JUDGMENT

Barakbah (Malaya) CJ:

This case originated in the Sessions Court at Pasir Mas. The claim was for vacant possession of premises No. 56 Jalan Market, Pasir Mas, and damages for unlawful occupation of the said premises. The learned president ordered the defendants to surrender vacant possession of the said house. The defendants appealed against this order to the High Court, Kota Bharu, and the learned Judge dismissed the appeal. They now appeal to this Court.

The brief facts of the case are that the respondent (plaintiff) is the owner of the said premises. She rented it out to one Mohamed Merah on a monthly tenancy. Mohamed Merah died in 1947 leaving his widow, the first appellant, and a son, the second appellant, in occupation of the house. The first appellant remarried and went to live with her new husband at Dungun, Trengganu. During her absence, the said premises was occupied by one Packeer Mohamed till 1962 when he went back to India. According to the respondent the first appellant then resumed occupation of the said premises. This was denied by the first appellant who contended that she was in continuous occupation from the death of her husband.

At the beginning of the hearing, Mr. Wilson, Counsel for the appellants, applied for permission to withdraw the admission made by Che Hashim, former Counsel for the appellants, on the ground that it was an erroneous statement of law. It is on record that the said Counsel submitted "I agree first defendant is no longer a widow and not protected by Control of Rent Ordinance." Mr. Wrigglesworth,

Counsel for the respondent, argued that the appellants had first of all to show that it was an erroneous statement of law and although he was taken by surprise he was prepared to proceed with the hearing. I agreed with Mr. Wrigglesworth and the hearing proceeded.

The first question for the decision of the Court is whether the first appellant is a "widow" under the Control of Rent Ordinance 1956. Section 12(1)(i) states:

No order of judgment for the recovery of possession of any premises comprised in a tenancy shall be made or given except in the following cases, namely -

(i) where neither the tenant nor any member of his family is personally in occupation of the premises or any part thereof;

and according to the definition of "tenant" under s. 2(1) it includes "the widow of a tenant who was residing with him at the time of his death."

In his submission, Counsel for the appellants stated that although first appellant remarried, she was still a widow under the said Ordinance. According to Megarry's The Rent Acts, 9th Edn., p. 203 the tenancy of a widow was not limited in duration to her widowship, and so remained unaffected by her remarriage. In the case of Apsley v. Barr [1928] NI 183; 31 E & E Digest 666 - "Plaintiff" was the owner of a dwelling-house subject to Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. The premises had been let as a weekly tenancy, in or about 1923, to N, who was then in plaintiff's employment, at the rent of 5s per week. N died intestate in June 1926, leaving defendant his widow, who up to the time of his death resided with him. On the death of her husband, defendant remained in occupation and entered into legal possession of the house under Increase of Rent, etc. (Restrictions) Act, 1920, s. 12(1) (g). Defendant married again in March 1928 and her second husband and his children came to reside in the house occupied by her. The landlord instituted ejectment proceedings against defendant who claimed the protection of Increase of Rent (Restrictions) Acts. Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, s. 12(1)(g), provides that `the expression tenant includes the widow of a tenant dying intestate who was residing with him at the time of his death': Held: the widow acquired a vested interest as tenant, and there was nothing in Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, which divested this interest on