075-NLR-NLR-V-55-W.-HEENATIGALA-Appellant-and-L.-G.-BIRD-Respondent.pdf
Heenatigala v. Bird
277
1954
Present : Pulle J. and Swan J.
W.HEENATIGALA, Appellant, and L. G. BIRD, Respondent
S. C. 377—D. C. Colombo, 6,531l
Bent Restriction Act, No. 29 of 1948—Section 13—Letting of co-ocvned premises—-Partition sale thereafter—BJfect of such sale on the tenancy agreement.
Per PtTLLK J.—Where premises which are owned in common are let undera oontract of tenancy and, subsequently, one of the co-owners purchases thepremises at a partition sale, the certificate of sale has the effect of terminatingthe relationship of landlord and tenant and of constituting the purchaser anindependent title holder to whom the restriction contained in section 13 of theRent Restriction Act Cannot apply. The certificate confers a title which is notsubject to the tenancy agreement.
PPEAL from a judgment of the District Court, Colombo.
Sir Lolita Rajapakse, Q.C., with Kingsley Herat and H. R. Chmawardene,for the plaintiff appellant.—The purchaser, even if he be a co-ownerand the former landlord, gets a new title, which is created by the partitiondecree which is a decree in rem—Bernard v. Fernando x, Seedin v. Thedia z.The trial Judge is wrong on the question of fact that there has beena fresh attornment after the sale. Even if he was right, the co-ownershipcontinued till the issue of the certificate of title and it is only after theissue of the certificate that the co-ownership terminates and the purchasergets the new title.
The old contractual relationship of landlord and tenant betweenplaintiff and defendant ceased the moment the certificate of title wasissued—Khan Bhai v. Perera 3.
The partition decree gives a title paramount and the Rent RestrictionAct does not come into operation unless there was a fresh attornmentof a tenancy after the certificate of sale. The position will be the sameif the premises had been acquired under the Land Acquisition Act 9of 1950. See Megarry (7th edition) pp. 21-22.
R. S.R. Coomaraswamy, with E. W. Wimaladiandra, for the defendantrespondent.—Even if the decree for sale created a new title and thepurchaser at the sale obtained it, there is a finding of the Judge thatthere was an attornment after such sale, though none after the issueof the certificate of title. The Rent Restriction Acts operate in rem 1
1 (1913) 16 N. L. R. 438.* (.1961) 53 N. L. R. 63.
3 (1924) 26 N. L. R 205 at 208.
278
SWAN J.—Heenatigala, v. Bird
and not in personam. The Act imposes a stains on the house whichbinds both landlord and the tenant. It operates in rem. See Megarry,page 16..
If the partition decree is permitted to override the provisions of theRent Restriction Act it will enable a co-owner of premises to file a partitionaction to enable him to eject the tenant.
[Pxjlle J.—One is permitted to evade the provisions of a statute, solong as one acts within the law, as in Income Tax evasions.]
Cur. adv. milt.
February 11, 1954. Swan J.—
In this case the appellant sued the respondent for declaration of titleto and ejectment from premises No. 246, Skinner’s Road North, Colombo.The appellant had purchased these premises at a partition sale in caseNo. 5,744/0. C. Colombo. The appellant was the plaintiff in that action.He claimed and was declared entitled to J share of the premises in questionalong with the premises on either side of No. 246, namely Nos. 244 and248. The decree for sale was entered on 6th July, 1950. The sale tookplace on 12th October, 1950. It was confirmed on 30th January, 1952.Certificate of sale was issued on 5th February, 1952.
The respondent was occupying the premises in question both beforeand after the sale as the tenant of Mr. S. E. A. Perera who collected therents of all three houses and distributed the amount among the co-owners.The respondent’s case was that shortly after the sale the appellant cameand told him that he had purchased the premises and that he was the“ new landlord ”. That was sometime in October, 1950. The respondenttherefore took the rent for November to the plaintiff. He says that theplaintiff requested him to hand it to his Proctor. The Proctor howeverwould not accept it and he deposited it, and further rents, with the RentControl Board.
Upon this evidence the learned District Judge held that there was acontractual relationship of landlord and tenant between the appellantand the respondent. Assuming that the appellant cannot rely upon thestrength of his certificate of title to eject his own tenant, I shall examinethe evidence carefully in order to see whether this finding of the learnedDistrict Judge can be supported. It is unfortunate that the statementof the respondent that the appellant requested him to send the rent forNovember to his Proctor was made in answer to the following questionput by the learned District Judge himself:—
Q.—He requested you to send it to his Proctor, S. Kanagarajah 1
A.—Yes.
When the respondent wrote letter D3 to Mr. Kanagarajah enclosing amoney order in payment of the rent for November the latter promptly
PULLE J.—Heenatigala v. Bird
279
replied by D4 that he could not accept the money as he had already-written to the respondent requesting him to leave the premises andsurrender possession to his client. The last sentence of that letter issignificant. “ I presume ”, says Mr. Kanagarajah, “ that your letterof the 6th instant is a sequel to my letter to you of the 20th ultimo.”
The learned Judge has entirely lost sight of the fact that when therespondent i Tote D3 to Mr. Kanagarajah he was already under notice tosurrender possession of the premises. In these circumstances the mostthat one can infer from the conversation between the appellant and therespondent on the occasion of the appellant’s visit after the sale is anintimation that the respondent could make any arrangement he caredto make with the appellant’s Proctor. There could not have been aconcluded contract of tenancy at that time because if the appellant waswilling to accept the respondent as his tenant there was hardly any needto refer him to his Proctor. The evidence discloses that one of the tenantsupon receipt of notice to surrender possession from Mr. Kanagarajahobtained time to leave and did in fact surrender possession before thiscase came up for trial.
The only other point to consider is whether the respondent couldclaim protection from ejectment by reason of the Rent Restriction Act.When it was pointed out to learned counsel for the respondent that evenon the assumption that there existed a contractual relationship of land-lord and tenant between the appellant and the respondent by reasonof the fact that Mr. S. E. A. Perera collected the appellant’s share of therent from the respondent the alleged tenancy could only be with regardto a quarter share of the premises he did not think it worthwhile to pursuethe matter and stated that his client was willing to surrender possessionif he was given time.
The appeal is allowed with costs. Judgment will be entered for theappellant declaring him entitled to the premises, for ejectment and fordamages at Rs. 29 – 58 per mensem from 5th February, 1952, until recoveryof possession and for costs of action. In order to mitigate the hardshipof immediate ejectment we direct that if the respondent pays all damagesup to 31st January, 1954, the damages for February, 1954, together withcosts of appeal on or before 20th March, 1954, the damages for Marchand Apr'l, 1954, together with costs of action on or before 20th April,1954, and thereafter the damages for each month on or before the 20thof such month writ of ejectment will not be executed before 30th June,1954. In default both writs to issue forthwith without notice to therespondent.
PutjjE J.—
I agree that the appeal should be allowed and time granted to thetenant to vacate the premises on the conditions set out by my brother.Even accepting the finding of the learned District Judge that there was a
280
WEERASOORIYA J.—Nagalingam v. Ledchumipillai
new contract of tenancy entered into between tbe plaintiff and thedefendant shortly after the sale on the 12th October, 1950, the certificateof sale issued on the 5th February, 1952, had the effect of terminatingthe relationship of landlord and tenant and of constituting Jihe plaintiffan independent title holder to whom the restriction contained in section IBof the Kent Restriction Act, No. 29 of 1948, could not apply becausethe certificate conferred a title which was not subject to the tenancyagreement.
Appeal allowed.