Mrs. Hensman V. Mrs. Mary Stephen

1953 Present : Gratiaen J.

MRS. E. D. HENSMAN, Appellant, and MRS. MARY
STEPHEN et al., Respondents

S. C. 198-C.R Colombo,. 34,496
 

Rent Restriction Act, No. 29 of 1948-Death of tenant-Continuance of tenancy- Scope of Section 18.

Where a monthly tenant, who has been given due notice to quit residential premises to which the Rent Restriction Act applies, dies during the pendency of an action for ejectment instituted against him by the landlord, his widow and family are no longer entitled to occupy the premises as against the landlord-Section 18 of the Rent Restriction Act, which provides for continuance of tenancy upon the death of a tenant, has no application where the original contractual tenancy had already been determined according to the common law so that all that the former " tenant " thereafter enjoyed was a statutory protection which was personal to him.

APPEAL from a judgment of the Court of Requests, Colombo.

H. W. Jayewardene, with D. R. P. Goonetilleke, for the plaintiff appellant.

H. W. Tambiah, for the substituted defendants respondents.

Cur. adv. vult.

October 12, 1953. GRATIAEN J.-

This appeal involves a consideration of the scope of section 18 of the Rent Restriction Act, No. 29 of 1948.

The appellant has let certain residential premises, to which the Act admittedly applies, on a monthly tenancy to S. M. Stephen. She filed action against him for ejectment on 8th August, 1951, having previously

given due notice terminating the contractual tenancy, and she claimed that he was not entitled to statutory protection from ejectment because, inter alia, the premises were reasonably required as a residence for herself and her family within the meaning of section 13 (1) (c).

S. M. Stephen died on 24th December, 1951, pending the action for ejectment, but his widow (who is the respondent to the present appeal) purported on 8th January, 1952, to serve a notice on the appellant under section 18 (2) (a) to the effect that she proposed, as "the surviving spouse of the deceased tenant", to continue in occupation of the premises, as tenant. There can be no doubt that, if the section applies to a case of this nature, the respondent would have become, by operation of the Act, a substituted tenant of the premises with effect from 1st January, 1952. In that event, the appellant would not be entitled to eject her or the other members of her household on the footing that they had ceased to enjoy rights of occupation under the previous " tenant" (S. M. Stephen).

The learned Commissioner of Requests has taken the view that the respondent was entitled to avail herself of the provisions of section 18 of the Act. The appellant contends, however, that section 18 does not apply because, in the present case, S. M. Stephen had in truth ceased to be a " tenant " long before the respondent had purported to invoke section 18.

In dealing with this issue, it is necessary to remind oneself of the extent to which the Act interferes with the common law rights of a landlord vis a vis his contractual tenant. The provisions of the Act " do not prevent an owner from terminating the tenancy of his tenant in the ordinary way; what they do is to give the person who has been tenant a right (in certain specified circumstances) to remain in possession after the tenancy has gone "-Baker v. Turner1[ (1950) A. C. 401 at 436.]. It follows, therefore, that the contractual monthly tenancy between the appellant and S. M. Stephen was lawfully determined by due notice at a date long prior to his death, but that, although he ceased to be a tenant thereafter, he still -enjoyed " a purely personal right " to remain in occupation of the premises against the wish of his landlord until an order for his ejectment was made by a Court of law. In other words, he could not be turned out of possession so long as he complied with the provisions of the Act and until the landlord co

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