067-NLR-NLR-V-69-W.-IRENE-FERNANDO-Appellant-and-SYBIL-DE-SILVA-and-others-Respondents.pdf
T. 8. FERNANDO, J.—Irene Fernando v. Sybil de Silva
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Present: T. S. Fernando, Siva Supramanlam and
Samerawlckrame, JJ.
W. IRENE FERNANDO, Appellant, and SYBIL DE SILVAand others, Respondents
S. C. 443/63—D. C. Colombo, 9237/L
Partition action—Institution oj action in 1944—Order for sale of rent-controlledpremises—Issue of certificate of sale in 1959—Eights of the tenant as againstthe purchaser—Rent Restriction Act, No. 29 of 1948, s. 13—Partition Act,No. 16 of 1951, s. 83 (1)—Interpretation Ordinance, s. 6 (3) (c).
Rented premises, which were subject to the Rent Restriction Act, wore pur-chased by the plaintiff on 18th October, 1957 under a decree for sale entered in apartition action which was instituted prior to the date when the Partition ActNo. 16 of 1951 came into force. The certificate of sale was issued by the Courton 23rd September 1959, but no request was made thereafter by the plaintiff tothe tenant (defendant) to attorn to him in respect, of the tenancy. In thepresent action, which was filed on 9th August 1960, the plaintiff claimed adeclaration of title to the premises as against the tenant, ejectment anddamages as from the date of action. The question whether the certificate ofsale was valid at all was not contested.
Held, that the definition of “ partition action ” contained in section 83 (1) ofthe Partition Act should be read with section 6 (3) (c) of the InterpretationOrdinance. Therefore, notwithstanding the recital in the certificate of sale thatthe Court ordered the sale under the Partition Act of 1951 and certain referencesto that Act in the record of the partition action, the certificate of sale, which wasthe title of the plaintiff, was one issued under the Partition Ordinance in forceprior to the Partition Act of 1951. Accordingly, the tenant was entitled to thebenefit of the decision in the case of Britlo v. Heenaligala (57 N.L.R. 327) that thestatutory protection conferred on the tenant by section 13 of the RentRestriction Act is not extinguished either by the decree for salo or by thecertificate of salo.
.A.PPEAL from a judgment of the District Court, Colombo.
H. V. Perera, Q.C. with Carl Jayasinghe, for the plaintiff-appellant.
C. Ranganathan, Q.C., with D. C. Ameresinghe, for the substituteddefendants-respondents.
Cur. adv. wilt.
February 10, 1967. T. S. Febnando, J.—
This appeal was referred to us for hearing as a result of disagreementbetween the two judges before whom it was argued in the ordinary course.
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T. S. FERNANDO, J.—Irene Fernando v. Sybil de Silva
The plaintiff-appellant purchased the allotment of land which is thesubject-matter of the action (and which is really residential premises) at asale held after decree entered in partition action No. 3,747. The saletook place on 16th October 1957 ; it was confirmed on 10th December1958 ; and the certificate of sale was issued by the court on 23rd September1959. It is common ground between the parties that the title of theplaintiff to the premises cannot relate back to any date anterior to23rd September 1959.
The action was filed on 9th August 1960 against the 1st defendantalleging that he had been the tenant of these premises even prior to thedate of sale and had failed to recognise the plaintiff as his land-lord although he had been requested to do so. What was claimed in theaction was a declaration of title to the premises as against the 1st defen-dant, ejectment and damages as from the date of action. The 1st defen-dant filed answer denying any request by the plaintiff after the date of thecertificate of sale to attorn to him in respect of the tenancy and allegingthat his landlord was one Sanoon to whom rent was being paid. Afterthis answer had been filed the 1st defendant died on 30th June 1961, andhis widow and children, the 2nd to the 4th defendants (the respondents tothis appeal) were substituted in his place. In the answer filed by themafter their substitution, in addition to the defence disclosed in the answerfiled by the deceased 1st defendant, they took up the position that the2nd defendant gave to the plaintiff notice in terms of section 18 of theBent Restriction Act of 1948 and is therefore the tenant of the premises.There is no dispute that the Rent Restriction Act applies to thesepremises.
After trial, the learned District Judge granted a declaration that theplaintiff is entitled to the premises and an order for the payment by wayof damages of a sum of Rs. 2,273-75 which sum is equivalent to the autho-rised rent of the premises (Rs. 107/- per mensem) for the period 23rdSeptember 1959 to 30th June 1961, but he refused to order ejectment ofthe present respondents. He held also that, as title dates from the issueof the certificate of sale, the plaintiff was not entitled to request paymentof rent from a time anterior thereto and, as there was no request by theplaintiff to the 1st defendant after the date of the issue of such certificateto attorn as tenant, that the 1st defendant was not in wrongfulpossession.
Relying on certain dicta contained in the judgment of this Court inCinemas Ltd. v. Ceylon Theatres Ltd.1, it was contended on behalf of theappellant that the purchaser under a decree for sale entered in proceedingsunder the Partition Act, No. 16 of 1951, gets title free of all encumbrances,and that the effect of the judgment is that the status of the various inter-ests that are not within the definition of “ encumbrance ” in Section 48
of the Act is no different from the status of those within that definition.It does not become necessary to examine this contention unless the certi-ficate of sale with which we are concerned upon this appeal is one issued
1 (1965) 61 N. L. R. 97.
T. 8. FERNANDO, J.—Irene Fernando v. Sybil de Silva
331
after a sale pursuant to a decree entered in proceedings contemplated bythe Partition Act. Although P 12, the certificate of sale, contains a recitalthat the court ordered a sale under the Act, and even granting that thecourt intended to make such an order, learned counsel for the respondentshas argued that, as this partition action was filed so long ago as 1944, itwas not competent for the court to have made such an order. He hasrelied on the definition of “ partition action ” contained in section 83 (1)of Act No. 16 of 1951 and on section 6 (3) (c) of the Interpretation Ordin-ance. “ Partition action ” is defined as meaning “ an action institutedunder this Act ” and must, ordinarily at any rate, exclude actions underthe Partition Ordinance. The relevant provision of the InterpretationOrdinance permits an action such as this partition action which wasponding or incompleted when the repealing Partition Act came intooperation to be carried on and completed as if there had been no suchrepeal. This provision gives an option to continue a pending action as ifthe repealed law was in existence but is no authority for a continuationof the pending action under the provisions of the new Act. Mr. Perera,for the appellant, sought to avoid the effect of this provision by suggestingthat the Partition Act only affected procedure but, having regard tocertain material differences between the Act and the Ordinance, we do notfind ourselves able to agree that the suggestion is a, sound one. Therefore,notwithstanding the recital in the certificate of sale P12 and certainreferences to the Act in the record of the partition action, the certificate ofsale which is the title of the plaintiff cannot be said to be one issued underthe Act. In this situation the question does arise whether PI 2 is thereforea valid certificate of sale at all, but counsel for the respondents expressly'stated that he does not wish to put forward at this stage any contention ofthat nature as certain issues which raised such a contention were expresslywithdrawn by the respondents at the trial.
If this appeal has now, therefore, to be decided as if the certificate ofsale is one issued under the Ordinance, the respondents are entitled to thebenefit of the decision in the case of Britto v. JJeevaligala 1 that thestatutory protection conferred on the tenant by section 13 of the RentRestriction Act is not extinguished either by the decree for sale or by thecertificate of sale. Mr. Perera, for the appellant, questioned the correctnessof this decision and suggested for our reconsideration at this stage whetherthe dictum of Pulle J. in Ueenaligala v. Bird 2 that the certificate of salehad the effect of terminating the relationship of landlord and tenant andof constituting the purchaser an independent title holder to whom therestriction contained in section 13 of the Rent Restriction Act could notapply because the certificate conferred a title which is not subject to thetenancy agreement does not express the correct position in law. As tothis we must observe that the Court in Britto v. Heenatigala (supra)expressly purported to examine this question afresh, and over ten yearshave elapsed since that decision. Moreover, we should be reluctant tofavour an interpretation of the law which could have the effect ofrendering nugatory an important provision of the Rent Restriction Act.
» (1956) 51 N. L. It. 027.* (1954) 55 N. L. R. at 280.
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Piyadasa v. Piyaatna
The District Judge has, in my opinion, reached a correct decision and Iwould dismiss this appeal with costs.
Siva Suframaniam, J.—I agree.
Samebawickbame, J.—I agree.
Appeal dismissed.