HINNIAPPIHAMY, Appellant, and KUMARASINGHA et al., Respondents

123-NLR-NLR-V-59-HINNIAPPIHAMY-Appellant-and-KUMARASINGHA-et-al.-Respondents.pdf

56G
L. XV, DE SILVA, A.J.—Hinniappuhamy v. Kumarasingha
1957Present: Basnayake, C.J., and L. W. de Silva, A J.
HINNIAPPUHAMY, Appellant, and KUMARASINGHA ef al.,Respondents
S.G. 541—D.C. Hambantota, 307
Ltaie—Informal writing as basis thereof—Inability of the “ lessee ” to be ejected bysubsequent lessee under a notarial lease—Requirement of notice to quit—Prevention of Frauds Ordinance (Cap. 57), s. 2.
A person in possession of immovable property under a non-notarial “ lease "may be sued in ejectment by ft subsequent lessee of tlio property on a dulyexecuted notarial lense. In such a case, the defendant is not entitled to claimthat he is ft monthly tenant of his lessor nnd that ho must therefore bo givenduo notice to quit beforo notion can be instituted ngainst him.
Pandara v Appuhamy 1 and Ukkutca v. Fernando not followed.
from a judgment of the District Court, Hambantota.
N.E. Weerasooria, Q.C., with S. W. Walpita, for the plaintiffappellant.~
Stanley Perera, for the defendant respondent.
Cur. adv. vult. –
November 1, 1957. L. W. de Silva, A.J.—
This is an action for ejectment and damages. Tho field in suit, inextent 13 acres and 16 perches, belonged to N. S. Doole on whose deathit devolved on her three children, viz., the added defendant, and N. 33.and N". S. Thalip. The added defendant became the administrator of hismother’s estate on 27th March 1952. Six days later, he gave to thedefendant a non-notarial writing purporting to lease the held in suitfor aperio:! of four years upon the condition that the defendant shouldasweddumise the premises and give the added defendant one eighthshare of the produce as rent. On 4th May 1953, N. 33. and N. S. Thalipgave a notorial lease of the field to the plaintiff for a period of six yearscommencing from 1st September 1953. He instituted this action for theejectment of the defendant and damages, alleging that he had been placedin possession of the property and the defendant had ejected him. Thedefendant denied that the plaintiff had obtained vacant possession anddenied the right of the plaintiff to eject liim or claim damages.
After trial the learned District Judgo dismissed the plaintiff’s action .with costs. His findings are as follows :—
The plaintiff had not obtained vacant possession from his lessors.
The informal writing I ad been granted to the defendant by the, added defendant as administrator without the court’s sanction.
1 {1923) 25 N. L. R. 176.,=* {1936) 38 jV. I. R. 125.
L. W. DE SILVA. A.J.—Hinniappukamy. v. Kumarcurinylta
567
Tho informal writing is insufficient in law to give the defendant
the rights of a lessee.
The defendant is not a trespasser but a monthly tenant and cannot
be ousted by his own lessor without due notice to quit.
The plaintifF cannot eject the defendant since notice to quit had
not been given by his lessor and since he had not acknowledgedthe title of the plaintifF.
(G) The defendant had not attorned to tho plaintifF nor had he beennoticed by the plaintifF to quit.
At the hearing of this appeal, learned Counsel for the appellant, relyingon the decision in Isaac Perera v. Baba Appu el all, argued that he wasentitled to judgment by reason of his notarial lease since the defendanthad no legal right to remain on the premises leased. Isaac Perera’scase1 decided that a lessee under a notarial contract, not being put inpossession by his lessor who has a valid title to the property leased, canrecover from third parties in adverse possession the use of such propertyfor the period of his lease. Learned Counsel for the respondent howevercontended on the authority of Ukkuiva v. Fernando- that he was a monthlytenant under the added defendant and could not therefore be ejectedwithout due notice given b}r him to quit.
The difficulty of solving what appears to be a simple problem arisesfrom the conflict of opinions expressed by this Court in its decisions fromtime to time. These decisions fall into two groups. In one group, thequestion discussed is whether a person who takes a lease of a land for aperiod of years on an informal writing is a tenant-at-will or a monthlytenant. In some of the cases under this group it was assumed that sucha person was either the one or tho other, while in other cases in the samegroup the question was raised whether he was a trespasser.
I now proceed to deal with these two groups of cases. Where a lesseeof a land on an informal document was sued in ejectment by a subsequentlessee of the land on a notarial document who had given him notice to. quit within thirty days, Soertsz A.J. held in Ukkuiva v. Fernando- thatthe defendant lessee on the informal document was in the position of amonthly tenant who was entitled to a calendar month’s notice, and thattho plaintifF lessee who held the notarial lease from the common lessorcould not sue the defendant in ejectment until the monthly tenancyhad been determined by due notice given him by his lessor. It wasfurther held that, in the absence of an attornment of the defendant tothe plaintifF, or an assignment after notice of the lessor’s rights to liim,the plaintifF was not entitled to give the defendant notice to quit.Soertsz A.J. also held that the informal document failed of its purposeto create a lease of the land for five years because it was obnoxious tosection 2 of the Prevention of Frauds Ordinance, I^"o. 7 of 1S40 (Cap. 57),which required a lease of land, other than a lease at will or for a period
’(1897) 3 iV. JO. R. 48.
1 (1930) 3S N. L. R.' 125.
56S
L. W. DE SILVA, A.J.—Hinniappuhamy, v. Kumarasingha
not exceeding one month, to be notarially attested. He took tlie viewthat the document was however admissible in evidence for the purpose ofascertaining the legal position of the parties to it. He followed previousdecisions of this Court referred to in his judgment, particularly theviews expressed in Bandara v. Appuhamy1 by Schneider J. who statedthat
the provision in section 2 of Ordinance Ho. 7 of 1840 was intended
to shut out evidence, other than that of a notarially attestedinstrument, to prove a lease for any period exceeding onemonth ;
it was not intended to shut out oral or documentary evidence con-
tained in an informal document of a tenancy for a period notexceeding one month ;
the Ordinance excluded tenancies of such a nature from its
provisions.
Schneider J. summarized the English Law on the subject and stated :—
“ It seems to mo, therefore, equitable and consistent with the spiritof the Ordinance and the intention of the parties to hold that thedefendant is entitled to say, if I am not a tenant for a term of yearscontemplated by me and my lessor, there is no provision of the lawwhich prevents me from being regarded as, at least, holding the landupon the footing of a monthly tenant. Such an interpretation of ourOrdinance would be in accordance with the principles developed byEnglish Jurisprudence on the interpretation and application of theEnglish Statute of Frauds.”
He concluded :—
“It seems to me that the defendant in the circumsatnces cannotbe regarded as a trespasser, nor as tenant-at-will, or by sufferance,but only as a tenant for a period not exceeding a month.”
The other group of decisions has taken the view that a person holdinga notarial lease is entitled during his term to the legal remedies of anowner or possessor, Ukku Amina et al. v. Jema et aJ.-. YVijeyewardene J.stated :—.
“ I see no reason for drawing a distinction in Cej lon between shortleases and long leases spoken of by textbook writers when we are• considering the question whether a lessee has rights against thirdparties. All that ice have to consider is whether a lease, is duly executedaccording to laic. If a lease for any period exceeding a month is noiari-ally attested it should be regarded as giving ‘a species of ownership inland ’ (Lee: Introduction to Roman-Dutch Law, Fourth Edition,page 161), and vesting in the lessee proprietary rights which could beenforced between third parties.”
(1923) 25 X.L.n. 17C.
– (1919) 51 N.L.B. 251.
L. W. DE SILVA, A.J.—Ilinniappuhamy v. Kumarasingha
569
Wijeycwar d en e J., with whom Pulle J. agreed, adopted the views expr essedby the Judges in Carron v. Fernando el al.1 where Garvin A.C.J. referredto the observation of Hutchinson C. J. in Abdul Azeez v. Abdul liahiman*:—
'* A lessee under a valid lease from the owner is dominus or ownerfor the term of his lease. He is owner during that term as against all theworld, including his lessor.”
Garvin A.C.J., making particular reference to section 2 of OrdinanceNo. 7 of 1S40, stated :—
" This is a requirement which must be complied with if it is to beof any force or avail in law.”
We are in respectful agreement with the views expressed by Wijeye-wardeneJ. and Garvin A.C.J. since in our opinion they are in completeaccord with the provisions of section 2 of Ordinance Ho. 7 of 1840 whichlays down that no document affecting immovable property, unless not an-ally attested, other than a lease at will, or for any period not exceedingone month, shall be of force or avail in law. With great respect, weare unable to agree with the view taken by Schneider J. in Bandara v.Appuhamy3 and adopted by Soertsz A.J. in Ukkuua v. Fernando4 forthe following reasons :—
The intention of the parties and the spirit of the Ordinance cannot
be taken into account in interpreting its provisions which arefree from ambiguity. If, as stated in Bandara v. Appuhamy3,the provision in section 2 was intended to shut out evidence,
• other than that of a notarially attested instrument, to provea lease for any period exceeding one month, wo do not under-stand why such a document is admitted for the purpose ofenabling a party to prove a tenancy exceeding one month.
Section 2 is much more drastic than the fourth section of the English
Statute of Frauds, as observed by the Privy Council in AdaicappaGhetly v. Oar up-pen Che tty 5 and repeated by the Privy Council •in Saverimuttu v. Thangavelaulhan6. This opinion is the veryopposite of the view taken in Bandara v. Appuhamy 3. Principlesdeveloped by English Jurisprudence on the interpretation andapplication of the English Statute of Frauds cannot thereforebo applied to our Ordinance Ho. 7 of 1S40.
A contract which shall be of no forco or avail in law is void.
In a South African case, Wilkenv. Kohler7, Innes J. in inter-preting a statute which laid down that “ Ho contract of saleof fixed property shall be of any force and effect unless it boin writing signed by the parties thereto ’’^said :— 1
1 (1033) 35 N.L.R. 352.*(1936)3S N.h.R. 125.
.*(1009) 1 Cur. L. R. 271.s(1921)22 N.L.R. 417 at 426..
’ (1923) 25 N.L.R. 176.«(1954)55 N.L.R. 529.
' i (1913) A. D. 135.
o 70
JlloJtideen v. Si thy Kalhecja
No emphatic adjectives, and no redundant repetition couldexpress a conclusion of nullity more effectually than do thesimple words which the Legislature has employed.
A contract which is of no force or avail in law cannot be inter-
preted to mean that it is of some force or avail in law sincethere axe no qualifying words. To give such an interpretationis to grant to a party to a void contract a legal status whichthe Ordinance has not recognized.
Section 2 of the Ordinance excepts from its operation a lease for
any period not exceeding oixe month. The limit placed bythese words cannot be extended so as to give relief in laxv toone who violates that law.
(G) The Preamble is : “ an Ordinance to provide more effectuallyfor the Prevention of Francis and Perjuries.” It is thereforenot a statutory provision for the benefit of a particular classof persons.
For the reasons we have given, we are of the opinion that the defendantis a trespasser, the informal writing is a nullity and the plaintiff isentitled to judgment against him. We therefore allow the appeal andset' aside the judgment and decree in the learned District Judge anddirect him to enter a decree in terms of the prayer in the plaint on thebasis of the damages as found at the trial. – The defendant-respondentmust pay the appellant his costs both here and in the court below.The added defendant must also pay the costs of the appellant in thecourt below since he denied at the trial the right whicli the appellanthas established.-
Bassayake, C.J.—I agree.
Appeal allowed.