083-NLR-NLR-V-58-SABAPATHIPILLAI-Appellant-and-RAMUPILLAI-Respondent.pdf
1956Present:Pulle, J., and Weerasooriya, J.
SAB APATHIPIDL AT, Appellant, and RAMUPILL,AT, Respondent
S. C. 551—D. Q. Vaviniiya. 1,120
Landlord and tenant—Informal lease bond—Its effect as contract of monthly tenancy—Sale of leased premises—Right of purchaser to sue tenant for rent—Attornment.
When a person is in occupation of land as lessee under on informal documentwhich does not comply with the provisions of section 2 of tho Prevention ofI'rauds Ordinance, tho Icaso must be regarded as from month to month andnot for any longer period stated in tho document.
"When leased premises have been sold by the landlord, tho tenant whoreceives notice of tho purchaser’s olcction to recognise him as tenant is notentitled to deny las attornment to tho purchaser if he continues to be inoccupation without informing the purchaser that ho docs not elect to attorn tohim.
A.-tAPPEAL from a judgment of the District Court, Vaviuiiya.
T. Arulanandam, with S. Sharvananda, for the defendant-appellant.No appearance for the plaintiff-respondent.
Cur. adv. vidt.
March 16, 1956. Weerasooiuva, J.—
The plaint iff-respondent brought this action against the defendant-appellant for a declaration of title to a paddy land called Puliyadikanimore fully described in the schedule to the plaint. The plaintiff basedhis title to it on deed of sale PI dated the 1st December, 1951, by whichone Ulaganathan convcjcd it to him. Ulaganathan had previouslyon an informal document D6 dated the 13th May, 1950, leased the sameland to the appellant for a period of five years, and at the time of thoexecution of PI the appellant iras in occupation of the land as lesseeunder Ulaganathan.-
Although one of the causes of action set out in the plaint was theappellant’s denial of the respondent’s title to the land, the finding of thetrial Judge that the respondent is the owner was not canvassed byMr. Sharvananda who appeared for the appellant at the hearing beforeus. Ho confined the appeal to grounds (6), (S) and (10) of paragraphfive of the petition of appeal the relevant portions of which read asfollows:—. ■.
(6) “ The learned District Judge holds that the defendant-appellantpaid to M. Ulaganathan (the defendant-appellant’s lessor) the
rent for the cultivation year 1952 to 1953 (Issue 20). Yethe holds that the defendant-appellant is liable to pay damageto the plaintiff-respondent for that period also.
(S)“ The learned District Judge erred in law in awarding
damages to the plaintiff-respondent for the Kalapokam season1953-1951: when admittedly the land was not cultivated byhim
(10) “ The tenancy created by D6 has not been lawfully terminated bydue notice nor has there been any attornment of any contractby the defendant-appellant
In order to arrive at a finding on these grounds it becomes necessaryto consider the respective rights and obligations of the appellant, as thelessee on D6, and the respondent who became the purchaser of theleased land while the lease was in operation. As the document DG. does not comply with the provisions of Section 2 of the Prevention ofFrauds Ordinance (Cap. 57) the lease must be regarded as from month tomonth, and not for the five years stated in DG, Ukkuiva v. Fernando l.The position of a purchaser to whom the original landlord has sold thepremises which, at the date of sale, are in the occupation of a tenantunder an existing lease has been considered in a number of decisions of■ this Court. In the case of Allis v. Sigera 2 it was held by Withers J.(sitting alone) that where a land which was subject to a lease was sold thepurchaser acquired the right to the payment by the lessee of the rentdue under the lease .and could sue him for the same provided the latterhad notice of the sale. It is not cleai' from the judgment, however,whether the decision implies that the tenant is bound to continue astenant under the purchaser without any option. In the case of Silva v.Silva3, which is a decision of two Judges, Pereira J. expressly refrainedfrom deciding (for the reason, as stated by him, that the question didnot arise in that case) whether the tenant is left with no option but toaccept the purchaser as his landlord. But certain observations in theseparate judgment of de Sampayo J. in the same case appear to suggestthe view that even in the absence of an attornment by the tenant to thepurchaser the latter has the right not only to claim the rent from thetenant but also to enforce against him the other covenants in the leaseor claim damages for a breach of them. In the case of Wijesinghe et al. v.Charles 4 (also a decision of two Judges) de Sampayo J. who delivered thejudgment of the Court observed that although the purchaser couldenforce payment of the rent and the performance by the tenant of hisother obligations under the lease he was not compelled to be content totake possession of the land subject to the tenant’s right to occupation andhe therefore could, if he elected, bring an action against the vendor toimplement the sale by giving him free and exclusive possession ; and.it was held that in such a case the contract of tenancy between the vendorand the tenant continues and, notwithstanding the sale, the vendor(and not the purchaser) could termiimte the contract after notice to thetenant. He further observed that the tenant also had the option either
1 (1936) 3S N. L. It. 126.• (ISO7) 3 X. L. It. 5.
(1013) 1C X. L. It. 316.
(1016) IS X. L. It. ICS.
to remain as tenant under the purchaser or cancel the lease. Theseobservations, however, do not appear to be fully reconcilable with theview also expressed by him in the judgment that it was open to thopurchaser to sue the tenant in ejectment, and it is not clear whetherhe intended to say that this right accrues to the purchaser even wherethe tenant had expressly elected not to attorn to the purchaser but tocontinue as tenant under the original lessor (tho vendor). While, there*
. fore, the position of a purchaser vis a vis a tenant who has not attornedto him may need clarification in an appropriate case in view of thesedecisions, I can find nothing in them which runs counter to the wellrecognised rule that where tho tenant lias attorned to the purchaserthe latter is entitled to look to the former for payment of the rent.
In a more recent case, de Alteis v. Pere-ra, Gratiaen J. on a considerationof the earlier decisions to which I have referred, took the view that whenthe purchaser elects to recognise the tenant but the tenant docs notspecifically attorn to him, the tenant who remains in occupation (withnotice of the purchaser’s election) may legitimately be regarded ashaving attorned to tho purchaser. This view, presumably, is on thebasis that a tenant who has received notice of a subsequent purchaser'selection to recognise him as tenant cannot be heard to say that he didnot attorn to the purchaser if lie continued to be in occupation withoutinforming the purchaser that he did not elect to attorn to him. Theposition in the present case is precisely this.
The learned trial Judge has found that within a few months of therespondent’s purchase of this land he informed the appellant aboutit but the ajipellant without expressly denying the respondent’s rightto the lease rent led him on “ with vague promises and hopes ” which lie(the appellant) did not intend to fulfil. These findings are amplyborne out by the evidence of the respondent which the learned Judgeseems to have accepted even though lie did not accept his evidence of afresh oral lease entered into between himself and the appellant in J11I3'1952 under which the appellant is alleged to have undertaken to paj'him 36 marakkals of paddy as lease rent in respect of the ensuing cultiva-tion periods. I11 1113' opinion., on these findings the appellant- cannot beheard to say that- prior to the cultivation period 1952-1953 he had notattorned to the respondent as the purchaser from tho original lessor.Mr. Sharvananda relied on the Judge’s answer in the negative to issueNo. 9 (whether the appellant was liable in law as the respondent’s tenant)as a finding that even in the circumstances accepted b3r the Judge, therewas no attornment b3r the appellant to the respondent. But for thereasons already given by me I think that the answer to this issue shouldhave been in the afllmiative.
The position, therefore, is that tho paiinent by the appellant of therent for the cultivation period 1952—1953 to Ulaganathan did not absolvethe appellant from payment of that rent to the respondent. Althoughthe rent for the period is only 12 marakkals of paddy, the learned Judge
has awarded the respondent tire value of 3G marakkals of paddy, instead,as damages. This award cannot bo supported, and the respondentnull be entitled to only the value of 12 marakkals of paddy for that period.
As regards the cultivation period 1953-1954, even on the finding ofthe learned Judge that the appellant abandoned the land some timeafter the 15th September, 1953, the appellant would be liable to pay therespondent the rent for that period as no prior notice determining thetenancy had been given to the respondent. In respect of this periodtoo the respondent was awarded the value of 3G marakkals of paddyas damages. This award is also wrong as the respondent is entitled tothe value of only 12 marakkals of paddy.
Although the learned trial Judge found that the appellant hadabandoned the land some time after the 15th September, 1953, he alsoheld that the respondent is entitled to a decree in ejectment of the ap-pellant and to damages at the rate of 3G marakkals per year till the appel-lant is restored to possession. But at the trial the respondent in thecourse of his evidence restricted his claim for damages to the two cultiva-tion periods 1952-1953 and 1953—1954:. That part of the judgment anddecree awarding him damages in respect of any period subsequent to the1953—1954 cultivation period cannot, therefore, stand.
At the hearing before us Mr. Sharvananda cited certain other decisionswhich deal with the question of attornment. I need refer to only oneof them, Ukhmoa v. Fernando (supra), where the earlier cases arc dis-cussed. This case dealt with the respective rights of a monthly tenantand a pucrson who had a subsequent notarial lease from the same landlord.It was held that in the absence of attornment by the monthly tenant tothe tenant under the notarial lease or an assignment in favour of the latterby the landlord of the contract of monthly tenancy with notice to themonthly tenant, it was not open to the tenant under the notarial lease todetermine the monthly tenancy. In view, however, of the conclusionreached bpr mo that the appellant must be regarded as having attornedto the respondent, it is not necessary to examine in detail this and theother cases cited by Mr. Sharvananda all of which deal with the rightsof severa.l lessees under the same landlord and do not appear to be com-pletely analogous to the case of a pmrehaser of land which is subjectto a lease.
The judgment and decree appealed from are varied so that for cac-Iiof the cultivation periods 1952—1953 and 1953-1954 the appellant willpjay to the respondent the value of 12 marakkals of paddy instead of 36marakkals, and no damages will be 2)ayahlc thereafter. In the resultthe respondent’s right to a declaration of title to the land and to a writejecting the appellant therefrom (if lie is still in occupation) and to costsof suit will not be affected by this variation. Since the appellant hassucceeded in this appeal only in part lie will be entitled to half his costsof the appeal from the respondent.
Puixe, J.—I agree.
jDecree varied.