Marthelis Appuhamy V. Peiris Et Al

1946 Present: Soertsz A. C. J and Rose J.

MARTHELIS APPUHAMY, Appellant, and PEIRIS, et al.,
Respondents

64-D. C. Chilaw, 11,947.

Contract-For benefit of third-The third party can enforce it-Roman-Dutch Law.

Where a covenant was entered into between a lessee and a sub-lessee for the benefit of the original lessors, -
    
Held, that the lessors could, under the Roman-Dutch law, claim the benefit of, and sue on, the stipulation made in their favour, although they themselves were no parties to the contract of sub-lease.

APPEAL from a judgment of the District Judge of Chilaw.
   
              H. V. Perera, K. C. (with him H. A. Koattegoda), for the defendant, appellant.
   
            N. E. Weerasooria, K. C. (with him Austin Jayasuriya), for the plaintiffs, respondents.

Cur. adv. vult.

January 16, 1946. SOERTSZ A. C. J. ?
   
The facts that are material for the consideration of the question that arises in this case are as follows:- The first plaintiff and her deceased husband, being in urgent need of a sum of sixty thousand rupees obtained it from the first plaintiff?s father, giving him in return a lease of certain lands belonging to them, for a period of 20 years from March 6, 1926, at an annual rental of Rs. 3,000. A covenant in the indenture of lease provided ?that if the said lessee possessed the property hereby leased within the first seventeen years in full absolutely without any interruption from the said lessors or from any one of their heirs and so forth (sic), he shall assign back the lease of the remaining three years without recovering any money from the lessors or their heirs and so forth (sic) after such possession, that the said lessors shall cause to possess the property hereby leased within the said leasehold period uninterruptedly and that if any damage of or loss sustained in failure thereof the lessors shall pay all such demage and loss unto the said lessee. That the lessee shall at the termination of the said lease deliver back the said property unto the said lessors without causing any damage thereto and shall vacate same peacefully. And the said two parties the lessors and lessee for themselves and their heirs, executors, administrators and assigns have hereby further promised and bound to and with the other party for the true performance of the aforesaid conditions?.
   
By an indenture of lease dated June 4, 1927, the lessee sub-leased these lands to his son Walter for a period of eighteen years and eight months subject to a condition similar to that undertaken by him. Walker sub-leased the premises at the end of fourteen years and six months to one K. A. S. Fernando for a period of four years and three months providing for an earlier termination of the lease. K. A. S. Fernando, himself, by indenture dated October 6, 1942, sub-leased these lands to the defendant-appellant for a period of forty-one months, an earlier termination being again provided for.
   
The plaintiff now complain that although the period of seventeen years has elapsed without let or hindrance on their part to the persons entitled to the possession of these lands, the defendant has continued to possess them wrongfully and unlawfully. The first plaintiff is one of the lessors, and the second, third and fourth plaintiffs are the children born to her and the deceased lessor. The defendant is the last sub-lessee, his lease having commenced when the seventeen-year period referred to in use first indenture of lease had five months more to go to attain completion They therefore pray for a declaration: -
  
              (a) that the defendant holds the leasehold rights in respect of the said lands and premises for the benefit of the plaintiff as regards the period commencing from March 6, 1943, to March 6, 1943.

             (b) that the defendant be ordered to execute a valid assignment of the said leasehold rights for the said period in

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