1913 Present: Pereira J. and De Sampayo A.J.

SILVA v. SILVA.

106 and 107-D. C. Galle, 10,729.

Lease-Sale by lessor-Vendee succeeds to all the rights of lessor without assignment.

Where a land is sold by a person who has already leased it, the vendee succeeds to all the rights of the vendor on the lease without a special assignment of it by the latter to the former.

PEREIRA J.-Quaere, Is the tenant bound to remain the tenant of the new landlord, or may he exercise the option of claiming a cancellation of the lease ?

THE facts appear from the judgment.

H. A. Jayewardene (with him Arulanandam), for the defendant.- The plaintiff did not get an assignment of the lease from the two co-owners, from whom he bought their interests in the land. The sale itself did not give the plaintiff the right to recover damages from the defendant for his breach of a covenant in the lease. Counsel cited Wijeratne v. Hendrick.1[(1895) 3 N. L. R. 158.]

A. St. V. Jayewardene for the plaintiff.-An assignment of the rights of the lessors is not necessary to enable the plaintiff to sue the lessee for damages. Counsel cited Allis v. Sigera;2[(1897) 3 N. L. R. 5.] Wille on Landlord and Tenant 222; V. L. Com., 4, 21, 7; Van der Linden 1, 15, 12.

Cur. adv. vult.

May 30, 1913. PEREIRA J.-

There are cross-appeals in this case. The question involved in the defendant's appeal is whether where a land is sold by a person who has already leased it, the vendee succeeds to all the rights of the vendor on the lease without a special assignment of it by the latter to the former. The land in dispute belonged to five persons, who by deed dated October 13, 1907, leased it to the defendant. Two of the owners, by their deed dated July 21, 1909, sold their two-fifths share to the plaintiff, but did not expressly assign to him their interest in the lease. Without going into details, I may say that the question involved is whether the plaintiff is entitled to recover a two-fifths share of the damage sustained by the owners by reason of a breach by the defendant of certain covenants in the lease. The District Judge has held that he is, and I think he is

right. With reference to the law of letting and hiring, a principle of the Roman-Dutch law is enunciated by means of the aphorism " Hire goes before sale " (see Van der Linden's Inst., 1, 15, 12, P. 145, Juta's Trans.; Grot. Intr., 3, 19, 16; Van Leeuwen's Com., 4, 21, 7, vol. II., p. 174, of Kotze's Trans. Cens. For. 1, 4, 32). The rule as understood in South Africa is found in Wille on Landlord and Tenant in South Africa 221. It is there laid down as follows: " A purchaser from the landlord of the property leased' steps into the shoes of the landlord, and receives all his rights and becomes subject to all his obligations, so that he is bound to the tenant, and the tenant is bound to him, in the relation of landlord and tenant." Bayne in his Treatise on the Law of Letting and Hiring, compiled from the leading Roman-Dutch Jurists, &c, Says (p. 37) ' Hire goes before sale ' is an axiom of our law, and purchasers of, and persons succeeding to, the possession of landed property are bound by the leases made by the vendors." I need not discuss here the question (because it does not arise in the present case) whether the tenant is bound to remain the tenant of the new landlord or is entitled at his option to cancel the lease. In my opinion, our law is exactly the same as laid down above. It has, I am aware, been said, although, I may mention, the point has not been taken in the present appeal, that since our Ordinance No. 7 of 1840 the rights under a notarial lease cannot be said to pass to the purchaser of the property leased unless they are expressly assigned by means of a notarial deed. I think there is a clear fallacy in this contention. The law says that the sale of property leased passes with it to the purchaser the rights on the lease, in other wo