PERERA v. CASIM.

D. C, Colombo, 12,644.

Lease-Claim to possession as between a lessee under a husband and a lessee under a wife-Title of purchaser in execution, at a Fiscal's sale, of husband's and wife's interest-Agreement between purchaser and husband to annul sale and hold as tenant under husband.

P, claiming possession of a land as a lessee under Mr. K, sued C in the Court of Requests for rent, and his action was dismissed for want of proof that C was P's tenant. Thereupon P sued C in the District Court for a declaration that he (P) was entitled to possession for five years from August, 1898, as lessee under Mr. K.

Held, that C, who was a tenant under Mrs. K. was entitled to continue in possession so long as P was unable to prove a better title than C's.

Held, further, that, as C's father had bought at a Fiscal's sale all the life interest of Mr. and Mrs. K in the property in 1883, the title was in C's father and his heirs, notwithstanding that a notarial agreement had been made soon after the Fiscal's sale between Mr. K and C's father that the latter should reconvey to the former the property sold by the Fiscal and consider himself a tenant of Mr. K, and notwithstanding that the relation of landlord and tenant subsisted between K and C's father from 1883 to 1893, and between K and C himself from 1893 to 1st August, 1898, when Mr. K's lease to plaintiff and Mrs. K s lease to defendant began.

THE plaintiff sued the defendant for a declaration that he was entitled to the possession of a house in Kayman's gate, Colombo, for five years from August, 1898. as a lessee under one Mr. Kelaart.

It appeared that the property originally belonged to Miss Mortier, who married Kelaart in 1871; that under a writ of execution against him, the Fiscal sold the house in 1883 by auction to defendant's father, who, however, agreed with Mr. Kelaart to treat the sale as of no effect, and to consider himself a tenant under Kelaart; that in pursuance of this agreement a notarial deed was drawn up, by which Kelaart let the property to the defendant's father for nine years and nine months as from October, 1883; that when this lease expired, Kelaart let the house for five years, commencing from 8th August, 1893, to the defendant; in 1894, Kelaart leased it to plaintiff with effect from 1st August, 1898, which was the day after the expiry of the lease to the commencing from 8th August, 1898, to the defendant; in 1894, Mrs. Kelaart leased it to the defendant with effect from 1st August, 1898.

The Additional District Judge (.Mr, Felix Dias) dismissed the plaintiff's action by the following judgment: -

" The defendant is in possession, and has been so for many years. The plaintiff sued the defendant some time ago in the Court of requests to recover rent from him as his tenant from August, 1898, but it was held in that case that the defendant was not the plaintiff's tenant. That decree is still in force, and the plaintiff cannot re-open the question of the defendant's tenancy, but must stand or fall by the superiority of his own title.

"It is admitted on both sides that the house was the property of Mrs. Charles Kelaart for life, with a valid fidei commissum in favour of her children. Mrs. Kelaart is still alive, but her husband died in 1895. In 1893 the defendant took a lease of the premises from Mr. Kelaart for five years ending 31st July. 1898. and before that lease expired Mr. Kelaart gave the present lease in 1894 to the plaintiff with effect from the 1st August, 1898. The defendant now has a fresh lease, executed by Mrs. Kelaart in December, 1898, but with effect from 1st August, 1898. The plaintiff's contention is that the defendant, having admitted the title of both Mr. and Mrs. Kelaart by taking leases from them, is now estopped from denying their title, and. inasmuch as the husband in his lifetime had the power to deal with all his wife's property (which as regards this house consisted of her