024-NLR-NLR-V-55-MRS.-E.-D.-HENSMAN-Appellant-and-MRS.-MARY-STEPHEN-et-al.-Respondents.pdf
GRATIAEX J.—Bensman v. Stephen
86-
1953Present: Gratiaen J.MRS. E. D. HENSMAN, Appellant, and MRS. MARYSTEPHEN et al., Respondents
S. C. 198—C. R. Colombo, 34,496
Rent Restriction Act, Xo. 29 of 1948—Death of tenant—Continuance of tenancy—■Scope of Section 18.
Where a monthly tenant, who has been given due notice to quit residentialpremises to which the Rent Restriction Act applies, dies during the pendencyof an action for ejectment instituted against him by the landlord, his widowand family are no longer entitled to occupy the premises as against the landlord.-Section 18 of the Rent Restriction Act, which provides for continuance of.'tenancy upon the death of a tenant, has no application where the originalcontractual tenancy had already been determined according to the common'law so that all that the former “ tenant ” thereafter enjoyed was a statutoryprotection which was personal to him.
■/^.PPEAL from a judgment of the Court of Requests, Colombo.
H. W. Jayewardene, with D. R. P. Goonetilleke, for the plaintiff"appellant.
H. IF. Tambiah, for the substituted defendants respondents.
Cur. adv. vult.
October 12, 1953. Gkatiaest J.—
This appeal involves a consideration of the scope of-section 18 of the-Rent Restriction Act, No. 29 of 1948.
The appellant has let certain residential premises, to which the Act
admittedly applies, on a monthly tenancy to S. MT. Stephen. She filed
action against him for ejectment on 8th August, 1951, having previously-
» 1
1 (1937) 39 X. L. R. 241.2 (1938) 39 X-D-R. 433.
-SO
GRATIAEN J.—Mensman v. Stephen
given due notice terminating the contractual tenancy, and she claimedthat he was not entitled to statutory protection from ejectment because,inter alia, the premises were reasonably required as a residence forherself and her family within the meaning of section 13 (1) (c).
S. M. Stephen died on 24th December, 1951, pending the action forejectment, but his widow (who is the respondent to the present appeal)purported on 8th January, 1952, to serve a notice on the appellant undersection 18 (2) (a) to the effect that she proposed, as “the survivingspouse of the deceased tenant ”, to continue in occupation of the premisesas tenant. There can be no doubt that, if the section applies to a caseof this nature, the respondent would have become, by operation of theAct, a substituted tenant of the premises with effect from 1st January,1952. In that event, the appellant would not be entitled to eject her orthe other members of her household on the footing that they had ceasedto enjoy rights of occupation under the previous “ tenant ”(S. M.
Stephen).
The learned Commissioner of Requests has taken the view that therespondent was entitled to avail herself of the provisions of section 18■of the Act. The appellant contends, however, that section 18 does notapply because, in the present case, S. M. Stephen had in truth ceasedto be a “ tenant ” long before the respondent had purported to invoke-section 18.
In dealing with this issue, it is necessary to remind oneself of the-extent to which the Act interferes with the common law rights of alandlord vis a vis his contractual tenant. The provisions of the Act“ do not prevent an owner from terminating the tenancy of his tenantin the ordinary way ; what they do is to give the person who has beentenant a right (in certain specified circumstances) to remain in possessionafter the tenancy has gone ”—Baker v. Turner x. It follows, therefore,that the contractual monthly tenancy between the appellant and S. M.Stephen was lawfully determined by due notice at a date long prior tohis death, but that, although he ceased to be a tenant thereafter, he stillenjoyed “ a purely personal right ’ ’ to remain in occupation of the premisesagainst the wish of bis landlord until an order for his ejectment wasmade by a Court of law. In other words, he could not be turned out ofpossession so long as he complied with the provisions of the Act anduntil the landlord could establish against him that this statutory protectionhad been forfeited for one or other of the reasons specified in section 13.Keeves v. Dean2. In that decision Bankes L. J. emphasised the point'that such statutory protection, being of a purely personal nature, cannotbe passed on to another person unless the statute expressly authoriseshim, to do so, and that, subject to this qualification, “ must cease themoment, he parts with possession or dies That is the limit of whatEvershed M. R. describes as the “ statutory right of irremovability ”enjoyed by a person whose contractual rights as a tenant have beenpreviously determined under the common law. Marcroft Wagons v.Smith 3.•
1 (I960) A. O. 401 at 436.2 {1924) 1 K. B. 685.
s (1951) 2 K. B. 496 at 501.
GRATIAElsT J.— Hens man, v. Stephen
91
Apart from section 18 whose scope I shall later examine, the widowof a tenant (under a subsisting contract of tenancy) or of a so-calledstatutory tenant ” (who still enjoys some statutory protection not-withstanding the termination of the contractual tenancy) is concededno special privileges under the local enactment. In England, on the otherhand, section 12 (1) (g) of the Increase of Rent and Mortgage Interest(Restrictions) Act, 1920 defines the term “ tenant ” so as to include aman’s widow or, in certain circumstances, his other relations therebyconferring on her or them (as the case may be) the privileges of whatMegarry (Rent Acts, 7th Ed., p. 211) calls “ a transmitted statutorytenancy In such cases, the widow or other relation enjoys, by suc-cession, the right to continue in the same tenancy (i.e., either contractualor ‘‘ statutory ”) withits original advantages and disadvantages unaltered.Bolsover Colliery Co., Ltd. v. Abbot x. If the deceased person was only a“ statutory tenant ” at the time of his death, his successor would alsobecome a statutory tenant “ under the same tenancy by virtue of whichthe original statutory tenant was in possession ”—American EconomicLaundry, Ltd. v. Little 2. By this means, either the contractual rights ofthe deceased person under a tenancy which has not been determinedunder the common law or the statutory protection enjoyed by him if hiscontractual rights no longer exist would be transmitted to the succeeding“ tenant ” who steps into his shoes by virtue of the Act.
The learned Commissioner appears to have assumed that the operationof section IS of the Rent Restriction Act, No. 29 of 1948, confers uponthe respondent, as Stephen’s widow, the same rights as she would havehad if section 12 (1) (g) of the English Act had applied to the case. Heaccordingly decided that, as the respondent had exercised her optionunder section 18, she still enjoyed her deceased husband’s statutoryprotection under section 13. In this view of the matter, he held that adecree for ejectment would cause greater hardship to the respondentthan a refusal of such a decree would cause to the appellant. Theappellant’s ease was therefore dismissed with costs.
In my view, the scope of section 18 (2) (a) of the Act is entirely different.It confers on the widow of a deceased “ tenant ” the option of compellingthe landlord to recognise her as a new tenant as from a point of timewhich commences after (but not immediately after) the date of herhusband’s death. If the landlord protests, the jurisdiction of the Boardunder section 18 (3) is restricted to a consideration of whether or not thewidow was in truth a person “ entitled to give the notice for whichprovision had been made ” under section 18 (2). In other words, theBoard has no discretion to refuse a widow’s claim to a new tenancy byreference to any other considerations (such as those of convenience ordesirability). And, if that new tenancy be established, it follows thatthe new tenant’s rights would be quite unaffected by the events whichhave gone before—for instance, the earlier tenant may have been inarrears of rent; he may have caused the premises to have deterioratedby neglect, or have used them for an illegal or an immoral purpose : all
(1946)1 K. B. S.
(1951) 1 K. B. 400 at 406.
92
Don Abraham v. Christoffelsz
that would be beside tbe point—because the new tenant would neverthe-less be vested with the status of a tenant enjoying in her ovm right the-superadded protection of the Act.
Section 18, in my opinion, was not intended to produce any suchstartling results. It only permits the widow, or relation of a deceased“ tenant ” to claim a fresh tenancy if the latter was a “ tenant ” in thestrict sense of the term—i.e., if there was still subsisting at the time of thedeath a contractual tenancy between himself and the landlord.
I agree with Mr. Thambiah that, in section 13 of the Act, the word“ tenant ” is wide enough in that particular context to include a personwhose contractual tenancy has already been determined. I agree alsothat, as a general rule, the same meaning should be implied by the useof the same expression in a statute. But this is not a rigid rule of inter-pretation. There are other sections, for instance, in which a “ tenantclearly refers only to a contractual tenant, and I am perfectly satisfiedthat it is in this sense that the word was used in section 18. Section 18has no application where the original contractual tenancy bad alreadybeen determined according to the common law, so that all that theformer “ tenant ” thereafter enjoys is a statutory protection which is-personal to him and dies with him. That was the position when Stephendied in the case with which this appeal is concerned. I would therefore-hold that the respondent and her family were no longer entitled tooccupy the premises as against the appellant.
I set aside the judgment under appeal, and direct that judgment beentered as prayed for in the petition of appeal. Having regard, however,to the difficulties in which the respondent and her children have beenplaced, I would direct that writ of ejectment should not issue until after-31st January, 1954.'
Appeal allowed.