UKKUWA v. FERNANDO

028-NLR-NLR-V-38-UKKUWA-v.-FERNANDO.pdf


Ukkuwa v. Fernando.
125
1936Present: Abrahams C.J. and Soertsz A.J.
UKKUWA v. FERNANDO.158—D. C. Kandy, 45,334
Lessor and lessee—Tenant under informal lease—Subsequent lease by notarialinstrument—Right of latter to give notice to former—Position of originallessee—Monthly tenancy—Action in ejectment.
Where the lessee of a land on an informal document was sued inejectment by a subsequent lessee of the land on a notarial instrument,who gave him notice to quit within thirty days,-—
Held, that the original lessee was in the position of a monthly tenantwho was entitled to a calendar month’s notice ; and that the plaintiffcould not sue him in ejectment until the monthly tenancy had beendetermined by due notice given him by his lessor.
In the absence of an attornment of the original lessee to the plaintiffor an assignment after notice of the lessor’s rights to him the plaintiffis not entitled to give the defendant notice to quit.
T
X HE plaintiff sued the defendant to eject him from a land whichhe had obtained on an indenture of lease from the owner, UkkuAmma, who leased the land to him for a period of two years commencingon August 11, 1933. He alleged that the defendant was a tenant-at-will from his lessor and that he requested him to leave the premises withinthirty days from August 24, 1934, but that the defendant deniedplaintiff’s right to give him notice and was in wrongful possession ofthe land.
The defendant filed answer stating that he held the land from UkkuAmma on an informal lease dated November 26, 1932. He deniedplaintiff’s right to give him notice to quit and prayed that plaintiff’saction be dismissed.
126
SOERTSZ A.J.—Ukkuwa v. Fernando.
C. V. Ranawake (with him Dodwell Goonewardene), for defendant,appellant.—The defendant is not in the position of a tenant-a.t-will, hisinformal document creates a monthly tenancy. (Bandara v. AppuhamyWambeek v. Le Mesurier'.) If the document operated so as to createa monthly tenancy, this contract of tenancy was with the owner of thepremises, not with the plaintiff, who is a lessee of the owner. Therehas been no assignment to the plaintiff of the owner’s rights as landlordnor has the defendant attorned to the plaintiff ; in other words there isno privity of contract between the plaintiff and the defendant. SeeWijeratne v. HendrickAmolis v. Mohideen Pitche*, Rajapakse v.Cooray
If then the contract is with the owner the question of a due andproper notice, on which the learned District Judge has gone, does notarise ; even if it does arise the notice is bad inasmuch as the noticeshould be a calendar month’s notice.
H. V. Perera (with him S. W. Jayasuriya), for plaintiff, respondent.—On the authority of de Silva v. Goonewardene ° and The Secretary of Statefor the War Department v. Ward1 the defendant must be held to be atenant-at-will, and accordingly he is not entitled to any formal notice.The plaintiff’s lease is an alienation pro tanto, and the plaintiff wasentitled to do whatever the owner, his lessor, could do ; his lease createdproprietary rights which the plaintiff can make good against the wholeworld. (Goonewardane v. Rajapakse “, Carron v. Fernando ’.) As atenant-at-will the defendant was not entitled to any formal notice ;the position is the same even if he was not such a tenant, his document oftitle being the informal lease. (Auneris v. Aralis w, Cornelius v. Dionis.1' ”
Goonewardene, in reply.—The cases in 2 Browne do not help to determinethe question of a tenancy-at-will; there no reliance was placed on anyspecial agreement ; here there is an agreement, however informal, withdistinct stipulations as to payment of rent, &c. (D 1). No doubt theplaintiff’s lease created proprietary rights in his favour ; but his right tosue the defendant in ejectment arises only after his tenancy has beendetermined by a notice from the proper source.
Cur. adv. vult.
October 6, 1936. Soertsz A.J.—
The plaintiff-respondent instituted this action on June 19,1934,
praying that he be declared entitled to the possession of the landJamBugahamankada described in the schedule to the plaint, that thedefendant be ejected therefrom and be ordered to pay on account ofdamages consequent on his wrongful occupation of the land, a sum ofJRs. 100 a month from August 11, 1933, till the plaintiff is restored topossession. His case was that one TJkku Amma, the acknowledgedowner of the land, had by the indenture of lease marked A which is anexhibit in the case, leased this land to him for a period of two years
» 25 N. L. R. 176.
3 N.L. R. 105.
3 N. L. R. 158.
3 Bal. 159.
2 Times of Cey. L. R. 209.
8 2 Browne 202.
1 2 Browne 256.
8 1 N.L. R. 217.
8 35 N. L. R. 352.30 N. I-. R. 363.
n 13 C. L. Rec. 251.
SOERTSZ A.J.—Ukkuwa v. Fernando.
127
commencing on August 11, 1933. He averred that he “ learnt that thedefendant claims as tenant-at-will” of his lessor Ukku Amina and thathe “ requested the defendant to leave the said premises within thirtydays from August 24, 1933, but that the defendant has denied plaintiff'sright to give him notice and is in wrongful occupation of the said land
The defendant filed answer denying that he was a tenant-at-will ofUkku Amma and stating that by a non-notarial writing dated November26, 1932, Ukku Amma put him in possession of this land. He saidhe had improved it at a cost of Rs. 500, that he was in lawful occupationof it, that he was not aware of the lease set up by the plaintiff till thatfact was disclosed in the plaint and that, as a matter of law, the noticethe plaintiff alleged he had given him to vacate the land ‘ is bad and ofno force or effect'. He prayed that plaintiff’s action be dismissed.
The case went to trial on the following issues : —
Has the defendant been given due notice to quit ?
Is plaintiff entitled to mesne profits from October 1, 1933 ?
If so, to what amount ?
Has defendant made any improvements on this land ?
If so, what is their value?
Can defendant claim the jus retentionis in respect of anything
more than he has improved ?
Is the notice good in law ?
If not, is paintiff entitled to maintain this action ?
Evidence was led for the plaintiff. The defendant appears to haverelied on his plea that the plaintiff’s action failed because the noticehe alleged he gave was bad in law. The District Judge held against thedefendant on this point and entered judgment “ for the plaintiff asprayed for with damages at the rate of Rs. 787.50 per annum fromOctober 1, 1933, till possession is yielded, and costs ”.
On appeal, Counsel for the appellant contended that the findings ofthe trial Judge on issues (1), (7) , and (8) are wrong. He maintained thatthe defendant was not a tenant-at-will, but that his position was that of amonthly tenant of Ukku Amma and that, therefore, notice the plaintiffalleged he gave on August 24, 1933, calling upon the defendant to quitthe land within thirty days was not sufficient in law : firstly, becausethere was no privity of contract between the plaintiff and the defendant,the defendant not having attorned tenant to the plaintiff, and secondly,because the notice relied on was not a proper month’s notice. Thequestion discussed before us was whether the defendant occupies theposition of a tenant-at-will or of a monthly tenant. Document D1shows that the intention of the parties to it was to create a lease for aperiod of five years, the lessee to have possession for the first two monthsfree of rent and thereafter to pay rent at the commencement of each andevery month at the rate of Rs. 20 per month, Rs. 50 per month, and Rs. 100per month according to the fluctuations of the market for green leaf.But this document failed of its purpose to create a lease of the land forfive years because it was obnoxious to section 2 of Ordinance No. 7 of1840, which requires a lease of land, other than a lease at will or for aperiod not exceeding one month, to be notarially attested. It was,
128
SOERTSZ A.J.—Ukkuwa v. Fernando.
however, admissible in evidence for the purpose of ascertaining thelegal position of the parties to it. In Bandara v. Appuhamy1 Schneider J.,after a careful review of the English and local authorities, held thatthe provision in section 2 of Ordinance No. 7 of 1840, was intendedto shut out evidence, other than that of a notarially attested instrument,to prove a lease for any period exceeding one month. It was notintended to shut out oral or ‘ documentary evidence contained in aninformal document ’ of a tenancy for a period not exceeding one month.The Ordinance is careful to exclude tenancies of such a nature from itsprovisions ”. The informal document in the case considered bySchneider J. appears to have been very similar to the document D1 inthis case, and I would therefore adopt his words and say that “ It seems
. … tequitable and consistent with the spirit of the Ordinance
and the intention of the parties, to hold that the defendant is entitledto say ‘ if I am not a tenant for a term of years contemplated by meand my lessor, there is no provision of law which prevents me from beingregarded as, at least, holding the land upon the footing of a monthlytenant ’ ”. In Wambeek v. Le Mesurier 3, Laurie J. said that he was“ of the opinion that a tenant entering into possession under a leasevoid in law, thereupon becomes tenant from month to month upon theterms of the writing as far as they are applicable to and not inconsistentwith a monthly tenancy
Schneider J. and Loos A.J. took the same view in Buultjens v. CarolisAppu'.
Counsel for the respondent relied upon de Silva v. Goonewardene 4 andThe Secretary of State for the War Department v. Ward s for his submissionsthat the defendant in this case was no more than a tenant-at-will. Inthe latter case Moncrieff A.C.J. and Brown J. held, that a tenant inpossession under an agreement invalid under Ordinance No. 7 of 1840,is merely a tenant-at-will, and not a monthly tenant “ because theoccupant cannot show that by any stipulation as to occupancy, notice,or amount to be paid for the occupancy, there was aught of a monthlycharacter impressed upon the agreement ”.
That case is clearly distinguishable from this on the ground thatin this case there are stipulations as to occupancy and payment of rentby the month which “ impress upon the agreement a monthly character ”,and on the grounds stated by Schneider J. in Bandara v. Appuhamy(supra). I am unable to see that the earlier case referred to by respond-ent’s Counsel has any direct bearing on the point under consideration.
I would therefore hold that the defendant’s position was that of amonthly tenant. Upon that finding, two questions arise : whether theplaintiff was entitled to terminate that tenancy by giving the defendantnotice to quit; and, whether the notice the plaintiff says he gave wasa sufficient notice.
In Wijeratne v. Hendrick“ Withers J. held that the defendant a monthlytenant under R was not liable for rent except by attornment to R’slessee, or by express assignment by R to his lessee of the benefit of hiscontract with the defendant, with due notice given to the defendant
1 25 N. L. R. 176.4 2 Browne 202
E 3 N. L. R. 105.5 2 Browne 256.
3 21 N. L. R. 156.6 3 N. L. R. 158.
SOERTSZ A.J.—Ukkuwa v. Fernando.
128
of that assignment. This ruling was followed by Middleton J. inAmolis v. Mohideen Pitche In a more recent case (Rajapakse v. Cooray °)where the material facts were that the plaintiff took a lease of a landfrom one A and found the defendant in possession, the defendant saidthat he held the land on an earlier lease from A and that on the termina-tion of that lease he continued on the land because he was due com-pensation by A for improvements effected by hirii by agreement with Aand that he was therefore, a tenant from month to month. The.plaintiff, thereupon, requested the defendant to be his tenant, but at ahigher rental than that paid by him to A. The defendant refused. Theplaintiff gave defendant notice to quit, and, on his failure to do so, suedhim to recover possession of the land and damages for the loss of use andoccupation. Ennis J. held that “ as the defendant never attornedtenant to the plaintiff, the notice from plaintiff is bad ”. There wasno privity of contract between the plaintiff and the defendant. Headded that “if authority be needed for this proposition, the case ofWijeratne v. Hendrick (supra) may be cited ”.
In the present case, the plaintiff relied in his plaint on the notice givenby him to the defendant on August 24, 1933, requesting him to quit theland within thirty days. The cases I have referred to rule that theplaintiff was not entitled to give the defendant that notice. Moreover,in this case, assuming that plaintiff was entitled to give the defendantnotice to quit, he is faced with the difficulty that the notice relied uponin the plaint is not a valid notice. It was given on August 24 and itcalled upon the defendant to leave the land within thirty days. Thedefendant was in the position of a monthly tenant and was, therefore,entitled to a calendar month's notice. According to Dl, he was liableto pay rent at the commencement of every month. We have been referredto two cases in support of the proposition that “ an informal lessee ofland ” is not entitled to “ formal notice in the same way as a monthlytenant ”. The two cases are Auneris v. Aralis3 and Cornelis v. Dicmis *.In the former case, Drieberg J. said “ For my part I doubt whether alessee on an informal lease who is not a monthly tenant by contract,but by implication or by an equitable view taken of his position torelieve him of the loss he sustains by the invalidity of a transaction towhich his lessor is a party, is entitled to such notice as is required in amonthly tenancy by contract with all the requirements of law regardingsuch notice ”, In the latter case, Garvin J. said that he was inclined toagree with that view. With great respect, I am unable to appreciatethe distinction that is sought to be made between “ a monthly tenantby contract ” and “ a monthly tenant by implication or by an equitableview taken of his position ”. To treat “ a monthly tenant by implicationor by an equitable view taken of his position ” in this way is but togive him an empty title. But surely, by whatever process a monthlytenant is evolved he comes into being a monthly tenant. No more, noless. He must be invested with all the rights and liabilities of that legalentity. There does not appear to be any justification for allowing him fullstatus in the one case and only a curtailed status in the other cases.
1 3 Bal. 159.
* 2 Times of Cej/. L. R. 209.J. N. B 32999 (1/54)
30 N. L. R. 363.
3 N.L. R. 158.
130
Abeyesekere v. Jayatileke.
I would therefore hold that the defendant was entitled to a calendarmonth’s notice from Ukku Amnia before his tenancy could have beendetermined. The notice relied upon by the plaintiff was not a sufficientnotice. But there is evidence to show that before the plaintiff institutedthis action, Ukku Amma had given defendant notice to quit. Bydocument P4 of October 12, 1933, she called upon him to quit anddeliver possession of the land on November 30, 1933. The effect of thatnotice was to determine the defendant’s tenancy on November 30, 1933,and to make his occupation of the land from December 1, 1933, an un-lawful occupation, and to render him liable to be ejected. Counsel for therespondent relied on the ruling in Goonewardene v. Rajapakse1 and inCarron v. Fernando * for his contention that the plaintiff in this casewho is a lessee was entitled to do what his lessor could have done, namely,to give notice to the. defendant requiring him to quit the land, becausea lease of land “ creates not only contractual rights between the parties,but also proprietary rights which the lessee can make good against allthe world In the one case, it was said that a lease was ‘ a pro tantoalienation ’. In the other that it was held that within certain limitsthe lessee can make good his proprietary rights against the world.
I do not think the rules laid down in those cases apply to the factsof this case beyond enabling the plaintiff as lessee to sue the defendantin ejactment once the lawful holding by the defendant as monthly tenanthad been determined by due notice given him by his landlord and hisoccupation had become unlawful.
In this view of the matter, the plaintiff’s claim in the prayer of hisplaint for damages as from August 11, 1933, cannot be sustained, nor canthat part of the order of the District Judge be supported which directsthe defendant to pay damages as from October 1, 1933, on the footingthat the notice given on August 24, 1933, was a good notice.
The valid notice was that given on October 12, terminating the tenancyon November 30, 1933. I would, therefore, vary the decree enteredin this case by directing the defendant to pay damages at Rs. 787.50per annum as from December 1, 1933. _ In all the circumstances of thiscase, I am of opinion that the plaintiff should get half the taxed costsin the Court below and pay half the taxed costs of this appeal.
Abrahams C.J.—I agree.
Judgment varied.