047-NLR-NLR-V-70-M.-HANIFFA-and-others-Appellants-and-K.-SELLAMUTHU-and-others-Respondents.pdf
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T. S. FERNANDO, A.C.J.-—Haniffa v. Sellamuthu
1967 Present:T. S. Fernando, A.C.J., and Siva Supramaniam, J.M.HANIFFA and others, Appellants, and K. SELLAMUTHU and others.
Respondents
S. C. 387 of 1966—D. C. Kandy, 7742/L
Landlord and tenant—Monthly tenancy—Notice to quit—Computation of time.
Where, in a monthly tenancy of premises commencing on the first day andending on the last day of a calendar month, the landlord gave the tenant anotice before the end of August 1961 requiring him to quit the premises on orbefore 1st December 1964—
Held, that the notice given by the landlord was a valid notice to quit at theend of November 1964, i.e. at midnight on 30th November/lst December—withan offer by the landlord to the tenant to accept a termination of the tenancy atthe latter’s option at any time before the end of November.
Ismail v. Sheriff (68 N. L. R. 19) and Robert v. Fernando (69 N. L. R. 572)not followed.
Appeal from a judgment of the District Court, Kandy.S. Sharvananda, for the plaintiffs-appellants.
W.D. Gunasekera, for the defendants-respondents.
Cur. adv. vult.
November 27, 1967. T. S. Fernando, A.C.J.—
Many legal problems have mushroomed in the wake of the shortage ofhousing, not the least vexed of which is the question of the validity ofthe notice to quit which a landlord is required to give his tenantpreparatory to the institution of a suit for ejectment. That question, like abad coin, has the disconcerting habit of cropping up with unwelcomeregularity in our courts. Court decisions, unfortunately, have not beenuniform in their effect and have left landlords in no little uncertainty asto the terms in which a valid notice to quit to be served on their tenantsshould be framed. The appeal now before us seeks to question thecorrectness of a recent decision of this Court in the case of Ismail v.Sheriff 1.
In the case upon which the appeal has arisen, the landlord of a tenantoccupying premises on a month to month tenancy commencing on thefirst day and ending on the last day of a month, gave to the tenant anotice dated August 27, 1964 requiring him to quit the premises on orbefore the first day of December 1964. There is no dispute that thisnotice was received either on the date specified in the notice itself or, inany event, before the end of August 1964. The tenant, however, dis-puted the validity of the notice ; and the issue as to its validity was byagreement of the parties tried as a preliminary issue and decided by the
1 (1965) 68 N. L. R. 19.
T. S. FERNANDO, A.C.J.—Haniffa v. SeUamuthu
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learned trial judge against the landlord. In so deciding, the trial judgecorrectly felt obliged to follow the decision of this Court in Ismail v.Sheriff (supra). That case dealt with a monthly tenancy commencing onthe first day of a month, where the notice to quit had been given onMay 11, 1963 requiring the tenant to quit the premises on July 1, 1963.The Court there held that the notice to quit was not valid because therequisite month’s notice did not terminate at the end of a current monthof the tenancy. As Alles J. who sat alone there put it, “ the notice hadbeen given before the due date from which it operates, and the noticewould run from 1.6.63 until midnight of 30.6.63.” He went on, how-ever, to add that “ at midnight a new tenancy on the same terms andconditions would have commenced which would expire at midnight on
According to the notice in the present case, a new tenancywas created from midnight on 30.6.63 to midnight on 1.7.63 (a brokenperiod), a tenancy which is not recognised by the Roman-DutchLaw.”
A monthly tenancy is a periodic tenancy ; it is a tenancy which byagreement between the contracting parties runs from month to month,and is terminated by a month’s notice. The question in Ismail v. Sheriff(supra) depended on a correct interpretation of so much of the expressionin the notice as required the tenant to quit on July 1,1063. With respect,I find myself unable to agree with the view taken by the learned judgewho decided that case when he held that ‘e a new tenancy was createdfrom midnight on 30.6.63 to midnight on 1.7.63—a broken period.”The substantial question in all cases of this kind is the intention of theperson giving the notice as expressed therein. It appears to me, againwith all respect, to have been quite unreal to have attributed to the persongiving the notice an intention to create a tenancy for that broken period ;nor could it fairly be said that the receiver of the notice could reasonablyhave so understood it.
Much assistance on the interpretation of this expression, and indeedexpressions of a like nature, is to be gained by a reference to certainauthorities to which my brother drew my attention during the argument.While it is essential to the validity of a notice to quit that it should becertain, and that there should be plain unambiguous words claiming todetermine the tenancy at a certain time, the Court of Appeal in Daggerv. Shepherd1 held that the insertion of the words “on or before” aspecified date in a notice to quit was, on a proper construction, anoffer to the tenant to accept from him a determination of the tenancyon any earlier date than that named on which he would give up possessionof the premises. In a later case, Crate r. Miller 2, the same Court quotedwith approval a dictum of Lindlcy L. J. in Sidebotham v. Holland (1895)
1 Q.B.D. 378 that—
“ The validity of a notice to quit ought not to turn on the splitting
of a straw. Moreover, if hypercriticisms are to be indulged in, a
notice to cpiit at the first moment of the anniversary ought to be just1 (1046) 1 A. E. R. 133.2 (1947) 2 A. E. R. 45.
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as good as a notice to quit on the last moment of the day before.
But such subtleties ought to be and are disregarded as out of
place.”
As Somervell L.J. put it (see p. 46), “ in other words, a notice to quiton either day could be construed as a notice to quit when the currentperiod in question ended. As a matter of language, a notice ‘ terminatinga tenancy ’ on the last day of a current period (which was the form usedin the present case) may, apart from Sidebotham v. Holland, fairly besaid to mean the same thing as a notice to quit and deliver up possessionon the following day, for in both cases the landlord is intimating that thelast day of the current period is to be the last day of the tenancy.”
I would apply the interpretation adopted in the English cases referredto above, and hold that the notice given by the landlord-appellant onthe present appeal was a valid notice to quit at the end of November,1964, i.e. at midnight on 30th November/lst December — with an offerby the landlord to the tenant to accept a termination of the tenancy atthe latter’s option at any time before the end of November. To placeany other interpretation would be to defeat the clear expressed intentionof the landlord.
Our attention was drawn to another and a more recent decision of thisCourt in Robert v. Fernando 1, also of a judge sitting alone, which is tothe same effect as that in Ismail v. Sheriff {supra). It was. there held that,where a monthly tenancy commenced on the first day of January 1963,and the notice given dated 22nd February 1966 required the tenant tovacate the premises on or before 1st April 1966, the notice was invalid.The Court interpreted the notice as one in which the time of terminationwas in the alternative, either on 1st April 1966, or before that date.Having so interpreted the notice, the Court went on to hold that as thenotice required vacation of the premises before 1st April 1966, the timeof termination of the tenancy was uncertain and that the notice wastherefore bad. Alternatively, it held that if the notice terminated thetenancy on 1st April 1966, the notice was bad as the termination oftenancy is not at the end of a month. The reasoning contained in theEnglish cases I have quoted above, which I have already said I wouldapply, renders it necessary that I should now decline, with respect, tofollow the ruling in Robert v. Fernando {supra) as well.
The appeal is allowed, the judgment of 22.7.66 dismissing theplaintiff’s action is set aside, and the case is remitted to the District Courtfor trial to be held on any remaining issues. The plaintiff is entitled tothe costs of this appeal and to the costs of the trial date (22.7.66) inthe District Court.
Siva Supramaniam, J.—I agree.
1 {1967) 69 N. L. R. 572.
Appeal allowed.