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Birsingh v. Ramnik J. Khetia, Civ. App. 6-A-66, 5/8/67, Platt J.


Birsingh v. Ramnik J. Khetia, Civ. App. 6-A-66, 5/8/67, Platt J.

Applicants, who are brothers, purchased a house from respondent and paid the purchase price in full. They agreed that respondent could remain in possession of the house until it was needed, upon payment of monthly rent of Shs. 650/- In January 1966 they allegedly served him with a notice to quit the premises and brought this proceeding before the Rent Restriction Board When he failed to do so. The application stated that the house was required for the occupancy of applicants’ mother, who was ill and needed a ground floor dwelling; it was unclear whether one or both applicants would also live there. Respondent owned other houses which he had leased. He had not taken reasonable steps to regain possession of these houses.

            Held: (1) When a vendor remains in possession of premises which he has sold, the question of whether a tenancy is created is governed by the true intention of the parties as shown by all of circumstances. {Citing Virani v. Singh, (1946) E. A. C. A. 3; Francis Jacson Development Ltd. v. Semp. (1946) 2 A. E.R 601} In the present case, the purchase price had been paid and a rent agreed upon, and a tenancy was created. (2) The tenancy was a tenancy at will, not a tenancy from month to month, and no notice to quit was required; a demand for possession was sufficient. (3) The medical evidence of the mother’s condition was a sufficient showing of need under section 19(1) (e) of the Rent Restriction Ordinance, 1962 (the case is governed by that ordinance as it read prior to the Amending Act, No. 57 of 1966.) (4) The requirement of section 19(1)(e) that alternative accommodation be available to the tenant is satisfied by the fact that respondent owned other premises, even though those premises had been 1 cased to others. (5) Section 19 (4) of the Rent Restriction Ordinance provides that nothing in section 19 (1) (e) shall “permit the landlord to recover possession of a dwelling house if by such recovery he ….would be in occupation of more than one dwelling house at the same time.” This subsection has been interpreted by the Court of Appeals for Eastern Africa as applying to join landlords, and as requiring that none of them occupy another dwelling. [ Citing Manmohandas Daverchand v. A. J. Kalyanji, (1950) 17 E.A.C.A. 63, and Shaer Shair Ahmed v. Sharifa Tatoon A. Aziz, (1960) E.A. 17, both appeals from the Supreme Court of Aden, and Mclntyre. V. Hardcastle, (1948) 2 K.B. 82] (6) The High Court is bound by decisions of the Court of Appeals for Eastern Africa. The “very artificial result” is that applicants can recover possession only if (a) both of them occupy the premises, or (b) neither of them do so and the house is occupied solely by their mother. Retrial ordered, because the record was unclear as to who would occupy the house.


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