La Brooy V. Ramasamy Chetty Et Al.,

Present: De Sampayo A.J.

LA BROOY v. RAMASAMY CHETTY et al.

452-454-M. C. Colombo, 8,487.

Suffering premises to be used for human habitation-Lease by administrator-Is heir of estate liable?-" Suffering " defined.

An heir of an estate whose administrator had leased a property cannot be convicted under rule 8 (2) of chapter XXII. of the by-laws of the Municipal Council of Colombo with suffering the house to be used for human habitation.

" Suffering " a thing to be done connotes the right or power to prevent it.

An owner of property which is legally leased to a third party, with exclusive right of possession, cannot of his own force prevent, while the lease subsists, the use of the property by the lessee or any person under him.

THE facts are fully set out in the judgment.

Wadsworth (with him Retnam), for the accused, appellants.

Hayley, for the respondent.

Cut. adv. vult.

July 9, 1912. De Sampayo A.J.-

The appellants, who are the first, second, and fourth accused, have been convicted of the offence of having, in disregard of an order made by the Municipal Magistrate, continued to use certain tenements, or suffer the same to be used, for human habitation without a certificate from the Chairman of the Municipal Council, or written order from the said Magistrate withdrawing the prohibition, in breach of rule 8 (2) of chapter XXII. of the by-laws of the Municipal Council. It appears that the premises in which the tenements are situated belong to the estate of a person now deceased. The first and third accused are two of the heirs of the intestate, and the second accused is described in the evidence for the prosecution as " guardian ad litem " of another heir. The third accused has also been appointed administrator of the estate; and the fourth accused is the lessee of the premises under the administrator. At the instance of the Chairman of the Municipal Council, who considered the tenements in question to be unfit, for human habitation, the Municipal Magistrate on July 10, 1911, made an order, under rule 8 (1) of chapter XXII. of the by-laws, prohibiting the use of the said tenements for human habitation from September 1, 1911, The tenements are in the occupation of tenants under the fourth accused, who

is the lessee of the entire premises. The causes rendering them unfit for habitation were the absence of windows and smoke vents, the lowness of the roofs, and the existence of certain walls which prevented proper ventilation. The operation of the prohibition was to date V from September 1, in order that the necessary alterations might in the meantime be effected. This not having been done, these accused were prosecuted under rule 8 (2) in the case No. 5,158 of the Municipal Magistrate's Court, and were convicted and fined on November 3, 1911. It appears that the fourth accused petitioned the Chairman and obtained a month's extention of time to effect repairs. He commenced the work by breaking down the walls, but the third accused stopped him from proceeding further and undertook to do the work himself but did nothing. Accordingly, the accused have been prosecuted again in this case, the charge being laid as of April, 1912. The lease in favour of the fourth accused is still subsisting, and the third accused as administrator has continued to receive the rents up to date. I shall first deal with the case of the third and fourth accused. The third accused pleaded guilty to the charge, alleging in mitigation of sentence that he could not spend money on the repairs without an order of Court in the testamentary case, and that he subsequently obtained such an order and was diligently engaged in affecting the repairs. The fourth accused pleads in excuse the interference on the third accused's part with his attempt to do the necessary work. The fourth accused is lessee, and has possession and control of the premises, and the tenants are his and pay him rent. He conti

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