Bazara v Bagnaid and Others (Civil Appeal No. 22 of 1955) [1950] EACA 57 (1 January 1950)

### H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), BACON, Justice of Appeal and DE LESTANG, J. (Kenya)

# SHEIKH ALI MOHAMED OMER BAZARA, Appellant (Original Defendant) ν.

## MESSRS. ABDULKADER AND MOHAMED BAGNAID (Original Plaintiffs) (Attorneys for Omer Bin Ahmed Omer Basadan)

### Civil Appeal No. 22 of 1955

(Appeal from the decision of H. M. Supreme Court of Aden, Campbell, J.)

Landlord and tenant—Rent restriction—Co-heir to property also tenant—Executor under Muslim Law—Succession Ordinance (Cap. 126), section 192 (1)— Rent Restriction Ordinance, 1947, section 10 (1)— Rent Ristrictions (Amendment) Ordinance, 1950, section 3—Transfer of Property Ordinance (Cap. 135), section 102.

The appellant was one of several co-heirs of the estate of his father, a Muslim, who died testate and had appointed an executor. In a suit for partition, an order had been made for the sale of certain properties belonging to the estate, in respect of some of which the executor had granted a tenancy to the appellant. After the sale the purchasers applied for and obtained an order for possession. The Supreme Court held that he was a tenant but considered that his position as a tenant had, on the sale, become merged into his position as a seller.

$Held$ (6-1-56).—(1) Under pure Muslim law an executor may be a mere manager, but in Aden the property of the deceased ordinarily vests in him as in England in spite of the limitations on testamentary capacity.

(2) The executor could in law create the tenancy alleged and it could not on appeal be disputed that he had done so in fact.

(3) Since the co-heirs were not the lessors, the appellant's position as tenant could<br>not merge with his position as vendor in the partition suit, and he was entitled to the protection of the Rent Restriction Ordinance.

Appeal allowed.

Cases referred to: Abubakar Noer Mohamed v. Haji Yacoob Haji Ismail, (1952) 19 E. A. C. A. 108; Bains v. Chogley, (1949) 16 E. A. C. A. 27; Dyal Singh v. Robiero. (1953) 20 E. A. C. A. 96.

### Bechgaard for appellant.

Chanan Singh for respondents.

WORLEY, President.—This appeal is brought with leave of the Supreme Court of Aden from an order of that Court granting the respondents possession of premises known as No. 1B Main Road, Maalla, and comprised in Grant No. 2868. On this parcel stands a godown numbered $1B/1B/1N$ which is occupied by the appellant and of which he claims to be the tenant entitled to the protection of the Rent Restrictions Ordinance, 1947. The appellant's complaint is that the order in question was made in excess of jurisdiction and without regard to the provisions of section 10 $(1)$ of the aforesaid Ordinance, as amended by section 3 of the Rent Restrictions (Amendment) Ordinance, 1950.

The background of this matter is that the appellant and a number of other persons are the co-heirs to and co-sharers of the estate of the appellant's father who died in 1931. The father was a Mohammedan and died testate having appointed an executor of his will. After the father's death the appellant went into occupation (or continued to occupy) a number of godowns including the one in suit, which formed part of the deceased's estate. In 1940 one of the co-heirs began a partition suit joining as defendants the other co-heirs including the appellant. The suit

appears to have languished for several years, but in 1954 the Court ordered the sale of the land comprised in Grant No. 2868 and on 9th November, 1954, this was sold by public auction to the present respondents for Sh. 92,000. The sale was duly confirmed and a sale certificate issued in accordance with rule 321 of the Rules of the Supreme Court, and on 28th December, 1954, the respondents as purchasers applied for a possession order under rule 322. The application was unsuccessfully opposed by the present appellant and the order for possession was given on 25th January of this year. Leave to appeal and a stay of execution pending determination of the appeal were granted on 8th February.

The appellant's contentions, stated briefly, are that the Supreme Court erred in holding that he occupies the suit premises as a judgment-debtor to whom rule 322 applies, and should have held that his occupancy is that of a tenant to whom rule 323 applies. He further contends that, as a tenant holding under a contractual tenancy, which has not been determined by lapse of time or notice to quit, he is entitled to the protection of the Rent Restrictions Ordinance.

The two rules referred to above provide as follows: -

"322. Where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 321, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.

323. Where the property sold is in the occupancy of a tenant or other $\frac{1}{2}$ person entitled to occupy the same and a certificate in respect thereof has been granted under rule 321, the Court shall, on the application of the purchaser, order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, that the interest of the judgment-debtor has been transferred to the purchaser.'

As regards the Rent Restriction Ordinance, it is only necessary to say that. before any order for possession can be made against a tenant under section 10. it must be shown that the contractual tenancy has been validly terminated: Abubakar Noer Mohamed v. Haji Yacoob Haji Ismail, (1952) 19 E. A. C. A. 108. In the instant case the Supreme Court found that the appellant is the tenant of the suit premises and there has been no cross-appeal from that finding. The evidence as to the terms of the tenancy was somewhat vague and contradictory and it is indeed surprising that neither the Court nor the respondent's pleader insisted on the production of the books in which payments of rent to the executor are said to have been credited. But the evidence of the executor, which the Court apparently accepted, was that he had granted the appellant a contractual tenancy of the suit premises (inter alia) and had never determined it by notice. Nor did the respondents allege that they had given the appellant notice to quit, their contention being that he was not in occupation as a tenant. On that state of facts, if the Rent Restrictions Ordinance applies, no order for possession could have been made.

I pass on, therefore, to consider the reasons which led the learned Judge to the conclusion that, although the appellant was a contractual tenant in possession, he could be evicted.

It was argued in the Supreme Court on behalf of the present appellant that he was not a "judgment-debtor" within the meaning of that expression as , used in rule 322. That contention was rejected in the following passage of the judgment: $-$

"When it comes to executing the decree (in a partition suit) the shareholders must surely be the judgment-debtors, for it is usually, and as in this case, against them, that the order for sale is made. Although they, as shareholders, are entitled to the proceeds of sale, the order for sale is enforced against them. Nor can I see that it makes any difference whether the order for sale made by the Court was a consent order, as in this case, or not a consent order. The same consequences on execution flow equally from each."

With that passage, I agree. But there follows a passage which, with respect, I find difficult to understand. After referring to the contention that the Rent Restrictions Ordinance overrode the Rules of Court the learned Judge says: —

"I agree that the Ordinance may affect the Rules but I do not think this occurs here. For the Ordinance deals only with tenancies between landlords and tenants. The whole basis of the Rule giving the Court power to grant an order for possession when the seller and occupier are the same person is the fact that there is no tenancy. A person cannot be a tenant of himself. Nor can 1 see that the position is different when there are several sellers, as in this case, and only one of them is in occupation. His position as a tenant is merged into his position as a seller."

The crux of the dispute in the present matter is whether the appellant occupies the suit premises in his capacity as a judgment-debtor or whether he does so as a contractual tenant. It is of course a truism to say that the Rent Restrictions Ordinance deals only with tenancies between landlords and tenants and that a person cannot be tenant of himself (assuming that, by that expression, it is meant that he cannot in his personal capacity be a tenant of himself in that same capacity).

There is no exhaustive definition of "landlord" or "tenant" in the Rent Restrictions Ordinance, 1947, but the appropriate general terms to employ are "lessor" and "lessee" as defined in section 102 of the Transfer of Property Ordinance (Cap. 135 of the Laws of Aden, 1945), and when the learned Judge speaks of the appellant being a tenant of the suit premises, it must be assumed that he meant to speak of his being the "lessee" under a lease. If there were<br>such a lease then who was the lessor? The learned Judge appears to have assumed that the property of the deceased's father vested on death in the co-heirs of whom the appellant was one. That might have been a correct conclusion if pure Mohammedan law applied, for under that law a Muslim executor was a mere manager and the property of the deceased did not vest in him: see Paruck -Indian Succession Act, 1925: 4th ed. (1953) 412, et seq. But the law applicable to this case is section 192 (1) of the Succession Ordinance (Cap. 126) which is identical with section 211 of the Indian Act and which reads:-

"The executor or administrator as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.

(The exception in sub-section (2) is not relevant to the instant case.)

The effect of the Indian decisions on this section is stated thus by Paruck op. cit. at p. $414:$

"The conclusion to be drawn from these authorities is that the executor of the will of a Mohammedan is his legal representative under section 211 and the property vests in him. Though a Mohammedan cannot dispose of more than one-third of the property by will after the payment of debts and funeral expenses and the two-thirds go to his heirs, unless the heirs

consent to such disposition, the entire property vests in the executor and he can sell or mortgage the same under section 307 without obtaining probate, unless there is a restriction on alienation imposed on the executor by the will."

See also Principles of Mohammedan Law—Mulla, 14th ed. (1950), p. 31 and p. 129. The estate vests in the executor, though no probate has been obtained by him. The Aden Succession Ordinance is undoubtedly derived from the Indian Act and, in my opinion, the Indian authorities referred to above should be followed in construing section 192 (1) of the Ordinance.

If I am correct in this, then it must follow that the executor was competent to grant a lease of the suit premises and that he, and not the co-heirs, was the lessor. Indeed, Mr. Chanan Singh did not contend that the executor had no power to grant a lease, though he had other objections to its validity. Again it must follow that the learned Judge erred in holding that the appellant was in occupation, as "a tenant to himself" or, alternatively, to himself and his co-heirs. This seems to have been the only ground on which the Court below thought that the appellant's "position as a tenant merged into his position as a seller".

Mr. Chanan Singh sought to support the judgment on other grounds. Firstly, he contended that no distinction could be drawn between the appellant's occupation as a tenant and his occupation as a judgment-debtor, i.e. as one of the co-heirs against whom the order for sale was made. The purpose of the relevant Rules, it was said, was to protect the occupation of a person who is a stranger to the decree and is not bound by it. If such a person is in occupation then the purchaser at auction can only get symbolic possession under rule 323. In the present case, however, the appellant is one of the judgment-debtors and is bound by the decree: he cannot, therefore, set up occupation in another capacity, viz. as contractual tenant or lessee, against the claim of the purchaser to actual possession. In support of this argument, Mr. Chanan Singh referred to commentaries on the Indian Civil Procedure Code: 0.21, R.95 and R.96, which correspond to Aden Rules Nos. 322 and 323. He cited Mulla 12th ed., vol. II, p. 923 et seq., and Chitaley 5th ed., vol. II, p. 2611 et seq., and relied, particularly upon the following note on p. 2616 of the latter: —

"Where the judgment-debtor is a co-sharer and is himself in exclusive possession ... the purchaser is entitled to actual possession of the property under rule 95."

Unfortunately the report of the authority (1917, 4 A. I. R., Cal. 232) on which this note is based, is not available here, so that it is impossible to say whether or not that case is distinguishable from the one before us. Mr. Chanan Singh also contended that the appellant must have been in occupation of his own share as owner and could only have been a tenant of the shares of the other co-owners, who were, equally with him, judgment-debtors. I think, however, this argument overlooks the facts that, as already explained, the property of the deceased vested in the executor and that the trial Judge appears to have accepted the latter's evidence that *he* granted the lease to the appellant shortly after the death of his testator.

I feel constrained, therefore, to hold though somewhat reluctantly that the appellant must succeed on his claim to be in occupation as a contractual tenant and to be entitled to the protection of the Rent Restrictions Ordinance, which admittedly applies if there be a tenancy of these premises. I should perhaps record that the Aden Rules of Court were made in 1937, whereas the Rent Restriction legislation dates from 1947.

Mr. Chanan Singh further argued that the appellant is now estopped from putting forward such a claim. He referred to Aden Rule No. 293 (2) (b) (Ind. $(0.21, R.66)$ (2) (c)) which, so far as relevant, provides that the proclamation of sale

shall be drawn up after notice to the decree-holder and the judgment-debtor and shall specify (inter alia) the property to be sold (which includes the judgmentdebtor's interest therein), any incumbrances on the property and "every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property". It was said that the nondisclosure of a protected tenancy was a material failure to comply with this rule. That may well be so, but there is no evidence on the record to support the contention. The point was not taken at the trial, although the question of a tenancy was very much in evidence, and no copy of the proclamation is included in the record. If there is evidence to support this point, it was available at the trial and should have been put in then.

Finally, I think I should refer to sections 103 and 104 of the Aden Transfer of Property Ordinance (Cap. 135) lest it be thought that I have overlooked them. Section 104 (1) requires that a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made<br>only by a registered instrument. Now the executor's evidence was that he leased the godown in suit, together with others, to the appellant "at an annual rent" and the appellant's son testified that the appellant had paid rent at Rs. 3,100 per annum. After the auction the son took upon himself to apportion the rent for the godown in suit at Rs. 45 per mensem. Other evidence also indicated that an annual rent was agreed on. It would follow from this that the purported lease was invalid under section 104 (1) for want of writing and registration. But section 103 has still to be considered, sub-section (1) of which provides: —

"In the absence of a contract to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy."

That sub-section, or its equivalent in Kenya, has been considered by this Court in the two cases of *Bains v. Chogley*, (1949) 16 E. A. C. A. 27 at p. 30 and Dyal Singh v. Robeiro, (1953) 20 E. A. C. A. 96. The effect of these cases, stated very briefly, is that where there is a consensus between the parties (which in a proper case may be inferred from payment and acceptance of rent) giving rise to the relation of lessor and lessee, the Courts will give effect to that consensus by applying the provisions of sub-section (1) to the facts of the case, even though the consensus was expressed in a form which is invalidated by section 104. If the intention is that the property is to be used for manufacturing purposes (as would appear to be the case here) then the Court is to deem the lease to be one from year to year, subject to six months' notice as prescribed. I think that when the statute requires the Courts and all other persons to "deem" such a lease to exist, it must be a necessary consequence of this statutory fiction that the lease exists for all purposes of the rent restriction legislation.

For the reasons given above, I would allow this appeal. I would set aside the order passed by the Supreme Court of Aden on 25th January, 1955 (which purported as I understand it to grant actual possession of the suit premises to the respondent), while reserving to the respondent liberty to apply, if so advised, for an order of symbolic delivery under rule 323. The appellant to have his costs of this appeal and the costs of and incidental to his objection to the respondent's application to the Supreme Court for possession. As the other members of the Court concur in this judgment an order will be made in the terms proposed.