003-SLLR-SLLR-2004-V-2-PINONA-v.-DEWANARAYANA-AND-OTHERS.pdf
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Pinona v Dewanarayana and others
(Somawansa. J.)
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PINONAv
DEWANARAYANA AND OTHERSCOURT OF APPEALSOMAWANSA, J. ANDEKANAYAKE, J.
A. 189/83(F)
C. MATARA 5376/LJUNE 7, 2004JULY 30, 2004
Rei Vindicatio Action – Attornement – Applicability of Rent Act, No. 7of 1972 sections 21 and 22 – Payment of rent to authorised person,not the landlord – Vindicatory action available? – Owner not bound bytenancy created by third party – Who is a landlord?
The original plaintiff instituted action seeking a declaration of title to thepremises and the ejectment of the 1st, 2nd, and 3rd defendants-respondents.
The original plaintiff contended that, he purchased the property from one Nand before he purchased the property the father of N acting for and on behalfas agent of N permitted the 1st defendant-respondent to occupy the premisesfree of rent on the undertaking (P2) that he would vacate the premises on orbefore a specified date. The 2nd and 3rd defendants-respondents, it wasalleged, were in occupation with the leave and license of H and that, after theplaintiff purchased the property, 1st, 2nd and 3rd defendants were disputinghis title.
The defendants-respondents denied, that the 1st defendant-respondent was inoccupation of the premises with the leave and license of H and took up theposition that before N became the owner, one I was the owner and the 3rddefendant – respondent took on rent the said premises from I and after N pur-chased the property, the 3rd defendant-respondent paid rent to H who was theagent of N and after the original plaintiff became the owner he never informedthe 3rd defendant – respondent to attorn to the original plaintiff and sought thedismissal of the action.’
The trial court held with the defendants-respondents.
On Appeal-
Held :
(i) There is no evidence that the 3rd defendant-respondent who claims tobe the tenant had anything to do with the undertaking (P2) given by the1 st defendant-respondent.
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There is no evidence that the 1-3rd defendants-respondents were inoccupation of the premises in suit with the leave and licence of H or N.Taken at its best P2 only contains an undertaking given by the 1stdefendant-respondent, who is not the tenant and does not contain anyundertaking given by the 3rd defendant-respondent who is the tenant.
A letter given by a tenant that he would vacate the premises would beirrelevant. Section 22 does not set out as a ground for ejectment thegiving of a notice to quit by the tenant to his landlord.
A tenant cannot contract out of the protection afforded by the Rent Act.
A tenant who pays rent to an authorised person in the name of a per-son who is not the landlord can be ejected in a vindicatory action andthe owner is not bound by a tenancy created by a third party.
The term “landlord” is defined as the person for the time being entitledto receive rent under the contract of tenancy ; such person need not bethe true owner.
Per Somawansa, J.
‘There was no evidence adduced to establish that after the original plaintiffbecame the owner the 3rd defendant-respondent was informed to attorn to theoriginal plaintiff and pay the rent to him either by H or his daughter N who wasthe landlord or by the original plaintiff himself. The 3rd defendant-respondentcannot be faulted for the deposit of rent with the authorised person in the nameof N who was to her knowledge her landlord.”
APPEAL from the judgment of the District Court of Matara.
Cases referred to:
Jayasingham v Arumugam – (1992) – 1 SRI LR 350
Hussain v Jiffry- (2002) -1 SRI LR 185
Violet Perera v Asilin Nona – (1996) – 1 SRI LR
Gunasekera v Jinadasa – (1996) 2 SRI LR 11 (DB) (SC)
S.M.F. Fernando v W.R.S. Perera – 77 NLR 220
David Silva v Madanayake – 69 NLR 396
Imbuldeniya v De Silva – (1987) 1 SRI LR 367 (DB) SC
Nihal Senaratne for the plaintiff-appellantC.E. de Silva for defendant-respondent.
Cur.adv.vult
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Pinona v Dewanarayana and others
(Somawansa. J.)
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September, 3,2004ANDREW SOMAWANSA, J.
The original plaintiff instituted the instant action seeking a dec- 01iaration of title to premises No. 39/1, Anagarika DharmapalaMawatha, Matara, morefully described in paragraph 02 of theplaint, ejectment of 1st, 2nd and 3rd defendants-respondentstherefrom, restoration to possession thereof and damages.
The original plaintiff’s pleaded case was that by virtue of deedNo. 1516 dated 20.03.1970 he purchased the aforesaid propertyfrom Nirmala Harischandra, that before he purchased the saidproperty C.A. Harischandra acting for and on behalf of or as agentof his daughter the said Nirmala Harischandra had permitted the 101st defendant-respondent to occupy the said premises free of renton the undertaking given in writing by the 1st defendant-respondentto vacate the said premises on or before 30.11.1969, that the 1stdefendant-respondent along with his brother the 2nd defendant-respondent and his sister the 3rd defendant-respondent were inoccupation of the said premises with the leave and licence of thesaid C.A. Harischandra, that after the original plaintiff became theowner of the said premises on 20.03.1970 the 1st to 3rd defen-dants-respondents acting in concert are disputing the title of theplaintiff-appellant and are refusing to hand over vacant possession 20of the said premises in suit thereby causing damages to the plain-tiff.
The 1st to 3rd defendants-respondents while admitting the titleof the original plaintiff to the premises in suit denied that the 1stdefendant-respondent was in occupation of the premises in suitwith the leave and licence of the said C.A. Harischandra and tookup the position that before Nirmala Harischandra became theowner of the premises in suit one N.A. Ismail was the owner of thesaid premises and that the 3rd defendant-respondent took on rentthe said jsremises from the said N.A. Ismail, that after the said 30Nirmaia Harischandra became the owner of the said premises the3rd defendant-respondent paid rent in respect of the said premisesto C.A. Harischandra who was acting as the agent of NirmalaHarischandra, that after the original plaintiff became the owner ofthe said premises the original owner never informed the 3rd defen-dant-respondent to attorn to the original plaintiff or to pay rent to
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him, that the 3rd defendant-respondent is ready and willing toattorn to the original plaintiff and pay the rent of the said premisesto the original plaintiff and that provisions of the Rent Act, No. 7 of1972 apply to the said premises in suit. In the premises, theyprayed for a dismissal of the action of the original plaintiff.
At the commencement of the trial, parties admitted the originalplaintiff’s title to the premises, that the said, C.A. Harischandra wasacting as the agent of his daughter Nirmala Harischandra and thatprovisions of the Rent Act, No. 7 of 1972 apply to the premises insuit. 10 issues were settled between the parties and at the conclu-sion of the trial the learned District Judge by his judgment dated22.01.93 and pronounced on 28.01.93 held with the defendants-respondents and dismissed the action of the original plaintiff. It isfrom the said judgment that the plaintiff-appellant has lodged thisappeal.
It is contended by the counsel for the plaintiff-appellant that asevidence of the 3rd defendant-respondent would reveal the con-tract of tenancy ends at the point the 3rd defendant-respondentopted to pay rents to C.A. Harischandra and failed to attorn toNirmala Harischandra. Thus by her own conduct she has repudiat-ed the contract of tenancy which cannot be revived by making pay-ment to authorized person after the change of ownership fromNirmala Harischandra to the original plaintiff. Therefore he submitsthat the original plaintiff is entitled to institute action against thedefendants-respondents as tresspassers. Furthermore, by signinga letter to vacate the premises in suit by 30.11.69 the defendants-respondents became licensees and were liable to be ejected on thebasis of over holding licensees.
At this point it would be relevant to examine the evidence led inthis case. Evidence of the 3rd defendant-respondent reveals thatshe came into occupation of the premises in suit in 1962 as the ten-ant of Ismail and that she was using the premises as her residence,that she paid Rs.62/- per month as rent to the said Ismail andmarked the rent receipts issued to her by Ismail as V4 to V16. V3is dated 19.08.1962 while V16 is dated 31.07.1968, that after shewas informed by the said Ismail of the sale of the premises in suitto Nirmala Harischandra she paid the rent to C.A. Harischandra thefather of Nirmala Harischandra for one year but no receipts were
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issued, that as no receipts were issued to her she commenceddepositing the rents in the Urban Council of Matara from January1970. The certified extract from the Rent Register in respect ofpremises in suit issued by the Urban Council of Matara, wasmarked V2 which shows Nirmala Harischandra as the landlord and3rd defendant-respondent as the tenant. This evidence has gonein uncontradicted. It is to be noted that the original plaintiff admitsin his pleadings that C.A. Harischandra was acting for and onbehalf of and or as agent of his daughter Nirmala Harischandra.Unfortunately C.A. Harischandra was not called to give evidence.
On the other hand, the evidence of the Grama Sevaka called bythe plaintiff reveals that as from 1966 the 3rd defendant-respondentas well as the 1 st defendant-respondent were in occupation of thepremises in suit. Again the evidence of the other witness called bythe plaintiff also reveals that when Nirmala Harischandra pur-chased the property in suit in 1968 the 1st and 3rd defendants-respondents were in occupation.
The plaintiff’s position that the defendants-respondents occupa-tion of the premises is based on a license granted by C.A.Harischandra to the 1st defendant-respondent rests solely on thedocument marked P2 whereby the 1st defendant-respondent hadgiven an undertaking to vacate the premises in suit by 30.11.1969.However the said document marked P2 does not speak of anylicence granted to the 1st defendant-respondent. In any event,there is no evidence that the 3rd defendant-respondent who claimsto be the tenant of the premises had anything to do with the under-taking given by the 1st defendant-respondent in document markedP2. In fact there is no evidence that the 1st to 3rd defendants-respondents were in occupation of the premises in suit with theleave and licence of the said C.A. Harischandra or NirmalaHarischandra. Taken at its best the said document marked P2 onlycontains an undertaking given by the 1st defendant-respondentwho is not the tenant of the premises in suit and it does not containany undertaking given by the 3rd defendant-respondent who is thetenant of the premises.
In the case of Jayasingham v Arumugam^ the Supreme Courtheld:
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“As the issue was whether in terms of the Rent Act, No. 7 of1972, a letter given by the tenant that he would vacate the premis-es, the Roman Dutch law would be irrelevant. Section 22 does notset out as a ground for ejectment the giving of a notice to quit bythe tenant to his landlord. Hence the letter given by the tenant willnot terminate the tenancy in terms of the Rent Act.”
At page 357 per Wadugodapitiya, J:
“In considering issue No.4 in the context and within the frame-work of the Rent Act, No.7 of 1972, it may be mentioned that sec- 120tion 22 of the said Act, as its marginal note indicates, deals with“Proceedings for ejectment”, and sets out the grounds for eject-ment. However, nowhere does section 22 mention, as a ground, forejectment, the giving of a notice to quit by the tenant to his landlord.
It is therefore clear that the giving of such a notice to quit thepremises, or, in the context of this case, the giving of the letter P5by the appellant to the respondent, stating that he (the appellant)will vacate the premises, will in no way give rise to a cause of actionto the respondent, under the Rent Act, No. 7 of 1972, to eject theappellant from the premises in suit.”130
Again in the case of Hussain v Jiffry (2) the facts were:
“The appellant was the landlord and the respondent was the ten-ant of premises No. 297, Main Street, Colombo 11. On 31.03.1980,the respondent informed the appellant in writing that he (therespondent) was relinquishing his tenancy with effect from thatdate and requested the appellant to give the premises to one R.There was no evidence of a new tenancy, nor did the respondentgive vacant possession of the premises to the appellant.
However, the respondent sent a letter dated 05.07.1980 to theappellant informing her “I continued and still remain the lawful 140monthly tenant of the premises” with a cheque for rent for themonths of April, May and June, 1980, which established that therespondent had not handed over the premises to the appellant.
The appellant instituted action for the ejectment of the respon-dent from the premises, alleging that by this letter dated 31.03.1980the respondent voluntarily terminated the tenancy and that he wasin unlawful occupation from 01.04.1980.” It was held:
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Pinona v Dewanarayana and others
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“In the circumstances, there was no termination of the tenancyand the rule that a tenant cannot contract out of the protectionafforded by the Rent Act applies.”
At 189 per Shirani Bandaranayake, J:
“It is conceded that although the respondent wrote the letter P1dated 31.03.1980, the premises in question was not handed overto the appellant. Even if the respondent had wanted to relinquishthe tenancy at the time he wrote the letter P1, and if the ownerhas accepted it, still it would be necessary for the premises to bephysically handed over by the respondent to the appellant, forthe statutory protection to come to an end. Under a contract oftenancy, the owner and the tenant agree and accept the terms oftenancy. Therefore, although the respondent may have contem-plated relinquishing the premises as revealed in P1, he could,nevertheless, unilaterally change his mind and reverse his deci-sion, if he had not handed over the premises to the landlord. Insuch circumstances the document marked P1 by itself does not
' serve to terminate the tenancy.”
It is to be noted that the document marked VI also indicates thatthe original plaintiff was well aware that the defendants-respon-dents were not occupying the premises in suit as licensees but astenants. VI is a copy of the declaration sent by the plaintiff to theRent Control Board after he became owner of the premises in suitstating that the 1st defendant-respondent was his monthly tenant.
The plaintiff also seeks to draw support for his position that the3rd defendant-respondent was not the monthly tenant of thepremises from an averment in the answer of the 1st defendant-respondent filed in an earlier unsuccessful action instituted by the- original plaintiff for the ejectment of the defendants-respondentsfrom the premises in suit. Answer of the 1st defendant-respondentfiled in the said case No. 3248/L was marked P4. It is to be notedthat nothing is mentioned of his sister or her residence but the 1stdefendant-respondent merely denies that he is the tenant of thepremises and goes on to say that he is residing there with his broth-er. Though the correct factual position of the 1st defendant-respon-dent’s occupation of the premises has not been set out therein theaverment in the said answer does not contradict the correct posi-
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tion that the 3rd defendant-respondent was the monthly tenant ofthe premises. In any event, the 1st defendant-respondent in his evi-dence explained that on discovery of this defect in the answer heinstructed his attorney-at-law to rectify the. defect and accordinglyfiled amended answer which was marked P5.
On an examination of the evidence led in this case, I am of theview that on a balance of probability the learned District Judge hascome to a correct finding that the 3rd defendant-respondent whowas the tenant of the premises in suit from 1962, became the ten-ant of Nirmala Harischandra with the purchase of the said premis-es by Nirmala Harischandra and the payment of rent to C.A.Harischandra as agent of Nirmala Harischandra in no way alter the3rd defendant-respondent’s position of a tenant and the privity ofcontract of tenancy does not end.
Counsel for the plaintiff-appellant has in his submissionsreferred to 3 decisions in support of his contention that a tenantwho pays rent to a authorized person in the name of a person whois not the landlord can be ejected in a vindicatory action and thatthe owner is not bound by a tenancy created by a third party. Firstbeing the decision in Violet Perera v Asilin Nona® the facts wereas follows.
“The plaintiff’s mother after an unsuccessful attempt to evictthe defendant gifted the tenanted premises to her daughterthe plaintiff. The defendant was duly informed of this by theplaintiff’s lawyer and the lawyers who attested the deed, butthe defendant called for a copy of the deed from the plaintiff’smother and receiving no response continued to deposit therent in the Municipality in favour of the plaintiff’s mother. Theplaintiff filed suit in August 1984 and summons was ordered on13.11.84. On 14.11.84 the defendant delivered to theMuncipality rent for September and October 1984.”
It was held:
“The defendant was not justified in not paying rent to the plain-tiff. A request for the documents may have been justified ifconflicting claims were being made as for instance by personsclaiming under a Last Will, intestacy, and donation. This wasnot one of those instances.
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The purpose of section 21 is not to substitute the authorizedperson for the postal services, or other means of delivery ortender of rent payments (whether made by cheque, moneyorder or otherwise). The purpose is to prevent a tenant whowishes to pay rent to the landlord being placed in real difficul-ty or dilemma – as where the landlord refuses or evades theacceptance of rent, or there is uncertainty as to who the reallandlord is. In those situations, a payment by the tenant whichaugments the funds of the authorized person is equivalent to 230a payment to the landlord.”
In the instant action the evidence reveals that after the 3rddefendant-respondent was informed by Ismail of the sale of thepremises in suit to Nirmala Harischandra, the 3rd defendant-respondent-paid rent to C.A. Harischandra the father of NirmalaHarischandra who was admitted to be acting for and on behalf ofand or as agent of Nirmala Harischandra. In the circumstances onecould presume that the landlord Nirmala Harischandra acceptedthe rent paid to her father as a due and proper payment made toher. It is settled law that tenancy is a contractual relation which may 240subsist even where the landlord is not the owner of the rentedpremises. However as receipts for payment of rent were not issuedthe 3rd defendant-respondent had started depositing rents in theUrban Council, Matara. In the circumstances non issue of receiptswould be a sufficient ground for the 3rd defendant-respondent todeposit the rent with the authorised person.
The second being the decision in Gunasekera v Jinadasa ^ thefacts were as follows:
“The premises were let in 1960 by the plaintiff-respondentappellant’s father to the father of the defendant-appellant 250respondent. Later in 1970, the plaintiff’s father gifted thepremises to him, but they neither informed the defendant’sfather nor called him to attorn, the latter died in 1973, thedefendant then attorned to the plaintiff’s father, the defendantcontinued to pay rent to the plaintiff’s father, when the plain-tiff’s father refused to accept rent from 1980, the defendantdeposited the rent with the authorized person, to the credit ofthe plaintiff’s father. The father and son by their letter of23.10.81, informed the defendant of the transfer and
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called upon him to pay rent to the plaintiff with effect from 26016.11.81. The defendant did not reply but continued to occupythe premises, he deposited the rent in the father’s name andcontinued to do so even after his answer was filed.
The plaintiff instituted vindicatory action, the trial Judge heldthat both the plaintiff and his father had called upon the defen-dant to attorn, to the plaintiff and that the defendant havingfailed to attorn to the plaintiff was a trespasser, and gavejudgement for the plaintiff.
On appeal the Court of Appeal reversed the judgment, holdingthat the defendant had become aware of the plaintiff’s title in 2701973, and that the father continued to collect rent as the plain-tiffs agent, and that the defendant had not deliberatelyrefused to accept him as landlord and had not refused to payhim rent; and that therefore the defendant had not been trans-formed from a tenant into a trespasser;
On appeal”.
Fernando, J., held:
“I hold that although the plaintiff had failed to establish his pleathat the defendant was in unlawful possession from 16.11:81,yet the evidence showed that the defendant was in unlawful 280possession at the time the action was instituted. That was suf-ficient to entitle the plaintiff to succeed in the vindicatory actionbrought by him upon the issues framed at the trial.”
In that case as aforesaid the father and son by their letter dated23.10.81 informed the defendant of the transfer and called uponhim to pay rent to the plaintiff with effect from 16.11.81. Howeverthe defendant did not reply but continued to occupy the premisesand deposited rent in the father’s name and continued to do soeven after his answer was filed. In the instant case evidencerevealed that by deed No. 1516 dated 20.03.1970 marked P1 the 290original plaintiff purchased the premises in suit from NirmalaHarischandra. However there was no evidence adduced whatso-ever to establish that after the original plaintiff became the owner ofthe said premises the 3rd defendant-respondent was informed toattorn to the original plaintiff and pay the rent to him either by C.A.Harischandra or his daughter Nirmala who was the landlord or by
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the original plaintiff himself. In the circumstances the 3rd defen-dant-respondent cannot be faulted for the deposit of rent with theauthorised person in the name of Nirmala Harischandra who wasto her knowledge her landlord. However in the pleadings in para-graph 7 of the amended answer of the defendants-respondents the3rd defendant-respondent has pleaded her willingness to attorn tothe original plaintiff and to pay the rent to him in respect of thepremises in suit.
In the case of S.M.J. Fernandes v W.R.S. Perera® facts were:“When a person purchases premises which are subject to theprovisions of the Rent Restriction Act, and the tenant who isin occupation of the premises refuses to accept the purchaseras his new landlord on the alleged ground that the rents arepayable to a third party, the remedy of the purchaser is to suethe tenant on the contract of tenancy and not by way of a vin-dicatory action.
The 1st defendant was the tenant of certain “excepted”premises and had been paying the rents to the 2nd defendantat the request of the landlord. After the death of the landlord,the plaintiff purchased the premises, with the sanction of theCourt, from the administrator of the deceased landlord. Whenthe plaintiff’s proctor wrote to the 1st defendant requestinghim to attorn to the plaintiff and pay rents to him, the 1 st defen-dant replied that he had been the tenant of the 2nd defendantfor the previous 18 years and wanted the plaintiff to obtain aletter from the 2nd defendant to pay rents to the plaintiff andthat, unless this was done, he could not attorn to the plaintiff.At no stage did the 1st defendant seek to terminate the ten-ancy. He was in occupation of the premises and was willing tofulfil his obligations as a tenant to whomsoever was legallyhis landlord.
In the present action the plaintiff sought a declaration of title to. the premises and the ejectment of the two defendants from thepremises. The trial Court gave judgment in favour of the plain-tiff, holding that the 2nd defendant who claimed the propertyon a verbal gift from the deceased landlord was trespasserand that the 1st defendant, by denying the title of the plaintiff,forfeited the protection of the Rent Restriction Act.”
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It was held:
“Applying the ratio decidendi in David Silva v Madanayake^ithat the 1st defendant had attorned to the plaintiff and couldonly be ejected if there was a breach of any of the conditionslaid down in the Rent Restriction Act. The plaintiff’s action inthe present case was therefore misconceived and he could 340not eject the 1st defendant in a vindicatory action".
As contended by counsel for the plaintiff-appellant in the case ofImbuldeniya v De Silva it was decided:
“It would be quite wrong to include within the definition of“landlord” any person other than the original lessor or some-one who derives the title from the original lessor. However theCourt went on to hold that the term “landlord” is defined as theperson for the time being entitled to receive the rent under thecontract of tenancy (s.48 of the Rent Act). Such person neednot necessarily be the true owner.”350
In that case the facts were:
“Where the father of the plaintiff let out the. premises to thedefendant for his own benefit at a time when the plaintiff wasnot aware she was the owner and without her authority andnot as her agent and the plaintiff neither acquiesced in oradopted the letting.”
In the instant action the facts were quite different in that C.A.Harischandra the father of Nirmala Harischandra the predecessorin title of the original plaintiff was acting for and on behalf of and oras agent of his daughter Nirmala Harischandra.360
For the foregoing reasons, I am of the view that on a balance ofprobability the learned District Judge has come to a correct findingand I see no reason to disturb his judgment. Accordingly the appealof the plaintiff-appellant is dismissed with costs fixed at Rs.5000/-.
EKANAYAKE, J. – I agree.
Appeal dismissed.