DE KRETSER J.—Mohame-d. Anvar v. Arumuyam Chettiar.
1938Present: Poyser and de Kretser JJ.
MOHAMED ANVAR v. ARUMUGAM CHETTIAR.
132—D. C. Colombo, 889.
Curator—Lease of minor’s property—Validity of a contract of monthly tenancy.
A curator may lease property belonging to a minor on a monthlytenency without the sanction of court.
^^PPEAL from a judgment of the District Court of Colombo.
H. V. Perera, K.C. (with him S. J. V. Chelvanayagam), for defendant,appellant.
N. E. Weerasooria, K.C. (with him J. A. T. Perera), for plaintiff,respondent.
Cur. adv. vuIt.
October 26, 1938. de Kretser J.—
The plaintiff is a minor. His next friend is his father-in-law, who isalso curator of. his property. The previous curator was one Ismail andthe property now in question consist of grass lands and some tenements,
DE KRETSER J.—Mahamed Anvar v. Arumugam Chettiar. 383
which he had leased to the defendant-appellant on April 20, 1935, for twoyears commencing from March 1, 1936. The indenture of lease is D 8.The certificate of curatorship has not been produced but a summary ofit is P 2 in the Police Court proceedings. It is in the -form prescribed inthe schedule to the Civil Procedure Code.
Purporting to act under this certificate the former curator had leasedthe appellant, also for two years, on D 6 of May 8, 1930, and on D 7, alsofor two years, on March 1, 1934. There is no document on record coveringthe period June 1, 1932, to February 28, 1934.
On September 1, 1936, the appellant was out of the Island and hisbusiness was in charge of an attorney.
On that day the present curator, Muktar, went along with the previouscurator and entered into an agreement D 1 with the attorney for a monthlytenancy at the same rental as had been fixed by D 8. The agreement isnot well worded but all the parties agree on its meaning. It is in thename of the appellant.
The certificate of curatorship in favour of Muktar is P 6 and is datedSeptember 28, 1936.
The change was made, not because of any mismanagement on the partof Ismail, but because of the relationship created by the plaintiffsmarriage.
When, therefore, D 1 was executed the certificate had not been issuedbut the change was already in effect.
On the appellant’s return to the Island some conflict took place and asa result Muktar forcibly ejected the appellant on October 9, and wasprosecuted. The Police Court case went on till July 1, 1937, on whichday Muktar was convicted of criminal trespass and undertook to give,and | did give, appellant possession of the premises leased. The appellantwas then given notice to quit forthwith. This notice, D 5, was given onJuly 3 and it was given by the curator. It threatened action for thecancellation of the lease.
The plaint in this case was filed on July 8 by the minor and the oneground alleged was that “ the said lease is void and of no effect in lawinasmuch as it was granted by the said A. M. M. Ismail without the leaveand sanction of Court ”. Damages in Rs. 450 a month were claimed fromthe date of the plaint.
A large number of issues were raised at the trial and decree was enteredin plaintiff’s favour on March 11, 1938, by which date the lease hadexpired.
Respondent’s Counsel argues that a monthly tenancy would comewithin a curator’s power of management but that a tenancy for a longerperiod would amount to alienation and would be null and void if it hadnot been, sanctioned by Court. He relies on the case of Mahawoof v.Marikkar' and Perera v. Pereraa. These cases decided that a lease fora term exceeding one month was invalid unless sanctioned by Court. Ido not understand these cases to decide that such a lease would be illegalor null and of no effect whatever but only that it would not be enforceablein the same way as a non-notarially executed lease for a similar periodwould not be enforceable. I do not see why such a lease should not1 31 .V. L. It. CO.’- 3 Broicne ISO.
• 384 DE KRETSER J.—Mohamed Anvar v. Arumugam. Chettiar.
operate as a monthly tenancy in the same way that this Court hasrecognized that nommottrial leases may operate. I do not wish to beunderstood to agree witlT the opinions expressed in Mahawooj v. Marikkar(supra) and Perera v. Perera (supra) and shall reserve my right toreconsider them should the necessity arise to do so. They are alreadyaffected by the opinions expressed in Uduma Lebbe Udayar v. Christie’.
In the present case it is clearly established that the appellant went intopossession as a tenant of the previous curator, Ismail, and that the' presentc.urator was willing to accept him as a tenant on the same terms, thoughnot for a fixed period. What was the contract between Ismail and theappellant but one of tenancy on a monthly rental? Granting for thesake of argument that the agreement fixing the period was invalid, oreven null and void, the tenancy still remained and the appellant wasrecognized by Ismail as his tenant and paid rent as a tenant. It isimpossible to get away from that relationship. That relationship couldbe terminated only by such notice as the law recognized to be reasonable,and no such notice was given by Ismail’s successor. Consequentlyplaintiff’s action was misconceived and must fail.
But as the appellant was in possession as a monthly tenant and was1liable to pay rent and as his Counsel expressed willingness to pay thatrent I think a decree may be entered for the amount due, but withoutinterest. Presumably the appellant would be liable for the periodbeginning on July 1, 1937, and ending February 28, 1938, i.e., a period ofeight months, whi.ch means a liability to pay Rs. 2,000. The whole orgreater part of this amount is already in deposit.
The appellant contributed largely to the lengthy and unsatisfactorycourse the trial took and the fairest order to make would be to award nocosts in the lower Court.
The «decree is set aside and the District Judge will enter decree forplaintiff for the rent due without interest of costs.
The appeal succeeds and the appellant is entitled to the costs of -thisappeal.
I have had the advantage of reading the judgment of my brotherde Kretser. I agree that the appellant should only be required to payrent at the rate of Rs. 250 a month and I also have considerable doubtsas to the correctness of the opinions expressed in Mahawoof v. Marikkar(supra) and Perera v. Perera (supra).
1-1 C. W. R. JS.
MOHAMED ANVAR v. ARUMUGAM CHETTIAR