In Re: An Appeal by Mohamed Ibrahim; Ex Parte: Gulam Mustafa Litt (Civil Appeal No. 19 of 1953) [1955] EACA 157 (1 January 1955)

## APPELLATE CIVIL

## Before CRAM, Ag. J.

## IN RE AN APPEAL BY MOHAMED IBRAHIM (Deceased) EX PARTE GULAM MUSTAFA LITT (Administrator)

## Civil Appeal No. 19 of 1953

Appeal-Abatement-Landlord and tenant-Increase of Rent (Restriction) Ordinance, 1949—Section 2 (1)—Civil Procedure (Revised) Rules, 1948, Order 23, rules 1, 3 and 10—Absolute order by Rent Control Board against statutory occupier—Stay of execution pending appeal—Application of administrator of deceased appellant to be made a party—Whether cause of action survived—Whether widow had a statutory but not a succession right to continue with appeal.

Before his death the appellant was the contractual tenant of the respondent, but, by notice to quit the contractual tenancy was brought to an end and he possessed as a statutory occupier. On an application by the respondent the Central Rent Control Board made an absolute order for possession against the statutory occupier who filed an appeal and obtained an order for stay of execution in the Supreme Court pending appeal. Before the appeal could be heard the appellant died intestate. Before the expiry of the period for abatement of the appeal the administrator of the deceased applied to be made a party. The Court after dismissing the application considered *obiter* the position of the widow.

Held (13-7-55).—(1) Section 12 of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. was in pari materia with section 2 (1) of the Increase of Rent (Restriction) Ordinance, 1949, and the Court would follow the interpretation put upon the former section by decisions of the Court of Appeal, in England.

(2) A statutory occupier had no estate in the premises and all that the Ordinance gave him was a purely personal right to be free from disturbance by his landlord. It was impossible to apply to a mere licensee of the law rights essentially incidental and due to the tenancy or possession of property, such as succession rights.

(3) The definition of "tenant" contained in the Ordinance comprehends a person who derives a tenancy, as ordinarily understood in law, during the subsistence of and before the termination of the contractual tenancy as well as a person who, after the termination of the contractual tenancy has a statutory right to occupy the premises formerly leased and is a mere tenant-in-law, usually, sub nomine: "statutory tenant". When a tenant-in-law under the Ordinance dies his next-of-kin cannot claim derivation of title from the former tenancy which has ceased to exist nor from the Ordinance which must be held to create no such right of succession. Once the contract of lease is terminated, any such conception of derivation is impossible and it was inconceivable that a mere administrator of the estate of a deceased tenant-in-law under the Ordinance could derive anything in the nature of a succession right to administer because the mere personal right to occupy the premises undisturbed had ceased to exist with the<br>cesser in physical existence of the "statutory tenant". So far as the administrator was concerned the cause of action no longer existed and it followed that he could not be made a party to the appeal.

Semble: (1) The widow of a deceased occupier residing with him at the time of his death does not derive title from the deceased for it is not a succession right but automatically and by operation of law, would be the occupier and would have identical rights with the deceased and might apply to be made a party to an appeal but even in such a case the administrator would have no right to pursue the appeal.

(2) The order of the Rent Control Board ordering possession was final and not suspended and made against a statutory occupier who merely ceased to be a statutory complete. The appellant left at his death a mere stay of execution pending hearing of his appeal and on his death his widow did not *ex lege* become a statutory occupier. The most she could have claimed was an equitable right to have continued with the appeal and to benefit from the stay and had she succeeded in the appeal she would have been entitled to be reinstated as statutory occupier.

Application dismissed with costs against the applicant in his capacity as administrator.

Cases cited: John Lovibond & Sons Ltd. v. Vincent, (1929) 1 K. B. 687 C. A.;<br>Collis v. Flower, (1921) 1 K. B. 409; Parkinson v. Noei, (1923) 1 K. B. 117: Mellows v.<br>Low and Others, (1923) 1 K. B. 522; Skinner v. Geary, (1931) 2 Bow and Omers, (1924) 1 K. B. 582, Skinner v. Geary, (1931) 2 K. B. 302 C. A., Review v. Dean, (1924) 1 K. B. 685 C. A.; Roe v. Russell, (1928) 2 K. B. 117 C. A.; Salter v. Lask, (1925) 1 K. B. 584; Brock v. Wollams, Brown v. Draper, (1944) K. B. 309 C. A.

Gautama for applicant (administrator).

D. N. Khanna for respondent (landlord).

RULING.—This nice point originates in an application by a landlord to the Central Rent Control Board against a tenant and two sub-tenants for an order of ejectment. The Board found there had been an unlawful sub-letting followed by a notice to quit and made an order for possession on 6th March, 1953, to become effective on 31st March, 1953. The head tenant and one of the sub-tenants appealed to the Supreme Court but, before the appeal was heard the sub-tenant died on 2nd December, 1954. The sub-tenant appellant's son took out letters of administration, dated 21st May, 1955, and applied to be made a party to the appeal by this motion filed on 27th May, 1955. No exception is taken that the appeal is subject to abatement merely because this application is out of time. It is accepted by the respondent as being within the delay allowed by Article 175 $(a)$ of the Indian Limitation Act, 1877.

The application invokes the provisions of Order 23 of the Civil Procedure (Revised) Rules, 1948. Rule 1 read with rule 10 of the Order runs: —

"The death of an appellant ... shall not cause the appeal to abate if the cause of action survives or continues."

Rule 3 read with rule 10 is as follows: $-$

"Where ... a sole appellant dies and the cause of action survives or continues, the Court on an application made in that behalf, shall cause the legal representative of the deceased appellant to be made a party and shall proceed with the appeal."

The respondent landlord submits that the cause of action does not survive or continue, demonstrating that the affidavit does not contain any issue of fact showing continuance. She maintains that the appellant died a mere statutory tenant and that the right of a statutory tenant was a strictly personal right which does not survive his death. The maxim actio personalis moritur cum persona applied. I may echo the words of Greer, I. J., in John Lovibond and Sons Limited v. Vincent, (1929) 1 K. B. 687 C. A.: —

"There seems no end to the conundrums suggested by the Rent Restriction Acts, and I suppose there will be no end to them until those Acts disappear from the statute book. But as questions come before us, however difficult it may be to reconcile various sections of the Acts and the various authorities, we have to decide them.

Scrutton, L. J., said in the same case: $\rightarrow$

"When, during the war and the deficiency of house accommodation then experienced, persons, who were contractual tenants, were allowed by the legislature to stay on in their houses against the will of their landlords, Parliament, I am afraid, had very little idea what kind of privilege it was conferring upon them. . . . Parliament does not seem to have contemplated what was to happen on the occurrence of some of the most ordinary incidents of life—the death of the statutory tenant leaving a will or his trying to transfer his interest during his life to another person and then quitting the premises. Still less, in the earlier Acts, did Parliament provide what should happen if any of these events occurred."

The applicant cited Collis v. Flower, (1921) 1 K. B. 409 a case decided under the Increase of Rent and Mortgage Interest (War Restrictions) Act, 1915, section 1, sub-section (3) and section 2 and sub-section (1) $(d)$ . In that case the tenant died testate appointing an executor in her will. A third party, a woman who had lived with the deceased, remained in occupation. The Judge made an order for possession. On appeal, it was argued that the definition of tenant in section 2, subsection (1) (d) of the Act had been ignored. The paragraph runs: $-$

"For the purpose of this Act except where the context otherwise requires:—the expressions 'landlord', 'tenant' ... include any persons from time to time deriving title under the original landlord, tenant ... "

McCardie, J., said that, in his view, the executor in the full sense derived title from the deceased tenant and that, although not in occupation, he must be regarded as the tenant and allowed the appeal, the executor being entitled to the protection of the Act. The case, however, is not in point the present appellant having died not testate but intestate.

The applicant next referred to Parkinson v. Noel, (1923) 1 K. B. 117. There, a statutory tenant became bankrupt, but the trustee in bankruptcy disclaimed any interest in the premises. The landlord claimed possession against the bankrupt tenant. Greer, J., held that, as the statutory tenant had an interest or profit in land which passed to his trustee in bankruptcy, as the trustee had disclaimed, the landlord could assert his right to possession and was freed from the restrictions of the Rents Acts. Greer, L. J., was dubitante of his own decision in Lovibond and Sons Limited v. Vincent (supra) but once more the decision is not in point.

Next the applicant cited Mellows v. Low and Others, (1923) 1 K. B. 522. In that case, a weekly contractual tenant was removed to hospital and authorized her niece to let her flat. She subsequently died in hospital intestate and her niece took out letters of administration. On an application by the landlord for possession the County Court Judge held that none of the defendants came within section 12 (1) (g) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. On appeal, McCardie; J., held that the deceased was never a statutory tenant and as a weekly tenancy did not determine without notice the tenancy vested in the President of the Probate Division under section 19 of the Court of Probate Act, 1858, and, upon letters of administration being granted, the administrator's title related back to the death of the tenant and the niece obtained a continuing interest in the tenancy in the absence of any notice to quit. He held further that sections 12 (1) (g) enlarged rather than ousted the common law tule, but he went on obiter to state his belief that the same principle would apply in case of a statutory tenancy. This case was declared no longer authoritative by Scrutton, L. J., in Skinner v. Geary, (1931) 2 K. B. 562 C. A. and cannot assist the applicant.

Section 12 (1) (g) of the 1920 Act runs: $\rightarrow$

"For the purpose of this Act, except where the context otherwise requires: $-$

... the expressions 'Tenant and tenancy' include sub-tenant and subtenancy and the expression 'let' includes sublet; and the expression 'tenant' includes the widow of a tenant dying intestate who was residing with him at the time of his death, or where a tenant dying intestate leaves no widow or is a woman, such member of the tenant's family so residing as aforesaid as may be decided, in default of agreement, by the County Court."

Section 12 is the interpretation section of the Act. In this context I may notice the interpretation section of the Increase of Rent (Restriction) Ordinance, 1949, section 2 $(1)$ :-

"tenant includes sub-tenant and any person from time to time deriving title under the original tenant, and the widow of a tenant who was residing with him at the time of his death, or where a tenant leaves no widow or is a woman such member of the tenant's family so residing as may be decided by the Board notwithstanding that the rights under the tenancy may have passed on the tenant's death to some other person...."

That is, this paragraph is a composite of section 12 (1) $(f)$ and $(g)$ of the 1920 Act except the words "dying intestate" and "in default of agreement" are omitted from the Ordinance. They were deleted from the 1920 Act, by paragraph 1 of the 1935 Act. to remove the obscurity the words created.

I may say that the case of *Mellows* $v$ . Low deals only obiter with the instance of the death of a statutory tenant and, so far as it is *obiter*, it has been overruled by Skinner v. Geary (supra).

The respondent criticized *Collis v. Flower* (supra) and *Mellows v. Low* (supra) as having been discredited in Skinner v. Geary (supra) by Scrutton, L. J., at page 562. The learned Lord Justice said: -

"In *Collis v. Flower*, which it will be noticed was decided at a very early stage in the consideration of the Acts, the tenant of a dwelling-house died. By her will she appointed an executor. Another person who had resided in the house with her was the testator's residuary legatee. This person continued to reside in the house just as she had done while the tenant was alive. The landlord served a notice to terminate the common law tenancy upon the executor who by law was the person entitled to that tenancy and brought an action for possession against both the executor and the residuary legatee who was actually living there. The County Court Judge held that as there was no assent by the executor to the residuary legatee remaining there in part satisfaction of her rights as residuary legatee she was not the tenant and that as the executor was not in possession of the house he could not claim the protection of the Acts. The Divisional Court reversed that decision holding that the executor was the tenant of the house and entitled to the protection of the Acts, although he was not in occupation of the house. In my opinion that decision was wrong for the reasons I have stated. The executor who had the common law tenancy, which had been terminated by notice to quit, was not in occupation and, in my opinion, the original tenant having no right to dispose of the property by will could give no statutory right to the executor who did not live in the house and who therefore could not claim to be a statutory tenant. That case is no longer an authority. The administrator case—Mellows v. Low (supra)—stands on a different footing. There the original tenant died during her tenancy intestate. Consequently, her rights passed to her administrator. No notice to quit was ever given, and consequently, the common law tenancy remained. The landlord claimed that on the death of the tenant intestate with no member of the family residing in the house the tenancy lapsed. It was held that the administrator derived title under the tenant and consequently that her residence could not be interfered with. The point of that case, which renders the decision right, was that no notice to quit was given and consequently the common law tenancy remained in the person entitled to it. That decision was right on the facts, but if notice to terminate the common law tenancy had been given the Court could not have said (unless the matter can be brought within the section as to intestacy) that the administrator not being in occupation was entitled to be protected by the Act."

John Lovibond and Sons Limited v. Vincent (supra) laid down that the right of a statutory tenant under the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, is a purely personal right and cannot be transmitted by will. In that case, a contractual tenancy was terminated by notice to quit and a statutory tenant held over until her death. Her daughter had been living in the premises and was the executrix and sole beneficiary under the will of the deceased. On proceedings to recover possession, at the instance of the landlord, the daughter claimed to be entitled to continue in possession as deriving title under her mother within section 12 (1) (f) of the Rest Restriction Act, 1920; aliter she was a member of her mother's family residing with her at the time of her mother's death and upon her mother's death intestate (as to her interest in the premises) was by virtue of section 12 (1) (g) of the Act a "tenant" within the Acts and as such entitled to remain in possession. The Judge held that as the mother's right was a purely personal one it could not be transmitted by her will. The defendant appealed.

Scrutton, L. J., had to consider whether a statutory tenant could bequeath his right to occupy. He said: $-$

"Such a right does not confer upon the statutory tenant the privilege of assigning that personal right to someone else during his life, and as he cannot do that, neither can he, during his life, assign it to take effect upon his death. It seems to me impossible to find any reasonable ground for saying to the statutory tenant 'You may not assign to AB during your life, but you may leave a legacy to AB'. It is true there is almost an equal absurdity either way, for, although there is nothing in the Acts up to 1920 regarding what is to happen on the death of a tenant intestate, the Act of that year—section 12 (1) $(g)$ —defined 'tenant' as including 'the widow of a tenant dying intestate who was residing with him at the time of his death, or, where a tenant dying intestate leaves no widow, or is a woman, such member of the tenant's family so residing as aforesaid as may be decided in default of agreement by the County Court'. That is an express statutory provision from which it follows that if Mrs. Vincent, instead of making a will, had died intestate while her daughter was living with her in the house the daughter would have become the statutory tenant; but she would have become so because the statute in terms has so enacted. The statute has said nothing about leaving property by will, and as Parliament has said that the statutory tenant shall not, without the consent of the landlord, assign the dwelling-house during his life, it follows that he cannot assign it by will. We can only construe these Acts as we find them, and in my view, as the result of the authorities, is that the right conferred upon the statutory tenant-in the absence of any express provision altering it in any particular case—is a purely personal right with which he cannot deal. Possibly this view may render it necessary some day to reconsider previous decisions as to the position of executors, administrators and trustees in bankruptcy of statutory tenants; it is unnecessary to do so now. In this case it is only necessary for us to say that a statutory tenant cannot leave by will his right or interest or however it may be described in the statutory tenancy."

As a result of this decision paragraph 1 of the 1935 Act repealed the words "dying intestate" from section 12 of the 1920 Act.

That is, although the learned Lord Justice was compelled to hold that the tenant had no right to assign he indicated obiter dicta that had the mother died. intestate the daughter who was living with her would have become *ex lege* the statutory tenant. But this would have been without any devolution on death of the mother of a right which could pass to an administrator on intestacy or so it seems to me.

In Keeves v. Dean. (1924) 1 K. B. 685 C. A., Bankes, L. J., said of the nature of the interest of a statutory tenant: $-$

"His right is a purely personal one, and as such unless the statute expressly authorizes him to pass it on to another person, must cease the moment he parts with the possession or dies."

Lush, L. J., said: —

"One necessarily asks oneself what it is that he has got to assign. He has no estate in the premises, that has come to an end, and all that the statutehas given him is a purely personal right to be free from disturbance by his landlord."

In *Roe v. Russell*, (1928) 2 K. B. 117 C. A., Sargant, L. J., said: —

"When once the conclusion is reached that the statutory tenant has no estate or property as a tenant at all, but has a purely personal right to retain possession of the property, it is difficult to apply to him as part of the terms and conditions of his former tenancy, rights essentially incidental and due to the possession of property."

So far as assignation of rights is concerned the Increase of Rent (Restriction) Ordinance, 1949, has made this a ground for ejectment and distinctly enacted that a statutory tenant has not the right during his life to assign the statutory tenancy.

Salter v. Lask, (1925) i K. B. 584 was a case where the Divisional Court had to consider the position of a husband whose wife, the statutory tenant, had died intestate. The husband claimed the statutory tenancy on two grounds; first, that he was the administrator of the statutory tenant and was therefore the statutory tenant and, second, that he was statutory tenant by virtue of being a member of the deceased's family. The Court upheld his second contention only. MacKinnon, J., said: —

"There are two questions: first whether an administrator can resist." ejectment. On consideration of Keeves v. Dean (supra), I think that the answer is that he cannot; but it is not necessary to give a definite answer to that question because of the answer we give to the second question, ... "

With respect, the learned Judge was correct in his assumption, but being *obiter dicta* it is not authoritative. This case was approved in *Brock v. Wollams*. (1949) 1 A. E. R. 715 C. A.

The Rent Acts, equally with the Kenya Ordinance, have never defined the right or interest or whatever it may be a statutory tenant has in the premises in which he lives protected by law, against the will of his landlord manifested by a notice to quit. The use even of the words "statutory tenant" have been described as anomalous. Perhaps "statutory occupier" would be nearer the mark as all<br>the occupier holding over seems to have is a statutory estoppel against ejectment by the landlord as a mere trespasser. The Courts have interpreted the language used by the legislature to mean that a statutory tenant has no more than a personal right in the premises. It is a right which now, *ex lege*, cannot be assigned. The Courts have ruled that it cannot be bequeathed as it ends with the death of the testator. Indeed Lord Justice Scrutton must have rejected the argument that the daughter of Mrs. Vincent was $ex$ lege entitled to be a statutory tenant merely because she did not expressly bequeath the interest in her will and so ought to be considered *quoad* that interest intestate. No doubt it was anomalous that a widow or child living with a statutory tenant should be deprived of the opportunity ex lege of becoming statutory tenant when the statutory tenant died testate, whereas such persons enjoyed the advantage should the statutory tenant have died intestate. No doubt that is why the words "dying intestate" do not appear in the Ordinance. That being so there would seem to be in Kenya no difference in result whether a tenant dies testate or intestate and the result would still be the same if he attempted to bequeath the right. Having no right to bequeath, the bequest would have no effect, but the widow or child would still ex lege be entitled to the protection of the Ordinance.

I am fortified in these deductions by the judgment of Greer, L. J., in Lovibond's case. viz.: -

"It will be remembered that Parliament, by section 5 of the Act of 1920, restricted the power of the Court to order possession in favour of the landlord as against the tenant when the contractual tenancy had come to an end. Parliament might have said: 'There shall be substituted for the existing tenancy a tenancy on different terms', and, if that had been done, the statutory tenancy would have been a tenancy within the true meaning of the word, and would have been capable of assignment *inter vivos*, as well as by devolution by will. Parliament did not take that course; it restricted the power of the Court to order possession so long as certain facts in reference to the behaviour of the tenant continued to exist. It might well be apart from decisions on the subject and apart from various amendments the original Act might have been taken as meaning that a real tenancy was created by the rights given to the tenant, or rather by the restrictions imposed upon the landlord. Having regard to the decision in Keeves v. Dean (supra), however, it is impossible to take that view. There the Court had to say whether an assignment of the statutory right, whatever that was, inter vivos, could be effective. The Court had to consider the definition of 'tenant' contained in section 12 (1) (f) of the Act of 1920, which says that it includes 'any person from time to time deriving title under the original... tenant', and if in section 5 a 'tenant' does not mean a tenant in the true sense, but a person who, but for the Acts, would be a mere trespasser, one would have been inclined to read 'tenant' in section 12.(1) $(f)$ as referring to the same kind of person; but having regard to the decision in *Keeves v. Dean* I do not think it is possible to read section 12 (1) $(f)$ as referring to a person other than one who derives title under the original tenant during the existence of the original tenant's tenancy. That is to say, before he has ceased to hold under his common law contract. Curiously enough under section 12 (1) (g), the expression 'tenant' includes 'the widow of a tenant dying intestate who was residing with him at the time of his death, or, where a tenant dying intestate leaves no widow or is a woman, such member of the tenant's family so residing as aforesaid as may be decided in default of agreement by the County Court'. If we were to read that definition as including a person deriving title from the original tenant, then, in the case on intestacy, there might be one or two next-of-kin other than the widow, who would be tenants under clause $(f)$ and the widow under clause $(g)$ , and a most awkward situation would be created. I can only read clause $(f)$ as confined to persons who derive title from the holder of the tenancy while his estate under the original contract of tenancy subsists. That is the only way we can read the decision in *Keeves v. Dean* (supra) because clause $(f)$ , if interpreted literally as applicable to a statutory tenancy, would include an assignee of the statutory tenancy

just as much as an executor or legatee of the tenant. The decision in Keeves v. Dean although the reasons given for it differ, is binding upon us, especially as it has been accepted in *Roe v. Russell*, (1928) 2 K. B. 117. The result is that there is no right given by the Acts to the tenant which he can assign *inter* vivos or leave by will. If his right is deemed to be a personal right to occupy the premises it is inconceivable that his executor can take anything, because the personal right cannot exist after the statutory tenant has ceased to exist himself."

If I apply that reasoning to the present case, I observe that the legislature has restricted the power of this Court and indeed of the Rent Control Boards by sections 5 and 16 of the Ordinance to order possession in favour of the landlord as against a tenant when the contractual tenancy has come to an end who would be, but for the operation of the Ordinance, a mere trespasser. I must conclude that no real tenancy is given to the statutory tenant. When I look at the definition of "tenant" in section 2 of the Ordinance I must read that "any person deriving title under the original tenant" is restricted to mean any person who derives a title during the subsistence of and before the termination of the contractual tenancy. If the common law contract is brought to an end by notice to quit the former contractual tenant now a statutory tenant, cannot assign his interest to a third party so that that third party can be said to "derive title" from him. It follows that where a statutory tenant dies, section 2 will not enable any next-of-kin to claim that they derive title from him. Once the common law contract is terminated any such a conception is impossible. Once the statutory tenant dies, unless statutorily continued, his interest dies with him and it is inconceivable that his executor or his administrator in intestacy can take anything because the personal right has ceased to exist with the cessor in physical existence of the statutory tenant.

It would seem, therefore, that the sub-tenant appellant being a mere statutory tenant with a right only not to be molested by his landlord and having died intestate had, so far as his right to reside in the premises in question, nothing to pass and no right passed into his estate and no conceivable right could pass to his administrator. That is so far as the administrator is concerned no cause of action subsists. The right or interest or the statutory estoppel, whatever it may be, restricting the landlord's right to eject may pass to the widow, if he has one, provided she was residing with him, when he died, or, if he left no widow, then a member of his family so residing, but it is not a right which is a succession right but a statutory right, the widow or the child as the case may be being deemed to be a statutory tenant and to stand in the shoes of the tenant. The widow does not derive title from her deceased husband but by mere force of law she is as much a statutory tenant as her late husband.

As Sargant, L. J., said in *Roe v. Russell (supra)*: —

"When once the conclusion is reached that the statutory tenant has no estate or property as tenant at all, but has a purely personal right to retain possession of the property, it is difficult to apply to him, as part of the terms and conditions of his former tenancy, rights essentially incidental and due to the possession of property."

Greer, L. J., remarked: —

"it is to be observed that the facts in Collis $v$ . Flower and Mellows $v$ . $Low...$ were different from those in the present case, for in each of those cases a contractual tenancy was in existence between the landlord and tenant at the date of the tenant's death. In this case the statutory tenant's right was a purely personal one and could not be transmitted by will to anyone."

I may infer that, inasmuch as the personal right could not be transmitted by will, it could no more devolve on intestacy. Scrutton, L. J., in Haskins v. Lewis, (1931) 2 K. B. 1 C. A. emphasized that the personal and non-transferable character of the privileges, conferred on a statutory tenant as such, are, occasionally, coloured by the opposite conception—witness the provision whereby a tenant is treated as including a member of his family residing with him, at the time of his death.

I am forced to the conclusion therefore that upon the administrator of this deceased statutory tenant who died intestate devolved no right entitling him to be made a party to the appeal. So far as the administrator is concerned the cause of action no longer subsists.

Although I have not to decide the point (and it is a very nice point indeed) it is further my view that, even if the administrator could show, as he has not shown, that the widow was in occupation of the dwelling and was residing there at the time of the appellant's death, he still would have no right to pursue this appeal, It is my opinion, that if the widow had so resided and had there been no order of the Board then automatically and by operation of law, as provided by section 2 of the Ordinance, she would have been the tenant and she would have had identical rights with her husband and in that event it should have been she and not the administrator who should have applied to be substituted for the appellant.

Even if I had been able to rule that the administrator was able to take up cudgels on behalf of the wife, I should not have been able to make any order because there are no facts on record that the widow or other person was occupying the dwelling at the time of the tenant's death. I am invited by the applicant to take judicial notice of letters of administration and a probate cause in this Court but, while no doubt I could do so, it is my view that it is the duty of the applicant to lay these before the Court even in the most elementary manner by production at the Bar. It is not my function *ex propric motu* to order a search in the Court records for such a proceeding. It is the duty of the applicant to apply for an order or a summons on the Court clerk. Aliter, a further affidavit could have been filed containing these facts merely alleged at the Bar by the applicant's advocate. The Court has not been moved to entertain any such affidavit and with respect it seems to me that a party should not be permitted to allege facts at the Bar, having all the opportunities to put these properly in evidence, but failing to do so, urges the Court to search in the records, a search which ought to be done by the applicant.

There is one other point, raised by the respondent, which, with respect, I think is not essential to this decision, and that is: what is the effect, say on the widow, created by the order of the Board ordering possession as at 31st March, 1953? I have been able to discover an analogue but not authority directly in point whether the widow after such an order could claim to be a statutory tenant or even maintain the appeal.

I refer to the case of the American Economic Laundry Limited $v$ . Little, (1951) 1 K. B. 400 C. A., where a final order for possession had been made against a statutory tenant, but he had applied to the Court for, and obtained, suspension of the execution of the order. During a period of such suspension the tenant died but his daughter, who had lived with him, continued to occupy the premises and she claimed to be entitled to do so being a "tenant" within the definition of section 12 (1) $(g)$ of the principal Act. Somervell, L. J., cited Lord Greene, M. R., in *Brown v. Draper*, (1944) K. B. 309 C. A. as saying: $-$

" $\dots$ the only ways in which a 'tenant' can be deprived of the protection of the Acts are $(a)$ by giving up possession, in which case no order of

recovery of possession against him is required; (b) having an order for recovery of possession made against him."

And went on:—

$\ddot{i}$

"Those words, read literally, might be taken to indicate that the order" for possession in itself deprived him of the protection of the Act. On the other hand ... the statement by Scrutton, L. J., in Keeves v. Dean (supra): 'I take it that "the tenant" has a right as against all the world to remain in possession until he is turned out by an order of the Court.' The difference: between the literal meanings of these two statements of the law is illustrated by this case. I... do not think Lord Greene had in mind what we have to consider here, namely, the position of a tenant who has been a statutory tenant (I am not begging the question by using the word 'tenant' but it is a. convenient expression) between the time when the order for possession was made and the time when it falls to be executed having regard to a suspension under section 5 (2) of the Act of 1920. I do not think that point was in the mind of either Lord Greene or Scrutton, L. J., but the former in the words above quoted, expressed something with which I respectfully agree, and which seems plain, namely, that an absolute order for possession made against a tenant fundamentally alters the position... All that he has is a right to apply for postponement under section $5$ (2). In my opinion a tenant in that position, that is to say where an absolute order for possession has been made against him. notwithstanding that it may be suspended, is not a tenant for the purposes of section 12 (1) (g). That is, I think, in accordance with the common sense application of the paragraph. It would be an illogical result, I think, if the paragraph gave a protection to a widow which the Court had expressly taken away from her deceased husband on whose tenancy she relies, that tenancy having been brought to a suspended end by the order for possession."

Jenkins, L. J., said: -

"It was held by the Judge that the provisions still remained of full force and effect, and that the defendant here became, on the death of her father, the statutory tenant under a new statutory tenancy which was hers and nobody else's and which would continue to be enjoyed by her in her own right until such time as some new ground for claiming possession arose and the landlord successfully applied for, and obtained, an order for possession. That would be to my mind a most surprising result; and, notwithstanding the reasons to the contrary stated by the Judge, I agree with my Lord that there is really no warrant for the Judge's conclusion on a consideration of the relevant statutory provisions ... it seems to me at all events clear that the tenancy to which she succeeded could be no more than the limited interest. remaining to run between the date of the death and the expiration of the date fixed for possession by the order."

Applying analogous reasoning to the instant appeal. The statutory tenancy was determined on 31st March, 1953, by order of the Board. It was an absolute order and there was no suspension. All that the tenant had left, before he died, was a stay of execution pending appeal and he had filed his appeal. Even if he had a wife residing with him when he died, she, as widow, did not become a statutory tenant *ex lege*. Her husband had been no more a statutory tenant before he died. At the most he was a mere licensee of the Court which had ordered stay of execution pending decision in appeal. It may well be that that is the position of the widow. She is residing in the property under stay of execution and she may have a right to have what her husband had before his death, a right to continue with the appeal. This would certainly be an equitable result because, were the decision of the Board susceptible to reversal and its order for possession set aside

it would seem reasonable to say that the widow would be entitled to claim relation. back, that she was statutory tenant. To deprive her of an opportunity to join. herself in the appeal might well be to deny her not a mere shadowy right but a very real and substantial right and benefit which is the possibility that she might be reinstated as statutory tenant, as her husband might have been had he survived. However, as that may be, I am not seized of the point on the facts. This application by the administrator from any aspect must fail and is refused, with costs against him in his capacity as administrator, for whatever be the position of the widow, the administrator at least has no right to be joined as appellant.