Kanagaletchumy Et Al., V. Marikair

1954 Present:  Nagalingam S.P.J. and de Silva J.

K. KANAGALETCHUMY et al., Appellants, and
A.. M. M. MARIKAIR, Respondent

 S . C 256-D. C. Batticaloa 798L

Lease-Non-payment of rent and taxes-Forfeiture.

In the absence of a forfeiture clause or an express condition a lease is not-liable to be cancelled for breach of a covenant to pay rent unless (I) the nonpayment of rent is deliberate and persistent or contumacious, (2) the lessee is in arrear of rent for two years and (3) the lessor gives the lessee notice of terminating the lease if the arrears are not paid.

An undertaking by a lessee to pay taxes in respect of the leased premises is a condition for the breach of which the lessor is entitled to a cancellation of the lease.

 APPEAL from a judgment of the District Court, Batticaloa.

C. Renganathan, for the 1st and 2nd defendants appellants.

S. J. V. Chelvanayakam, Q.C., with E. Jayaweerasingham, for the plaintiff respondent.

Cur. adv. vult.

December 21, 1954. DE SILVA J.-

The two questions which come up for decision in this appeal are (1) In what circumstances is a lessor entitled to a cancellation of a lease for non-payment of rent which the lessee has undertaken to pay and (2) Is a lease liable to be cancelled for a breach of an undertaking to pay taxes, when the indenture of lease itself is silent as to what is to happen in the event of a breach of these covenants ?

The plaintiff-respondent who is the owner of the premises described In the amended plaint leased the same to one Kanapathipillai by bond P 1 dated 26th March, 1948, for a period of 10 years at a rental of Rs. 3,000. That part of this deed which is material to this case reads :-

" I do hereby declare that the sum of Rs. 1,000 paid by the lessee as advance on this date should always remain with me as deposit, that at the end of every month he should pay me a sum of Rs. 25 as monthly rent and obtain receipt, that he should pay the taxes due to the U. C, effect necessary repairs and put up the buildings required according to his convenience and render proper accounts to me, that at the expiration of the said term of lease I shall repay this money together with the sum of Rs. 1,000 received as advance, that in default thereof he can sue for and recover the same, that I shall settle all disputes and objections that may arise as regards lessee's possession and that the lessee and his substitutes, heirs, executors, administrators and assigns can possess the loaded property until the expiration of the said term of lease. Thus declaring and binding myself and my substitutes, heirs, executors, administrators and assigns and giving over lease possession of the said property I have executed this deed of lease.

I the said Murugappar Kanapathipillai the lessee consenting to the above said conditions have accepted this lease."

The lessee died on or about 31st October, 1949, having devised by he last will all his property to his daughter, the 1st defendant, a minor, whose guardian ad litem is the 2nd defendant, her mother. The 3rd

and 4th defendants are sub-tenants of the 1st defendants, but they have since the institution of this action vacated the premises. , No rent or taxes whatsoever has been paid on this lease by the original lessee, or by anyone else. Taxes were paid by the plaintiff during the pendency of the lease.

The plaintiff instituted this action on 2nd Februarys 1952, for a cancellation of the lease and the ejectment of the defendants to recover arrears of rent and damages. Although the 1st and 2nd defendants in their answer denied the averment in the plaint that the lessee had failed to pay rent or taxes, the learned District Judge held that neither rent nor taxes was paid by the lessee and that therefore there was a. breach of covenant which entitled the plaintiff to claim a cancellation, of the lease and to recover arrears of rent and taxes paid by him. Again

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