Heenatigala, W. V. Bird, L.G.

1954 Present: Pulle J. and Swan J.

W. HEENATIGALA, Appellant, and L. G. BIRD, Respondent

S. C. 377-D. C. Colombo, 6,531L
 

Rent Restriction Act, No. 29 of 1948-Section 13-Letting of co-owned premises- Partition sale thereafter-Effect of such sale on the tenancy agreement.

Per PULLE J.-Where premises which are owned in common are let under a contract of tenancy and, subsequently, one of the co-owners purchases the premises at a partition sale, the certificate of sale has the effect of terminating the relationship of landlord and tenant and of constituting the purchaser an independent title holder to whom the restriction contained in section 13 of the Rent Restriction Act cannot apply. The certificate confers a title which is not subject to the tenancy agreement.

APPEAL from a judgment of the District Court, Colombo.

Sir Lalita Rajapakse, Q. C'., with Kingsley Herat and H. R. Gunawardene, for the plaintiff appellant.-The purchaser, even if he he a co-owner and the former landlord, gets a new title, which is created by the partition decree which is a decree in rem-Bernard v. Fernando1[(1913) 16 N. L. R. 438.], Seedin v. Thedia 2[ (1951) 53 N. L. R. 63.]. The trial Judge is wrong on the question of fact that there has been a fresh attornment after the sale. Even if he was right, the co-ownership continued till the issue of the certificate of title and it is only after the issue of the certificate that the co-ownership terminates and the purchaser gets the new title.

The old contractual relationship of landlord and tenant between plaintiff and defendant ceased the moment the certificate of title was issued-Khan Bhai v. Perera 3[(1924) 26 N. L. R 205 at 208.].

The partition decree gives a title paramount and the Rent Restriction Act does not come into operation unless there was a fresh attornment of a tenancy after the certificate of sale. The position will be the same if the premises had been acquired under the Land Acquisition Act 9 of 1950. See Megarry (7th edition) pp. 21-22.

E. R. S. R. Coomaraswamy, with E. W. Wimalachandra, for the defendant respondent.-Even if the decree for sale created a new title and the purchaser at the sale obtained it, there is a finding of the Judge that there was an attornment after such sale, though none after the issue of the certificate of title. The Rent Restriction Acts operate in rem

and not in personam. The Act imposes a status on the house which binds both landlord and the tenant. It operates in rem. See Megarry, page 16.

If the partition decree is permitted to override the provisions of the Rent Restriction Act it will enable a co-owner of premises to file a partition action to enable him to eject the tenant.

[PULLE J.-One is permitted to evade the provisions of a statute, so long as one acts within the law, as in Income Tax evasions.]

Cur. adv. vult.

 February 11, 1954. SWAN J.-

In this case the appellant sued the respondent for declaration of title to and ejectment from premises No. 246, Skinner's Road North, Colombo. The appellant had purchased these premises at a partition sale in case No. 5,744/D. C. Colombo. The appellant was the plaintiff in that action. He claimed and was declared entitled to 1/4 share of the premises in question along with the premises on either side of No. 246, namely Nos. 244 and 248. The decree for sale was entered on 6th July, 1950. The sale took place on 12th October, 1950. It was confirmed on 30th January, 1952. Certificate of sale was issued on 5th February, 1952.

The respondent was occupying the premises in question both before and after the sale as the tenant of Mr. S. E. A. Perera who collected the rents of all three houses and distributed the amount among the co-owners. The respondent's case was that shortly after the sale the appellant came and told him that he had purchased the premises and that he was the " new landlord ". That was sometime in October, 195

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