PERERA v. CASIM

086-NLR-NLR-V-05-PERERA-v.-CASIM.pdf


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PERERA v. CASIM.
1902.
January IS.
D. C., Colombo, 12,644.
Lease—Claim to possession as between a lessee under a husband and a lessee undera wife—Title of purchaser in execution, at a Fiscal's sale, of husband's and'* wife's interest—Agreement between purchaser and husband to annul saleand hold as tenant under husband.
P, claiming possession of a land as a lessee under Mr. K, sued C in theCourt of Bequests for rent, and his action was dismissed for want ofproof that C was P's tenant. Thereupon P sued C in the District Courtfor a declaration that he (P) was entitled to possession for five yearsfrom August, 1698, as lessee under Mr. £.
Held, that C, who was a tenant under Mrs. K. was entitled to continuein possession so long as P was unable to prove a better title than C’s.
Held, further, that, as C's father had bought at a Fiscal’s sale all the lifeinterest ofMr. and Mrs. £ in the propertyin 1883,thetitlewas in C's
father andhis heirs,notwithstanding that a notarialagreement had been
made soonafter theFiscal's sale betweenMr. KandC'sfather that
the latter should re-convey to the former the property sold by the Fiscaland consider himself a tenant of Mr. £, and notwithstanding that therelation, oflandlordand tenant subsistedbetweenKandC's father
from 1883 to 1893, and between £ and C himself from 1893 to 1stAugust, 1898, when Mr. £'s lease to plaintiff and Mrs. £'s lease todefendant began.
HE plaintiff sued the defendant for a declaration that he was
X entitled to the possession of a house in Kayman’s gate.,Colombo, for five years from August, 1898. as a lessee under oneHr. Kelaart.
It appeared that the property originallybelongedtoMiss
.Mortier, who married Kelaart in 1871; that under a writ of execu-tion against him, the Fiscal sold the house in 1883 by auction todefendant’s father, who, however, agreed with Mr. Kelaart to treatthe sale as of no effect, and to consider himself a tenant underKelaart; that in pursuance of this agreement a notarial deed wasdrawn up, by which Kelaart let the property to the defendant’sfather for nine years and nine months as from October, 1883; thatwhen this lease expired, Kelaart let the house for five years,commencing, from8thAugust, 1893, tothedefendant;in1894,
Kelaart leased it to plaintiff with effect from 1st August, 1898,which was thedayafter the expiryofthe ‘ leaseto the
commencing from-8thAugust, 1898, tothedefendant;in1894,
Mrs. Kelaart leased it to the defendant with effect from 1stAugust, 1898.
T
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The Additional District Judge (.Mr. Felix Dias) dismissedJanuary IS. (foe plaintiff’s action by the following judgment: —
“ The defendant is in possession, and has been so for manyyears. The plaintiff sued the defendant some time ago in theCourt of Bequests to recover rent from him as his tenant fromAugust, 1898, but it was held in that case that the defendant wasnot the plaintiff’s tenant. That decree is still in force, andthe plaintiff cannot re-open the question of the defendant stenancy, but must stand or fall by the superiority of his owntitle.
“It is admitted on both sides that the house was the property
of Mrs. Charles Kelaart for life, with a valid fidei cowmissum in
favour of her children. Mrs. Kelaart is still alive, but her
husband died in 1895. In .1803 the defendant took a lease of the
premises from Mr. Kelaart for five years ending 31st July, 1898.
and before that lease expired Mr. Kelaart gave the present lease
in 1894 to the plaintiff with effect from the 1st August, 1898.
The defendant now has a fresh lease,, executed by Mrs. Kelaart in
December, 1898, but with effect from 1st August, 1898. The
plaintiff's contention is that the defendant, having admitted the
title of both Mr. and Mrs. Kelaart by taking leases from them,
is now estopped from denying their title, and, inasmuch as the
husband in his lifetime had the power to deal with all his wife’s
property (which as regards this house consisted . of her life
interest in it), his lease to the plaintiff for the five years must be
considered good, provided Mrs. Kelaart lives so Ions:.
•
“ If the question rested merely on the strength of CharlesKelaart s lease to the plaintiff in 1894 as against the wife’s leaseto defendant in 1898, after the death of her husband, there can beno doubt that the earlier lease ought to be held to prevail. Butthat is not the whole case. The contest is not between a landlordand tenant, nor between persons claiming under one and the samelandlord. The status of Mrs. Kelaart was completely alteredafter the death of her husband, and her position when she gaveher lease to the defendant in 1898 ban . in no way. be said to havebeen identical with that of her husband. Under the circumstancesit appears to me that the doctrine of estoppel will not apply. Itwas quite competent for Mrs. Kelaart herself to question thevalidity of titles derived from her husband, and so too is thedefendant entitled to do the same. He is in possession; and hasbeen decreed by a competent Court not to occupy the position ofa tenant under the plaintiff, and so he can remain in possessionand call on plaintiff to strictly prove his title. And it mattersnot. for the purposes of this case whether he is ft lessee undei
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Mrs. Kelaart or any one else, or is a hostile possessor on his ownaccount.
“ In my opinion the plaintiff has completely failed to prove histitle, for it cannot be denied that in 1894. the date of his lease, hislessor, Mr. Kelaart, had no title. In October, 1888, his wholeinterest (i.e.. the whole of his wife’s life estate) was sold up bythe Fiscal under a writ, and conveyed by a valid transfer inNc/vember, 1888, to one Tamby Carina, the defendant’s father.That transfer has been duly registered, and is still in force.It has been urged that that transfer was superseded by a notarialdeed P 4 made in September, 1883, between Mr. Kelaart and TambyCarim. but I cannot see how that deed can be said to have annulledthe Fiscal’s transfer to the purchaser. At the date of P 4 theFiscal had not even conveyed the property to Tamby Carim. andthe deed did not purport to re-eonvey to Kelaart the property thathad been sold, but only contains a promise for n future re-convey-ance. No such re-conveyance appears to have been made, and so Imust hold that the title was in Tainby Carim and his heirs from thedate of the Fiscal’s transfer.
“ Hence the plaintiff’s title under Charles Kelaart is worthlessand his action must be dismissed with costs ”,
Plaintiff appealed.
H. -Jayaw-ardene. for appellant.—The Fiscal’s transfer wassuperseded by the deed of lease for nine years odd to defendant’sfather, who surrendered his rights as owner and acknowledgedhimself tenant under Mr. and Mrs. Kelaart. As soon as therelation of laxidlord and tenant was thus established, the doctrineof estoppel comes into operation. Defendant’s father did notdispute the title of the Kelaarts. It is true that the Fiscal'sconveyance to him was made after the deed of lease, but theFiscal's conveyance must be treated as enuring to the benefit of.the Kelaarts. And defendant himself having taken a. lease frontMrs. Kelaart in 1398 is estopped from denying either her title orher husband's title to the laud, as he had power to deal with allhis wife’s interest in the property.
No appearance for respondent.
15th January, 1902. Bonser. C.J.—I see no reason to interferewith this judgment. I think it is right in law.
1902.
January IS.
Wrrdt. J.—-I concur.