Goonesekere V. Ramapillai

1933 Present: Dalton S.P.J. and Drieberg J.

GOONESEKERE v. RAMAPILLAI.

138-D. C. Kandy, 41,475.

Lease-Assignment with written consent-Liability of lessee for rent.

A lessee, who has assigned his lease with the written consent of his lessor is not liable for the rent.

APPEAL from a judgment of the District Judge of Kandy.

H. V. Perera (with him E. B. Wikramanayake), for first defendant, appellant.

N. Gratiaen, for plaintiff, respondent.

Cur. adv. vult.

May 22, 1933. DALTON S.P.J.-

The plaintiff sues in her personal capacity and as executrix of her late husband. Together they granted to the first defendant, who is the present appellant, a lease, No. 435, of a rubber land some 8 acres in extent with the buildings and plantations thereon for a period of five years from November 30, 1927. The lease provided that the lessee, the first defendant, should not assign or underlet the premises leased without the consent in writing of the lessors. On July 20, 1929, plaintiff gave a written consent (exhibit P1) to the assignment of the lease

so granted to the second and the third defendants, and on August 3, 1929, a notarial assignment was executed by the first defendant in favour of the second and third defendants (exhibit P 2). It sets out that, in consideration for a certain sum, the first defendant " doth hereby sell, assign, and set over" to the second and third defendants " all that indenture of lease No. 435 and all benefit and advantage thereof, and all the estate, right . . . ." of the first defendant over the land and premises to hold the land and premises during the residue of the unexpired term " subject to the rent reserved by the said indenture of lease and the covenants therein contained . . . ."; the second and third defendants then covenant to pay the rents reserved and to perform the covenants contained in the lease.

At the date of the assignment it is conceded that no rent was due by the first defendant, but subsequent rent became due and was unpaid. Plaintiff thereupon instituted this action to recover rent from the three defendants jointly and severally, that is, the original lessee and his assignees. Subsequently the claim against the third defendant was waived, but plaintiff obtained judgment for the amount he claimed against the first and second defendants.

The first defendant pleaded that the assignment being with the written consent of the lessor, as provided in the lease, he was freed thereby from any liability for rent after the completion of the assignment. The learned District Judge, however, held, on the authority of Walter Pereira in his Laws of Ceylon, that the original lessee remains liable in spite of the assignment given with the written consent of the lessor. From that conclusion the first defendant appeals.

The case is governed by the common law, although the term " assignment " in Ceylon is taken over from English law, just as it has been taken over in South Africa (see Lee's Roman-Dutch Law (3rd ed.), p. 310). The effect of an assignment, as opposed to a sublease, is there set out by the learned author. It substitutes the assignee in place of the original lessee "who thereupon ceases to be bound or entitled under the contract".

Wille in Landlord and Tenant in South Africa sets out the effect of an assignment or cession of a lease in the same way. It is " a transference by the tenant of all his existing rights and all his existing obligations under his lease to another person so that the assignee is substituted for the tenant". The tenant loses all rights and is relieved of all obligations, the assignee becoming the tenant under the terms and conditions of the original lease. The assignment before us has in express terms provided for this, and is entered into by the parties with the written consent of the lessor. Wille also points out, to answer another argument raised by Mr. Gratiaen, that a stipulation that a

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