068-NLR-NLR-V-53-ZACKARIYA-et-al.-Appellant-and-BENEDICT-Respondent.pdf
SWAN J.—Zackariya c. Benedict
811
I960
Present : Swan J. •
ZACKARIYA et al., Appellants, and BENEDICT, RespondentS. C. 62—C. B. Colombo, 19,101
Landlord and tenant—Transfer of leased premises—Option of tenant to claim cancella-tion of the lease.%
When a landlord sells or donates leased premises it is open to the tenant toelect whether or not he should continue as tenant of the new landlord.
.AlPPEAL from a judgment of the Court of Requests, Colombo.
M. H. A. Azeez, for the plaintiffs appellants.
J.N. David, for the defendant respondent.
Out. adv. vult-
September 18, 1950. Swan J.—
The appellants sued the respondent for rent and ejectment in respectof premises No. 3, Rajasinghe Road, Wellawatte. The respondent deniedtenancy under the appellants. After trial the action was dismissed withcosts.
The respondent had on January 22, 1948, taken these premises onrent from one I. L. M. Ahamed. He paid Ahamed on that day a sumof Rs. 1,000 in advance and obtained receipt D4 in which it is statedthat the monthly rent would be deducted from .the advance.
On April 13,1948, Ahamed gifted the premises by PI to the
plaintiffs. As there was an error in the description of the property a deedof rectification was written on May 3, 1948—see P2. Ahamed, .throughhis proctor Mr. S. D. M. Burhan, gave the defendant notice of the gift bylei ter D1 dated June 19, 1948, and requested the defendant to pay rentto the donees as from April 1," 1948. This letter contains the followingreference to the sum of Rs. 1,000 paid by the defendant to Ahamed: —
“ As regards the advance you have paid to my client, Mr. Ahamed,I request you to settle the same with Messrs. Zackariya and Fuard.”Apparently the defendant could not settle this very vital question withthe plaintiffs because the evidence clearly proves that, not only did herefuse to acknowledge them as his landlords but even went to the extent
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SWAN J.—Zaekanya t>. Benedict
of inquiring about the validity of the deed of gift (see PS) and, whenthey, approached him for some money, gave them two sums of Rs. 40each not as rent hut as loans. In these circumstances the learned Com-missioner held that the plaintiffs could not have and maintain this actionagainst the defendant.
It was argued by learned counsel for the appellants that upon theexecution of the deed of gift the right of Ahamed as landlord passed tothe plaintiffs and that the tenant was bound to accept the donees as hislandlords and to pay them rent.
Ordinarily a purchaser of property “ steps into the shoes of the landlordand receives all his rights and becomes subject to all his obligations, sothat he is bound to the tenant and tha tenant is bound to him in the rela-tion of landlord and tenant ”—see Wille on Landlord and Tenant, 1910Edition, p. 221. That this principle has been accepted by our Courtswill be seen from Silva v. Silva 1 and Wijeainghe v. Charles 2.
By a parity of reasoning the same principle might be applied as betweena donee from the landlord and the tenant in occupation. But our Courtshave recognised an exception to the rule. In Silva v. Silva 1 Pereira J.queried whether the tenant was bound to remain the tenant of the newlandlord or whether he could exercise the option of claiming a cancella-tion of the lease. That query was answered by de Sampayo J. inWijesinghe v. Charles 2. He accepted the right of the tenant to exercisethe option.
The question that arose for decision in Wijesinghe v. Charles 2 waswhether a vendor could sue his tenant in ejectment after the sale. Afterdiscussing the law on the subject de Sampayo J. said—“ if then the tenanthas the privilege of choice I do not see any reason why the purchasershould not have the corresponding privilege. The purchaser havingthen the two courses above-mentioned open to him it would be a questionof fact in a particular case whether he has elected to take the propertywith the vendors tenant in occupation. If he has not adopted thatcourse and insists on the vendor giving him free and exclusive possessionit seems to me to follow that the contract of tenancy as "between thevendor and the tenant continues, and that the vendor can take theordinary steps to eject him and recover damages.”
In this case, as the defendant refused to comply with Ahamed’s requestcontained in Dl, it might be open to Ahamed, subject to the provisionsof the Rent Restriction Act, to give the defendant notice and sue him inejectment. It is also conceivable that the plaintiffs might bring an actionfor recovery of possession on the strength of their title. In any eventthis action was misconceived and was rightly dismissed. The appealfoils and is dismissed with costs.
Appeal, dismissed.
• (1813) 16 N. L. R. 31S.
(1915) 18 N. L. R. 168.