080-NLR-NLR-V-57-MRS.-J.-BRITTO-Appellant-and-W.-HEENATIGALA-Respondent.pdf
Present : Gratiaen, J., and Gunasekara, J.
MRS. J. BRITTO, Appellant, and W. HE EN ATI GALA, RespondentS. C. 432—D. C. Colombo, 6,532
■y
Rent Restriction Act, No. .29 oj 194S—Sections 13 and 27—Letting of co-otcned premises—partition sale thereafter—Docs not terminate statutory tenancy—Partition-Ordinance {Cap. 56), ss. 4, S.
Tho statutory protection of a tenant under the Rent Restriction Act is notautomatically extinguished if the leased premises are purchased (either by aco-oimer or by a third party) in terms of a decree for sale under the PartitionOrdinance.
-/^-PPEAL from a judgment of the District Court, Colombo.
H. IK. Jayeicardene, Q.C., with IK. P. N. de Silva, for the defendantappellant.. _ .
Cur. adv. vult.
Sir Lalita liajapakse, Q.C., with C. G. Weeramantry, for the plaintiffrespondent….
GRATIAKN', J.—Brilta v. Hecnadgnln
328
February 27, 1950. Gratia ex, J.—
The question for our decision on this appeal is 'whether the statutoryprotection of a tenant under the Rent Restriction Act No. 29 of 194Sis automatically extinguished if the leased premises are purchased (eitherby a co-owner or by a third party) in terms of a decree for sale under thePartition Ordinance. In Hccnatigala v. Bird 1 Pullo J. expressed theopinion obiter that “ the certificate of sale issued (under section 8 of theOrdinance) had the effect of terminating the relationship of landlord andtenant and of constituting (the purchaser) an independent title holderto whom the restriction contained in section 13 of the Act could not applybecause the certificate conferred a title which was not subject to thetenancy agreement ”. Swan J., who pronounced the principal judgment.in that case, did not discuss this problem because counsel appearing forthe tenant “ did not think it worthwhile to pursue the matter, and statedthat his client was willing to surrender possession if he was given time ”.We are therefore free to examine the question afresh. In the rest ofany judgment, I shall refer to the Partition Ordinance as “ the Ordinance ”and to the Rent Restriction Act, No. 29 of 194S, as. “ the Act ”.
The premises to which this action relates are situated in an area inrespect of which the Act is in operation. The defendant had entered intooccupation of it as a tenant on loth October 19-17 by virtue of a notariallease executed in her favour by the plaintiff (as co-owner) and by virtueof contracts of monthly tenancy granted to her by all the other co-owners.During the subsistence of these tenancy agreements, the plaintiff in-stituted an action against his co-owners for the sale of the premises underthe Ordinance, a partition being admittedly impracticable. On GthJuly 1950 a decree was entered under section 4 declaring the plaintiff andthree others to be entitled to an undivided £ share each and ordering thepremises to be sold under section 8 subject to the rights of a mortgagee.The premises were accordingly put up for sale by public auction on 12thOctober 1950 and the plaintiff was declared the purchaser. The salewas in .due course confirmed by the Court, and on 5th February 1952 acertificate of sale was issued to the plaintiff under section S as evidenceof his title as sole owner. Shortly afterwards he sued the defendantfor ejectment on the footing that her former rights as tenant had beenextinguished by the decree for sale and that, as purchaser, he was nowvested with a title which brought to an end the statutory protection whichshe would otherwise have enjoyed under the Rent Restriction Act No. 29of 194S. The learned District Judge upheld this contention and ordereda decree for ejectment as praj ed for, awarding damages at Rs. 40/55 permensem less a sum of Rs. 2S0/24 which the defendant had paid on the•plaintiff’s behalf as Municipal rates.
I have come to the conclusion that the propositions of law relied onin support of the plaintiff’s cause of action must be rejected. The decreefor sale entered under section 4 of the Ordinance certainly had the effectof bringing to an end the contractual relationship which previously existed
1 (I9-5J) 55 -V. L. li. 277 at 2S0.
between the defendant ns tenant and the co-owners (taken collectively}as “ landlord Nevertheless, the statutory protection conferrcti on thedefendant by section 13 of the Act was not extinguished cither by thedecree for sale dated 6th July 1950 or by the certificate of sale datedotli February 1952. The plaintiff is therefore precluded from claimingthe ejectment of the defendant without the authorisation of the RentControl Board because he Las not established that the defendant’s pro-tection under the Act has come to an end for one or other of the reasonsset out in the proviso to section 13.■'
It is important to realise that section 13 of the Act operates “ notwith-standing anything in any other law This means that the " tenant ”is protected even though his contractual rights may have been terminated(c.g., by due notice or by effluxion of time) or extinguished by operationof law (e.g., by virtue of the combined effect of sections 4, 8, and 9 of theOrdinance). In the context of section 13 the word " tenant ” necessarilyincludes (and generally means) a person who continues to occupy theprotected premises after his contractual rights under the common lawhave come to an end. Gunaratne v. Thelenis 1. The observations ofLord Porter in Baker v. Turner 2 ina3r usefully be quoted in this connection :
“ The rules of formal logic must not be applied (to the language ofRent Restriction legislation) with too great strictness. As Scrutton
J. has more than once pointed out, they must be viewed in the lightof their aim and object and it must alwaj^s be remembered that thedifficulty in construing them is enhanced by the fact that words andphrases apt to describe the relationship of a common law landlord,and tenant one to another have been used without specific definitionof another and statutory relationship viz. that of a protected tenantor sub-tenant to his immediate, or perhaps remote, landlord. ”
Referring to this statutory relationship, Evershed M.R. observed as follows,in Marcroft Wagons Ltd v. Smith 3 :
" A few sentences from the judgment of Bankes L. J. in Ramon'scase 4 will illustrate as well as possible the strangeness, at any rate asit would have appeared to a pendantic lawyer of the nineteenth century,of this conception. Referring in that case to the person claiming to-retain possession of the premises, the Lord 'Justice said : ‘ In no or-dinary sense of the word was respondent a tenant of the premises onJuly 2nd. His term had expired. His landlord had endeavouredto get him to go out. He was not even a tenant at sufferance. Itis however clear that in all the Rent Restriction Acts the expressiontenant has been used in a special and peculiar sense, and as includinga person who might be described as an ex-teiiant, someone'whose occu-pation had commenced as tenant and who has continued in occupationwithout any legal right except possibly such as the Acts themselvesconferred upon him ’. ”
The further question arises in the present case as to whether the plain-tiff, after purchasing the premises under the provisions of the Ordinance,could fairly be described as the defendant’s “ landlord ” within the-
1 (1946) 47 2v. L. Ft. 433.'1 (1931) 2 K. B. 496 at 502.
z (1950) A. C. 401 at 417.* (1921) 1 K. B. 49 at 54.
meaning of the Act. Section 27 defines the term as meaning “ the personfor the time being entitled to receive the rent of such premises… ”. Under the common law, the word “ rent ” presupposes a
subsisting contractual relationship whereby an agreed sum is paid byone of the parties for the occupation of the other’s property. But heroagain the object of the Act would be defeated if we were to interpret theword “ with too great strictness In my opinion, therefcrenec to “ rent ”implies that “ so long as a tenant enjoys a statutory right of occupationnotwithstanding the termination of the earlier contract, a statutoryobligation is imposed upon him to pay rent at the original contractualrate. ” Sideck v. Sainambu Kcilchiyar . In short, words such as “ land-lord ”, “ tenant ” and “ rent ”, which are strictly appropriate only todescribe a common law relationship, must all receive a meaning in theAct consistent with the conception (which is no doubt fictitious) that theold relationship still subsists during the period of statutory protection.The justification for this “ broad, practical, common-sense inter-pretation ” is that it provides the only means of giving effect to theintention of the legislature. Read v. Coaler At the same time I agreeentirely with Sir Lalitha- Rajapakse that it would be quite wrong to in-clude witliin the definition of a “ landlord ” any person other than theoriginal lessor or someone who derives his title from the original lessor.If, therefore, the true owner of the leased premises vindicates his title•against the tenant’s contractual lessor, the statutory protection whichthe tenant enjoyed against the lessor would not be available against thetrue owner.
Sir Lalitha’s main argument was that a purchaser at a sale held underthe Ordinance acquires ” a title paramount ” which is notin truth derivedfrom the person declared in the decree to be the co-owners, and thatthere is no nexus by derivation from the co-owners (the tenant’s lessors)sufficient to give him the status of a “ landlord ” within the meaningof that Act. In support of this submission, much reliance was placedon de Snmpayo J.’s frequently quoted observation in Bernard v. Fernando 3that ” partition decrees arc not like other decrees affecting land,merely declaratory of the existing rights of the parties inter sc. Theycreate a new title in the parties absolute^’ good against all the world ”.I Mould not presume to question the correctness of this analj sis, and,M'ith respect, I think that it admirably explains the effect of a finaldecree for partition whereby a co-owner receives, in lieu of his formerundivided interests, absolute title to a divided allotment of the commonproperty. But de Sampayo J. has nowhere suggested that this analysisis equally appropriate •where a decree for the sale of the common propertyhas been entered under section 4 of the Ordinance. A decree for saleunder section 4 expressly declares that the common property belongsto certain specified co-owners in certain specified proportions, andthen proceeds to order a sale of the property by public auction. Insuch a situation, it is the title of the persons declared to be co-ownerswhich is put up for sale. The only substantial difference between a.
sale under the Ordinance and an ordinary sale in execution proceedingsis that in the former case section 9 declares the title to be unim-peachable and good against all the -world.
Until the certificate of sale is issued to the purchaser “ the common"bond of co-ownership ” continues between the persons in whose favour•the decree under section 4 was passed. Kaha-n B/iai v. Perera- .■“ Upon the issue of the certificate of sale to the purchaser under a decreefor sale, the title declared to be in the co-owners is definitely passed to■the purchaser . . . . ” per Garvin J. in Fernando v. CadiraveluIndeed, section S emphasises that the certificate of §ale merely operatesto pass"the co-owners’ title to the purchaser as effectively as if theythemselves had executed a conveyance in his favour. Accordingly,the purchaser’s title is in truth a title derived from the personsdeclared to be the co-owners of the property. If, therefore, they hadbeen the tenant’s “ landlords ” within the meaning of the Act, theirstatutory status was transferred to him by operation of law.
It is quite correct to say that the decree for sale under section 4 of thePartition Ordinance had the effect of wiping out the contractual rights oflessors and monthly tenants. Samara ice-era v. Cunjimoosa3. Underthe common law, therefore, the defendant could not have resisted theclaim for her ejectment- But it is at this stage that the Act intervenesto give her protection. Although the common law relationship of land-lord and tenant between the co-owners and herself was extinguished,a statutory relationship was created in its place which prevented themfrom ejecting her except upon one or other of the conditions permittedin section 13. In February 1952 the plaintiff, as purchaser, succeededto the status of a statutory landlord.
Distinguished Judges have explained in different ways the protectiongranted to tenants by Rent Restriction legislation. Evershed 51. R.in the Marcrojt Wagons Ltd. case 4 speaks of a "statutory right of irre-movability ” and of a “ right to occupjr premises with many of the attri-butes of a tenancy without the essential qualifications of an interestin land ’’ (page 503). Denning L.J. tells us in the same case that a" tenant ” is clothed in " the valuable status of irremovability ” (page506). Whichever cx-planation be regarded as more appropriate in termsof jurisprudence, the legislature has found it necessary to impose astatutory fetter on the common law right of landlords and theirsuccessors in title to eject the tenant after the contract itself has(for whatsoever reason) come to an end. I would allow the appealand dismiss the plaintiff’s action with costs in both Courts. Thedefendant is entitled to credit in the sum of Rs. 2S0/24 previously re-ferred to against sums due by her to the plaintiff as " rent ” (which thelearned Judge has rightly fixed at Rs.. 40/55 per mensem).
CiuSASEKARA, J.—I agree.-
Appeal allowed.
(1010) IS X. L. R. 403 (F.B.)
(10-51) 2 K. B. 496.