1935. Present  : Poyser and Koch JJ. and Soertsz A.J.

PERERA v. SILVA.

72-D. C. Colombo, 53,070.

Landlord and tenant-Lien over tenant's property-Enforcement of lien-Judicial process-Damages for wrongful detention.

A landlord's lien over the movable property in the possession of his tenant may be enforced only through judicial process.

A landlord who detained such property without judicial 'process is. liable in damages.

CASE referred by Akbar and Koch JJ. to a Bench of three Judges.

This was an action by a landlord against his tenant for balance of rent due. The defendant denied that any sum was due for rent, and counter-claimed for damages in respect of the alleged wrongful detention of his motor car. The District Judge found that a sum of Rs. 240 was due to the plaintiff for rent. The question referred was whether plaintiff was entitled, in view of the fact that rent was due to him, to detain the defendant's car.

H. V. Perera (with him Kurukulasuriya, Aluwihare, and Mackenzie Pereira), for defendant, appellant.-The landlord had no right to retain the car without first obtaining an order from Court. The landlord's lien over the goods of his tenant for arrears of rent is only a legal hypothec. Immediately rent becomes due, there is a right of hypothec. This hypothec will extend even after goods have left the premises, so long as they are with the tenant.

A landlord has not actual possession of the personal belongings of a tenant; can it be said that he is in legal possession of such belongings? Voet is careful to say (Voet, XX. 2, 3) that the tacit pledge is of no force and avail (i.e., not operative) until a certain thing takes place (viz., sequestration). This sequestration must be by public authority or judicial process-see Ramanathan's Reports (1877), p. 63. Till such sequestration takes place, this tacit pledge remains a right of preference only.

Voet's view is supported by other Roman-Dutch law authorities- vide Maasdorp, vol. II., p. 285 (5th ed.); Van der Keessel (Lorensz' Trans.), p. 150; Wille on Landlord and Tenant (1910 ed.), p. 357; Nathan, vol. 11. (2nd ed.), p. 1066.

See Voet (bk. XX. 1, 1) for definition of pignus and hypothec. The word " pledge" is used to include both a pledge properly so-called (a pawn) and also a hypothec.

E. F. N. Gratiaen (with him H. N. G. Fernando), for plaintiff, respondent.-It has always been believed that the landlord had a right to distrain on the property of his tenant for rent due. See Meera Lebbe Marikar v. Bell [1 2 C. L. Rep. at p. 94.]-per Burnside C J.

The landlord's lien is based on an unqualified agreement between the parties that if, at any time, rent is in arrears, the tenant agrees that his

property shall remain as security. It is greater than a purely hypothecary right. The landlord has a jus retentionis. There is a fictitious delivery of goods to the landlord himself, a tacit pledge (pignus tacitus).

In The Anglo-Oriental Furnishing Company v. Samarasinha[1 7 N. L. R. 13.], Grenier J. states that a landlord has a right to retain property of the tenant, where the latter has quitted, leaving arrears of rent unpaid.

Once goods have been removed, as against third parties who have obtained certain rights, the landlord cannot claim a preferential right without sequestration. The necessity of sequestration arose only when third parties' rights came into conflict with the landlord's legal hypothec; but between a landlord and a tenant, the hypothec is effectual for purposes of detention without any sequestration. See Webster v. Ellison[2 (1911) S. A. Law Rep. App. 73.].

Counsel also cited Marikar v. Mohamed[3 17 N. L. R. 191.] and Pieris v. Sinnamuttu[4 28 N. L. R. 443.].

H. V. Perera, in reply.-Meera Lebbe Marikar v. Bell (supra) cannot be followed in these circumstances. Our Common law is the Roman-Dutch law-see per Macdonell C.J. in Sultan v. Peiris[5 36 N. L. R. 63.]. This question has t