CA A ttanagoda v.

Liyanarachchi 359

ATTANAGODA
v.
LIYANARACHCHI

COURT OF APPEAL
WEERASEKERA J.,
J A Y A S IN G H E , J.
C. A. NO. 386/88 (F).
D. C. MT. LAVINIA NO. 1729/RE.
SEPTEMBER 8, 12, 1997.

Rent A c t - S. 21 (2) - Tenancy - H usband an d wife living apart - Wife paying

rent - Does she becom e the tenant - Privity o f contract - Right o f a deserted
wife.

The plaintiff-appellant filed action seeking to eject the defendant-respondent from

the premises in question alleging that she was in arrears of rent and on the ground
of subletting. The defendant-respondent in her answer denied tenancy, and claimed
that the tenancy agreement was between the plaintiff and her husband and that,
the tenant was not in arrears, and moved for the dismissal of the action. The
dependant-respondent and her husband were living apart. It was contended that
the defendant by a long and continued payment of rent became the tenant, the
defendant-respondent had paid rent to the Municipal Council in her own name
from 1976-1981, and not in the name of the husband, and as rent has been
accepted by the landlord, there was a contract of tenancy between the plaintiff
and the defendant. The action was dismissed. On appeal -

H e ld :

(1) The burden was on the plaintiff-appellant to establish that there was an
abrogation of the agreement between the plaintiff and the defendant's
husband and that there was the emergence of a new contract of tenancy
between the plaintiff and the defendant.

(2) Payments had been made by the defendant, the wife of the tenant husband.
Even though they were living apart the marriage was still subsisting. It
is the evidence of the tenant that his wife and children lived at the premises
and that he came home every week-end, his furniture was in the premises,
and that his wife paid the rent out of the money that was advanced by
him.
360 Sri Lanka L aw Reports [1999] 3 Sri L ft

(3) It is now settled law that the deserted wife cannot be ejected by the husband
nor the landlord. The landlord can only get possession if the rent is unpaid
or some other condition of the Act is satisfied entitling him to possession.

(4) The plaintiff-appellant's action must fail on the basis that there is no privity
of contract between the plaintiff and the defendant

APPEAL from the judgment of the District Court of Mount Lavinia.

Cases referred to:

1. Alwis v. Kulatunga - 73 NLR 337.

2. Middleton v. Baldock - 1950 1 ALL ER 708.
3. - 1949 2 ALL ER 822.
O ld G ates Estate Ltd. v. Alexander an d Another
4. National Provincial Bank Ltd. v. Ainsworth- 1965 AC1175.
5. Husseniya v. Jayawardane, 1981 - Sri LR. 93.
6. M. M. Perera v. D. M. J. d e Silva - [1988] 1 Sri LR. 1.
7. D. M. J. de Silva v. Mallika Perera - [1989] 2 Sri LR. 353.

A. K. Prem adasa, PC with C. E. de Silva for plaintiff-appellant.

P. A. D. Sam arasekera, PC with L V. P. W ettasinghe for defendant-respondent.

Cur. adv. vutt.

November 26, 1997.

JAYASINGHE, J.

The plaintiff filed action in the District Court of Mount Lavinia seeking
to eject the defendant from the premises No. 109, Jayasumana Road,
Ratmalana alleging that the defendant was in arrears of rent from
March, 1981 to February, 1982, and that the defendant had sublet
the premises to one Leonard from January, 1980. The plaintiff also
pleads for arrears of rent and damages in a sum of Rs. 613/20.

The defendant in her answer denied tenancy. Claimed that the

tenancy agreement was between the plaintiff and her husband one
CA A ttanagoda v. Liyanarachchi (Jayasinghe, J.) 361

S. Liyanarachchi. That her husband the said Liyanarachchi had ten­

anted the said premises from one Charles Subasinghe the father-in-
law of the plaintiff in February, 1957 and that on the death of the
said Charles Subasinghe the defendant's husband became the tenant
of the plaintiff and that all the rents payable were settled by her
husband and pleaded for the dismissal of the action. The learned
District Judge dismissed the plaintiff's action. This appeal is from the
said order.

The main question for determination at the hearing of the appeal

was whether the defendant was the tenant of the plaintiff as alleged
or whether the original tenancy agreement between the defendant's
husband survived even though the defendant and her husband were
living apart. If this Court is to hold with the defendant notwithstanding
the separation that the tenancy survived, then there appears to be
no useful purpose in going into the question of arrears of rent and
the question of subletting. The plaintiff-appellant's action must fail on
the basis that there is no privity of contract between the plaintiff and
the defendant.

Mr. Premadasa presented his case on the basis that the defendant-
respondent was the tenant of the original plaintiff of the premises.
The main thrust of his argument was on the basis that the defendant
by a long and continued payment of rent became the tenant and when
she defaulted payment or rent the tenancy was at an end even though
in the case of a denial of tenancy, the plaintiff need not prove any
ground under the Rent Act. He relied heavily on the statement marked
P2 issued by the Municipal Council according to which the rent has
been paid by the defendant-respondent from 1976 upto 1981 in her
own name and not in the name of her husband. This rent has been
accepted by the landlord and consequently there was a contract of
tenancy between the plaintiff and the defendant. He argued that the
respondent did not give evidence and that, therefore, there was no
evidence to show that the rent was paid on behalf of the husband.
A presumption has to be drawn that she could not support her position
that her husband was the tenant. Mr. Premadasa's other flak of attack
362 Sri Lanka L aw Reports [1999] 3 Sri L f t

was on the construction he placed on s. 21 (2). Mr. Premadasa argued

that by a long and continued payment of rent by the defendant, there
arose a tenancy agreement between the plaintiff and the defendant.
He stated that the word °deemed“ in section 21 (2) of the Rent Act
meant that the person who paid the rent was the tenant. I cannot
agree. What is "deemed" there is that payment received on that day
by the landlord of the premises from the tenant thereof. In V io le t P erera
v. A s ilin N on a, Bar. Ass. LJ. 1995 vol. 6 part 1 page 2 it was held
that section 21 was intended to cater to tenants who experience
difficulty or dilemma in making payment to the landlord. It confers no
tenancy rights nor does it operate to deny tenancy rights.

At the trial before the learned District Judge Chandradasa Subasinghe

who held a power of Attorney on behalf of the plaintiff gave evidence.
He stated that the premises in question belonged to his father and
that it was devised to his sister as the dowry. Consequently, his
brother-in-law became the landlord. That it was rented out to one
Liyanarachchi who paid rent upto 1976. That he had information that
the rent was being paid by his wife. That she had fallen into arrears
of the rent payable. That a portion of the premises had been sub­
let to one Leonard without the consent of the landlord. That for the
said reasons a quit notice was sent on 25.9.1981. That the plaintiff
failed to hand over possession. Under cross-examination he denied
that the tenant was the husband of .the plaintiff. No other evidence
was called for the plaintiff.

Sirisena Liyanarachchi the husband of the defendant gave evidence

for the defendant. He stated that he was originally the tenant of Charles
Subasinghe from 1957 and thereafter , on the death of the said
Subasinghe, he paid rent to Attanagoda the plaintiff. That there was
a breakdown of matrimonial relations around the year 1976 and he
came home for the week-ends. The household expenses were met
by him; thereafter there was a reconciliation. He admitted that there
was a maintenance action filed by the wife. He also stated that the
plaintiff through his Attorneys by D17 sent his wife a quit notice and
that he promptly replied repudiating the allegations while maintaining
CA Attanagoda v. Liyanarachchi (Jayasinghe, J.) 363

that he is still the tenant. The said letter was marked D18'. It is pertinent
to note that this letter was written while the estrangement was continuing.
His wife also wrote to the plaintiff denying that she was the tenant.
The said letter is marked D16. The rest of the evidence led did not
touch the merits of the case and can be disregarded.

Mr. Samarasekera argued that the tenant of the^premises was the

husband of the defendant and that the tenancy has not been termi­
nated by a quit notice by the landlord. He relied on D18. He submitted
that the defendant's husband has by his letter marked D14 reiterated
his tenancy rights and warned both M. D. Attanagoda and Chandrasiri
Subasinghe not to trespass on his rights also urging them to take
action according to law. Mr. Samarasekera further stated that the
husband has not abandoned his tenancy and that his wife and children
continue to live in the said premises. His furniture was yet at the
premises. The rent paid by the wife was, in fact, advanced by him
and that the husband came home for the week-ends. When the wife
paid the rent she did, in fact, pay such rent as the agent of the
husband.

The question for determination before us is that whether there was

a new contract of tenancy between the landlord and the defendant,
by reason of the fact that the rents had been paid by the defendant
for a long period consequent upon the husband leaving the matrimonial
home. It is now a well-settled proposition of law that the deserted
wife cannot be ejected by the husband nor the landlord. . . The
landlord can only get possession if the rent is unpaid or some other
condition of the Act is satisfied entitling him to possession1' - Alles,
J. in A lw is v. K u la tu n g & 'K In the same case Alles, J. went on to discuss
the rights of a deserted wife. " . . . where the husband has deserted
his wife and she has nowhere else to go, no Court would order her
out. She is, therefore, lawfully there, and, so long as she remains
lawfully there, he remains in occupation by her. If he desires to cease
to be in occupation - and cease to be responsible for her occupation
- then he must go to Court and persuade it, if he can, to order her
out. But, until that time arrives she is lawfully there, and she can claim
364 Sri Lanka L aw Reports [1999) 3 Sri L f t

in his right, even against his will, to be there. The landlord can get
possession if the rent is unpaid or some other condition of the Act
is satisfied entitling him to possession". - Lord Denning in M id d le to n
v. B a ldo ck® . Bucknill, U . O ld G a te s E s ta te Ltd. v. A le x a n d e r a n d
A n o t h e r took the view that as long as the husband's furniture was
on the premises he retained possession to that extent . . .“ In the
case of N a tio n a l P ro v in c ia l B a n k Ltd. v. A in s w o rth ; <4* Lord Hodson
stated that " . . . where a husband even when he has deserted his
wife has been treated as still in occupation of the premises since he
remained in possession of them through his wife . . . “ Lord Wilberforce
stated that ". . . the Courts in a number of instances have given
protection to deserted wives of tenants of rent-controlled premises.
They have done this by the devise of holding that the husband-tenant
cannot put an end to the tenancy, even by such acts as delivering
the keys to the landlord, so long as his wife remains on the premises;
he remains there by her, and as long as he does so, whatever else
he does or says, the tenancy remains . . . This doctrine now seems
to be firmly established . . .“ (cited by Alles, J. in A lw is v. K u la tu n g e ),
(su p ra ). Implicit in these dicta is that a deserted wife remains in
occupation for or on behalf of the husband and, therefore, any rents
paid by the wife is deemed to be the rents paid on behalf of the
husband. It is settled law that where payment is made by a third party,
it must be made on behalf of the debtor in order to constitute a valid
discharge. Mr. Premadasa conceded that agents can pay the rent on
behalf of the tenant. But, argued that it must be in the name of the
tenant. Relying on H u s s e n iy a v. Jayaw ardeneP K He said that the
burden was on the payer to establish that the rent was paid on behalf
of the tenant. The defendant failed to discharge this by giving evidence.
That was a case where the plaintiff sued the 1st and 2nd defendants
for ejectment on the ground that the tenant, the 1st defendant was
in arrears of rent and also on the ground that the 1st defendant had
sublet the premises to the 2nd defendant. The second defendant's
position was that he was not a subtenant but that he was the tenant
under the plaintiff. This case can be distinguished on the basis that
payment was made on his own behalf as the tenant. However, the
evidence led at the trial was to the effect that the tenant was, in fact,
 D I G E S T

Page
C A V E A T EM PTO R - See Land Development Ordinance.

C IV IL P R O C E D U R E C O D E - S. 18, S 21, S. 93 (2) - Addition of

parties - Delay - Discretion - Due diligence.

R o h a n a v . S h ya m a A ttyg a la and O th e rs 381

C IV IL P R O C E D U R E C O D E S . 14 , S. 18 - Addition of a party.

M a ck ie & S o n s v . M ack ie and A n o th e r 386

CO N TR ACT - See Rent.Act.

E S T O P P E L - See Land Development Ordinance.

E V ID E N C E O R D IN A N C E - See Land Development Ordinance.

G IF T - See Land Development Ordinance.

L A N D D E V E L O P M E N T O R D IN A N C E - S. 2, s. 161, s. 162 - Permit-

holder - Gift - Transfer to third party - Written consent
of Government Agent prior to transfer - Prescriptive title
- Evidence Ordinance, s. 115 - Estoppel - Caveat
Emptor.

L e b b e v . Um m a 367

L E A S E O F S T A T E L A N D - Cancellation - Failure to comply with

certain conditions - Should he be given an opportunity
to be heard - State Lands Ordinance, S. 2, S. 6,
S. 17 (1), S.110 - Land Settlement Ordinance,
s. 106 - 128.

K a lu B a n d a v . U p a li 391

(Continued in Part 15)

R E N T A C T , N O . 7 O F 1972 - S. 13 - Repairs effected by tenant

- Set off against rent without permission.

N a va m a n y v . R o s a iro 375

RENT A C T - S. 21 (2) - Tenancy - Husband and wife living

apart - Wife paying rent - Does she become the tenant
- Privity of contract - Right of a deserted wife.

A tta n a g o d a v . L iy a n a ra c h c h i 365

(Continued from Part 13)

STATE L A N D S O R D IN A N C E - See Lease of State Land.

CA Attanagoda v. Liyanarachchi (Jayasinghe, J.) 365

the 1st defendant. There was also the allegation that the 1st defendant
was acting in collusion with the plaintiff. To that extent that case can
be distinguished from the present case. A similar situation arose in
the case of M . M. P e re ra v. D. M. J. d e S ilv a {6). The plaintiff as landlord
instituted action in the District Court of Panadura to eject the defendant
who was the tenant from the premises for arrears of rent. Here, the
payments were made not by the defendant who was the tenant but
by one Mallika Perera who was the daughter of the defendant. There
was nothing to show that the rents paid by Mallika Perera was on
behalf of her father. Court of Appeal held that it would be quite unreal
in the circumstances of the case to hold that rents were being
deposited at the Urban Council by the tenant's daughter on her own
behalf and not on behalf of her father. The Supreme Court upheld
the findings of the Court of Appeal in the same case D. M. J. d e
S ilv a v. M a llik a P e re ra (SC)<7). In the present case payments had been
made by the defendant, the wife of the tenant Liyanarachchi. Even
though they were living apart the marriage was still subsisting. It is
the evidence of the tenant that his wife and children lived at the
premises and that he came home every week-end. This has not been
challenged. His furniture was in the premises and that his wife paid
the rent out of the money that was advanced by him. There was no
evidence that the wife had an income of her own. As a matter of
fact the wife had asked for an enhancement of the quantum of the
maintenance paid by the husband. I am unable to accept that there
was a consensus a d id e m between the plaintiff and the defendant
when the defendant's husband had been persistent in his assertion
that he was the tenant.

Mr. Premadasa urged very strongly that the defendant did not give
evidence to establish that rents were paid on behalf of the husband.
There is no quarrel on this. But, then the burden was on the plaintiff
to establish that there was an abrogation of the agreement between
the plaintiff and Liyanarachchi the husband of the defendant and that
there was the emergence of a new contract of tenancy between the
plaintiff and the defendant. Except P2 there was nothing to establish
that there was a new tenancy agreement. The plaintiff's Attorney who
366 S ri Lanka Law Reports [19 99 } 3 Sri L.R.

gave evidence conceded that the premises was let to Liyanarachchi

and that the contractual tenant was the husband. He had no personal
knowledge of the emergence of a new contract between the plaintiff
and the defendant. His position was that he became aware of the
defendant's tenancy' only upon perusing P2. Apart from P2 there is
no other evidence that he had any knowledge that the defendant
assumed tenancy. Mr. Samarasekera argued that P2 does not say
anywhere that Liyanarachchi is the tenant nor does it say that the
tenant is the defendant. The person who deposits the rent may or
may not be the tenant. He argued that if an officer at the local authority
inserts the name of the depositor in the receipt, that entry cannot
create a tenancy in favour of the depositor nor can it deprive the
tenant of his tenancy. All that the receipt indicates is that payments
have been made. I am inclined to accept this submission. An officer
of the local authority was called by the defendant. But, no attempt
has been made by the plaintiff to elicit any of the matters disputed
by the plaintiff.

For the reasons stated above I do not intend to interfere with the
findings of the learned District Judge.

The-appeal is dismissed with taxed costs.

WEERASEKERA, J. - I agree.

A p p e a l d is m is s e d .