THE BISHOP OF CHILAW
COURT OF APPEAL.
ABEYWARDENA. J. AND PERERA, J.
M.C. COLOMBO (CIVIL) 31/GE.
Landlord and tenant – Premises let in 1964 later made subject of trust – Death oflandlord-Trustee’s right to sue for ejectment on grounds of arrears of rent andreasonable requirement-Only issue at trial reasonable requirement-Scope oftrust-S.22(7) of the Rent Act.
The Bishop of Chiiaw being a corporate body is not entitled in terms of s. 22 (7) of theRent Act to sue the tenant in ejectment on the ground of reasonable requirement for'occupation as a residence for the landlord or any member of the family of the landlordor for the purpose of the trade, business, profession, vocation or employment of thelandlord' unless the ownership of such premises was acquired by the landlord on a dateprior to the specified date or where the ownership of such premises was acquired byinheritance or gift from a parent or spouse who had acquired ownership of thepremises, prior to the specified date. The Bishop had acquired the premises many yearssubsequent to the going into occupation of the tenant and that upon a bequest by a lastwill. The testator was neither a parent or spouse of the Bishop.
A claim in reasonable requirement will fail where the landlord has no beneficialinterest in the premises. Further the trust was solely for the support of St. Joseph'sHome for the Aged, Lansigama. Marawila and not for what the premises wereproposed to be used, namely, a community centre, home for orphan girls, nurseryschool and sales outlet for articles produced by the orphan girls.
Case referred to:
Parkerv. Rosenberg –  KB 371.
APPEAL from judgment of the Magistrate's Court of Colombo (Civil).
P. A. D. Samarasekera, P.C. with A. L. M. de Silva for respondent-appellant.K. Kanag-lswaran for petitioner-respondent.
Cur. adv. vult.
January 15. 1987.
The petitioner-respondent, the Bishop of Chilaw, a corporation dulyincorporated by the Roman Catholic Archbishops and BishopsOrdinance, in his capacity as the executor, of the Last Will andTestament of the owner of a residential premises, instituted an actionagainst the respondent-appellant seeking ejectment of therespondent-appellant from the premises of which the respondent wasthe tenant.
The premises, the subject-matter of the action, came within theprovisions of the Rent Act and is a residential premises, the standardrent of which exceeds Rs. 100 per month.
The appellant came into occupation of the premises as a tenantunder the testator who was then the owner, in 1964. When therespondent was a tenant the premises was bequeathed by the thenlandlord by his Last Will to the respondent, subject to a Trust createdby such Last Will. The landlord testator died in 1971 and the premisesdevolved on the respondent. The appellant has, thereafter attorned tothe respondent and became a tenant of the same premises under therespondent.
The action for ejectment of the appellant from the premises was ontwo grounds, viz. arrears of rent and also that the premises werereasonably required by the respondent for use in connection with theTrust created by the Last Will. The respondent-appellant in his answerstated that the respondent had no legal grounds to file action. Theground regarding the arrears of rent was not put in issue at the trial.The only issue at the trial was the question of reasonable requirement.At the end of the trial, the learned District Judge entered judgment infavour of the respondent. This is an appeal against the order of thelearned District Judge.
According to the Last Will of L. B. Samarawickrame, the premiseswere given and devised "to be solely for the support of St. Joseph'sHome for the Aged at Lansigama, Marawila". In the same Will,another land, Udawela Estate, has been devised to the respondent tobe used "solely for the support of St. Anne's Nursing Home,Marawila". Learned counsel for the appellant submitted that what wasmeant was that the income from the premises in question which was aresidential house had to be used for the support of St. Joseph's Homeas there was an income by way of rent from it. At the trial evidencewas led that the upstair of the premises was occupied by ReverendNuns and that the ground floor was reasonably required by therespondent for a community centre, a home for orphan girls, a nurseryschool, and for a sales point of the articles produced by the orphans inorder to raise funds. Learned counsel for the appellant submitted thatthe establishment of a Home for orphan girls and a nursery school anda sales point in the premises went outside the scope of the object ofthe Trust as these cannot be solely for the support of St. Joseph'sHome. He further submitted that if the respondent was suing theappellant in a representative capacity as an Executor, then he is unableto maintain an action for ejectment of a tenant on the ground ofreasonable requirement. If he is suing as a trustee of a Trust propertyfor the use of beneficiaries he cannot maintain the action on theground of reasonable requirement as the legal estate is only in thetrustee, and the beneficial estate is in others. It was submitted that theaction has to fail, since the respondent has no beneficial interest.
It was also the submission of counsel for the appellant that theaction to eject the appellant on the ground of reasonable requirementis not maintainable in terms of section 22(2) (b) of the Rent Act as thepremises have to, in the opinion of the Court, be reasonably requiredfor occupation as a residence for the landlord or any member of thefamily of the landlord or for the trade, business, profession, orvocation or employment of the landlord. He also contended that theappellant is debarred from maintaining this action in terms of section22(7) of the Rent Act, since the "premises was acquired by thelandlord on a date subsequent to the specified date by inheritance orby gift other than inheritance or gift from a parent or spouse who hadacquired ownership of such premises on a date prior to the specifieddate". He submitted that the premises in suit is residential premisesand the parties have admitted that the standard rent for a monthexceeded Rs. 100. That the action is for ejecting the appellant on theground that the premises are reasonably required for occupation bythe respondent upon the death of the testator in December 1972. Theappellant has been a tenant from 1964 long before that date. Hefurther submitted that the devise of these premises by Last Will is aninheritance and even if it be argued that this is not an inheritance, onthe death of the testator, it certainly is a gift to the Roman Catholic
Bishop of Chilaw, though the property is subject to a trust. Therespondent has acquired title upon the Last Will as a trustee andwhether it be an inheritance or a gift, it is not one acquired by therespondent from a parent or spouse. The appellant has remained inoccupation of the premises after the death of the testator attorningjtenancy to the respondent in 1972 and has paid rent to therespondent as the landlord. He contended that in terms of section£2(7) of the Rent Act, no action for eviction on grounds of reasonablefequirement is available to the respondent.
This action has been filed by the respondent on the basis that theBishop of Chilaw is a corporation sole and the landlord. No action orproceeding for the ejectment of the tenant on the ground ofreasonable requirement can be instituted unless the reasonablerequirement is for any of the objects or purposes for which the body isconstituted. As far as the premises are concerned, the petitioner isalso a trustee and, according to the conditions contained in the LastWill, the premises has "to be used solely for the support of St.Joseph's Home for the Aged, Lansigama, Marawila", whereas thereasonable requirement as pleaded in paragraph 3 of the ConciseStatement is "Church Work", though this may be the object or purposefor which the corporated body has been constituted.
Learned counsel for the respondent submitted that no issues wereraised at the trial regarding the capacity of the respondent to maintainthe action and that the question was whether the respondent wassuing in his representative capacity or as the executor. He contendedthat the proviso of section 22(7) of the Rent Act did not apply to thisaction for the reason that the term 'Landlord' does not include acorporate body and that the legislature did not intend to extend theapplicability of sub-section 7 of section 22 to a body corporate orincorporate and therefore, the respondent was in law entitled to. maintain the action on the ground of reasonable requirement even ifthe purchase, inheritance, or gift has been other than from a parent orspouse. He also submitted that a corporate body cannot inheritproperty and that the term 'landlord' in section 22(7) does not refer toa corporate body and that the acquisition of the premises by therespondent has not been by purchase, inheritance or gift, but in trust.That one can inherit as an heir under a Will and that such an heirshould be a natural person and any inheritance by a person other thanan heir is as a legatee and that an inheritance is a disposition in a Willto a person named the heir.
Learned counsel for the respondent submitted that a corporatebody cannot be an heir and, therefore, has not the legal capacity toinherit by a Will, and that the Bishop of Chilaw has not inherited theproperty of Mr. Samarawickrama in terms of section 22(7) of the RentAct.
The burden of proving reasonable requirement of a premises is onthe landlord who must show that he is acting bona fide and reasonablyin the requirement of the premises and this has to be decided byweighing the hardships caused on either side when an action is filedfor ejectment on this ground. The object of the trust has to be alsoconsidered, taking into consideration the purpose for which thepremises are stated to be required for possession. These are mattersof fact.
A claim in reasonable requirement will fail where the landlord has nobeneficial interest in the premises. It has been held in Parker v.Rosenburg that trustees were precluded from recovering possessionon the ground of reasonable requirement as they had no beneficialinterest in the dwelling house.
If a charitable Trust has been created by the Last Will of the former 'landlord of the appellant, the trustee of this Trust is debarred frommaintaining the action on the ground of reasonable requirement, as heis not possessed of the beneficial interest in the premises. The objectof the Trust is set out clearly in the Last Will as "solely for the support, of St. Joseph's Home for the Aged, Lansigama, Marawila". This is notthe reasonable requirement set out in paragraph 3 of the ConciseStatement of facts of the respondent and, according to the evidenceof Rev. Sister Maria.
An inheritance is one that devolves from a Will resulting in theacquisition of property. An heir is a person who succeeds to theassets of a deceased person according to the testator's wishes by aWill. Such an heir can be any person, even a slave. Church or acorporation, being the person whom the testator has appointed.Anything that devolves from a Will is an inheritance which even acorporate body can inherit. The respondent, a corporate body, hasinherited the premises in question by the Last Will which gifted thepremises to the corporate body, subject to a Trust specifying itsobject.
The appellant has attorned to the respondent as the landlord afterthe death of the testator since the premises have been devolved on
the respondent. The respondent has accepted rent for the premisesfrom the appellant as he was the person for the time being entitled toreceive the rent, thereby becoming the landlord of the premises.
The respondent, being the landlord whether he be executor,trustee, or a corporate body is not in law entitled to maintain an actionfor ejectment of a tenant on the ground of reasonable requirement interms of section 22(2) (b) of the Rent Act, No. 7 of 1972, unless thereasonable requirement is for the occupation as a residence for thelandlord or any member of the family of the landlord or for the purposeof the trade, business, profession or vocation or employment of thelandlord and even if the landlord is a body of persons, corporate orincorporate, shall be deemed to be required for the purpose of the. business of the landlord to carry out the objects or purpose for whichthe body is constituted.
In terms of section 22(7) of the Rent Act, no action or proceedingsfor the ejectment of the tenant, notwithstanding anything in theprovisions of the Act, shall be instituted on the ground of reasonablerequirement for occupation as a residence for the landlord or anymember of the family of the landlord or for the purposes of the trade,business, profession, vocation or employment of the landlord, unlessthe ownership of such premises was acquired by the landlord on adate prior to the specified date or where the ownership of suchpremises was acquired by inheritance or gift, unless the inheritance orgift by which such premises was acquired was from a parent orspouse who had acquired ownership of the premises, prior to thespecified date.
In the instant case the ownership of the premises was acquiredmany years subsequent to the date the appellant became the tenantand the mode of acquisition of the ownership was by the Last Will ofMr. Samarawickrama who bequeathed it to the respondent. Thetestator was neither a parent nor the spouse of the respondent.
I am, therefore, of the opinion that the respondent was not entitledto maintain the action to evict the appellant from the premises on theground of reasonable requirement.
The order of the learned District Judge is set aside and the appeal isallowed. The appellant is entitled to Rs. 315 as costs.
PERERA, J. – I agree.
WIJENATHAN v. THE BISHOP OF CHILAW