Mrs. A. E. ALWIS, Petitioner, and D. S. KULATUNGE and another, Respondents

060-NLR-NLR-V-73-Mrs.-A.-E.-ALWIS-Petitioner-and-D.-S.-KULATUNGE-and-another-Respondents.pdf


Alicia v. Kulotunge
337
1970 Present: H. N. C. Fernando, C.J., Alles, J., and Weeramantry, J.
Mrs. A. E. ALWIS, Petitioner, and D. S. KULATUNGEand another, Respondents
S.C. 612/69— C. R. Colombo, 97922
Jtcnl-controlled premises—Deserted u-ife of tenant—Her right to continue in occupationafter desertion—Doctrine of protection for the deserted wife—Right of the wifeto tender the monthly rental to the landlord—Debt—Right oj a third party to pay it—Consent decree entered without jurisdiction—Its liability to be set aside on theground of nullity.
Under both English law and Roman-Dutch law a husband has tho dutyto provido his wifo with accommodation and cannot ojoct hor from tho matri-monial homo without offering hor alternative accommodation or maintenance.Furthermore, in tho particular sphere of Rent Control legislation, tho wifo, inviow of hor spocial status as such, has tho bonofit, even against tho landlord, oftho tenant’s statutory protoction. Slio consequently cannot bo doprived by tholandlord of hor right of occupat ion unless and until the husband is duly deprivedof his protoction in accordance with law. Till such timo sho has tho status,both in rotation to tho tenant and in rotation to tho landlord, of a protectedporson.
Moreover, inasmuch as in Roman-Dutch law a third party may mnko paymentto tho croditor on behalf of tho debtor unloss tho obligation of tho dobtor is of apersonal naturo, tho wife is entitlod to tender tho rent on behalf of the husbandso as to keep tho tenancy alive. When tho ront is so tendered tho landlord b«ian obligation to receive it.
If partios admit that one of tho ovonts which givo the court jurisdiction toordor ojectmont has happened and if thoro is no roason to doubt tho bona fides oftho admission, the court is under no obligation to mako inquiry as to tho quo3-tion of fact admitted. Whoro howovor tho admission is tho result of tho fraudof ono or more of tho parties, and is aimer! at obtaining a docroo of ejoctmontwhich woidd not but for tho fraud havo boon available, and whoro tho rosultof tho docroo thus fraudulently obtained is. to doprivo tho wifo of hor spocialprotection referred to nbovo, tho docroo of ejoctmont ontorod upon tho basisof such a fraudulent consent is ono entered without jurisdiction.
A.PPEAL from a judgment of tho Court of Requests, Colombo. Thefacts are set out in the judgment of Wceramantry, J.
In April 1968 the 1st respondent, who was tho landlord of certainrent-controlled promises, brought tho present action against tho 2ndrespondent (the tenant) seeking his ejectment on the ground that rent wasin arroar from 1st Juno 1967 up to 31st March 196S. On tho date of trial,19th May 1969, judgment was entered of consent in favour of tho plaintiffas prayed for, writ of possession to issue forthwith. Thereafter, at thostage of execution, tho present petitioner, tho wife of the tenant, soughtto intervene and obtain a stay of execution of the writ. She averred thather husband had doserted her in February 1967 and that hor husband wasaware that sinco that day she had been depositing each month’s rental of
LXXIU—15
!•—J 17561—2.255 (10/70)
333
H. X. G. FERXAXXJO, C.J.—Alin's t Kvlaltinge
Rs. 33/14 with the Rent Department of the Municipality in accordancewith tho practice that had been followed by her husband prior to thodato of desertion. However, tho rents paid bj' the petitioner had beenreturned to the Municipal Council by the landlord on the ground that hewas not prepared at any time to accept tho petitioner as his tenant andthat ho had not at any time accepted rents from her.
Tho trial Judge refused to grant the petitioner’s application forstay of execution of the writ. Tho petitioner thereupon filed tho presentappeal.
K. W. D. Perera, with M. Mousoof Dccit, for the intervenient-petitioner.
W.D. Gunasekera, with V. S. lVcerasooria, for the plaintilf-lst respondent.
Cur. adv. vuU.
August 7, 1970. H. N. G. Ferxaxdo, C.J.—
I hare had tho advantage of reading the judgments prepared by mybrothers.
I agree that for tho reasons stated by them tho consent decree enteredon 19th May 1969 must bo set aside, and the case remitted to the lowerCourt for trial.
Axles, J.—
The facts are fully set out in tho judgment of my brother Weeramantry
J.and I agree with his conclusion that tho petitioner is entitled to relief.In view, however, of the import ance of the question of law that lias beenargued in this case, I would like to state my reasons shortly.
This application raises vital questions relating to the rights of adeserted wife to continue to remain in occupation of rent controlledpremises. There is an absence of judicial authority in regard to thisquestion in Ceylon and consequently wo have to look elsewhere forguidance.'
The rights of tho deserted wife in such circumstances have beenvery succintly stated by Lord Denning in Middleton v. Baldock hSaid ho at p. CSS—
– “In a case of the present kind, where tho husband has deserted his •wife and she has nowhere else to go, no court would order her out. Sheis therefore lawfully there, and, so long as she remains lawfully there,he remains in occupation by her. If he desires to coaso to bo inoccupation—and'to cease to bo responsible for her occupation-—theni (1950) 1 K. B. 657.
ALI.ES, J,—Alicia v. Kulatungc
339
ho must go to tho court and persuade it, if ho can, to ordor her out.But until that time arrives she is lawfully thcro, and she can claim inhis right-, even against his will, to be thcro. Tho landlord can only getpossession if tho rent is unpaid or somo other condition of tho Acts issatisfied entitling him to possession.”
In Middleton v. Baldock roforonco has been mado to two earlier decisionsof tho Court of Appeal—Broun v. Draper 1 and Old Gales Estates Ltd. v.Alexander and Another The facts of these two cases havo been set outin tho judgmont of my brother Wccramantry J. In tho latter caseBueknill L.J. took tho view that so long as tho husband’s furnituro wason tho premises ho rotained possession to that o.xtent-, but doubtedwhothor the revocation of permission to tho innocent wifo to loave thomatrimonial home, in the abscnco of circumstances showing that tho wifowas in tho wrong and had forced him to loavo her, had any legal effect.In the same case Denning L.J. held that tho husband does not loso theprotection of the Rent Restriction Act if he goes out leaving his furnitureand wifo thoro.
“ The reason is ” says Lord Denning " bccauso the wifo, so long osshe is behaving horself properly, has a very special position in the matri-monial home Even if sho stays thcro against his will, she is
lawfully thcro ; and so long as 6he is lawfully there the house remainswithin the Rent Restriction Acts after ho leaves, just as it does afterho is dead. She can pay tho rent and perform tho obligations of thotenancy on his behalf, and the landlord can onty obtain possession ifthe conditions laid down by tho Acts aro satisfied. ”
Implicit in the observations of Bueknill and Denning L.JJ. is a suggestionthat if tho wifo did not behave properly sho was likely to forfeit thobonefits under the Acts. This point arose for determination in 1952 inWabe v. Taylor 3 where tho wife, after desertion, committed adultery witha man whom she took as a lodger but tho husband took no steps torevoke the permission he had given her to reside therein. It was heldby the Court of Appeal that, even assuming that tho commission ofadultery by the wifo gave the husband tho right to revoke her authorityto reside in the houso, it was irrelevant on the question botweeu her andtho landlord, and, thereforo, in the absence of such revocation by thehusband, tho landlord was not entitled to possession.
Tho principles enunciated in tho above cases havo boon approved bj'tho Houso of Lords in National Provincial Bank Ltd. v. Ainsworth *. Thoquestion that arose for decision in that case was whothor a deserted wifo’sinterest was not an “ overriding interest ” within the meaning of Section70 (1) (g) of the Land Registration Act of 1925. In tho courso of thojudgment, however, the learned Law Lords had occasion to consider thorights of the dcsorted wifo under the Rent Restriction Acts. Lord
1 (1944) 1 K. B. 309.* (1952) 2 A. E. It. 420.
* (1950) 1 K. B. 311.* (1965) A. C. 1175.
340ALLES, J.—Alu-is v. Kvlattinge
Hodson in dealing with the argument of Counsel that tho Jmsbandand not .the wife must be the person in actual occupation statedatp. 1227—
“ Ho relied on tho cases decided under the Rent Restriction Actswhere a husband oven when ho lias deserted his wife has been treatedas still in occupation of tho premises since ho remained in possession of
them through his wife I cast no doubt on tho authority of those
cases {Brown v. Draper, Old Gate v. Alexander and Middleton v. Baldock)but I do not think they are conclusive ou the construction of tho words■in actual occupation ’ contained in Section 70 (1) (<j) of the LandRegistration Act, 1925.”
and Lord Wilberforce at p. 1252 stated—
" Since, at any rate 1944 {Broicn v. Draper) and possibly before thatdate, the courts in a number of instances have given protection todeserted wives of tenants of rent controlled premises. They have donethis by tho device of holding that tho husband-tenant cannot put anend to tho tenancy, oven by such acts as delivering the kej'S to thelandlord, so long as his wife remains on the premises ; he remains thereby her, and so long as ho does so, whatever else he does or says, the
tenancy remains This doctrine now seems to be firmly
established I do not find it necessary to examine these cases :
they relate to the special and intricate world of rent control in whichthe courts have had in many directions to work out empirical solutions
to provent injustice" being done For in the rent cases, the wife’s
occupation lias been treated as the husband’s so as to give her thebenefit, against the landlord, of the tenant’s statutory protection.”
There is therefore high authority of the House of Lords which hasrecognised the right of deserted wives of tenants of rent controlledpremises to continue to remain in occupation of premises constitutingthe matrimonial homo.
Arising from these decided cases the following propositions wouldappear to emerge in respect of tho English laiv :—
(a) The wife is entitled to be provided with a matrimonial homeuntil tho dissolution of the marriage by a Court of competentjurisdiction ;
(h) The husband, therefore, cannot give up possession of thepremises rented out for that purpose and cannot consent tojudgment if sued by the landlord so long as the wife continuesto be in occupation of the premises in suit;
(c) Tho wife Is entitled to pay the rent and perform the obligationsof the tenancy on her husband’s behalf and the landlord can onlyobtain possession if the conditions laid down under the RentRestriction Acts are satisfied ; and
AXLES, J.—Alicia v. Kulaiunge
Sil
(c?) Tho commission of a matrimonial offence on the part of the wifedocs not entitle the landlord to eject her from the premises untilthe marriage between the parties is dissolved and the status ofhusband and wife ceases to exist.
In order to give practical effect to theso principles it should bo possiblefor the wife to interveno in tho tenancy action between tho landlord andthe husband and the question whether tho landlord is entitled to obtainpossession of tho rented premises would be a matter that must beadjudicated upon by the Court after a consideration of the rights oftho deserted wife as well. In Middleton v. Baldock (supra) tho landlordbrought two actions, one against the husband claiming possession of thehouse on a contractual tenancy and the other against the wife as a.trespasser. The Court of Appeal permitted tho wife to be joined as adefendant in the action against her husband.
The reasons which prompted tho English Courts to tako this charitableview in regard to tho rights of tho deserted wife or to use the words ofLord Wilberforce “ the deserted wife’s equity ” have been very aptlystated by tho learned Law Lord in National and Provincial Bank Ltd. v.Ainsworth (supra). After dealing with the housing shortage that existedin England after the 1939-45 war he has stated at p. 1241—
" To a woman, whose husband has left her, especially if sho haschildren it is of little uso to receive periodical payments for her main-tenance if she is left without a home. Once possession of a house hasbeen lost, the process of acquiring another place to live in maj’ bepainful and prolonged. So, even though, as is normally the case, thehome is in law the property of the husband, the courts have intervenedto prevent him from using his right of property’ to remove his desertedwife from it and they have correspondingly recognised that she has aright, or 'equity ’ as it has como to bo called, which the law will protect,to remain there.”
These observations are applicable with equal force to the conditionspresently existing in Ceylon. The Roman Dutch law has recognised theright of the wife to bo supported by her husband and thereby to providehis wife with accommodation, food, clothing, medical attention and whatevor else sho reasonably requires.
" On tho principle that no one can escape his legal obligations b)- hiswrong doing, tho husband’s duty* of support continues if the separationwas due to his fault—he desertod his wife without just causo or droveher away bj' his misconduct.”
(Vide the South African Law of Husband and Wife by Hahlo, 2ndEdition 19G3 at p. 101.)
This view has been adopted in Ceylon in Canekeratne v. Canekeralne1where it was held that a wifo who has been desorted by her husband was
* (196S) 71 N. L. R. S22.
J 17504(10/70)
342
ALLES, J.—.4twia r. Kalalunge
not liable to be ejected by her husband from the matrimonial homo. Insupport T. S. Fernando'J. quotes the observations made by Lord Upjohnin National Provincial Bank Ltd. i>. Ainsworth *.
Tho principles laid down in tho English cases, supported as it is byreason and being in consonanco with modem conditions, may well beadopted to the conditions existing in Ceylon, and indeed appear to havobeen recognised as such in Canekcrafne v. Camkeralne. An acceptance ofthese salutary principles would prevent the deserted wife from beingthrown on the streets without a roof over her head by the husbandmaliciously consenting to judgment in tho tenancy action brought againsthim by tho landlord. Sho would then be entitled to the protection of theRent Acts.. .
Once the “ deserted wife's equity ” is recognised in a case of this kind,it is relevant to consider tho validity of the consent decree entered intobetween the landlord and the tenant. If the decree has been validlyentered there would bo a termination of tho tenancy and the wife wouldbe unable to obtain relief in the tenancy action. The jurisdiction of theCourts can only be invoked when there is a contravention of the provisionsof the Rent Restriction Act. In the present case it was agreed betweenthe parties that t-hero was such a contravention when the rent was inarrears, but tho evidence would seem to indicate that the rent for thepremises in suit had been regularly paid by the petitioner and that there-fore the rent was not in arrear. If tho wife had the right to pay the rentand tho rent was paid regularly, the landlord was bound to accept suchrent. Therefore, the basis of the consent decree in this case was fact uallyincorrect and did not entitle tho Court to exercise jurisdiction.
In a consent decree of this nature there may bo— '
(а)collusion between tho husband and the wife to defeat the rights
of the landlord ;
(б)collusion between tho husband and the landlord to eject the wife
from the rent controlled premises;
(c) fraud or lack of bona fries on the part of the husband (notnecessarily with the connivance of the landlord) to havo thewife evicted from the premises.
In regard to (a) above it is possible to conceive of a case where a husbandleaves the matrimonial homo on the pretoxt of deserting his wife,consenting to judgment in tho tenancy action and thereafter tho wifetaking up the position that as a deserted wife sho could not bo evictedfrom tho premises. In the English cases of Brown, v. Draper and Old GatesLtd. v. Alexander (supra) the husband left the matrimonial home aftor aquarrel leaving behind s.omo of his furniture. In tho latter case, afterthe institution of proceedings for eviction, ho was reconciled to his wife 1
1 (1965) A. C. 1175 al 1232.
AL.LES, J.—Alicia v. Kulatunge
343
and it was held, in spite of two written documents giving up possession,that he was entitled to the protection of tho Rent Acts. It is thereforenecessary for a Court to examine the facts in each case closely and arriveat a decision whether there has been a desertion as recognised under thelaw or whether tho departure of the husband from the matrimonialhomo was due to a temporary estrangement. In tho present case, however,it has not been disputed that tho husband had deserted his wife.
With regard to the attitude of the landlord, the Court lias not foundas a fact that there was collusion between the husband and the landlord.Although the landlord was aware that the husband had deserted thepetitioner and sj mpathised with her in her plight, ho appears to havebeen indifferent to tho relations existing between the husband and thewife. He had other tenements in the same locality and had institutedproceedings against the husband previously—an action which failedowing to the amendment to tho Rent Restriction Act. Therefore theevidence suggesting collusion on the part of tho landlord is meagre andthe learned Commissioner was, in my view, justified in coming to theconclusion that it only amounted to strong suspicion. One has thereforeto proceed on the basis that it has not been established that tholandlord was a party to having the wife ejected from the premiseswithout just causo.
The same, however, cannot be said of the husband. The learnedCommissioner has not addressed his mind to tho issue as to whether hehas been guilty of fraud or lack of bona fides, although an examination ofthe evidence seems to suggest that this was tho case. He was awarethat the petitioner had been paj'ing the rent even after he left tho premises;he had summoned his wife to give evidence at the trial and to producethe rent receipts, but did not choose to call her as a witnoss and the termsof the consent decree strongly suggest that, without prejudice to himself,he was agreeable to the landlord obtaining immediate possession of thepremises forthwith, tho only outcome of which would bo to deprive thewife of the occupation of tho premises. It would therefore appear thatthere was, if not fraud, certainly lack of bona fides on his part. Thedictum of Lord Atkin in Barton v.Eincham1 cited by Gratiacn JAnNugcrav. Richardson – would in the circumstances bo applicable to the facts of .this case. Said Lord Atkin in regard to lawful compromises enteredinto between tho parties to a tenancy action—
“ If the parties admit that one of tha events had happened whichgave the Court jurisdiction, and if there was no reason to doubt the bonafides of the admission, the Court was under no obligation to make furtherinquiry as to tho question of fact.”
In this case there was every reason to doubt the bona fides of the husbandthat the rent was in arrear and consequently the consent decree beingmado without jurisdiction amounted to a nullity.
(1021) 2 K. B. 201.
(1040) 51 K. L. B. 116.
344
WEERAMAXTRY. J.—Alu is v. Kulalunge
I am therefore of tho opinion that tho petitioner was entitled tointervene in this action and have her rights safeguarded. Acting inrevision I would therefore remitthecase to the learned Commissioner foran adjudication as to whether the petitioner is entitled to claim reliefunder tho Kent Restriction Act. Tho petitioner would he entitled totho costs of this application and the costs of the inquiry in the Courtbelow'.
WeebamantrY, J.—
The petitioner is the wife of tho tenant of premises which had been letprior to the dates material to this action. Tho letting was on a monthlytenancy at a rental of Rs. 35-14 a month.
On 10th April 196S the 1st respondent (the landlord) had institutedaction in the Court of Requests against the 2nd respondent (the tenant)
■ seeking his ejectment on the pround that rent was in arrear from 1stJune 1967 up to 31st March 1963.
' Although the tenant filed answer denying the averment of arrears ofrent, on the date of trial the case was settled on the basis of an admission,i by the tenant of the averment regarding arrears of rent. Judgment wasJ entered of consent in favour of the plaintiff as prayed for, writ ofpossession to issue forthwith. It was further agreed that the writ forthe recovery of rent, damages and continuing damages was not to issue fortwo years but that in the event of the plaintiff obtaining vacant possessionof the premises satisfaction of decree was to be er tered in respect of themoney claimed. Decree was entered accordingly. These proceedingstook place on 19th May 1969.
Thereafter, at the stage of execution, the present petitioner, the wifeof the tenant, sought to intervene and obtain a stay of execution ofwrit. She averred in her petition that she was the legal wrife of the defend-ant and that she had five children, all hying with her at the premises insuit since 1955. She averred further that the tenant (her husband)Lad deserted her and the children in February 1967 and that since thatday she had been depositing rent at the rate of Rs. 3514 with the Renti Department of the Municipality.
The petitioner averred that although she had been summoned to giveevidence and to produce the rent receipts she had received, and althoughshe was present in court in obedience to tbe summons, she was not calledup to give evidence or produce these receipts and that- it was only laterthat she came to understand that an order of ejectment had been enteredof consent. It was her position that her husband had joined hands withthe landlord to secure the ejectment of herself and her children fromthe premises, and she contended that, being the legal wife of the tenant,she had a right to pay the rent in respect of the’premises in suit and tocontinue in occupation thereof. •
WEERAMANTRY, J.—Alicia V. Kulaiunge
345
It was the petitioner’s position that if rhe and her children, of whomthree were grown up daughters, wero ejected from her premises, shewould have to face irreparable loss and damage and “ would be thrownon to the streets”.
The learned Commissioner after inquiring into this application hasfound upon the facts that the petitioner has deposited the rent at theRent Department of the Municipality and has done so up to date. He hasalso expressed his sympathies for the petitioner in the strongest termsand indicated a grave suspicion that the tenant had connived with thelandlord in the matter of consenting to judgment as prayed for. Howeverthe learned Commissioner, observing that the application was onepresumably made under the provisions of section 344 of the CivilProcedure Code, expressed the view that however tragic the petitioner’ssituation may be, it was not open to her to make an application under that section in view of the fact that that section was apparently javailable only to parties and their privies.
He.has also stated that in view of the tragedy revealed by the evidencehe had addressed his mind to the provisions of section 18 of the RentAct to see whether by analogy with the situation contemplated by thatsection, some relief could be granted to the petitioner. He did not howeverfind it possible to extend the scope of the principle underlying that sectionto a case such as that of the petitioner. In the circumstances he dismissedthe application but awarded no costs against the petitioner.
It is from this order that the petitioner seeks relief.
It is relevant also to state that up to the date of desertion the tenanthad been paying his rent at the Rent Department of the Municipalityand that the petitioner in depositing the rent at the Rent Departmentwas only continuing the practice that had been followed up to that time.Although the petitioner had deposited rents without a break so as toleave no arrears, these rents had been returned to the Municipal Councilby the plaintiff. The plaintiff’s position was that he was not preparedat any time.to accept the petitioner as his tenant and that ho had notat any time accepted rents from her.
These facts raise tho question whether any legal principle can beinvoked which entitles the court to take into account the plight of thedeserted wife of a tenant, who is threatened with ejectment. Thisinvolves also the question whether the wife has any right to tender rent ,to the landlord when the husband fails or neglects to do so. Connectedwith this question is the question whether the landlord is obliged in law .to accept the rent so tendered by the tenant’s wife. It becomes necessaryalso to examine whether, if the answer to these questions bo in the affirma-tive and the rent was therefore not in arrears at the date of the consentdecree, there exists, upon the facts of this case, any basis on which the-consent decree may be set aside.
346
WEERAMANTRY, J.—AIuh v. Kulaiunge
Turning now to the first of these questions, learned counsel for thepetitioner has referred us to a series of decisions under the English RentActs. This lino of cases would appear to have commenced with theprinciple that a surrender of premises by the tenant (one of tho limitedways in which a tenant may deprive himself of the protection of theEnglish Acts) cannot bo effectively mado so long as the wife of the tenantremains in occupation. Commencing from this principle the EnglishCourts would appear to have built up, in the context of Rent Restrictionlegislation, a doctrine of protection for the deserted wife.
In Brown a. Draper 1, one of the earliest cases on thi3.subject, it washeld that unless and until the tenant yields up possession (which liecannot do while his wife is st ill in occupation) or has an order for possessionmade against him, the protection of tho Acts extends to protect tho wifeas a licensee of tho tenant, not because the licensee can claim the protectionof tho Acts personally but because the possession of the licensee must betakeij to be the possession of the tenant.
This principle was carried further in Old Gale v. Alexander and another 8where a statutory tenant living with his wife in a flat left the premisesfollowing a quarrel and purported to surrender them to the landlord byagreement. His wife remained in occupation, and, on her refusal toquit, the husband gave her written notice revoking any authority which,she might have had from him to occupy the flat. It was held that thestatutory tenancy had not been terminated as the tenant had not givenup possession so long as he remained in occupation through his wife.Lord Denning there observed that the wife has a very special positionin the matrimonial home. “ She is not the sub-tenant or the licenseeof the husband. It is bis duty to provide a roof over her head. He is, not entitled to tell her to go without seeing that she has a proper placeto go to. He is not entitled to turn her out without an order of the courteven if she stays there against his will. She is lawfully there and solong as she is lawfully there the house remains within the Rent Actsand the landlord can only obtain possession if the conditions laid downby the Acts are satisfied.” Indeed Lord Denning went even furtherand said in this case 3 that the wife can “pay Ike rent and perform theobligations of the tenancy ” on the tenant’s behalf. This case is citedin the latest edition of Megarry4 as authority for the proposition thatthe wife can continue in occupation paying the rent and performing theobligations of the tenancy.
Again in Middleton v. Baldochs the Court, applying Brown v.Draper and Old Gale v. Alexander and another, held that a tenant couldnot by agreement waive the statutory protection afforded by the Act.and that a deserted wife remaining in the matrimonial home despitesuch waiver was lawfully there and that the husband remained in
111944) 1 All E.R. 246.* As reported in (I960) 1 K.B. 311 at 320.
", * (1949) 2 All E. R. 822.* Rent Acts 10th Ed. p. 188.
’’* {1950) 1 All E.R. 70S.
WEERAMANTRY, J.—Altcit v. Kidatunge
347
occupation through her. Indeed the English courts have gone so far as toapply this principle even to the case of a wife who remains in occupationin adulterous association with another man l.
– Learned counsel for the respondent has cited to us the decision of theHouse of Lords in National Provincial fail- Limited v. Ainsworth*,as an authority nullifying the effect of the earlier English cases speciallyprotecting' the deseited wife. It is true that in National ProvincialEankLimited v. Ainsworth it was stressed that in matters between husbandand wife there cannot be a right in rem conferred on the wife in respect. of property such as 'would travel beyond tho ambit of the purely personalhusband and wife relationship. For this reason it was held that therewould not be any interest in tho wife amounting to “an over-riding. interest ” tuch as would confer on her a real right which attaches toproperty and operate as a clog upon the ownership thereof. This principledoes not however interfere in any way with the cases to which I havereferred. In fact Lord Hodson has expressly stated3, ?-ftcrreferring tothese decisions, that he casts no doubt on their authority, and LordWilberforce has said that tho decision in that appeal leaves unaffectedthe large number of instances in which the house in question 13 leaseholdproperty held on a tenancy protected by tho Rent Restriction legislation,which ho described as a special category, of its own 4. I do not thinktherefore that learned counsel’s contention that all these decisions Iiavonow lost their force in view of this decision of the House of Lords, isentitled to succeed. Indeed as I have already pointed out, the leadingauthority on the Rent Acts has in an edition subsequent to this decision(tho 10th edition was in 1967) referred to these decisions as still beinggood law. It is of interest to note that this same submission, that theearlier line of cases no longer carried authority in view of the decision inNational Provincial Bank Limited v. Ainsworth, was made to T. S.Fernando, J. in Canekeratne c. Canekeratne s, to which I shall shortlyrefer, but the court found it unnecessary to make any pronounci mentupon the question.
The English cases thus all serve to show that in what has been describedas the “special and intricate world of rent control” G the English courts“ have had in many directions to work out empirical solutions to preventinjustice being done” 7 and have thus built up a principle of protectionfor the deserted wife and of a recognition of her right to be upon thepremises, so long as the husband remains entitled to the protection of theActs. To summarise this principle, in the words of Lord Wilberforce“ the wife’s occupation has been treated as the husband’s so as togivo her tho benefit, against the landlord, of tho tenant’s statutoryprotection” ®.
1 Wabe v Taylor (1952) 2 All E.R. 420.» (190S) 71 N.L.R. 522 at 523.
* (1965) A.C. 1175.* Per Lord Wilberforce in Notional Provincial Dank
Ltd. v. Einsworth (1965) A.C. 1175 at 1252.
» Ibid.
• (1965) A.C. 1175 at 1252.
(1965) A.C. 1175 at 1227.
Ibid at p. 1241.
3(3
WEERAMAXTRY, J.—Alwit V. Kulatunge
The same principle would be valid in respect of our rent controllegislation unless there is any variance between the principles ofEnglish common law that have been used to build up this doctrine andthe corresponding principles of the Roman-Dutch law ; and as I shallpresently show, an examination of the relevant principles of Roman-Dutch law affords even stronger support for such a doctrine than theprinciples of the English common law.
Moreover, the broad reason underlying the general doctrine of protectionfor the deserted wife as set out by the House of Lords in NationalProvincial Bank Ltd. v. Ainsioorlh is as applicable in every detail to thecircumstances of this country as it is' in England. The reason thereadduced was as follows : “the doctrine of the ‘ deserted wife’s equity ’has been evolved by the courts during the past 13 years in an attempt tomitigate some effects of the housing shortage which has persisted sincethe 1939-45 war. To a woman, whose husband has left her, especiallyif she has children, it is of little use to receive periodical payments for hermaintenance (even if these are in fact punctually made) if she is leftwithout a home. Once possession of a house has been lost, the processof acquiring another place to live in may be painful and prolonged.So, . . . the courts have intervened … and they have . . . recognisedthat she has a right, or ‘equity’ as it has come to be called, which thelaw will protect, to remain there .” Ho part of the reasoning leadingto the resulting doctrine can be dismissed as inapplicable here.
Passing now to a comparison of the relevant principles of Englishcommon law and of Roman-Dutch law we see first of all that the rightis rooted in the duty of maintenance and support which, according to theEnglish law is owed by the husband to the wife.
Now, on this matter, the Roman-Dutch law is no less stringent, andplaces upon the husband the duty to provide his wife with accommodationand other reasonable requisites for her support. 2 The husband’s dutyto support his wife does not come to an end with the break up of the jointhousehold, where the husband is the deserting spouse 3. Following thisprinciple it was held in Canektratne v. Canekeralne * that a deserted wifeis not liable to be ejected by her husband from the matrimonial homounless alternative accommodation or substantial maintenance to liveelsewhere was offered to her.
Irt so far, then, as the English cases are based upon the principle ofsupport, the same considerations obtain under our law.
In so far as the English law recognises a right in the wife to tenderpayment of rent, a right to which Lord Denning refers, the position wouldappear to be even stronger in our law, having regard to the principle of
.* Ibid at p. 124J.* Hahlo, South African Lavs cf Husband '
* Hahlo ibid, p. 102.'and Wife, 2nd Ed. p. 101.
■* (1961) 71 H. L. X. 522 at 523.
WEERAMAXTRY, J.—Aluris v. Kulatunga
349
the Roman-Dutch law that a third party may make payment on behalfof a debtor. It will be necessary to examine this principle in some detailbecause it would appear to afford a firm additional basis for consideringthe principle evolved in England to be available under our legal systemas well.
According to the authorities, performance of a debt may be renderedby iffi independent third party in the name of the debtor even withouthis knowledge and against his will, unless the performance is of such apersonal character that it cannot be effectually made except by the debtorin person.1 Pothier illustrates the inapplicability of this principle topersonal obligations by stating that if a contract is with a husbandmanto plough one’s land, another husbandman may discharge the obligation,but if I agree with a painter to take a likeness, he cannot discharge hisobligation by causing it to be taken by any other painter without myconsent.2 The payment of rent is not performance of such a personalcharacter that it must necessarily be made by the debtor in person, andtherefore the exception referred to has no applicability in the presentinstance.
Grotius states that “ performance consists in the render of the thingwhich is due, made by the debtor or someone on his behalf being qualifiedto make it, to the creditor, being qualified to receive it ”3 and he explainsthe phrase “ by the debtor or someone on his behalf ” as being applicableeven though the debtor had no knowledge of the payment.4 The phrase“ being qualified to make it ” is explained as meaning that those who arenot capable such as minors cannot make any true performance.
On the same matter Pothier observes that any tender made to thecreditor by any person whatever in the name of the debtor will be validwhen the debtor has an interest in the payment. But if the paymentoffered wculd not procure any advantage to the debtor the offer oughtnet to be regarded.8 Instances mentioned by Pothier of acts in whichthe debtor has an interest are such acts as putting an end to any actionwhich the creditor may have commenced or stopping the accumulationcf interest or extinguishing a right of hypothecation. With reference tothe facts of the present case it will be seen that the debtor, namely thehusband, had an interest in this payment in that so long as he was inoccupation through his wife and children, whom he had a duty to support,he was incurring liability to pay rent to the landlord, and the paymentsmade were to his benefit in that they relieved him of this liability. Tillcomplete and effectual vacation of the premises by the tenant and lu3family the landlord would have been entitled to a decree for rent, andindeed in the present case decree was so entered as prayed for.
1 Lee, Roman Dutch Law, 5th cd., p. 251.* 3.39.7, Lee's Translation.
* Poll.ier, Obligations, s. 465.4 3.30.10.
* Pothier, Obligations, a. 464.
350
WEER-AMAXTRY, J.—Atwis v. JCutatunje
Voet observes that “ even if a person has paid on behalf of an unawareor unwilling debtor, the payment will hold good at least to the extent thatrelease will befall the debtor thereby. ”1 Mr. Justice Gano has in histranslation of Voet noted .a series of South African decisions approving andfollowing this particular passage, and there is no indication of anydissent therefrom.
As Wessel3 points out,2 the Civil law differs from the English in allowinga stranger to the contract to carry Out its terms .and to extinguish tho •obligation of the debtor irrespective of whether the debtor is ignorantof tho payment or unwilling that it should' bo made by the thirdparty.3
By way of corollary to this principle a creditor is not as a rule entitledunder the Civil law to refuse payment from a third party where it makes nodifference to him by whom the contract is performed provided theperformance is effective and in terms of the contract-.1
The principles referred to have been accepted as settled law in SouthAfrica. Of the many South African cases on this principle it will sufficeto refer to Rolfes, Nebel <£ Co. v. Zweigenhaft5, where Wessels J. said“ it is a principle of our law that a stranger can validly pay any debt eventhough the debtor is unwilling (Vote 46.3.1). This is the main principleof the decision in Eckhardt v. Nolte (2 Kotze 48 ; 3 C. L. J. 43) ”.
It is necessary to make a brief reference to the case of Cassim v.Kaliappa Pillai and another,6 where it was held that a landlord is underno obligation to accept payment by cheque unless there is an agreementexpress or implied to do so. The cheque in that case was drawn by a thirdparty and Basnayake, C.J., observing that payment in a contract ofletting and hiring must be in cash, said that even an implied agreementthat rent would be accepted by cheque does not cast an obligation on tholandlord to accept a cheque drawn by a person other than the tenant inhis favour in payment of rent. He went on to observe " Kor has a thirdperson the right to force the landlord of another to accept a cheque drawnby h.im in payment of th at of her’s rent. Such a payment by a third personnot being a payment in terms of the contract of letting and.hiring wouldnot amount to payment thereunder. ” It would appear that Basnayake,C.J., was there directing Iris attention in particular to the fact that rentwas paid by. cheque and the principle he sought, to underline was thatunless there is an agreement that rent be paid and accepted by chequethere is no obligation upon the landlord to accept payment by cheque.
A fortiori, therefore, the landlord would be under no obligation to accept
1 Voet 46.3.1 Gant's Translation.
S.2129.
WesstU, S. 2130.
■ * WesstU SI 2133, Pothier S. 464.
’ * 1903 T. S. 185 at 195.
11960), 58 O. L. W. 64, 62 N. L. R. 409.
WEERAMAXTRY, J.—Altcis v. Kulalunge
351
the cheque of a third party. It is in this context that the observationsin that case are to be understood, and the learned Chief Justice was notthere considering the question whether a third party could under theRoman-Dutch law make payment due from one of the contracting parties.Indeed had the learned Chief Justice been considering this matter fromthe point of view of such a principle, there is no doubt that due referencewould have been made to the Roman-Dutch authorities on payment by athird party', and there is no citation of any authority on this question.I would therefore interpret the statements in that case in the limitedsense which I have explained earlier and not in the sense that there is anyprinciple of law denying a third person the right to make payment of thedebtor’s obligation under the contract.
In the result, it seems clear that under our law the abandoned wife whoremains in the premises can tender the rent on behalf of the husband so asto keep the tenancy alive and that the landlord when the rent is tenderedhas an obligation to receivo it. Hence, when the petitioner continuedher husband's practice of depositing the rent with the Municipality shewas tendering the rent on her husband’s contract as she was entitledin law to do, and when the rent was so tendered the landlord was underan obligation to receivo it in payment. The rent in consequence was notin arrear when plaint was filed or when judgment was entered.
Summarising, then, the result of the foregoing discussion, we see thatthe principles of Rent Control legislation, despite tho lack of expressprovision in that behalf, afford recognition to tho deserted wife to theextent of giving her a right to be upon the premises so long as the husbandis entitled to the protection of the Acts. In association with this principlewe seo also a right in the wife, both by tho principles of Rent Controllegislation and by the principles of the Romon-Dutch law, even to paytho rent and perform the obligations of tenancy, so that rent was not infact in arrears at any time. She eannot be deprived by the landordof her right of occupation iir.less and until tho tenant is duly' deprived ofhis protection in accordance with law. Till such time she has the status,both in relation to the tenant and in relation to the landlord, of aprotected person.
The next question, then, is whether there has been such due terminationof the tenant’s protection in accordance with law.
The consent decree, if valid, would of course constitute such a duetermination and wc must therefore examine the effect upon that consentdecree of the finding that rent was not in fact in arrears at the time.
Now, under the Rent Control Act the Court has no jurisdiction, unlesspermission of the Rent Control Hoard has been first obtained, to entertainan action in ejectment unless one or other of the circumstances specifiedby the Act exist, such as that rent has been in arrear. As a Divisional
352
WEERAMAXTRY, J.— Alwis v. Kulatunge
Bench of this Court held in Ibrahim Saibo v. Jluvsoor1, with reference toactions instituted without the permission of the Board where suchpermission was necessary, “ any decree entered in an action in which suchauthority, being necessary, has not been obtained, would be a nullitybecause a court acting without such authority would be acting withoutjurisdiction. It has to be noted that it is not competent for a defendantto contract out of such a requirement or by waiver tacit-<jr_exprcss toobviate the necessity for comrliance with it. ”3 In Dep vl Nagoratnam3His Lordship the Chief Justice having referred with approval to thispassage expressed his entire agreement with these observationsconcerning the nature and scope of the protection afforded to tenants bythe Rent Restriction Act. As Halsbury puts it “ Tire absence of acondition necessary to found the jurisdiction to make an order, or givea decision, deprives the order or decision of any conclusive effect. ” 4
Parties may however admit the existence of such circumstances whi^hvest the court with jurisdiction, in which event the courts often, as theyare entitled to do, enter decrees in ejectment by consent. As Atkin L.J.,said in Barton v. Fin chain,3 cited with approval in Nugarav. Richardson*“If the parties admit that one of the events had happened.which gavethe court jurisdiction and if there teas no reason to doubt the botiajides of theadmission, the court was under no obligation to make inquiry as to thequestion of fact. ” Gratiaen, J. citing this principle in Nvyarav. Richard-son observed that the provisions of the Rent Restriction Ordinance didnot in any way fetter the right or the duty of the court to give effect tolawful compromises willingly entered into in a pending action betweena landlord and his tenant.
If therefore the admission is a bona fide admission, any judgmententered upon the basis of that admission is one entered with jurisdiction .and would be unimpeachable even if the facts admitted are proved to boincorrect.
If however the admission is not made bona fide, the matter would notfall within the principle set out in Barton v. Fincham and indeed if itwere made with an improper motive which would amount to fraud, thejudgment based thereon would in accordance with the oft repeatedprinciple that “ fraud is an extrinsic, collateral act, which vitiates themost solemn proceedings of courts of justice ”1 be liable to annulment®.This, result would ensue whether the fraud be that of orio or more of thoparties to the case®.
1 (/P-53) 54 J/. L. It. 217.
Ibid, at p. 224.
(1954) 56 xV. L. B. 262 at 264.
Halsbury, 3rd vol. 15, p. 205, S. 384.
(1921) 2 R. B. 291.
(1949) 51 N. L. It. 116.
1 Duchess oj Kingston's case 1776, 2 Smith L. O., 18th cd., 664 at 6S1,
Halsbury, 3rd f.d., vol. 15, p. 203, S. 383.f Halsbury, 3rd ed., vol. 22, p. 790, S. 1669.
WEERAMAXTRV. J.—Alicia o. Kulotunge
353
Having already reached the result in. the present case that rent was notin arrears, it remains for us to examine further whether the making ofthat admission was so tainted os to bring it within the principles I havenow mentioned.
There would appear to exist in the present case the strongest circum-stances establishing fraud on the part of the tenant in consenting to thisdecree and also circumstances suggestive indeed of collusion on the partof the landlord in this act of the tenant. The tenant had denied in hisanswer that rent was in arrears and he quite clearly knew that his wifehad tendered payment of the rents, as was evidenced by h's summoningher to give evidence on his behalf. She was present in court but wasnevertheless not called but the tenai t on the contrary consented to judg-ment. Moreover, while apparently, for the purpose of satisfying the courtof its jurisdictior, he admitted nominally that rent was in arrears andtherefore consented to a liability in damages, ho has taken care so toarrange the settlement as to save himself from any financial liabilitywhatever in the e vent .of ejectment. He was of course aware that his wifeand ch ildren were upon the premises but he has permitted the specificinsertion into the terms of settlement of the harsh if not cruel provisionthat writ of possession is to issue jorthtciih—a term we rarely if ever findany tenant consenting to in any court of trial, and least so when it meansthe ejectment of a member of his own family. Whatever the feelingsof the tenant were towards his wife, he must surely have been aware ofhis duty of providing shelter, if not to his wife at least to his children.By that provision he secures the dual result of the immediate ejectmentof a wife and family whom he was powerless in law to eject so long ashis protection lasted, as well as of a total immunity as far as he wasconcerned, to damages. The suggestion of fraud on his part which thepetitioner makes and which the learned judge was strongly' inclined tobelieve, stands amply proved by these circumstances. Moreover thecourt order which was obtained as a result was aimed not only at a personwhoso right to remain in occupation was protected by law but at one whoby laying out her own money', though in payment of her husband’s debt,would have had a very' special ground of complaint over and above theaverage deserted wife, if despite her care and sacrifice to keep the tenancyalive she was to be ejected on the falso basis that rent was in arrears.
Passing now to the conduct of tho landlord, his refusal to accept therent although it was tendered in the tenant’s name and the subsequentfiling of action on the basis that the tenant was in arrears, despite thisfact ; the way in which he agreed to save the tenant from any financialliability* in the event of immediate ejectment despite the knowledge whichhe is shown on the evidence to have had that the deserted wife andchildren of the tenant were upon the premises — all this is suggestive thatthe landlord had joined hands with the tenant as the petitioner alleges,in order to secure her eviction. Moreover he was thereby obtaining anejectment order to which he would not have been entitled had tho factsbeen correctly represented to court.
351
JAYASEJvERA, r. Minawanqotla Co-operative Socie'y Ltd.
I think therefore that there was good ground for the petitioner’s allega-tion of collusion on the part of the landlord and for the judge’s suspicionsin this regard, though I would hold that on this matter, unlike in respectof the tenant’s conduct, the element of fraud, though strongly probable,has not been conclusively proved to exist.
For the reasons set out I conclude therefore that the consent judgmentwas obtained by fraud on the part of the tenant (and indeed probably ofthe landlord as well) with a view to depriving of her right of occupation,a person specially protected by law. The admission of arrears which gavothe court- jurisdiction to enter decree was not made bona fide. Thoadmission was incorrect in fact. Tire consent judgment is in the circum-stances a nullity.
Acting in the exercise of this Court’s powers in revision I would setaside tho Commissioner’s order refusing stay of execution and also theconsent- decree entered on 19th Mov 1969 and remit the case to the learnedCommissioner for trial on the bos:s of the legal principles I have indicated.Tho petitioner will have the costs of this application and of the inquiry inthe court below.
Order set aside and case set bach for further ‘proceedings.