Wijesinghe Et Al., V. Charles

1915. Present  : Wood Renton C.J. and De Sampayo A.J.

WIJESINGHE et al. v. CHARLES.

21-D. C. Colombo, 38,784.

Vendor and purchaser-Right of vendor to bring action after tale to eject tenant after giving notice to quit-Landlord and tenant.

Where a purchaser has not elected to take a property with the vendor's tenant in occupation and insists on the vendor giving him free and exclusive possession, the contract of tenancy as between the vendor and the tenant continues, and the vendor may, in spite of the sale, take the ordinary steps to eject him and recover damages.

THE facts are fully set out in the judgment.

A. St. V. Jayewardene, for defendant, appellant.

E. W. Jayewardene, for plaintiffs, respondents.

Cur. adv. vult.

February 19, 1915. DE SAMPAYO A.J.-

The defendant was a monthly tenant of certain premises under the plaintiffs, who were the owners thereof. On January 8, 1914, the plaintiffs sold the premises to one Y. D. David, and, presumably with the view of giving possession to the purchaser, they on April 2, 1914, gave notice to the defendant to quit and deliver possession of the premises at the end of May, 1914. The defendant not having complied with the notice, the plaintiffs brought this action to eject the defendant, claiming also arrears of rent from October 1, 1913, up to May 31, 1914, and damages for unlawful possession since the latter date. The defendant in his answer admitted his liability to pay the rent up to the date of sale, but denied the validity of the notice to quit, and pleaded that the contract of tenancy between the plaintiffs and defendant was determined by the sale of the premises. The argument on behalf of the defendant is that the effect in law of the sale was that the defendant became tenant of the purchaser and was liable for the rent only to him, and that any notice to determine the tenancy should be given by him. There is no doubt that under the Roman-Dutch law a purchaser has the right to recover the rent accruing since the sale from a tenant who had been let in by the vendor. The authorities on the point will be found collected in Silva v. Silva.1[(1913) 16 N. L. R. 315.] That decision also went to the extent of holding that the purchaser could enforce, not only the payment of rent, but also the other obligations of a tenant, though in my judgment in that case I acceded to this view with some

hesitation. The defendant in this case goes a step farther, and maintains that the purchaser is bound, whether be is willing or not, to accept the tenant as his own. I do not think that the authorities go that length. The strongest statement of the law is in Wille on Landlord and Tenant in South Africa 221, which says: " 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. " But this is no authority for the proposition that, notwithstanding the purchaser's ordinary right to demand from the vendor vacant possession of the property sold, he must in all oases be content to take possession subject to the tenant's right of occupation. It seems to me that Voet 19, 2, 19, which is the main authority on this subject, contains an explanation of the underlying principle. For, after stating that a singular successor like a purchaser must bear with the tenants to the end of the term (ad finem usque ferre debet) if they are willing to pay him the rent, he says the reason is that, as by the acquisition of ownership a purchaser would according to natural reason have had the fruits and use of the thing, it is equitable that at least what represents the fruits, viz., the rent, should come to him. That is to say, the perception of the rent is a mode of possession to which he becomes entitled by the purchase, but nowhere

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