the less a new taking of possession in law, andit cannot be contended by the licensee that he did not “ come upon ” the landby virtue of the now licence but by virtue of that which had expired.
LXX—14
1* H 1300—2,130 (4,0S>
314
LORD DEVLIN—Meeruppe Sumanatissa Terunnanse v. JVarakapitiya
Pangnananda Terunnanse
G was the Viharadhipathi of a Buddhist temple. In 1942 the defendantrespondent, who was a bhikku belonging to that temple, entered into possessionof a land of the temple as licensee under G and paid his dues in the form ofcrops or cash to G’s agent, the plain tiff-appellant. After G’s death in 1944the respondent continued to pay the dues to the appellant who claimed them inhis own right as the person whom G had appointed as Viharadhipathi bya deed executed in 1930. Until 1953 the respondent acknowledged theappellant’s title of Viharadhipathi. After that year he refused to pay thedues because he claimed that he, as senior pupil of the deceased G, succeededG as Viharadhipathi upon G’s death in 1944. In the present action, whichcommenced on 20th September 1954, the appellant asked for a declaration thathe was entitled to the land and for an order of ejectment of the respondentfrom the land. There was also a specific issue on the basis of estoppel. TheSupreme Court held that the appellant’s action fail'd because he could notestablish his title as Viharadhipathi.
Held, that the English law relating to estoppel of tenant and licensee iswholly applicable in Ceylon. Whether or not the appellant was the lawfulViharadhipathi, the respondent was estopped from challenging the appellant’stitle to possession of the land in dispute. Not even the most limitedconstruction of the second paragraph of s. 116 of the Evidence Ordinancewould avail the respondent. The licence which was granted to him in 1942was clearly a revocable one. If the licence was not originally granted in1942 by the appellant in his own right, after the death of G the grant ofa new licence must be implied.
.AlPPEAL from a judgment of the Supreme Court reported in(1963) 66 N. L. B. 394.
F. N. Gratiaen, Q.C. with II. Wanigatunga and Mark Fernando,for the plaintiff-appellant.
A. Koattegoda, with M. L. S. Jayasekera, for the defendant-respondent.
Cur. adv. vuU.
January 23, 1968.[Delivered by Lord Devlin]—
The respondent, who was the defendant in the original proceedings inthe District Court of Matara, is a bhikku. that is, a monk or priest,belonging to a temple in Welihinda. In 1942, he was permitted by theappellant, who was or who claimed to be the Viharadhipathi, that is, theChief Priest or Chief Incumbent of the Temple, to live on a piece of landof about 18 acres in extent situated at Warakapitiya, about a mile awayfrom the Temple but part of its property. The land had previously beenleased for cultivation. Shortly after 1942 the respondent built on thisland an avasa or residence in which he lived with dayakas attached tohim. It was the respondent’s obligation to hand over to the ChiefIncumbent the paraveni share, that is, the landowner’s share ol theproduce of the land. This the respondent did until 1953. It is hisrefusal or failure to do so after that year that has led to the presentdispute, the claim with which the Board is concerned being a claim bythe appellant to eject the respondent from the land.
315
LORD DEVLIN—Meeruppe Sumanatiaaa Terunnanee v. Warakapitiya
Pangnananda Terunnanse
In the courts below the principal matter in issue was whether theappellant was the rightful Viharadhipathi of the Welihinda Temple. Itis common ground that, if he was, he was entitled to possession of theland and to eject the respondent. Proceedings were begun on 20thSeptember 1954, the appellant in his amended plaint asking for adeclaration that he was entitled to the land and for an order ofejectment. The respondent in his amended answer denied that theappellant was the rightful Chief Incumbent and entitled to the land.The respondent claimed also that, if he was ejected, he ought to becompensated for the cost of the avasa and other improvements madeto the land. He claimed further that in any event he was as abhikku entitled to reside in the Temple or on land belonging to itand to be maintained out of the revenues of the Temple. It is notdisputed that this is his right as a bhikku unless he has forfeitedit by his contumacy.
The trial began in September 1957 and after a number of adjournmentswas concluded in December 1960. The District Judge by a judgmentdelivered on 21st December 1960 decided that the appellant was thelawful Viharadhipathi and so declared. The learned judge made an orderfor the ejectment of the respondent. He refused him any compensation,finding that the buildings had been paid for out of the income from theland ; and this claim for compensation has not been further pursued. Thelearned judge also held that the respondent had by his contumacyforfeited his right to residence. On 15th May 1963 the whole of thisjudgment was reversed in the Supreme Court which held that theappellant’s action failed because he could not establish his title asViharadhipathi.
The course which the argument has taken before the Board makes itunnecessary for their Lordships to do more than indicate the nature of thedispute as to title. It is agreed that in 1928 the Reverend Gunanandabecame the lawful Viharadhipathi of the Welihinda Temple and of threeother temples as well. On 26th December 1930 Gunananda, who wasresiding in one of his other temples and found it diilicult to manage theWelihinda Temple, executed an Adliikari Deed which conferred certainrights and duties on the appellant. In the opinion of the District Judgethe Reverend Gunananda by this Deed renounced his rights as Vihara-dhipathi of the Welihinda Temple in favour of the appellant. TheSupreme Court on the contrary held that the Deed was not a renunciationand that eve^ if it were, the Reverend Gunananda could not lawfullyappoint the appellant as his successor. The Court said that under therule of sisyanu sisya paramparawa, which governed the succession, theViharadhipathi must choose his successor from among his pupils. Theappellant was not one of Gunananda’s pupils ; the two men were infact co-pupds of the previous Chief Incumbent. The respondent isGunananda’s senior pupil. The Court held that the true effect of theDeed was to appoint the appellant to act for Gunananda as the de JactoViharadhipathi of the Welihinda Temple so that he could manage thatTemple on Gunananda’s behalf.
310 LORD DEVLIN—Meeruppe Sumanatisaa Terunnanse v. Warakapitiya
Pangnananda Terunnanse
The Reverend Gunananda died in 1944 and therefore any authorityto act merely as his deputy would have come to an end in that year.Indeed, the respondent contends that on Gunananda’s death, he as thesenior pupil and in default of any valid appointment succeeded him asViharadhipathi ; but he concedes that he is now barred under thePrescription Ordinance from asserting his claim.
In the argument before the Board Mr. Gratiaen for the appellant invitedtheir Lordships to decide the appeal in his favour on the simple groundthat, whether or not the appellant was the lawful Viharadhipathi, therespondent was estopped from challenging his title to possession of theland in dispute. This contention was not considered in either of thejudgments in the courts below. The plea was introduced while theappellant was giving evidence. It was then accepted as an additionalissue and the point was put in argument by the appellant’s counsel butthe District Judge did not decide it. There is no note of the argumentbefore the Supreme Court but it has not been suggested that the pointwas there abandoned. It was clearly raised in the appellant’s case inthis appeal and has not been objected to before the Board. TheirLordships are obviously at a disadvantage in considering a point whichwas left undecided by the courts of Ceylon. The disadvantage is tosome extent diminished by the fact that, as will appear, the point isgoverned by English law.
The appellant relies on s. 116 of the Evidence Ordinance whichreads as follows:
'* No tenant of immovable property, or person claiming through suchtenant, shall during the continuance of the tenancy, be permitted todeny that the landlord of such tenant had, at the beginning of thetenancy, a title to such immovable property ; and
no person who came upon any immovable property by the license ofthe person in possession thereof shall be permitted to deny that suchperson had a title to such possession at the time when such license wasgiven.”
The respondent concedes that he was a licensee of the land in disnute.His argument against the estoppel rests, as will appear, upon a narrowinterpretation of the Ordinance. Section 116 is one of three sectionsthat compose Chapter X of the Ordinance, which is headed Estoppel.This Chapter is a very condensed version of the English common lawon estoppel in pain. Their Lordships consider that it must beinterpreted, and if necessary expanded, in the light of the common law.The Ordinance is one of a number, which follow the Indian EvidenceAct 1872. This Act, as is well known, was drawn up by Sir JamesStephen. In 1876 he reproduced it in substance for English lawyers inhis Digest of the Law of Evidence. The object of the Digest was tosupply a concise code and not an elaborate treatise and so principlesare briefly stated ; but in his introduction to the first edition Stephen saidthat it was “ intended to represent the existing law exactly as it
LORD DEVLIN—Meeruppe Sumanatissa Terunnanse v. Warakapitiya
Pangnananda Terunnanse
317
stands ”. Section 116 of the Ordinance corresponds with Article 112of the Digest. It is therefore in their Lordships’ opinion legitimate,when applying s. 161, to consult and give effect to the English cases,even if they appear to go further than the language of the section ; andspecific authority for so doing is given by s. 100 of the Ordinance whichprovides that whenever in a judicial proceeding a question of evidencearises not provided for by the Ordinance or by any other law in force inCeylon, such question shall be determined in accordance with theEnglish Law of Evidence for the time being.
The auth orities which settle the English law are conveniently collectedin Spencer Bower & Turner on “ Estoppel by Representation ”, 2nd Edn.p. 170. This form of estoppel, although it has since the decision inDoe v. Baytup 1 been extended to licensor and licensee and other similarrelationships, originated out of the relationship of landlord and tenant.The basis for it is the acknowledgment or recognition of the landlord’stitle. The acknowledgment may be formal as by the execution of alease or of a deed of attornment ; an attornment has been defined byHolroyd, J. in Cornish v. Searell2 as “ the act of the tenant’s putting on©person in the place of another as his landlord ”. Estoppel can also ariseinformally from any act of recognition, the most common being thepayment of rent after entry or after attornment. But then it is alwaysopen to the tenant to explain that the act relied upon was not intendedor understood as a recognition. In Harvey v. Francis 3 Patteson J. held“ that where a tenancy was attempted to be established by mereevidence of payment of rent, without any proof of an actual demise, orof the tenants having been let into possession by the person to wrhomthe payment was made, evidence is always admissible on the part ofthe tenant to explain the payment of rent, and to show on whose behalfsuch rent was received ”. See also Jones v. Slone 4.
It will be observed that s. 116 does not in terms embrace the situationin which there has been a change of landlords during the tenancy nordoes it deal with the effect of payment of rent. It is on this sparseness oflanguage that the respondent relies. He concedes, as their Lordshipshave said, that he is the licensee of the land in dispute ; he admits alsothat he was let into possession of it by the appellant as licensor and it wasfound against him that until 1953 he paid his dues to the appellant in theform of crops or cash. But he points to the words in the secondparagraph of s. 116 “ at the time when such license was given ”, whichcorrespond to the words “ at the beginning of the tenancy ” in the firstparagraph. He sayrs that he does not deny that the appellant had as defacto Viharadhipathi at the time w’hen the license was given in 1942 thetitle to possession of the land. But, he says, the situation changed in1944 when the death of the Reverend Gunananda deprived the appellant
1 (1S35) 3 Ad. and El. 188.3 (1837) 3 M. and Rob. 37.
* (1828) 8 B. and C. 471 at 476.* (1894) A. C. 122.
!*♦—H 13061 (4/68)
•318 LORD DEVLIN—Meeruppe Sumanatissa Terunnanse v. Warakapitiya
Pangnananda Terunnanse
of his de facto title ; and he contends that there is nothing in theOrdinance to prevent him from challenging the de jure title which after1944 the appellant assumed.
For the purposes of the argument on estoppel it is unnecessary, andindeed irrelevant, to consider what the appellant’s title truly was. Thequestion is what was the title which the respondent was apparentlyrecognising, and this depends on the title which the appellant wasapparently claiming. There is clear evidence to show that the appellantand the Reverend Gunananda both considered that the Deed of 26thDecember 1930 was effective to pass the full title of Viharadhipathi tothe appellant and not merely the power of management. In 1933 theappellant’s title was challenged by another bhikku of the WelihindaTemple. On 16th July 1933 the appellant filed a plaint in the DistrictCourt of Matara seeking against this bhikku a declaration that he, theappellant, was the Chief Incumbent of the Welihinda Temple. The issuewas fought and went to the Supreme Court which on 7th June 1937granted the appellant the declaration for wliich he asked. The meaningand effect of the Deed of 26th December 1930 was not directly in issue,since the defendant based his claim on a title which he sought to derivefrom an earlier Chief Incumbent. But the Reverend Gunananda gaveevidence in support of the appellant’s claim to be Viharadhipathi ; and,referring to the Deed, said he gave it “ not temporarily ”.
If the appellant was to the knowledge of the respondent claiming hisdues as Viharadhipathi de jure and they were paid to him as such, itwould be no answer to an estoppel to say that he could have claimed themin some other capacity or as agent for the Reverend Gunananda, whenundoubtedly they would have been payable. The question is whetheracknowledgment or recognition of title is to be inferred from thetransactions between the parties and the inference depends on what thenature of the transactions was and not what it might have been. Ina case where the bare fact of payment is consistent with an inferenceeither way, the transactions would have to be closely investigated beforethe correct inference could be drawn. The payments of the paravenishare made before the death of the Reverend Gunananda covered only ashort period and occurred a long time before the trial took place. Thereis no satisfactory evidence of the terms on which they were demandedand made and, though there may be suspicion, there is no proof thatthe respondent then knew exactly what the plaintiff was claiming hisposition to be. Their Lordships will therefore assume in favour of therespondent that he intended to pay his dues to the appellant only asagent for the Reverend Gunananda and will treat the case as if it wasnot until after the Reverend Gunananda’s death that the appellantclaimed the dues in his own right.
After this there was no room for misunderstanding. The respondentknew himself to be the senior pupil of the Reverend Gunananda and knewtherefore that, if the appointment of the appellant was invalid, it was hehimself who was the lawful Viharadhipathi. Yet the payment of dues
LORD DEVLIN —Afeeruppe Sumanatissa Terunnanae v. Warakapitiya
Pangnananda Terunnanae
319
continued as before. From 1948 onwards there is documentary evidenceof accounts rendered and payments made. In 1953 when payment wasfirst withheld by the respondent, the appellant prosecuted him forcriminal misappropriation and on the complaint form the appellant wasstyled as Viharadhipathi of the Welihinda Temple. The record showsthat the value of the produce appropriated was thereafter paid to thecomplainant and the accused was discharged. Neither formally thennor later in a letter which he wrote to the appellant in September 1953did the respondent challenge his title. The envelope in which thisletter was sent wa.s addressed to the appellant under his title ofViharadhipathi in the respondent’s own handwriting and it expressesonly distress at the bringing of criminal proceedings.
The construction which the respondent puts on s. 116 is that under itthe estoppel operates only in favour of the first landlord of a tenancyor the original grantor of the license ; and that it cannot operate infavour of their successors in title. This truncates the English doctrine.Until attornments were virtually abolished by the Law of Property Act1952 s. 151, it was customary, if not necessary, when a reversion wasassigned, for the tenant to attorn to the new assignee. Many of thecases of estoppel in the books relate to tenants who are prevented bytheir attornment from denying the title of the assignee. TheirLordships need not pause to consider whether the language of the firstparagraph of s. 116 would, if literally construed in its application to aterm of years, ignore an attornment and confine the estoppel to thelandlord in possession at the beginning of the tenancy. If it does, thescope of the paragraph must by virtue of s. 100 be expanded to give fulleffect to the English law of estoppel. The same considerations apply tothe second paragraph which, since the present case is concerned witha license, is the one on which the appellant relies.
Their Lordships must however add that in their opinion not even themost limited construction of the second paragraph would on the facts ofthe present case avail the respondent. The license which was granted tohim in 1942 was clearly a revocable one. A revocable license isautomatically determined by the death of the licensor or by theassignment of the land over which the license is exercised. Thus if thelicense was not originally granted in 1942 by the appellant in his ownright, after the death of the Reverend Gunananda the grant of a newlicense must be implied. The respondent argues nevertheless that hedid not “ come upon ” the land by virtue of the new license but byvirtue of that which had expired. In their Lordships’ opinion thereference in the paragraph to the licensee coming upon the land doesnot mean only, or even primarily, a physical entry; it imports ataking of possession under the license. When a lease or license isrenewed, there is no moment at which the tenant or licensee physicallyleaves the land and re-enters it. There is none the less a new taking ofpossession in law. In Foster v. Robinson1 Evershed M.R. said at
1 (1950) 2 All E. R. 342.
320
De Silva v. Senanayake
p. 348 : “ The determination of the former tenancy was equivalent todelivery up of possession under that tenancy and then a resumption ofpossession under a new transaction immediately afterwards. I think.,to use the language of Cockbum C.J. in Oastler v. Henderson1,there was a virtual taking of possession. ” The principle was appliedagain by the Court of Appeal in Collins v. Claughton2 where LordEvershed’s dictum was cited at 98.
Their Lordships conclude that the plea of estoppel succeeds. Itapplies only to the respondent’s interest as a licensee and does not affecthis rights as a bhikku. Air. Gratiaen said that he would not contestthese rights. Their Lordships will therefore humbly advise Her Majestyto allow the appeal and to restore the order and decree of ejectmentmade in the District Court, subject to the right of the respondent tocontinue to reside in the avasa on the land in suit and to be maintainedout of the income of that land or of other temporalities belonging to theWelihinda Temple. The respondent must pay the costs of this appeal.As to the costs in the courts below their Lordships consider that alarge part of them must have been incurred on the issue of title onwhich the respondent succeeded in the Supreme Court and which theappellant has not asked the Board to resolve. Moreover, the finalresult of the proceedings is to restore to the respondent his rights ofresidence and maintenance of which he was deprived by the judgmentof the District Court. Their Lordships consider that in thesecircumstances each party should pay its own costs of the proceedingsin the courts below and they will humbly advise Her Majesty to varyaccordingly the order of the Sup reme Court.
Appeal mainly allowed.