001-SLLR-SLLR-2002-V-1-VIRASINGHE-v.-VIRASINGHE-AND-OTHERS.pdf
CA
Virasinghe v. Virasinghe and Others
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VIRASINGHE
v.VIRASINGHE AND OTHERS
COURT OF APPEALWEERASURIYA, J„ ANDDISSANAYAKE, J.
CA/707/93 (F)
DC COLOMBO NO. 14447/POCTOBER 17, 2000.
Partition Law, No. 21 of 1977, sections 66 (1) and (2) – Decree for sate of commonproperty – Deed of lease executed after lis – pendens is registered – Is the deedof lease valid? – Consent – Acquiescence in the leasing of the premises -Prevention of Frauds Ordinance, section 2.
The plaintiff-appellant instituted action seeking a sale of the land in question interms of the provisions of the Partition Law. The 4th defendant-respondent claimeda tenancy under the plaintiff-appellant and 1st and 2nd defendant-respondents(co-owners). The District Court held that the 4th defendant-respondent wasa tenant.
On appeal –
It was contended that a lease which is void in law cannot create a valid monthlytenancy and that no issue of acquiescence by the plaintiff-appellant arose forconsideration by court.
Held:
The 1st and 2nd defendant-respondents by a Notarial deed leased thepremises in question to the 4th defendant-appellant for a period of 10 years.However, the deed of lease had been executed after the partition actionwas duly registered as a lis pendens and therefore is void and of no effectin law – sections 66 (1) and (2).
Evidence led shows that the 4th defendant-respondent became a monthlytenant prior to the purported lease agreement.
Since the commencement of the tenancy is not referable to the deed oflease, the 4th defendant-respondent is not precluded from claiming a validmonthly tenancy.
2Sri Lanka Law Reports[2002] 1 Sri L.R.
It could be said that the 4th defendant-respondent had come into occupationof the premises as the tenant at the behest of the 1st defendant-respondentwho had acted as the agent of all the co-owners. The protection affordedby the Rent Act is available to the tenant as against all the co-ownerson the ground that parties has acquiesced in the letting.
APPEAL from the judgment of the District Court of Colombo.
Cases referred to:
Hinni Appuhamy v. Kumarasinghe – 59 NIR 566.
Kalpage v. Gunawardena – 66 NLR 302.
Ranasinghe v. Marikkar – 73 NLR 361.
Pararajasekaram v. Vijayaratnam – 76 NLR 470.
Iktam Mohamed, PC with Harsha Soza and A. M. Faisz for plaintiff-appellant.
P. A. D. Samarasekera, PC with R. Y. D. Jayasekera for 4th defendant-respondent.
Cur. adv. vult.
January 26, 2001.
WEERASURIYA, J.
The plaintiff-appellant instituted this action seeking a sale of the land 1described in the 4th schedule to the plaint, in terms of the provisionsof the Partition Law, No. 21 of 1977. The said land was depictedin the preliminary plan bearing No. 3903 dated 24. 10. 1986, madeby licensed Surveyor S. D. Liyanasuriya marked X.
There was no dispute regarding the corpus or the pedigree inrespect of the land which is owned by the plaintiff-appellant, 1stdefendant-respondent and 2nd defendant-respondent.
This land was mortgaged to the 3rd defendant-respondent (Bankof Ceylon) on deed marked 3D2. The 3rd defendant-respondent claimed 1°that a sum of money was due and owing from the plaintiff-appellantand 1st and 2nd defendant-respondents jointly under the saidmortgage bond (3D2).
CA
Virasinghe v. Virasinghe and Others (Weerasuriya, J.)
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The main contest in this case was raised by the 4th defendant-respondent claiming a tenancy under the plaintiff-appellant and 1stand 2nd defendant-respondents.
Learned District Judge by his judgment delivered on 20. 10. 1993,whilst holding that 4th defendant-respondent was a tenant of thepremises, made order to enter interlocutory decree for sale of thecommon property, as partition is inexpedient and impracticable. The 20plaintiff-appellant has preferred this appeal against the said judgment.
At the hearing of this appeal, learned President's Counsel appear-ing for the plaintiff-appellant contended that the learned District Judgehas misdirected himself in holding that the 4th defendant-respondentwas a tenant of the premises.
The above contention of learned President's Counsel was basedon the following grounds:
That a lease which is void in law cannot create a validmonthly tenancy.
That no issue of acquiescence by the plaintiff-appellant arose 30for consideration by Court.
That there was a failure to consider the evidence led onbehalf of the 4th defendant-respondent relating to thequestion of tenancy.
The following authorities were cited in support of the above matters:
Hinni Appuhamy v. Kumarasinghef1)
Kalpage v. Gunawardena®
Ranasinghe v. Marikkai<3>
Pararajasekeram v. Vijayaratnarrf4>
4Sri Lanka Law Reports[2002] 1 Sri L.R.
The 1st and 2nd defendant-respondents by deed bearing No. 74 40dated 24. 07. 1985 and 17. 12. 1985, attested by Thurairaja NP,purported to lease to the 4th defendant-respondent, the premises insuit for a period of 10 years. The 1st defendant-respondent who wasone of the lessors signed the said deed on 24. 07. 1985, while theother lessor namely, the 2nd defendant-respondent signed the deedon 17.12.1985. Therefore, the lease being a joint lease by co-ownersof the said premises cannot be said to have been duly executed andcompleted until both lessors signed the said deed. Accordingly, thesaid deed had been completed only after the 2nd defendant-respondent signed the deed on 17. 12. 1985.50
It is noteworthy that the present action was filed by the plaintiff-appellant on 22. 08. 1985 and fis pendens was registered on 22. 10.1985 before the deed of lease was completed. Accordingly, the deedof lease marked P23 had been executed after the partition action wasduly registered as a lis pendens and therefore is void and of no effectin law in terms of sections 66 (1) and (2) of the Partition Law.
However, the evidence led in the case clearly established that the4th defendant-respondent became a monthly tenant of the premiseson 01. 01. 1985. Thus, it is manifest that prior to the purported leaseagreement (P23), the 4th defendant-respondent became a monthly sotenant of the premises in suit.
In the case of Pararajasekeram v. Vijayaratnam {supra) it was heldthat informal lease of a land is not one which may be treated asa tenancy from month to month and in view of section 2 of thePrevention of Frauds Ordinance such an agreement is null and voidand of no force or avail in law.
In the instant case, a vaild monthly tenancy has come into effectas from 01. 01. 1985. Therefore, the decision in Pararajasekeram v.Vijayaratnam has no application to the facts of this case.
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Virasinghe v. Virasinghe and Others (Weerasuriya, J.)
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Since the commencement of the tenancy is not referable to the 70deed of lease marked P23, the 4th defendant-respondent is notprecluded from claiming a valid monthly tenancy. In the light of theabove material, the case of Hinni Appuhamy v. Kumarasinghe (supra)has no bearing to this case.
Learned President's Counsel appearing for the plaintiff-appellantcontended that there was no material to establish that there wasconsent or acquiescence by the plaintiff-appellant in the leasing ofthe said premises and there was no issue of acquiescence raisedat the trial.
Learned President's Counsel appearing for the 4th defendant- 80respondent on the other hand contended that 1st defendant-respondent had acted as the agent of the plaintiff-respondent at alltimes material to this action.
It is significant to observe that the plaintiff-appellant in his evidenceadmitted that his brother, 1st defendant-respondent, acted as an agentfor him and for the other brother (2nd defendant-respondent). Theplaintiff-appellant sought to make out that upto a certain time the 1 stdefendant-respondent acted as his agent with regard to the accountmaintained at the 3rd defendant Bank in relation to the loan obtainedfrom the Bank. However, he asserted that the said joint account was 88operated till December, 1982 and thereafter he left the country havinginstructed the Bank that he was not operating the account. This 1assertion of the plaintiff is mainfestly unacceptable for the reason that,he failed to question the bank official who gave evidence relating tothe joint account on the purported instructions he had given in respectof the said joint account, to disclaim his liability.
It was clear from the evidence of the plaintiff-appellant that he knewthat the premises had been let by the 1st defendant-respondent evenprior to the 4th defendant-respondent moving into the house. Theevidence of the plaintiff-appellant that he met the previous tenant and 100discussed about the tenancy cannot be disregarded.
6
Sri Lanka Law Reports
[2002] 1 Sri L.R.
The plaintiff-appellant conceded that, 1st defendant-respondent madepayments to the Bank relating to the said overdraft. He further admittedthat all moneys paid to the Bank of Ceylon was obtained from therent of the premises and that he did not personally make any paymentin settlement of the loan.
Much emphasis was laid on document marked P25 in an attemptto discredit the proposition of agency by the 1 st defendant-respondentfor and on behalf of other co-owners. Reference was made to thefollowing passage in that document namely: "We might mention that nothis payment is being made by Messers C. S. R. Virasinghe andP. A. Virasinghe who intend to claim the share payable by Mr. I. A.
K. Virasinghe from him".
It is to be observed the above passage cannot be construed tocounter the position of the 1st defendant-respondent of having actedas agent of the plaintiff-appellant. This passage is an obviousreference to the liability of the plaintiff-appellant to the jointaccount operated for the purpose of obtaining the overdraft facility.
Learned District Judge has made specific reference to the mannerin which the plaintiff-appellant had given evidence. It was demonstrated 120that plaintiff-appellant had contradicted his own evidence even inexamination in chief on material points. It was found that he wasevasive and inconsistent on vital matters relating to the issue oftenancy.
Upon an examination of the material available, it is not unsafe tocome to the conclusion that 4th defendant-respondent had come intooccupation of the premises as the tenant at the behest of the 1stdefendant-respondent who had acted as the agent of all the co-owners.
In the result, the protection afforded by the Rent Act is available tothe 4th defendant-respondent as against all the co-owners on the 130ground that they had acquiesced in the letting.
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Virasinghe v. Virasinghe and Others (Weerasuriya, J.)
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In the case of Kalpage v. Gunawardena (supra) it was held thatwhere there are a number of co-owners in respect of rent controlledpremises, a lease of the entire premises, executed by one of themdoes not bar the other co-owners, in the absence of an issue onacquiescence from having the tenant ejected as a trespasser.However, in that case, no question arose as to the legal positionof one co-owner acting as the agent of the other co-owner.
The case of Ranasinghe v. Marikkar (supra) would be relevant toa question of one co-owner letting the premises without the consent 140or acquiescence of other co-owners and the consequent loss ofprotection of the Rent Act as against a purchaser who buys thepremises in terms of an interlocutory decree.
The contention of learned President's Counsel that the DistrictJudge has not considered the evidence of the plaintiff-appellant isunacceptable. Learned District Judge has made reference to theevasive and inconsistent manner in which the plaintiff-appellant hasgiven evidence which seriously affected his credibility. Having exam-ined the evidence with care, I see no basis to interfere with his findings.
For the foregoing reasons, this appeal is dismissed with costs, isoDISSANAYAKE, J. – I agree.
Appeal dismissed.