Buttrose J (delivering oral judgment):

In this action the plaintiff claims an injunction restraining the defendants and their servants or agents from trespassing on its property at 52 Circular Road and damages for such trespass. The plaintiff bank also seeks a declaration that the right, title and interest of K Shaik Abdul Kadir in the premises terminated on his death. The plaintiff also claims possession.

The facts as I find them, clearly established by the evidence, are briefly these. The premises in question, No. 52 Circular Road are next door to the plaintiff bank. The premises were let apparently many years ago before the war to one K Shaik Abdul Kadir on a monthly tenancy. The premises were used as business premises and the rent, which was always paid in cash, was usually collected by the plaintiff's rent collector and occasionally paid by someone representing the tenant to an official of the bank direct. The receipts were made out in the name of K Shaik Abdul Kadir. For many many years - as far back even as before the war - the plaintiff bank required vacant possession of these premises in order to expand its business but the outbreak of war prevented the implementation of this expansion scheme. After the cessation of hostilities a Notice to Quit was served on the tenant to vacate by 31 October 1946 but the tenant refused to comply and proceedings for possession were taken but these were unsuccessful. Rent continued to be paid thereafter by the tenant which was accepted by the bank. This state of affairs continued on until September 1960. The previous month, in August 1960, a member of the bank's staff noticed a document affixed to the door of the premises in question. It turned out to be a Writ of Seizure and Sale against one MM Ali of whom the plaintiff had no knowledge. As a result of this the plaintiff immediately consulted its solicitors and rent was refused when next tendered. The letter of 21 September 1960 (p. 15 of the Agreed Bundle) was the first intimation that the plaintiff had that K Shaik Abdul Kadir was not still in occupation of the premises and in fact had died as long ago, according to the evidence as 1947 in India. A second Notice to Quit in January 1951 was issued and served under the misapprehension that K Shaik Abdul Kadir was still alive and in occupation. In November 1960 the administrator of the estate of K Shaik Abdul Kadir, deceased purported to sublet part of the premises to the first defendant. A letter before action was sent on 2 November 1960 and notice was given to the first defendant on the same date that he would not be recognised as a sub-tenant. Proceedings were commenced by Writ of Summons on 11 November 1960.

What then is the legal position arising out of these facts? K Shaik Abdul Kadir's tenancy was determined on 31 October 1946 by a valid Notice to Quit with which, as I have already said, he did not comply and he remained on in possession of the premises by virtue of the provisions of the Increase of Rent (Restriction) Ordinance, 1939, (No. 35 of 1939) as amended by the Increase of Rent (Restriction) (Amendment) Ordinance, 1941 (No. 30 of 1941) which was the appropriate and material legislation in force at the time. A statutory tenancy was, in my judgment, created and K Shaik Abdul Kadir became a statutory tenant and continued so to be until the date of his death. Now, a statutory tenant has merely a personal right to possession or occupation of the premises and such tenancy is extinguished at his death and nothing passes to his estate. The fact that after the expiration of a Notice to Quit the tenant makes payment of rent to the landlord which the latter accepts does not necessarily constitute a new tenancy. The effect of the payments depends entirely upon the intention of the parties. If authority is needed see Davies v. Briston [1920] 3 KB 428, Clarke v. Grant [1949] 1 All ER 768, Marcroft Wagons Ltd. v. Smith [1951] 2 All ER 275. There must be clear evidence on bot