Wakilii

Jiwan and Visram v Parshottam Gohil, Jadavji Gohil, Premji Gohil, and Bhagwanji Gohil (Civil Appeal No. 9 of 1948)

East African Court of Appeal · [1948] EACA 11 · 1948 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from decision of H.M. Supreme Court of Kenya dismissing landlords' action for eviction and mesne profits
Decision
Respondents ordered to be evicted from the premises; mesne profits awarded to landlords from 1 April 1947 until vacation

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that a statutory tenant's right to possession is purely personal and cannot be assigned or transferred inter vivos. The administrators of the deceased tenant lawfully sub-let to Natha Lila before the contractual tenancy expired on 30 November 1946. Natha Lila then became a statutory tenant holding over, but when he transferred the premises to the respondents on 1 April 1947, he had no assignable interest to convey. The respondents were therefore trespassers, not lawful tenants, and the landlords could sue for eviction without Rent Control Board consent.

Outcome

Respondents ordered to be evicted from the premises; mesne profits awarded to landlords from 1 April 1947 until vacation

Facts

J.M. Parmar held business premises in Mombasa as a monthly tenant of the appellants at Sh. 250 per month. Parmar died intestate on 2 July 1946. Letters of administration were granted on 11 October 1946. On 21 October 1946, the landlords gave notice to quit requiring vacant possession by 30 November 1946. On 28 October 1946, the administrators sold the business to Natha Lila for Sh. 28,100. Natha Lila took possession on 1 November 1946 and remained in occupation for three to four months. On 1 April 1947, Natha Lila transferred the business to the respondents upon their paying him the amount he had paid. The landlords sued the respondents for eviction as trespassers. The trial judge found that the respondents had entered into possession on 29 October 1946 as sub-tenants and dismissed the suit for want of Rent Control Board consent.

Issues

  1. Whether the respondents entered into possession of the premises on 29 October 1946 as sub-tenants of the administrators or on 1 April 1947 as transferees from Natha Lila.
  2. Whether a statutory tenant holding over after expiry of a contractual tenancy can lawfully transfer or assign his statutory tenancy rights to another person.
  3. Whether the respondents were lawful tenants or sub-tenants entitled to the protection of the Rent Restrictions Ordinance.
  4. Whether the landlords were required to obtain the consent of the Rent Control Board under section 4 of the Ordinance before instituting proceedings for eviction against trespassers.

Orders

  • Appeal allowed.
  • Judgment of the Supreme Court of Kenya dated 1st December 1947 set aside.
  • Judgment entered for the Appellants.
  • Order for eviction of the Respondents.
  • Mesne profits awarded to the Appellants at the rate of Sh. 250 per mensem from 1st April 1947 until the premises are vacated.
  • Costs awarded to the Appellants in the Court of Appeal and in the Supreme Court.

Rules and key headnotes

Landlord and Tenant — Statutory Tenancy — Assignment of Statutory Tenant's Rights
A statutory tenant's right to possession under rent restriction legislation is a purely personal right which cannot be assigned or transferred inter vivos or by will, and which ceases when the tenant parts with possession.
Landlord and Tenant — Contractual Tenancy — Assignment of Residue of Term
Under section 108(j) of the Indian Transfer of Property Act, in the absence of any contract or local usage to the contrary, a contractual tenant has the right to transfer the residue of the contractual term to another person at any date before the expiry thereof.
Landlord and Tenant — Statutory Tenancy — Transformation from Contractual to Statutory Tenant
Upon expiry of a contractual tenancy, a tenant holding over becomes a statutory tenant whose position is protected by rent restriction legislation only so long as he retains possession, but such interest as he has in the premises ceases when he parts with possession.
Landlord and Tenant — Trespass — Rent Control Board Consent
Where persons are in possession of premises as trespassers without any right or title, they are not tenants within the meaning of rent restriction legislation, and a landlord may sue for eviction without obtaining the consent of the Rent Control Board under section 4 of the Ordinance.
Colonial Legislation — Construction Following English Precedent
Where sections of a Colonial Ordinance have been passed in the same terms as English Acts which have been authoritatively construed by the Court of Appeal in England, the same construction should be adopted by the Courts of the Colony.

Legislation cited (7)

  • Indian Transfer of Property Act s.108(j)
  • Increase of Rent and Mortgage Interest (Restrictions) Ordinance 1940 s.4
  • Increase of Rent and Mortgage Interest (Restrictions) Ordinance 1940 s.2
  • Increase of Rent and Mortgage Interest (Restrictions) Ordinance 1940 s.11(1)(h)
  • Increase of Rent and Mortgage Interest (Restrictions) Ordinance 1940 s.11(4)
  • Increase of Rent and Mortgage Interest (Restrictions) Ordinance 1940 s.17(3)
  • Increase of Rent and Mortgage Interest (Restrictions) Ordinance 1940 s.19

Cases cited (7)

  • Reaves v Dean (1924) 1 KB 685
  • John Lovibond & Sons Ltd v Vincent (1929) 1 KB 687
  • Trimble v Hill (1879) 5 AC 342
  • Roe v Russell (1928) 2 KB 117
  • Skinner v Geary (1931) 47 TLR 597
  • Brown v Brash (1948) 1 All ER 922
  • Hans Raj v Bejoy Lal Seal (1930) 57 IA 110

Full judgment

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Jiwan and Visram v Parshottam Gohil, Jadavji Gohil, Premji Gohil, and Bhagwanji Gohil (Civil Appeal No. 9 of 1948) [1948] EACA 11 (1 January 1948)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.