090-NLR-NLR-V-48-NAZEER-et-al.-Appellant-and-HASSIM-Respondent.pdf
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DIAS J.—Nazeer v. Hassim.
1947Present: Dias J.
NAZEER et alAppellants, and HASSIM, Respondent.
271—C. R. Colombo, 96,001
Partition action—Co-owner’s transfer, pending the action, of the share whichwould be allotted to him in the final decree—Rights of transferee—Jar-tition Ordinance, s. 17.
Landlord and tenant—joint landlords—Right of each landlord to share of rent—Several persons claiming rent as landlords—Right of tenant to call uponthem to interplead—Civil Procedure Code, s. 632.
Where, pending a partition action, some of the co-owners covenantto convey absolutely all the shares, right, title and interest which willaccrue to them under and by virtue of the final decree in the partitionaction, the other contracting party obtains an immediate interest inthe property, but the title can only accrue upon the entering of the finaldecree.
In the case of a plurality of landlords, each of them is entitled to claimhis share of the rent from the tenant, unless there is some express agree-ment to the contrary.
Obiter, where a tenant is sued for rent by a stranger as landlord, section632 of the Civil Procedure Code does not prevent the tenant fromsuing his immediate landlord in interpleader.
A
PPEAL from a . judgment of the Commissioner of Requests,Colombo.
E. B. Wikramanayake (with him C. Renganathan), for the plaintiff,-appellants.
M. I. M. Haniffa (with him M. Abdulla), for the defendant, respondent.
Cur. adv. vult.
.'May 20, 1947. Dias J.—
The three appellants, their brother and sister Sitti Rowha (nowdeceased) are the owners of an undivided .half of the premises knownas No. 248, Main Street, Colombo. The other undivided half is saidto belong to a Mrs. Nakeem.
The defendant is the monthly tenant of the whole premises. Thepractice was for him to pay one half of the rent to Mrs. Nakeem andthe other half to A. J. M. Nazeer, the first plaintiff, for and on behalf of•the co-owners of the other half.
In the case of a plurality of landlords, each of them is entitled toclaim his share of the rent from the tenant, unless it has been expresslyagreed to the contrary—Buddharikita Terunnanse v. Gunasekara Panis Appuhamy v. Selenchi Appu* and Weeraratna. v. Abeywardene *.
The premises are the subject of a partition action—D. C. Colombo,•Case No. 74.
On the occasion of the marriage of Sitti Rowha, the brothers and theprospective husband Keyath entered into the deed P I dated September 9,1939. The brothers convenanted to transfer, grant, and convey to'Sitti Rowha absolutely as a marriage settlement all the shares, right,
1 (1895) 1 N. X. It. 206, Wills on Landlord and Tenant (3rd ed.) p. 16S, Tambyah on Landlordand Tenant p. 104.
* <J903) 7 N. X. R. 16.* (1934) 36 If. L. R. at pp. 140-141.
DIAS J.—Nazeer v. Hassim.
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title and interest in these premises which shall accrue to them underand by virtue of the final decree in the partition action, and of the pro-ceeds of sale, in the event of the Court decreeing a sale of the premises ;and that in the meantime, and until such time as their shares or theproceeds of sale as the case may be is granted as aforesaid, the brothersagreed to give Sitti Rowha the share of the rent accruing to them fromthe said premises No. 248.
It is to be observed that the covenant to pay the rent to Sitti Rowhais to her alone and not to her heirs, etc. Except for the fact that the(teed is entered into with Keyath, he does not otherwise figure in thedeed at all. The nature of a deed like P 1 was considered in the case ofManchanayake v. Perera1. It was laid down that while a deed likeP 1 passes an immediate interest in the property and is not merely anagreement to convey in the future, the right or title comes into existenceonly upon the entering of the final decree in virtue of the jam tuncprinciple of the Roman-Dutch Law or the equitable principle ofthe English Law that when the property comes into existence, theassignment fastens on it ”.
The partition action, we are informed, has abated, so that it isproblematical when the final decree will be entered, if at all. Further-more, Sitti Rowha died in March, 1944. The stipulation to pay therent to Sitti Rowha ceased with her death, for there is no stipulationin favour of her heirs. The deed P 1, therefore, for all practical purposes,is valueless. What rights Keyath may be able to claim under it weare not concerned with.
On the death of Sitti Rowha issueless and intestate, her husbandas a sharer under Muhammeddan Law would become entitled to an un-divided half of her undivided share in these premises, while the otherhalf of her share would devolve on her residuary heirs, her brothers.Therefore, on her death Keyath became a co-owner of the premises.He would, therefore, be entitled to claim from the defendant his shareof the rent. The defendant who is a mere monthly tenant couldnot be expected to know, and would not know, what that share is. Itwas the duty of the landlords to inform him to whom he had to pay andwhat he had to pay them.
For four or five months after Sitti Rowha’s marriage Nazeer paid thebrothers’ share of the rent to the lady. Then disputes arose, and'Sitti.Rowha left the brothers and took up her residence with Keyath.Thereupon, Nazeer on behalf of the other brothers and himself, requested,the defendant to pay the full half share of the rent to the sister. I cannothold that this created a new tenancy between the defendant and SittiRowha. There was only one tenancy over the whole premises. Someof the landlords instead of demanding their shares of the rent from thetenant, requested him to pay it to a person designated by them.There is nothing improper in that.
After the lady’s death, however, the position changed. The defendant,could not pay the rent to the lady who was dead. A new co-ownerhad become a landlord. The obligation of the defendant was to pay
» (1945) 46 N. L. B. 451.
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DIAS J.—Nazeer v. Hassim.
the landlords their respective shares of the rent. The brothers andKeyath fell out. The plaintiffs demanded the rent, and after the lettersP2-P5 had passed between them, the defendant paid the plaintiffs.a sum of Rs. 80 representing the rent for the months of April and May1944. Keyath, who appears to have fallen out with his co-owners, thendemanded the rent from the defendant, and, eventually, sued himin C. R. Colombo, Case No. 95,852. The defendant might then have inter-pleaded. Section 632 of the Civil Procedure Code does not prohibit atenant in the situation of the defendant from calling upon several land-lords who are each claiming the rent to interplead—cf. Mather v.Theivapillai He did not do so, but merely called Nazeer as hiswitness. The Court held against the defendant. That decree doesnot affect the case because the plaintiffs to this case were not partiesto it. The Court having held that the defendant was the tenant ofKeyath, ordered him to pay rent to Keyath.
The plaintiffs now sue the defendant claiming a sum of Rs. 40 as theTent due for the month of June 1944 and ask for a decree that the defend-ant should thereafter pay the rent to them. The defendant counter-■claims the sum of Rs. 80 already paid to the plaintiffs.
The Commissioner of Requests dismissed the plaintiffs’ action andupheld the claim in reconventiorj, holding that on the execution ofPI Sitti Rowha obtained an immediate interest in the half share, andthat the defendant by operation of law had to attorn to her. I am of-opinion that this view is erroneous. No doubt the lady obtained animmediate interest in the property, but her title could only accrue■on the entering of the final decree. I am unable to hold that on theexecution of PI a new tenancy came into existence. The obligation■of the defendant was always the same. It is his duty in the case of aplurality Of landlords to pay each of them his or her share of the rent,unless there is some express agreement to the contrary.
If the parties cannot settle this trivial dispute, I set aside the decreeappealed from, and send the case back for a trial de novo on fresh pleadings"before another Commissioner of Requests. Until the case is ripe fortrial, the incidental steps may be taken before the Commissioner whotried this action. Keyath will be added as a plaintiff, and if he objects"he will be added as a defendant. The plaintiffs and Keyath will in theirpleadings set out their respective claims to the rent and the fractionalshares they claim. The money lying to the credit of C. R. Colombo,Case No. 95,852 will be transferred to the credit of this case, and willbe paid to the party or parties ultimately declared entitled to receivethe same.
The heirs of any deceased co-owners will have to be added. In adjudi-cating on the rights of the parties the Commissioner will not lose sightof the decree in C. R. Colombo, Case No. 95,852 as between Keyath and■this defendant.
The costs of these proceedings both here and below will be borne bythe parties. All other costs will be in the discretion of the trial Judge.
Decree set aside.
1 (1936) 16 C. L. Ree. 218.