SANSONI J.—Visvalingam v. Qaja t eem
1954Present : Sanson! J. .V. VIS V ALIN GAM, Appellant, and D. DE S. GAJAWEERA,
>9. C. 180—C. B. Colombo, 41,1)50
l.antllord and tenant—Merger of titles—Eject—Right of tenant to dispute landlord’stitle—Meaning of “ landlord ” in rent restriction taut- Rent Restriction Act,.Vo. 29 of 1942; ss. 12 (1) (a), 26, 27.
l’laint.iff-appollajit had let certain premises to tlje defendant-respondent on unon-notarial document. Admittedly ho was not the owner of the premises.He brought the present action to have the defendant ejected on the groundthat rent was in arrears. Defendant pleaded that he had purchaser! from theowners u portion of the premises and taken on lease the remainder and that,conserpieiitly, the capacities of landlord and tenant had become merged in him.
Held, that even assuming that the defendant had become owner of the entirepremises, it was not open to him to refuse to surrender possession to his landlord,lie must lirsl give up possession, and then it would be open to him to litiguloabout the ownership.
Meaning of expression " landlord ” in sections 2f> and '21 of the KentKcsl rid ion Ad considered.
PPEAL from a judgment of the Court of Requests, Colombo.
//. 1C. Tambiah, with //. L. de Silva, for the plaintiff-appellant.
II. V. Jayeuxirde.ne, Q.C., with D. It. P. Goonelilleke, for the defendant-resjtondent.
Cur. adv. vult.
October 13, 1954. Sansoni J.—-
The plaintiff-appellant brought this action against the defendant-respondent claiming that rent was in arrears for four months. He claimedthe amountdue on this account and also asked for ejectment and damages.The defendant-respondent pleaded—
that the plain tiff-appellant was not his landlord but only a rent
collector for the owners ; 2
(2)that ho had purchased from the owners through their attorney
an undivided l/3rd share of the rented premises prior to thefding of this action, and a further 5/18th share since the filingof tho action ; and that he had taken on lease from the ownersthe remaining 7/18th Bhare ;
SANSONX J.—Viavalingam v. Gajaweera
that the effect of such purchase was to extinguish the contract oflease because the capacities of landlord and tenant mergedin the defendant.•
On the question whether the respondent was the tenant of the appellantthe learned Commissioner held, in my opinion correctly, that he was.The tenancy agreement entered into between them concludes the matter.The appellant was not the owner of the premises ; he only claimed tohave taken them on rent himself on an oral agreement entered into withthe owner. Though section 26 of the Rent Restriction Act, No. 29 of1948, on which the respondent’s counsel relies seems to enable the ownerin such a case to claim that he is the landlord of the sub-tenant, section 27of the Act clothes the appellant also with the character of a landlord.The purpose of section 26 seems to be to create a class of statutory land-lords consisting of persons who would not normally bear that character;they come into existence independently of any contracts made by them,and their tenants are also created for them by the same section.
I have heard interesting arguments urged on the second and thirdquestions by counsel for the appellant and the respondent respectively,but I think this appeal should be decided on the law as laid down manyyears ago by Bonser C.J. and Withers J. in Alvar Pillai v. Karupj>en *.In that case which is very similar to the present one the defendantwas let into possession of the whole land in dispute by the plaintiff on anon-notarial document. When the terms of the letting expired the defend-ant refused to give up possession on the ground that he had acquiredtitle to half the land from a third party. Bonser C.J. said, “ Even thoughthe ownership of one half of this land were in the defendant himself,it would seem that by our law, having been let into possession of thewhole by the plaintiff, it is not open to him to refuse to give up possessionto his lessor at the expiration of his lease. He must first give uppossession, and then it will be open to him to litigate about the owner-ship (Voet 19.2.32.)”. The same rule based on the same passagein Voet is set out in Maasdorp, Institutes of Cape Law (4th Edition)Vol. 3, page 248—“A lessee, ac already stated, is not entitled to dispute hislandlord’s title, and consequently he cannot refuse to give up possessionof the property at the termination of his lease on the ground that he ishim.-elf the rightful owner of the same. His duty in such a case is firstto restore the property to the lessor and then to litigate with him as tothe ownership ”. I am not aware of any authority upsetting the ruleenunciated in these passages. The earlier statement referred to in Maas-dorp is at page 245 and reads :—“ A lessee is not entitled, when sued, todispute his landlord’s title to the leased property, even though that title isinvalid unless he has been evicted or been legally compelled to pay therent to some one else ”. This obviously relates to the defence of evictionby title paramount which is open to a tenant under our law too, for which“ actual physical dispossession is not necessary, but the eviction may beconstructive or symbolic ”, as Jayawardene A.J. said in Tillekeratne v.CoomaraBingham 2. But there is no question of eviction by title para-mount in this case, since the respondent's position is not that he has been1(1899) 4 N. L. R. 321.»(1926) 28 N. L. R. 186.
SANSONI J.— Visoalingam u. Oajaweerti
asked to pay rent to a third person under threat of eviction. The ro-spundent is bluntly disputing hi landlord’s title and he has refused to payt: rent on the ground that he has acquired title to a share of the premiseswhich he took on rent. He cannot be permitted to do this so long as|, ho remains in possession, and if he ill-advisedly failed to paythe rent he is none the less in arrears of rent. This appoal thereforesucceeds.
It would, on this finding, be illogical for me to examine the claim of therespondent to have acquired title to certain shares of the premises in ques-tion.That dispute—for the respondent’s claim to those shares is.* challenged by the appellant—can be gone into if and when an action isfiled by the respondent to vindicate his title. I am, however, unableto uphold the defence of merger or confusio put forward by the respondenteven assuming, without deciding, that he has purchased the shares heclaims. It does seem correct to say that a contract of lease becomesextinguished “ by merger of titles, as where the lessee becomes owner ofthe leased property” and Maasdorp (page 2(59) cites Voet 19.2.4 asauthority for this statement. But I do not think that such a resultfollows when a lessee purchases only a share, and it may be only aninfinitesimal share, of the leased property. He would still, I think,remain a lessee and there would still be a landlord, for in such a casethere is not that ” concurrence of two qualities or capacities in the sameperson, which mutually destroy one another ”, which is the reason of therule its given by limes, C. J., in Grootchwainy Salt Works v. VanTender *.
But even if (here had been merger in this case, I do not think it willassist the respondent because he will still be bound to restore the rentedpremises to the appellant for whether the contract of tenancy isextinguished by expiration of the term or by notice to quit or by merger• if titles makes no difference to the tenant’s obligation to surrender pos-session before ho litigates about the ownership. Voet’s views on thisobligation are unmistakable in the passage I have referred to. “ Norcan the restitution of the thing hired be delayed by the conductor pleadingthe exceplio dominii, although he might be able easily to prove his ownownership, but he must by all means first surrender the possession andthen litigate as to the proprietorship, especially when the lessor sues notby the ordinary actio locati, but under the interdict for recovery ofpossession, ” (Berwick’s translation, page 228). The learned translator’snote draws attention to the English formula that a tenant cannot disputehis landlord’s title.
For the reasons given by mo earlier in this judgment T allow this appeal -1 he appellant is entitled to judgment against the respondent as prayed forin his plaint, with costs in this-Court and the lower Court.
(1920) A. D. 492.
A ppeal allowed.
V. VISVALINGAM, Appellant ,and D. DE .S. GAJAWEERA, Respondent
SANSONI J.—Visvalingam v. Qaja t eem