Edgar Joseph Jr J:

This was a tenant's appeal from the decision of the learned Magistrate giving vacant possession of premises No. 56, Queen Street, Penang ("the premises") which were subject to rent control legislation.

It will be more convenient to refer to the appellant and the respondent hereinafter as the defendant and the plaintiff respectively.

Both in the Court below and before me the sole question for determination was whether the defendant occupied the premises as a trespasser or as a tenant or as a licensee.

Turning to the pleadings, it will be seen that by his statement of claim the plaintiff had alleged that he was the registered proprietor of the premises (a fact which was admitted) and that he was entitled to possession thereof, the defendant being a trespasser and therefore in unlawful occupation. The claim was for vacant possession and damages for wrongful occupation with effect from 1 July 1979 and costs.

On the other hand, the defendant by his defence averred that he was a lawful tenant of the premises and protected by the provisions of the Control of Rent Act 1966, (`the Act').

Upon the pleadings, therefore, the issue before the trial Court was a simple one but the evidence and the submissions in the Court below and indeed before me disclosed issues which were not free from difficulty as will become apparent from this judgment.

The plaintiff testified that he had rented out the premises to one K.K. Abdul Majid during the Japanese occupation and that the latter carried on a sundry goods business at the premises under the name or style of "K.K. Kather Mohideen Brothers". All rent receipts were therefore made out in the name of "K.K. Kather Mohideen Brothers" whose sole proprietor K.K. Abdul Majid had died in May 1979, though a signboard bearing that name still remained suspended outside the premises up to the time of the trial. There was, however, being carried on at the premises another business known as "K.K. Textiles" whose partners were the deceased Abdul Majid and the defendant. And so, after the death of the deceased, the defendant had attempted to tender rentals for the months of May, June and July 1979 through the post but these were refused by the plaintiff. Indeed, the defendant admitted that after the death of the deceased he did go to see the plaintiff to get consent to occupy the premises for purposes of continuing the textile business of K.K. Textiles, but the latter did not agree. There was no evidence that the partnership agreement of K.K. Textiles was in writing and, if so, whether it contained a survivorship clause. The inference, therefore, is that there was no such clause, so that the partnership of K.K. Textiles stood dissolved upon the death of the deceased Abdul Majid. I mention this only in passing as some argument was pressed upon me during the hearing as to the significance of this fact to which I shall have occasion to return to later on in this judgment.

On the other hand, the defendant, had testified that he and the deceased Abdul Majid had been carrying on the business of K.K. Textiles as partners on the premises, ever since 31 March 1976 and referred to the particulars appearing in the business registration form being Exh. D5. He had further testified that upon the death of Abdul Majid in May 1979, his alleged widow, Rabiha Bivi (who at all material times appears to have been in India), wished to continue the business of K.K. Textiles and to this end she had executed a power of attorney 25 October 1979 (pp. 56-62 Appeal Record) appointing one Mohamed Sidik (DW2) her attorney, with power, inter alia, "to administer, superintend, supervise, conduct and transact the business and other properties of the deceased situated in Penang, Malaysia". In the first recital to the power, specific reference was made to the fact that the deceased had been carrying on business at the ground floor of the premises under the name and style of K.K. Textiles and K.K. Kader Mohideen Brothers.