1956 Present : Gratiaen, J., and Gunasekara, J.

MRS. J. BRITTO, Appellant, and W. HEENATIGALA,
Respondent.

S. C. 432-D. C. Colombo, 6,532

Rent Restriction Act, No. 29 of 1948-Sections 13 and 27-Letting of co-owned premises- Partition sale thereafter-Does not terminate statutory tenancy-Partition. Ordinance (Cap. 56), ss. 4,8.

The statutory protection of a tenant under the Rent Restriction Act is not automatically extinguished if the leased premises are purchased (either by a co-owner or by a third party) in terms of a decree for sale under the Partition Ordinance.

APPEAL from a judgment of the District Court, Colombo.

H. W. Jayewardene, Q.C., with W. P. N. de Silva, for the defendant appellant.

Sir Lalita Rajapakse, Q.C., with C. G. Weeramantry, for the plaintiff respondent.

Cur. adv. vult.

328

February 27, 1956. GRATIAEN, J.-

The question for our decision on this appeal is whether the statutory protection of a tenant under the Rent Restriction Act No. 29 of 1948 is automatically extinguished if the leased premises are purchased (either by a co-owner or by a third party) in terms of a decree for sale under the Partition Ordinance. In Heenatigala v. Bird 1[(1954) 55 N. L, R. 277 at 280.] Pulle J. expressed the opinion obiter that " the certificate of sale issued (under section 8 of the Ordinance) had 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 Act could not apply because the certificate conferred a title which was not subject to the tenancy agreement ". Swan J., who pronounced the principal judgment in that case, did not discuss this problem because counsel appearing for the tenant " did not think it worthwhile to pursue the matter, and stated that his client was willing to surrender possession if he was given time ". We are therefore free to examine the question afresh. In the rest of my judgment, I shall refer to the Partition Ordinance as " the Ordinance " and to the Rent Restriction Act, No. 29 of 1948, as " the Act ".

The premises to which this action relates are situated in an area in respect of which the Act is in operation. The defendant had entered into occupation of it as a tenant on 15th October 1947 by virtue of a notarial lease executed in her favour by the plaintiff (as co-owner) and by virtue of contracts of monthly tenancy granted to her by all the other co-owners. During the subsistence of these tenancy agreements, the plaintiff instituted an action against his co-owners for the sale of the premises under the Ordinance, a partition being admittedly impracticable. On 6th July 1950 a decree was entered under section 4 declaring the plaintiff and three others to be entitled to an undivided 1/4 share each and ordering the premises to be sold under section 8 subject to the rights of a mortgagee. The premises were accordingly put up for sale by public auction on 12th October 1950 and the plaintiff was declared the purchaser. The sale was in due course confirmed by the Court, and on 5th February 1952 a certificate of sale was issued to the plaintiff under section 8 as evidence of his title as sole owner. Shortly afterwards he sued the defendant for ejectment on the footing that her former rights as tenant had been extinguished by the decree for sale and that, as purchaser, he was now vested with a title which brought to an end the statutory protection which she would otherwise have enjoyed under the Rent Restriction Act No. 29 of 1948. The learned District Judge upheld this contention and ordered a decree for ejectment as prayed for, awarding damages at Rs. 40/55 per mensem less a sum of Rs. 280/24 which the defendant had paid on the plaintiff's behalf as Municipal rates.

I have come to the conclusion that the propositions of law relied on in support of the plaintiff's cause of action must be