091-NLR-NLR-V-74-S.-M.-M.-SIRIWARDENA-Appellant-and-H.-MUDIYANSELAGE-APPUHAMY-et-al.-Responden.pdf
IT. X. G. FERNANDO, C.J.—Siriwardena v. Mudiycinsclage Appuhamy 361
Present-: H. N. G. Fernando, C.J., Alles, J., and Weeramantry, J.
S. M. M. SIRIWARDENA, Appellant, and H. MUDIYANSELAGEAPPUHAMY el al., Respondents
S. C. 262/67 (F)—D. C. Kandy, 7264/L
Landlord and tenant—Monthly tenancy—Practice oj paying rent in advance for oneyear at a time—Whether landlord can terminate the tenancy on a month’s notice—Informal “ lease ” in writing—Position of “ lessee " as against a ptrson whosubsequently obtains a notarial lease from owner.
Where, in a enso of monthly tenancy, tlio prnctico has be.en that- rent- shouldbe jioid in advance for ono year at a time, such practice d jes not convert thotenancy into a yearly tenancy or disentitle the landlord from terminating thotenancy on a month's notice; tho conscqnonco cf such a termination wouldbe that the landlord will become liable to refund tho excess rent which bo hadtaken in advance.
Quaere, whether a person in possession of a land under o noil-notarial writingpurporting to bo n lease of tho land for a pciiod exceeding one month is atrespasser or a monthly tenant as against a person who subsequently obtainsa valid notarial lease from the owner of tho land.
Appeal from a judgment of the District Court, Kandy.
P.Somalilalavi, for the defendant-appellant.
C. R. Cunaralne, for the plaintiffs-respondents.
Cur. adv. vull.
November 9, 1970. H. N. G. Fernando, C.J.—
This appeal was heard by a Bench of three Judges for two reasons :firstly, the two Judges before whom the appeal was first argued wereunable to agree upon (he decision of the appeal ; and secondly they weredoubtful of the correctness of the decision in Ilinniappuhamy v. Kumara-singliel.
In the case just mentioned, it was held that a person in possession ofa land under a non-notarial writing purporting to be a lease of the landfor a period of -1 jears was a trespasser ; hence lie could not, as againsta person holding a valid notarial lease from the owners of the land,claim to be a monthly tenant of the land and to be therefore entitledto notice of termination of his tenancy as a condition precedent to thoinstitution against him of an action for ejectment.
We are satisfied that the decision is not applicable on tho facts of theinstant case. No document was here produced which purported to leasoto the defendant or his predecessor the premises from which the plaintiffs1 [1957) 59 N, l>. B. 56S.
LXXIV—] 61*K 8133—2,225 (10/71)
362 H. N. G. FERXAKDO, C.J.—Siriurardcna v. Alurliyansclaga Appuhamy
week to eject him. There was evidence that tlie father of the defendanthad been in possession of the premises from 1947 until the time of hisdeath in May 1963 and that he had sometimes paid Rs. GO to the plaintiffs’predecessor Kalu Banda as .rent in advance for a period of 12 months.Even if such payments can, without more, property give rise to aninference that the parties had entered into some informal agreementfor a lease for a long period, that inference is fully rebutted by otherevidence.
In 1953, Kalu Banda instituted an action against the defendant’sfather for ejectment and for arrears of rent. The plaint in that actionaverred that the defendant’s father had taken these premises on amonthly rent of Rs. 750, and sought his ejectment on the footing ofthe rent having been in arrears. The averment that the defendant’sfather was a monthly tenant was admitted in the answer. Tiie defencepleaded was that the rent had not been in arrear, because rent hadbeen tendered but not accepted by Kalu Banda. In appeal from thedecree entered for ejectment, Gratiacn J. held tin t “ the practice betweenthe parties was that rent should be paid in advance for one year at atime”, and also that the appellant had tendered a sum of Rs. GO onI9th February 1953 as rent from 1st July 1953 to 30th June 1954.In view of the refusal to accept this payment in advance, the appellantwas held not to be in arrear.
It will thus be seen that there was firstly an admission by Kalu Bandaof a monthly tenancy, and secondly a finding by this Court that thepractice in regard to that tenanej- was that rent should be paid in advancefor one year at a time. Such a practice docs not convert the tenancyinto a yearly tenancy or disentitle the landlord from terminating thetenancy on a month’s notice ; the consequence of such a terminationwould be that the landlord will become liable to refund the excess rentwhich he had taken in advance.
In the face of the admission by Kalu Banda that the defendant’sfather was a monthly tenant, and of the findings to which I have referred,the plaintiffs in the present action could have established the existenceof an informal long-term lease only by tlie production of some writingor of definite evidence to that effect. This they did not even attemptto do, for tliey* called no evidence. The ground on which they soughtejectment was the quite different ground that the tenancy terminated,either on the death of Kalu Banda or on the death of the defendant’sfather. On this ground the plaintiffs succeeded in the lower Court.
Kalu Banda died in February I9G3, having accepted rent in advancefor the period ending December 19G3, and the defendant’s father continuedin possession of the premises. The defendant’s father himself died inMay 1963, and the defendant thereupon gave notice under s. IS of theRent Restriction Act to the 3rd plaintiff (the son of Kalu Banda) thatthe defendant would be paying the rent of the premises previouslytenanted by liis fatner.
FT. N. O. KERXAXDO, C.J.—Siriicardcna v. Aludiyansclage Appuhamy 363
Kalu Banda liad in September 1959 conveyed these premises to the1st and 2nd plaintiffs, but he had as already stated continued to takethe rent until the time of his death. Reliance was not placed at thetrial on tin's convejance to set up the position that the plaintiffs werenot the landlords of the premises whether before or after the death ofKalu Banda. The only question agitated in the address of the plaintiff’sProctor was that the defendants had failed to prove that the premiseswere subject to the Rent Restriction Act, and that the notice unders. IS of the Act was therefore ineffective.
The defendant produced a Proclamation of June 10, 1947 declaringthat the Rent Restriction Ordinance of 1942 shall be in force in thefollowing area :—
“ That part of the PaJcgampaha Korale Village area in the
Divisional Revenue Officer’s Division of Uda Hewahcta in the
Nuwara Eliya District, which was the former Sanitary Board town of •
PachyapeleJla.”
The learned trial Judge held that there was no evidence to show thatthe premises in this case are situated in the area described above. Thepremises, as described in the plaint, are stated to be situated at Padiya-pclella, and in the absence of an}' evidence to the contrary, the Judgein my opinion would have been justified in assuming that the Padiya-pelella referred to in the schedule to the plaint is the same place as isreferred to by that name in the proclamation.
There arc other reasons why the findings of the learned Judge cannotbe sustained. In the earlier action for ejectment already mentioned,Kalu Banda did not rely merely on the fact that he had terminated thetenancj’ of the defendant’s father. Instead he relied also on the groundof arrears of rent, and on the ground that the premises were requiredfor his own occupation. Both these latter grounds were rejected in thejudgment in appeal in that action ; but the very fact that Kalu Bandahad relied on those two grounds establishes that to his knowledge theRent Restriction Act applied to the premises. That being so, there wasan admission by the plaintiffs’ predecessor in title of the matter whichhas been disputed b}' the plaintiff’s Proctor in the present action. Inthe absence of any evidence to contradict the defendant’s statementthat these premises are situated in the proclaimed area, the defendantis quite entitled to rely on Kalu Banda’s former admission. I hold thatin this way there was sufficient proof that the premises are within theAct.
In view of the circumstance that the defendant’s appeal must succeedon the grounds which I have stated, Counsel for the appellant did notpresent any argmnent ns to the correctness of the judgment in Hinni-appuhamy v. Kumarasinghe. That being so, a considered opinion expressedin the present case on the correctness of that judgment would be obiter.Nevertheless, sinco I share the doubt which two judges have already
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TYambcck v. dt Silva
entertained as to the correctness of that judgment, I trust that therewill be an early opportunity to re-consider it.
The appeal is allowed, and the plaintiff’s action is dismissed with costsin both courts.
Aeles, J.—
My Lord the Chief Justice has dealt with the facts fully and I am inagreement that, on the facts established, the appeal is entitled to succeedand that the plaintiff’s action should be dismissed with costs.
Since no argument was presented by Counsel at the appeal in regardto the correctness of the decision in I I inniappvham y v. Kumarasinghe,I prefer not to express any opinion in regard to that decision.
WEEKAJrAXTKY, J.—
I agree with His Lordship the Chief Justice that the appeal is entitledto succeed and that the plaintiff’s action should be dismissed withcosts.
I do not express liny views regarding the decision in IIinnicppuhamyv. Kumaruzinghe, that question not having been fully argued before us.
Appeal a'loived.