1936 Present : Abrahams C.J. and Soertsz A.J.

UKKUWA v. FERNANDO.

 158-D. C. Kandy, 45,334-

Lessor and lessee-Tenant under informal lease-Subsequent lease by notarial instrument-Right of latter to give notice to former-Position of original lessee-Monthly tenancy-Action in ejectment.

Where the lessee of a land on an informal document was sued in ejectment by a subsequent lessee of the land on a notarial instrument, who gave him notice to quit within thirty days,-

Held, that the original lessee was in the position of a monthly tenant who was entitled to a calendar month's notice ; and that the plaintiff could not sue him in ejectment until the monthly tenancy had been determined by due notice given him by his lessor.

In the absence of an attornment of the original lessee to the plaintiff or an assignment after notice of the lessor's rights to him the plaintiff is not entitled to give the defendant notice to quit.

THE plaintiff sued the defendant to eject him from a land which he had obtained on an indenture of lease from the owner, Ukku Amma, who leased the land to him for a period of two years commencing on August 11, 1933. He alleged that the defendant was a tenant-at-will from his lessor and that he requested him to leave the premises within thirty days from August 24, 1934, but that the defendant denied plaintiff's right to give him notice and was in wrongful possession of the land.

The defendant filed answer stating that he held the land from Ukku Amma on an informal lease dated November 26, 1932. He denied plaintiff's right to give him notice to quit and prayed that plaintiff's action be dismissed.

C.V. Ranawake (with him Dodwell Goonewardene), for defendant, appellant.-The defendant is not in the position of a tenant-at-will, his informal document creates a monthly tenancy. (Bandara v. Appuhamy [1 25 N. L. R. 176. ] , Wambeek v. Le Mesurier[2 3 N.L. R. 105. ].) If the document operated so as to create a monthly tenancy, this contract of tenancy was with the owner of the premises, not with the plaintiff, who is a lessee of the owner. There has been no assignment to the plaintiff of the owner's rights as landlord nor has the defendant attorned to the plaintiff; in other words there is no privity of contract between the plaintiff and the defendant. See Wijeratne v. Hendrick[3 3 N.L. R. 158. ], Arnolis v. Mohideen Pitche [4 3 Bal . 159. ], Rajapakse v. Cooray [5 2 Times of Cey. L. R. 209. ].

If then the contract is with the owner the question of a due and proper notice, on which the learned District Judge has gone, does not arise ; even if it does arise the notice is bad inasmuch as the notice should be a calendar month's notice.

H. V. Perera (with him S. W. Jayasuriya), for plaintiff, respondent.- On the authority of de Silva v. Goonewardene [6 2 Browne 202.] and The Secretary of State for the War Department v. Ward [7 2 Browne 256.] the defendant must be held to be a tenant-at-will, and accordingly he is not entitled to any formal notice. The plaintiff's lease is an alienation pro tanto, and the plaintiff was entitled to do whatever the owner, his lessor, could do ; his lease created proprietary rights which the plaintiff can make good against the whole world. (Goonewardane v. Rajapakses [8 1 N. L. R. 217.], Carron v. Fernando [9 35 N. L. R. 352.].) As a tenant-at-will the defendant was not entitled to any formal notice; the position is the same even if he was not such a tenant, his document of title being the informal lease. (Auneris v. Aralis [10 30 N. L. R. 363.] Cornelius v. Dionis.[11 13 C. L. Rec. 254.]"

Goonewardene, in reply.-The cases in 2 Browne do not help to determine the question of a tenancy-at-will; there no reliance was placed on any special agreement; here there is an agreement, however informal, with distinct stipulations as to payment of rent, &c. (D 1). No doubt the plaintiff's lease created propr