MARALIYA v. FERNANDO

011-NLR-NLR-V-24-MARALIYA-v.-FERNANDO.pdf


( 42
1922.
Present; Bertram C.J. and' Porter J7MARAX.IYA v. PERN ANDO.
f
429—D.Q. Ratnapura, 3,538.
■ ' A *
Lease . of ground ■ shire of- plumbago lands—‘■Is delivery of possessionnecessary ?—Vacant possession—Is there a -difference betweenlease .and sate-—Lease of a chose in action—Lease of rents oftenements—Leaseof taxes andtolls—Actioconducti—When
damages may be recovered, from, lessor for not delivering possession—Remission of rent or damages.
A lessor must give .possession .of – the thing let to the lessee. Inthe case of a lease of a chose in action, the requirement as todelivery of possession is fulfilled by the execution of the assignment)for example, in the case of theleaseof the~rents of a line of tenements,
' a formal attornment frojn each tenant to the lessee is not necessary.
But in addition to the right to be put into possession the lessee ~isalso entitled to “quiet enjoyment.'' Consequentlytheactio
conducti lies when the'lessee is not permitted to enjoythething
leased. This action lies whether the obstruction to the enjoy-ment of the property is due to any act of the lessor or to the actofa third party, andnotwithstanding the fact thatthelessor
acted in good faitbr
“ If your tenant is prevented from enjoying the farm leased tohim, either by you or some one whom you can restrain, you mustpay him damages in which his^ anticipated profits may be included.If, however, he is so excluded by some one whom yon cannot restrain,-7orby reason' of vis major, you are only responsible tohimfor a
remission of rent."
Where the lessee Of the ground share of certain plumbago landswas prevented from. getting his ground share by reason of certainantecedent contracts, ‘ the lessor had entered into with the minors—
Held, that he was entitled to recover damages.
1982.
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fjl HE facts are set out in the judgment.
Pereira, K.C. (with him Samarawickretne,, Batuivantudawa, H.Perera, and H. C. Fonxe'ka)t ioT appellant. ..
Maraliya 9.y Fernando
JS. W, Jayawardene (withhim D. B. Jdyatileke and Croos-Dabrera),fpr respondent.
October 5, 1922. Bertram C.J.—•
. In this case plaintiff is a trustee of a vihare, and his claim is feararrears of rent due under a lease of the temple's ground share ofcertain plumbago lands. The learned District Judge has so fullyand lucidly set out the complicated history of the transaction, thatI need only refer to thefacts very briefly. The lease, was executedon September 6, 1912.' ..The defendant is the lessee. Accordingto his own account of the matter* when he. took. measures to preparefor collecting the ground share leased to him, he found that he wasprecluded from doing' so by: certain arrangements which his lessorhas made with the persons mining on the property, inconsistent withhis own rights under the lease. These persons were four in number:
Jayasinghe Bandara, Mathias Bandara, Dharmawardene Bandara,and Abraham Bandnra. There had been certain negotiationsbetween these persons, the temple trustee, and. other persons claimingan interest in the land, and at this stage the position appears to havebeen as follows: An agreement (dated October 9, 1910) had beencome to with Jayasinghe, Mathias, and Dharmawardene Bandara,under which these persons, on certain conditions precedent beingcomplied with, one of which was the payment of a sum of Bs. 8,750each, were to receive a mining lease of the temple lands. But itwas expressly provided that the payment of this sum of moneyshould be in full and final settlement, and discharge of all claimswhich the trustee might have .in respect of plumbago which thethree persons might excavate between the date of the agreement(October 9, 1910) and''the. execution^of the promised lease. Theposition of the other Bandara, -Abraharfi, was less clear, and, evenup to the end of the argumenttinsSCourt, it remained imperfectly
explained. The result, howeveri as.. the case was presented to us,was this,: That defendant, the- lessee of the ground share, foundhimself for some time unable to collect the rent leased to him,because his lesser had 1 thus precluded himself from recovering anyground share for plumbago mined by Jayasinghe, Dharmawardene,and Mathias ~'Bandara until the execution of the promised lease.
The promised .lease was signed by various parties interested, atdifferent dates extending from March 28 to some time in June, 1913,£
but the plaintiff states that he could not get in any Tent until
September, 1913. He was further prevented from recovering therent due to him torn Abraham, by the fact that Abraham had
2
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1922.
Bbrtrau
C.J.
Maraliyu v.Fernando
disputed his right to collect it. In the~result he did not secure theenjoymeut of three-fourths of the rent leased to him from September3, 1912, to some time in September, 1913, and of the remainingquarter from September 6, 1913, to some date in September, 1916.As a result of failing to secure what his lessor had bargained to givehim, he sustained, so he alleges, ve:-y heavy losses in the way ofanticipated profits, and he claims these profits in reconvention.
The case was heard before the learned District- Judge on March 3and 24 and April 27 and 28, 1921. The judgment, however, wasnot delivered till August 80, over four months after the conclusionof the argument. The learned Judge holds, as a matter of law,that the defendant was not legally entitled to collect any groundshare from the four persons referred to until the execution of thepromised lease. “ Until such time the Bandaras had an absoluteright to everything they could (get) out of the ' land without thepayment of ground rent. ” With regard to the facts he does notmake any explicit finding, but he implies that in his opinion noground rent was paid to the defendant until the execution of thelease -referred to ; but he appears to hold that the plantifE was underno obligation to give to the defendant anything more than he actuallyreceived. He suggests that it is reasonable to think that thedefendant who engaged a proctcr to look into title must haveknown of the deed by which the plaintiff disenabled himself fromcollecting the ground share until the.y.execution of the lease. Thissupposed knowledge of the defendant is a conjecture, and not basedupon any evidence. At any rate the learned District Judge does notappear to suggest that this supposed knowledge of the defendantaffects the legal position. He holds upon the interpretation of thedeed that “ there is nothing in this deed by which the lessors under-took to recover the dues for defendant, or to compensate him forany deficit or refusal on the part of the diggers to pay the one-ninthor one-tenth, ” i.e., the ground share.
The learned Judge does make one finding of fact, the effect of whichis not clear to me. He says: " I find that Mathias Bandara has beenmost punctilious in paying his dues. ” Inasmuch as the learnedJudge holds elsewhere that nothing was due from Mathias Bandarauntil the execution of the lease, I take it that liis finding must beinterpreted to mean that Mathias Bandara paid everything that wasdue after the execution of the lease. The learned Judge gavejudgment for the plaintiff as prayed for. He adds : “I considerthat defendant had been under a misapprehension, for which hecannot blame the plaintiff, at the time he took the lease, but he hadfound out his real legal position before he filed this answer. So I,with some reluctance, order him to pay the plaintiff’s costs. ” Thelearned Judge clearly means that he considers the defendant waswrong m law, that he was not entitled to collect any ground sharefor the periods referred to, that he had not in fact succeeded in
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collecting it, and that the plaintiff was not responsible for the lossdefendant had so sustained.
In this Court the argument took a somewhat singular course.Mr. H. J. C. Pereira accepted what must be taken to be the learnedJudge’s finding of fact, and also his principal conclusions of law,namely, that the defendant was precluded from collecting the partof the ground share leased to him through the antecedent arrange-ments made by tbe plaintiff ; but on this finding, and on this con*elusion, he argues that- he is in law entitled to judgment, inasmuch(so he puts his case) as the- lessor had not fulfilled -his obligations toput the lessee into possession. Mr. E. W. Jayawardene, on the otherband, for the respondent, contests Mr. Pereira’s legal argument,and says that as regards putting into possession, the plaintiff had doneall that he was required to do. This was a question of law whichthe learned District Judge had left wholly unconsidered. On theother hand, Mr. Jayawardene traverses the finding of fact whichMr. Pereira had accepted, and insists that on the true view of theevidence the defendant had received the whole of the ground sharefrom the commencement of the lease in his favour, and that he hadsustained no loss at all.
Mr. Jayawardene is not without some apparent material forwhat appears to be on the face of it a surprising proposition. Herelies principally on what has the appearance of being a formaladmission, and is as follows :—
Mr. Jayawardene reinforces these admissions by the evidenceof Mathias. Mathias appears to be a somewhat singular character.-Apparently out of nervousness at having to give evidence before thelearned Judge, he fortified himself (as the learned Judge himselfobserves, “ quite unnecessarily ”) with what Mathias himselfrefers to as “ two or three drinks. ” His evidence accordingly at onestage of the case became incoherent, and the learned Judge finedhim for a contempt of Court (a fine which we have remitted on hismaking a suitable expression of regret to the Judge in Chambers)But- the learned Judge, in his subsequent judgment, passes awarm encomium on Mathias, saying that he was much impressedwith his sturdy honesty, and that his evidence was quite convincing.Mathias, in his evidence says: “ I gave the ground share to the Templeeven before I got the lease as a matter of charity. I gave the groundshare in 1912. ” He produces a letter of January 13, 1913 (P 20)from defendant, in which defendant authorizes him to pay theground share to one De Mel, and to take receipts from De Mel ashe had done before. Further he produces two receipts from thedefendant for the delivery of certain quantities of plumbago.
This evidence has an imposing appearance, but, in my ownopinion, if it be carefully examined, there is very little in it.
1922,
Bbrtbak
C.J.
Maraliya v.Fernando
( 46 )
1922.Further, it is absolutely impossible to believe that if the plaintiff
Bbbtrah hiad 'ln fact received the ground share from the Bandaras, heO.J.could possibly have gone through the elaborate comedy, which
Mondiya v uP°n this hypothesis he must have been playing. He writesFernando repeated letters of complaint, he makes offers of settlement, hepresses his. complaint before the Committee personally, he produceshis books in the Court. The whole of this is too elaborately foolisha proceeding, to attribute to him.
With regard- to Mathias it is most unfortunate that these' factswere not adequately investigated in the Court below. The tworeceipts, on examination, are found to relate to the aground sharedue since * the;-, execution of the sublease. Moreover, they referonly to a single pit, and no claim is made by the plaintiff in respectof that pit. P 20 is certainly a surprising document, but it-wasnever put to the defendant in cross-examination. It appears to havebeen forgotten until, during the argument, it occurred to the Judgeto put it to the defendant, and to ask him what he had to say aboutit. Defendant, who seems himself to have been surprised at thedocument, says : “ I admit this letter. I cannot explain this withoutconsulting De Mel. ”
A claim of this sort is, in my opinion, not one that can be disposedof by evading the main Issue and by the production of irrelevantadmissions in legal documents, or by the piecemeal production ofdetached .papers in this unusual manner. The points to which Xhave. just referred may, no doubt, be relevant incidentally to whatought to have been. the main question of fact in the case. Un-fortunately, no Issue was framed as to whether in fact the plaintiffdid or did not collect tlie ground share during the period underdiscussion.. It: would be impossible in my opinion at this stage of thecase to allow such an issue to be determined by these indirect andfragmentary circumstances, more particularly as the conclusion weare asked to draw from them is in direct conflict with what must betaken to be the learned District Judge’s finding of fact. It is, inmy opinion, best that there should be a regular and formal trialof this issue.
But if the position as to the facts is unsatisfactory, the positionof the law cannot be described as less so. The real legal questionin the case turns out not to have been considered at all. Mr..Pereira based his whole argument on the supposed obligation of alessor to give his lessee vacant possession. Mr. Jayawardene. whodoes not dispute this supposed obligation of a lessor, contends withvery great force that it could have no application to the lease of achose in action like the present lease. He maintained, citingreferences from both Voet and Sande, that the assignee of a chosein action can only be put into possession by being vested with hisassignor’s rights, and that in the absence of any special covenantthe assignee takes the risk of not being able to enforce the right
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assigned* t6-*him. But -i£ the legal position be further examined, it 1928,
will be found that no question of vacant possession arises, nor is
thos any' occasion to consider any supposed difference in this respect OJ.
between a $ease of land and a lease, of a. chofie in action. The para-
graph in V^oet (19, 1, 29) explaining the nature' of vacant possession, Fernando
to which *1 drew attention in the course of the argument, and which
was there discussed, relates not to leases, but to-sales. There is no-1
doubt a special obligation in' the case of a ^ase to put the – lessee-
in possession, but it is not the same as the Vobligation tp: give-vacuo
pofseasio in the case of a sale./Tt^iyas settled in Wijenaike v. Silva 1
that it is the duty of the lessor to give tangible and effective
possession of the thing leased, and that the mere delivery-ofa deed
or the giving of symbolical' possession will not do. That decision
was based on the authority of Vanderlinden (2, 12, 2): —
“ From the contract of Jetting and hiring the following obligationsarise. On the side of the.lessor: to give the lessee possessionof the thing let at the time fixed, in order that he may havethe use of it*.”
We asked Mr. Pereira in what way the lessee of a chose in actionas, for example, the lessee of the rents of a line of tenements, could beput into possession of the rights leased to him except by completionof the assignment of those rights.. He suggested that it was the'-obligation of the lessor in such cases to procure a formal attornmentfiom each tenant to the lessee. There,. is no authority for thisproposition, which is wholly new, and is inconsistent with thenature of contracts of this description . which, are designed to relievethe lessor of the trouble of dealing, with . his own tenants. If itwere necessary to * decide the .point, with regard to .the threeBandaras, I should be of opinion that in the case of a lease, of achose in action the requirement cited in Vanderlinden was fulfilledby the execution of the assignment. But it is not this obligationof the lessor which is really here in question. The really relevantobligation is that next stated by Vanderlinden, namely—
" For quiet enjoyment of the thing let, both on the part of thelessor and others/’
The whole subject will be found fully discussed in Pothier'sCommentary on the Pandects 19, 2,1.Itis there laid downand
explained by reference to the Digestinthefullest manner thatthe
actio conducti lies when the lesseeisnotpermitted to enjoythe
thing leased. This action lies whether the obstruction to theenjoyment is due to any act of the lessor or to that of a third party,and notwithstanding the fact that the lessor acted in good faith.
1 {1906) 3 Bat. 36.
( 48 )
1982.
Bkhtbam
CJ.
Maraliyn v.Fernando
In some cases the lessee is entitled to damages; in others only to aremission of the rent. See Digest 19, 2, 33.
“ Nam et si colonus tuus fundo frui a te aut ab eo prohibefcur,quem tu prohibere ne id faciat possis, tantum ei praestabis,quunti eius interfnerit frui, in quo etiam lucrum eiuscontiuebitur :sin vero ab eo interpellabitur, quem tu
prohibere propter vim maiorem aut potentiam eius nonpoteris, nihil amplius ei qnam mercedem remittere autreddere debebis. ”
That is to say, if your tenant is prevented from enjoying the farmleased to him, either by you or some one whom you can restrain,you must pay him damages, in which his anticipated profits may beincluded. If, however, he is so excluded by some one whom youcannot restrain or by reason of vis major, you are only responsibleto him for a remission of rent. It seems clear on this principle thatin a case like the pi’esent where the lessee is said to have beenprevented from enjoying the thing leased through the antecedentarrangements of his lessor, he can recover damages.
This then is the real legal question to be determined so far as relatesto those whom I have described as the three Bandaras. Withregard to Abraham Bandara we do not even now know what hisposition was. We are told that he took up the position that he wasmining under u lease from the incumbent of the temple, prior to theappointment of a trustee under the Bxiddhist- Temporalities Ordi-nance, and that he claimed to be responsible to this incumbent alone.If this was the position that he took up; it was an untenable one,but from papers which came to light, at the close of the argument, itseems possible that his position has not been fully appreciated.This is a point for further inquiry. If it, indeed, is the fact that hetook up this untenable position, then it seems to me that it was forthe defendant to enforce his rights by suit. From a study of theparagraphs in which Voefr describes the effect of a cession of a chosein action (see Yoet 18, 4, 14 and 15), from the physical impossibilityof putting a lessee into possession of such a right, and from ahabsence of.auy reference to any obligation of this, nature in any ofthe textbooks, I am of opinion, as at present advised, that theassignee of the lease of a chose in action cannot claim any furtherassurance in addition to his document of title. It is everywhererecognized that taxes may be the subject of a lease. See Vander-linden 1, 11, 7:
.
“ The requisite essentials to this contract are a thing capable ofbeing let on hire,' whether movable or immovable,corporeal or incorporeal, as the farming of tolls and taxes.’*
It would be preposterous to suppose that under a lease of tollsor taxes there is an obligation on the part of a lessor to procure aformal admission for the benefit of his lessee from every toll or
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tax-payer. It is for the lessee, if necessary, to enforce his rightsby suit.
As I have before intimated, the facts of the case still remain inobscurity. Inasmuch as- the right of the Bandams to be excusedfrom payment of ground share depends on two conditions precedent:(I) the entering up of a judgment in an action and (2) the paymentof a sum of money; it might have been expected that it would eitherhave been proved or formally admitted that these conditions werefulfilled. But there are no traces of this in the record. The factswith regard to Abraham are even, more obscure. The date fromwhich the exemption of the Bandaras from their obligations . ceasedhas not been defined. It seems to have been thought sufficient toaccept defendant’s statement that he did not succeed in getting inhis ground share until September, 1913. Tn my opinion the decreeshould be formally set aside, and the case should go hack for furtherinquiry, so that the fapts may be more fully and specificallyinvestigated, and that they may be then dealt with in the light of thelegal principles above explained. With regard to the costs, in myopinion, the appellant must pay respondent’s costs of appeal; costsin the Court below to be costs in the cause. It is mainly throughthe fault of the appellant, or his advisors, that it proves impossible topresent the appeal before us in a manner that was at all satisfactory.Up to the last neither the defendant fior those who appeared for himon the appeal could give any explanation of the admissions in thepleadings and affidavit above referred to or of P 20. The apparentsignificance of these documents ought to have been realized by thoseappearing for him, and his explanation ought to have been secured.In the same way he was responsible for the obscurity which stillremains as to the position of Abraham. For these reasons, I think,,he should pay the costs of the appeal.
I would further add that in my opinion this is a ca.se that oughtto be settled. If plaintiff’s claim is to be accepted, he has sustainedvery considerable losses. On the other hand, he very generously,
■ at one stage of the,story, offered to settle his claim for a remission ofrent. It is hardly likely that after this prolonged litigation he.would consent to the same terms now. But if his claim against thetemple is sustained, it can hardly be enforced without seriouslyimpairing the temple’s endowments. The dispute, arises out"of veryspecial conditions which are now a thing of the past, namely; theboom in plumbago mining during the war. As I have said, it seemsto me, that an effort should be made to settle the case on an equitablebasis.
Poster J.—I agree entirely with the judgment of the learnedChief Justice, and consider with him that this case is eminently onefor an equitable settlement of all disputes between the parties.
1922.
Bertram
C.J.
Marctliya t>.Fernando
Sent back.