033-NLR-NLR-V-36-WEERARATNE-et-al-v.-ABEYWARDENE.pdf
DRIEBERG J.— Weeraratne v. Abey war dene.
139
1934Present; Dalton and Drieberg J.J.
WEERARATNE et al. v. ABEYWARDENE.
247—D. C. Tangalla, 3,477.
Lease—Action for damages for breach of covenant—Primary obligationindivisible—Liability for damages divisible—Each lessor entitled torecover his share.
In an action to recover damages for breach of a covenant in a leasegranted by two persons, each lessor is entitled to recover only his shareof the damage.
^^PPEAL from a judgment of the District Judge of Tangalla.
N. E. Weerasooria (with him Wickramanayake and Batuwantudawe),for defendant, appellant.
Siri Per era, for plaintiff, respondent.
July 31, 1934. Drieberg J.—
The first plaintiff and Alice Weeraratne leased to the defendant Smith-land estate of 179 acres 1 rood and 33 perches by indenture P 1 of February16, 1928, for a term of four years for a sum of Rs. 9,000. After the termof the lease expired and the defendant surrendered possession, this actionwas brought by the first plaintiff and T. O. Weeraratne, the secondplaintiff, for the recovery of Rs. 2,500 damages sustained by the failureof the defendant to observe certain terms in the deed of lease, for example,failure to repair buildings and roads, failure to keep the land clear,neglect of the citronella plantation, and failure to carry out otherconditions imposed for the proper maintenance of the estate. Alice Weera-ratne is the mother of the second plaintiff. It alleged in the plaintthat she leased on behalf of her son, the second plaintiff, who was a minorat the time, but there is no mention of this in the deed and she must beregarded as having acted for herself. There is evidence that the secondplaintiff owns a half of the estate. In his answer, the defendant deniedthe claim and pleaded that the second plaintiff; who was no party to thelease, had no cause of action against him and, further, that the firstplaintiff could not maintain the action without joining Alice Weeraratne.He also pleaded prescription.
140DRIEBERG J.—Weeraratne v. Abeywurdene.
The trial was on the following issues:—
Did the defendant duly observe and perform the covenants of the
indenture of lease?
Can this action be maintained without joining both lessors?
Has the second plaintiff a cause of action against the defendant?
Is the plaintiffs’ claim or any part of it prescribed?
The second and third issues were not first disposed of but evidence. was led and in the course of the examination of the first plaintiff, who wasthe first witness called, there is a note that his counsel stated that he didnot propose to join Alice Weera,ratne. In his judgment the trial Judgeheld that the second plaintiff was a necessary party to the action as hewas the owner of a half share of the land, and that the non-joinder ofAlice Weeraratne did not vitiate the action. He found there was afailure to carry out certain of the undertakings in the lease, assessed thedamages at Rs. 600, and gave both plaintiffs judgment for that sum.The defendant appeals from this judgment.
As regards the second plaintiff, the position is clear. He was no partyto the contract and unless Alice Weeraratne’s interest in the lease passedto him by assignment or otherwise he has no rights whatever under it.
The action, therefore, must be regarded as one brought only by thefirst plaintiff for the recovery of the whole amount of damages causedby the defendant, and the question for decision is whether such an actionis possible. Clause 17 of the lease provided that the lessee “ would holdhimself liable to pay all damages caused to the lessors” by his failure toobserve the conditions of the lease.
When a person contracts on obligation for one and the same thing infavour of several others, each of these is only creditor for his own share;but the debtor may contract with each of his creditors, if that be theintention of the parties, so that each of the persons in whose favour theobligation is made is creditor for the whole, in which case a paymentmade to any one liberates the debtor against them all. In such a case,the obligation to the creditors is said to be in solido, Pothier, vol. 1, p. 144(Evans’ translation). But there must be clear evidence of intentionthat the parties wish to be regarded as co-principal creditors or, in otherwords, that the obligation to them is in solido ; in case of doubt it ispresumed that each is a creditor to the extent of his share (Nathan :Common Law of South Africa, vol. 2 (2nd ed.), p. 565). A stipulation in alease for the payment of rent, where there are several lessors, is ordinarilynot regarded as an obligation in solido. Voet, 19.2.21, dealing with theactio locati, says, that if there is a plurality of lessors each has an actionfor his share against the lessee, unless it has been expressly agreed to thecontrary and in cases where a plurality of persons have farmed the publicrevenue. There appears to be no change in the more modem Roman-Dutch law in this matter. Maasdorp in his Institutes of Cape Law, vol. 3,p. 245 (4th ed.), says, that “where there are several co-lessees, each is,in the absence of any stipulation express or implied to the contrary,only liable for a proportionate share of the rent ; and in the same way,,if there are several co-lessors, each can sue only for his share of the rent,unless it has been otherwise agreed upon See also Nathan’s Common
DRIEBERG J.—Weeraratne v. Abeyvoardene.
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Law of South Africa (2nd ed.), vol. 2, p. 904, and Wille on Landlord andTenant in South Africa (1910 ed.), p. 321, in which there is a qualificationof the general rule to which I shall refer later.
That this is the position of several lessors where there is no stipulationco the contrary has been recognized in local cases. In BudharakxtaTerunanse v. Gunasekera1, one of two lessors was permitted to sue for thehalf share of rent due. In Panis Appuhamy v. Selenchi Appus, thejudgment in Budharakita Terunanse v. Gunasekera (supra) was approvedand applied to the case of lessees, it being held that in the case of twojoint lessees each was only liable for his share of the rent in the absenceof anything to indicate that their liability was joint and several.
If, therefore, the claim was one for rent, the first plaintiff could havesued the defendant only for the half share due to him. In such an actionthough the other lessor would not be a necessary party, it would no doubtbe possible for the defendant lessee to have him made a party undersection 18 of the Civil Procedure Code if the circumstances of the caserequired his presence before the Court to enable all questions involvedin the action to be effectually and completely settled. One can conceiveof cases where the presence of the other lessor, assuming there were two,would not be necessary, for example, the lessee might have paid a half ofthe rent to the other and there would be only a question whether theplaintiff-lessor was paid his moiety. In this case, however, the defendantdid not move that the other lessor be made a party for this reason, butcontended that the action could not be maintained unless he was a partyand that therefore the action should be dismissed.
Is the position different where the action is brought by one of two jointlessors not for rent but for damages for failure to observe covenants inthe lease? Wille on Landlord and Tenant in South Africa, p. 321, says,“ If there are more than one landlord each may bring the action for hisproportionate share of rights under the lease (Voet 9.2.21); of theserights it is probably only the right to claim the rent which could beseparated into proportionate shares”. The author does not refer toany authority for this, but it is clear that while some rights and liabilitiesare joint, other rights and liabilities may be different. For example,though one of two lessees can fulfil his obligation of payment of rent bypaying his share of it to the lessor, can be resist an action for cancellationof the lease brought against himself and his co-lessor for default in pay-ment of rent by the latter? Judgment cannot be entered against himfor rent which he has already paid, but it must be allowed that he isliable to ejectment and to submit to cancellation of the lease if all therent due to the lessor be not paid. Similarly, if one of the lesseesabandoned the lease, can the other claim that so long as he paid hismoiety of the rent and kept a half of the land in a proper condition thelessor was bound to continue the lease, so far as his interest in it wasconcerned? This shows that though the obligation of payment of rentmay not be joint or in solido, yet other obligations under the lease maybe of another nature. Pothier on Obligations, vol. 1, p. 195 (Evans*translation), dealing with indivisible obligations, says, “An indivisibleobligation being the obligation of a thing, or act, which is not> (1895) 1 N. L. R. 206.a (19m 7 N. L. ft if.
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DRIEBERG J.—Weeraratne v. Abeywardene.
susceptible of parts, either real or intellectual, it is a necessary conse-quence, that when two or more persons have contracted a debt of thiskind, although they have not contracted it in solido, et tanqtutm correidebendi, nevertheless, each of the persons obliged is debtor for the wholeof the thing or act that forms the object of the obligation; for hecannot be a debtor for a part of it only, since it is supposed that thething is not susceptible of parts
Thus though the obligation of each lessee in regard to rent is notin solido to the extent that he cannot be compelled to pay more than hisshare of it, his liability with his co-lessee to the lessor to a cancellationof the lease, if all the rent be not paid, is an indivisible obligation.Similarly, obligations such as maintaining the property in good orderare indivisible, and one of two lessees cannot resist a claim for cancellationof the lease brought for the property being allowed to fall into disrepairby claiming that he had fulfilled his share of that covenant. He cannotdo so for the reason that such an obligation is indivisible.
But is the claim for damages against the lessors for failure of such anindivisible obligation in itself indivisible? Maasdorp, dealing with thesubject of solid and non-solid obligation, says “ in other words, each ofseveral co-obligors (except in the case of co-partners) is only liable for hisshare of the contract:, and not for the whole contract in solidum; andeach of several co-obligees is only entitled to his proportionate share ofthe rights covered by the contract. This rule will apply even to thesecondary obligation of paying damages in default of performance of aprimary indivisible obligation, such as the building of a house, for,though the primary obligation is indivisible, the damages are divisibleand each co-obligor will, be liable only for his share of the same *(Institutes of Cape Law, vol. 3, p. 101 (4th ed.).) The same principle isrecognized by Pothier—“ A second example, is the obligation which I mayhave contracted with anyone, to build a certain edifice upon his land ;this obligation is indivisible ; the creditors may conclude against each ofmy heirs, requiring him to be condemned to build the entire edifice ;but as each of my heirs, although debtor for the entire construction of theedifice, is nevertheless not debtor in solido, he has a right to require thathis co-heirs be included in the cause, that in default of their fulfilling thisobligation, they may be condemned in damages each only for his ownhereditary part” (Pothier on Obligations, vol. 1, p. 201 (Evans' trans-lation) ).
This passage deals with a somewhat different case, but it is importantas recognizing the principle that a primary obligation may be indivisible,but not so the liability for damages arising from a breach of it.
It appears to me that one is obliged to apply the same principle to thecase of several lessors. Though the obligation of the lessee under thelease for the proper maintenance of the land is indivisible as far as thelessors are concerned, in the sense that each lessor has the right to enforcethe covenants in respect of his share as well as that of his co-lessor, eachlessor can only recover his share of the damages caused by breach of suchcovenants. There is no doubt that the application of this principle,especially in the case of claims for damages where there are several
143
DRLEBERG J.—James v. Fernando.
lessees, may lead to inconvenient results, but it is always open to theparties to provide in the deed of lease for joint and several rights andliabilities.
I am of opinion, therefore, that the first plaintiff could have broughtthis action only for a half share of the damages caused by the lesseesand that he is only entitled to a half share of the damages awarded,namely, Rs. 300. The judgment appealed from will be set aside, andjudgment will be entered for the first plaintiff for Rs. 300 against thedefendant with costs as in the second class, and against this the defendantwill be entitled to be paid by the first plaintiff the excess costs incurredby the defendant by reason of the action being -brought in a higher class.The second plaintiff will pay to the defendant his costs in the Court below.The plaintiffs will pay to the defendant the costs of the appeal.
Dalton J.—I agree.
Judgment varied.