034-SLLR-SLLR-2005-V-3-NELUM-vs.-KADIJA-UMMA.pdf
CA
Nelum vs
Kadija Umma (Ekanayake, J.)
187
NELUMVSKADIJA UMMACOURT OF APPEAL.
SOMAWANSA, J. (P/CA).
EKANAYAKE, J.
CA 100/95 (F).
DC KURUNEGALA 2936/L.
AUGUST 26, 2004.
NOVEMBER 16,2004.
Leave and licence – Permission to occupy house – Contract of tenancy alleged- Importance of rent to be specified in document – True nature of the transaction-intention? – Findings of primary facts – Not likely to be disturbed.
The plaintiff – respondent – Administrator of the estate of one R sought theejectment of the defendants on the basis that the said R had permitted the 1 stdefendant – appellant by document P5 to occupy the house without any paymentof rent but on the undertaking that vacant possession would be handed overwhen requested by R or his heirs. The defendant had refused to vacate thepremises. The defendant – appellant contended that he is a tenant and thatcertain priviledges were extended in lieu of the rent payable by P 5. The trialcourt held with the plaintiff respondent.
On appeal -HELD:
To constitute a contract of tenancy, quantum of rent is an essentialrequirement. P5 does not fix a quantum, therefore no contract of tenancyhas been created by P5.
1SS
Sri Lanka Law Reports
(2005) 3 Sri L B.
Mere permissive occupation by a person of property of another, even ifsome payment of money for the personal privilege extended is made, isnot a letting of premises creating a tenancy,
Although there is some reference to ‘in lieu of rent' in P5 the use ofwords such as rent, tenancy, rent in advance, is not conclusive proof ofa contract of tenancy.
The true nature of the transaction is to be ascertained by a considerationof all the relevant facts. The Court must find out what the parties intendedto create.
Per Chandra Ekanayake, J.
‘The trial judge who was in an advantageous position of listening to thewitnesses has proceeded to rely upon the testimony of the plaintiff. It is wellestablished that findings of primary facts by a trial judge who hears and seeswitnesses are not to be lightly disturbed in appeal."
APPEAL from the judgment of the District Court of Kurunegala.
Cases referred to :Theevandram vs. Ramanathan Chettiar 1986 2 Sri LR -219 (SC)]
Hameed vs. Weerasinghe and Others 1989 ISri LR – 217 (SC)
CA
Nelum vs
Kadija Umma (Chandra Ekanayake, J.)
189
Alwis vs. Piyasena Fernando 1993 1 Sri LR 119 (SC)
Eileen Peiris vs. Marjorie Patternott Sc 61/93 Spl LA 91/93 CA 374/96
S.C. B. Walgampaya, PC for 1A/2A substituted defendant – appellant.Hemasiri Withanachchi with Hussain Ahamed for plaintiff – respondent.
Cur. adv. vult.
June 17, 2005.
CHANDRA EKANAYAKE, J.
This is an appeal preferred by the Defendant – Appellant (hereinaftersometimes referred to as “the Defendant”) against the judgment of thelearned Additional District Judge of Kurunegala dated 22.02.1995 movingto set aside the same and for a dismissal of the Plaintiff’s action.
The Plaintiff – Respondent (hereinafter sometimes referred to as “thePlaintiff”) has filed this action in the capacity of Administratrix of the estateof late C. Mohamed Rasheed who was said to be the lawful owner of theland and premises morefuily described in the schedule to the plaint depictedas Lot 1 in Plan No. 3016 of S. G. Gunasekara (Licensed Surveyor) inextent of 1 Rood and 8 2/3 Perches seeking inter -alia, for ejectment of thedefendants and restoration of possession thereof and damages prayed insub paragraph (2) of the prayer to the plaint. It was contended by theplaintiff (vide Paragraph 4 of the Plaint) that said Rusheed the late husbandof the plaintiff, by writing entered into on 13.11.1963 with the 1 st defendant,permitted the 1st defendant to occupy the house standing thereon
190
Sri Lanka Law Reports
(2005) 3 Sri L R.
without any payment of rent but on the undertaking that the vacantpossession would be handed over when requested by the said Rusheedand his heirs. Despite the requests made by the plaintiff the defendantscontinued to be in unlawful possession of the same disputing plaintiff’srights and causing damage as averred in the plaint.
The original 1st and 2nd defendants by their joint amended answerdated 18.10.1989 whilst denying the accrual of the cause of action andentering into the aforesaid writing, averred that they were in occupation ofthe premises as tenants of late Rasheed. In the aforementioned premisesthey had moved for a dismissal of the plaintiff’s action and for a declarationthat they are the tenants of the house in the subject matter.
Having admitted plaintiff’s title to the subject matter, case hadproceeded to trial on issues 1 to 4 and 5 to 10 raised on behalf of theplaintiff and the defendants respectively.
It was common ground that the original 1 st and 2nd defendants werehusband and wife and during the pendancy of the action 1A/2A defendant- appellant (hereinafter referred to as the appellant) who was their daughterwas substituted in the room of the original 1 st and 2nd defendants aftertheir death.
The plaintiff while testifying having produced the letters of Administrationgranted to her in Case No. 6701U by which the estate of her late husbandwas administered stated that she is the widow of said Rasheed andadministratrix of his estate, and the subject matter in this case wasincluded in the inventory (P2) tendered in the said testamentary case.She has futher testified to the fact that Rasheed became entitled to the
CA
Nelum vs
Kadija Umma (Chandra Ekanayake, -v
191
subject matter by virtue of the final decree in D. C. Kurunegala Case No.2664/P marked P3 and Sinniah the original 1st Defendant came intooccupation of the house therein on a writing marked P5 given by her latehusband. It is seen from the proceedings of 7.5.91 though this wasobjected to by the defence the Court had allowed it to be marked havingoverruled the objection. Further the uncontradicted position taken bythis witness was her late husband had put the original 1st defendantSinniah in possession under the terms and conditions set-out in the saidwriting marked P5 whereby said Sinnah had agreed to go into occupationof the said house and look after the same and in lieu of the rent payableby him to look after the 37 coconut trees in the land and to handover thecrop of 25 trees to the said Rasheed, to pay the rates and taxes and tohandover vacant possession of the same within 10 days of the notice toquit when given. After the death of her husband on 11.12.1983 the original1 st defendant prevented the plaintiff from collecting the coconuts as agreedupon disputing her rights.
Further it has to be observed that P7 is only an application made by theoriginal 2nd defendant to the Rent Board of Kurunegala to remove an overhanging dangerous coconut tree and P9 being the order of the Board withregard to the same. But the application made for determination of rent(V12) had been subsequently dismissed as evidenced by VII due to thedeath of the original owner Rasheed during the pendency of the application.
The pivotal question to be decided in this case is whether the original1 st defendant and the 2nd defendant were the licensees or whether theywere the tenants of the premises from the year 1961. Since title of theplaintiff was admitted by the defendant the burden shifts to the defendantsto establish under what right they were in occupation of the premises.Thiswell established principle was followed in several cases including
192
Sri Lanka Law Repons
(2005) 3 Sri L. R.
Theevandran vs. Ramanathan Chettiar' and Hameedvs. Weerasingheand Others2.
On behalf of the defence the substituted 1A/2A defendant gave evidence,although the original 2nd defendant was living at that time. On aconsideration of the evidence of 1AI2A substituted defendant it is revealedthat an attempt has been made to establish that the rates and taxes werepaid by them and upto the time of Rasheed’s death rent was paid to him atthe rate of Rs.25 per month. Thereafter it was sent by money order. However,it is admitted in her evidence that over a period of 16 years Rasheed hadnever issued receipts for the same and when the plaintiff refused to acceptrent, thereafter only the deceased 2nd defendant (mother) started depositingat the Rent Board. On a perusal of the evidence it has to be observed thatalthough she has alleged that the appellant paid rent to Rasheed no receiptsor any other document was produced in this respect. According to herown evidence when she was testifying in 1964 her age was 37 years andthat she was born on 28.09.1957. If so in 1961 her age would have beenaround 4 years. At the time of giving evidence although the original 2nddefendant (mother) was living she has failed to give evidence in this regarddespite the fact of her being the person who could be assumed to have abetter knowledge of what took place in 1961. It has to be noted from thejudgment the learned Judge has even considered the fact that the abovewitness was unable to say anything about the document P5 when shewas questioned on the same. The Learned Judge who was in anadvantageous position of listening to the witnesses has proceeded to relyupon the testimony of the plaintiff. In this regard it would(3) be pertinent toconsider the case of Alwis vs. Piyasena Fernando per G. P. S. DeSilva, C. J-
CA
Nelum vs
Kadija Umma (Chandra Ekanayake, J.,
193
“It is well established that findings of primary facts by a trialjudge who hears and sees witnesses are not to be lightlydisturbed in appeal.”
Having considered the evidence I am of the view that the learned Judgehas been correct in arriving at the finding that the original defendants werein occupation of the said house with the leave and license of late Rasheed.
The other position taken up by the appellant in this appeal is that certainservices were rendered ‘in lieu of rent’ which gave rise to a tenancy. P5
clearly states that ‘’ allowed to occupy the house free of rent”. On
behalf of the appellants it has been contended that P5 contains the words
“in lieu of the rent payable by me :” Contents of P5 are to the
following effect
194
Sri Lanka Law Reports
(2005) 3 Sri L. R.
But document P5 is amply clear with regard to the fact that 'no quantumof rent has been specified’. To constitute a contract of tenancy quantum ofrent is an essential requirement. By P5 when no such quantum has beenfixed obviously no contract of tenancy has been created by P5. Wille onLandlord and tenant at page 8 states as follows
“Rent – A definite agreement as to the amount of rentpayable is an essential element of every contract of lease: so much so, that until the rent has been fixed, the contractis not considered to be complete."
Therefore I conclude that as no quantum of rent has been specified or itis silent about even subsequent determination of rent P 5 does not createa contract of tenancy. Therefore the authorities cited by the Appellanthave no application since those have been instances where services werequantified in money. No evidence was placed by the defendants to establishdetermination of any rent. Even the application made (VII) for determinationof rent had been dismissed. Therefore I conclude that the contention of the1A/2A appellant’s counsel, that the deceased 1st defendant did pay arent by rendering services, cannot succeed.
CA
Nelum vs
Kadija Umma (Chandra Ekanayake, J.)
195
In my view necessity has also arisen to consider the decision in EileenPrins V. Marjorie Patternotf41 wherein it was held to the following effect by
R. T. Dias Bandaranayake, J. (S. B. Gunawardena, J, and P. R. P.Perera, J. agreeing) that:
Section 10 (1) of the Rent Act, No. 07 of 1972 sets out what constitutes
the letting of a part of premises. In such a tenancy,
the object should be to let and hire;
the portion of the premises must be properly defined for exclusiveoccupation by the tenant;
the landlord should relinquish his right of control over such part ofthe premises; and
there must be payment of a fixed rent which is ascertainable atany time by a definite method.
Mere permissive occupation by a person, of property of another,even if some payment of money for the personal privilege extendedis made, is not a letting of premises creating a tenancy.
the true nature of the transaction is to be ascertained by aconsideration of all the relevant facts. The Court must find out whatthe parties intended to create.
196
Sri Lanka Law Reports
(2005) 3 Sri L. R.
The use of words such as rent, tenancy, rent in advance etc. is notconclusive proof of a contract of tenancy. These are words whichlaymen are apt to use for any payment in respect of accommodation.
According to the above decision mere permissive occupation by aperson, of property of another, even if some payment of money for thepersonal privilege extended is made, is not a letting of premises creatinga tenancy. In the instant case there is nothing to infer that any payment ofmoney has been made. Further it has to be observed although there issome reference to ‘in lieu of renV in P5, according to the above decisionuse of words such as rent, tenancy, rent in advance etc. is not conclusiveproof of a contract of tenancy.
For the foregoing reasons I see no reason to interfere with the findingsof the learned Judge and the appeal will stand dismissed with costs fixedat Rs.5000 payable by the Appellant to the Plaintiff – Respondent.
The Registrar of this Court is directed to forward the record in case No.2936/Ltothe respective District Court forthwith.
ANDREW SOMAWANSA , J (P/CA) – / agree.
Appeal dismissed.