061-NLR-NLR-V-51-UKKU-AMMA-et-al-Appellants-and-JEMA-et-al-Respondents.pdf
Ukkti Amina v. Jema
2r»4
1949Present: Wijeyewardene CJ. and Pulle J.UKKU AMMA et al.t Appellants, and JEMA et al., Respondents
S. C. 78.—D. C., Kurunegala, 4,281.
Lease—Exceeding one month—Pro tanto alienation—Lessee not put inpossession—His right to sue third parties in possession—Lessor not anecessary party—No distinction between short and long leases.
A lessee under a notarial lease who has not been put' in possession ofthe pro|>erty leased curt bring an action against third parties in possessionof the property and compel them to surrender possession to him withoutmaking the lessors parties* to the action. The distinction between shortand long leases is not |mrt of the law of Ceylon.
jf^PPEAL from a judgment of the District .Judge, Kuruncgala.
H. IP. Jayewardene, for defendants appellants.
H. V. Perera, K.C., with C. R. Gunaralne and W. D. Gunasebxra, forplaintiffs respondents.
Cur. adv. vult.
WIJEYEWARDENE C.J.—Ukku Amma ». Jema
255
October 24, 1949. Wijeyewabdene C.J.—
One H. M. Appuhamy who owned the land forming the subject matterof this action mortgaged it in 1928. At a sale held in satisfaction of thehypothecary decree entered against him, the executors of the Last Willof the mortgagee purchased the property in 1939 and conveyed it bydeeds executed in 1942 and 1945 to three devisees named in that Last Will.Those devisees leased the property to the plaintiffs by P8 and P9 of 1947for six years commencing from June 12, 1947. The instruments P8and P9 have been duly attested by a Notary.
The plaintiffs filed this action in July, 1947, pleading that the defendantsdisputed their right to possess the property under P8 and P9. The firstdefendant is said to be the widow of H. M. Appuhamy. The seconddefendant is the daughter of H. M. Appuhamy and is married to thethird defendant. They all denied the title of the lessors of the plaintiffsand pleaded that H. M. Appuhamy was in possession of the land as ownerup to the time of his death. The District Judge gave judgment for theplaintiffs.
The only point that was argued by the appellants’ Counsel was that the*plaintiffs who did not get possession under P8 or P9 could not sue thirdparties without making the lessors parties to the action, as the lease intheir favour was for a period under ten years. He contended that sucha lease did not amount to an alienation unlike a lease in longum tempos.He relied on an observation of Lawric, A.C.J. in Issue Perera v. Baba A ppuet. al.1 and cited in support of his argument Weasels on the Law ofContract in South Africa, Volume 1, sections 1734 to 1740, Voet (Berwick’sTranslation) 19.2.1 and van Leeuwen’s Censura Forensis 1.4.22.5 andsome other authorities.
The question whether an action such as this could be maintained withoutmaking the lessor a party did not arise for adjudication in Isaac Perera v.Baba Appu, et al. (supra), as the lessor was, in fact, a party to that action.Moreover, Withers, J. who delivered the main judgment in the case held,in very clear terms, that a lessee under a notarial loase who had not beenput in possession of the property could bring an action against thirdparties in possesssion of the property and compel them to surrenderpossession of the property to him. In giving that opinion, Withers, J.referred to the remarks of Bonser C.J. in Goonetvardene v. Rajapakse et al?that in Ceylon “ we ought to regard a notarial lease as a pro tantoalienation, and we ought to give the lessee, under such a lease, duringhis term, the legal remedies of an owner or possessor *
There is no doubt that, under the Roman law, the conductor had onlya right in personam against the locator'. If his right to possession isdisputed by the locator or by a stranger, he could not invoke the aid ofthe interdicts by which possession was restored. He could only bring anaction for damages against the locator for breach of contract. Thelatter alone could sue the trespassers, and, if he failed to do so, he committeda breach of the contract{Hunter’s Roman Law,pages 506-507). Accordingto Nathan, this principle of the Roman law which holds that the contractof lease is entirely a matter between locator and conductor and gives the1 (7597) 3 New Law Reports 48.* (759o) 1 Neu> Law Reports 217.
256WlJKYEWARDENft Cj.—Ukku Amm v. Jeina
latter no separate right or remedy against third parties, was not adoptedin Holland (Nathan, Common Law of South Africa, Volume 2, SecondEdition, page 919). According to l.#ee, the position was somewhat slightlydifferent. He says, “ thi9 principle prevailed in some parts of Holland,(at all events as regards short leases) and found expression in the proverb,Koop breekt huur (sales break hire) …. Elsewhere and later therule was reversed, Breekt koop geen huur (sale breaks no hire), Huurgaol voor koop (hire goes before sale); with the result that the hirer couldmake good his right to the land against any third person to whom hislandlord might have sold it ”. (Introduction to Roman Dutch Law, FourthEdition pages, 158-159).
Closely connected with the question of the extent of the rights of alessee is the question as to the formalities to be observed in respect ofa contract of lease. Under the Homan law, the contract need not bein writing. A change was brought about under the Roman-Dutch lawchiefly through Placaats dating from 1452. The Jurists arc not allagreed on the question whether these Placaats deal with houses orrequired only after-leases (Nahuyr) of lands to be in writing. There wasfurther the question whether under the Roman-Dutch law a lease for anylength of time and, in particular, for a long period, required to be executedcoram lege loci in order to render it valid against third parties. On thisquestion too there was a conflict of opinion among the Jurists. Somethought that there was no need for such formality, some, that a lease forover ten years should be so executed, while others thought that onlya lease for twenty-five years or more required such formal execution.(Will© on Landlord and Tenant, 1910 edition, pages 99-107).
The position in the later stages of the Roman-Dntch law of Hollandwas that a lease gave the lessee proprietary rights, provided, of course,that the lease was executed in accordance with the formalities requiredby law.
In South Africa there was & development of the law brought about byjudicial decisions and legislation. The position there is described byLee as follows:—“with statutory exceptions, the validity of a lease asbetween the parties is independent of the presence or absence of writing,and a lease which is good between the parties is also good as againstpersons claiming through the lessor by lucrative title. As regardspurchasers and creditors the law is otherwise. A short lease is absolutelyvalid against them. A long lease if only registered against the title,or if the purchase was made or the credit given with the knowledge ofthe lease. Such is the general law but there are statutory variations(Introduction to Roman-Dutch Law, pages 159-161).
I see no reason for drawing a distinction in Ceylon between short leasesand long leases spoken of by text book writers, when we are consideringthe question whether a lessee has rights against third parties. All thatwe have to consider is whether the lease is duly executed according tolaw. If a lease for any period exceeding a month is notarially attestedit should be regarded as giving “a speoies of ownership in land” (Lee:Introduction to Roman Dutch Law, Fourth Edition, page 161), and vestingin the lessee proprietary rights which could be enforced between third
Nagalingam v. Thanabalasingham
2 5 7
parties. If the lease is duly registered, it is entitled to prevail even againstthose claiming title from the lessor under deeds executed prior to tho loasebut registered subsequently. Therefore, I would respectfully adopt theviews expressed by the Judges in Carron v. Fernando et al. 1 Though theappellants’ Counsel attempted to distinguish it on the ground that thelease considered in that case was for a period of over ten years, it is clearfrom the judgments that the distinction between short and long leaseswas not recognized as part of the law of Ceylon.
I would dismiss the appeal with costs.
Pou»s J.—I agree.
Appeal dismissed.