Ong Hock Thye CJ (Malaya):

This is an appeal by the tenant of premises No. 33A Newcome Road, Malaccaagainst the decision of the High Court in Malacca, ordering him to give up vacant possession to the landlords, respondents herein.

The sole question to be determined is whether, in the circumstances of this case, the premises were held under a monthly tenancy or from year to year.

There is no controversy regarding the facts and findings of fact of the trial Judge. In 1958 these premises were let by one Toh Kim Soon to the appellant, under an agreement in writing, for a term of 80 years at "a monthly rent of $100." Under the agreement the appellant was "entitled to make use of the house rented to him for carrying on any type of business for 80 years" and pursuant thereto he set up therein a beauty parlour. In 1964 the respondents became landlords, in success on to Toh, by purchase of the premises and on 1 March 1966 they gave notice to the appellant terminating his "monthly tenancy ..... on 30 April 1966 or at the end of the period of the tenancy expiring next". Upon expiry of the month's notice the respondents commenced action on 9 May 1966 in the High Court and an order for possession was made in their favour on 6 January 1969.

The grounds of decision of the learned trial Judge have been neatly summarised in his own words thus:-

It is clear from the authorities which I have discussed that in the present case the agreement under which the defendant went into occupation of the premises at No. 33A, Newcome Road, Malacca was void as a lease by reason of the provisions of s. 5 of the Registration of Deeds Ordinance (Sections Cap. 121). The result of his entry upon that void lease was the same as would flow from an entry upon an agreement for a lease. Upon his entry the legal relationship of landlord and tenant arose and he became a tenant at will. When he paid the monthly rent reserved under the so-called lease the tenancy at will changed into a tenancy from month to month upon the terms of the intended lease. It was subject to this monthly tenancy that the premises must be deemed to have been sold to the plaintiffs, so that the defendant became a monthly tenant of the plaintiffs. This monthly tenancy was determined by the plaintiffs by the notice to quit. In my judgment that was a valid notice to quit.

The case for the appellant was that the true intention of Toh, the original landlord, was to grant his tenant a tenancy for life. Since, in law, no such tenancy could follow from a lease which was invalid, it was argued that the effect of appellant's entering into occupation upon the terms of the agreement was to give rise to a tenancy from year to year. The substantive ground of this appeal, therefore, is that the Judge had misdirected himself by giving too much weight to the mode of payment of rent in deciding whether a yearly tenancy had been created, without taking into consideration other material factors such as the conduct and intention of the parties to the agreement, the terms of the lease expressed to be granted and the nature of the, business carried on in the premises.

For present purposes I do not think it will be necessary to enter upon any discussion of case law, apart from referring to certain general observations of their Lordships in Adler v. Blackman [1953] 1 QB 146. In the first place, the presumption as to the nature of the tenancy on holding over is a rebuttable presumption (per

Somervell LJ at p. 148). In the second place "what one is seeking here is the intention to be imputed to the parties from the facts that the tenant has remained in occupation with the consent of the landlord and has paid rent................. In my view................. other evidence may be resorted to for the purpose of ascertaining what their true intention was" (per Jenkins LJ at p. 152). Adopting these observations for my ratio decidendi and having perused the judgement with the greatest care I have regretfully come