Back
ABDUL HAFEEL v. MUTTU BARHOOL
NLR58V409
1957 Present: Basnayake,
C.J., and Pulle, J.
ABDUL HAFEEL, and another Appellant, and MUTTU
BATHOOL, Respondent
S. C. 582-D. C. Galle, 5,228/L
Landlord and tenant-Monthly
tenancy-Death of tenant-Effect on contract of tenancy-Rent Restriction Act, s.
18.
On the death of a monthly tenant the contract of tenancy terminates at the end
of the month in which the tenant dies, and the heirs or executors of the
deceased tenant are not entitled to occupy the premises thereafter except upon a
fresh contract with the landlord or unless they can avail themselves of section
18 of the Rent Restriction Act.
APPEAL
from a judgment of the District Court,
Galle.
H. V. Perera, Q.C., with E. R. S. R. Coomaraswamy, for Plaintiff-Appellants.
H. W. Jayewardene, Q.C., with M. Markhani, for Defendant-Respondent.
Cur. adv. vult.
April 11, 1957. BASNAYAKE,
C.J.-
In this action the plaintiffs who claim to be the co-owners of premises No. 124
in Main Street, Galle, each being entitled to an undivided half share ask for a
decree in ejectment and damages against the defendant who is the widow and
executrix of the estate of one A. M. A. Cader.
It would appear that Cader was a monthly tenant of premises No. 124 at the time
of his death and that he carried on therein a hardware business. Cader died on
6th March 1951 and his widow the defendant has since that date continued to
occupy the premises and carry on the same business therein. The plaintiffs
assert that the defendant has no right to remain in the premises and is
therefore in unlawful occupation of it and seek her removal by process of court.
No rent has been accepted by the plaintiffs from the defendant at any time and
they have all along refused to recognise her as tenant. The plaintiffs claim
from her damages at the rate of Rs. 115/76 per mensem from the date of Cader 's
death till she delivers up possession of the premises and they are placed in
quiet possession.
The defendant contended at the trial that on Cader 's death his rights and
obligations under the contract of tenancy passed by operation of law to her as
the executrix of his last will.
The learned trial Judge has upheld that contention. He bases bis finding on a
statement at page 102 of Lee and Honore's Law of Obligations.
The appellant canvasses
that finding. It is submitted that on the death of a monthly tenant the contract
of tenancy comes to an end and the heirs or the executors of the deceased tenant
are not entitled to remain in the premises.
The passage in Lee & Honore on which the learned trial Judge has based his
judgment is as follows :-
" 389. Effect of death of parties. In the absence of agreement to the contrary,
the rights and duties of the lessor and of the lessee are (normally) transmitted
on death to their representatives ; but a lease expressed to be at the will of
either party is determined by that party's death."
The authorities cited in support of this statement are Grotius 3.19.9, Voet
19.2.9 and Ontwerp 2603. Of these authorities I have not been able to get the
last named work. Grotius's statement is as follows :-
" But a person may also let for as long as he pleases, which letting is
understood to expire by death, although other lettings, in which the time is
fixed, are valid after the death of the lessee, and go over to his heirs. "
Voet's statement runs thus (Gane's translation) :
" Then again in the second place the contract is either so made that it has an
end at a definite time, say in one, two or five years ; or so that its duration
is indefinite, " as long " for instance " as the lessor should be willing ". In
such a case it has been held that on the analogy of a loan on sufferance it
comes to an end both on the death of the lessor and on the announcement of an
adverse intention being made by the lessor in his life-time. "
I am unable to find in any of these statements support for the view that on the
death of
