MRS. T. L. JAYATUNGA, Appellant, and MRS. V. A. ROSALINAHAMY, Respondent

030-NLR-NLR-V-78-MRS.-T.-L.-JAYATUNGA-Appellant-and-MRS.-V.-A.-ROSALINAHAMY-Respondent.pdf


TENNEKOON, C. J.—Jayalunga v. Rosalinahamy
213
1975 Present: Tennekoon, C. J., Vythialingam, J., andGunasekera, J.
MRS. T. L. JAYATUNGA, Appellant, and MRS. V. A.ROSALINAHAMY, Respondent.
S. C. 237/70 (F)—D. C. Colombo 12196/LRent Restriction Act (Chapter 274)—Premises in suit subject tofideicommissum—Tenant came into occupation under -fiduciary—Death of fiduciary—Fideicommissary successors became owners—Definition of “ landlord ” and applicability of Section 13 of Act.
“A. F.” was the original owner of the premises in suit. By hisLast Will he bequeathed the premises to his daughter ‘ M. F ’subject to a fideicommisum in favour of the children of ‘ M.F.‘M.F.’ died on 23.04.68 and her children, the 1st to 6th Plaintiffsbecame owners of the premises as fideicommissary successors.The defendant originally came into occupation of the premises asa monthly tenant under ‘M.F.’. On 30.06.68 the plaintiffs filedaction for declaration of title and ejectment of the defendant, on
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TENNEKOON, C.J.—Jayatunga v. Rosalinahamy
the basis that the contract of tenancy with ‘ M.F. ’ ,the (fiduciary)came to an end with the extinction of the fiduciary rights andthat the defendant had therefore become a trespasser. Thepremises were admittedly governed by the Rent Restriction ActNo. 29 of 1948 (Chapter 274) and its amendment, then in force.The defendant claimed the protection of the said Act and prayedfor a dismissal of the action.
Held, (Gunasekera J, dissenting) that the plaintiffs are notbarred from maintaining the action inasmuch as they do not fallwithin the meaning of the term “ landlord ” as defined in theRent Restriction Act. Section 13 of the said Act can have noapplication to one who was neither the original common lawlandlord nor his successor in title.
“ Under the common law applicable in this branch of our law,the relationship between a landlord and a tenant is a contractual
one The contract of letting is ordinarily unrelated to
the ownership of property being in the landlordIt seems
to me therefore that when Rent Restriction Act defines the term“ landlord ” as the person for the time being entitled to the rentof such premises, it is referring in the first place to the personentitled under the contract of tenancy to receive the rent andnot necessarily to the true owner who may not, in relation to aparticular tenancy of the premises in question, have been theperson who let the premises.” per Tennekoon, C. J.
A.PPEAL from a judgment of the District Court, Colombo.
Ranganathan with Lalith Athulathmudali for the Plaintiff-appellants.
M. T. M. Sivardeen for the defendant-respondent.
Cur. ado. cult.
October 22, 1975. Tennekoon, C- J.—
I have had the advantage of reading the judgments preparedby my brothers Vythialingam, J. and Gunasekera, J.
One Anthony Fernando was the original owner of thepremises in suit. By his last will he bequeathed the premisesto his daughter Mary Fernando subject to a fidei commissuminfavour of the latter’s children. Mary Fernando died on 23.4.68and her children the 1st to 6th plaintiffs became owners of thepremises as fidei commissary successors. The defendant-respondent originally came into occupation of the premises asa monthly tenant under Mary Fernando. After the death ofMary Fernando the defendant-respondent tendered rent to theplaintiff-appellants but they refused to accept the rent or theposition that the defendant-respondent became their tenantupon the death of Mary Fernando.
The plaintiff-appellants thereupon sued the defendant fordeclaration to title, ejectment and damages. The defendantrontpriHprl that, iinnn t.he death of Marv Fernando, she continued
TENNEKOO-NT, O.J.—Jayatunga v. Rosalinahamy
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as a tenant of the plaintiffs and claimed the protection of theRent Restriction Act (Cap, 274) in particular section 13 thereof.
It seems to me patent that section 13 is a limitation of the rightof a landlord to institute or maintain an action against a tenantand is not a limitation of the right of other persons, who do notfall within the meaning of the term “ landlord ” as used in theAct, to maintain an action against a person in occupation ofpremises and claiming to be tenant of some other persons. Aswas said by Gratiaen, J. in Britto vs. Heenatigala, 57 N.L.R. 327.
“ If, therefore, the true owner of the leased premisesvindicates his title against the contractual lessor, thestatutory protection which the tenant enjoyed against hislessor would not be available against the true owner.”
It seems to me that the essential question to be decided inthis case is whether the plaintiff-appellants fall within themeaning of the term “landlord” as defined in the Rent Restric-tion Act. That definition reads as follows: —
“ Landlord ”, in relation to any premises means theperson for the time being entitled to receive the rent ofsuch premises and includes any tenant who lets the premisesor any part thereof to any sub-tenant.
Under the common law applicable in this branch of our law,the relationship between a landlord and a tenant is a contractualone ; the landlord and the tenant, each enjoys under such con-tract certain rights and obligations. The contract of letting isordinarily unrelated to the ownership of the property being inthe landlord, for a valid lease may be granted by the owner orby a person having no right to the property. It seems to metherefore that when the Rent Restriction Act defines the term“ landlord ” as the person for the time being entitled to receivethe rent of such premises, it is referring in the first place tothe person entitled under the contract of tenancy to receive therent and not necessarily to the true owner who may not, inrelation to a particular tenancy of the premises in question,have been the person who let the premises. A person who hasno right whatsoever, whether absolute or limited, to immovableproperty may nevertheless make a lease of such property. Sucha lease is valid as between the landlord and tenant but it doesnot follow that it is valid or effectual against the true ownerof the property.
Then the plaintiff-appellants do not in my view fall underthe definition of the term landlord by reason merely of the factthat upon Mary Fernando’s death they as fidei commissary heirsbecame owners of the premises. They might have become thelandlords if Mary Fernando had it in her power to grant a lease
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TENNEKOON, C.J.—Jayatunga v. Sosalinahamy
of the premises extending beyond her life-time but that isexactly what she, being only the fiduciary, could not do.
Much reliance was placed by counsel for the defendant-respondent on section 13 of the Rent Restriction Act. Thissection applies only to landlords and includes also a personusually referred to as a statutory landlord, i.e. a person whowas the commonlaw landlord but who has terminated thecontract but is compelled by the Act to discharge the obliga-tions of a landlord because that very section prevents him,unless he can satisfy the terms of the proviso, from institutingaction for ejectment of the tenant. Section 13 can have noapplication to one who was neither the original commonlawlandlord nor his successor in title.
In the result I find myself unable to agree with my brotherGunasekera, J. I agree with the judgment of my brotherVythialingam, J. and the order proposed by him.
Vythialingam, J.—
The plaintiffs-respondents sued the defendant for a declara-tion that the plaintiffs were entitled to the land and premisessubject matter of the action, for the ejectment of the defen-dant and for damages alleging that the defendant was inunlawful and wrongful possession of the land and premises. Thedefendant resisted the claim of the plaintiffs on the ground thatshe was the tenant of the premises by operation of law andclaimed the protection of the Rent Restriction Acts. After trialthe learned District Judge entered judgment for the defendantand dismissed the plaintiffs’ action. The plaintiffs appealagainst the judgment and decree.
According to the plaintiffs one Jayawickremage AntonyFernando was the original owner of the premises in suit. Heby last Will No. 144 of 25.7.1922 bequeathed the said premisesto his daughter, Mary subject to a fidei commissum in favourof her children. Mary Fernando died on 23rd April, 1968 andthe 1st to 6th plaintiffs as her children became the absoluteowners of the premises. This position is not contested by thedefendant and it could not have been contested by her consis-tently with her claim to be the tenant of the premises. At thetrial it was admitted that the defendant was the contractualtenant of Mary Fernando and that after her death she sentthe rents to the plaintiffs who refused to accept the same.
Under our law a fiduciary is entitled to the beneficial useand enjoyment of fidei commissary property for he possessesan actual though burdened ownership. In Baby Nona et al Vs.
VYTHIALINGAM, J.—Jayatunga v. Roacdinahamy
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Silva 9 N.L.R. 251 which held that an amicable partition ofthe fideicommissary property by the fiduciaries was binding onthe fideicommissary heir, Middlton, J, said at page 256 “Afiduciarius has, it is true, a real though burdened right ofownership which may or may not develop into plenum domi-nium”. He could therefore, hire out the premises but only forthe duration of his interests but not longer.
In the case of Fernando Vs. de Silva 69 N.L.R. 164 it washeld that the death of the landlord does not terminate amonthly tenancy. Manickvasagar, J. after citing a passage fromPothier said at page 165, “He gives two exceptions to thisgeneral rule, which is accepted by the writers of Roman DutchLaw that
where the lessor’s title was one for his life only,
such as a fiduciary interest or life usufruct, the deathof the lessor terminates the lease;
where the lease is at the will of the lessor or lessee
death of the lessor or the lessee as the case may beterminates the lease.”
It was pointed out to us that the passage from Pothier doesnot refer to a fiduciary. But the statement of the law is amplyborne out by text writers and decided cases. Prof. Nadarajahwhose work on The Roman Dutch Law of Fidei Commissa isgenerally accepted as authoritative both in South Africa andCeylon says at page 142, “The fiduciary may lease the property,the lease being valid for the duration of his interest but notlonger. ” Wille on Landlord and Tenant in South Africa(Fourth Ed ) points out at page 19 “A fiduciary of land underthe simplest of testamentary fidecommissum namely wherethe property is to pass to the fideicommissary on the death ofthe fiduciary is in the same position as a usufructuary andtherefore, his right to grant leases is similar. Consequently ifa fiduciary grants a long lease and dies before the expirationof the term the fideicommissary is not bound by the lease.”This is of course subject to the terms and conditions containedin the instrument creating the fidei commissum.
Consequently immediately on the death of the fiduciarythe fideicommissary can vindicate his right to the propertyagainst a trespasser for in the modem law there is no need forrestitution. Prof. Nadarajah points out at page 143.“ In the
modern law, it would seem that in all cases the transfer ofownersh p takes place automatically at the time prescribed bythe testator for the vesting of the fideicommissary’s interestand the fideicommissary is entitled from that time to the useand enjoyment of the property and to enforce his claims to the
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V YTHJAI.JN GAM, J.—Jayatunga v. Bosalinahomy
property against the fiduciary, his representative or otherpossessor.”
In the case of Sithy Naima Vs. Ganny Bawa 32 N.Lt.R. 155the deed creating the fideicommissum prohibited a lease for aperiod more than five years- But it did not provide anypenalty or forefeiture for a contravention of that clause. Thefiduciaries leased the premises for seven years. It was heldthat on the death of the fiduciary pending the lease thefideicommissary heirs were entitled to take possession imme-diately. Maartensz, A. J. said at page 156 “ And I do not think thatthe limitation can be construed into an enlargement of therights of the fiduciary heir so as to bind the fideicommissary
heirs after the death of the doneefor, unless possession
has been postponed by the terms of the deed or will a fidei-commissary heir succeeds to the fiduciarius on the latter’s death.No particular words are necessary to create that result.”
In the South African case of Eksteen et al Vs. Pienaar et-al 1969, 1 S.AL.R. 17, T became entitled to certain propertysubject to the condition that on her death and that of herhusband the farm would devolve on her lawful descendantsand if there were none, then in three equal shares on thelawful descendants of three named persons. T’s husband pre-deceased her as did two of the three named persons. Therewere no children. As a result of two of the fideicommisary heirspredeceasing her T became entitled absolutely to a two-thirdshare and the balance one-third remained in the third fidei-commissary heir. T left a will by which she bequeathed hershares to certain legatees.
During her life time she had leased out certain portions tothe defendants and at the time of the death the lease had notexpired. In an action against the defendants for ejectment bythe executors it was held that they could not maintain theaction as far as T’s two-third share was concerned as the leasehad not expired and in regard to the one-third share of the fideicommissary only he could maintain the action and T’s execu-tors had no interest in respect of it. Smit, J.P- said at page 19“ A fiduciary, like a usufructuary who has left property subjectto usufruct may let the property subject to his rightsonly for the period of his own rights. Any portionof the lease beyond such period is not binding on theowner of the property (Voet 19 2.16; Huber 3.9.6 ). Thereforeon the death of the deceased the lease relating to that portionof the said farm which is subject to the fideicommissum cameto an end. The owners in the case of the fidei commissumwhich has matured are without a doubt the fideicommissaries
themselves and not the fiduciary’s estateThe claim can
be enforced against any wrongful possessor of the property.”
VYTHIALINGAM, J—Jo/yatunga »- Raaalin'ihamy
219
In the instant case therefore the plaintiffs as fideicommissaryheirs are not bound by the contract of tenancy entered into bythe fiduciary Mary Fernando with the defendant and imme-diately on her death the plaintiffs became entitled to theabsolute use and enjoyment of the property and can v ndicatetheir rights against the defendant who in relation to them isin the position of a trespasser. It is contended that this commonlaw right of the plaintiffs has been barred by the Rent Restric-tion Act which admittedly apply to the premises in suit. It istherefore necessary to examine this position.
But before proceeding to do so certain preliminary observa-tions have to be made in regard to the Rent Restriction Act. Itis a piece of social legislation the twin objects of which are therestriction of rents to manageable levels and to provide securityof tenure for the tenant and the maintenance of amenitieshitherto enjoyed by him. It has, therefore, to be given a bene-ficial interpretation so as to render workable the statutoryprovisions which the legislature has specially enacted for theprotection of tenants. The rules of normal logic must not beapplied with too great strictness.
In the case of Baker Vs. Turner, 1950 A.C. 401 (at 417) LordPorter pointed out “As Scrutton, L.J. has more than oncepointed out, they must be viewed in the light of their a m andobject and it must always be remembered that the difficulty inconstruing them is enhanced by the fact that words and phrasesapt to describe the relationship of a common law land lord andtenant one to another have been used without specific defini-tion of another and statutory relationship, viz, that of aprotected tenant or sub-tenant to his immed'ate or perhapsremote landlord.”
Then again Evershed, M R. observed in Marcroft Wagovs Ltd.,Vs. Smith 1951 2 K.B. 496 at 502 “Bankes, L J. in Remon’s case
…said ‘In no ordinary sense of the word was respondent a
tenant of the premises on July 2nd. His term had expired. Hislandlord had endeavoured to get him out. He was not even atenant at sufferance. It is however clear that in all the RentRestriction Acts the expression tenant has been used in a specialor peculiar sense and as including a person who might be des-cribed as an ex-tenant, someone whose occupation hadcommenced as tenant and who has continued in occuoationwithout any legal right except possibly such as the Act them-selves conferred upon him.”
In the case Weerakoon Vs. Fernando 76 N L.R- 111 which wasa case under the Protection of Tenants Act No. 28 of 1970,
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VYTHIALINGAM, J.—Jayatunga v. RoeaXinahamy
Weeramantry, J. said at page 114 “Many of the provisions ofthe Rent Restriction Act which speak of a tenant are in factprovisions referring to a person who has once enjoyed the statusof a tenant but has ceased to be a common law tenant where-upon the law looks upon him as nevertheless a tenant in the eyeof the statute and calls him a statutory tenant in order that theAct may be rendered workable. Reference to this matter wouldbe found in a series of judgments of this Court and I need onlyrefer in this connection to the judgment of Keuneman, J inGooneratne Vs. Thelenis 49 N.L.R. 433 wherein he held that theword tenant in proviso B to section 8 (now section 13) of theAct must be taken to cover not only a tenant who is in factso at the time but also a person who had at one time occupiedthe position of a tenant even though at the time of action thetenancy was no longer in existence."
However, although it is undoubtedly true that whereverpossible the Act should be construed in a broad, practical,commonsense manner, so as to effect the intention of theLegislature nevertheless one must be cautious not to extend,under the guise of interpretation, the scope of the Act tomatters beyond what its language was intended to cover. TheAct did not alter the common law in regard to landlord andtenant except to the extent it expressly provides for. If it wasintended to do so it must be stated in clear and unambiguouslanguage. As Craies states at page 121 in his Statute Law, 1thEd. * To alter any clearly established principle of law a distinctand positive enactment is necessary.”
“It is clear that if it was the intention of the legislature inpassing a new statute to abrogate the previous common law onthe subject the statute must prevail, but there is no presump-tion that a statute is intended to override the common law.In fact the presumption, if any, is the other way, for, thegeneral rule in exposition is that in all doubtful matters andwhere the expression is in general terms, the words are toreceive such a construction as may be agreeable to the rulesof the common law in cases of that nature for statutes are notpresumed to make any alteration further or otherwise than theAct does expressly declare” (449). Indeed as pointed out byJayatilleke. C.J. in de Alwis Vs. Perera, 52 N.L.R. 433 at 446.“In this connection it is relevant to point out that where theAct does intend to interfere with the operation of the commonlaw it does so in express terms. But it would be unsafe to inferan intention on the part of the legislature to abolish a rightof action under the common law unless such an intention iseither expressed in the law or arises by necessary implication."
VYTHIALINGAM, J.—Jayatunga v. Rosalinahamy
221
The Act does not confer on the courts any new jurisdiction.As Gratiaen, J. pointed out at page 444 in the same case, “It isimportant to bear in mind in considering this question thatsection 8 of the Rent Restriction Ordinance of 1942 and section13 of the Act of 1948 which superceded it were not designed tovest in Courts of Law some new jurisdiction affecting the rightsand obligations of Landlords and tenants in actions for eject-ment. On the contrary, as Keneuman, J. pointed out, they merelyimpose a curb or fetter on the existing jurisdiction to grantrelief to a landlord who seeks, in the enforcement of his con-tractual rights under the common law a decree for the eject-ment of his tenant from the premises in the latter’soccupation. ”
Are there then any statutory fetters barring the plaintiffs frombringing this action for the ejectment of the defendant ? The onlysection in the Rent Act which we have been referred to and onwhich the learned District Judge placed reliance is the definingsection 27 which defines landlord in relation to any premises asmeaning the person for the time being entitled to receive therent of the premises. It is argued therefore that the plaintiffs asthe owners are the persons entitled to receive the rent and thattheir right to claim a decree for ejectment is restricted by theconditions imposed by section 13 of the Act.
Apart from defining the term landlord as the person who forthe time being is entitled to receive the rent the Act does notstate who the person is who is entitled, to receive the rent. Todetermine that question we must look to the common law. It isnot the – owner who is necessarily or always the per-son who is entitled to receive the rent. Letting andhiring and the relationship of landlord and tenant arisepurely from contractual relationship and has nothing whateverto do with ownership. “The fact that he was not the owner ofthe premises is irrelevent because his rights are founded oncontract and not ownership”, per Gratiaen, J. in de Alwis' case(supra) at page 448. Jayatilleke, C J. pointed out in the samecase “ Under the common law all things may be the subject ofthe contract of letting or hiring whether they belong to the lessoror are the property of a third party since lease does not affectthe ownership of the thing let (Voet 19.2.34), ” at page 436.
That was a case in which a Divisional Bench by a majorityheld overruling Hameed vs. Annamalay, 47 N.L.R. 558 that ahusband who lets out his wife’s property is entitled to maintainan action for the ejectment of the tenant on the ground that he
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VYTHTALINGAM, J.—Jayatunga v. Roaalinahamy
reasonably required the premises for his own use although hedid not have a real right in the property- An owner of a propertydoes not by virtue of his ownership necessarily become th#landlord where it has been hired out by a third person.
I* the case Viswalingam vs. Gajaweera 56, N.L.R. Ill, theappellant was not the owner of premises ; he only claimed tohave taken them on rent himself on an oral agreement enteredinto with the owner. It was held that though section 26 of theRent Restriction Act, No. 29 of 1948 on which the respondent’sCounsel relied seemed to enable the owner in such a case toclaim that he was the landlord of the sub-tenant and that section27 of the Act clothes the appellant also with the character of alandlord.
Cases like Annamalai Chettiar vs. Creasy et al 56 N.L.R. 477in which a purchaser was deemed to be the landlord of a tenantalready in occupation as such at the time of the purchase are notrelevant for the present purpose as in such cases, provided thetenant is willing to pay him rent the purchaser steps into thelandlord’s shoes and receives all his rights and becomes subjectto all his obligations so that he is bound to the tenant and thetenant is bound to him in the relationship of landlord and tenant.In the instant case the plaintiffs cannot be said tohave stepped into the shoes of Mary Fernando the original landlord as they do not receive title through or from her but derivetitle independently of her from the original testator.
In the case of Abdul Cader et al Vs. Habibu Umma (28 N.L.R.92) it was held that possession which commenced before theaccrual of a fidei-commissary’s right is not adverse against thefideicommissary. Jayawardena, A. J. said at page 95. “ Thereason is that the fideicommissary does not claim under thefiduciary but under the will or deed by which the fideicommi-sum in his favour is created. The fiduciary can during hislifetime deal with the property as he likes but the rightscreated by him terminate at his death and cannot prejudice thefideicommissary. ” In Mendis Vs- Dawood (22 N.L.R. 115) Ennis,
J.said at page 117 “the first plaintiff and the other plain-
tiffs are not parties to the agreement nor successors to any ofthe parties to the agreement as they derive title from theoriginal will of Maria Fernando and not by succession to anyof the parties.”
In this respect a close analogy is provided by partition decreeswhich created new title in the parties. In the case of BernardVs. Fernando, (36 N.L.R. 438) de Sampayo, J. said at page 439
V YT HI AX I N'G AM, J.—J ayatunga v. Jiosalinahamy
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“partition decrees are not like other decrees affecting lan*,merely declaratory of the existing rights of the parties inter se.They create a new title in the parties absolutely good againstall the world.” In the case of Britto Vs- Heenatigala, 57 N.L.R.327 Gratiaen, J. commenting on this passage said at page 330. “ Ithins it admirably explains the effect of a final decree forpartition whereby a co-owner receives in lieu of his formerundivided interests, absolute title to a divided allotment of thecommon property.”
In that case it was held that the statutory protection of atenant under the Kent Restriction Act is not automatically ex-tinguished if the leased premises are purchased either by a co-owner or by a third party in terms of a decree for sale underthe partition ordinance. This is because “ A decree for sale under,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.In such a situation it is the title of the persons declared to be
co-owners which is put up for sale…Upon the issue of the
certificate of sale to the purchaser under a decree for sale, thetitle declared to be in the co-owners is definitely passed to the
purchaser Accordingly the purchaser’s title is in truth b-
title derived from the persons declared to be the co-own«U| ofthe property. If therefore, they had been the tenant’s landlordwithin the meaning of the Act their statutory status was trans-ferred to him by operation of law.” Per Gratiaen, J.
In that case it was sought to be argued that the purchaser at asale held under the Ordinance acquires a title paramount whichis not in truth a title derived from the person declared in thedecree to be the co-owner, and that there is no nexus by derv-vation from the co-owner (the tenant’s lessors) sufficient togive him the status of a landlord. It was held that de Sampayo’sanalysis did not, for the reason stated above, apply to a saleunder the Partition Ordinance. But Gratiaen, J, pointed out “atthe same time I agree entirely that it would be quite wrong toinclude within the definition of landlord any person other thanoriginal lessor or someone who derives his title from the originallessor. If therefore, the true owner of the leased premises vindi-cates his title against the tenant’s contractual lessor, the statu-tory protection which the tenant enjoyed against the lessorwould not be available against the true owners. ”
In the case of M. M. Ranasinghe vs. C. A. C. Marikkar (73N.L.R. 361) which is a decision of a Divisional Bench of fiveJudges the decision in Britto Vs. Heenatigala was expresslyapproved and the decision to the contrary in Heenatigala, Vs.
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VYTHIAL.INGAM, J.—Jayatunga v, Bosalinahamy
Bird, 55 N.L.R. 277 was overruled. But it was held in that casethat if rent controlled premises are owned by co-owners and oneof them lets the entirety of the premises without the consent oracquiescence ” of the other co-owners, the protection of theRent Restriction Act is not available to the tenant as against apurchaser who buys the premises subsequently in terms of aninterlocutory decree for sale entered under the Partition Act.In such a case the tenant cannot resist an application by thepurchaser to be placed in possession of the premises.
In that case Samarawickreme, J. said at page 375 “ As a tenant'srights are derived from and dependent on the title of the personfrom whom he gets his tenancy, the rights of a tenant underone co-owner are subject to the prior right of the other co-owners to compel a division of the property by partition or sale.Where there is a partition his rights will be restricted to thedivided portion obtained by the co-owner who gave him thetenancy.” If the submisssions here contended for were correctnamely that the owner as the person entitled to receive therent is deemed to be the landlord irrespective of any nexusbetween him and the person in possession then these decisionscould not have been arrived at because each of the other co-owners as the person entitled to receive the rent would havebeen deemed to be the landlord and so barred from bringing anaction to eject the tenant.
It is not sufficient to distinguish that case to say that oneco-owner has no right to hire out the entirety of the co-ownedproperty without the consent or acquiescence of the other co-owners for here too the fiduciary has no right to hire out thepremises for a period beyond the duration of his interests. It isbut right to point out that the position as laid down in thesecases has now been altered by express provision in the new RentAct 7 of 1972 by Section 14 (1) which sets out that the tenantof any residential premises which is purchased by any personunder the Partition Act or which is allocated to a co-ownerunder a decree for partition shall be deemed to be the tenant ofsuch co-owner or purchaser.
In the instant case the gift over was to take place on the deathof the fiduciary. But there may be cases in which the gift overmay be expressed to take place on the happening of an eventeven during the life time of the fiduciary. In such a case on thehappening of the event the fideicommissaryheirs become imme-diately entitled to the use and occupation of the fideicom-missum property and can vindicate their rights against the fidu-ciary. In such case if the fiduciary has hired out the propertythen on the fideicommisary vindicating his rights against the
YYTHIALlNGAM, J.—Jayatunga r. RosaHnahamff
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fiduciary the tenant becomes evicted by title paramount. Theposition is not different where the gift over takes place on thedeath of the fiduciary. There is nothing in the Rent Act whichexpressly or by necessary intendment abrogates this positioniv-Her the common law.
L»=aling with English Rent Acts Meggary in the Rent Acts10th Ed. Vol. I says at page 199 “ Indeed he ( a statutory tenant)has been said to have a right which avails against all the world,yet he appears to be unprotected against those claiming by titleparamount if the contractual tenancy out of which his statutorytenancy arose would have afforded him no protection.” He citesas authority for this proposition the case of Dudley and DistrictBenefit Building Society vs. Emerson 1949 Ch. Division.
In that case a person mortgaged the premises to the plaintiffsand thereafter contrary to an express provision in the deed herented out premises to the tenant. He fell into arrears in thepayment of the loan instalments and plaintiffs sued. The tenanttook up the position that he was protected by the Rent Acts- Itwas held that the tenancy was valid and lawful as between themortgagor and the tenant but did not bind the plaintiffs asmortgagees. Evershed, M. R. said at page 716. “ They are not hislandlords; they have never accepted his tenancy as one whichbin Is them, and it is quite clear that there is no contractualrelationship between Goodlad and the plaintiffs, either importedby the statute or otherwise. ”
It was argued in that case that as a landlord is defined in theRent Acts to include also a person, in relation to any dwellinghouse, other than a tenant who is or would, but for the Act beentitled to possession of the dwelling house, that the mortgageemust be treated as coming within the ambit of the definitionsince he is in truth a person who is or would but for this Acthe ent tied to possession of the dwelling house. In regard to thereason for this further definition it was pointed out that, theearlier definition of “ Landlord ” as including also a person whoderives title from his landlord, would not catch up certain personsintended to be caught up in the special relationship created bythe Rent Acts and this further definition had to be made. Forinstance, a landlord would not be caught up in relation to hissubtenant, but for this further definition, as he does not derivetitle from his tenant. But the need for some restr ction to beplaced on the words was emphasised by Evershed, M.R. He said“ But it seems, at any rate to me, that there must be some limi-tation put on the words. To take the most extreme case, youcould not apply them where the occupant is a squattor having
!••• A 24568 (1/77)
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GTTNASEKERA, J.—Jayatunga v. Eoaalinahamy
no rights or title, or alleging that he is the tenant of some one
else who equally has no right or titleIt would appear
therefore more than poss ble that this addition to the definitionin para (g) was put in (and I think something would havehad to be put in) to make the word ‘ landlord ’ where a statutorytenancy has been created apply in the relationship being thendealt with by the Act between the person who would be entitledto possession apart from the Act and the statutory tenant. Itherefore have come to the conclusion that this definition is notsufficient to give to the mortgagees in this case the right to des-cribe themselves as the ‘landlord’ for the purpose of this Act.”(717 and 718).
I am therefore of the view that the 1st to 6th plaintiffs are notthe landlords of the defendant. Nor have they derived title fromMary Fernando and are not her successers in title. They cannotalso, by virtue of the definition of the term ‘ landlord ’ in section27 or by virtue of any other provision in the Rent Act, be deemedto be the defendant’s landlord, To adopt any other constructionwould be to make a person who enters into possession of rentcontrolled premises as a contractual tenant a statutory tenantfor all time and against all the world regardless of who thetrue owner is or how he became entitled to the premises.
They are therefore not barred from maintaining this actionfor declaration of title to the premises in suit, the ejectment ofthe defendant and for damages. I accord ngly set aside thejudgment and decree of the District Judge and enter judgmentfor the plaintiffs as prayed for with costs but with damages atRs. 97.20 per month which it was agreed at the trial is thepresent authorised rent from 1.5.1968 till the plaintiffs are placedin vacant and peaceful possession of the premises.
Gunasekera, J.—
The Pla'ntiffs-Appellants having succeeded to the title to thepremises No. 165, Galle Road, Kollupitiya, as fidei commissa-ries on the death of the fiduciary on 23.4.1968 filed this actionon 30.6.1968 for a declarat on of title and ejectment of theDefendant who was admittedly the lawful tenant of thesepremisesunder the fiduciary. They claimed that the origi-
nal contract of tenancy with the fiduciary had come to arfend with the extinction of the fiduciarv rights an 1 that theDefendant had therefore become a trespasser and should beejected. The Defendant claimed the protection of the RentRestriction Act and asked for a dismissal of the action-
GUNASEKERA, J.—Jayatunga v. Rosalinahamy
22?
At the trial it was admitted by the Defendant that in termsof the fidei commissum contained in a La^t-Will of 1922 thetitle of the original owner, Anthony Fernando, to these premisesdevolved on her daughter Mary Fernando as fiduciary, andthat on her death on 23.4.1968 that title came to 1st to 4thPlaintiffs the ch ldren of Mary Fernando and the Fifth andSixth plaintiffs the children of another deceased child, as fideicommissaries. It was also admitted that the Defendant was thelawful tenant of the premises under Mary Fernando and thatthe premises were governed by the Rent Restriction Act No. 25of 1948 (Chap 274) and its amendments then in force, and thatthe authorised rent of the premises was Rs. 97/20. It wasfurther admitted that by a letter marked, Dl, dated 18 6.1968the Plaintiffs’ Proctor wrote to the Defendant that the Plain-tiffs had become the owners of the premises as fidei commissa-ries and that they were clainvng vacant possession of thepremises and that by letter marked D2 dated 30.6.1968 theProctor for the Defendant replied thus:
“Your client’s mother the late Mrs. Mary Fernando wasmy client’s Landlord to whom she paid all rents up to theend of March, 1968.
Informat on was received by my client that your client’smother had died and my client thereafter contacted oneof her daughters, namely, Mrs. L. H. D. de Silva who in-formed my c’ient that she would let her know to whomthe rents should be forwarded as from 14.68. On mv clientnot receivmg any int'mation from Mrs. L. H. de Silva. Iwrote to her on 7th June, 1968 requesting her to informmy client as to whom the rents should be paid. Up to dateI have not received any reply.
My client states that she will continue to occupy theabove premises as tenant and pay your chents the rents asfrom 1.4.68. My client is unable to vacate the said premises.
I forward herewith 5 Money Orders for Rs. 38/88 each allaggregating to Rs. 194/40. This represents rents for themonths of Aoril and Mav, 1968. The rent for each month is pay-able on or before the 10th day of the following month and myclient w 11 accordingly remit the rent for June, 1968 on orbefore the 10th day of July, 1968!”
The Money Orders were returned by the Plaintiffs’ Proctorto the Defendant’s Proctor bv letter D3 on 19.7.68 and thereafterthe Defendant has deoosited all rents due on the premises withthe Rent Denartment of the Colombo Municipal’tv. in termsof Sect on 12 of the Rent Restriction Act as amended by ActsNo. 10 of 1961 and No. 2 of 1964.
228
GUNASEKERA, J.—Jayatunga v. Rosalinnhamy
On these admitted facts counsel for the Plaintiff relying onthe Roman Dutch Law as summarised in the case of Fernandov. De Silva (1966) 69 NLR at 165 contended that the Defendanthad become a trespasser but the learned District Judge dis-missed the Plaint.fi’s action saying:
“There is no a aubt that the common law rule is thatreferred to by Co msel for the Plaintiff. The question fordecision therefore, is whether the Rent Act had enlargedthe rights of the tenant, which r ghts he did not possess atcommon law. I think it has. The fact that no statutory pro-vision has been made for the continuation of the tenancyafter the death of the landlord (whereas provision has beenmade in a case of death of a tenant) coupled with the defi-nition of “landlord” in section 27, are, in my view, sufficientto create that new relationship between the defendant andthe pla ntiffs- I therefore hold that the defendant continuesto be a tenant of these premises, and is protected by theRent Act.”
In appeal too Counsel for the Appellants relied on this sameauthority and he also referred us to the case of Abeysinghe v.Perera et el (1915) 18 NLR 222 and Sithy Naima v. GanyBawa (1930) 32 NLR 155 dealing with long leases granted byfiduciar'es. He submitted that as there was no provision in theRent Restriction Act dealing with the death of the landlordsimilar to Sect on 18 dealing with the death of the tenant, thecommon law as stated in these cases must apply and the Defen-dant must be ejected from the premises. He also submitted thatSection 13 of the Rent Restriction Act would not protect theDefendant in this case because the tenancy had lapsed onaccount of the total ext'nction of the landlord and Section13 presupposes an existing landlord and an existing tenant, asindicated by the words “landlord” and “tenant’ in thatSection and the word “rent” in Section 27. But this last argu-ment was considered and f'nally disposed of and the meaningto be given to these words in this context was definitely re-solved almost thirty years ago in Gunaratne v. Thelenis (1946)47 NLR 435 (DB) and further fully explained by Gra*iaen, J.in Britto v. HeenaVgala (1956) 57 NLR at 329; and it followstherefore that if the premises are rent controlled Section 13must apply and govern the occupancy of such premises.
As far as the common law is concerned undoubtedly thetenant’s rights to rema n in occupation of the premisesdepended abso’utely on the existence of a contractual tenancy;and in this instance, also it was rightly contended that thePlaintiffs did not derive their present title from the Defen-dant’s landlord. But as these premises are covered by the Rent
GTJTfASEKERA, J.—Jnyatunga v. Bosalinahamy
229
Restriction Act the question whether in the common law amonthly tenancy granted by the fiduc.ary, who in law haddominium over the property and which dominium could, ifthere is a failure of fidei commissaries, even enlarge to fullownership, ceases with the death of the fiduciary, as in thecase of the Usufructuary referred to by Pothier, is only ofacadem'c interest; and therefore, in this case, I will assume thatas contended before us and as conceded by the Defendant andas held by the learned District Judge the Defendant’s contractualtenancy ceased on 23 4.1968. I also accept that as admitted atthe trial, the Defendant was the lawful tenant of the premisesunder the fiduciary because having dominium over the propertythe fiduciary could grant a valid tenancy.
However, the very purpose and clear intention of the RentRestriction Act is to secure to a person cont nuity of occu-pation of any premises, which he has entered on a validcontract of tenancy, so long as he fulfi’s his statutory obl'ga-tions and inspite of the termination of that contractual tenancyand the absence of any such thereafter. In terms of the Actand the many decisions of this court (Gunaratne v. Thelenis(supra) has been cons stently followed in many cases there-after), therefore on 23.4.1968, when the contractual tenancyceased to exist instantaneously a “Statutory Tenancy” wascreated by law and the Defendant, as the erstwhile “tenant ofthe premises ” became a “ Statutory Tenant She passed fromthe Roman Dutch Law position of a contractual tenant to thestatutory status of a protected occupier and thereafter shecould pay the “authorised rent” to the statutory authorityin terms of Section 12, and that was deemed to be immed atepayment to the Plamtiffs-Appellants who had become “theperson for the time being entitled to receive the rent of thepremises” (Sect'on 27) and this ent tied the Defendant to theprotection ensured in Section 13 of the Act, which has to pre-vail “notwithstanding anything in any other law”.
Th’s statutory tenancy came into being because of theextinction of the contractual “landlord” and consequently forits continued existence it doss not require another such“landlord”; it only needs a person “entitled to receive therent of the premises”. The statutory status conferred by theAct on the tenant is thus independent of the operation of thecommon law and the protection granted by Section 13 isinspite of it, and therefore, it matters nothing to the tenant’sright to rema n in occupation, whether the person to whom hewill pay the rent became entit’ed to it through his previouslandlord or independently , of him as a fidei commissary oreven on a new title on a decree under the Partition. Ordinance
230orJNASEKERA. J.—Jnyntiinya V. Jtosalinnhnmy
as was decided in the cases Britto v. Heenatigala and th*Divisional Bench case of Ranasinghe v. Marikar (1970) 73 N.L.R,at 368-369. In the first case Gratiaen, J., deal ng with theargument that the purchaser at a Partition Sale had acquit eda new title independent of the tenant’s previous landlord said:1“1 have come to the conclusion that the propositions oflaw rel ed on in support of the plaintiff’s cause of actionmust be rejected. The decree for sale entered under Sec-tion 1 of the Ordinance certain'y hid the ef ect of bringingto an end the contractual relationship which previouslyexisted between the defendant as tenant and the co-owners (taken collect velv) as “landlord”. Nevertheless, thestatutory protection conferred on the defendant bv section13 of the Act was not extinguished either by the decree forsale dated 6th July. 1950 or by the certificate of sale dated5th February, 1952 The pla'ntiff is therefore p ecludedfrom cla ming the ejectment of the defendant without theauthorisation of the Rent Control Board because he hasnot established that the defendant’s protection under theAct has come to an end for one or other of the reasonsset out in the proviso to section 13”.
It is true that thereafter Gratiaen, J. d'd say:
“At the same t me I agree entirely with Sir LalithaRajapakse that it would be quite wrong to include within thedefinition of a “landlord” any person other than the originallessor or someone who derives his title from the originallessor. If, therefore, the true owner of the leased premisesvmdicates his title aga:n~t the tenant’s contractual lessor,the statutory protect:on which the tenant en’oyed againstthe lessor would not be available against the true owner”.,and that he did distnguish the case before him bv saying that,it was a case of a sa'e un^er the Partit'on Ordmance and that,“it is the title of the persons declared to be co-owners whichis put up for sale”. But with all respect, this fact d;d notmatter at all in this regard because Sect on 9 of the PartitionOrdinance gave to the purchaser a new title independent of thetitle of the co-owners and Gratiaen, J. himself had immediatelythereafter to say :
“It is quite correct to say that the decree for sale underSect on 4 of the Partition Ordinance had the effect of wipingout the contractual rights of le-sors and monthly tenantaSamaraweera v. Cunjimoosa. Under the common law, there-for. the defendant could not have res;sted the cla;m for herejectment. But it is at this stage tha’ the A~t in erveres togive her pro'ection. Although the common law relation-h pOf landlord and tenant between the co-owners and hersell
8HARVA'STANDA. J.—Nagalingnm v. Lakshman de Mel,
Com/M&taotier uj Labour
231
was extinguished, a statutory relationship was created in itsplace wh ch prevented them from ej.cting her except uponone or other of the conditions permitted in Section 13”.
Also, Fernando, C.J. in the latter case quite correctly stated,
“ It seems to me now that even if the right of a tenantprotected by the Rent Restriction Act is not specified in adecree for part tion or sale, that right can continue to existbecause of the overrid ng effect of the statutory provi-sion which confers that right”.'
Nor are we here concerned with the rights of a "true ownervindicating t tie” against a tenant and his landlord, because ir(this case the Respondent admittedly entered the premises undera valid contract of tenancy from the then lawful owner of thepremises and so became the “ tenant of the premises ” protectedthereafter for all time from ejectment except in terms of Sec-tion 13 of the Rent Restriction Act.
Whilst this Section or the Act itself certainly does notabrogate the common law of fidei commissary succession orthe common law with regard to the creation or cessation of acontractual Tenancy, it unamb guously abrogates the commonlaw right of a landlord and his successors in title as well as thecommon law right of all other persons who succeed to theownership of the premises by “any other law” to sue to ejectthe “ tenant of the premises ” except as permitted therein.
For these reasons I hold that the Plaintiffs’ action for adeclaration of title and ejectment against the Defendant iamisconceived and I affirm the Judgment and Decree of thelearned District Judge and dismiss this appeal with costs.
Appeal allowed.