059-NLR-NLR-V-35-GOONESEKERE–v.-RAMAPILLAI.pdf
DALTON S.PJ.—Goonesekere v. Ramapillai.
309
1933Present: Dalton S.P.J. and Drieberg j.
GOONESEKERE v. RAMAPILLAI.
138—D. C. Kandy, 41,475.
Lease—Assignment with written consent—Liability of lessee for rent.
A lessee, who has assigned his lease with the written consent of hislessor is not liable for the rent.
^^PPEAL from a judgment of the District Judge of Kandy.
H. V. Perera (with him E. B. Wikramanayake), for first defendant,appellant.
N. Gratiaen, for plaintiff, respondent.
Cur. adv. vult.
May 22, 1933. Dalton S.P.J.—
The plaintiff sues in her personal capacity and as executrix of herlate husband. Together they granted to the first defendant, who isthe present appellant, a lease, No. 435, of a rubber land some 8 acresin extent with the buildings and plantations thereon for a period of)five years from November 30* 1927. The lease provided that the lessee,the first defendant, should not assign or underlet the premises leasedwithout the consent in writing of the lessors. On July 20, 1929, plaintiffgave a written consent (exhibit P 1) to the assignment of the lease
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DALTON S.PJ.—Goonesekere v. RamapiUai.
so granted to the second and the third defendants, and on August 3, 1929,a notorial assignment was executed by the first defendant in favourof the second and third defendants (exhibit P 2). It sets out that, inconsideration for a certain sum, the first defendant “doth hereby sell,assign, and set over” to the second and third defendants “all thatindenture of lease No. 435 and all benefit and advantage thereof, andall the estate, rightof the first defendant over the land and
premises to hold the land and premises during the residue of theunexpired term “subject to the rent reserved by the said indenture oflease and the covenants therein contained …. the secondand third defendants then covenant to pay the rents reserved and toperform the covenants contained in the lease.
At the date of the assignment it is conceded that no rent was due bythe first defendant, but subsequent rent became due and was unpaid.Plaintiff thereupon instituted this action to recover rent from the threedefendants jointly and severally, that is, the original lessee and hisassignees. Subsequently the claim against the third defendant waswaived, but plaintiff obtained judgment for the amount he claimedagainst the first and second defendants.
The first defendant pleaded that the assignment being with the writtenconsent of the lessor, as provided in the lease, he was freed therebyfrom any liability for rent after the completion of the assignment. Thelearned District Judge, however, held, on the authority of Walter Pereirain his Laws of Ceylon, that the original lessee remains liable in spite ofthe assignment given with the written consent of the lessor. Fromthat conclusion the first defendant appeals.
The case is governed by the common law, although the term “ assign-ment” in Ceylon is taken over from English law, just as it has beentaken over in South Africa (see Lee’s Roman-Dutch Law (3rd ed), p. 310).The effect of an assignment, as opposed to a sublease, is there set out bythe learned author. It substitutes the assignee in place of the originallessee “ who thereupon ceases to be bound or entitled under thecontract
Wille in Landlord and Tenant in South Africa sets out the effect of;an assignment or cession of a lease in the same way. It is “ a transferenceby the tenant of all his existing rights and all his existing obligationsunder his lease to another person so that .the assignee is substituted forthe tenant”. The tenant loses all rights and is relieved of all obliga^tions, the assignee becoming the tenant under the terms and conditionsof the original lease. The assignment before us has in express termsprovided for this, and is entered into by the parties with the writtenconsent of the lessor. Wille also points out, to answer another argumentraised by Mr. Gratiaen, that a stipulation that a lease may be cededimplies ]that not only may rights under it be ceded, but also obligations,as being a stipulation referring to the lease as a whole without makingany distinction between rights and obligations.
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DALTON S.P.J.—Goonesekere v. Ramapillai.
No question arises here (although it has incidentally been touchedupon in the argument before us) as to whether consent of the lessor isnecessary to effect a discharge of the original lessee of his liabilitiesunder the lease. Consent of the lessor to an assignment is providedfor in the lease and has been given. I might point out, however, thatthe decision (Goonesekere v. John Sinno') on this particular point, thatwhere the question of consent is not referred to in the original contracta lease can be assigned without the consent of the lessor, the lesseethereby freeing himself from his liabilities under the lease, does notappear to follow the common law as it is applied to-day in South Africa,and would also appear in Professor Lee’s view to be contrary to principle.The practical result of following such a conclusion as was come to in thelocal decision I cite is a matter which seemjs to have given the learnedDistrict Judge some difficulty. I can find npthing in Pless Pol v. Ladyde Soysa1 contrary to the view of the law now taken in South Africa.There is of course nothing to prevent a lessof covenanting not to with-hold his consent except for strong and good reason.
The authority upon which the learned District Judge relied for hisconclusion that the original lessee was still liable for rent in spite of anassignment by him of the lease with the consent of the lessor is a state-ment in the Laws of Ceylon, to which I have referred, at page 665. Thelearned author is there discussing the law on the subject in South Africa.On an assignment by the lessee, where the lessor has recognized theassignee, or where the lessor’s assent to the assignment was not necessary,he states the lessor and assignee stand to each other as did the lessor andoriginal lessee as far as regards rights and obligations affecting thepremises leased. Then he adds the following words “ Naturally howeverthe original lessee would remain liable ”, and cites Morice’s English andRoman-Dutch Law, p. 159, as authority for that latter statement. Counselhave not been able to refer us to anything in Morice which supportsthat statement, nor have I been able to find anything myself. Thesubject of assignments is not dealt with at page 159 of the second editionof Morice published in 1905. Mr. Walter Pereira’s Laws of Ceylon whichis cited is dated 1913. At page 173 of Morice it is certainly stated thatwhen (he assignment is of the rights of the lessee, it has been held thatsuch an assignment by the lessee does not free him from liability forrent. The learned District Judge appears to have read this as referringto an assignment of both rights and liabilities, but that is not correct.
I can find nothing in the authority quoted to show that in the circum-stances I have set out from the passage in the Laws of Ceylon relied onthe original lessee would also remain liable for rent. It is possible ofcourse, and other footnotes lead me to think it must be so, thatMr. Walter Pereira was quoting from the first edition of Morice, but I havenot been able to obtain a copy to ascertain if that was so. If that is so,it would seem that the statement relied on was omitted or corrected inthe second edition. On the other authorities I have cited it is not acorrect statement of the law.
l4 C. L. nee. 133.
= J.j N. L. R. 57.
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DALTON S.PJ.—Goonesekere v. Ramapillai.
In the case before us, in my opinion, the assignees stepped into theplace of the original lessee, the present appellant, and the learned Judgewas wrong in his interpretation of the law. The first defendant (appellant)was not liable for the amount claimed, and the action as against himmust be dismissed. The appeal must be allowed with costs to theappellant in both Courts.
Drieberg J.—I agree.
Appeal allowed.